Lile (Voided Entry to the Service and VA benefits)

Lile v. McDonough, Case Number 21-6977, decided April 11, 2024 involves basic entitlement to VA benefits requiring creditable military service.

The veteran enlisted in the Army in September 1979 denying a conviction of any crime, but this was untrue.  Ultimately, the Army learned of two convictions and released the veteran due to a fraudulent entry in April 1980.  The question was whether his voided enlistment was equivalent to a dishonorable discharge.  The Board found discharge for concealment of a conviction by [a] civil court which would have prevented enlistment will be held to be under dishonorable conditions, and therefore a bar to VA benefits.  Id. at *2.

This was a novel issue before the Veterans Court, which also had not been addressed by the Federal Circuit.  The Court held:

“while VA is bound by a service department's act of voiding an enlistment as well as its determination of the dates of a person's entry and separation, VA must conduct an independent assessment of whether a claimant subject to a voided enlistment is eligible for VA benefits.  Specifically, VA must determine benefits eligibility by applying 38 C.F.R. § 3.14, most significantly subsections (a) and (b).  If VA determines that a claimant's voided enlistment falls under subsection (b), its work is done because such a claimant is categorically not eligible for benefits under the regulation.  In contrast, if VA determines that a claimant's voided enlistment comes within the ambit of subsection (a), then VA must proceed to assess the character of the claimant's service (assuming the service department left the period of service subject to the void enlistment uncharacterized, as should be the norm in a voided enlistment) and whether it bars entitlement to benefits under the appropriate provisions of 38 C.F.R. § 3.12.”

Id. at *2.  The Court noted the Board did not use this legal framework and as a result the decision should be set aside and remanded for a new adjudication by the Board.

The Court noted: “We know that appellant served in the U.S. Army—we know his entrance date, his discharge date, and the facts of his service. The question at issue here … is whether the time appellant indisputably spent in service makes him eligible to receive VA benefits. And as to that question, as we turn to next, there is a directly applicable regulation (38 C.F.R. § 3.14) that instructs VA about how it is to assess the impact of a voided enlistment.”  Id. at 8.

The Court then pivoted to explaining Section 3.14 and states: “We conclude that § 3.14 is unambiguous. The regulation opens with the sentence, "service is valid unless enlistment is voided by the service department."62 If the regulation ended there, then entitlement to benefits would turn on whether there was a period of service invalidated by a void enlistment, and VA would be bound by that service department finding to establish eligibility for VA benefits. But the key is that the regulation does not end with that single sentence. Instead, subsections (a)-(d) carve out scenarios in which service can be valid for VA benefits purposes despite a service department voiding a claimant's enlistment.63 The regulation goes on to detail how VA is to assess the impact of a voided enlistment on entitlement to benefits.”  Id. at *10.  

The Court then explains: “Perhaps most significantly for our resolution of the appeal before us, subsections (a) and (b) make clear that voided enlistments can fall into one of two categories. One category (the one reflected in subsection (b)) is enlistments that are voided for reasons that categorically bar eligibility for benefits. The other category (under subsection (a)) concerns enlistments voided for reasons that do not categorically bar eligibility for VA benefits. While we highlight some of the specific regulatory language below, the central point, as an overall matter, is that VA is charged under § 3.14 with making an independent determination about the effects of a voided enlistment on a claimant's eligibility to obtain benefits—the Agency must determine whether a particular voided enlistment comes under subsection (a) or subsection (b).”  Id. at *11.

The Court then remanded to the Board for a new assessment.

Decision by Judge Allen and joined in by the Judges Pietsch and Laurer.

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Green: TDIU Intertwined in the AMA

Green v. McDonough, Case Number 21-4193, decided February 16, 2024 involves a denial of TDIU by the Board based on a lack of a service connected disability, while the Board also granted service connection for a mental health condition.  The Court remanded.

In a February 2021 Board decision, the Board granted service connection for an acquired psychiatric disorder, but also denying TDIU.   The Board explained:

"that [a]t the time of the 2019 Statement of the Case—which is the AMA 'decision' on appeal—the Veteran did not have any service-connected disabilities." R. at 19. The Board acknowledged that its decision also granted service connection for an acquired psychiatric disorder, but the Board found that "that cannot be considered in the AMA appeals system, as the claim must be decided back on the state of the evidence that was before the RO (or was submitted as part of the AMA appeal)." Id. The Board noted that in the legacy appeals system, the Board would have "remanded the issue of entitlement to a TDIU pending the establishment of a disability rating and effective date for the service connection claim granted herein," but the Board maintained that "that is not appropriate under the AMA system." R. at 20. The Board explained: "A remand can only be done in AMA for a pre-decisional duty to assist error, and there could be no such error here as the Veteran had no service-connected disabilities at the time of the AMA decision." Id. The Board denied TDIU, explaining that the veteran could seek TDIU by filing a supplemental claim.”

Id. at *2-3.

TDIU was subsequently granted and the VA tried to argue the question was therefore moot.  However, the Court found the issue was not moot because: “Here, as in Bailey, "such a remand, which preserves the possibility of an earlier effective date and safeguards against any preclusive effect of the later RO decision, constitutes effective relief that the Court can provide" and confers the right to expeditious treatment of the veteran's application.”  Id. at *12.

As to the issue of TDIU, the Court noted the Board did not consider the merits of TDIU but found under the AMA it could not consider the Board’s own grant of the mental health condition.  The Court noted “The Board's assessment of the AMA is belied by its applicable provisions and our caselaw.”  Id. at *9.

The Court noted the Board’s own decision was not evidence, but that the Board did properly rely on the private medical opinion which provided a positive nexus and that that was evidence that should have been considered as to TDIU.  It then noted the Board’s conclusion that a remand under AMA is only allowed for a pre-decisional duty to assist error was incorrect as “The Board also has the discretion to "remand for correction of any other error by the [AOJ] in satisfying a regulatory or statutory duty, if correction of the error would have a reasonable possibility of aiding in substantiating the appellant's claim." 38 C.F.R. § 20.802(a) (2023). The Board identified the issue for it to have remanded here—service connection for the veteran's acquired psychiatric disorder. See 38 C.F.R. § 20.801(b)(4).”  Id. at *10.

Judge Pietsch wrote to say that because TDIU is not a freestanding claim and was a part of the original claim for benefits for a mental health condition, it “should have been returned to the RO with the Board's grant of benefits for that condition.”  Id. at *12.  She explained:  “When the Board issued its decision, the RO had not yet decided the appropriate initial disability rating for Mr. Green's acquired psychiatric disorder, which could have included a rating of TDIU; therefore, the Board did not have jurisdiction to address it. 38 C.F.R. § 20.104. The presence of an application, NOD, or appeal referring to TDIU alone did not give the Board jurisdiction over that matter, contrary to the majority's opinion.”  Id. at *13.

This is an interesting case of the early (and continuing) growing pains from the implementation of the AMA.  What is helpful is both the reminder to the Board that the Board also has the discretion to remand for correction of any other error by the AOJ in satisfying a regulatory or statutory duty, if correction of the error would have a reasonable possibility of aiding in substantiating the veteran’s claim. 38 C.F.R. § 20.802(a) (2023).

I also find Judge Pietsch’s conclusion to be reasonable—that the Board simply did not have jurisdiction to decide the issue of TDIU because it had remanded the overarching claim for a mental health condition for the issue of a rating.

The VA’s attempts to moot the issue are also indicative of the VA’s attempts to evade review by the Courts.

Decision by Judge Jaquith and joined in by Judge Greenberg.  Separate concurrence and dissent by Judge Pietsch.

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