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.