Edwards: How the AMA Complicated Board Hearings

Edwards v. McDonough, Case Number 20-7244, decided March 20, 2023 involved a NOD where the veteran elected direct review, but attached evidence to the form.  The Court determined the Board should have clarified which review docket the veteran intended to choose and thus the Court set aside the decision and required readjudication.

The veteran submitted a NOD marked direct review, but submitted a statement with the NOD detailing the auto accident which led to his neck injury.  The Board issued a decision stating it was limiting its review to the evidence considered by the RO, but also included the veteran’s statement in the list of evidence it considered.

The veteran argued the NOD and statements liberally read together created a reasonable uncertainty as to what Board review option he intended to elect, which required the Board to ask to clarify pursuant to 38 CFR Section 20.202(f).  The Secretary argued the NOD was clear on its face.

The Court agreed:

“with Mr. Edwards that, when read together, his VA Form 10182 docket election and its attached statement were unclear—if not wholly contradictory—concerning the docket choice that Mr. Edwards intended, and the Board was required to clarify his intent. Mr.

Edwards elected the direct review docket, with the printed restriction that the veteran  agrees that he "will not submit any additional evidence in support of [his] appeal." Simultaneously, Mr. Edwards attached a statement to his form that provided new  information regarding the circumstances of his in-service accident, his symptoms, and the medical care he sought and received to treat those symptoms. Despite the Secretary's protestations to the contrary, it is simply not possible to reconcile Mr. Edwards's submission of this new evidence with his chosen election. Indeed, it is perfectly clear to the Court that Mr. Edwards's scenario gave rise to the exact type of confusion or uncertainty suggested in the regulation's title.”

Id. at *7.

It further explained:

“To be clear, we do not speculate as to whether other scenarios might implicate § 20.202(f) and VA's obligation to clarify a claimant's NOD docket election. Accordingly, we do not address the situation where the veteran submits additional statements or evidence after submitting the VA Form 10182, a scenario referenced by the Secretary at oral argument. We need not address these questions because here Mr. Edwards's VA Form 10182 and attached statement were part of the same submission and were explicitly intended to be contemplated together, and his attached statement created uncertainty as to which Board review docket he intended to elect. We conclude only that the § 20.202(f) duty to clarify the veteran's intent attached in this case because the VA Form 10182 submission as a whole, consisting of the form itself and the attached statement, raised uncertainty that the Board did not acknowledge or attempt to resolve consistent with VA

regulation.”

Id. at *9.

            The Secretary argued that any error was harmless.  The Court rejected such argument saying

“Contrary to the Secretary's argument that Mr. Edwards received the benefit of the evidence submission lane, it is clear that the Board failed to account for Mr. Edwards's new evidence in its analysis, including his statement that he sought neck and back treatment with a chiropractor and that he had seen the chiropractor "over 100 times throughout the years."  

 

Although the Board is presumed to have considered all evidence of record when making its decision, Newhouse v. Nicholson, 497 F.3d 1298, 1302 (Fed. Cir. 2007), that presumption does not relieve the Board of its independent obligation to address potentially favorable, material evidence of record and to provide reasons or bases for its weighing of that evidence , Caluza v. Brown, 7 Vet.App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). Because Mr. Edwards's statement attached to his VA Form 10182 provided, among other things, additional detailregarding treatment sought for his neck disability and potential continuity of symptoms since service, it was potentially favorable, material evidence that the Board was required to address.”

Id. at *11.

This case serves to show the complicated nature of the AMA and demonstrates a commitment by the Veteran’s Court to look at it through the prism of assisting the veteran.

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

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Spicer: Secondary Service Connection Explained Broadly

Spicer v. McDonough, Case Number 2022-1239, was decided March 8, 2023 and involves a claim for service connection for a leg disability secondary to service connected leukemia.    

The veteran sought service connection for a leg disability, weakness and instability in his knees due to arthritis.  The theory was that his service connected leukemia did not actually cause or aggravate his knee arthritis, but treatment for his leukemia prevent him from undergoing surgery for his knees.  The veteran specifically noted a 2014 knee replacement surgery had been cancelled because chemotherapy for his leukemia had depressed his red blood cell level and it was unlikely his count would ever increase enough to allow the surgery.

The VA and Veterans Court denied service connection, with the Veterans Court concluding:

“Mr. Spicer's knee arthritis did not, in any reasonable sense of the phrase, "result from" his service-connected cancer or the chemotherapy provided to treat it. There is no contention on appeal that they caused the arthritis or that they made it worse. The current state of his knee functionality is not a consequence or effect of these service-related agents. At most, they interfered with his attempts through affirmative intervention to alter the arthritis's natural progress. Unless we can say that the current state of his arthritis would not exist in the absence of his cancer or chemotherapy, however, there is no actual but-for causation. And but-for causation is what Congress required in section 1110.”

Judge Allen at the Veterans Court dissented arguing:

“In my view, however, the statute sets out a much broader, causation-based standard. And because that is so, I also believe that VA's regulation implementing section 1110, 38 C.F.R. § 3.310(b), improperly limits that language in a way Congress did not intend. Therefore, I would hold that the regulation is not a permissible construction of section 1110.”

He further explained:

“the phrase "resulting from" in section 1110 provides for compensation when a disability is the consequence or effect of military service. Stated another way, the statute's language merely requires that one thing flow from another, namely that a disability flow from military service. Congress imposed no other limitations in connection with establishing service connection beyond this broad, causation-based principle that one thing be a consequence of another.”

The Federal Circuit heard the case and agreed with Judge Allen’s dissent, explaining:

“The dispute is thus narrow: Whether the but-for causation requirement in § 1110 is limited, as the government contends, to bringing something about or the onset or etiological link, or whether, as Mr. Spicer contends, that language may encompass situations where the service connected disease or injury impedes treatment of a disability. For the reasons below, we adopt the latter view.”

Id. at *6.

The Court noted its analysis begins and ends with Section 1110 and noted Congress could have drafted a more narrow causation standard as it had done in another statute.  The Court explained:

“Put together, § 1110 plainly requires compensation when a service-connected disease or injury is a but-for cause of a present-day disability. This broad language applies to the natural progression of a condition not caused by a service-connected injury or disease, but that nonetheless would have been less severe were it not for the serviceconnected disability. Stated another way, § 1110 provides for compensation for a worsening of functionality—whether through an inability to treat or a more direct, etiological cause. Nothing in the statute limits § 1110 to onset or etiological causes of a worsening in functionality.”

Id. at *8.

When I wrote my initial summary on this case two years ago, I wrote: “This is an important case that effectively tested the limits of secondary service connection and found it at what I believe is too narrow a limit.  Judge Allen’s dissent is powerful. I would expect an appeal to the Federal Circuit and a possible reversal.”  It would appear that Judge Allen and I were correct.

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

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Costello: Certification to the Board Notice is Not Defective

Costello v. McDonough, Case Number 20-2314, decided February 23, 2023 involved whether a notice stating an appeal had been certified to the Board and the veteran had 90 days or the date of decision to submit new evidence or argument was unconstitutional.

The veteran’s claim was appealed to the Board and resulted in a notice stating the veteran had had 90 days or until the Board issued a decision, whichever came first, to submit additional argument or evidence, or to request a change in representation.  29 days after the letter, the Board made a decision denying the issues sought.  The Board noted the appeal had been advanced on the docket in light of the veteran’s advanced age.

The veteran argued that the section allowing for the letter, Section 20.305(a), was facially invalid as it denied the claimant due process of law.  Specifically, “the language "or up to and including the date the appellate decision is promulgated by the Board, whichever comes first" is facially invalid and violates the Due Process Clause of the U.S. Constitution because it offers only illusory notice that is fundamentally unfair and does not afford claimants before the Board the right to be heard in a meaningful manner. Therefore, he appears to argue that all claimants are denied procedural due process when the Board issues a decision less than 90 days after certification.”  Id. at *3. 

The Court confined its analysis to procedural due rights and not substantive due rights as that was what was argued by the veteran.  The Court conceded potentially a veteran could be deprived his due rights if the Board promulgated a decision on the same day the certification notice was sent, then such an action, absent waiver, could potentially deprive a claimant notice and opportunity to be heard by the Board.  Id. at *11.  The Court also noted the veteran “does not allege that the Board's notice letter was misleading or that he did not receive it before the Board adjudicated his claims.”  Id. at *13.  The Court also noted “Nor did the appellant file a motion to vacate the Board's decision under § 20.1000(a) alleging that he was deprived of due process. Instead, the appellant consistently argues only that § 20.1305 is facially invalid.”  Id. at *14.

Ultimately, the Court determined “The appellant does not clear the high bar to show that § 20.1305(a) facially deprives a legacy claimant of the claimant's constitutional right to notice and the opportunity to respond if the claimant's appeal is decided less than 90 days after notice that it is initially certified to the Board.”  Id. at *16.

This case serves to remind veterans and advocates that the 90 day notice letter should not serve as the time to start writing a memorandum.  In most cases, I submit my brief and any additional evidence at the same time I submit a NOD or Form 9 so as to avoid this problem.

Decision by Judge Pietsch and joined in by judges Meredith and Laurer.

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