Cook: Right to a Board Hearing After Remand from the Court and an Attack on Deference

Cook v. Snyder, Case Number 15-0873, decided January 31, 2017 answers whether a veteran has the right to another Board hearing after remand of his claim from the CAVC. In a tour de force opinion by Judge Bartley, in which the Court conducts an exhaustive analysis of statutory and regulatory interpretation, the Court ultimately finds the veteran does have a right to another post-remand Board hearing.

The veteran here received a remand from the Court and asked for a hearing from the Board specifically stating he wished the opportunity to address certain points through his testimony.  The Board noted he had previously had a hearing (actually two) and denied the request and the claim. 

Before the Court, the veteran argued the denial of his request for a hearing was in error.  The case dealt with 38 USC 7107(b).  The Court determined that both the veteran and the Secretary’s interpretations of 7107(b) were grammatically plausible and thus the “statute’s language is simply not clear on this point.”  Id. at *9.  The Court noted “Because Congress has not directly addressed the precise issue at question, the next step in the Court’s analysis would be to determine whether the VA’s implementing regulation permissibly construes the statute and, if so, defer to that construction.”  Id. at *10.  The Court concludes Chevron deference is not owed in this case for two reasons.  First, no VA regulation resolves the statutory ambiguity—

Here, the regulations cited by the Secretary all contain the same basic ambiguous language that, although not phrased identically to the statute, do nothing to clarify the ambiguity … as to whether a VA claimant who has had a personal hearing before the Board on an appeal is entitled upon request to another Board hearing following a Court remand.  Therefore, the Court is under no obligation to accord deference to the Secretary’s interpretation under Chevron step two.

Id. at *10-11.  Secondly, the Court noted that the VA regulation preexisted the statute and that because Chevron deference is appropriate only where Congress has delegated authority to the agency to make rules carrying the force of law.  The Court determined the VA has not actually used that delegated authority but simply relies on a regulation predating the statute, which could not have possible been promulgated to interpret the statute.  Id. at *11.

The Court then noted where Chevron deference is inapplicable, the Court proceeds under the Skidmore rules of interpretation which look to guidance from the agency but also weigh whether such guidance is thorough, examines the reasoning, is consistent with earlier practice, and whether it is generally persuasive.  The point is that Skidmore analysis is much less deferential to the agency than Chevron.

The Court then relied heavily on the pro-veteran nature of the VA adjudicatory process as well as the fact the nature of a claim may change through the process to determine barring a post-remand personal hearing “would be neither solicitous of a claimant not productive of informed Board decisionmaking.”  The Court also pulled out the Brown v. Gardner trump card, which states any doubt in the interpretation of a VA statutes or regulations must be resolved in favor of a veteran.

Finally, the Court noted the Board was concerned the need for more hearings would inundate an already overwhelmed Board, but noted “these concerns do not authorize the Court to ignore the intent of Congress … and the solicitous and pro-claimant principles informing veterans benefits law.”  Id. at *19.

I would expect the VA to follow this opinion by seeking to change the regulations to prevent the right to a post-remand hearing.  Frankly this decision is important for at least temporarily protecting the right to a post-remand hearing, but more importantly for furthering a deep analysis to statutory and regulatory interpretation to VA law.  For too long, the VA has gotten by relying on Chevron deference, but this decision shows the veteran’s bar has become more forceful in arguing against Chevron deference and the Court is responding.

Decision by Judge Bartley, joined by Judge Pietsch and Senior Judge Hagel.

Vilfranc: TMJ, Diagnostic Code 9905 and Section 4.59

Vilfranco v. McDonald, Case Number 15-0904, decided January 5, 2017 involves a claim for a higher rating for TMJ.

The veteran was service connected and rated 10% for TMJ.  The veteran argued she deserved a 10% rating for both sides of her jaw.  Her argument took two approaches.  First, she argued 38 CFR Section 4.59, which recognizes painful motion as productive of disability and at least a minimum rating, allows two ratings because it operates to require the VA to assign a minimum rating for each joint.  The Court noted, however, that Section “4.59 is meant to compensate a claimant whose pain does not cause enough limitation of motion in a joint o reach a compensable level” and that “it is not applicable where, as here, the claimant already has a compensable level of limitation of motion.”  Id. at *6.

Second, she argued that under DC 9905 she deserves a separate rating for each joint.  The Court decided DC 9905 is ambiguous as it “does not answer the question posed by Ms. Vilfranc, which is whether dysfunction in both temporomandibular joints constitutes separate disabilities, such that separate disability ratings must be assigned.”  Id. at *8.  However, the Court also found the VA’s position was entitled to deference as it not plainly erroneous or inconsistent with the language of the regulation.  The Court accepted the VA’s argument that the TMJ operates as a single unit and noted that the inter-incisal range is measured once in the center of the mouth.  The Court noted the VA has not appeared to previously interpret DC 9905 in published documents and that the interpretation appears to first be raised in his brief, but that did not dissuade the Court from its finding.

A concurring opinion by Judge Greenberg agrees with the result but argues the case did not necessitate a panel opinion.  The argument appears to be that the issue was realitvely simple, a single judge would have more quickly made a decision, and “[a] timely appeal to the Federal Circuit is the preferred course of review of a single Judge disposition which I believe Congress envisioned.”  Id. at *11.

I think ultimately this case involved regulatory interpretations and reiterated that the Courts are going to largely defer to the VA’s interpretation unless this is some factor to suggest the proferred interpretation is not truly the VA’s interpretation.  See generally Hudgens v McDonald, 823 F.3d 630 (Fed. Cir. 2016).  I am most troubled by Judge Greenberg’s apparent preference for single Judge opinions.  While this case would clearly be one that could be reviewed by the Federal Circuit, the Federal Circuit has internal rules strictly limiting the types of VA cases it will hear.  Judge Greenberg’s apparent dislike of single Judge opinions, could leave veteran’s with no meaningful avenue of appeal.

Decision by Senior Judge Hagel joined by Judge Lance, concurrence by Judge Greenberg.

Southall-Norman: Painful Motion Applied, Lay Statement Credibility and Inadequate Reasons or Bases

Southall-Norman v. McDonald, Opinion Number 15-1657, decided December 15, 2016 involves a dispute over the proper effective date for a foot disability and service connection for impairment of sphincter control.

After a long fight, the VA finally granted the veteran 50% for flat feet with an effective date the date of the most recent compensation and pension examination.  The veteran sought an initial compensable evaluation for her bilateral foot disability prior to the date of the examination based on 38 CFR 4.59.

Section 4.59 is entitled “Painful motion” precedes the more specific musculoskeletal Diagnostic Codes and states

With any form of arthritis, painful motion is an important factor of disability, the facial expression, wincing, etc., on pressure or manipulation, should be carefully noted and definitely related to affected joints. Muscle spasm will greatly assist the identification. Sciatic neuritis is not uncommonly caused by arthritis of the spine. The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. Crepitation either in the soft tissues such as the tendons or ligaments, or crepitation within the joint structures should be noted carefully as points of contact which are diseased. Flexion elicits such manifestations. The joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint.

The Secretary argued 4.59 only applies to joint disability where the DC predicates a range of motion measurement.  The Court accepted the veteran’s argument and noted the “Plain language … indicates that the regulation is not limited to the evaluation of musculoskeletal disabilities under DCs predicated on range of motion measurements.”  The Court stated

In other words, Section 4.59 does not, as the Secretary contends, condition the award of a minimum compensable evaluation for a musculoskeletal disability on the presence of a range of motion measurements in that DC; rather, it conditions that award on evidence of an actually painful, unstable, or malaligned joint or periarticular region and the presence of a compensable evaluation in the applicable DC.  Thus, the plain language of Section 4.59 indicates that it is potentially applicable to the evaluation of musculoskeletal disabilities involving joint or periarticular pathology that are painful, whether or not evaluated under a DC predicated on range of motion measurements.

The Court noted that even if Section 4.59 were ambiguous it would rule the same and would not defer to the agency’s proffered interpretation because it does not reflect the agency’s considered view on the matter and pointed to oral argument admissions as well as two nonprecedential decisions were the Secretary conceded the Board provided inadequate reasons or bases for not discussing 4.59 in this context. 

The Court then stated since Section 4.59 is applicable, the Board had to address it in deciding whether the veteran was entitled to an initial compensable evaluation and its failure to do so renders inadequate its reasons or bases and specifically noted evidence as to painful motion.

Regarding sphincter impairment, the issue was fecal leakage.  The veteran argued the Board provided inadequate reasons or bases for its decision that she was not entitled to a separate compensable rating for impairment of sphincter control because it found her board testimony regarding fecal leakage inconsistent with her prior statements.  Specifically, the Board relied on a July 2007 VA examination where she said she had fecal leakage but did not need to wear absorbent pads and her statement in October 2013 that 5-6 years ago she began to experience fecal leakage.  The VA countered the Board made a proper credibility based on numerous inconsistencies in her statements.

The Court agreed with the veteran.  It noted one of the alleged inconsistencies was the October 2013 and July 2007 statements, but then noted that this was not actually an inconstancy because 5-6 years prior to October 2013 is after July 2007.  The Court stated the Board’s reasons or bases for impugning her credibility on that basis are inadequate.  The Court also noted the Board failed to account for potentially favorable medical evidence in the record.  It also noted despite the 2011 examination finding of no impaired sphincter control, “the record is replete with other evidence suggesting such impairment, which the Board improperly discounted.”

The result was a remand on both issues.  This opinion is really a tour de force in explaining that Section 4.59 is not predicated on range of motion measurements and also a text book opinion for eviscerating the Board’s decision and failure to make adequate reasons or bases on multiple issues.  It also, once again, shows the lengths the VA will go to argue a losing interpretation of a regulation—they seem to think the ability to interpret an regulation also includes the ability to ignore its plain language.  It is good to see the Court digging into the VA’s flawed interpretations.

Written by Judge Bartley Davis and joined in by Judges Schoelen and Greenberg.

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.