Roberts: SBP and DIC Offsets and Non-prejudicial Error

Jacqueline S. Roberts v. Robert A McDonald, Case Number 13-1240, decided October 7, 2014 concerns the VAs attempt to offset a DIC award by the amount of SBP benefits a surviving spouse received.

While alive, the veteran had his monthly disability award reduced under the Surviving Benefits Plan (SBP) and after his death, the spouse began to receive SBP payments.  Meanwhile, the spouse also filed a DIC claim  Five years later, DIC was awarded with an effective date of her husband’s death.  Shortly thereafter, the RO was told by the Defense Finance and Accoutning Service that the wife had received approximately $30,000 in SBP payments and the RO decided to withhold that amount from DIC payments (basically withheld the past due DIC benefits) based on 38 C.F.R. Section 3.658.  The spouse appealed.

The Court heard the case and agreed to vacate and remand for a new decision.  By law a survivor cannot receive both SBP and DIC.  However 10 U.S.C. Section 1450 appears to apply to overpayments of SBP, and states a reduction in SBP payment may be made, but not of the DIC.  The statute also allows limited authority for the DoD to recoup SBP payments, but also includes safeguards for the survivor.  The VA conceded to the Court that 38 C.F.R. Section 3.658 did not apply, but argued other statutory and regulatory provisions authorize the VA to deduct SBP payments from a DIC award and therefore there was no prejudicial error.

The Court vacated and remanded for a new decision that takes into account all regulations and statutes.  The Court also rejected the non-prejudicial error argument.  They said the point of a statement of the case as issued by the VA is to give the veteran notice of the authority relied upon and thus give the opportunity to challenge the decision on the correct legal basis or authority.  Id. at *6.

While this case deals with a rather narrow issue, its consideration of non-prejudicial error and rejection of the VA position that failing to address the proper statute or regulation is not important because the point of a Statement of the Case is to give a veteran an opportunity to challenge a decision on the correct legal basis or authority is potentially applicable to a broad number of cases.

Authored by Judge Moorman and joined by C.J. Kasold and Judge Bartley.

Thomas Andrews is an attorney in Columbia, South Carolina.  You can visit his website at http://thomasandrewslaw.com/

Cacciola: CUE When A Case Has Been Decided by the Court

Thomas F. Cacciola v. Sloan D. Gibson, Opinion Number 12-1824, decided July 22, 2014 concerns a claim for CUE when the case had previously been decided by the Court of Appeals for Veteran Claims.

The veteran had sought a higher rating and an earlier effective date which both been denied in a prior Board decision.  The veteran appealed to the court but the Court found the issue regarding the initial compensable rating was abandoned.  He then filed a CUE claim as to an earlier effective date and a higher initial compensation rate.  Importantly, 38 C.F.R. Section 10.1400(b) states all final Board decision are subject to revision except decisions on issues that have been “appealed to and decided by a court of competent jurisdiction”.

The Court found that a veteran “expressly abandons an issue in his initial brief or fails to present any challenge and argument regarding an issue, the abandoned issue generally is not reviewed by the Court” and thus “an abandoned issue is not decided by the Court for purposes of determining the availability of a collateral attack based on CUE.”  Id. at *2.  “Accordingly, in such instances, a claimant is not barred from bringing a motion to reverse or revise a Board decision on an abandoned issue.”  Id.

“To be clear, the Court notes that abandonment of an issue on appeal, whether express or implied, is different from the situation in which an appellant states that he is appealing the Board’s decision on an issue, but then makes no arguments, or insufficient arguments, challenging the Board’s determination.  In such instances, the Court generally affirms the Board’s decision as a result of the appellant’s failure to plead with particularity the allegation of error and satisfy his burden of persuasion on appeal to show Board error.”  Id. at *15. 

The Court then actually dealt with the issue of CUE in this case and determined there was no error.  The Court stated “the crux of [the veteran’s] argument is that the 2012 Board decision did not adequately weigh the 1985 examination report and that the Board ‘may have’ reached a different conclusion had this evidence been properly considered.”  Id. at *18.  This simply did not rise to the level necessary for a CUE claim.

Authored by Judge Schoelen and joined by Judge Pietsch. Chief Judge Kasold concurred in a separate opinion which expressed his displeasure with the Court’s prior decision in Fagre v. Peake, 22 Vet. App. 188 (2008).  Fagre found it appropriate to delay  a claimant who seeks Board reconsideration of a decision on benefits from appealing another adverse decision in the same Board decision until the request for reconsideration was resolved.  The Chief judge apparently feels there should be no dispute the Court has jurisdiction over a part of a Board decision that denies benefits and sees no reason to delay a decision as to that issue under Fagre.

Thomas Andrews is an attorney in Columbia, South Carolina.  You can visit his website at http://thomasandrewslaw.com/

Tagupa: Proving Service Eligibility for WWII Philippine Guerrilla Fighters

Juliet T. Tagupa v. Robert A McDonald, Opinion Number 11-3575, decided August 26, 2014 concerns whether someone had served as a guerrilla fighter in the Phlippines.  The veteran had submitted an wartime identification card stating he had actively participated in anti-Japanese resistance as well affidavits from comrades.  However, the Board denied service connection because the NRPC found no record of service. 

Typically 38 CFR section 3.203 allows the VA to either accept proof of service from the veteran or request verification from the service department.  The Army has executed a memorandum of agreement with the NRPC allowing the NRPC to provide reference service information regarding Philippine Army files.  However, the Court found the MOA does not clarify whether the NRPC has the authority to make an administrative determination of service or whether the NRPC is just a reference librarian.  As a result the Court found it is not clear the VA had requested service verification from the service department, the Army, and remanded on that basis.

The Court also found the VA had failed in its duty to assist in that VA regulations require the VA to attempt to prove service by alternate means, but stated because of the other basis of remand it is premature to determine what duty to assist the VA must conduct if the Army provides a negative verification response.

Chief Judge Kasold wrote separately to say the plain language of the MOA between the NRPC and Army does not give the NRPC authority to issue a service department determination that is not otherwise contained in the records it maintains.  Thus he agreed that the VA provided inadequate reasons or bases for determining the veteran did not serve in an unrecognized guerrilla unit during WWII.  However, the Chief judge also stated he found the VA’s rejection of the materials submitted by the veteran to be plausible and not clearly erroneous.

Authored by Judge Davis and joined by Judge Moorman. Chief Judge Kasold concurred and dissented in part.

Thomas Andrews is an attorney in Columbia, South Carolina.  You can visit his website at http://www.thomasandrewslaw.com

Checo: Equitable Tolling of the Time to Appeal and Homelessness

Cherise Checo v. Robert A. McDonald, Opinion Number 11-3683, decided August 29, 2014 concerns an untimely appeal by a homeless veteran.

The veteran filed her notice of appeal on December 7, 2011 from a July 6, 2011 Board decision.  This was outside the 120 days allowed to file the notice of appeal.  The Court of Appeals for Veterans Claims found the veteran had not demonstrated that equitable tolling was warranted and dismissed the appeal.  Specifically, the Court found she had not demonstrated her homeless was the direct cause of her late filing and did not demonstrate or allege she exercised due diligence in filing her notice of appeal. 

On appeal, the Court of Appeals for the Federal Circuit found the veteran’s homelessness qualifies as an extraordinary circumstance and found the veteran had demonstrated her homeless caused the late filing because she did not receive mail while she was homeless and did not find out about the decision until October 6, 2011.  The Federal Circuit also sought to flesh out the question of due diligence.  It adopted a stop-clock approach, which states the clock measuring the 120-day period to appeal is stopped during the extraordinary circumstance and restarts when the period is over. 

In this case, that meant the veteran had to exercise due diligence between July 6, 2011 (the date of the Board decision) and October 6, 2011 (the date the decision was sent to her new address).  This question of due diligence was remanded for the Court’s consideration and they determined that there was “some indication that Ms. Checo contacted VA to inquire as to her appeal in September 2011 and that her inquiry prompted VA to mail a copy of the Board’s decision to the address she provided.”  The Court found this was a sufficient demonstration of due diligence. 

Decided by Judges Hagel, Lance and Schoelen.

Todd: TDIU and Hearing Loss

Evelyn M. Todd v. Robert A. McDonald, Opinion Number 13-0067, decided September 3, 2014 concerns a Board decision that denied TDIU for bilateral defective hearing.

The veteran had served from 1952 through 1954 and suffered in-service exposure to jet engine noise.  A private audiologist and VA examiner agreed the hearing loss was caused by the in-service exposure and he was granted a 30% rating.  However, he sought a higher rating and TDIU based on the severity of the hearing loss and its impact.  He was later granted an increased rating of 80% but denied TDIU. 

The veteran testified he could not speak on the telephone and he was terminated from a job with an engineering firm because of his hearing loss.  A VA examiner said he was likely limited in his ability to function effectively in an employment setting that required receptive communication skills and includes background noise.  A later VA examiner stated that while employment might be limited, hearing loss alone would not preclude him from gainful employment in a context where interpersonal communication or auditory monitoring is not required.  This later examiner then noted  deaf individuals have rewarding careers in a variety of fields.

The veteran also testified that personnel at the local VA Vocational Rehabilitation and Employment Center said there were no facilities available to train him for work environments that did not require interpersonal communications and auditory skills and there were no potential employers seeking employees without interpersonal communication and auditory skills.

The veteran sought reversal and an award of TDIU because the Board clearly erred.  The Court did not award TDIU because the Board failed to explicitly weigh potentially favorable material evidence.  But, it did remand for consideration of evidence that had been ignored by the Board.  The Court specifically pointed to the veteran’s testimony about the impact of his hearing loss on his ability to function and gain employment, including his inability to use the telephone, limited ability to talk directly to someone, and inability to drive; his testimony that the VA Vocational Rehabilitation Center advised him there were potential employers; and lay statements about his ability to work.  The Court seemed particularly interested in the failure to request records from the VA Vocational Rehabilitation Center.

The veteran also argued that the reference to “deaf individuals” being able to work is a cause for reversal because it considered the average person rather than the individual veteran.  The Court agreed “that whether people with a disability like the veteran’s are usually employable is generally not relevant to TDIU determinations, which are based on an individual’s specific circumstances.  Any reference to whether other individuals, or others as a group, are generally employable despite a particular disability, whether further, careful explanation, may indicate that the Board gave undue consideration to irrelevant and potentially prejudicial information.”   However, the Court found taking the full Board opinion in context, the Board took into account the specific veteran.

The veteran also sought an increased rating under extraschedular considerations and the Court reiterated the issue was so intertwined with the issue of TDIU that it must be remanded.

The decision is important as a further explanation of TDIU and the fact it focuses on the individual veteran rather the average person with that disability.  It also demonstrates a good example of the VA failing in its duty to assist.  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.

Written by Judge Bartley and joined in by Chief Judge Kasold and Judge Moorman.