Johnson: 38 C.F.R. § 3.321, When Disabilities means Disability

Marvin O. Johnson v. Eric K. Shinseki, Opinion Number 10-1785, decided March 27, 2013, by a then full panel of judges interprets 38 C.F.R. § 3.321 and determined the regulation did not require the VA to consider multiple service-connected disabilities on a collective basis but only a single disability basis. 

3.321 reads:

To accord justice, therefore, to the exceptional case where the 

schedular evaluations are found to be inadequate, the Under 

Secretary for Benefits or the Director, Compensation and 

Pension Service, upon field station submission, is authorized to 

approve on the basis of the criteria set forth in this paragraph 

an extra-schedular evaluation commensurate with the average 

earning capacity impairment due exclusively to the service-

connected disability or disabilities. The governing norm in these 

exceptional cases is: A finding that the case presents such an 

exceptional or unusual disability picture with such related 

factors as marked interference with employment or frequent 

periods of hospitalization as to render impractical the 

application of the regular schedular standards.

Note the regulation seems to allow consideration of the entire disability picture.  However, the VA advanced an interpretation of the regulation stating it only meant one disability at a time.  The majority of the court seemed to think the VA interpretation was a stretch.  However, they relied on case law giving the agency substantial deference in interpreting its regulations, and thus determined that while the VA interpretation was a stretch—it was plausible. 

The decision resulted in several opinions.  A concurrence by Judge Moorman suggested he was deeply uncomfortable with the result and suggested a lower level of deference to VA interpretations of regulations in light of the pro-veteran nature of the VA.

Chief Judge Kasold penned a dissent that can justly be called a tour de force.  It persuasively argues the regulation is not ambiguous by reference to the promulgating history and VA materials and practice.  He also heads off any argument that the regulation as interpreted to mean the entire disability picture and not just a single disability can be implemented and would not result in a crush of new claims.

Judges Davis and Bartley wrote a separate dissent again hammering away at the opinion that the regulation is not ambiguous. 

Some might question the purpose of evaluating multiple disabilities under § 3.321 when § 4.16 (TDIU) is available to a veteran.  Section 3.321(b)(1) provides an alternative method of referring a case for extraschedular consideration when a claimant demonstrates an “exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of regular schedular standards.”  Section 4.16(b) requires evidence of unemployability, while § 3.321(b)(1) requires only “marked interference with employment,” which is a somewhat less severe standard.  In other words, a claimant need not demonstrate total unemployability to obtain a § 3.321(b) extraschedular disability rating.

This decision eliminates a route of compensation from the veteran who is still working, but must deal with marked interference with employment or frequent periods of hospitalization from the use of extraschedular considerations when it is multiple disabilities that disable the veteran.

Based on the splintered nature of the decision, it seems likely the case will be the subject of an appeal.

Kelley: Exclusive Contact No More…Or Not

Douglas L. Kelley v. Eric K. Shinseki, Opinion Number 12-1829, decided May 3, 2013, concerns a writ of mandamus filed by the veteran requesting the VA direct it’s verbal communications toward the veteran’s attorney and not the veteran.

The VA used to allow attorneys to send a written request that all communication be directed toward the attorney.  Many advocates used this to make sure they stayed up to date on the case and also to make sure the veterans they represented did not make accidental admission to the VA that would harm their case.  In November 2012 the VA changed its regulations such that it stopped honoring these requests for exclusive contact.

In this case, the veteran sent an email to the RO regarding his claim and appeared to copy multiple people on the email, including his attorney, legislative staff and the President.  His email appears to have complained about the generally slow pace of decision making.  In response to the email, a RO assistant manager contacted the veteran by telephone to discuss the status of his appeal.  The veteran contacted his attorney with the RO response.

The veteran’s attorney contacted the RO several times about this contact and was told the exclusive contacts policy had been eliminated.  

The veteran filed a writ of mandamus with the Court requesting an order directing the VA to communicate only with counsel because the VA was prohibiting the veteran from benefiting from advice and representation of counsel and interfering with the attorney-client relationship.  

The Court recognized the repeal of the exclusive contact policy and looked at the veteran’s argument, but could not find that the RO had actually interfered with the attorney-client relationship or hindered him from consulting with this counsel.  

Still, the Court waived a flag of caution to the VA.  They stated the “Court is concerned that the new direct contact policy is unlimited in its scope”.  Id. at *11.  The acknowledged possible communication can be ministerial (such as was the case here), but could also extend to communication that would interfere with the attorney-client relationship and the statutory right to counsel.  The Court noted the VA offered no evidence or data demonstrating contact through counsel was slower and noted the new policy could create needless confusion.

Thus, the Court sanctioned the end of the exclusive communication policy, but suggested direct communication might have its limits.  A savvy practitioner will now reference this decision in a letter to the VA regarding client contact,, the savvy veteran will be wary of talking directly to the VA, and hopefully the VA will promulgate new rules that allow ministerial communication as opposed to substantive communication.

Decided by Judges Moorman, Schoelen, and Pietsch.

Romanowsky: Adjustment disorder and Examination Inadequacy

Steven M. Romanowsky v. Eric K. Shinseki, Opinion Number 11-3272, decided May 9, 2103, concerns a Board decision where the Board relied on a C&P examination report whose findings were diametrically opposed to a service examination conducted just 6 months prior.

After 10 years in the service, the veteran was diagnosed with an adjustment disorder by an examination and assessment in May 2008.  The veteran was administratively discharged in October 2008 because of the adjustment disorder.  The veteran filed for veteran benefits based on the adjustment disorder in November 2008, and received a VA examination on December 2008.  The VA examiner noted the previous diagnosis of adjustment disorder but did not himself diagnose the veteran with adjustment disorder.

The veteran was denied service connection in January 2009 by RO and by the Board in July 2011.  The basis for the decision was that the veteran did not have a current disability for service connection purposes.

The Court remanded.  They found the veteran’s prior diagnosis on May 2008 could prove the current disability element.  They also took the December 2008 examination to task, saying it was inadequate because the examiner did not explain if the May 2008 diagnosis of adjustment disorder was incorrect or if it had resolved.  He also did not state whether the diagnosis was chronic or acute, which is important for rating purposes. 

The Court seemed to consider reversing and granting service connection themselves and in fact noted the clearly erroneous standard is less deferential than the substantial evidence standard applied to non-VA administrative reviews.  However, the Court ultimately reversed and remanded but seemed to speak strongly to the VA by saying the “Court expects the Board to resolve the appellant’s claim of service connection expeditiously and accurately once remanded.”

The decision is one of the first authored by the new Judge William Geenberg and based on some of the rhetoric seems to suggest he might be surprised by the VA’s errors in the adjudicatory process and open to reversing and granting service connection rather than sending a case back into the seemingly endless game of pinball that is sometimes the VA decision making process.

Decided by Judges Moorman, Schoelen, and Greenberg.