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

Thursday, April 28, 2011

Arneson: Do all Board panel members have to attend a personal hearing

Arneson: Do all Board panel members have to attend a personal hearing

Robert H.Arneson v. Eric K. Shinseki, Opinion Number 09-953, decided April 20, 2011 concerns a Board panel decision where the veteran had a personal hearing at separate times before 2 of the 3 panel members but never had the opportunity for a hearing before the 3rd panel member.

The veteran had a hearing before one board member who remanded the claim for a medical opinion and then the RO granted partial service connection. A second personal hearing was held before a second board member. Several months later the Board assigned a panel to decide the appeal and two months later the panel denied for the additional service connected disabilities. The Board found the veteran and his sister credible but noted a 30 year lapse between service and the first treatment for the disability and gave greater weight to the medical opinions denying service connection.

The veteran argued he did not have the opportunity of a personal hearing before all Board members who decided the appeal.

The Court agreed with the veteran and found “If the claimant’s appeal is assigned to a Board panel in a piecemeal fashion, that claimant must still be afforded the opportunity for a hearing before every member of the panel that will ultimately decide his case. This is not to say that the claimant must be afforded a hearing before every panel member at the same time; only that he be afforded the opportunity to be heard—be it in-person, telephonically, or via video conference—be every panel member whil will decide his case.” Id. at *10.

The decision is important because it ensures a veteran has the opportunity to be heard before every Board decision maker and has application to any number of cases that were decided before this opinion.

Decided by Chief Judge Kasold and Judges Lance and Schoelen.

Wednesday, April 20, 2011

Medication Co-Pays: How Much Can the VA Charge

Heino: Medication Co-pay

William H. Heino, Sr. v. Eric K. Shinseki, Opinion Number 09-112, decided April 11, 2011 involves VA regulations requiring a veteran pay a co-pay for medication prescriptions.

The facts are simple. The veteran had a prescription for a medication that requires that he split the pill in half and take one half every day. The VA has a $7 prescription drug co-pay and the veteran believed that since he was only getting 15 pills he should only pay a $3.50 co-pay.

38 USC 1722A set the prescription co-pay at “$2 for each 30-day supply of medication” but allowed the VA to increase that amount but said the VA may not require a veteran pay an amount in excess of the cost to the VA of the medication. VA regulations increased the amount to $7 in 2002.

Initially, the Court rejected the veteran’s argument based on the plain language of the statute that requires the co-pay “for each 30-day supply of medication”. “[T]he statute does not require a copayment for 30 doses of medication, but rather for a 30-day supply of medication—regardless of the dosage prescribed for the 30-day period.” Id. at *7. “Moreover, the statute expressly provides that “if the amount supplied is less than a 30-day supply, the amount of the charge may not be reduced.” Id. at *7.

The Court spent a longer time on the limitation of the co-pay amount to the “cost to the Secretary”. The VA argued this cost includes the cost of dispensing the prescription. The Court found the statute’s language does not clearly address administrative costs but found the VA’s interpretation that it does to be reasonable. The Court seemed to accept as a matter of faith that administrative costs drove the amount to at least $7 as there is no plain accounting of these costs in the decision. I think the Court was essentially saying it was administratively more feasible to assume the $7 was fair rather than have the VA do a cost analysis on each drug it prescribes and then set the amount.

Judge Hagel dissenting regarding the inclusion of administrative costs and essentially said the plain language of the statute is the cost of the drug to the Secretary and that should mean what the Secretary paid for it. He also found that private pharmacies manage to determine the prices and profit margins on drugs and isn’t sure why the VA could not do the same.

Overall, I am sympathetic to the Court and the VA’s desire to avoid doing a cost analysis on every single drug but find Judge Hagel to be legally more persuasive.

Decided by Judges Moorman and Schoelen with J. Hagel dissenting.

Monday, April 18, 2011

CUE: How Many Bites at the Apple Do You Get?

Hillyard: CUE, How Many Bites At the Apple Do You Get?

Joseph C. Hillyard v. Eric K. Shinseki, Opinion Number 08-1733, decided March 29, 2011 involves the ability of a veteran to filed a second motion to revise in light of CUE after having been previously denied a similar motion on a different theory.

The veteran suffered a head injury and later made a claim that it caused a mental condition. Such claim was denied by the Regional Office and Board. In 2001, the veteran filed a motion to revise the Board’s decision based on CUE because the Board failed to adjudicate a claim for an adjustment disorder and did not discuss whether such disorder pre-existed service. The motion was denied.

The veteran filed another motion to revise the Board’s decision based on CUE in 2006 and this time argued the Board had a duty to sympathetically read his claim and apply 38 USC § 105(a) and 1111. The Board determined that although the arguments in support of the veteran’s 2006 motion were different from the 2001 motion, the arguments pertained to the same issues and therefore the later motion should be dismissed.

Before the Court, the veteran argued because a motion to revised based on CUE must be plead with specificity, a claimant remains free to make a new motion based on an unraised theory.

The Court had to wrestle with two competing Federal Circuit decisions. In DAV v. Gober, 234 F.3d 682 (Fed. Cir. 2000), the Federal Circuit upheld the validity of 38 CFR 20.1409(c) (which says once a final decision on a motion to revise is made regarding a prior Board decision on an issue, that prior Board decision on that issue is no longer subject to revision on the grounds of CUE and subsequent CUE motions will be dismissed). Whereas in Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009), the Federal Circuit stated each new CUE theory is independent for res judicata purposes, so a narrow reading of what CUE theories were raised would work no disadvantage to the claimant, as any unraised theories could be raised in a new CUE action.

The Court ultimately accepted DAV as controlling because it contained a clear discussion of 38 CFR 20.1409(c) and the decision promoted judicial economy and finality. Thus, the Court affirmed the dismissal of Hillyard’s CUE claim. The Court recognized the Board could attempt to foreclose a CUE challenge by declaring a CUE challenge on its own initiative, defining the issue, and thus precluding a veteran from being able to bring a subsequent CUE challenge of the underlying Board decision at a later time. The Court stated its trust that VA adjudicators would not improperly preclude a veteran from raising an issue of CUE by labeling the issues in such a manner that would prevent a later CUE challenge.

The Court reiterated that an appellant has only one opportunity to raise any allegation of CUE for each claim decided in a Board decision and any subsequent attempt will be dismissed. The Court then defined a claim as an informal or formal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit, and reiterated that a CUE claim is a motion or request rather than a claim.

Decided by Judges Greene, Hagel and Schoelen.

Wednesday, April 13, 2011

Reinstating DIC for Remarried Spouses

Frederick: Reinstating DIC for Remarried Spouses

Ruth Hill Frederick v. Eric K. Shinseki, Opinion Number 09-0433, decided March 11, 2011 involves the application of a law that liberalized the ability to continue to receive DIC for remarried surviving spouses.

Prior to 2003, a spouse that remarried lost their ability to receive DIC payments. This limitation was liberalized in 2003 to allow the surviving spouse to continue to receive payments if they remarried after the age of 57.

Frederick had received DIC payments but stopped receiving them when she remarried in 1986 at the age of 57. In 2007 she found out about the change in law and sought reinstatement of the DIC benefits. The VA denied her because she sought reinstatement of the benefit more than one year after the passage of the law. Importantly, an uncodified provision of the law said “an individual shall be eligible for such benefits by reason of such amendment only if the individual submits an application for such benefits to the Secretary of Veteran Affairs not later than the end of the one-year period beginning on the date of the enactment of this Act.”

Frederick argued the time limit applied to claimants who remarried after the age of 57 and prior to the enactment of the law, but who had never previously applied for DIC whereas she was not applying for DIC but seeking reinstatement of the benefit.

Simply put, the Court accepted her argument based on a plain reading of the statute and its general liberalizing purpose. The Secretary tried to rely on legislative history that tended to show Congress was compromising and meant to use the time limit to limit the budgetary impact of the legislation. The Court noted the legislative history was less than clear and that in any case the plain meaning of the legislative language was clear.

The decision is very important as it opens up the possibility that a surviving spouse whose DIC payments were stopped on remarriage can have it reopened if that remarriage was after the age of 57.

Decided by Chief Judge Kasold and Judges Hagel and Moorman.

Thursday, April 7, 2011

What is Hospital Care in a Section 1151 Claim?

Bartlett: What is “Hospital Care” in a 38 USC 1151 Claim?

Michael J. Bartlett v. Eric K. Shinseki, Opinion Number 08-4092, decided March 10, 2011 involves whether an injury occurred during “hospital care”.

The veteran was attacked by another patient while he was in a lock-down psychiatric ward and when he was standing in line in the hospital cafeteria. The attacker was considered dangerous by the hospital and was escorted by two hospital staff members.

The veteran alleged back and neck injuries and filed a claim under 38 USC 1151, which provides for compensations for VA fault in certain circumstances (VA negligence while providing hospital care, treatment or examination). The VA denied the claim because the veteran was not injured as a result of hospital care (his injuries did not arise as a result of the provision of care by the hospital and also because they were the result of a third-party attack that was merely coincidental to his hospitalization.

The Court framed the question as whether “hospital care” under section 1151 includes general supervision of patients in lock-down psychiatric wards or more specifically protecting a patient from a other patients known to be hostile.

The Court acknowledges that section 1151 requires fault on the part of the VA but found the veteran was claiming supervision of patients in a lock down psychiatric facility is hospital care and the negligent performance of that supervision caused his injury.

The Court defined hospital care as at a minimum including “the provision of services unique to the hospitalization of patients.” And says, “Although we will not further define “hospital care” or “patient” in the abstract, the determination as to whether a situation involves “hospital care” will depend on a variety of factors, including the nature of the services, the degree of VA control over patient freedom, the mental and physical conditions of the patients, and the foreseeability of potential harms.” Id. at *7.

The Court found they had the “firm conviction” that in this case, the veteran’s injury involved hospital care because he was in a psychiatric lock-down facility where the VA staff controlled his movement and mandated his presence at the cafeteria and where the facility allegedly contained unstable and dangerous patients for whom the VA staff provided escorts. Id. at *8.

The Court also rejected the VA’s argument that all altercations or attacks caused by a third-party cannot be caused by “hospital care”. The Court “expressly reject the Secretary’s argument that Mangham broadly held that injuries due to third-party actions in all situations are intervening acts and per se not caused by hospital care, treatment, or examinations. The attack in Mangham occurred in the cafeteria of a domiciliary facility and involved no medically related supervision of the veterans present at the time of the accident”. Id. at *9.

The Court also rejected the VA’s argument that the Federal Tort Claims Act served as a remedy and precluded section 1151 benefits.

This case serves as an important expansion of section 1151 benefits. It might also serve as the legal foundation for further expansions where the VA is not properly supervising third-party actors who have a history of aggression.

Decided by CJ Kasold and Judges Moorman and Davis.

Wednesday, April 6, 2011

Ervin: When Does a VA Amendment Apply to a Case Before the Court?

Ervin: When Does a VA Amendment Apply to a Case Before the Court?

Larry D. Ervin v. Eric K. Shinseki, Opinion Number 08-3287, decided March 9, 2011 involves the application of the amended PTSD regulations.

The case was initialed decided by the Court on July 19, 2010 and the Court affirmed the VA’s denial of a PTSD claim. However, just days prior to the decision, on July 13, 2010, the VA amended 38 C.F.R. 3.304(f). The amendment liberalized the proof necessary for PTSD claims involving noncombat veteran’s lay testimony that a stressor occurred. Specifically, this veteran was a noncombat veteran who was on a tower during basic training when the tower fell and he was nearly drowned. As a result, he claims he developed PTSD.

The amended regulation states that

If a stressor claimed by a veteran is related to the veteran’s fear of hostile military or terrorist activity and a VA [physician] confirms that the claimed stressor is adequate to support a diagnosis of posttraumatic stress disorder that the veteran’s symptoms are related to the claimed stressor, in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the places, types, and circumstances of the veteran’s service, the veteran’s lay testimony alone may establish the occurrence of the claimed in-service stressor.

See 38 C.F.R. 3.304(f).

The Court had affirmed the denial but the Court reversed and remanded in light of the amendment. The VA argued the amendment did not apply to this case but the court rejected this argument and said the claim was not finally decided when the regulation was promulgated.

The case as precedent for PTSD claims will have a only a very narrow application. However, it may prove helpful in future cases where the VA promulgates a regulation when a case is before the Court.

Decided by Judges Moorman, Davis and Schoelen.