Snider: Board Analysis of Referral for Extraschedular Consideration After Ray

Snider v. McDonough, Case Number 19-6707, was decided November 19, 2021 and involves an extension of Ray v. Wilkie, which addresses referral for extraschedular TDIU consideration.

The court summarized the result as stating:

In Ray v. Wilkie, 31 Vet.App. 58, 66 (2019), a case where the Board referred for extraschedular TDIU consideration but later denied TDIU benefits, the Court held that the initial extraschedular referral decision under 38 C.F.R. § 4.16(b) addresses whether there is sufficient evidence to substantiate a reasonable possibility that a veteran is unemployable because of serviceconnected disabilities. We are asked to decide whether this holding applies to situations like in Ms. Snider's case, in which the Board denied both the referral for extraschedular TDIU consideration and TDIU benefits. Because granting or denying a referral for extraschedular TDIU consideration addresses the same question—Is referral warranted?—we hold that Ray's "reasonable possibility" standard applies to the Board's decision to grant or deny the referral.

And because Ray applies to this case and the Board did not consider the evidence under the "reasonable possibility" standard when determining whether referral was warranted, remand is necessary for the Board to do so, especially because both parties agree that the Court cannot make this factual determination in the first instance. Thus, we will set aside the part of the June 2019 Board decision denying TDIU and remand the matter for readjudication.

Id. at *1-2.

The veteran sought TDIU based on service connected disabilities of sinusitis and hemorrhoids.  The Board found referral for extraschedular TDIU consideration was not warranted.  The Court noted “[t]he Board concluded that, given Mr. Snider's occupational history, he could work in occupations 4 other than those involving food service where symptoms such as dripping mucous and taking six bathroom breaks a day would not interfere with the completion of work duties.”  Id. at *3-4.

Before the Court, the veteran argued “the Board erred or provided inadequate reasons or bases for not referring TDIU for extraschedular consideration because the Board did not address the veteran's claim under the "reasonable possibility" standard discussed in Ray.”  Id. at *5.

The Court concluded by finding:

In this case, the Board determined that referral for extraschedular TDIU consideration was not warranted because the evidence did not support a finding that the veteran's service-connected sinusitis and hemorrhoids rendered him unable to obtain or maintain substantially gainful employment. R. at 12. The Board did not consider the evidence under Ray's "reasonable possibility" standard when making its referral decision. Because that standard applies to all extraschedular TDIU referral decisions, including this case, and because the Board here did not employ that standard, remand is necessary for the Board to do so. See Tucker v. West, 11 Vet.App. 369, 374 (1998) (holding that remand is the appropriate remedy where the Board incorrectly applied the law or did not provide an adequate statement of reasons or bases or where the record is otherwise inadequate). As the parties agree, the Court cannot make the initial decision about whether the evidence was sufficient under the "reasonable possibility" standard.

Id. at *12. 

This seems like particularly unnecessary decision and can only wonder why the VA defended.  It is barely an expansion of Ray and its analysis regarding referral for extraschedular consideration.

Decision by Judge Falvey and joined by Judges Pietsch and Toth.

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Foster: Prostate Cancer Reductions

Foster v. McDonough, Case Number 19-7442, was decided October 20, 2021 and involves a reduction after prostate cancer surgery.

The veteran appealed a reduction from 100% to 10% after prostate cancer went into remission and the discontinuance of SMC. 

Initially, the Court focused on the use of the term reduction in this case, saying:

the semantic difficulty that cuts across this appeal. The central issue we face is whether, when VA changes a claimant's disability rating for prostate cancer under DC 7528 from 100% to some lower rating, that change is a rating reduction entitling a claimant to the special regulatory procedures associated with such reductions (along with judicial interpretations of those regulations). The difficulty is that, of course, when VA changed appellant's disability rating from 100% to 10%, the change was a "reduction" in the colloquial sense. No one can argue otherwise. But, there is a certain awkwardness in explaining the matters at issue in this appeal because of the limitations of the written word. So, it is important to keep in mind that we are not dealing with the colloquial, common-sense meaning of "reduction." Rather, we are concerned with whether the common-sense "reduction" that occurred here was a "rating reduction," a legal concept in veteran's law that obligates VA to utilize the special procedures that apply to such actions.

Id. at *2.

Importantly, DC 7528 provides that after “the cessation of surgical, X-ray, antineoplastic chemotherapy or other therapeutic procedure” a 100% rating “shall continue with a mandatory VA examination at the expiration of six months.”  It then states if there is no reoccurrence, the residuals will be rated voiding or renal dysfunction after section 3.105(e) notice.

The Court found “[i]t is clear from the language of DC 7528 that the discontinuance of appellant's 100% disability rating does not constitute a traditional rating reduction but is instead part of the initial rating assigned for the condition.”  Id. at *9.  After discussing how the decision squares with other case law, the Court states:

“In sum, our holding today builds on the precedential caselaw before it. The common thread that links this caselaw is the plain language of the DCs at issue in those cases. And an adjudicator should simply apply the DC's procedures, including any temporal components that may be present, as written. Here, the note accompanying DC 7528 is clear. The discontinuance of a 100% prostate cancer rating following the procedures set out in that note is not a rating reduction requiring VA to follow the special procedures associated with rating reductions.”

 

Id. at *17.

The Court then turned to the 10% rating and noted a remand was necessary on a reasons and bases error because:

the Board failed to explain why it found appellant's statements that his voiding dysfunction required the use of absorbent materials not credible. The parties agree that the Board's finding that there was no record of incontinence is inaccurate, because various treatment records indicate that appellant had incontinence.  Thus, the Board based its credibility finding on an inaccurate description of the evidence of record. The Court agrees with the parties and accepts the Secretary's concession of error. 

Id. at *18. 

Decision by Judge Allen, and joined by Chief Judge Bartley and Judge Falvey.

 

Hall: Board Jurisdiction and Submission of an Incorrect Form

Hall v. McDonough, Case Number 19-8717, was decided October 18, 2021 and involves whether the Board has jurisdiction to decide a claim when an improper form had been submitted.

This involves a legacy appeal that was decided the day the VAIMA went into effect.  The veteran submitted a VAIMA NOD as opposed to an older NOD.  Ultimately, the Board noted the form and stated the claim was on its docket.  Later, the Board dismissed the claim when it found he used a new NOD as opposed to the older version of a NOD.  The Board determined it did not have jurisdiction.

The veteran argued: “the requirement to use VA Form 21-0958 is not a jurisdictional hook and the Board waived that requirement when it accepted and processed his appeal. He also asks the Court to ensure that an SOC is issued regarding his foot, ankle, and hip conditions.”  Id. at *2.

The Court began by noting

The Supreme Court has repeatedly emphasized the distinction between rules affecting jurisdiction and mandatory "claims-processing" provisions that govern the orderly processing of cases but otherwise do not create or withdraw jurisdiction. "Clarity would be facilitated if courts and litigants used the label 'jurisdictional' not for claims-processing rules, but only for prescriptions delineating the classes of cases (subject-matter jurisdiction) and the persons (personal jurisdiction) falling within a court's adjudicatory authority."

Id. at *3.

It then explained:

As relevant here, 38 U.S.C. § 511(a) provides a cause of action and establishes that "[t]he Secretary shall decide all questions of law and fact necessary to a decision by the Secretary under a law that affects the provision of benefits by the Secretary to veterans or the dependents or survivors of veterans." It is absolutely clear that Congress intended to grant to the Secretary "the power to declare the law" by adjudicating cases brought under section 511(a). Steel, 523 U.S. at 94. There's no dispute that Mr. Hall brings a claim for veterans benefits under section 511(a).

The Board's jurisdiction is derivative of the Secretary's. As with section 511(a), 38 U.S.C. § 7104(a), which sets out the Board's jurisdiction, uses the same mandatory shall in directing that "[a]ll questions in a matter which under section 511(a) of this title is subject to a decision by the Secretary shall be subject to one review on appeal to the Secretary." Taken together, sections 511 and 7104 offer no indication that Congress sought to eliminate VA's authority to adjudicate veterans benefits disputes—i.e., its subject matter jurisdiction—whenever a claimant's pleading fails to conform to form or timing requirements.

Id. at *4.

The Court then noted that Percy v. Shinseki had noted a substantive appeal is not jurisdictional but a claims-processing mechanism and the Board could summarily dismiss an appeal based on jurisdiction, but had to discuss why dismissal was appropriate.  Id. at *5.  The Court in this case rejected the VA’s argument that regulations 20.202 and 20.203 ruled by noting regulations are not jurisdictional in nature and only Congress may confrer or withdraw jurisdiction.  Id. at *5. 

The Court then determined:

In sum, the Board had jurisdiction here because Mr. Hall appeals the RO's denial of his claim for benefits and because nothing in section 7105 suggests that Congress intended to limit the Board's jurisdiction based on the specific form that the appellant used to file his NOD. Thus, the Board erred in dismissing Mr. Hall's case on jurisdictional grounds. R. at 6 ("[T]he claims . . . must be dismissed because the Board does not have jurisdiction over the issues." (emphasis added)). This error effectively prevented Mr. Hall from participating in the adjudicative process as the Board neither heard his appeal nor explained why any formal defect in the appeal merited dismissal under a claims-processing rationale. See Simmons v. Wilkie, 30 Vet.App. 267, 279 (2018), aff'd, 964 F.3d 1381 (Fed. Cir. 2020). The Court thus remands for the Board to either hear 6 Mr. Hall's appeal or to provide a rationale for declining to do so. If it dismisses his claim, the Board should identify the governing law, any formal defects in the appeal, whether waiver or forfeiture is a relevant consideration, and any other relevant factors.

Id. at *5-6.

This is an interesting case in that it reaffirms that a lack of jurisdiction is not an adequate reason for the Board to dismiss an appeal which was on the incorrect NOD form.  I would have expected the Court to note the non adversarial nature of the VA process, but instead this Court focused strictly on the technical aspects of the jurisdictional argument.  What is also interesting is to see how this could more broadly help other veterans.  If a wrong NOD is not jurisdictional, than a late one also isn’t.  The next question is whether a NOD on a form is even required.  The Court seems to have opened a door and it will be interesting to how quickly it is shut or far it is opened.

Decision by Judge Toth and joined by Judges Laurer and Jaquith.

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Spicer: Testing the Limits of Secondary Service Connection

Spicer v. McDonough, Case Number 18-4489, was decided September 14, 2021 and involves a claim for service connection for a leg disability secondary to service connected leukemia.    

The veteran sought service connection for a leg disability, weakness and instability in his knees due to arthritis.  The theory was that his service connected leukemia did not actually cause or aggravate his knee arthritis, but treatment for his leukemia prevent him from underlying surgery for his knees.

The Court began by noting “no statute expressly provides for secondary service connection, where compensation for a disability is not related directly to service but to problems that themselves stem from service. Instead, this theory of entitlement is set forth in a longstanding regulation, 38 C.F.R. § 3.310, which was first promulgated in 1930.2  Under this rule, VA recognizes that "disability which is proximately due to or the result of a service-connected disease or injury shall be service connected" as "a secondary condition." 38 C.F.R. § 3.310(a).”  Id. at *2.

The veteran specifically noted a 2014 knee replacement surgery had been cancelled because chemotherapy for his leukemia had depressed his red blood cell level and it was unlikely his count would ever increase enough to allow the surgery.

The Board determined the "inability to undergo knee replacement surgery because of the effects of his service-connected leukemia is not contemplated by the applicable laws or regulations to fall within the meaning of secondary service connection."  Id. at *4.

The veteran focused on the word “disability” as a broad enough term to encompass his theory of service connection.  The veteran argued any worsening in functional impairment constituted a worsening disability under section 1110.  Id. at *5.  However, the Court focused on the “resulting from” language in Section 1110 and “conclude that "resulting from" requires actual causality and so does not encompass such disabilities.”  Id. at *5-6.  The Court reasoned:

Given that the phrase "resulting from" has for almost a century plainly expressed a causation requirement, we must reject Mr. Spicer's contention that section 1110 doesn't contain an etiological component. Although the veteran is not explicit, we understand him to use the word "etiology" to refer to "the cause(s) or origin of a disease." Allen, 7 Vet.App. at 445 (emphasis omitted). In this light, section 1110's "resulting from" language clearly requires an etiological nexus and that language imposes "a requirement of actual causality." Burrage, 571 U.S. at 211. Put another way, Congress's intention to provide compensation only in situations where there's an etiological link between service and a disability's onset or worsening is evident from its use of the phrase "resulting from."

Id. at *6. 

As to the facts of the case, the Court concluded:

Mr. Spicer's knee arthritis did not, in any reasonable sense of the phrase, "result from" his service-connected cancer or the chemotherapy provided to treat it. There is no contention on appeal that they caused the arthritis or that they made it worse. The current state of his knee functionality is not a consequence or effect of these service-related agents. At most, they interfered with his attempts through affirmative intervention to alter the arthritis's natural progress. Unless we can say that the current state of his arthritis would not exist in the absence of his cancer or chemotherapy, however, there is no actual but-for causation. And but-for causation is what Congress required in section 1110.

Id. at *7.

Judge Allen dissented, arguing:

In my view, however, the statute sets out a much broader, causation-based standard. And because that is so, I also believe that VA's regulation implementing section 1110, 38 C.F.R. § 3.310(b), improperly limits that language in a way Congress did not intend. Therefore, I would hold that the regulation is not a permissible construction of section 1110.

Id. at *12. He further explained:

the phrase "resulting from" in section 1110 provides for compensation when a disability is the consequence or effect of military service. Stated another way, the statute's language merely requires that one thing flow from another, namely that a disability flow from military service. Congress imposed no other limitations in connection with establishing service connection beyond this broad, causation-based principle that one thing be a consequence of another

Id. at *14.

This is an important case that effectively tested the limits of secondary service connection and found it at what I believe is too narrow a limit.  Judge Allen’s dissent is powerful. I would expect an appeal to the Federal Circuit and a possible reversal.

Decision by Judge Toth and joined by Judge Pietsch.  Dissent by Judge Allen.

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Ventris: DIC and What is a Surviving Spouse

Ventris v. McDonough, Case Number 19-1860, was decided August 31, 2021 and involves a claim for DIC and status as a surviving spouse.    

Specifically, the case dealth with 38 CFR Section 3.55(a)(2)(ii) a provision governing re-instatement of VA benefit eligibility when a deceased veteran’s spouse remarries and subsequently divorces. 

The veteran died in 1957 and the surviving spouse remarried in 1958.  That marriage ended in divorce and she was remarried and that marriage also ended in divorce in 1973.  In 2010 she applied for DIC benefits.  Benefits were denied due to her remarriages.

“The Board found that Ms. Ventris and Mr. Adcock were validly married to each other at the time of his death. R. at 7. However, the Board concluded that Ms. Ventris's April 1958 remarriage terminated her eligibility as the veteran's surviving spouse for DIC, accrued benefits, and death pension purposes, stating that "[b]efore January 1, 1971, the only exception permitting restoration of her eligibility as the surviving spouse . . . was if the remarriage was void, or annulled.”  Id. at *2.

The Court noted that prior to 1970 remarriage was an absolute bar to benefits.  Now, “remarriage of a surviving spouse generally bars the furnishing of VA benefits to such surviving spouse, but termination of that remarriage may reinstate eligibility for some benefits.”  Id. at *3.  The regulation actually reads:

“On or after January 1, 1971, remarriage of a surviving spouse terminated prior to November 1, 1990, or terminated by legal proceedings commenced prior to November 1, 1990, by an individual who, but for the remarriage, would be considered the surviving spouse, shall not bar the furnishing of benefits to such surviving spouse provided that the marriage . . . [h]as been dissolved by a court with basic authority to render divorce decrees[.]”

The Court addressed the history of the marriage bar and then agreed with the surviving spouse that

“context indicates that the disputed language, "[o]n or after January 1, 1971," refers to the date of the surviving spouse's claim for VA benefits after the termination of a remarriage. Specifically, the statutory and regulatory history reveal that each of the dates referenced in the regulation reflects the date of a statutory change regarding benefits eligibility upon termination of remarriage and the effective date for the award of benefits subsequent to changes in benefits eligibility. As is evident from the 1970 statutory changes, those dates can only meaningfully be interpreted to correspond to the date of a claim for survivor benefits.”

Id. at *7.

“Indeed, we see no indication that Congress intended to tie benefits eligibility for surviving spouses to dates of remarriage or divorce. To the extent that Congress contemplated the effective date of changes to benefits eligibility in the relevant statutes, the statutory changes make clear that the surviving spouse's date of remarriage was never the pertinent consideration.”

Id. at *7.

The Court then concluded that as her remarriage terminated in divorce and she filed for DIC in 2010, she is not barred from eligibility for DIC benefits.  Id. at *8.  The Court remanded for consideration of whether DIC was established.  The Court then noted the older death pension is not exempted from the remarriage bar.  Id. at *10. 

This is an important case to surviving spouses who have been denied DIC due to remarriages and opens the door to possible benefits. 

Decision by Chief Judge Bartley and Judges Pietsch and Toth.

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Furtick: Class Actions and Predecision Hearings

Furtick v. McDonough, Case Number 20-4638, was decided August 25, 2021 and involves a proposed class action as to whether denial of a hearing by the AOJ is an appealable issue. 

The veteran filed a supplemental claim as to sleep apnea and requested a predecision hearing.  His request for a hearing was denied and he appealed to the Board, which found a denial of a hearing at the AOJ is not an appealable determination by the VA.  Id. at *1.  Instead, the Board stated that such an error could be raised in an appeal of a decision denying the benefit sought.  Id. at *2.

Ultimately a rating decision did deny service connection and the veteran subsequently filed an HLR discussing the lack of hearing.  As a result, the HLR acknowledged the veteran was entitled to a hearing and remanded the issue for one.  A hearing took place before this case was decided.

Before the Court, the veteran also sought to represent a class of all claimants who requested a hearing, which was denied.  Id. at *2.  As a result of the hearing being given, the VA sought to have the appeal dismissed.  Id. at *2.

The Court began by noting there is no longer a case or controversy as to Mr. Furtick and agreed dismissal of his individual appeal is appropriate.  Id. at *3.  As to the proposed class action, the Court noted an appeal can continued if an exception to mootness applies.  Id. at *3.  For this case, the Court assumed such an exception existed.  Id. at *3. 

The Court then explained its dismissal of the proposed class certification by saying:

“The problem for Mr. Furtick is that he and his purported class would not share the same relief at all given the Board's decision and the definition of the class Mr. Furtick seeks to represent. Our “jurisdiction is premised on and defined by the Board’s decision concerning the matter being appealed.”  This means that “when the Board has not rendered a decision on a particular issue, [this Court] has no jurisdiction to consider it under section 7252(a).”  And here, the Board has not decided whether a claimant is entitled to a predecisional hearing.

Instead, the Board decided that Mr. Furtick could not appeal the denial of a hearing as a stand-alone appellate claim. Thus, the Board dismissed his appeal without deciding whether he was entitled to a hearing. As a result, we would be limited to deciding whether a claimant has a right to appeal the AOJ’s denial of a hearing. If Mr. Furtick’s claim had continued, and had he prevailed on the merits of his appeal, we could order the Board to adjudicate his claim. In this hypothetical, if Mr. Furtick was also representing a class, we could enjoin the Board from refusing jurisdiction from claimants who want to appeal the AOJ’s denial of a hearing.”

Id. at *4.

This is an excellent example of the fact the Court views class actions with skepticism and will work hard to find a reasons to reject.  Here, they determined the proposed class and individual’s case were procedurally to dissimiliar.

Per Curium.

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Nailos: Earlier Effective Date for A&A When DIC Existed

Nailos v. McDonough, Case Number 19-0517, was decided August 10, 2021 and involves an earlier effective date for DIC based on the need for aid and attendance earlier than the date of the claim for aid and attendance.

The Court noted

This matter was referred to a panel of the Court to determine under what circumstances 38 C.F.R. § 3.402(c)(1) permits an effective date for the award of increased dependency and indemnity compensation (DIC) based on the need for aid and attendance earlier than the date of receipt of the claim for aid and attendance benefits. 3 For the following reasons, the Court concludes that § 3.402(c)(1) does not permit an effective date earlier than the date of the aid and attendance claim unless DIC is in effect for a period prior to the date of the DIC claim, i.e., there is a retroactive award of DIC.

Id. at *1-2.

The surviving spouse applied for DIC and accrued benefits after the veteran’s 2002 death.  This resulted in RO and BVA decisions denying benefits, which were affirmed by the Veteran’s Court in 2004.  Years later, the claim was reopened and resulted in DIC in a 2015 decision with a 2009 effective date.  This resulted in an appeal and denial by the Board. 

In 2017 the surviving spouse submitted an intent to file and a completed aid and attendance form, which led to a grant from the date of the application.  The surviving spouse argued her effective date should have been 2 years prior which corresponds to the date of her accident and inability to care for herself. 

The case focused on 38 CFR Section 3.402(c)(1) which states:

Awards of pension, compensation, or [DIC] to or for a surviving spouse will be effective as follows: . . . . (c) Aid and attendance and housebound benefits. (1) Date of receipt of claim or date entitlement arose[,] whichever is later. However, when an award of [DIC] or pension based on an original or reopened claim is effective for a period prior to date of receipt of the claim, any additional DIC or pension payable to the surviving spouse by reason of need for aid and attendance or housebound status shall also be awarded for any part of the award's retroactive period for which entitlement to the additional benefit is established.

(emphasis added).  The case focused on the “however” sentence which creates an exception to the general effective date rule. 

The Court noted: “appellant asserts that the Court should interpret 38 C.F.R. § 3.402(c)(1) as providing an exception to the general effective date rule when a claimant seeks aid and attendance benefits after having already been awarded DIC and that, under that exception, she is entitled to a retroactive award of aid and attendance benefits prior to the date of her claim for those benefits.”  Id. at *4.

She argued:

the first portion of the "[h]owever" sentence as permitting retroactive aid and attendance benefits "when an award of [DIC] . . . based on an original or reopened claim is effective for a period prior to date of receipt of the [aid and attendance] claim." 38 C.F.R. § 3.402(c)(1) (modified to reflect the appellant's proffered interpretation); see Appellant's Br. at 7. If the regulation is read otherwise, she avers, it would govern an "impossible scenario" because DIC may be paid retroactively if the claim is received within 1 year of the veteran's death and a DIC claim could not be "reopened" during that 1-year period.

Id. at *5.

The Court read the text of the section and determined

Starting with the triggering event, the regulation refers to a "claim" and then to "the claim."  The first use explains what led to an award of DIC—"an original or reopened claim"—and thus is a reference to the DIC claim. Id. (emphasis added). When "the claim" then appears 11 words later, it reasonably is understood as referring to the "claim" that was just mentioned—the DIC claim.

Id. at *9.

The Court reasoned:

Although the appellant instead looks to the phrase "[d]ate of receipt of claim" in the general rule to conclude that "the claim" in the exception refers to a claim for aid and attendance, because "the claim" appears later in the same clause of the same sentence that discusses a DIC claim, it should be read as referring back to that more immediate use of claim, rather than a farther removed use in a different sentence.

Id. at *10.  The Court summarized:

Putting all this together, the meaning of the regulation is clear from its text and structure: "[W]hen an award of [DIC] . . . based on an original or reopened claim is effective for a period prior to date of receipt of the [DIC] claim, any additional DIC . . . payable to the surviving spouse by reason of need for aid and attendance . . . shall also be awarded for any part of the [DIC] award's retroactive period for which entitlement to the additional benefit is established." That means, if DIC has not been awarded for a period prior to the date of the DIC claim—and there is thus no retroactive period—the exception in (c)(1) simply does not apply.

Id. at *12.

The Court also looked at the legislative history of the section and found it supported its conclusion. 

Judge Greenberg dissented, arguing:

Claimants are presumed to be seeking the maximum benefits, but that presumption is overcome by the widow merely checking the wrong box on a DIC application. "The VA disability compensation system is not a trap for the unwary," Comer v. Peake, 552 F.3d 1362, 1369 (Fed. Cir. 2009), yet today the majority has allowed the widow of a Pearl Harbor survivor to be ensnared by VA's maze-creating forms.

Id. at *18.

This is a case where the Court focused on the plain language and secondarily the legislative history and reached a reading different from either the veteran or Secretary.  It appears to be a hard result for the surviving spouse and it will be interesting to see if it is appealed.

Decision by Judge Meredith and joined in by Judge Toth with dissent by Judge Greenberg.

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Tadlock: Harmless Error Limited by the CAFC

Tadlock v. McDonough, Case Number 2020-1762, decided July 15, 2021 discusses the Veterans Court frequent application of harmless error to deny an appeal, and determined: “[b]ecause the Veterans Court’s jurisdiction to consider prejudicial error does not give it the right to make de novo findings of fact or otherwise resolve matters that are open to debate, we vacate the Veterans Court’s determination.”  Id. at *2.

The veteran served from 1982-2003 including service in the Persian Gulf.  He suffered a pulmonary embolism (PE) resulting in a heart attack in 2010.  He sought service connection for the PE and heart attack pursuant to 38 USC 1117, which creates a presumptive status for qualifying chronic disabilities, which include those resulting from an undiagnosed illness, a medically unexplained chronic multi symptom illness, or a diagnosed illness that the Secretary determines by regulation warrants presumption of service connection.  Id. at *2-3.  In the subsequent regulation, the Secretary defined a “qualifying chronic disability” as on that by history, physical examination and laboratory tests cannot be attributed to a known clinical diagnosis.  Id. at *3.

The veteran was diagnosed with a PE and the VA examiner noted it was a diagnosed illness and not medically unexplained.  The Board relied on this examination to deny service connection, holding because the PE was diagnosed and has a known etiology it is not a undiagnosed illness warranting a Persian Gulf presumption.  The Federal Circuit noted: “Neither the Board nor the examiner made any finding of fact that Tadlock’s condition was not a “medically unexplained chronic multisymptom illness . . . defined by a cluster of signs or symptoms,” colloquially referred to as a “MUCMI.””  Id. at *4.

The veteran argued the regulation conflicts with the statute because the statute “includes not only “an undiagnosed illness” but also a “medically unexplained chronic multisymptom illness,” examples of which include diagnosed illnesses, “such as chronic fatigue syndrome, fibromyalgia, and irritable bowel syndrome.””  Id. at *4.

The Veterans Court agreed with the regulatory challenge, but found the error was not prejudicial.  It found the acute PE suffered by the veteran nearly 10 years ago is not characterized by overlapping signs and symptoms and unique features such as pain, fatigue, and disproportional disabilities when compared with physical findings, thus the Veterans Court held any error was harmless.  Id. at *5.  Judge Pietsch dissented noting: “the Court, under a prejudicial error analysis, applied a provision that the Board did not apply and made factual findings that the Board did not make,” characterizing this case as “the latest in a recent string of aggressive prejudicial error analyses” by the Veterans Court.”  Id. at *5.

Initially, the U.S. argued when the Veterans Court has undertaken a review for prejudicial error and determined that an error is harmless, the Federal Circuit lacks jurisdiction to disturb that determination.  However, the Federal Circuit expressly rejected that argument, stating the veteran’s challenge is not to the factual determination but to the Veteran’s Court’s authority to make the fact-determination in the first instance in its consideration of prejudicial error.  Id. at *6.

As to the merits, the Federal Circuit noted that:

a determination by the Veterans Court that the Board clearly erred in making a fact finding is quite different from the Veterans Court finding facts in the first instance. The former is statutorily authorized by § 7261(a)(4). The latter is statutorily foreclosed by § 7261(c).

Id. at *8.

After reviewing the case law and how the Veterans Court had begun to focus on harmless error, the Federal Circuit ultimately concluded:

the Veterans Court may affirm on a ground not considered by the Board and the VA if it is clear that the factual basis for such conclusion is not open to debate and the Board on remand could not have reached any other determination on that issue.

Id. at *12.

It further reasoned:

When questions of fact are open to debate, veterans are entitled to present whatever evidence and arguments they have to the agency charged with administering veterans’ benefits and possessed with the expertise to render informed judgments and to have that evidence and those arguments considered by that agency in the first instance. “The rule of harmless error cannot be invoked to allow the Court of Appeals for Veterans Claims to decide a matter that is assigned by statute to the [VA] for the initial determination,” nor can the rule be invoked to support an affirmance that “may [] have required it to make improper de novo findings of fact.”

 

***

For the above reasons, we hold that § 7261(b)’s command that the Veterans Court “give due account of the rule of prejudicial error” does not give it the right to make de novo findings of fact or otherwise resolve matters that are open to debate. Affirmance in the face of an error may be made by the Veterans Court only if the record already contains findings made previously by the VA or the Board that support affirmance or the entire record makes evident that the Board could not have reached any other decision. Where additional findings of fact are necessary regarding matters open to debate, the proper action for the Veterans Court is to remand to the Board for consideration of those facts in the first instance.

Id. at *14.

In the case at hand, the Federal Circuit determined neither the Board nor the VA had ever considered whether the veteran’s condition was characterized by overlapping symptoms or signs.  Id. at *15.  It noted the Veterans Court found harmless error by determining that “Tadlock has not identified, any overlapping symptoms or signs related to his PE or any other features of his condition that would suggest it as a MUCMI.”  Id. at *16.

The Federal Circuit noted the Veterans Court did not cite any fact finding by the VA or Board the record does not show such a determination.  It determined:

the Veterans Court here sought to consider in the first instance whether Tadlock’s symptoms constituted a MUCMI, an inquiry delegated to the VA. As noted above, the Veterans court did not cite to anything in the record to support its determination, nor did it contend that its determination was the only possible outcome within the discretion of the VA and the Board. The proper course for the Veterans Court here was thus to vacate and remand for consideration by the VA or the Board in the first instance about whether Tadlock’s illness might be “defined by a cluster of signs or symptoms” characteristic of a MUCMI.

Id. at *18.

As Judge Pietsch noted in her Veterans Court dissent, the rule of harmless error has been used many times over the last several years to affirm a decision where there is otherwise a reason to remand.  This reliance on harmless error always was used against veterans.  The Federal Circuit has not entirely eviscerated the rule, but has circumscribed it.  This is a good victory for veterans.

Decision by Judge Linn, joined in by Judges Newman and Chen.

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Arline: Protected Work Environment and Rejecting Vocational Experts

Arline v. McDonough, Case Number 18-0765, was decided July 1, 2021 and involves what is a protected work environment for the purposes of TDIU.

In Cantrell v. Shulkin, 28 Vet. App. 382 (2017) the Veterans Court grappled with the definition of the term “employment in a protected environment” and encouraged the VA to define the phrase through regulations.  However, as noted in this decision, that has never occurred.  Still, the Veterans Court found the Board did not clearly err in finding the veteran’s descriptions of workplace accommodations not credible and that he was no unemployable.  Id. at *1.

The veteran has a 50% mental health rating and the court did remand as to the issues of a higher rating, however, the veteran also sought TDIU.  The veteran was working but argued he was in a protected work environment.

The veteran worked at the U.S. Defense Logistics Agency (DLA) at the Defense Supply Center of Columbus (DSCC)—first as a janitor, then as a machine specialist, and finally as a parts expediter.  Id. at *3.  He eventually retired.  He explained his anxiety had become overwhelming and stated his employer told him he needed to retire or be terminated.  This was disputed by the employer.  Id. at *3.  After retirement, the veteran volunteered for approximately 20 hours per week at a local VA facility, he explained the lack of a set schedule or expectations made his volunteerism possible.

The Board denied TDIU because it concluded the veteran’s schizophrenia did not preclude substantially gainful employment and his employment was not marginal. The Board found the veteran’s employment did not qualify as "in a protected environment" given his employment history and found a vocational opinion less probative because it was based, in part, on the veteran’s non-credible statements.  Id. at *3-4.

TDIU is available despite work if the work is marginal employment, which is defined as earned income that does not exceed the poverty threshold for one person established by the Department of Commerce.  Id. at *5.  The Court then explained:

The regulation further provides that "[m]arginal employment may also be held to exist, on a facts found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold." Id. The issue here is the meaning of "employment in a protected environment" in § 4.16(a).

Id. at *4-5.  The Court noted the term in question was ambiguous and the Secretary had declined to define the term and wanted the fact finder to engage in a case by case analysis. 

The veteran argued the only competent evidence was from a vocational expert that said the veteran was engaged in a protected work environment.  However, the Court found the Board had a plausible basis for its credibility and employability determinations.  Id. at *9.  “Reading the decision as a whole, the Board determined that Mr. Arline's workplace accommodation descriptions were not credible because they lacked facial plausibility and were inconsistent with other independent evidence.”  Id. at *9.

The Court noted:

In denying TDIU, the Board weighed Mr. Arline's lay statements against his stable 37- year, full-time DLA career, during which he spent 23 years in the same position ordering parts for the U.S. Department of Defense (DOD); his "regular retirement" from that job; and the September 2015 VA examiner's assessment that he could complete simple repetitive tasks in an environment that did not require more than superficial social interactions because he had done so for decades at his DLA job and was now volunteering at a local VA facility.

Id. at *9.

The Court also rejected the argument that the Board substituted its own opinion for a vocational expert saying the veteran “does not explain how vocational expertise is equivalent to medical expertise so that the Court should extend the reasoning in Kahana to encompass vocational opinions. Vocational matters do not involve the same complex issues as medical matters.”  Id. at *13. 

Chief Judge Bartley wrote a powerful dissent.  She explained the veteran’s:

lay statements indicate that his schizophrenia worsened late in his long-term career with a federal agency, causing increasing occupational impairment that his employer, supervisor, and co-workers admirably attempted to accommodate. The Board essentially found this narrative facially implausible, reasoning that no employer would tolerate, and no employee would help, an underperforming disabled veteran as he ended the last stage of a long career. But to be facially implausible, testimony must be so unbelievable that no reasonable factfinder would credit it.

Id. at *22.

She argued:

To put it bluntly, the Board went out of its way to impeach the veteran's lay testimony rather than accepting his plausible description of his declining psychiatric state, the corresponding problems it caused with his employment, and the significant accommodations that he received from his employer. Contrary to the Board's finding, there is nothing facially implausible about Mr. Arline's coherent narrative, and the Board in support cites nothing other than its own unsupported view of how workplaces should operate.

Id. at *23.

As to the majority’s rejection of the vocational assessment, she argued:

Moreover, I disagree with the majority that Board members should be able to discount TDIU evidence based on their own abstract conceptions, without a foundation in the record, of what is "common" or "general" in a given work environment. Nor, without further explanation, should they be able to rely on written workplace policies that advance procedures counter to a veteran's description of their specific work environment. TDIU determinations must be made on the evidence of record, and although the majority states that credibility determinations may not be based solely on extrarecord evidence, the remainder of their discussion comes dangerously close to permitting Board members to do just that. Given the importance of employment questions in TDIU cases, I cannot join the majority in allowing Board members to gainsay favorable unemployability evidence based on unsupported beliefs and policies about how a particular workplace should operate.

She continued by saying she believes protected work environment is ambiguous and no deference is owed to the VA’s interpretation and then offered a list of non-exclusive factors to consider in a protected work environment situation:

The first group of factors focuses on the employee in the job itself. As Mr. Arline asserts, the type and extent of accommodations that a veteran receives from an employer may be relevant to determining whether employment is in a protected environment. Evidence that a veteran requires substantial accommodations to effectively perform duties suggests a protected environment; evidence of few or less extensive accommodations may weigh against such a finding. Similarly, the magnitude of job responsibilities may bear on that analysis, since some employment is by its very nature inconsistent with a finding of a protected employment.

 

The second group of factors relates to the employer. The Secretary is correct that employer behavior or intent toward the veteran and employer classification of the position may be relevant considerations. Employer behavior, for example, may indicate that the veteran is shielded from consequences of nonperformance or poor performance of job duties. So, too, an employer's benevolent intent in hiring and promoting a veteran may be relevant. But because there may be reasons other than benevolence for providing a protected environment, employer intent is not dispositive. In addition, evidence that the veteran works for an institutional employer who traditionally provides sheltered employment may indicate a protected environment. For example, an employer like a hospital, VA domiciliary, or long-term care institution, where the goal of employment is principally charitable or rehabilitative, is more likely to offer employment in a protected environment than other enterprises that are profit-motivated.

 

The third factor is economic. As noted above, although income above the poverty threshold is not determinative, high income may counter against a protected environment while income that only marginally exceeds the poverty threshold may indicate a protected environment.

Id. at *25-26.

The facts of this case at first might suggest TDIU is not appropriate, but fellow employees helping a troubled veteran whose work performance has slipped toward the end of his career seems exceedingly normal.  What is most troublesome is the Court’s allowance of the apparent rejection of the expert vocational opinion because vocational opinions are not as expert as a medical opinion.  At the same time, the VA moving target definition of a protected work environment is maddening.  I see this case as crying out to be appealed and hopefully resolved in favor of the veteran.

Decision by Judge Falvey and joined in by Judge Pietsch with dissent by Chief Judge Bartley.

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Swanagan and Turman (Attorney Fees for Out of Country Attorneys)

Swanagan and Turman v. McDonough, Opinion Number 19-1350(E) and 19-3258(E), was decided June 23, 2021 and involves the appropriate hourly fee for attorney work under the Equal Access for Justice Act.

Veterans know that for successful work done before the Court of Appeals for Veterans Claims or Federal Circuit Court of Appeals, their attorney can be paid by the government under the EAJA (Equal Access for Justice Act) statute and this amount is not paid by the veteran.  The EAJA hourly rate changes every year based on the cost of living and also factors in where the work was performed (i.e., the South, North, etc).

These cases involve an attorney that had won a case and sought EAJA fees.  The veteran had moved to Ecuador and done a portion of the work in Ecuador and the result was wrangling over the appropriate amount of the EAJA fee.   The veteran’s attorney sought a locality increase similar to the DoD and UN’s indices for cost of living in Ecuador, which would have led to a rate of approximately $196 per hour.

The Court determined:

nothing in the EAJA statute or this Court's jurisprudence bars consideration of a COL increase to the statutory maximum for attorney work performed outside the United States. However, as with any attorney fee request, appellants bear the burden of demonstrating the reasonableness of their proposed method for calculating the appropriate hourly rate for work.

Id. at *10.  The Court then explained the appellant did not identify what other potential indices were available or explain why the selected the DoD and UN indices over others, no evidence the comparison U.S. cities were adequately representative, or why an average of the UN and DoD indices was appropriate.  Id. at *12.  It determined the appellant had not carried his burden and then cut his rate to $125 per hour.

EAJA cases really only concern attorneys (though they should be of consideration of veterans who want to make sure they can obtain good attorneys), but I have to admit this case really does not grab even my attention.  I frankly just don’t see too many out of country attorneys practicing veteran’s law.

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

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Andrews: How to Gain Service Connection for Hepatitis C and the Benefit of the Doubt

Andrews v. McDonough, Opinion Number 19-0352, was decided June 22, 2021 and involves what triggers the benefit of the doubt.

This is a Hepatitis C case where the veteran sought service connection and argued to the Court reversal is the proper remedy because the evidence of record met the benefit of the doubt standard and the Secretary argued reversal would require the Court to act as a fact finder in the first instance and instead urged a remand.  Ultimately, the Court did reverse but on narrow grounds.  Id. at *1-2.

The veteran said his Hepatitis C came from various in-service risk factors including: air gun immunization, dental work and a STD.  In 2010 a VA examiner said air guns were not a risk factor as to Hepatitis C and this resulted in a denial.  This ultimately led to a Board remand that ordered a new examination to discuss sexual activity.  This led to a new negative examination which discussed dental work, STD, and air gun injections and ultimately a denial of service connection.  Id. at *3. 

The Court began by acknowledging: “while the Court's authority to reverse Board findings is firmly established, it's not entirely clear what this means in practice.”  Id. at *4.  However, “it has proven difficult to identify absolute markers as to when reversal is the appropriate remedy rather than remand for further development or adjudication.”  Id. at *5.

The Court noted existing case law  “makes clear that reversal is appropriate provided that it doesn't require the Court to exceed its scope of review by engaging in improper fact finding. On a practical level, however, the line often proves blurry between judicial review—that is, reviewing, under the clearly erroneous standard, discrete findings of the Board in light of the entire factual record—and first-instance fact finding.”  Id. at *7. 

The Court explained the difficulty is that 1) “evidentiary rulings are not zero-sum affairs but often involve a complex interplay between several different factors”, 2) the Court’s “ability to evaluate evidence can be complicated when there isn't a statute or regulation spelling out precise criteria or relevant factors that bear on a given question. Often the relevant adjudicatory standard is set out in an agency manual such as the M21-1, whose provisions are mandatory for adjudicators at VA regional offices, but whose relationship with the Board and this Court is less than straightforward.” Id. at *8.

The Court then noted the Board had incorporated the M21-1 into its prior remand of the claim and stated it recognized various risk factors for hepatitis C and instructs to resolve reasonable doubt in favor of the veteran.  Id. at *9-10.  The Court noted it could not independently turn to the M21-1 to inform its decision, but could int his case because the Board’s remand order adopted its guidance.  Id. at *10.  It effectively noted that once the Board relied on the M21-1 for a remand, the veteran had an interest in the M21-1 due to his reliance on it to develop his case (even if the reliance is more fiction than fact).  

The Court then stated:

As for in-service risk factors, the Board did not dispute their occurrence; it merely discounted the likelihood that the veteran's hepatitis C originated from some of them. But the medical evidence the Board relied on to do so has been conceded as inadequate, since the opinions either failed to understand the theory of service connection at issue or rejected—contrary to VA policy—the possibility that certain risk factors could lead to hepatitis C. Put simply, no matter how diminished the Board thought the likelihood that Mr. Andrews's in-service risk factors caused his hepatitis C, this must be weighed against the absence of extra-service risk factors.

 

At the very least, in this case "the evidence favoring risk factor(s) in service is equal to the evidence favoring risk factor(s) before or after service," requiring resolution of reasonable doubt in the veteran's favor. M21-1, Pt. III, sbpt. iv, ch. 4, sec. H.2.e. Reasonable doubt exists when there is "an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. It is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility." 38 C.F.R. § 3.102 (2020). To the extent that the Board found the risk factor evidence in favor of the claim didn't meet this standard, this finding was clearly erroneous. Nor, based on this record, can we see any point in remanding for additional development on the question of nexus.

Id. at *11.

The Court then granted service connection and explained:

VA obtained two medical examinations and the veteran submitted numerous private treatment records and lay statements. Yet despite all this development, VA has not suggested, much less identified, the existence of preor postservice risk factors necessary to deny service connection under the standard outlined in the M21-1. Even if another examiner once more discredits the notion that Mr. Andrews's in-service risk factors led to his hepatitis C, that still puts the likelihood of an in-service etiology at least on par with the likelihood of an extra-service etiology. In short, it's not clear what remedial value would lie in requiring VA to obtain a new examination, since that examiner would have no warrant to reject the fact that no non-service risk factors exist. Regardless of the relative probative value of the evidence supporting Mr. Andrews in-service risk factors, this much is clear: it at least matches the zero evidence suggestive of pre- or postservice risk factors. Which brings us to the final point: Whatever the quality of the evidence surrounding the risk factors, it's at least sufficient to allow VA to discern whether service connection is warranted. It's been nine years since VA began assisting Mr. Andrews to develop his case. Despite formally recognizing the M21-1 risk factors, the Board relied on a medical examination that was not only inadequate for failing to address the in-service risk factors but failed to identify any viable nonservice-related etiology for the veteran's condition. Based on the circumstances of this case—the adoption of the M21-1 standard, the conceded presence of in-service risk factors, the absence of any non-service risk factors, and the lack of any reasonable basis to believe that additional development could alter the approximate balance of evidence—the Court reverses and orders VA to award service connection to Mr. Andrews for hepatitis C.

This case is a primer on how to win an Hepatitis C case, but also is interesting in how the court really resisted reversal and only did so after saying the VA had relied on the helpful M21-1 and thus the helpful language from the M21-1 could be imported into is decision.  While the case will be helpful in all Hepatitis C cases, it seems to do little (and perhaps even harm) in the larger battle to get the Court to grant more cases themselves.

Decision by Judge Toth and joined in by Judge Allen and Falvey.

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Taylor: Human Experiments, Secrecy Oaths and Equitable Estoppel Applied by the CAFC

Taylor v. McDonough, Case Number 2019-2211, decided June 30, 2021 discusses a set of tragic effects and finds equitable estoppel applied to result in an earlier effective date. 

The veteran had been the subject of chemical agent exposure studies at the Edgewood Arsenal during the Vietnam era.  He had specifically signed an oath of secrecy related to those tests and ultimately suffered severe psychological harm as a result of the testing.

“In 2006, the Department of Defense (DOD) declassified the names of the servicemen and women who had volunteered for the Edgewood Program and, in June of that year, VA sent the appellant a letter advising him that DOD had given permission for those identified to disclose to health care providers information about their involvement in the Edgewood Program that affected their health.”  Id. at *2.  In fact, the DOD had recommended telling participants of likely health consequences in 1979.

The veteran applied for benefits in February 2007 related to PTSD and submitted stressor statements related to the testing and additional stressors occurring in Vietnam.  A VA examiner determined there was PTSD resulting from “cumulative response” to the Edgewood experiments and Vietnam experiences.  The veteran was ultimately service connected for PTSD and granted TDIU with an effective date of his application date.

This appeal concerned whether an effective date prior to his application should be granted.  Section 5110 says the effective date of an award is the date of facts or found, but not earlier than the date of the receipt of application for benefits.  Mr. Taylor had signed a secrecy oath stating he would not disclose the testing and he did not apply for benefits until the DoD and VA sent a letter to veterans of the experiments that they could apply for benefits based on those experiments.  The veteran agreed normally an earlier effective date would not be allowed, but argued under the unusual facts of this case—i.e., the secrecy oath related to the testing—that an earlier effective date should be granted. 

The Veterans Court upheld the effective date finding their ability to grant equitable relief was so limited as to prevent is application under these facts. Judge Greenberg wrote a masterful dissent.

The Federal Circuit determined the Court erred in finding equitable estoppel was unavailable.  The Federal Circuit explained: “the Veterans Court may exercise such equitable powers, within the scope of its statutory jurisdiction, to ensure that “all veterans entitled to benefits receive[] them.”” Id. at *18.  The Court then explained “concluding otherwise would be contrary to the Veterans Court’s statutory mandate. Congress created the Veterans Court, through the VJRA, “for the [express] purpose of ensuring that veterans were treated fairly by the [G]overnment and to see that all veterans entitled to benefits received them[.]”  Id. at *21.

The Federal Circuit also addressed the Veterans Court’s argument that it could not use equitable estoppel to authorize payment outside of the requirements set forth in 38 U.S.C. Section 5110.  The Court explained this was error because 5110 is not jurisdiction and therefore is subject to equitable considerations.  Id. at *22.

The Court did explain that Section 5110(a)(1) does have importance and that “[i]n nearly all cases challenging the effective date of a veteran’s disability benefits, 38 U.S.C. § 5110(a)(1) and its enumerated exceptions will be dispositive.”  Id. at *29.  However, in this case, the Court found the government was estopped from using Section 5110(a)(1) from precluding the veteran from getting an earlier effective date because essentially the government had prevented him from making a claim by telling him he would be subject to criminal prosecution if he talked about the testing.

This is a monumental victory for the veteran and his advocates, but also based on particularly sympathetic facts, which necessarily led to the conclusion reached by the Federal Circuit.  It will be interesting to see in the years to follow how it is pushed to gain earlier effective dates.  It also serves as a repudiation of a Veterans Court decision that seemed focused on limiting its ability to review cases and grant relief rather than giving justice to those who deserve it.

Decision by Judge Wallach and joined in by Judges Newman and O’Malley.

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Snyder: 90 Days of Service Upheld in the ALS Regulation

Snyder v. McDonald, Case Number 2020-2168, decided June 9, 2020 discusses and upholds the 90 day active duty requirement for the presumption of ALS. 

The veteran served for 50 days during the Vietnam era (a period of war), he received an honorable discharge due to a knee injury.  Four decades later he sought service connection for Amyotrophic Lateral Sclerosis (ALS).

The Court explained that the veteran had argued to “meet the fundamental requirement of service connection, solely on an argument about a VA regulation, adopted in 2008 and made final in 2009, that provides a presumption of service connection for veterans with ALS if specified preconditions are satisfied. 38 C.F.R. § 3.318(a), (b).”  Id. at *2.  However, it noted the veteran

“undisputedly does not satisfy one of those preconditions—that the veteran “have active, continuous service of 90 days or more.” Id. § 3.318(b)(3). Nevertheless, Mr. Snyder argued in the Veterans Court that the 90-day-service precondition is unlawful, because contrary to the statutory scheme and arbitrary and capricious, and that the presumption should remain in place with the precondition nullified, entitling him to a finding of service connection.”

Id. at *2.  The Court noted the ALS presumption is entirely a regulatory creation and Congress has not spoken as to an ALS presumption.  Id. at *3.  The Court noted the underlying IOM Report which led to the VA’s ALS presumption noting and discussed the regulation.  Id. at *6.  The presumption contained three exceptions: 1) where there is affirmative evidence ALS was not incurred during or aggravated by military service, 2) there is affirmative evidence ALS was caused by the veteran’s own willful misconduct, and 3) service connection would not be presumed if the veteran did not have 90 days of active and continuous service.  Id. at *7.  The VA explained in its rulemaking: “We believe that 90 days is a reasonable period to ensure that an individual has had sufficient contact with activities in military service to encounter any hazards that may contribute to development of ALS.”  Id. at *7.

The veteran argued the VA exceeded its statutory authority and the 90 day limitation was arbitrary and capricious.  First, the Court  noted 38 U.S.C. Section 501(a) gives authority for the regulation and the 90 day requirement does not impermissibly redefine the term “veteran.”  As to the arbitrary and capricious argument, the Court deferred to the agency because the action was reasonable and reasonably explained.  Id. at *12.  The Court determined:

“In these circumstances, neither the evidence nor logic required the Secretary to limit his options to either ignoring length of service altogether or declining to adopt a presumption at all. The Secretary could reasonably choose a familiar short period to avoid what he reasonably found would be too demanding an evidentiary standard (no presumption) or too lenient a standard (no minimum service period) for applying the statutory requirement of service connection to veterans with ALS. We conclude that the Secretary “reasonably considered the relevant issues and reasonably explained the decision” and made a choice within the “zone of reasonableness.””

Id. at *16.

Decision by Judge Taranto and joined in by Judges Linn and Chen.

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Langdon: Federal Circuit on Lumbar and Thoracic Spine Conditions Being Treated Together

Langdon v. McDonald, Case Number 2020-1789, decided June 9, 2020 discusses the intersection of lumbar and thoracic spine conditions and how they are interrelated and as such should be rated. 

The VA had determined the veteran had a service connected thoracic spine injury and a non-service connected lumbar spine injury with only 55 degrees of forward flexion for his thoracolumbar spine, but that his service connected thoracic spine condition did not cause any functional impairment.  Essentially, the VA argued the limitation in range of motion was related to the veteran’s non-service connected lumbar injury.  As a result, the veteran only had a 0% rating.  He sought a 20% rating under Diagnostic Code 5237. 

The Court framed the appeals as:

require[ing] us to determine if the VA’s own regulation requires it to treat the thoracolumbar spine as a unit when applying the General Rating Formula. The Veterans Court held the General Rating Formula “calls for the thoracic and lumbar spine generally to be rated as a unit. But it does not mandate that they be rated together.” J.A. 8 (emphasis in original). It interpreted the General Rating Formula to “provide[] for such unitary treatment only when both segments of the spine are injured as a result of military service . . . 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.” J.A. 8–9. We reject that interpretation and hold the plain language of the regulation requires that the VA treat the thoracolumbar spine as a unit when applying the General Rating Formula.

 

By its terms, the General Rating Formula does not allow the VA to distinguish between the thoracic and lumbar spine segments. It uses the phrase “thoracolumbar spine,” not the words thoracic or lumbar. Not once does the General Rating Formula separate out the segments of the thoracolumbar spine. Likewise, the Notes accompanying the General Rating Formula repeatedly use the word thoracolumbar, but do not refer to the thoracic and lumbar spine segments separately. Additionally, the diagrams in Plate V depict thoracolumbar flexion as the movement of the entire thoracolumbar spine. The plain language of the General Rating Formula, thus, treats the thoracic and lumbar spine segments as a unit. We cannot rewrite that text to include criteria absent from its face.

Id. at *6-7.

The Court also rejected the argument that this interpretation would allow for compensation for non-service connected disabilities, explaining:

we agree with Mr. Langdon that this argument rests on the incorrect premise that he lacks the injury for which he will receive compensation—a service-connected thoracolumbar spine injury. For the General Rating Formula to apply, a veteran must first show that he has a service-connected disability. Cf. Grantham v. Brown, 114 F.3d 1156, 1158–59 (Fed. Cir. 1997) (noting service-connectedness is “logically up-stream” from compensation level). Only then does the General Rating Formula set the veteran’s rating level for that service-connected injury. The VA made the choice in its regulation to treat the thoracolumbar spine as a unit for rating purposes “[b]ecause the thoracic and lumbar segments ordinarily move as a unit,” making it “clinically difficult to separate the range of movement of one from that of the other.” Proposed Rule, 67 Fed. Reg. at 56,512. The VA is entitled to make such a choice to aid in properly assessing and rating injuries.

Id. at *9.

This is a fairly narrow case, but one that is instructive on how the VA often attempts to the add to its own regulations language that would limit benefits, without actually going through the process of actually amending the regulations.

Decision by Chief Judge Moore joined in by Judges Prost and Chen.

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Anania: Mailbox Rule Helps Veteran

Anania v. McDonough, Opinion Number 2020-1086, was decided June 10, 2021 by the Court of Appeals for the Federal Circuit and involves the intersection of statements by a veteran’s counsel and the mailbox rule.

This case involved whether a Form 9 was filed to continue an appeal.  The Form 9 must be filed within 60 days of the VA issuing a SOC.  The Veterans Court had “relied on a bright-line rule holding “a party’s own self-serving testimony” per se insufficient to establish the presumption of receipt under the common law mailbox rule.” Id. at *2.  However, the Federal Circuit determined “a party’s affidavit may provide credible evidence to satisfy the mailbox rule, and because the Government does not challenge the credibility of the party’s affidavit in this case, we reverse.” Id. at *2.

The Court explained:

“Under the common law mailbox rule, ‘if a letter properly directed is proved to have been either put into the post office or delivered to the postman, it is presumed, from the known course of business in the post office department, that it reached its destination at the regular time, and was received by the person to whom it was addressed.’” Rios v. Nicholson (Rios I), 490 F.3d 928, 930–31 (Fed. Cir. 2007) (quoting Rosenthal v. Walker, 111 U.S. 185, 193 (1884)). This presumption “is not a conclusive presumption of law, but a mere inference of fact, founded on the probability that the officers of the government will do their duty and the usual course of business.” Rosenthal, 111 U.S. at 193 (quoting Huntley v. Whittier, 105 Mass. 391, 392 (1870)). If evidence is presented that the letters were never received, the evidence “must be weighed with all the other circumstances of the case, by the [trier of fact] in determining the question whether the letters were actually received or not.”

Id. at *5.

The Federal Circuit then:

“Reject[ed] the Veterans Court’s rule that self-serving affidavits are per se insufficient to establish the presumption under the mailbox rule.  Indeed, it seems particularly inappropriate to apply an artificially rigid approach to the assessment of evidence on the factual question of mailing in the area of veterans’ benefits law given the absence of a statute commanding such a rule and the pro-claimant, nonadversarial nature of the statutory scheme created by Congress.”

Id. at *12.  The Court then stated:  “We note that the Government never challenged the credibility of the substance of Mr. Carpenter’s statement. Namely, the Government does not assert that the appeal Mr. Carpenter mailed was not properly addressed, stamped, and mailed in adequate time to reach its destination.”  Id. at *14.

This is an interesting case that uses the mailbox rule (usually applied to help the VA) to help a veteran.

Decision by Judge Stoll and joined in by Judges Dyk and Taranto.

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Lynch (Evidence in Equipose Examined by the Federal Circuit)

Lynch v. McDonough, Opinion Number 2020-2067, was decided June 3, 2021 by the Court of Appeals for the Federal Circuit and involves the benefit of the doubt rule and its application.

The benefit of the doubt is found in 38 USC 5107 and states:

The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant.

38 CFR Section 3.102 further explains:

When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt is meant one which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim.

The Veterans Court had found “the doctrine of reasonable doubt . . . d[oes] not apply here because the preponderance of the evidence is against the claim.”  The Veterans Court relied on Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001), which “held that “the benefit of the doubt rule is inapplicable when the preponderance of the evidence is found to be against the claimant.”  Id. at *5.

The veteran argued Ortiz was wrongly decided because it requires an equipoise of the evidence standard to trigger the benefit of the doubt and that the Court had read out the modifier “approximate” in the “approximate balance” standard.  Id. at *6.  The Court stated the veteran misread Ortiz and that

“Ortiz necessarily requires that the benefit-of-the-doubt rule may be triggered in situations other than equipoise of the evidence—specifically, situations where the evidence is “nearly equal,”1 i.e., an “approximate balance” of the positive and negative evidence as set forth in § 5107(b) and 38 C.F.R. § 3.102.” 

Id. at *7.  Instead, the Court explicitly stated:

So, let us be clear. Under § 5107(b) and Ortiz, a claimant is to receive the benefit of the doubt when there is an “approximate balance” of positive and negative evidence, which Ortiz interpreted as “nearly equal” evidence. This interpretation necessarily includes scenarios where the evidence is not in equipoise but nevertheless is in approximate balance. Put differently, if the positive and negative evidence is in approximate balance (which includes but is not limited to equipoise), the claimant receives the benefit of the doubt.

Id. at *8.

Judge Dyk wrote a concurrence and dissent stating that Ortiz’s preponderance of the evidence standard is inconsistent with 38 U.S.C. 5107.  He explained:

Because preponderant evidence may be found when the evidence tips only slightly against a veteran’s claim, that standard is inconsistent with the statute’s standard that the veteran wins when there is an “approximate balance” of evidence for and against a veteran’s claim. “Approximate” is not the same as “slight.” By reframing the statute’s standard in terms of preponderance of the evidence, Ortiz departed from the clear language of the statute to the disadvantage of the veteran. It is not difficult to imagine a range of cases in which the evidence is in approximate balance between the veteran and the government (and the veteran should recover), but still slightly favors the government (and under the majority’s test, the veteran would not recover).

 

Ortiz’s holding effectively and impermissibly restricts the benefit-of-the-doubt rule to cases in which there is close to an evidentiary tie, a proposition that the majority agrees would be contrary to the “approximate balance” language of the statute. See Maj. Op. 8. Indeed, the government appeared to agree at oral argument that when the evidence against a veteran’s claim is equal to “equipoise plus a mere peppercorn,” denying the benefit-of-the-doubt rule would be contrary to statute.

Id. at *12-13.

This is an interesting case in that it attempts explain the term approximate balance, but I think Judge Dyk is correct.  The attempt to explain only further muddies the definition.  However, I am not sure how much impact it will have as a good attorney will try to develop your case with lay and expert evidence that surpasses an approximate balance.

Decision by Judge Prost and joined in by Judge Clevenger.  Dissent by Judge Dyk.

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