Perciavalle: CUE, No Change of Law and Pyramiding

Perciavalle v. Wilkie, Case Number 17-3766, decided September 27, 2019 considers CUE and the prohibition on pyramiding in the context of knee disabilities.

In 1966 the veteran was service connected for a left knee injury and granted a rating of 10% under DC 5259, which covers removal of cartilage from the knee.  In 1971 he sought an increase but was denied and did not appeal.  In 2015, he filed a motion to revise the 1971 decision based on CUE.  He argued he should have been rated

under DC 5257 for slight instability of the knee and separately under DC 5003-5260 for limitation of motion of flexion and discomfort (pain) secondary to arthritis.   Id. at *3.  H explained that an x-ray report obtained during a 1971 VA examination clearly indicated arthritis in his left knee that decreased his range of motion and other evidence in 1971 showed instability.

VA denied the CUE motion stating in 1971 a policy was not in place allowing separate ratings for instability and limited motion. 

Now for some background, ordinarily different ratings for the same disability are not allowed as that would constitute pyramiding (awarding compensation for the same impairment under various diagnostic codes).  However, in the case of Esteban v. Brown, 6 Vet.App. 259 (1994), the Veteran’s Court “recognized that separate ratings were permissible for different diagnoses of the same disability as long as the conditions diagnosed shared no symptomology.”  Id. at *2.  So, separate ratings under different diagnostic codes can be awarded for the same disability if “none of the symptomatology for any one of the conditions was duplicative of or overlapping with the symptomatology of the other [diagnostic code ratings].”  Id. 

Three years after Estaban, the “VA’s General Counsel issued a guidance opinion specifically interpreting the ratings schedule as allowing separate ratings for the conditions at issue here—arthritis and instability in the same knee. VA Gen. Coun. Prec. 23-97 (July 1, 1997).”  Id.   The Court then explained:

The agency determined that, since "the plain terms of DC 5257 and 5003 suggest that those codes apply either to different disabilities or to different manifestations of the same disability, the evaluation of knee dysfunction under both codes would not amount to pyramiding under section 4.14." Id. VA recognized that it was the first time the agency assumed an official position on the matter, as the opinion acknowledged that it was aware "of no formal position taken by the Veterans Benefits Administration on this issue" before then.

Id. at*3.

Turning back to Perciavalle, the Board found the veteran’s CUE argument foreclosed by the existence of 38 C.F.R. Section 20.1403(c), which states CUE cannot be premised on a change in the interpretation of a statute or regulation.  The Board focused on the anti-pyramiding regulation and a finding that that not until Esteban was § 4.14 interpreted to permit separate ratings for distinct, non-overlapping symptomatology of the same underlying injury. It also found that VA did not issue its General Counsel opinion permitting separate ratings for arthritis and instability until 1997.

The Court reviewed the Board’s determinations de novo and pointed out that the VA’s General Counsel opinion in 1997 found no formal position had previously been taken by the VA.  The Court then determined  

our holding in Esteban cannot be deemed a change in interpretation. On its own terms, Esteban did not purport to introduce a definitive interpretation of § 4.14 but merely held that the Board's reading of the regulation was too broad in that case, as rating the veteran's condition under separate diagnostic codes did not constitute pyramiding under the plain language of the regulation. Esteban did not cite to any formal interpretation on VA's part that it repudiated but, citing to the factual findings in that case, merely noted earlier cases from this Court that read the regulation the same way when applied to similar facts. Esteban, 6 Vet.App. at 261 (discussing Fanning v. Brown, 4 Vet.App. 225 (1993)). In short, Esteban neither proposed an interpretation of a regulation nor cited any existing interpretation.

Id. at *6.

The Court found a change in interpretation necessarily requires the existence of a prior interpretation and because neither Esteban nor the 1997 VA General Counsel Opinion changed the law, Section 20.1403(c) is not implicated. 

The Court then considered whether the veteran was prejudiced by the Board’s opinion and determined yes.  The Court focused on a list of errors found in Simmons v. Wilkie, 30 Vet. App. 267, 277 (2018).  The Court found “the Board's error prejudicial in this case because the Board wrongly categorized his motion as precluded by law, thus preventing him from receiving a meaningful opportunity to participate in the adjudicative process.”  Id. at *8.

This is an important decision that upholds the boundaries of 38 C.F.R. 20.1403(c) and also puts into play many decisions involving knee disabilities where the evidence supported an instability rating many years ago, but it was denied in favor of simply a limited motion rating.

Decision by Judge Toth and joined in by Judges Bartley and Greenberg.

To know more about whether Thomas Andrews can help you, please visit my website.

Raybine: Late Notices of Appeal

Raybine v. Wilkie, Case Number 18-6117, decided September 13, 2019 concerned a late notice of appeal to the Court.

The Board decision was mailed October 19, 2017 and on July 11, 2018 filed a motion for reconsideration (longer than 120 days).  The motion was denied on September 12, 2018 and a notice of appeal was filed November 2, 2018.

The Secretary filed a motion to dismiss the appeal as untimely and the Court ordered the veteran to show cause why the motion should not be granted.  The veteran wrote explaining he had difficulty obtaining additional information relevant to his claim.  Specifically, he had participated in human experimentation at the Aberdeen Proving Ground in Aberdeen, Maryland.  When he contacted the National Personnel Record Center, he was told his records did not contain evidence of medical treatment or participation in experimentation but directed him to the Aberdeen Proving Ground.  When he contacted the Aberdeen Proving Ground he was told the records were sealed and would have to provide additional information before they would be released to him.  Additional records were ultimately released.  He also explained that his wife had to do things because he was not able to handle things.

As the Court explained, an appellant must file a notice of appeal within 120 days of a Board decision, which the veteran did not do.  However, the Court noted an exception.  If the veteran files the motion to reconsider with the Board within 120 days of the decision, the finality of the Board decision is abated by the motion.  Id. at *2.  The Court then noted the veteran filed his motion outside of the 120 day window, so he is  not entitled to the exception.

The Court then noted the requirements for equitable tolling, that the appellant must show:

“(1) an extraordinary circumstance; (2) due diligence exercised in attempting to file; and (3) a connection between the extraordinary circumstance and failure to timely file.”  Id. at *2.  The Court then noted “the veteran's response suggested that he may be entitled to equitable tolling based on mental illness or the inability to obtain medical files concerning a classified experiment.”

Regarding mental illness, the Court stated a veteran may be entitled to equitable tolling upon a showing that the mental illness renders the veteran incapable of handling his own affairs.  ID. at *2.  However, the Court then noted “the veteran must offer more than a

medical diagnosis or vague assertions of mental problems.”  Id.   The Court said here, the veteran indicated his service connected PTSD rendered him unable to “handle things.”  Id.  The Court then found:  “However, this does not establish that his condition rendered him incapable of ‘rational thought or deliberate decision making . . . or incapable of handling [his] own affairs or unable to function [in] society.’”  Id.  It then determined: “We are not persuaded that Mr. Raybine's service-connected PTSD rendered him incapable of handling his affairs under the standard set out in the case law.”  Id.

As to the inability to obtain additional records, the Court determined the veteran had not indicated how this constituted an extraordinary circumstance or actually prevented him from timely filing a motion with the Board.  Id. at *3. The Court stated:

An extraordinary circumstance is one beyond the veteran's control.  Assuming that the delayed response from Aberdeen Proving Ground satisfies this criterion, there is no argument before the Court how Mr. Raybine's late filing was a direct result of this circumstance. The relevant case law endorses equitable tolling in situations where a veteran sought to file in a timely manner but was prevented from doing so, such as by physical or mental infirmity, misinformation from a VA employee, homelessness, or potential third-party interference with the mail.

Id. at *3.

The Court then expressed his sympathy, but ruled the appeal untimely.

Judge Greenberg dissented.  He would find that the Supreme Court has never ruled extraordinary circumstances must exist to allow a veteran to untimely appeal to the Court.  Id. at *4.  He then stated until a higher court defines the outer limits of what warrants equitable tolling, he would not apply the higher standard the Veterans Court has applied.  Judge Greenberg noted the veteran suffers from PTSD as a result of being a human test subject and expressed that an opinion that that enough might constitute a reason for tolling.

This comes on the heals of an order in McGee v. Wilkie that expressed a pro-veteran slant in an equitable tolling situation.  What I take from this case is that the more information provided by the veteran on how the mental illness impacts his ability to handle things, the better.

This was a per curium decision by Judges Toth and Falvey with Judge Greenberg dissenting.

To know more about whether Thomas Andrews can help you, please visit my website.

Williams: Section 20.1304(a) and 90 Day Letters

Williams v. Wilkie, Case Number 16-3988, decided September 13, 2019 concerned Section 20.1304(a) and whether the veteran could rely on a letter giving 90 days or the date of the decision to respond before the Board would issue a decision.

In this case, the Board had remanded to the RO and the RO issued a supplemental statement of the case (SSOC) and then the Board made a decision on day 42 after notifying the veteran the Board had received the case back from the RO following the earlier remand.

The Court makes its decision on two grounds.  First, the Court determined the triggering event for application of Section 20.1304(a) was certification of the appeal, not return of the appeal from the RO after a remand.  Id. at *5.

The Court noted, the veteran

argues that preamendment § 20.1304(a) nevertheless applied to his case when it was returned to the Board following the October 2014 remand because, "[a]s long as an appeal is certified, § 20.1304 applies every time the appellate record is transferred to the Board." Reply Br. at 5-6. In essence, he argues that, after an appeal is certified, any mailing of notice that the appellate record has been transferred back to the Board again implicates § 20.1304(a) and begins the running of the time period specified therein. See Mot. for Recon. at 12-14. Although the Court agrees that an appeal remanded to the AOJ does not need to be certified again to be automatically returned to the Board if the RO does not grant benefits in full, we do not agree that § 20.1304(a) is triggered anew each time an appeal is returned to the Board.

Id. at *7.

Second, the veteran argued the Board’s citation to 20.1304(a) in its notice letter made the provision applicable to him and created in him a justifiable reliance on the letter and induced him into believing he had 90 days to submit additional evidence or argument.  Id. at *11.  The Court determined the veteran failed to meet the burden of showing he was harmed by the Board’s erroneous citation to Section 20.1304(a).  Id. at *12.  The Court began by stating the notice actually gives 90 days or until a decision is made to make a decision and also notes the veteran and his VSO repeatedly affirmatively indicated they had no further arguments or evidence.  Id. at *14.  The Court did explain in footnote 7 that:

the Court is not holding that the Board's erroneous citation to § 20.1304(a) in a notice letter is necessarily not prejudicial or that the Board does not err when it issues a decision sooner than 90 days after mailing a notice letter to a claimant in a case where § 20.1304(a) actually applies. Rather, we hold only that Mr. Williams has failed to carry his burden of demonstrating that any Board error in this case prejudiced him.

Id. at *15.

The case underscores the oddity of Section 20.1304(a) which really guarantees nothing to the veteran (90 day or until the Board has already made a decision unless you can make a showing of good cause).

The decision was by Judge Bartley and joined in by Judges Toth and Falvey.

To know more about whether Thomas Andrews can help you, please visit my website.

Youngblood: Multiple Service Connected Disorders And SMC

Youngblood v. Wilkie, Case Number 18-0378, decided September 12, 2019 a veteran seeking SMC at the housebound level based on an argument that multiple servicec connected disorders defined as “one disability” under 38 C.F.R. Section 4.16(a).  The Court ruled against the veteran.

The veteran was service connected for the left and right knees and initially granted a combined rating of 70%.  Subsequently, it was increased to a rating of 60% and 20% with a combined rating of 80% and TDIU was granted.  Later, the RO granted service connection for renal insufficiency and kidney disease with a staged rating of 60%, followed by 80%, and then 100%.  The veteran was also granted SMC (housebound) with an effective date of the 100% kidney disease rating.  The veteran sough an effective date of 2001 for SMC (housebound) and the Board denied.

38 U.S.C. § 1114(s) states:

If the veteran has a service-connected disability rated as total, and (1) has additional service-connected disability or disabilities independently ratable at 60 percent or more, or, (2) by reason of such veteran's service-connected disability or disabilities, is permanently housebound, then the monthly compensation shall be $2,993. For the purpose of this subsection, the requirement of "permanently

housebound" will be considered to have been met when the veteran is substantially confined to such veteran's house (ward or clinical areas, if institutionalized) or

immediate premises due to a service-connected disability or disabilities which it is reasonably certain will remain throughout such veteran's lifetime.

Id. at *1.  The Court then defined the issue as:

The only part of section 1114(s) at issue in this case is the opening clause. VA concluded that on September 4, 2012, the appellant became eligible for section 1114(s) benefits because the 3 RO assigned a 100% disability rating to his polycystic kidney disease effective on that date, causing it to become "a service-connected disability rated as total." 38 U.S.C. § 1114(s); R. at 1409. The appellant believes that he became eligible for section 1114(s) benefits on July 31, 2001, because the TDIU award that became effective on that date also is "a service-connected disability rated as total." The Secretary does not dispute the appellant's assertion that he met the other criteria for section 1114(s) benefits in July 2001. If, therefore, the appellant's argument is correct, then he will be entitled to receive the effective date that he requests.

The parties do not question the general meaning of the phrase "a service-connected disability rated as total." They agree that it means one single disability to which the agency has assigned a 100% disability rating. See VA Gen. Coun. Prec. 66-91 (Aug. 15, 1991); Guerra v. Shinseki, 642 F.3d 1046, 1049-50 (Fed. Cir. 2011). Multiple, separately rated disorders do not suffice, even if the combined disability rating of those disorders reaches 100%. Bradley v. Peake, 22 Vet.App. 280, 290-91 (2008). The appellant does not dispute that he was not entitled to a 100%

schedular disability rating for a single service-connected disability during the period under consideration

Id. at *2.

The Court then noted that caselaw plainly states TDIU based on a single service connected disorder is sufficient to meet the “a service-connected disability rated as total” requirement in section 1114(s) even if the VA assigned that disorder a rating less than 100%.  Id. at *2-3.  But, the Court noted the RO based the TDIU award in this case on the left and right knees.  Whereas 1114(s) has a single disability requirement.  The veteran attempted to satisfy the single disability requirement by reference to 4.16(a) (the one disability clause). 

The Court explained that 4.16(a) allows for a grant of TDIU by a rater (and does not require higher agency action) if certain requirements are met, if those requirements are not met, TDIU has to be gained through 4.16(b).  However, 4.16(a) only applies if the veteran’s assigned disability ratings reach certain baseline thresholds (namely a single disability of 60% or a ratable disability at 40% with a combined rating of 70%).  Id. at *5.  The Court then stated:

We conclude that, because the Secretary plainly stated that the purpose of the "one disability" phrase was to assist certain veterans in reaching the baseline disability rating

requirements to benefit from § 4.16(a), then no other purpose can be read into the regulation, including retaining the "one disability" designation to establish "a service-connected disability rated as total" for SMC eligibility. The unambiguous specificity of the Secretary's purpose clause is decisive and excludes all uses for the phrase "one disability" as it appears in § 4.16(a) other than the one provided.

Id. at *5.  The Court acknowledged the veteran argued application of that clause means that his service-connected disorders "are to be considered one disability for purposes of TDIU" and that he was "entitled to TDIU based on his single service-connected disability."  Id. at *6.  But rejected this position because it adds more to the regulation than its plain meaning can bear explain the one disability clause exists to determine whether a TDIU request is eligible to adjudicated under 4.16(a) as opposed to 4.16(b).  The Court determined “[d]eciding whether to aggregate disability ratings is the one and only purpose for considering disorders to be ‘one disability’ in Section 4.16(a).”  Id. at *6. 

As applied to this case, the Court stated that while the RO could deem the veteran’s bilateral leg disability one disability for purposes of entitlement to proceed under Section 4.16(a), “once the RO reached the adjudication phase of the appellant's TDIU request, the

‘one disability’ phrase had served its purpose and faded from view.”  Id. at *6.

In this case, the Court foreclosed the opportunity to use multiple disabilities used under 4.16(a) as “one disability” for purposes of SMC.  The conclusion is a limiting one for veterans.

This was a decision by Judge Pietsch and joined in by Judges Bartley and Meredith.

To know more about whether Thomas Andrews can help you, please visit my website.

Wolfe and Boerschinger: Class Actions for ER Costs

Wolfe and Boerschinger, Case Number 18-6091, decided September 9, 2019 granted class action to a class of veterans who had treatment at the ER and were requesting the VA to refund the costs.

In Staab v. McDonald, 28 Vet. App. 50 (2016), the Court found the VA had wrongly denied claims for reimbursement of non-VA emergency care whenever a veteran had any insurance covering the service.  Staab held the VA had erroneously interpreted 38 U.S.C. Section 1725.  However, after Staab, the VA adopted a new regulation purporting to implement Staab, but actually

VA excluded from reimbursement nearly every type of expense a veteran could have incurred if he or she had insurance covering the non-emergency VA medical service at issue. So, after Staab, VA adopted a regulation that functionally creates a world indistinguishable from the world Staab authoritatively held impermissible under the statute. As the petitioners put it, "post-Staab, insured veterans are in exactly the same monetary position with respect to insured claims as they were pre-Staab."

Id. at *2.

The Court continued in its concern for VA action and stated:

It's difficult to conceive how an agency could believe that adopting a regulation that mimics the result a Federal court held to be unlawful is somehow appropriate when the statute at issue has not changed.  But there is more. Even after we decided Staab, and after VA dropped its appeal of Staab, VA was affirmatively informing veterans that they were not entitled to reimbursement for non-VA emergency medical care if they had any insurance covering the service at issue. In other words, the Agency was telling veterans that the law was exactly opposite to what a Federal court had held the law to be. Who knows how many veterans relied on such a misrepresentation—for that is what it was—in deciding not to appeal VA decisions that denied reimbursement for non-VA emergency

medical care 

All of this is unacceptable.

Id. at *2.

The Court engaged in a careful analysis of the Staab statutory, then certified the class (all claimants whose reimbursement of emergency medical expenses incurred at non-VA facilities VA has or will deny, in whole or in part, on the grounds that they expenses are part of the deductible or coinsurance payments for which the veteran is responsible.).  Id. at *28. 

The Court then looked at the merits of the petition and determined it had the right to issue extraordinary writs in aid of its jurisdiction according to the All Writs Act.  The Court noted the statute (38 U.S.C. Section 1725(c)) says "The Secretary may not reimburse a veteran under this section for any copayment or similar payment that the veteran owes the third party or for which the veteran is responsible under a health-plan contract."  It further explains the regulation (38 C.F.R. Section 17.1005(a)(5) states: "VA will not reimburse a veteran under this section for any copayment, deductible, coinsurance, or similar payment that the veteran owes the third party or is obligated to pay under a health-plan contract."  Id. at *29.  The Court then determines

The question is whether VA's inclusion of "deductibles" and "coinsurance" (but not "balance billing"197) in the list of non-reimbursable items is a permissible construction of section 1725. No matter what standard of review we use, it's not. We hold § 17.1005(a)(5) is not based on a permissible construction of section 1725(c)(4)(D) for two related, but distinct, reasons: (1) It's inconsistent with Staab's interpretation of section 1725, and (2) deductibles and coinsurance aren't "similar" to a copayment (and VA didn't explain—to defeat arbitrariness—how they're "similar" to a copayment).

Id. at *29.  After discussing the merits, the Court determined the veteran has shown she lacks adequate alternative legal channels to obtain relief.  The Secretary wanted the veteran to argue the issue to the Board of Veterans’ Appeals, but the Court determined that “would be futile because the Board doesn't have jurisdiction to invalidate the regulation. Thus, petitioner lacks an adequate alternative legal channel because

the Board can't provide the relief she seeks.”  Id. at *34.  The Court also determined it would exercise discretion under the All Writs Act in this case. 

The Court then ordered that the regulation (17.1005(a)(5)) is invalid, deemed VA decisions that denied reimbursement for medical expenses deemed deductibles or coninsurance to be invalid, and ordered the VA to readjudicate those claims.  It also ordered the VA to stop sending letters that contained incorrect statements about the law.  It also gave the VA 45 days to prepare and submit to the Court for approval a plan to provide notice to veterans who had been sent the incorrect notice.

Judge Falvey dissented principally saying the All Writs Act requires writs to be in aid of the Court’s jurisdiction and further determining that because the Court’s appellate jurisdiction is defined in 38 U.S.C. Section 7252 and 7261 as reviewing decisions of the Board, the Court cannot use the AWA without a foundational Board decision to review.  He also believes the VA made good arguments for the language in the amended regulation issued as a result of Staab and that since the issue has not been decided by the Court, the right to a writ is not clearly and indisputably correct.  Finally, Judge Falvey wrote that a Board decision is not a futile action and could find helpful facts.

This case, in combination with Godfrey, provides a template for further class actions.  It is also an amazingly well researched and put together statement.  I have no doubt the VA will ask for a stay of the order, seek an en banc decision or appeal the decision, but believe Judge Greenberg’s reasoned opinion will be affirmed.  The result will be the VA cannot undue Staab through a regulation and veteran’s will receive more money in their pocket from ER expenses that have been denied.  This decision also shows that at least two judges of the Court are deeply offended by the VA’s attempts to avoid Court decisions by re-writing regulations.

The decision was masterfully written by Judge Greenberg and joined in by Judge Allen.  Judge Falvey wrote the dissent.

To know more about whether Thomas Andrews can help you, please visit my website.

Euzebio: Constructive Possession of National Academy of Sciences Reports

Euzebio v. Wilkie, Case Number 17-2879, decided August 22, 2019 affirmed a Board decision finding against service connection for a benign thyroid nodule.  The case concerned whether a National Academy of Sciences report, Veterans and Agent Orange: Update 2014 (herein 2014 Update) was constructively before the VA.

Specifically, the veteran argued the Board should have considered the 2014 Update, which states benign thyroid nodules "may be associated with . . . service," and as a result afforded him a medical examination.

The Court acknowledged the 2014 Update:

(1) was created for VA pursuant to a congressional mandate, which directed the Secretary to enter into an agreement with the NAS to review and summarize scientific evidence concerning the association between exposure to herbicides used in Vietnam during the Vietnam era and diseases suspected to be associated with such exposure; (2) was  published in 2016, prior to the Board decision on appeal; and (3) reflects that there is "limited or suggestive evidence of an association between exposure to [herbicides] and hypothyroidism.

Id. at *5 (internal citations omitted). However, the Court noted that it was precluded from statute from considering material not contained in the record before the Secretary and the Board.  Id. at *5.  The Court then acknowledged case law supports the idea of finding that records are constructively before the Board “because the Court could not accept

the Board being "unaware" of certain evidence, especially when such evidence is in possession of . . . VA, and the Board is on notice as to its possible existence and relevance.”  Id. at *6.  The Court then summarized the law on constructive possession as:

In sum, as the constructive possession doctrine developed, the requirement that the document not relate too tenuously to the appellant's claim grew in significance, to the point where, today, an appellant must show that there is a direct relationship between the document and his or her claim to demonstrate that the document was constructively before the Board, even if the document was generated for and received by VA under a statutory mandate.  The document must bear a closer relationship to the appellant beyond providing general information related to the type of disability on appeal, or merely being referenced in other evidence of record or relied upon by appellants in similar cases.

Id. at *7-8.

In this case, the veteran did not submit the 2014 Update, but argued the Secretary knew about it and that it was potentially relevant because it addressed a relationship between a thyroid condition and AO exposure.  “However, our caselaw is clear that, even if VA is aware of a report and the report contains general information about the type of disability on appeal, that is insufficient to trigger the constructive possession doctrine; there must also be a direct relationship to the claim on appeal. Moreover, as in Monzingo, the requirement for a direct relationship is not satisfied simply because the report at issue was obtained by VA pursuant to a statutory mandate.”  Id. at *8.

Judge Allen wrote a blistering dissent that dissected the majority opinion as to whether the 2014 Update had a direct relationship to the veteran’s claim.

Judge Allen wrote:

The majority is certainly correct that Congress did not require VA to consider the reports in individual adjudications, see ante at 9, but that recognition does not mean that the congressional mandate to create those Updates is irrelevant to whether the Board should consider them under applicable law in certain individual cases.  And for me, the congressional directive is critical in terms of the significance of these reports more generally.  These are not the type of documents that are located somewhere in the bowels of VA, tucked away in the desk of some bureaucrat never to be read. They are documents that are important for the Agency because Congress made them so, expressly and unequivocally.  

Id. at *9.  Judge Allen then noted that we are aware the Board actually knows the 2014 Update exists: “the Secretary made clear during oral argument that the Board knows

about the NAS Updates. This fact is quite significant. This is not something obscure

or something that one could say only that the Board should have known. It is undisputed that the Board actually knows the Updates exist and that it knows what they are meant to do–provide scientific information about connections between Agent Orange exposure and certain medical conditions.”  Id. at *19.  Judge Allen also pointed out the Board actually referenced the 2014 Update in its opinion and The Purple Book (a Board summary of law) discusses the 2014 Update. 

Finally, Judge Allen writes that

In the end, I believe the NAS Updates are constructively before the Board because they have a "direct relationship" to all claims based on Agent Orange exposure…. Moreover, I am cognizant of the burden on the Board that decisions of this Court can impose. I do not mean to open the floodgates for what the Board must consider and I don't believe my position would do so. Not all evidence is the same….  The NAS Updates are unique–more equal than other government reports. We need not decide whether other things could also fall in this special category of animal. But to not recognize the special place of the NAS Updates in the VA benefits process turns a blind eye to reality. I respectfully dissent from the majority's decision in this matter.

Id. at *21.

Legally, Judge Allen’s dissent is powerful and ultimately I think this one will be appealed and possibly overturned.  To find that a report referenced by the Board is not before the Board is a perversion of logic.  However, even if the case is overturned as to the NAS Update, I believe it represents an attack on how cases are typically presented to the Board.  The Court wants to narrowly construe constructive possession and thus reduce the VA’s obligation with regards to a duty to assist (or simply look up a medical treatise).  I can’t believe the VA or Court actually wants advocates or attorneys to start sending in reams of medical treatises to the VA rather than simply giving a citation.  But, until this case is clarified, it appears we are now forced to do just that.

The decision was by Judge Meredith and joined in by Judge Falvey.  Judge Allen wrote a powerful dissent.

To know more about whether Thomas Andrews can help you, please visit my website.

McGee: Late Notices of Appeal and Miscellaneous Order Number 09-19

McGee v. Wilkie, Case Number 18-6853, decided August 20, 2019 concerned a late notice of appeal to the Court.

The veteran received a Board decision on October 19, 2015 and within 120 days of that decision asked the Board of Veterans’ Appeals reconsideration.  Reconsideration denied the motion on August 7, 2018.  The veteran filed a notice of appeal on December 7, 2019, which is 122 days after the issuance of the denial of reconsideration.

As the Court noted:

Board decisions must be appealed to this Court within 120 days of the decision's mailing.  If a claimant files a motion for Board reconsideration within that 120-day period, the finality of the Board decision is abated and a new 120-day appeal period begins to run on the date the Board mails the claimant notice that the Board Chairman denied reconsideration.  An NOA filed within that new 120-day period initiates an appeal of the underlying Board decision.  Where an appellant files such an NOA, the NOA may also initiate review of the Board Chairman's denial of reconsideration, but the Court's review of that denial is limited.

Id. at *1.

The veteran argued he actually sent the notice of appeal in the mail on December 4, 2018, which would be timely, but it was not actually received by the Court.  The Court noted it could wade into a discussion of whether the notice was actually mailed or whether equitable tolling applied, but instead could potentially rely upon the Court’s Miscellaneous Order Number 09-19, which revised Rule 4 of the Court’s Rules of Practice and Procedure.  The Court described the order:

In its revised form, the rule provides that NOAs "received within 30 days after the expiration of the filing deadline" are considered timely if "the appellant demonstrates good cause or excusable neglect for failure to file" within the 120-day window.  The revised rule also provides that NOAs "received more than 30 days after the expiration of the filing deadline" can be considered timely if equitable tolling is warranted.  Misc. Order 09-19 provides that this rule was "published and [] effective" on June 21, 2019.13 But the order did not state whether the rule change was intended to apply only to NOAs filed after that date or, should a motion to dismiss be filed, to all claims pending as of that date.

Id. at *2-3.

The Court formed a panel to consider and determine whether the provision applies only to NOAs filed after the Order or those pending before and ultimately “the Court interpret[ed] Misc. Order 09-19 to apply to all appeals pending at the Court as of June 21, 2019, regardless of when the NOA itself was filed.”  Id. at *3-4.

The Court then considered the issue of good cause or excusable neglect to determine if the filing should be allowed pursuant to the Order.  I take a moment to note the Order does not eliminate the possibility that equitable tolling could apply to a late NOA, but offers another path—note the Court states the Order provides that NOA received more than 30 days late may be considered timely if equitable tolling is warranted.  Id. at *3.

In terms of good cause or excusable neglect, the Court essentially accepted the veteran’s explanation and messy procedural history of this case and noted:

Appellant alleges he "received duplicate(s) of the Board's [decision] at three junctures with two different dates and three different time stamps." On appeal to this Court, the Secretary himself was confused about what decision was on appeal as he initially filed a December 7, 2018, Board decision, later correcting the record with an October 19, 2015, Board decision. In a nonlegal sense, the administrative record here is "messy."

The Secretary hasn't given the Court any reason to doubt appellant's assertion that he "received duplicate(s) of the Board's [decision] at three junctures with two different dates and three different time stamps." And there's no question the sequence of events involving multiple decisions and repeated mailings was confusing. Given this, and considering both the revisions to Rule 4 and "the need for flexibility" when enforcing procedural bars in Federal courts when equity is in play, the Court holds appellant had good cause for filing his NOA 2 days late.

Id. at *4.

This is an interesting early application of the Court rule about late filings that demonstrates a pro-veteran slant.  It will be likely be used as the template for such cases in the future, though I believe the term “good cause or excusable neglect” will likely need to be fleshed out by future cases.

The was a per curium decision was by Judges Bartley, Greenberg, and Allen.

To know more about whether Thomas Andrews can help you, please visit my website.

Tedesco: Severe Painful Motion as opposed to Limitation of Motion

Tedesco v. Wilkie, Case Number 18-1805, decided August 16, 2019 considers the term Severe Painful Motion in DC 5055.

Diagnostic Code 5055, which covers knee replacements, provides for a 60% rating for “Chronic residuals consisting of sever painful motion or weakness in the affected extremity.”  The veteran reported experiencing significant pain in both knees and left knee pain "all the time" and knee pain 6 hours a day and relying on a walker to get around.  Id. at *2.  The

Board found:

appellant's range of motion was "at worst 95 degrees of flexion and 0 degrees of extension." R. at 6. The Board concluded that a "higher or separate [intermediate] rating is not warranted based on limitation of motion." R. at 7. Because the appellant's left knee did not warrant more than a minimum rating for painful motion under the other DCs for limitation of motion, the Board found that no intermediate rating was warranted under those DCs and that it was "more favorable for him to retain his currently assigned 30[%] minimum disability rating" under DC 5055. Id. Additionally, the Board noted that it  cannot find that chronic residuals consisting of severe painful motion or weakness in the affected extremity are present such that a disability rating of 60[%] under [DC] 5055 is warranted." Id. The Board specifically found that, "while the [appellant] did experience pain in the left knee, his range of motion was not limited to compensable levels." Id. The Board observed that VA examiners found moderate weakness and normal strength. Id. Thus, the Board concluded that a "disability rating in excess of 30[%] cannot be granted," id., because his disability "did not rise to the level of severe painful motion or weakness."

Id. at *2.

The veteran argued the VA had conflated the terms severe painful motion with limitation of motion whereas the Secretary argued “the Board was required to consider limitation of motion in deciding the appropriate rating under DC 5055. The Secretary asserts that a disability rating is assigned based on the loss of earning capacity and because a knee becomes impaired most commonly by limitation of motion, it follows that in evaluating the disability level caused by pain, limitation of motion is a critical factor to be considered.”  Id. at *4.

The Court focused on the plain language of DC 5055 and determined severe painful motion and limitation of motion are distinct concepts.  It noted that the 60% rating did not require limitation of motion whereas lower intermediate level ratings under DC 5055 did require limitation of motion, which meant the Secretary knew how to use the terms differently but wrote DC 5055 as it did.

The Court then wrote:

Therefore, to the extent that the Board in this matter substituted a requirement of limitation of motion for the severe-painful-motion analysis contemplated by DC 5055, the Board erred. See Pernorio v. Derwinski, 2 Vet.App. 625, 628 (1992) (finding Board error where it misapplied the terms of the applicable DC). This is not to say that the Board is precluded from considering objective tests for limitation of motion in evaluating service-connected residuals of a knee replacement under DC 5055, but to adequately assess the degree of painful motion under DC 5055, the Board must do more than merely cite those test results and state the corresponding evaluation under the pertinent limitation-of-motion DC. Simply stated, limitation of motion is but one factor when assessing the disability commensurate with "severe painful motion."

Id. at *6-7.

In the case at hand, “[t] he Board found that severe painful motion was not present because the appellant's "range of motion was not limited" by pain. Id. This is not what DC 5055 requires for a 60% rating; it is severe painful motion, not limitation of motion, that is required.”  Id. at *7.  The Court also challenged the Secretary and stated:

As a final matter, the Court notes, without deciding, that the Board may need to explain what it understands "severe" to mean as it is used to describe painful motion and  weakness at the 60% disability level. This Court has made clear that the Board cannot base its rating decisions on undisclosed standards. See Johnson v. Wilkie, 30 Vet.App. 245, 254-55 (2018). Doing so amounts to nothing more than the Board saying that a veteran is not entitled to certain benefits "'because I say so.'"

Id. at *7.

The Court also considered lateral knee instability.  In this case, the Board noted veteran reports of knee instability but found medical findings more probative.  Id. at *8.  The Court noted “the Board's explanation appears to rely on an understanding that medical evidence is inherently more probative under DC 5257, which this Court has rejected.”  Id. at *8.  Thus, the case was remanded on both the DC 5055 (severe painful motion) and DC 5257 (instability) arguments.

This case underscores the fact the VA often does not fully accept a veteran’s complaints of pain when assigning a rating.  It is important to continue appealing these types of cases and thus holding the VA to account. 

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

To know more about whether Thomas Andrews can help you, please visit my website.

Fears: Medical Examiner Competence Presumed Unless Challenged Before the Agency

Fears v. Wilkie, Case Number 17-2345, decided August 12, 2019 discusses the presumed competence of a VA medical examiner and reaffirms that such competence is presumed unless challenged at the Board level and typically cannot be raised initially before the Court.

This involves a Dr. Wilhelm who the Court noted had been discharged from an Army medical residency program and later linked in some news articles as possibly having a role in the mishandling of VA examinations.  Id. at *2.  The veteran was denied service connection for hepatitis mostly upon the basis of an opinion by Dr. Wilhelm. 

The veteran argued under offensive collateral estoppel, VA was precluded from relying on Dr. Wilhelm’s medical opinion of the examiner’s litigation history.  Id. at *4.  The Court noted the veteran did not specifically challenge the adequacy of his medical opinion in his principal brief, but in his reply and that thus the Court would  not entertain those arguments. 

The Court began by discussing the presumption of competence as related to VA medical examiners, it explained:

The presumption of competence is rooted in in the presumption of regularity, which "provides that, in the absence of clear evidence to the contrary, the court will presume that public officers have properly discharged their official duties." This presumption of regularity requires courts "to presume that what appears regular is regular." And it shifts the burden to the party seeking to rebut the presumption "to show the contrary."38 In this context, showing the contrary "requires nothing more than is required for veteran[-]claimants in other contexts—simply a requirement that the veteran raise the issue" before VA.  "Given that one part of the presumption of regularity is that the person selected by . . . VA is qualified by training, education, or experience in the particular field, the presumption can be overcome by showing the lack of those presumed qualifications." Whether the presumption has been rebutted is inherently a question of fact the Court will review for clear error. Under this clear-error standard, we may overturn the Board'sfinding only if there is no plausible basis in the record for the Board's decision and the Court is "left with the definite and firm conviction that" the Board's decision was in error.  Today, however, we address the scope of the Wise exception, a legal question distinct from the question whether the presumption of competence has been rebutted in a specific appeal. We review questions of law such as this without deference to the Board. Moreover, the Board must provide a statement of the reasons or bases for all its material determinations of law and fact "adequate to enable a claimant to understand the precise basis for the Board's decision, as well as to facilitate review in this Court."

Id. at *4-5.  The Court then discussed how the case law evolved as to this issue, highlighting Federal Circuit and Veterans Court cases, which principally seem to assert that a veteran must raise the issue of the examiner competence before the agency or Board before arguing it to the Court. 

It ended with a discussion of the recent cases Wise v. Shinseki and Francway v. Wilkie.  Wise is an unusual case that should never have been defended by the VA where the examiner explicitly stated in her opinion she did had no training or background in psychiatry and her opinion was no more than a laypersons.  The Wise court found it unreasonable for the Board to rely on the examiner’s opinion even though the issue of examiner competence had not been raised to the Board.  The Fears Court described the Wise case as a “limited exception to the requirement that claimants expressly challenge

VA's selection of a medical examiner before the Board, relieving them of this obligation where there are facially obvious issues of competence.”  Id. at *9.  Meanwhile Francway was a Federal Circuit case where the veteran failed to challenge the choice of an internist for a back examination while before the agency.  The Federal Circuit in Francway explained:

“[t]he presumption of competency requires nothing more than is required for veteran claimants in other contexts—simply a requirement that the veteran raise the issue."

"[O]nce [a] veteran raises a challenge to the competency of a medical examiner," the court said, "the presumption has no further effect, and, just as in typical litigation, the side presenting the expert (here the VA) must satisfy its burden of persuasion as to the examiner's qualifications." But the court also explained that claimants' burden of rebutting the presumption must be offset by "the ability to secure from the VA the information necessary to raise the competency challenge." Thus, once a claimant requests information about an examiner's qualifications, he or she "has the right, absent unusual circumstances, to the curriculum vitae and other information about qualifications of a medical examiner. This is mandated by the VA's duty to assist."

Id. at *10.

In the case at hand, the Veterans Court determined there was no explicit admission of incompetence or anything in the record to independently demonstrated an irregularity.  Id. *11.  As to the prior litigation and news articles about Dr. Wilhelm, the Veterans Court determined they were not in the record and could not be considered by the Court.  The Court seems to focus on two prongs to a finding that something should constructively be in the record: (1) are the records within the Secretary’s control and (2) could they reasonably be expected to part of the record.  It did not affirmatively answer part one but was clear that part two was not met in this case. 

The Court did note: “as the Secretary recognized at oral argument, if the appellant had

properly submitted these documents to the Board, the Board likely would have been required to discuss them, even if the appellant had not expressly raised the argument.

The Secretary's concession is consistent with the Federal Circuit's comment in Francway that the Wise exception is not limited to the precise facts of that case but also concerns those parts of the record that "independently demonstrate[] an irregularity in the process of selecting the examiner."

In its opinion the court was clear the need to raise the issue of an examiner’s competence applies to pro se litigants.  So, the takeaway from this case is likely that you as a pro se veteran and we as practitioners should start (1) asking for CVs of examiners and (2) in our Board memorandum challenge the practitioner’s competence.  I am troubled by the restrictive notion of what was in the record.  It seems an explanation of why the Court would not take judicial notice of the prior case involving Dr. Wilhelm is in order.  I would argue for something less than requiring both records be in the Secretary’s control and that they reasonably be expected to be part of the record.

Decision by Judge Allen and joined in by Judges Schoelen and Toth.

To know more about whether Thomas Andrews can help you, please visit my website.

Payne: Informal Claims for SMC(k), Bifurcation of a TDIU Claim, and More

Payne v. Wilkie, Case Number 17-3439, decided August 9, 2019 affirmed and remanded in part a Board decision that discussed several issues.  It remanded as related to whether a formal claim had to be filed for a SMC(k) and whether a claim for TDIU was before the Board.

SMC(k) Claim

The Board stated it did not have jurisdiction over entitlement to SMC(k)(erectile dysfunction) arguing both a requirement to file a formal claim and that a multi-link causal chain (as found here) prevented entitlement to SMC(k).  The Court disagreed and explained:

In sum, the Court holds that the plain text of section 1114(k) does not limit potential entitlement to SMC(k) to veterans with certain service-connected disabilities or preclude a theory of entitlement based on a multi-link causal chain between the service-connected disability and the anatomical loss or loss of use of one or more creative organs; and that ends the matter. See Procopio v. Wilkie, 913 F.3d 1371, 1375 (Fed. Cir. 2019).  Accordingly, the Court is not persuaded by the Secretary's argument that the appellant's expressly raised theory of causation—that the upper extremity disabilities "materially contributed to his development of conditions, such as obesity and [service-connected] cardiovascular disease, associated with [ED]"—was, essentially, too tenuous for the issue of entitlement to SMC(k) to be before the Board as a potentially ancillary benefit to the upper extremity claims on appeal.

Id. at *10.

The Court also considered whether a post-2014 version of 38 CFR Section 3.155, which required all claims for VA benefits be filed on a standardized form thus ending the practice of allowing informal claims for benefits, applied to this set of facts.  The Court concluded:

In sum, because the plain text of § 3.155(d)(2) does not require that a claimant file a formal claim to assert entitlement to SMC(k) and, as previously discussed, the plain text of section 1114 does not preclude the appellant's causal theory of entitlement to SMC(k) as a potentially ancillary benefit to his service-connected upper extremity claims, the Board erred when it declined to adjudicate the explicitly raised issue of entitlement to SMC(k).

Id. at *12.

TDIU Effective Date

The VA had granted TDIU with an effective date of March 2005, which was the date of an application for TDIU.  The Secretary maintained the issue was not before the Board because the VA bifurcated the issue in an April 2005 decision which was not appealed.  The Court noted: “the Court in Rice explained that ‘a request for TDIU . . . is not a separate claim’ and that, ‘[w]hen entitlement to TDIU is raised during the adjudicatory process of the underlying disability or during the administrative appeal of the initial rating assigned for that disability, it is part of the claim for benefits for the underlying disability.’”  Id. at *14.  The Court also turned to Harper v. Wilkie,30 Vet. App. 356, 359 (2018), which discusses bifurcation.  The Court explained:

The Secretary's argument—that the April 2005 RO decision served to bifurcate the issue of TDIU from the appellant's claim for benefits for the upper extremity disabilities, thereby removing it from appellate status and requiring the appellant to file an NOD as to that decision—is controlled by the Court's recent decision in Harper.  In Harper, the Court held that, where the issue of TDIU was part and parcel of the appellant's appeal for a higher initial disability rating for his underlying mental condition, the award of TDIU for a portion of the appeal period "'did not serve to bifurcate the appeal, but instead served simply to partially grant [Mr. Harper's] request for TDIU.'" 30 Vet.App. at 360-61 (quoting Palmatier v. McDonald, 626 F. App'x 991, 995 (Fed. Cir. 2015)). The Court reasoned that the appellant's "NOD placed the issue of the appropriate disability evaluation into appellate status and, therefore, because he was not awarded the highest rating possible, including TDIU, for the entire appeal period, the issue of entitlement to TDIU [prior to the effective date of the partial grant] remained on appeal." Id. at 362. Similarly, in this case, the RO's award of TDIU effective from March 2005 served as a partial grant of benefits and did not bifurcate the issue of TDIU from the appeal of the initial disability rating for the upper extremity disabilities. Thus, consistent with Harper, here, the Board had jurisdiction to consider the issue of TDIU prior to March 2005, which remained in appellate status.

Id. at *14.

The Court noted the VA had tried to argue that Harper concerned a partial grant of TDIU occuring after the Board adjudicated the underlying claims whereas here the partial grant of TDIU occurred before the Board adjudicated the first appeal of the underlying claims.  But, the Court found the distinction did not make a meaningful difference.

Other Issues

The veteran also argued the Board erred in not ordering a new examination in light of muscle wasting.  The Court acknowledged that the duty to assist might require a new examination but that such a duty is triggered when the appellant comes forward with some evidence that there has been a material change in the disability since the last examination.  Id. at *16.  It noted neither a bald assertion of change or the mere passage of time is sufficient.  Id.  The Court denied the error and seemed to rely substantially on the fact that the currently assigned rating contemplated muscle atrophy.

The veteran also attempted an argument that problems in this legs might justify a higher arm rating that was rejected by the Court and the Court also rejected the reasons and bases argument related to extraschedular consideration based on a Thun step two analysis (or lack of argument as to Thun, step two).

Some important takeaways from this case:  First, an a multi-link causal connection is possible if properly argued and supported.  Second, amended Section 3.155 does not require a formal claim for ancillary benefits.  Third, TDIU is an inferred claim and as such likely to survive a bifurcation argument by the VA.

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

To know more about whether Thomas Andrews can help you, please visit my website.

Buffington: Effective Date after a Period of Active Duty

Buffington v. Wilkie, Case Number 17-4382, decided July 12, 2019 considers 38 C.F.R. 5304(c) and how it governs the effective date for a service connected veteran after his rating has been discontinued after a period of active duty.

Several years after multiple periods of active duty, the veteran requested his benefits be reinstated.  The benefits were reinstated, but the VA determined by law it was only permitted to make payments retroactive to 1 year prior to the date we receive such a request.

The veteran argued “38 U.S.C. § 5304(c) is clear—VA must ‘withhold

or suspend a veteran's benefits only 'for any period for which such person receives active service pay.’”  Id. at *3. 

However, 38 C.F.R. Section § 3.654(b)(2) provides:

Payments, if otherwise in order, will be resumed effective the day following release from active duty if claim for recommencement of payments is received within 1 year from the date of such release: otherwise payments will be resumed effective 1 year prior to the date of receipt of a new claim. Prior determinations of service connection will not be disturbed except as provided in [38 C.F.R.] § 3.105.

Compensation will be authorized based on the degree of disability found to exist at the time the award is resumed. Disability will be evaluated on the basis of all facts,

including records from the service department relating to the most recent period of active service. If a disability is incurred or aggravated in the second period of service, compensation for that disability cannot be paid unless a claim therefor is filed.

Id. at *6.

The Court followed a Chevron analysis.  First asking "whether Congress has directly

spoken to the precise question at issue."  And, only secondarily asking whether the agency's interpretation is based on a permissible construction of the statute.  The Court

determined the statutory language of Sections 1110 and 5304 do “not address the effective date for the discontinuation of benefits or, as relevant here, the effective date and terms for the recommencement of benefits.”  Id. at *8.  “In sum, Congress did not

speak to the precise question at issue: Whether the Secretary may predicate the effective date for the recommencement of benefits on the date of the veteran's claim.”  Id.

It then determined “[b] ecause there is a gap in the statute, the Court must now turn to step two of the Chevron analysis, "whether the agency's answer is based on a permissible construction of the statute." Id. at *8.  The Court then reasoned:

the Secretary promulgated § 3.654(b)(2) pursuant to Congress's express delegation to establish "forms of application." 38 U.S.C. § 501(a)(2). Although Congress chose to govern the date that VA benefits shall be discontinued upon a veteran's return to active duty, 38 U.S.C. § 5112(b)(3), Congress was silent regarding when and how VA shall resume the payment of benefits after a veteran's release from active duty. The Secretary filled the gap left by Congress and, therefore, contrary to the appellant's contention, his regulation is necessary and appropriate to carry out the laws administered by the Department. See 38 U.S.C. § 501(a).

Id. at *11.

The Court also determined equitable tolling based on misleading notice as to the 1- year period is not relevant in this case because  

§ 3.654(b)(2) is not a bar to VA benefits and does not contain a statute of limitations that may be equitably tolled. Rather, the  regulation governs the date VA benefits may be resumed following release from active duty, which is dependent on when the veteran files a claim to recommence payment of benefits. In that regard, it operates similar to effective-date provisions for awards of VA benefits, which the Federal Circuit in Andrews unequivocally held may not be equitably tolled.

Id. at *13.

 Judge Greenberg wrote a succinct dissent in which he stated

The Secretary may only prescribe rules and regulations that are "necessary and appropriate to carry out the laws administered by the Department." 38 U.S.C. § 501(a). The statute already delineates the period for which veterans may not receive VA benefits – while they are on active duty. 38 U.S.C. § 5304(c). Section 3.654(b) does not merely "create a mechanism by which VA manages compensation benefits when veterans return to active duty," as the majority states, ante at 9, it also creates an unnecessary and inappropriate impediment to a veteran receiving benefits he has already established entitlement to. The fact that VA could have adopted a regulation that prescribed the procedure of reinstating benefits without including an effective date provision is dispositive of whether 38 C.F.R. § 3.654(b) is a "necessary or appropriate" regulation. The Secretary has exceeded his statutory authority here at the expense of service-connected veterans who were called back to active duty.

Id. at *17.

The decision was by Judge Meredith and joined by Falvey.  It will be interesting to see if the case is appealed and, if so, how Judge Greenberg’s dissent influences the Federal Circuit.

To know more about whether Thomas Andrews can help you, please visit my website.

Quinn: Opportunity for a Board Hearing after Remand and Further Development by the RO

Quinn v. Wilkie, Case Number 17-4555, decided July 11, 2019 considers the right to a Board hearing after the Board had previously remanded and the case been developed further by the RO.

The statute at issue in this case is 38 USC Section 7107(b) and states “[t]he Board shall

decide any appeal only after affording the appellant an opportunity for a hearing.”  The Court noted that this issue was not specifically addressed by Cook v. Wilkie, 908 F.3d 813 (Fed. Cir. 2018) ("Cook II"), but that case law is relevant.

The Court explained:

In Cook II, the Federal Circuit had to determine whether a claimant who had been afforded a Board hearing and then appealed an adverse decision to this Court was entitled to another hearing after we vacated the Board's decision on appeal and remanded the matter.  The Federal Circuit held that section 7107(b) unambiguously entitles a claimant "to an opportunity for an additional Board hearing in these circumstances.”

Id. at *5  The Court explained it would use Cook II as a guide in this case.

The Court pivoted to the word “any” in Section 7107(b) and explained:

We see no reason to deviate from how the Federal Circuit interpreted the plain meaning of "any," even if we were at liberty to do so:

As the Supreme Court has recently observed, "the word 'any' naturally carries 'an

expansive meaning.'" When coupled with a singular noun in an affirmative context, "any" typically "refer[s] to a member of a particular group or class without distinction or limitation" and "impl[ies] every member of the class or group." In [section] 7107(b), the word "any" modifies the singular "appeal" in an affirmative context, i.e., the statute imposes a positive duty on the Board to provide an opportunity for a hearing before it decides any appeal. Accordingly, 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 *5-6.

The Court then turned to the word “appeal” and determined the text supplied an answer and reasoned:

An appeal is "[a] proceeding undertaken to have a decision reconsidered by a higher authority; esp[ecially], the submission of a lower court's or agency's decision to a higher court for review and possible reversal." BLACK'S LAW DICTIONARY (10th ed. 2014); see Cook II, 908 F.3d at 818 (citing this same dictionary definition). Using this definition, the Federal Circuit in Cook II determined that when this Court vacated a Board decision and remanded the matter for a new Board decision, the Board was deciding an "appeal." Id. (reasoning that, in those circumstances, "on remand the Board must review the RO’s decision anew in accordance with the Veterans Court's instructions" (emphasis added)).

The same is true in the factual situation before us.

Id. at *6.

The Court also declined to follow the Secretary’s lead and “insert the words "on the merits" into the statute – to insert them would limit a right to a hearing to matters that constitute a final decision on the merits that would allow an appeal to this Court. See O.A. at 24:50-26:30. Congress did not limit the right to hearing in that way. In fact, Congress was expansive in providing a right to a hearing in "any" situation in which the Board "decide[s] an appeal."  Id. at *7.

Finally, the Court, apparently looking to cut off a potential regulatory change by the VA, determined:

The statute also makes plain that the right to an opportunity for a hearing is not one that is within the discretion of VA.   Congress used the mandatory word "shall" in connection with the right to an opportunity for a hearing before the Board "decide[s] any appeal." Absent a textual reason to believe otherwise, something not present here, the word "shall"

leaves no room for discretion.

Id. at *7.

The Court then pivoted to the question of prejudicial error and in part the Secretary’s assertion the appellant could have submitted written evidence.  The Court determined:

The argument that the opportunity to submit relevant information in writing is equivalent to the opportunity to present it at a Board hearing cannot be squared with the fact that

Congress specifically codified Board hearing rights because of the unique benefits of that

opportunity. See id. at 344 (citing internally to part III.A. of the opinion, in which we discussed the "history and role of the personal hearing in Board adjudications"). In particular, in this case a hearing would have provided the appellant the ability to address and respond to any specific Board member questions relating to the new evidence and testimony she was submitting. And there is also the intangible, but nonetheless important, point that an adjudicator would be able to observe the demeanor of a veteran at a hearing, which reading a written submission would not allow.

Id. at *9.

It is important to note that the statute on which this claim is based, 38 USC Section 7107, was amended by Veterans Appeals Improvement Modernization Act of 2017 and thus this case is specifically going to govern cases that are not subject to VAIMA.

Secondarily, the Court considered an exhaustion issue raised by the Secretary.  Specifically, “[t] he Secretary argues that the appellant raised the argument of entitlement to a second hearing under section 7107(b) for the first time on appeal because she did not reassert her request to the Board directly, implicating the law of issue exhaustion.  He

urges us to decline to hear the appellant's arguments. Id. However, the appellant did all that was required to raise the issue. After all, she requested a hearing and was told no.”  Id. at *1-2.

Decision by Judge Allen and joined in by Judge Schoelen and Pietsch.

To know more about whether Thomas Andrews can help you, please visit my website.