Turner: A Pending Claim Under Section 3.156(b)

Turner v. Shulkin, Case Number 16-1171, decided February 8, 2018 considers 38 CFR Section 3.156(b) which concerns claims deemed pending because the VA received new evidence with 1 year of a decision.

The Court considers whether VA treatment records may constructively be deemed to have been received by the VA.  “The Court [held] that constructive receipt in the context of 38 C.F.R. § 3.156(b), dealing exclusively with VA treatment records, requires knowledge by VA adjudicators at the VBA of the existence of those VA treatment  records within the one-year appeal period. In determining whether constructive possession has been triggered as to VA treatment records, those records must have been generated by a VA medical facility and VA adjudicators at the VBA must have sufficient

knowledge that such records exist. In addition, based on the Federal Circuit's decision in Sullivan, VA's constructive receipt of such records is not tied to their relevance to the claim.”  Id. at12-13.

The Court further explained:

In the present case, the appellant submitted a statement to the RO in July 2006, noting, "I

receive medication for depression through the Mental Health Clinic at the VAMC [North] Little Rock."  The Court holds that this statement was sufficient to provide VA adjudicators at the VBA with knowledge of the existence of the appellant's VA treatment records to trigger constructive receipt. The appellant identified a specific VA facility, that he received some type of treatment there, and that such treatment was current. Although the Court acknowledges that there is no bright line rule as to what constitutes sufficient knowledge of the existence of VA treatment records, identification of a time, place, and

nature of activity–medical treatment–are factors to be considered. Cf. 38 C.F.R. § 3.159(c)(2)(i). The Secretary argues that the appellant's statement did not indicate the relevance of the VA treatment records to his epilepsy claim. However, as discussed above, the Federal Circuit made clear in Sullivan that relevance of VA treatment records is not to be considered when determining VA's duty to consider those records and how to evaluate two disabilities on the basis of the predominate respiratory disability alone.

Id. at *14 (internal citations omitted).

The Court also acknowledged that the Claim Adjudication Manual requires an adjudicator to associate any relevant records with the claims folder even if a veteran does not identify treatment at a specific VA facility.  However, the Court held “this provision goes beyond the duty to assist as articulated in the statutes and regulations, and it is the duty to assist that defines VA's obligations in the present case.”  Id. at n. 4.

Frankly, I think this decision is tortured in its reasoning and unreasonably narrow.  It seems hard to argue the VA does not know about a VA treatment record and this decision seems to narrow the plain language of the regulation.  It seems to attempt to separate and distinguish between the VA’s medical and rating sections in a way that is probably harmful to veterans.  I understand the Court wants to place some duty on the veteran to point to post-decision evidence and thus trigger 3.156(b), but it feels like the Court has to take a leap in reasoning to place such a burden on the veteran.

I wonder if an attorney or veteran should now make a general statement to the VA any time they receive a denial stating something to the extent that “The veteran has in the past and is currently receiving treatment at the following VAMC: ____ and believe those medical records are relevant to his claim and entitle him to greater benefits.”

The decision was by Judge Allen, joined in by Chief Judge Davis and Judge Pietsch.

Harvey: Evidence from an Attorney/Medical Doctor

Harvey v. Shulkin, Case Number 16-1515, decided February 7, 2018 examines a fairly limited question: whether part of a legal brief submitted to the Board by Mr. Harvey’s attorney, who is also a medical doctor, constituted a medical opinion that the Board was required to address.

                                                          

The veteran sought service connection for several issues including sleep apnea.  In a brief submitted by counsel for the veteran, counsel—who is also a medical physician—stated  “The veteran's sleep apnea is more likely than not secondary to his service-connected MDD/PTSD.”  Id. at *3.  The brief also offered a rationale.  Id.  The Board denied service connection based on a lack of a medical nexus. 

On appeal, counsel argued the VA failed to address the medical nexus opinion found in the brief.  The Secretary argued the brief was a legal brief rather than a medical opinion.  The Court found

after considering attributes relevant to such a determination, the Court concludes that Mr. Anaise's December 2014 submission did not contain a discernable medical opinion. This conclusion is based on the text of the submission and the indicators of legal advocacy and legal argument therein, as well as the absence of indicators that Mr. Anaise was acting in the role of a medical expert, including the lack of an identifiable medical opinion containing medical judgment and rationale, in the December 2014 submission. The Board would have needed to exercise extraordinary powers of clairvoyance to recognize that the December 2014 submission contained a medical linkage opinion on behalf of Mr. Harvey, as Mr. Anaise argues before this Court. The Court concludes that Mr. Anaise's inclusion of the designation "MD" on his letterhead and in his signature block, absent any markers within the submission that indicate that he was acting in a medical-expert role, along with the fact that his submission was identified as an "appeal brief" and contained legal argument to the exclusion of medical judgment and opinion, is insufficient to mark the December 2014 submission, or any part thereof, as the opinion of a medical expert.

Id. at *8.

The Court then considered the Model Rules of Professional Conduct and seemed to imply the mixing of the role of advocate and medical expert was problematic under Rule 3.7. 

The Court then considered a secondary service connection argument for sleep apnea as secondary to PTSD and mood disorder.  The Court found the Board properly considered the medical treatise and stated “[i]nterpretation of a medical treatise's meaning and assessment of its probative value as evidence in support of the claim being adjudicated are within the purview of the Board as factfinder.”  Id. at *12.

The decision is a hard result for the veteran, but probably necessary.  The Court made clear that blurring the lines between medical expert and legal advocate is problematic and will be looked upon unfavorably by the Court.

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

George: CUE and 3.156(c) and PTSD

George v. Shulkin, Case Number 16-1221, decided February 5, 2018 considers the intersection of CUE (clear and unmistakable error) and 38 CFR sections 3.156 in the context of an earlier effective date for PTSD.

The veteran applied for compensation in 1997 for PTSD and was denied because there was no confirmed diagnosis of PTSD and no in-service stressor.  The claim was reopened in 2003 and after a series of decisions and remands PTSD was eventually service connected.  The effective date was 2003, the date the claim was reopened.  The RO had determined records from U.S. Army and Joint Services Record Research Center showed attacks which verified the veteran’s story of a PTSD stressor. 

The veteran filed a notice of disagreement regarding the effective date and after another series of remands the Board denied an effective date earlier than his application to reopen the claim.  The VA had requested an opinion from a mental health examiner about when the PTSD began and the examiner stated October 2003.  That decision was not appealed and became final.  However, a year later, the veteran filed a motion to revise the decision based on CUE.

The motion to revise based on CUE was denied and the Board found the medical evidence did not adequately support the finding the veteran’s PTSD had its onset prior to 2003.  The Court noted the veteran was arguing the Board did not reconsider its decision in light of the new service medical records.  The Court determined the Board did consider 3.156(c) and CUE in its decision and “the Board addressed at length the various steps taken after receipt of the service department records, such as obtaining a retrospective medical examination and considering other evidence such as Social Security records and lay statements.  This type of discussion only makes sense in the context of reconsidering a claim.” Id. at *8.

The Court then turned to whether the Board correctly determined CUE had not occurred and noted the Court’s review was based on a high standard of review, whether the Board’s decision was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.”  Id. at *8.  The Court determined the

The development done by VA throughout this appeal supports the Board's finding that reconsideration under § 3.156(c)(1) occurred in the 2014 decision. Specifically, the RO readjudicated the claim in October 2007 and granted service connection, based in part on the newly received service records. Additionally, in April 2013, VA obtained a retrospective medical opinion to determine when the appellant first suffered from PTSD. This medical opinion was apparently a part of VA's efforts to develop the claim, further supporting the notion that reconsideration of the merits was taking place. In the 2014 decision, the Board specifically noted that the date of claim was September 30, 1997, based on § 3.156(c), but found that entitlement did not arise prior to September 19, 2003, when PTSD first had its onset.

Id. at *9.

The Court ultimately determined the Board did not err in not finding CUE. 

In footnotes, the Court noted the adequacy of the medical examination are not before the Court because this is a CUE motion and that “[t]he appellant makes a facially credible argument that, had the Board conducted a "full readjudication" in 2014, his lay statements may have triggered the duty to assist, which, in turn, could lead to the development of evidence of PTSD symptoms prior to 2003. On direct appeal, the appellant would have had the opportunity to argue that the Secretary did not satisfy his duty to assist, but that time has come and gone. This Court has long understood that a

failure of the duty to assist cannot constitute CUE.”  Id. at n. 1 and 3.

This is a difficult decision to wade through.  It involves a denial, a reopened claim resulting in a grant of service connection and an effective date of the application to reopen the claim and finally a CUE claim, but only after the reopened claim was not appealed.  It seems possible if the initial decision with the effective date of the application had been appealed, the result may have been different.  In the end, the case does not really seem to expand on how Section 3.156(c) works except in this fairly limited situation.

Decision by Judge Allen, joined in by Judge Schoelen.  Judge Greenberg wrote a short dissent pointing out how inequitable the result is in that the veteran was initially denied service connection because the examiner in 1998 could not attach the PTSD diagnosis to a stressful event.

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Marcelino: Obesity

Marcelino v. Shulkin, Case Number 16-2149, decided January 23, 2018 considers whether the VA must consider obesity as a disability. 

The veteran was service connected for his at least one knee and argued that his reduced mobility and physical restrictions contributed to obesity, which had begun while still in service. 

The RO and Board denied service connection. The Board stating that “‘obesity, in and of itself, is not a disability for VA compensation purposes.’ The Board noted that the VA schedule for rating disabilities, title 38, Code of Federal Regulations, part 4, does not contemplate a separate disability rating for obesity and that VA's discretion over the rating schedule is insulated from judicial review.”  Id. at *2.

The veteran argued the Board erred when it did not adhere to the VA’s own definition of “disease” and determined based on the Board’s own medical speculation that obesity is  not a disease for disability compensation purposes.  He also argued “the Court has jurisdiction because whether obesity is a disease is a question of law that must be answered before turning to the second and separate policy question whether veterans may be compensated for obesity.” Id. at *3. 

The Court began its analysis by referring to Wanner v. Principi, 370 F.3d 1124 (Fed. Cir. 2004).  Wanner notes that Congress excluded from judicial review the content of the rating schedule and “[t]he [Federal Circuit] Court went on to state that direct review of the content of the rating schedule is "indistinguishable" from review of what should be considered a disability.”  While there are some exceptions to the rule in Wanner, these include a constitutional challenge, a case involving interpretation of a regulation, and cases involving a procedural challenge to the Secretary’s adoption of regulations, this case does not fit within the exceptions.  Id. at *4.

The Court noted:

Despite Mr. Marcelino's attempt to couch his arguments as a two-part inquiry involving a purely legal question and a policy determination on the part of VA, this argument is nothing more than a backdoor substantive challenge to the content of the rating schedule that this Court may not and will not entertain.

The Board did not dispute in this case that the appellant suffers from obesity; rather, the

Board found that obesity is not recognized by VA as a disease or disability for  compensation purposes. The Court does not have jurisdiction to entertain the argument that obesity should be considered a disability under the rating schedule.

Id. at *4. 

It might seem commonsense that a service connected leg disability could lead to it being harder to exercise and subsequent weight gain, but it is hard to escape the Court’s conclusion in light of the restrictive law found in Wanner.  It simply shows the power the VA has in creating the Diagnostic Code and the fact that it is very difficult to challenge such power.

Decision by Judge Schoelen and joined by Judges Pietsch and Bartley.

Foreman: Section 3.304 and 3.114 Do Not Restrict the Application of an Earlier Effective Date for PTSD

Foreman v. Shulkin, Case Number 15-3463, decided January 22, 2018 considers the application of 38 CFR sections 3.304 and 3.114 and whether they restrict the application of an earlier effective date for PTSD.

The veteran applied for compensation in 1972 and service medical records submitted with the application addressed a nervous condition, but he did not specify service connection for PTSD or any other medical condition.  In 2008, the veteran sought service connection for PTSD which the VAMC had diagnosed by 2005.  While the 2008 claim was pending, the VA amended 38 CFR 3.304(f).  The amendment eliminated the requirement for corroborative evidence of a stressor where a VA mental health expert has diagnosed PTSD and the stressor is related to the veteran’s fear of hostile military or terrorist activity. 

After an initial denial, the VA ultimately granted a 50% PTSD rating with an effective date of March 2011 (the date of the examination).  Nearly 3 years later, the Board issued a decision granting an effective date of July 2010, which is the date of the amendment to 38 CFR 3.304(f).  The Board reasoned the amendment was a liberalizing rule and the grant of PTSD was made pursuant to the liberalizing rule.  They then noted Section 3.114 provides when benefits are awarded due to a liberalizing change in law, the effective date will not be earlier than the date of the law’s change. 

The VA ultimately conceded and: “[t]he Court holds that the July 13, 2010, amendment to § 3.304(f) is not a liberalizing rule for the purposes of § 3.114 and that Mr. Foreman is therefore not precluded from receiving an effective date prior to July 13, 2010, for the award of service connection for PTSD.”

The case is interesting in that the veteran was not represented but an attorney appeared as amicus curiae.  Initially, the VA insisted 3.304 and 3.114 interact to prevent an earlier effective date than July 2010, but when an attorney’s brief argued counter than argument, the VA backed down and essentially conceded 3.304 was not a liberalizing rule.  Id. at *5.

After finding the rule was not a liberalizing one, the Court concluded

Because the July 2010 amendment to § 3.304(f) is not liberalizing for effective date

purposes, § 3.114 does not govern the effective date of benefits in this case.  The Board thus prejudicially erred as a matter of law by applying § 3.114 to restrict Mr. Foreman from receiving an effective date earlier than July 13, 2010, instead of applying section 5110(a) and § 3.400, which allow for an effective date at least as early as the date of receipt of his claim for benefits.

Id. at *8.

The Secretary had also argued the Court should assign the date of application (September 2008) for PTSD as the effective date.  Id. at *8.  The Court noted the veteran sought an even earlier effective date and that generally the Court should not engage in fact finding.  It then, remanded the case to the Board for determination of the proper effective date.  Id. at *10.

C.J. Davis wrote dissenting in part.  While agreeing with the reasoning that Section 3.304(f) was not a liberalizing rule, he would have applied an effective date of September 2008, the date of application for benefits for PTSD.  This is an interesting dissent.  At one level it supports the VA’s position. But, it also shows a willingness to delve into a matter for the first time in an attempt to put to an end to unnecessary delays.  It evidences a certain willingness to go further and reach decisions that could end delays.  Some have argued for this authority for the Court (the ability to decide some limited factual matters) in an attempt to try to stop the hamster wheel of VA claims whereas how to circumscribe such authority and where it might lead is an interesting question.

Decision by Judge Bartley and joined in by Judge Pietsch.  Chief Judge Davis concurring and dissenting in part.