Checo: Equitable Tolling of the Time to Appeal and Homelessness

Cherise Checo v. Robert A. McDonald, Opinion Number 11-3683, decided August 29, 2014 concerns an untimely appeal by a homeless veteran.

The veteran filed her notice of appeal on December 7, 2011 from a July 6, 2011 Board decision.  This was outside the 120 days allowed to file the notice of appeal.  The Court of Appeals for Veterans Claims found the veteran had not demonstrated that equitable tolling was warranted and dismissed the appeal.  Specifically, the Court found she had not demonstrated her homeless was the direct cause of her late filing and did not demonstrate or allege she exercised due diligence in filing her notice of appeal. 

On appeal, the Court of Appeals for the Federal Circuit found the veteran’s homelessness qualifies as an extraordinary circumstance and found the veteran had demonstrated her homeless caused the late filing because she did not receive mail while she was homeless and did not find out about the decision until October 6, 2011.  The Federal Circuit also sought to flesh out the question of due diligence.  It adopted a stop-clock approach, which states the clock measuring the 120-day period to appeal is stopped during the extraordinary circumstance and restarts when the period is over. 

In this case, that meant the veteran had to exercise due diligence between July 6, 2011 (the date of the Board decision) and October 6, 2011 (the date the decision was sent to her new address).  This question of due diligence was remanded for the Court’s consideration and they determined that there was “some indication that Ms. Checo contacted VA to inquire as to her appeal in September 2011 and that her inquiry prompted VA to mail a copy of the Board’s decision to the address she provided.”  The Court found this was a sufficient demonstration of due diligence. 

Decided by Judges Hagel, Lance and Schoelen.

Todd: TDIU and Hearing Loss

Evelyn M. Todd v. Robert A. McDonald, Opinion Number 13-0067, decided September 3, 2014 concerns a Board decision that denied TDIU for bilateral defective hearing.

The veteran had served from 1952 through 1954 and suffered in-service exposure to jet engine noise.  A private audiologist and VA examiner agreed the hearing loss was caused by the in-service exposure and he was granted a 30% rating.  However, he sought a higher rating and TDIU based on the severity of the hearing loss and its impact.  He was later granted an increased rating of 80% but denied TDIU. 

The veteran testified he could not speak on the telephone and he was terminated from a job with an engineering firm because of his hearing loss.  A VA examiner said he was likely limited in his ability to function effectively in an employment setting that required receptive communication skills and includes background noise.  A later VA examiner stated that while employment might be limited, hearing loss alone would not preclude him from gainful employment in a context where interpersonal communication or auditory monitoring is not required.  This later examiner then noted  deaf individuals have rewarding careers in a variety of fields.

The veteran also testified that personnel at the local VA Vocational Rehabilitation and Employment Center said there were no facilities available to train him for work environments that did not require interpersonal communications and auditory skills and there were no potential employers seeking employees without interpersonal communication and auditory skills.

The veteran sought reversal and an award of TDIU because the Board clearly erred.  The Court did not award TDIU because the Board failed to explicitly weigh potentially favorable material evidence.  But, it did remand for consideration of evidence that had been ignored by the Board.  The Court specifically pointed to the veteran’s testimony about the impact of his hearing loss on his ability to function and gain employment, including his inability to use the telephone, limited ability to talk directly to someone, and inability to drive; his testimony that the VA Vocational Rehabilitation Center advised him there were potential employers; and lay statements about his ability to work.  The Court seemed particularly interested in the failure to request records from the VA Vocational Rehabilitation Center.

The veteran also argued that the reference to “deaf individuals” being able to work is a cause for reversal because it considered the average person rather than the individual veteran.  The Court agreed “that whether people with a disability like the veteran’s are usually employable is generally not relevant to TDIU determinations, which are based on an individual’s specific circumstances.  Any reference to whether other individuals, or others as a group, are generally employable despite a particular disability, whether further, careful explanation, may indicate that the Board gave undue consideration to irrelevant and potentially prejudicial information.”   However, the Court found taking the full Board opinion in context, the Board took into account the specific veteran.

The veteran also sought an increased rating under extraschedular considerations and the Court reiterated the issue was so intertwined with the issue of TDIU that it must be remanded.

The decision is important as a further explanation of TDIU and the fact it focuses on the individual veteran rather the average person with that disability.  It also demonstrates a good example of the VA failing in its duty to assist.  because it ensures a veteran has the opportunity to be heard before every Board decision maker and has application to any number of cases that were decided before this opinion.

Written by Judge Bartley and joined in by Chief Judge Kasold and Judge Moorman.

Jackson: What Happens to the Attorney Fee when the Veteran Dies

Francis J. Jackson v. Shinseki, Opinion Number 12-0738, was decided March 6, 2014 and concerns the what happens to the attorney fee agreement when the veteran dies after a favorable decision granting service connection but before the Regional Office implements that decision by assigning a disability rating and effective date and paid the funds to the surviving spouse.

The Court determined the amount stated as the award for success in pursuant of a claim for benefits had not been determined at the veteran’s death.  The Court admits the accrued benefits claim is derivative of the veteran’s claim for service connection and the accrued benefits claimant is only entitled to what was properly due the veteran at the time of his death, but which was unpaid.

The attorney argued that because the claim for accrued benefits was derivative of the veteran’s claim the award of past due benefits to the spouse was on the basis of the veteran’s claim and that award satisfied the final requirement for him to be paid in fulfillment of his agreement with the veteran.  The Court instead found the spouse was a separate claimant from her husband she was never a part of the fee agreement and thus the attorney cannot collect a percentage of the spouse’s accrued benefits award.

Judge Schoelen dissented and found the result was absurd because essentially he was “not entitled to collect a fee for legal services provided to the veteran because the regional office (RO) failed to calculate the amount of past-due benefits owed to the veteran prior to his death.”  Id. at *12.  Judge Schoelen found the “past-due benefits were, in fact, awarded” and focused on the fact the accrued benefits claim was entirely derivative of the veteran’s claim.

Judge Schoelen laid out a path to a challenge of the majority’s decision by saying the statute and regulation regarding attorney fees do not speak to the precise issue presented by the facts of this case and then finding “it is illogical to conclude that her claim, the substance of which is purely derivative of the veteran’s claim, can result in a payment of accrued benefits that is greater than what the veteran would have been entitled to receive but for the unfortunate timing of his death.”  Id. at *14.

She also found the majority holding is inconsistent with Congress’s desire to promote freedom for VA claimants to obtain access to judicial review and secure capable legal representation.  Id. at *16.  She acknowledged some attorneys might avoid very old and infirm veteran’s for fear of death, especially in light of the fact it takes the VA 923 days to process an appeal from the time a claimant files a Notice of Disagreement.

This case represents another attempt by the VA to limit the ability of claimant’s to obtain legal representation. Unfortunately, the Court went along with the reasoning. However, Judge Schoelen’s piercing dissent offers a perfect basis for an appeal, which has been filed with the federal circuit court of appeals.

Decision by Judge Moorman and joined by Judge Davis.  A dissenting opinion was filed by Judge Schoelen.

Is the VA Trying to Game the System?

Below is an important article about how the VA is trying to improve their numbers by making it harder for a veteran to file a claim, appeal a claim, and hire an attorney.

http://www.truth-out.org/opinion/item/24144-va-also-not-telling-the-truth-about-veteran-disability-claims

Cardona: Same Sex Spouses and Voluntary Cessation Exception to the Mootness Doctrine

Carmen J. Cardona v. Shinseki, Opinion Number 11-3083, was decided Marcy 11, 2014 and concerns additional compensation for a dependent same sex spouse and the voluntary cessation exception to the doctrine of mootness.

The veteran sought additional compensation for a dependent spouse under 38 USC 1115.  However, the dependent spouse was a same sex spouse  under Connecticut law and not a spouse pursuant to 38 USC 101(31).

The case was stayed until the decision in US v. Windsor, and then the Secretary filed a motion to vacate the Board decision and remand the matter for award of additional spouse compensation.  The VA then filed a motion to dismiss based on mootness and informed the Court all past due benefits had been paid.  The veteran opposed the motion based on the voluntary cessation exception to the mootness doctrine, essentially arguing because the law remains, this or a future administration could simply resume enforcement of section 101(31) in the future.

The Court found this was not a circumstance where the Secretary’s cessation appears to be a transitory litigation posture.  Id. at *9.  “Further…, this is not a case where the circumstances surrounding the voluntary cessation reflect an attempt to evade judicial review or manipulate this Court’s proceedings.  Rather the circumstances reflect a genuine, good faith change in policy based on the discernable developments noted above—issuance of Windsor, a district court’s decision that the title 38 provision is unconstitutional, and the President’s directive that executive agencies not enforce the provision—which weigh heavily in favor of finding that a reversion to the enforcement of section 101(31) is not reasonably likely.”

So, it is not clear a veteran can receive additional compensation for a same-sex spouse and that same-sex spouse should receive other benefits.

Decision Chief Judge Kasold, Judges Davis and Bartley.

Morris: Who Is Entitled to Benefits Due and Payable at the Time of Death?

Sherman E. Morris Sr v. Shinseki, Opinion Number 12-1913, was decided March 20, 2014 and concerns who can receive benefits due and payable at the time of a veteran’s death. 

The veteran’s brother served as fiduciary; however, the VA was retaining a significant amount of unpaid compensation that had resulted from waiting on a determination of the amount of severance pay the veteran had received after being released from the temporary disabled retirement list.  The VA had not released the unpaid compensation to the fiduciary because the fiduciary had yet to obtain the VA required bond.

Ordinarily, under 38 USC Section 5112 upon a veteran’s death, any monetary benefits due at death goes to the following in order: a) the veteran’s spouse, b) the veteran’s children, and c) the veteran’s dependent parents.  However, here, the veteran’s brother argued he was entitled to the withheld funds due but unpaid by operation of Georgia state inheritance law.

The Court determined that “[i]n enacting section 5121, Congress limited eligibility for accrued benefits due and unpaid to the same few categories of dependent family members for whom a veteran could seek additional disability compensation while alive.”  Id. at *6. 

The brother argued Section 5121 does not preempt state inheritance law, but the Court found that under the theory of conflict preemption, Georgia state inheritance law was preempted.

The brother also argued the veteran had a constitutionally protected property right in the VA disability award.  However, the Court noted Federal Circuit case law stating a protectable property interest in VA disability benefits extends only so far as the law creates it and section 5121 does not extend the interest in this case to the brother.  Id. at *18.

It should be noted section 5121 does offer an exception to reimburse any person who bore the expenses of the last sickness and burial.

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