It's A Wonderful Life and Jimmy Stewart

I usually focus on the just Court decision, but I just came across the information below about Jimmy Stewart's service in World War II and could not help but share it with others.  It was written by Ned Forney and is posted at his blog at http://nedforney.com/index.php/2019/12/01/jimmy-stewart-ww2-a-wonderful-life/

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For all the fans of “It’s A Wonderful Life” and Jimmy Stewart.  Just months after winning his 1941 Academy Award for best actor in “The Philadelphia Story,” Jimmy Stewart, one of the best-known actors of the day, left Hollywood and joined the US Army. He was the first big-name movie star to enlist in World War II.

An accomplished private pilot, the 33-year-old Hollywood icon became a US Army Air Force aviator, earning his 2nd Lieutenant commission in early 1942. With his celebrity status and huge popularity with the American public, he was assigned to starring in recruiting films, attending rallies, and training younger pilots.

Stewart, however, wasn’t satisfied. He wanted to fly combat missions in Europe, not spend time in a stateside training command. By 1944, frustrated and feeling the war was passing him by, he asked his commanding officer to transfer him to a unit deploying to Europe. His request was reluctantly granted.

Stewart, now a Captain, was sent to England, where he spent the next 18 months flying B-24 Liberator bombers over Germany. Throughout his time overseas, the US Army Air Corps' top brass had tried to keep the popular movie star from flying over enemy territory. But Stewart would hear nothing of it.

Determined to lead by example, he bucked the system, assigning himself to every combat mission he could. By the end of the war he was one of the most respected and decorated pilots in his unit.

But his wartime service came at a high personal price.

In the final months of WWII he was grounded for being “flak happy,” today called Post Traumatic Stress Disorder (PTSD).

When he returned to the US in August 1945, Stewart was a changed man. He had lost so much weight that he looked sickly. He rarely slept, and when he did he had nightmares of planes exploding and men falling through the air screaming (in one mission alone his unit had lost 13 planes and 130 men, most of whom he knew personally).

He was depressed, couldn’t focus, and refused to talk to anyone about his war experiences. His acting career was all but over.

As one of Stewart's biographers put it, "Every decision he made [during the war] was going to preserve life or cost lives. He took back to Hollywood all the stress that he had built up.”

In 1946 he got his break. He took the role of George Bailey, the suicidal father in “It’s a Wonderful Life.” The rest is history.

Actors and crew of the set realized that in many of the disturbing scenes of George Bailey unraveling in front of his family, Stewart wasn’t acting. His PTSD was being captured on filmed for potentially millions to see.

But despite Stewart's inner turmoil, making the movie was therapeutic for the combat veteran. He would go on to become one of the most accomplished and loved actors in American history.

When asked in 1941 why he wanted to leave his acting career to fly combat missions over Nazi Germany, he said, "This country's conscience is bigger than all the studios in Hollywood put together, and the time will come when we'll have to fight.”

This holiday season, as many of us watch the classic Christmas film, “It’s A Wonderful Life,” it’s also a fitting time to remember the sacrifices of Jimmy Stewart and all the men who gave up so much to serve their country during wartime. We will always remember you!

Postscript:

While fighting in Europe, Stewart's Oscar statue was proudly displayed in his father’s Pennsylvania hardware store. Throughout his life, the beloved actor always said his father, a World War I veteran, was the person who had made the biggest impact on him.

Jimmy Stewart was awarded the Presidential Medal of Freedom in 1985 and died in 1997 at the age of 89.

-- Ned Forney, Writer, Saluting America's Veterans

Benson: Late Notice of Appeal and Equitable Tolling

Benson v. Wilkie, Case Number 18-6819, decided June 4, 2020 concerned a late notice of appeal to the Court and equitable tolling.

The Board decision was mailed September 26, 2017.  A motion for reconsideration was filed 128 days later on February 1, 2018.  The Board denied the motion on July 6, 2018 and the NOA was filed with the Court 123 later on July 6, 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. 

On April 24, 2019, the appellant responded, stating that she had experienced "severe circumstances" that prevented her from timely filing her appeal. Appellant's Apr. 24, 2019, Response at 2. The appellant submitted another response on August 12, 2019. She wrote that she had left her job in May 2017 because she had been sexually harassed. Appellant's Aug. 12, 2019, Response at 1. At the same time, she wrote,

her living conditions had compelled her to move in with her sister. Id. And though the appellant found a new job and a new apartment around August 2017, she was fired on the day that she moved into her new domicile. Id. She was evicted on January 21, 2018. Id.

Id. at *1.

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 fifth 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 also noted under Court Rules an untimely NOA will be treated if timely if received within 30 days after the deadline and the veteran shows good cause or excusable neglect.  Id. at *3.  The Court noted some factors to review for excusable neglect:

(1) the danger of prejudice to the non-moving party;

(2) the length of the delay and its potential impact on judicial proceedings;

(3) the reason for the delay, including whether it was within the reasonable control of the movant; and

(4) whether the movant acted in good faith.

Id. at *3.

With regard to the case at hand,

The Court finds that the appellant experienced extraordinary circumstances beyond her control and that these circumstances caused the late filing of her motion for reconsideration. The appellant was sexually harassed at work in the period ending several months before the Board's September 2017 decision.  This harassment set in motion a chain of events culminating in a court-ordered

eviction in January 2018, 3 days before her appeal was due.

In May 2017, the appellant filed a formal complaint with her employer, but ultimately left her employment as a result of the sexual harassment. During the same period, partly because of the loss of income as well as deteriorating living

conditions the appellant moved in with her sister.  Although the appellant found a new job and residence 1 month before the Board's September 2017 decision, she lost that job through no fault of her own on the same day that she  moved into her new residence, and consequently, she was forced to apply for and rely on unemployment benefits.

She was then evicted on January 21, 2018, 117 days after the Board mailed its September 2017 Board decision and 3 days before her appeal was due.

Id. at *4.

The Court ultimately found the late motion to reconsideration should be tolled and that the late NOA was excusable.

This was a per curium decision by Chief Judge Bartley and Judge Toth.  Judge Greenberg concurred in the outcome but believes a more veteran friendly framework for late filings should be used.

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Breland: Involves the length of a temporary 100% rating when there is not follow up examination.

Breland v. Wilkie, Case Number 18-5980, decided May 29, 2020 involves a higher rating after service connection for cancer.

The veteran sought and was ultimately granted service connection for tongue cancer.  DC 7343 grants a 100% rating for malignant neoplasms of the digestive system.  Importantly, a note states:

A rating of 100 percent shall continue beyond the cessation of any surgical, X-ray, antineoplastic chemotherapy or other therapeutic procedure. Six months after discontinuance of such treatment, the appropriate disability rating shall be determined by mandatory VA examination. Any change in evaluation based upon that or any subsequent examination shall be subject to the provisions of § 3.105(e) of this chapter. If there has been no local recurrence or metastasis, rate on residuals.

The veteran argued he should retain the 100% rating until the VA gave him his mandatory VA examination, which in this case would have been a 100% rating for roughly a decade.  Id. at *5.  However, the Board found the 100% tongue cancer was assigned retroactively, therefore, a VA examination after six months was impossible and only granted the 100% rating for six months.

The Court determined that the note should be read prospectively based on the use of the phrase “shall continue” and need for an examination after six months.  It explains:

the plain meaning of DC 7343's note is not that, where service connection and ratings for tongue cancer are retroactively assigned years after the cancer has been eradicated and treatment has ceased, a 100% rating will continue until the date that a VA examination regarding residuals is conducted. This would lead to compensation based on pure regulatory presumption and unmoored from any medical reality.

 Id. at *7.

The Court then explained

Thus, we read DC 7343 to require the following when the rating is retroactively awarded: (1) VA may assign a noncompensable rating for malignant neoplasms when the cancer is inactive and treatment has ceased (i.e., the veteran remains service connected for that cancer)—this noncompensable period for the cancer itself will often coincide with the rating period for cancer residuals; (2) these retrospective discrete ratings are staged ratings; and (3) notice and a VA examination 6 months after cessation of treatment is only required where current compensation would be reduced, which is not what occurs

when assigning a retroactive staged rating.

Id. at *9.

The Court then explained as to residuals

In sum, the note to DC 7343 is prospective and thus the prospective procedures—i.e., the examination 6 months after cessation of treatment and contemporaneous notice of any reduction—are not strictly applicable when VA awards service connection and disability ratings retroactively.  This is particularly true where the record contains sufficient evidence for VA to ascertain a clear picture of the veteran's health and assign ratings and effective dates based on those actual medical findings. Here, based on such evidence and the note to DC 7343, VA continued the 100% tongue cancer rating from the date of service connection until 6 months following cessation of treatment for both periods and then assigned ratings based on his residuals, effective from August 1, 2007, the date after the first 100% cancer rating ended. Thus, contrary to Mr. Breland's contentions, he may not retain the 100% cancer rating from the date of service connection until October 1, 2017, the month following the second VA examination.

Id. at *14. 

Judge Greenberg wrote a concurrence and dissent focused on the a scan that showed residual cancer after the date it was assumed to be gone.

 

Decision by Judge Falvey and joined in by Judge Toth with concurrence and dissent by Judge Greenberg. 

Note the case has been appealed to the Federal Circuit.

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Smiddy: The Board and Extraschedular Consideration

Philbrook v. Wilkie, Case Number 16-2333, decided May 28, 2020 involves a consideration of the Board’s role after a decision on extraschedular considerations by the director of the Compensation Service.

The veteran had sought an extraschedular rating for residuals of an inguinal hernia repair, which had been previously remanded by the Board to the director.  Ultimately, the director denied saying

[A]part from the objective evidence confirming the 10% evaluation currently entitled to and other subjective evidence[,] such as the [appellant] indicating that his scar has caused him discomfort so that he can't wear tight fitting clothing, has affected his sexual activity, and it's slowed him down at work[,] no further evidence of an unusual disability picture such as frequent hospitalizations or of marked interference with employment have been presented. The Director also reasoned that the objective medical evidence of record suggested that the 10% schedular evaluation was adequate, that the appellant had continued to work fulltime, and that the various medical opinions had found that the appellant's disability should not prevent him from maintaining gainful employment. Id. The Director also noted that the appellant was already service connected for erectile dysfunction.

Id. at *3-4.

In its opinion, the Board affirmed finding “the evidence of record was against a finding that the appellant's inguinal hernia repair residuals presented "such an exceptional or unusual disability picture that the available schedular evaluations are inadequate.”  Id. at *4.  The Board noted manifestations of pain and numbness in the left testicle and thigh were fully contemplated by the rating criteria.  The Court also noted:

the Board determined that, although the appellant “assert[ed] his disability has worsened due to urinary symptomatology, competent medical evidence of record indicates that [his] voiding dysfunction with urinary leakage is not a symptom of his left inguinal hernia repair residuals."  R. at 8. The Board also found "no evidence of unusual factors such as frequent hospitalizations or marked interference with employment stemming from the  appellant's] inguinal hernia repair residuals." R. at 18. In reaching this conclusion, the Board stated that it had no reason to doubt the appellant's reports of slowed work performance due to pain from his inguinal hernia repair

residuals, but that "slower performance alone does not comprise [sic] marked interference with employment" and that in his TDIU request he "did not attribute his inability to work to his hernia repair residuals."

Id. at *4.

The Court begins by noting the disability ratings are based on the average impairment of earning capacity in civilian occupations, but the to do justice to exceptional cases the director is authorized to approve extraschedular ratings.  Id. at *6.  The Court noted the governing norm was whether the claimed disability presented such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization so as to render impractical the application of the regular schedular standards.  Id. at *7.

The Court then explained the Three Step inquiry from Thun:

First, either the RO or the Board must find "that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate." Thun, 22 Vet.App. at 115. This step requires "a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability." Id. If "the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate," the second step of Thun provides that "the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as 'governing norms,'" such as "marked interference with employment" and "frequent periods of hospitalization." Id. (citing 38 C.F.R. § 3.321(b)(1) (2007)). Finally, if the criteria under the first two steps are satisfied, "then the case must be referred to the [Director] for completion of the third step—a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating." Id.

Id. at *7.  The Court then reviews the Board’s decision under the clearly erroneous standard of review.

However, in this case, the Board had made factual findings that required referral to the Director, but then the Director denied the extraschedular rating.  The Court extended the reasoning from a series of cases in this area to say “in the extraschedular rating context, the Board's reasons-or-bases requirement obligates it to explain[] its reasoning when a factual finding made at the referral stage comes out differently at the review stage.”  Id. at *10.  In the case at hand, the Board had previously specifically found the residuals were so unusual and exceptional that it rendered the schedular criteria inadequate.  Id. at *11.  The Court then noted their really was not any new evidence since the referral (the Director’s decision is not evidence), and stated “[t]hus, it is unclear why, on mostly the same facts, the Board reached opposite conclusions.”  Id. at *11.  The Court then explained: 

Although the Board was not bound by its 2014 referral decision, it did not explain why it had reached an opposite conclusion in its 2016 decision. In the 2016 decision, the Board did not discuss the 2014 referral findings, but simply noted the referral. To enable the appellant to understand the precise basis for its decision, the Board must explain why it reached a different result. Here, the appellant believes that, by the referral in 2014, he received a "yes" to an extraschedular rating, and then in 2016 received a "no," although the Board had evaluated the same two Thun factors. Because the Board treated the 2014 and 2016 Thun determinations differently, it must explain why and how they were different. See Allday, 7 Vet.App. at 527. Its failure to do so frustrates judicial review.

Id. at *11.

This is an interesting case with narrow facts.  The Board determined at the referral stage that the disability was not adequately compensated by the schedular rating and referred to the Director, the Director disagreed, and the Board seemed to change its tune.  While similar facts have certainly happened before, I expect the VA will just train their Board members to be less helpful with factual findings on referral.  Still, it is nice to see the Court hold the Board’s feet to the fire and demand the Board explain how it suddenly changed its mind.  I suspect the truth is the Board member just did not want to crosswise with the Compensation Director.

Decision by Judge Pietsch and joined in by Judges Greenberg and Meredith.

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Philbrook: TDIU and Prison

Philbrook v. Wilkie, Case Number 18-5628, decided May 19, 2020 involves a denial of a grant of TDIU while incarcerated.

The veteran received a PTSD rating of 70% in 2004.  On 2009 he was arrested and in 2011 he entered a plea to Judgment Upon Stipulation and Finding of Guilty Except for Insanity.  It determined his actions constituted the crime of attempted murder, a class A felony.  Consistent with his plea, the Court found him “guilty except for insanity of the crime of attempted murder.”  Under Oregon law, a person “is guilty except for insanity if, as a result of mental disease or defect at the time of engaging in criminal conduct, the person lacks substantial capacity either to appreciate the criminality of the conduct or to conform the conduct to the requirements of law.”  Given his danger to others, the court ordered him “placed under the jurisdiction of the Psychiatric Security Review Board . . . for care, custody and treatment for a maximum period not to exceed 20 years”; and “committed [him] to the custody of the Oregon State Hospital.”  

While in custody, Mr. Philbrook sought TDIU which was denied that section 5313(c), as implemented by § 3.341(b), prohibited TDIU.

First, the Court had to deal with an issue of mootness because the veteran had eventually been released from custody and granted TDIU, but not for the time while in custody.  Succinctly, the Court stated the

case is not moot because he seeks a determination of entitlement to TDIU for a specific period of time, rather than merely entitlement to TDIU as a general matter.  VA made TDIU effective from April 13, 2018—the day after the veteran was discharged from the Oregon State Hospital. But this excludes the period between Mr. Philbrook's TDIU application date (sometime in September 2011, or in March 2013 at the latest) and his release date, all the while he was confined by the State of Oregon.

Id. at *3-4.

As to the merits of the case, the Court affirmed the Board’s decision.  It started with 38 U.S.C. § 5313(c), which reads:

The Secretary shall not assign to any veteran a rating of total disability based on the individual unemployability of the veteran resulting from a service-connected disability during any period during which the veteran is incarcerated in a Federal, State, local, or other penal institution or correctional facility for conviction of a felony.

The Court focused on the terms “incarcerated,” “penal institutional or correctional facility,” “conviction” and found they are not defined by the statute or the implementing regulation, § 3.341(b), which merely repeats the disputed statutory text without elaboration.  “Thus, this case turns on statutory, not regulatory, interpretation.”  Id. at *5.

The Court determined:

In our view, the plain meanings of these statutory terms cover Mr. Philbrook's circumstances. In accordance with his plea of guilty except for insanity, a state trial court found that his “actions constituted the crime of attempted murder, a class A felony.”  He was taken into custody and confined at a state mental institution following these criminal proceedings.

Id. at *6.  The Court supported its decision by stating:

For good measure, this interpretation of the plain language of section 5313(c) coheres with the purpose of the statute, which the Federal Circuit noted is “to correct the perceived problem of providing hundreds and thousands of tax free benefits to veterans incarcerated for the commission of felonies when at the same time the taxpayers of this country are spending additional thousands of dollars to maintain these same individuals in penal institutions.”

Id.

The Secretary and veteran also argued separately that the Court should focus on the State of Oregon’s definition of incarceration or correctional facility, but the Court refused and said it did not believe Congress wanted the statute to turn on state law.

The Court acknowledged this is a hard result because it is likely the veteran’s service connected PTSD led to his imprisonment, but the Court noted

the purpose of section 5313(c)'s prohibition on the award of TDIU to incarcerated veterans is not punitive in nature, and its application in a specific case comes with no moral judgment on the individual veteran concerned. It is a fiscal measure. And under its plain terms, Mr. Philbrook, while confined at taxpayer expense at the Oregon State Hospital after being adjudged guilty except for insanity of attempted murder, fell within its ambit.

Id. at *9.

The case has been appealed to the Federal Circuit.

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

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Gardner-Dickson: A Writ Denied

 

Gardner-Dickson v. Wilkie, Case Number 19-4765, decided October 21, 2020 involves a request for a writ pursuant to the All Writs Act.

Regarding the writ, the veteran asks for a review of a 2019 Board remand and a finding the remand was wrong and an order directing the Secretary to readjudicate her claim with a corrected view of the law.  The idea was to stop the hamster wheel of remand by the Board and further development by the RO when the evidence was in favor of a grant.  However, the court refused to grant because it is essentially a merits ruling on a non-final Board decision.  The Court stated: “It is well settled that we have jurisdiction over Board decisions, and a nonfinal Board remand order is not a decision for purposes of section 7252.”  Id. at *3.  It rationale that “A

Board remand that does not make a final determination about the benefits sought is ‘not a decision within the meaning of section 7252(a).’”

The veteran anticipated this ruling and also sought to rely on 38 U.S.C. § 7261.  Section 7261(a)(2) authorizes the Court to "compel action of the Secretary unlawfully withheld or unreasonably delayed."  Id.  But, the Court refused the invitation to use Section 7261 to expand its reach explaining: “[s]ection 7261 merely sets out the scope of the review to be conducted by th[is Court] in cases within its jurisdiction; it does not itself create jurisdiction.”  Id. at * 4.

The Court also discussed unreasonable delay and relied on the TRAC factors to find none was proven.  Id. at *5-6.

A dissent by Judge Greenberg noted the Board had remanded despite also finding “the record contains no evidence contradicting the Veteran's reports.”  Id. at *11.  He noted:

Rather than being granted benefits based on uncontroverted evidence, the veteran died while VA delayed adjudicating his claim by remanding for additional evidence. This could not be what Congress intended when it enacted legislation providing benefits based on herbicide exposure.

Id. at *11.  He also wrote: “The Board’s attempt to remand the claim to determine further facts is to gather nothing but negative evidence.”  Id. at *11.  He would have granted service connection.

Decision by Judge Falvey and joined in by Judge Meredith.  Dissent by Judge Greenberg.

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Bryant: 90 Days to Submit Additional Evidence or Argument to the Board

Bryant v. Wilkie, Case Number 18-0092, decided October 26, 2020 discusses what happens when the Board renders a decision prior to 90 days elapsing after the veteran had stated he would forward additional argument. 

The issue was “whether the Board errs when, in accordance with 38 C.F.R. § 20.1304(a) (2017) (now 38 C.F.R. § 20.1305(a)), it issues a decision sooner than 90 days after mailing notice that an appeal has been certified and the appellate record transferred

to the Board.”  Id. at *1. 

The Court held 

when an appellant notifies VA that he or she intends to submit additional argument or evidence to the Board during the period specified in § 20.1304(a), principles of fair process prohibit the Board from issuing an adverse decision until it either receives that argument or evidence or until 90 days have elapsed since mailing the § 20.1304(a) notice.

 

Id. at *1-2. 

Procedurally, the RO issued a Statement of the Case in 2017 continuing the denial and the veteran filed an appeal to the Board stating "[f]urther argument will be advanced in memorandum in lieu of VAF 646[3 ] once BVA sends 90[-]day letter."  Id. at *2.  The

RO certified the appeal to the Board in July 2017 and the Board sent a letter on September 21, 2017, notifying the veteran his appeal had been docketed at the Board and was awaiting adjudication. The letter also stated, in relevant part: 

Please note that you have 90 days from the date of this letter or until the Board issues a decision in your appeal (whichever comes first) to request a change in representation or to submit additional argument or evidence, if you elect to do so. Any such request or submission must be sent directly to the Board. See generally 38 C.F.R. § 20.1304.

Seventy days later, on November 30, 2017, the Board issued the decision.  Id. at *2.

The Court’s ruling focused on 38 C.F.R. § 20.1304(a) which reads:

An appellant and his or her representative, if any, will be granted a period of 90 days following the mailing of notice to them that an appeal has been certified to the Board for appellate review and that the appellate record has been transferred to the Board, or until the date the appellate decision is promulgated by the Board . . . , whichever comes first, during which they may submit a request for a personal hearing, additional evidence, or a request for a change in representation.

After expiration of that time period, the Board would generally only accept requests to submit additional argument and evidence if the appellant demonstrated good cause for the delayed submission. See 38 C.F.R. § 20.1304(b) (2017).  The Court also noted the triggering event for the 90 days was the mailing of the notice the appeal had been certified to the Board.

The veteran made two arguments in this regard.  First, he mounts a facial challenge to the constitutionality of § 20.1304(a), contending that the regulation deprives appellants of their due process right to meaningfully participate in the adjudication of their appeals because it does not provide a date certain by which appellants must submit argument and evidence to the Board without having to show good cause. Id. at *3.  Second, he asserts that the Board's actions were fundamentally unfair and prejudiced him because the Board decided his appeal without waiting for the argument that he told the Board he would submit during the § 20.1304(a) period.  Id.

The Court did not address the constitutional question, but stated the Board’s decision deprived him of his non-constitutional right to fair process.  “Specifically, we hold that, once Mr. Bryant informed VA that he planned to submit new argument following receipt of the § 20.1304(a) notice letter, implicitly requesting that VA withhold a decision until he had done so, basic fairness obligated the Board to wait 90 days or until he submitted that argument to decide his appeal.”  Id. at *4.  Underlying the Court’s reasoning was the fact the VA system is nonadversarial.  Id.   “By prematurely deciding the appeal without the benefit of the argument that the Board knew was forthcoming, the Board effectively shut Mr. Bryant out of the appellate process, a process that, by law and regulation, is designed to be a partnership between the appellant and the Agency.”  Id. at *7.

The Court then turned to prejudice and noted that at oral argument his counsel stated “in addition to the previously identified written argument, he also had favorable linkage evidence that he was prepared to submit during that period.”  Id. at *8.  The Court concluded “Given that Mr. Bryant notified VA that he had additional argument that he intended to submit to the Board within 90 days of mailing of the September 21, 2017, notice letter, and given that he has since identified argument and evidence that he would have submitted during that time, the Court concludes that the veteran has carried his burden of demonstrating that he was prejudiced by the Board issuing its decision fewer than 90 days after mailing the § 20.1304(a) notice letter.” Id. at *9.

This is a good decision to remind veteran to ask for the 90 days, but also reminds you to be prepared to discuss prejudice.

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

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Welcome: Veterans Retraining Assistance Program and Chevron Statutory Interpretation

 Welcome v. Wilkie, Case Number 18-4601, decided October 29, 2020 discusses whether the VA improperly reduced the veteran’s benefits under the VRAP.

The Veterans Retraining Assistance Program (VRAP) as a temporary program intended to provide older veterans with job retraining f high-demand occupations.  However, Congress terminated VA’s authority to issue payments under the program as of March 31, 2014.  As that date approached, VA decided to issue accelerated, lump-sum benefit payments to veterans who had remaining eligibility and who were still enrolled on a full-time basis—but only in an amount that would carry veterans to the end of their current term or June 30, 2014, whichever came earlier.  Mr. Welcome had 10 months of eligibility remaining, but as a result of the VA’s decision on how to calculate the benefit was only paid for 2 of those remaining months.

The Court’s holding was:

The question in this case is whether VA's decision to limit Mr. Welcome's benefits to the end of his term constituted a reasonable interpretation of the statute. We agree with Mr. Welcome that there was no statutory basis for such action; to the contrary, VRAP assistance was expressly tied to the veteran's program of education, and his payment should have corresponded to the full extent of his eligibility.

 Id. at *1.

While factually a narrow ruling, the Court’s statutory interpretation analysis is helpful.  It focuses on the two-step Chevron analysis. 

The Court explained: 

At step one, we ask whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter as the Court "must give effect to the unambiguously expressed intent of Congress." Id. at 842–43. If the statutory language is "silent or ambiguous," however, we proceed to step two and ask whether the agency's action is based on a "permissible construction of the statute." Id. at 843. If the agency's interpretation is based on a permissible construction, then the Court defers to it; if it is not, then the action is "arbitrary, capricious, or manifestly contrary to the statute" and thus unlawful.

Id. at *3.  The Court begins and could have concluded with Step One.  It finds

The text of the statute makes clear that VA was required to pay eligible veterans the full extent of their benefits. We noted in Lacey that Congress designed VRAP to be "limited in duration and scope." 32 Vet.App. at 74. Commencing on July 1, 2012, VRAP contained a sunset provision limiting the Secretary's authority to make payments on March 31, 2014. § 211(a), (k), 125 Stat. at 713–15. Specifically, subsection (k) of section 211 read: "TERMINATION OF AUTHORITY— The authority to make payments under this section shall terminate on March 31, 2014." Id. at 715.

 

But while the statute ended the Secretary's ability to make payments, it did not contain any language requiring veterans to use their benefits by a certain date. Instead, the statutory text reveals other "discrete, if implied, limitations." Lacey, 32 Vet.App. at 79. We know, for example, that benefits could only issue to veterans pursuing a program on a "full-time basis." § 211(b), 125 Stat. at 713. We also know that VA could only provide "up to 12 months of retraining assistance." Id. Thus, there is a clear statutory basis for VA limiting a lump sum payment to a veteran who had dropped below full-time status or whose program of education was completed in fewer than 12

months.

 

The statute, however, contains no language directing VA to curtail or otherwise reduce a veteran's benefits, and nothing in the text or structure suggests that Congress intended to cut benefits at the end of a veteran's term or June 30, 2014, whichever came earlier. The law does not tie the veteran's benefits to a current term of enrollment or to any specific date. On the contrary, it expressly tethers benefits to the program of education, such that participants are "entitled to up to 12 months of retraining assistance" "to pursue a program of education . . . for training, on a fulltime basis in a program approved under Chapter 36, offered by a community college or technical school, leading to an associate degree or a certificate in a high demand occupation." Id. On its own terms, the statute contains only these limitations to the 12-month term of benefits.

 Id. at *4.  It then summarized by saying: 

In whole, the statute lacks any indication that Congress intended to allow VA discretion to grant a smaller allotment of benefits based on limitations other than those expressly listed. Instead, we read it as signaling a clear intent from Congress requiring VA to pay eligible veterans the full extent of the benefits provided for under the statute. Thus, once the Secretary chose to administer lump-sum payments to help veterans toward their objectives, he had an obligation to provide benefits in a manner consistent with the statutory criteria, subject only to the express limitations in the statute.

Id. at *6.

As to a step two analysis (the agency give a permissible construction), the Court noted the Secretary’s arguments: that the hard stop of June 30 was justified because Congress requested a report on VRAP's achievement of target objectives by July 1, 2014 and by reference to the Montgomery GI Bill statutory language.

As to the hard stop based on a report to Congress, the Court stated 

Although Congress wanted to know by July how many veterans participated, earned a degree, and gained employment, that request doesn't signal a congressional preference for data over veterans with remaining entitlement. The reporting requirement thus proves a slim reed to support an inference that Congress wanted veterans who were still engaged in an educational program to quit

or otherwise continue alone without assistance…. To discontinue benefits for these veterans before the end of

the education program designed to provide them with the training and credentials to obtain employment in high-demand occupations, simply to provide Congress with a report, runs counter to the objectives of what here is clearly a remedial statute.

Id. at *6-7.

As to the reference to the GI bill, the Court said a narrow GI bill provision allowing for accelerated payments limited to payments for the end of the students term was not instructive.  It found the Secretary here issued a lump sum payment for a fraction of what the veteran was entitled.

This is an interesting decision as it shows the Court still focused on a Chevron analysis, but finding failings in the VA position at steps one and two.  It is interesting and perhaps alarming that the Court did not consider any other statutory arguments such as the pro-veteran canon.

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

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Smith: The Board Can Change Its View on Credibility?

Smith v. Wilkie, Case Number 18-1189, decided April 27, 2020 discusses whether the Board can change its view of the credibility of a veteran’s lay statements.  The Court said yes, but that the veteran has to be given notice and an opportunity to respond.

The veteran’s service records were absent as to any discussion of a shoulder injury, but he recounted an injury and treatment.  During the course of two remands were the Board remanded for a new examination, the Board had instructed the examiner to “[p]lease accept as true and [sic] the Veteran's credible lay statements regarding injuring his left shoulder in service while lowering a hatch, resulting in several weeks in a brace or sling and having intermittent shoulder pain ever since.”  Id. at *3.  The first examiner still said their was a lack of documentation and provided a negative linkage opinion.  This resulted in another remand with similar instructions as to assume credibility and a second opinion that superficially said the in-service injury “was deemed credible,” but then noted no objective evidence of residuals within a year of separation.  The second opinion also opined the shoulder pain was likely radiating pain from a neck injury.  Id. *3.

The Board opinion before the Court on remand determined the veteran’s report of his injury and continuity of symptoms were not credible because the alleged in-service treatment was not recorded in his SMRs or other records.  Id. at *4. 

The dispute involves the credibility instructions to the examiner and the veteran’s characterization of them as favorable findings.  Id. at *4. 

The Court explained:

He asserts that he relied on these favorable findings to his detriment because, believing that the question of his credibility was decided in his favor, he "did not develop evidence or submit argument to rehabilitate his testimony."  Moreover, he observes, "[b]y the time [he] was notified of [] VA's adverse credibility determination, he was foreclosed from responding with additional evidence or argument" because 38 U.S.C. § 7252 prohibits the Court from considering evidence not on the record before the Board.

Id. at *4.  Alternatively, he argued he was denied fair process when the Board failed to provide him notice and opportunity to respond before its change in credibility findings.  Id. at *5.  The Secretary argued the instructions to the examiner were not favorable findings, but instructions for purposes of development.  Id. at *5. 

The Court determined the instructions could have reasonable and fairly be mistaken as a favorable finding:

because the Board's instructions stated that Mr. Smith's statements were credible, as opposed to requesting that the examiners assume credibility for the limited purpose of conducting the examinations and providing medical opinions, Mr. Smith was reasonably—but mistakenly—led to conclude that the Board had resolved the question of

credibility in his favor. To the extent that the Board subsequently, on de novo review of the evidence, as required, found Mr. Smith's statements not credible, fair process required that Mr. Smith be given notice of that proposed factual finding and provided the opportunity to submit evidence concerning his credibility or to support the now-unestablished element of his claim, the alleged in-service injury.

Id. at *8.

The Court also recounted how constitutional requirements of fair process impact veteran’s law.  It specifically states when the Board develops or obtains evidence “fair process requires the Board to ‘provide a claimant with reasonable notice of such evidence and of the reliance proposed to be placed on it, and a reasonable opportunity for the claimant to respond to it.’”  Id. at *6.  The Court then noted that the principle of fair process applies throughout the process of evidentiary development.  Id. at *6.  And,

even in situations where no particular procedural process is required by statute or regulation, the principle of fair process may nonetheless require additional process if it is implicitly required when "'viewed against [the] underlying concepts of procedural regularity and basic fair play'" of the VA benefits adjudicatory system.

Id. at *6.

The Court broad reading of the Board’s review suggests the Board’s review is always de novo.  This is problematic and potentially incorrect.  However, the further development of the law around the issue of ensuring a fair process in the development of evidence, which requires notice and an opportunity to respond is helpful.

The Court also discussed the adequacy of the examination.  The examiner specifically stated her opinion was based on objective evidence and did not address the veteran’s lay statements.  The examiner also wrote that the lay statements of chronic residuals were credible, but then said there were no chronic residuals within one year of separation (completely opposed to the lay statements).  The Court noted the examiner did not consider the lay statements as true despite instructions from the Board.  The Court then referenced its January 2020 decision in Miller v. Wilkie noting the requirement that an examiner address the veteran’s lay statements.

Decision by Judge Bartley and joined in by Judges Allen and Falvey.

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George: CUE and 3.156(c)

George v. Wilkie, Case Number 16-1221, decided March 26, 2020 discusses the intersection of a CUE claim and Section 3.156(c)(newly discovered service records). 

Due to the high procedural barrier created by CUE, the Court affirmed the Board’s denial of an earlier effective date. 

The story of this claim is familiar to advocates in this field.  A veteran seeks service connected for PTSD but is denied for lack of a stressor.  The veteran reapplies and they ultimately find proof of the stressor in military records, here in research by the Joint Service Records Research Center, and grant PTSD with the second or third application date as the effective date.

However, 38 C.F.R. Section 3.156(c) seems to apply and requires:

at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim, notwithstanding paragraph (a) of this section.

Id. at *6.

Here, the veteran argued

the Board did not "reconsider" his PTSD claim with the new service department records under § 3.156(c)(1), but, instead, only reviewed the proper effective date under subsection (c)(3).  According to appellant, the "finality of the VA's original [(1997)] denial has been undone" by the receipt of new service treatment records, and, because the RO never engaged in a full readjudication of the matter, the Board erred when it found no CUE.  He further contends that VA's action, which he referred to at oral argument as a "partial readjudication" on the issue of effective date only, did not put him in the position he would have been in had the relevant service department records been considered part of his original (1997) claim.  Specifically, he suggests that a full readjudication would have triggered the duty to assist, requiring VA to develop his claims based on his lay testimony of certain in-service symptoms and to decide whether these symptoms showed a manifestation of PTSD before 2003.

Id. at *7.

The Court found the Board’s finding of no CUE in the 2014 Board decision concerning lay statements was not arbitrary, capricious, an abuse or discretion or otherwise not in accordance with the law.  Id. at *10.  The Court noted a duty to assist error cannot be CUE and noted the VA did seek a retrospective VA opinion that said the PTSD did not develop until later.  Id. at *10-11.  “In sum, the Court concludes that appellant has not carried his burden of demonstrating that the 2015 Board's denial of his motion to revise the 2014 Board decision on this basis of CUE as it concerns assessing his lay statements was arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.”  Id. at *11. 

The Court then assessed a broader argument about Section 3.156(c) and stated:

One can view this argument two ways, and this seemingly abstract issue turns out to have significant jurisdictional implications.  First, it is possible to read appellant's argument about § 3.156(c) and reconsideration generally as focused on the 2015 Board decision.  In this view, appellant essentially argues that the 2015 Board misunderstood how § 3.156(c) operates and, therefore, he calls into question the 2015 Board's assessment of whether the 2014 Board decision contained CUE.  Second, one can view appellant's argument as alleging that the 2014 Board decision contained CUE because it misapplied § 3.156(c) in terms of what type of reconsideration was necessary.  As we explain, we lack jurisdiction over this second argument.  However, we possess jurisdiction to consider the first version of appellant's argument, but we reject it on the merits.

Id. at *11.

First, as to reconsideration:  the Court notes based on Vigil v. Peake “we know

without question that § 3.156(c) speaks to more than effective date; it also speaks to development of the claim in at least some respect.” It then held:

We hold that the Board in its 2015 decision applied the correct legal principles under § 3.156(c) when it reviewed the 2014 decision concerning the three specific allegations of CUE appellant advanced in his August 2015 motion to revise the 2014 Board decision. The 2015 Board specifically explained that, given the receipt of service department records not previously associated with the claim, § 3.156(c) was applicable and reconsideration needed.  And the 2015 Board noted that the earliest entitlement to benefits would be based on the original 1997 claim.  Appellant argues that, when discussing an effective date, the Board skipped past § 3.156(c)(1), which demands reconsideration of the original claim, and went straight to § 3.156(c)(3), which deals with the effective date of a claim granted via reconsideration.  If the Board had acted as appellant suggests, it did not understand the relevant legal framework, which could cast doubt on its assessment of the specific CUE allegations before it.  However, it is clear that the 2015 Board did not fall victim to this mistake.  The 2015 Board addressed at length the various steps taken after VA received the service department records, namely obtaining a retrospective medical examination in April 2013 and considering other evidence such as Social Security Administration records and lay statements.  This type of discussion makes sense only in the context of reconsidering a claim, suggesting that the Board understood how § 3.156(c) operates.

Similarly, after acknowledging that § 3.156(c) applied, the 2015 Board explicitly stated that "it was necessary for the Board [in 2014] to determine when [appellant's] entitlement to service connection for PTSD arose."….  Therefore, the evidence, taken as a whole, shows that when assessing the 2014 decision, the 2015 Board properly understood and considered the provisions of § 3.156(c).

Id. at *13-14.

The Court also noted the veteran’s brief also seemed to argue the earlier Board decision contained CUE because it misapplied Section 3.156(c) and did not properly reconsider the claim.  The Court rejected this argument as it had not been raised by the Appellant before the Board. 

Judge Greenberg dissented arguing equity compelled a different result, “I believe that the examiner's opinion would have been different if he had reviewed the records that eventually led to the grant of service connection. The complicated procedural requirements to disturb the finality of VA decisions has gotten in the way

of compensating this worthy veteran.”  Id. at *15.

This is an interesting decision that shows the procedural difficulty in bringing a CUE claim, especially as it intersects with Section 3.156(c) and reveals how difficult such a claim is to win.  It should be pointed out this decision has been appealed to the Federal Circuit, so we shall see the result.

Decision by Judge Allen and joined in by Judge Schoelen.  Dissent by Judge Greenberg.

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Webb: Lack of a Clear Mental Health Diagnosis, Saunders and Walsh further considered.

Webb v. Wilkie, Case Number 18-0966, decided March 26, 2020 discusses an unusual situation where a veteran clearly has some type of mental health disability, but does not have a clear diagnosis.  The Court ultimately remanded without addressing the central question. 

This VA conceded a combat-related stressor but denied PTSD due to a lack of a current diagnosis.  The Board had previously remanded noting an examiner had found chronic symptoms and avoidance of activities.  A new examiner noted an unspecified cannabis related disorder.  The veteran argued a cannabis-related disorder is a common symptom of PTSD.  Another VA examiner then explained the veteran did not re-experiencing symptoms as required for a diagnosis of PTSD.  The Board denied the claim. 

The veteran principally argued “his symptoms caused functional impairment and, therefore, pursuant to Saunders, constitute a "current disability" for purposes of establishing entitlement to disability compensation.”  Id. at *4-5.

The Court recognized the Clemons and Saunders arguments, but focused instead on the adequacy of the underlying VA examinations.  It noted:

The Court cannot address whether the Board erred by relying on the 2014 and 2016 VA

examinations because the Board did not make any explicit findings regarding the adequacy of those examinations or explain which examinations it relied on to deny the appellant's claim and, to the extent that it implicitly found either or both examinations adequate, its reasons are not readily apparent.

***

For example, resolving these issues would require the Court to surmise which examination reports the Board implicitly considered adequate and probative and then, in the first instance, potentially review both medical examination reports to determine (1) whether, as argued by the appellant, they contain inconsistent findings regarding the presence of symptoms to satisfy the diagnostic criteria for PTSD or whether, as argued by the Secretary, the examination reports are adequate when read as a whole; and (2) whether the 2016 examiner provided an adequate rationale for finding no psychiatric diagnosis despite test results that showed the presence of the following symptoms: "anxious arousal, anxiety, depression, anger, intrusive experiences, defensive avoidance, dissociation, sexual disturbance[,] and tension reduction behavior."

Id. at *7.

As a result of the determination that a new medical may need to be ordered on remand, “the Court notes that the question of whether a claimant may establish entitlement to disability compensation for a psychiatric disability based on symptoms and functional impairment absent a DSM diagnosis may become a moot issue.”  Id. at *8. 

Interestingly, Judge Falvey wrote an opinion concurring and dissenting in part.  He stated

“I do not agree that a remand of the PTSD claim could moot the question of whether

service connection may be granted absent a DSM diagnosis.”  Id. at *10.  He then notes:

Mr. Webb doesn’t just want compensation for PTSD or a different condition found in the

DSM. Instead, he argues that VA must compensate him for any symptom even without a diagnosis.  Even if Mr. Webb is eventually awarded service connection for a psychiatric disability diagnosed under the DSM, his dispute, and the implications of having his question about non-DSM eligibility go undecided, will not be resolved. At their core, the two are different issues.

Id. at *10.  Judge Falvey does finally state how he would come down on this issue, but does suggest his potential future reasoning by framing the issue as jurisdictional and saying: 

If the rating schedule defines psychiatric disabilities based on the DSM, that definition may be beyond our jurisdiction.  "Congress precluded [this] Court from 'review[ing] the schedule of ratings for disabilities adopted under section 1155 . . . or any action of the Secretary in adopting or revising that schedule.'

Id. at *10.

This is an interesting decision as it aligns with the obesity decision in Walsh to capitalize on the Saunders decision and attack the VA’s focus on a diagnosed condition.

Decision by Judge Meredith and joined in by Judge Toth.  Dissent and concurrence by Judge Falvey.

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Walsh: Obesity and Aggravation

Walsh v. Wilkie, Case Number 18-0495, decided February 24, 2020 discusses whether obesity can be caused or aggravated by a service connected disability.

The veteran suffered a service connected knee injury which led to a service connected hip and low back disability.  She then sought service connection for hypertension and a sleeping condition secondary to other service connected disabilities.  It was ultimately denied. 

During the course of the claim, VA General Counsel Opinion 1-2017 was released.  In summary it stated that "[o]besity may be an 'intermediate step' between a service-connected disability and a current disability that may be service connected on a

secondary basis under 38 C.F.R. § 3.310(a)."  Id. at *3.  The opinion explained in one example:

With regard to the hypothetical presented in the previous paragraph, adjudicators would have to resolve the following issues: (1) whether the service-connected back disability caused the veteran to become obese; (2) if so, whether the obesity as a result of the service-connected disability was a substantial factor in causing hypertension; and (3) whether the hypertension would not have occurred but for obesity caused by the service-connected back disability. If these questions are answered in the affirmative, the hypertension may be service connected on a secondary basis.

Id. at *3.  The Court noted: Thus, the first step asks about the connection between a service-connected disability and obesity, while the second and third steps ask about the connection (proximate and but-for causation) between obesity and the disability for

which secondary service connection is sought.”  Id. at *3. 

In the case at hand, the VA received a medical opinion which in part opined “she

couldn't state, based on the current evidence and medical literature, "that there is a cause-effect relationship between arthritis of the back or of the knee and obesity."  Id. at *4.    As a result the Board denied the claims for hypertension and sleep apnea. 

The Court began its analysis by noting:

we note that G.C. precedent opinions are issued by VA's chief legal officer and are binding on the Board. 38 U.S.C. § 7104(c). They are not, however, binding on the Court. Molitor v. Shulkin, 28 Vet.App. 397, 408 (2017). Instead, because such opinions lack the formalities of notice-and-comment rulemaking, the Court defers to them in accordance with their "'power to persuade.'"

Id. at *5.  The significance of this finding is important as it reaffirms that general counsel opinions are not binding on the Court and the Court still has a role besides simply deferring to the VA.  The Court then pivoted to the Section 3.310(a), which discusses secondary service connection and the Court noted recognizes a causal and aggravation theory.  The Court then noted: “In short, there is no permissible basis in the relevant regulation for concluding that obesity may be an "intermediate step" in a secondary-service-connection analysis when service-connected disability causes it, but not when service-connected disability aggravates it.”  Id. at *6. 

The Court then determined:

properly construed, G.C. Opinion 1-2017 does not purport to prohibit inquiry into whether a service-connected disability aggravates a veteran's obesity. And for good reason, as this would contradict VA's aggravation regulation. So, to be clear: Despite the G.C. opinion's silence regarding aggravation, the Board, in accordance with § 3.310(b), must consider aggravation in this context when the theory is explicitly raised by the veteran or reasonably raised by the record.

Id. at *7.

The Court then remanded the claim based on the fact the relevant C&P examination did not discuss the question of aggravation of obesity.

This is an important decision for clarifying that disabilities caused the obesity can be service connected if the veteran can show a service connected condition caused or aggravated obesity.  It is also interesting in that the Court rendered its opinion in such a way as to make it difficult to impossible for the VA to change its General Counsel Opinion to omit aggravation as a factor.  This is a well-reasoned case by Judge Toth demonstrating a deep analysis and understanding of regulatory interpretation. 

Decision by Judge Toth and joined in by Chief Judge Bartley and Judge Pietsch.

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Langdon: Lumbar and Thoracic Spine Conditions

Langdon v. Wilkie, Case Number 18-0520, decided February 5, 2020 discusses the intersection of lumbar and thoracic spine conditions and how they are interrelated and as such should be rated. 

The veteran sought service connection for lumbar and thoracic spine disabilities and was rated 10% for a thoracic spine disability for painful but denied service connection for the lumbar spine after a VA examination found the in-service lumbar strain did not have caused the current lumbar condition.  The lumbar spine denial was not appealed.  Instead,

Appellant argues that the Board incorrectly applied Diagnostic Code (DC) 5237 in denying a disability rating greater than 10% for his service-connected thoracic spine disability. He contends that the plain language of DC 5237 considers the thoracic and lumbar spine as a single unit and that the Board was required to consider them as such, rather than separating the symptoms associated with each. He asserts that under this interpretation, he is entitled to a 20% disability rating because the evidence of record shows forward flexion not greater than 60 degrees. He relies on a 2003 amendment to the general rating formula in which VA proposed to rate the thoracic and lumbar spine as the "thoracolumbar spine" on the basis that they generally moved as a single unit.  Based on this amendment, appellant argues that DC 5237 is clear that his thoracic and lumbar spine disabilities must be considered together.

Id. at *3.

The Court held:

This matter was submitted to a panel of the Court to address whether a non-service connected lumbar spine disability must be considered in rating a service-connected thoracic spine disability under 38 C.F.R. § 4.71a and the General Rating Formula for Diseases and Injuries of the Spine. Given the plain language of the rating formula, read in the context of the regulatory scheme as a whole, we hold that functional impairment caused by appellant's non-service-connected lumbar spine disability cannot be considered when rating his thoracic spine disability where there is medical evidence distinguishing between impairments caused by the thoracic and lumbar spine disabilities.

Id. at *1.

The Court framed the veteran’s argument as: “a contention that VA determined that the

thoracolumbar spine was to be treated as a single unit for all purposes and that it is no longer appropriate to consider the thoracic and lumbar regions separately.”  Id. at *7.  The Court then noted:

it is true that DC 5237 calls for the thoracic and lumbar spines generally to be rated as a

unit. But it does not mandate that they be rated together. DC 5237 provides for such unitary treatment only when both segments of the spine are injured as a result of military service, that is, only when they are both service connected, or when it is not possible to separate the functional limitations of an injury and assign them to each part of the spine and one part is service connected.

Id. at *7-8.  The Court then stated:

Here, we have unchallenged medical evidence attributing appellant's functional impairment solely to his non-service-connected lumbar section of the spine. In this situation–one that perhaps will not be common–the medical evidence is sufficient to carry

out the overall goal of the rating schedule to compensate for injuries that are "a result of or incident to military service."

Id. at *9.

The Court also considered a jurisdictional question.  Appellant argued the Court did not jurisdiction to determine DC 5237 allowed thoracic and lumbar spine disabilities to be rated separately because Congress precluded the Court from re-reviewing the disability schedule.  But, the Court noted it did have jurisdiction over cases involving interpretation of the regulations.  It noted:

appellant's challenge to the Board's decision involves the correct interpretation of DC 5237 when read in the context of the entire regulatory scheme–namely, what does "thoracolumbar" refer to when only one of the two conditions is service connected. Such question falls squarely in the exception permitting this Court to consider the rating schedule, that is, the Court may consider the rating schedule when the Court interprets regulatory language.

Id. at *6.

This is a fairly narrow case where the lumbar disability denial was not appealed and their was evidence separating the thoracic and lumbar spine disabilities.  The case has been appealed to the Federal Circuit.

Decision by Judge Allen and jointed in by Judges Pietsch and Toth.

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Rosinski: Payment of Attorney Fees Based on Amount Awarded Not Actually Recieved

Rosinski v. Wilkie, Case Number 17-3293, decided January 30, 2020 discusses a line of cases involving what happens when an attorney is to be paid 20% of past-due benefits owed the veteran, but what the veteran would be owed is reduced for other reasons, in this case military retirement pay.

The Court framed the issue as:

The discrete question is whether section 5904 requires VA to pay fees to an attorney who obtains a disability rating of less than 50 percent for a veteran receiving military retirement pay—or, whether section 5304 forecloses such payments to attorneys. In Snyder v. Nicholson, 489 F.3d 1213 (Fed. Cir. 2007), the Federal Circuit held that 38 U.S.C. § 5313, a statutory limitation on payments to incarcerated veterans, did not alter VA's obligation to pay attorneys fees under section 5904(d)(1) because section 5313 did not purport to change the monthly compensation awarded on the basis of the veteran's claim but merely served as a withholding device for full payment of benefits otherwise lawfully established. Because Snyder's reasoning—as explained in subsequent cases—applies equally to section 5304, the Court reverses the Board's ruling and directs the Secretary to pay Mr. Rosinski the fees to which he is entitled under section 5904(d)(1).

Id. at *1-2.

The Court noted:

This case marks the fourth in a line of attorneys fees decisions examining VA's obligations to pay attorneys fees under section 5904. The first and most significant of these cases is Snyder, in which the Federal Circuit defined various terms within section 5904 and examined whether VA's obligation to pay attorneys fees was countermanded by a separate statute, section 5313, which limited the monthly compensation payments that an incarcerated veteran could receive on a successful claim. 489 F.3d 1213. The next two decisions, Jackson v. McDonald, 635 F.App'x 858 (Fed. Cir. 2015), and Gumpenberger v. Wilkie, 31 Vet.App. 33 (2019), refined Snyder's interpretation of section 5904 and applied it to other scenarios.

Framed in the most general terms, the question on appeal is whether Snyder's reasoning applies equally to section 5304 and obligates VA to pay attorneys fees even where the veteran receives a rating below fifty percent and hasn't waived retirement pay. Insofar as this question involves interpretation of section 5904, our task is made easier by the fact that Snyder already set out what various terms mean, with Jackson and Gumpenberger providing an assist.

Id. at *4.

In summary, Snyder dealt with incarcerated veterans (finding attorneys were owed the amount that would have been paid if the veteran was not limited to a lesser amount by reasons or incarceration); Jackson dealt with a recently deceased veteran; Gempenberger dealt with a fugitive felon. 

The Court hashed through the Snyder and related analysis and ultimately determined:

What follows here is largely a restatement of our earlier analysis. Snyder established that

VA renders an award on a veteran's claim when it completes the non-mechanical  judgments of assigning a disability rating and effective date. Snyder clearly established that VA's obligations under section 5904 to pay attorneys fees are not affected by additional statutory limitations on a particular veteran's ability to receive payment as those do not affect the amount "awarded on the basis of the claim." VA, for example, may run afoul of the Appropriations Clause if it decided to disregard section 5304 and pay a veteran who hasn't waived retirement pay an award of less than 50 percent. However, the Snyder line of cases establishes that VA's obligations to attorneys under

section 5904 are to be determined by the amount awarded, not by the amount the veteran is actually entitled to receive. Under such reasoning, payment to attorneys does not fall afoul of the Appropriations Clause even where a separate provision limits payment to the claimant.

Id. at *16.

Judge Meredith dissented largely focusing on the fiscal impact on the Treasury.  She wrote:

by finding generally that "VA's obligations to attorneys under section 5904 are to be determined by the amount awarded, not by the amount the veteran is actually entitled to receive," the majority fails to give due meaning to the term "past-due." Ante at 16. The result here is that the veteran was paid 100% of the benefits that he was awarded and entitled to receive (albeit in the form of retirement pay) and VA must pay an additional 20% to the appellant—i.e., the United States will pay 120% for the period from May 2011 to January 2014.

Id. at *22-23. 

Both parties have asked for an en banc ruling in this case.  However, I cannot see how the case is not governed by the Federal Circuit decision in Snyder and do not foresee any change in the result.

Decision by Judge Toth and joined in by Judge Bartley with a dissent by Judge Meredith.

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