The Accidental Fugitive

Mountford: The Accidental Fugitive

Steve W. Mountford v. Eric K. Shinseki, Opinion Number 09-1759, decided June 21, 2011 involves a veteran who was found to be a fugitive and had received $63,000 in excess benefits.

38 USC 5313B bars veterans and dependents from receiving benefits while they are fugitive felons. The veteran was service connected in 1978 for schizophrenia and pled guilty in 1994 to felony burglary. He was placed on probation and that same year violated his parole resulting in a 1994 arrest warrant that was not served for nearly 10 years. In 2004 the VA notified the veteran that his benefits were being suspended because of his fugitive felon status, as a result the veteran turned himself in and was sentenced to time served. His benefits were terminated in 2004, however a 2004 VA letter erroneously stated his benefits had been reinstated. The VA determined he received $63,000 in excess benefits (his benefits from 1994 until 2004).

The Court considered whether an adjudication of guilt was required to trigger the fugitive felon statute. The statute specifically says a probation violation makes a veteran a fugitive felon, which then turned the case to whether a “commission” of a felony was required. The Court determined a guilty plea was enough. Specifically, the veteran admitted all facts necessary to find him guilty of felony burglary but that in lieu of finding guilt, the judge granted leniency and withheld a guilty judgment pending compliance with probation.

Judge Kasold dissented and essentially argued the veteran was not a fugitive felon because he was not fleeing and actually had no knowledge of the arrest warrant. Additionally, he found nothing in section 5313B permits the Secretary to recover benefits already paid and only prohibits the Secretary from making payments after the Secretary become aware of the fugitive felon status. He also noted that a 2004 VA decision reversed the recoupment action but that such action was later reinstated in 2006 and found that as the 2004 decision was final, a finding of CUE was necessary.

This is a curious case with unusual facts that raise questions that will probably have to be settled by a the whole court or the DC Circuit Court of Appeals. In short, it looks like the law was upheld and the result was an injustice done.

Decided by C.J. Kasold, and Judges Lance and Davis.

Kahana: Lay Statements and VA Medical Examinations

Rick K. Kahana v. Eric K. Shinseki, Opinion Number 09-3525, decided June 15, 2011 thoroughly explains how the VA should address the competency and credibility of lay statements as well as addressing an improper assertion in a VA request for a VA examination.

This is an important decision. It seeks to flesh out how the VA should weight the competency and credibility of lay witness and seeks to maintain the impartiality of VA physicians who perform compensation and pension examinations.

The veteran sought entitlement to service connection for a right knee disability secondary to a left knee disability. The veteran’s SMRs made no reference to a right knee disability despite him saying that during service his right knee snapped during an in-service kickboxing tournament, he thought it was an ACL injury, and he went to a clinic which found it was sprained. In a 2009 VA examination, the physician determined the veteran injured his right knee while in service and also concluded the veteran’s right knee injury resulted from a habit of putting more weight on his right knee after a left knee injury. This examination did not review SMRs or VA records. The VA sought a new opinion which reviewed the SMRs and specifically stated in the request “no right knee injury in service”. A subsequent 2009 opinion by the same physician said the SMRs did not document a right knee injury and concluded the injury was not service connected.

The Board denied service connection saying the veteran’s assertion that he tore his ACL was not credible and he was not competent to give a medical nexus as to an ACL tear. It also found that if he had torn his ACL it would have required treatment and been recorded in his SMRs.

The veteran argued on appeal that the Board made an improper medical finding that a torn ACL would have necessitated treatment which would have shown up in the SMRs, that the VA’s request for a revised medical opinion impinged on the examiner’s impartiality by saying the veteran had not suffered a right knee injury in service, and the Board failed to provide adequate reasons or bases for rejecting his lay testimony based on a lack of supporting SMRs.

The Court agreed that the VA violated Colvin when it found an ACL tear is so significant that it should have resulted in an entry in the SMRs. Colvin said that the Board must consider only independent medical evidence to support is findings rather than provide its own medical judgment in the guise of an opinion. The Court found “the Board was making a medical determination as to the relative severity, common symptomatology and usual treatment of an ACL injury without citing to any independent medical evidence to corroborate its findings.”

Regarding the veteran’s competency to testify why his right knee disability is secondary to his left knee disability, the Court found “the Board’s categorical rejection and failure to analyze and weigh the appellant’s lay evidence” was error. The Court repeated that lay testimony is competent to establish he presence of observable symptomatology and may provide sufficient support for a claim of service connection. It also noted “there is no categorical requirement of ‘competent medical evidence when the determinative issue involves either medical etiology or a medical diagnosis.”

The Court also found the request for a new opinion with a note that “no right knee injury in service” was error. The Court found the situation was similar to the one in Austin v. Brown, 6 Vet. App. 547 (1994) which dealt with a request for a medical opinion when the request stated “clearly, the veteran’s in-service chest injury was not related to his fatal pulmonary emphysema”. In Austin, the Court found the Board’s instruction to the physician indicated a lack of “impartiality” and “creates the impression the Board was no securing the evidence to determine the correct outcome, but rather to support a predetermined outcome.” Here, the Court found it “is left unsure whether the examiner revised her opinion based on additional evidence she reviewed or because she felt coerced”.

If the opinion was not already a tour de force, Judge Lance wrote a concurring opinion where he discussed the relationship between competence and credibility of a lay witness and the proper relation between the Board and VA medical experts. In it, Judge Lance said “The question of whether a particular medical issue is beyond the competence of a layperson—including both claimants and Board members—must be determined on a case-by-case basis. Simply put, any given medical issue is either simple enough to be within the realm of common knowledge for lay claimants and adjudicators or complex enough to require an expert opinion. However, … even if a layperson is not competent to diagnose or determine the cause of a particular condition, lay evidence is still competent to establish the occurrence of observable events and medical symptoms…. Board decisions that make blanket statements about lay competence while failing to acknowledge and discuss the competent lay testimony of observable symptoms will face a rocky road on appeal.”

Judge Lance then turned his attention toward the credibility of a witness and noted differences occur when lay testimony is either 1) not corroborated or contradicted by other evidence or 2) evidence exists supporting or contradicting the lay testimony. He then considered the situation where a contemporaneous SMR does not record the alleged injury or disease. Of course, regarding combat related disabilities, the VA must presume lay evidence is credible if it is consistent with the circumstances. The situation arises in non-combat related disabilities where the VA may use silence in the SMRs as contradictory evidence only if the alleged injury or disease would ordinarily have been recorded in the SMRs. Judge Lance explains the VA must first find the SMRs appear to be complete, at least in relevant part. If the SMRs are not complete, “then silence in the SMRs is merely the absence of evidence and not substantive negative evidence.” Next, the VA must determine if the injury or disease would ordinarily have been recorded if they had occurred.

Regarding the VA and its medical experts, Judge Lance reiterated that the question posed to the medical expert must be neutral in tone. However, he does say it is appropriate in some situations for the Board to make a factual determination and relay that to the physician.

Decided by Judges Moorman, Lance and Schoelein.

Murray: Protecting a Protected Rating

Daniel J. Murray v. Eric K. Shinseki, Opinion Number 09-0158, decided June 15, 2011 concerns a reduction of a disability that should have been protected.

The veteran had suffered a left knee disability that resulted in 1983 in a 10% rating for recurrent subluxation or lateral instability. Later, the veteran sought a ratings increase and the VA found the left knee had developed arthritis related to the left knee but also found the recurrent subluxation or lateral instability had resolved. This resulted in a 2008 VARO decision that reclassified the veteran’s disability as a left knee injury with arthritis and replaced or eliminated the rating for recurrent subluxation or lateral instability. The Board affirmed in 2008.

The problem is that under 38 CFR section 3.951(b), a disability which has been continuously rated at or above any evaluation of disability for 20 or more years cannot be reduced except upon a showing of fraud.

The VA tried to argue pyramiding applied but the court rejected saying “If the appellant’s symptoms are ‘distinct and separate,’ then the appellant is entitled to separate disability ratings for the various conditions” and citing VA General Counsel Precedent Opinions to support the conclusion that allow for separate disability ratings related to the same knee injury.

The Court really took the VA to task on section 3.951(b) and found the VA effectively eliminated the protected subluxation disability rating because they found it resolved. The VA tried to argue they simply shifted from one rating to another but the Court found the result was to reduce the protected disability.

The Court took the unusual step of reversing the VA’s decision and re-imposing the protected 10% award for the subluxation and assigning a new 10% rating for arthritis.

Decided by Judges Hagel, Moorman and Davis.