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Appellant Experiences Difficulties in VA Appeal

by Whitcomb, Selinsky, PC / December 18, 2019

Richard J. Hindt appealed a decision made by The Board of Veterans’ Appeals (Board) denying his entitlement to benefits for chronic bronchitis and epididymitis. Mr. Hindt filed his original claim in 2014. On appeal, Mr. Hindt argued the Board should have ensured the Dept. of Veterans Affairs (VA) satisfied its duty to help him in his benefits' claim and instead it provided inadequate reasons for not doing so.

VA's Duty to Veterans

Hindt argued the Board should have accounted for the favorable opinions of record, including the January 2018 private treatment record that suggested his respiratory problems may be related to diesel fume exposure while in the army. He noted the VA examiner in June 2017 “failed to consider whether the diesel fumes were a contributing or aggravating factor.” He stated the examination he received in June 2017 was inadequate because the examiner’s belief smoking “may have” contributed to his respiratory problems was speculative. Mr. Hindt asserted the Board failed to explain why the private opinions were given less probative value than the June 2017 VA exam. The U.S. Court of Appeals for Veterans Claims reviewed the Board’s decision


Mr. Hindt served on active duty in the U.S. Army from 1951 to 1953. He was diagnosed with acute bronchitis in 1952 and epididymitis in March 1953. He received treatment, and an examiner noted his condition “improved considerably.” When he was released, an examination revealed no respiratory conditions or abnormalities in this visit to the hospital.

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Richard J. Hindt’s Arguments

Mr. Hindt 's claim was denied by the VA regional office. He contested the decision by filing a Notice of Disagreement. The notice included a statement from his neighbor indicating she saw a decline in Mr. Hindt’s health with a chronic cough and bronchitis. He also submitted statements from his treating physician and two chiropractors where he told them he breathed in diesel fumes when he worked in the engine room in the service because he was not provided any type of mask. In 2017, Mr. Hindt took a VA respiratory condition examination and was diagnosed with chronic bronchitis and chronic obstructive pulmonary disease (COPD). In 2018, the Board of Veterans Appeals, on appeal denied entitlement to benefits for chronic bronchitis and epididymitis.

Legal Standard

According to 38 U.S.C.A. § 5103A, it is the VA’s responsibility to obtain records until it is reasonably certain that they either do not exist or furthered efforts to obtain the records would be futile. The VA has a duty to assist Veteran claimants and provide them medical exams. This duty requires helping claimants obtain “evidence necessary to substantiate the claimant’s claim for a benefit.” It is the Board’s responsibility to determine the credibility and weight of evidence. This duty includes assessing the probative value of medical evidence. The Board is the factfinder and determines the credibility and weight that is to be given to evidence. The Board determines whether the Secretary has fulfilled his duty to assist based on whether a medical exam or opinion is adequate, weight given to evidence, and findings of fact the Court reviews under the “clearly erroneous” standard of review. This type of standard of review is one where there is evidence to support it, but the reviewing court or entire evidence is left with a firm conviction that a mistake has been committed.

Judicial Analysis

The Court of Appeals for Veteran Claims noted many of Mr. Hindt's arguments did not carry much weight. The Board found the June 2017 VA exam adequate because the examiner provided a clear, detailed rationale for his opinion. However, the Board rejected the private medical opinions because the language was speculative in nature, did not account for the Mr. Hindt’s history of smoking, and did not reflect that the examiners reviewed the Mr. Hindt’s file. The court noted Mr. Hindt's evidence did not demonstrate clear error by the Board in weighing medical evidence in his record. Further, the Board found the private opinions were speculative and provided little evidentiary value. The Board disagreed with the appellant’s argument that despite his history of smoking, exposure to diesel fumes should have been considered as a factor that would have led to his chronic bronchitis. According to the Court, Hindt was unable to demonstrate prejudice in any failure of the Board to consider his theory. As demonstrated in Shinseki v. Sanders, 556 U.S. 396, 408, 129 S. Ct. 1696, 1705, 173 L. Ed. 2d 532 (2009), the burden is placed on the appellant to demonstrate that he suffered prejudice as result of the VA error.

The Board and Mr. Hindt held conflicting views of his February 2015 VA examiner’s opinion. While Mr. Hindt found the opinion to be inaccurate that his episode of epididymitis was caused by an infection, the Board concluded it was based on “sound medical principles.” He unfortunately was unable to provide any support for his explanation of the medical evidence. The Court of Appeals noted that lay hypothesizing cannot be considered by the court. The Court of Appeals also found the appellant’s arguments were undeveloped that the Board failed to ensure the VA satisfied its duty to assist him in obtaining his medial records from Madigan Army Hospital . Mr. Hundt admitted the VA made numerous unsuccessful attempts to obtain his records and the VA advised him further attempts would be futile. He provided no support for his argument that the VA’s efforts were insufficient.

The Court noted the Appellant's arguments were undeveloped and little to no evidence was provided for many of the Hindt's arguments. It is important to be prepared to support your arguments in a court oflaw. If you have concerns about acquiring your veteran’s benefits or social security, contact us at (866) 476-4558

Tags: Veterans Disability

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