Hansen-Sorensen: The ALS Rule and Active Duty for Training

Hansen-Sorensen v. Wilkie, Opinion Number 2017-2418 is a Federal Circuit decision questioning whether the exceptions created by the VA for Camp Lejeune contaminated water exposure and C-123 Agent Orange exposure expand the definition of “active military, naval or air service.”

The veteran here had 182 days of active duty for training followed by six years in the National Guard.  He ultimately died to ALS.  A special presumption applies to ALS saying “the development of [ALS] manifested at any time after discharge or release from active military, naval, or air service is sufficient to establish service connection for that

disease.” 38 C.F.R. § 3.318(a) (ALS Rule).

The VA and Veterans Court ruled active duty for training did not qualify as “active military, naval or air service.”  The Federal Circuit in Bowers v. Shinseki, 748 F.3d 1351 (Fed. Cir 2014) grappled with this question, closely examined 38 U.S.C. Section 101(24) and determined that active duty for training does not come within the meaning active duty.  In Bowers the Court specifically held

the ALS Rule did not apply to a man who had served in the National Guard, and had a period of “active duty for training” but not “active duty,” where his widow had not

shown that her late husband’s ALS was incurred or aggravated in the line of duty.  Under Bowers, for Mrs. Hansen-Sorensen to meet the “active military, naval, or air service” requirement of the ALS Rule, she had to show that Mr. Hansen, who had only active duty for training, “incurred or aggravated” his ALS “in line of duty” and “was disabled” “during” his period of active duty for training. 38 U.S.C. § 101(24)(B).  In the absence of such a showing, the threshold requirement of the ALS Rule is not met, and no presumption of service connection arises under that rule.

Id. at *3.

In this case, the veteran’s surviving spouse sought to show the new rules for Camp Lejeune and C-123 contamination supersede the Bowers and expanded the scope of active duty for training.  Both of these regulations impacted those exposed during active duty for training.

The Court rejected the arguments stating

We conclude, contrary to Mrs. Hansen-Sorensen’s contention, that the C-123 and Camp Lejeune rules do not alter the Bowers statutory interpretation of the phrase “active military, naval, or air service” or the application of that phrase in the ALS Rule. The two new rules do not change the language of the ALS Rule, which incorporates word for word that statutory phrase. Not surprisingly, given that this court interpreted the statutory phrase without deference, the two new rules also do not purport to alter what we held in Bowers about the meaning of that phrase in an ALS case: “active duty for training” is not “active duty,” so for a person who had only the former and came down with ALS—like Mr. Hansen and Mr. Bowers—to qualify under the ALS Rule, there must be a showing

that the ALS was “incurred or aggravated” in the line of duty and that the person became disabled from that disease during the training period.

As relevant here, all that the two new rules do is establish that the “incurred or aggravated in line of duty” and “during which the individual concerned was disabled” requirements of § 101(24)(B) and (C) are met in specified circumstances. Those circumstances involve individuals who come down with specified diseases and had specified experiences (with C-123 aircraft or at Camp Lejeune) presenting risks of harm from specified chemical agents (herbicides or water contaminants). The Secretary made

empirical judgments about those circumstances. See 80 Fed. Reg. at 35,246–47  discussing 2014 National Academy of Sciences Institute of Medicine study of scientific literature and knowledge regarding “residual exposure to Agent Orange from service on aircraft formerly used during Operation Ranch Hand in Vietnam”); 82 Fed. Reg. at 4174–83 (discussing a variety of studies of effects of contaminants at Camp Lejeune). Based on those judgments, the Secretary, exercising general authority under 38 U.S.C. § 501(a), codified a legal shortcut in each situation for meeting, not altering or circumventing, the

standard of § 101(24)(B) and (C) for coming within the “active military, naval, or air service” language—as the two new rules, quoted in part above, make clear on their

face.

It is undisputed that this case does not come within the circumstances covered by the C-123 or Camp Lejeune Rules. For the situation covered by the ALS Rule, at issue here, the Secretary has not made the same kind of empirical judgment or adopted the same kind of shortcut to making the showings required by § 101(24)(B) for a person with “active duty for training” but not “active duty.” Thus, the two post-Bowers rules do not involve a new legal interpretation, or a factual or policy determination, that applies to this case and removes it from the controlling force of Bowers.

Id. at *6-7.

The Federal Circuit also considered the Appellant’s argument that the distinction between the Camp Lejeune and C-123 rules and the ALS rule represents an arbitrary and capricious distinction.  The Court rejected this argument noting the empirical studies relied upon by the VA.

While I understand the distinction and arguments attempted to be made by counsel, the Federal Circuit ultimately found a plausible distinction between the different rules and deferred to the VA’s view of the evidence in creating these presumptions (without specifically stating it was deferring to the agency).  I believe this case represents the last word in ALS cases involving those with active duty for training service.

Decision by Judge Taranto and joined by Judges Lourie and Dyk.

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Harper: What Happens When TDIU Is Decided While the Underlying Claim is on Appeal to the Board

Harper v. Wilkie, Case Number 16-3519, decided December 6, 2018 considers what happens when TDIU was granted by the RO while waiting on an appeal to the Board on the underlying PTSD rating.  The veteran disagreed with the effective date but the Board stated it did not have jurisdiction as to the effective date because the veteran had not filed a separate NOD as to that issue.

The veteran argued “that the Board erred in concluding that the issue of entitlement to TDIU prior to February 2016 was not on appeal. Specifically, Mr. Harper asserts that, pursuant to Rice v. Shinseki, 22 Vet.App. 447 (2009), the issue of entitlement to TDIU

became "part and parcel" of his appeal for a higher initial disability rating for PTSD

in February 2014 when he explicitly raised the issue while his appeal was pending. Id. at 15. He asserts that, although "entitlement to TDIU for the period after February 2016 became moot as a result of the RO's decision, the issue of entitlement to TDIU prior to that date remained on appeal.”  Id. at *3. 

The Secretary countered by arguing the veteran did not appeal the May 2016 RO decision granting TDIU which also set the effective date for the TDIU award and thus the Board and Court lacked jurisdiction to consider the effective date.  Id. at *3. 

The Court held: “the Board erred in determining that it did not have jurisdiction over the issue of entitlement to TDIU before February 2016. Contrary to the Secretary's assertion, Mr. Harper did not need to appeal the May 2016 RO decision because the issue of entitlement to TDIU became part and parcel of the underlying PTSD claim and the RO's grant of TDIU served only as a partial grant of his request for TDIU.”  Id. at *4. 

The Court principally relied on Rice v. Shinseki, 22 Vet.App. 447 (2009) an dan unpublished decision by the Federal Circuit— Palmatier v. McDonald, 626 F. App'x 991, 994 (Fed. Cir. 2015)— in its analysis. It explained because of Rice, once Mr. Harper’s PTSD claim was in appellate status by virtue of the December 2008 NOD, the issue of TDIU became part of the underlying PTSD claim when he filed an application for TDIU in February 2014.  Thus, the Board had jurisdiction to consider the issue of the effective date.  The Court explained the grant of TDIU by the RO as only a partial grant of benefits.

The Court also dealt with a  reasons and bases argument regarding the scheduler PTSD rating and found as to at least one issue that simply listing as evidence without addressing it in its analysis does not satisfy the duty to provide an adequate reasons or bases.  Id. at *8 (“The Board cannot satisfy its duty to provide adequate reasons or bases by merely listing evidence and then reaching a conclusion.”)

This is a helpful decision to veterans as it is not unusual for TDIU to be granted at one stage while an appeal to the Board already exists.  It reinforces the notion that “a request for TDIU, whether expressly raised by a veteran or reasonably raised by the record, is not a separate claim for benefits, but rather involves an attempt to obtain an appropriate rating for a disability or disabilities, either as part of the initial adjudication of a claim or . . . as part of a claim for increased compensation.”  Id. at *4 (quoting Rice).  The case also reminds us that the VA is forever finding effective dates that are harmful to veterans and often the only way to fight them is to go to the Court.

The decision was written by Chief Judge Davis and joined in by Judges Meredith and Toth.  This itself is instructive as these are by no means the most pro-veteran judges on the Court, the fact these judges ruled so forcefully suggests the Court is concerned about the VA’s treatment of TDIU claims.

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Cook II: Right to a Board Hearing After Remand from the Court

Cook v. Wilkie, Case Number 2017-2181, decided November 13, 2018 is an appeal to the Federal Circuit Court of Appeals from a prior published CAVC (Court of Appeals for Veterans Claims) decision, Cook v. Snyder, 28 Vet. App. 330 (2017), previously summarized on this blog on February 27, 2017. 
The CAVC previously refused to defer to the VA and stated a veteran has the right to another Board hearing after remand of his claim from the CAVC.  The veteran received a remand from the CAVC 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. 

The CAVC determined 38 USC 7107(b) was ambiguous as to this point, but determined Chevron deference was not owed 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.

Secondly, the CAVC 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. 

The CAVC 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 CAVC 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.

The VA could not stomach the CAVC’s decision and appealed, arguing “that § 7107(b) does not entitle a claimant to a Board hearing after remand from the Veterans Court if the Board has already given the claimant a hearing earlier in the case. According to the Secretary, the word “appeal” only refers to the submission of certain forms for the Board’s initial review and does not encompass subsequent adjudications on remand.”  Id. at *8.

The Federal Circuit turned to the text of 7107 which states “[t]he Board shall decide any appeal only after affording the appellant an opportunity for a hearing.”  First, the Court noted the word “any” should be read expansively “[a]ccordingly, the phrase “any appeal” indicates that the Board is not free to curate which appeals are entitled to “an opportunity for a hearing.” The Board must provide such an opportunity before it decides every appeal.”  Id. at *9. 
The Court also noted the Veteran’s Court vacated the prior decision, which nullified or cancelled that decision.  Therefore, on remand the Board had to review the claim anew in accord with remand instructions.  “In other words, the Board must again decide the appeal, or a “proceeding undertaken to have a decision reconsidered by a higher

authority.” Because the Board must decide the appeal on remand, we conclude that § 7107(b) requires the Board to afford the appellant an opportunity for another hearing.”  Id. at *10.

The Court summarized by stating “In sum, the text of § 7107(b) better supports Cook’s

argument that the Board must provide a claimant an opportunity for a hearing before it decides every appeal, including after remand from the Veterans Court. We therefore affirm the Veterans Court’s decision.”  Id. at *10-11.  Interestingly the Court includes a footnote stating certain remands from the CAVC involving ministerial remands may not trigger the opportunity for a hearing.
This case is important as it promises the opportunity to be heard to veterans by guaranteeing the right to a hearing on remand.  It also actually amplifies the prior Cook decision.  I had been concerned that Cook I as written may have allowed the VA to rewrite the regulations to try to gain agency deference under Chevron.  However, the way the Federal Circuit relied on the text of 7107 to render its decision, I believe such a regulatory change would be in doubt.

Decision by Judge Lourie and joined in by Judges Newman and Clevenger.

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Hedgepeth: An Incorrect Reduction and Severance of TDIU and PTSD

Hedgepeth v. Wilkie, Opinion No. 17-0794, decided November 7, 2018 concerns the reduction of a PTSD rating from 70% to 0% and concerns law related to rating reductions in general, reduction of TDIU, and severance of service connection.

The veteran had been service connected and granted a rating of 70% for PTSD as well as entitlement to TDIU, but the VA subsequently reduced the 70% PTSD rating to 0% due to a change in diagnosis from PTSD to personality disorder and also reduced the veteran’s TDIU. 

This case reveals several areas of law related to reductions.  First, it discusses simple rating reductions.  Second, reductions of TDIU.  Third, severance of service connection.

Regarding simple ratings reductions, the Court noted “the Board must determine whether the reduction of the veteran's disability rating was proper and must not phrase the issue in terms of whether the veteran was entitled to an increased rating, including whether the veteran was entitled to restoration of a previous rating.”  Id. at *6.  The Court also discussed protections under 38 C.F.R. § 3.344(a) including the fact that the relied upon examinations cannot be less full and complete than the examinations resulting in the rating to be reduced and that the VA must be aware of disease subject to temporary or episodic improvement and not base reduction on any one examination.  Section 3.344 also discussed a change of diagnosis and states caution must be exercised as to whether the change is based on progression, error, or possible a new disease independent of the service connected disability.  Id.  The Court also noted that the VA must prove reductions by a preponderance of the evidence and the evidence must show an actual improvement in the veteran’s ability to function under the ordinary conditions of life and work.  Id. at *7. 

The Court then focused on TDIU reductions and referred to Section 3.343, which states TDIU will not be reduced:

in the absence of clear error, without examination showing material improvement in physical or mental condition.  Examination reports showing material improvement must be evaluated in conjunction with all the facts of record, and consideration must be given particularly to whether the veteran attained improvement under the ordinary conditions of life, i.e., while working or actively seeking work or whether the symptoms have been brought under control by prolonged rest, or generally, by following a regimen which

precludes work, and, if the latter, reduction from total disability ratings will not be considered pending reexamination after a period of employment (3 to 6 months).

. . . .

(c) Individual unemployability. (1) In reducing a rating of 100 percent serviceconnected disability based on individual unemployability . . . caution must be exercised in such a determination that actual employability is established by clear and convincing evidence. . . . (2) If a veteran with a total disability rating for compensation purposes based on

individual unemployability begins to engage in a substantially gainful occupation . . . the veteran's rating may not be reduced solely on the basis of having secured and followed such substantially gainful occupation unless the veteran maintains the occupation for a period of 12 consecutive months.

Id. at *7

The Court then focused on the law related to severance of service connection beginning by stating it “will be severed only where evidence establishes that it is clearly and unmistakably erroneous (the burden of proof being on the Government)." 38 C.F.R. § 3.105(d) (2018).”  Id. at*8.  The Court further notes a change in diagnosis may be lead to severance if the “proper medical authority certifies that, in the light of all accumulated evidence, the diagnosis on which service connection was predicated is clearly erroneous. This certification must be accompanied by a summary of the facts, findings, and reasons

supporting the conclusion.”  Id. at *8.

Here, the VA argued the law on reductions and severance did not apply because it “reattributed” the veteran’s psychological symptoms to a non-service connected disability. Id. at *5.  The Court rejected this argument saying:

The applicable laws and regulations do not provide, as the Secretary attempts to argue, for an avenue of "reattribution" of symptoms from a service-connected condition to a non-service connected condition in order to reduce or eliminate VA benefits, and, significantly, in his brief, the Secretary cites to no such laws, regulations, or caselaw supporting his "reattribution" argument. Finding that the avenue for elimination of service-connected benefits of "reattribution" of symptoms exists would allow for the Board to circumvent the protections set up by Congress and VA to safeguard against the very thing that has occurred in this case – VA's elimination of a longstanding award of benefits without following the proper procedural steps and overcoming the heightened burden on the government to ensure that the elimination of benefits was warranted.

Id. at *9.

The Court continued to explain that

the Board chose the avenue of a rating reduction to eliminate the veteran's award of benefits by reducing his protected rating from 70% to 0%, and discontinuing his TDIU award effective after April 1, 2016. In doing so, the Board committed two separate errors. First, the Board failed to properly apply §§ 3.343 and 3.344, which, respectively, require VA to find clear and convincing evidence of employability before discontinuing TDIU and "material improvement" of symptoms before reducing a disability rating.  Second, the Board failed to apply to the appellant's case the statutes, regulations, and caselaw

governing severance of service connection.

Id. at *10.

Regarding the reduction of the PTSD rating, the Court first noted all medical evidence showed the veteran’s mental health symptoms had not improved and explained that “although the Board attempted to frame its decision in terms of the § 3.344 requirement of "material improvement," a review of the Board's reasoning reveals that, actually, the Board's "reduction" of the appellant's rating from 70% to 0% was based on the medical evidence of record showing a change of diagnosis from PTSD to a personality disorder.”  Id. at *10.  It then explained the Board should have discussed whether the veteran’s change in diagnosis was related to a progression of an earlier diagnosis, error, or a new disease.  Id. at *11. 

Regarding TDIU, the Court stated the Board failed to consider or apply Section 3.343.  It noted the  

Board improperly framed the issue on appeal as "entitlement" to non-schedular TDIU after April 1, 2016, since "the [v]eteran did not satisfy the schedular requirements for TDIU beginning April 1, 2016, because of the RO's rating reduction for the [v]eteran's psychiatric disability." R. at 14. A review of the record shows that the issue on appeal should have properly been framed as discontinuance of TDIU effective from April 1, 2016.  VA's framing the issue as one of entitlement to TDIU rather than discontinuance of benefits is significant because, by doing so, VA wrongly shifted the burden of proof from VA to the appellant.

Id. at *11.

The Court also considered whether the VA should have applied laws related to severance of service connection and answered affirmatively that the VA had failed.  The Court explained:

the Board clearly based the elimination of VA benefits in this case on medical evidence showing a change of diagnosis from PTSD to personality disorder.  Under these circumstances, the applicable law and regulations require VA to initiate and conduct severance of service connection proceedings before eliminating service-connected VA benefits.  The Board may not, without going through the proper channels of severance, perform a de facto severance by attempting to apply the regulations governing rating reductions while also finding that the "reduction" is based upon a change of diagnosis rather than material improvement of symptoms.

Id. at *13.

The Court further found the reductions were void and remanded for reinstatement of the ratings.  It further stated “If VA wishes to pursue the matter of severance of benefits for service-connected PTSD, it must initiate a proper severance proceeding through the proper procedural channels and meet the high standard of proof placed upon VA in such proceedings.”  Id. at *14.

This case shows the increasing tendency of the VA to reduce ratings and how they will defend this mistaken reductions to extreme lengths.

The opinion was by Senior Judge Moorman and joined in by Judges Greenberg and Toth. 

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Moody: How to Combined Ratings to Determine Entitlement to Schedular

Moody v. Wilkie, Opinion No. 16-1707, decided November 8, 2018 relies heavily on Gazelle v. Shulkin, 868 F.3d 1006 (Fed. Cir. 2017) to discuss how ratings are combined to determine entitlement to scheduler TDIU and determine that the VA’s combined ratings table is used.

The Court explained:

Under § 4.16(a), the Board may award schedular TDIU in the first instance when a veteran meets specified rating criteria, such as having a single service-connected disability rated 60% or higher. This regulation also provides that certain kinds of disabilities—for example, those originating from the same event—"will be considered as one disability." 38 C.F.R. § 4.16(a) (2018). The issue here is whether the quoted language directs the method by which multiple disability ratings are aggregated to determine whether a claimant exceeds the 60% threshold necessary to claim schedular TDIU.

We conclude that § 4.16(a) unambiguously requires VA to use its combined ratings table when aggregating disabilities for the purpose of considering them "as one disability" and that the Board, therefore, correctly concluded that it could not consider schedular TDIU at that time.

Id. at *1-2.

It this case, the Board determined the veteran’s disabilities shared a common origin and should be deemed a single disability for TDIU purposes.  Specifically, they involved a 40% lumbar disability and two 10% disabilities for the sciatic nerve.  Using the combined rating table, these would add up to a 50% rating whereas simply adding them would result in a 60% rating.  The Board used the combined rating table and determined the veteran did not qualify for scheduler TDIU.  Id. at *5.  On appeal, the veteran argued the combined rating table should not be used and if added, he would qualify for scheduler TDIU.  This was particularly important as the Board actually determined the veteran was unemployable due to his service connected disabilities.

The Court focused on a statutory interpretation of the term in 4.16(a) “will be considered as one disability” for scheduler TDIU purposes.  The Court noted the language of the specific regulation does not identify the method by which disabilities are to be combined or aggregated into one disability.  Id. at *8.  However, the Court then looked at the overall regulatory scheme and was informed by the Gazelle decision.  Gazelle involved the special monthly compensation (SMC) statute and there the Federal Circuit determined the regulation did not identify the method on how to rate multiple disabilities and instead turned to the overall scheme relevant to SMC.  The Federal Circuit said the only method of rating multiple disabilities was to use the combine ratings table.  In this case, the Court concluded:

A similar analysis here leads to the same conclusion. As already noted, the phrase "will be considered as one disability" initially appeared in a 1941 promulgation from VA and has remained unaltered through the current version of § 4.16(a). Yet, the combined ratings table has an even earlier origin. In 1917, Congress instructed VA to set up a schedule for evaluating reductions in earning capacity resulting from "injuries or combinations of injuries," and the agency responded with the first combined ratings table in 1925. Gazelle II, 868 F.3d at 1011. Since then, a combined ratings table has been continuously reauthorized by Congress and employed by VA to aggregate multiple service-connected disabilities. Thus, in the regulatory context in which VA first used the phrase "will be considered as one disability," the combined ratings table was plainly and unambiguously the only method for combining disabilities to determine whether they qualified as one 60% or one 40% disability for schedular TDIU purposes.

Id. at *9 (internal citations omitted).

The Court addressed the veteran’s arguments, principally that (1) Gazelle concerned with a statute as opposed to a regulation and (2) the combined ratings table is only relevant to aggregating service connected disabilities when calculating the amount of compensation to be paid.  Id. at *9.  The Court thought the first argument was a difference without distinction.  Regarding the second, it determined the combined rating table is

meant to capture the dynamic where additional disabilities accrue in a person already functioning at less than 100% earning capacity.  In such circumstances, the sum is not simply the combination of each isolated part, as if those parts presented themselves alone in a person of otherwise optimal ability.  Rather, each additional disability further limits the earning capacity of a person already functioning at less than 100% by virtue of other disabilities. Once the reasoning behind the approach of the combined ratings table is understood, it is clear why simply adding multiple disability ratings in any VA context—not simply when calculating VA compensation payments—would likely overstate a

veteran's actual disability level and could even result in disability assessments greater than 100%.

Id. at *10 (emphasis added).

However, it appears there was evidence of a higher sciatic rating that might push the veteran over the 60% required rating and the Board committed a reasons and bases error by not addressing it and that there was evidence the service connected disabilities might cause or aggravate the veteran’s depression and the Board should have considered whether a medical opinion was necessary to answer the question.  Id. at *11-14.  Therefore, the Court remanded the case to the Board.

The panel included Judges Schoelen, Pietsch, and Toth and the opinion was by signed per curiam.  However, Judges Pietsch and Toth wrote concurrences and dissents.  Judge Pietsch agreed with the reasoning regarding the use of the combined ratings table, but thought the remand essentially mooted the need to discuss this issue and it was perhaps not the best use of judicial resources to render the opinion. 

Judge Toth wrote to state he agreed with the discussion regarding the use of the combined ratings table, but that the reasoning regarding the possible need for a medical examination for depression was incorrect.  He argued the Board’s findings are reviewed under a clear error standard but that the Court essentially conducted its own review of the record.  He focused on the majority view that the general lay statements made to a medical practitioner were enough to require a full discussion by the Board, but believes the Board addressed them plausibly and there was nothing to determine its conclusion was clearly erroneous.  Judge Toth is clearly arguing for more practical deference to the factual findings of the Board. 

This is an issue that has been in play for years and now appears to be settled.  The result in Gazelle probably made this foreordained and I do not believe review by the Federal Circuit will result in any change.

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Garcia: A Second CUE Claim is Not Allowed

Garcia v. Wilkie, Opinion Number 2018-1038 is a Federal Circuit decision that concerns what happens when a veteran seeks to file a second CUE claim.

The veteran submitted a claim in 2002 which was denied by the Board in 2006, appealed to the Veterans Court, but then dismissed by the veteran—at which time the decision became final.

The veteran then filed a CUE claim attacking the 2006 Board decision.  This resulted in a Board denial in 2010.  In filings to the Board and Veterans Court, new allegations of CUE were raised after the 2010 decision denying CUE.  The Veterans Court found those new allegations of CUE made in the subsequent filings were barred by the regulation. 

The veteran focused on a 2005 C&P examination which was initially positive.  However, the VA’s Appeals Management Center sent a second request to the physician essentially pointing out problems with the positive opinion.  The examiner then issued a one sentence addendum which did not support service connection.  This resulted in a Supplemental Statement of the Case again denying service connection.  This was appealed and the American Legion argued on behalf of the veteran that the medical opinion did not take into account evidence that would support the claim for benefits.  However, the brief did not challenge the AMC’s request to the physician for an addendum. 

In the veteran’s 2007 CUE claim and subsequent 2008 CUE motion to the Board, he argued:

the record supported “several independent medical conclusions” of service connection, that he was entitled to more assistance from the VA in light of the loss of his medical records in the 1973 fire, and that he was entitled to the benefit of the doubt on the issue of service connection “[g]iven the evidence available at the time, including the testimony of [Mr. Garcia] and the reports of various medical providers.” J.A. 63–65. He did not argue that the Appeals Management Center had improperly pressured Dr. Greene to change her service-connection conclusion or that his right to constitutional due process had been violated. Nor did he point to or rely on the testimony that Mrs. Garcia gave at the 2004 Board hearing.

Id. at *6.

The CUE claim was denied in April 2010.  A July 2010 motion to reconsider argued “‘counsel [in earlier filings] may have not adequately notified the Board of portions of the record which bear directly upon the C.U.E. issue at bar,’—specifically, Mrs. Garcia’s 2004 Board testimony, which he claimed indicated the existence of a paranoia disorder when the two began dating soon after he returned from service.”  Id. at *6.  The Board denied saying the testimony may have impacted the weighing of evidence, but any failure to consider the testimony did not constitute clear and unmistakable error.

The veteran appealed to the Veterans Court arguing the AMC’s second request denied him due process. The Veterans Court denied on that ground saying the due process allegation was not presented to the Board.  However, the Court did grant a remand based on the motion to reconsider in light of the wife’s testimony.  On remand, the Board ruled against the veteran.  A motion to reconsider again addressed the due process argument, the motion was denied.  The veteran again appealed to the Veterans Court arguing

the Appeals Management Center’s actions regarding Dr. Greene violated her late husband’s right to due process and that the Board’s failure to consider her testimony was clear and unmistakable error. The Veterans Court again found that the allegation of a due process violation had not been properly presented to the Board. And it again remanded the matter of Mrs. Garcia’s testimony for further consideration.

Id. at *8.

The Board again denied and she again appealed to the Veterans Court on both issues. 

The Veterans Court found neither allegation had been presented to the Board in Mr. Garcia’s CUE motion or before the Board issued its decision on that CUE motion in 2010. Therefore, the Veterans Court ruled 38 C.F.R. § 20.1409(c) “requires 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,” barring “later CUE challenges to [that] Board decision.” Id. at *8-9.

The Federal Circuit began its analysis by noting a veteran can revise a Board denial after final by either presenting new and material evidence to reopen the claim or showing clear and unmistakable error.  It then lays out the basic law to CUE claims. 

First, the standard for relief is high--“Clear and unmistakable error is a very specific and rare kind of error. It is the kind of error, of fact or of law, that when called to the attention of later reviewers compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error.”  Id. at *10.  Second, the pleading requirements are demand, and place the onus on the veteran to specifically raise each issue.  Third, a veteran is permitted only one CUE challenge to a Board decision on any given disability claim.

The Court stated:

Regarding the alleged due process violation, we limit our ruling to the situation presented here: undisputed facts demonstrate that the allegation could have been, but was not, presented in the 2008 CUE motion. The parties agree, and the record clearly shows, that Dr. Greene’s initial examination report, the Appeals Management Center’s follow-up request, and Dr. Greene’s addendum were provided or were available to Mr. Garcia in 2006, at the time he submitted his brief to the Board in support of his claim for benefits.

The parties also do not dispute that Mr. Garcia first alleged the constitutional due process

violation in 2011 in his appeal to the Veterans Court of the Board’s 2010 decision denying his CUE motion. In these circumstances, the Veterans Court properly found

that Mr. Garcia did not raise a due process challenge in his initial CUE motion or, indeed, until after the Board ruled on that motion.

Id. at *14.

While limiting its ruling to, the Court also was careful to leave the door open to including the arguments made as amendments to the initial motion if a decision on the CUE claim has not actually been made.  Id. at *13.

The Court also notes the Veteran Court found the due process violation argument was no longer permitted at the time the veteran presented it because of the bar on presenting multiple CUE motions.  The veteran argued a constitutional challenge is special and simply not subject to the rule against successive allegations of CUE.  The Court rejected this argument stating “The particular due process challenge at issue here was readily available to Mr. Garcia at the time of the 2008 CUE challenge. We see no constitutional difficulty in the regulation’s channeling of an available CUE challenge on this basis to the initial CUE motion, with CUE relief on this basis not thereafter available.”  Id. at *16.

This case reveals the need to include with specificity all allegations to be made in a CUE motion.  It also reveals that repeated attacks on a final Board or Court decision are unlikely to prevail.  While the result is harsh, the decision leaves open the door to other issues that might tilt the equities toward the veteran.

Decision by Judge Taranto and joined by Judge O’Malley and Reyna.

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English: Lay Evidence, Medical Evidence and Knee Instability

English v. Wilkie, Case Number 17-2083, decided November 1, 2018 considers a rating of knee instability when there are statements by the veteran complaining of knee istability but the medical examinations do not find such instability.

The Court determined:

As to lateral instability under DC 5257, as discussed below, we find significant that in Petitti v. McDonald, the Court held that when a "regulation does not speak to the type of evidence required . . . [it] certainly does not, by its terms, restrict evidence to 'objective' evidence." 27 Vet.App. 415, 427 (2015). DC 5257 doesn't speak to the type of evidence required and, thus, objective medical evidence isn't required to establish lateral knee instability under that DC. The Board can't categorically find objective medical evidence more probative than lay evidence with respect to this DC without supporting its conclusion with an adequate statement of reasons or bases.

Id. at *1-2.

In this case, the Board’s analysis stated  it had “reviewed all of the evidence in the [v]eteran's claims file, with an emphasis on the medical evidence for the issue on appeal." Id. at *4.  The Court then explained:

The most natural reading of the decision on appeal is that the Board was working under the impression that objective medical evidence of lateral knee instability is required. The Board began its analysis section with the statement that it put "emphasis" on the medical evidence of record. R. at 8. The Board didn't explain why it did so. At other points, it appears that the Board determined that objective medical evidence is categorically more probative than lay evidence under DC 5257 with respect to lateral instability of the knee. And its statement, that "even if the [v]eteran sincerely believes that his knee experiences instability, instability itself, can be clinically tested for and diagnosed," only augments this suggestion that the Board didn't consider—or at least didn't consider fully—the lay evidence of lateral knee instability. R. at 10. To the extent the Board may have favored objective medical evidence over lay evidence, without any supporting reasons or bases for that finding, the Board erred.

In that regard, nothing in DC 5257 provides that objective medical evidence is required or is to be favored over lay evidence. 38 C.F.R. § 4.71a, DC 5257. Thus, under Petitti, "[it] certainly does not, by its terms, restrict evidence to 'objective' evidence." 27 Vet.App. at 427. The Board appears to have read a requirement into DC 5257 that's not there.

Id. at *5-6.

The Court then considered if the Board simply determined lay evidence of instability was not competent and determined that would also be error because:

the Board didn't explain on what basis it may have implicitly concluded that, on the question of lateral instability, medical evidence is categorically more probative than lay evidence or that lay evidence is not competent at all. If the Board decides that lay evidence isn't competent on this question, it must do so clearly and with an appropriate supporting rationale. We caution the Board on remand that, when assessing whether lateral knee instability is the type of symptom about which a lay person is competent to testify, it must remain cognizant of the prohibition on making independent medical judgments.

Id. at *6.

The Court also considered functional loss should have resulted in a higher rating that frequent flare-ups that limited his mobility and standing and resulted in the use of a brace and cane resulted in a disability picture best approximating a higher rating.  The agreed the Board did not adequate explain its conclusion when the Board simply stated: “limited mobility/decrease[d] range of motion is appropriately contemplated within the criteria. As such, the Board does not find that an increased rating is warranted for the [v]eteran's noted functional loss in excess of the provided 10 percent already granted for painful and limited motion.”  Id. at *8.  The Court noted the Board did not address whether functional loss during flare-ups limited motion equivalent to the next higher rating and did not address some favorable evidence.  Id. at *8. 

This is a helpful decision to veterans as it is not unusual for veterans to have many complaints of instability in the records and yet the C&P examiner still does not record that instability.  This case will provide a roadmap toward winning those cases.  The case also shows that the VA really is required to drill down into the result of functional loss on flare-ups, something they rarely do well.

The decision was by Judge Allen, joined in by Judges Schoelen and Meredith.

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Lynch: DIC for Now-Adult Children

Lynch v. Wilkie, Case Number 16-0541, decided October 23, 2018 address a situation where an application for DIC was submitted while the veteran’s children were minors but the application did not list them. 

This case involves a claim for DIC by a veteran’s parents.  The application did not list the veteran’s children on it.  They sought DIC benefits years later after they reached their majority.

First, the court had to deal with whether the now adult children are nonetheless potentially eligible DIC claimants as purported children.  The court answered affirmatively and secondly had to address whether the record in the case reasonably raised the theory that there was a pending claim filed on the children’s behalf.  Id. at *4-5.

First, the Court determined:

Because the regulation implementing the statute is a permissible construction of the law

Congress enacted concerning the scheme for effective dates, as well as with this Court's precedent concerning death benefits, the Court concludes that the appropriate date on which to assess whether a person qualifies as a "child" for the purpose of determining eligibility for DIC benefits is governed by 38 C.F.R. § 3.400(c)(4) and depends on when the claim was filed. For claims filed within 1 year after the date entitlement arose, whether a claimant is a "child" should be assessed on the date entitlement arose. For claims filed more than 1 year after the date entitlement arose, whether a claimant is a "child" should be assessed on the date the claim was received.

Id. at *7-8.

The Court then decided:

Applying the above analysis to the facts of this case, if a claim was filed on the appellants' behalf within 1 year of the veteran's death, the date of death is the appropriate date upon which to assess whether the appellants were "children," and their present age is not a bar to benefits.  Otherwise, the appropriate "child" assessment date is the date the claim was received. Therefore, in this case, whether the appellants are eligible claimants depends on whether a claim was filed on their behalf within 1 year of the veteran's death or at some other point while they were still "children."

Id. at *8.

The Court then turned to whether the record reasonably raised a theory of entitlement.  IT noted: “The appellants argue that the record reasonably raised the theory that the 1969 DIC application filed by the veteran's parents was an incomplete, defective, or informal claim for benefits filed on their behalf that, when combined with the appellants' formal 2010 DIC claims, renders the claim filed in 1969 – when they were "children" and eligible to receive DIC – pending.” Id. at *8-9.  The children had pointed to arguments in the NOD, Form 9, and at oral argument essentially that the initial application was incomplete or incorrectly completed.  Id. at *9.

The Court commented, “While the evidence cited may suggest that the 1969 application was not accurately completed, it does not necessarily follow that identifying inaccuracies in the 1969 application submitted by the veteran's parents reasonably raises the theory that the application should be considered filed on behalf of the appellants. Indeed, the same evidence cited above shows that the appellants consistently asserted below that the veteran's parents intentionally sought to deny the appellants the opportunity to seek DIC – in other words, that the 1969 DIC claim was not a claim on the appellants' behalf.”  Id. at *9.  The Court seemed to focus on statements by a non-attorney representative during a hearing that due to the unusual family situation, the benefits were not sought on their behalf.  Id. at *9.  “Thus, even under the most sympathetic of readings, there is no suggestion in the cited evidence that the 1969 claim filed by the veteran's parents, whether considered on its own or in conjunction with the appellants' 2010 claims, should be construed as a claim filed on behalf of  the appellants when they were "children" as defined by 38 U.S.C. § 101(4)(A).  Therefore, this theory was not reasonably raised before the Board.”  Id. at *10.

The Court did leave open the door that if there had been evidence in the record that the an application for survivor benefits from SSA had been made it might have resulted in another decision as such an application might have triggered a formal claim for DIC benefits at the time.  Id. at *10. 

Judge Allen wrote concurring in much of the analysis but dissenting in the conclusion.  He wrote agreeing with the framework of when to evaluate a child’s status for the receipt of DIC.  But, wrote that he thought “there was more than enough evidence in the record to trigger the Board's obligation to consider the appellants' theory of entitlement.”  Id. at *12.

He stated that the question is whether the Board was on notice that it should explore the general theory of entitlement (i.e, that there was something unusual about the grandparent’s application in 1969 for DIC benefits that should have allowed the VA to treat the application as an application on behalf of the children).  Id. at *12-13.  Judge Allen also pointed to the NOD, Form 9, and Board hearing testimony.  The confronted the majorities reliance on the non-attorney representative’s statement that the benefits were sought for the grandparents not the children and stated:

This statement is certainly correct as a matter of fact. But appellants' theory is not premised on an argument that—in reality—their grandparents submitted a formal application for them. The grandparents apparently were acting in ways at odds with their granddaughters, appellants Lynch and Martinez. Thus, I do not rely greatly on this statement, from a non-lawyer representative, as foreclosing the more general arguments

concerning the 1969 application. This is even more so because of the other assertions  about the 1969 application in the record, including the subsequent testimony at the Board hearing.

Id. at *14.

He then pivots and explains the children argued the initial application was missing a critical element (the children) and as consequence of that missing element, the their more recent filings should related back to the 1969 application.  He then explained whether this is a winning argument is unimportant, for the Board had an obligation to consider and address the argument.

This decision results in a very difficult and highlights the unfairness of the system.  A DIC application that did not list a child could foreclose DIC benefits for that child.  However, it does highlight a possible ability to demonstrate a SSA survivor benefit application should count as a benefit.

The decision was by Judge Schoelen and joined in by Judge Meredith. Judge Allen concurred and dissented in part.

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Pirkl: What Happens When the VA Improperly Reduces a 100% Rating and then Subsequently Reduces the Rating Again

Pirkl v. Wilkie, Case Number 2017-1916, decided October 17, 2018 by the Federal Circuit addressed what happens when the VA improperly reduces a 100% rating and then subsequently reduces the rating again later.

This case involves a prior Federal Circuit remand.  The veteran had been granted a 100% rating in 1950, which was reduced to 70% rating in 1953, which was reduced to 50% in 1956, which was reduced again to 30% in 1966.  He was eventually granted a rating of 100% with an effective date from 1988.  After getting the 100% rating returned, in 2001 he filed a motion to revise the other reductions based on clear and unmistakable error.

The Board found CUE in the 1953 reduction and the RO reinstated a 100% rating until 1957.  The RO treated the 1956 and 1966 decisions as barring a higher rating. 

“On appeal to the Board, Mr. Pirkl argued

 that, because the Board awarded him a 100% disability rating as of September 30, 1952, the regulation on reductions of 100% ratings should have governed in 1956 and 1966, but the VA had not afforded him the  regulation’s protections in those years. The failure to apply the regulation in those years is hardly surprising: in both those years, Mr. Pirkl began the disability rating re-assessment with less than a 100% rating, a premise for application of the regulation. The Board concluded, however, that the December 1956 and April 1966 decisions (the latter

affirmed by the Board in 1967) were final as to the rating reductions and their effective dates and that it followed from such finality that the August 2006 Board CUE ruling as to the 1953 rating decision was properly implemented “by simply continuing the 100 percent evaluation until the next final rating reduction in December 1956, which was effective in February 9, 1957.” J.A. 92–93. For that reason, the Board dismissed Mr. Pirkl’s appeal, and the Veterans Court subsequently affirmed.”  Id. at *7.

The Court referenced its decision in Pirkl I and noted that in it “we held that the 1956 and 1966 decisions did not, simply because of their finality, block including post-1956 and

post-1966 relief as part of a remedy for the 1953 CUE.  “[A] finding of CUE may, under some circumstances, require a later decision to be revisited.””  Id. at *7.  The Court explained:

CUE in the 1953 decision changed the factual and legal background against which subsequent reductions were made”: in particular, when the Board found CUE in the 1953 decision, “the subsequent reduction of Mr. Pirkl’s disability rating in 1956 became an effective reduction from a 100% total disability rating, not from a 70% disability rating” (which was the starting point for the actual 1956 rating decision). Id. at 1384. Yet the Board “failed to consider the effect of this change in implementing its finding of CUE.”

Id. at *8.

The Court also noted of its prior decision:

Immediately after noting that the CUE finding “effected a change in the legal context applicable to those later decisions,” we explained that “the Board failed to consider the effect of the applicability of 38 C.F.R. § 3.170 (1949) or its successor regulations in the 1956 and 1966 decisions.”  Pirkl I, 718 F.3d at 1384. We added: “we find no support in the record that establishes the 1956 rating decision took into account the ‘material improvement’ standard” of the regulation. Id. Again citing 38 U.S.C. § 5109A(b), we held: “The CUE finding with respect to the 1953 decision thus requires the Board to revisit these later findings and determine the extent to which the CUE finding changes the legal or factual basis of the later evaluations.”

Id. at *9.

The Board had denied any relief for the CUE past the 1956 reduction because of the absence of separate preserved CUE claims for the 1956 and 1966 decisions and that regulations related to reductions of 100% ratings did not apply due to Reizenstein v. Shinseki, 583 F.3d 1331 (Fed. Cir. 2009).  The Federal Circuit clarified that Reizenstein related to staged ratings and had no bearing on these facts.  Id. at *9.

The Court then noted 38 U.S.C. § 5109A(b) explicitly states that “[a] rating or other adjudicative decision that constitutes a reversal or revision of a prior decision on the grounds of clear and unmistakable error has the same effect as if the decision had been made on the date of the prior decision.” Id. at *12.  The Court then explained that as a result is that Mr. Pirkl must be treated as having the pre-1953 100% rating after 1953, as is undisputed here.  Id. at *12.  It also noted this is a “fundamental principle of corrective remedies …  used throughout the law, though sometimes with modifications: ‘The injured party is to be placed, as near as may be, in the situation he would have occupied if the wrong had not been committed.’”  Id. at *12.

The Court then remanded for a Board determination whether Mr. Pirkl’s 100% rating would have been reduced in 1956 if the regulations related to reduction of 100% ratings had been applied.  It succinctly stated:

The fact that Mr. Pirkl was, because of the VA’s error, not actually receiving the 100%-rating benefit in 1956 no more makes the regulation inapplicable to the 1956 decision to reduce his rating than it disentitles him to retroactive relief under the regulation for the period from 1953 to 1956. In those years, Mr. Pirkl was not actually receiving the

100%-rating benefits, because of the VA’s error, yet the Board awarded relief for that period, and the government does not dispute the propriety of that relief.

Id. at *16.

This decision shows the power of challenging a reduction by the VA and especially highlights the protections in place for a 100% reduction.  It is a sad fact that reductions have grown increasing common these days and a reminder that they can be challenged.

The decision was by Judge Taranto and joined in by Judge Reyna and Chen.

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Robinson: An Earlier Effective Date as a Result of the VA’s Failure to Provide a Timely Diagnostic Test

Robinson v. Wilkie, Case Number 2017-1968, decided October 4, 2018 by the Federal Circuit addressed an earlier effective date after the VA failed to provide a timely diagnostic test.

This case involved a Vietnam veteran and the effective date for an increase from 10% to 60% for his coronary artery disease.  The VA granted an effective date of the date of a diagnostic test showing coronary artery disease, but it took 14 months after a VA physician suggested the need for such tests for them to actually be done.  The veteran essentially argued the effective date should be the date the tests that would eventually show an increase were ordered rather when they were conducted and that “ he should not be penalized for the 14-month delay in scheduling his test.”  Id. at *4.  

The veteran relied on 38 CFR section 17.33(a)(2) which states “Patients have a right to receive, to the extent of eligibility therefor under the law, prompt and appropriate treatment for any physical or emotional disability.”  The Court determined Section 17.33 is related to the provision of healthcare services and was not intended to create rights impacting the handling of compensation claims.  Id. at *8. 

The veteran also argued that the Veterans Court should have granted equitable relief and erred in stating it could not apply principles of equity.  Id. at *8.  But, the Federal Circuit agreed with the Veterans Court that while the Veterans Court “has authority to grant certain forms of non-substantive equitable relief required to enable the court to carry out its statutory grant of jurisdiction,” but it “cannot invoke equity to expand the scope

of its statutory jurisdiction.””  Id. at *8. 

The Federal Circuit then concluded

We agree with the Veterans Court that the facts of this case are troubling. The 14-month delay for coronary artery disease testing strikes us as excessive. But our court’s jurisdiction generally is limited to reviewing legal errors, 38 U.S.C. § 7292(d)(1), and we cannot say that the Veterans Court committed legal error by not exercising its equitable powers to find an effective date earlier than April 2, 2007. Under the circumstances in this case, where we do not know what caused the testing delay and we do not know whether Mr. Robinson would have satisfied the requirements for the 60 percent disability rating had he received the testing at an earlier date, we see no such error in the Veterans Court’s decision.

Id. at *9.

This is a disappointing result for the veteran and also demonstrates the Federal Circuit is not inclined to expand the Veterans Court’s equitable powers.  But, it does leave open the possibility that it would have rule otherwise if the record had supported an explanation that the delay in testing was the result of the VA and not the veteran.

Judge Newman wrote a penetrating dissent in which he argued the veteran’s heart attack is direct evidence of a cardiac illness long before the 14 month delayed test of ejection fraction.  Dissent, Id. at *4.  His dissent explained:

No “special regulation” mandates that the effective date is the date of testing and not the earliest ascertainable date that an increase has occurred. The panel majority’s “special regulation,” 38 C.F.R. § 3.816(c)(2), is silent on these issues. On the other hand, § 3.400(o) expressly addresses the effective date for an increase in disability compensation and defines it as the earliest ascertainable date.

Id. at *6.

He continued:

the entirety of the record must be considered and reasonably evaluated based on sound

medical opinion. It is incorrect for the VA to automatically resolve any gap in evaluation against Mr. Robinson; this court has observed that a condition may have existed before it was verified. See Collins v. Shinseki, 310 F. App’x 393, 395 (Fed. Cir. 2009) (“it may be logical to assume that the date of an injury precedes the date it is verified by a physician”).

Mr. Robinson states that if the VA is authorized to measure disability only from the date of a specific test, despite sound evidence that the disability existed, then the VA must conduct the test in a timely manner. Reply Br. at 2–3. The Secretary does not argue that the 14 months’ delay is reasonable; the Secretary’s only response is that Mr. Robinson could have gone to a private physician for the test. Secretary Br. at 20 (“Mr. Robinson was at liberty to obtain documentation of the status of his condition on his own prior to April 2007 . . . .”)  The record does not show that Mr. Robinson was so advised when the

VA cardiologist ordered the VA to conduct the test.

Id. at *6-7.

The Court then concluded:  “The Secretary offers no explanation or excuse for the delay. Contrary to the VA’s obligation to assist veterans, and to give veterans the benefit of the doubt, Mr. Robinson received neither.”  Id. at *7.

The decision was by Judge Stoll and joined in by Judge Lourie.  The dissent was by Judge Newman.

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Simmons: Harmless Error in the Context of CUE

Simmons v. Wilkie, Case Number 16-3039, decided September 20, 2018 addresses a harmless error analysis in the context of a CUE claim.

During service, the veteran was hospitalized for psychiatric observation and the records noted a history with “nerves” and a diagnosis of situational depression.  A 1972 RO decision granted pension benefits related to arthritis.  In 1974 the veteran sought disability compensation for arthritis and noted he thought his arthritis was related to his in-service mental depression.  A RO decision from that same year found neither the arthritis condition nor the anxiety reaction incurred during service. 

In 2005 the veteran through counsel filed a CUE motion as to the 1974 decision denying service connection for arthritis and a nervous condition.  It was denied and was the subject to an appeal and remand from the Veterans Court in 2016.  This resulted in another 2016 Board decision finding no CUE occurred in the 1974 decision and specifically stating neither the presumption of soundness or service incurrence applied.

The veteran argued “that, consistent with evidence extant in 1974, the Board made favorable findings of fact that in service he was diagnosed with an acquired psychiatric disability not noted upon service entry, and therefore the Board should have found that the RO erred in 1974 (1) in not affording him the presumptions under sections 105(a) and 1111 and (2) in not concluding that such disability was incurred during service, meeting the second element of service connection.”  Id. at *6. 

The Court found the Board did err in the failure to apply the presumption of soundness and service incurrence. Id. at *7-*9.  However, the Court did not end its analysis there.  Instead, it stated:

Merely finding an error, however, is not enough for Mr. Simmons to prevail. We are statutorily required to consider whether those errors prejudiced him. 38 U.S.C. § 7261(b)(2); see Hilkert v. West, 12 Vet.App. 145, 151 (1999) (en banc) (appellant has the burden to show prejudicial error).  The matter is somewhat more complicated in the context of CUE because part of the analysis that the Board undertakes incorporates a form of prejudicial error analysis—an error cannot be CUE unless it would have "manifestly changed the outcome" of the underlying agency decision.

Id. at *9.  It continued to explain:

in the context of our review of a Board decision on CUE, if we determine that the Board's manifestly changed outcome conclusion as to the underlying decision was not arbitrary or capricious and that it was supported by adequate reasons or bases, there would be no need for the Court to employ a prejudicial error analysis because there would be no Board error, the predicate for a Court harmless error analysis.

Id. at *10.

The Court explained its harmless error analysis by stating “prejudice is established by demonstrating a disruption of the essential fairness of the adjudication, which can be shown by demonstrating that the error (1) prevented the claimant from effectively participating in the adjudicative process, or (2) affected or could have affected the

outcome of the determination.”  Id. at *12. 

The Court characterized the veteran’s argument as stating “the essential fairness of the adjudicative process is disrupted if the Board fails to correctly apply mandatory statutory and regulatory presumptive provisions.”  Id. at *13.  And, “if the Court's harmless error

analysis focuses solely on whether correction of the Board's error manifestly would result in a different outcome, it would undermine the importance and value of statutory and regulatory presumptions.”  Id. at *14.  The Court concluded the first prong of its analysis by stating “even considering the pro-claimant nature of the veterans benefits system, we hold that the failure to afford the benefit of the type of statutory or regulatory presumption at issue in this case is not an inherently prejudicial error, although it may nevertheless be prejudicial in a particular case.”  Id. at *16. 

The Court then shifted in its analysis to asking whether the Board’s error prejudiced the veteran in this particular or individual case.  The Court noted the veteran argued against a finding on this prong: ‘He argues that this Court's usual harmless error review, which generally involves determining whether Board error would have made a difference in a benefits determination outcome, would compel us to engage in plenary review of the underlying facts of the RO decision, an endeavor that the Court in Archer prohibited. For

several reasons, the Court disagrees.”  Id. at *17.  The Court explained:

his argument overlooks that the Court in reviewing a Board decision on a CUE motion undertakes two separate inquiries. The prohibition on plenary review applies when the Court is determining whether the Board decision is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.  In contrast, when conducting a

harmless error analysis, the Court has already determined that the Board has erred and that the Board did not address, or did not address adequately, whether, if the underlying decision were incorrect, the outcome would manifestly have been different.  In that context, the Court is determining whether the Board error was prejudicial or affected the essential fairness of the adjudication.

Id. at *17-18.

The Court found the Board’s errors did not prevent the veteran from participating in the processing of his CUE motion or affect the overall fairness of the process and the Board’s errors did not affect its ultimate determination.  Id. at *19.  The Court acknowledged the presumptions of soundness and service incurrence but noted they do not relieve a claimant of providing evidence of the third—or linkage—prong of service connection.  Id. at *19.  It then specifically found a medical record relied upon by the veteran did not make that linkage and even if did that the record before the RO in 1974 also included a VA examiner's opinion that the acquired psychiatric disability was secondary to a non-service-connected arthritic condition.  Id.  “Therefore, despite his arguments, the Court cannot agree with Mr. Simmons that "[h]ad the presumption[s] been afforded[,] based on the evidence of nexus in the record, an award of service compensation would have been required."  Id.

This decision is a hard result, but is helpful in reminding us that a CUE motion must be rooted in the record existing at the time of the decision under attack and the record must prove all elements of the claim. 

The decision was by Judge Bartley and joined in by Chief Judge Davis and Judge Allen.

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