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.
To know more about whether Thomas Andrews can help you, please visit my website.
No comments:
Post a Comment