On November 21, 2012, the Court of Appeals for Veterans Claims (CAVC) issued an opinion in Monzingo v. Shinseki. The CAVC rejected the Veteran’s arguments that: (1) the Board of Veterans’ Appeals (Board) provided inadequate reasons for denying service connection for the Veteran’s hearing loss; (2) relied on an inadequate medical examination; and (3) erred in finding the Veteran’s hearing loss had improved during service.
As the CAVC noted, underlying the Veteran’s claims was the contention that two published medical studies, conducted with some VA involvement, should be deemed constructively part of the VA Claims record. While resolution of this issue was fact specific, the opinion does highlight and provide an overview of an important principal of VA law, that certain documents — even if not actually in the VA Claims file — can still be constructively before the VA. The CAVC summarized prior case law to apply the principle of constructive possession in cases where: (1) the document was generated by the VA in relation to the claimant’s case or submitted to the VA by the claimant; or (2) the document was the the VA’s control and has some direct relationship to the claimant’s case.
If you have any questions about your VA disability compensation or pension claim, please do not hesitate to contact me for a free consultation at sdirector@FRE-L.com or (732) 382-6070.