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

Wednesday, September 28, 2011

DeLisio: Effective Dates of a Secondary Condition

Lawrence DeLisio v. Eric K. Shinseki, Opinion Number 09-0404, decided August 24, 2011 involved among other things a claim for service connection for diabetes and peripheral neuropathy (secondary to diabetes) as a result of exposure to pesticides under Nehmer. Specifically, the court had to “resolve the novel issue of whether a disability that is secondarily service-connected can have an effective date earlier than the date a claim was filed explicitly for the primary service-connected disability.” Id. at 1. The Court found that under these limited facts, it could.

The veteran served in Vietnam and in 1980 filed for service connection of “numbness in his left leg”, this claim was never adjudicated. He refilled in 1994 for peripheral neuropathy and this claim was not adjudicated in 2006 when he was diagnosed with diabetes and applied for service-connection for his diabetes.. Importantly, in 2001 diabetes was added to list of herbicide diseases presumptively associated with Agent Orange exposure by Vietnam veterans. Thus, the veteran became a Nehmer class member and potentially entitled to an effective date earlier than the date presumptive service connection for diabetes was authorized. The Board service connected and granted 1 year before the 2006 application.

The court found if (1) a claimant files a claim for benefits for a condition, (2) the case remains open and not finally adjudicated, and (3) the cause of that condition is determined to be a disease or disability incurred in or aggravated by service, then the effective date for both the secondary and primary service-connected disease or disability can be as early as the date of the open claim. Id. at 12.

The VA argued a veteran must file a claim explicitly for the causal or primary disease or disability to establish entitlement to a secondary condition. However, the court rejected the argument and noted the veteran friendly nature of the law and that the VA must investigate the reasonably apparent and potential causes of the veteran’s condition and theories of service-connection that are reasonably raised by the record. Id.at *10.

The court limited its decision by saying:

It is important to note that we do not hold that a claim for benefits reasonably encompasses a claim for unclaimed disabilities that are not a cause of the condition for which benefits are sought, or for unclaimed benefits that arise as a result of the condition for which benefits are sought…. Rather, we hold that, when a claim is pending and information obtained reasonably indicates that the claimed condition is caused by a disease or other disability that may be associated with service, the Secretary generally just investigate the possibility of secondary service connection; and, if that causal disease or disability is, in fact, related to service, the pending claim reasonably encompasses a claim for benefits for the causal disease or disability, such that no separate filing is necessary to initiate a claim for benefits for the causal disease or disability, and such that the effective date of benefits for the causal disability can be as early as the date of the pending claim.

Thus, the court remanded to the Board whether the claim’s effective date for both the peripheral neuropathy and diabetes mellitus should be 2006, 1994, or 1980.

Decided by Chief Judge Kasold, and Judges Hagel and Lance.

Friday, September 16, 2011

DeLuca and Functional Loss Caused by Pain Reviewed

Michell: DeLuca and Functional Loss Caused by Pain Reviewed

Tyra K. Mitchell v. Eric K. Shinseki, Opinion Number 10-2169, decided August 23, 2011 grappled with the question whether pain, by itself, throughout a joint’s range of motion constitutes a functional loss entitling the veteran to a higher disability rating.

This was a pyric victory for the veteran as the Court held that “pain alone does not constitute a functional loss under VA regulations that evaluate disability based upon range-of-motion loss. But, because the Board erroneously relied upon a VA medical examination that did not adequately address whether the pain resulted in a functional loss in this case.” Id. at *1.

It is undisputed that under 38 CFR Section 4.40 functional loss (reduced normal excursion, strength, speed, coordination or endurance) can be caused by pain. Section 4.45 also discusses functional loss in the joints and the court has previously found “a functional loss caused by pain must be rated at the same level as if that functional loss were caused by some other factor (e.g., deformity, adhesion, atrophy, tendon-tie-up …) that actually limited motion.” Id. at *8.

“What the foregoing discussion suggests, then, is that pain itself does not rise to the level of functional loss as contemplated by the VA regulations applicable to the musculoskeletal system. Pain in, like deformity of or insufficient nerve supply to, a particular joint may result in functional loss, but only if it limits the ability ‘to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance.” Id. at *8.

The veteran framed the question before the court as to whether she is entitled to the maximum ratings because painful motion is deemed to be limited motion even if there is no actual limitation of motion. Id. at *9. The court rejected this question and seemed to be concerned with absurd situations where a slight pain in the knee throughout all ROM would result in a greater rating than a situation where another veteran had an actual limitation of flexion and extension.

It is clear the veteran was trying to find a good case that made law saying painful motion that makes a certain range of motion limited should qualify for the same rating that range of motion from another disability would qualify for. This is a sensible reading of the regulations and case law and essentially what advocates have argued for years.

The result will probably be a motion seeking a full panel decision as well as a potential appeal above. On a day to day level, veterans will need to tie the pain to perform normal working movements of the body with normal excursion, strength, speed, coordination or endurance.

Of course, the Court did ultimately find for the veteran by saying the medical examination was inadequate because it did not detail limitations on pain and flare-ups of pain. It seems to me the Court is trying to squeeze too hard for information that has previously been a matter of saying that a veteran could flex or extend x amount with pain and x amount without pain. Asking for a physician to discuss how pain impacts excursion, strength, speed, coordination or endurance is simply asking too much.

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

Thursday, September 1, 2011

Russell: JMR Enforced

Russell: The Power of a JMR

Margaret R. Russell v. Eric K. Shinseki, Opinion Number 10-3282, decided August 11, 2011 involved veteran’s motion to reconsider an order of dismissal that did not expressly incorporate the terms of the joint motion for remand.

The Court clarified that terms of a JMR are always enforceable by the Court even if the order dismissing the case does not expressly incorporate the terms of the JMR. The Court also clarified that a writ of mandamus is “an extraordinary remedy not to the granted when, inter alia, the veteran possesses adequate alternative means to obtain the desired relief, such as the ability to appeal a decision through the appeals process”. Id. at *2.

The purpose of this decision seems to be to reiterate the VA must follow the JMR even if the JMR is not expressly incorporated into the Court’s order. It also shows the power of a JMR and the need to carefully consider the VA’s proposed language.

Decided by Chief Judge Kasold, and Judges Hagel and Lance.