EAJA: Prevailing Party

Prevailing Party: EAJA

The case of Earl B. Thompson v. Eric K. Shinseki, Opinion Number 09-1026(E), decided November 19, 2010, concerns prevailing party status in an EAJA application and is thus probably most interesting to attorneys who practice before the court.

The underlying case concerned a JMR involving PTSD. In the JMR the VA did not specifically admit an error but stated the facts are analogous to a recently decided case and on remand the BVA should address the legal propositions outlined in the recent case.

Initially, the veteran and Secretary argued whether the new case created new law or merely restated established legal precedent. The Court rejected this question as dispositive because the BVA might not have erred unless the legal precedent was actually raised below. Still, the Court found the new case merely restated a legal precedent but then wiggled out of ordering the payment of fees because the JMR showed no explicit or implicit statement of error. Instead, the Court found the parties might have merely meant to settle the case before the Court by essentially agreeing to let the BVA reconsider with the new opinion to be specifically addressed.

The opinion seems dangerous—an attorney could lose out on his fee, but that danger is mitigated by the failure to make sure the order definitely acknowledged an error and the unusual and probably rare set of facts that allowed the Court to find no implicit acknowledgement of error. Still, an attorney seeking JMR based on a newly decided case needs to be careful the reference to the new case presents it as stating established legal precedent and then stand firm on demanding the VA admit it erred when it did not address that established precedent.

I also would highlight the concurring opinion’s analysis (Judge Lance) and proposed finding that just because the VA will not accept the magical “error” language should not stop the Court from finding error. Since prevailing party status is usually not in question, this would not make substantially more work for the Court and would seem to be the most fair way to determine if a veteran prevailed or not.

Active Duty for Training

Active Duty for Training

The case of Kevin T. Donnellan v. Eric K. Shinseki, Opinion Number 07-2041, decided November 17, 2010, concerns several issues regarding veteran status as well as compliance with a JMR.

The veteran served in the Army National Guard from 1969 through 2000. In 1996 he was diagnosed with colon cancer and underwent surgery. He underwent surgery again in March 1998 for polyps on his colon. Later, the doctors discovered a small bowel fistula which was treated conservatively. Next, he went on active duty for training from May 30, 1998 until June 5, 1998. During this time, he was hospitalized for fever, chills, and abdominal pain. An emergency laparotomy was performed and revealed a small bowel perforation.

The veteran was initially denied service connection by the RO but the BVA remanded and ordered the RO to obtain a medical opinion as to whether the post colectomy underwent a permanent increase in severity beyond its natural progression during training. Initially, a 1998 physician statement stated the bowel perforation was not a predictable outcome of his original surgery and was exceedingly rare. A 2005 VA statement found no relationship between the preexisting condition and service and the in-service development of fistulas resulted from complications of the pre-service colon cancer surgery. The VA also sought an independent medical examination. The statement stated the physician was somewhat confused by the question but indicated the active duty for training did not cause the fistula disease and he could have had a set back during training that would have reopened the fistula.

The Court first found the presumption of aggravation did not apply because it did not apply to claims based on a period of active duty for training. Still, an active duty for training claimant could show aggravation if he showed (1) an increase in disability as to a preexisting injury or disease and (2) such an increase in disability was beyond the natural progress of that injury or disease.

Next, the Court considered the burden of proof with regard to an active duty for training claimant and found the claimant should bear the burden of showing the preexisting disability worsened during service and that such worsening was beyond the natural progression of the disease.

Thirdly, the Court considered the standard of proof and found the benefit of the doubt rule still applies to active duty for training claimants, meaning if the claimant shows an approximate balancing of positive and negative evidence, he is entitled to the benefit of the doubt.

Finally, the Court considered the 2004 BVA remand of the case and found the medical opinion obtained by the VA was insufficient. The opinion did not specifically address the questions asked and instead noted confusion about the questions to be answered. Thus, the Court found a Stegall violation. See Stegall v. West, 11 Vet. App. 268 (1998) (when remand orders are not complied with, the Board itself errors in failing to ensure compliance).

This opinion provides a valuable source to assess active duty for training claims and reaffirms the benefit of the doubt rule.

Decision by Judge Greene, Moorman, and Schoelen.

The Court Looks for Prejudicial Error

The Court Looks for Prejudicial Error

The case of Alan J. Vogan v. Eric K. Shinseki, Opinion Number 09-0049, decided November 15, 2010, concerns an unusual set of facts where the Court found the BVA failed to consider a Diagnostic Code but took the extra step of finding no prejudicial error occurred.

This unusual case involved the veteran experiencing gynecomastia while in service which resulted in an in-service bilateral mastectomy and two subsequent surgeries. In 2003 he was service-connected for scars associated with the mastectomy. The veteran generally argued the VA approached his disability with “tunnel vision”, focusing on the scars while ignoring other Diagnostic Codes that could offer a higher rating.

First, the Court rejected any general assertion that was not supported by specific arguments or suggestions for rating under a Diagnostic Code as a conjectural analogy which was to be avoided. Second, the Court considered the assertion the rating should be rated under DC 7626 which covers breast surgery. The Court recognized the failure to address this Diagnostic Code was error but said “Ordinarily, the Court’s inquiry would end here, with directions for the Board to consider DC 7626 on remand…. However, as discussed below, in this case, the facts are so clear when examined in light of the specific and limited criteria of the DC for “breast, surgery of,” that the Court concludes that a remand is not required.” Id. at *4.

The Court reviewed and summarized case law related to prejudicial error and stated “The underlying imperative of all of these cases is that prejudice should be analyzed from the standpoint of the interest protected by the statutory or regulatory provision involved, to determine whether an error affected the essential fairness of the adjucidication.” Id. at *7. Importantly, while the cases reviewed dealt with prejudicial error in the notice-error context, the Court found that a consideration of prejudicial error was not restricted to the notice-error context and held “that in assessing the prejudicial effect of any error of law or fact, the Court is not confined to the findings of the Board but may examine the entire record before the Agency, which includes the record of proceedings.” Id. at *7.

Regarding DC 7626, the Court found the only possible rating would be under the “wide local excision” criteria and that “he would be entitled to a compensatory rating under DC 7626 only if the wide local excision produced ‘significant alteration of size or form’ of one breast (30%) or both breasts (50%).” But, the Court found “the surgery for gybecomastia was specifically undertaken to reduce abnormally enlarged male breasts, such a reduction does not constitute a compensable injury under the DC. Rather, the very purpose of the surgery, to which the appellant agreed, was to return the appellant’s breasts to the size and form that is normal for males.” Id. at *9. Therefore, the surgery would be classified as wide local excision without significant alteration of size or form and DC 7626 provides a noncompensable rating for such classification. Thus, even if DC 7626 was considered the rating would be 0% whereas the veteran was receiving a 10% rating for scars and thus no prejudice occurred.

The decision also contained a secondary argument about the form of JMRs. The veteran essentially argued an earlier JMR required “development and readjudication consistent with the contents” of this motion and that no additional development was conducted related to the gynecomastia. The Court noted the appellant’s lawyer bargained for specific development on remand and such development should be specific enough for the secretary to comply. Thus, if the veteran’s attorney intended more development, he should have ensured more specific directions were contained in the JMR.

All in all the decision is important for seeing the Court taking the further step of looking for prejudicial error, especially in a non-notice-error context, and finding no prejudice. It serves as a warning the Court will be looking more closely for prejudicial error.

Decision by Judges Hagel, Moorman and Davis.

Fithian: BVA motion to reconsider or CAVC Notice of Appeal?

BVA motion to reconsider or CAVC Notice of Appeal?

The case of Jonathan D. Fithian v. Eric K. Shinseki, Opinion Number 08-3077, decided November 9, 2010, concerns a motion to reconsider filed with the VARO rather than the BVA and is another extension of a line of cases arising from the Court’s 2009 decision in Irwin v. Shinseki and coming on the heals of Rickett v. Eric K. Shinseki, Opinion Number 09-2493, decided March 17, 2010 and Posey v. Shinseki, Opinion Number 08-0240, decided April 23, 2010.

Here, a veteran received a negative decision from the BVA and sent a two letters within 120 day. The substance of the letter was the veteran was writing to disagree with the decision regarding his left leg and ankle. He further said the pain in his lower left leg has bothered him since the service. The first was to the BVA but it was not received and the veteran had no proof of mailing. The second was to the VARO and was received but returned with a letter saying it was taking no action on the correspondence and if the veteran wanted to appeal how to do so.

The Court acknowledged that if a motion to reconsider is received by the BVA within 120 days, the decision is not final and the veteran need not file a NOA with the CAVC until after and within 120 days of receiving a decision on the motion to reconsider.

Regarding the first letter to the BVA, the Court found the presumption of regularity only applies to government action and that if the letter was received it would have regularly been associated with the file. Overcoming this motion would requires proof of mailing, such as an independent proof of a postmark, a dated receipt, or evidence of mailing apart from the party’s own self-serving testimony. Id. at *6.

Regarding the second letter to the VARO, the Court stated that it has consistently held the VA is one entity for pleading purposes. Therefore, if the VARO received the motion to reconsider within 120 days than it was properly filed and the statutory 120 days to file a NOA to the CAVC was not triggered until the BVA acted on the motion. Id. at *8. In order to reach this decision, the Court had to deal with several Federal Circuit decisions that seemed to imply otherwise but could reasonably found to be narrow holdings that did not change the Court’s rule that if a motion to reconsider is received by either the VARO or BVA within 120-days, the 120-days to file the NOA to the CAVC is not triggered until the BVA acts on the motion.

Regarding the actual language of the letter, the Court noted it did not use specifically ask for reconsideration but noted did include the veteran’s name and file number, and was addressed to the BVA rather than the Court. The date of the decision appealed (a statutory requirement) was considered apparent from the circumstances and regarding a final statutory requirement that the statement “set forth clearly and specifically the alleged error”, the Court said it is clear the veteran expressed disagreement with the BVA decision and alleged an error of fact regarding the continuation of pain in his lower leg. Id. at *16.

For these reasons, the Court said it was without jurisdiction to hear the appeal but the decision was a victory for the veteran because it forces the BVA to act on the motion to reconsider.

Decision by Judges Greene, Lance and Davis.

Tatum: Convalescent Evaluations

Tatum: Convalescent Evaluations

The decision in Willie E. Tatum v. Eric K. Shinkseki, Opinion Number 08-3782, decided November 3, 2010, involved the scheduler rating for convalescence after surgery for prostate cancer, DC 7528.

The case involved the proper rating for prostate cancer under Diagnostic Code 7528. The DC requires a 100% rating that continues for a minimum of 6 months from the time of treatment (i.e., surgical, x-ray, antineoplastic chemotherapy or other therapeutic procedure). The note to the code states any change in evaluation shall be subject to notice provisions.

Service connection was granted after surgery and staged to give a 100% rating for 6 months and a 0% rating by the VARO which was increased to a 10% rating by the BVA. The veteran argued he should have been given notice under section 3.105(e)before the reduction to 0% or 10% and as a result he was entitled to a 100% rating until the time of the appeal. The Court rejected this argument and said the plain meaning of the regulations was that when a claimant is currently in receipt of a convalescent evaluation under DC 7528, a six month mandatory medical evaluation and 3.105(e) notice must be provided before reduction of the convalescent evaluation. But, that when the award is made after the convalescent period, it is appropriate for the award to be staged and then additional 3.105(e) notice is not required.

Additionally, the Secretary conceded that BVA did not adequately address (1) the actual date of the cessation of the veteran’s treatment and (2) whether the veteran suffered a local reoccurrence or metastasis. Importantly, the 100% rating continues for at least 6 months after the date of cessation of treatment.

The decision is a good example of staging and as well as the VA’s failure to fully address all the evidence in a case.

Decided by C.J. Kasold, and J. Davis and Schoelen.

VA's Duty to Assist in Clarifying a Private Medical Opinion

Savage: The VA’s Duty to Request Clarification

The decision in James E. Savage v. Eric K. Shinkseki, Opinion Number 09-4406, decided November 3, 2010, involved whether the VA had a duty to seek clarification from a private physician regarding medical notes.

The case involved a dispute over the appropriate disability rating for hearing loss. Private physician records suggested a higher rating but the VA determined they were not adequate for VA rating purposes because it was unclear whether the speech discrimination tests were conducted using the Maryland CNC test. Importantly, the rating schedule specifically calls for use of the Maryland CNC test.

The Court noted the general duty to assist and 38 C.F.R. § 19.9 which says “If further evidence, clarification of the evidence, correction of a procedural defect, or any other action is essential for a proper appellate decision, a [Board member] shall remand the case to the agency or original jurisdiction, specifying the action to be undertaken.” Id. at *6. 38 C.F.R. § 4.2 specifically calls for requesting an explanation of an inadequate examination and the Court found this also extended to private physician reports. Thus, the Court determined when a private examination report reasonably appears to contain information necessary to properly decide a claim but it is “unclear” or “not suitable for rating purposes,” and the information reasonably contained in the report otherwise cannot be obtained, VA has a duty to ask the private examiner to clarify the report, or the Board must explain why such clarification was not needed. Id. at *14.

While potentially a broad ruling, the Court was careful to limit it saying they do not intend the VA to “inquire of private medical experts regarding the opinions expressed in their examination reports or the general bases thereof. Indeed, we do not expect that clarification of a private examination report will be necessary in most instances.” Id. at *16. “Rather, our holding is limited to those instances in which the missing information is relevant, factual, and objective—that is, not a matter of opinion—and where the missing evidence bears greatly on the probative value of the private examination report.” Id. at *16. The Court said, in this case “the questions of which speech recognition test was used is a factual, objective one to which there is a yes or no answer; the question of whether the Maryland CNC Test was used does not in any way rely on the opinion of the examiner.” Id. at *16.

Thus, this case will make it harder for the VA to ignore a medical opinion for a seemingly technical point while also opening the door to the VA requesting additional information from a private physician. If the VA interprets the case narrowly, the implications are probably also narrow.

Decided by C.J. Kasold, and J. Hagel and Davis.

Shade: New and Material Evidence Sufficient to Reopen a Claim

Shade: New and Material Evidence

The decision in William Shade v. Eric K. Shinkseki, Opinion Number 08-3548, decided November 2, 2010, involved whether new and material evidence existed sufficient to reopen a claim.

The decision is basically a study on the application of the new and material evidence standard. This standard is important because once a claim has been denied, it can only be reopened if the veteran submits new and material evidence. New and material evidence is evidence not previously submitted to the VA which bears directly and substantially upon the specific matter under consideration, which is neither cumulative nor redundant, and which by itself or in connection with evidence previously assembled is so significant that it must be considered in order to fairly decide the merits of the claim.

The decision is also complicated somewhat by a discussion of the history of 38 C.F.R. § 3.156(a) (which defines new and material evidence) in reference to the VCAA Act of 2000. Without dwelling on this point, the facts of the case were that the veteran was seeking to reopen a denied claim for service connection for a skin disorder. The claim had previously been denied on the basis that the veteran did not show a current diagnosis and lacked a medical nexus opinion linking the present disability to service. The veteran submitted an application to reopen his claim and submitted a current medical diagnosis from his private physician as well as his own sworn statement that he had had the skin disorder for years. The application to reopen was denied on the basis that he had not provided a medical nexus opinion.

The Court categorically rejected the VA’s finding that a medical nexus opinion was required to reopen and stated “In a case where medical nexus evidence is missing, if § 3.156(a) were read to require a claimant to submit medical nexus evidence to fulfill the requirement to submit new and material evidence, then § 3.159(c)(4)(iii) [which mandates a duty to assist which includes a duty to provide a medical examination] would be rendered meaningless.” Id. at *14. The Court noted the new and material evidence standard is a low threshold and stated that the rule requires the VA to consider whether the new evidence “raises a possibility of substantiating the claim.

The concurring opinion by Judge Lance agrees but provides practical guidance by stating that if new evidence is neither cumulative or redundant, the VA should ask “If I assume that this new evidence is credible, would all the evidence in the file considered together be sufficient to at least trigger some further assistance?” Id. at *19.

The Court also briefly discussed the VA’s rejection of evidence as cumulative. The veteran had made statements in a hearing and the VA had rejected the statements as cumulative of evidence previously in the record. The Court noted the veteran had never previously provided sworn testimony and that the testimony (he had had symptoms for many years) was relative to the issue of nexus. The Court noted the BVA’s role as fact finder but reminded it that the credibility of new evidence is to be presumed in making a reopening determination.

Decided by J. Hagel, Moorman, and Lance.

Vazquez-Flores: VCAA Refined Again

Vazquez-Flores: VCAA Refined Again

The decision in Angel Vazquez-Flores v. Eric K. Shinkseki, Opinion Number 05-0355, decided October 22, 2010, involved the impact and reach of the U.S. Supreme Court’s decision in Shinseki v. Sanders, 129 S.Ct. 1696 (2009).

As a review the Federal Circuit Court of Appeals had held that all types of VCAA (Veteran Claims Assistance Act of 2000) notice errors were presumed to be prejudicial and that the Secretary had the burden of proving the notice error was not prejudicial. This was a change from the Court of Appeals for Veteran Claims earlier rulings that the VCAA can be divided into four elements: (1) notice of what information or evidence is necessary to substantiate the claim; (2) notice of what subset of the necessary information or evidence, if any, that the claimant is to provide; (3) notice of what subset of the necessary information or evidence, if any, that the VA will attempt to obtain; and (4) a general notification that the claimant may submit any other evidence that he has that may be relevant to the claim. In Mayfield v. Nicholson (2005), the Court of Appeals for Veteran Claims had held that although the first type of notice error was presumed prejudicial, the claimant was responsible for proving prejudice from the other types of notice errors.

On appeal, the Federal Circuit reversed. Reasoning that the VCAA was intended to be particularly pro-claimant and therefore obligated the VA to assist veterans claiming benefits, it held that all VCAA-notice errors should be presumed prejudicial, requiring reversal unless the VA can show that the error did not affect the essential fairness of the adjudication. The VA can show this by demonstrating: (1) that any defect was cured by actual knowledge; (2) that a reasonable person could be expected to understand from the notice what was needed; or (3) that a benefit could not have been awarded as a matter of law. The Federal Circuit disagreed with the Court of Appeals for Veterans Claims’ precedent deeming certain elements of the required notice more substantial than others. The court reasoned that allowing the VA to remedy the errors with post-decisional notices cannot satisfy the specific notification duties imposed by Congress on the VA, and presuming no prejudice does just that. Finding that the interpretation of the Court of Appeals for Veteran Claims conflicted with the uniquely pro-claimant system constructed by Congress in the VCAA, the Federal Circuit held all types of notice errors would be presumed prejudicial.

The Supreme Court concluded that the veterans will bear the burden of demonstrating that the VA’s errors made a substantive difference on the outcome of their claims cases. Justice Souter filed a dissenting opinion that was joined by Justices Stevens and Ginsburg. The dissent argued that the framework established by the Federal Circuit - which presumes that a notice error was prejudicial unless the claimant has actual knowledge that cures the defect or is ineligible for benefits as a matter of law - provides the VA with an incentive to perform its obligation to claimants.

Regarding this case, the Court found that despite the changes in the notice law, section 5103(a) still requires the VA for increased ratings claims to notify the veteran that they should provide or ask the VA to obtain medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the veteran’s employment. A simple notice advising a veteran to submit evidence that his condition has worsened is not sufficient.

After finding a notice error, the Court considered whether it was prejudicial to the veteran. The Court attempted to clarify who has the burden of showing prejudice or non-prejudice. The court said the “burden shifting only occurs when a notice is wholly defective as to a key element needed to substantiate a claim for benefits”. Id. at *14. The Court said that in such a situation, “the absence of evidence on the key element will result in denial of the claim [and] the natural effect is that the claimant is deprived of a meaningful opportunity to participate in the processing of his claim.” Id. at *15. In these circumstances, the VA has the burden of showing the veteran was not prejudiced.

However, in a claim for increased benefits, the claim can be shown by evidence of a worsened disability can depending on the Diagnostic Code can be shown by more objective evidence such as specific measurements or a test result, or more general evidence such as impact upon employment or daily life. The Court concluded that notice to provide evidence how a disability has worsened, without notice to provide evidence of its impact on employment is unlike the notice required in Mayfield I and thus the veteran must show the were prejudiced.

As applied, the veteran here was provided notice to provide evidence his disability had worsened. The Court said this was not he total absence of notice as to a key element. Furthermore, the scheduler rating for his condition does not explicitly take into account its impact on his employment. Therefore, “the inadequacy of this notice does not have a natural, adverse effect on the ability of [the veteran] to meaningfully participate in the processing of his claim and the essential fairness of the adjudication. Thus, the burden of demonstrating prejudice falls on [the veteran].” Id. at *17. The Court found no prejudice.

The Court also considered the possibility of differing notices from the VA. It noted that a second corrective notice might correct an initial notice but also found “The potential confusion generated by differing notices might be clarified or negated by actions taken in the subsequent processing of the claim, or otherwise ultimately shown by the record not to have confused the claimant. In sum, simply because subsequent notice, good on its face, is provided to the claimant does not mean that the notice was adequate. Whether notice is confusing is a fact-specific determination based on the totality of the circumstances.” Id. at *12. This line seems to at once reject the VA’s frequent contention that a subsequent notice fixes everything while also potentially situating the burden on the veteran to show confusion.

The result is that winning an appeal on a VCAA error on a claim for an increased rating is going to become more difficult. Additionally, veterans may not get the tailored notice they have gotten in the past. Thus, it will be imperative that they know they should provide evidence of the impact of a worsened condition on employability and daily life.

Decided by C.J. Kasold, and Judges Greene, and Hagel.

Simmons: VCAA Refined

Simmons: VCAA Refined

The decision in Patricia D. Simmons v. Eric K. Shinkseki, Opinion Number 03-1731, decided September 28, 2010, involved the impact and reach of the U.S. Supreme Court’s decision in Shinseki v. Sanders, 129 S.Ct. 1696 (2009), which also included this case.

The Federal Circuit Court of Appeals had held that all types of VCAA (Veteran Claims Assistance Act of 2000) notice errors were presumed to be prejudicial and that the Secretary had the burden of proving the notice error was not prejudicial. This was a change from the Court of Appeals for Veteran Claims earlier rulings that the VCAA can be divided into four elements: (1) notice of what information or evidence is necessary to substantiate the claim; (2) notice of what subset of the necessary information or evidence, if any, that the claimant is to provide; (3) notice of what subset of the necessary information or evidence, if any, that the VA will attempt to obtain; and (4) a general notification that the claimant may submit any other evidence that he has that may be relevant to the claim. In Mayfield v. Nicholson (2005), the Court of Appeals for Veteran Claims had held that although the first type of notice error was presumed prejudicial, the claimant was responsible for proving prejudice from the other types of notice errors.

On appeal, the Federal Circuit reversed. Reasoning that the VCAA was intended to be particularly pro-claimant and therefore obligated the VA to assist veterans claiming benefits, it held that all VCAA-notice errors should be presumed prejudicial, requiring reversal unless the VA can show that the error did not affect the essential fairness of the adjudication. The VA can show this by demonstrating: (1) that any defect was cured by actual knowledge; (2) that a reasonable person could be expected to understand from the notice what was needed; or (3) that a benefit could not have been awarded as a matter of law. The Federal Circuit disagreed with the Court of Appeals for Veterans Claims’ precedent deeming certain elements of the required notice more substantial than others. The court reasoned that allowing the VA to remedy the errors with post-decisional notices cannot satisfy the specific notification duties imposed by Congress on the VA, and presuming no prejudice does just that. Finding that the interpretation of the Court of Appeals for Veteran Claims conflicted with the uniquely pro-claimant system constructed by Congress in the VCAA, the Federal Circuit held all types of notice errors would be presumed prejudicial.

The Supreme Court concluded that the veterans will bear the burden of demonstrating that the VA’s errors made a substantive difference on the outcome of their claims cases. Justice Souter filed a dissenting opinion that was joined by Justices Stevens and Ginsburg. The dissent argued that the framework established by the Federal Circuit - which presumes that a notice error was prejudicial unless the claimant has actual knowledge that cures the defect or is ineligible for benefits as a matter of law - provides the VA with an incentive to perform its obligation to claimants.

Regarding Simmons, the Supreme Court found contradictory evidence as to the prejudicial effect of the Type 1 (notice of what information or evidence is necessary to substantiate the claim) VCAA notice error and remanded the case and requested the Court of Appeals for Veteran Claims to decide whether reconsideration was necessary.

The Court then essentially sidestepped the issue by finding a right ear disability issue was not before the Court because while the VA had appealed a portion of the decision to the Federal Circuit, it had not actually appealed the remand for the claim of service connection for the right ear disability. A secondary issue on left ear disability was also remanded as so intertwined with the right ear disability issue as being properly handled together.

The Court concluded by saying that it need not decide whether Mayfield remains good law and that in light of years of appeals the veteran “should be well aware … what evidence is required to substantiate her claim; no additional VCAA notice is required.”

Decided by C.J. Kasold, and Judges Moorman, and Davis.

Hornick: Do Section 1159 Protections Apply to Section 1151 Benefits?

Hornick: Does Section 1159 Apply to Section 1151 Benefits?

The decision in David L. Hornick v. Eric K. Shinkseki, Opinion Number 08-3221, decided August 20, 2010, involved Section 1151 compensation benefits and the application of Section 1159 when the VA seeks to sever the award.

Section 1151 offer benefits to veterans who suffer an injury (or aggravation of injury) as the result of hospitalization, and medical or surgical treatment at the VA. In 1991, the veteran in this case was sitting at the VA Medical Center when the bench he was sitting on broke which caused a low-back injury. In 1997, the veteran was awarded a 100% award for the low-back injury effective September 1994. In 2005, the RO proposed to sever the award based on clear and unmistakable error (CUE). The VA found the veteran was sitting outside the VA dental clinic when he was injured and that this did not fall within the requirement of an “examination or hospital care or treatment”.

The Board considered the application of section 1159 which states that “service connection for any disability … which has been in force for ten or more years shall not be severed … except upon a showing that the original grant of service connection was based on fraud.” But, the Board relied on General Counsel Precedent Opinion 13-96, which stated section 1159 protections did not extend to benefits under section 1151.

The Court considered the question of whether section 1159 protections extended to section 1151 benefits and determined based on a close reading of the law and regulations that “[n]othing in these statements indicates that the text of the statute as originally introduced, which suggests that the purpose of the statute was to protect the payment of compensation that veterans had come to rely upon, was revised to exclude beneficiaries of section 1151 compensation from the protection of section 1159.” Id. at *9.

This case is important for anyone who recieved 1151 benefits for 10 years and was then severed without a finding of fraud. It is highly likely that some veterans have a claim based on wrongfully severed of 1151 benefits.

Decided by Judges Greene, Hagel, and Moorman.

The Limitations of Active Duty for Training

Smith: Is Training Active Duty

The decision in Valerie Y. Smith v. Eric K. Shinkseki, Opinion Number 08-1667, decided August 17, 2010, involved the presumptions of sound condition, service connection and aggravation.

The veteran was seeking service connection for meningioma and secondary service connection for hearing loss and gum infections. The veteran had joined the Army National Guard in December 1981 and while receiving her initial training from February to July 1982 was on active duty. Her active duty service extended for 180 days which qualified the veteran as a veteran for the purposes of VA benefits. She continued in the National Guard until 2003 and had active duty training in June and July 1999, August and September 2000 and June 2002.

In September 1999, the veteran complained to a private physician of headaches which turned out to be meningioma (a tumor on the membranes surrounding the spinal cord and brain). A C&P examination noted a history of headaches stretching back to 1987 and stated a belief the headaches were an early symptom of the tumor. The Regional Office and Board denied a service connection saying there was no competent medical evidence supporting the contention that the meningioma was related to her active service. The Board noted no medical opinion stated the symptoms began during a period of active duty for training.

The Court identified the essential question as whether a veteran who is a veteran by virtue of a period of active duty service but whose claim is based on a later period of active duty for training, is entitled to the presumptions of sound condition, service connection and aggravation generally afforded to veterans whose claims are based on periods of active duty.

In order to reach a decision, the Court parsed the language of 38 U.S.C. section 1111, which states in part,

every veteran shall be taken to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service.

The Court notes the statute provides that the presumptions of soundness applies when a veteran has been “examined, accepted, and enrolled for service”. “Plainly, the statute requires that there be an examination prior to entry into the period of service on which the claim is based—here, the period of active duty for training.” Id. at *6. The Court reasoned, “In the absence of such an examination, there is no basis from which to determine whether the claimant was in sound condition upon entry into that period of service on which the claim is based.” Id. at *6. The Court no record of such an examination or assertion by the veteran that such an examination took place and that without such, the presumption of soundness does not apply.

The Court then specifically considered the presumption of service connection, which states a veteran is entitled to a presumption of service connection for a chronic disease which manifests to a degree of 10 percent or more within one year from the date of separation from service. The Court found “a claimant whose claim is based on a period of active duty for training can never be entitled to the presumption of service connection. By definition, the presumption of service connection applies where there is no evidence that a condition begin in or was aggravated during the relevant period of service. By contrast, for a claimant whose claim is based on a period of active duty for training to establish entitlement to benefits, there must be some evidence that his or her condition was ‘incurred or aggravated’ during the relevant period of service. 38 U.S.C. § 101(24)(B). These circumstances are necessarily mutually exclusive—it is not possible for there to be both no evidence and some evidence of in-service incurrence of a condition.” Id. at *8.

The Court adopted a similar argument related to the presumption of aggravation and determined that “active military, naval, or air service” does not include active duty for the purposes of training when you are in the National Guard. Id. at *9-*10. The Court relied on 38 U.S.C. § 101(24) which distinguishes between active duty and active duty for training “during which the individual concerned was disabled or died from a disease or injury or aggravated in the line of duty.” Id. at *10. Thus, active duty for training requires evidence that a preexisting condition be aggravated in the line of duty (which the Court further elucidated as that caused by the period of active duty for training).

Regarding the presumption of soundness, I understand and appreciate the Court’s argument that the statute requires something more than just active duty but an examination, acceptance and enrollment into active duty but wonder if a fuller factual background could reveal some arguments that status in the National Guard combined with entering active duty for training triggers the examination, acceptance and enrollment requirements. As to the presumption of service-connection, the Court seems to ignore the practical fact that evidence can exist to support a claim but the presumption still apply. As to the presumption of aggravation I think they over extend their reasoning.

In short, this decision represents a potentially serious erosion of protection for those service in active duty for the purposes of training. I understand the Court’s desire to place limits on the reach of benefits, especially based on the facts of this case. However, I am also concerned that the facts of this case and the law it created could have negative repercussions for many who are absolutely deserving of service connection.

Decided by Judges Hagel, Lance, and Davis.

Rejecting Lay Evidence in the Face of Silence

Bardwell: Rejecting Lay Evidence

The decision in James A. Bardwell v. Eric K. Shinkseki, Opinion Number 08-2257, decided August 17, 2010, involved the rejection of lay evidence of an in-service occurrence because of a lack of documentation.

The veteran was seeking service connection for bilateral eye disability though in layman’s terms he was functionally blind. He had served in the Navy from 1944 until 1945 and testified that while in the service his eyes were exposed to a chemical gas as a part of a training exercise and that they started to burn. He further explained that his eye sight began to deteriorate from that time.

The veteran submitted a statement from a physician that linked the blindness to a nerve dysfunction consistent with toxic retinopathy and opined the blindness appears “associated with a gaseous chemical exposure.” The VA did not conduct a medical examination on its own but did seek records regarding gas exposure and found none. The Board determined the assertions of gas exposure lacked credibility given the lack of documentation saying they found it incredible that the veteran could have undergone undocumented chemical or gas testing.

The veteran appealed saying the VA failed to fulfill its duty to provide a medical examination. The Court rejected this contention and focused on the lack of proof regarding an actual in-service incident. The Court found “the in-service event, injury, or disease prong does not qualify the quality of evidence necessary to meet its threshold: the evidence must establish that there was a disease, injury, or event in service. The determination as to whether there was an event, injury, or disease in service is a finding of fact for the Board that the Court reviews for clear error.” After situating the appeal as turning on a finding of fact, the Court stated the VA found the veteran’s “assertion that he was exposed to a gas or chemical in service lacked credibility. The Board found that there was no record of such an event in Mr. Bardwell’s records and that it was unlikely that he would have been exposed to chemicals or gases without such an event being noted in his records.” Id. at *4.

The Court considered the argument that the VA was impermissibly rejected lay evidence contrary to Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006), which held that the Board could not reject a veteran’s lay evidence about an in-service medical condition solely because that incident was not reported in the service medical records. The Court found the veteran essentially wanted a ruling that a veteran’s lay evidence than any event occurred must be accepted unless affirmative documentary evidence shows otherwise but stated that in fact a non-combat veteran’s lay statements must be weighed against other evidence, including the absence of military records that support the lay statements. Id. at *5

The tough part about this case is that the veteran’s testimony of chemical gas testing is not affirmatively contradicted by any evidence. It seems the Court and the VA are rejecting lay evidence because the incident is not found in the service records whereas in Buchanan the Federal Circuit court specifically prohibited rejection of lay evidence because the incident was not found in the service medical records. Working around Buchanan without a better reason for rejecting the lay evidence is a tough needle to thread for the Court and frankly I would not be surprised to hear more about this case on appeal.

Decided by Judges Hagel, Lance, and Davis.

Cullen: DeLuca Applied

Cullen: DeLuca Applied

The decision in Gerald Cullen v. Eric K. Shinkseki, Opinion Number 08-1193, decided August 13, 2010, is an excellent illustration of how the Board of Veteran Appeals can error in applying the DeLuca factors.

DeLuca v. Brown, 8 Vet. App. 202 requires the VA in musculoskeletal disabilities to take into account limitation of motion resulting from pain or functional loss. In this case, the veteran was previously service connected for residuals of a shrapnel wound to the shoulder and degenerative joint disease of the thoracic spine and was seeking a ratings increase. In the C&P examination, the physician noted for both the shoulder (effected by shrapnel) and the spine, limitations based on pain, fatigue, weakness, and lack of endurance following repetitive use and during flare-ups. However, the Board determined an increase was not called for because while it considered DeLuca, the effects of the pain are contemplated in the assigned ratings and any “additional limitation as reported by the VA examiner the veteran’s disability picture more clearly approximated the criteria required for the 20 percent rating (forward flexion limited to between 30 and 60 degrees).”

The Court found the Board’s discussion of the effects of pain, weakness, or fatigue to be conclusory and without a supporting rationale. Id. at *14. Regarding the spinal rating, the Court found the physicians statement was problematic because the statement is not helpful to the Board in reaching a conclusion because it lacks any specifics regarding the effects of the additional limitation of range of motion and that the Board’s failure to explain its conclusion any more thoroughly than the VA examiner was error. Id. at *15. Regarding the shrapnel wound to the shoulder, the Court found the Board’s statement that the additional functional limitation of more nearly approximates a moderately severe disability is conclusory and unsupported by a further explanation and the Board did not address the fact the VA examination found the veteran’s flexion was limited to 60 degrees which would support his assertion that his disability limits his range of motion to midway between his side and his shoulder and therefore entitles him to a 30 percent rating. Id. at *16.

Thus, we can see that usually a DeLuca challenge is most powerful when couched as a failure to give adequate reasons or bases for denying the increased rating (i.e., it did not properly address the DeLuca factors.

Additionally, the veteran sought to make a technical argument that he was entitled to more than one rating for his back because the schedule found in 38 C.F.R. § 4.71a was written in the disjunctive rather than the conjunctive. Essentially he was arguing that he was entitled to both a 20% and a 40% disability rating for his thoracic spine condition because he fulfilled the conditions for both. The Court rejected what it admitted as a creative argument and held that within a particular diagnostic code, a claimant is only entitled to one disability rating for a single disability unless the regulation expressly provides otherwise. Id. at *13.

Decided by Judges Hagel, Moorman, and Davis.

Chandler: Hartness Revisited

Chandler: Hartness Reviewed

or Should You Be Receiving a Higher Non-Service Connected Disability Pension

The decision in Howard E. Chandler v. Eric K. Shinkseki, Opinion Number 08-0932, decided August 12, 2010, revisited the previous decision of Hartness v. Nicholson, 20 Vet. App. 216 (2006). The Secretary sought to alternatively overturn or limit the effects of Hartness. The Court in an en banc decision reversed and remanded the decision thus upholding Hartness and finding for the veteran.

In Hartness, the Court determined that under Section 1521(e) a veteran who is 65 years of age or older and conforms to the service requirements of Section 1521 (which is that a veteran have served during war time for at least 90 days), any requirement that the veteran be permanently and totally disabled or have a disability rated as permanent and total is excluded, or put another way, the veteran is, in effect, permanently and totally disabled as a result of his age.

However, in VA Fast Letter 06-28, which came out as a result of Hartness, the VA ordered that for a claim for a pension received from a veteran age 65 or older who is already receiving a non-service connected disability pension under Section 1521, the adjudicator should not assume permanent and total disability as a result of age. The result is that the Hartness holding (that wartime veterans age 65 or older are not required to have a disability rated as permanent and total in order to qualify for a pension under section 1521(e)) does not apply to veterans who were granted non-service connected pension under section 1521(a) prior to their 65 birthday and therefore are already receiving a non-service connected disability pension. Those veterans are required by the VA to have a single disability rated at 100% to qualify for a pension under 1521(e) even when they are 65 or older. The VA essentially argued the ruling from Hartness was wrong and pension benefits under section 1521(e) are intended only for veterans who are significantly disabled and not for veterans who do not have a single disability rating at 100%.

The Court upheld Hartness and stated the VA’s interpretation would be absurd because the disability of the veteran is not the deciding issue but instead it is the age of the veteran and thus “The result prevents one class of totally disabled veterans from being treated less generously than a similarly situated class of veterans who are not totally disabled and is consistent with the rule that ambiguity in title 38 should be resolved in favor of veterans.” Id. at *11.

Importantly, two judges (Chief Judge Kasold and Judge Greene) wrote a dissenting opinion that essentially finds the Hartness decision was incorrect and would have overruled that decision. The dissent makes it more likely the VA will appeal to the Federal Circuit, which means this might not be the last word on Hartness.

The practical impact is that any veteran 65 or older who was denied a higher pension on the basis of Fast Letter 06-28 should talk with an attorney about their case.

MacKlem: EAP Equals CUE

MacKlem: EAP Equals CUE

The decision in Leroy B. MacKlem v. Eric K. Shinkseki, Opinion Number 08-1409, decided August 10, 2010, involves a decision that was made through a now disallowed VA procedure, extraordinary award procedure (EAP). The Court initially denied the appeal by a single- judge memorandum decision but the decision was withdrawn and the Court found error in this panel decision.

The Veteran was a WWII veteran of the Occupation of Sicily. Prior to service he had been in a car wreck and injured his pelvis. He subsequently was discharged from the military with for a hip injury. He was initially granted a compensation rating but it was severed because the VA found the hip injury was a result of the car wreck and any aggravation was the natural progression of the injury.

The veteran claimed the VA had committed CUE in its decision. While the Court was downright antagonistic to the existence of actual CUE on the merits, the Court did find the VA erred in how it handled his case. After his allegations of CUE, the VA Regional Office proposed a decision that found CUE. However, this decision was changed through the extraordinary award procedure (EAP). EAP required certain awards by the Regional Office to be sent to the compensation and pension director for final determination. The directives creating EAP ordered the decisions granting extraordinary award shall not be disclosed to veterans or representatives and not that they were not to be told the original award had been reduced. EAP was invalidated by the Federal Circuit in Purple Heart v. Secretary of Veteran Affairs, 580 F.3d 1293 (1297 (Fed. Cir. 2009) in part because the procedure prevented a veteran from knowing what persuaded an unidentified decision-maker to reduce the award that was made by the persons before whom the hearing was held.

Here, because the Court found the VA applied an improper procedure the proper remedy was found to be to place the veteran in the position he was in before the EAP, in receipt of the favorable Regional Office decision.

Interestingly, the Court then went on to find the allegation of CUE was actually in error but that notwithstanding that fact, the veteran was entitled to the earlier favorable decision before the EAP process had intervened. The Court commented on the fact that many claims adjudicators are underqualified (26% do not have college degrees, 40% have college degrees, and only 34% have more than a college degree) and commented that the VA should be able to have some system to allow more experienced supervision to avoid mistakes. Id. at *12. Essentially, the Court took the Federal Circuit to school for its decision in Purple Heart and the VA to school for failing to correct the problem by finding a way to create an allowed system of reviews.

The short-term impact of this decision should be to open the way to a clear Court victory for any veteran that was denied under the EAP process. The long-term impact is that the opinion focuses on a real shortcoming in the claims process (inexperienced, undereducated, and undersupervised claims adjudicators). Unfortunately, I can imagine the result will be more pressure to deny all but the most simple claims at the Regional Office level while pushing more cases to the DRO and BVA level, which only exasperate those caseloads.

Decision by Judges Lance and Hagel with a concurrence by Judge Schoelen.

Breedlove: What Happens to a Case When a Veteran Dies?

Breedlove: What Happens to a Case when a Veteran Dies?

The decision in Charles L. Breedlove v. Eric K. Shinkseki, Opinion Number 08-3059, decided August 10, 2010, answers the question of what happens when a veteran dies during a case before the Court.

The obvious answer to the above question might be to allow the veteran’s surviving spouse or children to take the veteran’s place. But, that has not been the Court’s practice. Instead, the Court would only allow substitution of party after the case was submitted to the Court, which meant where the veteran’s death occurred after briefing of the case was complete.

However, in light of a new law passed by Congress, 38 U.S.C. Section 5121A the, Court reconsidered its practice and liberalized the ability to substitute a party. Section 5121A as read by the Court specifically applies to an appeal before the VA (as opposed to the Court) and allows substitution when a claimant dies while his appeal is pending before the VA. The Court held that while Section 5121A did not apply directly to the Court, it altered the underpinnings of the Court’s jurisprudence “because a claim for VA benefits no longer necessarily dies with the veteran. The legislation expressly recognizes that an accrued-benefits claimant, in appropriate cases, can continue the veteran’s claim.” Id. at *12. Thus, the Court concluded “no rationale now exists for foreclosing the opportunity for substitution on appeal at this Court based on the time of the death of the veteran.” Id. at *13. “Therefore, [the Court] now hold[s] that, based on enactment of section 5121A, a veteran’s chapter 11 disability benefits claim survives the death of the veteran, not for the purpose of providing VA benefits to a veteran, but for the purpose of furthering the claim of an eligible accrued-benefits claimant. Since Congress has now created an avenue for an accrued-benefits claimant to continue to pursue a veteran’s claim within VA after the veteran’s death, the Court henceforth will consider substitution, if requested, in all cases pending before the Court regardless of the stage of briefing at the time of veteran’s death.” Id. at *13.

The Court then clarified that an accrued-benefits claimant has two options: a) request substitution and carry on the appeal of a deceased veteran through the judicial process, or b) not request substitution and allow the Board decision on a deceased veteran’s claim to be vacated and pursue the accrued-benefits claim anew.

Practically speaking, the decision to substitute as a new party or allow the decision to be vacated and start anew is difficult. Starting anew will likely mean long wait times to go through the administrative levels whereas winning an appeal would start you out as an appealed case which means you should be afforded expeditious treatment. So, assuming you think you can win a decision at the Court level through a Joint Motion for Remand you might be better off taking that route. Additionally, of course, the issue of attorney’s fees is important. A prevailing party before the Court is awarded attorneys fees under the Equal Access to Justice Act. Assuming a claimant prevails before the Court and is awarded attorney’s fees under most fee agreements that will reduce any future attorney fee’s awarded from the back pay, meaning substituting as a party and continuing the case before the Court might also be the best financial option for the claimant.

Decision by Judges Moorman and Lance with a concurrence by Chief Judge Kasold.

Hamer: TDIU, Staging and Stabilization

Hamer: TDIU, Staging, and Stabilization[1]

The decision in Steven W. Hamer v. Eric K. Shinkseki, Opinion Number 07-3181, decided July 27, 2010, involved an appeal from a decision that found TDIU but staged the award.

The Veteran had been granted TDIU from 1978 until TDIU was terminated 1985 because of employment. In fact, the veteran was employed as a National Service Officer for a veteran’s service organization from 1989 until 2000. In 2000, Hamer filed a motion to revise the 1985 termination based on clear and unmistakable error and filed for a TDIU. The VA granted TDIU from April 2000 until the present while finding clear and unmistakable error in the prior decision and awarding TDIU from January 1990 through November 1990 while denying TDIU for the time from December 1990 through April 2000. The Board affirmed the decision and the veteran appealed arguing a partial restatement of a stabilized rating cannot be discontinued during a portion of the retroactive award period.

The Court affirmed the Board and found that because the VA decision finding clear and unmistakable error in the termination was accepted as if it had been made at the time of the original decision, than staging was proper and stabilization issues did not come into play.

The Court stated staging is appropriate for initial decisions and then found the 2007 Board decision was appealed from was essentially an initial decision because it substituted for the decision which was found to be clearly and unmistakably erroneous.

Regarding stabilization and another argument concerning protective rights for TDIU found at Section 5112 and 3.105, the Court found the veteran “entered into this appeal without an award or total disability based on individual employability. He was assigned staged disability ratings simultaneously and will leave the appeals process with more disability compensation than when he entered. In other words, at the time his benefits were restored in 2007, he had been living without VA benefits for over 15 years, and thus he did not need to ‘adjust to the diminished expectation,’ i.e., prior to 2007, he was not reliant upon benefits to which he was not in receipt of. Accordingly, the protective rights that prohibit VA from reducing a total disability are not applicable here.” Id. at *5-*6. The Court then found the procedural protections of 38 C.F.R. Section 3.344 (regarding stabilization) are inapplicable to retroactively assigned staged disability ratings.

This case is important because it allows for staging in cases that are being revised or rated because of CUE and found stabilization did not apply to retroactively assigned TDIU cases.

Decision by Judges Hagel, Moorman and Lance.

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[1] The Court has found that because of stabilization a total disability rating cannot be reduced on the basis of a single examination unless all of the evidence of record establishes that a claimant’s condition has undergone sustained material improvement. A marked difference in employment may qualify as improvement.

Sperry: Attorney for the Secretary and Veteran-Conflict of Interest

Sperry: Attorney for the Secretary?

The decision in George H. Sperry v. Eric K. Shinkseki, Opinion Number 07-0607(E), decided July 27, 2010, involved an EAJA application.

Attorney Leonard had been a VA deputy assistant general counsel and in 2001 signed an unopposed motion to remand Mr. Sperry’s PTSD claim. In 2003 Attorney Leonard entered private practice and was hired by Mr. Sperry in March 2007 to represent him in his appeal of his VA denial of his PTSD claim. In January 2008 Attorney Leonard entered a brief in the case. In April 2008 a joint motion to stay was entered into regarding a potential conflict of interest and subsequently Attorney Twyford filed a notice of appearance in the case on behalf of Attorney Sperry. The Court reversed in part and remanded the case to the BVA. Subsequently, Attorney Twyford submitted an EAJA application that included work performed by Attorney Leonard. The Secretary filed a response arguing Attorney Leonard’s work should not be allowed because his representation of Mr. Sperry violated Model Rule 1.9(a) regarding a conflict of interest and that Attorney Twyford’s work was unproductive and duplicative.

The Court was unpersuaded of any conflict of interest in this case. First, the Court found the trigger regarding representing a party before it was the filing of a written notice of appearance and such was never filed with regard to Attorney Leonard in his role as VA deputy assistant general counsel. Second, the Court looked to Model Rule 1.11 for guidance and found the signing of the unopposed motion to remand was a merely ministerial act and was not substantial.

The Court ended up reducing by 1 hour the work of Attorney Twyford saying 1.6 hours were too much to prepare a client letter and representation agreement.

Decision by Chief Judge Greene with Moorman and Davis.

Patrick: For the Love of the Veteran (An EAJA Denial)

Patrick: For the Love of the Veteran (An EAJA Denial)

The decision in Carolyn J. Patrick v. Eric K. Shinkseki, Opinion Number 08-10899(E), decided July 19, 2010, was reconsideration of a single-judge decision which denied an EAJA application. The decision again denied the application.

A 1999 BVA decision denied that a prior decision contained clear and unmistakable error. In 2002 the Court of Veteran Appeals affirmed but this decision was vacated and remanded by the Court of Appeals for the Federal Circuit in 2004. The Court of Veteran Appeals then again affirmed the decision in 2006 and in 2007 the Court of Appeals for the Federal Circuit again vacated and remanded the case. The Federal Circuit noted the argument was based on whether the BVA had misapplied 38 U.S.C. Section 1111 in 1986 and directed that the BVA determine whether the government had rebutted the presumption of soundness found under section 1111 by providing clear and unmistakable evidence of no in-service aggravation of the claimed disability. In 2008, the Court of Appeals for Veteran Claims vacated the BVA decision and “determined that in accordance with the Federal Circuit’s Wagner holding that its interpretation of section 1111 applied even in the CUE context, in order to determine whether the presumption of soundness had been rebutted, the Board in May 1999 was then required to consider whether the Board in 1986 had been presented with clear and unmistakable evidence that either Mr. Patrick’s condition did not increase in severity during service or any increase was ‘due to the natural progress of the disease.’” Id. at *3.

The issue was whether the Secretary had met his burden of demonstrating the government’s position was substantially justified at both the administrative and litigation stages. Regarding the administrative stage, the Court noted “a failure to provide an adequate statement of reasons or bases does not in all cases negate a finding that the Secretary was substantially justified.” Id. at *5. “In the underlying case, the catalyst for the remand was the Federal Circuit’s holding that its interpretation of section 1111 set forth in Wagner applied even in a CUE context. Although the error found by the Court was termed a reasons-or-bases error, that error became apparently only after the Federal Circuit directed remand to the Board…. Thus, because the purpose of the Court’s remand was for the Board to comply with the Federal Circuit’s then-recent interpretation of section 1111, in light of the law as it was understood at the time of the 1999 Board decision (which required only clear and unmistakable evidence of preexistence to rebut the presumption of soundness), the Board’s failure to provide Mrs. Patrick with reasons or bases regarding whether the Secretary had rebutted the aggravation prong of the presumption of soundness under section 1111 was reasonable.” Id. at *5.

Regarding substantial justification at the litigation stage, the Court accepted the Secretary’s argument that his position was substantially justified because the Court had found the presumption of soundness as interpreted in Wagner does not have retroactive application in a CUE case. Effectively, the Court is using its previous (and incorrect decision in the same case) to say the Secretary’s position was justified. This is problematic to say the least. Also regarding the administrative stage, the problem is that the Federal Circuit stated in its decision that Wagner did not change the law but explained what section 1111 has always meant. Thus, it seems the denial of the EAJA application is set up for an appeal to the Federal Circuit.

Still, this is one of those cases that illustrates the perversity that being the first attorney to win a hard case might not be in your best short-term business interests.

Decision by Chief Judge Greene with Kasold and Hagel.

Easing the Stressor Requirement for PTSD

The following is taken from the N.Y. Times, July 7, 2010.

Veterans Affairs to Ease Claim Process for Disability

By JAMES DAO

The government is preparing to issue new rules that will make it substantially easier for veterans who have been found to have post-traumatic stress disorder to receive disability benefits for the illness, a change that could affect hundreds of thousands of veterans from the wars in Iraq, Afghanistan and Vietnam.

The regulations from the Department of Veterans Affairs, which will take effect as early as Monday and cost as much as $5 billion over several years according to Congressional analysts, will essentially eliminate a requirement that veterans document specific events like bomb blasts, firefights or mortar attacks that might have caused P.T.S.D., an illness characterized by emotional numbness,irritability and flashbacks.

For decades, veterans have complained that finding such records was extremely time consuming and sometimes impossible. And in the wars in Afghanistan and Iraq, veterans groups assert that the current rules discriminate against tens of thousands of service members — many of them women — who did not serve in combat roles but nevertheless suffered traumatic experiences.

Under the new rule, which applies to veterans of all wars, the department will grant compensation to those with P.T.S.D. if they can simply show that they served in a war zone and in a job consistent with the events that they say caused their conditions. They would not have to prove, for instance, that they came under fire, served in a front-line unit or saw a friend killed.

The new rule would also allow compensation for service members who had good reason to fear traumatic events, known as stressors, even if they did not actually experience them.

There are concerns that the change will open the door to a flood of fraudulent claims. But supporters of the rule say the veterans department will still review all claims and thus be able to weed out the baseless ones.

“This nation has a solemn obligation to the men and women who have honorably served this country and suffer from the emotional and often devastating hidden wounds of war,” the secretary of veterans affairs, Eric K. Shinseki, said in a statement to The New York Times. “This final regulation goes a long way to ensure that veterans receive the benefits and services they need.”

Though widely applauded by veterans’ groups, the new rule is generating criticism from some quarters because of its cost. Some mental health experts also believe it will lead to economic dependency among younger veterans whose conditions might be treatable.

Disability benefits include free physical and mental health care and monthly checks ranging from a few hundred dollars to more than $2,000, depending on the severity of the condition.

“I can’t imagine anyone more worthy of public largess than a veteran,” said Dr. Sally Satel, a psychiatrist and fellow at the American Enterprise Institute, a conservative policy group, who has written on P.T.S.D. “But as a clinician, it is destructive to give someone total and permanent disability when they are in fact capable of working, even if it is not at full capacity. A job is the most therapeutic thing there is.”

But Rick Weidman, executive director for policy and government affairs at Vietnam Veterans of America, said most veterans applied for disability not for the monthly checks but because they wanted access to free health care.

“I know guys who are rated 100 percent disabled who keep coming back for treatment not because they are worried about losing their compensation, but because they want their life back,” Mr. Weidman said.

Mr. Weidman and other veterans’ advocates said they were disappointed by one provision of the new rule: It will require a final determination on a veteran’s case to be made by a psychiatrist or psychologist who works for the veterans department.

The advocates assert that the rule will allow the department to sharply limit approvals. They argue that private physicians should be allowed to make those determinations as well.

But Tom Pamperin, associate deputy under secretary for policy and programs at the veterans department, said the agency wanted to ensure that standards were consistent for the assessments.

“V.A. and V.A.-contract clinicians go through a certification process,” Mr. Pamperin said. “They are well familiar with military life and can make an assessment of whether the stressor is consistent with the veterans’ duties and place of service.”

The new rule comes at a time when members of Congress and the veterans department itself are moving to expand health benefits and disability compensation for a variety of disorders linked to deployment. The projected costs of those actions are generating some opposition, though probably not enough to block any of the proposals.

The largest proposal would make it easier for Vietnam veterans with ischemic heart disease, Parkinson’s disease and hairy-cell leukemia to receive benefits.

The rule, proposed last fall by the veterans department, would presume those diseases were caused by exposure to Agent Orange, the chemical defoliant, if a veteran could simply demonstrate that he had set foot in Vietnam during the war.

The rule, still under review, is projected to cost more than $42 billion over a decade.

Senator Jim Webb, Democrat of Virginia and a Vietnam veteran, has asked that Congress review the proposal before it takes effect. “I take a back seat to no one in my concern for our veterans,” Mr. Webb said in a floor statement in May. “But I do think we need to have practical, proper procedures.”

More than two million service members have deployed to Iraq or Afghanistan since 2001, and by some estimates 20 percent or more of them will develop P.T.S.D.

More than 150,000 cases of P.T.S.D. have been diagnosed by the veterans health system among veterans of the two wars, while thousands more have received diagnoses from private doctors, said Paul Sullivan, executive director of Veterans for Common Sense, an advocacy group.

But Mr. Sullivan said records showed that the veterans department had approved P.T.S.D. disability claims for only 78,000 veterans. That suggests, he said, that many veterans with the disorder are having their compensation claims rejected by claims processors. “Those statistics show a very serious problem in how V.A. handles P.T.S.D. claims,” Mr. Sullivan said.

Representative John Hall, Democrat of New York and sponsor of legislation similar to the new rule, said his office had handled dozens of cases involving veterans who had trouble receiving disability compensation for P.T.S.D., including a Navy veteran from World War II who twice served on ships that sank in the Pacific.

“It doesn’t matter whether you are an infantryman or a cook or a truck driver,” Mr. Hall said. “Anyone is potentially at risk for post-traumatic stress.”