Jackson: What Happens to the Attorney Fee when the Veteran Dies

Francis J. Jackson v. Shinseki, Opinion Number 12-0738, was decided March 6, 2014 and concerns the what happens to the attorney fee agreement when the veteran dies after a favorable decision granting service connection but before the Regional Office implements that decision by assigning a disability rating and effective date and paid the funds to the surviving spouse.

The Court determined the amount stated as the award for success in pursuant of a claim for benefits had not been determined at the veteran’s death.  The Court admits the accrued benefits claim is derivative of the veteran’s claim for service connection and the accrued benefits claimant is only entitled to what was properly due the veteran at the time of his death, but which was unpaid.

The attorney argued that because the claim for accrued benefits was derivative of the veteran’s claim the award of past due benefits to the spouse was on the basis of the veteran’s claim and that award satisfied the final requirement for him to be paid in fulfillment of his agreement with the veteran.  The Court instead found the spouse was a separate claimant from her husband she was never a part of the fee agreement and thus the attorney cannot collect a percentage of the spouse’s accrued benefits award.

Judge Schoelen dissented and found the result was absurd because essentially he was “not entitled to collect a fee for legal services provided to the veteran because the regional office (RO) failed to calculate the amount of past-due benefits owed to the veteran prior to his death.”  Id. at *12.  Judge Schoelen found the “past-due benefits were, in fact, awarded” and focused on the fact the accrued benefits claim was entirely derivative of the veteran’s claim.

Judge Schoelen laid out a path to a challenge of the majority’s decision by saying the statute and regulation regarding attorney fees do not speak to the precise issue presented by the facts of this case and then finding “it is illogical to conclude that her claim, the substance of which is purely derivative of the veteran’s claim, can result in a payment of accrued benefits that is greater than what the veteran would have been entitled to receive but for the unfortunate timing of his death.”  Id. at *14.

She also found the majority holding is inconsistent with Congress’s desire to promote freedom for VA claimants to obtain access to judicial review and secure capable legal representation.  Id. at *16.  She acknowledged some attorneys might avoid very old and infirm veteran’s for fear of death, especially in light of the fact it takes the VA 923 days to process an appeal from the time a claimant files a Notice of Disagreement.

This case represents another attempt by the VA to limit the ability of claimant’s to obtain legal representation. Unfortunately, the Court went along with the reasoning. However, Judge Schoelen’s piercing dissent offers a perfect basis for an appeal, which has been filed with the federal circuit court of appeals.

Decision by Judge Moorman and joined by Judge Davis.  A dissenting opinion was filed by Judge Schoelen.

Is the VA Trying to Game the System?

Below is an important article about how the VA is trying to improve their numbers by making it harder for a veteran to file a claim, appeal a claim, and hire an attorney.

http://www.truth-out.org/opinion/item/24144-va-also-not-telling-the-truth-about-veteran-disability-claims

Cardona: Same Sex Spouses and Voluntary Cessation Exception to the Mootness Doctrine

Carmen J. Cardona v. Shinseki, Opinion Number 11-3083, was decided Marcy 11, 2014 and concerns additional compensation for a dependent same sex spouse and the voluntary cessation exception to the doctrine of mootness.

The veteran sought additional compensation for a dependent spouse under 38 USC 1115.  However, the dependent spouse was a same sex spouse  under Connecticut law and not a spouse pursuant to 38 USC 101(31).

The case was stayed until the decision in US v. Windsor, and then the Secretary filed a motion to vacate the Board decision and remand the matter for award of additional spouse compensation.  The VA then filed a motion to dismiss based on mootness and informed the Court all past due benefits had been paid.  The veteran opposed the motion based on the voluntary cessation exception to the mootness doctrine, essentially arguing because the law remains, this or a future administration could simply resume enforcement of section 101(31) in the future.

The Court found this was not a circumstance where the Secretary’s cessation appears to be a transitory litigation posture.  Id. at *9.  “Further…, this is not a case where the circumstances surrounding the voluntary cessation reflect an attempt to evade judicial review or manipulate this Court’s proceedings.  Rather the circumstances reflect a genuine, good faith change in policy based on the discernable developments noted above—issuance of Windsor, a district court’s decision that the title 38 provision is unconstitutional, and the President’s directive that executive agencies not enforce the provision—which weigh heavily in favor of finding that a reversion to the enforcement of section 101(31) is not reasonably likely.”

So, it is not clear a veteran can receive additional compensation for a same-sex spouse and that same-sex spouse should receive other benefits.

Decision Chief Judge Kasold, Judges Davis and Bartley.

Morris: Who Is Entitled to Benefits Due and Payable at the Time of Death?

Sherman E. Morris Sr v. Shinseki, Opinion Number 12-1913, was decided March 20, 2014 and concerns who can receive benefits due and payable at the time of a veteran’s death. 

The veteran’s brother served as fiduciary; however, the VA was retaining a significant amount of unpaid compensation that had resulted from waiting on a determination of the amount of severance pay the veteran had received after being released from the temporary disabled retirement list.  The VA had not released the unpaid compensation to the fiduciary because the fiduciary had yet to obtain the VA required bond.

Ordinarily, under 38 USC Section 5112 upon a veteran’s death, any monetary benefits due at death goes to the following in order: a) the veteran’s spouse, b) the veteran’s children, and c) the veteran’s dependent parents.  However, here, the veteran’s brother argued he was entitled to the withheld funds due but unpaid by operation of Georgia state inheritance law.

The Court determined that “[i]n enacting section 5121, Congress limited eligibility for accrued benefits due and unpaid to the same few categories of dependent family members for whom a veteran could seek additional disability compensation while alive.”  Id. at *6. 

The brother argued Section 5121 does not preempt state inheritance law, but the Court found that under the theory of conflict preemption, Georgia state inheritance law was preempted.

The brother also argued the veteran had a constitutionally protected property right in the VA disability award.  However, the Court noted Federal Circuit case law stating a protectable property interest in VA disability benefits extends only so far as the law creates it and section 5121 does not extend the interest in this case to the brother.  Id. at *18.

It should be noted section 5121 does offer an exception to reimburse any person who bore the expenses of the last sickness and burial.

Decision written by Judge Bartley and joined by Judges Lance and Bartley.

Murphy: An Inappropriate Reduction

George D. Murphy v. Shinseki, Opinion Number 12-1700, was decided April 4, 2014 and concerns a ratings reduction.

The veteran sought an increase from a 10% rating for sinusitis.  The increase was denied by the RO and remanded by the Board.  On remand, the Appeals Management Center increased the rating to 30% effective the date of the decision.  The impact was to increase his overall combined rating to 100%, which he began to receive.

The appeal was subsequently returned to the Board because it was not a complete grant of the benefits the veteran was seeking.  Incomprehensibly, the Board then characterized the appeal as entitlement to an increase in a 10% rating for sinusitis.  The Board did not address the AMC rating decision or Supplemental Statement of the Case, which had granted the increase to 30%, and instead found the veteran was not entitled to a rating greater than 10% for the sinusitis.

The Court was obviously shocked by the Board’s conduct.  It noted that once the AMC granted the increase to 30%, the only issue before the Board was the veteran’s entitlement to a rating in excess of 30%.  “[I]t was outside the scope of the veteran’s direct appeal for the Board to revisit the issue of entitlement to a disability evaluation less than 30%....  To hold otherwise would leave the door open for a possible ‘chilling effect’ in the administrative appeal process, whereby veterans might be afraid to seek higher disability evaluations on appeal, for fear of having already awarded benefits reduced by the Board during the appellate process.”  Id. at *5.

The Court also explained that an award of disability compensation or an increase is different than a finding of fact or law.  An award or increase “carries with it substantive rights and procedural safeguards that cannot be easily discarded in the name of de novo Board adjudication.”  Id. at *6.  The Court then noted the substantive regulatory requirements related to a reduction and fact the Board’s decision did not follow these regulations.

This case stands for the simple proposition that a veteran should not be afraid to appeal a decision because he fears the award he has received might be reduced.

Decision written by Judge Bartley and joined by Judges Moorman and Lance.

Wise: PTSD and Cardiovascular disease, and a primer on the benefit of the doubt rule

Ouida Wise v. Shinseki, Opinion Number 12-2764, was decided April 16, 2014 and concerns several issues of importance: VA physician competence, medical treatises, and the benefit of the doubt rule.

This opinion is a true tutorial on many facets of VA law.  It concerns a denied application of DIC.  The WWII veteran had been rated 100% for PTSD and ultimately died from an arrhythmia due to arteriosclerotic  cardiovascular disease, congestive heart failure, and COPD.

The veteran’s surviving spouse submitted a letter from the treating VA physician who stated it was more likely than not the veteran’s PTSD aided and assisted in his death from heart disease as PTSD is a risk factor for heart disease.  The letter also referred to a 2007 JAMA article finding that male veterans with PTSD were more likely to develop coronary heart disease and suggested that higher levels of PTSD pose an even greater cardiovascular risk.

The VA requested a VA staff cardiologist to offer an opinion.  The cardiologist opinion started by stating the cardiologist had no formal training in psychiatry besides a month long rotation in medical school and noted some VA medical records were not available for review, most importantly medical records from cardiology appointments.  The VA cardiologist then stated that due to other risk factors (hypertension, family history, obesity) and the fact that PTSD was not a widely accepted risk factor within the medical community, she did not believe the PTSD was a contributing factor in the veteran’s death.

The veteran’s spouse responded by submitting a 2011 medical article discussing the “growing number of studies” finding positive associations between PTSD and cardiovascular disease. 

The Board denied the appeal.  In its decision it found the VA cardiologist’s opinion more persuasive because it was based on known risk factors and “not [the] yet accepted notion that PTSD causes heart disease.”

The Court first addressed the cardiologist’s competence.  The Court noted that usually a physician’s competence is assumed unless it is raised by the veteran.  However, in this case “the Court holds that where, as here, a medical professional admits that he or she lacks the expertise necessary to provide the opinion requested by the Board—in this case, expressly deeming her view of the matter as that of a non-expert layperson—the opinion itself creates the appearance of irregularity in the process resulting in the selection of that medical profession that prevents the presumption of competence from attaching, and the Board must therefore address the medical professional’s competence before relying on his or her opinion.”  Id. at *11.

The Court next addressed deficiencies in the cardiologist’s opinion.  The Court noted medical cardiology appointments were made but these cardiology records were obtained by the VA or reviewed by the cardiologist.  However, the cardiologist repeatedly stated that based on a 1993 study, the veteran did not have coronary artery disease.  The Court found this at odds with the fact the study was conducted 15 years prior to the veteran’s death and fact the death certificate listed the veteran as suffering from arteriosclerotic cardiovascular disease.  The Court also was offended by the fact the cardiology relied on a 2000 medical article to refute the supporting 2007 medical article and asked why a 2000 article was more representative of the state of medical science than a 2007 article.

Next, the Court noted the VA did not attempt to find the cardiology records even though the lack of them in the file was raised by their own cardiologist.

Finally, the Court addressed the benefit of the doubt rule.  Specifically, the Board and VA cardiologist had found it was not generally accepted within the medical field that PTSD was a risk factor for cardiovascular disease.  The Court noted the benefit of the doubt rule is a standard lower than others and stated “Congress has not mandated that a medical principle have reached the level of scientific consensus to support a claim for VA benefits.”  Id. at *16.  The Court stated “[t]his is not to say that the Board is precluded from considering the extent to which a scientific theory is accepted in the scientific community when evaluating the evidence of record; this is simply to make clear that the Board, when evaluating that evidence, cannot demand a level of acceptance in the scientific community greater than the level of proof required by the benefit of the doubt rule.”  Id. at *17.  The Court then noted the existence of these contradicting articles indicates the evidence may be in approximate balance, triggering the benefit of the doubt rule.

Again, this is a major decisions that can be a touchstone for arguments as to DIC and application of benefit of the doubt rule, and more specifically on how PTSD might cause cardiovascular disease—an issue that can be valuable in both DIC and service-connection claims.

Opinion by Judge Bartley, joined by Judges Davis and Schoelen.