Heller: Advancing on the Docket Before the Board, Suicidal Ideation, and a Writ of Mandamus

Heller v. McDonough, Case Number 24-3504, decided November 21, 2024 concerns a request for a writ of mandamus to compel the Board to grant a motion to advance on the docket.

A case before the Board can take approximately 3 years for a decision.  However, a veteran can seek to be advanced on the docket if an appellant is seriously ill or is under severe financial hardship.  In this case, the veteran sought to have his case advanced on the docket arguing his suicidal ideation constituted serious illness.  The Board denied the request.

As a result, his attorney filed a writ of mandamus to the Court. Initially, the Court determined a denial of a motion to advance on the docket is a not an appealable issue.  However, a writ of mandamus operates as a vehicle to request the Court to compel the VA to do something.  Specifically,

“with the All Writs Act (AWA), Congress also empowered courts (including this Court) to issue writs in aid of their statutory jurisdiction. See 28 U.S.C. § 1651(a). In exercising this authority, we must be mindful that it is not a separate source of jurisdiction. Instead, we can use it to fill gaps in our appellate jurisdiction when, absent a writ, our prospective jurisdiction would be frustrated. See Love v. McDonough, 35 Vet.App. 336, 342 (2022) (per curiam order), aff'd, 100 F.4th 1388 (Fed. Cir. 2024); see also Roche v. Evaporated Milk Ass'n, 319 U.S. 21, 26 (1943) (noting that the "function of mandamus in aid of appellate jurisdiction is to remove obstacles to appeal"). What this means is that we can't use the AWA to independently decide legal disputes that don't facilitate a Board decision. See Love, 35 Vet.App. at 342. But we can use our AWA authority to remedy unreasonable delay.”

Id. at *6.

The Court then noted:

“Before we may issue a writ, we need to make sure three conditions are met: (1) a petitioner must show a lack of adequate alternative means to obtain the desired relief, thus ensuring that the writ is not used to replace the appeals process; (2) a petitioner must show a clear and indisputable right to the writ; and (3) the Court must be convinced, given the circumstances, that issuing the writ is warranted. See Cheney v. U.S. Dist. Ct., 542 U.S. 367, 380-81 (2004). And in the delay Case: 24-3504 Page: 6 of 12 Filed: 11/21/2024 7 context, our consideration is also informed by the six "TRAC factors." Martin, 891 F.3d at 1344 (citing Telecomms. Rsch. & Action Ctr. v. FCC (TRAC), 750 F.2d 70, 79 (D.C. Cir. 1984)).”

Id. at *6-7.

The Court then assessed the TRAC factors and determined:

“Troubled by suicidal ideation and financial difficulties, Mr. Heller asked the Board four times to advance his case on the docket; Congress said the Board could do so when a veteran has a serious illness or financial hardship. Each time, he was met with conclusory denials. With no likelihood of success at the Board, and an AOD appeal off the table, we find that Mr. Heller has shown he lacks adequate alternate means to have his case decided more quickly. See Cheney, 542 U.S. at 380-81. And because Mr. Heller has multiple records showing severe suicidal ideation, at times with a plan or an intent and an assessment of moderate to high risk of suicide, in addition to unemployment and a long period with no VA action on his appeal, we conclude that the TRAC factors clearly favor Mr. Heller and that he has shown a clear and indisputable right to a writ. See id. Finally, although mandamus is a drastic remedy, the Court is convinced that issuing a writ is warranted here. Thus, the Court will grant Mr. Heller's petition and order the Board to issue a decision within 30 days of the date of this order.”

 

Id. at *11.

This is an important case for two reasons.  First, it clarifies that a denial of a motion to advance on the docket is not an appealable issues.  Second, it offers a pathway to remedy such denial.  However, I suspect the Court will be loath to expand the impact of this case and issue more writs.  In short, this was an exceptional case driven by significant facts.  My only hope is that the Board is now more cognizant of the potential of suicidal ideation constituting serious illness.

Per Curiam decision by Judges Meredith, Toth, and Falvey.

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Spigner: New Evidence Time Lines in Appeals to the Board

Spigner v. McDonough, Case Number 22-2636, decided November 7, 2024 concerns a particular rule stating the Board cannot consider new evidence submitted prior to the hearing.

The AMA adding layers of complication to an already complicated system.  The oddest one might be that when a veteran appeals to the Board and requests a hearing, the Board will only consider new evidence submitted at the hearing or within 90 days after the hearing.  This is odd because many times a veteran will submit a memorandum with their notice of disagreement or before the hearing.  Any new evidence submitted at that time cannot be considered by the Board.  However, if that new evidence is submitted within 90 days of the hearing, the Board can consider it.

In this case, new evidence was submitted but the Board did not consider it because it was not submitted within the 90 days after the hearing.  The odd thing about this case was that the Board had rescheduled a hearing on its own accord.  The new evidence was submitted after and within 90 days of the originally scheduled hearing. 

The Court remanded the case arguing under this odd set of facts the Board erred in not considering the new evidence.  “The Court holds that because the Board sua sponte rescheduled the August 2021 hearing, that is, the Board rescheduled the hearing without a request from the appellant, and because the Board's rescheduling is not consistent with withdrawal referred to in 38 C.F.R. § 20.704(d), the rescheduling here was not "subject to" § 20.704(d). Therefore, § 20.302(c) controls as to the evidentiary record before the Board; and because § 20.302(c) provides that where a hearing "is not rescheduled subject to § 20.704(d)," the Board decision should have been based on evidence submitted by the appellant or his or her representative within 90 days following the date of the scheduled hearing. The Court concludes that in the Board's March 2022 decision, the Board erred by refusing to consider the appellant's September 2021 evidentiary submission. Accordingly, the Court will set aside that Board decision and remand the matters for proceedings consistent with this decision.”

This is an odd case on an unusual set of facts.  While illustrating a particularity of the law, I am not sure that it has much other import.

Decision by Judge Greenberg and jointed by Judges Bartley and Jaquith.

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Shorette: The VA's Stinking Fiduciary Process

Shorette v. McDonough, Case Number 23-7775, decided September 20, 2024 delves into the abuses of the VA Fiduciary Program.

The petitioner was the spouse of a veteran who had served as her husband’s VA fiduciary and was removed by the VA.  From 2008 until 2018 she had served and allocated approximately $3,000 per month toward family expenses for the veteran’s dependents.  However, she was removed after a medical record suggested she was misusing the veteran’s funds.  When a successor fiduciary was appointed, no benefits were allocated for his dependents and family expenses.

Three years later, in 2021, the VA determined their had been no misuse of funds and did not restore the wife as the fiduciary and ignored her appeal, as guardian under state court order, of VA’s appointment of a paid fiduciary.  Finally, the VA’s inaction resulted in a request that the Court order the VA to o (1) issue a decision regarding her entitlement to be reinstated as representative payee for Mr. Shorette, (2) address her complaints that his then-current fiduciary was violating a July 2010 fiduciary agreement in which VA approved monthly expenses to support the veteran's family, and (3) release the withheld funds.  Id. at *1.

After an oral argument, the Court ordered the VA to process the NOD.  Additionally, the petitioner tried to resolve the familial expenses issue with the VA.  Finally, in December 2023, the petitioner filed another petition because the VA ignored her requires for the VA’s fiduciary file, still had not process her 2018 NOD, and had not address the familial expenses issue.  As to the familial expenses issue, the VA argued that the paid fiduciary had all control. 

Next, the VA found the surviving spouse and veteran were estranged because they did not live together and thus could not be treated as a spouse fiduciary, which is less cumbersome.  In fact, they did not live together because the veteran was a nursing home.

At the same time the VA in response to one argument stated “the fiduciary must provide evidence that reimbursement is warranted before VA will authorize a reimbursement of funds.”

The Court then noted that at oral argument

“VA admittedly erred in 2018 when it determined that Mrs. Shorette misused the veteran's funds, and the undisputed facts reflect that VA compounded that error over the next 6 years by ignoring Mrs. Shorette's complaints and failing to ensure that the prior paid fiduciary was fulfilling his duties to assess the welfare and overall financial situation of the veteran's dependents. In that regard, counsel for the Secretary could not offer any reason why the fiduciary budget for familial expenses was reduced from roughly $3,200 per month to zero, other than an unfounded allegation that the petitioner refused to comply with a field examination, and counsel was unable or unwilling to say that VA will not investigate Mrs. Shorette if she reimbursed herself with those funds that would not have accumulated in the veteran's managed account but for VA's or the prior fiduciary's errors.”

Id. at *7.

The Court ordered the Secretary to file a memorandum explaining why the VA will not make a preemptive decision that it will not initiate a misuse determination or seek to remove the spouse as fiduciary if she reimburses herself the amount of familial expenses that was in the initial budget but was never paid.

While the entire VA claims process can be byzantine, the VA’s fiduciary program makes the rest of the VA look like quick and accurate justice.  The fiduciary program is simply the worst process I’ve ever heard of at the VA.  It should reiterate that any veteran who can, should avoid it if possible.  I am frankly shocked that the Veteran’s Court did not go further in its order and direct more forceful action.

Per Curiam decision by Chief Judge Bartley, Meredith and Laurer.

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Cooper: Appealing a Board Remand?

Cooper v. McDonough, Case Number 23-5963, decided September 18, 2024 is an opinion by the Court affirming prior case law stating a Board remand cannot be appealed to the Court.

The veteran’s claims were first remanded by the Court and then the Board so that the agency of original jurisdiction could obtain an addendum opinion from a medical provider. 

While case law made clear that typically remands could not be appealed, the veteran argued that the passage of the AMA dramatically changed the legal landscape and allowed for remands to be appealed. He essentially argued because under the AMA system RO decisions that were the result of a Board remand are not automatically returned to the Board, the Board decision itself represents a final decision, which confers jurisdiction onto the Court.

The Court determined that “[h]owever extensive the changes to VA's claims processing regime effectuated by the AMA may be, none directly implicates the factors governing how this Court assesses its jurisdiction, namely: (1) whether a ruling constitutes a decision per section 7252; (2) whether it is "final" per section 7266; and (3) whether it is adverse. Hence, although Mr. Cooper contends that we need to reframe our inquiry to assess finality solely through the veteran's right to "one review on appeal to the Secretary" under section 7104, it's not clear how even the most sweeping changes to VA's claims processing regime could transform the nature of an administrative remand order in such manner as to render it capable of satisfying those three requirements.”  Id. at *7.

The Court acknowledged a concern about excessive or unnecessary Board remands and stated “if a claimant believes that VA is unlawfully avoiding or unreasonably delaying issuing a final decision on a claim, the appropriate avenue for relief is to file a petition for extraordinary relief under the All Writs Act.”  Id. at *8.

This was a novel try to use the AMA to argue a larger change.  It appears the case will be appealed to the Federal Circuit.

Decision by Judge Toth and joined by Greenberg and Laurer.

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Laska: SMC(t), plain meaning, and the VA's attempt to impose a higher burden on veterans

Laska v. McDonough, Case Number 22-1018, decided September 6, 2024 concerned whether a veteran should receive SMC(t) for a traumatic brain injury and the VA’s attempt to read into the regulation a requirement for regular aid and attendance.  The Court rejected the VA’s attempt to make SMC(t) harder to get than was outlined in the statute passed by Congress.

Initially, special monthly compensation provide for compensation where service connected disabilities result in additional hardships above and beyond those contemplated by the VA’s rating schedule.  The veteran’s attorney provided both a PO box and street address on the appointment form.  The Board denied an appeal in a September 2021 decision and listed only the physical address and not the P.O. box.  The veteran appointed a VSO in January 2022 for another claim, which caused the attorney to lose access to the electronic claims file.  The attorney’s access was restored in September 2023 when the veteran appointed him again and counsel filed the NOA in December 2023. 

 The statute governing SMC(t) states it should be granted “when a veteran (1) is in need of regular aid and attendance for service-connected residuals of TBI; (2) is not eligible for compensation under subsection (r)(2); and (3) in the absence of such "regular aid and attendance," would require hospitalization, nursing home care, or other residential institutional care. 38 U.S.C. § 1114(t).”  Id. at *5. 

The regulation promulgated by the VA states that aa higher level of care is needed for "personal health-care services provided on a daily basis in the veteran's home by a person who is licensed to provide such services under the regular supervision of a licensed healthcare professional." 

 The veteran argued the VA erred in denying the claim for SMC(t) for a lack of a higher level of care because the plain language of the statute does not require it and the VA’s regulation exceeds the statute.  The VA argued that the statute was not clear on its face and the regulation was a valid definition of the level of care required for SMC(t).

 The Court was faced with statutory interpretation and determined:

 “Section 1114, as a whole, can logically be read to give the same meaning to "regular aid and attendance" in both subsection (l) and the first requirement of subsection (t), as modified with the third requirement of needing "hospitalization, nursing home care, or other residential institutional care" in the absence of regular aid and attendance. Unlike the Secretary's strained interpretation of the text and structure of section 1114(t), this reading comports with the plain language of subsection (t) and harmonizes that provision with the rest of the statute.”

Id. at *11.

The Court also stated that while the plain language was clear, the legislative history also supported their conclusion.  They noted “According to the Senate Committee, veterans with TBI not only need assistance with tasks they can no longer perform, but also someone to facilitate tasks they cannot keep up with. Id. And the Senate Committee made clear that such assistance can be provided by a family member rather than a licensed health-care professional.”  Id. at *12.  The also noted: “nothing in section 1114(t)'s legislative history reflects that Congress intended to impose a higher-level care requirement for SMC(t). To the contrary, that legislative history confirms our plain language and structural analysis that the level of care required for SMC(t) is the need for regular aid and attendance under (r)(1).”  Id

The Court concluded: “section 1114(t) specifies that the requisite level of care for entitlement to SMC(t) is the need for regular aid and attendance and the Secretary's implementing regulation, § 3.352(b)(2), requires the higher-level care described in 1114(r)(2). Thus, the regulation exceeds its authorizing statute and must be set aside as invalid.”

This is an important decision for anyone that has ever been denied a SMC(t) rating and should open the door to greater assistance.  It also demonstrates the VA’s willingness to impose higher burdens than those imposed by Congress.

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

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Burgan: Presumption of Regularity in Mailinbg

Burgan v. McDonough, Case Number 23-7869, decided August 23, 2024 is a decision by the Veterans Court regarding the presumption of regularity related to the filing of a notice of appeal.

The veteran’s attorney provided both a PO box and street address on the appointment form.  The Board denied an appeal in a September 2021 decision and listed only the physical address and not the P.O. box.  The veteran appointed a VSO in January 2022 for another claim, which caused the attorney to lose access to the electronic claims file.  The attorney’s access was restored in September 2023 when the veteran appointed him again and counsel filed the NOA in December 2023. 

As to whether the veteran had rebutted the presumption, the Court noted “an error in addressing the mail is not alone sufficient to rebut the presumption; rather the error must impact delivery.” Id. at *8.  Reviewing the Domestic Mail Manual guidance on dual addresses, i.e., those containing both a P.O. box and a street address, the Court noted no requirement that both must be provided for the mail to be deliverable. Rather, this guidance states that the priority is for the USPS to deliver the mail to the address directly above the city and the state in the address, and “the party addressing the mail must therefore use the ZIP Code for whichever location is listed immediately about the city and state.” Id. at *9. The Court found that, since appellant provided no authority for the position that omitting the P.O. box or ZIP code for the P.O. box affected delivery and the Board addressed it to his proper street address and ZIP code, he did not meet the burden of demonstrating the omission was consequential to delivery sufficient to rebut the presumption.  Ultimately, the Court found the NOA was untimely and granted the Secretary’s motion to dismiss.

Decision by Judge Pietsch, Greenberg and Meredith. 

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Rorie: Judicial Deference post-Loper Bright

Rorie v. McDonough, Case Number 22-5377, decided August 16, 2024 is a decision by the Veterans Court regarding judicial deference and stare decisis.

The case involves an assertion of an earlier effective date.  There were two arguments.  One, pre-March 2015, a medical professional examination report served as an informal claim pursuant to 38 C.F.R. 3.157(b) and Pacheco v. Gibson.  However, Pacheco also prevented the claim and that was the focus of the Court—how the U.S. Supreme Court’s decision in Kisor v. Wilkie impacted Pacheco.  The veteran argued: “because the Court in Pacheco employed a preKisor deference analysis under Auer to interpret § 3.157(b), we must reevaluate our interpretation of § 3.157(b) using a Kisor-compliant deference analysis.”  Id. at *2.

The Court held that Kisor does not require the Court to revisit Pacheco.  It also noted:

“the Supreme Court overruled the Chevron doctrine that had outlined a framework for judicial deference to administrative agency's views of ambiguous statutes. Significantly, the Supreme Court made clear that its decision did not upset earlier decisions that had relied on the Chevron doctrine. In other words, principles of stare decisis generally required courts to adhere to such earlier decisions that had been rendered under the then-required Chevron framework. We see no principled reason that the same rule of stare decisis does not hold sway in the context of the Supreme Court's change from Auer to Kisor deference in terms of ambiguous regulations. And, as we will explain in detail, to the extent this Court's recent decision in LaBruzza v. McDonough proceeded along a different path, we conclude that it is irreconcilable with the logic of Loper Bright Enterprises v. Raimondo. So, we conclude that we remain bound by Pacheco.”

Id. at *3.

This was an innovative attempt to apply new Supreme Court case law to achieve a more pro-veteran friendly framework of established case law.  However, the Court clearly wants to avoid re-litigating what it perceives to be finally litigated decisions.

Decision by Judge Allen and joined in by Judge Favley with a concurrence by Judge Toth. 

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