Veteranclaims’s Blog

January 8, 2021

Bailey v. Wilkie, No. 19-2661(Argued July 27, 2020 Decided January 6, 2021); prostate cancer; whether DC 7528 permits or prohibits separate evaluation of non-voiding and non-renal dysfunction of prostate cancer such as diarrhea and lymphedema;

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“As for Sellers, although that decision post-dated the 2015 amendments to §§ 3.155 and 3.160, the Federal Circuit’s holding that “a veteran’s formal claim is required to identify the sickness, disease, or injuries for which compensation is sought, at least at a high level of generality,” 965 F.3d at 1338, does not mean, as the Secretary suggests, that claims for secondary service connection cannot be reasonably raised during the processing of a formal claim regarding the appropriate evaluation level for the primary service-connected disability. To the contrary, in Sellers the Federal Circuit reiterated that, although the 2015 amendments to §§ 3.155 and 3.160 “substantially revised the claim initiation process,” they did “‘not alter the VA’s general practice of identifying and adjudicating issues and claims that logically relate to the claim pending before the VA'” and “generally would not preclude the VA from identifying, addressing, and adjudicating related matters that are reasonably raised by the evidence of record which the claimant may not have anticipated or claimed.'” Id. at 1337 (quoting VJG, 818 F.3d at 1356). As explained above, this includes reasonably raised claims for secondary service connection for disabilities due to treatment for an already service-connected disability.
All in all, the text, history, and purpose of §§ 3.155(d)(2) and 3.160 indicate that VA is required to develop and adjudicate related claims for secondary service connection for disabilities that are reasonably raised during the adjudication of a formally initiated claim for the proper evaluation level for the primary service-connected disability. See Kisor, 139 S. Ct. at 2415. To hold otherwise would be to allow VA to institute, through litigation, a more restrictive claims initiation process than it proposed and ultimately adopted through notice-and-comment rulemaking. The Court is simply not willing to allow VA to do so.”

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PIETSCH, Judge, concurring: “I am convinced by the plain regulatory language and parts of the Court’s analysis that the Secretary’s assertion that § 3.310(a) benefits cannot fall under § 3.155(d)(2) is not correct and that lymphedema and diarrhea, in the context of this case, are “complications” of the appellant’s prostate cancer.”

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