Ortiz: Filing the Substantive Appeal

The case of Robert V. Ortiz v. Eric K. Shinseki, Opinion Number 06-0932, decided March 3, 2010, affirmed a denial for an earlier effective date for service connection.

The Board of Veteran Appeals denied a request for an earlier effective date for service connected bipolar disorder. The Court originally affirmed the BVA decision but that decision was withdrawn and replaced with this decision entered after being heard by the full panel of judges.

The Veteran filed and was denied by the Regional Office in 1971 and did not appeal. He re-filed in 1979 and was denied by the Regional Office. He later was granted service connection in 1994 after filing again.

Regarding the 1979 denial, a Substantive Appeal (VA Form 1-9) was never received by the VA. However, at one point the VA sent a letter to the Veteran saying they had not received the form along with a copy of the form and requested that he send it if he wanted to continue his appeal. The Veteran responded with a letter saying he had already sent the form and requesting an update as to the status of the case.

Importantly, the law requires that after the VA issues a Statement of the Case, the veteran “should set out specific allegations of error of fact or law … related to specific items in the Statement of the Case”. The Court determined this requirement “must be interpreted as placing a burden on claimants to expand upon their initial disagreement with the RO decision by setting forth—however inartfully—a particular theory of error for the Board to decide.”

The Court essentially found that while the VA has to liberally construe documents, the basic procedural requirements must be met and they were not met in this case because neither VA Form 1-9 nor a letter alleging a specific error of fact or law was received by the VA. Regarding the Veteran’s letter, the Court stated, “Nothing … references any part of the S[tatement] O[f the] C[ase] or why the denial of the appellant’s claim might be erroneous” and “While the appellant identified his claim, he asserted no reason or theory why the SOC was incorrect as the 1979 Form 1-9 requires.”

The opinion was filed with powerful dissents which argued the majority “inexplicably focuses only on Mr. Ortiz’s May 1980 letter to the Secretary. Such a narrow focus is not the law. Whether or not a Substantive Appeal or the equivalent has been filed is determined by considering the totality of the circumstances…. The result reached by the majority comes simply and plainly from their implicit holding that ‘should’ means ‘must’ in the controlling statute and regulation.” Thus, the dissenting judges found “if the totality of the circumstances and liberal reading permit an understanding of the issue on appeal, the statute is satisfied.”

Perhaps the lesson to be taken is that while a Notice of Disagreement from a Regional Office decision can be vague, after the Statement of the Case is filed by the VA, a more specific Form 1-9 (substantive appeal) must be timely filed and must say enough to focus on the objections to the Statement of the Case.

Full Panel decision written by Judge Lance with dissents by Chief Judge Greene and Judge Kasold

Spina Bifida and the Record Before the Agency

Spina Bifida and the Record Before the Agency

The case of L E. Johnson v. Eric K. Shinseki, Opinion Number 07-0987, decided January 21, 2010, affirmed a denial for service connection for a back injury.

There were two major issues. The first revolved around the use of evidence of back pain during an ineligible period to show a chronic disease or continuity of symptomatology. The second involved whether a medical examination was inadequate in part because it was not signed.

Regarding the first, the veteran had served two periods. During the second, he was discharged under less than honorable conditions. Therefore, a prior decision had found he was entitled to any conditions arising from the first period of service but ineligible for any conditions arising during the second.

The veteran sought to use evidence of a back condition during his second period of service and later post-service evidence to show a continuity of symptoms or a chronic disease that would establish the disability (back condition) was incurred during his first period of service. The VA agreed that “evidence from the ineligible period of service of continuity of symptoms can suffice to establish incurrence of a disability during the prior period of eligible service.” However, the VA disagreed with the argument that “evidence of a chronic disease during a period of ineligible service may be considered by the Board to establish that the chronic disease was initially occurred during a prior, eligible period of service”.

The Court side-stepped answering this question by reaching into the merits of the back condition. Specifically, the BVA found the back pain was spina bifida. Spina bifida is a congenital defect or developmental disorder for which benefits may not be awarded according to the Courts earlier decision in Quirin v. Shinseki, 22 Vet. App. 390, 393 (2009). Since the Court determined the back pain was related to spina bifida and benefits could not be granted for such a congenital or developmental defect, it did not have to decide the limits of using evidence of chronicity from a a disqualified period.

Regarding the medical examination, the veteran had argued that the examiner did not specifically opine whether the developmental back pain disability was aggravated by eligible service. The Court essentially determined it did not matter because “spina bifida cannot be aggravated because it is a congenital defect.” Additionally, the Court also essentially found the physician had said enough, i.e., the veteran’s “current back disability was not related to his eligible service.”

The veteran also argued the examination should not have been treated as evidence because it was not signed by the physician. Here, the Court said the veteran did not submit enough clear evidence to defeat the presumption of regularity because he did not show that the report was not transmitted via an accepted VA internal computer system.

A concurring opinion by Judge Hagel pointed out that it is absurd to expect the veteran to show the report was not transmitted via the VA internal computer system because the only one with access to the system was the VA. To Judge Hagel the presumption of regularity was defeated but then rescued by VA filings of evidence that the report was properly transmitted via the internal computer system. He got this VA generated evidence into the Record Before the Agency by taking a liberal reading of what constituted the record and finding the “VA-generated documents were constructively ‘before the Secretary and Board’” because “the transmittal documents introduced by the Secretary here were clearly generated by the VA during the pendency of Mr. Johnson’s claim”.

This case makes clear that benefits will not be granted for congenital or development disorders. Judge Hagel’s occurrence might also lay a framework regarding how to get information that isn’t part of the Record Before the Agency to the Court.

Decided by Kasold, Hagel and Schoelen, Judges.

Attending Your C&P Examination

Attending Your C&P Examination

The case of Arnold C. Kyhn v. Eric K. Shinseki, Opinion Number 07-2349, decided January 15, 2010, affirmed a denial for service connection for tinnitus in large part because the veteran did not attend his Compensation and Pension examination.

While their were multiple related issues, the case largely centered on the veteran’s failure to attend the scheduled Compensation and Pension examination. This failure served as the primary justification for the Board to deny his request for service connection.

The veteran appealed saying that he had not received notice. The Court grappled with the presumption of regularity. This presumption says the file and any required notices are presumed to be handled appropriately and sent unless there is a showing by the veteran of clear evidence to the contrary.

As clear evidence to defeat the presumption of regularity, the veteran argued their was no written record of the letter sent to him by the VA notifying him of the examination, that the VA had not competed an Appeal Certification Worksheet, and that the VA adjudicated his claim wrongly believing he had not submitted any evidence in support of his claim when in fact he had submitted evidence.

The Court first addressed the lack of a letter in the file and accepted the VA’s explanation that the file is electronically generated by a computer system and a hard copy is not generally placed in the claims file. The Court determined that because the VA does not as a regular practice include the notice in the claims file, the absence of it is not clear evidence that it was not sent. As an aside in the decision, the Court noted that it found persuasive the fact that the Supplemental Statement of the Case raised the fact the veteran did not attend the examination but that he did not at that point raise the lack of notice argument.

Regarding the Appeal Certification Worksheet, the Court found one did exist for the case when the case was initially appealed to the Board. The case had been appealed to and remanded by the Board and the veteran essentially argued a second Appeal Certification Worksheet should have been created and kept with the file when the veteran appealed to the Board for a second time. This is essentially a very technical argument that was rejected on a very technical ground, that the M21-1MR did not require a second Appeal Certification Worksheet but specifically contemplated that any further decision by the Regional Office would be entered into a “Remarks” section of the initial Appeal Certification Worksheet.

Finally, regarding evidence in support of his claim, the Court distinguished between his hearing loss and tinnitus claim. The evidence submitted was read to apply to the hearing loss and not the tinnitus claim, thus meaning that the Board was not incorrect when it stated their was no evidence from the veteran regarding the tinnitus claim.

In a final argument, the veteran argued that the tinnitus was secondary to or aggravated by the existing service-connected hearing loss. The Court rejected this argument without reaching the merits because they determined the veteran was raising this issue for the first time in his brief to the Court and had not raised it to the Board. This seems like a shift from what could have been a decision to remand this issue alone for the Board’s consideration and suggests that as an appellate court, the Court might be beginning to shift more responsibility to develop the case onto the veteran.

From this case, the most practical lesson is that attending Compensation and Pension examinations is very important and any notice problem should be raised immediately. Additionally, on a larger scale, the Court’s treatment of the aggravation issue affirms that a veteran should develop his case as fully as possible before the Board as the Court might not use the remand to allow for such development.

Decided by Chief Judge Greene, and Moorman and Schoelen, Judges.

Section 1151 - Staph Infection: The VA cannot Hide Behind the Quality Assurance Program

Section 1151 – Staph Infection

Hiding behind the Quality Assurance Program

The case of Werner G. Hood v. Eric K. Shinseki, Opinion Number 07-2564, decided November 25, 2009, remanded a claim for compensation pursuant to 38 U.S.C. § 1151 which related residuals from a staph infection.

The veteran underwent bypass surgery at the VA Medical Center in Charleston, South Carolina and subsequently had to undergo another procedure to remove a staph infection near his surgical wound. The veteran reported that other bypass surgery patients also developed staph infection within days of his surgery and reported that he had been told that bacteria had been discovered in the ICU.

The veteran filed a claim for disabilities that began with the staph infection and the Regional Office denied the claim. The Board of Veteran Appeals remanded the case and required the VA under its duty to assist to attempt to determine if in fact hospital staff had reported to patients the presence of staphylococcus aureus. The Charleston VAMC refused to forward an existing report to the VA Appeals Management Center claiming statutes and regulations permit the release of a quality assurance review.

In lieu of the report, the VA sought an expert medical opinion that reported that it was impossible to know if the fact that multiple people developed a staph infection was a statistical aberration or a result of negligence.

Upon appeal, the veteran argued that (1) the Board erred by issuing a decision without the existing report conducted by the Charleston VAMC or (2) that the Court should make an in camera review of the report.

The Court rejected the possibility of an in camera review as its jurisdiction only includes that information that is part of the record before the Board of Veteran Appeals at the time of its decision.

Regarding the first issue, the Court determined that merely failing to obtain the report did not necessarily create a Stegall violation. The Court stated, “if the expert opinion that the Board relied upon in this case is sufficient to address the question of VA negligence, then the Board has substantially complied with its own remand order”. However, the Court determined the relied upon expert medical opinion was at best equivocal about negligence and as a result the case had to be remanded.

Then, recognizing the evidentiary development problems with the case, the Court went further and addressed the undisclosed report. The Court explained that Congress mandated a quality assurance program to monitor and evaluate VA health care. These documents might be confidential and privileged except for certain exceptions. The “might” be confidential distinction is based upon the fact that the facility director must in advance and in writing describe those quality assurance activities and the results thereof as privileged and confidential. Importantly, in this case, the veteran claimed that the undisclosed report was not described in advance and in writing as a part of the quality assurance program.

The Court seized on the apparent failure to label in advance and in writing the report a part of the quality assurance program to require upon remand that the BVA address this issue. The Court then also more fundamentally considered an exception to the privileged natured of any quality assurance work product which allowed its use within the VA. The Court noted that the BVA was a subset of the VA and, therefore, questioned why that alone did not justify the BVA looking at the report.

The result is that a veteran can now easily argue that the BVA cannot avoid looking at data resulting from a quality assurance program.

Decided by Chief Judge Greene, and Lance and Schoelen, Judges.

Duty to Assist

The case of Theodore J. Segars v. Eric K. Shinseki, Opinion Number 08-1449, decided November 20, 2009, considered the VA’s duty to assist by collecting records when the veteran could later find relevant records that the VA did not find and the Board did not consider.

In a far reaching ruling the Court considered whether a veteran’s brief may refer to documents that are not a part of the record in order to demonstrate that the VA did not fulfill its duty to assist. The case had an interesting procedural posture which was important to the outcome.

The veteran sought and was denied benefits for adenocarcinoma of the colon. The veteran filed an opposed motion to remand his appeal asserting that documents were found that showed the VA did not satisfy its duty to assist. Attached to the motion were those documents. The veteran argued the documents should have been included in the record prior to the Board decision and that the appeal should be remanded to the Board for readjudication with the documents. After a telephone conference involving the VA, veteran’s counsel, and a representative from the court, the motion to remand was withdrawn. Later, the veteran filed a brief which in part argued the VA did not fulfill its duty to assist by obtaining relevant records.

The documents in issue are two part. First, was a report from a pathologist that is referenced by a later statement given by the pathologist that was in the record. Second, the veteran noted that he was represented by another attorney on the date of the missing pathologist report in a matter related to the appealed claim and that the VA had a duty to contact the previous attorney to determine if any additional relevant records existed. Specifically, the veteran asserted that prior counsel had a deposition of a physician that would be relevant to the claim on appeal.

The Court limited itself to determining whether the veteran could include descriptions of the missing documents in its brief as part of his argument that the VA failed the duty to assist by not obtaining the documents. The Court had no problem allowing reference to the missing pathologist report but limited such references to information from the pathologist statement that was part of the record. However, the court refused any reference to the physician deposition on the grounds that the deposition was not referenced in any documents in the record.

The Court reasoned that while it was determining whether the VA satisfied its duty to assist, the content of the documents or even their existence is irrelevant to the question of whether the Secretary had a duty to assist in obtaining adequately identified relevant records. This harsh ruling was somewhat ameliorated by reference in a footnote that statute “clearly presumes that any document referred to in the record exists and places the burden on the Secretary to demonstrate otherwise.” Curiously, the Court goes on to say, “When the Secretary attempts to rebut the presumption, then the existence of documents not contained in the record may be relevant.”

This statement is curious because a central point of the Court’s decision is that its scope is limited by statute to “the record of proceedings before the Secretary and the Board”.

Additionally, the Court also worked hard to limit its need to make a far reaching decision by noting that the missing pathologist report was referenced by another report. In short, the Court determined that in this case they could simply use the references in the record to one of the “missing” pieces of evidence to consider whether the duty to assist was fulfilled. However, while doing so, the Court appears to have actually gone further and shut off any further reference to non-record materials in the future.

The case leaves questions and practical difficulties for veterans and attorneys who discover too late that the VA dropped the ball in searching for documents and records. If you can somehow relate the missing records back to something in the record, you have a chance, otherwise, the VA gets to make a mistake and enjoy the fruits of that mistake.

Perhaps one argument that could be advanced is to use the Court’s language. Perhaps the materials, records, or documents are before the “Secretary” and not the “Board”. If the materials were in the Secretary’s embrace (in a medical file somewhere in a VA hospital) would that mean that the Court could consider it when addressing whether the VA fulfilled its duty to assist? A question that will no doubt come one day.

Decided by Hagel, Lance, and Schoelen, Judges.

38 U.S.C. § 1151: Disability Resulting from VA Treatment

38 U.S.C. § 1151: Disability Resulting from VA Treatment

The case of Johnnie R. Mangham v. Eric K. Shinseki, Opinion Number 07-1338, decided November 16, 2009, denied a claim for compensation pursuant to 38 U.S.C. § 1151.

38 U.S.C. § 1151, provides for compensation for injuries or death caused by the VA when it is giving hospital care, medical or surgical treatment or similar instances of fault on the part of the VA in furnishing the hospital care, medical or surgical treatment, or examination … or an event not reasonably foreseeable.

Section 1151 typically comes into play when a veteran receiving medical care from the VA is harmed by that care. However, this case involves a much more dramatic set of facts. Mr. Mangham was being treated in the Temple Domiciliary for health “maintenance” prior to having a femoral surgery. While eating lunch at the cafeteria, another domiciliary resident opened fire on fellow residents and killed one. Mr. Mangham subsequently claimed mental distress after witnessing the shooting.

The Court rejected Mr. Mangham’s argument that the domicile care was a form of care covered by section 1151. Instead, the Court held that disabilities incurred merely coincidentally with VA treatment are not covered and instead the VA treatment must be the “actual cause” of the disability. They reasoned that the mental distress was coincidental to residing at a VA domiciliary and the injury was not caused by the actual provision of hospital care, medical or surgical treatment, or examination at the VA domiciliary.

The Court did recognize that prior to 1996 the claim would have been allowed because that version of section 1151 did not require a veteran to demonstrate that the alleged injury resulted from an overt act by the VA. The Court also recognized that Jackson v. Nicholson, 433 F.3d 822 (Fed. Cir. 2005), was factually almost identical and granted disability but explained that a 1996 Amendment to the law changed the result. It explained that “[i]n the 1996 amendments, Congress repudiated the notion that a coincidental event occurring during ‘hospitalization’ could lead to recovery under section 1151, purposefully replacing that word with ‘hospital care’.”

Therefore, this case is further articulation of the Court's earlier ruling that a veteran who is injured or dies while receiving VA treatment from a cause that is merely coincidental with the VA treatment will likely fail with a VA disability claim. Importantly, this ruling does not mean the veteran is without any recourse; instead, the veteran may still rely on the Federal Torts Claims Act.

Still, I would not be surprised to see this opinion appealed to the Court of Appeals for a more definite statement regarding the meaning of "hospital care" and what is coincidental to VA treatment as opposed to being a part of VA treatment.

Decided by Kasold, Moorman, and Lance, Judges.

Hearing Loss

The case of Edward E. Meedel v. Eric K. Shinseki, Opinion Number 08-1725, decided November 4, 2009, denied service-connection for bilateral hearing loss.

Hearing loss is determined by looking at 38 C.F.R. § 3.385, which provides:

For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent.

Meedel did not meet the first prong as his auditory threshold was not 40 decibels or greater in the prescribed frequencies. Additionally, the Maryland CNC speech recognition test was not at issue in this case. Instead, Meedel argued that he met the second requirement, that at least three of the prescribed frequencies were 26 decibels or greater. Unfortunately, he only met the 26 decibel in the 3000 and 4000 frequencies. However, he exceeded the threshold by having a 30 and 35 decibel reading on his Right ear and 30 and 30 decibel reading on his Left ear.

Meedel attempted to argue that he could average his ear ratings and meet the 26 decibel threshold, essentially using the excess decibels (worse hearing at some frequencies) to pull up the decibel level for the other two frequencies (where he could hear better).

Meedel sought to rely on 38 C.F.R. § 4.85, which does allow averaging when the VA is rating a disability. However, the Court drew a distinction between 3.385, which establishes the existence of a hearing disability and 4.485, which is used to assign the disability rating for the hearing loss. The Court concluded that averaging is not allowed when establishing the existence of a hearing disability because that is the best interpretation of the plain language of the regulation and the Secretary’s interpretation is reasonable.

Decided by Chief Judge Greene, Judge Lance and Judge Davis.