Romero: Presumption of Regularity in Mailing

Romero v. Wilkie, Case Number 19-3687, decided January 25, 2021 involves the presumption of regularity as it applies to VA mailings.  The case specifically deals with whether a Statement of the Case was sent to the veteran and his attorney.

"The presumption of regularity supports the official acts of public officers, and, in the absence of clear evidence to the contrary, courts presume that they have properly discharged their official duties.  The presumption of regularity reflects Federal courts' deference to the other branches of Government and efficiency concerns. But it is not a carte blanche. After all, the presumption of regularity is rebuttable.”  Id. at *1. 

The Court stated: 

We hold as a matter of law that in this case the existence of VA's legal duty to mail an SOC to a claimant's representative was enough for the presumption to attach, and no further evidence was required to trigger the presumption. Though the Board correctly determined that the presumption applied here, the Board erred in evaluating the sufficiency of appellant's rebuttal evidence. We also hold as a matter of law that in this case appellant rebutted the presumption based on the Board's favorable factual finding that she had produced substantial evidence of a widespread problem with VA not mailing correspondence plus CCK's statement of nonreceipt.

Id. at *2.

On remand, the Board was instructed to “make a new timeliness finding based on a correct understanding of the law.”  Id. at *2.  However, the Court “stress[ed] that we do not hold that VA's mailing practices are irregular as a broad, categorical matter.  Rather, we conclude that appellant in this case rebutted that presumption based on the evidence she submitted and the Board's factual determinations about that evidence.”  Id.

This deals with an August 16, 2017 SOC which denied several claims.  The Appellant asserted the SOC was never sent to the veteran’s attorney.  The SOC was discovered by the attorney while he was reviewing the online claims folder and the next day he notified the VA of the problem and argued the VA should not be entitled to a presumption of regularity and alleged ongoing problems with the VA’s mailing system.  Four days after discovery, the attorney submitted a Form 9.  This resulted in a letter finding the form untimely and then a NOD as to that determination.  A SOC affirmed the untimely determination and resulted in this appeal to the court. 

The appellant’s attorney submitted three documents: (1) a GAO report noting VA mailing issues, (2) a sworn affidavit from the attorney listing instances where the VA failed to mail him case specific documents, and (3) a sworn affidavit from the executive director of a veteran’s advocacy group (NOVA) discussing mailing failures.  The Board considered whether this information rebutted the presumption of regularity and stated despite the evidence of a widespread VA mailing problem, there is no clear evidence that VA did not mail the SOC.  Id. at *4-5.  The Board focused on the need for evidence specific to the veteran’s file as opposed to a general pattern b the VA. 

The Court began its analysis by stating: 

We hold as a matter of law that the presumption of regularity applied in this case, as the Board concluded. But we also hold as a matter of law that appellant rebutted the presumption by clear evidence consisting of the Board's favorable factual finding that the appellant had produced "substantial evidence . . . that reflects a widespread problem with VA not mailing correspondence," which we cannot review, plus CCK's statement of nonreceipt. Therefore, we will reverse the Board's conclusion that appellant did not rebut the presumption.

Id. at *10-11.

As a step one determination, the Court determines the presumption of regularity applies.  At step two, the Court looked at whether the presumption was rebutted.  It noted the standard of review is de novo.  It then stated: 

To be clear, the inquiry here is whether appellant has produced clear evidence sufficient to persuade us that we should not continue to presume that VA did its duty and instead should require VA to prove that it did its duty in this case. Though a statement of nonreceipt standing alone is not enough to rebut the presumption, a statement of

nonreceipt coupled with other evidence can be.  Other evidence can include, for example, "clear evidence to the effect that VA's 'regular' mailing practices are not regular or that they were not followed."

Id. at *15.

The Court noted the Board found substantial evidence that reflects a widespread problem with VA not mailing correspondence.  Id. at *15.  “And so, the Board's findings about VA's mailing practices lead us to hold that in this case appellant presented clear evidence sufficient to rebut the presumption that VA did its duty to mail CCK the SOC.”  Id. at *16.

The Court then notes:

The Secretary insists that we can review or should ignore the Board's statement ("substantial evidence . . . that reflects a widespread problem with VA not mailing correspondence") because the statement does not constitute a favorable factual finding. But it does.  And this Court is not permitted to review a "finding of material fact [favorable] to the claimant."

Id. at *16.

As to the Board’s ability to make a favorable finding and then rule against the veteran, the Court stated:

Whether the Board then ignored its own finding and appellant's rebuttal evidence entirely or gave them less weight is unclear from its analysis. Either way, its failure to appreciate the legal significance of its own factual finding arose because it understood this Court to have "consistently indicated that evidence that clearly rebuts the presumption should be specific to the facts of the case at hand."

 

***

There the Board erred because it misunderstood our caselaw. The law that the Board cited merely says what evidence is sufficient—not what is necessary—to rebut the presumption of regularity.

Id. at *17-18.

The Court then concluded that after the burden shifted to the Secretary to prove mailing, he did not carry his burden.  Id. at *20.  It noted: “this evidence speaks to the fact that the SOC was drafted and addressed, not to whether it was subsequently placed in the mail; in other words, the Secretary asks us to infer from evidence of drafting that the SOC was mailed to the appellant's counsel.”  Id. 

This case on one hand reaffirms the presumption of regularity as to mailing and tries to limit the holding, but also offers a blue print on how to attack such presumption. 

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

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Straw: “resided at Camp Lejeune”

Straw v. Wilkie, Case Number 18-7129, decided January June 26, 2020 involves the definition of “resided at Camp Lejeune” in order to qualify for healthcare benefits for family members of veterans.

38 USC 1710 provides that veteran’s who served at Camp Lejeune for 30 days from August 1, 1953 to December 31, 1987 are eligible for hospital care and medical services for specified illnesses and conditions.  Another provisions extends these benefits to service member family members “who resided at Camp Lejeune… for not fewer than 30 days… or were in utero during such period.” 

The appellant is the son of a veteran who served at Camp Lejeune.  In fact, the Appellant was born at the base hospital and stayed there from March 19-22 when he was discharged.  He then moved to a home off base.  Before the VA, there was argument that he was taken to the VA both in utero and after birth many times and should thus qualify.

The Court looked at the plain meaning of the statute as foreclosing his argument.  It then stated: 

Generously construing these contentions, the Court understands the appellant to be arguing that Congress's line drawing offends the equal protection component of the due process clause of the Fifth Amendment to the U.S. Constitution. See Bowers v. Shinseki, 26 Vet.App. 201, 208 n.11 (2013). Despite being able to discern such an argument from his briefs, however, we conclude that Mr. Straw hasn't demonstrated an equal protection violation. 

Id. at *6-7. 

The Court also explained: 

Mr. Straw's allegations of unfairness and arbitrariness are no doubt sincere, but they fail to show an equal protection violation under the demanding standard applicable here. Congress has the power "to legislate on the basis of such factual assumptions" as are involved under the Act, and general rules are "essential" if legislation like this "is to be administered with a modicum of efficiency, even though such rules inevitably produce seemingly arbitrary consequences in some individual cases."

Id. at *8.

This is a simple case of statutory interpretation.  It might lead to a hard result, but that ultimately must be taken up with Congress.

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

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Bria: Loss of Use Due to a Condom and Harmless Error

Bria v. Wilkie, Case Number 19-4625, decided January 15, 2021 involves xxx.

The veteran was initially denied service connection for hepatitis C, but ultimately granted in July 2013.  In October 2013, the veteran underwent an examination to determine the severity of his condition which resulted in a noncompensable rating.

The veteran argued records showed symptoms and this resulted in an ultimate grant of 10% effective May 2016.  The veteran sought a higher rating and also argued for a SMC based on loss of use of a creative organ.  Both were denied by the Board.

Regarding loss of use of a creative organ, the veteran argued he became infertile due to condom use.  The condom use is to help stop the spread of hepatitis C.  The Court determined that “the ability of the creative organ to function must be diminished in order to constitute a "loss of use of . . . [a] creative organ[]."  38 U.S.C. § 1114(k).  Therefore, the Board did not err in finding that a personal choice to use a condom, even when done with the intention of preventing the spread of disease, does not alone result in loss of use of a creative organ.”  Id. at *6.   As to these facts, the Court stated: 

Although the appellant appears to contend that use of a condom constitutes a change in his sexual "function," the essence of his argument is that SMC(k) may compensate a veteran for a change in behavior purportedly resulting from a service-connected disability….  However, from the above discussion, it is clear that Congress intended SMC(k) to compensate for, generally, physical or mental impairment resulting from a service-connected disability and, specifically with respect to loss of use, for the diminishment of the functional ability of a creative organ that is comparably as severe as

anatomical loss. In that regard, the appellant does not challenge the Board's findings that "there is no evidence[] that he suffers from erectile dysfunction . . . . , that he is unable to achieve an erection, or that he has been rendered infertile."

Id. at *9.

Regarding the Hepatitis C rating, the veteran argued the Board failed to provide adequate reasons and bases for its decision and the inadequacy of an examination.

The Court rejected the adequacy of the examination argument because it was raised for the first time to the Court and not previously to the Board.  As to reasons and bases, the Court mostly rejected the arguments on a harmless error analysis. 

This case demonstrates that the harmless error arguments made by the VA have found a receptive audience in Judge Meredith.  In the opinion, the Court notes “Missing from his argument, however, is reference to any evidence showing that the symptoms he points to are attributable to hepatitis C or, assuming such evidence exists, an explanation of how those symptoms satisfy the requirements for a higher disability rating.”  It seems a high barrier the Court erects to require an appellate advocate to show symptoms commonly associated with a condition are in fact attributable to it and show exactly how they justify a higher rating.   As for the condom use equals loss of use argument, I give the advocate credit for a creative argument, but understand the Court's conclusion.

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

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Bonner: The Limits of CUE

 Bonner v. Wilkie, Case Number 18-6927, decided January 13, 2021 involves whether a veteran a CUE claim for service connection for the cause of death.

This involves a veteran with service in WWII, Korea, and Vietnam.  He died in 1975 and the autopsy listed Hodgkin’s disease (a malignant lymphoma).  The veteran’s spouse filed for DIC due to his death being from cancer and was denied in 1976.

In 1995 she filed a claim with the DOJ under the Radiation Exposure Compensation Act due to her husband’s participation in atomic weapons testing.  DOJ sought a medical opinion from the NIH and explained the diagnosis may have simulated Hodgkin’s disease, it favored a non-Hodgkin’s Lymphoma (NHL) diagnosis.

As a result of the misdiagnosis, the spouse filed another claim for DIC, which was granted with an effective date corresponding to the second application date.  She filed a NOD and sought an effective date as the date of his death.  She ultimately was awarded an effective date of 1 year prior to the second application date.  She appealed seeking the date of death as the effective date but lost before the CAVC and Federal Circuit.

In 2008, she sought to revise the 1976 RO decision based on CUE.  She argued Section 3.313 should have applied retroactively and the evidence clearly showed his cause of death was misdiagnosed.  The RO found not CUE saying the 1976 decision was based on the records available and law at the time.  

The wife died and ultimately her son was substituted for the purposes of reimbursement.  The Board then affirmed the RO decision saying the 1976 decision was final and she had been properly notified of the decision.  The Board also stated that if the 1976 decision was not final it was subsumed by the 1995 RO grant and Board 2001 decision.  Additionally, the Board found no CUE saying Section 3.313 had not yet been promulgated and could not serve as a basis for CUE; any argument that Section 3.313 had been misapplied by the RO in 1995 failed because that decision was subsumed by the 2001 Board decision; and, no records in 1976 indicated death was caused by NHL.

Before the Court, the veteran argued: 

First, he argues that the Board erred when it determined that the February 1976 decision did not contain CUE because the RO impermissibly narrowed Mrs. Bonner's claim to exclude types of cancer other than Hodgkin's disease. Second, he maintains that the misdiagnosis of the cause of Admiral Bonner's death in 1975 constitutes CUE. Third, he contends that the February 1976 RO decision never became final and it is still pending under the Federal Circuit's decision in Ruel v. Wilkie. 23 Specifically, he asserts that Mrs. Bonner did not appeal the March 1976 RO decision because VA provided insufficient notice that it had denied her claim. In its March 1976 decision, the RO simply placed an "X" in the box labeled "disability or death not due to service" and crossed off the words "disability or." Essentially, he emphasizes that without providing any other information, the RO stated only: "death not due to service.

Finally, the appellant argues that Mrs. Bonner's claim asserting that Admiral Bonner's cause of death was "cancer" was incompletely adjudicated, because instead of addressing the claim for cancer broadly, the RO recharacterized her claim as one for only Hodgkin's disease, without explanation or notice.

Id. at *5-6.  

The Court began by focusing on the prior judicial decisions in this case.  In 2005, the Veterans Court the effective date provisions of Section 3.144(a) only allowed for a retroactive benefits of 1 year prior to the claim to reopen.  It also determined the claim for cancer did not include NHL because the evidence of record at the time of death did not reasonably raise claims related to another form of cancer.  It then noted the Federal Circuit in 2007 determined it lacked jurisdiction to address whether a claim for NHL was not supported by the evidence before the RO in 1976 and also the Veterans Court did not err when it determined the original claim was for Hodgkin’s disease. 

The Court then considered the finality of the 1976 decision and determined the claimant failed to show insufficient notice of the 1976 RO decision.  The Court also noted that even if there had been insufficient notice, that became moot when the RO granted the claim in 1995.

The Court then turned to the question of CUE.  The Court noted the only evidence in 1976 was of Hodgkin’s Disease and that Section 3.313 (making NHL presumptive) did not yet exist.  Therefore, “[b]ased on the evidence and the law as it existed at the time, we conclude that the Board's determination that there was no CUE in the February 1976 RO decision was not arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.”  Id. at *11.

The Court explained:

The Appellant’s arguments are based on evidence and law that did not exist at the time of the 1976 RO decision.  Even if § 3.313's retroactive effective date would permit an award of presumptive service connection for NHL back to 1976 for DIC purposes, the record before the RO in February 1976 did not contain evidence of a diagnosis of NHL, because Admiral Bonner was not diagnosed with the condition until 1995. And even if we somehow were free to ignore that point, evidence about Admiral Bonner's cause of death that was before the RO is not undebatable. It is well established that this type of evidence cannot form the basis of CUE.

Id.at *11-12.

Judge Greenberg dissented.  His dissent principally argues the Court’s precedents defining CUE are too narrow; “wrongly applied with a misplaced focus on protecting incorrect decisions rather than ensuring the just and correct result for the veteran.”  Id. at *12.  He also argued that the Court should exercise its equitable powers to ensure the veteran friendly system is justly administered.  

This case is a crushing example of how the lack of scientific and medical knowledge in 1976 led to a bad decision that cannot be corrected now through CUE.  It thus reveals how CUE does not adequately correct all injustices.  

Decision by Judge Allen and joined by Chief Judge Bartley.  Dissent by Judge Greenberg.

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Bailey: Secondary Conditions Reasonably Raised

Bailey v. Wilkie, Case Number 19-2661, decided January May 6, 2021 involves whether a veteran must file a formal claim for secondary service connection for residuals of prostate cancer when those residuals are reasonably raised during the claim.

The Court stated:

We hold that, under DC 7528, a single evaluation may be assigned for residuals of prostate cancer based only on voiding or renal dysfunction, whichever is predominant. Other residuals may be compensated under appropriate DCs not in § 4.115b if they are separately service connected as secondary to prostate cancer. We further hold that, pursuant to 38 C.F.R. § 3.155(d)(2), when entitlement to secondary service connection for non-voiding and non-renal residuals is raised while VA is evaluating service-connected prostate cancer, the claimant need not file a separate, formal claim for secondary service connection for those residuals. Instead, VA must consider those "complications" in connection with a properly initiated claim concerning the

prostate cancer evaluation.

 Id. at *2.

The veteran sought service connection for prostate cancer and given a totally disabling rating in August 2013.  During a September 2014 VA medical examination to access severity of the residuals, the examiner found remission but use of 5-6 absorbent pads per day.  The 100% rating was proposed to be reduced to 60%.  The veteran objected to the reduction and submitted a DBQ reflecting other residuals (frequent bowel movements, diarrhea and swelling of the feet).  The reduction was implemented nonetheless and a NOD was filed.  A new examination noted a need for future DBQ for rectum/anus exam and arteries/viens.  Subsequently, he filed a claim for service connection for TDIU due to prostate cancer and secondary leg swelling.

The Board affirmed the discontinuance of the 100% prostate residuals rating and denied a rating higher than 60% for the residuals.  The Board found the predominant residual was voiding dysfunction and under DC 7258 a 60% rating was warranted.  The Board noted the diarrhea and swelling claims allegedly due to radiation treatment, but stated "The rating schedule does not contemplate these symptoms/disabilities when evaluating the residuals of prostate cancer. In fact, the rating schedule is specific in that it directs renal and voiding dysfunctions to be rated, only."  Id. at *4.  Subsequently, the RO granted 10% ratings for swelling and granted TDIU with effective dates of January 2019.  The effective date was based on the fact these were not claimed prior to January 2019.

The Court began by considering DC 7528 and stating the opening sentence of the regulation  requires the rating to be by reference to the predominant (worse) voiding or renal dysfunction.  Id. at *7-8.

In sum, the meaning and scope of DC 7528 is clear from its text and structure, and that plain meaning is confirmed by its history and purpose. DC 7528 directs that evaluation of residuals of a malignant neoplasm of the genitourinary system be based solely on voiding or renal dysfunction, whichever is predominant; other non-voiding and non-renal dysfunctions do not factor into a schedular evaluation under that DC. As a result, entitlement to separate evaluations for non-voiding and non-renal dysfunctions related to prostate cancer cannot be considered part and parcel of a claim as to the proper evaluation level for prostate cancer residuals under DC 7528.

Id. at *9

But, the Court did not end the matter there.  Instead, it turned to the veteran’s argument that: “regardless of the scope of DC 7528, the Board was required to address entitlement to additional compensation for diarrhea and lower extremity lymphedema under other DCs because secondary service connection for those conditions was reasonably raised by the record during the course of his appeal before VA.”  Id. at *11.  The Court found leg swelling and diarrhea were reasonably raised by the record.  It then noted:

As explained above, the record reasonably raised the issues of entitlement to secondary

service connection for diarrhea and lower extremity lymphedema in March 2016—i.e., after the amendments to §§ 3.155 and 3.160 became effective in March 2015. It is undisputed that, prior to January 2019, Mr. Bailey had not filed a formal claim on the prescribed application form for those secondary conditions; however, it is also undisputed that he properly initiated a dispute as to VA's December 2015 reduction of his evaluation for prostate cancer residuals under DC 7528. Mr. Bailey therefore seeks to tie the secondary diarrhea and lymphedema claims to the properly initiated prostate cancer residuals claim, using § 3.155(d)(2) as the hook.

 

Section 3.155(d)(2) provides, in relevant part, that VA will

 

consider all lay and medical evidence of record in order to adjudicate entitlement to benefits for the claimed condition as well as entitlement to any additional benefits for complications of the claimed condition, including those identified by the rating criteria for that condition in 38 CFR Part 4, VA Schedule for Rating Disabilities.

 

38 C.F.R. § 3.155(d)(2).

 

Id. at *13.  The Court then defined “conclude[d] that the ordinary meaning of "complications" in § 3.155(d)(2) encompasses disabilities caused or aggravated by treatment for a service-connected disability.”  Id. at *14.   Ultimately “VA is obligated to develop and adjudicate claims for secondary service connection that are reasonably raised during the processing of a properly initiated claim as to the primary service-connected disability's evaluation level.”  Id. at *16.

The Court also explained of Sellers v. Wilkie, 965 F.3d 1328 (Fed. Cir. 2020) that it

reiterated that, although the 2015 amendments to §§ 3.155 and 3.160 "substantially revised the claim initiation process," they did "'not alter the VA's general practice of identifying and adjudicating issues and claims that logically relate to the claim pending before the VA'" and "generally would not preclude the VA from identifying, addressing, and adjudicating related matters that are reasonably raised by the evidence of record which the claimant may not have anticipated or claimed.'" Id. at 1337 (quoting VJG, 818 F.3d at 1356). As explained above, this includes reasonably raised claims for secondary service connection for disabilities due to treatment for an already service-connected disability.

Id. at *17.

Judge Pietsch wrote a concurrence to note “The Court's decision should not be read to suggest that every complication must be adjudicated as a claim for secondary entitlement or that every complication warrants additional compensation. Otherwise, Part 4 will be thrown into disarray, and such a rule may also cause the Court to infringe on the Secretary's exclusive responsibility to set rating criteria.”  Id. at *24.   She then wrote:

I am convinced by the plain regulatory language and parts of the Court's analysis that the

Secretary's assertion that § 3.310(a) benefits cannot fall under § 3.155(d)(2) is not correct and that lymphedema and diarrhea, in the context of this case, are "complications" of the appellant's prostate cancer. That is as far as I need to go to resolve this case. It is enough to say that the disorders that the appellant experienced are plainly "complications" of prostate cancer and then instruct the Board to "consider . . . entitlement to any additional benefits" for those disorders. The form of that consideration – and the implications that it has for ancillary issues like proper effective dates – is not a matter that I address at present.”  Id. at *25.

This case reaffirms that the VA must develop secondary conditions that are reasonably raised by the evidence.  It is a conclusion that at one time seemed uncontested by the VA, but seems to be more frequently a focus of concern.

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

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