Posey: The Misfiled Notice of Appeal and the VA's Duty

The Misfiled Notice of Appeal and the VA’s Duty

The case of Robert V. Posey v. Eric K. Shinkseki, Opinion Number 08-0240, decided April 23, 2010, concerns an improperly filed notice of appeal 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 William C. Rickett v. Eric K. Shinseki, Opinion Number 09-2493, decided March 17, 2010.

This is one of a long line of cases that deals with a possibly improperly filed notice of appeal. Here, the VA had sent a BVA decision to the wrong address and resent it to the correct address apparently two months later. The veteran sent a letter to the VA 114 days after the decision was apparently resent. The VA interpreted the letter to be a notice of appeal. The letter was received by the VA on November 8, 2007 and forwarded to the Court of Appeals on January 19, 2008. By the time the letter was received at the Court of Appeals, more than 120 days had elapsed, meaning the purported notice of appeal was untimely.

The Court called the VA to task for waiting over 2 months to forward the purported notice of appeal to the Court and instead determined that the document was not a notice of appeal but a motion for reconsideration directed to the BVA. This effectively meant the motion for reconsideration tolled the finality of the BVA decision and meant that the BVA had to render a decision on the motion to reconsider before the notice of appeal had to be sent.

The Court considered the document a motion to reconsider because it requested a Board hearing in Washington, DC, had attached a VA form 1-9, was directed to the Board of Veteran Appeals in salutation, and does not in its body refer to the Court.

The Court further dealt with a side issue regarding the presumption of regularity of the Secretary’s actions before two concurring opinions took the VA to task for possibly sitting on a notice of appeal to “run…out the clock.”

Judge Hagel said “it has become clear to me that VA somewhat routinely holds correspondence from claimants that it determines, sometime after receipt, are Notices of Appeal to this Court. As a result, in far too many cases, the Court receives the Notices of Appeal from VA only after the 120-day appeal period has expired.” Judge Hagel suggested that Congress address this issue by amending 38 U.S.C. Section 7266 (regarding Notices of Appeals) to say that if it is sent to the VA during the 120-day appeal period that it will be regarded as a motion for reconsideration.

Judge Lance also wrote a separate concurrence wherein he noted the problem and stated, “The perception [that the VA is willfully failing to return or forward the purported notices of appeals in a timely manner] will persist until such time as the Secretary develops uniform practices and procedures dealing with misfiled NOAs…. Of course, the Secretary, if he elects, can merely return the misfiled NOAs within a reasonable amount of time and advise veterans to perfect their appeal in a timely manner with instructions as to where to send their NOA.” The judge noted that while it is ultimately the Secretary’s responsibility to develop practices to take care of the misfiled NOAs, “it is this Court’s obligation to ensure that rights and protections given to veterans by Congress and a grateful citizenry are effectuated in the spirit as well as letter of the law”. Judge Lance then noted it is appropriate in some circumstances for the Court to construe misfiled NOAs that are not timely and appropriately addressed by the Secretary as a request for reconsideration by the Board or in the alternative that the Secretary’s actions can result in waiver of the technical requirements associated with filing an appeal.

While this decision is not an ultimate resolution of the problem of misfiled NOAs, it does represent a significant signal to the VA that the Court is concerned about a possible pattern by the VA of not adequately addressing misfiled NOAs and that the Court (especially Judges Lance, Hagel, Kasold (see his dissent in Rickett) and Schoelen) might be willing to assist a veteran who has misfiled a NOA.

Decision by Judges Hagel, Lance and Schoelen, with separate concurrences by Hagel and Lance.

Osbon: Overbilling?

Overbilling?

The decision Michael J. Osbon v. Eric K. Shinseki, Opinion Number 09-0824(E), decided April 23, 2010, drastically reduced an EAJA request.

This case probably is only interesting to attorneys and has limited appeal to appellants, because while attorneys who work in the veterans’ benefits arena do so because it is an awarding area where you can help people, they also have law offices and families to support. This decision deals strictly with the amount of an EAJA award.

The attorney secured a benefit to his client by securing a Joint Motion for Remand and no one disagreed that he was entitled to an EAJA award. The problem was the amount. It was a single issue case with said issue being TDIU. The attorney submitted an EAJA application for $8,222,55, which accounted for 40.4 attorney hours and 21.2 paralegal hours. The Secretary objected and the attorney did not reply to the Secretary’s response.

Numerous objections were raised by the Secretary including: (1) time spent on clerical tasks (copying, preparing, reviewing and mailing appeals documents to the client), (2) spending excessive time preparing and mailing standard documents, and spending excessive time receiving documents, (3) billing excessively for “simple tasks and receipt of routine documents”, (4) unreasonable and excessive billing for repetitive paralegal acts, (5) spending too long to review the record for counter-designation, (6) excessive and duplicative time spent reviewing and annotating the Record Before the Agency, (7) vague descriptions of attorney time, (8) unreasonable billed for corrective actions take pursuant to the attorney’s own delay, (9) excessive and duplicative time on the EAJA application, 11.8 attorney hours and 5.2 paralegal hours.

The Court agreed with the Secretary that time was billed that was clerical, unreasonable excessive or duplicative, and inefficient in requiring corrective documents. The Court also discounted all paralegal time because the EAJA application did not contain a statement of the paralegal’s qualifications and experience. But, what really seemed to upset the Court was the amount of time billed for the EAJA application. They noted it was basically boilerplate and yet in other applications submitted by the attorney he had billed a similar amount. The Court was also upset that the attorney charged what it considered to be an excessive amount of time to assemble, calculate, and check the time and billing statements. The Court seemed to say that if the times had been kept contemporaneously with the acts that the amounts would have been less. The end result was that the Court reduced by 80% the award to $1,372.80.

This is a tough case to judge. Surely some of the billing does not seem to be as problematic as the Court found. For instance, I am not sure that preparing documents for a client is clerical. Also, billing .1 for receiving and reviewing a document is not out of line with private practice. I also wonder what is an appropriate time to review and annotate the Record Before the Agency? Many practitioners have found that by going page by page they come across something the VA did not consider, this is necessarily a time consuming task.

Still, the Court seemed to be motivated by anger, probably by what it considered the excessive amounts of time spent preparing a largely boilerplate EAJA application and the fact that it was similar to amounts from other applications.

All in all, it seems like a case that reinforces the need to (1) keep contemporaneous and descriptive time records, (2) show some discretion by reducing or eliminating some mundane tasks (perhaps combine some of the smaller tasks into a larger listing and only bill .1) and never billing the government for work that is required because of you (i.e., billing for time spent when you request an extension), (3) and remember that it is the person seeking the award who has the burden to show that the fee request is reasonable.

As a young attorney I worked at an insurance defense firm that refused to bill its clients for fancy lunches. We might be out of town for a deposition and all the other attorneys going out to a nice lunch spot but the firm took the position that we were going to eat anyway and the client should not have to pay for it. The result was that I paid for a lot of my own lunches when other attorneys were expensing their clients. However, we always had plenty of good work to do while I was employed with that firm and I think our clients appreciated the fact that we did not just see them as an unlimited ATM.

With this decision, the Court is reminding all of the attorneys who practice before it that we should and will be paid for our work but that they are not paying for any fancy lunches.

Decision by Judge Hagel.

Hickson: Section 20.903: Can the Board reach the Merits of a Reopened Claim?

Section 20.903: Can the Board reach the Merits of a Reopened Claim?

The case of Arthur Hickson v. Eric K. Shinseki, Opinion Number 07-1311, decided March 31, 2010, affirmed denial of an acquired psychiatric disorder.

The case involved the application of 38 C.F.R. Section 20.903, which states if the Board is going to consider law not already considered in the Regional Office decision and such consideration could result in denial of the appeal, the Board has to first notify the veteran or the veteran’s representative of such intent.

Here, the veteran had submitted new and material evidence which prompted the Board to reopen the case. Rather than remanding the case for further development along the lines of a medical examination and weighing the credibility of the evidence, the Board denied the claim on the merits. The reason the Board reached the merits is that a medical opinion had already been provided and the Regional Office decision had weighed the evidence.

The veteran’s appeal was based on section 20.903, specifically the Board’s consideration of law not previously considered by the RO. The Secretary argued the regulation only applied to literally new law, as in recently passed rules and case law that wasn’t considered by the RO. The Court rejected the VA’s argument regarding new law and examined whether in fact the Board considered law not previously considered. Upon close examination, the Court determined this was not the case for various reasons. Some of these reasons include that the allegedly unconsidered laws were actually referred to by the RO, were considered in the Supplemental Statement of the Case, were sent by the veteran’s attorney and thus not subject to notice requirements, or related to requirements and powers of the Board which did not trigger the notice requirement.

The lesson behind this case might be that it is possible the Board will reopen a claim and decide on its merits even if the RO had decided against reopening the claim. So, you should prepare your case well and get all possible evidence as soon as possible.

Decision by Chief Judge Green and joined in by Judges Kasold and Davis.

Rickett: Properly Filing Your Notice of Appeal

A Properly Filed Notice of Appeal

The case of William C. Rickett v. Eric K. Shinseki, Opinion Number 09-2493, decided March 17, 2010, is an extension of the Court’s 2009 decision in Irwin v. Shinseki in that it deals with what is a properly filed notice of appeal.

The Court was confronted with a Notice of Appeal (NOA) that was timely sent to the VA General Counsel’s office rather than the Court, and only later sent to the Court (after more than 120 days after the date of the Board of Veterans’ Appeals’ decision). Irwin had decided that equitable tolling is no longer permissible for misfiled notices of appeal. Instead, the veteran attempted to argue that the notice of appellate rights sent by the VA was inadequate and that the Court should exercise its authority to deem the notice of appeal filed with the Court on the date it was misfiled with the Secretary.

Both the majority and the dissent rejected any argument that the notice of appellate rights was inadequate and the majority found the case was controlled by Irwin and required dismissal of the case for lack of jurisdiction.

The dissent pointed to the circumstances where a late notice of appeal would be accepted by the Court and used that to determine that a timely notice of appeal was not a jurisdictional requirement and then concluded that because “[m]ost appeals to the Court involve disabled veterans” and “the Secretary logs in, by date, mail that he receives, and there is no prejudice in requiring him to forward misfiled NOAs to the Court. Applying the basis underlying FRAP 4(d), and our duty to interpret the law, I believe it is proper and appropriate that we focus on timing, not location, and that we consider the date an NOA is misfiled with the Secretary to be the date the NOA is filed with the Court.”

Despite the spirited dissent by Judge Kasold, the lesson is that the Notice of Appeal is a jurisdictional requirement that must be met absent very limited exceptions. So, a self-represented veteran should carefully read the notice of appellate rights and perhaps consult an attorney as early as possible.

Decision by Judges Hagel and Davis, with dissent by Judge Kasold.

Jones: What Must the VA do to obtain an Adequate Medical Examination? Adequate?

Adequacy of A Medical Examination

The case of Michael H. Jones v. Eric K. Shinseki, Opinion Number 07-3060, decided March 25, 2010, remanded a denial for hearing loss and erectile dysfunction.

The Board of Veteran Appeals had denied an compensation rating for right ear hearing loss, service connection for left ear hearing loss, and service connection for erectile dysfunction secondary to Type II diabetes mellitus.

The principal issue before the Court was whether the VA had fulfilled its duty to assist by obtaining two VA medical examinations in which the physicians concluded that they were unable to render an opinion whether there was a causal link between the current disabilities and service without resorting to “mere speculation.”

Regarding the hearing loss, the physician opined that the right ear hearing loss was service connected but that regarding the left ear hearing loss, “there is insufficient information to resolve the etiology and onset of the left ear hearing loss without resorting to mere speculation.” When specifically questioned regarding tinnitus, the physician noted two different accounts of the initial onset and stated “it is not possible to resolve the issue of etiology without resort to speculation.” Regarding the erectile dysfunction, a physician stated “I cannot resolve [the etiology] issue without resort to mere speculation.” The Board denied service connection and noted the inability of the medical examiners to opine on the etiology issue without resort to speculation.

The veteran argued the VA had not fulfilled its duty to assist in providing a medical examination when the examination fails to proffer an opinion on the etiology of a disability and that the VA is required to seek additional opinions until one of two things occur: (a) a definite position on the etiology question is given, or (b) the VA formally concludes that no further examination should be undertaken because no reasonable possibility exists that such assistance would aid in substantiating the case.

The Court rejected the idea that the VA must undertake additional examinations until formally concluding further examinations are futile. However, the court did determine “it just be clear, from some combination of the examiner’s opinion and the Board’s analysis of the record, that the examiner has not invoked the phrase ‘without resort to mere speculation’ as a substitute for the full consideration of all pertinent and available medical facts to which the a claimant is entitled.”

The question essentially faced by the Court is what happens a medical examination states it cannot give an assessment of causation without resorting to speculation. The Court basically allows that an examination can be adequate and conclude without giving a clear picture of etiology. However, the clear to say the medical examiner cannot refuse to offer an opinion of etiology based on mere speculation to short circuit careful consideration of the claim and states that it will look at the following to determine the adequacy of the examination.

Generally the Court determined the opinion, “must be clear on the record that the inability to opine on questions of diagnosis and etiology is no the first impression of an uninformed examiner, but rather an assessment arrived at after all due diligence in seeking relevant medical information that may have bearing on the requested opinion.” The Court specifically noted the examination must explain why a statement would be speculation and pointed to the following considerations: is it based on sufficient facts or data, the physician has research medical literature on the question, the physician should clearly identify the facts that cannot be determined and whether additional testing would be helpful.

In short, the VA does not violate the duty to assist by relying upon a medical examination that does not make a statement of diagnosis or etiology if the physician has done all that reasonably should be done to become informed about a case and carefully explains why he cannot make a determination.

This finding probably will not have any real impact on how a case should be developed by a veteran or his advocate. It is helpful to obtain independent medical opinions and to perform research in medical treatises to submit to the VA when they are considering the claim. However, it is likely the VA will develop a checklist they feel they can meet and then feel comfortable refusing a diagnosis or statement of etiology based on “mere speculation.” The result might be more denials for the unwary and unprepared. However, it might also offer an opportunity to appellant’s to argue that research of medical literature wasn’t performed, a potentially potent argument for future appeals. It also is interesting to note that in addressing the tinnitus claim the physician had essentially weighed the credibility of two accounts given by the veteran and made his determine based on that, the Court clarified the factual question should have been resolved by the Board as the factfinder and then the examiner asked to provide an opinion based on the Board's finding.

The concurring opinion by Judge Lance is also helpful in that it clarifies that if an opinion indicates a disability has only two potential causes and at least on is related to service, then the inability to provide a reason why one is more likely the cause of the disability would place the evidence in equipoise and the benefit of the doubt rule would apply and work to the benefit of the veteran.

Decision written by Judge Davis and joined by Judges Kasold and Lance with a short concurrence by Judge Lance.

Singleton: Stabilized Disability Ratings under Section 3.344

Section 3.344, A Stabilized Disability Rating

The case of George Singleton v. Eric K. Shinseki, Opinion Number 08-1131, decided March 25, 2010, affirmed a PTSD and schizophrenia disability rating of 70%.

The Board of Veteran Appeals assigned an initial staged disability ratings for the veteran for PTSD and schizophrenia from 1980 to 2001. The staged ratings include a 50% rating for a portion of 1980, a 100% rating for 1980-1991, a 70% rating for 1991-2000, and a 100% rating for the time after 2000.

The veteran appealed the 70% rating for the time in 1991-2000 and made two major arguments. First, the veteran argued the Board erred in only granting 70% for this time. The Court noted that while a private psychiatrist had found that the veteran could not function independently outside his home, the Board discounted the opinion based on evidence that he held multiple jobs during this time. Here, the Board considered the relevant evidence but merely reached a different conclusion than the veteran would reach. The Court basically decided that the Board’s explanation was full and adequate and that the veteran failed to show that the decision was clearly erroneous, which would require a showing that although evidence supported the Board’s decision, the Court is left with a definite and firm conviction that a mistake has been committed.

Second, and more important as precedent, the veteran argued that 38 C.F.R. § 3.344 (regarding stabilized disability ratings) applied and prevented the reduction of his rating from 100% to 70%. Section 3.344 requires that a stabilized disability rating (one that has been in effect for 5 years or more) cannot be reduced without a recent, full and complete medical examination. The purpose for Section 3.344 is to protect veterans who are reliant on a disability rating from an arbitrary reduction. In this case, the Board had just service-connected the veteran and was making an initial rating which considered years into the past.

The Court essentially found that Section 3.344 does not apply to initial staged ratings in large part because “[w]here benefits are reduced retrospectively in the staged disability ratings context, there is no danger that a veteran will be deprived of income that he or she is accustomed to using to meet day-to-day expenses.” Thus, the Court accepted the VA’s interpretation and argument that Section 3.344 only applies to prospective rating reductions.

Decision written by Judge Kasold and joined by C.J. Green and J. Schoelen.