Chudy: Hearing Loss and Referral for Extraschedular Consideration

Chudy v. O’Rourke, Case Number 17-0082, decided June 14, 2018 considers whether a claim for hearing loss should be referred for extraschedular consideration.  It is in a line of cases most recently including Doucette v. Shulkin, (2017) and King v. Shulkin (2017) which address this issue, but reach a result more narrow than that of King.

In King, the Court focuses on two “central issues: (1) whether, in fact, the rating criteria

adequately contemplated the functional effects of the appellant's bilateral hearing loss such that extraschedular referral was not required and (2) whether the availability of higher schedular ratings has any role in an extraschedular analysis by the Board.”  Id. at *3-4.

However, in Chudy, the Court focused on the Thun factors and the specific facts alleged by the veteran.  The veteran is retired but pointed to evidence of trouble talking with his grandchildren and wife.  The Court concluded “On its face, this statement has no bearing on whether Mr. Chudy's hearing loss interfered with employment.”  Id. at *6.  The Court then stated:

In any event, the Board directly addressed the December 2015 report in its decision and

explained that the VA examiner "noted that the functional impact of Mr. Chudy's hearing loss was that [he] ha[d] difficulty understanding speech in certain circumstances," but that "this alone d[id] not prohibit his ability to work in his given field." Although the Board may have been terse in its finding no marked interference with employment, the Board's brevity was understandable given that there was no evidence to discuss with respect to this issue, nor has Mr. Chudy identified any such evidence. Read as a whole, the Board's statement of reasons or bases for finding that there was no marked interference with employment is understandable and facilitates judicial review, and the Court otherwise discerns no error in the Board's finding.

Id. at *6.

Judge Greenberg who dissented in Doucette and joined in the King opinion wrote a blistering dissent as what he must see as an attempt to rollback and limit the impact of King. 

He begins by noting Chudy is a combat Vietnam Veteran who has received the Purple Heart who has battled with the VA for years for benefits.  The Court then notes “The majority …  skates over the fact that the Board failed to explain how the rating criteria contemplate the appellant's symptomology. See Thun v. Peake, 22 Vet.App. 111, 115 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3 1366 (Fed. Cir. 2009) (when either a claimant or the evidence of record suggests that a schedular rating may be inadequate, the VA must determine whether the evidence before it "presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate.").”.  Id. at *9.  He noted symptoms of ear pain, ear pressure and dizziness and states it is unclear how those symptoms are addressed by the diagnostic code.  Id. at *10.  He then turns on the adequacy of the examinations, which were conducted after retirement and note no impact on functional impairment.  He states:

It is illogical to suggest that a retired claimant who describes a difficulty hearing voices would not experience marked interference with employment; the evidence in the current case simply reflects that the appellant is retired. The appellant's absence from the workforce does not preclude the possibility that his uncompensated symptoms would

have caused marked interference with employment.

Id. at *10

This case is nothing more than a pitched battle among the Court’s judges on whether hearing loss claims should result in referral for extraschedular consideration and a longer game issue regarding the impact of extraschedular consideration for all disabilities.  The Secretary, of course, is working against veterans to attempt to narrow the confines of referral for extraschedular consideration and some judges of the Court are fine with that approach. Others, such as Judge Greenberg are fighting for application of it to assist veterans.

Note the decision was written per curium by Judges Schoelen and Pietsch with the dissent by Judge Greenberg.  Interestingly, Judge Schoelen joined in the King decision, but clearly seeks to limit its reach.

Robinson: EAJA fees and Prevailing Party Status

Robinson v. O’Rourke, Opinion Number 2016-2110 is a Federal Circuit decision dated May 31, 2018 and notable as it follows the Veterans Court’s decision in Blue v. Wilkie issued on May 16, 2018.
This case deals with Equal Access to Justice Act fees (EAJA) which are important in that they are the primary mechanism through which veteran’s attorneys are paid for work before the Courts.

In this case, the veteran’s attorney argued (and the dissenting opinion agreed) that EAJA fees should have been allowed after a remand by the Veterans Court.  The Veterans Court denied fees saying the remand was not predicated on administrative error and did not materially alter the legal relationship between the parties.

The Federal Circuit found the veteran’s attorney for the first time argued before the Veterans Court that the effective date should have been earlier than that determined by the Board.  The Veterans Court permitted the veteran’s argument and remanded but did not identify any error by the Board and specifically said it was allowing the Board to address the arguments in the first instance.

The Federal Circuit noted where a remand without a judicial finding of administrative error or a concession of such error, the default rules is that remand is not based on administrative error for EAJA purposes and the EAJA applicant has the burden of proving the remand was predicated on administrative error.  Id. at *8.

The Federal Circuit also noted the recent Supreme Court decision in CRST Van Expedited, Inc. v. Equal Employment Opportunity Commission, 136 S. Ct. 1642 (2016), which addressed a Civil Rights Act fee shifting statute and states:

“a defendant need not obtain a favorable judgment on the merits in order to be a ‘prevailing party.’” Id. at 1651. The Court reiterated that the “touchstone” of the prevailing-party inquiry is whether there has been a “material alteration of the legal

relationship of the parties.” Id. at 1646 (internal quotation marks omitted). This alteration, the Court stated, “must be marked by ‘judicial imprimatur.’”

Id. at *9.

The Federal Circuit then noted “Neither CRST nor Raniere, however, dealt with remand

to an agency as a basis for finding prevailing-party status, as here.”  Id. at *10.  It then stated: “For these reasons, it is unclear whether, in the wake of CRST, we must reconsider or clarify our precedent requiring administrative error in cases of remand for further agency proceedings. We need not resolve that issue here, however.  Robinson is not a prevailing party under either our precedent or the guidance set forth in CRST.”  Id. at *10.

The Court then explained:

The remand at issue was not predicated on administrative error. The Veterans Court did not address the merits of Robinson’s appeal, much less identify any error committed by the Board below. Nor could it, as Robinson did not argue that he was entitled to an earlier effective date before the Board. Instead, the Veterans Court considered Robinson’s belated argument, and remanded for the Board to make factual findings related to that issue in the first instance. In other words, the remand required the Board to consider an argument that it could not have considered previously, through no fault of its own.

Id. at *11.

The Court continued:

The Veterans Court’s remand decision also did not materially alter the legal relationship between the parties in the manner contemplated by CRST. While it is true that Robinson received additional consideration with respect to his objection to the Board’s effective date determination upon remand, that relief was not predicated on an allegation that the Board had acted improperly. And, as described above, the Veterans Court did not agree—and indeed, could not have agreed—with such an allegation. Even if the Veterans Court’s remand decision compelled the Board to consider new evidence and arguments on remand, the decision did not materially alter the relationship between the parties. Instead, it merely afforded Robinson an opportunity to have his otherwise

waived claims considered by the Board.

Id. at *17.

I believe (as does the dissent) that the Court simply failed to appreciate the nonadversarial nature of VA claims at the agency level.  Id. at *5 (dissent by J. Newman).  Judge Newman then argues:  

The judicial obligation is to assure that the veteran has a reasonable opportunity to obtain the benefits to which he is entitled, an obligation that required Mr. Robinson to take an appeal to the Veterans Court in order to obtain consideration by the BVA of the effective date.  When the veteran has no recourse but through the courts, “EAJA is a vital complement to this system designed to aid veterans, because it helps to ensure that they will seek an appeal when the VA has failed in its duty to aid them or has otherwise erroneously denied them the benefits that they have earned.”

Id. at *5 (dissent)

Secondarily, almost all Federal Circuits have a minor issue regarding jurisdiction.  The Federal Circuit can only hear legal disagreements from the Veterans Court (and not decide factual differences).  The Secretary believes this limitation is nearly without limit, but here the Court agreed they could hear the case because they are reviewing the Veterans Court’s interpretation of EAJA and not reviewing the Veterans Court’s factual determinations or application of the law to the facts.

Decision by Judge O’Malley and joined by Judge Reyna.  Dissent by Judge Newman.

Acree: Withdrawing an Appeal and the Impact of Delisio

Acree v. O’Rourke, Opinion Number 2017-1749 is a Federal Circuit decision notable for its discussion related to an effective withdraw of issues before the Board of Veterans’ Appeals. 

The veteran was represented by the DAV and has PTSD.  During a Board hearing, the Board member asked if he withdrew several issues on appeal and the veteran agreed.   

On appeal to the Court of Appeals for Veterans Claims the veteran argued the withdrawal of a claim was not effective unless it complied with the requirements of DeLisio v.  Shinseki, 25 Vet. App. 45, 57 (2011), which require the withdrawal to be explicit, unambiguous, and done with a full understanding of the consequences of such action on the part of the claimant and noting the Board did not address the third Delisio prong (full understanding of the consequences) . The Veteran’s Court upheld the Board decision.

The Federal Circuit reversed the case.  It determined:

By requiring that an effective verbal claim withdrawal must be explicit, unambiguous, and undertaken with a full understanding of its consequences, the DeLisio standard provides a bulwark against the inadvertent or uninformed forfeiture of a veteran’s rights.

***

As they traverse the “labyrinthine corridors of the veterans’ adjudicatory system,” veterans may lack a complete understanding of the consequences of claim withdrawal.

***

The need to ensure that a veteran understands the consequences of claim withdrawal is particularly acute when, as here, he suffers from psychiatric illness and appears pro se before the board.

Id. at *7-8.

The Federal Circuit then stated after the Veteran’s Court embraced the Delisio standard, it erred by failing to ensure the Board faithfully adhered to it.  Id. at *9.  Because the third prong of Delisio had not been addressed, the Federal Circuit remanded for further development.

While limited to Board hearings, this case likely has wider implications.  The practice of VA employees getting a veteran to withdraw a claim (or an appeal) without the veteran fully understanding the consequences of that action likely happens often and these types of withdrawals are subject to attack.  An example I can foresee is one where a VA employee suggests withdrawing an appeal so a new claim can be filed resulting in a quicker decision.  If the VA employee does not make explicit that the veteran is giving up a possible earlier effective date, this practice is problematic and subject to attack.

The case does distinguish between those veteran’s represented by an attorney and veteran’s service officer, which will likely lead to an assumption that one represented by an attorney understands the consequences of his actions. 

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