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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