Martinez: Obligation of the VA to Send a Copy of Any VA Medical Examination

Martinez v. Wilkie, Case Number 17-1551, decided May 21, 2019 considers whether the VA is obligated to automatically send a veteran a copy of a VA disability medical examination.  The Court decided the VA is not obligated by statute or the constitution to automatically send a veteran a copy of a VA disability medical examination.

The case involved a claim for service connection for sleep apnea.  Apparently, non-appellate counsel had requested the claims file multiple times and may or may not have received it.  Ultimately, a January 2016 VA medical examination was conducted and opposed service connection.  A May 2016 Supplemental Statement of the Case discussed the January 2016 examination in detail and denied the claim. Then counsel submitted a brief to the Board and the Board made a January 2017 decision continuing the denial of service connection for sleep apnea.  The veteran appealed arguing the January 2016 examination should have been automatically provided to the veteran and counsel.

The argument seems to be underpinned by repeated attempts to obtain the claims file which it is not clear was ever achieved.  What is clear is there is apparently no letter to the Board or VA requesting the January 2016 examination which was specifically mentioned by the Supplemental Statement of the Case.

On appeal, the veteran argued the duty to assist provision of 38 U.S.C. Section 5103A and/or the Due Process Clause of the Fifth Amendment to the U.S. Constitution compelled the VA to automatically provide a copy of the relied upon examination.  The Court looked at the language of Section 5103A and determined:

In none of these sections did Congress include a requirement that the Secretary furnish a copy of an examination obtained pursuant to the duty to assist. Significantly, the use of the past tense throughout section 5104(b) demonstrates that Congress intended the notification requirements of that statute to be post-decisional. That is, the statute imposes on the Secretary a requirement to provide notice or disclose the various considerations that influenced the ultimate rating decision so that the veteran can challenge the decision to the Board. 

A construction of section 5103A that would require the Secretary to send a full copy of a medical examination report whenever that examination would be used to deny a claim is inconsistent with this overall statutory scheme.

Id. at *6.

It continues to explain that:

In our view, the relevant statutory scheme is harmonious and complementary. Section

5103A sets out a general duty to help claimants obtain evidence and sections 5103 and 5104 detail the Secretary's notification duties regarding that evidence. Sections 5109 and 7109 note a specific circumstance in which the Secretary is required to automatically furnish a copy of an examination, and sections 5701 and 5702 address the specific method to be used in obtaining certain claims file documents.  The Court should not find in favor of a plain language statutory interpretation that reads out all these complementary sections.

Id. at *8. 

With the statutory arguments out of the way, the Court turned to the Due Process argument. It focuses on the risk of the VA’s practices depriving a veteran of deserved compensation.  It explains:

there is little risk that the Secretary's practices could erroneously deprive a veteran of deserved disability compensation. The Secretary's notification and case development procedures afforded Mr. Martinez detailed notice of the adverse evidence and provided him with several meaningful opportunities to be heard. The May 2016 SSOC addressed the 2016 examination in detail, notified the veteran that the examiner found no causal relationship between sleep apnea and PTSD, and explained that the denial of service connection was based in part on the 2016 examination. R. at 245-46. Attached to the SSOC was a form notifying the veteran that he had 30 days in which to submit additional information or evidence. R. at 247. After the matter returned to the Board, the veteran again received notice that he had 90 days in which to submit additional argument and evidence. R. at 162. In response, he requested that the Board delay deciding his

appeal for 30 more days. R. at 132. And then Mr. Martinez submitted a written brief in which he argued that the medical literature supported a connection between sleep apnea and PTSD. R. at 39.  Following this, the Board issued a decision that discussed the veteran's arguments and evidence, explained that the veteran's medical treatise evidence did not support his claim, and notified him of his rights to Board reconsideration and an appeal to this Court. R. at 2-34.

Mr. Martinez presents little support for concluding that the additional safeguard he suggests–automatically mailing a copy of a medical examination report to every claimant-could lessen the risk of an erroneous deprivation of benefits. Mr. Martinez was provided a detailed description of the 2016 VA medical examination. He had several meaningful opportunities to respond to it, and did so. At any point during the VA adjudicatory process, the represented veteran could have submitted a written request for a copy of the 2016 examination. It is not clear why he did not do so. The pertinent statutes and regulations allow him to obtain a copy of the examination upon written request, and "everyone dealing with the Government is charged with knowledge of federal statutes and lawfully promulgated agency regulations." Morris v. Derwinski, 1 Vet.App. 260, 265 (1991).

Id. at *10-11.

It looks like the Court is focused on the failure to request the January 2016 examination after the Supplemental Statement of the Case was issued as well as the fact that the veteran (through counsel) did actually respond to the examination indirectly via a brief to the Board.

I see this decision as one that simply demonstrates the power of having all of the documents and medical records available to argue with.

Decision by Judge Falvey and joined in by Judges Meredith and Toth.

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Morgan: Extraschedular Consideration and Alternative Tools to Use

Morgan v. Wilkie, Case Number 17-0098, decided May 16, 2019 considers an argument for extraschedular consideration in the context of hearing loss.

Initially, the Court noted:

Because the Board is obligated only to discuss potential extraschedular referral when the

claimant expressly raises the issue or the record reasonably raises it, the threshold question in this appeal is whether the Board was obligated to address extraschedular referral at all. See Yancy, 27 Vet. App. at 493. And, since the appellant does not contend that he explicitly raised the issue of extraschedular referral before VA, he can take issue with the Board's analysis here only if the record reasonably raised the issue.

Id. at *4.

The Court turned to the Board’s decision which contained a whole section entitled extraschedular consideration.  It noted

The very first sentence of that section reads: "The Board has considered whether referral for an extraschedular rating is warranted for the relevant periods on appeal." Id. (emphasis added). Yet the Board went on to state that "[n]either the facts of the case nor the Veteran's allegations raise the issue of extraschedular consideration." Id. Thus, we are unable to say whether the Board found the issue of extraschedular referral raised, even if it ultimately concluded that referral should be denied, or whether the Board found the issue not raised at all.

Further, we are unable to say that this error is harmless because if the Board found the issue raised, that would be a favorable factual finding that we could not overturn.

Id. at *5.

The Court then considered the Board’s obligations on remand and specifically its duty to maximize the veteran’s benefits.  It stated

We hold that VA's duty to maximize benefits requires it to first exhaust all scheduler alternatives for rating a disability before the extraschedular analysis is triggered. This is a threshold question intended to ensure that VA has satisfied its duty to maximize benefits by examining all possible rating methods in search of the highest level of established compensation as a scheduler matter before resorting to the extraschedular referral process. Further, while we discussed above several schedular rating tools VA may use in satisfying its duty to maximize benefits, we emphasize again that this duty requires VA to search all avenues of schedular rating before resorting to an extraschedular analysis. The Board is not required to discuss each of these tools in every case, but it must do so when possible schedular alternatives for rating a disability are either raised by the claimant or reasonably raised by the record. See Robinson, 21 Vet.App. at 553. Focusing on the full scope of schedular rating devices will significantly reduce the need to address extraschedular referral, reserving it for those cases that are truly "exceptional."

Id. at *7.

The Court specifically mentions the concepts of secondary service connection, analogous ratings, 38 C.F.R. Section 4.7 and 4.3, TDIU, and Special Monthly Compensation.

The lessons from this case are varied.  First, as a practice pointer, if extraschedular consideration is in doubt, explicitly raise it in writing to the Board.  Second, note extraschedular consideration is going to be reserved for exceptional circumstances.  Third, just because gaining an extraschedular award is difficult, there are many other tools to use to attempt to gain a higher rating.  I would warn that while the VA typically has a duty to consider these tools, it is likely you will have more success using an experienced accredited agent/attorney or veteran service officer.

Finally, I would note the decision is interesting because the Court specifically avoided the harmless analysis despite finding the only real functional impact raised by the evidence was that people had to talk loud for him to hear.  It did this by saying that favorable fact finding by the Board would not be overturned.  This potentially is a powerful tool to use in arguing against a harmless error argument raised by the VA.  It might have also been used to soften the impact of a recent rule change by the VA that avoids use of impact of multiple disabilities in the extraschedular consideration analysis.  See generally Id. at *4.

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

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Batcher: Spousal Apportionment and Separation Agreements

Batcher v. Wilkie, Case Number 16-0638, decided April 26, 2019 considers the VA’s power to generate a special apportionment for a spouse and how it interacts with state court separation agreements.

The Court specifically “h[e]ld that a domestic relations separation agreement sanctioned by a state court by a judgment of separation plays no role in VA's determination of entitlement to special apportionment. To the extent that such an agreement purports to preclude a veteran's spouse from seeking apportionment of a veteran's VA benefits, the veteran's remedy to make himself or herself whole lies with the state court.”  Id. at *1-2.

“Relevant to this appeal, a veterans benefits statute provides that "[a]ll or any part of the

[VA] compensation, pension, or emergency officers' retirement pay payable on account of any veteran may[,] . . . if the veteran is not living with the veteran's spouse, . . . be apportioned as may be prescribed by the Secretary." 38 U.S.C. § 5307(a)(2).   Id. at *4.  Additionally, the statute has been fleshed out by 38 C.F.R. §§ 3.450 and 3.451.  They state:

to be entitled to special apportionment, a claimant must establish that (1) he or she is a qualifying dependent of the veteran; (2) he or she suffered a hardship during the relevant period; and (3) apportionment would not cause undue hardship to the other person of interest, usually the veteran. 38 C.F.R. § 3.451. Once those criteria are met, entitlement to special apportionment is established and VA  must grant that benefit to the claimant.

Id. at *5-6.

            Initially, the RO had denied special apportionment because the spouse had voluntarily renounced her maintenance or support from the veteran in the state court order.  But, the Board determined in 2015 that the spouse fit the requirements of (1) and (2) and that the veteran did not show undue hardship, and thus it generated special apportionment.

            The veteran essentially argued to the court that the spouse had waiver her right to apportionment when she agreed to accept a lump sum payment, which purported to resolve all past and future maintenance and support obligations.  The Court determined this question was a matter of contract law and best decided by the state court.  It concluded by noting Howell v. Howell, 137 S.Ct. 1400 (2017), is instructive and stating

A federal benefit—Ms. Batcher's right to claim special apportionment, see Belton, 17 Vet.App. at 211—made Mr. Batcher's spousal obligation potentially greater than he anticipated in November 2006. Mr. Batcher could have valued that contingency in the separation agreement and negotiated a lower lump sum payment to account for it. See Howell, 137 S.Ct. at 1406. He apparently did not do so. Nevertheless, the veteran remains free to seek redress from Ms. Batcher in the New York State Court, either by suing Ms. Batcher for breach of contract or seeking modification of the separation agreement based on the changed circumstance of the grant of special apportionment. See id.; see also N.Y. FAM. CT. ACT § 466(a) (permitting modification of a support or maintenance decree based on changed circumstances). In either event, his remedy does not lie with VA.

Id. at *8.

This case resulted in an interesting dissent by Judge Greenberg.  In it he focused on the fact the statute allowing for apportionment addressed a spouse and not an ex-spouse.  He also pointed to an impairment of contracts that potentially impacts Article 1, Section 10 of the U.S. Constitution and ultimately determined it was the spouse and not the veteran who could have sought a modification of the order based on a change in circumstance. 

I do not practice in the area of family law, but believe this case (whether decided rightly or wrongly) potentially creates more uncertainty than not.  It seems family practitioners must now assume that a special apportionment will be requested and potentially granted in the context of divorce cases.

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

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