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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Veterans Legal Advocacy Group: Writs regarding Mailing addresses and Sanctions

Veterans Legal Advocacy Group v. McDonough, Case Number 20-8291, decided February 14, 2022 involved a writ sought to require the VA to correct the mailing address of the petitioner.

The Petitioner was a law firm that had sought to change or update its mailing address with the VA, but the VA continued to mail materials the old address.  The law firm filed a writ requesting that the Court intervene to force the VA to correct the problem. Initially, this is a big problem for attorneys that move.  The VA has for years simply been unable to update mailing address for the attorneys, resulting in some correspondence being sent to the correct address and others going to the old address.

The Court asked for a response from the VA and the VA ultimately fixed the problem with this attorney and submitted affidavits saying all files had been updated. 

The Court declined to sanction the VA because the Secretary had not violated a court order and not further action is necessary.  It noted sanctions are reserved for situations in which (1) there is a Court order that is clear and unambiguous, (2) there is clear and convincing proof of noncompliance with that Court order, and (3) it is clear that the party at fault was not reasonably diligent in trying to abide by the Court order.

This decision might strike some as unnecessary, but shows the lack of competence of the VA to do something as simple as update the address for an attorney and fact that we sometimes have to fight the VA to do something that should be obvious and easy. 

Order by Judges Greenberg, Meredith, and Laurer.

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Stover: Thailand and Agent Orange Exposure

Stover v. McDonough, Case Number 20-5580, decided July 11, 2022 discusses how Thailand veterans prove exposure to Agent Orange.

The Court begins by noting that Congress has created a presumptive for Vietnam veterans, but not Vietnam Era Thailand veterans.  However, it also notes that the VA’s Adjudication Procedures Manual (M21-1) speaks to the question of Thailand Agent Orange exposure.

The veteran served at Takhli Royal Thai Air Base during the Vietnam war and sought service connection for diabetes mellitus due to exposure to tactical herbicides during his service in Thailand.

This case concerned the Board’s interpretation of the M21-1, which provides “under certain circumstances, veterans who establish that they served "on or near the perimeter[]" of an RTAFB may show, through performance of their duties, that they were exposed to herbicides.”  The Court noted the manual does not provide a true presumption of exposure, but “eases the burden of proving exposure, which is highly significant to a claimant.”

The Court “conclude[d] that the Board erred by failing to explain what it understood "near the perimeter[]" to mean when it denied appellant's claim in large measure because appellant had not established that his duties regularly placed him "near the perimeter[]" of the Takhli RTAFB. Because the Board's approach to this issue put appellant in the untenable position of not knowing what he needed to prove to satisfy the rule of decision the Board adopted.”

This veteran served as an electronics warfare systems repairman.  He stated he worked many hours every day on the flight line, which was close to the base perimeter.  He also submitted photographs of his living quarters and location of the flight line.  The Secretary began by arguing the M21-1 might not be binding on the Board, but that in any case the veteran’s military occupation (working on flight line) is so different from security jobs listed in the M21-1 that any special consideration does not apply and the Secretary argued the statements of being within 500 meters of the perimeter were insufficient.  The Secretary also argued that “on or near” the perimeter meant being close enough to physically tough the perimeter.

The Court dodged the question of whether the M21-1 is binding on the Board, but did determine that the Board adopted the M21-1 provision as the rule of decision in the case by employing the language of the provision.

The Court then pivoted to the question of the Board’s application of the M21-1 provision and determined the Board failed to give an adequate reasons or bases for its decision because it failed to define the term “near the perimeter.”  The Court’s larger point is that a Board determination based on undisclosed standards is error.

Judge Greenberg wrote a concurrence stating he would have gone further and reversed and found the veteran served near the perimeter.

This is a helpful case for any Vietnam era veteran who served in Thailand.

Decision by Judge Allen and joined by Meredith.  Concurrence by Judge Greenberg.

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Barry: Special Monthly Compensation and Half-Steps

Barry v. McDonough, Case Number 20-3367, decided February 3, 2022 discusses the ability to gain half-steps for SMC ratings.

Special Monthly Compensation (SMC?) is a system that provides for compensation at a disability rate above that provided in the rating schedule.

The case involves intermediate or half-step rating increase in SMC under certain circumstances.  “The specific question we address today is whether § 3.350(f)(3) may be used more than once to provide for such an intermediate or half-step rating increase for SMC.   In other words, does § 3.350(f)(3) provide for only one intermediate rating or may it be used to provide multiple intermediate ratings subject only to the maximum rate payable for SMC?  Because we hold that § 3.350(f)(3) entitles a claimant to receive only one half-step rating increase in SMC benefits, we conclude that the Board did not err when it failed to discuss the possibility of entitlement to any additional half-step ratings under § 3.350(f)(3).”

Essentially the veteran argued that multiple half-step SMC ratings could accrue to an entire step increase.  The Court characterized the veteran argument as:

“the plain language of the regulation provides for as many intermediate increases as a claimant's condition can justify, subject only to the maximum SMC rate Congress has set. In that regard, he provides an example of how he believes § 3.350(f)(3) should have been applied in his case. His application goes like this: we start with appellant's entitlement to SMC(m) based on the loss of use of his legs; then VA should consider that he has a 70% rating for PTSD that allows him to go up one intermediate step to receive  compensation at the SMC(m 1/2) level; then VA should consider that he has two 30% ratings for left eye conditions that combine to make a 50% rating, which entitles him to another intermediate step to receive compensation at the SMC(n) level; then combining his left and right shoulder ratings, he would get another intermediate increase up the SMC(n 1/2) level; and finally, the remainder of his disabilities combine to a 50% rating that entitles him to obtain the maximum rate for SMC benefits, provided for at the SMC(o) level.”

The veteran also argued some alternative bases for an increase, which led to a discussion about issue exhaustion.  The Court noted that though the veteran argued the invalidity of a regulation for the first time before the Court, it was appropriate for the Court to consider the argument because the Board is bound by VA regulations and it would have been futile to make such an argument before the Board.  The Court also focused on the purely legal nature of the question.

As to the statutory review, the Court admitted the plain language of regulation 3.350(f) does not resolve the question.  Id at *12.  Instead, the Court pointed to the statutory language of 1114(p), in which “Congress provides that "the Secretary may allow the next higher rate or an intermediate rate."  The use of the terms "the" and "an" in conjunction with the singular term "rate" in the authorizing statute indicates that one singular "rate" would be provided through any regulation the Secretary adopted to implement the statute.”

Ultimately, the Court determined:

“In sum, we hold that § 3.350(f)(3) can only be used once to increase a claimant's SMC rate.  As explained above, there are indications pointing to that interpretation even if we confined ourselves to the language of (f)(3) standing alone. In addition, Congress purposefully omitted language concerning repeated use in section 1114(p), on which (f)(3) is based, despite permitting repeated use in other sections of the statute. And, reading § 3.350(f)(3) as we do, provides purpose for its subsequent subsection (f)(4). Because we can use the tools of interpretation to assess the regulation's meaning, we need not resort to other canons of construction, including deference to the Agency's interpretation of the regulation were it "genuinely ambiguous" or the pro-veteran rule of construction from Brown v. Gardner. Therefore, we hold that the Board did not err when it failed to consider the application of § 3.350(f)(3) more than once in its assessment of whether appellant was entitled to a higher SMC rate.”

Judge Jaquith concurred and dissented in part.  He argued the plain meaning of the statute and regulation do provide for “two half-step increases—to the intermediate rate and, for the veteran already there, to the next higher statutory rate.”  Id. at *18.  Judge Jaquith leaned on the plain meaning of the statute and regulation as well as the duty to maximize benefits and the pro-veteran canon.

This decision blocks off the full compensation allowed by multiple half-step SMC ratings.  It has been appealed to the Federal Circuit and I look forward to its resolution.

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

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Wilson: The Scope of the Claim before the Board

Wilson v. McDonough, Opinion Number 19-3791, was decided January 26, 2022 and involves what happens when the VA performs minimal or inadequate VA examiantions.

The veteran was granted a 10% tinnitus rating and 0% hearing loss rating.  However, the veteran filed a Form 9 to the Board noting the VA had not tested for peripheral vestibular disorder (PVD) and noting his PVD caused dizziness and staggering.   

The VA responded by sending a form letter stating his claims had to be submitted on a standardized form.  The form letter said “nothing about whether the veteran's PVD would be included in his appeal, and it does not indicate that a separate claim for that disorder was required or that PVD would not be considered based on what he had already submitted. The veteran acknowledged the correspondence and, having "no further claims to submit," asked "that the appeal process continue."

The Board then rendered a decision which did not address the veteran’s PVD or dizziness or staggering.  The veteran appealed and focused on the need for a new examination.  The Secretary took the position that the Form 9 indicated an informal intent to seek benefits for PVD, dizziness and staggering, but the Board was under no obligation to discuss these issues because the veteran never filed a formal claim as instructed.

The Court began with Bailey v. Wilkie, 33 Vet.App. 188, 199 (2021), and noted "VA is obligated to develop and adjudicate claims for secondary service connection that are reasonably raised during the processing of a properly initiated claim as to the primary service-connected disability's evaluation level.”  The Court in Bailey reasoned "the ordinary meaning of 'complications' in § 3.155(d)(2) encompasses disabilities caused or aggravated by treatment for a service connected disability," the regulation imposes a duty n the Agency to consider claims for secondary service connection if they are raised during the course of adjudicating a complete claim concerning a related, primary disability.”

The Court then found the Secretary had conceded the Form 9 request was for service connection on a direct or secondary basis.  The Court then noted the Board is required to consider all issues raised by a veteran and to construe the arguments in a liberal manner for purposes of determining whether they raise issues on appeal. 

The Court found the Form 9 was directed to the Board and the response from the VA contained boilerplate and did not address the actual issue (PVD) in the letter.  The Court actually characterized the VA’s letter as an “uninformative form letter.”  The Court then determined a remand was necessary because:

“no one told the claimant in an understandable way that what he'd submitted was insufficient or notified him "of the information necessary to complete the appropriate application form prescribed by the Secretary." 38 C.F.R. § 3.155(b)(3) (setting forth the Secretary's responsibility "[u]pon receipt of an intent to file a claim"). Moreover, the Board did not state any reasons or bases for not addressing the veteran's February 2017 Form 9 claims.”

This is an important case that pushes back against the VA’s increasingly narrow definition of a claim and unwillingness of the Board to address issues that were not specifically addressed by the RO.  Since the AMA, the VA has become chained to forms rather than reason to the detriment of veteran.  This case should help push back against that ignorance.

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

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Constantine: Nehmer and Korean Veterans

Constantine v. McDonough, Case Number 18-7044, decided January 14, 2022 discusses the expansion of the Nehmer class to allow for an earlier effective date for the veteran. 

Nehmer is a class action suit related to VA regulations as to Agent Orange exposure that resulted in a class action order in the US District Courts, which has been overseen by the U.S. District Court of Northern California.

In this case, the Board determined the veteran was not a member of the class identified in Nehmer and thus does not receive the earlier effective date allowed by the class settlement.  The Veterans Court noted it had jurisdiction over the appeal and the authority to decide whether the veteran was/should be a class member, but declined to exercise jurisdiction for risk two federal courts could arrive at conflicting outcomes and thus unnecessarily complicate litigation.

The veteran in this case did not serve in Vietnam, but Korea in the DMZ.  The veteran argued he should receive the effective date allowed by Nehmer because the Nehmer class definition was not limited based on geographic location of herbicide exposure. 

The Court declined to exercise jurisdiction and explained:

“Congress transferred exclusive subject-matter jurisdiction over veterans benefits cases to our Court in 1988. Nehmer remains a vestige of the pre-VJRA judicial system—a historical anachronism—and that fact and the factors discussed herein weigh in favor of declining to exercise jurisdiction over the only argument raised by the veteran in this case. But we stress, however, the unique and extraordinarily rare situation that this case presents. Our decision to decline exercising jurisdiction in Mr. Constantine's appeal comports with general principles of comity and judicial economy that counsel against courts exercising jurisdiction in such a way that might interfere with the order of another court. See, e.g., Zambrana v. Califano, 651 F.2d 842, 844 (2d Cir. 1981) (citing Bergh v. State of Washington, 535 F.3d 505, 507 (9th Cir. 1976), Torquay Corp. v. Radio Corp. of America, 2 F. Supp. 841, 844 (S.D. N.Y. 1932) ("[A]s a matter of comity and of the orderly administration of justice, [a] court should refuse to exercise its jurisdiction to interfere with the operation of a decree of another federal court.")). Accordingly, we decline to exercise jurisdiction in this case. To the extent that Mr. Constantine believes that he is wrongfully being excluded from the Nehmer class, he is not without recourse; he can seek enforcement with the District Court.”

This decision is a novel attack on the class member definition found in Nehmer and has already been appealed to the Federal Circuit.  The result will be interesting.

Decision by Chief Judge Bartley and joined by Judge Meredith.  Judge Greenberg dissented saying he would exercise jurisdiction.

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Page: Adding to the RBA

Page v. McDonough, Case Number 19-0865, decided January 14, 2022 discusses an addition to the RBA. 

This case involves the Record Before the Agency, constructive possession by the Board, and the interaction with Euzebio v. McDonough (Euzebio II), 989 F.3d 1305 (Fed. Cir. 2021), vacating, remanding Euzebio v. Wilkie (Euzebio I), 31 Vet.App. 394 (2019).

The Court noted “the appellant argues that there are references in the record of proceedings (ROP) to fee-basis treatment records that had been scanned into VistA, but because VistA records are not automatically included in the claims file, those records were "not before the Board as required." As a result, the Secretary attempted to add the records to the RBA and continue the case before the Court.  The Veteran argued instead . “where the Board has actual notice of the existence of records missing from the claims file, the Board errs in not obtaining and reviewing those records, and the Court must remand for the Board to do so.”

The Court held:

“where a party in the context of a record dispute proffers for inclusion in the RBA documents that were constructively before the Board, those records should be included in the RBA.  Based on the appellant's concession that the VistA Imaging documents at issue here were constructively part of the record before the Board, the Court will grant the Secretary's motions and allow him to amend the RBA to include the January 2015 and May 2018 VistA Imaging documents.  Furthermore, because those documents are properly part of the RBA, the Court will deny the appellant's motion to strike portions of the Secretary's brief referencing those records. To the extent the appellant argues that the Court may not review these records in the first instance, those arguments pertain to the merits of the appeal and are separate considerations from what must be included in the RBA.”

This decision affirms that documents referenced by other documents should be part of the RBA and should lead a careful advocate to look for these documents.

Decision by Judges Pietsch, Meredith, and Falvey.

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