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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Van Dermark: Out of Country ER Tratement Reimbursement, Statutory Interpretation and the Use of Legislative History

Van Dermark v. McDonough, Opinion Number 19-2792, was decided June 1, 2021 and involves VA reimbursement for out of country emergency care.

The case concerned the interactions of 38 USC 1724, 1725, and 1728.  Section 1724 states “the Secretary shall not furnish hospital or domiciliary care or medical services outside any State.”  But, it creates exceptions for service connected disabilities or rehabilitations programs, gives discretion for non-citizen veterans in the Philippines and Canada for care and service for service connected disabilities, and creates an exception for outpatient clinics in the Philipines that are under the jurisdiction of the VA.  This statute was implemented through the Foreign Medical Program (FMP).

Section 1728 orders reimbursement for emergency treatment outside of the VA for service connected disabilities, a non-service connected disabilities associated with or aggravated by a service connected disability, any disability if the veteran has a permanent total disability, and any illness or injury required to continue a rehabilitation program.

Section 1725 discusses further emergency treatment reimbursement.

The veteran in this case lives in Thailand and has a schedular rating of 90% for issues not involving his heart, but has been granted TDIU.  To simply a complicated medical history, he had treatment for a cardiac event in Thailand and sought reimbursement under the FMP. 

On appeal, the veteran focused on the differences between the words furnish and reimburse in the statutes.  He contended furnish requires direct provision of healthcare whereas reimburse means payment of healthcare provided by another.  Id. at *6. 

The Court looked at the meaning of “furnish” and found just because it may bear a “narrow meaning … does not support giving it the same meaning elsewhere.”  Id. at *8. The Court determined:

But Congress "need not, and frequently does not, use the same term to mean precisely the same thing in two different statutes, even when the statutes are enacted at about the same time." Sec. Indus. Ass'n v. Bd. of Governors of Fed. Res. Sys., 468 U.S. 137, 174-75 (1984) (O'Connor, J., dissenting). And as noted above, the relevant portions of chapter 17 were not enacted at the same time but over the course of 50 years. The consistent-usage canon—which Mr. Van Dermark implicitly invokes when he consults the way "furnish" is used in VA's other healthcare statutes— "readily yields to context, especially when a statutory term is used throughout a statute and takes on distinct characters in distinct statutory provisions." Return Mail, Inc. v. U.S. Postal Serv., 139 S. Ct. 1853, 1863 (2019) (quotation marks omitted); see also id. at 1865 ("The consistent-usage canon breaks down where Congress uses the same word in a statute in multiple conflicting ways."). Because Congress has not defined "furnish" and has used it to mean distinct things throughout chapter 17, section 1724(a) itself provides the most important contextual clues to the scope of "furnish" in that provision. Several considerations persuade us that subsection (a) uses the term "furnish" in its broader sense of "provide for." Thus, the general ban on VA's furnishing medical services abroad also bars reimbursement for medical services, save for the exceptions specified in later subsections of 1724.

Id. at *9.  It then noted,

the historical evidence shows that, at the time that Congress permitted medical treatment for service-connected disabilities to be "furnished" to veterans abroad, VA had no healthcare infrastructure abroad to provide such treatment directly but would provide it as appropriate by paying for it. Thus, when Congress in 1940 affirmed the general bar on the furnishing of VA medical treatment to veterans outside the United States but permitted such treatment to be furnished for service-connected disabilities, it was using the word "furnish" in the indirect sense of the Agency arranging or paying for treatment provided by non-VA entities.

Id. at *11.

The Court summarized its ruling as stating:

the Court concludes that sections 1725 and 1728 permit reimbursement for veterans who receive emergency treatment from domestic, non-VA healthcare providers. In contrast, section 1724 covers when veterans abroad who receive medical care or services—including emergency treatment—may receive reimbursement. As relevant here, because Mr. Van Dermark was not seeking medical care in connection with a service-connected condition or as part of a rehab program, the Board properly determined that his May 2016 and May 2018 treatments at Bangkok Hospital for cardiac issues—even if qualifying as emergency treatment— could not, under section 1724, be reimbursed by VA.

Id. at *13.

Judge Greenberg dissented essentially arguing if the term was ambiguous it should have been read in favor of the veteran: “What the majority calls historical context to support a plain language finding could very easily be described as reviewing legislative history to uncover the meaning of an ambiguous term.”

This decision has limited impact in terms of its factual reach, but shows the Court’s willingness to look at legislative history.  Here, such a willingness assisted in propping up the Secretary’s interpretation narrow interpretation.  It should prod veteran advocates to make the same arguments in favor of pro-veteran interpretations.

Decision by Judge Toth and joined in by Judge Pietsch.  Dissent by the Judge Greenberg.

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Andrews: Board Obligations on Remand Post-AMA, i.e., no additional evidence

Andrews v. McDonough, Opinion Number 19-3227, was decided May 28, 2021 and involves what happens when a case is remanded from the Court to the Board.

The parties agreed a remand was necessary for the VA to provide a new examination and for the Board to provide an adequate reason or bases for its decision.  The veteran argued he had a right to have the Court direct the Board to expedite the proceedings, provide a hearing at the Board, and submit additional evidence to the Board.  Id. at *3.  The Secretary agreed the claim must be expedited, but argued the veteran cannot submit more evidence because this option is unavailable under the direct review docket that he selected when he appealed to the Board under the AMA.  At oral argument, counsel for the veteran informed the Court he did not plan to request a hearing so the only question before the Court was whether the veteran could submit more evidence on remand and what the Board must do in response to the evidence. 

The court noted: “At its core, this is a question about how Fletcher and Kutscherousky apply within the new process Congress created through the AMA.”  Id. at *4.  The Court then stated:

Merging these holdings, we have established a rule that requires the Board on remand to engage in a critical examination of the justification for the decision, “reexamine the evidence of record, seek any other evidence the Board feels is necessary, and issue a timely, well-supported decision in this case.” What’s more, the Board must allow a claimant 90 days to submit additional evidence and argument. The question before us is whether these holdings apply to cases adjudicated under the AMA.

Id. at *6.

The Court then discussed the AMA versus Legacy Systems.   The Court explained under the new-AMA system:

when claimants appeal to the Board, they must select one of three dockets. If they select the direct review docket, the record in the claim is limited to the evidence at the time of the AOJ decision. Claimants may change dockets within 1 year of the AOJ decision or within 60 days of when the Board receives the claimant’s NOD, whichever is later. With this overview of Fletcher and Kutscherousky, as well as a better understanding of the AMA and the legacy system, we are closer to explaining how our precedent about a claimant’s rights on remand applies in the AMA.

Id. at *8.  The Court then decided:

Thus, on remand his case will return to the direct review docket he selected. And Congress decided that, in the direct review docket, he will be unable to submit more evidence. The bottom line is that we may not instruct the Board to let Mr. Andrews submit more evidence.

Id. at *10.  The Court also rejected any argument that Court remands should be treated otherwise as the statute did not indicate such.  The Court then stated that

when VA enacted its regulations covering how a claimant may switch dockets, it did so with the knowledge that this Court would be remanding cases. VA explained that “remands require the Board to readjudicate the appeal based upon the same record previously before the Board; accordingly, such appeals would be placed on the same docket that the veteran was on previously.” The bottom line is, we see no reason, and have no authority, to override the text of the statute and the regulation.

Id. at *10.

The Court reasoned:

If we simply ordered that he be allowed to submit evidence on remand while in the direct review docket, we would flout Congress’s instruction that “the evidentiary record before the Board shall be limited to the evidence of record at the time of the decision of the [AOJ] on appeal.” And if we ordered VA to allow Mr. Andrews to pick a different docket on remand, we would have to ignore VA’s regulations that provide specific deadlines for those docket changes—deadlines that have already passed.In effect, we would be again making the Board a body that newly develops and adjudicates evidence rather than the appellate body that the AMA was meant to shore up. Mr. Andrews has not pointed to authority that would enable us to do any of this. True, he has argued that he has a Due Process right to submit additional evidence, but this argument is unconvincing and underdeveloped.

Id. at *10-11.

This is an important case that clarifies that after remand from the Court, the veteran has no right to submit additional evidence.  A small crack remains that a due process argument could sway the Court, however, it will be a hard argument to win.  It was a common practice for good attorneys to win a remand and present a medical opinion to the Board and hope for an early win at the Board.  It appears this has now been eliminated.  Still, this does not undermine the value of a Court appeal as it allows for correction of legal errors and further development by counsel while also preserving the ability to submit new evidence through a supplemental claim if the Board again denies the claim.

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

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