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

Thursday, May 26, 2016

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.

Wednesday, May 25, 2016

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