Rossy: Hearing Loss and Referral for Extraschedular Consideration, Reconsidered

Rossy v. Shulkin, Case Number 16-0720, decided December 13, 2017 considers whether a claim for hearing loss should be referred for extraschedular consideration. 

The Court determined this case was controlled by Doucette v. Shulkin, 28 Vet. App. 366 (2017).  Essentially Doucette concerned a case where the scheduler rating for hearing loss was not dispute but the veteran believed it should have been referred for extraschedular consideration.  In Doucette the Court noted the Board only has to consider referral for extraschedular consideration when there is evidence in the record showing exceptional or unusual circumstances or where the veteran has asserted that a scheduler rating is inadequate. 

The Court here, said Doucette controls and noted the only particularized hearing problem was understanding conversations, particularly in noisy or crowded circumstances.  The Court noted that referral for extraschedular considerations might be necessary based on a collective impact of multiple disabilities but states the veteran’s attorney did not raise such an argument in his opening brief and such omission constitutes abandonment.  It further notes that even reviewing the record, the Court found no indication the veteran explicitly asserted the combined effects of bilateral hearing and his PTSD required extraschedular considerations nor reasonably raised the issue before the Board.

Judge Greenberg dissented and wrote the record reasonably raised the collective impact issue because the appellant has difficulties communicating because of his hearing loss and reported his PTSD causes feelings of detachment and estrangement from others. 

The lesson from this case might be to explicitly raise a combined effect argument when seeking extraschedular consideration.  However, the case also displays the Court taking a narrow view of what was raised by the veteran and before the Board, a concern when so many veterans are not represented by attorneys.

Decision by Judge Toth and joined by Judge Bartley.  Dissent by Judge Greenberg

Lyles: The Interplay Between DC’s in Knee Claims and Pyramiding

Lyles v. Shulkin, Case Number 16-0994, decided December 29, 2017 examines whether a veteran should also have received a rating under DC 5258 or 5259 in addition to ratings under DC 5257 and 5261.

DC 5258 and 5259 concern the dislocated or removed cartilage.  DC 5257 involves subluxation or instability and DC 5261 concerns extension.  The veteran received ratings for instability and limited extension under DC 5257 and 5261, but also sought a rating under either DC 5258 or 5259.

The Board found evidence of removal of semilunar cartilage. And,

acknowledged that the veteran experienced popping, locking, grinding, pain, swelling, looseness, and giving way or falling related to semilunar cartilage removal, but found that a separate evaluation under DC 5259 was not warranted because each of those symptoms was already “encompassed" by his current evaluations under DCs 5257 and 5261. Specifically, the Board indicated that the veteran's pain, swelling, looseness, and giving way or falling had been attributed to left knee lateral instability and were the very symptoms that formed the basis for the 30% evaluation under DC 5257.  Similarly, the

Board found that, because popping, grinding, and locking were symptoms of impaired motion, they were contemplated in the evaluation criteria for DC 5261 and had already "been considered in conjunction with the potential further impairment of motion" pursuant to DeLuca. The Board's DeLuca analysis consists primarily of its observation that there was "no clinical evidence that the [v]eteran has further range of motion impairment due to fatigability, incoordination, pain, or flare-ups, and the April 2010 and August 2015 examiners both commented that they could not say without resort to speculation what such impairment would be." Ultimately, the Board concluded that a separate left knee evaluation under DC 5259 would constitute impermissible pyramiding and denied the claim.

Id. at *4. 

The Court held that as a matter of law evaluation of a knee disability under DC 5257 or 5261 does not preclude a rating under either DC 5258 or 5259.   The Court noted “The crux of the Secretary's argument that, as a matter of law, evaluation under DC 5257 or

5261 precludes separate evaluation under DC 5258 or 5259, and vice versa, is that the meniscal DCs are so broadly drawn that they necessarily encompass recurrent subluxation, lateral instability, and limitation of motion, such that evaluation under DC 5257 or 5261 and DC 5258 or 5259 would necessarily result in duplicate compensation of the same manifestations of knee disability”.  Id. at *7.  The Court found the Secretary’s interpretation is contrary to the plain meaning of Section 4.71a and as that section did not specifically prohibit separate evaluations under DC 5257 or 5261 and a meniscal DC and instead states to evaluate each disability separate except when instructed by the rating schedule.

The Court then focused on whether the symptoms of Mr. Lyles's left knee disabilities already been compensated under DCs 5257 and 5261 such that separate evaluation under DC 5258 or 5259 is not warranted on the facts of this case?  Id. at *10.  The Court then turned to Delisle v. McDonald and a VA General Counsel Opinion from two decades prior.  The Court explained Delisle found

DC 5257 is unambiguous; by its plain language, it provides compensation for veterans suffering from impairments of the knee, other than those enumerated elsewhere in the relevant regulations, that cause the symptoms of recurrent subluxation or lateral instability." In so holding, the Federal Circuit expressly rejected the veteran's argument in that case that DC 5257 should be read to include manifestations of knee disability other than recurrent subluxation or lateral instability, concluding that "DC 5257 is limited to establishing compensation for disabilities causing such specifically enumerated symptoms."

Id. at *11.

The Court then found the Board read into DC 5257 criteria not in it (compensation for pain and swelling) and that such finding must be reversed.  Id. at *12.

The Court then acknowledged the error with regard to DC 5257 could be harmless if DC 5261 properly left knee meniscus disability (including pain and swelling) was compensated fully by DC 5261), but found that was not the case here. 

The Court noted that DeLuca factors could lead to an elevation of the DC 5261 rating, but found that not the case here.  The Court noted the veteran admitted the symptoms he complained of could have resulted in a higher rating pursuant to DC 5261 because of DeLuca but noted the “Board's reasons or bases for denying a higher left knee evaluation under DC 5261 reveal that those manifestations have not yet been compensated in this case.”  Id. at *14-15.  It also stated:

The Board then considered §§ 4.40 and 4.45 and explained that there was "no clinical evidence that the [v]eteran has further range of motion impairment due to fatigability, incoordination, pain, or flare-ups" because the April 2010 and August 2015 VA examiners "both commented that they could not say without resort to speculation what such impairment would be." …

Ultimately, the Board concluded that, "[w]ithout clinical medical evidence indicating such additional functional limitation, the Board is unable to find that the [v]eteran's pain is so disabling as to actually or effectively limit . . . extension of the left knee to such an extent as to warrant assignment of higher ratings." This analysis is inadequate in several respects.

Id. at *15.

The analysis was inadequate because the Board focused on pain and did not also consider swelling, popping, locking, and grinding; and, the reliance on the examinations was error due to the court’s recent decision in Sharp related to resorting to mere speculation regarding flare-ups (Sharp focused on interviewing the veteran to assist the physician).  The Court then concluded  

it is clear that the Board has not yet properly assessed whether Mr. Lyles's pain, swelling, popping, locking, and grinding associated with his left knee meniscal disability have been compensated by his current left knee evaluations under DC 5261. Remand of the veteran's left knee meniscal disability claim is therefore warranted to determine whether

separate evaluation of a meniscal disability under either DC 5258 or 5259 is warranted on the facts of this case or whether such evaluation would constitute impermissible pyramiding.

Id. at *17.

This decision by Judge Bartley first explains that DC 5258 and DC 5259 are stand-alone codes that compensate for a knee disability in addition to other knee centered codes.  It also is valuable for tackling the subject of pyramiding and making it a very fact specific determination focused on the actual compensated manifestations of a disability.

Decision by Judge Bartley, joined by Chief Judge Davis and Judge Greenberg.

Frost: Secondary Service Connection Does Not Require Prior Service Connection of the Underlying Disability

Frost v. Shulkin, Case Number 15-3102, decided November 30, 2017 considers service connection for a secondary condition and whether the underlying condition had to be diagnosed or service connected prior to the occurrence of the secondary condition.

The veteran suffered injuries in a train accident while in service and was ultimately granted service connection for PTSD related to such accident.  However, a couple years after discharge and approximately two decades prior to service connection or even diagnosis of the PTSD, he was involved in an altercation wherein he was shot.

The veteran was applied for and was service connected for his PTSD and then a few years later sought service connection for the gunshot residuals saying they occurred due to his PTSD and thus were caused by his service connected PTSD.  The RO and Board denied the claim.  The Secretary initially argued in his brief that the veteran could not be service connected for an injury that occurred before the underlying condition was either diagnosed or service connected.  At oral argument, the Secretary withdrew this contention and conceded that a veteran may be granted secondary service connection on a causation basis even when the purported primary condition is the subject of diagnosis and award of service connection after incurrence of the purported secondary condition.  Id. at *5.

The Court, in an attempt to clarify the issue for future veterans, examined the Secretary’s initial temporal argument.  It noted “However, the plain language of § 3.310(a)—that a disability ‘proximately due to or the result of a service-connected disease or injury shall be service connected’—does not establish such a temporal requirement. See Petitti, 27 Vet.App. at 422. Nothing in the text of the regulation specifies or indicates that the primary condition must be service connected, or even diagnosed, at the time the secondary condition is incurred.” Id. at *6.

It further stated “Because no language in the text refers to such a temporal requirement, the Court concludes that the plain meaning of § 3.310(a) is clear in this regard and we reject the Secretary's interpretation that would have Mr. Frost's claim barred as a matter of law.”  Id. at *7.

The Court also delayed VA delay in resolving claims and used the delay as a reason why the VA’s interpretation does not make sense.  Id. at *7.

The Court then remanded the claim because the Board failed to provide adequate reasons or bases for its failure to seek a VA examination or medical opinion on the issue.  The Court also noted several pieces of evidence ignored by the Board and took the Board to task for making its own medical determination.  Id. at *9-10.

This is a case with unusual facts that solidifies what should have been already accepted by the VA, that a secondary disability can arise before the underlying condition is diagnosed or service connected.  Also, while having unusual facts, they are facts that appear not infrequently in PTSD situations.

Decision by written by Judge Bartley and joined in by C.J. Davis and Judge Schoelen.

An Excellent Article on VA Delay and Dysfunction

https://nyti.ms/2jooBlF

James: Equitable Tolling and Filing the Notice of Appeal

James v. Shulkin, Case Number 16-1948, decided October 30, 2017 is another in the line of cases dealing with the equitable tolling of the time allowed to file the notice of appeals with the Court of Appeals for Veterans Claims. 

In this case, the veteran placed his notice of appeal (NOA) in his personnel mailbox the day the NOA was due to be sent.  He then raised the mailbox flag on his box and went out of town for the weekend.  When he got back, he found the mailbox flag was lowered and the mail had not been taken.  He then mailed it at his local post office, outside of the 120 day filing period.  The Court ordered the veteran to show cause why the NOA should not be dismissed as an untimely filing. 

The Court noted equitable tolling is to be determined on a case by case basis, but must be allowed if  the veteran shows three elements (1) extraordinary circumstance; (2) due diligence; and (3) causation.

The veteran argued “ the 120-day appeal window should be equitably tolled because an errantly lowered flag on his residential mailbox constitutes an extraordinary circumstance beyond his control. He argues that "[t]his extraordinary circumstance is akin to other cases in which veterans have filed their NOA on time, but in the wrong place," citing Santana-Venegas, 314 F.3d at 1293, where the veteran timely filed his NOA, but mailed it to the RO instead of the Court.”  Id. at *2.  The Court rejected this argument, saying

The logic of the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) in Santana-Venegas does not apply in this case. The Federal Circuit explicitly noted that "'[m]isfiling cases within the veterans' system are unlike the typical late-filing cases where the limitations period expires before the would-be claimants perform any action to preserve their legal rights.'" Santana-Venegas, 314 F.3d at 1297 (quoting Jaquay v. Principi, 304 F.3d 1276, 1287-88 (Fed. Cir. 2002) (citations omitted)). In the case at hand, Mr. James did not timely misfile his appeal to this Court; rather, he placed his NOA in his personal mailbox on the last day of the appeal period, left town for the weekend, and ultimately mailed his NOA 4 days late. The Court declines to hold that the

alleged extraordinary circumstances here are like those in Santana-Venegas and other timely misfiling cases.

Id. at *2.

The Court finally concluded that “a fallen mailbox flag is not an extraordinary circumstance beyond the appellant's control that warrants equitable tolling, but rather an ordinary hazard of last-minute mailing that could have been avoided but for the appellant's "garden variety neglect."  Id. at *2-3.

Judge Greenberg wrote a dissent that pointed to a key difference in this case and Santana-Venegas.  He noted the majority found “the facts here are akin to ‘the typical late-filing cases where the limitations period expires before the would-be claimants perform any action to preserve their legal rights.’ See ante at 2 (emphasis added) (quoting Santana-Venegas v. Principi, 314 F.3d 1293, 1297 (Fed. Cir. 2002)) (internal quotation marks omitted). Yet, it is undisputed that the appellant placed his NOA in the mailbox on the 120th day, and thus did everything required of him to ensure timely mailing under 38 U.S.C. § 7266.” Id. at *3.  He then essentially argues the majority relies on old case law that ignores repeated admonishments from the Federal Circuit for denying tolling and arguing “The Court must start applying its equitable powers more broadly.”

The decision is a warning to veterans and practitioners that they need to file their notice of appeal quickly and without delay.

Per Curiam Decision by Judges Schoelen and Pietsch. Dissent by Judge Greenberg.

Mead: A Late EAJA Fee Application and Equitable Tolling

Mead v. Shulkin, Case Number 15-015(E), decided October 27, 2017 considers a late EAJA application and whether equitable tolling might apply.  The Court seems to admit that equitable tolling could apply, but rejects it in this case.

This is a sad case where an attorney helped a veteran, but then was diagnosed and had surgery at nearly the same time a joint motion for remand was made.  The attorney submitted a late EAJA application and pointed to her cancer diagnosis and surgery as well as related depression.  The Court requested additional information as to the attorney’s condition and specifically asked her to seek an opinion from her medical providers as to her capacity to handle her affairs during the period to be tolled.  The attorney wrote back declining to provide further information in light of a concern for her privacy and pointed to her professional responsibility of candor to the court.

The Court denied her EAJA application noting she could have sought to have any submission sealed. 

Judge Greenberg wrote an impassioned dissent that noted the attorney’s potentially life threatening illness and noted the attorney’s professional license is contingent upon candor with the court and that absent a specific reason to doubt such candor, the Court should presume its truth.  The dissent further and attacked the Internal Operating Procedure of the Court.  Specifically, he notes 28 USC 7254 states a majority of the judges of the Court shall constitute a quorum for the transaction of the business of the Court, but notes that only two of his colleagues expressed disagreement with his single-judge decision and voted the matter to panel.  The Court had six active members.  He argues that sending a matter for precedential panel disposition constituted business of the court and should have required a 4 vote majority and highlights how this internal operating process is different compared to other appellate courts.  

Greenberg ends with as poetic a paragraph as you might find in an appellate decision:

Any disagreement with my exercise of my own equity discretion in February 2017, when I originally granted tolling of the appellant's EAJA application, should have been pursued by one of the parties through an appeal or motion for reconsideration, or at the very least should have been disturbed only by a "majority of the judges of this Court." 38 U.S.C. § 725(c)(1). A process that allows for a single Judge's veteran-friendly decision to be overturned merely because two other Judges disagreed goes against the intent of Congress in creating our Court, which was to "place a thumb on the scale in the veteran's favor in the course of administrative and judicial review of VA decisions." Henderson, 562 U.S. at 440. I do not believe that in establishing our Court, Congress intended such limitless dilution of a single Judge's statutory authority. It is for these reasons that I dissent.

Per Curiam decision by Judges Schoelen and Bartley, J. Greenberg issued a dissent.

Susic: Substitution of An Adult Child Upon a Veteran’s Death

Susic v. Shulkin, Case Number 13-0158, decided October 26, 2017 considers the ability to substitute an adult child upon a veteran’s death.  At issue was potentially over a decade of accrued benefits related to an earlier effective date.  The case had resulted in numerous appeals and the veteran died shortly after the Federal Circuit remanded the case.

Three adult children of the veteran sought to be substituted.  They argued that while they were adult children, the potential earlier effective date involved a time when the children were still minors.

Substitution is governed largely by 38 USC 5121 as well as 38 USC 101(4)(A) which defines child as an unmarried person under 18 or who before turning 19 became permanently incapable of self-support or who is over 18 but less than 23 and seeking higher education.

The Court determined

In section 5121 of title 38, U.S. Code, Congress stated that an accrued benefits

determination is to be made "upon the death of a veteran." 38 U.S.C. § 5121(a)(2). It is clear from the plain language of the statute that to qualify as an accrued benefits beneficiary, an individual must satisfy the requirements of the statutory framework for these benefits when the veteran dies as opposed to at some point during the pendency of the veteran's claim.

The Court also addressed appellant’s arguments that the law had been changed by Congress and stated:

The Court also concludes that the appellant's counsel has failed to persuade the Court that

when it enacted section 5121A, Congress intended to fundamentally change the accrued benefits beneficiary framework. See Hilkert v. West, 12 Vet.App. 145, 151 (1999) (en banc) (finding that the appellant bears the burden of persuasion on appeals to this Court), aff'd per curiam, 232 F.3d 908 (Fed. Cir. 2000) (table). Congress enacted 38 U.S.C. § 5121A to "improve and modernize VA claims processing." Breedlove, 24 Vet.App. at 14. The appellant's counsel has not identified any support for the proposition that Congress intended section 5121A to change anything other than how VA processed its claims, particularly as it relates to the dependency requirements for accrued benefits beneficiaries.

  

This case is an example of the fundamental unfairness that can result from the VA’s dilatory measures in making a fair decision.  Delays can result in the death of a veteran and a situation where the VA never has to pay the benefits that were long owed.

Per Curium decision by Judges Schoelen, Pietsch, and Greenberg.

Urban: Obstructive Sleep Apnea and Asthma and Agency Deference

Urban v. Shulkin, Case Number 15-3744, decided September 18, 2017 considers 38 CFR Section 4.96(a) and how to evaluate two disabilities on the basis of the predominate respiratory disability alone.  Underpinning this case is extensive case law calling for courts to defer to reasonable agency interpretations of regulations.

Here, the veteran was service connected for both asthma and obstructive sleep apnea, but only given a 60% rating based on the asthma.  The Board noted that if rated separately, the OSA disability would be evaluated at 50%, but noted 4.96(a) called for awarding a rating for the predominate respiratory disability. 

Section 4.96(a) provides that:

[r]atings under [DCs] 6600 through 6817 and 6822 through 6847 will not be combined with each other. . . . A single rating will be assigned under the [DC] which reflects the predominant disability with elevation to the next higher evaluation where the severity of the overall disability warrants such elevation.

The veteran argued the phrase requires the VA to look at symptoms of both disabilities and rate them under DC 6602, essentially arguing his symptoms need not match the criteria for a higher evaluation listed in listed in DC 6602 to obtain a higher evaluation under 4.96(a) and that OSA symptoms not listed in DC 6602 may form the basis of a higher evaluation under DC 6602. 

The VA contended that after determining which disability is predominate (which gives a higher rating), the VA should then apply the predominate disability diagnostic code and consider all symptoms attributable to either disability that is found in the predominate diagnostic code.

The Court found 4.96(a) was ambiguous and determined the VA’s interpretation was warranted deference.  If found the VA’s interpretation was reasonable and consistent and this interpretation would avoid pyramiding. 

The veteran then argued that the VA’s application of 4.96(a) is flawed because the symptoms and treatment for OSA and asthma are so different.  The Court then noted:

[U]nderlying his argument seems to be genuine disagreement with VA's decision to construct the rating schedule to prevent OSA from receiving its own separate evaluation in this instance. 

However, "[t]he Court may not review the schedule of ratings for disabilities adopted under section 1155 of this title or any action of the Secretary in adopting or revising that schedule."  38 U.S.C. § 7252(b).  "The Secretary's discretion over the [rating] schedule, including procedures followed and content selected, is insulated from judicial review with one recognized exception limited to constitutional challenges." Wanner v. Principi, 370 F.3d 1124, 1131 (Fed. Cir. 2004).  Section 4.96(a) clearly prohibits conventional evaluation practices from being applied in this case.  38 C.F.R. § 4.96(a) ("Ratings under DC 6600 through 6817 and 6822 through 6847 will not be combined with each other"). Despite Mr. Urban's discontent with the effect of § 4.96(a) in his case, the Court has no authority to address whether OSA and asthma are so dissimilar that § 4.96(a) unfairly operates to his disadvantage. See id.

The veteran also argued the case should have been referred for extraschedular considerations, but the Court rejected this argument as well.

This is a narrow decision addressing 38 CFR Section 4.96(a) and the use of a predominate respiratory disability, however, it also demonstrates how agency deference can work against a veteran.  It certainly shows a failing of the respiratory disability regulations, but also shows the Court will defer to the VA’s interpretation in many situations.  However, the veteran may still have a path forward using TDIU, which should allow for the use of symptoms or both OSA and asthma.

Decision by Judge Bartley, joined in by Chief Judge Davis and Judge Pietsch.

Jensen: Specially Adapted Housing and “loss of use”

Jensen v. McDonald, Opinion Number 15-4788, was decided September 12, 2017 and concerns the eligibility of a veteran to specially adapted housing (SAH).

The veteran needs a cane to ambulate and for a while effectively used aqua-therapy.  However, the travel and expense to aqua therapy was onerous.  Therefore, he sought SAH to install a therapeutic pool.  The veteran was service connected for radiculopathy of both extremities at 10% as well as a rating for his cervical and lumbar spine, urinary condition, and SMC.  While rated schedularly at 90% he was receiving TDIU.

The VA agreed the veteran met the permanent and total service connected requirement and the pool was a type of SAH available.  The argument was over subparagraph (B), the Court stated:

The portion of subparagraph (B) that applies to this case states that, to be eligible for SAH, a veteran's disability must be "due to the loss, or loss of use, of both lower extremities such as to preclude locomotion without the aid of braces, crutches, canes, or a wheelchair." 38 U.S.C. § 2101(a)(2)(B)(i). The Board made no findings against the appellant concerning the phrases "due to" and "both lower extremities." The Board determined that the appellant's locomotion is "precluded . . . without the aid of braces, crutches, canes, or a wheelchair." That finding is favorable to the appellant. The Court, therefore, will not disturb it. See Medrano v. Nicholson, 21 Vet.App. 165, 170 (2007). The Board also concluded, however, that the appellant's "serviceconnected disabilities do not result in the loss of use of . . . lower extremities." The only question raised by this case, then, is whether his disabilities produce a "loss of use" of both of his lower extremities.

Id at. *4.

The Board and Secretary argued the phrase “such as” in section 2101(a)(2)(B)(i) means “and” essentially arguing the section means “a veteran is eligible for SAH if his permanent disability produces (1) loss, or loss of use of both lower extremities; AND (2) precludes locomotion without the aid of braces, crutches, canes, or a wheelchair.”  Id. at *4. 

“The appellant assert[ed] that the Board erred by ignoring the plain meaning of the phrase "such as." He argues that section 2101(a)(2)(B)(i) clearly conveys that a "loss of use" exists if a veteran's locomotion is precluded without the aid of braces, crutches, canes,

or a wheelchair.  Id. at *4.

The Court accepted the veteran’s reading of section 2101(a)(2)(B)(i).  It noted that

In the scheme that the Secretary envisions, a veteran who has a reduction in the functionality of his lower extremities so severe that he cannot walk without a cane might be ineligible for SAH because he does not have some sort of additional loss of use. Taken one step farther, the Secretary's argument and the Board's findings in this case suggest that the Board believes that it could conclude that a permanently wheelchair-bound  veteran who is entitled to receive disability benefits for a disorder that causes a reduction in functionality in both lower extremities so severe that he cannot walk does not have a loss of use sufficient to warrant SAH.  That creates an undefinable and unworkable standard laden with an unacceptably high potential for absurd and unfair results.

We think it better to view "loss of use" in a manner consistent with the definitions discussed above. It is a deprivation of the ability to avail oneself of the anatomical region in question. It is a general term, one that can readily accept additional specificity in various circumstances.

"Such as" is, if nothing else, a directional phrase, and it links "loss of use" to preclusion in section 2101(a)(2)(B). Consequently, in that provision, a loss of use exists if a veteran has suffered a deprivation in his ability to use his lower extremity so severe that he is precluded from perambulating without one of the required assistive devices.  That definition comports with VA's view of preclusion.

Id. at *14-15

The Court acknowledged the VA’s concerns that too loose a standard would open SAH to all individuals prescribed an assistive device in conjunction with a lower extremity disability.  However, it stated that the VA needs not concern itself with too loose a standard as “That individual must (1) have a permanent and total disability (2) due to a disorder that (3) involves both lower extremities and (4) causes a loss of use so severe that it precludes locomotion without the regular and constant use of assistive devices. There are plenty of limitations built into that standard.”  Id.at *16.

Judge Bartley wrote an interesting concurrence essentially arguing the Court should use the “loss of use” standard as defined in the SMC contexts, which the Secretary had urged.  However, she would have ruled the veteran did meet that standard because the Board had already ruled the veteran’s locomotion was precluded and found the “loss of use” standard would have been triggered by that finding.

This is an interesting case that tests the bounds of SAH and the term loss of use.  While seemingly limited to SAH uses, it might assist in defining “loss of use” in other contexts, such as SMC.

Decision by J. Pietsch, joined in by J. Greenberg.  J. Bartley wrote a concurrence.

Sharp: DeLuca, Lay Statements and Inadequate Medical Examinations

Sharp v. Shulkin, Case Number 16-1385, decided September 6, 2017 examines a medical examination’s adequacy in light of its statement that “It is not possible without mere speculation to estimate either loss of [range of motion] or describe loss of function during flares because there is no conceptual or empirical basis for making such a determination without directly observing function under these circumstances.”

The Court began by noting that DeLuca states

that a VA joints examination that fails to consider the factors listed in §§ 4.40 and 4.45 is inadequate for evaluation purposes. Specifically, for an examination to comply with § 4.40, the examiner must "express an opinion on whether pain could significantly limit functional ability" and the examiner's determination in that regard "should, if feasible, be portrayed in terms of the degree of additional range-of-motion loss due to pain on use or during flare-ups." … Flareups, in other words, must be factored into an examiner’s assessment of functional loss.

(internal quotation marks and alteration omitted);

The Court also noted that the VA Clinician’s Guide states “When conducting evaluations for musculoskeletal disabilities, examiners are instructed to inquire whether there are periods of flare and, if the answer is yes, to state their severity, frequency, and duration; name the precipitating and alleviating factors; and estimate, "per [the] veteran," to what extent, if any, they affect functional impairment. See generally id., ch. 11. These instructions appear in worksheets pertaining to musculoskeletal examinations of the spine, shoulders, elbows, wrists, hips, knees, ankles, feet, and hands, as well as muscles.”

The Court notes that an examination during a flare-up is not always required and that sometimes a medical opinion can state it can’t offer an opinion without resorting to speculation.  Id. at *6-7.  But, the Court notes that Jones v. Shinseki, 23 Vet. App. 382 (2010), “permits the Board to accept a VA examiner's statement that he or she cannot offer an opinion without resorting to speculation, but only after determining that this is not based on the absence of procurable information or on a particular examiner's shortcomings or general aversion to offering an opinion on issues not directly observed.”

The Court then finds in this case the Board failed to provide adequate or bases for its determination the examination was adequate.  It then importantly notes “Fortunately, neither the law nor VA practice requires that an examination be conducted during a flare for the functional impairment caused by flares to be taken into account. Instead, DeLuca and its progeny clearly, albeit implicitly, anticipated that examiners would need to estimate the functional loss that would occur during flares, as is evident from the fact that Mr. DeLuca's left shoulder disorder flared only "at times.”  Id. at *8.

Thus, the Court noted:

The critical question in assessing the adequacy of an examination not conducted during a

flare is whether the examiner was sufficiently informed of and conveyed any additional or increased symptoms and limitations experienced during flares. See Mitchell, 25 Vet.App. at 44.  Moreover, because the September 2015 VA examiner declined to offer an opinion as to additional function loss during flares "without directly observing function under these circumstances," R. at 125, her position is at odds with VA's guidance on the matter. As noted above, the VA Clinician's Guide makes explicit what DeLuca clearly implied: it instructs examiners when evaluating certain musculoskeletal conditions to obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves.

Id. at *9.  Thus, the examination here was inadequate because the examiner did not elicit relevant information as to the veteran’s flare-ups or ask him to describe the additional functional loss during flares or explain why the examiner failed to do so.  Id.  The Board also erred by relying on this inadequate examination.  Id. at *11. 

The Court then dealt with the Secretary’s argument that the record did not contain adequate information as to functional loss and turns the argument against the VA.  It stateds “the Court agrees, with the caveat that the examiner herself was responsible for

failing to elicit such information. However, to the extent that the Secretary is asserting that a veteran's statements can never provide an adequate basis on which to formulate an opinion regarding additional functional loss during flares, that assertion is inconsistent with this Court's case law and VA's own practice as set forth in VA's Clinician's Guide.”  Id. at *11. 

In a footnote, the Court does state an examiner or the Board is not required to accept a veteran’s allegations regarding flare-ups if inconsistent with other reliable evidence.  Id. at n. 5.

This decision by Judge Bartley is a powerful tool to veterans.  It forces the VA to seriously consider the lay statements of veterans regarding functional loss under DeLuca.  It also underscores the fact a veteran should be able to articulate the functional loss aspect of his musculoskeletal disabilities before he goes into an examination.

Decision by Judge Bartley, joined by Judges Pietsch and Greenberg.

Patricio: DIC and Proving a Marriage

Patricio v. Shulkin, Case Number 15-3924, decided August 31, 2017 examines a claim of DIC and whether a prior marriage had resulted in a divorce.  The interesting issue is that the issue had been decided by the VA in 1986 and found against Patricio.

While the veteran was alive in 1986, a RO decision denied certain benefits based on a determination that a marriage to Ms. Patricio was not valid under the law of the Philippines.  After the veteran died, Patricio as well as a prior spouse both filed for DIC.  The VA denied DIC to Patricio but granted as to the prior spouse.

The issue was the effectiveness of a divorce in California from the prior spouse.  The veteran and prior spouse were married in the Philippines in 1968 and purportedly divorced in California in 1973.  In 1986, the VA found that the divorce in California was not valid and so the second marriage was not valid.  The rationale in 1986 was that while under California law the divorce was valid, the veteran’s domicile during and following service remained the Philippines and the law of the Philippines governed and the Philippines rejects foreign divorces of its citizens.

The rub was that there was evidence the veteran became a citizen sometime before the California divorce.

First, the Secretary argued the Court lacked jurisdiction.  The Secretary’s argument was that Patricio was effectively making a CUE challenge to the 1986 decision and as she had not actually filed a CUE claim and a CUE claim had not been ruled on, the Court lacked jurisdiction.  The Court rejected this out of hand, noting the both alleged spouses filed for DIC and because Patricio’s claim was denied.  As to the CUE argument, the Court noted she was not entitled to file a CUE motion as to the 1986 decision because such motion could only be filed by the claimant—and the claimant was the veteran, not her). 

Next, the Court noted 38 CFR 20.1106 states except in situations not relevant to this claim, “issues involved in a survivor’s claim for death benefits will be decided without regard to any prior disposition of those issues during the veteran’s lifetime.”  The Court found” “This means that for purposes of her pursuit of survivor benefits, including surviving spouse status, the prior unfavorable October 1986 RO decision determine that the veteran’s 1980 marriage to Ms. Patricio could not be legally recognized is of no moment.”  Id. at *7. 

Finally, the Court found the Board’s decision was undergirded by the notion that the veteran’s divorce could not be valid because he was still a citizen of the Philippines.  However, both parties agreed he Board failed to make a factual finding as to citizenship at the time of the 1973 divorce.  The Court refused to make a factual finding as to citizenship and remanded the case to the Board for such initial determination.  However, it pointed out that under the law of the Philippines, when a foreign national married to a Philippine citizen obtains a valid foreign divorce, the law of the Philippines recognizes such divorce. 

On remand, the Court also found that it was necessary for the Board to notify the first spouse and current recipient of DIC of any future hearing as she could possibly lose her benefit.

Decision by Judge Bartley, joined by Chief Judge Davis and Judge Greenberg.

Garcia: CUE and Due Process

Garcia v. Shulkin, Case Number 15-3669, decided August 9, 2017 examines an allegations of a violation of due process in the context of a CUE claim.

The veteran and veteran’s spouse argued clear and unmistakable error regarding service connection for his mental state. 

The Court reaffirmed the pre-existing rule from Hillyard  v. Shinseki, 24 Vet. App. 343 (2011) which states that all possible errors in a final Board decision be raised at the time a motion for revision of that Board decision based on CUE is filed and that no later CUE challenges to a Board decision may be entertained.  Hillyard essentially says you have one chance at a CUE claim and that you had better make all your arguments when you have the chance.

This case involved a prior remand related to the CUE claim for the Board to consider a newly-raised theory of CUE.  In its decision, the Court found they should have remanded for consideration of a newly-raised theory of CUE in light of the rule from Hillyard.  The result was they dismissed the appeal based on a lack of jurisdiction. 

The Court further explained that constitutional due process arguments also can’t be newly-raised in a second CUE claim or added after the CUE claim has been made.  The Court looks at a prior decision by the Federal Circuit that notes that a breach of a duty to assist may not form the reason for a CUE claim. 

This decision is a reminder that a CUE claims should be well-thought out before filing.

Decision by Chief Judge Davis and joined in by Judges Pietsch and Greenberg.

Molitor: Military Sexual Trauma and the VA’s Duty to Assist

Molitor v. Shulkin, Case Number 15-2585, decided June 1, 2017 examines the necessary steps the VA must take to assist a veteran in substantiating a claim of military sexual trama.

The veteran sought service connection for PTSD from a MST.  PTSD/MST claims have a relaxed standard of evidence necessary as explained in 28 CFR Section 3.304(f)(5).

Similarly, there exists a general duty for the VA to assist in developing a claim.

Finally, the VA’s General Council has issued an opinion, GC Precedent Opinion 05-14, which addresses what steps the VA must take to obtain records from servicemembers, other than the claimant, including third party records that may aid in corroborating an alleged personal assault.

The Court found the Board erred in failing to address the GC Precedent Opinion in this case.  Here, she identified several of her assailants, the approximate date of the incident, and ranks and names of four witnesses.  She also identified other women stationed with her that she believed had been sexually assaulted. 

The Court determined:

“The Court is likewise persuaded that the identified records were relevant to and may aid in substantiating the veteran's claim. The alleged assailant's service medical records may show complaints of or treatment for injuries inflicted by Ms. Molitor that would corroborate her account of the rape; the service records and VA claims files of the identified women serving with her in Germany may reflect reports of similar assaults or claims for service connection for residuals of MST that could establish a rape culture at the base; and service records that confirm Private Lutz's suicide would bolster the credibility of Ms. Molitor's reports of other events that occurred in Germany in 1986.  The Court therefore concludes that, for duty to assist purposes, the foregoing records are relevant and have a reasonable possibility of substantiating the veteran's claim because they relate to the claimed initiation rape and may aid in corroborating that stressor.”

Id. at *16 (internal citations omitted).

The Secretary also tried to argue that the veteran was not credible and therefore the VA did not have to attempt to obtain these materials.  The Court found otherwise, finding:

“Given that Ms. Molitor adequately identified relevant records of fellow servicemembers

that may aid in substantiating her claim, G.C. Precedent Opinion 05-14 was applicable to her claim and the Board was required to consider it in assessing whether VA satisfied its duty to assist. Although the Secretary argues that the Board's finding that Ms. Molitor was not credible excused its failure to specifically discuss that G.C. opinion that argument puts the cart before the horse.”  Id. at *16 (internal citations omitted).

The Court then concluded by stating: “Accordingly, the Court holds that where, as here, a claimant pursuing service connection for PTSD based on an in-service personal assault adequately identifies relevant records of fellow servicemembers that may aid in corroborating the claimed assault, G.C. Precedent Opinion 05-14 is applicable to the claim and VA must either attempt to obtain such records or notify the claimant why it will not undertake such efforts. The Board's failure to discuss the G.C. opinion and VA's lack of efforts to attempt to obtain the third-party records identified by Ms. Molitor when assessing whether VA satisfied its duty to assist renders inadequate the Board's reasons or bases for denying her claim.

This decision is a masterful explanation of the duty to assist in cases involving Military Sexual Assault and PTSD and provides a resource that all advocates should use when developing these types of cases

Decision by Judge Bartley, joined by Chief Judge Davis and Judge Greenberg.

Cantrell: TDIU and the “Protected Environment”

Cantrellv. Shulkin, Case Number 15-3439, decided April 17, 2017 considers whether the term “protected environment” in the TDIU context.

The veteran worked as a park ranger, but had significant bilateral hip pain and gastrointestinal issues.  He sought an award of TDIU stating he worked in a protected environment in light of the substantial and numerous accommodations provided by the employer.  and was denied by the Board which found he did not work in a “protected environment.”  The veteran appealed.

During the case, the Court specifically ordered the VA to provide its definition of a protected environment and was told that "VA has purposely chosen not to prescribe a

precise definition of 'protected environment,' allowing the factfinder to make the determination on a case-by-case basis."  Id. at *10.

The Court did not take well to the VA’s position stating “VA's failure to define employment "in a protected environment" or to otherwise specify the factors that adjudicators should consider in making that determination frustrates judicial review of that issue because the Court is unable to meaningfully assess the propriety of the Board's reliance on the factors it cited in this case. The Court simply cannot sanction a statement of reasons or bases that amounts to finding that Mr. Cantrell was not employed in a protected environment  "because I say so." Accordingly, the Court concludes that the Board provided inadequate reasons or bases for denying entitlement to TDIU, necessitating remand.”  Id. at *11-12 (internal citations omitted).

The Court found the term “protected environment” was ambiguous, but declined to define the term at this time instead remanding giving the VA an opportunity to first define the term.

Judge Lance concurred but focused on stating the veteran’s income should impact the calculation (i.e., “whether the claimant receives the same pay as similarly situated coworkers who are not disabled—is also a factor relevant to whether the claimant is employed in a protected”).  He also noted the impact of the ADA and that employers must provide reasonable accommodations and that where an employer must do so payment of TDIU could constitute a “second paycheck on the back of the taxpayer.”

environment.

The decision exposes what has long been recognized as a glaring failure by the VA to really define protected work environments.  However, I fear it will only result in an adoption of a definition by the VA that is anything but veteran friendly.

Decision by Judge Bartley, joined in by Judge Schoelen with a concurring opinion by Judge Lance.

Bankhead: Mental Health Ratings Examined

Bankhead v. Shulkin, Case Number 15-2404, decided March 27, 2017 examines the necessary requirements for mental health ratings and looks especially at the term “suicidal ideation.”

The Board granted a rating of 50% for a major depressive disorder but refused a higher rating.  “The Board recognized that the veteran exhibited many of the symptoms related to a higher disability evaluation, including suicidal ideation, irritability, difficulty sleeping, depression, social isolation, panic attacks, and memory impairment. Nevertheless, the Board concluded that those symptoms did not manifest with sufficient frequency and severity to meet the criteria for a higher evaluation.”  Id. at *6.  The veteran appealed.

First, the veteran attacked the Board’s interpretation of suicidal ideation.  The Court considered the various definitions of suicidal ideation and concluded “In sum, both passive and active suicidal ideation are comprised of thoughts: passive suicidal ideation entails thoughts such as wishing that you were dead, while active suicidal ideation entails thoughts of self-directed violence and death.”  Id. at *10.

It then determined:

The criteria for a 70% evaluation under § 4.130 lists "suicidal ideation" as a symptom VA

deems representative of occupational and social impairment with deficiencies in most areas.  Suicidal ideation appears only in the 70% evaluation criteria. There are no analogues at the lower evaluation levels.  Additionally, there are no descriptors, modifiers, or indicators as to suicidal ideation in the 70% criteria (including no specific mention of "active" suicidal ideation, "passive" suicidal ideation, suicidal "intent," suicidal "plan," suicidal "prepatory behavior," hospitalization, or past suicide attempts). Thus, the language of the regulation indicates that the presence of suicidal ideation alone,

that is, a veteran's thoughts of his or her own death or thoughts of engaging in suicide-related behavior, may cause occupational and social impairment with deficiencies in most areas.

Id. at *10-11 (internal quotations omitted).

The Court noted the record reflected recurrent suicidal thoughts of varying severity, frequency and duration, but noted the Board determined “passive” suicidal ideation did not rise to the level contemplated by a 70% or 100% rating “because he was "at sufficiently low risk of self-harm throughout the period," he had been "consistently treated on an outpatient basis during the period at issue" and there were "no instances where he was hospitalized or treated on an inpatient basis or domiciliary care," "his treating sources have considered his assurances that he would refrain from self-harm to be credible," and he "retained some social and occupational functioning."  Id. at *11.  The Court explained the Board erred because it required evidence more than thoughts to establish suicidal ideation or that he had been hospitalized or treated on an inpatient basis. 

The Court then took a moment to instruct that “[t]he presence or lack of evidence of a specific sign or symptom listed in the evaluation criteria is not necessarily dispositive of any particular disability level, even though, as noted, the Federal Circuit in Vazquez-Claudio found it pertinent that the severity, frequency, and duration of a symptom such as memory loss could be tracked through several disability levels.  In any event, however, VA must engage in a holistic analysis in which it assesses the severity, frequency, and duration of the signs and symptoms of the veteran's service-connected mental disorder; quantifies the level of occupational and social impairment caused by those signs and symptoms; and assigns an evaluation that most nearly approximates that level of occupational and social impairment.” Id. at *14.

The Court remanded for such a determination.  It also found fault with the failure to consider higher staged ratings as the Board focused on lower ratings.  Finally, it denied the veteran’s argument that the issue of TDIU had been reasonably raised.  It noted problems at work, but stated they did not rise to a suggestion of unemployability.

This decision is a master source for attacking the VA’s often erroneous mental health ratings, which frequently graft limiting language to the plain language of the Diagnostic Code.

Decision by Judge Bartley, joined by Judges Schoelen and Greenberg.

Doucette: Hearing Loss and Referral for Extraschedular Consideration

Doucette v. Shulkin, Case Number 15-2818, decided March 6, 2017 considers whether a claim for hearing loss should be referred for extraschedular consideration.

The veteran didn’t dispute the determination that the hearing loss was proper per the scheduler rating, but that the Board failed to provide an adequate statement of reasons or bases for its determination that he wasn’t entitled to referral for extraschedular consideration.  He specifically contended the Board failed to explain how his hearing loss was properly contemplated by the rating schedule and to adequately discuss extraschedular consideration in terms of the hearing loss’s effects on his functional capacity.

The Court explained that when evaluating hearing loss the VA

measures a veteran's ability to hear certain frequencies at specific volumes and to understand speech, using rating tables to correlate the results of audiometric testing with varying degrees of disability. In light of the plain language of §§ 4.85 and 4.86, as well as the regulatory history of those sections, the Court holds that the rating criteria for hearing loss contemplate the functional effects of decreased hearing and difficulty understanding

speech in an everyday work environment, as these are precisely the effects that VA's audiometric tests are designed to measure. Thus, when a claimant's hearing loss results in an inability to hear or understand speech or to hear other sounds in various contexts, those effects are contemplated by the schedular rating criteria. However, as the rating criteria do not otherwise discuss, let alone account for, other functional effects, such as dizziness, vertigo, ear pain, etc., the Court cannot conclude that the rating schedule, on its face, contemplates effects other than difficulty hearing or understanding speech.

Id. at *4-5.

As applied in this case, the Court noted the Board only has to consider referral for extraschedular consideration when there is evidence in the record showing exceptional or unusual circumstances or where the veteran has asserted that a scheduler rating is inadequate.  Specifically, as to hearing loss, the Court stated “the Board is only obligated to discuss extraschedular referral for hearing loss when there is evidence in the record which reveals that the appellant's hearing loss presents exceptional or unusual circumstances or where the appellant has asserted that a schedular rating is inadequate.”  Id. at *6-7.  The Court further stated

To be clear, although the Court holds that the rating criteria for hearing loss contemplate the functional effects of difficulty hearing and understanding speech, the Court does not suggest that the rating criteria contemplate all functional impairment due to a claimant's hearing loss. On the contrary, a hearing loss claimant could provide evidence of numerous symptoms, including—for purposes of example only—ear pain, dizziness, recurrent loss of balance, or social isolation due to difficulties communicating, and the Board would be required to explain whether the rating criteria contemplate those functional effects. In general, however, the Secretary's decision to rate hearing loss disabilities by the application of a veteran's audiometric testing results to rating tables does not alter the circumstances under which the Board must discuss whether referral is appropriate in an individual veteran's appeal.

Id. at *8.

The Court then turned to the merits of this case noting the appellant asserted his hearing loss made it difficult to distinguish sounds in a crowded environment, locating sources of sounds, understanding conversational speech, hearing the TV and using a telephone.  But, the Court noted “each [is] a manifestation of his difficulty hearing or understanding speech which, as the Court discussed above, is contemplated by the scheduler rating criteria for hearing loss.”  Id. at *8.  Therefore, the Court determined the Board wasn’t obligated to discuss extraschedular referral in this case.

A dissent by Judge Schoelen notes the rating criteria is inadequate to contemplate the veteran’s functional effects and the Board provided an inadequate statement of reasons or bases regarding its refusal to refer the hearing loss claim for extraschedular consideration.

She explains:

The fundamental problem arises because the rating schedule for hearing loss does not explain what the effects of the match of puretone threshold with speech discrimination should be. 38 C.F.R. §§ 4.85 (2016), 4.86 (2016). Sections 4.85 and 4.86 consist of tables designed to identify different levels of hearing loss in a controlled environment, but the tables do not address the functional effects or severity of a veteran's hearing loss. Instead, the rating schedule produces only Roman numerals. Although the rating schedule  undoubtedly contemplates hearing loss, it is impossible for the Court to interpret with any particularity the severity or functional effects of a veteran's hearing loss simply by seeing, for example, Roman numeral "IV."

Id. at *12.

She notes that a prior decision, Martinak, directs only VA audiologists to note functional effects of hearing loss and not the Board, but states “nothing in Martinak absolves the Board of its responsibility to provide an adequate statement of reasons or bases it ins decision.”  Id. at *13.  She then doubles down and states “no matter how extensive the Board's statement of reasons or bases is, I do not believe that that statement can ever sufficiently fill in the gaps in the rating schedule. The majority fails to explain how the Board could review the functional effects of hearing loss and match those functional effects with nonexistent criteria. If the Board were permitted to do so, their analysis would be tantamount to a Colvin violation.”  Id. at *14.  She then concludes that she would remand directing the Board to provide an adequate statement of reasons or bases for refusing to refer for extraschedular consideration.

The powerful dissent, which exposes the flaws in the VA rating for hearing loss call out for a the veteran to seek appellate review of this decision. The result should be either more detailed discussions of referral for extraschedular considerations or a revised Diagnostic Code.

Decision by Judge Lance and joined by Chief Judge Davis.  Dissent by Judge Schoelen.

Cook: Right to a Board Hearing After Remand from the Court and an Attack on Deference

Cook v. Snyder, Case Number 15-0873, decided January 31, 2017 answers whether a veteran has the right to another Board hearing after remand of his claim from the CAVC. In a tour de force opinion by Judge Bartley, in which the Court conducts an exhaustive analysis of statutory and regulatory interpretation, the Court ultimately finds the veteran does have a right to another post-remand Board hearing.

The veteran here received a remand from the Court and asked for a hearing from the Board specifically stating he wished the opportunity to address certain points through his testimony.  The Board noted he had previously had a hearing (actually two) and denied the request and the claim. 

Before the Court, the veteran argued the denial of his request for a hearing was in error.  The case dealt with 38 USC 7107(b).  The Court determined that both the veteran and the Secretary’s interpretations of 7107(b) were grammatically plausible and thus the “statute’s language is simply not clear on this point.”  Id. at *9.  The Court noted “Because Congress has not directly addressed the precise issue at question, the next step in the Court’s analysis would be to determine whether the VA’s implementing regulation permissibly construes the statute and, if so, defer to that construction.”  Id. at *10.  The Court concludes Chevron deference is not owed in this case for two reasons.  First, no VA regulation resolves the statutory ambiguity—

Here, the regulations cited by the Secretary all contain the same basic ambiguous language that, although not phrased identically to the statute, do nothing to clarify the ambiguity … as to whether a VA claimant who has had a personal hearing before the Board on an appeal is entitled upon request to another Board hearing following a Court remand.  Therefore, the Court is under no obligation to accord deference to the Secretary’s interpretation under Chevron step two.

Id. at *10-11.  Secondly, the Court noted that the VA regulation preexisted the statute and that because Chevron deference is appropriate only where Congress has delegated authority to the agency to make rules carrying the force of law.  The Court determined the VA has not actually used that delegated authority but simply relies on a regulation predating the statute, which could not have possible been promulgated to interpret the statute.  Id. at *11.

The Court then noted where Chevron deference is inapplicable, the Court proceeds under the Skidmore rules of interpretation which look to guidance from the agency but also weigh whether such guidance is thorough, examines the reasoning, is consistent with earlier practice, and whether it is generally persuasive.  The point is that Skidmore analysis is much less deferential to the agency than Chevron.

The Court then relied heavily on the pro-veteran nature of the VA adjudicatory process as well as the fact the nature of a claim may change through the process to determine barring a post-remand personal hearing “would be neither solicitous of a claimant not productive of informed Board decisionmaking.”  The Court also pulled out the Brown v. Gardner trump card, which states any doubt in the interpretation of a VA statutes or regulations must be resolved in favor of a veteran.

Finally, the Court noted the Board was concerned the need for more hearings would inundate an already overwhelmed Board, but noted “these concerns do not authorize the Court to ignore the intent of Congress … and the solicitous and pro-claimant principles informing veterans benefits law.”  Id. at *19.

I would expect the VA to follow this opinion by seeking to change the regulations to prevent the right to a post-remand hearing.  Frankly this decision is important for at least temporarily protecting the right to a post-remand hearing, but more importantly for furthering a deep analysis to statutory and regulatory interpretation to VA law.  For too long, the VA has gotten by relying on Chevron deference, but this decision shows the veteran’s bar has become more forceful in arguing against Chevron deference and the Court is responding.

Decision by Judge Bartley, joined by Judge Pietsch and Senior Judge Hagel.

Vilfranc: TMJ, Diagnostic Code 9905 and Section 4.59

Vilfranco v. McDonald, Case Number 15-0904, decided January 5, 2017 involves a claim for a higher rating for TMJ.

The veteran was service connected and rated 10% for TMJ.  The veteran argued she deserved a 10% rating for both sides of her jaw.  Her argument took two approaches.  First, she argued 38 CFR Section 4.59, which recognizes painful motion as productive of disability and at least a minimum rating, allows two ratings because it operates to require the VA to assign a minimum rating for each joint.  The Court noted, however, that Section “4.59 is meant to compensate a claimant whose pain does not cause enough limitation of motion in a joint o reach a compensable level” and that “it is not applicable where, as here, the claimant already has a compensable level of limitation of motion.”  Id. at *6.

Second, she argued that under DC 9905 she deserves a separate rating for each joint.  The Court decided DC 9905 is ambiguous as it “does not answer the question posed by Ms. Vilfranc, which is whether dysfunction in both temporomandibular joints constitutes separate disabilities, such that separate disability ratings must be assigned.”  Id. at *8.  However, the Court also found the VA’s position was entitled to deference as it not plainly erroneous or inconsistent with the language of the regulation.  The Court accepted the VA’s argument that the TMJ operates as a single unit and noted that the inter-incisal range is measured once in the center of the mouth.  The Court noted the VA has not appeared to previously interpret DC 9905 in published documents and that the interpretation appears to first be raised in his brief, but that did not dissuade the Court from its finding.

A concurring opinion by Judge Greenberg agrees with the result but argues the case did not necessitate a panel opinion.  The argument appears to be that the issue was realitvely simple, a single judge would have more quickly made a decision, and “[a] timely appeal to the Federal Circuit is the preferred course of review of a single Judge disposition which I believe Congress envisioned.”  Id. at *11.

I think ultimately this case involved regulatory interpretations and reiterated that the Courts are going to largely defer to the VA’s interpretation unless this is some factor to suggest the proferred interpretation is not truly the VA’s interpretation.  See generally Hudgens v McDonald, 823 F.3d 630 (Fed. Cir. 2016).  I am most troubled by Judge Greenberg’s apparent preference for single Judge opinions.  While this case would clearly be one that could be reviewed by the Federal Circuit, the Federal Circuit has internal rules strictly limiting the types of VA cases it will hear.  Judge Greenberg’s apparent dislike of single Judge opinions, could leave veteran’s with no meaningful avenue of appeal.

Decision by Senior Judge Hagel joined by Judge Lance, concurrence by Judge Greenberg.