Burton: Painful Motion, Pyramiding, and Issue Preservation

Burton: Delucca Applied to More Than Arthritis

Russell W. Burton v. Eric K. Shinseki, Opinion Number 09-2873, decided August 4, 2011 involved a veteran’s claim for a higher rating for a shoulder disability.

The Board decision was initially affirmed by a single judge decision but then affirmed only in part by a full panel.

Importantly, the VA initially argued that 38 CFR section 4.59 only applied to arthritis claims. The Court rejected such an argument by reviewing the language of the section in its entirety. Instead, the Court determined that “When §4.59 is raised by the claimant or reasonably raised by the record, even in non-arthritis contexts, the Board should address its applicability.” Id. at *6.

The Court then turned to a discussion of the facts. They found the Board had mostly considered section 4.59. However, for a small period of time the Board had not discussed painful movement. Specifically, the VA said a VA examination found full range of motion when instead the report listed the veteran’s subjective complaints of pain on motion and then recorded his range of motion without addressing whether he had any actual pain on motion. Id. at *7. The Court found the Board provided inadequate reasons or bases and remanded.

The Court also considered the veteran’s argument that he should receive two separate disability ratings for abduction and flexion limitations to his shoulder. The Court found these limitations arise from one disability, and the law does not permit separate ratings under each circumstance. The Court also seemed to raise the specter of issue preservation by saying the record on appeal does not reflect that Burton raised this argument to the Board. This seems to suggest that issue preservations might be met receptively by the Court in the future, a development that would only assist the VA and put unrepresented veterans at a significant disadvantage.

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

Evans: What's in a VA Form 9, Again

James I. Evans v. Eric K. Shinseki, Opinion Number 08-2133, decided August 4, 2011 involves the court’s reconsideration of a previous January 2011 decision and specifically concerns 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 succinctly stated the issue as “whether the Board erred in determining that a claimant limits his appeal to certain specified issues when he files a VA Form 9 in which he checks the box indicating his desire to appeal ‘ALL OF THE ISSUES LISTED ON THE [SOC]’, but also specifies on the Form 9 arguments as to some, but not all, issues listed in the SOC.”

The Court initially 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. In its reconsidered opinion, the Court narrowed its decision and found “the Board’s unexplained statement that the appellant had limited his appeal by the manner in which he completed his VA Form 9 constitutes error. It fails to adequately provide reasons or bases for the dismissal of the remaining issues.” Id. at *10. The Court then went on to say that “the veteran-friendly process requires VA at the RO or Board to seek clarification and communicate with the appellant as to any perceived concern about how the appellant had filled out the Form 9.” Id. at *11.

A concurring opinion by Judge Lance preferred a bright line test that the VA should have considered all claims because of a fear that the VA will simply dismiss the claim again and it result in yet another appeal to the Court. Judge Lance’s opinion seems to betray a concern with the sometime seemingly endless process which veterans have to go through.

Decided by Judges Moorman, Lance and Schoelen.

Shipley: An Earlier Effective Date Under 38 CFR 3.156(c)

Dale R. Shipley v. Eric K. Shinseki, Opinion Number 09-197, decided June 30, 2011 involved a veteran’s claim for an earlier effective date for a 70% PTSD rating.

This Vietnam veteran had applied for various claims in 1994 and in 1995 was denied for all but the PTSD claim which was held open as the VA attempted to verify his PTSD stressor. The veteran filed a NOD in 1995 for all claims. The PTSD claim was finally decided and denied by the VARO in 1996. The veteran did not file a NOD for that claim.

In 2002 the veteran filed to reopen the claim and in 2005 was service connected for PTSD effective 2002 based on a March 1967 battle involving his brigade that specifically required all cooks, clerks, and other available personnel to block the penetration of the infantry’s perimeter. The veteran sought an earlier effective date.

First, the veteran argued that his 1995 NOD put the PTSD claim into appellate status, however, the Court found the RO did not issue any decision on the PTSD claim until 1996. Because the 1995 decision deferred a decision on the PTSD claim until more research could be conducted into the stressor, it was not a final decision and not subject to being appealed.

Second, the veteran argued that 38 CFR 3.156(c) allowed for an earlier effective date in reopened claims that are granted on the basis of newly acquired service department records. Specifically, in 2003, the veteran had his DD-214 corrected to include the Presidential Unit Citation. He also submitted a printout from a private website showing an April 1967 recommendation for the Presidential Unit Citation due to the March 1967 battle. Section 3.156(c) requires that the newly acquired documents have existed prior to the first determination and that the veteran had submitted sufficient information for the VA to identify and obtain the records.

The Court said: “In this case, VA had, at the time it initially denied the PTSD claim in August 1996, the appellant’s dates of service in Viet Nam, his unit assignment, and evidence that he worked as a cook. Moreover, VA had the appellant’s reported stressors, namely, taking the field with the 4^th Infantry Division, being exposed to gunfire while working patrol, and being part of a battle in which 717 Viet Cong and 100 Americans were killed. It is therefore unclear why VA, before rendering a decision in August 1996, did not obtain the PUC narrative, a report all but confirming the appellant’s account”. Id. at *8.

The VA tried to argue the printout showing the PUC recommendation was from a private website and not an official document, however, the Court found the original copy of the document would constitute an official service department record.

Judge Hagel went further and in a separate decision said he would vote to not just remand but order the VA to assign an earlier effective date.

The case is an important reminder to keep up with your case and file the appropriate notices whether they be a notice of disagreement or a Form 9. This can be complicated when multiple claims exist at various stages important. Additionally, the case shows the power of seeking an earlier effective date when the VA has failed to properly develop a claim before denying and the power of private records, many of which are available online.

Decided by Judges Hagel, Moorman and Schoelen.