Atilano: Board Hearings without the Veteran

Atilano v. Wilkie, Case Number 17-1428, decided November 3, 2022 handled a remand from the Federal Circuit regarding whether a Board hearing can be cancelled if the veteran is not in attendance even if the veteran’s representative and an expert witness are there.

As previously summarized, the veteran’s attorney requested a hearing before the Board's central office in Washington, D.C., to present testimony from a licensed psychologist and certified rehabilitation counselor. A hearing date was set but a motion to change the time was granted. 

On the day of the hearing, counsel and the certified rehabilitation counselor appeared at the Board's offices without the veteran.  The Board member declined to hold the hearing without the veteran stating that the claimant’s participation was legally required.  The record was held open for 60 additional days so the expert could submit a report in writing and counsel could do the same with respect to argument.  In her duly submitted written report, the expert opined the veteran was, by reason of his PTSD and in light of his educational and occupational history, unable to hold substantially gainful employment between 1995 and 2010.  She also stated that, if permitted to testify, she would have defended any challenged conclusions and answered any relevant questions asked by the Board member.

Counsel wrote that the veteran had been unable to attend the scheduled hearing because he was severely disabled and that he believed VA was required to hold the hearing despite the veteran's absence. Counsel further argued that the veteran was prejudiced by the Board member's actions because a written report was inferior to oral testimony.

The Court noted the issue on appeal is "whether an appellant must be present at his or her hearing in order for his or her legal representative to elicit sworn testimony from witnesses before the Board."  Id. at *6.

The Veteran’s Court originally reasoned

In short, the overall statutory structure of section 7107 confirms that an appellant exercising the right to a Board hearing must participate in that hearing. The appellant has the choice whether to do so by appearing personally in the presence of the Board member or by participating remotely via video conference or other electronic means, but there is no provision allowing an appellant to invoke the right to a hearing but decline to participate.

However, the decision was appealed to the Federal Circuit and remanded by that Court; however, the Federal Circuit did not clearly rule in favor of the veteran.  The Veteran’s Court concluded the Federal Circuit’s analysis was a wholesale repudiation of the Veteran’s Court’s prior analysis.  Essentially, the Veteran’s Court found the Federal Circuit held a claimant too disabled to attend a hearing could still invoke the right to a hearing. 

Judge Toth wrote a concurrence where he essentially wrote the Federal’s Circuits decision to remand a legal issue as opposed to just find in favor of the veteran was curious.  He reasoned:

But the freedom de novo review offers comes with a price: hard work. The reviewing court has the responsibility to engage directly with the statute, regulation, or law; decide the legal question; and show its own reasoning. It cannot merely point out a few errors in a lower court opinion, send the case back for a do-over, and call it a day. Instead, the common practice among federal appellate courts is to expend little bandwidth assessing whether a lower court erred on a particular point of statutory interpretation and instead take the matter on directly and analyze it as if no court had ever considered the matter before. See, e.g., George v. McDonough, 142 S. Ct. 1953 (2022); Gallegos v. Principi, 283 F.3d 1309 (Fed. Cir. 2002).

 

Which brings me to the rub of the matter: appellate courts remand matters to lower courts

when the lower tribunal has authority to perform some action the higher court cannot. So an appellate court can reverse a legal ruling and remand a matter for a lower tribunal to carry out ministerial tasks, or it can remand when there are unresolved issues and the lower tribunal possesses an authority (e.g., fact finding) that the higher court lacks. By contrast, when an appellate court has authority to resolve an issue fully, there's no basis to order a lower court to reconsider a ruling it has already made merely to suggest the ruling come out differently.

Id. at *7.

This case merely makes clear a very disabled veteran can ask for a hearing and not attend if other evidence is going to be put into the record.  It has a limited real world impact, but certainly the way it was handled by the Federal Circuit procedurally aggravated the Veterans Court.  I would only add that as an advocate before the Veterans Court, I would request that they also be more willing to make a decision in favor of a veteran rather than almost always remand.

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Freund and Mathewson: Illegally Closed Legacy Appeals and a Class Certification Rejected

Freund and Mathewson v. McDonough, Case Number 21-4168, decided October 20, 2022 concerned the VA’s wrongful closing out of legacy appeals to the Court and the request for a class action.  The Court acknowledged the VA had a problem illegally closing out legacy appeals, but refused to grant class certification.

After the passage of the AMA, the result was two appeals processes before the Board.  The first is the older or legacy cases.  The second are those from the AMA process.  This case involved legacy cases. 

In legacy cases, the VA responds to a notice of disagreement by issuing a statement of the case.  The SOC triggers a requirement that the veteran file a Form 9 usually within 60 days (though that date can be longer, 1 year after the mailing of the notification of the VA decision being appealed).  The VA system is automated and called VACOLS.  VACOLS automatically flags and closes all legacy appeals on the first day of the month following 65 days after the SOC was failed or following one year after the notice of the AOJ decision was mailed if the veteran has not submitted a Form 9.  The VA does not give notice that the appeal is closed out.

At issue, the veterans did submit a Form 9, but the case was still closed out due to the VACOLS automated closure function.  The Court stated:

“The problem is that it became clear during the course of these proceedings that VA knew that there were claimants whose claims had been erroneously closed through the use of the VACOLS sweeping function. VA maintained that this was not really a problem because as soon as VA learned of an erroneous closing, it would automatically reactivate the appeal at issue. But there did not appear to be any comprehensive plan for identifying such claimants, a problem magnified by the lack of notice of the closing in the first place. And, as we will discuss below, the Secretary came perilously close to misleading the Court by suggesting that he was engaged in proactive steps to address the problem such that it negated any need for the Court's intervention. That was clearly not so, but it took the Court's sustained efforts over many months of inquiries as to whether this action is moot to have the Secretary admit as much. To the Secretary's credit, and as we also describe below, after oral argument the Secretary informed the Court of plans to address the issue, suggesting that the Agency had finally begun to meaningfully grapple with the serious problem this action had brought to light. We trust the Secretary will continue to follow through with the plans he presented to the Court.”

Id. at *3.  Despite this finding, the Court dismissed the case!

The Court again noted that VACOLS did not capture or notice the timely Form 9 and automatically terminated an appeal without notice to the veteran.  The petitioners asked for a class certification of all similarly situated veterans (those whose legacy appeal was closed despite a timely Form 9). 

After oral argument of the case, the Court asked the VA to present more facts and in fact it turned out that “69.8% of 5,456 closed legacy appeals with which a Substantive Appeal was filed were improperly closed.”  Id. at *11.

The Court then determined it had jurisdiction over the case.  It then turned to mootness and standing.  As to mootness, the Court found the claims were moot because the VA had since the filing reactivated the appeals.  The Court also recognized the “inherently transitory” exception to mootness and noted

“we are bound by Godsey, which means that the inherently transitory exception to mootness could possibly allow us to reach the merits of the petition on a class basis if we could certify a class. And we will assume, without deciding, the class-claims here would qualify as ones that are inherently transitory. But we stress that petitioners can only benefit from this exception to mootness if the Court certifies a class. That is, if a class is not appropriate, an exception to mootness based on the existence of a class is irrelevant, but found it was not applicable because the certification of the class was not appropriate.”

Id. at *18.

As to the question of class certification, the Court denied for two reasons.

“The first proceeds on the basis that petitioners' proposed class definition includes an implicit requirement that a class member have been subject to the closure of an administrative appeal without notice. In that case, the Court concludes that the named petitioners are not members of the class they seek to represent and are therefore inadequate representatives of such a class. The second ground takes the class definition literally—meaning there is no requirement that class members have been subject to no-notice closure. Proceeding under that assumption, the Court concludes that petitioners have not met their burden to present common questions capable of class-wide resolution. Under either view of the class definition, certification is not appropriate.”

Id. at *19.

The Court ends by flippantly concluding that the Secretary has taken some action and it is “better late than never.”  Id. at *23

I find this decision inexplicable.  It denies in part because the named parties represent people who could not be in the class because they ultimately discovered the appeals had been wrongfully closed.  This seems to require the identification of a class representative that cannot exist.  This case will be appealed to the Federal Circuit; meanwhile it is clear the Veteran’s Court both recognizes “the Secretary came perilously close to misleading the Court” and yet remains unwilling to do anything about it or illegally closed cases.

Meanwhile, if you have a legacy appeal to the Board and are still waiting, you should find out if it was illegally closed by VACOLS.  The Secretary will correct it, but only if you mention it to them.

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

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Smith: Substitution Before the Court

Smith v. McDonough, Case Number 18-4730, decided October 17, 2022 is an order of the Court denying substitution and dismissing the case.

The appeal was from a Board decision denying the veteran specially adapted housing (SAH) benefits.  Unfortunately, the veteran died after the case was appealed, but before it was briefed.  His adult daughter filed a motion to be substituted in the veteran’s place, but the court denied the motion.

The veteran was prescribed pool therapy by the VA and used a VA pool until it became unavailable.  He sought VA funding for the pool, but ultimately he built his own pool, taking out a mortgage to finance it.  He then filed the claim seeking reimbursement of the costs. 

As a result of the veterans death during the case, an adult daughter sought to substitute into the case.  The Secretary argued the Board decision should be vacated and the appeal dismissed because the adult daughter was an eligible accrued-benefits claimant.  The Secretary argued before someone can be substituted into an appeal, the VA must determine the person is eligible as an accrued benefits claimant under Section 5121 and the relevant caselaw only allows substitution for accrued benefits, not for non-accrued benefits.

The daughter never actually filed an accrued-benefits application with the VA, but maintained she was an eligible accrued benefits recipient and could be substituted.  The daughter argued three reasons why she should be substituted. 

“First, she asserts that she can be substituted under the Court's substitution doctrine as explained in Breedlove.  She claims that 38 U.S.C. § 5121A, which informed the Court's decision in Breedlove, allows substitution in "a claim for any benefit under a law administered by the Secretary," 38 U.S.C. § 5121A (emphasis added), if the substitute-claimant is eligible to receive accrued benefits under 38 U.S.C. § 5121.  And she argues that she is eligible to receive accrued benefits under section 5121 because she bore the expenses of Mr. Smith's last sickness and burial.”  Id. at *3.

“Second, Ms. Hicks argues that she can be substituted for Mr. Smith through nunc pro tunc relief under the body of law that we routinely applied before we decided Breedlove. She notes that, although parties rarely seek nunc pro tunc relief instead of substitution under Breedlove and section 5121A, Breedlove did not overrule the prior body of law, and we have not held that substitution is unavailable in claims for one-time benefits.  She asserts that she satisfies the pre-Breedlove test for nunc proc relief and that this is a proper basis for the Court to substitute her as appellant.”  Id. at *3-4.

“Third, Ms. Hicks contends that she can be substituted under Rule 43(a)(2) of the Court's Rules of Practice and Procedure because she is the personal representative of Mr. Smith's estate.  She notes that Rule 43(a)(2) allows substitution by "'the personal representative of the deceased party's estate [. . .] to the extent permitted by law'" and asserts that she is permitted by law to substitute because of her standing as a person who would receive part of any benefits awarded to Mr. Smith's estate.  Once she is substituted as the personal representative of Mr. Smith's estate, Ms. Hicks contends, the estate can, under 38 C.F.R. § 36.4406(c), receive reimbursement of any undisbursed SAH benefits.”  Id. at *4.

The Secretary argued “substitution under section 5121A and Breedlove applies only to periodic benefits and that SAH is a nonperiodic benefit. Thus, he asserts, substitution is not warranted here regardless of Ms. Hicks's eligibility as an accrued benefits claimant. What's more, the Secretary argues, Ms. Hicks never applied for a VA determination of her eligibility as an accrued benefits claimant. Because of this, the Secretary argues, Ms. Hicks does not qualify to be substituted. The Secretary also argues that nunc pro tunc relief is unavailable to Ms. Hicks because she lacks standing.”  Id. at *4-5.

The Court noted the burden is on the party seeking substitution and then found that the adult child failed to show she is an eligible accrued benefits claimant under Section 5121, which is a prerequisite for substitution under Breedlove.  Id. at *5.

The Court determined that substitution under Breedlove requires a moving party to apply for a VA determination of eligibility as an accrued-benefits claimant by submitting the application to the VA. 

The Court also rejected the application of nunc pro tunc case law to cases involving death prior briefing. 

Finally, the Court also rejected the use of its own Rule 43 as a source of substitution as it determined it was simply the procedural mechanism for substitution and not the underlying substantive law allowing for substitution. 

Judge Greenberg wrote a compelling dissent in which it was clear that he considered the adult daughter as eligible to be substituted because she bore the expenses of her father’s last sickness.  He pointed out that Breedlove did not require a claimant to file an application for accrued benefits within one year of death in order to be substituted.  He wrote “The Court should have clarified today that, under Breedlove, claimants had one year to file a motion to substitute with the Court and that nothing has to be filed with VA. This would have been consistent with Breedlove's holding that 38 U.S.C. § 5121A does not apply to the Court.”  Id. at *9-10.

While limited to only the question of substitution and a narrow reading of 5121A and Breedlove, Judge Greenberg gets it right.  Meanwhile, the Court’s decision requiring an application for accrued benefits conflates the idea of substitution and an application for accrued benefits, and lends support to the VA’s policy of trying to discourage (or even ignore) substitution requests in an attempt to force every claimant into an accrued benefits application—which is more restrictive as it gives away the right to submit never evidence.  The Court’s decision also fundamentally ignores that the VA’s lengthy claims process and high track record of getting it wrong simply means that many veteran, especially those not survived by a spouse, will die before the denial is meaningfully adjudicated.  The result is the VA can truly deny until a veteran dies.  This decision only reinforces that cynical conclusion.

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Bonds: Scope of a Claim versus Scope of a Pleading

Bonds v. McDonough, Case Number 20-4899, decided October 5, 2022 discusses the effective date for a disability claim that was originally filed as an Section 1151 claim.

Section 1151 basically creates a VA disability compensation option for VA medical malpractice.  It provides compensation for “additional disability resulting from VA medical treatment.” 

In this case, the veteran had filed a Section 1151 claim in September 2013, but also filed a later disability claim.  When the later disability claim was granted with a later effective date, he sought the effective date of the Section 1151 claim (September 2013).  The Board denied and the Secretary argued “an impenetrable barrier separates 1151 claims from service-connection claims brought under 38 U.S.C. §§ 1110 and 1131, such that the former can never encompass the latter.”  The veteran argued that Delisio applied (where a claim for a disability can encompass a claim for the causal condition of that disability).

The Court avoided the Secretary’s question by noting it did not answer the question of whether the veteran had presented an informal claim for diabetes (the court noted VA regulations in March 2015 created standardized forms and ended the concept of informal claims).  The Court stated: “Properly framed, the question here does not turn on the scope of a claim—that is, whether Mr. Bonds's claim under section 1151 can be read to incorporate a claim for service connection for diabetes—but assesses whether the September 2013 filing presents an informal claim for service connection for diabetes that is distinct from any claim under section 1151.”

The Court noted the Board had not made factual findings on this matter, declined to do so in the first instance and remanded the case.

The Court also referenced Shea and Sellers and noted the Federal Circuit had created markers for determining whether a pro se filing sufficiently identified the benefit sought.  The Court noted “Eschewing strict formalism, the Federal Circuit applied a "flexible standard" in which a claimant can identify a benefit sought by using "language that points to records mentioning such a condition in a way that, sympathetically read, is properly understood as seeking benefits for such a condition." Using this flexible standard, the Federal Circuit held that, "where a claimant's filings refer to specific medical records, and those records contain a reasonably ascertainable diagnosis of a disability, the claimant has raised an informal claim for that disability."  Id. at *6-7.

However, the Court also noted the limitations of Shea found in Sellers, which “requires a measure of specificity between the claim-stating document and the condition identified in the medical records such that generalized statements of intent to receive "all possible benefits" fall short of identifying the benefit sought as including conditions noted in a claimant's medical records.”  Id. at *7.

Related to the case at hand, “the Board limited its analysis to noting that 1151 claims are distinct from service connection claims without considering whether Mr. Bonds's 2013 filing raised an informal claim for service connection for diabetes in addition to his expressly raised 1151 claim. Although the Board acknowledged that the appellant "did identify as a diabetic" in that 2013 filing, R. at 12, the Board did not discuss whether that reference alone or in conjunction with the medical records identified in that document could constitute an informal claim.” Id. at *8.

The Court also limited its holding by stating:

“To be clear, our holding is a narrow one. We take no position on the Board's assertion that Anderson and prior caselaw stand for the proposition that an 1151 claim cannot encompass an 1110 claim. Indeed, Anderson does not factor in determining whether Mr. Bonds filed a separate, informal claim for service connection for diabetes. Nor do we address whether an 1151 claim can encompass a service-connection claim based on the causal-chain rule in DeLisio. We hold only that VA must determine the total number and type of claims raised in a claim-stating document and referenced evidence before addressing the scope of each individually raised claim. Moreover, even if a claim-stating document only explicitly identifies one claim, VA must search that document liberally for other less explicitly stated claims.”

Judge Toth wrote a concurring clarifying he believed an express explanation of the difference between the scope of a pleading and scope of a claim was important.  “I join the panel opinion in full and write separately only to highlight a somewhat obvious point—that the scope of a claim includes the pleadings but also extends to cover matters identified through evidence obtained over the development of the claim.”  Id. at *10.

He noted case law makes clear that assessing the scope of a pleading “centers on the language of the pleading and extends to various medical records to which the pleadings refer. Shea, 926 F.3d at 1369. Significantly, matters obtained during discovery generally do not factor in assessing the scope of a pleading.”  Id. at *10.  However, assessing the scope of a claim one the duty to assist attaches is different.  “In these cases, the scope of the claim includes not only issues raised in the pleadings but also the entire evidentiary record as the case develops over time.”  Id. at *10.  Judge Toth then explained:

“Assessing the scope of a pleading is thus an antecedent consideration to evaluating whether the Secretary complied with the duty to assist in developing a claim or whether the Board failed to address an issue reasonably raised by the evidence of record. DeLisio tracks this sequence neatly: its central holding is that a pending claim for a specific disability can encompass a claim for the causal condition of that disability where the evidence developed during the case shows a connection to service for the causal disability. 25 Vet.App. at 53. In these cases, the fact that the claimant failed to plead the causal condition does not defeat the possibility of compensation for it as the scope of the claim expands to "reasonably encompass" the causal disability such that "no additional filing is necessary to initiate a claim for benefits for the causal disease or disability."

Id. at *11.

This case is an example of the Court refusing to making a decision, but overall I appreciate Judge Toth’s explanation or distinction between the scope of the pleadings and scope of the claim.

Per Curiam decision (Judges Allen, Meredith and Toth).  Concurrence by the Judge Toth.

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Stevenson: Unhealed Wounds and Section 1151

Stevenson v. McDonough, Case Number 20-4870, decided October 4, 2022 discusses an unhealed wound and the availability of a Section 1151 claim.

Section 1151 basically creates a VA disability compensation option for VA medical malpractice.  It provides compensation for “additional disability resulting from VA medical treatment.”  The question in this case was whether additional disability requires persistence of a disability for a particular time period.  The court determined “that under section 1151 "additional disability" need not persist for any particular time period, and that additional disability that resolves during the pendency of a claim for section 1151 benefits does not foreclose entitlement to section 1151 compensation so long as the other requirements for entitlement under that section are met.”  Id. at *2.

The veteran developed acute gall bladder inflammation and underwent an emergency gall bladder removal.  The veteran developed pain at the incision site.  The painful scar was treated with trigger point injections and ablation.  The wound ultimately reopened and developed MRSA.

The veteran filed a Section 1151 claim and during the course of the claim the wound healed with treatment.  The VA acknowledged a reopened wound was a known complication especially in a veteran with diabetes.  The veteran essentially sought compensation for the period the wound was open and as it required home health nursing care and pain and suffering.  The RO and Board determined there was no additional disability and essentially relied on the fact the wound did heal with time.

The Court focused on the plain meaning of the term “additional disability” and determined “the plain meaning of "additional disability" as used in section 1151 is "more" or "added" "functional impairment in earning capacity." No language in section 1151 pertains to the duration of the "more" or "added" functional impairment in earning capacity.”  Id. at *8.  As a result, the Court remanded the claim for further development as the Board erred in failing to consider the open wound as demonstrating additional disability under section 1151 during the pendency of the claim.

This decision is a helpful expansion of the understanding of a Section 1151 claim.

Decision by Chief Judge Bartley and joined in by Judges Toth and Laurer.

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NOVA: Hudgens and Partial Knee Replacements Continued

NOVA v. Secretary, Case Number 2020-1321, decided September 20, 2022 is a Federal Circuit case that discusses the VA’s attempt to change the knee replacements diagnostic code to exclude partial knee replacements. 

This is a case I am well acquainted with as I was the attorney who argued and won the underlying case of Hudgens v. McDonald, 823 F.3d 630 (Fed. Cir. 2016), which found that the veteran’s partial knee replacement qualified for a higher rating under Diagnostic Code 5055.

Hudgens argued that Diagnostic Code 5055 applied to both partial and total knee replacements and guaranteed a minimum 30% rating.  The VA argued it only applied to total knee replacements and went so far as to publish a new rule or guidance limiting the code to total knee replacements while the case was pending.  The Federal Circuit agreed with my arguments that Diagnostic Code 5055 was at a minimum ambiguous and that any ambiguity should be read in favor of the veteran and that no deference was owed to the VA’s own interpretation.  The result was a win for Mr. Hudgens.  However, the VA used the rule or guidance it had issued during Hudgens to deny future cases.

This case involved a challenge to that rule or guidance.  In this case, the Court determined the VA’s rule or guidance excluding partial knee replacements from Diagnostic Code 5055 was arbitrary and capricious and that Hudgens was controlling as to the interpretation.  The Secretary essentially argued the Court was not bound by Hudgens because the VA had issued the rule or guidance, which clarified Diagnostic Code 5055.  The Court determined: 

We reject this circular argument. We are evaluating whether the Guidance constitutes a valid interpretation of DC 5055. The Guidance itself inserted the explanatory note into DC 5055. J.A. 1–3. The Secretary would have us hold that the Guidance articulates the only reasonable reading of DC 5055 because the Guidance itself says so.  See generally Resp’t’s Br. 29–31. That cannot be correct. Indeed, the Secretary’s argument contravenes a basic tenet of administrative law. Agencies must “use the same procedures when they amend or repeal a rule as they used to issue the rule in the first instance.” Perez v. Mortg. Bankers Ass’n, 575 U.S. 92, 101 (2015); see 5 U.S.C. § 551(5).  The VA promulgated DC 5055 following notice-and-comment rulemaking procedures in 1978. Updating the Schedule for Rating Disabilities, 43 Fed. Reg. 45,348, 45,348–50 (Oct. 2, 1978). Therefore, the Secretary cannot have amended DC 5055 without going through notice-and-comment.

Id. at *9.

While a vindication of my arguments in Hudgens and subsequent cases where I obtained a Diagnostic Code 5055 rating for veteran’s with partial knee replacements, the case also helpfully addresses the pro-veteran canon.  The pro-veteran canon states that interpretative doubt must be resolved in favor of the veteran.  The Court confirmed the holding in Hudgens, that “[e]ven if the government’s asserted interpretation of DC 5055 is plausible, it would be appropriate under [the pro-veteran canon] only if the [regulatory] language unambiguously supported the government’s interpretation.” Id. at *15.

This is a total vindication of Hudgens and should prompt any veteran who has had a partial knee replacement to seek a rating under Diagnostic Code 5055, which guarantees a minimum 30% rating.  If you are one of these veterans, please consider seeking help now.  You may call me at 803-748-1292.

Decision by Judge Prost and Newman with dissent by Judge Cunningham.

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Love: Writs to Stop a Reduction

Love v. McDonough, Opinion Number 21-1323, was decided June 23, 2022 and involved a writ of mandamus filed to stop a reduction from going into place.

The veteran had a 100% rating for prostate cancer discontinued and replaced with a 20%  rating for prostate cancer residuals.  The writ was based on a reading of the law that discontinuance of a rating could not implemented until all appeals had been exhausted.

The Board began by saying its jurisdiction begins with a final Board decision under 38 USC 7252.  Because this does not involve a Board decision, the only other source of authority is the All Writs Act (AWA).  The AWA provides that "all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law." 28 U.S.C. § 1651(a).

The appellant made a technical argument that the Secretary’s action forecloses the possibility of an overpayment and subsequently a claim related to waiver of overpayment.  However, the Court concluded that the statute and regulations do not establish a right to an overpayment that would trigger the use of the AWA.

The Court then “noted, this Court's authority under the AWA must be in aid of its jurisdiction; it cannot expand that jurisdiction.  And our jurisdiction is limited to review of final Board decisions. Thus, our authority to issue a writ under the AWA must help remove obstacles to the ordinary process for review of veterans benefits decisions.” (internal citations omitted).

The Court ultimately found “Mr. Love has not shown that the Secretary's preclusion of the possibility of overpayment presents an obstacle to this Court's future jurisdiction, nor any other basis on which we could issue a writ under the AWA in aid of our jurisdiction. Without authority under the AWA, there is no need to turn to section 7261 to determine our scope of action. We also find that there is no separate jurisdiction under section 7252(c) allowing the Court to act in aid of the Federal Circuit's potential jurisdiction. There are thus no jurisdictional grounds for this Court to compel the Secretary to restore payments to the pre-discontinuance amount pending completion of Mr. Love's appeal.”

Per Curium decision by Judges Meredith, Falvey and Laurer.

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Wells: Expeditious Payment of Attorney Fees

Wells v. McDonough, Opinion Number 20-5221, was decided June 23, 2022 and involved a writ of mandamus related to payment of attorney fees.

The VA system allows for attorney fees and one method of payment is for the attorney to limit their fee to 20% of the past due benefits and then be paid by the VA directly.  After a fee decision is made the VA then waits 60 days to ensure the veteran has not challenged the fee and then is supposed to release it.  The truth is the VA frequently takes months beyond the 60 days to pay attorneys.  This delay can be incredibly detrimental to attorneys who are in fact small businesses and need to generate cash flow to operate and continue to represent other attorneys.  The lack of transparency in when and how to communicate to ensure payment of the fee is problematic.

Mr. Wells is an attorney who was fed up with the delays and asked the Court to order the VA to expeditiously pay outstanding attorney fees and order the Secretary to allow for waiver of the 60 days by the veteran.  The writ was denied.

Crucial to the case, Attorney Wells complained of 10 cases where fees were owed.  As a result of the writ, the Secretary quickly paid 9 of those claims and had instructed the finance department to pay the other fee.  The Secretary essentially tried to moot out the petition. 

The Court determined the issue was not moot after the attorney pointed to additional claims where fees were only paid after a long time.  However, the Court decided the 60 day delay is required by the law. As to undue delay, the Court essentially found the delays allowed because they “apparently result from the agency's efforts to balance its obligations to preserve veterans' appellate rights and to ensure timely payment of representatives.”

The case demonstrates the Court’s extreme solicitude toward the VA and the difficulty of sustaining a veteran’s benefits centered law practice.  While it might seem like attorneys looking out for themselves, the reality is that the number of attorneys who will assist veterans is directly related to the ability to make a living.  The failure to pay attorneys in a timely manner jeopardizes representation. 

Per Curium decision by Chief Judge Bartley and Judges Greenberg and Jaquith.

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Frantzis: Board Hearing Before the Person to Decide the Case

Frantzis v. McDonough, Case Number 20-5236, decided June 21, 2022 discusses whether under the AMA a veteran is entitled to a Board hearing before the Board member who will ultimately decide their appeal.

The Court answered the question thus:

“The Court holds that nothing in the AMA or its implementing regulations mandates that the Board member conducting a claimant's Board hearing must ultimately decide the appeal. While there was such a requirement in place under the Legacy Appeals System, when Congress enacted the AMA as the successor to the Legacy Appeals System, Congress removed the statutory language that required the same Board member who conducted a hearing to also participate in the appeal's final determination. Additionally, there is nothing in VA's implementing regulations that creates the purported right appellant seeks to have the Court vindicate. Given that nothing in the relevant statutes or regulations dictates that the Board member who presides at a hearing must render the Board's decision, appellant can only prevail if some other principle (such as the fair process doctrine) imposes that requirement. But we decline to consider whether there is such an extrastatutory or extraregulatory source of the supposed requirement that appellant advances because he did not make such an argument until well into the appeal.”

Thus, it appears the AMA does not require a hearing before the Board member who will make a decision, but that other constitutional concerns, specially the fair process doctrine might require, but the Court refused to consider those issues unless they are initially briefed.

Judge Jaquith wrote a dissent arguing the fair process doctrine generally requires the Board member who holds the hearing to decide the case.  He wrote: “Changing Board members post-hearing—such that the decisionmaker is "assessing credibility based on a second-hand conveyance or a review of a transcript—undermines the claimant's ability to personally impress his credibility upon his factfinder[]." Moreover, "the right to a hearing as a conduit for conveying one's credibility could be rendered meaningless" if the credibility determination is made by a Board member who did not participate in the veteran's hearing. Mr. Frantzis has a "right to be afforded the opportunity to be heard by [the Board member] assigned to adjudicate his appeal."

This decision is shocking and I expect to be appealed to the Federal Circuit.

Decision by Judge Allen and joined in by Judge Falvey.  Dissent by Judge Jaquith.

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Newman: AWOL and Insanity

Newman v. McDonough, Case Number 20-7299, decided June 16, 2022 discusses the insanity exception to the AWOL bar to VA benefits.

Veterans are barred from service connected disability compensation if they were discharged because they were AWOL for extended period.  However, an exception exists for veterans who are deemed by the VA insane a the time of the offense leading to the discharge.  This case involves the standard the Board must use when determining whether a veteran qualifies for the insanity exception.

The Court noted the shift over the years in these type cases.  Initially a veteran had to prove by a preponderance of the evidence veteran status.  However, more recent case law suggested this might not be correct.  The Court then held: “the benefit of the doubt standard governs in all cases1 where VA must determine whether a claimant possesses veteran status. This is so because to find otherwise would create different standards for different claimants.”

After establishing the proper standard, the Court noted the “VA has a very different system for characterizing discharge from DoD. Significantly, VA recognizes only two categories of discharge—dishonorable and other than dishonorable—when determining eligibility for VA benefits.”  It also noted DoD determinations of COD are not binding on the VA unless the discharge is honorable. 

In the case at hand, the Court remanded for the proper standard to be applied and a proper explanation of a grant or denial be given to the claimant.

Per Curiam decision by Judges Greenberg, Toth and Falvey.

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Clark: Waiver of Duty to Assist and Court Appeals of Board Remands

Clark v. McDonough, Case Number 21-1124, decided June 15, 2022 discusses the ability to waive the duty to assist and whether a veteran can appeal to the Court a Board remand.

The case involved a Board decision that rejected the veteran’s motion to waive her rights to further development of her case under the duty to assist and remanded the case for more development.  The Secretary moved to dismiss and the Court granted.  The veteran argued the Court did have jurisdiction because the Board denied her motion to waive her rights under a duty to assist and this was a final adverse decision on the motion.

The Court began by noting its jurisdiction is limited to final Board decisions.  The Court then stated under 38 USC section 511(a) a final decision of the Board involves “reviewing and deciding questions of law and fact necessary to a decision by the Secretary under a law that affects the provision of benefits.”  The Court then noted the Federal Circuit in Maggitt v. West, 202 F.3d 1370, 1376 (Fed. Cir. 2000) held “A 'decision' of the Board, for purposes of the Veterans Court's jurisdiction under section 7252, is the decision with respect to the benefit sought by the veteran: those benefits are either granted . . . or they are denied.” 

Section 511(a) as interpreted by Maggitt led the Court to conclude: “for the Court to take jurisdiction over an appeal from the Board, the Board must have granted or denied benefits, and the claimant must have been adversely affected by the Board's decision.”

The Court offered a small degree of assistance to veterans by saying:

“Although we have determined that we lack jurisdiction to hear this appeal, that is not to say that Mrs. Clark is without recourse to pursue her arguments or that, through remand, the Board can inoculate its actions from judicial review. See Beaudette v. McDonough, 34 Vet.App. 95, 103 (2021) ("[T]here is a 'strong presumption favoring judicial review of administrative action.'") (quoting Salinas v. U.S. R.R. Ret. Bd., 141 S. Ct. 691, 698 (2021)). Should the Board render an adverse final decision on Mrs. Clark's DIC claim—which is once again before the Board—she can appeal that decision to the Court and raise her arguments here. See §§ 7252, 7266. If she believes that VA has unreasonably delayed or otherwise frustrated the adjudication of her claim, she can petition the Court for extraordinary relief under the All Writs Act. See 28 U.S.C. § 1651. The Court is sympathetic to Mrs. Clark's situation, particularly considering her advanced age and the long period that has elapsed since her initial DIC claim. Yet concerns about improper delay or potential frustration of the Court's appellate jurisdiction go to the merits of a petition for extraordinary relief.  They do not support the Court's jurisdiction over an appeal from a nonfinal Board remand.”

Id. at *7.

This decision underscores the fact the Veterans Court sees itself as unable to consider non-final Board decisions.  Of course, this only creates an incentive for the VA to continue remands and thus the hamster wheel.

Decision published per curium by Judges Greenberg, Falvey and Jaquith.

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Cowan: AMA Notice Requirements

Cowan v. McDonough, Case Number 20-6227, decided June 13, 2022 discusses notice requirements to a veteran under the AMA.

The AMA requires the VA to provide veterans or claimants notice of certain decisions by the VA and that the notice must contain certain elements including identification of favorable findings and how to obtain evidence used in making the decision.  This case concerned the form of the notice.

The veteran argued a notice letter of an RO decision and a Board notice letter all lacked statutory notice elements.  The Court submitted the case to a panel to determine: “whether, under the AMA, a notice letter sent under section 5104 must itself contain each of the statutory notice elements or whether the notice letter may be read together with its enclosures, such as a VA decision or standard VA form, to determine if notice was sufficiently conveyed to a claimant; and whether section 5104 now applies to the Board.”  Id. at *2.

The Court determined: “section 5104 is silent about the form for conveying its notice requirements and that VA reasonably filled this gap with 38 C.F.R. § 3.103(f), which provides that the notice must be in writing and may include a notice letter, enclosures, or a combination of those documents. Thus, we hold that the notice letter itself does not have to contain each of the section 5104(b) elements.”  Id.

Judge Allen wrote separately to say he believed Congress meant to enhance the notice of a decision VA provides through Section 5104 and that pre- and post-AMA notice letters are essentially the same.

Decision by Judge Falvey with concurrences by Judges Allen and Toth.

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Walleman: Knee Disabilities, Diagnostic Codes 5257 and 5259

Walleman v. McDonough, Case Number 20-7299, decided June 9, 2022 discusses knee disabilities and pyramiding.

The Court framed the issues as “address[ing] whether the rule against pyramiding categorically precludes a separate disability rating for lateral instability under DC 5257 (2020), when (1) a claimant is already rated under DC 5259, which may contemplate lateral instability if it is a residual of a meniscectomy, and (2) there are other residuals that could independently warrant a compensable rating under DC 5259.”

This case considered a pre-amended version of DC 5257.  The old DC 5257 provided a rating for “Recurrent subluxation or lateral instability.”  Additionally, DC 5259 provides a 10% rating for “Cartilage, semilunar, removal of, symptomatic.”  The VA has a result against pyramiding, which “provides that evaluation of the "same disability" or the "same manifestation" under various diagnoses "is to be avoided."  The prohibition prevents the rating schedule from being "employed as a vehicle for compensating a claimant twice (or more) for the same symptomatology" so as to not overcompensate the claimant, or stated differently, to compensate a claimant only for his or her actual impairment.”  However, “a claimant may have "separate and distinct manifestations attributable to two different disability ratings" that entitle him or her to be compensated under different diagnostic criteria.”

The Court held “an assignment of a disability rating under DC 5259, for symptoms that do not include lateral instability, does not preclude as a matter of law a separate evaluation under DC 5257 for lateral instability of the same knee. As we explain, lateral instability may be a distinct manifestation of a knee disability that independently warrants entitlement to a separate evaluation under DC 5257. There is nothing in the law that renders assignments of disability ratings under DC 5257 and DC 5259 categorically violative of the rule against pyramiding.”

This case makes clear a rating for cartilage in the knee does not necessarily preclude a separate rating for instability and reminds veterans and attorneys to work to maximize any knee rating.

Decision by Judge Allen and joined by Chief Judge Bartley and Judge Laurer.

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Watkins: ACDUTRA and Travel in the Context of a VA Claim

Watkins v. McDonough, Case Number 20-5612, decided June 2, 2022 discusses when a Reservist qualifies as a veteran for the purposes of VA benefits.

The veteran served in the Navy from 1984 until 1992 and then in the Naval Reserves from 1992 until 1997 with various periods of active duty for training (ACDUTRA). 

The case concerns ACDUTRA, travel to and from ACDUTRA, and a diagnosis of a bipolar condition.  She lived in Memphis, Tennessee and in 1997 she received orders to report for ACDUTRA at a Naval Hospital in Florida for 12 days, plus one day for travel and report no later than June 2, 1997.  On June 2, 1997, she was admitted to a civilian hospital in Little Rock, Arkansas for acute psychotic symptoms, discharged on June 12, 1997 and within the month was diagnosed with bipolar disorder.  Meanwhile, she was on ACDUTRA from July 21, 1997 until August 1, 1997 in Pensacola.  She was discharged from the reserves in December 1997.

She filed a claim for service connection for bipolar disorder alleging she first developed the disorder in June 1997 when reporting for ACDUTRA, specifically when she was authorized to travel to her duty station.  The RO and Board denied, noting she was in Arkansas rather than following an itinerary from Memphis, Tennessee to Pensacola, Florida.

The Court begins with the law as to ACDUTRA and states: “When a claim for service connection is based on a period of [ACDUTRA], there must be evidence that the individual concerned became disabled as a result of a disease or injury incurred or aggravated in the line of duty during the period of [ACDUTRA].  In the absence of evidence of a disability incurred or aggravated during ACDUTRA, the period "would not qualify as 'active military, naval, or air service,' and the claimant would not achieve veteran status."  ACDUTRA means "full-time duty in the Armed Forces performed by Reserves for training purposes," and "authorized travel to or from such duty."”

The Court then determined the Board’s statement of reasons or bases were inadequate.  It explained “the Board's denial of appellant's claim based on its assessment that appellant deviated from her travel itinerary as reflected in her Advance Orders is inadequate for multiple reasons.” 

First, it does not explain how the orders required her to follow a specific itinerary.  The Court found: “There is nothing in the Advance Orders that provides a route appellant was required to follow or destinations that were off-limits. Because there is nothing in the Advance Orders to suggest that the Naval Reserve required appellant to follow a specific route to reach Pensacola, the basis of the Board's decision is questionable at best.”

Second, the “Advance Orders specifically authorized "travel via [privately owned vehicle (POV)]" and "if POV is used," appellant would be reimbursed for costs associated with that travel, in accordance with JTRs.  The Advance Orders expressly refer to the JTRs that concern appellant's travel. The Board did not discuss these regulations at all even though the Advance Orders specifically refer to them and the Board's rationale was focused on travel. The failure to discuss the JTRs is not trivial given the Board's reasoning. As appellant points out, the JTRs allow for indirect or circuitous routes at the service member's personal expense. This provision of the JTRs directly affects whether appellant deviated from any "itinerary" that may have been provided. Indeed, they suggest that any deviation related only to reimbursement for expenses and not "veteran" status. But, as we have said, the Board discussed none of this.”

The Court then went further and provided guidance to the Board, stating: the Board must consider the application of U.S. v. Cline, 29 M.J. 83 (C.M.A. 1989) and the Board must fully explain how it reads her advance orders.

This is a valuable case that should be a starting point for any cases involving travel status or ACDUTRA.  It also leads attorneys to at least consider how Cline (a court marial case that is not binding on the Veteran's Court) applies to the facts in their case and can be used as persuasive authority.

Decision by Judge Allen and joined by Chief Judge Bartley and Pietsch.

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Craig-Davidson: Substitution

Craig-Davidson v. McDonough, Case Number 20-4372, decided May 16, 2022 discusses substitution of a party.

The Board issued a decision in the name of the veteran.  However, a timely notice of appeal was submitted by the veteran’s surviving spouse.  The Secretary sought to dismiss the appeal as untimely because the NOA was filed 202 days after the Board issued its decision.  The question before the Court was whether the surviving spouse of the veteran, and an eligible accrued-benefits claimant, has standing to appeal on her own behalf the December 2019 Board decision, when the veteran died more than 120 days after the Board issued its decision.

The Court concluded “the appellant has statutory and constitutional standing to bring this appeal because the veteran, by application of the doctrine of equitable tolling, died during the time that he was permitted to file an NOA, and therefore the appellant is adversely affected by the Board's decision in the same manner that the veteran was adversely affected by the Board's decision. Further, because the veteran's time to appeal the Board's decision was tolled from December 3, 2019, the day the Board issued its decision, to May 23, 2020, the date of the veteran's death, the appellant's NOA, which was filed 30 days later, will be treated as timely, and the Court will deny the Secretary's motion to dismiss.”

The Court noted the change in substitution brought on by Breedlove v. Shinseki, 24 Vet App 7 (2010).  While historically the Court had concluded that an accrued-benefits claimant lacked standing to appeal a Board decision issued in the name of a veteran who died after the Board issued its decision and prior to filing an NOA this changed with Breedlove. 

Breedlove announced that the Court "henceforth will consider substitution, if requested, in all cases pending before the Court," and the Court concluded as follows: an eligible accrued-benefits claimant is 'adversely affected' by the appealed Board decision denying a veteran's claim for benefits and has standing to pursue substitution on the veteran's claim because he or she is affected by the VA adjudications . . . in the same way that the veteran was affected at the time he filed his [NOA].” 

The Court then relied on Demery and stated: “the Court in Demery concluded that the rationale supporting substitution applies equally to an eligible accrued-benefits claimant's right to file an NOA in his or her name, and that the timing of the veteran's death should not determine whether an accrued-benefits claimant may continue the veteran's appeal.” 

As to the question of standing, the Court determined: “in determining whether the veteran's death occurred during the period to appeal the adverse Board decision, the appellant, as an accrued-benefits claimant, is not limited to the 120-day period set forth in section 7266(a). Rather, the appellant steps into the shoes of the veteran at the time of death; if the veteran's time to file an appeal had not yet run as of the date of his death, then the appellant may be considered a person adversely impacted by the December 2019 Board decision denying the veteran's lung cancer claim, and she has standing to file an NOA in her own right.”

The next question was the time to appeal.  The veteran died 171 days after the Board’s decision.  The spouse argued the veteran’s time to appeal did not begin to run because he was incapacitated by his terminal illness.  The Court concluded: “the appellant has shown that the veteran's illness rendered him incapable of handling his own affairs and thus constitutes an extraordinary circumstance.”  It pointed to the fact of palliative care, use of morphine and lorazepam, and lack of consciousness.

The Court then determined that the time to file (120 days) began after the veteran’s death and because the notice of appeal was submitted within 120 days it was timely.  Thus, the VA’s motion failed.

It is odd that the Secretary would so vigorously fight a surviving spouse under these circumstances and file a motion to dismiss.  The unwillingness to look at the facts and equities and exercise discretion by not filing such a motion or not withdrawing it prior to oral argument on this motion is a shocking exercise of a lack of discretion and judgment.

Decision written per curium by Judges Greenberg, Meredith, and Laurer.

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Aviles-Rivera: Hypertension and NAS Update

Aviles-Rivera v. McDonough, Case Number 19-5969, decided May 2, 2022 discusses the a claim for hypertension and how it is impacted by the National Academy of Sciences (NAS) Veterans and Agent Orange Updates (NAS Update).

The NAS Update was published after the veteran’s election in the AMA and after the RO’s higher level review decision, but before the Board issued its decision.  The Court found “the evidentiary record restriction in 38 U.S.C. § 7113(a) barred the Board from considering the 11th NAS Update. Therefore, we conclude that the veteran's assertions of Board error, which are all predicated on the Board considering the 11th NAS Update, must fail.”

The veteran argued the Board erred by failing to consider the 2018 NAS Update and by relying on the October 2017 VA medical opinion that he asserts is inadequate in light of the 2018 NAS Update.  He made several arguments including that a prior Board remand expanded the scope and timeline for adding documents; the NAS Updates are not evidence as contemplated by the restriction on new evidence; the Board’s jurisdictional statute is broader and mandates the Board consider all evidence and material of record; and failure to consider the 2018 NAS Update is unreasonable and unfair and unjust process. 

The Court found the update post-dated entry RAMP election and the HLR decision, so it was not part of the record for the Board to consider.  As to the argument a remand order referenced NAS Updates and this one was constructively before the VA, the Court found that 2018 NAS Update did not exist at the time the remand was made, so the Board remand could not  have considered it. 

As to the argument that NAS Updates are foundational authoritative documents mandated by Congress and outside evidentiary restrictions, the Court determined they were simply evidence and are not binding authority on the VA and thus fall within the evidence restricted by Section 7113(a).    

This is a hard result.  To deny reference to a NAS Update seems to reduce them to simple commonplace evidence whereas they are Congressionally mandated.  It will be interesting to see if the case is appealed and what the Federal Circuit does with this case.

Decision by Chief Judge Bartley and joined by Judges Toth and Falvey.

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Rivera-Colon: Extraschedular Rating for Gastritis

Rivera-Colon v. McDonough, Case Number 19-6129, decided April 11, 2022 discusses the need for referral for an extraschedular rating for gastritis.

The veteran was rated at 10% for gastritis but asserted the Board should have considered whether his gastritis should be referred for extraschedular considerations under 38 CFR 3.321(b). 

The veteran argued “the Board's reasons or bases are inadequate because they do not address whether referral for extraschedular consideration is warranted.  Appellant's Br. at 6. He states that the record reflects "exceptional symptoms, which did not fit any diagnostic criteria," such as pain unrelieved by standard ulcer therapy, emergency room treatment for diarrhea, and symptoms of such severity that he can no longer work.”  The Secretary argued the functional impacts of the gastritis  did not raise the issue of extraschedular consideration because the symptoms claimed as exceptional are listed under the DBQ evaluation. 

“Under DC 7307, chronic gastritis "with small nodular lesions, and symptoms," warrants a 10% evaluation. 38 C.F.R. § 4.114 (2021). Chronic gastritis "with multiple small eroded or ulcerated areas, and symptoms," warrants a 30% evaluation. Id. Chronic gastritis "with severe hemorrhages, or large ulcerated or eroded areas" warrants a 60% evaluation, which is the maximum schedular evaluation available under DC 7307. Id. The introduction to § 4.114 specifies that [r]atings under diagnostic codes 7301 to 7329, inclusive, 7331, 7342, and 7345 to 7348 inclusive will not be combined with each other. A single evaluation will be assigned under the diagnostic code which reflects the predominant disability picture, with elevation to the next higher evaluation where the severity of the overall disability warrants such elevation.  Id.

On September 2, 2021, the Court ordered the parties to submit supplemental memoranda of law to address, among other things, whether the phrase "and symptoms," as used in the rating criteria for 10% and 30% evaluations under DC 7307, was so all-encompassing as to foreclose any consideration of an extraschedular evaluation and, if not, how entitlement to an extraschedular evaluation should be determined.”

In the supplemental memorandum, the veteran argued a recent revision to Section 3.321 undermined Thun and later case law.  The veteran argued a change had removed the role of the district station as providing a threshold inquiry regarding extraschedular consideration.  “In other words, he asserts that neither the RO nor the Board have any role to play in determining whether extraschedular evaluations are warranted because the Secretary has "unambiguously and exclusively delegated the full responsibility to the Director." Id. at 9. Therefore, he argues, Thun and its progeny are no longer controlling precedent.”

The veteran also argued the term “and symptoms” found in the diagnostic code was undefined. 

The Court declined to consider the Thun argument as raised to late (during supplemental briefing).    However, the Court did find the “and symptoms” is a critical undefined term.  The Secretary argued “DC 7307 "necessarily contemplates the usual and typical symptoms and effects commonly associated with" gastritis because "each diagnostic code reasonably contains the full range of symptoms usually associated with or caused by the disability." Secretary's Supp. MOL at 5 (citing Long, 33 Vet.App. at 173). By  implication, then, symptoms that are unusual or atypical for gastritis may warrant referral for consideration of an extraschedular evaluation. The problem in Mr. Rivera-Colon's case is that the Court has no way of knowing what those usual or typical symptoms of gastritis are because VA has not defined them.” 

 “Ultimately, although the Secretary confirms that extraschedular evaluations may be available for conditions evaluated under DC 7307, and that the term "symptoms" as used in the 10% and 30% schedular evaluations refers to the usual or typical symptoms associated with gastritis, VA has not defined what those usual and typical symptoms of gastritis are or whether 10% and 30% evaluations contemplate different symptoms. And the Board did not explain in its reasons or bases how it reached its implicit finding that Mr. Rivera-Colon's gastritis symptoms were not exceptional. Consequently, judicial review is frustrated, and the Court is unable to determine whether, as Mr. Rivera-Colon asserts, the record reasonably raised the question of entitlement to referral for extraschedular consideration.”

The Court went further and provided additional guidance to the Board saying: “Because the term "symptoms" was not defined for the purpose of DC 7307, the DC assigned for Mr. Rivera-Colon's gastritis, he did not receive notice as to what was encompassed by—or excluded from—the 10% schedular evaluation assigned.  If, on remand, the Board determines that certain symptoms (or other diagnoses, on a secondary basis) are attributable to Mr. Rivera-Colon's service-connected gastritis, and those symptoms or diagnoses would entitle him to a higher schedular evaluation under DC 7307 or another DC, it must consider whether a higher schedular evaluation is warranted.”

Decision by Chief Judge Bartley and joined by Judges Pietsch and Laurer.

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Hayes: Debt Waivers

Hayes v. McDonough, Case Number 20-0449, decided March 7, 2022 discusses waiver of a debt.

This case deals with an overpayment of pension benefits to a surviving spouse.  When the surviving spouse applied for survivor’s benefits she reported of other our sources of income that she did not receive any monthly income from sources such as wages or social security administration benefits and expected none in the next 12 months.  Based on the lack of income, the VA granted non-service connected pension benefits of $660 a month.  Over the next several years, the VA requested the surviving spouse verify her continuing eligibility for pension benefits by disclosing income, but at no point did she report any other income.

Several years later, from other federal agency data, the VA discovered she had received income in the form of monthly social security benefits, wages, and unemployment insurance benefits, and proceeds from the sale of a house she had inherited.  Because her newly verified income exceeded the eligibility limits, the VA concluded it had overpaid her pension benefits.

The surviving spouse sought a waiver of the debt due to difficulty financial circumstance, but the VA determined it could not waive the debt because she had acted in bad faith by failing to accurately report income to the VA.  She argued she did not intentionally hide income but did not realize SSA or unemployment benefits were countable.  The Board denied waiver observing “waiver is unavailable if the overpayment resulted from fraud, misrepresentation, or bad faith. Although the Board found insufficient evidence of record to prove fraud, it nonetheless determined that Mrs. Hayes "purposefully reported inaccurate income . . . with the intent of obtaining and retaining VA benefits that she was not entitled to receive, thereby engaging in willful misrepresentation of a material fact." R. at 3. It further determined that she acted in bad faith when she "failed to report all of her income and did so with the intent to seek an unfair advantage, with knowledge of the likely consequences, and with resulting loss to the government."”

First, the spouse argued the definition of “misrepresentation” adopted by the Board was incorrect as it requires willful standard.  She then argues the Board’s application of a vague standard makes the Board’s reasons and bases inadequate.  The Court determined a willful standard is supported by a reading of the statute and regulation and noted: “the Board determined that Mrs. Hayes committed misrepresentation because she made a conscious choice not to disclose—either on her initial VA pension application or in subsequent updates—any income, despite knowing from clear statements from the Agency that the law required her to do so. See R. at 4 ("The fact that the appellant was directly told on the [VA form] to report to VA all payments from any source and asked about her reliance on public assistance, but chose to not disclose this information, demonstrates a willful misrepresentation of a material fact."). Mrs. Hayes doesn't directly challenge the Board's conclusion as improper or inconsistent with the record.”

This cases pivots on wilfulness in failing to report changes in income while in receipt of pension benefits.  This case serves as a reminder that you must be truthful and fully report any changes in income.

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

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Gumpenberger: Fees and Claims included under a NOD

Gumpenberger v. McDonough, Case Number 19-4633, decided March 3, 2022 discusses eligibility for fees for representing a veteran.

This involves a non-attorney practitioner who assisted a veteran and whether he was entitled to fees related to benefits related to a TBI and TDIU.  The issue involved whether a 2013 NOD concerning a 2013 decision enclosed a TBI rating.  The 2013 NOD dealt with entitlement to TDIU and service connection for a mental health disability, but did not include an appeal of the disability rating assigned for a TBI.  The Court concluded that “The NOD did not include an appeal of the disability rating assigned for TBI. Thus, under the applicable VA regulation, 38 C.F.R. § 20.201, the NOD was effective only as to TDIU and service connection for the psychiatric condition. And because appellant's entitlement to fees is tied to the submission of this June 2013 NOD under section 5904, he is not entitled to fees awarded on other matters, something he seeks in this action.”

The Court reasoned: “The reality is that appellant made a tactical choice in how he proceeded in representing the veteran, choosing to pursue an administrative appeal concerning entitlement to TDIU (and, originally, service connection for an acquired psychiatric disorder) and not a higher schedular rating for TBI. That tactical choice dictates the outcome of this appeal because there is no NOD concerning the assignment of a TBI disability rating, the font of funds from which appellant seeks to take a fee out of benefits awarded to the veteran. And a 100% TBI schedular rating and TDIU are distinct benefits such that an appeal of TDIU does not encompass a dispute about a schedular rating for TBI. Therefore, we will affirm the Board's July 2019 decision.”

The veteran’s attorney had argued:

“the relevant statutes does not require any specificity in an NOD, even when multiple issues were decided in an initial determination.  Therefore, he asserts that it does not matter that the June 2013 NOD did not refer to a disagreement with the TBI rating. He contends that neither 38 U.S.C. § 5904(c)(1), which allows for representatives to be paid for services after an NOD is "filed with respect to the case," nor 38 U.S.C. § 7105(a), which at the relevant time required an NOD be in writing and filed within 1 year of the underlying determination, requires that a claimant identify the issue(s) he or she wishes to appeal. Thus, he maintains that the Board erred in requiring that the June 2013 NOD link to a specific issue in the May 2013 rating decision or ask for a precise benefit.  He contends that the pro-veteran canon of interpretation, when applied to section 7105(a), supports his reading of the statute. Under this interpretation of the statutes, appellant asserts that once the June 2013 NOD was filed, he became entitled to agent fees for any ensuing award of benefits, including, as relevant here, the 100% disability rating VA awarded for TBI.”

The case is not solely about fee agreements but the scope of a NOD and the Court focuses on the veteran’s need to identify what issues are appealed.  The Court stated: “section 7105, when read as a whole, plainly requires specificity in the NOD because it mandates that an SOC address evidence and development only as to the issues a claimant

identifies as those on appeal. Therefore, we hold that the Secretary's regulation is a reasonable interpretation of section 7105, and we reject appellant's request that we invalidate it.” 

This case has been appealed to the Federal Circuit.

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

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Bareford: Headstone and Marker Eligibility

Bareford v. McDonough, Case Number 19-4633, decided February 28, 2022 discusses eligibility for a headstone or marker.

This case deals with a small cohort of veterans who by executive order in 1935 were sent to the Florida Keys to build bridges between Key West and mainland.  As it was a massive category 5 hurricane came through and killed 80 of the 700 veterans sent under the executive order.  Mr. Roy Anderson was one of those killed.  His body was located after the hurricane and many of the bodies cremated and comingled and buried together in a memorial. 

In 2017 Mr. Bareford requested the VA provide a headstone or marker for Mr. Anderson and the application was co-signed by the South Florida National Cemetery, which agreed to accept the headstone.  The VA denied saying Mr. Bareford is not a recognized applicant.  He appealed and noted the enabling statute (38 USC 2306) does not limit who can apply for the benefit.

Congress has directed that "[t]he Secretary shall furnish, when requested," burial headstones or markers for the unmarked graves of eligible individuals or, when the remains are unavailable, "an appropriate memorial headstone or marker for the purpose of commemorating an eligible individual." 38 U.S.C. § 2306(a), (b).

The Court explained: “VA has promulgated regulations restricting who is authorized to request burial and memorial headstones and markers. For veterans whose remains are identified and available, VA will provide a burial headstone or marker and applicants must be either a family member; a personal representative (as defined in 38 C.F.R. § 3.600); a representative of a congressionally chartered veterans service organization (VSO); a government employee whose responsibilities include providing services to veterans and their families; anyone legally responsible for the disposition of the veteran's remains or related matters; or, in the case of veterans whose service ended before April 6, 1917, any individual. 38 C.F.R. § 38.630(c) (2021).  For veterans whose remains are unavailable or unidentified, VA will provide a memorial headstone or marker, but only family members may apply. 38 C.F.R. § 38.631(c) (2021).”

The Court was essentially asked to deal with Section 2306 and address what it meant that the code does not identify who is authorized to request a burial or memorial marker.

The Court began by looking at the statute’s text, structure and legislative history (Chevron Step One).  The Court concluded that because Congress was silent as to who is entitled to request a headstone or marker, it left a gap for the VA to fill. 

The Court then turned to a Chevron Step Two analysis, which asks is the Agency’s answer for the gap a reasonable one to which the Court must defer or whether the Agency’s gap filling regulation is arbitrary, capricious, and manifestly contrary to the statute.

The Court then turns its focuses on 38 CFR section 38.631(c).  It noted this section concerns memorial markers as opposed to burial markers and the VA more narrowly restricts who can apply for memorial headstones and markers. The Court found:  “VA has failed to articulate a satisfactory explanation for its 2016 policy of restricting the applicant class for memorial headstones and markers to just family members, to include "a rational connection between the facts found and the choice made" and "a reasoned explanation . . . for disregarding facts and circumstances that underlay or were engendered by the prior policy"; and, ultimately, VA's policy fails to reconcile conflicting policies and fails to represent a reasonable accommodation of conflicting policies that Congress would have sanctioned.” 

The Court then concluded:

“The absurd result of the current policy under § 38.631(c)–for which the Court is precluded from supplying its own reasoned basis–is that when no surviving family member is available, the deceased service member and his or her contributions to our country remain unmemorialized, simply because that service member's remains are not available for burial. In light of the above, and given Congress's intent to commemorate the gallant dead in a manner commensurate with the dignity of their sacrifice (apparently without regard to whether or not the remains are available for burial), the Court cannot find that VA's attempt to reconcile its current policy with conflicting policies is a reasonable accommodation that Congress would have sanctioned. Cf. Chevron, 467 U.S. at 845.  As a result, the Court holds that § 38.631(c) is arbitrary and capricious, and the Court affords no deference to VA's policy decision underlying its promulgation of § 38.631(c). See Encino Motorcars, 579 U.S. at 222; Chevron, 467 U.S. at 844-45; Motor Vehicle Mfrs. Ass'n,  463 U.S. at 43. Accordingly, the Court will invalidate § 38.631(c) (2021).”

This decision is an excellent example of a Chevron analysis of a gap-filling regulation.  It is also an interesting case of an individual (Mr. Bareford) who selflessly wanted to recognize and honor a veteran in the face of a VA that would rather spend tens of thousands of dollars defending a bad decision rather than doing the right thing.

Judge Falvey dissented stating he would defer to the VA’s interpretation as “the Secretary's explanation shows that he made a reasonable choice after weighing the relevant considerations. Yet the Court rejects the Secretary's reasonable distinction between the applicant classes for burial headstones and memorial markers.”

Decision by Chief Judge Bartley and joined by Pietsch.  Dissent by Judge Falvey.

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Fuller: A Veteran’s Ability to Challenge an Effective Date for Spousal Apportionment for the Spouse

Fuller v. McDonough, Case Number 18-7000, decided February 23, 2022 discusses the ability for a veteran to challenge an effective date for spousal apportionment for the spouse.

The veteran filed an appeal asking for an earlier effective date for apportion of VA benefits to his spouse.  It specifically considered whether California community property law conferred standing on Mr. Fuller to pursue this appeal.  The Court determined: “that as a consequence of his intact marriage to Ms. Fuller, the lack of evidence of planned marital dissolution, the fact that the claim at issue will benefit both spouses, their mutually expressed unity of interest in the pursuit and outcome of the earlier effective date claim, and the economic injury to their community property sustained by VA's denial of an earlier effective date for the apportioned benefits, Mr. Fuller has standing to pursue the appeal.”

Mr. Fuller was married and was granted a disability rating, but a portion was withheld because he was incarcerated.  The 2004 notification letter informed him his dependents may be entitled to apportionment of the withheld portion. The veteran than filed a declaration of status of dependents resulting in the VA sending a letter to his wife and notifying her of the right to file an apportionment claim and seeking verification of her income and expenses.  It appears she did not respond to the VA’s letter.

Approximately 5 years later, the veteran provided the VA with an updated address for his  the wife, which indicated his belief she was receiving apportionment of his benefits.  Meanwhile, within days of that letter, his wife expressed her desire to file for apportion from any benefits due.

The VA sent the veteran a letter acknowledging the request for apportionment and asking for further information.  The veteran responded by a letter expressing his belief apportionment had occurred already.  Finally, the VA established an apportionment in 2009 with a 2009 effective date.  The veteran filed a NOD requesting an earlier effective date.  The claim was remanded by the Board because it was not apparent the wife had received a copy of the SSOC or been told of the hearing.  Notice was given to the wife and then the Board remanded again for the RO to address whether the veteran had standing to file a NOD on behalf of the spouse.  The RO and Board next determined the veteran did not have such standing.  The result was a Court appeal and remand for the RO to address whether the veteran was authorized to file an NOD as to the apportionment effective date.

The Board ultimately admitted the veteran’s standing but said a claim for apportionment was not submitted until 2009.

On appeal, the Court agreed with the issue of standing based on the fact California is a community property state.  “Put plainly, in a community property system spouses jointly own all property created or acquired during the marriage, regardless of which spouse earned that property.”  The Court distinguished this case from separation or divorce cases:  “Simply put, the USFSPA, Mansell, and Howell do not apply in this case. Mr. and Ms. Fuller were married at the time that Mr. Fuller was first awarded benefits; married when Mr. Fuller first identified Ms. Fuller as a dependent eligible for an apportionment of his benefits during his incarceration; and their marriage has continued, including the period during which Mr. Fuller appealed to this Court.  Unlike in Mansell and Howell, where veterans in the context of divorce proceedings asserted a property interest that was diametrically opposed to their former spouses' financial interest, the Fullers have an intact marriage, they have jointly asserted entitlement to an earlier effective date for apportionment, and Mr. Fuller is not asserting a property interest in opposition to Ms. Fuller's.” 

After determining the veteran had standing, the Court turned to the merits (proper effective date).   This portion turned on the presumption of regularity.  The Court explained: “The Board considered the Fullers' assertion that Ms. Fuller did not receive the April 2004 VA letter, as well as her statement that she had no contact from VA until 2009. However, the Board applied the presumption of regularity, concluded that VA in April 2004 properly sent Ms. Fuller notice of her right to apportionment, and determined that the presumption was not rebutted by clear evidence to the contrary.”

The veteran essentially argued he erroneously gave the VA an incorrect address for his wife due to his incarceration.  The Court accepted this argument finding a reasons and bases error and explained: “The Board considered the Fullers' assertion that Ms. Fuller did not receive the April 2004 VA letter, as well as her statement that she had no contact from VA until 2009. However, the Board applied the presumption of regularity,  concluded that VA in April 2004 properly sent Ms. Fuller notice of her right to apportionment, and determined that the presumption was not rebutted by clear evidence to the contrary.”

The Court even noted “the troubling opportunities for error in the establishment and development of apportionment claims, as evinced by the Fullers' experience.”  The Court focused on the fact the VA relies on the veteran to provide an address for the person who might seek apportionment and noted “Such a system evokes fair process concerns.”

This decision is a blueprint for challenging a failure to apportion earlier. 

Judge Allen dissented explaining based on a lack of standing focusing on a lack of statutory right to appeal to the Board and a lack of a legally cognizable interest in his wife’s apportioned benefits.

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

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