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.

VA's Obligation to Submit Alleged Stressors to the JSRRC: Send It Again

Gagne v. McDonald, Case Number 14-0334, was decided October 19, 2015 and concerns

the duty to assist within the confines of a confirmation of a PSTD stressor and the VA’s obligation to send a request to the JSRRC to confirm the event.

The veteran was diagnosed with PTSD and submitted a claim for it.  The alleged stressor was that sometime in 1967 or 1968 while in Thailand while he was assisting in building a road his sergeant was crushed between two large vehicles and the veteran tried to assist with the very bloody wounds.

The VA sent letters to the veteran asking him to state within a 2 month date when the event took place.  The veteran wrote that the incident occurred in 1967 or 1968.  A review of the veteran’s military records showed he was a driver with the engineering company in Thailand from August 1967 through August 1968.

The VA never submitted the claim to the JSRRC for confirmation because the claims adjudication manual requires the search be narrowed to a 60 day period, which was apparently done at the request of the JSRRC staff.  The Court looked at the relevant code section which states the “VA will end its efforts to obtain records from a Federal department or agency only if VA concludes that the records sought do not exist or that further efforts to obtain those records would be futile.” 

The Court also at the  implementing regulation and determined it states the veteran must provide enough information to identify and locate the existing records including the appropriate time frame and that “the claimant must provide information ‘sufficient’ for the records custodian to conduct a search for the corroborative records.” 

The Court noted the regulation does not define “sufficient” or grant the records custodian or VA the authority to define the parameters of sufficient.  It also noted the VA should make as many requests as necessary and should only quit when the search would become “futile”.  The Court stated the “VA did not, at the very least, submit multiple requests to the JSRRC, each covering a different 60-day period.”

The Court noted that it does not support creating JSRRC fishing expeditions, but also noted with regard to multiple requests that it does “not find the 13-month period in this case to be unreasonably long, given the particulars of the stressor provided by the appellant.”

This is an important case as it helps explain the VA’s duty to assist in confirming stressors, and makes clear multiple request to the JSRRC are called for when the stressor is defined and clear.

Decision written by Greenberg, joined in by J. Kasold and Davis.

Earlier Effective Dates and 3.156

Mitchell v. McDonald, Case Number 13-1245, was decided November 18, 2015 and concerns the earlier effective dates under 38 CFR Section 3.156 and the application of Beraud v. McDonald, 766 F.3d 1402 (Fed. Cir 2014).

The veteran sought service connection for hearing loss in 1972.  In 1973 the RO denied the claim finding the current existence of a hearing loss has not been established.  He did not appeal the decision, but did submit a private audiogram in December 1973 which showed current hearing loss.  In 1999 the veteran sought to reopen his claim and the RO denied his request without listing his 1973 audiogram as evidence.  The veteran did not appeal the decision.  In 2007 the veteran sought to reopen his claim and the request was once again denied.  Once again the 1973 audiogram was not listed as evidence.

In 2008 the RO received medical opinions explicitly linking his hearing loss to his service, reopened the claim, granted benefits for bilateral hearing loss, and assigned a 100% rating from the date of the final application for benefits.

The veteran sought an earlier effective date of 1973 because the RO never addressed the private audiogram which was submitted 2 months after the RO’s first decision.

28 CFR Section 3.400(q) states the when new and material evidence other than service department records are received within an appeal period or prior to an appellate decision, the effective date will be as though the former decision had not been rendered.  A related provision, 38 CFR 3.156(b) states new and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed, will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period.  In summary 3.156 means that when new evidence is submitted within an RO decision’s appeal period, the RO must consider it and prepare a supplemental statement of the case; failure to do so prevents the RO decision from becoming final.

The Court noted the Beraud decision and then stated “There is no dispute [the veteran] submitted additional evidence pertaining to his hearing loss claim within one year of the October 1973 RO decision that denied service connection for hearing loss.  Under  3.156(b), when a claimant submits evidence within the appeal period, the claim remains open until VA provides a determination that explicitly addresses this new submission.  Here, VA never issued a decision ‘directly responsive’ to [the veteran]’s December 1973 submission.  His August 1972 claim, therefore, ‘remains open.’”

Therefore, the Court remanded the matter to the Board to provide a determination responsive to the 1973 submission of the private audiogram and to assign an effective date consistent with the regulations.

Section 3.156 is a powerful device to reach back and gain an earlier effective date when the VA had failed to consider new evidence within the appeal time of an earlier decision. 

Decision by J. Bartley and Pietsch with dissent by J Kasold.

Beware Motions to Reconsider Before the Board: Impact on the Timeliness of a Notice of Appeal

Gomez v. McDonald, Case Number 14-2751, includes an order decided November 19, 2015 and concerns a facially untimely notice of appeal after the veteran’s motion to the Board was never responded to.  The Court found the notice was timely. 

The Board issued a decision in June 2013.  In July 2013 the veteran, who was pro se, filed a “motion for revision of Board decision pursuant to Subpart-Section 20.1400 Rule A&B) Inextricably Intertwined”.  In August 2014, the veteran filed a notice of appeal with the Veterans Court explaining the Board refused to reply to his Motion for Reconsideration.

The Court received from the Secretary proof the veteran had filed the July 2013 motion, but that a mailroom employee had determined the statement should be sent to the RO rather than being addressed by the Board.  The RO took no action beyond placing it in the claims file.  Still, the Secretary characterized the submission to revise the Board decision based on CUE and that no motions to reconsider had been received by the Board, and filed a motion to dismiss or alternatively to find the notice of appeal was timely. 

The veteran argued, now through counsel, that the July 2013 motion abate the finality of the Board decision and that his prematurely filed notice of appeal was made effective when the Secretary stated the motion was not one for reconsideration.  The Court noted that in Ratcliff v. Shinseki, 26 Vet. App. 356 (2013) the court acknowledged the Board’s policy of treating all written expressions of disagreement as motions to reconsider.  It then followed the veteran’s argument and accepted the Secretary’s later decision to regard the motion as something other than a motion to reconsider as the final date.

Attorneys frequently see instances where there remains confusion by veterans about whether to file a motion with the Board or a notice of appeal with the Court.  If you have time, consulting an attorney before filing either might be most effective.

Order by J. Lance and Bartley.  Dissent by J. Kasold.

Board Review of Extraschedular Disability Ratings

Kuppamala v. McDonald, Opinion Number 14-2449, was decided December 30, 2015 and concerns the Board’s ability to review extraschedular disability ratings under 38 CFR Section 3.321(b)(1). 

The veteran had been rated 40% under the Diagnostic Code for ulcerative colitis, status post colectomy, which is the highest rating under DC 7329.  A referral to the Director of Compensation and Pension decided an extraschedular rating was warranted and awarded a 10% extraschedular rating which raised the veteran’s overall rating to 50%.

Before the Board, the veteran presented compelling evidence that he could not work due to the frequency of his bowel movements, their impact on his sleep, energy, memory, and concentration.  The Board appears to merely have repeated the Director’s analysis and upheld his decision without conducting its own independent review of the evidence.  The veteran appealed on this ground.  The Secretary responded by stating neither the Board or the Court has the ability to review extraschedular disability ratings.

The Court found that in fact the statute and regulation governing extraschedular ratings did not commit the assignment of a rating solely to the Director’s discretion.  The Court noted the Director in acting to decide extraschedular ratings is taking the place of a RO adjudicator and thus must comply with the same requirement as the RO and provide adequate reasons for the decision and a summary of the evidence considered.  The Court also noted that the Board in reviewing the Director’s decision reviews it de novo and may assign an extraschedular rating when appropriate.

Finally, in the case at hand, the Court noted the Board must provide an adequate statement of reasons or bases for its decision.  The Court agreed the Board “summarily concluded that the 50% disability rating is appropriate.  As [the veteran] points out, the Board did not discuss the VA medical examinations or address his symptoms of loss of appetite, weight loss, chronic fatigue, problems with memory and concentration, and lower back and leg pain—all of which he reports affect his ability to work.”  The Court then noted “The Board’s limited analysis frustrates the Court’s ability to review the Board’s assessment of [the veteran]’s disability picture” and remanded the case for review by the Board.

Decision by J. Schoelen, joined by J. Davis and Bartley.