Jensen: Specially Adapted Housing and “loss of use”

Jensen v. McDonald, Opinion Number 15-4788, was decided September 12, 2017 and concerns the eligibility of a veteran to specially adapted housing (SAH).

The veteran needs a cane to ambulate and for a while effectively used aqua-therapy.  However, the travel and expense to aqua therapy was onerous.  Therefore, he sought SAH to install a therapeutic pool.  The veteran was service connected for radiculopathy of both extremities at 10% as well as a rating for his cervical and lumbar spine, urinary condition, and SMC.  While rated schedularly at 90% he was receiving TDIU.

The VA agreed the veteran met the permanent and total service connected requirement and the pool was a type of SAH available.  The argument was over subparagraph (B), the Court stated:

The portion of subparagraph (B) that applies to this case states that, to be eligible for SAH, a veteran's disability must be "due to the loss, or loss of use, of both lower extremities such as to preclude locomotion without the aid of braces, crutches, canes, or a wheelchair." 38 U.S.C. § 2101(a)(2)(B)(i). The Board made no findings against the appellant concerning the phrases "due to" and "both lower extremities." The Board determined that the appellant's locomotion is "precluded . . . without the aid of braces, crutches, canes, or a wheelchair." That finding is favorable to the appellant. The Court, therefore, will not disturb it. See Medrano v. Nicholson, 21 Vet.App. 165, 170 (2007). The Board also concluded, however, that the appellant's "serviceconnected disabilities do not result in the loss of use of . . . lower extremities." The only question raised by this case, then, is whether his disabilities produce a "loss of use" of both of his lower extremities.

Id at. *4.

The Board and Secretary argued the phrase “such as” in section 2101(a)(2)(B)(i) means “and” essentially arguing the section means “a veteran is eligible for SAH if his permanent disability produces (1) loss, or loss of use of both lower extremities; AND (2) precludes locomotion without the aid of braces, crutches, canes, or a wheelchair.”  Id. at *4. 

“The appellant assert[ed] that the Board erred by ignoring the plain meaning of the phrase "such as." He argues that section 2101(a)(2)(B)(i) clearly conveys that a "loss of use" exists if a veteran's locomotion is precluded without the aid of braces, crutches, canes,

or a wheelchair.  Id. at *4.

The Court accepted the veteran’s reading of section 2101(a)(2)(B)(i).  It noted that

In the scheme that the Secretary envisions, a veteran who has a reduction in the functionality of his lower extremities so severe that he cannot walk without a cane might be ineligible for SAH because he does not have some sort of additional loss of use. Taken one step farther, the Secretary's argument and the Board's findings in this case suggest that the Board believes that it could conclude that a permanently wheelchair-bound  veteran who is entitled to receive disability benefits for a disorder that causes a reduction in functionality in both lower extremities so severe that he cannot walk does not have a loss of use sufficient to warrant SAH.  That creates an undefinable and unworkable standard laden with an unacceptably high potential for absurd and unfair results.

We think it better to view "loss of use" in a manner consistent with the definitions discussed above. It is a deprivation of the ability to avail oneself of the anatomical region in question. It is a general term, one that can readily accept additional specificity in various circumstances.

"Such as" is, if nothing else, a directional phrase, and it links "loss of use" to preclusion in section 2101(a)(2)(B). Consequently, in that provision, a loss of use exists if a veteran has suffered a deprivation in his ability to use his lower extremity so severe that he is precluded from perambulating without one of the required assistive devices.  That definition comports with VA's view of preclusion.

Id. at *14-15

The Court acknowledged the VA’s concerns that too loose a standard would open SAH to all individuals prescribed an assistive device in conjunction with a lower extremity disability.  However, it stated that the VA needs not concern itself with too loose a standard as “That individual must (1) have a permanent and total disability (2) due to a disorder that (3) involves both lower extremities and (4) causes a loss of use so severe that it precludes locomotion without the regular and constant use of assistive devices. There are plenty of limitations built into that standard.”  Id.at *16.

Judge Bartley wrote an interesting concurrence essentially arguing the Court should use the “loss of use” standard as defined in the SMC contexts, which the Secretary had urged.  However, she would have ruled the veteran did meet that standard because the Board had already ruled the veteran’s locomotion was precluded and found the “loss of use” standard would have been triggered by that finding.

This is an interesting case that tests the bounds of SAH and the term loss of use.  While seemingly limited to SAH uses, it might assist in defining “loss of use” in other contexts, such as SMC.

Decision by J. Pietsch, joined in by J. Greenberg.  J. Bartley wrote a concurrence.

Sharp: DeLuca, Lay Statements and Inadequate Medical Examinations

Sharp v. Shulkin, Case Number 16-1385, decided September 6, 2017 examines a medical examination’s adequacy in light of its statement that “It is not possible without mere speculation to estimate either loss of [range of motion] or describe loss of function during flares because there is no conceptual or empirical basis for making such a determination without directly observing function under these circumstances.”

The Court began by noting that DeLuca states

that a VA joints examination that fails to consider the factors listed in §§ 4.40 and 4.45 is inadequate for evaluation purposes. Specifically, for an examination to comply with § 4.40, the examiner must "express an opinion on whether pain could significantly limit functional ability" and the examiner's determination in that regard "should, if feasible, be portrayed in terms of the degree of additional range-of-motion loss due to pain on use or during flare-ups." … Flareups, in other words, must be factored into an examiner’s assessment of functional loss.

(internal quotation marks and alteration omitted);

The Court also noted that the VA Clinician’s Guide states “When conducting evaluations for musculoskeletal disabilities, examiners are instructed to inquire whether there are periods of flare and, if the answer is yes, to state their severity, frequency, and duration; name the precipitating and alleviating factors; and estimate, "per [the] veteran," to what extent, if any, they affect functional impairment. See generally id., ch. 11. These instructions appear in worksheets pertaining to musculoskeletal examinations of the spine, shoulders, elbows, wrists, hips, knees, ankles, feet, and hands, as well as muscles.”

The Court notes that an examination during a flare-up is not always required and that sometimes a medical opinion can state it can’t offer an opinion without resorting to speculation.  Id. at *6-7.  But, the Court notes that Jones v. Shinseki, 23 Vet. App. 382 (2010), “permits the Board to accept a VA examiner's statement that he or she cannot offer an opinion without resorting to speculation, but only after determining that this is not based on the absence of procurable information or on a particular examiner's shortcomings or general aversion to offering an opinion on issues not directly observed.”

The Court then finds in this case the Board failed to provide adequate or bases for its determination the examination was adequate.  It then importantly notes “Fortunately, neither the law nor VA practice requires that an examination be conducted during a flare for the functional impairment caused by flares to be taken into account. Instead, DeLuca and its progeny clearly, albeit implicitly, anticipated that examiners would need to estimate the functional loss that would occur during flares, as is evident from the fact that Mr. DeLuca's left shoulder disorder flared only "at times.”  Id. at *8.

Thus, the Court noted:

The critical question in assessing the adequacy of an examination not conducted during a

flare is whether the examiner was sufficiently informed of and conveyed any additional or increased symptoms and limitations experienced during flares. See Mitchell, 25 Vet.App. at 44.  Moreover, because the September 2015 VA examiner declined to offer an opinion as to additional function loss during flares "without directly observing function under these circumstances," R. at 125, her position is at odds with VA's guidance on the matter. As noted above, the VA Clinician's Guide makes explicit what DeLuca clearly implied: it instructs examiners when evaluating certain musculoskeletal conditions to obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves.

Id. at *9.  Thus, the examination here was inadequate because the examiner did not elicit relevant information as to the veteran’s flare-ups or ask him to describe the additional functional loss during flares or explain why the examiner failed to do so.  Id.  The Board also erred by relying on this inadequate examination.  Id. at *11. 

The Court then dealt with the Secretary’s argument that the record did not contain adequate information as to functional loss and turns the argument against the VA.  It stateds “the Court agrees, with the caveat that the examiner herself was responsible for

failing to elicit such information. However, to the extent that the Secretary is asserting that a veteran's statements can never provide an adequate basis on which to formulate an opinion regarding additional functional loss during flares, that assertion is inconsistent with this Court's case law and VA's own practice as set forth in VA's Clinician's Guide.”  Id. at *11. 

In a footnote, the Court does state an examiner or the Board is not required to accept a veteran’s allegations regarding flare-ups if inconsistent with other reliable evidence.  Id. at n. 5.

This decision by Judge Bartley is a powerful tool to veterans.  It forces the VA to seriously consider the lay statements of veterans regarding functional loss under DeLuca.  It also underscores the fact a veteran should be able to articulate the functional loss aspect of his musculoskeletal disabilities before he goes into an examination.

Decision by Judge Bartley, joined by Judges Pietsch and Greenberg.

Patricio: DIC and Proving a Marriage

Patricio v. Shulkin, Case Number 15-3924, decided August 31, 2017 examines a claim of DIC and whether a prior marriage had resulted in a divorce.  The interesting issue is that the issue had been decided by the VA in 1986 and found against Patricio.

While the veteran was alive in 1986, a RO decision denied certain benefits based on a determination that a marriage to Ms. Patricio was not valid under the law of the Philippines.  After the veteran died, Patricio as well as a prior spouse both filed for DIC.  The VA denied DIC to Patricio but granted as to the prior spouse.

The issue was the effectiveness of a divorce in California from the prior spouse.  The veteran and prior spouse were married in the Philippines in 1968 and purportedly divorced in California in 1973.  In 1986, the VA found that the divorce in California was not valid and so the second marriage was not valid.  The rationale in 1986 was that while under California law the divorce was valid, the veteran’s domicile during and following service remained the Philippines and the law of the Philippines governed and the Philippines rejects foreign divorces of its citizens.

The rub was that there was evidence the veteran became a citizen sometime before the California divorce.

First, the Secretary argued the Court lacked jurisdiction.  The Secretary’s argument was that Patricio was effectively making a CUE challenge to the 1986 decision and as she had not actually filed a CUE claim and a CUE claim had not been ruled on, the Court lacked jurisdiction.  The Court rejected this out of hand, noting the both alleged spouses filed for DIC and because Patricio’s claim was denied.  As to the CUE argument, the Court noted she was not entitled to file a CUE motion as to the 1986 decision because such motion could only be filed by the claimant—and the claimant was the veteran, not her). 

Next, the Court noted 38 CFR 20.1106 states except in situations not relevant to this claim, “issues involved in a survivor’s claim for death benefits will be decided without regard to any prior disposition of those issues during the veteran’s lifetime.”  The Court found” “This means that for purposes of her pursuit of survivor benefits, including surviving spouse status, the prior unfavorable October 1986 RO decision determine that the veteran’s 1980 marriage to Ms. Patricio could not be legally recognized is of no moment.”  Id. at *7. 

Finally, the Court found the Board’s decision was undergirded by the notion that the veteran’s divorce could not be valid because he was still a citizen of the Philippines.  However, both parties agreed he Board failed to make a factual finding as to citizenship at the time of the 1973 divorce.  The Court refused to make a factual finding as to citizenship and remanded the case to the Board for such initial determination.  However, it pointed out that under the law of the Philippines, when a foreign national married to a Philippine citizen obtains a valid foreign divorce, the law of the Philippines recognizes such divorce. 

On remand, the Court also found that it was necessary for the Board to notify the first spouse and current recipient of DIC of any future hearing as she could possibly lose her benefit.

Decision by Judge Bartley, joined by Chief Judge Davis and Judge Greenberg.

Garcia: CUE and Due Process

Garcia v. Shulkin, Case Number 15-3669, decided August 9, 2017 examines an allegations of a violation of due process in the context of a CUE claim.

The veteran and veteran’s spouse argued clear and unmistakable error regarding service connection for his mental state. 

The Court reaffirmed the pre-existing rule from Hillyard  v. Shinseki, 24 Vet. App. 343 (2011) which states that all possible errors in a final Board decision be raised at the time a motion for revision of that Board decision based on CUE is filed and that no later CUE challenges to a Board decision may be entertained.  Hillyard essentially says you have one chance at a CUE claim and that you had better make all your arguments when you have the chance.

This case involved a prior remand related to the CUE claim for the Board to consider a newly-raised theory of CUE.  In its decision, the Court found they should have remanded for consideration of a newly-raised theory of CUE in light of the rule from Hillyard.  The result was they dismissed the appeal based on a lack of jurisdiction. 

The Court further explained that constitutional due process arguments also can’t be newly-raised in a second CUE claim or added after the CUE claim has been made.  The Court looks at a prior decision by the Federal Circuit that notes that a breach of a duty to assist may not form the reason for a CUE claim. 

This decision is a reminder that a CUE claims should be well-thought out before filing.

Decision by Chief Judge Davis and joined in by Judges Pietsch and Greenberg.

Molitor: Military Sexual Trauma and the VA’s Duty to Assist

Molitor v. Shulkin, Case Number 15-2585, decided June 1, 2017 examines the necessary steps the VA must take to assist a veteran in substantiating a claim of military sexual trama.

The veteran sought service connection for PTSD from a MST.  PTSD/MST claims have a relaxed standard of evidence necessary as explained in 28 CFR Section 3.304(f)(5).

Similarly, there exists a general duty for the VA to assist in developing a claim.

Finally, the VA’s General Council has issued an opinion, GC Precedent Opinion 05-14, which addresses what steps the VA must take to obtain records from servicemembers, other than the claimant, including third party records that may aid in corroborating an alleged personal assault.

The Court found the Board erred in failing to address the GC Precedent Opinion in this case.  Here, she identified several of her assailants, the approximate date of the incident, and ranks and names of four witnesses.  She also identified other women stationed with her that she believed had been sexually assaulted. 

The Court determined:

“The Court is likewise persuaded that the identified records were relevant to and may aid in substantiating the veteran's claim. The alleged assailant's service medical records may show complaints of or treatment for injuries inflicted by Ms. Molitor that would corroborate her account of the rape; the service records and VA claims files of the identified women serving with her in Germany may reflect reports of similar assaults or claims for service connection for residuals of MST that could establish a rape culture at the base; and service records that confirm Private Lutz's suicide would bolster the credibility of Ms. Molitor's reports of other events that occurred in Germany in 1986.  The Court therefore concludes that, for duty to assist purposes, the foregoing records are relevant and have a reasonable possibility of substantiating the veteran's claim because they relate to the claimed initiation rape and may aid in corroborating that stressor.”

Id. at *16 (internal citations omitted).

The Secretary also tried to argue that the veteran was not credible and therefore the VA did not have to attempt to obtain these materials.  The Court found otherwise, finding:

“Given that Ms. Molitor adequately identified relevant records of fellow servicemembers

that may aid in substantiating her claim, G.C. Precedent Opinion 05-14 was applicable to her claim and the Board was required to consider it in assessing whether VA satisfied its duty to assist. Although the Secretary argues that the Board's finding that Ms. Molitor was not credible excused its failure to specifically discuss that G.C. opinion that argument puts the cart before the horse.”  Id. at *16 (internal citations omitted).

The Court then concluded by stating: “Accordingly, the Court holds that where, as here, a claimant pursuing service connection for PTSD based on an in-service personal assault adequately identifies relevant records of fellow servicemembers that may aid in corroborating the claimed assault, G.C. Precedent Opinion 05-14 is applicable to the claim and VA must either attempt to obtain such records or notify the claimant why it will not undertake such efforts. The Board's failure to discuss the G.C. opinion and VA's lack of efforts to attempt to obtain the third-party records identified by Ms. Molitor when assessing whether VA satisfied its duty to assist renders inadequate the Board's reasons or bases for denying her claim.

This decision is a masterful explanation of the duty to assist in cases involving Military Sexual Assault and PTSD and provides a resource that all advocates should use when developing these types of cases

Decision by Judge Bartley, joined by Chief Judge Davis and Judge Greenberg.

Cantrell: TDIU and the “Protected Environment”

Cantrellv. Shulkin, Case Number 15-3439, decided April 17, 2017 considers whether the term “protected environment” in the TDIU context.

The veteran worked as a park ranger, but had significant bilateral hip pain and gastrointestinal issues.  He sought an award of TDIU stating he worked in a protected environment in light of the substantial and numerous accommodations provided by the employer.  and was denied by the Board which found he did not work in a “protected environment.”  The veteran appealed.

During the case, the Court specifically ordered the VA to provide its definition of a protected environment and was told that "VA has purposely chosen not to prescribe a

precise definition of 'protected environment,' allowing the factfinder to make the determination on a case-by-case basis."  Id. at *10.

The Court did not take well to the VA’s position stating “VA's failure to define employment "in a protected environment" or to otherwise specify the factors that adjudicators should consider in making that determination frustrates judicial review of that issue because the Court is unable to meaningfully assess the propriety of the Board's reliance on the factors it cited in this case. The Court simply cannot sanction a statement of reasons or bases that amounts to finding that Mr. Cantrell was not employed in a protected environment  "because I say so." Accordingly, the Court concludes that the Board provided inadequate reasons or bases for denying entitlement to TDIU, necessitating remand.”  Id. at *11-12 (internal citations omitted).

The Court found the term “protected environment” was ambiguous, but declined to define the term at this time instead remanding giving the VA an opportunity to first define the term.

Judge Lance concurred but focused on stating the veteran’s income should impact the calculation (i.e., “whether the claimant receives the same pay as similarly situated coworkers who are not disabled—is also a factor relevant to whether the claimant is employed in a protected”).  He also noted the impact of the ADA and that employers must provide reasonable accommodations and that where an employer must do so payment of TDIU could constitute a “second paycheck on the back of the taxpayer.”

environment.

The decision exposes what has long been recognized as a glaring failure by the VA to really define protected work environments.  However, I fear it will only result in an adoption of a definition by the VA that is anything but veteran friendly.

Decision by Judge Bartley, joined in by Judge Schoelen with a concurring opinion by Judge Lance.

Bankhead: Mental Health Ratings Examined

Bankhead v. Shulkin, Case Number 15-2404, decided March 27, 2017 examines the necessary requirements for mental health ratings and looks especially at the term “suicidal ideation.”

The Board granted a rating of 50% for a major depressive disorder but refused a higher rating.  “The Board recognized that the veteran exhibited many of the symptoms related to a higher disability evaluation, including suicidal ideation, irritability, difficulty sleeping, depression, social isolation, panic attacks, and memory impairment. Nevertheless, the Board concluded that those symptoms did not manifest with sufficient frequency and severity to meet the criteria for a higher evaluation.”  Id. at *6.  The veteran appealed.

First, the veteran attacked the Board’s interpretation of suicidal ideation.  The Court considered the various definitions of suicidal ideation and concluded “In sum, both passive and active suicidal ideation are comprised of thoughts: passive suicidal ideation entails thoughts such as wishing that you were dead, while active suicidal ideation entails thoughts of self-directed violence and death.”  Id. at *10.

It then determined:

The criteria for a 70% evaluation under § 4.130 lists "suicidal ideation" as a symptom VA

deems representative of occupational and social impairment with deficiencies in most areas.  Suicidal ideation appears only in the 70% evaluation criteria. There are no analogues at the lower evaluation levels.  Additionally, there are no descriptors, modifiers, or indicators as to suicidal ideation in the 70% criteria (including no specific mention of "active" suicidal ideation, "passive" suicidal ideation, suicidal "intent," suicidal "plan," suicidal "prepatory behavior," hospitalization, or past suicide attempts). Thus, the language of the regulation indicates that the presence of suicidal ideation alone,

that is, a veteran's thoughts of his or her own death or thoughts of engaging in suicide-related behavior, may cause occupational and social impairment with deficiencies in most areas.

Id. at *10-11 (internal quotations omitted).

The Court noted the record reflected recurrent suicidal thoughts of varying severity, frequency and duration, but noted the Board determined “passive” suicidal ideation did not rise to the level contemplated by a 70% or 100% rating “because he was "at sufficiently low risk of self-harm throughout the period," he had been "consistently treated on an outpatient basis during the period at issue" and there were "no instances where he was hospitalized or treated on an inpatient basis or domiciliary care," "his treating sources have considered his assurances that he would refrain from self-harm to be credible," and he "retained some social and occupational functioning."  Id. at *11.  The Court explained the Board erred because it required evidence more than thoughts to establish suicidal ideation or that he had been hospitalized or treated on an inpatient basis. 

The Court then took a moment to instruct that “[t]he presence or lack of evidence of a specific sign or symptom listed in the evaluation criteria is not necessarily dispositive of any particular disability level, even though, as noted, the Federal Circuit in Vazquez-Claudio found it pertinent that the severity, frequency, and duration of a symptom such as memory loss could be tracked through several disability levels.  In any event, however, VA must engage in a holistic analysis in which it assesses the severity, frequency, and duration of the signs and symptoms of the veteran's service-connected mental disorder; quantifies the level of occupational and social impairment caused by those signs and symptoms; and assigns an evaluation that most nearly approximates that level of occupational and social impairment.” Id. at *14.

The Court remanded for such a determination.  It also found fault with the failure to consider higher staged ratings as the Board focused on lower ratings.  Finally, it denied the veteran’s argument that the issue of TDIU had been reasonably raised.  It noted problems at work, but stated they did not rise to a suggestion of unemployability.

This decision is a master source for attacking the VA’s often erroneous mental health ratings, which frequently graft limiting language to the plain language of the Diagnostic Code.

Decision by Judge Bartley, joined by Judges Schoelen and Greenberg.