DoD

Honor the Contract

VBA

Letter 20-99-60

Director

(00/21/27) In Reply Refer To: 211C

All

VA Regional Offices and Centers

SUBJ:

Claims That Are Not Well-Grounded

On

July 15, 1999, the United States Court of Appeals for Veterans

Claims ("the Court") issued Morton v. West, No. 96-1517,

which held that VA cannotassist a veteran in developing a claim

which is not well grounded. The Courtheld that the provisions

in M21-1, Part III, 1.03(a) and Part VI, 2.10(f)which instruct

the VA to fully develop a claim before deciding whether or notit

is well grounded are interpretive rules which are invalid because

they arecontrary to 38 U.S.C. A§ 5107(a). Effective

immediately, these manual provisions are rescinded. A national

conference call will be scheduledshortly that will provide

instructions on how to implement this new policyand to address any

questions. We realize that you will likely receive questions from

your service officers regarding well-grounded claims.

Thisinformation has already been shared with veterans service

organizations atthe national level. Therefore please feel free

to share this information with your local contacts.

New

Policy

Determine

Well-Groundedness & Claimant Notification: Effective

immediately, each regional office must determine if a claim is well-grounded

prior to beginning development of evidence. There may be multiple

issues in each application for compensation. Each individual issue

must be reviewed to determine if it is well-grounded. If any

particular issue is not well-grounded, the regional office must send

the claimant a letter describing the evidence needed to establish a

well-grounded claim. Draft sample letters are enclosed for your

review and comments.

Immediate

Development:

Service

medical records and VA medical center recordsare to be

requested in all cases. These are records considered to be in VA

custody. Private medical records or records from other Federal or

Stateagencies are not in VA custody and will not be requested

prior to a determination that the claim is well-grounded.

2.

Time

Limit For Claimant Response: The claimant is to be advised that

he/she will be given 30 days from the date of the written notice to

submit the evidence to establish a well-grounded claim. At the

expiration of 30 days, the regional office will determine whether the

claim is well-grounded based on the evidence of record and take

appropriate action based on that determination.

Criteria

For Service Connection

A

claim for service connection is well-grounded if three criteria are

met: (1) there is competent evidence of a current

disability/medical diagnosis; (2) there is competent lay

or medical evidence that a disease or injury wasincurred in or

aggravated by military service; and (3) there is competent evidence

of a nexus or causal relationship between the in-service

incurrence/aggravation and the current disability. (See Caluza v.

Brown, 7 Vet.App. 498 (1995), affâ_Td 78 F.3d 604 (Fed.

Cir.1996) (per curiam)). For the service incurrence requirement, a

veteranâ_Ts statement regarding an event that is ordinarily

susceptible to observation and verification by lay personswill

be sufficient. Otherwise, medical evidence will be necessary. Under

38 U.S.C. A§1154(b), a combat veteranâ_Ts statement that

an injury or disease wasincurred in or aggravated by combat

service will be sufficient to satisfy theservice-incurrence

requirement. Medical evidence is required to establishthe

current disability and nexus requirements. The nexus requirement and

the service-incurrence requirement may also be satisfied by a

presumption that certain diseases manifesting themselves within the

prescribed presumptive period are related to service. For purposes of

determining whether a claimis well-grounded, a

claimantâ_Ts evidence is presumed to be credible.

Criteria

For Pension

A

claim for pension is well-grounded if three criteria are met: (1)

the veteran had active military service of 90 days or more with at

least 1 daybeing during a period of war (or discharge or

release from service during a period of war for a service-connected

disability); (2) there is evidence ofincome which does not

exceed the statutory limit; and (3) there is evidenceof

permanent and total disability productive of unemployability. (See

Vargas-Gonzalez v. West, 12 Vet.App. 321 (1999)). Medical evidence is

necessary for the third requirement.

Criteria

For Service Connection For Cause of Death

A

claim for service connection for cause of death is well-grounded if

three criteria are met: (1) there is a death certificate or

equivalent medical evidence showing the cause of death; (2) there is

medical evidence that the disability causing or contributing to death

was incurred in or aggravated by military service; and (3) there is

medical evidence of a nexus or causal relationship between the

in-service incurrence or aggravation and the disability causing or

contributing to death. (See Ramey v. Brown, 9 Vet. App. 40 (1966)).

Continued

Duty To Assist

When

a claim is well-grounded, VA must fulfill its duty to assist which

includes, as appropriate, obtaining VA and private medical records,

ordering a VA examination, or any other development required by the

facts of the case.

Policy

For Claims Already Developed

Effective

immediately, claims which are not well-grounded, but for which

development has already been undertaken, will be reviewed at the

point in time when all of the evidence which has already been

requested is received. If the evidence of record does not

establish a well-grounded claim, holdthese cases until the

national conference call where we will define notification requirements.

Enclosed

is a more thorough discussion of this issue, sample scenarios of

well-grounded claims, and draft samples of notification letters. We

know you and your staff will have questions regarding this

information. We invite you to submit your questions in writing to the

Compensation and Pension Service mailbox, VAVBAWAS/CO/21 by September

7, 1999. These questions will be addressed at the national conference call.

Joseph

Thompson

Under Secretary for Benefits

Enclosures

Analysis

General

Overview

In

Morton v. West, No. 96-1517 (U.S. Ct.Vet.App. July 14, 1999), the

United States Court of Appeals for Veterans Claims (the Court) held

that under 38 U.S.C. A§ 5107, absent the submission and

establishment of a well-grounded claim, the Secretary cannot

undertake to assist a veteran in developing facts pertinent to his or

her claim. Section 5107(a) provides that: "Except when otherwise

provided by the Secretary in accordance with the provisions of

thistitle, a person who submits a claim for benefits under a

law administered bythe Secretary shall have the burden of

submitting evidence sufficient to justify a belief by a fair and

impartial individual that the claim is well grounded." The Court

noted that both it and the United States Court ofAppeals for

the Federal Circuit have interpreted section 5107 as

conditioningthe Secretaryâ_Ts duty to "assist . .

.in developing the facts pertinent tothe claim" upon the

submission by the claimant of a well-grounded claim. In this

decision, the Court reviewed the provisions in M21-1, Part III, 1.03a

and Part VI, 2.10f and found that they were interpretive rules which

did notcreate enforceable exceptions to section 5107(a) rights.

Once a well-grounded claim has been received, VA must execute

its duty to assist. Thatduty includes, in appropriate

circumstances, gathering private medicalrecords and conducting

a thorough and contemporaneous medical examination. However,

absent a well-grounded claim, VA has no duty to assist the claimant

and development cannot be initiated. There are currently no

exceptions tothis policy. As a consequence of the Morton

decision, the cited manual provisions and any other manual provisions

that can be viewed as requiring a fulfillment of a duty to assist the

claimant even though a well-grounded claim has not beenreceived

are rescinded. In addition to the above-cited paragraphs,

othersthat have been identified include Part III, 1.05a (second

sentence), 2.01a,5.19, 5.20b(1)(4) and d; Part IV, 28.02b (5th

sentence); Part VI, 1.01b, 2.08b and c, and 2.10b and g. These

provisions will be amended or deleted as quickly as possible As

additional paragraphs are identified they will also be amended or

deleted as appropriate. In Murphy v. Derwinski, 1 Vet.App. 768

(1990), the Court defined a well-grounded claim as one which is

meritorious on its own or capable ofsubstantiation. Such a

claim need not be conclusive, but only possible, to satisfy the

initial burden of section 5107(a). The Court held in Tirpak v.

Derwinski, 2 Vet.App. 609 (1992) that, to be well-grounded, a claim

must be accompanied by supportive evidence. It is important to note

that "evidence"can consist of many diverse items such

as VA or private medical records, service records, lay statements, or

the veteranâ_Ts own testimony. Evidencemust be presumed

credible for the limited purpose of making the claim well- grounded.

Criteria

For Service Connection

In

order for a claim of service connection to be well grounded, the

claimantmust present competent evidence of the following: (1) a

current disability (a medical diagnosis); (2) incurrence or

aggravation of the claimed diseaseor injury in service (lay or

medical evidence); and (3) a nexus between thein-service injury

or disease and the current disability (medical evidence). (See Caluza

v. Brown, 7 Vet.App. 498 (1995), affâ_Td, 78 F.3d 604 (Fed.

Cir. 1996) (per curiam)). Please note that the nexus requirement may

also be satisfied by establishing that a condition for which a

regulatory presumption of relationship to service exists is

manifested within the prescribedpresumptive period. The

threshold for a well-grounded claim is low. For example, a veteran

submits a claim stating that he injured his knee in- service while

playing basketball and provides current medical evidence of arthritis

of the knee and a medical opinion by his private physician that there

is a link between the currently diagnosed arthritis and the

in-serviceinjury. The veteran has submitted a well-grounded

claim, one that isplausible and/or capable of substantiation.

In another example, the veteransubmits medical evidence of

diabetes diagnosed six months following separation from active

service. Again, a well-grounded claim has beensubmitted as the

nexus requirement has been satisfied by the medical evidencethat

the diabetes manifested within the one year presumptive period

afterdischarge from active service.

Criteria

For Service Connection For Cause of Death

In

Ramey v. Brown, 9 Vet.App. 40 (1996), the Court applied the same

threerequirements for a well-grounded claim for service

connection of a disabilityto a claim for service connection for

a death, that is medical evidence of acurrent disability,

evidence of incurrence or aggravation of a disease in service, and a

nexus between the current disability and in-service disease. The

Court held that in claims for service connection for the cause of

deathof a veteran, the requirement for evidence of a current

disability willalways have been met because that was the

condition that caused the veteranto die. However, the last two

requirements, an in-service event and a nexus, must be supported by

evidence sufficient to well ground the claim. Thus, asurviving

spouse who provides evidence of an in-service event and a

medicalnexus statement linking the in-service event to the

cause of death has a well-grounded claim.

Criteria

For Pension

In

disability pension cases, the requirements for a well-grounded claim

are: (1) honorable active military service for 90 days or more

with at least 1 day being during a period of war (or discharge or

release from service during aperiod of war for a

service-connected disability); (2) evidence of incomewhich does

not exceed the statutory limit; and (3) evidence of

totaldisability productive of unemployability.. To meet the

well-grounded threshold in a pensionclaim, the veteran states

she served in the Korean Era, has an annual incomeof(2)

$1,000.00, and is unable to work. With her application, she

submittedmedical evidence of bilateral shoulder arthritis which

was totally disabling. Since her claim is capable of substantiation,

it is well-grounded.

Policy

For Multiple Issues

Claims

may consist of one or more issues. A determination must be made

foreach issue as to whether it is well-grounded. For example, a

veteran submitsan application for compensation for a skin

disorder and hypertension. Hestates that both disabilities were

treated while he was on active duty. Theapplication is received

6 months after separation from active service. Sinceno evidence

was received with the application, the veteran must be

notifiedas to the evidence required to well-ground each issue.

His statement oftreatment in service for both conditions is

sufficient to meet one of thethree requirements for a

well-grounded claim. Thus, for the skin condition,he will be

informed that he needs to submit medical evidence of a

currentdisability and medical nexus evidence. To well ground

the hypertensionissue, he will only need to submit current

medical evidence that he has adiagnosis of hypertension.

Remember, presumptive diseases arising during theidentified

presumptive period do not require medical evidence of a

linkbetween service and that condition. At the end of the

30-day period, the veteran has submitted medical evidence of the

existence of hypertension buthe has not submitted any medical

evidence on the skin condition. Thehypertension issue is well-grounded

and VAâ_Ts duty-to-assist requirementsmustbe

fulfilled. The issue of service connection for a skin condition is notwell-grounded

and must be denied on that basis.

Regards,

Jack

Henshaw

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