Sellers: What Statement is Enough to Raise a Valid Claim for Benefits

Sellers v. Wilkie, Case Number 16-2993, decided August 23, 2018 address the question of what is enough to constitute a valid claim for VA benefits.

Specifically, the veteran applied for benefits and listed several physical injuries, but also wrote “Request service connection for disabilities occurring during active duty service.”  Importantly, while in the service, the veteran was diagnosed with a dysthymia and personality disorder which had led to an emergency mental health examination, care, and even had an examination aimed at addressing his fitness for duty.

The veteran applied for benefits, but did not list his mental health issues.  He later applied for PTSD was granted service connection with a date of that PTSD application, and appealed seeking an earlier effective date back to his first mental health issues.

The Court acknowledged generally the effective date is the date the VA received a claim or the date on which entitlement arose, whichever is later.  Id. at *3.  The elements of any claim, formal or informal, are (1) an intent to apply for benefits, (2) an identification of the benefits sought, and (3) a communication in writing.  Id.  And, the identification of the benefit sought does not require technical precision and the VA must fully and sympathetically develop a claim. The Court also noted past case law saying the “VA is not required to anticipate a claim for benefits for disabilities that have not been identified in the record by medical professions or by competent lay evidence at the time a claimant files a claim or during the claim's development.”  Id. at *4.

The veteran argued his general statement of an intent to seek benefits for disabilities occurring during active duty service combined with the VA’s actual possession of service treatment records is sufficient to constitute a claim.  The Secretary argued the general statement did not identify the benefit sought.

The Court’s reasoning is so well written I will quote in whole the Court’s holding:

The Secretary is correct that a general statement of intent to seek benefits for unspecified

disabilities standing alone is insufficient to constitute a claim. Yet, the Secretary's  argument misses a crucial additional factor present here: evidence of reasonably identifiable in-service diagnoses of psychiatric conditions that predate the appellant's claim were in the possession of the RO before it rendered its rating decision. The disability at issue here was identified in the record by military medical professionals well before the appellant filed his March 1996 claim, and the record was in VA's possession at the time of the initial decision.  Further, the appellant's mental health issues were well documented in those records. They reflect that the appellant's mental health was a subject of serious concern while he was in the military as he was twice diagnosed with dysthymia, subjected to extensive psychological testing, evaluated for retention purposes, and involuntarily hospitalized. It is undisputed on appeal to the Court that the appellant was diagnosed in service with a psychiatric condition. But what is not clear is whether that diagnosis was reasonably identifiable by VA adjudicators at the time of his putative formal claim in March 1996 or prior to the RO's deciding the claim. As we explain below, whether an inservice diagnosis in a veteran's service records is reasonably identifiable by VA adjudicators at the time a claimant seeks benefits or prior to the RO's deciding the claim is a factual determination for the Board.

As a general principle, VA may not ignore in-service diagnoses of specific disabilities, even those coupled with a general statement of intent to seek benefits, provided those diagnoses are reasonably identifiable from a review of the record.  But, we are cognizant of the difficulties that VA adjudicators would face when confronted with a general statement of intent to apply for benefits for conditions experienced in service. Service medical records reflecting such conditions could be voluminous and, even if they are not, the records could reflect numerous conditions. The fact finder must determine, based on the totality of the service medical record, both qualitatively and quantitatively, whether the condition at issue would be sufficiently apparent to an adjudicator.

To assist the Board in this endeavor, we provide the following thoughts on the types of factors that may be relevant to the Board's inquiry. These are not the only factors the Board may find helpful as it makes its assessment on this factual question. They are merely illustrations of factors that may be relevant to the Board's assessment. Qualitatively, for example, service medical records might contain many notes of conditions ranging from descriptions of trivial conditions (a hangnail) to full-blown diagnoses of significant illnesses (PTSD). And the record might describe certain conditions in great detail or, in contrast, in only a passing manner. Or, for example, medical records could contain vague complaints of symptoms regarding a condition but no formal diagnosis.

Quantitatively, the sheer volume of medical records may potentially be a factor in determining whether a condition would have been reasonably identifiable to a VA adjudicator. For example, the Board could decide that a single diagnosis reflected in a single page of a 2,000-page service record is not reasonably identifiable. Whether this is the case here is a factual question that the Board must address in the first instance, and the Board must provide support its determination with adequate reasons and bases.

Because the Board did not assess whether the medical record is such that the disability in question was reasonably identifiable, it did not appropriately consider this issue and, thus, remand is warranted. On remand the Board must determine whether the appellant's in-service records reflect a reasonably identifiable diagnosis of a psychiatric condition given the nature of the records at issue and, if necessary, reconsider its determination concerning the proper effective date of the appellant's MDD accordingly.

In sum, we recognize the Court's warning in Brokowski that general statements of intent "cannot be used as a pleading device to require the Secretary to conduct an unguided safari through the record to identify all conditions for which the veteran may possibly be able to assert entitlement to a claim for disability compensation," 23 Vet.App. at 89, and we emphasize that our holding here is a narrow one. Only records containing diagnoses that are reasonably identifiable from a review of the record may otherwise cure an insufficient general statement of intent to seek benefits. To continue Brokowski's metaphor, we caution that VA at most must participate in a fully guided safari.

Id. at *4-6

The Court also deferred consideration of a higher mental health rating but seemed to issue some guidance about the use of vocational expert reports.  It stated:

we caution the Board that it cannot reject a vocational  expert's opinion merely because it is not a medical opinion. Vocational experts can be necessary depending on the facts of a particular case. See Smith v. Shinseki, 647 F.3d 1380, 1386 (Fed. Cir. 2011). While the Board is entitled to discount or reject the medical conclusions of a vocational examiner, it cannot discount the vocational conclusions of a vocational examiner simply because he or she is not a medical professional. No law, regulation, or precedent requires that an examination be conducted by an examiner with a particular expertise or specialty. Instead, an examination must be performed by someone with the "education, training, or experience" necessary to provide an opinion. 38 C.F.R. § 3.159(a)(1).

Id. at *7.

This is an important, but limited decision.  First, the factual predicate is pretty unusual—a case involving an effective date where there was a general request for benefits and clear indications of problems in the service treatment records.  Second, it is important to note that as of September 25, 2015, the VA no longer recognizes informal claims.  Still, this case could lead to a substantial earlier effective date in some cases and it is also helpful to those using a vocational expert.

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

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Petermann: Diabetes, Extraschedular Consideration and Successive Ratings

Petermann v. Wilkie, Opinion Number 2016-1093 is a Veterans Court decision dated August 10, 2018 which deals with how extraschedular consideration interact with a successive rating such as DC 7913.

The veteran was service connected for diabetes and granted a 40% rating.  He argued, however, that the severity of his diabetes was not adequately contemplated by his existing rating and referral for extraschedular considations is warranted to compensate for those uncontemplated symptoms.  Id. at  *3.

The Secretary argued

                        

the relevant question when determining whether the first prong of the Thun v. Peake,

22 Vet.App. 111 (2008) analysis is met is whether the manifestations of a disability are

contemplated by the criteria of the entire DC at issue, not whether the manifestations of a disability are contemplated by the criteria of the particular rating assigned. Id. at 8-11. Because § 3.321(b)(1), title 38, Code of Federal Regulations, allows for an extraschedular evaluation "where the schedular evaluations are found to be inadequate," the Government contends, the adequacy of an assigned rating is measured against "multiple available evaluations rather than the singular evaluation that is assigned." Secretary's Motion for Reconsideration at 3 (emphasis in original). It is the Secretary's position that allowing the appellant extraschedular referral for diabetes based on symptoms contemplated at higher ratings of DC 7913 would "eviscerate" the Court's holding in Camacho regarding the successive nature of the criteria under this DC and the requirements to receive a schedular rating under this DC.

Id. at *3-4.

            The Court noted DC 7913 rating criteria ‘are successive and therefore, to establish a given disability rating, all the rating criteria for that and for lower ratings must be met.”  Id. at *4.  It then disagreed with the Secretary’s argument that the appropriate comparison in an extraschedular analysis is between the symptoms of a veteran and the criteria of the entire DC at issue.  Id. at *6.  It explained

Such an interpretation solely contemplates mere symptomatology and eliminates in extraschedular referral analysis the requirement to compare the type of symptoms the appellant suffers from with the criteria of his assigned rating….  The Secretary's assertion simply conflates the concepts of schedular and extraschedular disability ratings: it is not logically possible for these distinct rating avenues to overlap to the extent the Secretary suggests. Nothing in today's holding changes how the schedular analysis operates.

For example, the rating schedule retains its character, including the inapplicability of 38 C.F.R. § 4.7.  Thus, because of the successive nature of the rating schedule, there will be some symptoms (as our hypothetical showed) that will not be addressed in a schedular rating. And that remains the case. But that conclusion does not say anything about the role an extraschedular analysis might play in addressing those symptoms.  The Secretary acknowledges § 3.321's "gap filling function" but argues that "it is not true that Appellant has shown there is any gap to be filled here." Id.  But the gap to be filled comes from the unique nature of successive ratings and precisely because the successive schedular rating retains its attributes. Thus, applying King's logic here allows § 3.321(b)(1) to fill that gap. Any failure to consider symptoms not contemplated by a claimant's disability rating is contrary to law and potentially deprives a veteran of compensation.

Id. at *6.

The Court turned its holding to the case at hand and determined

Because the rating criteria for diabetes are successive, see Camacho, 21 Vet.App. 360, the appellant's 40% disability rating solely contemplates his insulin use, his restricted diet, and the regulation of his activities. See 38 C.F.R. § 4.119, DC 7913. The appellant requires multiple daily injections of insulin as well as an insulin pump, diabetic management that is contemplated by a 100% disability rating. R. at 234, see C.F.R. § 4.119, DC 7913.  The appellant has testified that he has had ketoacidosis and hypoglycemic episodes as well as diabetic complications…. These episodes are potentially relevant to a 60% disability rating. See id. The Board failed to explain how a 40% schedular rating adequately compensates the appellant's service-connected disability.
***

Remand is required for the Board to provide an adequate statement of reasons or bases for its extraschedular consideration.

Id. at *6-7.

Judge Toth filed a dissent in which he argued

VA rules generally provide that, even if a disability does not manifest all the criteria in a specific rating within a given DC, the higher rating will be assigned if a veteran's disability picture more nearly approximates the criteria in that rating than in the lower rating, because real-life disabilities may not be exactly as DCs describe them. See Tatum v. Shinseki, 23 Vet.App. 152, 155-57 (2009). These rules, however, don't apply in the case of a cumulative DC such as 7913.  See Middleton v. Shinseki, 727 F.3d 1172, 1178 (Fed. Cir. 2013). That's because the "enumerated elements" of a rating in DC 7913 "are part of a structured scheme of specific, successive, cumulative criteria for establishing a disability rating" where a higher rating includes the same criteria as a lower rating plus distinct new criteria. Id. In other words, DC 7913 is crafted holistically: Each rating must be read with an eye towards the ratings above and below it. So, even if the 40% rating doesn't explicitly list a criterion—for example, episodes of ketoacidosis requiring visits to a diabetic care provider—it can't be said that the rating fails to contemplate that criterion.

Id. at *8.

It seems likely the VA will appeal this case to the Federal Circuit.  However, it is helpful at present for establishing that even in successive diagnostic code situations, referral for extraschedular consideration might be required.

Decision by Judge Greenberg and jointed by Judge Allen.  Dissent by Judge Toth.

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Withers: TDIU and Sedentary Work

Withers v. Wilkie, Case Number 16-1543, decided August 10, 2018 address Sedenary Work in the context of a TDIU claim.

This case involved a Vietnam combat veteran who was service connected for gunshot wound residuals in his arm and leg, lower back problems and PTSD.  He had operated a financial services and investment firm for some time, but began to miss works due to physical complications and PTSD related problems.  He ultimately stopped his employment shortly thereafter. 

His VA examinations revealed PTSD complaints of depression and fatigue, as well as difficulty interacting with people and handling stress. With respect to his back disability, Mr. Withers reported that he could walk slowly for only 10 to 15 minutes and avoided heavy lifting; the examiner found objective evidence of pain and limitation of motion of the lumbosacral spine but no additional loss of motion, fatigue, incoordination, or lack of endurance upon repetitive use. The veteran endorsed similar limitations with respect to his right leg disabilities, and that same examiner found evidence of residual pain and some limitation of motion in the right knee, as well as limited right ankle motion.  Id. at *2-3.  Meanwhile, the Social Security Administration determined the veteran had “the residual functional capacity to perform sedentary work as defined in 20 [C.F.R. §] 404.1567(a) except that the claimant is unable to perform competitive work on a full-time basis.”  Id. at *3.

A VA examiner noted significant limitations and “concluded that the veteran was ‘unable to do any kind of strenuous or sustained work’ but should ‘be able to do light work or sedentary work.’  He adhered to that conclusion the following year but advised that he couldn't offer an opinion on the effects of PTSD.”  Id.

The Board denied TDIU reasoning no examiner found the veteran’s service connected disabilities precluded sedentary employment and his college education and history of management suggested he had the training to perform sedentary employment.  Id. at *4.

The Court noted the use of the term sedentary work is not found in any relevant VA statute or regulation, but is frequently arises in the context of TDIU claims.  It then noted:

VA has never forwarded, nor has this Court developed through precedential decisions, an interpretation of § 4.16 that accords dispositive significance to a veteran's ability to perform sedentary work. This sets up the central tension in this case: the parties urge the Court to define a term that has no independent legal significance. For this reason, to define the phrase would put the cart before the proverbial horse. The threshold question in this context is not what "sedentary employment" means, but what connection sedentary employment bears to the requirements of § 4.16.

Id. at *6.

The Secretary sought to have the term sedentary work defined by its ordinary usage, but the Court refused to go along and instead found:

We cannot settle the meaning of "sedentary work" as used by different VA examiners in this case or provide guidance in future cases by resort to the ordinary-meaning canon. What we can say, however, is that, where a veteran's ability to perform sedentary work is a basis for the Board's decision, the meaning of sedentary work must be determined from the particulars of the medical opinion in which it is used. That is, the Board must explain this meaning—to the extent that it is not apparent from the Board's overall discussion of the opinion—as well as how the concept of sedentary work factors into the veteran's overall disability picture and vocational history, and the veteran's ability to secure or follow a substantially gainful occupation.

This approach accords with how the Board generally must assess evidence and adjudicate

the issue of TDIU.  We have repeatedly reiterated that a medical opinion must be read and interpreted as a whole, e.g., Gill v. Shinseki, 26 Vet.App. 386, 391 (2013), so when an examiner uses the term sedentary work, the surrounding medical opinion may give the term its content, based on the specific functional limitations, if any, found by the examiner. When, as here, an examiner describes certain types of functional limitations and still opines that a veteran is capable of sedentary work, the Board may need to determine whether a common-sense inference can be drawn that the concept of sedentary work, as understood by the examiner, does not encompass the physical or mental acts that the veteran is incapable of performing.

Id. at *8-9.

The Court then explained

Likewise, although §4.16 does not make the concept of sedentary work an explicit TDIU factor, if the Board bases its denial of TDIU in part on the conclusion that a veteran is capable of sedentary work, then it must explain how it interprets that concept in the context of that case. This includes, where necessary, an explanation of how a finding that a veteran is capable of sedentary employment squares with the veteran's educational and occupational history. See Pederson, 27 Vet.App. at 287. In other words, the meaning of "sedentary work" is arrived at inductively with the facts cited providing the context for understanding how the observation applies in a given situation. This allows for

individualized assessment; absent such factual context however, the phrase can be regarded as conclusory and meaningless on its own.

Id. * 9.

The Court also determined:

VA examiners opined that Mr. Withers was capable of sedentary work. However, they also remarked that service connected physical disabilities interfered to some extent with his ability to stand, walk, lift, and carry.  It is not clear from the current decision whether the Board arrived at its own conclusion regarding the veteran's ability to perform sedentary work or simply adopted the examiners' conclusions. As noted above, the Board is not obliged to consider the standards used by SSA or the DOT, but it must sufficiently explain how it interpreted the examiners' use of the term and how the concept of sedentary work figures into a veteran's overall disability picture and vocational history.

Further compromising the Board's discussion of the sedentary employment issue is the

failure to mention Mr. Withers's psychiatric disability.

Id. at *10-11.

The veteran sought for a judicial determination defining sedentary work the same as a Department of Labor publication.  The Court refused, reasoning that sedentary work is absent from Section 4.16 and thus not necessarily a part of a proper TDIU analysis.  Id. at *10.

The Court expressed sympathy that the decision did not offer a clear cut resolution by refusing to define the term sedentary work.  Instead, it noted the definition of sedentary work must be discerned on a case by cases basis from the medical and lay evidence presented and in light of the veteran’s education, training, and work history.

The Court also explicitly stated the Secretary could use notice and comment rule making to amend Section 4.16 to include and define the term sedentary work or veterans and veteran advocates could petition the VA for rulemaking to do the same.  However, I suspect the VA and advocates will let the matter alone.  My reading is that a grant or denial of TDIU should consider all evidence, including the veteran’s work history and education.  In other words, a holistic approach to consideration of TDIU (as required) does not specifically need the term sedentary work to be defined.

This is an early decision by Judge Toth and frankly demonstrates a willingness to refuse both the Secretary and veteran advocates what they want.  It likely reveals a judicial temperament that is tough but clear minded and deferential to the language of the law.

The decision was by Judge Toth and joined in by Chief Judge Davis and Judge Meredith.

Williams: Erectile Dysfunction and the Meaning of Deformity

Williams v. Wilkie, Case Number 16-3252, decided August 7, 2018 considers whether the meaning of “deformity” in the context of a rating for erectile dysfunction.

This case involved a veteran who was service connected for prostate cancer secondary to herbicide exposure from Vietnam.  He had to undergo a radical prostatectomy which resulted in severe erectile dysfunction.  He was service connected for the erectile dysfunction but given a non-compensable rating (i.e., 0%). 

The Board denied a rating of 20% pursuant to DC 7522 which resulted in a 2015 remand by the Court requiring a medical opinion as to whether the veteran had an internal deformity.  A subsequent examination found no deformity but also stated “[t]here are no

specific tests for ‘internal deformity of the penis’ that would show evidence of nerve damage. Basically, there is no evidence of deformity of the penis at all.  Deformity would occur in diseases such as Peyronie's disease, which he does not  have. Nerve damage does not cause deformities generally, but rather loss of function.”  Id. at *2.

The Board determined in its decision

that the Veterans Benefits Administration “has indicated that a compensable rating under [DC] 7522 is not warranted in the absence of deformity, and instructs that such deformity be 'evident.'" R. at 8 (quoting VA Adjudication Procedures Manual (M21-1), pt.  II.iv.4.I.2.a). The Board concluded that "no deformity was found at any point pertinent to this appeal, to include examinations conducted in January 2008, April 2009, January 2012, and December 2015."

Additionally, the Board found that an award of a compensable rating for "[ED] alone, regardless of the severity," under DC 7522 would constitute impermissible pyramiding because the appellant was already in receipt of SMC benefits for the loss of use of a creative organ. R. at 11 (citing 38 C.F.R. § 4.14 (2017)).

Id. at *3.

First, the Court rejected the Board’s conclusion that benefits under DC 5722 in addition to SMC for loss of a creative organ would constitute impermissible pyramiding.  Id. at *4.  It noted “VA's regulations state that a veteran is not barred from receiving SMC under 38 U.S.C. § 1114(k) in addition to schedular compensation for a disability. See 38 C.F.R. § 3.350(a) (2018).”  Id.

Second, the Court stated, “This case turns on the proper definition of "deformity," in particular whether a deformity under DC 7522 must be external.” Id. at *5.  The Court then noted that the term deformity is not expressly defined by the VA and so determined it should use the ordinary meaning of the word.  It then stated:

A "deformity" is a "distortion of any part or general disfigurement of the body." DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 478 (32d ed. 2012) [hereinafter DORLAND'S].  DORLAND'S further defines various types of internal and external deformities. See id. The Court therefore holds that "deformity" under DC 7522 means a distortion of the penis, either internal or external.

Id. at *6.

The Court then determined remand was necessary for the Board to apply the ordinary meaning of “deformity,” in other words, to determine whether severed nerves caused by a radical prostatectomy meet the definition of penile deformity.  Id.

This is a powerful case as many veterans are secondarily service connected for ED and receiving SMC.  This case opens the door to a higher rating.

I would expect the VA to take two actions in response.  First, change the manual language to try to address the deformity issue.  And, second, try to change the regulations to clarify that this fact pattern would constitute pyramiding.  The first change will be difficult to challenge.  But, the second change is more time consuming for the VA.  Until such time as those changes, I would continue to hammer away at these claims and even after the changes their might be room to argue for a separate rating under DC 7522 for ED.

The decision was by Judge Greenberg and joined in by Judges Schoelen and Pietsch.