Redwood: Class Certification and A Writ Denied

Redwood v. McDonough, Case Number 23-3260, decided December 6, 2023 concerned VA reimbursement of veterans for the costs of emergency medical care at non-VA facilities when the veteran has other health insurance coverage.

This case builds on Wolfe I and Wolfe II.  Wolfe II found a clear right to relief for veterans with respects to coinsurance but not deductibles, but the veteran had other adequate legal remedies so a writ of mandamus was not required.

Wolfe II led to Kimmel, which invalidated the VA’s exclusion of coinsurance reimbursement  and ordered the VA to amend its regulations within 120 days.  The new regulation allowed veteran’s impacted by the clarification of the law to file claims until February 2024 for reimbursement. 

This case involved an attempt at creating a class of veteran’s impacted by Wolfe I.  Essentially, the Court refused the class certification because the new VA regulations provided an avenue for such reimbursement and nothing indicated the proposed class members had exhausted their remedies before the VA. 

However, the case was more nuanced.  The petitioners argued the Wolfe I decision required the VA to readjudicate the claims whereas the regulation requires them to reapply.  Because the VA had not finished their claims (and doesn’t intend to absent an application), the petitioners reasoned the only remedy from the Court was a writ.  However, the Court explained that Wolfe II reversed the right to a writ of mandamus. 

The conclusion is legally defensible, but reiterates the VA’s unwillingness to assist veterans and desire to create as many barriers to rights as possible.  The Court shifted that responsibility to the class attorneys by suggesting that they could simply notify the class members of the ability to reapply, this is an action that a truly veteran friendly VA would undertake itself.  The Court’s willingness to push this action onto legal representatives rather than require of the VA is troubling.

Decision by Judges Greenberg, Allen,and Falvey.

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Held: Attorney Fees for CUE Claims

Held v. McDonough, Case Number 21-8048, decided November 14, 2023 involves a narrow question, whether an attorney can be awarded an attorney fee for a CUE claim where there has not been a NOD filed. 

In a clear statutory interpretation case, the Court held that the VA’s attorney fee regulation was at odds with the statute and the regulation was not enforceable.  The Court explained:

“To summarize what follows, we will reverse the Board's decision that appellant is barred from receiving fees as a matter of law and remand this matter for further proceedings concerning whether agent fees are warranted under the fee agreement between appellant and the veteran. At the time of the December 2019 RO decision on the veteran's CUE motion, 38 U.S.C. § 5904(c)(1) provided that "a fee may not be charged, allowed, or paid for services of agents and attorneys with respect to services provided before the date on which a claimant is provided notice of the agency of original jurisdiction's [(AOJ's)] initial decision under section 5104 of this title with respect to the case."

The parties agree—and the Court concurs—that under section 5904(c)(1), the "initial decision . . . with respect to the case" refers to the February 2017 RO decision concerning the veteran's PTSD rating, the decision in which the veteran later asserted CUE was present. The parties also agree—and the Court concurs—that notice of that February 2017 decision was provided under 38 U.S.C. § 5104. So, everything that Congress required under section 5904(c)(1) to warrant a fee was in place when the RO granted the veteran's CUE motion in December 2019. This would appear to be an open and shut statutory case for awarding a fee. And it should have been as far as the statute was concerned.”

Id. at *2.

The Court then asked: “So, why are we here? The answer is that the Board skipped over the statute Congress enacted. Instead, the Board relied on a regulation, 38 C.F.R. § 14.636(c)(2)(ii), to deny the fees appellant sought. That regulation adds requirements to what Congress included in section 5904(C)(1) as that statute existed in December 2019 when VA granted the veteran's CUE motion.”  Id. at *3.

The Court also noted that limiting attorney fees for CUE claims makes no sense as:

“It is clear that navigating the VA benefits system can be a complicated endeavor. And there is no question that it is particularly difficult to overcome a final unappealed decision. The evolution of section 5904 reflects congressional recognition of the importance of allowing veterans to obtain representation and for their representatives to charge fees, including in the context of reopening matters, especially those involving CUE motions. Further, the caselaw makes clear that limiting fees for work performed by representatives in CUE matters to only those cases in which an NOD had been filed on or before June 2007 would preclude payment of fees in most CUE cases—an outcome the Secretary acknowledged during oral argument.  There is no doubt that this would be detrimental to veterans because it would deter representatives from taking cases involving CUE motions. Indeed, in many cases involving CUE, an NOD would not have been filed because the "sole purpose of a CUE [motion] is to provide a VA claimant with an opportunity to challenge a decision that is otherwise final and unappealable."”

Id. at *11.

This was a clear decision of the Court finding the VA’s regulations conflicted with the empowering statute and the Court calling the VA on that.

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

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Kriner: A New Form Driven VA World Allowed

Kriner v. McDonough, Case Number 20-0774, decided October 25, 2023 involves what constitutes an intent to file. 

This was a remand from the Federal Circuit, which remanded since the Veterans Court did not support a legal conclusion that a March 2015 submission by the deceased veteran, if an ITF, could not change into accrued benefits for the surviving spouse. 

The Court noted: “the question for the Court is whether Mr. Kriner’s March 2015 submission to VA is an intent to file a claim—a question the Court didn’t explicitly answer in February 2021.  Appellant argues that the March 2015 submission is an intent to file.6 She also contends that she can substitute into the intent to file to then perfect a claim for benefits. The Secretary disagrees and points the Court to VA’s rationale behind creating the intent to file rules explained in the Federal Register.  To resolve the dispute, we must analyze VA’s intent-to-file regulation—38 C.F.R. § 3.155. The Court determines that the Board didn’t err when it reviewed the March 2015 submission and concluded that Mr. Kriner didn’t submit an intent to file and didn’t have a claim pending at the time of his death.”  Id. at *2.

This is an interesting question because it argued the veteran filed a letter that should be read as an ITF and then when he died, his wife filed a request for DIC and accrued benefits, she argued she wanted her deceased husband’s accrued benefits.  The Board denied and looked at the letter and said it was not an ITF but a request to reinstate non-service connected pension benefits.  The Court affirmed the Board decisions and found the letter was an informal communication and not a claim for benefits.  It also stated it was at best an ITF, but since it did not have the necessary form requirements and form, he died without a pending claim.  The Federal Circuit heard and remanded for a determination of whether the letter was a qualifying ITF.

The surviving spouse argued the form complied with the ITF rules, whereas the Court determined section 3.155(b)(1)  must file an ITF in one of the three enumerated methods: (1) Saved electronic application; (2) Written intent on a prescribed intent to file a claim form; or (3) Oral intent communicated to designated VA personnel and recorded in writing.  Id. at *15.  The Court then determined the veteran’s letter did not fall within an enumerated method of filing an ITF—essentially, it was not on the proper form.

This case demonstrates that the VA with the Veterans Court’s agreement is now incredibly form driven and being transformed from one focused on the veteran and instead one focused on the four-corners of a piece of paper—the right piece of paper at that.

Judge Jaquith’s concurrence writes in support of a non-form driven VA.  I hope it serves as a template for the appeal to the Federal Circuit.

Decision by Judge Laurer and joined in by the Toth.  Concurrence by Judge Jaquith. 

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Terry: More than One Administrative Review within 1 Year is Allowed

Terry v. McDonough, Case Number 20-7251, decided October 19, 2023 involves whether a veteran can file more than one administrative review request in response to and within one year of an AOJ decision provided the requests are not pending concurrently.

The Court held that “subsection 5104C(a) plainly provides that a claimant may file more than one administrative review request within 1 year of an initial AOJ decision on a claim, provided that such an administrative review request is not pending concurrently with another administrative review request.”  Id. at *2.  As a result, the Board erred when it construed the NOD as an appeal from a decision from a supplemental claim as opposed to the underlying AOJ decision.

Factually, the veteran had a long-standing claim before the VA and opted into the AMA and requested a HLR decision.  On April 16, 2019, a RO decision denied service connection for the issues.  In June 2019, the veteran filed a supplemental claim and attached documents to the form.  In September 2019, in a supplemental claim decision, the RO notified the veteran his claim remained denied because no new and relevant evidence had been submitted.  On April, 14 2019 the veteran filed a NMOD seeking review of the issues and identifying the April 16, 2019 decision as the one he sought review of.  In a June 2020 decision, the Board found the claim was denied because their was no new and relevant evidence, the April 16, 2019 RO decision had become final because it was not appealed.

The VA argued the law only allowed one administrative review request in response to a decision and that the subsequent review (in this case a NOD) could only be from the most recent agency decision.

The Court concluded: “Ultimately, when we read subsection 5104C(a) as a whole, we see that Congress provided that a claimant is able to select a second administrative review option with respect to a decision on the claim, so long as the 1-year period from that decision has not run and the second administrative review option does not run concurrently with the first administrative review option.”  Id. at *15.

The Court also considered the VA’s fear of simultaneous actions with respect to the same underlying request for benefits, “[i]n other words, the Secretary appears to be concerned that Mr. Terry could conceivably file administrative reviews of both the April 2019 HLR decision on the merits and the September 2019 decision that new and relevant evidence had not been submitted in connection with the supplemental claim.”  Id. at *14.  The Court noted that “subsection 5104C(a)(2)(A), …  prevents claimants from taking simultaneous actions "with respect to the same claim or same issue within the claim."  A "claim" is a request for "a determination of entitlement or evidencing a belief in entitlement, to a specific benefit." 38 C.F.R. § 3.1(p).”  Id.

The VA also argued the Court’s interpretation could lead to inequity among veterans who receive a quick HLR decision and those for whom an HLR decision takes more than one year.  Incredibly, the Secretary argued to the Court that “he would be encouraged to delay rendering decisions in response to actions take under subsection (a) until" the 1-year period following an AOJ decision had expired.”  Id. at *14-15.  The Court noted this incredible self-serving argument by the Secretary and stated “The Secretary's suggestion that VA would intentionally delay adjudicating thousands of requests for administrative review under the AMA simply to avoid the uncommon instance in which an administrative review is adjudicated within a year of an initial AOJ decision is stunning.….  It is difficult to comprehend that under a uniquely pro-claimant system, or indeed any system of adjudication, an agency would arbitrarily delay adjudication in order to avoid an outcome that Congress has expressly provided for by statute.”  Id. at *15.

This is an important decision that helps round out the contours of the AMA.  It also demonstrates that the VA actually wrote in a brief it would likely delay decisions unnecessarily in order to avoid the application of this rule.  This demonstrates the depravity of the VA, to do it silently is one thing—to write that you are going to do it is incredible.  I hope the Veterans Court remembers this is how the Secretary behaves.

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

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Kernz: The Veteran's Court Eviscerates the Concept of Jurisdiction

Kernz v. McDonough, Case Number 20-2365, decided October 4, 2023 involves whether a Board letter constituted an appealable decision over which the Court had jurisdiction. 

The veteran filed an NOD from a 2016 decision.  A December 2019 SOC continued the denial.  The veteran then opted into the AMA in January 2020 with a VA Form 10182.  The Board informed him in a letter that his 10182 was not timely.  The veteran filed an appeal with the CAVC, which led to the Board to send the veteran a letter saying the prior rejection as untimely was an error and his appeal was being docketed.  However, the veteran argued under Cerullo, the Board could not take away jurisdiction from the Court once the Court had jurisdiction.  The Secretary filed a motion to dismiss and the veteran sought class certification.

The en banc court in a split decision dismissed the appeal as moot and denied the request for class certification. 

The Court found the case was moot because he received the relief he sought (docketing of his appeal).  The Court declined to decide whether the letter was an appealable decision.  The Court declined to apply Cerullo noting the Board erred when it failed to seek permission to take corrective action because the action was prejudicial as it gave the veteran all that he sought. 

Dissents by Chief Judge Bartley and Judge Greenberg and Jaquith focused the case away from mootness but the Board overstepping its jurisdiction and acting in disregard of the veteran’s exercise of his right to judicial review. 

This decision illustrates the depths the VA will go to avoid a class action.  It is clear that the Board for some time was improperly rejecting valid notices of disagreements and the veteran sought to serve as a class action to force the Board to address that practice.  The VA disregarded the Court and simply mooted the case by taking an action that at least three judges agree the Board did not have authority to undertake.  The result is that now the Court has given permission to the VA to solve any hard appeal by simply going back to the Board to “fix” the error.  Whether the Court realizes it or not, it is working to make itself meaningless.  I can only hope this case is appealed to the Federal Circuit and that they understand the VA cannot be trusted to unilaterally decide when the Courts have jurisdiction over a case.

The case was heard by an en banc court and the opinion written by Judge Allen.  Judge Jaquith’s dissent, which would have granted class action is powerful and should serve as a template for appealing to the Federal Circuit.

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Perciavalle: CUE, No Change of Law and Pyramiding

Perciavalle v. Wilkie, Case Number 2022-1491, decided July 25, 2023 was before the Federal Circuit and considers CUE and the prohibition on pyramiding in the context of knee disabilities.

In 1966 the veteran was service connected for a left knee injury and granted a rating of 10% under DC 5259, which covers removal of cartilage from the knee.  In 1971 he sought an increase but was denied and did not appeal.  In 2015, he filed a motion to revise the 1971 decision based on CUE.  He argued he should have been rated under DC 5257 for slight instability of the knee and separately under DC 5003-5260 for limitation of motion of flexion and discomfort (pain) secondary to arthritis.   He explained that an x-ray report obtained during a 1971 VA examination clearly indicated arthritis in his left knee that decreased his range of motion and other evidence in 1971 showed instability.

VA denied the CUE motion stating in 1971 a policy was not in place allowing separate ratings for instability and limited motion. 

Now for some background, ordinarily different ratings for the same disability are not allowed as that would constitute pyramiding (awarding compensation for the same impairment under various diagnostic codes).  However, in the case of Esteban v. Brown, 6 Vet.App. 259 (1994), the Veteran’s Court “recognized that separate ratings were permissible for different diagnoses of the same disability as long as the conditions diagnosed shared no symptomology.”  So, separate ratings under different diagnostic codes can be awarded for the same disability if “none of the symptomatology for any one of the conditions was duplicative of or overlapping with the symptomatology of the other [diagnostic code ratings].” 

Three years after Estaban, the “VA’s General Counsel issued a guidance opinion specifically interpreting the ratings schedule as allowing separate ratings for the conditions at issue here—arthritis and instability in the same knee. VA Gen. Coun. Prec. 23-97 (July 1, 1997).”  The agency determined that, since "the plain terms of DC 5257 and 5003 suggest that those codes apply either to different disabilities or to different manifestations of the same disability, the evaluation of knee dysfunction under both codes would not amount to pyramiding under section 4.14. VA recognized that it was the first time the agency assumed an official position on the matter, as the opinion acknowledged that it was aware "of no formal position taken by the Veterans Benefits Administration on this issue" before then.”

Turning back to Perciavalle, the Board found the veteran’s CUE argument foreclosed by the existence of 38 C.F.R. Section 20.1403(c), which states CUE cannot be premised on a change in the interpretation of a statute or regulation.  The Board focused on the anti-pyramiding regulation and a finding that that not until Esteban was § 4.14 interpreted to permit separate ratings for distinct, non-overlapping symptomatology of the same underlying injury. It also found that VA did not issue its General Counsel opinion permitting separate ratings for arthritis and instability until 1997.

The Veterans Court initially reviewed favorably to the veteran, but an en banc panel found that while the Board erred in failing to properly interpret the veteran’s claim, no remand was required because the interpretation error was harmless.

The Federal Circuit began by noting the ability to revise a decision based on CUE, but such a claim must be evaluated by the law as it existed at the time of the challenged decision.  Id. at *8-9.

The Federal Circuit then noted the Veterans Court’s decision is odd in that it was comprised of seemingly opposed concurrences.  Three judges found no error by the Board.  Another judge found that although the Board erred the error was harmless because the alleged CUE was a legal error that had not yet been identified as error by a court decision or VA publication as of the date of the underlying decision.  Two judges found the Board erred but it was harmless because none of the evidence in 1971 supported an arthritis rating.

The Federal Circuit found the initial three judges rested on an erroneous legal principal.  The Court noted: “It read the veteran’s claim as based on retroactivity, but concluded that it did not matter whether the claim was based on a retroactivity theory because in order to state a claim of CUE, the veteran was required to set forth in his initial pleading a fullfledged legal argument as to why, in 1971, the RO erred in rejecting his claim….   

The Allen opinion would have required Mr. Perciavalle to either “attempt to analyze the regulations’ plain language to show how the RO’s interpretation was clearly and unmistakably wrong,” J.A. 41, or “produce[] a contemporaneous interpretation that reconciled the regulations in his favor,” J.A. 42.  This assertion ignores the fact that the “VA’s duty to sympathetically read a veteran’s pro se CUE motion to discern all potential claims is antecedent to a determination of whether a CUE claim has been pled with specificity.”  Andrews v. Nicholson, 421 F.3d 1278, 1283 (Fed. Cir. 2005).  Here, Mr. Perciavalle’s CUE claim set forth the relevant facts and regulations. Under a sympathetic reading of Mr. Perciavalle’s claim, the VA was required to “determine all potential claims raised by the evidence, applying all relevant laws and regulations.” Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001) (emphasis added). The Allen concurrence erred in requiring Mr. Perciavalle to set forth a legal argument with supporting authority in order to state a CUE claim.”  Id. at *12.

As to the belief the Board’s decision though error was harmless, the Court stated looked more closely at the harmless error rule.  It noted: “In its consideration of harmless error, however, if “additional findings of fact are necessary regarding matters open to debate, the proper action for the Veterans Court is to remand to the Board for consideration of those facts in the first instance.”  Id. at *12-13.  As to the Toth opinion, the Federal Circuit noted: “a legal error may be clear for the purpose of CUE despite the fact that there was no preceding court or agency decision on the precise legal question.”

This is an important decision that upholds the boundaries of 38 C.F.R. 20.1403(c) and also puts into play many decisions involving knee disabilities where the evidence supported an instability rating many years ago, but it was denied in favor of simply a limited motion rating.

Decision by Judge Dyk and joined in by Chief Judge Moore and Reyna.

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Cavaciuti: Federal Circuit Forecloses EAJA Fees for Writs of Mandamus

Cavaciuti v. McDonough, Case Number 2022-1531, decided August 3, 2023 was a case before the Federal Circuit concerning attorney fees under EAJA.

The Equal Access to Justice Act allows attorneys to represent veteran’s before the Veterans Court and Federal Circuit and only charge a fee if they win and then the U.S. government has to pay that fee.  It opens access to veterans to appeal decisions and without it, VA appeals would grind to a halt as most veteran’s would not be able to afford an attorney.  This is important because the vast majority of appeals to the Veterans Court result in remands, which means the VA had messed up in the decision making process.

This case specifically concerns a writ of mandamus to the Veterans Court.  Specifically, the VA was refusing to do what they clearly should and the veteran had to file a special type of motion asking the Veterans Court to force the VA to do it.  Ultimately, the Court didn’t have to rule on the motion because the VA finally did what it was supposed to do.  The VA asked to have the motion or writ rendered moot and close it.  The veteran argued the case was not moot

The veteran argued “the Veterans Court erred in not considering whether or not the terms of his relief were incorporated into the court’s previous dismissal order. He adds that the court also erred in not considering whether or not the VA made an admission of liability, or if its change in conduct was voluntary. Cavaciuti further argues that the court’s dismissal order materially changed the parties’ legal relationship by requiring the government to provide Cavaciuti relief. That material change, and the fact that the VA’s change in conduct was not voluntary, he asserts, distinguishes this case from one falling within the rejected catalyst theory.”  Id. at *5.

The government essentially argued the key to gaining EAJA fees is being a prevailing party and that dismissal of the order did not amount to a court-ordered change in the parties’ legal relationship that conferred prevailing party status. Instead, the government contends, this appeal relies on the catalyst theory, which “aptly describes Mr. Cavaciuti’s claim in this case,” but that does not convey prevailing party status.”  Id. at *5.

The Court affirmed the Veterans Court’s denial of EAJA fees and reasoned: “Crucially for the present case, an award of a benefit by the agency alone, even if prompted by the litigation, is insufficient without a judicial imprimatur. The Supreme Court has held that the catalyst theory is an improper basis for establishing an appellant as a prevailing party under the EAJA in the absence of a judicially sanctioned change in the legal relationship of the parties.”  Id. at *6.

It further reasoned:

“Here, there was no such judicial change in the legal relationship between the parties. The Veterans Court did not award any benefits or remand any claims because of Cavaciuti’s writ of mandamus petition. Rather, the court dismissed the petition as moot because the VA voluntarily changed its position and granted Cavaciuti entitlement to TDIU. The court’s dismissal order did not evaluate the merits of Cavaciuti’s petition, nor did it materially alter the parties’ legal relationship.

***

Regarding Cavaciuti’s argument concerning the lack of voluntariness of the government’s change in conduct, this is just another way of stating the catalyst theory rejected by the Supreme Court. The Court held in Buckhannon that an analysis of a defendant’s subjective motivations for changing its conduct—in particular, the desire to avoid a litigation loss—was legally insufficient to create prevailing-party status. The Court instead required a judicial action changing the legal relations of the parties. In this case, the VA implemented the Board’s TDIU decision, as requested by Cavaciuti following settlement discussions rather than based on any court order. Moreover, the fact that the government’s representations about the nature of the relief it was providing would estop it in the future from changing course does not render the Veterans Court’s dismissal a judicial imprimatur sufficient to make Cavaciuti the prevailing party. The government’s conduct merely created a future opportunity for a judicial order if the government did not live up to its representations.”

Id. at *7.

This was an excellent attempt to argue that the VA should pay EAJA when a court filing is necessary to get them to do what they are supposed to do.  However, the Supreme Court’s rejection of the catalyst theory seems to foreclose this possibility.

Decision by Judge Lourie and joined by Judges Dyk and Taranto.

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Grounds: The Federal Circuit Considers Bars to Veteran Eligibility for VA Benefits

Grounds v. McDonough, Case Number 2022-1607, decided July 14, 2023 was a case before the Federal Circuit concerning eligibility for benefits as a veteran.

The veteran served in the Army from 1969 until 1972 and then was charged with being AWOL.  To avoid a trial by court-martial, he requested a discharge from the Army “for the good of the service.”  He was in fact discharged “for the good of the service” and under conditions other than honorable.” 

When he applied for veteran’s benefits, he was denied because his multiple periods of AWOL constituted a pattern of willful and persistent misconduct and thus the discharge was considered “dishonorable” for the purposes of VA benefits.

The veteran argued that section 5303(a) does not bar him from receiving VA benefits because (1) he was never convicted for any AWOL offense and (2) his AWOL periods did not run 180 days or longer. Thus, the Veterans Court’s finding that Mr. Grounds’ AWOL offenses amounted to willful and persistent misconduct under section 3.12(d)(4) is inconsistent with section 5303(a).

The Federal Circuit agreed that Section 5303(a) does not bar the veteran from obtaining VA benefits.  But, the Federal Circuit found section 5303(a) was not the basis for the denial of benefits.  The Court explained: “Instead, the Board’s decision was grounded on, entirely appropriately, a regulation – specifically, section 3.12(d)(4). As we held in Garvey, 972 F.3d at 1334, “[s]ection 5303 . . . is not the exclusive test for benefits eligibility.” There we further held, expressly, that section 3.12(d)(4) is a permissible additional prohibition on eligibility for benefits. See id. at 1341. Mrs. Grounds does not challenge the validity of section 3.12(d)(4), see Appellant’s Brief at 5 (“Mrs. Grounds’s appeal is not a challenge to the validity of the Secretary’s regulation at 38 C.F.R. § 3.12(d).”); see also Oral Arg. at 13:7-14 (“I’m not challenging the validity of the regulation.”), and we are bound to follow Garvey. Accordingly, the Board did not err in finding Mr. Grounds ineligible for benefits pursuant to section 3.12(d)(4).”  Id. at *5.

The Court further explained: “An additional reason Mr. Grounds is not eligible is that he does not meet the statutory definition of “veteran” for benefits purposes. As we observed in Garvey, 972 F.3d at 1334, “[a] former servicemember is ineligible for benefits unless he or she is a ‘veteran’ as defined in 38 U.S.C. § 101(2).” “To be a ‘veteran’ under section 101(2), a former servicemember must have been discharged ‘under conditions other than dishonorable.’” Id. (quoting 38 U.S.C. § 101(2)). Mr. Grounds, however, was not discharged “under conditions other than dishonorable,” because section 3.12(d)(4) provides that “[a] discharge or release because of . . . [w]illful and persistent misconduct” is a discharge under “dishonorable conditions.” See also J.A. 36 (showing Mr. Grounds being discharged “[u]nder conditions other than Honorable”).”  Id. at *5.

This decision helps explain the bars to eligibility to VA benefits. 

Decision by Judge Stark and joined by Judges Reyna and Stoll.

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Wright: Can Dependent Status Be Re-established After Use of DEA Benefits

Wright v. McDonough, Case Number 20-2154, decided August 4, 2023 involves a narrow question of entitlement to a dependent allotment for a child of a totally disability veteran when that child has exhausted their DEA benefits before finishing their schooling. 

The veteran’s daughter exhausted her DEA benefits, but was still in school and he sought her to continue as a dependent as a full-time student until her graduation date.  The VA took the position that once a child elects Chapter 35 benefits (DEA) the decision is final and the VA cannot add them back to the veteran’s award.

The Court looked not only at the relevant statute, but its history (including hearings).  The Court ultimately looked to the plain meaning of the statute and found “the statute is clear that subsection (1) prohibits certain payments to adult children, and subsection (2) prohibits certain payments to those who receive payments because of their relationship to that adult child, including a veteran parent. Moreover, because the appellant's arguments that § 21.3023 is "inconsistent with [section] 3562 as well as . . . [section] 1115(1)(F)" and that the Board misapplied that regulation both rest on the incorrect notion that the section 3562 bar to payments applies only to the eligible person, those contentions also must fail.”  Id. at *19.

As to what benefits are barred, the Court found “the bar in subsection (2) applies to a veteran parent who may receive payments by reason of having an adult child. Thus, it is the first clause of the definition of compensation that is pertinent to subsection (2)—"a monthly payment made by the Secretary to a veteran because of service-connected disability." 38 U.S.C. § 101(13) (emphasis added). That means subsection (2) bars the veteran from receiving "increased rates" or "additional amounts" of monthly payments of disability compensation that would otherwise be paid because of his or her adult child.”  Id. at *21.

As to whether the bar to benefits could be lifted, the Court found it could not begin again. 

The Court ultimately held:  “To summarize the above statutory interpretation, the Court concludes that the section 3562(2) bar to payments (1) is triggered when an adult child begins an educational program intended to lead to an educational, professional, or vocational objective at a secondary school, (2) applies to a permanently and totally disabled veteran parent who may otherwise receive payments because his or her adult child is attending an educational institution, (3) prohibits the payment of "additional" monthly compensation to the veteran parent under section 1115(1)(F), and (4) is permanent.”  Id. at *27.

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

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Mayfield (Substitution Before the Court)

Mayfield v. McDonough, Case Number 21-8176, decided July 28, 2023 is an order involving substitution after a veteran has died during the appeal.

In Breedlove v. Shinseki, 24 Vet.App. 7, 20–21 (2010) (per curiam order), the court found it had discretion to permit a movant to be substituted for an appellant who dies during the pendency of an appeal in this Court, provided that there is either a determination by VA or a concession by the Secretary that the movant is an eligible accrued-benefits claimant.   The VA typically conditions its position regarding a substitution motion filed on how the regional office rules on a movant's parallel request for substitution filed with the Agency. As a consequence, the RO's ruling is usually dispositive.

This case involves a question arising from Breedlove, what happens when the moving party is dissatisfied with the RO’s denial for a request for substitution.  Can they seek to have the Court directly review the propriety of the RO's ruling.  The Court determined it generally will not grant a motion for substitution unless the VA first determines that the movant is the appropriate party to step into the appellant's shoes.  It then explains, a would-be substitute dissatisfied with the RO's determination must challenge it through the administrative appeals process and cannot short-circuit that process by challenging it directly to the Court first.

Underneath this determination is a long-running and very much disputed battle regarding substitution, the proper forms required for substitution (as opposed to seeking accrued benefits), and the Court’s inherent powers to control a case before it. 

I would expect this order to result in an appeal to the Federal Circuit.

Order by Judge Toth and joined in by Judges Meredith and Laurer. 

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Duran: Regulatory Interpretation, Agency Deference, and Pro-Veteran Canon

Duran v. McDonough, Case Number 20-5759, decided July 20, 2023 involves how to properly rate Parkinson’s disease. 

In this case, the Board replaced a 30% rating the veteran had been receiving under DC 8004 with a combined 50% rating for three distinct Parkinson's manifestations evaluated under different DCs.  These three ratings accounted for only some of his confirmed Parkinson's manifestations.  The Court noted “This appeal raises a narrow question about the proper reading of DC 8004: When some manifestations of Parkinson's disease are rated as compensable and total more than 30% under DCs other than DC 8004, but some manifestations remain that are not rated as compensable, do the ratings under the other DCs replace or combine with DC 8004's minimum 30% rating?” Id. at *1-2.

The veteran argued “compensable ratings under other DCs should be added to DC 8004's minimum 30% rating so long as additional ascertainable Parkinson's manifestations exist that are not otherwise compensable under the rating schedule. Based on the relevant text and regulatory context and the broader policies governing VA's rating scheme, we agree with [the veteran] on the regulation's plain meaning.”  Id. at *2.

Judge Toth wrote a detailed decision that focused on the plain reading of the regulation and focusing on the language of the regulation found:

“By virtue of having a diagnosis of Parkinson's disease with at least one ascertainable manifestation, Mr. Duran is entitled to a minimum 30% under DC 8004. Even when ascertainable manifestation ratings under other DCs combine for a total rating in excess of 30%, the basis for the minimum rating under DC 8004 remains as long as there is at least one ascertainable manifestation of Parkinson's disease that is not compensable under any other DC.  Thus, when VA assigns compensable ratings for Parkinson's manifestations that total more than 30% under DCs other than DC 8004, those other ratings do not replace the minimum 30% rating under DC 8004 provided that some manifestations remain that are not rated as compensable.”

Id. at *7.

As to this case, it then explained:

“Here, the Board found that Mr. Duran's Parkinson's disease manifested itself in at least eight ways. It concluded that three of those manifestations were entitled to separate compensable ratings that totaled 50% and that two were already compensated as parts of other conditions. That left three remaining manifestations that were not compensable under other DCs pertaining to the bodily systems involved: constipation, a chewing and swallowing condition, and a speech condition. Even in isolation, any of these three ascertainable manifestations warranted the minimum 30% rating under DC 8004. That means the Board should not have replaced the 30% rating under DC 8004 in this case. We therefore reverse the Board's discontinuance of that rating.”

Id. at *8.

Judge Jaquith wrote a concurring opinion to advance his belief that the pro-veteran canon applies to this case.  He argued that even if the preamble, DC 8004 and the note with $.25(b) make clear the veteran deserves separate ratings, the pro-veteran canon should still be considered because regulatory interpretation requires interpretation of words in the context and the context of the law as a whole should include the pro-veteran canon.  He argued that “the pro-veteran canon is part of the context within which we ascertain plain meaning.”  Id. at *16.

He also agreed with Judge Allen’s concurrence that even if the regulation was truly ambiguous, the Board’s decision was not owed deference because it is clear that is not the VA’s authoritative policy as to Parkinson’s disease.  Id. at *17.

Judge Allen also wrote a concurrence explaining he agreed with the result, but not the reasoning of Judge Toth.  Judge Allen wrote he believed the regulation was ambiguous and then stated “because the Secretary has not identified any official, authoritative agency position to which the Court can properly defer in terms of resolving the ambiguity before us, I would search for the best reading of the ambiguous regulation. That endeavor necessarily considers the pro-veteran canon of construction, the application of which removes any doubt here about the proper interpretation of 38 C.F.R. § 4.124a, DC 8004.”  Id. at *19-20.

Judge Allen found an ambiguity and then rejected the VA’s reliance on the Board decision itself as the source of any Kisor/Auer deference.  Id. at *22.  He also noted that the pro-veteran canon of interpretation is particularly helpful here “because both parties' interpretations of the regulatory structure are plausible.”  Id. at *23. Judge Allen then argued as to his interpretation of the pro-veteran canon that “Utilizing the pro-veteran canon to decide between two plausible interpretations does not mean the individual veteran automatically wins.  Rather, in my view, the canon means that the Court should adopt an interpretation of an ambiguous statute or regulation that is categorically favorable to veterans as a group.  There will be situations in which there is no universal pro-veteran meaning and, in such cases, the canon has no application. Here, there is no question that reading § 4.124a, DC 8004, as appellant suggests benefits all veterans seeking compensation for Parkinson's disease who manifest ascertainable but noncompensable Parkinson's residuals when VA has already assigned a separate compensable rating or ratings for Parkinson's manifestations that total more than 30% under diagnostic codes other than 8004.”

This is simply a fascinating case.  One judge ruled based solely on the plain language of the regulation whereas another found an ambiguity, but still favored the veteran.  Another, wrote a powerful concurrence essentially arguing that no regulation interpretation can occur absent rooting it in the pro-veteran canon.

I fully expect the VA to appeal this case and look forward to the Federal Circuit’s decision.  I would guess that it will be upheld and hope Judge Jaquith’s reasoning carries the day.

Decision by Judge Toth with separate concurrences by both Judge Allen and Jaquith.

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Webb: The Federal Circuit Looks at Ratings by Analogy

Webb v. McDonough, Case Number 2022-1243, decided June 29, 2023 was a case before the Federal Circuit and concerns how a condition not listed in the diagnostic code can be rated analogous to a listed condition.

The VA’s diagnostic codes are extensive, but it is possible a condition does not clearly fall under on one of the delineated codes.  VA regulations, specifically 38 CFR 4.20 acknowledges this possibility and states:  “When an unlisted condition is encountered it will be permissible to rate under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous.”

The Court explained: “In other words, this regulation provides that a veteran having an “unlisted” condition, i.e., one that is not included on the Schedule, can be rated analogously to—and given the associated disability rating of—a listed disease or injury, provided that the affected functions, anatomical location, and symptomatology of the veteran’s condition are “closely analogous” to those of the listed disease or injury.”  Id. at *3.

It is well accepted law that when considering an analogous rating, the VA should take into consideration three factors when determining which listed rating is most closely analogous: “(1) whether the ‘functions affected’ by ailments are analogous; (2) whether the ‘anatomical localization’ of the ailments is analogous; and (3) whether the ‘symptomatology’ of the ailments is analogous.”  Id. at *3.

In this case, the veteran developed service connected prostate cancer, the treatment for which caused erectile dysfunction (ED).  After the veteran reopened an earlier claim requesting disability benefits for his ED, the VA issued a decision assigning him a noncompensable (i.e., zero percent) rating for his disability. At that time, the Schedule did not include a diagnostic code for ED. See 38 C.F.R. § 4.115b (2015).  As a result, the RO rated the disability by analogy to diagnostic code (DC) 7522, which provides for a 20 percent disability rating for “[p]enis, deformity, with loss of erectile power.” IWith little discussion, the RO determined that his particular disability entitled him only to a noncompensable rating.  The Board found DC 7522 required a deformity and since the veteran could not show an actual deformity, the Board determined the veteran was not entitled to a higher rating.  This decision was affirmed by the Veterans Court.

The Federal Circuit noted the Veterans Court did not address the three factors already established in the law and concluded:

“that the Veterans Court erred by requiring Mr. Webb, to be eligible for benefits, to show that his unlisted condition identically matched the criteria of the listed condition to which his condition was rated by analogy. In doing so, the Veterans Court imposed a  requirement not stated in § 4.20, the sole regulation governing rating by analogy. We hold that, when rating by analogy under § 4.20, the VA must adhere to the requirements of that regulation. The listed disease or injury to which a veteran’s unlisted condition is being rated by analogy must be only “closely related,” not identical, to the unlisted condition. That regulation provides guidance for determining whether a listed condition is “closely related” to the unlisted condition: it is one “in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous” to the unlisted condition. 38 C.F.R. § 4.20; see also Lendenmann, 3 Vet. App. at 350–51. Further, once the VA has concluded that a listed disease or injury is “closely analogous” to a veteran’s unlisted condition, we see no source of law directing the VA to withhold the rating based on the qualifying criteria associated with that listed disease or injury’s diagnostic code.”

Id. at *6.

The Court further explained “it would be nonsensical to require a veteran’s unlisted disability to precisely meet the criteria for a listed disease or injury’s diagnostic code. After all, if a veteran’s condition did precisely meet the requirements of a listed condition, that condition could simply be rated under that listed condition’s diagnostic code; there would be no need to rate by analogy.”  Id. at *7.

The decision is a sensible explanation of a rating by analogy that points out that a rating by analogy is precisely that and does not require the elements of each symptom to match up perfectly.

Decision by Judge Stoll and joined by Judges Taranto and Chen.

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Frazier: The Federal Circuit Rejects a Minimum 10% Rating for Painful Joints

Frazier v. McDonough, Case Number 2022-1184, decided May 5, 2023 was a case before the Federal Circuit and concerned a rating for a hand injury.  Specifically, the veteran focused on whether a minimum a 10% rating for a joint injury is a minimum assignable rating.  The Federal Circuit answered in the negative.

The veteran injured two fingers when his PTSD caused him to become startled and he hurt himself.  He ultimately was granted service connection for the fingers, but a non-compensable rating was assigned.  The VA rated pursuant to DC 5230 (limitation of motion to the fingers), which provides a 0% rating.

The veteran noted 38 CFR Section 4.59 states: “The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint.”  The veteran then argued that because there was pain in the fourth and fifth fingers, Section 4.59 required at least a minimum compensable rating of 10%. 

The Court noted the veteran “claims that even for a condition clearly falling under Diagnostic Code 5230, section 4.59 of the regulations contains a freestanding requirement for the DVA to grant at least a 10 percent rating for any service-connected joint condition that is associated with pain.” 

The Federal Circuit explained “section 4.59 is not addressed to situations in which the injury in question lacks an appropriate diagnostic code. Rather, it applies to injuries that fall within particular diagnostic codes but are accompanied by pain. We therefore read section 4.59 as applying in conjunction with the appropriate diagnostic code for a particular condition and requiring reference to that diagnostic code to determine the minimum compensable rating for the injury in question.”

The veteran also more boldly argued the VA was barred by statute (specifically 38 USC 1114) from adopting disability ratings of zero, but that argument was also rejected by the Court. 

This was a novel argument and attempt to attack 0% ratings that was rejected by the Federal Circuit and points us back toward using the Diagnostic Codes and if appropriate extraschedular ratings.

Decision by Judge Bryson and joined by Judges Dyk and Prost with a separate concurrence by Judge Dyk.

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Taylor: DoD Edgefield Experiments, Secrecy Oaths, VA Effective Dates, and the Federal Circuit Wades In

Taylor v. McDonough, Case Number 19-2211, decided June 15, 2023 address a truly tragic set of facts.  The veteran had been the subject of chemical agent exposure studies at the Edgewood Arsenal during the Vietnam era.  He had specifically signed an oath of secrecy related to those tests and ultimately suffered severe psychological harm as a result of the testing.

“In 2006, the Department of Defense (DOD) declassified the names of the servicemen and women who had volunteered for the Edgewood Program and, in June of that year, VA sent the appellant a letter advising him that DOD had given permission for those identified to disclose to health care providers information about their involvement in the Edgewood Program that affected their health.”  See prior case.  In fact, the DOD had recommended telling participants of likely health consequences in 1979.

The veteran applied for benefits in February 2007 related to PTSD and submitted stressor statements related to the testing and additional stressors occurring in Vietnam.  A VA examiner determined there was PTSD resulting from “cumulative response” to the Edgewood experiments and Vietnam experiences.  The veteran was ultimately service connected for PTSD and granted TDIU with an effective date of his application date.

This appeal concerned whether an effective date prior to his application should be granted.  The veteran agreed normally an earlier effective date would not be allowed, but argued under the unusual facts of this case—i.e., the secrecy oath related to the testing—that an earlier effective date should be granted. 

The Veteran’s Court denied the veteran’s relief, but on appeal to the Federal Circuit, the Federal Circuit overturned on fairly narrow grounds.

As mentioned, the Veterans Court denied the veteran relief.  First, related to his Constitutional Due Process argument, the Veterans Court tersely found there was no good argument in favor and denied.  Second, the veteran sought equitable relief.  The Veterans Court again denied, saying their right to grant equitable relief is tightly circumscribed by case and statutory law and that they are not able to grant through equity substantive, monetary relief.

The Veterans Court then stated prior case law prevents equitable tolling in the context of the assignment of effective dates.  Judge Greenburg wrote a masterful dissent. 

On appeal to the Federal Circuit, the Federal Circuit found the doctrine of equitable estoppel is barred by prior Supreme Court precedent, which states that courts may not rely on equitable estoppel to award money from the public fisc of the United States in violation of limitations established by statute.

The Federal Circuit also found against an argument that 38 USC 6303 (directing the VA to provide information and assistance regarding potential claims before they even file or when the indicate interest in filing) was not persuasive. 

However, the Court did grant.  It found:

“we agree with Mr. Taylor in his alternative argument that he is entitled under the Constitution to have the effective date of his benefits determined notwithstanding § 5110’s claim filing limits on the effective date. For decades, the government denied Mr. Taylor his fundamental constitutional right of access to the adjudication system of VA, the exclusive forum for securing his legal entitlement to the benefits at issue. The government’s threat of court-martial or prosecution—without an exception for claims made to VA—affirmatively foreclosed meaningful access to the exclusive adjudicatory forum. And without questioning the strength of the interest in military secrecy, we see no adequate justification for this denial of access. The government makes only highly general assertions of national-security interests, but it acknowledges that VA has created and uses special processes for adjudicating claims by former members of the special forces for injuries incurred during military operations whose existence remains classified, and the government has furnished no adequate reason that secrecy could not have been similarly protected for Edgewood veterans like Mr. Taylor. For those reasons, which reach what we would expect to be a very rare set of circumstances, we hold that the claim-filing effective-date provisions of § 5110 are unconstitutional as applied to Mr. Taylor. A veteran in Mr. Taylor’s position is entitled, under ordinary remedial principles, to receive benefits for service-connected disabilities from the effective date that the veteran would have had in the absence of the government’s challenged conduct.  We reverse the Veterans Court’s decision and remand for expeditious proceedings to implement our holding.” 

Id. at *5-6.

Interestingly, four or five judges, depending on how you count, wrote an occurrence where they say they would have avoided reaching the constitutional arguments and found that equitable estoppel should be applied.  Id. at *59.  As to the bar of the use of equitable estoppel against the government involving claims for money, these judges read it much more narrowly as to allow this claim especially in light of Section 6303.

This case might have a narrow application, but surely there are a handful of Edgefield Experiment veterans who deserve a much earlier effective date for the tragedies inflicting on them that should now receive it.  More interestingly is the fact the Secretary of the VA never interceded and exercised is equitable powers to ends this case and grant what benefits were owed all of these years.

The decision was by Judge Taranto and was an en banc decision.

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Greer: The Board does not have to comply with section 5104(b)

Greer v. McDonough, Case Number 20-3047, decided June 12, 2023 involves the issue of whether the Board must comply with Section 5104(b) notice requirements. 

The case deal with whether a veteran could receive non-service connected pension benefits in light of his net worth, which was held in a trust.  But, the issues important going forward are whether the Board must comply with the notice requirements in 38 USC 5104(b) and whether the Board should have obtained a legal expert to address a complex trust document.

As to the first issue, the Court held “based upon the rule of construction included by Congress in the PACT Act, section 5104 as amended by the AMA does not apply to Board decisions. So, to the extent Ms. Greer contends that amended section 5104 imposes requirements that are substantively distinct from those imposed by section 7104, any noncompliance by the Board with respect to section 5104 wasn't error.”  Id. at *8.

The Court explained: “the decisive text is not "a decision by the Secretary under section 511" but rather the PACT Act's rule of construction for section 5104. The rule states that the amendments to section 5104 "shall not be construed to apply section 5104(a) . . . to decisions of the Board." Critically, "apply" is being used transitively rather than intransitively. The rule of construction doesn't say that the amendments themselves shall not be read to apply to Board decisions; it says that the amendments shall not be read to apply section 5104(a)—that is, make section 5104(a) applicable— to Board decisions. From this plain language, we understand the implicit but clear instruction from Congress to be that section 5104(a) did not apply to decisions of the Board under the AMA at the time of the PACT Act's passage and that this inapplicability is to continue thereafter.” Id. at *6.

As to the second issue, the Court “rejects the attempt to pigeonhole Board members as competent only to address run-of-the-mill veterans law issues. Colvin's rule regarding medical questions cannot be analogized to legal questions, and we decline to impose a presumption of incompetence on the Board when it comes to broader legal issues—a presumption incompatible with this country's adjudicatory tradition. We hold that the Board member in this case was not required to secure an expert legal opinion in order to competently assess the Trust.”  Id. at *12.

The determination that the Board does not have to comply with Section 5104(b) notice requirements is a shift that will likely impact the future.  It allows the Board to dispense with arguments without ever really considering them fully.

Decision by Judge Toth and joined by Chief Judge Bartley and Judge Jaquith. 

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Bean: The Federal Circuit explains the Veterans Court Jurisdiction Includes Issues Before the Board but Not Decided by the Board

Bean v. McDonough, Case Number 2022-1447, decided April 26, 2023 was a case before the Federal Circuit and concerned the Veterans Court’s jurisdiction.

The veteran submitted a claim for PTSD in 1997 and a VA examiner diagnosed other mental health conditions, but not PTSD.  The VA denied the claim and the veteran did not appeal.

In 2006, the veteran submitted an informal claim, seeking service connection for depression, anxiety disorder, and PTSD. The VA granted service connection for PTSD and assigned a 2006 effective date, the date of the application.  The veteran appealed the effective date.  At the same time, he argued he had an unadjudicated claim pending from 1997 because the claim for PTSD constituted a claim for the other diagnosed mental health conditions.

The Board denied.  It acknowledged the veteran had been diagnosed with major depression and generalized anxiety disorder in 1997, but stated the issue of an unadjudicated claim was not before it and Mr. Bean could file a motion for CUE in the alternative.

Following the Board’s advice, the veteran did not file an appeal to the CAVC, but filed a CUE motion.  The RO and Board then denied, and the veteran appealed to the CAVC.

An original single-judge decision was withdrawn after a motion for reconsideration by the Secretary.  The Court then denied based on lack of jurisdiction, determining the Board did not actually decide the issue of the unadjudicated claim, but only the issue of an earlier effective date.

The Federal Circuit reversed.  It held the Veterans Court erred in finding its jurisdiction was limited to affirmative determinations made by the Board.  The Federal Circuit explained the Veterans Court’s holding “is clearly contrary to the legal principle that when a claim is adequately presented to the Board but not addressed by the Board, the Board’s disposition of the appeal constitutes a decision of the Board on that claim that may be appealed to the Veterans Court.  The Veterans Court deemed its jurisdiction to be limited to the affirmative determinations made by the Board, and not to cover a Board disposition of an appeal that is challenged as improperly failing to address contentions clearly before the Board.” Id. at *17.  The Federal Circuit found the original single-judge opinion decided the issue properly and the CAVC should not have reversed itself on the Secretary’s motion.

The Federal Circuit then went further and helped the veteran by noting: “Having noted above some precedent on the issue, we add that, to the extent relevant, the Veterans Court should also take account of our precedent establishing that, when the RO has not adjudicated claims before it, there is not a final decision on those claims and “a CUE analysis [with its demanding standards] is not required.””  Id. at *19.

Decision by Judge Schall and joined by Judges Newman and Taranto.

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Picket: 3.156(b) and Implicit Denials

Pickett v. McDonough, Case Number 2022-1057, decided April 6, 2023, was a case before the Federal Circuit and concerned a claim for an earlier effective date and whether the VA had complied with the notice requirements of under 38 CFR 3.156(b).  It is truly the companion case to Hampton.

The veteran had been service connected for PTSD and coronary artery disease (CAD) effective April 2004.  The claim for CAD was granted in 2010 pursuant to Nehmer and the 2004 effective date was because that is when he first mentioned herbicide exposure.  He appealed that decision seeking a higher rating and during that claim also submitted a claim for TDIU, explaining his CAD and PTSD prevent him from working and he last worked in June 2007.

A January 2013 RO decision listed the TDIU application as evidence considered and denied TDIU.  An April 2014 RO decision also denied the claim.  Later he was connected for TDIU with an effective date of January 2017, but argued under 3.156(b) the VA failed to assess whether his 2011 TDIU application was new and material evidence that supported his claim, meaning his 2004 claim remained pending.  Thus, the question was whether the 2004 claim remained pending.

The CAVC determined that based on the 2013 RO decision, the VA essentially treated the TDIU application was new and material evidence and considered it in connection with the pending CAD claim. 

The Federal Circuit framed the issue as:

“we must determine whether the VA may indicate its compliance with § 3.156(b) implicitly, as the Veterans Court found, or must do so explicitly, as Mr. Pickett argues. If Mr. Pickett is correct, and the VA failed to make an explicit finding as to whether the 2011 VA Form 21-8940 is new and material evidence, then Mr. Pickett contends that this evidence relates to the pending April 2004 claim and thus his April 2004 claim remains pending. As such, Mr. Pickett argues that he could be entitled to TDIU prior to 2017. On the other hand, if Mr. Pickett’s interpretation of § 3.156(b) is wrong, then the April 2004 claim stream ended when he failed to appeal the January 2013 or April 2014 RO decisions and he is not entitled to TDIU before 2017.”

Id. at *6.

The Federal Circuit began by explaining Section 3.156(b) provides “s that the VA must treat (1) new and material evidence (2) received prior to the end of the appeal period (3) as having been filed in connection with the claim that was pending at the beginning of the appeal period. While the VA must comply with the regulation, nothing in the text of the regulation states that the VA must expressly state its analysis under this regulation.”  Id. at *6.

The veteran argued Section 3.156(b) requires more than addressing evidence, “In other words, the VA must do more than list evidence that is new and material and filed before the end of the appeal period as evidence considered in the case. He argues that an assessment under § 3.156(b) “must be explicitly stated in [a VA] decision.””  Id. at *7.  As support, the veteran particularly pointed to the cases of Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011) and Beraud v. McDonald, 766 F.3d 1402 (Fed. Cir. 2014).

However, the Federal Circuit disagreed.  It explained: “the VA’s obligation under § 3.156(b) is mandatory, but our case law does not require the VA’s decision to include specific words to fulfill the requirements of § 3.156(b). Instead, consistent with the text of § 3.156(b), Bond and Beraud allow for an implicit finding so long as there is some indication that the VA determined whether the submission is new and material evidence and, if so, considered such evidence in evaluating the pending claim.”  Id. at *9.

I find the Court’s rationale as to the implicit denial seems to lack a logical step.  But, the take-away for veterans and advocates is you had better appeal when you know.

Decision by Judge Stoll and joined by Judges Schall and Cunningham.

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Hampton: The CAFC Finds an Implicit Denial of TDIU for Purposes of 38 CFR 3.156(b)

Hampton v. McDonough, Case Number 2022-1359, was decided June 5, 2023 was a case before the Federal Circuit and concerned a claim for an earlier effective date under 38 CFR 3.156(b) and found new and material evidence had been considered and implicitly denied.

The veteran applied for TDIU in 1999 and was denied within a month and did not appeal the decision.  She applied for a migraine headache increase months later and was also denied and did not appeal that decision.  In 2003, the veteran filed a new claim for an increase and the Board ultimately granted TDIU effective from the new claim for an increase, 2003. 

The veteran argued that the 1999 TDIU denial was still pending because she submitted additional evidence within the one year appear window but never received a determination by the VA on whether the evidence was new and material as required by 38 CFR 3.156(b).  The BVA denied saying the 2000 migraine headache increase denial was an implicit denial of the 1999 TDIU claim. 

The Court looked at Pickett v. McDonough, 64 F.4th 1342 (Fed. Cir. 2023) for direction.  The Court explained:

“The facts here are similar to those in Pickett.  Ms. Hampton filed additional evidence within a year of her 1999 TDIU claim being denied: her May 1999 statement to the RO seeking a higher rating for migraines and a May 1999 VA examination report. The RO’s June 1999 decision, and later the Board’s 2000 decision, indicated that the RO considered the May 1999 evidence and did not find reason to increase Ms. Hampton’s rating for migraines. But like the veteran in Pickett, Ms. Hampton argues this was not enough. She argues that the RO was required to make an explicit finding that her May 1999 statement and May 1999 VA examination report were new and material evidence to her 1999 TDIU claim.

This is not what § 3.156(b) requires. Following our precedent in Pickett, all that was required to satisfy § 3.156(b) was some indication that (1) the VA had determined that the May 1999 statement and May 1999 VA examination report were new and material, and (2) the VA considered that evidence as to her 1999 TDIU claim. Both are satisfied here.”

Id. at *7.

The Court noted the RO decision listed the May 1999 VA examination report as evidence considered, addressed what was necessary for an increased migraine rating, and denied in the migraine increase on its merits.  “Although the RO decision did not explicitly list Ms. Hampton’s May 1999 statement as evidence considered, it implied that the RO  onsidered this statement new and material evidence because it acknowledged receiving Ms. Hampton’s May 1999 statement in support of her claim and necessarily issued the RO decision in response to that statement.”  Id. *8.

The Court also found the VA implicitly considered the May 1999 evidence as to the TDIU claim.  The Court explained

“When a veteran has more than one pending claim but only one of those claims is explicitly denied, a related pending claim may still be deemed implicitly denied. Deshotel v. Nicholson, 457 F.3d 1258, 1261 (Fed. Cir. 2006). Here, the Veterans Court found that “[t]he Board, by denying the increased evaluation for migraines, on a schedular and extra[-]schedular basis, also implicitly denied any higher ratings.” J.A. 28. We see no legal error with this conclusion. Because the RO’s and the Board’s decisions indicate that they considered the May 1999 evidence as new and material, and because those decisions implicitly denied TDIU, it follows that the VA considered the May 1999 evidence as to Ms. Hampton’s TDIU claim—not just as to her increased rating claim for migraines. Nothing more was required to satisfy § 3.156(b).”

Id. at *8-9. 

I find the Court’s rationale as to the implicit denial seems to lack a logical step.  It is not clear to me that by acknowledging evidence and denying a higher migraine headache, the VA also denied the TDIU claim again in light of the new evidence.  There is simply no indication the issue of TDIU, after the new evidence was submitted, was considered by the VA or a decision was communicated to the veteran.  Additionally, the requirements for a migraine rating versus TDIU are vastly different.  This is a troubling decision.

Decision by Judge Hughes and joined by Judges Taranto and Clevenger.

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Davis: Constructive Possession by the VA

Davis v. McDonough, Case Number 20-5411, decided May 31, 2023 involves the issue of constructive possession and what is before the Board.

The case considered an untimely notice of disagreement and whether the Board erred in not considering evidence submitted by the veteran related to VA’s mailing of a May 2016 decision. 

As to the evidence, the Court began by focusing on the AMA and its allowance that a veteran who appeals to the Board and wants to submit additional evidence must do so within 90 days after the Board’s receipt of the VA Form 10182 (NOD).  The question on appeal was what constituted “receipt” so as to trigger the 90 days.

After filing the NOD, the Board sent a letter stating he had 90 days from the date of the Bar’s receipt of his NOD to submit new evidence.  He responded with a letter noting the VA’s letter and requested the Board postpone any decision for the full 90 days beginning with the VA’s letter acknowledging receipt.  Within 90 days of he VA’s initial letter, but not within 90 days of the date the NOD was sent, counsel submitted a brief along with supporting evidence.

The Board “found that the 90-day window to submit evidence began upon receipt of Mr. Davis's VA Form 10182 NOD on August 14, 2019—not when the Board mailed its September 9, 2019, acknowledgement that it had received his VA Form 10182 NOD. Because the Board found that Mr. Davis's December 5, 2019, evidence submission fell outside the 90-day window (which, according to the Board, ended on November 12, 2019), it concluded that it was unable to consider that evidence.”  Id. at *4. 

The veteran argued to the Court there was a distinction between filing a document and VA’s receipt of a document.  Specifically, “relying on Black's Law Dictionary definitions, Mr. Davis notes that, as applied to NODs, "file" refers to the delivering of the NOD whereas "receipt" means the act of taking possession over the NOD. Appellant's Br. at 7-8; see File, BLACK'S LAW DICTIONARY (11th ed. 2019) ("To deliver a legal document to the court clerk or record custodian for placement into the official record."); Receive, BLACK'S LAW DICTIONARY ("To take (something offered, given, sent, etc.); to come into possession of or get from some outside source."). Using these definitions, he argues that the two words are not synonymous and that Congress acted intentionally in section 7113(c) when it used the Board's "receipt" as the event triggering the 90-day evidence submission window.  To that end, he argues that the Board received his VA Form 10182 NOD on September 9, 2019, the date the EIC uploaded the form to his claims file and the Board acknowledged receipt of the NOD, as opposed to August 14, 2019, the date he faxed it.”  Id. at *6.

The Court explained: “even accepting the argument that "file" and "receipt" refer to  discreet actions, Mr. Davis fails to demonstrate why such a distinction is significant in his case. In other words, although he argues that the dates of filing and receipt are not necessarily the same, he fails to explain how the two dates are different in his case.”  Id. at *6. 

The Court also grappled with the veteran’s argument of constructive possession.  Here, he argued some of the documents pertinent to the timeliness issue were constructively before the Board, specifically a GAO report regarding mailing; two letters from counsel in other cases complaining of not receiving mail; and affidavits cited by the Veteran’s Court in Romero v. Tran, 33 Vet. App, 252 (2021). 

The Court began by saying for constructive possession to occur, (1) the evidence must pre-date the Board decision; (2) the evidence must be within the Secretary’s control (meaning actual or constructive knowledge); and (3) the evidence must be relevant and reasonably connected to the veteran’s claim.  Id. at *9.  The Court also noted the Federal Circuit had rejected a direct relationship test (ie the evidence must bear a direct relationship to the specific veteran for the VA to have constructive possession of it in an individual’s case). 

As to the GAO report, the Court found it was too tenuous of a connection to the timeliness issue for the Board’s to have constructive possession.  As to the letters from the attorney the Court stated letters sent to VA administrators as opposed to adjudicators would not be expected to associated with the veteran’s file.  Id. at *11.  As to the affidavits previously relied upon by the Court in a published decision, the Court determined Romero was decided prior to the Board decision.

Judge Falvey discussed constructive possession more in a concurrence and explained to his thinking:

“The bottom line is, constructive possession is not a "get-out-of-submitting-evidence" card. Instead, it is a tool to make sure that relevant evidence—evidence that tends to prove or disprove a material fact—is included in the record when it can be reasonably expected that VA would have "investigated, gathered, and considered" that evidence. Bowey v. West, 11 Vet.App. 106, 109 (1998).

To this end, the inquiry can include several considerations. Why was the document created? How did VA get it? Is the document so widely known that we can presume VA adjudicators are aware or should be aware of it? If VA knows about the document, is the document relevant to how VA adjudicates claims? Is this the kind of document we would have expected VA to seek out under an applicable duty to assist if the veteran mentioned it to VA? Would we expect VA to address this kind of evidence if it was in the file? This is by no means an exhaustive list. But if the answer to most of these or similar question is "no", then odds are pretty good that the document was not constructively before VA.

Thus, a widely cited report established by Congress to address the relationship between herbicides and service comes in when the claim involves questions about whether herbicides caused the veteran's disability. But anecdotes about nonreceipt of mail from advocates submitted in other cases or sent to VA leadership are out; they are not things we would expect VA adjudicators to be aware of or to investigate and consider in individual cases. The same is true of a GAO report obtained to address the efficiency of VA's mailing practices and not dealing with whether VA fails to send claim documents to claimants, it is simply not relevant. In fact, even if the report had actually been in the record, I would not fault the Board for not addressing it; the report does not deal with whether VA failed to send claim documents to veterans—the issue Mr. Davis cares about. "[T]he Board does not have to discuss all the evidence, but it must discuss the relevant evidence."”

Id. at *17-18.

While I believe ultimately the filing versus receipt distinction is unlikely to win, I believe the Court’s explanation as to constructive possession is too narrow.  I expect this decision to be appealed and am hopefully the Federal Circuit realizes that a letter sent to the VA administrators is also constructively before everyone at the VA.

Decision by Chief Judge Barltey and joined by Judges Falvey and Laurer. 

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Estevez: Shoulder Rotation Ratings Explained

Estevez v. McDonough, Case Number 20-8637, decided May 19, 2023 addressed shoulder rotation ratings under the pre-amendment version of Diagnostic Code 5201 (limitation of motion of the arm). 

The Board denied entitlement to a shoulder rating greater than 20% under then DC 5201 because ROM from 2010 and 2019 revealed limited abduction at 90 degrees.  “The Board acknowledged that Mr. Estevez's right shoulder disability caused additional functional loss due to pain and an inability to carry heavy objects, but it concluded that a higher evaluation was not warranted because, even factoring in that additional functional loss, his level of disability did not more nearly approximate arm motion limited to midway between the side and shoulder level.”  Id. at *4.

DC 5210 was amended effective February 2021 to clarify the terminology related to the shoulder.  The veteran argued the Board, in focusing solely on limitation of abduction, misinterpreted pre-amendment DC 5201 to exclude his limited shoulder internal rotation.  The Court noted “The veteran's argument is based on simple math. In his view, a 30% evaluation under preamendment DC 5201 required limitation midway between side and shoulder level, which he calculates as 45°, and a 20% evaluation required limitation at shoulder level, which he calculates as 90°. He reasons that, because the 2020 version of DC 5201 did not specify any particular type of limited arm motion, the October 2019 VA examiner's finding of internal rotation limited to 55° more nearly approximates the criteria for a 30% evaluation because 55° is numerically closer to 45° than to 90°.”  Id. at *7.

The Court noted that Section 4.71 “identifies different starting points for measuring shoulder flexion and abduction (from anatomical position as 0°) and for shoulder internal and external rotation (from the position of the "arm abducted to 90°, elbow flexed to 90° with the position of the forearm reflecting the midpoint 0° between internal and external rotation of the shoulder" as 0°). For shoulder flexion and abduction, Plate I depicts movements away from the side of the body in the sagittal and coronal planes, respectively, whereas for shoulder rotation, it depicts movements in the transverse plane around a different axis. 38 C.F.R. § 4.71, Plate I.  7 Plate I also specifies different numeric ranges of motion for shoulder flexion and abduction (0° to 180°) and internal and external rotation (0° to 90°). Id. These differences are fatal to Mr. Estevez's proposed interpretation because only the method for measuring shoulder flexion and abduction comports with the pre-amendment evaluation criteria.”  Id. at *9. 

The Court concluded: “In short, although pre-amendment DC 5201 did not specify that it applied only to certain types of arm motions, the language and structure of the DC indicates that it was, in fact, limited to shoulder flexion and abduction. Given that Mr. Estevez argues only that the Board committed reversible error in not awarding a higher right shoulder evaluation under that DC based on his limited shoulder internal rotation, and given that he did not argue that the Board committed any other error in evaluating that disability, the Court will affirm that portion of the Board decision.”  Id. at *12.

The Court also considered a knee and lichen planus issue that resulted in remand and are of lesser importance.

This veteran made a good argument for a higher shoulder rating that was simply not accepted by the Court based on the totality of the diagnostic code.

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

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Encarnacion Continued: RO Decisions Implementing A Board Decision Cannot be Appealed and The Board Cannot Unilaterally Wrest Jurisdiction from the Court

Encarnacion v. McDonough, Case Number 21-1411, decided January 30, 2023 involved whether a RO decision implementing a Board decision could be appealed.  The VA asked for reconsideration by the Court, which was granted and a new decision (substantively similar to the first) was rendered on May 18, 2023.

Shortly after the veteran died, the surviving spouse filed for DIC and accrued benefits.  Ultimately the Board granted a 10% rating with a specified effective date for a right knee condition.  The RO then implemented the Board’s decision in another decision.  The surviving spouse filed an NOD as to the AOJ’s implementation with regard to the amount of the rating.  The VA then issued both a SOC and sent a letter rejecting the NOD.  The surviving spouse filed a Form 9 and the SOC was certified to the Board, which issued another decision as to the rating issue.  She appealed that decision to the Court and won a JMR because the Board erred in addressing the merits before determining whether the AOJ properly found it could not accept the NOD.

On remand, the Board determined it lacked jurisdiction because the spouse may not challenge the merits of a Board decision by expressing disagreement with the AOJ’s implementation of it.  The Board determined the law prohibits a NOD with respect to this type of implementation. 

The Court determined: “the pure implementation of a Board adjudication cannot be regarded as a decision "affect[ing] the provision of benefits" under section 511(a) and so cannot be appealed to the Board.”  Id. at *5.  It noted: “Here, the implementation of the Board decision by the AOJ was accompanied by no new findings of fact or law that could affect the award of disability benefits.  The Board had already granted service connection and resolved the proper rating and effective date. Even more importantly, the AOJ couldn't render new findings on factual or legal issues already determined by the Board because that would place the AOJ in the untenable position of reviewing the decision of a superior tribunal on those matters.  In sum, the AOJ's purely ministerial implementation of the Board's judgment was not a "decision" of the Secretary and thus could not be appealed through the filing of an NOD.”  Id. at *5-6.

The surviving spouse tried to argue the VA waived any objection to jurisdictional defect because the VA continued to adjudicate the claim by issuing a SOC and certifying to the Board.  But, the Court found without a decision under Section 511, there is simply nothing to review.  Id. at *6. 

However, the Court did find she was not without recourse.  It found the Board was required to determine whether her written disagreement with the decision (purported NOD) was a motion to reconsider the Board’s decision.  It also noted it was submitted within 120 days, which would abate the finality of the time to appeal to the Court.

On the motion to reconsider, the Secretary argued the Board had already considered the 2018 NOD as a request to reconsider and the Court had no jurisdiction over the 2018 decision.

“The Court grant[ed] reconsideration and agree[d], at least in one aspect, with the Secretary. We thus rescind the vacatur of the May 2018 Board decision. The Court declines, however, to alter its analysis regarding vacatur of the June 2020 Board decision or the Agency's duty to consider whether Ms. Encarnacion's July 2018 NOD constitutes a motion to reconsider the May 2018 Board decision. Once an issue has been properly presented to the Court for resolution, the Board may not wrest the issue from our consideration.”   Id. at *2.

While the case was pending before the Court, the Board tried to wrest jurisdiction from the Court by issuing a decision considering the July 2018 NOD as a request for reconsideration of the May 2018 Board decision.  The Secretary argued there is no need for the Court to order the Board to do something it has already done.  The Court rejected this argument, saying “But this misunderstands the situation: the Court's task on appeal was to determine whether the Board committed error in the June 2020 decision, and we determined that it did by failing to address the Ratliff issue. That was the appropriate time for the Board to consider the matter—not in October 2022, more than a year and a half after Ms. Encarnacion filed her Notice of Appeal here and more than two weeks after our order notified the parties that we were considering whether the July 2018 NOD should be construed as a motion for Board Chairman reconsideration.”  Id. at *7.

The Court explained and admonished the Secretary that,

“The Board's unilateral action ignored our admonition in Cerullo v. Derwinski, 1 Vet.App. 195, 197 (1991), that "[o]nce an appellate body takes jurisdiction over a claim, the lower tribunal may not consider the same issues." Not only is the concept of "concurrent or dual plenary jurisdiction . . . impermissible," we explained, but "allowance of dual jurisdiction raises the possibility that a court of appeals will expend extensive judicial time on a case only to have agency reconsideration nullify its efforts." Id. In this case, we ordered the Board on October 21 not to take action on any issue pending before the Court unless it was first granted leave to do so per the procedures spelled out in Cerullo. The Secretary declined to seek such leave on the Board's behalf. Given Cerullo and this Court's order, it should have been clear that the Board's belated attempt to dispose of the Ratliff issue while the Court was actively considering the matter was of no legal consequence. Regardless of what the Board purported, it could not construe the July 2018 NOD as a request for reconsideration of the May 2018 Board decision until the Court addressed the issue, over which we had taken jurisdiction. The Court having determined that Ratliff applied in these circumstances and that the June 2020 decision must be vacated, the Board is now permitted to construe the NOD as a motion for Board Chairman reconsideration.

This disposition clarifies not only juridical matters but practical ones. Action taken by the Secretary on an issue that is pending before this Court risks confusion as to governing procedures and deadlines. For example, the timing of a decision by the Chairman as to whether to grant or deny reconsideration directly impacts the timeframe within which a VA claimant can appeal a Board decision to this Court. In Rosler v. Derwinski, 1 Vet.App. 241, 249 (1991), we established that, unless a protective Notice of Appeal has been filed in this Court, VA must "advise the claimant of the new 120-day judicial appeal period that commences, as to the underlying substantive [Board] decision, on the date of the mailing of the [Board's] notice of denial of the motion for reconsideration." Claimants, especially those who lack the assistance of capable counsel, could easily lose track of what they must do to pursue their cases properly when a claim or issue is being adjudicated simultaneously by two different tribunals.”

Id. at *8.

Judge Jaquith wrote a concurrence in which he focused on the tortured procedural history of this case and in particular how the VA seems to have not handled the substitution properly and without proper notice.  It is a well-reasoned discussion that sympathetically focuses on the veteran or surviving spouse.  He particularly called out the Secretary, saying “VA has flouted the authority of the Board and this Court, and our dissenting colleague says we are powerless to address the Agency's defiance. In my view, a contrary conclusion is dictated by our status and function as a court created to provide independent judicial review of decisions in a system founded on fair process.”  Id. at *9-10.

Judge Falvey wrote a dissent in part.  He agreed that the a RO decision simply implementing a Board decision could not be appealed, but disagreed with everything else.  He essentially argued that the remand simply added steps and time to the surviving spouse’s appeal. 

This is an odd case with a twisted procedural history that no doubt confused an older, unrepresented surviving spouse.  However, the Courts definition of a decision as one not requiring any further adjudication by the AOJ is a helpful clarification.  The Court’s willingness to directly say the Board should have considered the second NOD as a motion for reconsideration and then going a step further and saying the VA cannot unilaterally wrest control of the appeal from the Board by later addressing the motion is also very helpful and demonstrates that at least some of the judges are tired of the VA’s unceasing games.

Decision by Judge Toth.  Concurrence by J. Jaquith and dissent in part by J. Falvey.

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