Atencio: Gulf War and GERD and JMRs

Atencio v. O’Rourke, Case Number 16-1561, decided July 6, 2018 considers whether GERD is considered to be a medically unexplained chronic multisymptom illness (MUCMI) under 38 CFR 3.317.

Section 3.317 is a regulation implementing benefits for Gulf War veterans with unexplained chronic medical problems.  This case determined GERD does not qualify under the regulation for service connection.  The regulation specifically states it excludes structural gastrointestinal diseases and GERD is considered to be structural.  The veteran tried to argue the broader definition of a MUCMI could include GERD but the Court found the regulation is not ambiguous, specifically excludes GERD, and the more general definition could not overcome the specific exclusion of GERD.

More interestingly, the veteran argued the enabling statute (38 USC 1117) gave the VA power to include disabilities entitled to a presumptive service connection but did not give the power to exclude disabilities.  The argument was the note excluding GERD was not allowed by the statute.  The Court rejected such an argument determining Congress intended to give the Secretary broad authority to determine which disabilities should be compensated and that the Court read this authority to include the power to determine which disabilities are not to be compensated as well as those to be compensated.  Id. at*13.  The Court took pains to say they were merely holding this particular statute provides both inclusion and exclusion power.  Id. 

The Court also addressed an argument by the Secretary related to the law of the case related to a prior JMR from this Court.  Essentially, the Secretary argued a prior JMR concerned service connection of GERD on the presumptive basis allowed under Section 3.317 and so the Court could not now consider any further arguments related to service connection on a direct or secondary basis. 

The Court began by saying

it is not clear whether the traditional law of the case doctrine applies to a JMR and we need not reach that question here. The Court has held that a JMR "effectively moots the case or controversy" before the Court.  More specifically, the Court also has held that an order granting a joint motion for remand premised on the agreement of the parties, and not incorporated by reference into the order, "does not evaluate and adjudicate the arguments or positions of the parties prior to disposition on the merits, but merely dismisses the appeal."  One could view the Clerk's order here as "administrative rather than adjudicatory."  Because the law of the case doctrine applies only to judicial decisions, not administrative determinations, it may be that the doctrine does not apply at all in this case.  The Court need not resolve this question today, however, because even if the doctrine applies, the Court finds that the terms of the JMR did not limit the issues before the Board on remand and, therefore, the Court is not precluded from addressing direct and secondary service connection.

Id. at *14-15 (internal citations omitted).  Thus, the Court really questioned whether the law of the case applied at all.  But, it then analyzed the actual JMRs language and applied it to its previous decision on this issue in Carter v. Shinseki, 26 Vet. App. 534 (2014).  Id. at *15.  The court noted language “vacat[ing] the Board decision” without limiting that vacator and no language limiting the Board’s duties on remand.  The Court concluded the JMR did not limit the issues before the Board or remand and thus the veteran could raise any arguments related to GERD in this appeal, including whether it should be service connected on a direct or secondary basis.  Id. at *15-16.

The Court then found a prior C&P examination was not adequate in its opinion as to secondary service connection.  Id. at *17.  The Court noted “a specific inquiry directly addressing aggravation in a case raising that theory, separate from whether a service-connected disability caused the disability at issue, is necessary when an examiner addresses secondary service connection.”  Id.

The Court then held

the Board failed to provide an adequate statement of reasons or bases for its reliance on the April 2014 examiner's opinion as to aggravation. The examiner's opinion seems to rely on a reversed chronology of the appellant's symptoms, and the Board failed to address the adequacy of this rationale. Furthermore, it is unclear how and why the same rationale was applied to both the causation and aggravation elements of secondary service connection. As El-Amin made clear, examiners must address both in cases raising both theories.  However, the Board did not address the significance of the April 2014 examiner appearing to provide no such distinction between causation and aggravation. 

In this regard, the Court notes that the very structure of her opinion appears to indicate that the two may have been considered together. The examiner was presented with three questions arranged in an alphabetical listing as to whether the appellant's GERD "(A) began during service, (B) is proximately due to or the result of recurrent sinusitis, or (C) is aggravated (worsened) by recurrent sinusitis." In providing responses, the examiner used the same lettering to address each question. Significantly, however, in the section of the report labeled "Rationale," the examiner provided her explanation and references to the medical literature regarding sinusitis and GERD in a paragraph labeled "(B) and (C)." This appears to mix causation and aggravation, and without a more detailed explanation, it is unclear how the Board interpreted this opinion and whether the examiner clearly provided a rationale that dealt with causation and aggravation as independent concepts.

The Board's consideration of the examiner's report concerning aggravation raises the

question of whether aggravation, as opposed to causation, is being treated in an almost slapdash manner by both examiners and the Board. We reiterate that aggravation of a condition by a service connected disability is independent of direct causation. The Board must ensure that medical examinations are adequate on that question and explain the bases for its conclusion concerning aggravation. It did not do so here.

Id. at *18-19.

Judge Meredith issued a separate opinion interestingly making the point that the majority may have not fully addressed the appellant’s argument that the VA could not exclude disabilities, she stated “I do not agree with resolving a matter of this significance—to the veterans community and VA—without any briefing from either party. The majority compounds this by deciding the statutory interpretation question without addressing what, in my view, was the entirety of the argument presented—that 38 U.S.C. §§ 1117 and 1118, read together, do not authorize VA to categorically exclude disorders from

qualifying for Persian Gulf War presumptive service connection.”  Id. at *20. 

Frankly, the clear take away for most Gulf War veterans is that GERD is not covered as a presumptive illness under Section 3.317.  However, the case is also interesting due to its discussion of JMRs and as an example of reliance on an inadequate medical examination.

The decision was by Judge Allen, joined in by Chief Judge Davis.  Judge Meredith wrote a separate opinion.

Clark: Veterans Have 90 Days as of Right to Present Proof to the Board after Remand from the Court

Clark v. O’Rourke, Case Number 16-2826, decided July 10, 2018 considers a veteran’s right to present additional evidence to the Board after a remand from the Court.

In this case, the question was new and material evidence and the Court had issued a remand.  The Board then sent a letter to the veteran stating "[i]f you elect to submit any additional argument or evidence, it must be submitted to this office within 90 days of the date of this letter or until the date the Board issues a decision in your appeal, whichever comes first."

The veteran’s advocate submitted a post-remand brief, but no new evidence.  Fifty days after the remand notice letter, the Board decided there was no new and material evidence and refused to reopen the claim.  This appeal resulted.

The veteran’s counsel argued that under Kutscherousky v. West, 12 Vet. App. 369 (1999)(per curium), 38 C.F.R. § 20.1304(a) applies in cases where a claim is remanded from the Court and gives the veteran 90 days to respond before a decision is made by the Board.  At oral argument, the Secretary conceded the notice letter it had sent was inadequate but argued the appellant implicitly waived his right to utilize all or part of the 90 day period.  Id. at *3-4.  The Secretary then pointed to language in the veteran’s post-remand brief stating it was “look[ing] forward to a decision.”  Id. at *4. 

The Court stated it would not allow the VA to unilaterally reduce or eliminate the 90 day period to submit new evidence and that as this is a matter of right, the right cannot be waived absent a voluntary, knowing and intentional waiver.  Id. at *6-7.  The Court then stated because the notice letter was flawed, there could be no intentional waiver.  Id. at *7.  It also stated:

Nowhere in the postremand brief is there the slightest indication that the appellant waived his right to submit additional evidence. Praying for an "equitable resolution of the appeal" and stating that he "look[ed] forward to a decision representing sound rating principles" cannot reasonably be understood as relinquishing any rights he would otherwise retain up until the actual issuance of that decision.

Id. at * 7.

The Court then determined the error was not prejudicial.  It noted “The appellant asserted in his February 2017 brief regarding his current appeal that, if VA had granted him the full 90 days to submit evidence postremand, he ‘may have been able to procure evidence material to his claim.’ In his reply brief, the appellant asserted that he has new medical evidence which may substantiate his claim and that he therefore can identify evidence that he ‘would have submitted…had the Board not prematurely issued the decision on appeal.’”  Id. at *8.

Judge Meredith wrote a dissent which agreed with the right to a 90 day period to submit new evidence absent a voluntary, knowing, and intentional waiver.  However, she would have determined the appellant had not carried his burden in demonstrating that VA’s errors were prejudicial and because she believes the majority opinion contravened controlling precedent in finding prejudice.  Id. at *9.  It would appear she would have been more comfortable finding prejudicial error if counsel had made a proffer of the evidence that would be submitted. 

The 90 day rule seems enshrined by this case, but the more interesting question might be how it reveals some of the judge’s opinions on the prejudicial error analysis.  Judge Greenberg seems to view it potentially more liberally whereas Judge Meredith might require more.

The decision was by Judge Greenberg and joined in by Judge Schoelen.  Judge Meredith dissented.

Martin: Battling Unreasonable Delays and Using a Writ to Expedite Your Claim

Martin et al v. O’Rourke, ___ F.3d. ___ (Fed. Cir. 2018), Opinion Number 2017-1747 et al is a Federal Circuit decision dated June 7, 2018 and notable as it clarifies a more liberal standard for granting writs and thus expediting your claim or forcing the VA to actually make a decision.

This is actually a series of cases that were all combined for this decision and hearing. The veterans had sought a writ of mandamus asking the Veterans Court for relief after unreasonable delays by the VA (i.e., the veterans were asking the Veterans Court to force the VA to render a decision).  The Veterans Court denied the request, but the Federal Circuit held the Veterans Court applied an improper standard for evaluating these writs based on unreasonable delay.

First, you should know the Veterans Court has the power to hear and grant writs of mandamus forcing the VA to act.  But, the Veterans Court is usually very reluctant to grant these requests when they are based on unreasonable delay by the VA.  The past rationale has basically been that the courts should not tell a cabinet agency how to employ their limited resources to make decisions.

The Federal Circuit began by discussing the long time it takes for the VA to handle appeals.  It noted that after a veteran files a notice of disagreement with a decision, it takes the VA an average of 500 days to prepare the Statement of the Case.  Id. at 5-6.  It then notes the veteran then has to file a Form 9 and then the VA has to certify the appeal to the Board of Veterans’ Appeals.  The Federal Circuit notes it takes 2 ½ hours to complete the certification process, but veterans wait an average of 773 days for this certification to occur and an additional 321 days for the VA to actually transfer the certified appeal to the Board.  Id. at 6.

The Federal Circuit commented about these delays:

In contrast to preparation of the SOC, for which there is arguably an explanation for some delay, it is unclear to us why this two-and-a-half-hour certification process takes an average of 773 days to complete—and the government has not provided an explanation. And the average 321-day delay that occurs when the VA transfers the certified appeal to the BVA is even more mysterious. The government, again, has not explained the cause of this delay, even though the transfer process appears to consist of simply transferring appellate records.

After these often-significant periods of delay, the BVA will issue its decision. Overall, the average time from the filing of a Notice of Disagreement to issuance of a BVA

decision is over five years.

Id. at *6-7.

The Federal Circuit then turned to the question of how should the Veterans Court analyze whether the VA has unreasonably delayed an action.  Id. at *11.

The Court begins by acknowledging the Veteran Court’s current standard which basically asks is the delay so extraordinary, given the demands on and resources of the Secretary, that it is equivalent to an arbitrary refusal by the Secretary to act.  Id. at *11-12

Then, the Court turns to another standard used by some courts to address delay by other agencies.  Id. at *12. See also Telecomms. Research & Action Ctr. v. FCC (“TRAC”), 750 F.2d 70, 76 (D.C. Cir. 1984).

The Court then summarized this standard by saying:

In TRAC, the D.C. Circuit explained that the overarching inquiry in analyzing a claim of unreasonable delay is “whether the agency’s delay is so egregious as to warrant mandamus.” TRAC, 750 F.2d at 79. The D.C. Circuit pointed to six factors as relevant to this inquiry: (1) the time agencies take to make decisions must be governed by a “rule of reason”; (2) where Congress has provided a timetable or other indication of the speed with which it expects the agency to proceed in the enabling statute, that statutory scheme may supply content for this rule of reason; (3) delays that might be reasonable in the sphere of economic regulation are less tolerable when human health and welfare are at stake; (4) the court should consider the effect of expediting delayed action on agency activities of a higher or competing priority; (5) the court should also take into account the nature and extent of the interests prejudiced by delay; and (6) the court need not find “any impropriety lurking behind agency lassitude” in order to hold that agency action is unreasonably delayed.  Id. at 80. In TRAC itself, the D.C. Circuit recognized that this standard is “hardly ironclad, and sometimes suffers from vagueness,” id., and the court has recently emphasized that each case should be analyzed based on its unique circumstances, see Am. Hosp. Ass’n v. Burwell, 812 F.3d 183, 189 (D.C. Cir. 2016).

Id. at *12-13.

After laying out these two competing frameworks for analysis, the Court determines the first standard focuses solely on the VA’s interests at the expense of the veteran’s interests and instead determines the TRAC standards should be applied.  Id. at *14.

The Court then discusses the six TRAC factors in detail, which should serve as a primer for anyone seeking to draft a writ of mandamus for unreasonable delay. 

The Federal Circuit also explicitly states it sees “no reasonable explanation for the historic delays that have occurred during appeal certification, which takes an average of 773 days, and during transfer to the BVA, which takes another 321 days, on average. Such delays appear to be inexplicable.”  Id. at *16, n. 9.

Judge Moore took time to file a concurring opinion in which he expresses his frustration with the VA by stating:

In the cases before us today, we once again find ourselves faced with the fundamentally flawed program that is the veterans’ disability benefits system. Established with the intent of serving those who have served their country, the veterans’ disability benefits system is meant to support veterans by providing what are often life-sustaining funds. Instead, many veterans find themselves trapped for years in a bureaucratic labyrinth, plagued by delays and inaction.

Id. at *Concurrence 4.

He also says “Under the correct mandamus standard which we adopt today, veterans should have a much easier time forcing VA action through the mechanism of mandamus.”  Id. at *8.  He states

It is unfortunate, but the takeaway from all this is quite simple: hiring a lawyer and filing a mandamus petition forces the VA to act. Absent unusual circumstances, certification and docketing should be ministerial acts which take very little time to perform. Cases which languish at this non-substantive stage are good candidates for mandamus based on unreasonable delay and due process violations unless the government can proffer

a reason for the delay specific to the case.

Id. at *9-10.

Judge Moore concludes with this passionate closing:

The men and women in these cases protected this country and the freedoms we hold dear; they were disabled in the service of their country; the least we can do is properly resolve their disability claims so that they have the food and shelter necessary for survival. It takes on average six and a half years for a veteran to challenge a VBA determination and get a decision on remand. God help this nation if it took that long for these brave men

and women to answer the call to serve and protect. We owe them more.

Id. at *10.

This decision is of incredible importance as it liberalizes a nearly impossible writ standard.  The result will likely be a much higher number of writs, but it might also force the VA to actually do there job.

Decision by Chief Judge Prost and joined by Judge Schall.  Concurrence by Judge Moore.

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