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

Tuesday, August 31, 2010

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.

Wednesday, August 25, 2010

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.

Monday, August 23, 2010

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.

Friday, August 20, 2010

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.

Monday, August 16, 2010

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.

Wednesday, August 11, 2010

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.



[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.

Tuesday, August 3, 2010

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.