McKinney: Presumption of Soundness, Adequate Medical Examinations without resorting to Speculation and the Duty to Assist

McKinney v. McDonald, Opinion Number 13-2273, decided March 11, 2016 involves a claim for bilateral hearing loss and a respiratory condition related to asbestos.  This decision has everything in it including a discussion of the presumption of soundness, whether an examination is adequate and whether the examiner would have to resort to speculation, and the VA’s duty to assist.

The veteran’s entrance examination did not note defective hearing but an audiology note showed a hearing problem at 400 hertz that the Navy considered to be minor and causing no significant limitation.  The veteran developed hearing loss which he associated with artillery fire and noise from helicopters.  The VA denied noting his entrance hearing loss, stating he was not owed a presumption of soundness, and relying on a medical examination that stated without an exit examination showing his hearing it would be speculative to connect his hearing loss.

The Court determined that because the hearing loss noted on his entrance examination did not meet the VA’s definition of a disability under 38 CFR Section 3.385 that the veteran was entitled to the presumption of soundness.  The Court noted the presumption of soundness is owed unless an entrance examination “noted” a defect, infirmity or disorder.  The court reiterated that a history of a condition does not constitute a notation of a pre-existing condition for the purposes of the presumption of soundness.

While accepting that hearing loss was noted on the entrance examination, the court determined that hearing loss did not meet the VA’s definition of a hearing disability and, therefore, the hearing loss was not a defect which would prevent the application of the presumption of soundness. The Court reached this conclusion by noting that 3.385 states that impaired hearing is not a disability for compensation purposes unless the audiometric threshold is 40 db or greater—here the threshold was 35 db.

The Court also determined the VA’s examination was inadequate because she did not provide a rationale for concluding that an audiology test from the veteran’s separation was needed—the court stated it was unclear if her opinion that she would have resort to speculation reflected the limits of her knowledge or the knowledge of the wider medical community.  Id. at *17.  The Court also took the examiner for task for failing to consider the veteran’s testimony that he first noticed hearing loss during service or shortly after discharge.

Regarding the respiratory issue, the veteran submitted private medical statements linking his respiratory condition, asbestosis, to asbestos exposure.  However, the VA rejected them because they were made several years prior to his application for benefits and also stated there was no current of a current diagnosis of asbestosis.  The Court noted the VA was to consider all respiratory problems, not just asbestosis.  The Court agreed with the veteran that the VA gave inadequate reasons or bases for summarily rejecting the 1996 medical reports because they were not sufficiently proximate to the date of the claim.  Id. at *21.  The Court also noted the Board relied on an inadequate VA examination which did not mention the prior diagnosis of asbestosis.  The Court also found the VA did not fulfill its duty to assist.  The veteran filed out an authorization for Dr. Attiah records related to asbestos exposure.  The VA sent a request for the records to a hospital but then received a form stating the hospital did not have the records but recommended the VA call his office at the number the veteran had already provided to the VA.  The VA simply did not call that number or attempt to gain those records in any other way, which the Court considered “particularly glaring because the Board found that the only evidence in the record that Mr. McKinney was diagnosed with asbestosis was evidence from 1996.  Yet, the 2003 referral sheet from Methodist Charlton Medical Center indicates that the referring physician attributed Mr. McKinney’s current respiratory disorder to ‘apparent exposure to asbestos.’”  Id. at *26.

A dissent by Judge Bartley expressed her opinion that because defective hearing was not listed on the entrance examination, it is unfair to consider that a defect.  She worried “Permitting retrospective interpretation of an entry examination allows VA to transform the test result not identified at the time of entry as out of the ordinary into noting at the time of entry, thereby perverting the statutory requirements.  This retrospective interpretation will create troubling effects: Men and women entering service would be deemed fully fit to fight and die, with the entry examiner indicting nothing preexisting; but after service those men and women, now veterans, would be informed that they were less than whole at entry, that there was preexistence, and that they have a significant handicap in pursuing disability benefits, i.e., the presumption of soundness, in most cases, would not apply.

Decision by Judge Schoelen and joined by Judge Davis, concurrence by Judge Bartley.

Hime: CUE in a Pre-Colvin Decision and Due Process

Hime v. McDonald, Opinion Number 14-3215, decided March 3, 2016 involves a claim of clear and unmistakable error (CUE) in a 1983 decision which denied entitlement to service connection for a hip bursitis.

In 1982 the veteran sought service connection for his hip and presented a statement for a VA physician supporting service connection.  Before the Board there was no negative evidence or evidence against service connection.  However, the Board still denied.  At that time, the Board was made up of 2 attorneys and one physician. 

In 2010, the veteran filed a CUE claim saying the only evidence before the Board was evidence supporting service connection, so a decision to deny was CUE.  The Board denied.  It agreed the only evidence before the Board was positive but stated the medical member implicitly provide the countervailing evidence to deny the appeal., which was not forbidden by statute or regulation at the time.

The Board decision was appealed to the Court which resulted in a JMR to address the ability to of the medical member to provide evidence.  On remand, the veteran argued the decision could not constitute a medical opinion and that allowing the medical member to provide a medical opinion would violate his due process and fair process rights as he was not given a meaningful opportunity to respond to the evidence.

The Court first addressed the difference between the Board in 1983 and now.  Then, the Board did not have to provide reasons and bases for its conclusions and included a medical member of the Board.  It also discussed the apparent fact that medical members decided cases based on their own medical expertise.

The Court decided the 1983 decision did not constitute medical evidence and then argued “the medical member of a Board section had the expertise to consider whether the medical evidence of record was competent, credible, and probative, and the Board was under no obligation to provide an explanation for its rejection of favorable evidence….  As discussed above, the presence of a medical member on the Board, pre-Colvin, allowed the Board to assess the probative value of medical opinions in a way that it now cannot, through the exercise of its own medical expertise and judgment.”  Id. at *8-9.

Judge Bartley wrote a powerful dissent.  She noted the second Board decision identified the medical opinion in the 1983 decision as a medical opinion.  She then determined the reliance on extra-record evidence leads to the conclusion that the 1983 Board decision committed CUE and violated the veteran’s constitutional due process rights when it denied service connection on the basis of extra-record evidence.

The argued that a medical Board at that time could rely on their medical expertise to consider whether medical evidence of record was competent, credible, and probative, but stated that was not what happened in 1983.  In 1983 the only evidence in the record was in favor of service connection, therefore, the decision of the Board was based on the extra-record evidence of the medical Board member.  The relevant statute in 1983 stated the Board was required to make its decision based on the entire record.  See USC 4005(d)(5).  However, Judge Bartley effectively uses this statute to argue that the Board member’s opinion was not of the record and could not be relied upon.  She also argues use of a new opinion denied the veteran constitutional due process rights as it did not first allow the veteran the opportunity to meaningfully respond to it—post-adjudication notice of the adverse opinion was not enough.

On a practical level this case has limited reach to only CUE in Pre-Colvin decisions (circa 1991).  However, Judge Bartley lays out arguments that might be used in other due process situations.

Decision by Judge Lance, joined by Judge Pietsch.  Dissent by Judge Bartley.

Johnson: Systemic Therapy is Systemic Therapy or The Plain Meaning of a Regulation is the Plain Meaning of a Regulation

Paul Johnson v. McDonald, Opinion Number 14-2778, decided March 1, 2016 involves he interpretation of Diagnostic Code 7806, which relates to a skin condition.

DC 7806 provides a 60% rating for among other things “constant or near constant systemic therapy such as corticosteroids or other immunosuppressive drugs required during the past 12-month period”.  In fact, the veteran here had used topical corticosteroid cream for the past 12 months. 

The Board had denied the increased rating arguing the use of corticosteroid cream wasn’t systemic therapy.  The Secretary argued the Board was correct and that systemic therapy meant pertaining to the body as a whole whereas topical therapy pertained to a particular surface area.  The Secretary went through the lengths of actually adopting a M-21 manual provision that defined systemic therapy as not including topical corticosteroids.

The Court found “the language of DC 7806 is unambiguous: the diagnostic code explicitly mentions corticosteroids as an example of ‘systemic therapy’ and does not further distinguish between different types of corticosteroid application.  Otherwise stated, as used in DC 7806, ‘constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs required during the past 12-month period,’ defines systemic therapy as the use of corticosteroids without any limitation of type of use, and it is well-settled that the Board is not permitted to add criteria not included in the rating schedule.”  Id. at *6. 

The Court dealt with the Secretary’s medical definitions by stating they did not forestall the Secretary from defining systemic therapy for a skin condition as including use of topical corticosteroids, which is what they did.  And, as to the adopted manual provisions and reference to DC 6602 for support, the Court noted DC 6602 showed the Secretary knew how to narrowly define “systemic” when it wanted to.  As to the new manual provision, the Court noted that such a modification should not be applied retrospectively and could not be used to modify the plain meaning of the regulation, which can only be done after notice and comment.  Id. at *8.

 

Judge Kasold wrote a dissent agreeing systemic therapy does not exclude the use of topical corticosteroids, but stating the Board never found the use of the cream was “required” and so the case should be remanded for that determination.

This case is an excellent demonstrating of the plain meaning of a regulation winning out over the VA’s interpretation of it.  It also shows what lengths the VA will go to buttress their interpretation (adopting a manual provision while the case was pending).  It is also helpful in that the Court has made clear that adopting a manual provision will not apply retroactively and cannot change the plain language of a regulation—these should be established law, but sometimes the VA needs a reminder.

Decided by Judge Hagel and Greenberg.  Dissent by Judge Kasold.

Sullivan: Duty to Assist to Obtain Medical Records

Maurice Sullivan v. McDonald, Opinion Number 2015-7076, decided March 8, 2016 is a Federal Circuit decision involving the duty to assist. 

The veteran had sought to reopen his claim by submitting new evidence.  The Board determined the evidence was not material and further found it had fulfilled its duty to assist the veteran. 

On appeal to the Veterans Court the veteran argued the VA did not obtain his medical records from a VAMC where he had previously sought treatment.  During the hearing before the Board, the veteran had said he had been treated there and told by doctors that he did not have anything wrong with him.

The Veterans Court concluded the duty to assist a veteran in obtaining records only extends to potentially relevant records and then went on to determine the VAMC records identified were not potentially relevant records that would aid the veteran in reopening his claim.

The relevant code and regulation are 38 USC 5103A and 38 CFR 3.159(c).  Interestingly, the code section imposes a relevancy standard on records.  However, the regulation at issue does not impose the same relevancy standard on VA medical records—instead simply stating:

“Obtaining records in compensation claims. In a claim for disability compensation, VA will make efforts to obtain the claimant's service medical records, if relevant to the claim; other relevant records pertaining to the claimant's active military, naval or air service that are held or maintained by a governmental entity; VA medical records or records of examination or treatment at non-VA facilities authorized by VA; and any other relevant records held by any Federal department or agency. The claimant must provide enough information to identify and locate the existing records including the custodian or agency holding the records; the approximate time frame covered by the records; and, in the case of medical treatment records, the condition for which treatment was provided.”

The Federal Circuit dealt with the more liberal regulation language by noting 38 USC 5103A states that “nothing in [5103A] shall be construed as precluding the Secretary from providing such other assistance under subsection (a) to a claimant in substantiating a claim as the Secretary considers appropriate.”  Therefore, the regulation can be more pro-veteran than the Code.

The Federal Circuit thus found the VA had not fulfilled its duty to assist. 

The Federal Circuit than dealt with the Veterans Court’s determination that the non-obtained VAMC were not relevant by noting that this was a factual determination the Board had never considered and such factfinding is improper for the Veterans Court.

This case is likely to be helpful in a many appeals where the VA simply did not obtain readily identifiable older VA medical records.  It might be a technical reason to remand, but could allow for more development for the veteran and an earlier effective date.

Decision written by Judge Stoll, and joined in by Judges Reyna and Taranto.

Stewart: A Long Strange Trip or Why IBS is a Stomach Disability

Stewart v. McDonald, Opinion Number 2014-7110 is a Federal Circuit unpublished decision that is notable for finding that a second NOD was not required after a denial specifically for IBS when in fact the issue of a stomach problems was already before the Board.

What is really notable about this unpublished decision is the detailed history offered by the Court.  It states “The above description of this veteran’s travails through the VA process—a description which for the sake of readability nevertheless leaves out much detail—well illustrates the problems a veteran faces when trying to navigate the complex rules and procedures that exist.  Here the veteran in the course of making a claim for benefits and seeking to have it adjudicated fairly had pieces of it dealt with by three difference regional offices—Muskogee, O.K., Winston-Salem, N.C., and Columbia, S.C.  Each RO proceeded to address the specific question they understood was before them, and each made various rulings, often accompanied by letters to the effect that other matters were still under consideration.”

For all of those struggling, know at least some judges at the Federal Circuit understand Kafkaesque nature of the VA appeals system.

Decision by Judge Plager and joined by Judge O’Malley.  Dissent by Judge Bryson, though he would still have remanded.

Yancy: Foot Disabilities and Extraschedular Considerations Raised

Yancy v. McDonald, Opinion Number 14-3390, decided February 26, 2016 involves a foot disability and possible ratings for pes planus and hallux vargas and individual unemployability (IU).

The veteran was granted a 10% rating for bilateral pes planus and service connected for hallux vargus of the left and right great toes but assigned a noncompensable rating. 

Regarding his foot disability the veteran argued to the court that the Board did not provide adequate reasons and bases for denying ratings under either DC 5281 (hallus rigidus) or DC 5284 (“Foot injuries, other”).

The veteran pointed to a medical record noting “pes planus and hallux valgus et rigidus on both sides.”  This note was ignored by the Board.  The Court found the hallux rigidus suffered by the veteran might be severe and thus entitled to a 110% rating, but that the Board must make that determination in the first instance.

Regarding “other foot injuries”, the Court held the plain meaning of the word “injury” limited to DC 5284 to disabilities resulting from actual injuries to the foot as opposed to disabilities caused by degenerative conditions.  (As a note, this distinction seems hard to maintain, many actual injuries lead to degenerative changes.).  However, the Court then stated that while DC 5284 is limited to disabilities resulting from actual injuries to the foot, nothing prevents the Board from rating closely related conditions by analogy under DC 5284.  The Court then determined that because the Board did not discuss whether the veteran’s unlisted conditions could be rated by analogy to DC 5284 and its failure to do renders its statement of reasons or bases inadequate.

Regarding individual unemployability, the Court noted that the Board must consider referral for extraschedular considerations where evidence of the record shows exception or unusual circumstances or where the veteran has asserted that a scheduler rating is inadequate. The Court explained the first two elements to consider in determining whether IU is raised is whether the evidence before the VA presents such an exceptional disability picture that he available scheduler evaluations are inadequate and whether the veteran’s exceptional disability picture exhibits other factors such as marked interference with employment or frequent hospitalization.  If the first two tests are met, the question must be referred to the Under Secretary for Benefits or the Director of Compensation Services for a determination of whether an extraschedular rating is warranted.

The Court also noted that Federal Circuit case law makes clear that extraschedular considerations should consider the collective impact of multiple service connected disabilities.

The Court then looked at whether extraschedular considerations had been raised by the veteran.  The Court noted the record reflected he could not stand or sit for long periods of time as a result of his service connected disabilities, and that was enough to raise the issue. 

This is an important case for espousing a fairly liberal view of what raises the issue of extraschedular considerations (inability to stand or sit for long periods of time).  While it also limits DC 5284 to actual injuries to the foot as opposed to degenerative changes, the impact of this limitation is muted 

by exhortation to consider a rating by analogy.

Decision by Judge Lance, Davis, and Greenberg.