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.”

Bryant: The Board's Duty to fully explain the issues and suggest evidence

Bryant: The BVA’s Duty?

The case of Walter A. Bryant v. Eric K. Shinkseki, Opinion Number 08-4080, decided July 1, 2010, affirmed and reversed in part a denial of service-connection for various conditions.

The Court’s decision principally used the opportunity to further discuss the Board member’s duty to fully explain the issues as well as the duty to suggest the submission of evidence possibly overlooked. Here, the Board member began the hearing by noting four issues for appeal and identifying them. However, the Court found “Although this statement explained the issues in terms of the scope of the claim for benefits, it did not ‘explain fully’ the outstanding issues material to substantiate the claim, which in this instance were current disability and medical nexus.” Id. at *10. The Court continued, “Even though the hearing officer made inquiries during the hearing regarding whether any doctor had ever related the appellant’s claimed disabilities to service and the basis for asserting a disability, at no point did the Board member explain that these issues were material to substantiate the claim—i.e., that they were the reasons the appellant’s claims were denied by the RO. Accordingly, the Board member erred as to the first duty—to fully explain the issues”. Id. at *10.

The duty to suggest the submission of evidence possibly overlooked was more complicated. The Court looked at the allegations of frostbite, hearing loss and tinnitus first and found that a VA medical examination stated the appellant did not have a diagnosis for these conditions. The Court then found, “Under these circumstances, nothing gave rise to the possibility that evidence had been overlooked with regard to the appellant’s claim for benefits for frostbite, hearing loss, and tinnitus.” Id. at *11. However, regarding the claim for service connection for squamous cell carcinoma, the Court noted a diagnosis for a skin cancer that is a form of a squamous cell carcinoma and noted the lack of medical evidence addressing the nexus between the skin cancer and an in-service event or injury “gave rise to the possibility that evidence had been overlooked, and the Board hearing officer should have suggested that the appellant secure and submit this evidence if he could”. Id. at *11.

However, what the Court gives it can also take away in the form of its notice requirement. Remember the Court found a breach of the Board member’s duty to fully explain the issues and a duty to suggest the submission of evidence possibly overlooked with regard to the squamous cell carcinoma. First, the Court considered prejudice to the appellant. The Secretary had argued that section 5103(a) notice letters eliminated any possibility for prejudice but the Court refused this argument on the basis that these were two different notice requirements with different intents. However, when specifically considering frostbite, hearing loss, and tinnitus, the Court found that “although the Board hearing officer did not explicitly lay out the material issues of medical nexus and current disability, the record reflects that they were developed by the Secretary—to include medical examination reports on each of the disabilities and any nexus to service—and there was no indication that the represented appellant had any additional information to submit. Accordingly, the ‘clarity and completeness of the hearing record’ was intact with respect to these disabilities and the purpose of § 3.103(c)(2) was fulfilled.” Id. at *12-*13. Regarding the squamous cell carcinoma, the Court found prejudice because the failure to lay out the material issues combined with a failure to suggest medical evidecnce as to service-connection, “evidence that was lacking at the time of the hearing, and that remained lacking through final Board decision.” Id. at *13.

A separate opinion by Judge Lance make two suggestions to increase the effectiveness of the majority opinion. First, the Board should be required to look at the most recent Regional Office decision (i.e., the most recent Supplemental Statement of the Case) and clearly explain what elements of the claim were found deficient and what type of evidence would help the appellant prevail. Second, and perhaps most important, the dissent expressed concern the prejudice requirement essentially gutted the duty to fully explain the issues in many cases. The dissent believes the prejudice standard enacted by the Court (whether the error affected the clarity and completeness of the hearing record) destroys the opportunity for the appellant to have an opportunity to submit favorable evidence by failing to ensure the veteran understands what issues require the submission of favorable evidence.

The Case is important for clarifying the Board member’s duties and while it does not create any additionally duty, it certainly provides appellant’s before the Court of Appeals with another strong line of argument. However, a determination of a breach of these duties and possible requires a case by case that will likely result in more issues being argued before the Court.

Decision by Judge Kasold and Davis with a separate opinion by Judge Lance.