Cook: What Evidence is Considered by the Board

Cook v. McDonough, Case Number 20-6853, decided May 17, 2023 involves what evidence the Board should consider on appeal  Specifically, the case involved evidence submitted after an RO decision, but before the NOD was submitted. 

The veteran argued 38 USC 7113(c)(2)(A) plainly and unambiguously provides that the Board must consider all evidence associated with the VA claims file when the NOD is filed.  The Court noted the veteran is asking it to interpret the phrase “evidence submitted with the NOD” as including all evidence in the VA claims file when the NOD is filed.  The Court rejected such an interpretation.  Essentially it argued the plain meaning of the statute does not support such an interpretation.

The veteran also argued that the Board decision did not provide a general statement complying with Section 7104(d)(2).  Essentially, he argued he Board incorrectly stated that the evidence it did not consider was received after the 90th day following the NOD, and that the Board failed to inform the veteran that it did not consider evidence received before the NOD.

Next, the Court explained

“Congress understood that for the Board's reasons or bases to be adequate, the Board must "account for the evidence which it finds to be persuasive or unpersuasive" and its decision "must contain clear analysis and succinct but complete explanations." Id. at 57. Thus, to render an adequate statement of reasons or bases, the Board must consider evidence and explain its weighing of the probative value of evidence. By comparison, subsection 7104(d)(2)(A) requires something different: a general statement "reflecting whether evidence was not considered in making the decision because the evidence was

received at a time when not permitted under [38 U.S.C. § 7113]." 38 U.S.C. § 7104(d)(2)(A). Thus, to provide a general statement, the Board must consider whether any evidence in the record in the proceeding falls outside the "evidentiary record before the Board" under section 7113. Unlike subsection 7104(d)(1), no language in subsection 7104(d)(2) suggests that the Board must actually consider any evidence or explain the probative value of any evidence.”

Id. at *12-13.

It then explained:

“For a claimant to make an informed decision on whether and how to have VA consider any evidence not considered by the Board, the Board must accurately inform the claimant whether it did not consider evidence because it was received during a time not permitted by section 7113, and what options may be available for having VA consider that evidence. Congress obviously intended to require the Board to include, in its decision, a general statement that accurately informs the claimant of that information, because a general statement inaccurately informing the claimant of that information would render subsection 7104(d)(2) ineffective.”

Id. at *13-14.

As to this case, “[t]he parties do not dispute that the Board did not consider evidence submitted during the time period between the AOJ decision and the NOD, and Board erred because it provided, in its decision, a misleadingly inaccurate general statement informing Mr. Cook that it did not consider only evidence received after the 90 days following NOD.  We also conclude that the Board's error prejudiced Mr. Cook.”

Id. at *15.

Judge Jaquith wrote a concurrence outlining notice deficiencies in the entire process.  He wrote:

“Notice and a meaningful opportunity to respond are key requirements of due process and the fair process principles at the heart of our system. The notice the AOJ and the Board provided here was inadequate, first giving the veteran no reason to think that the early evidence he submitted in response to the AOJ's notice would not be considered unless it was resubmitted and then giving him an inaccurate and misleading general statement regarding the evidence the Board had not considered. VA's handling of this case did not measure up to the expectation of Congress.”

Id. at *21.

This decision illustrates the insanity of a system that allows the Board to ignore evidence because it was not submitted WITH the NOD and was instead submitted prior to the NOD.  This is a major failing of the new legislation that only injects more delay into a VA process already filled with delay.

Decision by Judge Pietsch and Laurer with concurrence by Judge Jaquith. 

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Wiker: Lack of Notice Means a Decision Remains Open

Wiker v. McDonough, Case Number 21-5454, decided May12, 2023 involves a VA denial where the notice did not state the claim was denied.

This was an appeal from an earlier effective date denial for left eye blindness.  The veteran argued the Board erred in finding the VA fulfilled its duty to notify the veteran of a 1965 decision denying service connection for cataracts and thus the decision was not final.  The Court held

“that VA failed to give Mr. Wiker proper notice because the January 1965 initial notice didn't tell him that VA denied service connection for cataracts. As for the actual knowledge exception, although we hold that it can apply in this context, we find that the evidence relied on by the Board fails to show that Mr. Wiker knew that he could appeal VA's October 1965 corrective notice or that he knew his deadline to file such an appeal. And as for the reasonable person exception, even if we assume that it could apply here, the differences between VA's initial notice and the corrective notice would not let a reasonable person know that the denial could be appealed or what the time limit was for doing so. Thus, we hold that Mr. Wiker's appeal never became final, reverse the Board's contrary determinations, and remand this claim for the Board to consider the correct effective date based on the 1964 claim.”

Id. at *2.

The veteran was discharged for bilateral cataracts and immediately sought service connection, which was denied because the RO found it was a congenital defect.  However, the VA never sent the decision to the veteran.

However, the VA did send a letter saying service connection was granted but rated noncompensable.  Several months later, the VA sent a letter saying the prior letter was error and service connection had been denied previously.  That letter stated nothing about appellate rights.

The Board admitted the first letter was confusing, but found it was cured by the second letter.  After a court remand, the Board again found the first letter was not sent to the veteran, but cured by either the second letter or the veteran’s actual knowledge of the denial and appellate rights.

The Court began by noting a claim remains open until finally adjudicated, but final adjudication requires proper notification of the decision.  Id. at *4.  Part of the notice required in 1965 was (1) the reason for the decision, (2) the claimant's right to appeal by filing an NOD, and (3) the time limit within which an NOD could be filed.  The Court found the first letter failed by not stating he had been denied service connection and why.  Id. at *6.

The Court considered whether the veteran had actual knowledge of the denial, but found the evidence did not show he had actual knowledge prior to the time to appeal elapsing. 

This is an interesting decision showing that it is not impossible to find apparently final decisions that in fact remain unadjudicated.

Decision by Judge Falvey and joined by Judges Allen and Jaquith. 

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Crews: Blue Water Act and Effective Dates

Crews v. McDonough, Case Number 21-0226, decided April 17, 2023 involves the impact of the Blue Water Act on an effective date.

The veteran sought service connection for ischemic heart disease in 2013 asserting the condition began in 1991 and was caused by Agent Orange.  The claim was initially denied.  In that denial, stated the evidence does not show an event, disease, or injury in service; service treatment records did not reflect complaints, treatment or diagnosis of the condition; and the condition did not develop to a compensable degree within he presumptive period of discharge.  The RO also stated there are some presumptive conditions including IHD, but denied because “the evidence does not show a diagnosis of a condition for which VA has found a positive association to herbicide exposure.” 

The veteran submitted a supplemental claim in 2019 and stated he served off the coast of Vietnam and went ashore.  Evidence developed showed he had undergone a coronary artery bypass graft in 1991.  As a result of this supplemental claim, the RO granted benefits.  However, the RO also explained that while service connection was granted due to a presumption, the veteran’s original claim was denied because of no evidence of a diagnosis and as a result an earlier effective date cannot be applied.

The veteran argued his 2013 claim had been denied "only due to the fact that Agent Orange exposure at that time was interpreted to mean 'on land/inland waterway exposure'" and arguing that his effective date should be retroactive to the date of that claim.  The RO effectively denied explaining:

“To allow entitlement to an earlier effective date based on a previously denied claim, the [Blue Water Act] requires that you were denied because a diagnosed presumptive disability was of record[ but] exposure to herbicide was not conceded. As you were denied because there was no evidence of a diagnosed presumptive disability, not because herbicide exposure was[ not] conceded, entitlement to an earlier effective date prior to September 5, 2018[,] is denied.”  Id. at *3.

The Board also denied and in part explained (1) the prior denial was premised on a lack of a diagnosis and (2) the denial was premised on a prior more restrictive definition of service in Vietnam; and (3) private treatment records showing CAD were not associated with the claims file in 2013.

Before the Court, the veteran argued “in determining that the retroactive effective date provision in the Blue Water Act did not apply, the Board overlooked that the RO in July 2014 denied his claim "for multiple reasons, and not only because of a lack of a current disability.”  Id. at *8.   The veteran next argued the plain language of the Blue Water Act makes clear that for the effective date exception to apply the only requirement for the prior denial is the claim was denied by reason of the claim not establishing the disease was incurred in or aggravated by the service of the veteran. 

The Court noted the denial of a retroactive effective date was premised on its conclusion that the prior claim was denied "on the basis that the evidence of record did not show that he had a current disability" and, secondarily, on its determination that the prior denial was not based on a more restrictive definition of service in Vietnam.”  Id. at *14. 

The Court began it analysis by noting “the Blue Water Act permits the effective date for an award of benefits under that Act to be based on "the date on which [an] individual filed [a] prior claim" if, as pertinent here, the individual "is a veteran . . . who meets the following criteria": (i) The veteran . . . submitted a claim for disability compensation on or after September 25, 1985, and before January 1, 2020, for a disease covered by this section, and the claim was denied by reason of the claim not establishing that the disease was incurred or aggravated by the service of the veteran.  (ii) The veteran . . . submits a claim for disability compensation on or after January 1, 2020, for the same condition covered by the prior claim under clause (i), and the claim is approved pursuant to this section.

Id. at *16-17.

The Court then noted based on the language of the Act, “after identifying when the prior claim was filed, the singular focus is the condition for which the claimant sought benefits.  Importantly, for purposes of the arguments before the Court, nothing in subsection 1116A(c)(2)(B)(i) mandates that the prior claim for benefits must have been based on a particular theory, such as direct or presumptive service connection, nor does it require that the veteran have alleged herbicide exposure in the prior claim.”

Id. at *18.

The Court then analyzed the statute’s phrase “by reason of” and stated: “In sum, the best reading of "by reason of" is that it does not signal the only cause for the prior denial. Taking all this into account, the language thus far indicates that the veteran must have previously sought benefits for a condition that is now considered presumptively related to herbicide exposure, and VA must have denied the claim, at a minimum, because the claimant did "not establish[]" that "the disease was incurred or aggravated by . . . service.””  Id. at *21-22.

The Court also noted as to the prior denial “More importantly, as explained above, section 1116A does not require the veteran to have previously sought presumptive service connection or even to have alleged herbicide exposure; rather, the only requirement is that the veteran sought benefits for a condition that is now considered presumptively related to herbicide exposure.”  Id. at *23.  It further explained “although subsection (B)(i) identifies at least one required reason for the prior denial, it does not identify the sole cause and thus leaves open the possibility that other grounds were present. In sum, the specific criteria that Congress enumerated for a retroactive effective date simply do not include a prohibition on the prior denial having been based in part on the lack of evidence of a current disability.”  Id. at *24.

To summarize all, the Court stated: “Based on the foregoing, the Court concludes that the plain language of the Blue Water Act reflects that Congress established five exclusive criteria for a veteran to receive a retroactive effective date for an award of benefits under that Act. As pertinent here, the veteran must have previously filed a claim for a condition that is now considered presumptively related to herbicide exposure, and VA must have denied that claim, at a minimum, because the appellant did not establish that the claimed disease was "incurred or aggravated by . . . service." However, those criteria do not prohibit a retroactive effective date when the prior denial was based in part on the lack of evidence of a current disability, and they do not include a requirement that the denial was predicated on the pre-Procopio understanding of service in the Republic of Vietnam.”

Id. at *25. 

The Court ended up remanding to the Board for a new decision in light of the case. 

This is an impactful case that potentially helps many Blue Water Vietnam Veteran’s get an earlier effective where they had previously be denied for a now presumptive condition.

The case did a dissent by Judge Falvey where he argued Congress did not allow an earlier effective date in case like this because he read the term “by reason of the claim not establishing that the disease was incurred or aggravated by the service of the veteran” as narrowly limiting the exception to exclude those veterans who were denied at least in part because they did not have a disability.  Interestingly, Judge Jaquith so disliked Judge Falvey’s dissent and the way the Board had framed the case that he took the time to write a powerful concurrence.

Decision by Judge Meredith.  Concurrence by Judge Jaquith.  Dissent by Judge Falvey. 

While the VA does not as a matter of course appeal decisions to the Federal Circuit, I would anticipate an appeal in this case.

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Hairston: Non-Service Connected Pension and a Spouse’s Income

Hairston v. McDonough, Case Number 20-4692, decided April 20, 2023 involves whether the VA can consider a spouse’s income when calculating income for the purposes of a Non-Service Connected Pension.  The Court answered yes.

The veteran argued the spouse’s income should not be counted toward the veteran annual income for purposes of a non-service connected pension and focused on the authorizing statute.  The veteran argued (1) the Board misunderstood or misapplied § 3.23(b) by including his wife's income in its calculation of his countable income; (2) § 3.23(d)(4), which defines a veteran's annual income, is invalid because it does not comport with its authorizing statute, 38 U.S.C. § 1521, and (3) §§ 3.274 and 3.275, which impose a net worth limit on pension eligibility, superseded § 3.23's pension rate reduction scheme such that both the net worth and income limits cannot be applied to a single veteran.

The Court found “38 U.S.C. § 1521(c) clearly requires that the payable pension rate be reduced by a spouse's income because it is countable as part of a veteran's annual income. Because § 3.23(d)(4) simply makes this clear statutory mandate pellucid, it is a valid regulation and fully applicable to Mr. Hairston's pension claim.”  Id. at *7.  The Court also found §§ 3.23, 3.274, and 3.275 operate together to implement the pension program Congress established, and the Board didn't err in applying the relevant aspects of those rules here.”  Id. at *9. 

Decision by Judge Toth and joined in by Judges Pietsch and Meredith.

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Hatfield: Informed Consent and CUE

Hatfield v. McDonough, Case Number 21-5125, decided March 28, 2023 involves a claim for an earlier effective date based on CUE in a prior Board hearing.

This is a continuation of a precedential decision where in “Hatfield I, we held that the reasonable person exception to informed consent–which allows defects in informed consent that are minor and immaterial if a reasonable person in similar circumstances would have proceeded with treatment even if informed of a foreseeable risk–does not apply when no consent is obtained at all.”  Id. at *1.

After the decision, the veteran argued for CUE in a prior Board denial and that the result should be an earlier effective date.  The Court decided:

In a nutshell, the language of the statute then–as today–does not contain any reference to informed consent, and the legislative history of the statute reinforces the conclusion that the failure to obtain a patient's informed consent did not support compensation under the provision. Moreover, the regulation implementing section 351 underscores the point that a lack of informed consent did not undebatably provide a basis for compensation. Indeed, the concept of informed consent forming a basis upon which compensation was warranted does not appear in relevant regulations until the mid-1990s. Finally, we are not persuaded by appellant's argument that the common law of medical malpractice supports a finding that the only reasonable interpretation of section 351 in 1980 was that the statute provided for an award of compensation where VA did not obtain a patient's informed consent. The bottom line is that appellant fails to show that the Board's June 2021 decision finding no CUE in the October 1980 Board decision was arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. Therefore, we will affirm.”

Id. at 2-3.

The Court further explained:

“In sum, and leaving aside for the moment VA's implementing regulations, to which we will turn next, appellant's CUE allegations fail to establish that the only reasonable interpretation of section 351 in 1980 included a failure to obtain a patient's informed consent before treatment or other care as a ground for the award of compensation. It certainly is not undebatable that informed consent was a ground for section 351 compensation under the law in effect at the time of the 1980 Board decision as is required to establish CUE.96 And the 2021 Board's conclusion that appellant's allegation of error did not constitute CUE is not arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.”

Id. at 18.

The Court summarized by stating:

“Section 351 in 1980 did not contain any reference to informed consent, nor did it

incorporate the informed-consent provisions found at section 4131 and § 17.34. Appellant fails to point to any authority indicating that a failure to obtain a patient's informed consent supported an award of compensation under section 351 in October 1980. She points to nothing to show that it is undebatable that a failure to obtain informed consent was a basis upon which the October 1980 Board could award compensation under section 351. Therefore, the Board decision on appeal finding no CUE in the October 1980 decision was not arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.”

Id. at page 23-24.

Decision by Judge Allen and joined in by Judges Meredith and Falvey.

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Edwards: How the AMA Complicated Board Hearings

Edwards v. McDonough, Case Number 20-7244, decided March 20, 2023 involved a NOD where the veteran elected direct review, but attached evidence to the form.  The Court determined the Board should have clarified which review docket the veteran intended to choose and thus the Court set aside the decision and required readjudication.

The veteran submitted a NOD marked direct review, but submitted a statement with the NOD detailing the auto accident which led to his neck injury.  The Board issued a decision stating it was limiting its review to the evidence considered by the RO, but also included the veteran’s statement in the list of evidence it considered.

The veteran argued the NOD and statements liberally read together created a reasonable uncertainty as to what Board review option he intended to elect, which required the Board to ask to clarify pursuant to 38 CFR Section 20.202(f).  The Secretary argued the NOD was clear on its face.

The Court agreed:

“with Mr. Edwards that, when read together, his VA Form 10182 docket election and its attached statement were unclear—if not wholly contradictory—concerning the docket choice that Mr. Edwards intended, and the Board was required to clarify his intent. Mr.

Edwards elected the direct review docket, with the printed restriction that the veteran  agrees that he "will not submit any additional evidence in support of [his] appeal." Simultaneously, Mr. Edwards attached a statement to his form that provided new  information regarding the circumstances of his in-service accident, his symptoms, and the medical care he sought and received to treat those symptoms. Despite the Secretary's protestations to the contrary, it is simply not possible to reconcile Mr. Edwards's submission of this new evidence with his chosen election. Indeed, it is perfectly clear to the Court that Mr. Edwards's scenario gave rise to the exact type of confusion or uncertainty suggested in the regulation's title.”

Id. at *7.

It further explained:

“To be clear, we do not speculate as to whether other scenarios might implicate § 20.202(f) and VA's obligation to clarify a claimant's NOD docket election. Accordingly, we do not address the situation where the veteran submits additional statements or evidence after submitting the VA Form 10182, a scenario referenced by the Secretary at oral argument. We need not address these questions because here Mr. Edwards's VA Form 10182 and attached statement were part of the same submission and were explicitly intended to be contemplated together, and his attached statement created uncertainty as to which Board review docket he intended to elect. We conclude only that the § 20.202(f) duty to clarify the veteran's intent attached in this case because the VA Form 10182 submission as a whole, consisting of the form itself and the attached statement, raised uncertainty that the Board did not acknowledge or attempt to resolve consistent with VA

regulation.”

Id. at *9.

            The Secretary argued that any error was harmless.  The Court rejected such argument saying

“Contrary to the Secretary's argument that Mr. Edwards received the benefit of the evidence submission lane, it is clear that the Board failed to account for Mr. Edwards's new evidence in its analysis, including his statement that he sought neck and back treatment with a chiropractor and that he had seen the chiropractor "over 100 times throughout the years."  

 

Although the Board is presumed to have considered all evidence of record when making its decision, Newhouse v. Nicholson, 497 F.3d 1298, 1302 (Fed. Cir. 2007), that presumption does not relieve the Board of its independent obligation to address potentially favorable, material evidence of record and to provide reasons or bases for its weighing of that evidence , Caluza v. Brown, 7 Vet.App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). Because Mr. Edwards's statement attached to his VA Form 10182 provided, among other things, additional detailregarding treatment sought for his neck disability and potential continuity of symptoms since service, it was potentially favorable, material evidence that the Board was required to address.”

Id. at *11.

This case serves to show the complicated nature of the AMA and demonstrates a commitment by the Veteran’s Court to look at it through the prism of assisting the veteran.

Decision by Chief Judge Bartley and joined in by Judges Toth and Laurer.

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Spicer: Secondary Service Connection Explained Broadly

Spicer v. McDonough, Case Number 2022-1239, was decided March 8, 2023 and involves a claim for service connection for a leg disability secondary to service connected leukemia.    

The veteran sought service connection for a leg disability, weakness and instability in his knees due to arthritis.  The theory was that his service connected leukemia did not actually cause or aggravate his knee arthritis, but treatment for his leukemia prevent him from undergoing surgery for his knees.  The veteran specifically noted a 2014 knee replacement surgery had been cancelled because chemotherapy for his leukemia had depressed his red blood cell level and it was unlikely his count would ever increase enough to allow the surgery.

The VA and Veterans Court denied service connection, with the Veterans Court concluding:

“Mr. Spicer's knee arthritis did not, in any reasonable sense of the phrase, "result from" his service-connected cancer or the chemotherapy provided to treat it. There is no contention on appeal that they caused the arthritis or that they made it worse. The current state of his knee functionality is not a consequence or effect of these service-related agents. At most, they interfered with his attempts through affirmative intervention to alter the arthritis's natural progress. Unless we can say that the current state of his arthritis would not exist in the absence of his cancer or chemotherapy, however, there is no actual but-for causation. And but-for causation is what Congress required in section 1110.”

Judge Allen at the Veterans Court dissented arguing:

“In my view, however, the statute sets out a much broader, causation-based standard. And because that is so, I also believe that VA's regulation implementing section 1110, 38 C.F.R. § 3.310(b), improperly limits that language in a way Congress did not intend. Therefore, I would hold that the regulation is not a permissible construction of section 1110.”

He further explained:

“the phrase "resulting from" in section 1110 provides for compensation when a disability is the consequence or effect of military service. Stated another way, the statute's language merely requires that one thing flow from another, namely that a disability flow from military service. Congress imposed no other limitations in connection with establishing service connection beyond this broad, causation-based principle that one thing be a consequence of another.”

The Federal Circuit heard the case and agreed with Judge Allen’s dissent, explaining:

“The dispute is thus narrow: Whether the but-for causation requirement in § 1110 is limited, as the government contends, to bringing something about or the onset or etiological link, or whether, as Mr. Spicer contends, that language may encompass situations where the service connected disease or injury impedes treatment of a disability. For the reasons below, we adopt the latter view.”

Id. at *6.

The Court noted its analysis begins and ends with Section 1110 and noted Congress could have drafted a more narrow causation standard as it had done in another statute.  The Court explained:

“Put together, § 1110 plainly requires compensation when a service-connected disease or injury is a but-for cause of a present-day disability. This broad language applies to the natural progression of a condition not caused by a service-connected injury or disease, but that nonetheless would have been less severe were it not for the serviceconnected disability. Stated another way, § 1110 provides for compensation for a worsening of functionality—whether through an inability to treat or a more direct, etiological cause. Nothing in the statute limits § 1110 to onset or etiological causes of a worsening in functionality.”

Id. at *8.

When I wrote my initial summary on this case two years ago, I wrote: “This is an important case that effectively tested the limits of secondary service connection and found it at what I believe is too narrow a limit.  Judge Allen’s dissent is powerful. I would expect an appeal to the Federal Circuit and a possible reversal.”  It would appear that Judge Allen and I were correct.

Decision by Judge Stoll and joined by Judges Taranto and Chen.

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