Helmick: Accrued Benefits for Someone that Bore the Expense

Helmick v. McDonough, Opinion Number 19-5290, was decided May 25, 2021 and involves whether a someone can receive an accrued benefit following the death of someone entitled to benefits and what the term “bore the expense” in 38 U.S.C. Section 5121 means.

The Court explained:

Congress has provided in 38 U.S.C. § 5121 that certain persons may receive accrued benefits following the death of someone entitled to receive periodic monetary benefits from VA at the time of his or her death. No matter how we approach this appeal, whether the Board erred comes down to the meaning of the phrase "bore the expense" in section 5121(a)(6), a provision describing one category of persons entitled to such accrued benefits. That statutory section provides that "only so much of the accrued benefits may be paid as may be necessary to reimburse the person who bore the expense of last sickness and burial."3 If "bore" means "paid," as the Board assumed, then the Board did not err in denying appellant additional accrued benefits. That is so because it is undisputed that appellant did not pay his mother's medical expenses. Rather, he has always maintained, and as the Board acknowledged, he loaned her $15,000 so that she herself could use the money to pay her medical expenses. She did, but she died before she could repay the loan. But if, on the other hand, "bore" means something broader than "paid," then the Board erred. The Board would have applied the incorrect legal standard to the facts. We hold that, for purposes of section 5121(a)(6) and 38 C.F.R. § 3.1000(a)(5), "bore the expense" means something broader than "paid." That phrase includes, at a minimum, a loan under the circumstances we have here. The Board erred by employing too narrow an understanding of what entitles a person to accrued benefits under the law.

Id. at *1.

Decision by Judge Allen and joined in by Judges Toth and Laurer.

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Davis: Section 3.156(c), Scope of a Claim, and Harmless Error

Davis v. McDonough, Opinion Number 18-4371, was decided May 18, 2021 and involves 3.156(b) and submission of new and material evidence within the appeal period and the Court’s application of harmless error.

The Court explained:

Under 38 C.F.R. § 3.156(b), when new and material evidence is submitted within the appeal period following a VA decision on a claim, the evidence must be considered in connection with that claim.1 Caselaw says that, if VA fails to undertake that consideration, the claim remains pending until it does. Thus, when this rule is implicated, it can require the assignment of effective dates for benefits ultimately granted that are much earlier than would otherwise obtain.

Id. at *1.

However, as applied to this case, the Court determined that even if the Board erred, such error was harmless.  Specifically, the Court wrote:

The Board concluded that VA responded in May 2004 to the evidence submitted, and it is obvious from the record before us that this response constituted the consideration required by § 3.156(b). In other words, any mistake the Board later made in finding the evidence not new or material couldn't have prejudiced the veteran because he received precisely what he contends he was due: consideration of the evidence. Given this, the Court affirms the portion of the Board decision denying an earlier effective date under § 3.156(b).

Id. at *2.

The Court then stated it accepted:

for the sake of argument that Mr. Davis is right and the Board is wrong: that the 2003 statements permissibly clarified that what the veteran submitted in December 2001 was properly construed as a compensation claim for lupus with associated joint and psychiatric problems and not multiple compensation claims based on unrelated disabilities. We further assume, again without deciding, that the Board clearly erred in finding the 2003 statements not new and material.  But Board error does not automatically require setting aside a Board decision. When adjudicating appeals, this Court must "take due account of the rule of prejudicial error."

Id. at *7-8.  The Court then stated that if 3.156(b) applied, the RO had an obligation to consider the 2003 statements as having been filed in connection with the claim which was pending.  But, it then stated a May 2004 RO decision did precisely that.  While discussing the May 2004 RO decision, the Court concluded:

What is clear from the record is the result of its action: a merits decision on compensation for the disabilities identified in the 2003 statements, based on the theories raised in the 2003 statements (lupus arising in service, depression resulting from lupus), and in light of the information and evidence asserted in the 2003 statements.

Id. at *9.  At oral argument, the veteran’s counsel admitted a RO decision had been issued, but argued the only appropriate response was a SSOC.  However, the Court stated it “discern[ed] nothing in § 3.156(b) or the caselaw that would render an admittedly responsive VA consideration of new and material evidence a nullity based simply on the title of the document in which that consideration occurs.”  Id. at *9.

The Court then explained:

To be clear, a determination that VA fulfilled its duty under § 3.156(b) in the May 2004 RO decision says nothing about the correctness of the May 2004 RO decision. If Mr. Davis had appealed that decision, a higher tribunal might have found error in its assessment of the merits or a deficiency in its duty-to-assist obligations. But § 3.156(b) does not provide a remedy for those sorts of VA mistakes. Its purpose is to prevent VA from ignoring new and material evidence received before a claim's appeal period expires; it accomplishes this by keeping that claim pending until VA directly addresses such evidence. See Mitchell, 27 Vet.App. at 439. The May 2004 RO decision directly addressed the 2003 statements. For purposes of this appeal, that is what matters.

Id. at *10.

The Court did remand an issue related to Section 3.156(c).

C.J. Bartley dissented writing that the May 2004 RO decision did not adjudicate the claim for lupus with the understanding that in-service psychiatric symptoms were manifestations of lupus.  Id. at *13.  She thus concluded, “my disagreement is not with the merits of the 2004 RO decision, but with the fact that the RO did not address the evidence in the manner that § 3.156(b) requires.”

This is an interesting case that explores the intersection of 3.156(c), scope of a claim, and harmless error and I expect it to be appealed.

Decision by Judge Toth and joined in by Judge Falvey.  Dissent by C.J. Bartley.

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Wolfe: The ER expenses Class Action and Motions Practice Before the Court

Wolfe and Boerschinger v. McDonough, Opinion Number 18-6091, was decided May 13, 2021 and involves motion practice before the Court.

Substantively, the case deals with a class action related to veterans who have sought reimbursement for emergency medical expenses incurred in non-VA facilities.  The Court had certified the class and ordered corrective action in a September 2019 decision.  In December 2019 the Secretary filed a motion to stay the effect of the order, which was denied by the Court.  The decision was appealed to the Federal Circuit where it remains pending.

Now, the Secretary has filed a motion to the Court asking that the Secretary be authorized to suspend retroactive readjudications of the finally denied and unappealed class claims pending the outcome of the Federal Circuit appeal.  The Court ruled it did have jurisdiction to address the issue and has the inherent authority to grant the motion.  It then denied the Secretary’s motion.

As to jurisdiction, the Court noted

Because the Secretary has appealed the September 9, 2019, precedential order, it might appear at first glance that we lack jurisdiction to consider the Secretary's Motion. But we do not. The Secretary asks only to suspend his own action on some claims. He in no way asks us to exercise "control over those aspects of the case involved in the appeal" currently pending at the Federal Circuit. Therefore, addressing the Secretary's Motion poses no "danger" that both we and the Federal Circuit "would be simultaneously analyzing the same judgment," which generally is the reason why a filing of a notice of appeal functions as an event of jurisdictional significance.

Id. at *2-3.

The Court then determined it had authority to grant the motion.  It initially determined Rule 8 of the Court rules did not have the Court such authority.  Id. at *6-7. 

As to whether to grant the motion, the Court

looks to the "totality of the circumstances" and pays specific attention to the following factors: (1) The movant's likelihood of success on the merits of the appeal; (2) whether the movant will suffer irreparable harm in the absence of a suspension of action; (3) the impact of a suspension of action on the non-moving party; and (4) the public interest. The movant bears the burden of demonstrating that a suspension of action is warranted.

Id. at *7.  The Court then reviewed the factors an denied the motion.  Id. at *10-13.

Judge Falvey dissented principally focused on his belief that the underlying case was wrongly decided and his belief that new legal principals, even when applied retroactively, do not apply to cases already closed.  Id. at *13.

The Secretary’s motion is indicative of the VA foot dragging and unwillingness to concede when they are wrong.  I am glad the Court refused the motion.

Opinion by Judge Allen and joined by Judge Greenberg with a dissent by Judge Falvey.

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Rudisil: Motions Practice Before the Court, the Court's Inherent Authority

Rudisill v. McDonough, Opinion Number 16-4134, was decided May 7, 2021 and involves motion practice before the Court.

Substantively, the case dealt with the interplay of the Montgomery GI Bill (MGIB) and the Post-9/11 GI Bill Education program.  The Court had previously found veterans with two separate periods of qualifying service, may obtain the full benefits of both the MGIB and Post-9/11 GI Bill, subject to a 36-month cap on utilization of each of the two separate programs and a 48-month cap overall.   The Court also found a veteran with more than one period of separately qualifying service need not relinquish or exhaust entitlement under the MGIB program before receiving education benefits under the Post-9/11 GI Bill program.  Id. at *2.

The Secretary appealed the decision and requested the Veterans Court stay the effect of the decision until the Federal Circuit had ruled.  The Veterans Court denied the motion.  To this day the Federal Circuit appeal remains pending. 

Finally, the veteran filed a motion asking the Court to direct the BA to provide him his additional Post-9/11 GI Bill benefits pending final resolution of the case.  The Secretary urged denial and argued the Court did not have jurisdiction. 

The Court ruled it did have jurisdiction to address the issue and has the inherent authority to grant the motion.

As to jurisdiction, the Court noted “Because the Secretary has appealed the August 15, 2019, precedential decision, it might appear at first glance that we lack jurisdiction to consider appellant's Motion. But we do not. Appellant asks only for what we have already decided he is entitled to under statute.”  Id. at *3.

The Court elaborated:

Rather, here, we will do no more than comport with our clear precedent that "we retain jurisdiction over the enforcement of our decisions even after we no longer have jurisdiction over the merits of a case because it has been appealed to the Federal Circuit."12 Again, appellant moves only for what we have already decided he is entitled to under statute, pending the Federal Circuit's decision. In other words, he seeks to enforce our prior decision. His Motion does not change the merits questions currently pending the Federal Circuit's review. Therefore, despite the pendency of the Federal Circuit appeal, we conclude that we have jurisdiction to address appellant's Motion because it concerns the enforcement, not the merits, of our prior decision.

Id. at *3-4.

The Court then determined it had authority to grant the motion.  It initially determined Rule 8 of the Court rules did not have the Court such authority.  Id. at *4. 

As to its inherent authority, the Court noted its prior decision in Ribaudo v. Nicholson (Ribaudo I), 20 Vet. App. 552 (2007).  The Court then stated:

To determine whether we should grant appellant's motion for an injunction pending the Federal Circuit's decision, we consider four factors: (1) whether appellant is likely to succeed on the merits; (2) whether appellant is likely to suffer irreparable harm in the absence of injunctive relief; (3) whether the balance of equities tip in his favor; and (4) whether the injunction is in the public interest.

 

Id. at *7.  The Court noted the panel disagreed about the likelihood of success on the merits, but overall agreed the result was in favor of granting the motion.  The Court then ordered the Secretary to pay the veteran.

Chief Judge Bartley concurred and further addressed the likelihood of success on the merits.

This motion decision is indicative of the VA.  Even when a veteran wins and the Court says the effect of the decision is not stayed, the VA will still fight not to give what is due.  I am glad the Court intervened and granted the motion in this case.

Opinion by Judge Allen and joined by Judge Schoelen with a concurrence by C.J. Bartley.

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Grimes: What is Encompassed in a Claim

Grimes v. McDonough, Opinion Number 18-1017, was decided April 28, 2021 and involves what all is encompassed in a claim.

Specifically, the Court noted it referred the case to a panel to

address the interplay between VA's obligation under Clemons v. Shinseki, 23 Vet.App. 1 (2009), to broadly construe a claim consistent with a lay claimant's reasonable expectations and the general rule of Ephraim v. Brown, 82 F.3d 399 (Fed. Cir. 1996), vacating 5 Vet.App. 549 (1993), and Boggs v. Peake, 520 F.3d 1330 (Fed. Cir. 2008) that separately diagnosed conditions with distinct factual bases should ordinarily be treated as separate claims. We hold that these authorities are complementary and that, pursuant to Clemons, a claim for service connection may encompass a related condition that is initially referenced by the claimant but not diagnosed until later in the appeal stream, regardless of whether the claim is initially granted or denied by the RO.

Id. at *2.

The Court explained the veteran applied for loss of hearing, ear aches, sinus pressure, and tinnitus.  A month later he explained he was exposed to jet noise with minimal hearing protection and his "jaw and sinus and hearing [were] never the same" after an in-service wisdom tooth extraction where a military dentist hammered and broke one of his teeth with a chisel.  Id. at *2.  The VA granted hearing loss and tinnitus claims, but denied service connection for aches, sinus pressure.  Id. at *3.  The veteran filed a NOD and he had “sinus pressure and ear pain since service and asserted that he was entitled to service connection for "sinus pressure/ear pressure blockage/and headaches" related to his duties as an aircraft mechanic and the in-service dental surgery.”  Id. at *3.  Later, he explained he had been diagnosed with hyperacusis, abnormal or painful sensitiveness to noise.

Following a Board hearing, the veteran submitted a VA physician's opinion that the veteran's hearing loss was caused by in-service exposure to jet engine noise and that "his tinnitus and hyperacusis are the results or side effects of this damage." R. at 22. The Board then issued the decision currently on appeal, which denied a compensable evaluation for bilateral hearing loss; remanded for further development a claim for a sinus disability characterized by sinus pressure, headaches, earaches, and ear blockage related to in-service dental trauma and/or removal of an ear cyst; and referred for initial development and adjudication a claim for service connection for hyperacusis.

The Court framed the issue as:

whether the veteran's July 2011 claims and ensuing appeals included entitlement to disability compensation for hyperacusis. As relevant here, VA has a duty to "give a sympathetic reading to the veteran's filings by 'determin[ing] all potential claims raised by the evidence, applying all relevant laws and regulations.'" …. This includes "investigat[ing] the reasonably apparent and potential causes of the veteran's condition and theories of service connection that are reasonably raised by the record or raised by a sympathetic reading of the claimant's filing."

Id. at *5.

The Court explained:

Generally, "when a veteran has two diagnoses with separate factual bases, these diagnoses should be treated as two separate claims." Murphy v. Wilkie, 983 F.3d 1313, 1318 (Fed. Cir. 2020) (citing Boggs, 520 F.3d at 1336; see Ephraim, 82 F.3d at 401-02). However, a claim for service connection may be expanded beyond a veteran's lay description of a disability to include any disability "that may reasonably be encompassed by several factors including: the claimant's description of the claim; the symptoms the claimant describes; and the information the claimant submits or that the Secretary obtains in support of the claim." Clemons, 23 Vet.App. at 5. "[T]he claimant's intent in filing a claim is paramount to construing its breadth." Id. To effectuate that intent, "VA shall afford lenity to a veteran's filings that fail to enumerate precisely the disabilities included within the bounds of a claim," which "is best accomplished by looking to the veteran's reasonable expectations in filing the claim and the evidence developed in processing that claim." Murphy, 983 F.3d at 1318. "[T]he fact that the [claimant] may be wrong about the nature of his [or her] condition does not relieve the Secretary of his duty to properly adjudicate the claim."

Id. at *6.  Essentially the veteran argued the Board erred in referring the issue of hyperacusis as opposed to adjudicating it, because his claims were broad enough to encompass it. 

The Court agreed

that the Board erred in treating his request for compensation for hyperacusis as a jurisdictionally separate matter from his appealed bilateral hearing loss and sinus disability claims. When viewed sympathetically, the veteran's filings and actions since July 2011 regarding his hearing problems and "ear aches" related to in-service noise exposure and dental surgery reflect his intent to seek compensation for hyperacusis both as part of his original claims for service connection and the ensuing appeal of those claims.

Id. at *7.

The Court further explained:

When the foregoing filings and actions are sympathetically read in light of his later diagnosis of hyperacusis (i.e., painful, hypersensitive hearing), it is apparent that Mr. Grimes intended for his original claims to encompass hyperacusis, that he timely and consistently disagreed with VA's narrow construction of his claims and treatment of "ear aches" as a separate condition unrelated to his service-connected hearing problems, and that he intended his appeal to the Board to include entitlement to compensation for hyperacusis, either as part of the properly challenged evaluation for bilateral hearing loss or denial of service connection for "aches, sinus disability." See Murphy, 983 F.3d at 1318; Clemons, 23 Vet.App. at 5 (holding that VA "should construe a claim based on the reasonable expectations of the non-expert, self-represented claimant and the evidence developed in processing that claim"). Like the veteran in Clemons, Mr. Grimes "did not file a claim to receive benefits only for a particular diagnosis, but for the affliction his . . . condition . . . causes him"—in this case, hearing problems that included hyperacusis. 23 Vet.App. at 5. Consequently, the Court concludes that the Board clearly erred in finding that Mr. Grimes's initial claims and ensuing appeals did not encompass the issue of entitlement to compensation for hyperacusis.  And because that issue was properly before the Board in the decision currently on appeal, the Court also concludes that the Board erred in referring, rather than adjudicating or remanding, entitlement to compensation for hyperacusis.

Id. at *8-9.

This case demonstrates the attempts by the VA to improperly limit the scope of a claim and willingness to contest that constraint beyond the bounds of what would be expected.  The Court helpfully acknowledges that a veteran is seeking benefits not for a particular diagnosis but the affliction a condition causes.

Opinion by C.J. Bartley and joined by Judges Pietsch and Jaquith.

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Huerta: DC 5000 and Chronic Osteomyelitis (bone infection)

Huerta v. McDonough, Opinion Number 19-280, was decided April 27, 2021 involved an interpretation of DC 5000 which deals with osteomyeltitis (a bone infection).

The Court considered DC 5000, stating:

We start with the text of DC 5000, which compensates for osteomyelitis that is acute ("having a short and relatively severe course"), chronic ("persisting over a long period of time"), or subacute ("somewhat acute; between acute and chronic").  Five disability ratings are available under DC 5000: 100%, 60%, 30%, 20%, and 10%. And for each of the five ratings, DC 5000 provides the following rating criteria for "[o]steomyelitis, acute, subacute, and chronic,":

 

100%: "Of the pelvis, vertebrae, or extending into major joints, or with multiple localization or with long history of intractability and debility, anemia, amyloid liver changes, or other continuous constitutional symptoms."

60%: "Frequent episodes, with constitutional symptoms."

 

30%: "With definite involucrum or sequestrum, with or without discharging sinus."

 

20%: "With discharging sinus or other evidence of active infection within the past 5 years."

 

10%: "Inactive, following repeated episodes, without evidence of active infection in the past 5 years." 38 C.F.R. § 4.71a (emphasis added).

Id. at *5.   The Secretary argued the overall structure of DC 5000 employs a "graduated" scheme whereby osteomyelitis is rated based upon active or inactive status.  Id. at *5.  Under the Secretary’s reading,

all inactive cases are funneled into either the 10% or 20% rating criteria, with the difference between the 10% and 20% criteria hinging on how long it has been since the veteran last exhibited evidence of infection.

Id. at *5-6.  The Court focused on the plain meaning of the code and determined: 

The Secretary's proposed interpretation of DC 5000 is less convincing. The structure of DC 5000 yields no conclusive markers to show how the rating criteria for the various disability ratings stand in relation with each other. The Secretary posits that DC 5000 bears a "graduated" structure and so functions similarly to a "successive" rating, whereby the criteria for each rating are cumulative, incorporating the criteria of each lower rating. See Middleton v. Shinseki, 727 F.3d 1172, 1178 (Fed. Cir. 2013). In successive ratings, the evaluation of each higher rating includes the criteria of each lower such that "if a component is not met at any one level, the veteran could only be rated at the level that did not require the missing component." Tatum v. Shinseki, 23 Vet.App. 152, 156 (2009). The difficulty with this line of reasoning is that DC 5000 bears no indication of a successive or cumulative in nature, which it would have to have for the Secretary's interpretation to hold. It's not precisely clear what the Secretary means by "graduated," but the word suggests a structure in which higher ratings incorporate the criteria of lower ratings without formally requiring that to justify a higher rating a veteran must establish each criterion for lower ratings. However, DC 5000 includes no implied elements, and thus the Secretary's graduated-structure argument is critically flawed. DC 5000 would have to be successive in express terms for the requirement of active infection within a given period to apply beyond the 20% rating. Short of this, it's not clear how DC 8 5000 differs from any other DC where a veteran must do no more than present a disability picture that most nearly approximates a specific rating, even where a disability might not manifest all the criteria in that rating.

Id. at *7-8.

The Court then stated:

Ultimately, the Court finds the plain language for assigning a 100% disability rating under DC 5000 clear and unambiguous. Specifically, the plain language of DC 5000 establishes a diagnosis of chronic osteomyelitis of the pelvis as a sufficient basis to warrant a 100% rating. "[C]ourts must presume that a legislature says in a statute what it means and means in a statute what it says there." Conn. Nat'l Bank v. Germain, 503 U.S. 249, 253-54 (1992). This observation applies no less to administrative agencies and their regulations. To the extent that VA has fallen victim to its own inartful drafting, VA also has the wherewithal to revise the DC.

Id. at *8.

Judge Toth dissented and writing the plain meaning of the text argument of the majority was well-reasoned but focusing on the fact the code seemed to require an active disease process for a 100% criteria.   He explained: “I can't read DC 5000 as requiring a total rating based solely on a historic diagnosis of pelvic osteomyelitis without any present symptoms or functional impairments. This doesn't square with the basic principle in veterans law that higher ratings correspond to greater disability.”  Id. at *8.

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

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Mattox: AMA v. Legacy and the Related Notice Requirements

Mattox v. McDonough, Opinion Number 19-5212, was decided April 26, 2021 and involves a narrow question regarding whether a claim is subject to the Legacy appeal system or falls under the Appeals Modernization Act (AMA)..

In August 2017, Congress enacted the Veterans Appeals Improvement and Modernization Act of 2017 (AMA).  AMA amended and created some notice requirements and the question in this appeal was whether those notice requirements applied to an older, legacy claim.

The Court

h[e]ld that, under the plain language of the AMA read as a whole and VA's implementing regulations, the amended notice requirements in section 5104(b) do not apply to legacy appeals. And because appellant's administrative appeal is a legacy appeal, and he has not opted in to the AMA, the Board was under no obligation to comply with section 5104(b).

Id. at *2.

As background the veteran sought service connection for PTSD and submitted a DBQ completed by a private physician.  A VA examiner determined there was not PTSD, but just substance abuse disorders.  It did recognize his Vietnam related stressors.  The VA denied service connection.  The Board denied because the weight of the evidence does not show the veteran had PTSD.

First, the veteran’s counsel argued the Board failed to provide him proper notice pursuant to the AMA amended version of Section 5104(b), which requires

among other things, notice of favorable findings in "decisions by the Secretary." He asserts that though the statute was amended as part of the AMA, it applies to all decisions rendered after February 19, 2019, when the AMA went into effect, including "legacy" matters such as his appeal. Appellant further argues that this statutory provision applies to Board decisions, in addition to the decisions of ROs and other VA agencies of original jurisdiction.

Id. at *4.

Second, the veteran argued on the merits that the Board failed to consider whether he had engaged in combat and thus was entitled to a lower evidentiary standard and also falied to consider whether he should be provided special consideration for PTSD based on fear of hostile military or terrorist activity in service.  Id. at *4. 

As to the first, notice based argument, the Court found the veteran’s claim was a legacy appeal and was not subject to the AMA, therefore, the AMA notice requirements did not apply.  Id. at *6-7.   It explained:

although Congress created a new adjudicatory system in the AMA, it did not eliminate the then-existing system – the "legacy" system.34 Instead, Congress created a system in which some administrative appeals would be processed under the legacy system and others would be processed under the newly enacted AMA. 35 This concurrent system of adjudication is a centerpiece of Congress's design.

Id. at *7.

As to the second, merits based argument, the Court determined:

appellant's arguments concerning the merits of the Board's decision on appeal are unpersuasive. He has failed to show prejudicial error with respect to the Board's findings that he does not have a DSM-5 diagnosis of PTSD and that the VA examination of record was entitled to more probative weight than a DBQ from appellant's private doctor. Appellant also failed to relate his arguments about his in-service stressors and the combat presumption to the reason the Board denied his claim, namely a lack of a current diagnosis of PTSD.

Id. at *17-18.

Opinion by Judge Allen and joined by Judges Pietsch and Jaquith.

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