Cornell: Attorney Fees Earned?

Cornell v. McDonald, Opinion Number 15-3191, decided December 12, 2016 involves a dispute over whether an attorney earned a fee related to a claim.

Cornell represented the veteran on a claim for hearing loss which resulted in a favorable result in 2011.  After the favorable result, the attorney wrote a letter to the veteran closing her file.  Six months later, the veteran, with the assistance of a VSO applied for individual unemployability.  The IU claim was granted with an effective date going back to the initial favorable result in 2011.  The VA withheld the attorney fee from the veteran’s award and paid it over to the attorney.  Five months later, the veteran appeared to have filed a notice of disagreement and the VA attempted to claw back the fee as unearned.

On appeal, the attorney admitted she never presented a claim, argument, or evidence for individual unemployabilty, that she overlooked the possibility of an IU claim, and that she closed her file after the initial favorable decision.  But, the attorney argued that the IU award was premised on her earlier favorable result, used the same effective date, and that the delay in the VA trying to claw back the money (5 months after it was paid to her, which would have been 8-10 months after the veteran found out about the result) all supported finding the award was appropriate.

The Court found she did not contribute to the award and thus did not earn it.

I can’t help but feel the result was correct.  The attorney did not meaningfully contribute to the IU claim.  However, her brief makes clear she only accepted a fee the VA initially determined she was owed.  And, that the challenge to the fee was very delayed (through the negligence of the VA); the result being that a fee she might have used to keep her practice open and help more veterans was taken away from her.  This is a hard case to see any true winners in.  Perhaps the real lesson is the always remember to get in evidence and argument about a claim for individual unemployability.  

Written by Chief Judge Davis and joined in by Judges Kasold and Lance.

McCarroll: Hypertension and the Use of Medications

McCarroll v. McDonald, Docket Number 2014-2345, decided November 17, 2016 is a decision involving a the proper rating for a veteran whose hypertension is treated by medications.  This was a decision by the full court with interesting concurring and dissenting opinions.

The veteran was service connected for hypertension, but the use of medications prevented his blood pressure readings from being so high as to warrant more than a 0% rating.  The veteran sought a higher rating and argued pursuant to the Court’s holding in Jones v Shinseki, 26 Vet. App. 56 (2012) the VA should discount the ameliorating effects of his blood pressure medicine and without his medication his blood pressure would meet the criteria for a higher disability rating or at a minimum more nearly approximate the criteria for a higher rating.  The Court rejected this argument. 

The Court explained that Jones stood for the proposition that the VA “may not deny entitlement to a higher rating on the basis of relief provided by medication when those effects are not specifically contemplated by the rating criteria.  Thus, if DC 7101 does not specifically contemplate the effects of medication, the Board is required pursuant to Jones to discount the ameliorate effects of medication when evaluating hypertension.  Conversely, if DC 7101 does specifically contemplate the effects of medication, then Jones is inapplicable.  The Court holds that DC 7101 contemplates the effects of medication and, therefore, that Jones does not apply.”

The Court determined DC 7101 contemplates the effects of medication by noting a 10% rating is granted if a) the diastolic pressure is 100 or more, b) the systolic pressure is 160 or more, or c) an individual with a history of diastolic pressure of 100 or more who requires continuous medication for control.  The Court essentially determined the reference to continuous medication for control as to a 10% rating was enough to show the rating contemplated the effects of medication.

The veteran also argued for a 10% rating based on the fact he was continuously taking medication and had a history of diastolic pressure 100 or more.  The veteran pointed to 6 prior blood pressure readings of which one had diastolic pressure at 100 and another of 96.  The Court stated the “single reading does not demonstrate clear error in the Board’s finding that the appellant did not have a history of diastolic pressure predominately over 100 or more, as required by the rating criteria.”

Finally, the veteran also sought a referral for extraschedular considerations, but the Court found that argument was not reasonably raised below.

A concurring opinion by Judge Kasold and joined in by Judge Schoelen would go further.  They would argue that Jones should be overturned.  They explain the essence of the rating schedule is that veterans are compensated for their symptoms and how those symptoms would on average impair a person’s earnings capacity.  They also argue the medication did not taint the results and that instead the blood pressure readings were in fact accurate.  “Because taking blood pressure medication is not an unusual phenomenon for people with high blood pressure, the readings also reflect the condition of Mr. McCarroll’s body under ‘the ordinary conditions of life.’”

A dissenting opinion by Judge Hagel and joined in by Judge Greenberg argued that just because a portion of DC 7101 discussed medication does not explain how the entire prevision considered medication and would have found the Board erred.  The dissent also felt a medical opinion was required to discount the ameliorative effects of medication and the Board violated Colvin v. Derwinski, 1 Vet. App. 171 (1990), in effectively rendering a medical opinion itself.  Specifically, the Board stated the veteran’s “hypertension has not manifested with diastolic pressure predominately 100 or more, with or without medication; or systolic pressure predominately 160 or more throughout the initial rating period.”  The dissent explained the “Board made its own medical findings by considering the ameliorative effect of medication on [the veteran]’s diastolic and systolic pressure or, in other words, the first two alternatives of Diagnostic Code 7101.”

This is an interesting decision in that the Court is signaling an interest in more specifically looking at the ameliorative effects of medication and a willingness to err on the side of finding medications being contemplated by the rating. It is also interesting in that at least two judges would overturn Jones in its entirety.

Cox: Afghanistan and Gulf War Syndrome and Regulatory Interpretation

Cox v. McDonald, Opinion Number 14-2779, decided November 7, 2016 involves a claim by a veteran who served in Afghanistan and was claiming compensation pursuant to 38 USC Section 1117 and 38 CFR Section 3.371(b).  This is a regulatory interpretation case where the Veterans Court came down overwhelmingly on the VA's side in terms of its ability to interpret regulations.

The veteran was making among other things a claim for service connection for a back disability and bilateral knee disability.  The question was whether his service in Afghanistan qualified him as eligible for compensation for an undiagnosed illness under the special presumptions allowed Persian Gulf War veterans pursuant to 38 USC Section 1117 and 38 CFR Section 3.371(b).

In February 2010, the VA issued Training Letter 10-01, which included language stating while Section 3.371 does not include Afghanistan as a portion of Southwest Asia,

Considering the important of current U.S. military operations in Afghanistan and its environmental similarity to all other regions of Southwest Asia, C&P Service has determined that Veterans with service in Afghanistan fall under all laws related to Gulf War and southwest Asia service.  A regulatory amendment to make this official is forthcoming.

The veteran submitted his claim in August 2010.  In October 2010, the VA withdrew its initial Training Letter 10-01 and issued a revised version that delete the language giving Afghanistan veterans the same presumption for undiagnosed illness or medically unexplained chronic multisymptom illnesses.  An October 2010 RO decision denied service connection for the back and knees stating there was no evidence of a current diagnosis.

On appeal, the veteran argued the Gulf War provisions applied to him due to his Afghanistan service.  The Court determined the Gulf War Syndrome presumptions do not apply to service in Afghanistan.  The Court noted that when the law was passed by Congress, the US had not entered into combat in Afghanistan and that instead Congress intentionally did not identify the term Southwest Asia, instead leaving it to the VA to define that term.  The Court then determined the VA’s interpretation was not arbitrary, capricious or manifestly contrary to the statute. 

Finally, the Court determined the VA’s original Training Letter extending the law to Afghanistan veterans did not create a substantive right that could only be changed with appropriate notice and comment pursuant to the APA.  The Court took the position the claims adjudication manual and Training Letters are not substantive rules but “instead represents guidance from the VA Compensation and Pension Director to RO personnel, giving personnel notice of potential, forthcoming changes to the regulation.”  To support this conclusion, the Court noted the Training Letter stated a regulator amendment was forthcoming and instructed RO personnel to hold some claims where the VA was amending the regulation to make clear some additional illness were covered.  Taken together, the Court determined these showed “the VA policy document at issue was meant to be a guidance directive for VA staff and was not meant to confer any rights upon veterans.”

This is a deeply troubling decision which shows how the VA often changes the “goal posts” on veterans and advocates during the pendency of a claim.  It narrowly reads VA materials as not creating substantive rights and gives what I think is too much deference to the VA’s interpretation of the term Southwest Asia.  I hope this claim to be appealed to the Federal Circuit and think both issues to be issues of concern for the Federal Circuit.

Written by Judge Pietsch, joined by Chief Judge Davis and Kasold.

Matthews: Board May Not Sub Silento Incorporate Reasons from a Prior Board Decision

Matthews v. McDonald, Case Number 2015-1787, decided October 14, 2016 is a decision involving a a case with multiple Board decisions where the Board seemed to finally accept the failure of the Appeals Management Center to follow directions without explaining why they were not going to follow instructions.

The veteran claimed residuals from a neck tumor should be service connected.  The claim resulted in three Board decisions.  The first Board decision required the AMC to assemble a panel of three compensation-certified oncologists to review a sample of the tumor and render an opinion on the tumor. The AMC never was able to assemble the panel and instead supplied an opinion by a private physician, whose opinion resulted in a denial of the claim. 

The second Board decision remanded the claim because the VA had not asked the veteran for authorization to release a tissue sample of the tumor and the medical opinion did not contain an adequate supporting rationale.  That same decision noted while only one oncologist, rather than three, provided an opinion, the veteran was not prejudiced.

The third Board decision resulted after the AMC found another oncologist to provide a negative opinion and subsequently denied the claim.  The third decision stated the VA had satisfied its duty to assist.

On appeal to the Court, the veteran argued the Board did not adequately explain why an opinion from three VA oncologists was no longer necessary as specified in the initial Board decision.  The Secretary argued the Board was not required to address that question in its most recent decision because the Board had explained in its second decision that the veteran was not prejudiced by an on opinion from a single oncologist.

The Court held “that the Board is not permitted to sub silentio incorporate its reasons and bases form a prior remand order into a later decision.  The Secretary has not cited any legal authority, nor is the Court aware of any that allows the Board to eschew section 7104(d)(1) in that manner.  To the contrary, the Court [has] suggested … [in a prior decision] that the Board would be required to provide reasons or bases for ‘its previous determination on a matter’ in each subsequent Board decision, either by addressing it anew, ‘largely recycle[ing]’ its prior reasons or bases, or ‘replicat[ing] the language it employed previously.’”  The Court further noted that Board findings are in non-final remand orders are insulated from judicial review and finds in Board remand orders that are unfavorable are not final and are not binding—“Such a conclusion would be antithetical to the pro-claimant veterans benefits system and, absent some indication that Congress intended to make findings in Board remand orders binding and unreviewable, the Court will not impose such limitations.”

Overall, the VA’s actions in this case are not unusual, they arbitrarily create standards (assemble a panel of three) and then dispense with the requirement when it is too hard.  The Court’s decision seems motivated by the arbitrary nature of the VA’s rejection of its own requirements.  The decision also helps to bring to the forefront that a mistake in a VA remand decision is not lost, but should still be able to be raised on appeal.

Decision written by Judge Bartley and joined in by Judge Schoelen and Pietsch.

Hill: ACDUTRA and Aggravation, and Medical Treatises and Self-Medicating

Hill v. McDonald, Case Number 2014-1811, decided October 7, 2016 is a decision involving a veteran who was struck by lightning during a period of active duty for training (ACDUTRA).

The veteran was granted veteran status by the VA for his right knee, which was injured in the lightning strike, but also sought service connection for his back and for PTSD. 

The initial question was the veteran’s veteran status for these different disabilities, which was based on the same period of ACDUTRA.  The Court held: “[O]nce a claimant has achieved veteran status for a single disability incurred or aggravated during a period of ACDUTRA, that status applies to all disabilities claimed to have been incurred or aggravated during that period of ACDUTRA.”

The second question was how the presumption of aggravation and the requirement for an entrance examination applied to an ACDUTRA.  The Court concluded: “an entrance examination is not required for a claimant in the appellant’s circumstances to receive the presumption of aggravation for a claim on a period of ACDUTRA.  Instead, a claimant need only submit evidence that helps establish that ‘there was an increase in disability during such service.’  If a claimant submits documentation that, together with the rest of the record, evidences both the baseline severity of the preexisting condition prior to the period of ACDUTRA and a permanent increase in disability during a period of ACDUTRA, the claimant may take advantage of the presumption of aggravation.”

Third, the Court specifically dealt with the question of whether new and material evidence was submitted regarding the veteran’s back condition.  Importantly, the veteran has submitted medical treatise materials on lightning strikes and “one of the articles address the missing element of nexus in that it states a lightning strike might affect the musculoskeletal system, including contusions, fractures, and muscle and ligament tears.  The article on its face is material to whether the lightning strike could have worsened the appellant’s preexisting back condition.  Accordingly, the Court concludes the Board’s determination that the appellant failed to submit new and material evidence is clearly erroneous.”

Fourth, the Court dealt with the question of the veteran’s claimed psychiatric disability and found the C&P examination to be incomplete.  The C&P noted the appellant started drinking alcohol more heavily after the lightning strike and listed it as a factor aggravating the veteran’s mental condition which showed the lightning strike was not a cause of the aggravated condition.  However, the Court seemed to question why the examiner did not use this post-lightning strike drinking as proof that the lightning strike did not cause the aggravation (i.e., the veteran turned to drinking to self-medicate).

Overall, this is an important decision that clarifies questions concerning ACDUTRA and also gives an example of the power of a medical treatise and helps show that alcohol use might be a symptom of a stressful occurrence.

Decision written by Judge Greenberg and joined in by C.J. Hagel and Schoelen.

Warren: Beware the VA Employee Who Wants You to Withdraw an Appeal

Warren v. McDonald, Opinion Number 15-0641, decided September 14, 2016 involves an alleged withdraw of an appeal before the Board and the impact it had on a subsequent decision.

The veteran was denied service connection for sleep apnea in December 2008.  He subsequently filed a NOD in April 2009 asking for an appeal to be processed by a decision review officer rather than the traditional appeals process. 

In April 2010 a statement of the case was issued again denying service connection for sleep apnea.  However, in a March 2010 statement in support, the veteran stated he wished to withdraw his request for a decision review officer and asked instead for a Board hearing.  An April 29, 2010 statement from the veteran’s representative reiterated the request for a Board hearing for the issue of sleep apnea.  However, on April 30, 2010 a VA employee noted on a VA form 21-0820 that she had spoken to the veteran and he wished to withdraw the sleep apnea condition from the pending appeal.  However, a May 2010 note from another VA employee noted the veteran called and requested a travel board hearing.  In May 2010, the RO certified the sleep apnea claim to the Board.

Later in May 2010, the veteran’s representative sent a physician’s nexus statement with a  cover letter stating it was being sent in support of the veteran’s pending claim.  The RO apparently considered this a new claim and in September 2010 the RO granted service connection for sleep apnea effective the May 2010, which was the date the VA considered the claim reopened.  As to the effective date, the RO noted it had received the prior NOD for sleep apnea but that he had withdrawn that claim. 

In April 2013, the veteran inquired with the VA about the status of his travel Board hearing, which he had requested in February 2010.  A June 2013 Board hearing was held and the veteran argued the form withdrawing his appeal was a misrepresentation of his wishes, instead he had wanted to withdraw his claim from DRO review and wanted to proceed with a Board hearing.

The Board issued a decision in November 2014 in which they noted the appeal was from a denial of service connection for sleep apnea but characterized the issue now as an earlier effective date.  The Board noted the form purportedly withdrawing the appeal appeared proper and there was no prohibition against a veteran withdrawing a claim by telephone.  The Board then found the proper effective date was May 2010.

The Secretary principally relied on Hanson v. Brown, 9 Vet. App. 29 (1996) wherein the Court affirmed a finding the veteran withdrew a claim that was withdrawn when a VA social worker conducted an in-person meeting and completed a contact form withdrawing the issue.  The Court noted “Withdrawal of an appeal is only effective where withdrawal is explicit, unambiguous, and one with a full understanding of the consequences of such action on the part of the claimant.”  The Court then noted the dissimilarities between Hanson and the case at hand.  They noted, Hanson involved an in-person meeting as opposed to a telephone call and they also noted “unlike in Hanson, there is considerable evidence that Mr. Warren did not intend to withdraw his 2008 sleep apnea claim when he called VA in April 2010.  Instead, the … evidence indicates that Mr. Warren merely wished to remove his sleep apnea claim from the DRO process and that, even after the April 2010 purported withdrawal, he believed that his sleep apnea claim was still pending on appeal….”  The Court then concluded “On the record as a whole, the Court is left with the definite and firm conviction that the Board committed a mistake by finding that Mr. Warren withdrew his appeal.”

Next, the Court dealt with whether the most recent Board decision should have considered the veteran’s service connection for sleep apnea or the issue of the effective date.  The Court noted this case had two claim streams, the 2008 claim for service connection for sleep apnea and the 2010 claim that occurred when the RO construed the veteran’s submission as an application to reopen the claim.  The Court stated “Caselaw is clear that, because the veteran timely appealed the April 2009 RO decision denying the December 2008 claim, only a Board decision can resolve the December 2008 claim….  The September 2010 RO decision could not resolve Mr. Warren’s appeal of his December 2008 sleep apnea claim because, by virtue of his appeal, the Board, not the RO, had jurisdiction over it.  The decision of the lower adjudicative body, the RO, cannot finally decide an issue already on appeal to the Board, the higher administrative appellate body.” 

The result is a remand for the Board to consider the merits of the December 2008 claim for service connection for sleep apnea, including all subsequent evidence and argument.

This is an important decision some advocates have noticed a pattern whereby VA employees seek to persuade veterans to withdraw their appeal and simply file a new application for benefits.  While this might result in a quicker grant of benefits, it will probably result in the veteran not receiving the proper effective date.  Veterans should beware of this practice.  This case also seems suggest the Court is more than willing to find the VA’s factual argument is not correct if the veteran can point to evidence that rebuts it.  While the VA should be looking out for veterans and applying the benefit of the doubt to assist them, it is clear that a veteran should beware of the VA’s actions and suggestions.

Decided by Judge Bartley, joined by Judges Lance and Davis.

Emerson: Earlier Effective Dates under 38 CFR 3.156(c)(3)

Emerson v. McDonald, Opinion Number 14-2968, decided August 210, 2016 involves a claim for an earlier effective date after inclusion of service records pursuant to 38 CFR 3.156(c)(3).

The veteran was denied servicec connection for PTSD in 2003 based on a lack of proof of a stressor.  Service connection was subsequently granted in 2011 after the requirement of proof of a stressor for combat related situations was relaxed. 

The veteran appealed the effective date and noted he submitted military personnel records after 2003 that purported to show he was onboard a helicopter during combat flight missions in Vietnam.  He argued 3.156(c)(3) applied due to the fact he submitted relevant service records that were not associated with this file at the time of the denial in 2003 and required the VA to reconsider his original claim.  The Board denied an earlier effective date and the VA argued he was not entitled to consideration under 3.156(c)(3) due to the intervening grant of service connection in 2011. 

The Court reversed and found that the intervening grant of service connection did not prohibit the application of 3.156(c)(3).  The Court stated if the following criteria are met, the VA must reconsider the original claim: (1) receipt of relevant service records which existed and had not been associated with the file at the time of the original decision, and (2) receipt “at any time after VA issues a decision on a claim.”  The Court also strongly suggested that unlike a CUE claim, the law existing now should inform the decision looking back to see if 3.156(c)(3) applied.  The Court also framed the issue on remand as whether the newly associated records are “at least partially decisive” as to an award.

The VA had argued the Court should not consider this issue as it was raised in a conclusory manner before the Board.  The Court rejected this argument and stated under the law the argument did not need to be as fully developed as it was before the Court.  The Court also noted the Board did not even consider 3.156, but rather than remanding, noted it was a legal issue and relevant facts are not in dispute.  Finally, the veteran was granted a reasons and bases remand for a higher rating for PTSD.

This is an important decision as the VA apparently hoped to foreclose the use of 3.156 to gain an earlier effective date for combat veterans suffering from PTSD.  This decision makes clear those veterans can still pursue an earlier effective date under 3.156 in the event newly associated service records are found even if they have subsequently been granted service connection.

Decided by Judge Bartley, joined by Chief Judge Hagel and Judge Pietsch.