Effective Date for a bifurcated issue?

Locklear: What is the Effective Date if VA Never Makes a Decision?

Edison B. Locklear v. Eric K. Shinseki, Opinion Number 09-2675, decided February 11, 2011 involves determination of an effective date when the BVA had previously remanded for a determination of TDIU but such determination was never made.

The veteran was seeking service connection for a mental disability and was ultimately granted service connection and a 100% rating after having to reopening his claim numerous times. Here, the BVA had previously remanded for a determination of TDIU because a statement of the case had never been issued for that issue. Numerous claims denied a higher rating for schizophrenia without ever addressing the issue of TDIU.

The veteran appealed alleging the VA had never made a determination on the issue and the Court remanded.

The VA argued that the issue of TDIU was implicitly denied and noted the ability to work is part of the mental health rating criteria. The court acknowledged that generally “The award of a disability rating less than 100% generally provides notice as to how the Secretary has rated a claimant’s condition and serves as a final decision, if unappealed, with regard to entitlement to any higher disability rating associated with the underlying disability, including TDIU.” Id. at *6. However, the Court said “This general rule, however, is not for application when the Secretary explicitly separates the adjudication of one disability rating or benefit from another. This is because, upon seeing a claim broken out for separate adjudication, a reasonable person would expect to see a specific decision on the part that was separated, or at lest some specific indication that the separated part was adjudicated.” Id. at *6. The Court found the veteran never had notice that the TDIU claim was implicitly denied.

The Court noted the rating schedule for mental disabilities takes into account occupational functioning, however, “the criteria for entitlement to TDIU benefits differs from schedular rating entitlement … and the Board should evaluate entitlement to TDIU in the first instance.” Id. at *9.

While the case has limited application to situations where TDIU was bifurcated it could apply to other issues that were bifurcated and reiterates that the theory of an implicitly denied claim has limitations and can successfully attacked.

Decided by CJ Kasold, and Judges Hagel and Moorman.

What's in a VA Form 9?

Evans: What Issues are Appealed on a Form 9?

James I. Evans v. Eric K. Shinseki, Opinion Number 08-2133, decided January 28, 2011 involves confusion over what issues were appealed when an unrepresented veteran completed a VA Form 9.

The veteran sent in a notice of a disagreement (NOD) from a decision that had 6 issues and the VA prepared a Statement of the Case (SOC). The veteran than submitted a form 9 in which he checked the box saying he wished to appeal all of the issues in the SOC. However, he also specified 3 of the issues listed in the SOC. The VA took the position that he abandoned the other three issues. And, in fact, those were the only issues discussed in a hearing. The BVA decision dismissed the three unspecified claims.

On appeal, the veteran argued the BVA should have addressed the unspecified claims because he had checked a box saying he wanted to appeal all the issues.

The Court agreed with the veteran. It found the VA had a duty to liberally read pro se filing and the form is ambiguous because it does not explain that if a veteran checks he wants to appeal all issues but then specifies some in the second box, that the second box controls.

A concurring opinion by Judge Schoelen concurred but disagreed with the finding the VA Form 9 was potentially ambiguous. Instead, it would have looked at the adequacy of the BVA’s decision that the unspecified issues were waived.

Decided by Judges Moorman, Lance and Schoelen.

When Does the VA handle a Remand Expeditiously?

Harvey: What is Expeditously Handling an Appeal

Cleveland D. Harvey v. Eric K. Shinseki, Opinion Number 10-1284, decided January 25, 2011 involves whether the VA expeditiously handled a remand.

In June 2008, the Court issued a decision remanding the veteran’s case for the limited purpose of calculating his compensation benefits. However, what resulted was a “parade of administrative miseries that unnecessarily delayed the execution of the specific award and easily accomplished Court order and ultimately resulted in the petitioner not receiving a final answer on his remand until two years after the issuance of this Court’s decision”. Id. at *1. While waiting for the decision, the veteran in March 2010 filed a motion for extraordinary relief with the Court. In July 2010 the VA complied with the initial remand and found the veteran had been previously fully compensated. The VA determination was correct but the Court took the opportunity to incur its wrath on the VA for its delay and found the VA in contempt of its earlier order requiring expeditious treatment of the remand. The Court was clearly expressing its displeasure at long remand times in what should have been a simple ministerial calculation. However, it was careful to limit the holding by saying “the Court appreciates that compensation claims are not monolithic and some cases, because of their complexity, may require greater efforts by the Secretary. Thus it must be clearly understood by those representing claimants (as well as the claimants themselves) that the Court will not blindly issue writs or sanctions where delay is the result of an overburdened system, rather that a disregard for the importance of compliance with a Court order.” Id. at *4.

The Court sanctioned the VA by awarding claimant and amicus curiae brief attorneys attorney’s fees. However, the Court did reduce rates from $300 and $400 an hour to $188.57 and $125 respectively. The reduction to $125 seems to have been error by the Court by using the incorrect CPI-U for the South and I know a motion to reconsider has been filed as to that aspect. If the Court were not to change that determination it could have serious repercussions to attorneys who would suddenly find their time drastically devalued and potentially cause some attorneys to question their willingness to accept these cases.

The case demonstrates the Court is clearly growing frustrated by the VA's long delays, something any practioner or veteran is well aware of, but also is a limited response to it. It surely opens the door to more motions for extraordinary relief but the success of those motions will probably depend on the nature of the remand and whether it can be characterized as ministerial.

Decided by Judges Hagel, Lance and Schoelen.

Kyhn II: Why It Is Important to Attend Your C&P Examination

Attending Your C&P Examination

In Arnold C. Kyhn v. Eric K. Shinseki, Opinion Number 07-2349, decided January 18, 2011 is a new decision after a January 15, 2010 opinion which, affirmed a denial for service connection for tinnitus in large part because the veteran did not attend his Compensation and Pension Examination.

The new decision occurred after the veteran filed for reconsideration but largely upholds the original decision. While the case had multiple issues, it largely centered on the veteran’s failure to attend the scheduled Compensation and Pension Examination. This failure served as the primary justification for the Board to deny his request for service connection.

The veteran appealed saying that he had not received notice. The Court grappled with the presumption of regularity. This presumption says the file and any required notices were handled appropriately and sent unless there is a showing by the veteran of clear evidence to the contrary.

As clear evidence to defeat the presumption of regularity, the veteran sought to rely on the fact their was no written record of the letter sent to him by the VA notifying him of the examination. The Court asked the VA for further information regarding its procedures of providing notice of examinations and the VA provided two affidavits which the Court accepted to ascertain whether the VA had an established procedure for scheduling and notifying patients of examinations. The Court ultimately found the forms were presumed to have been sent and the presumption was not rebutted by the lack of letter in the file.

From this case, the most practical lesson is that attending Compensation and Pension Examinations is very important and any notice problem should be raised immediately. .

Decided by Chief Judge Greene, and Moorman and Schoelen, Judges.

Mayhue: PTSD, Earlier Effective Dates, and TDIU

Mayhue: PTSD and Earlier Effective Dates

The decision in Samuel L. Mayhue v. Eric K. Shinkseki, Opinion Number 09-0014, decided January 18, 2011, involved fixing the proper disability rating for a veteran suffering from PTSD.

The veteran had previously applied for service connection for PTSD in 1995 but did not attend a compensation and pension examination. His claim was denied. He sough to reopen his claim in 2000 which was initially denied but then granted in 2005 effective from 2000 based on stressor verification showing his unit was attacked several times in Vietnam. The veteran appealed seeking a higher rating for his PTSD, an earlier effective date, and a TDIU. The VA increased his rating to 70% but otherwise denied an earlier effective date and TDIU.

Here, the Court applied 38 CFR 3.156(c)(2) which allows for an earlier effective rating as early as the date of the original claim when a claim is reconsidered based on newly discovered service records. The veteran had initially claimed various specific allegations including witnessing a friend’s death and fleeing from attack on road duty but was ultimately granted based on attacks on his unit. He had failed to complete a stressor worksheet and return it during but the Court said 3.156 still applied because all the VA needed to verify the attacks on his unit was his unit number.

The Court also granted remand on the claim for TDIU. The VA had only considered evidence for purposes of TDIU that was one year prior to the date the veteran specifically requested TDIU, which was in his NOD. The Court clarified the request for TDIU was not a new claim because it was received within one year of the VARO decision granting PTSD and should have been considered when determining the appropriate rating. Thus, evidence of unemployment from prior to the year before specifically requesting TDIU could come in and result in an earlier effective date for TDIU.

The veteran also sought a higher schedular disability rating for his PTSD based on a failure to provide adequate statement of reasons or bases. The Court refused to remand on this issue as the BVA had thoroughly discussed his disability picture and explained why his symptoms more nearly approximated a 70% rating than a 100% rating.

The Court’s 38 CFR 3.156(c)(2) analysis is helpful as I’ve seen several veterans claiming PTSD who were initially denied when it was determined very specific reported stressors were deemed to be unable to be verified and then they were later service connected after showing a unit was attacked.

Decided by J. Hagel, Moorman and Lance.