"It is the duty of the people to care for him who shall have borne the battle, his widow, and orphan."
-Abraham Lincoln

Tuesday, March 26, 2024

Hambidge: Mootness and Writs

Hambidge v. McDonough, Case Numbers 23-2589, decided March 13, 2024 involves a request for injunctive relief to prevent the Secretary from applying 38 CFR 21, 4020 to limit continued entitlement to post-9/11 GI Bill education benefits while the administrative appeal proceeded. 

The veteran used Survivors and Dependents Education Assistance for which he was entitled to for his father’s service.  After graduation, the veteran served for a decade and then upon discharge enrolled in an MBA program.  Before enrolling in the MBA program, the veteran filed a claim for chapter 33 benefits based on his Army service.  He was told he was entitled to the benefits, but only 7 months and 5 days of them.  The veteran requested an audit detailing his use of chapter 35 benefits and was told by the VA that per 38 CFR 21.4020 the aggregate period for which a person may receive education benefits assistance under an y combination of VA education programs may not exceed 48 months.  Because he had received 40 months and 25 days for his undergraduate degree, he only had the remaining 7 months and 25 days.

The veteran appealed to the Board and requested the claim be advanced due to the fact he would otherwise be graduated before the Board decided the claim.  The veteran then filed for the injunction before the Court.

Next, the RO issued a new COE which notified the veteran “that he was "entitled to receive 100% of the benefits payable under the Post-9/11 GI Bill program for training offered by an institution of higher education" and therefore had 33 months and 15 days of full-time chapter 33 education benefits remaining.”  Id. at *2.  As a result, the VA argued the request for an injunction was moot.

The Court determined that the “VA's regulation is inconsistent with section 3695; the Secretary all but concedes as much in his response. See Secretary's June 26, 2023, Response at 8 ("while the RO erroneously withheld benefits originally"), ("the Veteran's Benefits Manual M22-4 instructs ROs to adjudicate education benefits based on the statutory entitlements, to include the 81-month limit for receiving assistance under Chapter 35 and other Chapters"), at 9 ("Indeed, the RO has corrected the error."), at 10 ("internal VA guidance is to administer educational benefits based on the statute, to include the 81-month limit for receiving assistance under Chapter 35 and other Chapters"). And the Secretary's actions in this case, namely having the RO issue a revised COE and granting Mr. Hambidge full entitlement to chapter 33 benefits by ignoring the regulation's 48-month cap, speak even louder. Like Mr. Hambidge, the Court is baffled by the Secretary's failure to revise § 21.4020 to reflect the changes that Congress made to section 3695 a dozen years ago.”

However, the Court then found the veteran was not entitled to a writ because he has adequate alternative means to obtain the relief he requested.  The Court also downplayed any concern the updated COE would not be enforced and his benefits granted. 

Still, the Court noted it was “troubled by VA's inaction on this issue. Most troubling has been its ongoing failure for more than a decade to revise § 21.4020 to reflect the changes to section 3695. As it stands, the regulation is flatly inconsistent with the statute. Remarkably, even as this petition brought that inconsistency front and center, there has been no formal notice by the Agency of its intention to amend § 21.4020 or even an informal representation to the Court that such efforts were underway. Mr. Hambidge's case demonstrates the dangers of VA's inaction on this legal issue. Nonfeasance is not too harsh a word to use in this context. The fact that Mr. Hambidge can challenge the regulation via his administrative appeal and will not suffer irreparable harm while he pursues that remedy suffice to make injunctive relief inappropriate here. But the Court strongly urges the Secretary to take corrective steps so that other veterans like Mr. Hambidge are not wrongly penalized by § 21.4020.”  Id. at *6.

Judge Falvey wrote a concurrence explaining he narrowly views the Court’s jurisdiction as to writs.

Judge Jaquith wrote a dissenting opinion in which he argued a writ should be granted.  Judge Jaquith’s first point is to refute Judge Falvey’s point, as he argues the All Writs Act allows writs to aid in a court’s prospective jurisdiction in the face of action that would frustrate such prospective appellate jurisdiction.  He also argued mootness should not be a bar to the Court’s granting a writ.  He then noted “I join the majority in "strongly urg[ing] the Secretary to take corrective steps so that other veterans like Mr. Hambidge are not wrongly penalized by § 21.4020." Id. But the circumstances here warrant more than concern and exhortation. I would grant Mr. Hambidge a preliminary injunction to preserve the status quo pending the resolution of his appeal.”

This is a decision relevant to a limited set of facts.  However, it highlights the divide in the Veterans Court.  It appears most judge are very reluctant to grant a writ even in the face of troubling action by the VA whereas some are more willing to grant such writs.

Decision by Judge Toth and joined in by Judge Falvey.  Dissent by Judge Jaquith. 

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Wednesday, February 28, 2024

Beaudette: Caregiver Program Appeals Affirmed

Beaudette v. McDonough, Opinion Number 2022-1264, was decided February 27, 2024 by the Federal Circuit and involves the Program of Comprehensive Assistance for Family Caregivers (Caregiver Program) and certification of a class.

The case involves the Caregivers Program, which has some limitations, but grants additional benefits to qualified veterans and have serious injuries such as a TBI, psychological trauma or other mental disorder.  The veteran must need “personal care services because of an inability to perform at least one or more activities of daily living, a need for supervision or protection because of neurological or other impairment or injury, or a need for regular or extensive instruction or 2 supervision to avoid serious impairment of daily functioning.” “A family caregiver of an eligible veteran is entitled to instruction and training to provide personal care services, technical support, counseling, and lodging and subsistence; the primary family caregiver is entitled to the previous benefits, as well as appropriate mental health services, respite care, medical care, and a monthly stipend.” 

This case truly involves heart-breaking facts and a terrible decision making process by the VA.  A wife and the veteran applied and were granted benefits under the program.  Five years later the VA initiated a reassessment, but the veteran could not participate in the in-person examination because he was recovering from two major surgeries and the VA denied his request to delay assessment until he recovered for an examination.  The VA ultimately informed the veteran and his wife they were no longer eligible to participate in the Caregivers program based on the reassessment.   The couple challenged the ruling through a VHA appeals process and were denied—one of them was in part because the severely disabled veteran could not attend an in-person examination.

The couple then appealed to the Board of Veterans’ Appeals in August 2019, but as of the date of this decision, had not received a response.  And, in fact, the Secretary has concluded the Caregiver Program decisions cannot be appealed to the Board.  As a result, in July 2020, the couple filed a petition to the Veterans Court.

The Veterans Court had determined the benefits under the Caregivers Program fall within the Veterans Judicial Review Act and jurisdiction of the Court.  The Secretary had argued the program involved a medical determination and by statute and regulation outside of the Board’s review.  The Court noted the plain meaning of the regulation does not insulate the program from judicial review and instead noted interpretative canons which that there is a strong presumption favoring judicial review of administrative actions and there is a strong presumption that repeals by implication are disfavored and that Congress will specifically address preexisting law when it wishes to suspend its normal operations in a later statute.

The Veterans Court conclude[d] that Congress has spoken unambiguously in mandating Board review of all decisions "under a law that affects the provision of benefits by the Secretary." 38 U.S.C. § 7104(a). VA's interpretation of section 1720G(c)(1) is invalid to the extent it limits the ordinary scope and operation of the VJRA. The Beaudettes have established an indisputable right to Board review, the lack of an adequate administrative means of securing that right, and the propriety of extraordinary relief in these circumstances. Accordingly, a writ of mandamus was issued.

As to the question of a class action, the court granted a class of individuals “who (1) received an adverse decision under the Caregiver Program, (2) exhausted available review under the VHA, and (3) have not been afforded the right to appeal to the Board.” 

The Secretary challenged the Veterans Court’s decision and the Federal Circuit affirmed with similar language as the Veterans Court.

This is an important decision that affirms the right to appeal Caregiver denials, but also shows the lengths to which the VA does not want to do the right thing.  It is shocking that the VA wasted resources by appealing the Veterans Courts well-thought out decision rather than pouring those resources into actually doing the right thing.

Opinion by Chief Judge Moore and joined in by Judges Dyk and Stoll.

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Stinson: Fact Finding by the Veterans Court

Stinson v. McDonough, Case Number 2023-1090, decided January 15, 2024 and decided by the Federal Circuit involves a claim for service connection for blastic plasmacytoid dendritic cell neoplasm (BPDCN) and more specifically was overturned because the Veterans Court had found facts in the first instance.

First, BPDCN is a rare and aggressive form of cancer that starts in the skin, infiltrates bone marrow and progresses to become acute myelogenous leukemia (AML).  The veteran had been denied service connection by the Board and had argued to the Veterans Court that the Board should have sought clarification from a nurse practitioner concerning a 2016 letter regarding his condition.  He also argued the medical opinion and Board decision failed to address his full medical history, specifically his in-service symptoms (a skin rash) and his 2002 symptoms (low white blood cell and platelet counts).  These cut against the 2019 medical opinion which found no evidence of his conditions prior to 2011.  The Veteran’s Court rejected these arguments.

At the Federal Circuit, the veteran argued “the Veterans Court exceeded its statutory authority when it found facts in the first instance concerning (1) the location of the lesion giving rise to his BPDCN diagnosis and (2) his in-service symptoms.”  Id. at *7.  The Court agreed.

The Court began by discussing the law underpinning the decision, that “The Veterans Court has no statutory authority to make factual findings in the first instance. 38 U.S.C. § 7261(c); Deloach v. Shinseki, 704 F.3d 1370, 1380 (Fed. Cir. 2013). The Veterans Court also has no statutory authority to weigh the evidence in the first instance. Tadlock, 5 F.4th at 1334; Deloach, 704 F.3d at 1380. As we explained in Tadlock, [w]hen questions of fact are open to debate, veterans are entitled to present whatever evidence and arguments they have to the agency charged with administering veterans’ benefits and possessed with the expertise to render informed judgments and to have that evidence and those arguments considered by that agency in the first instance. Tadlock, 5 F.4th at 1337 (emphasis added). Whether an injury is service connected is a question of fact delegated to the VA for consideration in the first instance.”  Id. at *7.

Before the Veterans Court, the veteran argued the Board analysis and the underpinning medical opinion failed to consider his full medical history prior to his diagnosis, including in-service symptoms and 2002 symptoms.  Specifically, he argued “they were relevant because (1) his 2002 symptoms preceded his BPDCN diagnosis and (2) his in-service January 1964 rash was in the same place as the lesion that gave rise to his BPDCN diagnosis. J.A. 40–41. Mr. Stinson argued that these symptoms show that his BPDCN, a rare form of cancer that affects a patient’s blood and skin, preceded 2011, which is contrary to the 2019 VA medical opinion’s conclusion that there was no  evidence of BPDCN prior to 2011.”  Id. at *8. 

The Federal Circuit noted the Veterans Court rejected this argument, explaining the veteran failed to show his in-service symptoms and 2002 symptoms were relevant to his BPDCN diagnosis.  But, then found “The Veterans Court’s conclusion, however, with respect to the January 1964 rash, rests upon impermissible factual determinations that require vacatur and remand.”  Id. at *8.  The Court explained that the “Veterans Court impermissibly found as a matter of fact, and in the first instance, that Mr. Stinson’s January 1964 rash was in a different location than his BPDCN lesion and thus irrelevant to Mr. Stinson’s claim for service connection for BPDCN…. The Veterans Court then noted that this condition was not identified on Mr. Stinson’s shoulder, which is where the BPDCN began.”  Id. at *8-9. 

The Federal Circuit the record is unclear as to whether the lesion leading to the BPDCN diagnosis was located on the shoulder or upper back.  Specifically, the reference by the oncologist was to his upper back and the lesion from 1964 was on his the back of his neck.  The Federal Circuit then determined: “because the location of the lesion giving rise to Mr. Stinson’s BPDCN diagnosis is open to debate, it was impermissible for the Veterans Court to conclude in the first instance that it was located on Mr. Stinson’s shoulder and thus not located in the same location as Mr. Stinson’s January 1964 rash. By doing so, the Veterans Court exceeded its statutory authority by engaging in de novo fact-finding.”  Id. at *9.

The Federal Circuit concluded by stating: “Here, Mr. Stinson’s in-service symptoms, such as his January 1964 rash, affected certain portions of Mr. Stinson’s skin. Whether these symptoms, and the timing of these symptoms, are connected to Mr. Stinson’s BPDCN, a very rare form of cancer that can manifest in the skin and can spread to the blood, is a factual question for the medical experts, whose opinions are then weighed by the Board. See Tadlock, 5 F.4th at 1334; see also Deloach, 704 F.3d at 1380. The Veterans Court, in turn, reviews the Board’s weighing of this evidence. Tadlock, 5 F.4th at 1334. The Veterans Court has no statutory authority to weigh Mr. Stinson’s evidence in the first instance. See id. It is especially problematic that the Veterans Court reached this conclusion based on its own factfinding. Again, no medical expert, nor the Board, explicitly discussed whether Mr. Stinson’s in-service symptoms are evidence of an earlier BPDCN start date than 2011.” Id. at *11.

The Federal Circuit explained:

“When the Veterans Court acts as a fact finder, the Veterans Court exceeds its statutory authority and frustrates one of the reasons for which it entertains newly raised issues on appeal—to provide the veteran with a “user friendly” claims process. Maggitt, 202 F.3d at 1378. As we explained in Maggitt, the Veterans Court may want to consider a newly raised issue on appeal, as opposed to dismissing it outright, because veterans often face challenges when presenting their case before the VA or before the Board, such as not obtaining independent counsel until after the Board reaches its final decision. Id.7 However, if in reviewing a newly raised issue, the Veterans Court finds facts in the first instance, the Veterans Court deprives the veteran of the “user friendly” system Congress intended.  Id. Specifically, the Veterans Court denies the veteran of the opportunity to present evidence before the trier of fact that has the expertise and responsibility of determining such factual issues. The Veterans Court also denies the veteran of any effective appellate review of such factual issues. Thus, in considering a new argument on appeal, the Veterans Court should appropriately review the record and remand to the appropriate body any factual questions open to debate.”

Id. at *12.

This is a fascinating decision.  It makes clear the Veterans Court cannot weigh evidence in the first instance and explains that to do so would undermine the user friendly claims process and denies effective judicial review of a factual issue.  There is tremendous pressure from the VA for the Court to end more cases and it is clear they convinced the Veterans Court to do so in this decision by making factual findings that were bad for the veteran.  The odd tension is that veterans would also like for the Veterans Court to affirmatively decide more cases.  I believe this decision still leaves open the ability for more final decision as long as the Court is not making initial factual findings.

Decision by Judge Reyna and joined in by Judges Dyk and Stark. 

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Friday, February 9, 2024

Conyers: The Doctrine of Constructive Possession Applied

Conyers v. McDonough, Case Number 2023-1525, decided January 30, 2024 and decided by the Federal Circuit involves a discussion of the doctrine of constructive possession.

This involved a pro se veteran who sought employment benefits under the Veteran Readiness and Employment program.  After two administrative reviews denied him benefits, he appealed to the Board which also denied.  The appeal was also denied by the Veterans Court, which also rejected the veteran’s claim that certain documents formed part of the administrative record under the doctrine of constructive possession.  The Federal Circuit found the Veteran’s Court applied the incorrect legal standard under Euzebio I (“direct relationship” between the document and the claim) as opposed to Euzebio II (“relevance and reasonableness”).

The Federal Circuit began by discussing it in general:

“The concept of constructive possession arises in many legal contexts, including criminal law and property law.  In the context of veterans law, the constructive possession doctrine generally applies such that “evidence that is within the Secretary’s control and could reasonably be expected to be a part of the record before the Secretary and the Board is constructively part of the administrative record.”

Id. at *6.

The Court noted that when the veteran filed his motion to compel the addition of the documents to the record, Euzebio II had not been issued.  It then explained Euzebio I had involved a public document that was published during the pendency of that case before the Board and raised the the question of whether the Veterans Court should have deemed the document to have been constructively possessed by the Board when it reviewed Mr. Euzebio’s appeal.  But, on appeal Euzebio I was overturned by the Federal Circuit, which found: 

“the correct standard for constructive possession is whether the evidence is “relevant and reasonably connected to the veteran’s claim.”  Id. at 1321 (internal quotations and citations omitted). We noted that requiring a showing of relevance and not a direct relationship “makes sense in light of the VA’s statutory duty to assist veterans in developing the evidence necessary to substantiate their claims.” Id. (internal quotations and citations omitted). The constructive possession doctrine provides a safeguard that ensures all record documents reasonably expected to be part of a veteran’s claim are included in the administrative record.”

Id. at *7.    The Federal Circuit noted that after Euzebio II was issued, the veteran continued to raise the issue and the Veterans Court failed to mention Euzebio II.

This decision is an interesting explication of Euzebio II and helps to clarify the doctrine of constructive possession.

Decision by Judge Reyna and joined in by Chief Judge Moore and Judge Hughes. 

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Monday, January 29, 2024

LaBruzza and McBride: "Employment in a Protected Environment" Defined?

LaBruzza and McBride v. McDonough, Case Numbers 21-4467 and 10-8562, decided January 24, 2024 involves TDIU and specifically the terms marginal employment and an protected work envinroment.

The VA denied the veteran’s entitlement to TDIU.  Both Board decisions found the veterans were not engaged in “employment in a protected environment,” but as the Court noted the Board denied the term differently in each case.

The Court begins by focusing on 38 CFR 4.16)a and specifically its reference to marginal employment and that definitions use of the term employment in a protected environment.  The Court noted:

“When we examined the phrase in Cantrell v. Shulkin, we found it ambiguous because neither § 4.16 nor any surrounding regulation explicitly defined it. 28 Vet.App. 382, 390 (2017). At that time, the Secretary said this ambiguity was by design, as VA had "purposely chosen not to prescribe a precise definition of 'protected environment'" to "allow[] the factfinder to make the determination on a case-by-case basis." Id. (internal quotations omitted). The Court declined to defer to this position, questioning how hundreds of VA adjudicators across the country could consistently apply that undefined phrase without guidance. Id. Finding that it was VA's responsibility to define the terms in its own regulations, the Court remanded for the Secretary to articulate a standard definition. Id. at 391-93.

 

In the ensuing 4 years, the Secretary did not promulgate an official definition or otherwise provide to VA adjudicators guidance as to how to apply the phrase. The Secretary finally offered a definition when ordered to do so by another panel of the Court in Arline v. McDonough. See 34 Vet.App. 238, 246 (2021). His litigating position in that case was that "employment in a protected environment" meant employment in "a non-competitive workplace separated from workplaces in the open labor market and in which hiring and compensation decisions are motivated by a benevolent attitude toward the employee." Id. at 247. Because the Arline Court affirmed the Board's denial of TDIU on other grounds, we did not address the propriety of this proffered definition. See id. at 242, 256. Over 2 years have passed since the Arline decision issued, and the Secretary has not formally or informally acted to disseminate his interpretation to VA adjudicators.”

 Id. at *5.

            The veterans argued that the protected work environment is not ambiguous but plainly means employment “in which the employee is protected from the economic consequences of his or her inability to perform the physical or mental tasks required by the substantially gainful employment at issue.”           

            The Court reconsidered its decision in Cantrell in light of Kisor’s discussion of agency deference and concluded the phrase is not ambiguous and finds “by examining the text, structure, history, and purpose of § 4.16(a), the meaning of "employment in a protected environment" has become clear. The phrase unambiguously means employment in a lower-income position that, due to the veteran's service-connected disability or disabilities, is shielded in some respect from competition in the employment market.”  Id. at *14.

            To address the ADA, the Court concluded “employees who receive reasonable accommodations under the ADA are not being shielded from the competitive labor market; they are working within it under one of the conditions that govern it. Thus, as a general matter, receipt of an ADA accommodation is not by itself evidence that a veteran is working in a protected environment. It also follows from this general proposition that a veteran receiving accommodations beyond those legally required by the ADA is more  likely to be able to demonstrate that he or she is employed in a protected environment. See Arline, 34 Vet.App. at 258-59 (Bartley, C.J., concurring in part). Conversely, a working veteran who does not require any ADA-mandated accommodation to work is less likely to be able to show that his or her employment is in a protected environment.”  Id. at *15. 

            The Court then noted “Given the fact-specific inquiry required to determine whether the veteran's employment is in a protected environment, however, we reiterate that these generalities are not categorical or dispositive. They will guide most cases. But the Board may consider any individualized factor or evidence that tends to clarify whether a specific position was shielded in some respect from competition in the employment market. And, of course, the income that a veteran earns from employment must be relatively low to qualify as "in a protected environment.””  Id. at *15. 

            The Court noted that while the term protected work environment might appear broad because no fact or factor are dispositive, a veteran and advocate “seeking to argue entitlement to TDIU during periods in which the veterans were employed should be prepared to submit sufficient evidence for VA to determine entitlement.”  Id. at *16. 

            The individual cases were remanded for analysis under the Court’s newly annunciated standard. 

            This is a dense decision that both defines protected work environment, and also addresses ADA reasonable accommodations.  However, the definition provided by the Court is so new, fact specific, and not grounded in any specific fact or factor.  As such, I predict that it will generate significant further litigation in how it should be applied.  I predict the VA will continue denying worthy TDIU cases and veteran’s will need good advocates to fight for their full benefits. 

Decision by Chief Judge Bartley and joined in by Judges Pietsch and Toth. 

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Wednesday, January 10, 2024

Calhoun: A Continuous Prosecuted Case under the AMA and the Freestanding Earlier Effective Date Claim Prohibition

Calhoun v. McDonough, Case Number 21-6124, decided January 9, 2024 involves the effective date of TDIU and determines “that an issue remains active—that is, a decision on the issue remains pending and does not become final, including for effective date purposes—when a claimant files a supplemental claim within one year of an adverse Board decision.”  Id. at *2.  Effectively, the Court noted the prohibition against free standing earlier effective date claims is not implicated in the AMA when the veteran has continuously prosecuted his claim.

The question was whether the issue of an earlier effective date for TDIU was a freestanding earlier effective date claim.  Importantly, “it is well established that the Board lacks the authority to review such a claim, which occurs when a claimant files a claim seeking an earlier effective date after the decision assigning that effective date has become final(and is not pursuing one of the exceptions to finality). Rudd v. Nicholson, 20 Vet.App. 296, 299 (2006). If the matter before the Court today involves a freestanding earlier effective date claim, the Board lacked authority to adjudicate the matter, and the proper remedy is for the Court to vacate the Board decision and dismiss the appeal seeking an earlier TDIU effective date.”  Id. at *3.

The Court began by discussing the differences between the legacy appeal system and the AMA, particularly as regards the concept of finality and options following a Board decision.

The Court noted that under the legacy system, a claimant could not seek to reopen a final effective date determination and “once an effective date decision became final in the legacy system, that decision was not subject to readjudication absent an assertion of clear and unmistakable error, an order from the Chairman granting reconsideration of a Board decision, or the Board's sua sponte correction of obvious error.”  Id. at *3-4.

The Court then pivoted to an explanation of the AMA and noted “the finality of an AMA benefits determination is forestalled when a claim is continuously pursued—that is, whenever the claimant elects one of the three review lanes within 1 year after an AOJ decision or files a supplemental claim within 1 year after a decision by the Board or the Court. Accordingly, an AMA decision does not become final until the 1-year period after a decision by the AOJ, the Board, or the Court has expired without an action in accordance with section 5110(a)(2) by the claimant.”  Id. at *5.

The Court then effectively overruled Rudd and Leonard in the context of AMA cases and explained: “Under the legacy system, Rudd and Leonard barred freestanding earlier effective date claims because they were impermissible attempts to overcome the finality of a prior decision. Leonard, 405 F.3d at 1337 (holding that allowing freestanding earlier effective date claims would "vitiate the rule of finality"); Rudd, 20 Vet.App. at 300 (same); see also Cook v. Principi, 318 F.3d 1334, 1339 (Fed. Cir. 2002) (holding that, because Congress explicitly provided certain exceptions to the rule of finality, it did not intend to allow other exceptions). But as discussed above, the revised version of section 5110 under the AMA includes the concept of the continuously pursued claim; expressly provides that claims are continuously pursued when a supplemental claim is filed within 1 year of a Board or Court decision; and directs that, when a claim is continuously pursued, the effective date of an award may be as early as the date the claim was initially filed. 38 U.S.C. § 5110(a)(1), (2)(D).  Thus, continuously pursued AMA claims are, as the term suggests, continuously pursued—that is, they have not yet become final. And it logically follows that claimants who continuously pursue an earlier effective date are not seeking to overcome or vitiate the finality of a prior decision because there is not yet a final decision; Rudd and Leonard are simply not for consideration.”  Id. at *7.

The Court then turned to the merits of the claim and found the Board provided inadequate reasons and bases for denying an earlier effective date for TDIU.

This decision clarifies the concept of a continuously prosecuted case in the AMA and how it is simply different than the older legacy system.

Decision by Chief Judge Bartley and joined in by Judges Pietsch and Toth. 

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Thursday, December 7, 2023

Redwood: Class Certification and A Writ Denied

Redwood v. McDonough, Case Number 23-3260, decided December 6, 2023 concerned VA reimbursement of veterans for the costs of emergency medical care at non-VA facilities when the veteran has other health insurance coverage.

This case builds on Wolfe I and Wolfe II.  Wolfe II found a clear right to relief for veterans with respects to coinsurance but not deductibles, but the veteran had other adequate legal remedies so a writ of mandamus was not required.

Wolfe II led to Kimmel, which invalidated the VA’s exclusion of coinsurance reimbursement  and ordered the VA to amend its regulations within 120 days.  The new regulation allowed veteran’s impacted by the clarification of the law to file claims until February 2024 for reimbursement. 

This case involved an attempt at creating a class of veteran’s impacted by Wolfe I.  Essentially, the Court refused the class certification because the new VA regulations provided an avenue for such reimbursement and nothing indicated the proposed class members had exhausted their remedies before the VA. 

However, the case was more nuanced.  The petitioners argued the Wolfe I decision required the VA to readjudicate the claims whereas the regulation requires them to reapply.  Because the VA had not finished their claims (and doesn’t intend to absent an application), the petitioners reasoned the only remedy from the Court was a writ.  However, the Court explained that Wolfe II reversed the right to a writ of mandamus. 

The conclusion is legally defensible, but reiterates the VA’s unwillingness to assist veterans and desire to create as many barriers to rights as possible.  The Court shifted that responsibility to the class attorneys by suggesting that they could simply notify the class members of the ability to reapply, this is an action that a truly veteran friendly VA would undertake itself.  The Court’s willingness to push this action onto legal representatives rather than require of the VA is troubling.

Decision by Judges Greenberg, Allen,and Falvey.

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