Beaudette: Caregiver Program Appeals Affirmed

Beaudette v. McDonough, Opinion Number 2022-1264, was decided February 27, 2024 by the Federal Circuit and involves the Program of Comprehensive Assistance for Family Caregivers (Caregiver Program) and certification of a class.

The case involves the Caregivers Program, which has some limitations, but grants additional benefits to qualified veterans and have serious injuries such as a TBI, psychological trauma or other mental disorder.  The veteran must need “personal care services because of an inability to perform at least one or more activities of daily living, a need for supervision or protection because of neurological or other impairment or injury, or a need for regular or extensive instruction or 2 supervision to avoid serious impairment of daily functioning.” “A family caregiver of an eligible veteran is entitled to instruction and training to provide personal care services, technical support, counseling, and lodging and subsistence; the primary family caregiver is entitled to the previous benefits, as well as appropriate mental health services, respite care, medical care, and a monthly stipend.” 

This case truly involves heart-breaking facts and a terrible decision making process by the VA.  A wife and the veteran applied and were granted benefits under the program.  Five years later the VA initiated a reassessment, but the veteran could not participate in the in-person examination because he was recovering from two major surgeries and the VA denied his request to delay assessment until he recovered for an examination.  The VA ultimately informed the veteran and his wife they were no longer eligible to participate in the Caregivers program based on the reassessment.   The couple challenged the ruling through a VHA appeals process and were denied—one of them was in part because the severely disabled veteran could not attend an in-person examination.

The couple then appealed to the Board of Veterans’ Appeals in August 2019, but as of the date of this decision, had not received a response.  And, in fact, the Secretary has concluded the Caregiver Program decisions cannot be appealed to the Board.  As a result, in July 2020, the couple filed a petition to the Veterans Court.

The Veterans Court had determined the benefits under the Caregivers Program fall within the Veterans Judicial Review Act and jurisdiction of the Court.  The Secretary had argued the program involved a medical determination and by statute and regulation outside of the Board’s review.  The Court noted the plain meaning of the regulation does not insulate the program from judicial review and instead noted interpretative canons which that there is a strong presumption favoring judicial review of administrative actions and there is a strong presumption that repeals by implication are disfavored and that Congress will specifically address preexisting law when it wishes to suspend its normal operations in a later statute.

The Veterans Court conclude[d] that Congress has spoken unambiguously in mandating Board review of all decisions "under a law that affects the provision of benefits by the Secretary." 38 U.S.C. § 7104(a). VA's interpretation of section 1720G(c)(1) is invalid to the extent it limits the ordinary scope and operation of the VJRA. The Beaudettes have established an indisputable right to Board review, the lack of an adequate administrative means of securing that right, and the propriety of extraordinary relief in these circumstances. Accordingly, a writ of mandamus was issued.

As to the question of a class action, the court granted a class of individuals “who (1) received an adverse decision under the Caregiver Program, (2) exhausted available review under the VHA, and (3) have not been afforded the right to appeal to the Board.” 

The Secretary challenged the Veterans Court’s decision and the Federal Circuit affirmed with similar language as the Veterans Court.

This is an important decision that affirms the right to appeal Caregiver denials, but also shows the lengths to which the VA does not want to do the right thing.  It is shocking that the VA wasted resources by appealing the Veterans Courts well-thought out decision rather than pouring those resources into actually doing the right thing.

Opinion by Chief Judge Moore and joined in by Judges Dyk and Stoll.

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Stinson: Fact Finding by the Veterans Court

Stinson v. McDonough, Case Number 2023-1090, decided January 15, 2024 and decided by the Federal Circuit involves a claim for service connection for blastic plasmacytoid dendritic cell neoplasm (BPDCN) and more specifically was overturned because the Veterans Court had found facts in the first instance.

First, BPDCN is a rare and aggressive form of cancer that starts in the skin, infiltrates bone marrow and progresses to become acute myelogenous leukemia (AML).  The veteran had been denied service connection by the Board and had argued to the Veterans Court that the Board should have sought clarification from a nurse practitioner concerning a 2016 letter regarding his condition.  He also argued the medical opinion and Board decision failed to address his full medical history, specifically his in-service symptoms (a skin rash) and his 2002 symptoms (low white blood cell and platelet counts).  These cut against the 2019 medical opinion which found no evidence of his conditions prior to 2011.  The Veteran’s Court rejected these arguments.

At the Federal Circuit, the veteran argued “the Veterans Court exceeded its statutory authority when it found facts in the first instance concerning (1) the location of the lesion giving rise to his BPDCN diagnosis and (2) his in-service symptoms.”  Id. at *7.  The Court agreed.

The Court began by discussing the law underpinning the decision, that “The Veterans Court has no statutory authority to make factual findings in the first instance. 38 U.S.C. § 7261(c); Deloach v. Shinseki, 704 F.3d 1370, 1380 (Fed. Cir. 2013). The Veterans Court also has no statutory authority to weigh the evidence in the first instance. Tadlock, 5 F.4^th at 1334; Deloach, 704 F.3d at 1380. As we explained in Tadlock, [w]hen questions of fact are open to debate, veterans are entitled to present whatever evidence and arguments they have to the agency charged with administering veterans’ benefits and possessed with the expertise to render informed judgments and to have that evidence and those arguments considered by that agency in the first instance. Tadlock, 5 F.4th at 1337 (emphasis added). Whether an injury is service connected is a question of fact delegated to the VA for consideration in the first instance.”  Id. at *7.

Before the Veterans Court, the veteran argued the Board analysis and the underpinning medical opinion failed to consider his full medical history prior to his diagnosis, including in-service symptoms and 2002 symptoms.  Specifically, he argued “they were relevant because (1) his 2002 symptoms preceded his BPDCN diagnosis and (2) his in-service January 1964 rash was in the same place as the lesion that gave rise to his BPDCN diagnosis. J.A. 40–41. Mr. Stinson argued that these symptoms show that his BPDCN, a rare form of cancer that affects a patient’s blood and skin, preceded 2011, which is contrary to the 2019 VA medical opinion’s conclusion that there was no  evidence of BPDCN prior to 2011.”  Id. at *8. 

The Federal Circuit noted the Veterans Court rejected this argument, explaining the veteran failed to show his in-service symptoms and 2002 symptoms were relevant to his BPDCN diagnosis.  But, then found “The Veterans Court’s conclusion, however, with respect to the January 1964 rash, rests upon impermissible factual determinations that require vacatur and remand.”  Id. at *8.  The Court explained that the “Veterans Court impermissibly found as a matter of fact, and in the first instance, that Mr. Stinson’s January 1964 rash was in a different location than his BPDCN lesion and thus irrelevant to Mr. Stinson’s claim for service connection for BPDCN…. The Veterans Court then noted that this condition was not identified on Mr. Stinson’s shoulder, which is where the BPDCN began.”  Id. at *8-9. 

The Federal Circuit the record is unclear as to whether the lesion leading to the BPDCN diagnosis was located on the shoulder or upper back.  Specifically, the reference by the oncologist was to his upper back and the lesion from 1964 was on his the back of his neck.  The Federal Circuit then determined: “because the location of the lesion giving rise to Mr. Stinson’s BPDCN diagnosis is open to debate, it was impermissible for the Veterans Court to conclude in the first instance that it was located on Mr. Stinson’s shoulder and thus not located in the same location as Mr. Stinson’s January 1964 rash. By doing so, the Veterans Court exceeded its statutory authority by engaging in de novo fact-finding.”  Id. at *9.

The Federal Circuit concluded by stating: “Here, Mr. Stinson’s in-service symptoms, such as his January 1964 rash, affected certain portions of Mr. Stinson’s skin. Whether these symptoms, and the timing of these symptoms, are connected to Mr. Stinson’s BPDCN, a very rare form of cancer that can manifest in the skin and can spread to the blood, is a factual question for the medical experts, whose opinions are then weighed by the Board. See Tadlock, 5 F.4th at 1334; see also Deloach, 704 F.3d at 1380. The Veterans Court, in turn, reviews the Board’s weighing of this evidence. Tadlock, 5 F.4th at 1334. The Veterans Court has no statutory authority to weigh Mr. Stinson’s evidence in the first instance. See id. It is especially problematic that the Veterans Court reached this conclusion based on its own factfinding. Again, no medical expert, nor the Board, explicitly discussed whether Mr. Stinson’s in-service symptoms are evidence of an earlier BPDCN start date than 2011.” Id. at *11.

The Federal Circuit explained:

“When the Veterans Court acts as a fact finder, the Veterans Court exceeds its statutory authority and frustrates one of the reasons for which it entertains newly raised issues on appeal—to provide the veteran with a “user friendly” claims process. Maggitt, 202 F.3d at 1378. As we explained in Maggitt, the Veterans Court may want to consider a newly raised issue on appeal, as opposed to dismissing it outright, because veterans often face challenges when presenting their case before the VA or before the Board, such as not obtaining independent counsel until after the Board reaches its final decision. Id.7 However, if in reviewing a newly raised issue, the Veterans Court finds facts in the first instance, the Veterans Court deprives the veteran of the “user friendly” system Congress intended.  Id. Specifically, the Veterans Court denies the veteran of the opportunity to present evidence before the trier of fact that has the expertise and responsibility of determining such factual issues. The Veterans Court also denies the veteran of any effective appellate review of such factual issues. Thus, in considering a new argument on appeal, the Veterans Court should appropriately review the record and remand to the appropriate body any factual questions open to debate.”

Id. at *12.

This is a fascinating decision.  It makes clear the Veterans Court cannot weigh evidence in the first instance and explains that to do so would undermine the user friendly claims process and denies effective judicial review of a factual issue.  There is tremendous pressure from the VA for the Court to end more cases and it is clear they convinced the Veterans Court to do so in this decision by making factual findings that were bad for the veteran.  The odd tension is that veterans would also like for the Veterans Court to affirmatively decide more cases.  I believe this decision still leaves open the ability for more final decision as long as the Court is not making initial factual findings.

Decision by Judge Reyna and joined in by Judges Dyk and Stark. 

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Conyers: The Doctrine of Constructive Possession Applied

Conyers v. McDonough, Case Number 2023-1525, decided January 30, 2024 and decided by the Federal Circuit involves a discussion of the doctrine of constructive possession.

This involved a pro se veteran who sought employment benefits under the Veteran Readiness and Employment program.  After two administrative reviews denied him benefits, he appealed to the Board which also denied.  The appeal was also denied by the Veterans Court, which also rejected the veteran’s claim that certain documents formed part of the administrative record under the doctrine of constructive possession.  The Federal Circuit found the Veteran’s Court applied the incorrect legal standard under Euzebio I (“direct relationship” between the document and the claim) as opposed to Euzebio II (“relevance and reasonableness”).

The Federal Circuit began by discussing it in general:

“The concept of constructive possession arises in many legal contexts, including criminal law and property law.  In the context of veterans law, the constructive possession doctrine generally applies such that “evidence that is within the Secretary’s control and could reasonably be expected to be a part of the record before the Secretary and the Board is constructively part of the administrative record.”

Id. at *6.

The Court noted that when the veteran filed his motion to compel the addition of the documents to the record, Euzebio II had not been issued.  It then explained Euzebio I had involved a public document that was published during the pendency of that case before the Board and raised the the question of whether the Veterans Court should have deemed the document to have been constructively possessed by the Board when it reviewed Mr. Euzebio’s appeal.  But, on appeal Euzebio I was overturned by the Federal Circuit, which found: 

“the correct standard for constructive possession is whether the evidence is “relevant and reasonably connected to the veteran’s claim.”  Id. at 1321 (internal quotations and citations omitted). We noted that requiring a showing of relevance and not a direct relationship “makes sense in light of the VA’s statutory duty to assist veterans in developing the evidence necessary to substantiate their claims.” Id. (internal quotations and citations omitted). The constructive possession doctrine provides a safeguard that ensures all record documents reasonably expected to be part of a veteran’s claim are included in the administrative record.”

Id. at *7.    The Federal Circuit noted that after Euzebio II was issued, the veteran continued to raise the issue and the Veterans Court failed to mention Euzebio II.

This decision is an interesting explication of Euzebio II and helps to clarify the doctrine of constructive possession.

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

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