Reliford: The merits of substituting under Sections 5121 and 5121A

Reliford v. McDonald, Opinion Number 13-3048, was decided March 20, 2015 and is an interesting case on the merits of substitution of a surviving spouse under Sections 5121 or 5121A.

Sections 5121 and 5121A allow for substitution of a surviving spouse to gain accrued benefits.  Section 5121 is a separate and distinct claim from the deceased underlying claim and importantly must be made on the evidence that was either physically or constructively in the claims file at the time of death.  On the other hand, section 5121A is a procedural mechanism where a surviving spouse can be substituted in a pending claim and allows the ability to further develop the record, including imposing on the Secretary a duty to assist.

In this case, a mixed VA examination was of record (it originally recommended service-connection, but an addendum stated it reviewed additional evidence and changed her opinion to recommend against service-connection).  There was also a private physician opinion supporting aggravation.  The claim had already been subject to an appeal and remand from the Veterans Court to the Board on the issue of aggravation when the veteran died. 

The spouse submitted a VA form 210534 Application for DIC, Death Pension and Accrued Benefits.  The VA treated it as a request for substitution under section 5121A and send a notice saying they were working on her claim for substitution of claimant and  she may submit additional evidence in support or waive the opportunity to submit evidence.  The Board certified substitution and then remanded for additional development.  A new negative medical opinion was obtained by the VA.

Reliford argued the Board should not have processed her substitution under Section 5121A but 5121 and that as a result they should not have considered new evidence. VA agreed a spouse may seek benefits under either Section 5121 or 5121A, but noted it was processed as a request for substitution pursuant to VA policy and that such policy was beneficial for the vast majority of surviving spouses.

The Court recognized that the VA was attempting to help most spouses, but found “[n]onetheless, although the Secretary notified Mrs. Reliford that she could waive the right to submit additional evidence, he did not notify her that she could waive substitution, in contravention of his policy.”  Id. at *8.  As a result, the Veterans Court remanded the claim for a decision based on the record existing at the time of death.

Decision by CJ Kasold, joined by J. Davis.  J. Lance concurring in a separate opinion.

Swain and Earlier Effective Dates

Alan R. Swain v. McDonald, Opinion Number 14-0947, was decided January 8, 2015 and concerns an earlier effective date for a ratings increase related to hearing loss.

The veteran was service connection for a hearing loss in 1956 but granted a non-compensable rating.  He sought an increase in 2007 and a 2008 VA audiology examination using the Maryland CNC showed a non-compensable rating.  The veteran submitted in support 2009 and 2010 private audiology examinations showing a normal precipitously sloping to profound hearing loss.  Neither examination noted the test used and it appeared they did not use the Maryland CNC test.

Ultimately, an April 2013 remand from the Board resulted in a June 2013 VA audiometric examination in which the examiner used the Maryland CNC test showed normal precipitously sloping to profound hearing loss and the examiner opined that the results were consistent with the 2009 and 2010 examination results.

The RO granted a 10% rating effective to the June 2013 VA examination on the basis that an examination for hearing impairment must include a Maryland CNC test and thus that the effective date of a claim for an increased rating could be no earlier than the date of the Maryland CNC test showing an increased disability rating was warranted.

The Court flatly rejected the VA’s position that the effective date had to be tied to the Maryland CNC test result and stated instead that “we have held that an effective date should not be assigned mechanically based on the date of a diagnosis.  Rather, all the facts should be examined to determine the date that the veteran’s disability first manifested.”  Id. at *7.

The Court also reversed rather than remanded the case, recognizing “[t]he only reason the Board did not assign an effective date as of the November 10, 2009, audiometric test is because the Board thought it could assign an effective date only as of the date of the Maryland CNC test.”  Id. at *8.

This case shows that the proper focus for the effective date is not the date of the diagnosis but the date the disability first manifested.  This case is in line with cases such as Stower v. Shinseki which can be used as powerful tools to significantly push back the effective date.

Decision by CJ Kasold, joined by J. Hagel and J. Schoelen.

Roberts: SBP and DIC Offsets and Non-prejudicial Error

Jacqueline S. Roberts v. Robert A McDonald, Case Number 13-1240, decided October 7, 2014 concerns the VAs attempt to offset a DIC award by the amount of SBP benefits a surviving spouse received.

While alive, the veteran had his monthly disability award reduced under the Surviving Benefits Plan (SBP) and after his death, the spouse began to receive SBP payments.  Meanwhile, the spouse also filed a DIC claim  Five years later, DIC was awarded with an effective date of her husband’s death.  Shortly thereafter, the RO was told by the Defense Finance and Accoutning Service that the wife had received approximately $30,000 in SBP payments and the RO decided to withhold that amount from DIC payments (basically withheld the past due DIC benefits) based on 38 C.F.R. Section 3.658.  The spouse appealed.

The Court heard the case and agreed to vacate and remand for a new decision.  By law a survivor cannot receive both SBP and DIC.  However 10 U.S.C. Section 1450 appears to apply to overpayments of SBP, and states a reduction in SBP payment may be made, but not of the DIC.  The statute also allows limited authority for the DoD to recoup SBP payments, but also includes safeguards for the survivor.  The VA conceded to the Court that 38 C.F.R. Section 3.658 did not apply, but argued other statutory and regulatory provisions authorize the VA to deduct SBP payments from a DIC award and therefore there was no prejudicial error.

The Court vacated and remanded for a new decision that takes into account all regulations and statutes.  The Court also rejected the non-prejudicial error argument.  They said the point of a statement of the case as issued by the VA is to give the veteran notice of the authority relied upon and thus give the opportunity to challenge the decision on the correct legal basis or authority.  Id. at *6.

While this case deals with a rather narrow issue, its consideration of non-prejudicial error and rejection of the VA position that failing to address the proper statute or regulation is not important because the point of a Statement of the Case is to give a veteran an opportunity to challenge a decision on the correct legal basis or authority is potentially applicable to a broad number of cases.

Authored by Judge Moorman and joined by C.J. Kasold and Judge Bartley.

Thomas Andrews is an attorney in Columbia, South Carolina.  You can visit his website at http://thomasandrewslaw.com/

Cacciola: CUE When A Case Has Been Decided by the Court

Thomas F. Cacciola v. Sloan D. Gibson, Opinion Number 12-1824, decided July 22, 2014 concerns a claim for CUE when the case had previously been decided by the Court of Appeals for Veteran Claims.

The veteran had sought a higher rating and an earlier effective date which both been denied in a prior Board decision.  The veteran appealed to the court but the Court found the issue regarding the initial compensable rating was abandoned.  He then filed a CUE claim as to an earlier effective date and a higher initial compensation rate.  Importantly, 38 C.F.R. Section 10.1400(b) states all final Board decision are subject to revision except decisions on issues that have been “appealed to and decided by a court of competent jurisdiction”.

The Court found that a veteran “expressly abandons an issue in his initial brief or fails to present any challenge and argument regarding an issue, the abandoned issue generally is not reviewed by the Court” and thus “an abandoned issue is not decided by the Court for purposes of determining the availability of a collateral attack based on CUE.”  Id. at *2.  “Accordingly, in such instances, a claimant is not barred from bringing a motion to reverse or revise a Board decision on an abandoned issue.”  Id.

“To be clear, the Court notes that abandonment of an issue on appeal, whether express or implied, is different from the situation in which an appellant states that he is appealing the Board’s decision on an issue, but then makes no arguments, or insufficient arguments, challenging the Board’s determination.  In such instances, the Court generally affirms the Board’s decision as a result of the appellant’s failure to plead with particularity the allegation of error and satisfy his burden of persuasion on appeal to show Board error.”  Id. at *15. 

The Court then actually dealt with the issue of CUE in this case and determined there was no error.  The Court stated “the crux of [the veteran’s] argument is that the 2012 Board decision did not adequately weigh the 1985 examination report and that the Board ‘may have’ reached a different conclusion had this evidence been properly considered.”  Id. at *18.  This simply did not rise to the level necessary for a CUE claim.

Authored by Judge Schoelen and joined by Judge Pietsch. Chief Judge Kasold concurred in a separate opinion which expressed his displeasure with the Court’s prior decision in Fagre v. Peake, 22 Vet. App. 188 (2008).  Fagre found it appropriate to delay  a claimant who seeks Board reconsideration of a decision on benefits from appealing another adverse decision in the same Board decision until the request for reconsideration was resolved.  The Chief judge apparently feels there should be no dispute the Court has jurisdiction over a part of a Board decision that denies benefits and sees no reason to delay a decision as to that issue under Fagre.

Thomas Andrews is an attorney in Columbia, South Carolina.  You can visit his website at http://thomasandrewslaw.com/

Tagupa: Proving Service Eligibility for WWII Philippine Guerrilla Fighters

Juliet T. Tagupa v. Robert A McDonald, Opinion Number 11-3575, decided August 26, 2014 concerns whether someone had served as a guerrilla fighter in the Phlippines.  The veteran had submitted an wartime identification card stating he had actively participated in anti-Japanese resistance as well affidavits from comrades.  However, the Board denied service connection because the NRPC found no record of service. 

Typically 38 CFR section 3.203 allows the VA to either accept proof of service from the veteran or request verification from the service department.  The Army has executed a memorandum of agreement with the NRPC allowing the NRPC to provide reference service information regarding Philippine Army files.  However, the Court found the MOA does not clarify whether the NRPC has the authority to make an administrative determination of service or whether the NRPC is just a reference librarian.  As a result the Court found it is not clear the VA had requested service verification from the service department, the Army, and remanded on that basis.

The Court also found the VA had failed in its duty to assist in that VA regulations require the VA to attempt to prove service by alternate means, but stated because of the other basis of remand it is premature to determine what duty to assist the VA must conduct if the Army provides a negative verification response.

Chief Judge Kasold wrote separately to say the plain language of the MOA between the NRPC and Army does not give the NRPC authority to issue a service department determination that is not otherwise contained in the records it maintains.  Thus he agreed that the VA provided inadequate reasons or bases for determining the veteran did not serve in an unrecognized guerrilla unit during WWII.  However, the Chief judge also stated he found the VA’s rejection of the materials submitted by the veteran to be plausible and not clearly erroneous.

Authored by Judge Davis and joined by Judge Moorman. Chief Judge Kasold concurred and dissented in part.

Thomas Andrews is an attorney in Columbia, South Carolina.  You can visit his website at http://www.thomasandrewslaw.com