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.