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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