Southall-Norman: Painful Motion Applied, Lay Statement Credibility and Inadequate Reasons or Bases

Southall-Norman v. McDonald, Opinion Number 15-1657, decided December 15, 2016 involves a dispute over the proper effective date for a foot disability and service connection for impairment of sphincter control.

After a long fight, the VA finally granted the veteran 50% for flat feet with an effective date the date of the most recent compensation and pension examination.  The veteran sought an initial compensable evaluation for her bilateral foot disability prior to the date of the examination based on 38 CFR 4.59.

Section 4.59 is entitled “Painful motion” precedes the more specific musculoskeletal Diagnostic Codes and states

With any form of arthritis, painful motion is an important factor of disability, the facial expression, wincing, etc., on pressure or manipulation, should be carefully noted and definitely related to affected joints. Muscle spasm will greatly assist the identification. Sciatic neuritis is not uncommonly caused by arthritis of the spine. The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. Crepitation either in the soft tissues such as the tendons or ligaments, or crepitation within the joint structures should be noted carefully as points of contact which are diseased. Flexion elicits such manifestations. The joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint.

The Secretary argued 4.59 only applies to joint disability where the DC predicates a range of motion measurement.  The Court accepted the veteran’s argument and noted the “Plain language … indicates that the regulation is not limited to the evaluation of musculoskeletal disabilities under DCs predicated on range of motion measurements.”  The Court stated

In other words, Section 4.59 does not, as the Secretary contends, condition the award of a minimum compensable evaluation for a musculoskeletal disability on the presence of a range of motion measurements in that DC; rather, it conditions that award on evidence of an actually painful, unstable, or malaligned joint or periarticular region and the presence of a compensable evaluation in the applicable DC.  Thus, the plain language of Section 4.59 indicates that it is potentially applicable to the evaluation of musculoskeletal disabilities involving joint or periarticular pathology that are painful, whether or not evaluated under a DC predicated on range of motion measurements.

The Court noted that even if Section 4.59 were ambiguous it would rule the same and would not defer to the agency’s proffered interpretation because it does not reflect the agency’s considered view on the matter and pointed to oral argument admissions as well as two nonprecedential decisions were the Secretary conceded the Board provided inadequate reasons or bases for not discussing 4.59 in this context. 

The Court then stated since Section 4.59 is applicable, the Board had to address it in deciding whether the veteran was entitled to an initial compensable evaluation and its failure to do so renders inadequate its reasons or bases and specifically noted evidence as to painful motion.

Regarding sphincter impairment, the issue was fecal leakage.  The veteran argued the Board provided inadequate reasons or bases for its decision that she was not entitled to a separate compensable rating for impairment of sphincter control because it found her board testimony regarding fecal leakage inconsistent with her prior statements.  Specifically, the Board relied on a July 2007 VA examination where she said she had fecal leakage but did not need to wear absorbent pads and her statement in October 2013 that 5-6 years ago she began to experience fecal leakage.  The VA countered the Board made a proper credibility based on numerous inconsistencies in her statements.

The Court agreed with the veteran.  It noted one of the alleged inconsistencies was the October 2013 and July 2007 statements, but then noted that this was not actually an inconstancy because 5-6 years prior to October 2013 is after July 2007.  The Court stated the Board’s reasons or bases for impugning her credibility on that basis are inadequate.  The Court also noted the Board failed to account for potentially favorable medical evidence in the record.  It also noted despite the 2011 examination finding of no impaired sphincter control, “the record is replete with other evidence suggesting such impairment, which the Board improperly discounted.”

The result was a remand on both issues.  This opinion is really a tour de force in explaining that Section 4.59 is not predicated on range of motion measurements and also a text book opinion for eviscerating the Board’s decision and failure to make adequate reasons or bases on multiple issues.  It also, once again, shows the lengths the VA will go to argue a losing interpretation of a regulation—they seem to think the ability to interpret an regulation also includes the ability to ignore its plain language.  It is good to see the Court digging into the VA’s flawed interpretations.

Written by Judge Bartley Davis and joined in by Judges Schoelen and Greenberg.

Cornell: Attorney Fees Earned?

Cornell v. McDonald, Opinion Number 15-3191, decided December 12, 2016 involves a dispute over whether an attorney earned a fee related to a claim.

Cornell represented the veteran on a claim for hearing loss which resulted in a favorable result in 2011.  After the favorable result, the attorney wrote a letter to the veteran closing her file.  Six months later, the veteran, with the assistance of a VSO applied for individual unemployability.  The IU claim was granted with an effective date going back to the initial favorable result in 2011.  The VA withheld the attorney fee from the veteran’s award and paid it over to the attorney.  Five months later, the veteran appeared to have filed a notice of disagreement and the VA attempted to claw back the fee as unearned.

On appeal, the attorney admitted she never presented a claim, argument, or evidence for individual unemployabilty, that she overlooked the possibility of an IU claim, and that she closed her file after the initial favorable decision.  But, the attorney argued that the IU award was premised on her earlier favorable result, used the same effective date, and that the delay in the VA trying to claw back the money (5 months after it was paid to her, which would have been 8-10 months after the veteran found out about the result) all supported finding the award was appropriate.

The Court found she did not contribute to the award and thus did not earn it.

I can’t help but feel the result was correct.  The attorney did not meaningfully contribute to the IU claim.  However, her brief makes clear she only accepted a fee the VA initially determined she was owed.  And, that the challenge to the fee was very delayed (through the negligence of the VA); the result being that a fee she might have used to keep her practice open and help more veterans was taken away from her.  This is a hard case to see any true winners in.  Perhaps the real lesson is the always remember to get in evidence and argument about a claim for individual unemployability.  

Written by Chief Judge Davis and joined in by Judges Kasold and Lance.

McCarroll: Hypertension and the Use of Medications

McCarroll v. McDonald, Docket Number 2014-2345, decided November 17, 2016 is a decision involving a the proper rating for a veteran whose hypertension is treated by medications.  This was a decision by the full court with interesting concurring and dissenting opinions.

The veteran was service connected for hypertension, but the use of medications prevented his blood pressure readings from being so high as to warrant more than a 0% rating.  The veteran sought a higher rating and argued pursuant to the Court’s holding in Jones v Shinseki, 26 Vet. App. 56 (2012) the VA should discount the ameliorating effects of his blood pressure medicine and without his medication his blood pressure would meet the criteria for a higher disability rating or at a minimum more nearly approximate the criteria for a higher rating.  The Court rejected this argument. 

The Court explained that Jones stood for the proposition that the VA “may not deny entitlement to a higher rating on the basis of relief provided by medication when those effects are not specifically contemplated by the rating criteria.  Thus, if DC 7101 does not specifically contemplate the effects of medication, the Board is required pursuant to Jones to discount the ameliorate effects of medication when evaluating hypertension.  Conversely, if DC 7101 does specifically contemplate the effects of medication, then Jones is inapplicable.  The Court holds that DC 7101 contemplates the effects of medication and, therefore, that Jones does not apply.”

The Court determined DC 7101 contemplates the effects of medication by noting a 10% rating is granted if a) the diastolic pressure is 100 or more, b) the systolic pressure is 160 or more, or c) an individual with a history of diastolic pressure of 100 or more who requires continuous medication for control.  The Court essentially determined the reference to continuous medication for control as to a 10% rating was enough to show the rating contemplated the effects of medication.

The veteran also argued for a 10% rating based on the fact he was continuously taking medication and had a history of diastolic pressure 100 or more.  The veteran pointed to 6 prior blood pressure readings of which one had diastolic pressure at 100 and another of 96.  The Court stated the “single reading does not demonstrate clear error in the Board’s finding that the appellant did not have a history of diastolic pressure predominately over 100 or more, as required by the rating criteria.”

Finally, the veteran also sought a referral for extraschedular considerations, but the Court found that argument was not reasonably raised below.

A concurring opinion by Judge Kasold and joined in by Judge Schoelen would go further.  They would argue that Jones should be overturned.  They explain the essence of the rating schedule is that veterans are compensated for their symptoms and how those symptoms would on average impair a person’s earnings capacity.  They also argue the medication did not taint the results and that instead the blood pressure readings were in fact accurate.  “Because taking blood pressure medication is not an unusual phenomenon for people with high blood pressure, the readings also reflect the condition of Mr. McCarroll’s body under ‘the ordinary conditions of life.’”

A dissenting opinion by Judge Hagel and joined in by Judge Greenberg argued that just because a portion of DC 7101 discussed medication does not explain how the entire prevision considered medication and would have found the Board erred.  The dissent also felt a medical opinion was required to discount the ameliorative effects of medication and the Board violated Colvin v. Derwinski, 1 Vet. App. 171 (1990), in effectively rendering a medical opinion itself.  Specifically, the Board stated the veteran’s “hypertension has not manifested with diastolic pressure predominately 100 or more, with or without medication; or systolic pressure predominately 160 or more throughout the initial rating period.”  The dissent explained the “Board made its own medical findings by considering the ameliorative effect of medication on [the veteran]’s diastolic and systolic pressure or, in other words, the first two alternatives of Diagnostic Code 7101.”

This is an interesting decision in that the Court is signaling an interest in more specifically looking at the ameliorative effects of medication and a willingness to err on the side of finding medications being contemplated by the rating. It is also interesting in that at least two judges would overturn Jones in its entirety.

Cox: Afghanistan and Gulf War Syndrome and Regulatory Interpretation

Cox v. McDonald, Opinion Number 14-2779, decided November 7, 2016 involves a claim by a veteran who served in Afghanistan and was claiming compensation pursuant to 38 USC Section 1117 and 38 CFR Section 3.371(b).  This is a regulatory interpretation case where the Veterans Court came down overwhelmingly on the VA's side in terms of its ability to interpret regulations.

The veteran was making among other things a claim for service connection for a back disability and bilateral knee disability.  The question was whether his service in Afghanistan qualified him as eligible for compensation for an undiagnosed illness under the special presumptions allowed Persian Gulf War veterans pursuant to 38 USC Section 1117 and 38 CFR Section 3.371(b).

In February 2010, the VA issued Training Letter 10-01, which included language stating while Section 3.371 does not include Afghanistan as a portion of Southwest Asia,

Considering the important of current U.S. military operations in Afghanistan and its environmental similarity to all other regions of Southwest Asia, C&P Service has determined that Veterans with service in Afghanistan fall under all laws related to Gulf War and southwest Asia service.  A regulatory amendment to make this official is forthcoming.

The veteran submitted his claim in August 2010.  In October 2010, the VA withdrew its initial Training Letter 10-01 and issued a revised version that delete the language giving Afghanistan veterans the same presumption for undiagnosed illness or medically unexplained chronic multisymptom illnesses.  An October 2010 RO decision denied service connection for the back and knees stating there was no evidence of a current diagnosis.

On appeal, the veteran argued the Gulf War provisions applied to him due to his Afghanistan service.  The Court determined the Gulf War Syndrome presumptions do not apply to service in Afghanistan.  The Court noted that when the law was passed by Congress, the US had not entered into combat in Afghanistan and that instead Congress intentionally did not identify the term Southwest Asia, instead leaving it to the VA to define that term.  The Court then determined the VA’s interpretation was not arbitrary, capricious or manifestly contrary to the statute. 

Finally, the Court determined the VA’s original Training Letter extending the law to Afghanistan veterans did not create a substantive right that could only be changed with appropriate notice and comment pursuant to the APA.  The Court took the position the claims adjudication manual and Training Letters are not substantive rules but “instead represents guidance from the VA Compensation and Pension Director to RO personnel, giving personnel notice of potential, forthcoming changes to the regulation.”  To support this conclusion, the Court noted the Training Letter stated a regulator amendment was forthcoming and instructed RO personnel to hold some claims where the VA was amending the regulation to make clear some additional illness were covered.  Taken together, the Court determined these showed “the VA policy document at issue was meant to be a guidance directive for VA staff and was not meant to confer any rights upon veterans.”

This is a deeply troubling decision which shows how the VA often changes the “goal posts” on veterans and advocates during the pendency of a claim.  It narrowly reads VA materials as not creating substantive rights and gives what I think is too much deference to the VA’s interpretation of the term Southwest Asia.  I hope this claim to be appealed to the Federal Circuit and think both issues to be issues of concern for the Federal Circuit.

Written by Judge Pietsch, joined by Chief Judge Davis and Kasold.

Matthews: Board May Not Sub Silento Incorporate Reasons from a Prior Board Decision

Matthews v. McDonald, Case Number 2015-1787, decided October 14, 2016 is a decision involving a a case with multiple Board decisions where the Board seemed to finally accept the failure of the Appeals Management Center to follow directions without explaining why they were not going to follow instructions.

The veteran claimed residuals from a neck tumor should be service connected.  The claim resulted in three Board decisions.  The first Board decision required the AMC to assemble a panel of three compensation-certified oncologists to review a sample of the tumor and render an opinion on the tumor. The AMC never was able to assemble the panel and instead supplied an opinion by a private physician, whose opinion resulted in a denial of the claim. 

The second Board decision remanded the claim because the VA had not asked the veteran for authorization to release a tissue sample of the tumor and the medical opinion did not contain an adequate supporting rationale.  That same decision noted while only one oncologist, rather than three, provided an opinion, the veteran was not prejudiced.

The third Board decision resulted after the AMC found another oncologist to provide a negative opinion and subsequently denied the claim.  The third decision stated the VA had satisfied its duty to assist.

On appeal to the Court, the veteran argued the Board did not adequately explain why an opinion from three VA oncologists was no longer necessary as specified in the initial Board decision.  The Secretary argued the Board was not required to address that question in its most recent decision because the Board had explained in its second decision that the veteran was not prejudiced by an on opinion from a single oncologist.

The Court held “that the Board is not permitted to sub silentio incorporate its reasons and bases form a prior remand order into a later decision.  The Secretary has not cited any legal authority, nor is the Court aware of any that allows the Board to eschew section 7104(d)(1) in that manner.  To the contrary, the Court [has] suggested … [in a prior decision] that the Board would be required to provide reasons or bases for ‘its previous determination on a matter’ in each subsequent Board decision, either by addressing it anew, ‘largely recycle[ing]’ its prior reasons or bases, or ‘replicat[ing] the language it employed previously.’”  The Court further noted that Board findings are in non-final remand orders are insulated from judicial review and finds in Board remand orders that are unfavorable are not final and are not binding—“Such a conclusion would be antithetical to the pro-claimant veterans benefits system and, absent some indication that Congress intended to make findings in Board remand orders binding and unreviewable, the Court will not impose such limitations.”

Overall, the VA’s actions in this case are not unusual, they arbitrarily create standards (assemble a panel of three) and then dispense with the requirement when it is too hard.  The Court’s decision seems motivated by the arbitrary nature of the VA’s rejection of its own requirements.  The decision also helps to bring to the forefront that a mistake in a VA remand decision is not lost, but should still be able to be raised on appeal.

Decision written by Judge Bartley and joined in by Judge Schoelen and Pietsch.

Hill: ACDUTRA and Aggravation, and Medical Treatises and Self-Medicating

Hill v. McDonald, Case Number 2014-1811, decided October 7, 2016 is a decision involving a veteran who was struck by lightning during a period of active duty for training (ACDUTRA).

The veteran was granted veteran status by the VA for his right knee, which was injured in the lightning strike, but also sought service connection for his back and for PTSD. 

The initial question was the veteran’s veteran status for these different disabilities, which was based on the same period of ACDUTRA.  The Court held: “[O]nce a claimant has achieved veteran status for a single disability incurred or aggravated during a period of ACDUTRA, that status applies to all disabilities claimed to have been incurred or aggravated during that period of ACDUTRA.”

The second question was how the presumption of aggravation and the requirement for an entrance examination applied to an ACDUTRA.  The Court concluded: “an entrance examination is not required for a claimant in the appellant’s circumstances to receive the presumption of aggravation for a claim on a period of ACDUTRA.  Instead, a claimant need only submit evidence that helps establish that ‘there was an increase in disability during such service.’  If a claimant submits documentation that, together with the rest of the record, evidences both the baseline severity of the preexisting condition prior to the period of ACDUTRA and a permanent increase in disability during a period of ACDUTRA, the claimant may take advantage of the presumption of aggravation.”

Third, the Court specifically dealt with the question of whether new and material evidence was submitted regarding the veteran’s back condition.  Importantly, the veteran has submitted medical treatise materials on lightning strikes and “one of the articles address the missing element of nexus in that it states a lightning strike might affect the musculoskeletal system, including contusions, fractures, and muscle and ligament tears.  The article on its face is material to whether the lightning strike could have worsened the appellant’s preexisting back condition.  Accordingly, the Court concludes the Board’s determination that the appellant failed to submit new and material evidence is clearly erroneous.”

Fourth, the Court dealt with the question of the veteran’s claimed psychiatric disability and found the C&P examination to be incomplete.  The C&P noted the appellant started drinking alcohol more heavily after the lightning strike and listed it as a factor aggravating the veteran’s mental condition which showed the lightning strike was not a cause of the aggravated condition.  However, the Court seemed to question why the examiner did not use this post-lightning strike drinking as proof that the lightning strike did not cause the aggravation (i.e., the veteran turned to drinking to self-medicate).

Overall, this is an important decision that clarifies questions concerning ACDUTRA and also gives an example of the power of a medical treatise and helps show that alcohol use might be a symptom of a stressful occurrence.

Decision written by Judge Greenberg and joined in by C.J. Hagel and Schoelen.

Warren: Beware the VA Employee Who Wants You to Withdraw an Appeal

Warren v. McDonald, Opinion Number 15-0641, decided September 14, 2016 involves an alleged withdraw of an appeal before the Board and the impact it had on a subsequent decision.

The veteran was denied service connection for sleep apnea in December 2008.  He subsequently filed a NOD in April 2009 asking for an appeal to be processed by a decision review officer rather than the traditional appeals process. 

In April 2010 a statement of the case was issued again denying service connection for sleep apnea.  However, in a March 2010 statement in support, the veteran stated he wished to withdraw his request for a decision review officer and asked instead for a Board hearing.  An April 29, 2010 statement from the veteran’s representative reiterated the request for a Board hearing for the issue of sleep apnea.  However, on April 30, 2010 a VA employee noted on a VA form 21-0820 that she had spoken to the veteran and he wished to withdraw the sleep apnea condition from the pending appeal.  However, a May 2010 note from another VA employee noted the veteran called and requested a travel board hearing.  In May 2010, the RO certified the sleep apnea claim to the Board.

Later in May 2010, the veteran’s representative sent a physician’s nexus statement with a  cover letter stating it was being sent in support of the veteran’s pending claim.  The RO apparently considered this a new claim and in September 2010 the RO granted service connection for sleep apnea effective the May 2010, which was the date the VA considered the claim reopened.  As to the effective date, the RO noted it had received the prior NOD for sleep apnea but that he had withdrawn that claim. 

In April 2013, the veteran inquired with the VA about the status of his travel Board hearing, which he had requested in February 2010.  A June 2013 Board hearing was held and the veteran argued the form withdrawing his appeal was a misrepresentation of his wishes, instead he had wanted to withdraw his claim from DRO review and wanted to proceed with a Board hearing.

The Board issued a decision in November 2014 in which they noted the appeal was from a denial of service connection for sleep apnea but characterized the issue now as an earlier effective date.  The Board noted the form purportedly withdrawing the appeal appeared proper and there was no prohibition against a veteran withdrawing a claim by telephone.  The Board then found the proper effective date was May 2010.

The Secretary principally relied on Hanson v. Brown, 9 Vet. App. 29 (1996) wherein the Court affirmed a finding the veteran withdrew a claim that was withdrawn when a VA social worker conducted an in-person meeting and completed a contact form withdrawing the issue.  The Court noted “Withdrawal of an appeal is only effective where withdrawal is explicit, unambiguous, and one with a full understanding of the consequences of such action on the part of the claimant.”  The Court then noted the dissimilarities between Hanson and the case at hand.  They noted, Hanson involved an in-person meeting as opposed to a telephone call and they also noted “unlike in Hanson, there is considerable evidence that Mr. Warren did not intend to withdraw his 2008 sleep apnea claim when he called VA in April 2010.  Instead, the … evidence indicates that Mr. Warren merely wished to remove his sleep apnea claim from the DRO process and that, even after the April 2010 purported withdrawal, he believed that his sleep apnea claim was still pending on appeal….”  The Court then concluded “On the record as a whole, the Court is left with the definite and firm conviction that the Board committed a mistake by finding that Mr. Warren withdrew his appeal.”

Next, the Court dealt with whether the most recent Board decision should have considered the veteran’s service connection for sleep apnea or the issue of the effective date.  The Court noted this case had two claim streams, the 2008 claim for service connection for sleep apnea and the 2010 claim that occurred when the RO construed the veteran’s submission as an application to reopen the claim.  The Court stated “Caselaw is clear that, because the veteran timely appealed the April 2009 RO decision denying the December 2008 claim, only a Board decision can resolve the December 2008 claim….  The September 2010 RO decision could not resolve Mr. Warren’s appeal of his December 2008 sleep apnea claim because, by virtue of his appeal, the Board, not the RO, had jurisdiction over it.  The decision of the lower adjudicative body, the RO, cannot finally decide an issue already on appeal to the Board, the higher administrative appellate body.” 

The result is a remand for the Board to consider the merits of the December 2008 claim for service connection for sleep apnea, including all subsequent evidence and argument.

This is an important decision some advocates have noticed a pattern whereby VA employees seek to persuade veterans to withdraw their appeal and simply file a new application for benefits.  While this might result in a quicker grant of benefits, it will probably result in the veteran not receiving the proper effective date.  Veterans should beware of this practice.  This case also seems suggest the Court is more than willing to find the VA’s factual argument is not correct if the veteran can point to evidence that rebuts it.  While the VA should be looking out for veterans and applying the benefit of the doubt to assist them, it is clear that a veteran should beware of the VA’s actions and suggestions.

Decided by Judge Bartley, joined by Judges Lance and Davis.

Emerson: Earlier Effective Dates under 38 CFR 3.156(c)(3)

Emerson v. McDonald, Opinion Number 14-2968, decided August 210, 2016 involves a claim for an earlier effective date after inclusion of service records pursuant to 38 CFR 3.156(c)(3).

The veteran was denied servicec connection for PTSD in 2003 based on a lack of proof of a stressor.  Service connection was subsequently granted in 2011 after the requirement of proof of a stressor for combat related situations was relaxed. 

The veteran appealed the effective date and noted he submitted military personnel records after 2003 that purported to show he was onboard a helicopter during combat flight missions in Vietnam.  He argued 3.156(c)(3) applied due to the fact he submitted relevant service records that were not associated with this file at the time of the denial in 2003 and required the VA to reconsider his original claim.  The Board denied an earlier effective date and the VA argued he was not entitled to consideration under 3.156(c)(3) due to the intervening grant of service connection in 2011. 

The Court reversed and found that the intervening grant of service connection did not prohibit the application of 3.156(c)(3).  The Court stated if the following criteria are met, the VA must reconsider the original claim: (1) receipt of relevant service records which existed and had not been associated with the file at the time of the original decision, and (2) receipt “at any time after VA issues a decision on a claim.”  The Court also strongly suggested that unlike a CUE claim, the law existing now should inform the decision looking back to see if 3.156(c)(3) applied.  The Court also framed the issue on remand as whether the newly associated records are “at least partially decisive” as to an award.

The VA had argued the Court should not consider this issue as it was raised in a conclusory manner before the Board.  The Court rejected this argument and stated under the law the argument did not need to be as fully developed as it was before the Court.  The Court also noted the Board did not even consider 3.156, but rather than remanding, noted it was a legal issue and relevant facts are not in dispute.  Finally, the veteran was granted a reasons and bases remand for a higher rating for PTSD.

This is an important decision as the VA apparently hoped to foreclose the use of 3.156 to gain an earlier effective date for combat veterans suffering from PTSD.  This decision makes clear those veterans can still pursue an earlier effective date under 3.156 in the event newly associated service records are found even if they have subsequently been granted service connection.

Decided by Judge Bartley, joined by Chief Judge Hagel and Judge Pietsch.

Parseeya-Picchione: Thailand Agent Orange Exposure

Parseeya-Picchione v. McDonald, Case Number 15-2124, decided July 11, 2016 involves herbicide exposure and subsequent development of diabetes.

The claim was by the veteran’s surviving spouse and for DIC.  The veteran stated he had been stationed in Thailand and exposed to agent orange when he stopped in Vietnam on a flight to Thailand and in Thailand where he was stationed.

The case was remanded on reasons and bases reasons.  First, the Court did not find error in the Board’s determination the veteran’s statement of a layover in Vietnam was not credible.  However, the Court softened this blow by finding the Board did not provide an adequate statement of reasons or bases for its conclusion the appellant did not step foot in Vietnam because it did not consider other evidence.  Specifically, an archivist at the Air Force Historical Research Agency wrote as a general rule military cargo aircrafts en route to bases in Thailand would stop at Ton Son Nhut Air Base in Vietnam.  Additionally, a USAF major wrote confirming the AF Historical Research Agency statement.  The Board responded by saying the evidence only provided “general information” and did not support the claim the veteran himself stopped overnight in Vietnam.   The Court stated “This cursory discussion does not enable the appellant to understand the Board’s precise basis for concluding that the veteran had not set foot in Vietnam and frustrates judicial review of that issue.  Remand is warranted.”  Id. at *6.

The Court also concluded the Board failed to provide adequate reasons and bases for denying herbicide exposure on a direct basis in light of the Board’s acknowledgement the veteran served in Camp Friendship at Korat Air Force Base in Thailand, which was located near the perimeter of the base.  The Board acknowledged Camp Friendship was at the outer edge of the base, but then determined without much explanation that it was not the perimeter.  The Court remanded for a clarification of the position of the veteran’s camp.

The VA also acknowledged the Board was wrong when it stated tactical herbicides were used in Thailand four years prior to the veteran’s service there, but argued the misstatement was not prejudicial.  The Court noted if the VA found the veteran served near the perimeter, the VA’s misstatement would be crucial. 

This will be an important template in assisting veterans who were exposed to Agent Orange in Thailand as it helps show how to demonstrate a stopover in Vietnam was likely and the Board cannot discount statements the veteran was near the perimeter.

Written by Judge Greenberg and joined in by Judges Schoelen and Pietsch.

Butts: EAJA Award for a JMR Resulting from a Federal Circuit Decision

Butts v. McDonald, Case Number 14-3019(E), decided June 3, 2016 involved an attorney fee request under EAJA.

This case involved a JMR that resulted after the Federal Circuit issued an opinion overturning a CAVC decision regarding 38 CFR 3.321(b)(1) and reference to multiple or individual disabilities when evaluating for a higher rating pursuant to 3.321.  The appealed from Board decision was issued between the CAVC decision and the CAFC decision reversing the CAVC decision.

The parties to Butts agreed the CAFC decision applied and entered into a JMR.  The veteran’s attorney then sought fairly modest attorney fees.  The question centered on whether the Secretary’s position was substantially justified.

The decision was a barnburner.  It was an en banc decision with multiple dissenting opinions.  The majority awarded EAJA fees.

The majority noted the Secretary bore the burden of demonstrating its position was substantially justified.  It noted the Secretary’s seeming only argument in favor its position was that the general scheme of the rating schedule assigns scheduler ratings on a disability by disability basis.  The majority also notes the Board decision does not explicitly reference the CAVC decision, however, it counts in terms of substantial justification the fact the Board was acting in accord with existing judicial precedent.  The majority then notes that compliance with precedent does not relieve the Court of its duty to evaluate the reasonableness of the Secretary’s position.  The majority focuses on the totality of the circumstances.  It noted the the dissent argues the CAVC decision demonstrates the Secretary’s position was reasonable, but notes a CAVC error in deferring to the Secretary’s interpretation of a regulation does not end the matter and that cannot be the dispositive factor.  The majority also expresses the profound opinion that if compliance with precedent was a bar to EAJA fees, veterans with limited means would face even greater difficulty obtaining counsel to bring valid challenges to existing case law.

Judge Kasold wrote a concurring and dissenting opinion that focused on the right to appeal to the CAFC and stated the a decision by the CAVC should not operate to prevent EAJA fees.

Various dissenting opinions were written.  Perhaps the most academic and vigorous was by the Judge Bartley who is concerned the Board’s reliance on a CAVC decision could be considered not substantially justified.  Judges Lance and Moorman also wrote a powerful dissent that seemed at its base to be truly antagonistic to EAJA fee awards in general.

This decision is important because it defends EAJA fees and thus preserves the ability for veterans to obtain counsel.  If EAJA fees were not available or seriously curtailed, then the simple truth is that attorneys could not afford to take these cases and veterans would  be left making pro se arguments.  However, this decision also shows a deep split in the judges of the CAVC and an apparent dislike of EAJA fees by some members of the dissenting group.

Decision by Judge Davis, joined by Judge Hagel, Schoelen and Greenberg.  A concurring and dissenting opinion by Judge Kasold.  Dissenting were Judges Lance, Pietsch, Bartley, and Moorman.

Noah: Earlier Effective Dates and Constitutional Due Process Arguments

Noah v. McDonald, Case Number 2015-0334, decided June 10, 2016 is a decision involving the request for an earlier effective date based on a misleading VA letter to the veteran and the related constitutional Due Process arguments implicated. 

The veteran applied for service connection of PTSD in 1981 and sent a misleading notice of the time required to submit evidence necessary to complete his PTSD application. The letter stated more information was needed about his Vietnam experiences and that the VA “must have postservice medical evidence to support your claim.”  It also stated “Please reply within 30 days.  If we have no reply within 60 days, we will assume that you have withdrawn your claim.”

The veteran did not respond to the VA’s letter.  He submitted a new claim in 2007, was granted service connection for PTSD, and assigned a rating of 2007.  He appealed the effective date.  He argued he understand the 1982 letter has requiring him to send in medical evidence showing he had PTSD and that if he didn’t within 60 days they would close his file.  Due to financial issues, he was unable to find and submit the “required” evidence within 60 days.  He stated if he had known he really had 1 year, he could have gotten the required evidence by using a medical clinic.  A 2011 private psychologist opined he had PTSD in 1981 and 1982.

The veteran argued the Court should find the Board erred in not considering whether his claim should be equitably tolled.  He also, after urging by the Court, that there was a due process failure by the government. 

The Court found it lacked authority to equitably toll the deadline to submit evidence by the veteran, but they reached farther and issued a decision that did consider the Constitutional due process implications of the VA’s misleading notice to the veteran.

Initially, the Court reiterated that a veteran’s entitlement to disability benefits is a property interest protected by the Due Process Clause.  The Court then considered whether Due Process Clause factors enunciated in Matthews v. Eldridge by the U.S. Supreme Court applied to this case.  First, the Court found the “special beneficence afforded to our nation’s veterans cannot tolerate notice that misleads the potential receipt of benefits”.  Second, the Court found the the erroneous deprivation of the veteran’s right to benefits was great as a result of the VA’s practices.  The Court noted, “This is not a matter of whether a claimant is properly charged with knowledge of the relevant law.  Rather, VA provided Mr. Noah inaccurate and misleading notice that gave him significantly less time than the law allowed to respond to VA’s request for information.”  Finally, the Court noted the government’s interest and burdens and stated “once VA assumed the responsibility of providing notice of the time to submit evidence, it is unclear to the Court how any requirement that VA provide accurate information imposes a fiscal or  claimant with accurate information.”

The Court then considered whether the veteran detrimentally relied on the VA’s misleading notice.  The Court noted the Board disregarded the evidence on detrimental reliance because they found the veteran was subject to the one year abandonment provision in statute 38 CFR 3.158.  The Court found because the 1982 notice letter failed to satisfy procedural due process requirements and thus if the veteran was successful in demonstrating he relied to his detriment on the notice, his December 1981 claim remained pending and unadjudicated.  As a result, the Court vacated the Board’s decision and remanded the case to the Board to weigh the evidence and assess the evidence and determine whether the veteran relied to his detriment on the misleading notice. 

Judge Lance wrote a concurring opinion stating he agreed the case should be remanded for assessment of detrimental reliance, but stated he would exercise judicial restraint and not discuss the Due Process arguments until further appeal.

This case is a nice explication and application of a Constitutional Due Process argument to a misleading notice by the VA.  It is likely many such old notices exist and can be used to argue an earlier effective date.  Special review of the veteran’s efforts to show detrimental reliance should be used as a template for future advocates.

Decision written by Judge Schoelen and joined in by C.J. Hagel.  Concurring opinion by J. Lance.

Warren: Systemic Therapy for Skin Conditions or the VA Really Can't Read its Own Regulations

Warren v. McDonald, Opinion Number 13-3161, decided May 10, 2016 involves the consideration of the phrase “systemic therapy such as corticosteroids or other immunosuppressive drugs” in relation to skin conditions.

The veteran was service connected for a skin condition and granted a 10% rating under Diagnostic Code 7806.  He argued that he deserved a higher rating because he was orally taking Lamisil for his skin condition that qualified as “systemic therapy such as corticosteroids or other immunosuppressive drugs”.

The Board denied saying “only systemic therapy such as a corticosteroid or immunosuppressive drug is contemplated by the DC 7806, and Lamisil does not qualify as either.”

The Court remanded saying “Because ‘systemic therapy’ which is the type of therapy that creates compensability, is connected to the phrase ‘corticosteroids or other immunosuppressive drugs’ by ‘such as,’ those drug types do not constitute an exhaustive list of all compensable systemic therapies, but rather serve as examples of the kind and degrees of treatments used to justify a particular disability rating.  Consequently, the types of systemic treatments that are compensable under DC 7806 are not limited to ‘corticosteroids or other immunosuppressive drugs.’  Compensation is available for all systemic therapies that are like or similar to corticosteroids or other immunosuppressive drugs.” Id. at *4-5

The Secretary also argued his interpretation was consistent with practice, an alleged fact that was debunked by the Court by referencing the M21-1MR.

The Court remanded the case because the Board did not determine whether Lamisil is a systemic therapy like or similar to a corticosteroid or other immunosuppressive drugs.  Id. at *6.

Judge Bartley concurred simply clarifying that she believes the term systemic therapy is restricted to immunosuppressive drugs of which corticosteroid drugs are one example.

This case is but one example of the VA restrictively interpreting what is otherwise a plainly written regulation.

RRDecided by Chief Judge Hagel and Judges Pietsch and Bartley.

Threatt: Equitable Tolling Continued, Again or Moving Closer to a Bright Line Test

The Court issued an order in Threatt v. McDonald, Case Number 15-0835, on May 17, 2016 involved equitable tolling.

This involved a 2003 decision by the Board that prompted the veteran to write a letter to his U.S. Representative asking the representative to forward the letter to the Board showing dissatisfaction with the result and asking the Board to send him a copy of his service military medical records and duty stations.  A flurry of VA to veteran and veteran to VA letters (again via his representative) resulted. 

Years later the veteran ultimately appointed an attorney who appealed a subsequent decision to the Court.  When the attorney got the c-file she discovered the various letters from the veteran to the Board. She immediately appealed the 2003 decision to the Court.  The attorney argued the 2015 notice of appeal should be considered timely because his May 2003 correspondence to the RO constituted a timely misfiled appeal of the February 2003 decision.

The Court noted the Federal Circuit has found a veteran who misfiles the notice of appeal with the RO within the 120 day appeal period has pursued his judicial remedies and the 120 day period is tolled.  Additionally, a motion to reconsider to the Board tolls the 120 day period and the veteran receives a new 120 day period when the Board issues a denial of the motion or new decision.

The Court noted here the veteran submitted to the Board within 120 days a written statement disagreeing with the decision. The VA acted on the letter determining it was correspondence rather than a motion and reinformed the veteran of his appellate rights.  The Court noted this began a new 120 day period.  The veteran then submitted another letter to his RO stating his intent to appeal the 2003 decision to the CAVC.

The Secretary argued the filings were defective because they came from the veteran’s U.S. Representative.  The Court summarily rejected this argument.  The Secretary also argued the appellant didn’t meet the diligence requirement of equitable tolling.  Importantly, the Court then found prior case law “directly contradict the Secretary’s statements regarding diligence in briefing and set forth a clear rule that the due diligence requirement is satisfied as a matter of law by the timely misfiling of a notice of appeal.  The Court discerns no compelling reason to deviate from this rule.”

There was a conference by Judge Pietsch.  She wrote that she feared the ramifications of the decision and argued the due diligence conclusion should have been case specific rather than a bright line test.  She showed a deep suspicion of allowing late notice of appeals without requiring some action by the veteran, noting that he effectively filed a notice of appeal in 2003 but did nothing until over a decade later.

This order is helpful to veterans as it seems to move the Court toward a bright line test in equitable tolling that reduces the requirement of due diligence. 

Decided by Judges Bartley and Greenberg, and concurred in by Judge Pietsch.

Ortiz-Valles: Marginal Employment and IU

Ortiz-Valles v. McDonald, Opinion Number 14-2540, decided May 20, 2016 involves the consideration of marginal employment in reference to entitlement to individual unemployability (IU).

The veteran sought IU and at least one VA examiner discussed his back pain and while placing severe restrictions on the veteran stated he was able to work from a sitting position, and is thus able to “obtain and secure a financial rewarding job, at least in a part-time fashion.”  The RO and Board found the veteran wasn’t entitled to IU.

At the Court the veteran argued the Board failed to address whether he was only capable of marginal employment and specifically that the Board failed to explain how his capacity for only part-time sedentary employment with work restrictions would not preclude him from substantial gainful employment.

The Secretary argued a consideration of marginal employment only came into play if a veteran was employed—it allows the VA to determine if the employment results in below the poverty level pay and thus is marginal.

The Court found “the only logical reading of the [IU] regulation compels the conclusion that a veteran might be found unable to secure or follow a substantially gainful occupation when the evidence demonstrates that he or she cannot secure or follow an occupation capable of producing income that is more than marginal—i.e., with income that exceeds the amount published by the U.S. Department of Commerce, Bureau of Census, as the poverty threshold for one person.”  Id. at *6-7.  “There is no language in the regulation that limits VA’s obligation to evaluate evidence suggesting that a veteran is capable of securing or following only marginal employment to cases of employed veterans.”  Id. at *7.

The Court remanded with instructions to the Board to state whether the veteran “would be able to obtain or maintain a substantially gainful occupation—or, put another way, whether [the veteran] is capable of more than marginal employment.”  Id. at *8.  The Court explicitly did not define the term “substantially gainful occupation” explaining the VA should first be allowed to take a position on the matter.

This case demonstrates that entitlement to IU is always a battle and that the exact definition of substantial gainful employment is still fluid.

Decided by Chief Judge Hagel and Judges Schoelen and Greenberg

Stabb: VA Reimbursement for Care at Non-VA Facilities

Stabb v. McDonald, Opinion Number 14-0957, decided April 8, 2016 involves a case where a veteran was treated for a heart attack and stroke at a non-VA hospital and then sought for the VA to pay for such care.

The Board denied the request stating the veteran was ineligible for reimbursement under 38 USC Section 1725 because he was covered by Medicare and that a claim must be denied as a matter of law.  The Board stated that while the veteran only sought the portion of expenses not covered by Medicare, the fact not all medical expenses for his treatment were covered is not relevant.

The Court noted that Section 1725(b)(3)(B) states the veteran is personally liable if they have “no entitlement to care or services under a health care plan contract.  “Thus, subection 1725(b)(3)(B) appears to contemplate a situation when coverage under a health-plan contract would wholly extinguish a veteran’s financial liability.”  ID. at *5.  “Therefore, it is clear from the plain language of the statute that Congress intended VA to reimburse a veteran for that portion of expenses not covered by a health-plan contract.”  Id. at *6.

The Court then note that the VA’s regulation is at odds with the amended statute and thus the statute rules.  As a result, the Court found expenses not covered by Medicare should be reimbursed by the VA.

While this case might not apply to most VA attorney’s daily practice, it offers a view into winning a statutory interpretation case and offers significant benefit to veterans.  When they need emergency treatment and receive it at a non-VA hospital, the VA should reimburse them for any expenses not paid by Medicare.  The cases logic should also cover deductibles and co-payments required by private insurance.

Opinion by Judge Greenberg, joined in by Judges Lance and Pietsch.

McKinney: Presumption of Soundness, Adequate Medical Examinations without resorting to Speculation and the Duty to Assist

McKinney v. McDonald, Opinion Number 13-2273, decided March 11, 2016 involves a claim for bilateral hearing loss and a respiratory condition related to asbestos.  This decision has everything in it including a discussion of the presumption of soundness, whether an examination is adequate and whether the examiner would have to resort to speculation, and the VA’s duty to assist.

The veteran’s entrance examination did not note defective hearing but an audiology note showed a hearing problem at 400 hertz that the Navy considered to be minor and causing no significant limitation.  The veteran developed hearing loss which he associated with artillery fire and noise from helicopters.  The VA denied noting his entrance hearing loss, stating he was not owed a presumption of soundness, and relying on a medical examination that stated without an exit examination showing his hearing it would be speculative to connect his hearing loss.

The Court determined that because the hearing loss noted on his entrance examination did not meet the VA’s definition of a disability under 38 CFR Section 3.385 that the veteran was entitled to the presumption of soundness.  The Court noted the presumption of soundness is owed unless an entrance examination “noted” a defect, infirmity or disorder.  The court reiterated that a history of a condition does not constitute a notation of a pre-existing condition for the purposes of the presumption of soundness.

While accepting that hearing loss was noted on the entrance examination, the court determined that hearing loss did not meet the VA’s definition of a hearing disability and, therefore, the hearing loss was not a defect which would prevent the application of the presumption of soundness. The Court reached this conclusion by noting that 3.385 states that impaired hearing is not a disability for compensation purposes unless the audiometric threshold is 40 db or greater—here the threshold was 35 db.

The Court also determined the VA’s examination was inadequate because she did not provide a rationale for concluding that an audiology test from the veteran’s separation was needed—the court stated it was unclear if her opinion that she would have resort to speculation reflected the limits of her knowledge or the knowledge of the wider medical community.  Id. at *17.  The Court also took the examiner for task for failing to consider the veteran’s testimony that he first noticed hearing loss during service or shortly after discharge.

Regarding the respiratory issue, the veteran submitted private medical statements linking his respiratory condition, asbestosis, to asbestos exposure.  However, the VA rejected them because they were made several years prior to his application for benefits and also stated there was no current of a current diagnosis of asbestosis.  The Court noted the VA was to consider all respiratory problems, not just asbestosis.  The Court agreed with the veteran that the VA gave inadequate reasons or bases for summarily rejecting the 1996 medical reports because they were not sufficiently proximate to the date of the claim.  Id. at *21.  The Court also noted the Board relied on an inadequate VA examination which did not mention the prior diagnosis of asbestosis.  The Court also found the VA did not fulfill its duty to assist.  The veteran filed out an authorization for Dr. Attiah records related to asbestos exposure.  The VA sent a request for the records to a hospital but then received a form stating the hospital did not have the records but recommended the VA call his office at the number the veteran had already provided to the VA.  The VA simply did not call that number or attempt to gain those records in any other way, which the Court considered “particularly glaring because the Board found that the only evidence in the record that Mr. McKinney was diagnosed with asbestosis was evidence from 1996.  Yet, the 2003 referral sheet from Methodist Charlton Medical Center indicates that the referring physician attributed Mr. McKinney’s current respiratory disorder to ‘apparent exposure to asbestos.’”  Id. at *26.

A dissent by Judge Bartley expressed her opinion that because defective hearing was not listed on the entrance examination, it is unfair to consider that a defect.  She worried “Permitting retrospective interpretation of an entry examination allows VA to transform the test result not identified at the time of entry as out of the ordinary into noting at the time of entry, thereby perverting the statutory requirements.  This retrospective interpretation will create troubling effects: Men and women entering service would be deemed fully fit to fight and die, with the entry examiner indicting nothing preexisting; but after service those men and women, now veterans, would be informed that they were less than whole at entry, that there was preexistence, and that they have a significant handicap in pursuing disability benefits, i.e., the presumption of soundness, in most cases, would not apply.

Decision by Judge Schoelen and joined by Judge Davis, concurrence by Judge Bartley.

Hime: CUE in a Pre-Colvin Decision and Due Process

Hime v. McDonald, Opinion Number 14-3215, decided March 3, 2016 involves a claim of clear and unmistakable error (CUE) in a 1983 decision which denied entitlement to service connection for a hip bursitis.

In 1982 the veteran sought service connection for his hip and presented a statement for a VA physician supporting service connection.  Before the Board there was no negative evidence or evidence against service connection.  However, the Board still denied.  At that time, the Board was made up of 2 attorneys and one physician. 

In 2010, the veteran filed a CUE claim saying the only evidence before the Board was evidence supporting service connection, so a decision to deny was CUE.  The Board denied.  It agreed the only evidence before the Board was positive but stated the medical member implicitly provide the countervailing evidence to deny the appeal., which was not forbidden by statute or regulation at the time.

The Board decision was appealed to the Court which resulted in a JMR to address the ability to of the medical member to provide evidence.  On remand, the veteran argued the decision could not constitute a medical opinion and that allowing the medical member to provide a medical opinion would violate his due process and fair process rights as he was not given a meaningful opportunity to respond to the evidence.

The Court first addressed the difference between the Board in 1983 and now.  Then, the Board did not have to provide reasons and bases for its conclusions and included a medical member of the Board.  It also discussed the apparent fact that medical members decided cases based on their own medical expertise.

The Court decided the 1983 decision did not constitute medical evidence and then argued “the medical member of a Board section had the expertise to consider whether the medical evidence of record was competent, credible, and probative, and the Board was under no obligation to provide an explanation for its rejection of favorable evidence….  As discussed above, the presence of a medical member on the Board, pre-Colvin, allowed the Board to assess the probative value of medical opinions in a way that it now cannot, through the exercise of its own medical expertise and judgment.”  Id. at *8-9.

Judge Bartley wrote a powerful dissent.  She noted the second Board decision identified the medical opinion in the 1983 decision as a medical opinion.  She then determined the reliance on extra-record evidence leads to the conclusion that the 1983 Board decision committed CUE and violated the veteran’s constitutional due process rights when it denied service connection on the basis of extra-record evidence.

The argued that a medical Board at that time could rely on their medical expertise to consider whether medical evidence of record was competent, credible, and probative, but stated that was not what happened in 1983.  In 1983 the only evidence in the record was in favor of service connection, therefore, the decision of the Board was based on the extra-record evidence of the medical Board member.  The relevant statute in 1983 stated the Board was required to make its decision based on the entire record.  See USC 4005(d)(5).  However, Judge Bartley effectively uses this statute to argue that the Board member’s opinion was not of the record and could not be relied upon.  She also argues use of a new opinion denied the veteran constitutional due process rights as it did not first allow the veteran the opportunity to meaningfully respond to it—post-adjudication notice of the adverse opinion was not enough.

On a practical level this case has limited reach to only CUE in Pre-Colvin decisions (circa 1991).  However, Judge Bartley lays out arguments that might be used in other due process situations.

Decision by Judge Lance, joined by Judge Pietsch.  Dissent by Judge Bartley.

Johnson: Systemic Therapy is Systemic Therapy or The Plain Meaning of a Regulation is the Plain Meaning of a Regulation

Paul Johnson v. McDonald, Opinion Number 14-2778, decided March 1, 2016 involves he interpretation of Diagnostic Code 7806, which relates to a skin condition.

DC 7806 provides a 60% rating for among other things “constant or near constant systemic therapy such as corticosteroids or other immunosuppressive drugs required during the past 12-month period”.  In fact, the veteran here had used topical corticosteroid cream for the past 12 months. 

The Board had denied the increased rating arguing the use of corticosteroid cream wasn’t systemic therapy.  The Secretary argued the Board was correct and that systemic therapy meant pertaining to the body as a whole whereas topical therapy pertained to a particular surface area.  The Secretary went through the lengths of actually adopting a M-21 manual provision that defined systemic therapy as not including topical corticosteroids.

The Court found “the language of DC 7806 is unambiguous: the diagnostic code explicitly mentions corticosteroids as an example of ‘systemic therapy’ and does not further distinguish between different types of corticosteroid application.  Otherwise stated, as used in DC 7806, ‘constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs required during the past 12-month period,’ defines systemic therapy as the use of corticosteroids without any limitation of type of use, and it is well-settled that the Board is not permitted to add criteria not included in the rating schedule.”  Id. at *6. 

The Court dealt with the Secretary’s medical definitions by stating they did not forestall the Secretary from defining systemic therapy for a skin condition as including use of topical corticosteroids, which is what they did.  And, as to the adopted manual provisions and reference to DC 6602 for support, the Court noted DC 6602 showed the Secretary knew how to narrowly define “systemic” when it wanted to.  As to the new manual provision, the Court noted that such a modification should not be applied retrospectively and could not be used to modify the plain meaning of the regulation, which can only be done after notice and comment.  Id. at *8.

 

Judge Kasold wrote a dissent agreeing systemic therapy does not exclude the use of topical corticosteroids, but stating the Board never found the use of the cream was “required” and so the case should be remanded for that determination.

This case is an excellent demonstrating of the plain meaning of a regulation winning out over the VA’s interpretation of it.  It also shows what lengths the VA will go to buttress their interpretation (adopting a manual provision while the case was pending).  It is also helpful in that the Court has made clear that adopting a manual provision will not apply retroactively and cannot change the plain language of a regulation—these should be established law, but sometimes the VA needs a reminder.

Decided by Judge Hagel and Greenberg.  Dissent by Judge Kasold.

Sullivan: Duty to Assist to Obtain Medical Records

Maurice Sullivan v. McDonald, Opinion Number 2015-7076, decided March 8, 2016 is a Federal Circuit decision involving the duty to assist. 

The veteran had sought to reopen his claim by submitting new evidence.  The Board determined the evidence was not material and further found it had fulfilled its duty to assist the veteran. 

On appeal to the Veterans Court the veteran argued the VA did not obtain his medical records from a VAMC where he had previously sought treatment.  During the hearing before the Board, the veteran had said he had been treated there and told by doctors that he did not have anything wrong with him.

The Veterans Court concluded the duty to assist a veteran in obtaining records only extends to potentially relevant records and then went on to determine the VAMC records identified were not potentially relevant records that would aid the veteran in reopening his claim.

The relevant code and regulation are 38 USC 5103A and 38 CFR 3.159(c).  Interestingly, the code section imposes a relevancy standard on records.  However, the regulation at issue does not impose the same relevancy standard on VA medical records—instead simply stating:

“Obtaining records in compensation claims. In a claim for disability compensation, VA will make efforts to obtain the claimant's service medical records, if relevant to the claim; other relevant records pertaining to the claimant's active military, naval or air service that are held or maintained by a governmental entity; VA medical records or records of examination or treatment at non-VA facilities authorized by VA; and any other relevant records held by any Federal department or agency. The claimant must provide enough information to identify and locate the existing records including the custodian or agency holding the records; the approximate time frame covered by the records; and, in the case of medical treatment records, the condition for which treatment was provided.”

The Federal Circuit dealt with the more liberal regulation language by noting 38 USC 5103A states that “nothing in [5103A] shall be construed as precluding the Secretary from providing such other assistance under subsection (a) to a claimant in substantiating a claim as the Secretary considers appropriate.”  Therefore, the regulation can be more pro-veteran than the Code.

The Federal Circuit thus found the VA had not fulfilled its duty to assist. 

The Federal Circuit than dealt with the Veterans Court’s determination that the non-obtained VAMC were not relevant by noting that this was a factual determination the Board had never considered and such factfinding is improper for the Veterans Court.

This case is likely to be helpful in a many appeals where the VA simply did not obtain readily identifiable older VA medical records.  It might be a technical reason to remand, but could allow for more development for the veteran and an earlier effective date.

Decision written by Judge Stoll, and joined in by Judges Reyna and Taranto.

Stewart: A Long Strange Trip or Why IBS is a Stomach Disability

Stewart v. McDonald, Opinion Number 2014-7110 is a Federal Circuit unpublished decision that is notable for finding that a second NOD was not required after a denial specifically for IBS when in fact the issue of a stomach problems was already before the Board.

What is really notable about this unpublished decision is the detailed history offered by the Court.  It states “The above description of this veteran’s travails through the VA process—a description which for the sake of readability nevertheless leaves out much detail—well illustrates the problems a veteran faces when trying to navigate the complex rules and procedures that exist.  Here the veteran in the course of making a claim for benefits and seeking to have it adjudicated fairly had pieces of it dealt with by three difference regional offices—Muskogee, O.K., Winston-Salem, N.C., and Columbia, S.C.  Each RO proceeded to address the specific question they understood was before them, and each made various rulings, often accompanied by letters to the effect that other matters were still under consideration.”

For all of those struggling, know at least some judges at the Federal Circuit understand Kafkaesque nature of the VA appeals system.

Decision by Judge Plager and joined by Judge O’Malley.  Dissent by Judge Bryson, though he would still have remanded.

Yancy: Foot Disabilities and Extraschedular Considerations Raised

Yancy v. McDonald, Opinion Number 14-3390, decided February 26, 2016 involves a foot disability and possible ratings for pes planus and hallux vargas and individual unemployability (IU).

The veteran was granted a 10% rating for bilateral pes planus and service connected for hallux vargus of the left and right great toes but assigned a noncompensable rating. 

Regarding his foot disability the veteran argued to the court that the Board did not provide adequate reasons and bases for denying ratings under either DC 5281 (hallus rigidus) or DC 5284 (“Foot injuries, other”).

The veteran pointed to a medical record noting “pes planus and hallux valgus et rigidus on both sides.”  This note was ignored by the Board.  The Court found the hallux rigidus suffered by the veteran might be severe and thus entitled to a 110% rating, but that the Board must make that determination in the first instance.

Regarding “other foot injuries”, the Court held the plain meaning of the word “injury” limited to DC 5284 to disabilities resulting from actual injuries to the foot as opposed to disabilities caused by degenerative conditions.  (As a note, this distinction seems hard to maintain, many actual injuries lead to degenerative changes.).  However, the Court then stated that while DC 5284 is limited to disabilities resulting from actual injuries to the foot, nothing prevents the Board from rating closely related conditions by analogy under DC 5284.  The Court then determined that because the Board did not discuss whether the veteran’s unlisted conditions could be rated by analogy to DC 5284 and its failure to do renders its statement of reasons or bases inadequate.

Regarding individual unemployability, the Court noted that the Board must consider referral for extraschedular considerations where evidence of the record shows exception or unusual circumstances or where the veteran has asserted that a scheduler rating is inadequate. The Court explained the first two elements to consider in determining whether IU is raised is whether the evidence before the VA presents such an exceptional disability picture that he available scheduler evaluations are inadequate and whether the veteran’s exceptional disability picture exhibits other factors such as marked interference with employment or frequent hospitalization.  If the first two tests are met, the question must be referred to the Under Secretary for Benefits or the Director of Compensation Services for a determination of whether an extraschedular rating is warranted.

The Court also noted that Federal Circuit case law makes clear that extraschedular considerations should consider the collective impact of multiple service connected disabilities.

The Court then looked at whether extraschedular considerations had been raised by the veteran.  The Court noted the record reflected he could not stand or sit for long periods of time as a result of his service connected disabilities, and that was enough to raise the issue. 

This is an important case for espousing a fairly liberal view of what raises the issue of extraschedular considerations (inability to stand or sit for long periods of time).  While it also limits DC 5284 to actual injuries to the foot as opposed to degenerative changes, the impact of this limitation is muted 

by exhortation to consider a rating by analogy.

Decision by Judge Lance, Davis, and Greenberg.

Sowers: Section 4.59 Meets Its Limits

William Sowers v. McDonald, Opinion Number 14-0217, decided February 12, 2016  involves the

interpretation of 38 C.F.R. Section 4.59.

Section 4.59 states:  “With any form of arthritis, painful motion is an important factor of disability, the facial expression, wincing, etc., on pressure or manipulation, should be carefully noted and definitely related to affected joints. Muscle spasm will greatly assist the identification. Sciatic neuritis is not uncommonly caused by arthritis of the spine. The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. Crepitation either in the soft tissues such as the tendons or ligaments, or crepitation within the joint structures should be noted carefully as points of contact which are diseased. Flexion elicits such manifestations. The joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint.”

The veteran had a right ring finger disability that was rated under DC 5230 for limitation of motion at 0%.  The veteran was not entitled to a rating under DC 5010 because the arthritis was not confirmed by x-ray and was not ankyloses of the right ring finger.

The veteran argued Section 4.59 should assist in getting him a 10% rating because he didn’t just have limitation of motion, but also painful motion.

The Court found that 4.59 adds flexibility to the rating schedule by acknowledging painful motion that is not severe enough to qualify for a compensable rating.  However, the Court also found that “4.59 is not an independent provision that may be applied without an underlying DC: Section 4.59 is read in conjunction with, and subject to, the DC.”  The Court noted the relevant DC is 5230 and provides only a 0% rating and that a 0% rating indicates no reduction in earning capacity irrespective of impairment of motion.  The Court then said “Reading Section 4.59 in conjunction with DC 5230, Mr. Sower is not entitled to a compensable rating under this DC.  Section 4.59 intends to recognize actually painful joints and provide at least the minimum compensable rating for the joint.  There is no minimum compensable rating available under DC 5230, that is any level of disability warrants a 0% rating.  DC 5230’s specific finding that there is no impairment in earning capacity from any limitation of motion of the ring finger trumps the general intent in Section 4.59 to compensate painful motion with at least the minimum compensable rating.”

However, the case was not totally lost to the veteran.  The Board had denied extraschedular consideration of the disability, but had not considered the combined effects of his multiple finger disabilities of his right hand.  The Court noted that the CAFC had decided in 2014 that the Board must consider the “collective impact of all [the appellant’s] disabilities.”

This was an interesting argument to use Section 4.59 to leverage a higher rating for painful motion that was not mentioned in the relevant DC.  Unfortunately, the Court did not follow.

Decided by Judge Schoelen and joined by Judges Lance and Greenberg.

Gazelle: SMC(s)(1), When a Rating Should Not Be Combined

Frederick Gazelle v. McDonald, Opinion Number 14-2272, decided February 2, 2016 involves a case where the veteran sought SMC(s) for having an individual 100% rating and “additional service-connected disability or disabilities independently ratable at 60 percent or more.” 

The veteran had a 100% rating for PTSD and two ratings of 20% for his back and two 10% ratings for left lower and upper extremity radiculopathy.  The veteran sought a SMC rating, but the Board stated the additional back and radiculopathy ratings when combined using the combined ratings table only total 50%. 

The veteran argued that the statute in play 38 USC Section 1114(s)(1) does not mention the use of the combined rating table and the plain language meaning should be simply to add up his disabilities, which would result in a 60% rating and a grant of the SMC rating.

The Court rejected the veteran’s argument that the combined rating table should not be used and instead stated the Veteran’s Court and Federal Circuit have construed the phrase “additional disability or disabilities independently ratable at 60% or more” to mean that the disabilities should be combined. 

This was an attempt by the veteran and his attorney to expand the VA’s application of SMC(s) ratings and frankly a good argument.  The Court’s reliance on the Federal Circuit decision of Guerra v. Shinseki, 642 F.3d 1046, 1048 (Fed. Cir. 2011) does not appear on closer inspection to be directly applicable as the Court in Guerra was addressing “another independently rated disability or combination of disabilities rated at 60%”).  I would not be surprised if this case ends up before the Federal Circuit.

Opinion by Judge Schoelen, joined in by Judges Davis and Moorman.

Dent: Overpayment of Debts

Preston L. Dent v. McDonald, Case Number 13-2406, decided July 15, 2015 involves an overpayment created by an increase in income in a situation where the veteran was receiving a non-service connected pension. 

The veteran was receiving benefits under a non-service connected pension.  He subsequently started receiving Supplemental Security Income.  The veteran actually sent a copy of the decision to the RO along with his pension check and a letter stating he believed he is only to receive a portion of his check from the VA—“please contact me if I am wrong”.  The VA did not respond for nine months.  During those nine months, the veteran kept receiving and cashing VA pension checks.  Nine months later the VA determined an overpayment had been created.  The veteran later explained that after sending the letter “when the RO did not make an adjustment and instead continued to pay him at his regular pension rate, he assumed that he was entitled to full payment from both agencies.”  However, the VA found the debt for overpayment was properly created.

The law states an overpayment is not created when it is due solely to VA error.  An act or omission by the beneficiary or the beneficiary’s knowledge prevents an overpayment from being solely VA error.  The Court determined the veteran’s continued acceptance and cashing of pension checks with knowledge meant the overpayment was at least in part his fault.

The Court also refused to consider the issue of how much was owed by the veteran because the Board had not ruled on that issue, thought it remanded that issue for further consideration.

Judge Bartley wrote a spirited dissent that basically stated the veteran had done what he was supposed to do—inform the VA of his change in income from the SSA—and therefore he cannot be considered to be at fault.  She also rejected the idea the veteran had knowledge of the VA error because she said the record was replete with evidence the veteran was unsure what he should receive from the VA.  She laments that veterans “are forced to pay for VA’s failure to communicate consequences to veterans and to promptly respond to veteran’s income disclosures.”

The case does not appear to have been appealed to the Federal Circuit. 

Decision by Judge Moorman and joined by Judge Pietsch.  Dissent by Judge Bartley.

Aldridge: Untimely Appeals

Marion Aldridge v. McDonald, Opinion Number 14-3656, decided August 7, 2015 involves a case in the line of Henderson (stating the 120 days to file the NOA is not jurisdictional but procedural). 

The veteran filed the notice of appeal six months after the notice of appeal and explained that just prior to receiving the decision he suffered the death of his mother and sister.  And just following the receipt of the decision he suffered the death of his unborn granddaughter.  He stated these deaths (all within approximately 9 months) sent him into a depression and prevented him from filing. 

The Court granted the Secretary’s motion to dismiss the appeal because the notice of appeal was untimely.  The Court, while sympathetic, found equitable tolling was not warranted.  They noted he was able to take care of his elderly father, close the estate of his mother and sister, and maintain his job during this time. 

Judge Greenberg wrote a dissent noting arguing the result was too harsh and that equitable tolling should be granted.

This case shows that while equitable tolling is a possibility, it is a limited one.  It is incumbent on veteran’s to file the notice of appeal within the prescribed timeline or risk the appeal being dismissed.

Decided by Judge Lance and Davis.  Dissent by Judge Grenberg.

Petitti: Painful motion is Limitation of Motion and the Power of an Affidavit from a Family Member or Friend

Petitti v. McDonald, Case Number 13-3469, was decided October 28, 2015 and concerns the interplay between DC 5002 (arthritis in hands) and 38 CFR 4.59.

This case largely involves what evidence the VA is required to consider when making a determination of painful motion.  The veteran argued all evidence, including lay evidence, was to be considered whereas the Secretary argued for a higher degree of objective evidence.

Regarding the interplay of DC 5002 and Section 4.59, the Court held that “4.59’s reference to ‘painful motion’ is equated with the reference to ‘limitation of motion’ in DC 5002, a claimant with [rheumatoid arthritis] who demonstrates that he has painful motion of a joint is entitled to the minimum disability rating for that joint under DC 5002 and § 4.59, even though the claimant does not have actual limitation of motion.”

Regarding proving the painful motion, the Court found that “DC 5002 requires that limitation of motion must be corroborated by a person other than the veteran based upon that person’s observations.”  “Therefore, a lay description detailing observations of a veteran’s difficulty walking, standing, sitting, or undertaking other activities falls within the scope of ‘satisfactory evidence of painful motion’ that has been ‘objectively confirmed.”

In the case at hand, the Court found the record was replete with medical and lay evidence of actually painful joints. 

This case is helpful because it shows that a minimum rating may be obtained via Section 4.59 for arthritis for painful motion whether or not that necessarily results in a limitation of motion.  It also lays out that lay evidence (typically in the form of an affidavit of a family member or friend) can fulfil the role of objective evidence.

Decision by J. Schoelen and joined in by CJ Hagel and J. Bartley.

Section 1151 Claims and the Requirement that a Disability Must be Caused by Care, Treatment or Examination furnished by the VA

Ollis v. McDonald, Case Number 14-1680, was decided October 28, 2015 and concerns

the reach of a Section 1151 claim.

The veteran had been diagnosed with atrial fibrillation and received a pacemaker.  He continued to have problems with the pacemaker, specifically episodes of dizziness, light-headedness and faintness.  As a result he asked his VA cardiologist about a surgical alternative.  The VA cardiologist wrote that the surgery “is one available option.  The epicardial [surgical treatment] would be the current preference.  While this is not available to the VA (specialized operators and equipment are required), it could be performed at other local institutions.  Recommendations provided.”  Id. at *2.

The veteran than went to his private cardiologist to discuss surgical and medical approaches to treatment.  His private cardiologist notes do not mention any VA recommendation or referral.  The private cardiologist referred the veteran to another private cardiologist, who ultimately performed the surgery.  The surgery was not performed at a VAMC or paid for by the VA.  The veteran suffered damage to his right phrenic nerve during the procedure and his cardiac issues resumed.

The Board denied the veteran’s 1151 claim because while his VA cardiologist recommended the procedure as one option to treat the condition, the procedure was ultimately performed at a non-VA facility by a non-VA employee.  Id. at *4.

The veteran argued the medical advice of the VA cardiologist constituted medical treatment that causally connected to his claimed disability.  The Secretary argued that 1151 is limited to procedures performed by the VA or VA employees.

This case involves the second factor in an 1151 claim, the disability must have been caused by care, treatment or examination furnished by the veteran under any law administered by the Secretary, either by a VA employee or facility.

The majority looked at the history of 1151 and found it only requires a “causal connection” between the disability and VA treatment but also “does not extend to the ‘remote consequences’ of VA medical treatment.”  Id. at *6.  The Court then found the connection in this case is too attenuated.  Id. at *7.  It found the disability was at best “a remote consequence of—and not caused by VA’s conduct.  The majority stated that assuming the VA cardiologist’s advice and recommendation was medical “treatment,” it did not cause the veteran to have the surgery.  “Even assuming [the two private cardiologists] were two of the private doctors recommended by [the VA cardiologist], the fact remains that [the veteran was referred by one private cardiologist to another private cardiologist] and [the veteran] chose to have the … procedure performed by [the private cardiologist].  Based on these intervening and independent actions by non-VA actors, the conduct of [the VA cardiologist] suggesting some physicians to [the veteran] that could perform the … procedure, or even referring him to several physicians, is simply too remote from [the veteran’s] disability to be considered its cause.”  Id. at *8.

The majority also rejected the argument that the VA should have informed the veteran that undergoing a procedure at a non-VA facility might affect his eligibility for 1151 benefits.

The dissent by J. Greenberg is rigorous and powerful.  He finds the application of 1151 “unduly narrow and withdraws necessary protections from a rapidly growing class of veterans.”  Id. at *12. 

He explains “When a veteran’s doctor recommends a course of treatment, it is not a remote consequence of that recommendation for the veteran to pursue it.”  Id.  “The record indicates the appellant went to his doctor for medical advice, the doctor recommended that the appellant undergo the … procedure. And the appellant consequently had it performed, resulting in his … injury.  The connection between the doctor’s recommendation and the performance of the procedure here is hardly attenuated.”  Id. at *13.

J. Greenberg also notes the expanding number of veteran’s authorized to seek treatment at non-VA facilities and states he is concerned “the majority endorses absolving VA and its physicians of any duty to warn claimants when a medical recommendation jeopardizes eligibility for section 1151 benefits.”

This case operates to limit the reach of Section 1151 claims based on a somewhat nebulous standard—when something is “too attenuated” as judged by the Court.  The veteran has filed a notice of appeal to the Federal Circuit Court of Appeals.  This should provide the Court to help define the extent of a causation requirement in Section 1151 and I would not be surprised if they came down on the side of the veteran in this case.

Decision written by J. Kasold and joined in by J. Pietsch.  Dissent by Greenberg.