McCray: Medical Opinion Adequacy and Medical Treatises

McCray v. Wilkie, Case Number 17-1875, decided June 18, 2019 deals with the adequacy of a VA medical opinion and it’s reference to a medical treatises.

The issue was delayed onset for hearing loss.  A private examiner opined the hearing loss was related to military service whereas a VA examiner said it was not related and referenced an Institute of Medicine (IOM) report entitled Noise and Military Service: Implications of Hearing Loss and Tinnitus.

The VA examiner relied on the IOM report for his rationale to deny service connection.  Whereas the veteran pointed out to the Board that after finding that delayed-onset hearing loss after noise exposure was unlikely "based on the anatomical and physiological data available," the report went on to also find that "[t]here is not sufficient evidence from longitudinal studies in laboratory animals or humans to determine whether permanent noise-induced hearing loss can develop much later in one's lifetime, long after the cessation of that noise exposure" and that "definitive studies to address this issue have not been performed."  Id. at *4.

The Court addressed the adequacy of the medical opinion and referenced the Nieves-Rodriquez factors:

the Court has previously in various cases assembled a non-exhaustive list of factors that, depending on the case, may be relevant considerations in determining the adequacy and probative value of a medical opinion: whether there was personal examination of the patient; the expert's knowledge and skill in analyzing the data; whether the opinion contains clear conclusions with supporting data and a reasoned medical explanation connecting the two; whether the opinion is clear and susceptible of only one meaning; the expert's familiarity with pertinent medical history; whether there is any inconsistency in the expert's statements; whether the expert has provided a thorough and detailed opinion about an area within his or her expertise; whether the expert has provided factually accurate, fully articulated, and sound reasoning for his or her conclusion; whether the expert relied on sufficient facts or data; whether the opinion is the product of reliable principles and methods; and whether the opinion is the result of principles and methods reliably applied to facts. See Nieves-Rodriguez, 22 Vet.App. at 304.

Id. at *11.

It then importantly stated:

The Court now includes on this non-exhaustive list another factor: whether the medical text evidence that the medical opinion relies on contains qualifying or contradictory aspects. If the Board finds that a medical text that serves as the basis for a medical opinion contains apparent qualifiers or contradictions, or if the veteran raises the issue or it is reasonably raised from review of the evidence of record, the Board must address that issue and explain whether those aspects of the medical text diminish the probative value of the medical opinion evidence or render the opinion inadequate, and if not, why not.

This analysis is required because it is expected that qualifications or contradictions in medical evidence, including in underlying medical text evidence, may impact the probative value or adequacy of the medical opinion itself. Thus, as here, where the veteran explicitly raised the issue prior to the Board decision, the Board must respond and not ignore the veteran's argument.

Id. at *11-12 (internal citations omitted).

The Court then helpfully addressed the lesser standard applied to VA cases and noted:

The Court reminds the Board, per Quirin v. Shinseki, 22 Vet.App. 390, 395 (2009), that when evaluating medical text evidence and medical opinion evidence as to an unsettled medical question, it must bear in mind the reasonable doubt doctrine. As the Court explained in Wise, in keeping with the benefit of the doubt standard of proof, a medical principle need not reach scientific consensus to adequately support a grant of VA benefits. Instead, by virtue of 38 U.S.C. § 5107(b)'s low standard of proof, which is applicable as to all issues material to a claim for veterans benefits, Congress has authorized VA to resolve a medical question in a VA claimant's favor so long as evidence for and against that question is in "approximate balance." Imposing a higher standard of proof would be counter to the benefit of the doubt standard.

In conclusion, the Court holds that, when the Board relies on a negative medical opinion, it must, consistent with its reasons or bases responsibility, address the veteran's arguments challenging the medical text supporting that opinion and assess the existence and impact of features of the underlying medical text evidence that may affect the probative value and adequacy of the medical opinion. Because the Board erred in failing to address apparently qualifying or contradictory statements in the medical text evidence here, the Court will set aside the June 2017 Board decision and remand the matter of service connection for left ear hearing loss.

Id. at *13-14.

As a secondary issue, the Court considered the impact of JMRs on VA decisions. Carter v. Shinseki, 26 Vet. App. 534, 542-43 (2014) had determined that a JMR provides guidance on the issues to be addressed on remand.  The Secretary sought to use a prior JMR in this case to say because the IOM report issue was not raised in the JMR he should be precluded from raising the issue now.  Id. at *5.  The Court ruled against the VA for two reasons.  First, the JMR contained language saying the veteran could submit additional evidence and argument.  Id. at *5.  Second, the veteran in this case had been represented by different attorneys and service organizations.  Id. at *5-6.  This case should be a reminder to all attorneys to make sure the JMR language proposed by the Secretary contains the additional argument and evidence language.  However, the second reason is more complicated.  If continuous representation is really a factor that suggests taking a remand on one issue expecting to later argue another is somehow problematic.  If the Court or Secretary really took this issue I believe JMRs would ground to a halt and both of their workloads would explode.  This language is deeply troubling to me as a practitioner. 

The decision was by Judge Bartley and joined in by Chief Judge Davis and Judge Schoelen.  It is helpful in many aspects as a primer for attacking VA examinations and reminding examiners that the VA is using a lesser standard.  But, I still am troubled by the continuous representation factor used in the Carter analysis.  It might have unintended consequences. 

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Godsey: At Last a Class Action Certified and Old Appeals Advanced

Godsey v. Wilkie, Case Number 17-4361, decided June 13, 2019 is the first Veteran Court decision that grants class certification in a case and goes further and grants some remedies.

This case sought class certification and dealt with delays in certifying cases to the Board.  Specifically,

In 2017, when the instant petition was filed, it took VA, on average, 773 days to certify a case to the Board after receiving a Substantive Appeal and an additional 321 days after that to transfer the appellate record. BOARD CHAIRMAN'S FISCAL YEAR 2017 ANNUAL REPORT (2017 BOARD ANNUAL REPORT) at 25, available at https://www.bva.va.gov/docs/Chairmans_Annual_Rpts/BVA2018AR.pdf.

The petitioners argue that taking nearly three years to complete these tasks is unreasonable and deprives them of their constitutional right to due process. They request, on behalf of themselves and a class of similarly situated claimants, that the Court compel the Secretary to expedite the appeals certification and transfer process.

Id. at *1.

First, the court is very careful to say this is an unusual case and “by deciding class certification and the merits of the underlying petition in a single order, it is not adopting a general policy or framework for deciding such matters concurrently in future cases. However, given the unique circumstances surrounding this case, particularly the nature of the alleged injury and the need for rapid remedial action, the Court has concluded that resolving both matters in a single order is appropriate here.”  Id. at 2.

Second, the VA tried to moot out these cases by either certifying the cases to the Board or granting benefits after the petition was filed.  However,

the Court concludes that, although the petitioners have now each had their cases resolved or certified to the Board, their petition is not moot because they presented a live case-or-controversy at the time that they filed their petition and the Secretary's conduct that they

challenged in the petition was so inherently transitory that it was capable of evading review. Having resolved the mootness dispute, we now move to the class certification issue.

Id. at *7.

Third, the Court made clear that Rule 23(a) of the Federal Rules of Civil Procedure would provide the framework for class certification.  It requires the party seeking class certification to demonstrate:

(1) the class is so numerous that joinder of all members is impracticable;

(2) there are questions of law or fact common to the class;

(3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and

(4) the representative parties will fairly and adequately protect the interests of the class.

Id. at *8.

Regarding commonality, the Court determined difference could exist between various proposed class members and instead sua sponte (on its own without a motion) “narrow[ed] the class to include only those claimants who have been standing in line waiting more than 18 months since filing their Substantive Appeals.”  Id. at *9.  This narrowed class focused on the fact the pre-certification review occurs after a Form 9 (Substantive Appeal) is filed and results in the case being sent to a higher level employee (decision review officer or DRO) who reviews the case to determine whether it is ready to be certified.  “Pre-certification review is to entail verifying that all entries in the

electronic Veterans Appeals Control and Locator System (VACOLS) are correct and up-to-date, identifying whether relevant evidence has been obtained and that the duty to assist has otherwise been met, checking whether all relevant claims processing documents have been issued and included in the file, and ensuring that the necessary appeal documents are in the electronic Veterans Benefits Management System (VBMS). Id., §§ F.3.g-h. If, as a result of pre-certification review, the RO assesses that no further development or adjudication is necessary, the case is certified.”  Id. at *3.

Fourth, the Court reviewed the other factors and found class certification proper.

Fifth, the Court considered just granting a single precedential opinion as opposed to a class decision and noted:

Petitions alleging systemic delay are "best addressed in the class-action context, where the court could consider class-wide relief" that would inure to all similarly situated claimants. Moreover, deciding this petition as a class empowers the Court to monitor and enforce its order more easily and efficiently than would be possible through the filing of individual petitions seeking compliance in each claimant's case. In short, a class action decision is a more efficient and effective vehicle for resolving this case than a precedential decision focused on an individual veteran's case.

Id. at *12 (internal citations omitted).

Sixth, as to the merits, the Secretary admitted the petitioners had no adequate alternative means to obtain their requested relief, but argued they had not carried their burden of demonstrating entitlement to a writ. 

The Court first focused on whether the delay was so unreasonable as to qualify as a constitutional deprivation of property. Id. at *13.  It focused on the TRAC factors, which were explained in part by the Federal Circuit in Martin v. O'Rourke, 891 F.3d 1338 (Fed. Cir. 2018)are:

(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 *14.

In Martin v. O'Rourke, 891 F.3d 1338 (Fed. Cir. 2018), the Federal Circuit had largely looked at these factors and determined:

The Federal Circuit began by explaining that the first TRAC factor—whether VA's decisionmaking process is governed by a rule of reason—"is considered to be the most important factor in some circuits." To analyze this factor, along with the "relate[d]" second factor, the absence of a specific congressional timetable for action, the Court

must look to the particular agency action delayed because it "is reasonable that more complex and substantive agency actions take longer than purely ministerial ones." The Court "may also consider whether the delays complained of are based on complete inaction by the VA, or whether the delays are due in part to the VA's statutory duty to assist a claimant in developing his or her case." In noting this consideration, the Federal Circuit specifically directed the Court to "consider whether delays are due to the agency's failure to perform certain ministerial tasks such as filling out the form certifying the appeal to the [Board] and docketing by the [Board]." The Federal Circuit opined, in a footnote, that they could conceive of "no reasonable explanation for the historic delays that have occurred during appeal certification . . . and during transfer to the [Board]," ultimately calling those delays "inexplicable."  Nevertheless, the Federal Circuit indicated that, due to the highly factual nature of the rule-of reason inquiry, there was "no reason to articulate a hard and fast rule with respect to the point in time at which a delay becomes unreasonable," reserving that case-specific determination for this Court.

Regarding the other TRAC factors, the Federal Circuit observed that the third factor would likely always weigh in a VA benefits claimant's favor because "[v]eterans' disability claims always involve human health and welfare." Id. Considerations relevant to the fourth factor—the effect of expediting delayed action on agency activities of a higher or competing priority—include VA's limited resources, the fact that the agency is in a better position than the courts to evaluate how to use those resources, and the effect of expediting action on other claimants, including any undesirable line-jumping. The Federal Circuit further explained that the fifth TRAC factor— the nature and extent of the interests prejudiced by delay—"incorporates an analysis of the effect of a delay on a particular veteran," meaning that the factor may weigh more heavily in favor of unreasonableness when "a particular veteran is wholly dependent on the requested

disability benefits," as opposed to a veteran who "has a sustainable source of income outside of the VA benefits system." Id. And the Federal Circuit declared that the final TRAC factor may weigh in favor of issuing a writ "even where there is no evidence of bad faith" on the part of VA.

Id. at *14-15 (internal citations omitted).

The Court summarized the petitioners assessment of the TRAC factors as:

that there is no rule of reason that would support a multi-year adjudication delay following the filing of a Substantive Appeal; the Secretary's failure to timely act on Substantive Appeals conflicts with VA's statutory mandate to decide appeals in docket order; that delay harms the health and human welfare of veterans and their dependents, who are a protected class of individuals; and there is no higher or competing agency priority that justifies such delay. The petitioners further argued that nothing in VAIMA would remedy the current delays in processing legacy appeals.

Id. at *15. The Court then reviewed the TRAC factors itself and regarding the first concluded:

We agree with the petitioners that the current time that it takes the Secretary to initiate precertification review after the filing of a Substantive Appeal is per se unreasonable under TRAC and Martin. Although the Court is cognizant of the number of Substantive Appeals filed each year and  the myriad other tasks that the ROs perform, there is simply no rule of reason that can justify a multiyear wait before an RO even looks at an appealed case to determine whether further development and/or adjudication is warranted before certifying and transferring a case to the Board. Such delays are particularly intolerable because they consist of nothing but waiting in line: no development, no adjudication, no action whatsoever on the part of VA.

Id. *15-16.

“Regarding the fourth TRAC factor, even though the Secretary contended at oral argument that expediting pre-certification review would have an adverse impact on agency activities of a higher or competing priority, he admitted at several points during the argument that VAIMA gives primacy to processing legacy appeals and that he has recently targeted for expedited processing precisely the types of cases involved in this class action.”  Id. at *16.

“And, although the second TRAC factor weighs in the Secretary's favor because Congress has previously declined to impose an appeal certification timeline on VA, that fact is not sufficient to overcome the aforementioned factors that emphatically demonstrate that the time the class members have waited for pre-certification review is unreasonable.”  Id. at *17.

The Court then concluded by stating:

The Secretary has had many years to act and initiate pre-certification review of class members' cases, and he has failed to do so.…  Simply put: the time has come for judicial intervention.  Given the foregoing, and given the Secretary's earlier concession that the petitioners have no adequate alternative means to obtain the relief they seek, the Court is convinced that issuance of a writ is warranted in this case to ensure that the class

members receive timely pre-certification review of their appealed cases so that any necessary further development may occur or certification may proceed.

Id. at *17.

The Remedy

As a remedy, the Court ordered the Secretary to conduct pre-certification review of all cases that fit within the class definition, and within 120 days after the date of the

order, either (1) certify his or her case, or (2) affirmatively initiate any development or adjudication activities necessary for certification or resolution at the RO.  Id. at *18.

Judge Pietsch dissented, saying she would have denied class certification and the merits determination.  She began by writing “Although the Federal Circuit held that this Court has the authority to certify a class or otherwise aggregate claims, I still question whether we should exercise that authority.”  Id. at *19.  Frankly, I believe that sums up her dissent.  She does not support class actions at the Veterans Court because they are highly unmanageable and that appears to color her entire decision.  She states she would not have sua sponte narrowed the class and focuses on commonality problems with the class.  She then argues because Congress has not created clear appeal deadlines and the Secretary is working to resolve delays, she would allow the Secretary to attempt to resolve the delays. Id. at *19-20.

The decision was by Judge Bartley and Allen and published per curium, suggested they both had a hand in drafting it.  It will result in old Form 9s being worked within 120 days and either certified to the Board or new developments initiated.  I suspect the Board fears the avalanche coming their way and also that the VA might conduct much more development than usual with these older cases.  But, at least they will start moving again.  At any rate, at least two judges on the Veterans Court recognize the extreme delay in resolving cases has reached an unsustainable level and is creating real constitutional problems.

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Crumlich: Presumption of Regularity in Mailing Defeated!

Crumlich v. Wilkie, Case Number 17-2630, decided June 6, 2019 considers the timeliness of a Form 9 and the presumption of regularity.

The veteran received a statement of the case (SOC) which he wanted to appeal from.  The date on the SOC itself was dated June 2, 2015, but the notification letter sent with it was not dated as it usually is.  Instructions on the notification letter said he had 60 days for file a Form 9.  A Form 9 was filed on day 70.  The veteran asserted he opened the decision and called an attorney within days and after an appointment filed the Form 9.  This was all done within days.  The VA determined the Form 9 was untimely.  The failure to have a date on the notification letter was brought to its attention but it relied on the date of the SOC and stated that VA regulations call for the notification letter to be generated and the decision sent the same day as the SOC was generated (as an aside, every practitioner in this area know that does not happen).

The veteran filed a notice of disagreement from the decision that the Form 9 was untimely and ultimately the Board confirmed the decision that the Form 9 was untimely. 

The VA relied on 38 C.F.R. § 20.302(b)(1) further provides, in relevant part, that "[t]he date of mailing of the [SOC] will be presumed to be the same as the date of the [SOC]." The Court found 20.302 applicable but  noted concessions by the Secretary.  The Court determined:

these concessions reflect that it is the date on the notice letter, not the date on the SOC

itself, that is "clear evidence" of when the SOC was mailed, and that VA invokes the regulatory presumption only when that clear evidence is absent. This, in turn, leads to the conclusion that the regulatory presumption is not applied to ensure that all claimants receive 60 days from the date the SOC "is mailed" to file a Substantive Appeal. 38 U.S.C. § 7105(d)(3). Rather, it is applied to shield VA in the event that it is unknown to the Agency whether the claimant received the statutorily mandated time to perfect his or her appeal. In other words, it may absolve VA of responsibility for issuing an undated SOC cover letter.

Because VA's concessions reflect that the regulatory presumption only operates in circumstances where VA does not know whether the date of mailing of the SOC is later than the date on the SOC itself, the application of the presumption results in shortening the 60-day appeal period mandated by Congress when the date of mailing was, in fact, later.  Therefore, the Court holds that that part of § 20.302(b)(1) that contains a presumption of the date of mailing of the SOC is invalid.

Id. at *11-12

The Court then noted the appellant rebutted the presumption of regularity by stating:

The Secretary asserted at oral argument that it is his regular practice to date notice letters accompanying SOCs with the date the SOC is mailed, which should be the same date as that listed on the SOC itself. Oral Argument at 49:23-:31. It is undisputed that the notice letter in this case was undated, R. at 718-19, and the Secretary conceded that, in practice, notice letters are sometimes dated later than the date of the SOC itself, id. at 46:26-:44. This alone is sufficient to show that, even assuming the Secretary has a regular procedure for dating and mailing SOCs as he described, that procedure was not followed in this case. See Woods, 14 Vet.App. at 220; Ashley, 2 Vet.App. at 309. But there are additional reasons that the presumption of regularity would not stand in this case. For example, as the Board found and the appellant points out, the cover letter itself "confusingly" indicates that it is dated, but it is not.

Id. at *12-13.  It further determined the Secretary could not carry the burden of showing compliance with mailing procedures and thus the Court set aside the Board decision and remanded.

First, as the Court notes the statute and regulations in this case were amended by the Veterans Appeals Improvement and Modernization Act of 2017 and so the Court’s decision was limited in scope.

Second, this is an important case that provides a roadmap for challenging dates.  It also provides helpful concessions by the Secretary about actual versus procedural practices about mailing.

Third, the case really shows us how the Court has grown frustrated by the Secretary’s intransigence in some of these cases.  This is best summed up in Judge Pietsch’s one paragraph concurring opinion:

I write separately to record my frustration at the Secretary's refusal to waive the 60-day filing period in this case and allow the appellant's appeal to proceed. His decision to take a hard line even though he mailed the appellant an incorrect, improperly prepared, and plainly misleading notice letter caused a lot of resources to be wasted—not the least the appellant's time—all to receive a decision that costs VA the use of a regulation. If the paternalistic nature of VA is to be more than mere platitude, cases like this should be handled in a more empathetic manner.

Id. at *15.

Decision by Chief Judge Davis and joined in by Judges Pietsch and Meredith.

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Cornell: Attorney Fees for Intervenor

Cornell v. Wilkie, Case Number 15-3191(E), decided May 31, 2019 considers a request for attorney fees under EAJA for an intervening veteran in a case.

This case involves a situation where an attorney helped a veteran obtain service connection for hearing loss and tinnitus, was compensated with 20% of the retroactive benefits, and then apparently withdrew from the case.  Subsequently, the DAV assisted in obtaining TDIU for the veteran which resulted in a significant grant and a second payment to the prior attorney.  The DAV assisted the veteran in submitting a NOD related to the grant of attorney fees and the VA determined the fee awarded was error and should not have been paid.  The attorney then filed a NOD as to that determination.  Ultimately, the Board concluded the second payment to the attorney was improper, which led to an appeal to the Veterans Court.

In the appeal to the Veterans Court, the veteran sought to intervene in the dispute between the attorney and VA.  The veteran, through new counsel, argued that unless the Secretary waived his right to recoup any payment to the first attorney ordered as a result of this appeal, the veteran retained an interest in the matter and should be allowed to intervene.  The Court allowed the intervening veteran to appear in the case.

Oral argument was conducted in the underlying case and at argument, the Court took the unusual step of announcing from the bench that, regardless of the Court’s ultimate decision on the merits of the appeal, the Secretary was precluded from recouping any of the payment made to Mr. Moberly. Id. at *3.  This was confirmed in the published opinion, where the Court stated:

[T]he Court will affirm the Board’s conclusion that VA’s payment of $20,304.16 in attorney fees to Ms. Cornell was improper. Based on this holding and as ruled on from the bench at oral argument, VA may not recoup payment of the fees from Mr. Moberly. 38 U.S.C. § 5314 (authorizing the Secretary to recoup overpayments made to a benefits recipient by offsetting future payments). The Secretary, however, may take all appropriate steps to recover the indebtedness from Ms. Cornell. 38 U.S.C. § 5316 (authorizing the Secretary to sue to collect certain debts).

Id. at *3.

The decision was affirmed by the Federal Circuit and the veteran, through counsel, sought EAJA fees for his participation in the underlying appeal.

The Secretary argued the veteran was not a prevailing party, questioned the Court’s jurisdiction over the matter, and argued the Secretary’s position was substantially justified.

As to jurisdiction, the Court noted the Secretary did not move for reconsideration or raise the matter to the Federal Circuit.  But, the Court still looked at the merits and determined  “that it had jurisdiction over the issue of recoupment from Mr. Moberly, and the bench announcement was entirely proper.”  Id. at *5.  The Court explained it

has jurisdiction over all issues "appropriately identified [from] the radix [root] of [the NOD]."  Because the Court held that the case presented a simultaneously contested claim, the Court must look to both NODs to identify appellate issues over which it had jurisdiction. Mr. Moberly's NOD asserted that because attorney Cornell no longer represented him in the TDIU claim, the 20% fee payment belonged to him as a portion of his past-due benefits. After VA paid him the disputed funds, the corollary issue of his right to retain that payment arose, along with the attendant right to be insulated from possible recoupment.

Id. at *6.  It then noted the Secretary had supported the veteran’s intervention in the matter and it was thus untenable for the Secretary to now argue the court did not have jurisdiction over those issues.  Id.

As to the issue of prevailing party, the Court noted the veteran had stated he would withdraw from the case if the VA would concede any right to seek recoupment against him.  The Court stated:

Clearly, the Court's announcement from the bench, reiterated in the Court's precedential opinion, is an order carrying the imprimatur of the Court that altered the legal relationship between the intervenor and the Secretary. Before the Court's ruling from the bench, the Secretary maintained that there was some possibility of recoupment from Mr. Moberly; the bench ruling and the corresponding text in the Court's opinion extinguished that possibility.

Id. at *7.

Finally, the Secretary argued his position about recoupment was substantially justified.  The Court noted the Secretary offered no justification for the erroneous payment to the initial attorney in the first instance and that when challenged the VA immediately acknowledged its error.  “Absent this error, none of this litigation would have been necessary.”  Id. at *8.

The Court then noted:

As to its litigation position, the Secretary has not persuaded the Court that its refusal to

give assurance to Mr. Moberly that he would not be subject to recoupment efforts was reasonable. Mr. Moberly repeatedly offered to withdraw from the underlying appeal, up to and including the day of the oral argument, if such assurance were given.

Id. at *8.  It then noted that if the Court had found the initial attorney was entitled to the disputed funds, it would have followed that the VA had committed administrative error and would have had not basis the error was attributable to the veteran. 

The Court then concluded by granting the EAJA application and finding:

The Secretary's argument that advance consideration of waiver would be premature before the creation of a valid debt is not persuasive. Where a potential erroneous payment would be so clearly attributable to administrative error, and so clearly lacking in fault on the part of the veteran, the refusal to give assurance of no recoupment is indefensible.

The Secretary's insistence on the possibility of recoupment against Mr. Moberly resulted

in an unnecessary expenditure of resources, both on the part of Mr. Moberly and of this Court.  The Secretary should have realized that any recoupment from Mr. Moberly would be against equity and good conscience, and that waiver would be the only appropriate response—even in advance of an application for waiver. There was simply no justification for prolonging the tribulations of this aged and frail veteran.

Id. at *9.

This case is important.  While involving a rare situation where a veteran might be forced to intervene in a case, this case establishes that the intervening attorney will have the right to collect EAJA fees.  The case also helps provide a good primer on when the VA should waive a debt it created through administrative error.  Finally, the Court seemed to recognize the Secretary’s inconsistent arguments and poor behavior in not agreeing it would not recoup a debt earlier and thus creating continued EAJA fees for the intervening veteran.

Decision was by Chief Judge Davis, and Judges Greenberg and Allen.

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