Murphy: An Inappropriate Reduction

George D. Murphy v. Shinseki, Opinion Number 12-1700, was decided April 4, 2014 and concerns a ratings reduction.

The veteran sought an increase from a 10% rating for sinusitis.  The increase was denied by the RO and remanded by the Board.  On remand, the Appeals Management Center increased the rating to 30% effective the date of the decision.  The impact was to increase his overall combined rating to 100%, which he began to receive.

The appeal was subsequently returned to the Board because it was not a complete grant of the benefits the veteran was seeking.  Incomprehensibly, the Board then characterized the appeal as entitlement to an increase in a 10% rating for sinusitis.  The Board did not address the AMC rating decision or Supplemental Statement of the Case, which had granted the increase to 30%, and instead found the veteran was not entitled to a rating greater than 10% for the sinusitis.

The Court was obviously shocked by the Board’s conduct.  It noted that once the AMC granted the increase to 30%, the only issue before the Board was the veteran’s entitlement to a rating in excess of 30%.  “[I]t was outside the scope of the veteran’s direct appeal for the Board to revisit the issue of entitlement to a disability evaluation less than 30%....  To hold otherwise would leave the door open for a possible ‘chilling effect’ in the administrative appeal process, whereby veterans might be afraid to seek higher disability evaluations on appeal, for fear of having already awarded benefits reduced by the Board during the appellate process.”  Id. at *5.

The Court also explained that an award of disability compensation or an increase is different than a finding of fact or law.  An award or increase “carries with it substantive rights and procedural safeguards that cannot be easily discarded in the name of de novo Board adjudication.”  Id. at *6.  The Court then noted the substantive regulatory requirements related to a reduction and fact the Board’s decision did not follow these regulations.

This case stands for the simple proposition that a veteran should not be afraid to appeal a decision because he fears the award he has received might be reduced.

Decision written by Judge Bartley and joined by Judges Moorman and Lance.

Wise: PTSD and Cardiovascular disease, and a primer on the benefit of the doubt rule

Ouida Wise v. Shinseki, Opinion Number 12-2764, was decided April 16, 2014 and concerns several issues of importance: VA physician competence, medical treatises, and the benefit of the doubt rule.

This opinion is a true tutorial on many facets of VA law.  It concerns a denied application of DIC.  The WWII veteran had been rated 100% for PTSD and ultimately died from an arrhythmia due to arteriosclerotic  cardiovascular disease, congestive heart failure, and COPD.

The veteran’s surviving spouse submitted a letter from the treating VA physician who stated it was more likely than not the veteran’s PTSD aided and assisted in his death from heart disease as PTSD is a risk factor for heart disease.  The letter also referred to a 2007 JAMA article finding that male veterans with PTSD were more likely to develop coronary heart disease and suggested that higher levels of PTSD pose an even greater cardiovascular risk.

The VA requested a VA staff cardiologist to offer an opinion.  The cardiologist opinion started by stating the cardiologist had no formal training in psychiatry besides a month long rotation in medical school and noted some VA medical records were not available for review, most importantly medical records from cardiology appointments.  The VA cardiologist then stated that due to other risk factors (hypertension, family history, obesity) and the fact that PTSD was not a widely accepted risk factor within the medical community, she did not believe the PTSD was a contributing factor in the veteran’s death.

The veteran’s spouse responded by submitting a 2011 medical article discussing the “growing number of studies” finding positive associations between PTSD and cardiovascular disease. 

The Board denied the appeal.  In its decision it found the VA cardiologist’s opinion more persuasive because it was based on known risk factors and “not [the] yet accepted notion that PTSD causes heart disease.”

The Court first addressed the cardiologist’s competence.  The Court noted that usually a physician’s competence is assumed unless it is raised by the veteran.  However, in this case “the Court holds that where, as here, a medical professional admits that he or she lacks the expertise necessary to provide the opinion requested by the Board—in this case, expressly deeming her view of the matter as that of a non-expert layperson—the opinion itself creates the appearance of irregularity in the process resulting in the selection of that medical profession that prevents the presumption of competence from attaching, and the Board must therefore address the medical professional’s competence before relying on his or her opinion.”  Id. at *11.

The Court next addressed deficiencies in the cardiologist’s opinion.  The Court noted medical cardiology appointments were made but these cardiology records were obtained by the VA or reviewed by the cardiologist.  However, the cardiologist repeatedly stated that based on a 1993 study, the veteran did not have coronary artery disease.  The Court found this at odds with the fact the study was conducted 15 years prior to the veteran’s death and fact the death certificate listed the veteran as suffering from arteriosclerotic cardiovascular disease.  The Court also was offended by the fact the cardiology relied on a 2000 medical article to refute the supporting 2007 medical article and asked why a 2000 article was more representative of the state of medical science than a 2007 article.

Next, the Court noted the VA did not attempt to find the cardiology records even though the lack of them in the file was raised by their own cardiologist.

Finally, the Court addressed the benefit of the doubt rule.  Specifically, the Board and VA cardiologist had found it was not generally accepted within the medical field that PTSD was a risk factor for cardiovascular disease.  The Court noted the benefit of the doubt rule is a standard lower than others and stated “Congress has not mandated that a medical principle have reached the level of scientific consensus to support a claim for VA benefits.”  Id. at *16.  The Court stated “[t]his is not to say that the Board is precluded from considering the extent to which a scientific theory is accepted in the scientific community when evaluating the evidence of record; this is simply to make clear that the Board, when evaluating that evidence, cannot demand a level of acceptance in the scientific community greater than the level of proof required by the benefit of the doubt rule.”  Id. at *17.  The Court then noted the existence of these contradicting articles indicates the evidence may be in approximate balance, triggering the benefit of the doubt rule.

Again, this is a major decisions that can be a touchstone for arguments as to DIC and application of benefit of the doubt rule, and more specifically on how PTSD might cause cardiovascular disease—an issue that can be valuable in both DIC and service-connection claims.

Opinion by Judge Bartley, joined by Judges Davis and Schoelen.

Stowers: Newly Discovered SMRs might equal An Earlier Effective Date

Odis C. Stowers v. Shinseki, Opinion Number 12-2823, was decided May 16, 2014 and concerns 38 CFR Section 3.156(c) and its application to a claim for an earlier effective date for a claim that was reopened due to new service medical records that had not been first associated with the file.

The veteran was denied service connection for a back disability in a 1992 and 1993, which became final.  That decision found the SMRs appeared to be incomplete, however, the records showed no in-service complaints or treatment of the back and a VA examination found the back was normal.

The veteran sought to reopen the claim in February 2008.  He submitted a private physician letter diagnosing arthritic back conditions due to in-service injuries.  The physician letter noted service medical records showing back injuries in 1979, 1983-1984, and 1986.  The veteran also submitted a letter saying service medical records from Langley AFB hospital show an extensive history of chronic back pain and authorized the VA to obtain those records.  The claim was reopened, service connected granted, evaluated at 20%, and granted effective February 2008.  The veteran filed a notice of disagreement regarding the effective date.  The Board denied an earlier effective date.

The veteran appealed to the Court arguing the VA failed to obtain complete SMRs, that there is a reasonable possibility that obtaining those records would show the 1983-1984 and 1986 injuries, and that associating those records along with the private physician letter entitled the veteran to an earlier effective date under 38 CFR Section 3.156(c).

Generally, the effective date for a reopened claim is not based on the earliest medical evidence, but the date the application was filed with the VA.  However, Section 3.156(c) creates a large exception.  “If at any time after a claim is denied VA receives or associates with the claims file service department records that existed but had not been associated with the claims file at the time VA first decided the claim, VA will reconsider the claim.”  Id. at *5.  “If VA thereafter makes an award based on whole or in part on these newly associated service department records, the assigned effective date will be the date entitlement arose or the date VA received the previously decided claim, whichever is later.”  Id.

The VA explained in the proposed revisions to this regulation that it would fit a situation where a VA denies a claim because there is no evidence of an in-service injury and then years later the veteran reapplied and submitted new SMRs and a medical opinion.  Id. at *5 and 70 Fed. Reg. 35,388, 35,389 (June 20, 2005).  Of course, this example seems to apply directly to this case.

The Court noted the regulation, explanation of the regulation by the VA, and the VA’s duty to obtain potentially relevant and identified SMRs.  It also noted the veteran identified the missing SMRs at Langley AFB hospital as documenting chronic back problems.  “Nonetheless, the Board did not address the SMRs that Dr. Hunter relied on in forming his opinion that were not previously of record, nor did the Board explain why evidence of the existence of these SMRs is not ‘identification of further available evidence not already of record.’  Thus, the Board failed to explain why these SMRs not previously of record would not be ‘relevant’ to the issue on appeal, i.e., the appellant’s entitlement to an earlier effective date.”  The Court then found the Board decision offered inadequate reasons or bases for its determination and stated if the Board determines they are relevant to the correct effective date than it must remand the case for an attempt to obtain those records.

The Court swept away the VA argument that the SMRs are not relevant because they had already granted service connection for the back because they (1) admit the private physician statement was in part the basis for the award and (2) the VA did not address the responsibility to try to associate official service department records that existed and had not been associated with the claims file when VA first decided the case.  Id. at *9 (citing 38 C.F.R. Section 3.156(c).

The value of this case is limited to a narrow set of cases, but potentially very valuable.  “[W]here VA grants service connection based, in part, on a medical nexus opinion that relies on SMRs that were not associated with the claims file at the time VA first decided the claim, and have not been associated with the claims file when VA assigns an effective date for the award of benefits, the Board is obligated to consider the VA’s duty to attempt to obtain such records and the potential applicability of Section 3.156(c).”

Internal Culture of the VA

Below is a link to a fascinating Washington Post article on the internal culture of the VA.

http://www.washingtonpost.com/sf/national/2014/05/30/how-the-va-developed-its-culture-of-coverups/?wprss=rss_national&clsrd

Carter v. Shinseki: Joint Motions for Remand discussed

Harmon Carter v. Shinseki, Opinion Number 12-0218, was decided May 20, 2014 and concerns the scope of a joint motion for remand.

The veteran was denied service connection for a back disability, appealed to the Court, and the VA agreed to a remand.  The claim was subsequently denied and appealed again.  The question was whether joint motion for remand involving a veteran represented by an attorney limit the scope of the Board’s independent duty to search the record for issues reasonably raised by the record.

The problem is owed to the fact the attorney waited for the VA to send a 90 day letter, which states the VA will make a decision in 90 days.  The attorney was waiting to review the file and develop arguments and a submission until that letter was sent.  However, the VA sent it to a service organization.  Technically, the attorney received the letter when she received the claims file, but was waiting to review the file until she received the letter.

The Court found “the terms of the joint motion for remand will have a bearing on what might otherwise be reasonably raised by the record.  The Board’s duty to consider issues reasonably raised by the record must be viewed in light of the terms and scope of the joint motion and the fact that the attorneys are presumed to know their case and to tailor their pleadings based on the facts and law.”  Id. at *10-*11.

The Court then determined “when an attorney agrees to a joint motion for remand based on specific issues and raises no additional issues on remand, the Board is required to focus on the arguments specifically advanced by the attorney in the motion.”  Id. at *11.

Fortunately, the joint motion for remand had broad language saying “the Board shall fully assist the veteran with his claim by reexamining the evidence of record and seeking any other evidence that is necessary to support its decision.”  Id. at *12.

The take away from the case might be to demand the broader language quoted by the Board and, for attorneys, not to rely on the 90 day letter from the VA. Importantly, it does not appear that this case will actually limit additional arguments to the Board made by a veteran or an attorney for the veteran, but will require that they are actually made.