Fournier: When is a Denial a Denial?

Fournier: When is a Denial a Denial?

The case of Richard C. Fournier v. Eric K. Shinkseki, Opinion Number 08-1087, decided June 18, 2010, affirmed a denial of an earlier effective service-connection date.

The facts are simple. The veteran had served for approximately 5 years when while walking on the street near his base he was hit on the head during an assault. He was subsequently honorably discharged for unsuitability based on having an inadequate personality disorder. The veteran was ultimately service-connected for a mood disorder secondary to a head injury but was seeking an earlier effective date based on a filing in 1971. Importantly, he had initially filed for service-connection in 1968 and again in 1971 before finally being connected after a 1980 filing.

The veteran argued the 1971 denial was defective based on reasons of notice and thus still pending. Specifically, the veteran argued the 1971 denial was so misleading as to fail to notify him of the reason for disallowing the claim and further that the RO should have had a duty to read the claim for a nervous disorder sympathetically to include psychoneurotic disorders. The argument essentially boiled down to saying a better explanation of the denial would have allowed the veteran to know what evidence he needed to substantiate his claim. The problem was that this was a duplicate claim in that a claim had been denied in 1968 and the veteran had not submitted any new evidence.

The Court rejected the claim and focused the question of a pending claim on law which states a claim remains alive until there is either a recognition of the substance of the claim in an RO decision from which a claimant could deduce that he claim was adjudicated or an explicit adjudication of a subsequent claim for the same disability. The Court then determined the 1971 claim denial letter clearly complied with then existing regulations and that a reasonable person would have not have delayed filing an appeal of the decision. The Court then elaborated on the sympathetic reading requirement to say it does not “obligate [the VA] to read a claimant’s mind.”

The case also involved language from the M21-1 manual which required a formal rating decision setting forth the denial; however, the Court found the language applied to claims requiring reconsideration, new and material evidence, or increased ratings and that this claim was merely duplicative without presenting new evidence.

The Court used the opportunity to clarify its view of the M21-1 manual. It repeated that the manual can result in either substantive or interpretative rules, with substantive rules being ones the VA has to follow. This is in contrast to the VA which likes to see the manual as merely interpretative. Of course, whether a rule is substantive or interpretative is essentially a call for the Court which will be guided by looking to see if the manual “created” additional rights beyond those of preexisting regulations on the same subject. Here, the Court held the manual provision did not establish or alter the criteria for benefits but illuminated a suggested procedural practice (issuing a formal rating decision); therefore, the manual provision does not limit the agency’s action.

Decision drafted by Chief Judge Greene and joined in by Judges Hagel and Davis.

Raugust: VA Medical Benefits and the 24-Month Rule

Raugust: VA Medical Benefits and the 24-Month Rule

The case of Richard C. Raugust v. Eric K. Shinkseki, Opinion Number 08-2064, decided June 11, 2010, was a matter of first impression where the Court affirmed the constitutionality of the 24-month minimum service requirement.

The veteran served for 17 months and 25 days before receiving an honorable discharge. The Court noted the reason for his separation was for “misconduct – pattern of misconduct”. The veteran requested access to VA health care benefits but was denied because of the 24-month minimum service requirement. This rule which was established by Congress only applies to those who enlisted after September 7, 1980, and requires an individual serve at least 24 continuous months of active duty to qualify for any VA benefits. Importantly, there are some exclusions from the 24-month minimum service requirement, which include: discharge based on hardship or early discharge agreement or due to a disability.

The veteran appealed on two grounds: a failure to assist and a constitutional challenge to the rule.

Regarding the failure to assist, the Board admitted it did not find the duty to assist satisfied but instead said any deficiencies are moot because no reasonable possibility exists that additional records would substantiate the claim. The veteran argued the service records might have addressed some of the exclusions to the 24-month minimum service requirement. The Court admitted that conceivably records could address an exclusion, but then pointed to the fact there was “no specific reason to believe” records would reveal an exclusion because the veteran had not made a specific and credible allegation that an exclusion would be established by the records. The Court found without a specific and credible reason to believe the additional records would tend to establish an exception, the Board did not commit clear error in concluding there was no need to obtain additional records.

Regarding the constitutional challenge, the veteran argued the 24-month minimum service requirement violated the guarantee of equal protection. The argument was that the provision created an arbitrary absurdity because only fractionally longer or shorter service could determine eligibility. The Court properly assessed under equal protection clause jurisprudence and found a rational basis for the creation of the 24-month minimum service requirement, reduction of attrition.

The problem with this decision is that the Court seems to have forgotten the VA duty to assist is founded upon the principle that the system is proudly non-adversarial and gives the benefit of the doubt to the veteran. The result is a large number of veterans are unrepresented prior to the case reaching the Court. What happens to an attorney that looks at the case and realizes the veteran has a good argument for fitting within an exclusion to the 24-month minimum service requirement but that the records are not a part of the record and the veteran did not know to make the argument earlier? Should he just tell the veteran to start over or can he rely on the fact that the VA did not fulfill the duty to assist and use that failing to get the case sent back to the Board to address the information and arguments he has found?

In that vein, perhaps the lesson to a veteran is to find representation before you reach the Court of Appeals. Of course, we can hope the Federal Circuit Court of Appeals gets its crack at the case and re-imposes on the VA and the Court of Appeals for Veterans Claims the inviolate requirement of the duty to assist.

Decision drafted by Judge Hagel and joined in by Judges Moorman and Lance.

King v. Shinseki: What Does It Take To Reopen A Claim?

King: What Does It Take To Reopen A Claim?

The case of Earlee King v. Eric K. Shinseki, Opinion Number 07-1214, decided May 28, 2010, affirmed a denial for an earlier effective date for service connected schizophrenia.

The veteran was initially denied service connection by the VA in 1992 and the Board in 1993. Thereafter he continued to be treated by the VA. The veteran was finally granted service connection and a 100% disability rating going back to 2000. However, medical notes from prior to 2000 discussed his schizophrenia and a specifically a 1997 medical report noted the veteran told the physician he wanted to file a claim for service connection for his schizophrenia. The veteran sought to use this notation as proof that he had reopened his claim and should be granted an earlier effective date.

The majority found these notations “failed to manifest the requisite intent to reopen a previously denied schizophrenia service-connection claim” and “the VA examiner’s suggestion to Mr. King in December 1997 that he file a service-connection claim reveals that neither party had reason to believe that any claim had been presented”.

A dissent by Judge Hagel argues that there are only three requirements to be fulfilled to file an informal claim: (1) written communication, (2) an intent to apply for benefits, and (3) identifying the benefits sought. Judge Hagel then argues that all three requirements were fulfilled in that the physician rendered the communication into writing and the veteran intended to apply for a benefit, service-connection for schizophrenia. Essentially Hagel argues it is not important who writes an informal claims, the veteran, a representative, or even as in this case a VA physician and that the majority got it wrong when it measured intent and found King did not intent to seek benefits.

The majority’s reasoning is troublingly incomplete. They denied based on the veteran lacking intent to apply for benefits because the physician told him that he should file for service-connection, this is problematic because the measure of intent is the veteran’s at the time of the request and not the physician’s intent or what the veteran should have known after being instructed by the physician. Either King intended to request benefits when talking to the VA physician or he did not.

Perhaps the Court could have gotten out of the subjective intent question by more strictly policing the “written requirement”, however, a strong counterargument could be made that the physician (due to the close doctor-patient relationship) was acting as the veteran’s representative when filling out the form. Still, I am sympathetic to the Court and the VA in that allowing VA physician notes to be used to seek an earlier effective date could open a can of worms in light of the inherently different roles of the VA physician and VA ratings adjudicator.

The lesson from the case is that if you want to reopen a denied claim, due so in writing and for that matter make sure you keep a copy.

Decision by Chief Judge Green and Judge Davis with a dissent by Judge Hagel.