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.

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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.

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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.

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