Stern: Reversal as the Appropriate Remedy for a Defective Reduction

Stern v. McDonough, Opinion Number 18-4425, was decided April 20, 2021 and involves a bad reduction decision and whether the appropriate remedy is reversal or remand.

The veteran was rated for his left and right arms for neuropathy at 30% and 20% in 2007.  The ratings were continued in 2008.  However, based on a 2010 examination, the VA proposed reducing his ratings to 10% each because the examiner determined they were mild in nature.  The veteran submitted a written statement denying improvement and asking for another examination, which occurred in 2011.  Id. at *3.

The 2011 examiner noted almost constant numbness and tingling, but noted a nerve conduction study was negative, but “he possibly has a small fiber neuropathy, which cannot be determined by nerve conduction studies.”  Id. at *3.  This led to a 2011 rating decision which reduced his neuropathy ratings to 10% each.  The Board upheld the reductions in April 2018.

The Court summarized the veteran’s argument as:

The appellant argues that the Board applied an incorrect legal standard for determining whether the reductions in his polyneuropathy ratings were proper, because it "only applied one element of the two-element test [prescribed in Brown] to determine whether a rating reduction is 5 proper." Appellant's Brief (Br.) at 4. Specifically, he acknowledges that the Board considered whether there was actual improvement in his condition based on VA examination testing. Id. at 5. However, he asserts that the Board failed to consider the effects of his disabilities on the ordinary conditions of his life and work, particularly given his statements that his ability to work as a contractor had not improved; he cannot do carpenter work; and he has difficulty dressing himself, grasping hand tools, and maintaining grip. Id. at 5-6 (citing R. at 391, 448-49). He contends that, because the Board erred by failing to address the second element (i.e., whether there is an improved ability to function under the ordinary conditions of life and work), the Board's error amounts to a failure to observe the applicable law rendering the Board decision void ab initio and requiring reversal and reinstatement of the disability ratings.

Id. at *4.-5.

The Secretary conceded a reasons and bases error, but argued the appropriate remedy was remand as opposed to reversal.  The Secretary further argued

reversal is appropriate in circumstances where VA failed to abide by the procedural protections for rating reductions or the Board improperly shifted the burden of proof by requiring the claimant to prove entitlement to the previously assigned higher ratings. Id. at 10-13. However, he avers that reversal is not warranted here, where the appellant raises only a reasons or bases error.

Id. at *5.

In his reply brief, the veteran argued

The Board applied an incorrect legal standard because it did not determine whether there was improvement in his ability to function under the ordinary conditions of life and work. Reply Br. at 1. He further argues that reversal is warranted because the Board implicitly shifted the burden of proof by failing to make that determination.

Id. at *5.

The Court summarized the law on reductions and then addressed reversal as opposed to remand and stated:

the Court has held that reversal and reinstatement is the appropriate remedy where VA has not provided the procedural protections afforded in § 3.105(e), because failure to afford notice and an opportunity to present additional evidence as outlined in that regulation "deprive[s a veteran] of the regulatory process that VA created to help veterans adjust to a reduction in disability compensation payments and to submit evidence or argument to contest such an action." Murphy v. Shinseki, 26 Vet.App. 510, 516 (2014). The Court has also reversed where a Board decision was in contravention of the special protections in § 3.343 because it upheld the reduction of a total disability rating based on multiple examinations that did not reflect a material improvement, Hohol v. Derwinski, 2 Vet.App. 169, 172 (1992), or based on a single examination where all of the record evidence did not support the reduction, Dofflemyer v. Derwinski, 2 Vet.App. 277, 281 (1992). Additionally, the Court has found reversal to be warranted in certain circumstances where the Agency rendered a decision that was arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law because VA did not afford the claimant special regulatory protections required for rating reductions and imposed an inappropriate standard of proof.

Id. at *8.

The Court then framed the case as involving solely whether any improvement in the neuropathy resulted in improved ability to function under the ordinary conditions of daily life.  Id. at *10.  Next, “The Court agrees with the parties that the Board erred. Notably, the Board discussed its obligation to find not only actual improvement in the condition, but that such improvement reflected an improvement in the ordinary conditions of life and work. R. at 7. As the appellant asserts, the Board began the analysis prescribed in Brown, but stopped short by failing to "fully apply" it. Reply Br. at 2; see Appellant's Br. at 4-6. Additionally, the Court will accept the Secretary's concession that the Board failed to consider favorable evidence in reaching its determination. Secretary's Br. at 9 (citing R. at 448-49).”  Id. at *10.

As to the question of reversal or remand, the

Court now concludes that the Board's failure entirely to address, as required by Brown, whether the improvement in the disability reflects an improvement in the ability to function under the ordinary conditions of life and work, also requires reversal of a rating reduction. The crux of the Secretary's argument for remand is that the Board simply provided inadequate reasons or bases for its decision. Secretary's Br. at 11-13. However, the Court finds the Board's error here comparable to those identified in the Court's caselaw, albeit for protected ratings, as requiring reversal.

Id. at *11.

The VA frequently reduces ratings, but just as frequently does it in a really poor manner.  This shows the appropriate remedy in these cases is typically going to be a reversal as opposed to a remand.   

Opinion by Judge Meredith and joined by C.J. Bartley and Judge Pietsch.

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Beaudette: Caregiver Program Class Action Granting the Ability to Appeal!

Beaudette v. McDonough, Opinion Number 12-4961, was decided April 19, 2021 and involves the Program of Comprehensive Assistance for Family Caregivers (Caregiver Program) and certification of a class.

The case involves the Caregivers Program, which has some limitations, but grants additional benefits to qualified veterans and have serious injuries such as a TBI, psychological trauma or other mental disorder.  The veteran must need “personal care services because of an inability to perform at least one or more activities of daily living, a need for supervision or protection because of neurological or other impairment or injury, or a need for regular or extensive instruction or 2 supervision to avoid serious impairment of daily functioning.” Id. at *1-2.  “A family caregiver of an eligible veteran is entitled to instruction and training to provide personal care services, technical support, counseling, and lodging and subsistence; the primary family caregiver is entitled to the previous benefits, as well as appropriate mental health services, respite care, medical care, and a monthly stipend.”  Id. at *2. 

This case truly involves heart-breaking facts and a terrible decision making process by the VA.  A wife and the veteran applied and were granted benefits under the program.  Five years later the VA initiated a reassessment, but the veteran could not participate in the in-person examination because he was recovering from two major surgeries and the VA denied his request to delay assessment until he recovered for an examination.  The VA ultimately informed the veteran and his wife they were no longer eligible to participate in the Caregivers program based on the reassessment.   Id. at *2.  The couple challenged the ruling through a VHA appeals process and were denied—one of them was in part because the severely disabled veteran could not attend an in-person examination.

The couple then appealed to the Board of Veterans’ Appeals in August 2019, but as of the date of this decision, had not received a response.  And, in fact, the Secretary has concluded the Caregiver Program decisions cannot be appealed to the Board.  Id. at *2.  As a result, in July 2020, the couple filed a petition to the Veterans Court.

Regarding the jurisdictional question (whether the VA curtailed the Court’s ability to review the decision by wrongfully excluding the Caregivers Program from Board review), the Court determined the benefits under the Caregivers Program fall within the Veterans Judicial Review Act and jurisdiction of the Court.

The Secretary had argued the program involved a medical determination and by statute and regulation outside of the Board’s review.  The Court noted the plain meaning of the regulation does not insulate the program from judicial review and instead noted interpretative canons which that there is a strong presumption favoring judicial review of administrative actions and there is a strong presumption that repeals by implication are disfavored and that Congress will specifically address preexisting law when it wishes to suspend its normal operations in a later statute.  Id. at *3-4.

The Court then

conclude[d] that Congress has spoken unambiguously in mandating Board review of all decisions "under a law that affects the provision of benefits by the Secretary." 38 U.S.C. § 7104(a). VA's interpretation of section 1720G(c)(1) is invalid to the extent it limits the ordinary scope and operation of the VJRA. The Beaudettes have established an indisputable right to Board review, the lack of an adequate administrative means of securing that right, and the propriety of extraordinary relief in these circumstances. Accordingly, a writ of mandamus shall issue.

Id. at *7.

As to the question of a class action, the court granted a class of individuals “who (1) received an adverse decision under the Caregiver Program, (2) exhausted available review under the VHA, and (3) have not been afforded the right to appeal to the Board.”  Id. at *7.

The Court ultimately concluded: 

From the outset, VA has taken the position that Congress meant to insulate determinations under the Caregiver Program from review by the Board and, consequently, the judiciary. The key question presented here is whether a purported reference in section 1720G to VA's longstanding rule that a "medical determination" is not appealable is sufficient to overcome the broad reach of the Veterans' Judicial Review Act and the strong presumptions in favor of reviewability of agency action and against implicit repeals of statutes. We hold that it is not. The Court will therefore grant the petition for a writ of mandamus ordering the Secretary to begin notifying claimants of their right to appeal adverse Caregiver Program determinations to the Board of Veterans' Appeals (Board). We likewise conclude that it is appropriate to certify a class in this litigation.

Id. at *1.

The result is that over the coming months the VA and class counsel are charged with developing a remedy and way to reach out to class members.  It will take time, but those denied participation under the Caregiver Program and the ability to appeal that decision will now be able to challenge it.  It does not mean all denied will win, but at least the VA will have to provide an avenue to challenge the decision and give them their day in Court.  I find it hard to believe the VA ever took a position otherwise.

Judge Falvey wrote a dissent stating he would find Congress did exclude the Caregiver Program from decisions of the Board and thus review by the Veterans Court.  He also believed a simple precedential decision by the Court would operate as sufficiently as a class action.

Opinion by Judge Toth and joined by Judge Allen. Dissent by Judge Falvey.

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Gudinas: Effective Dates and What Does a Claim Encompass

Gudinas v. McDonough, Opinion Number 19-2640, was decided April 16, 2021 and involves an effective date for PTSD.

The Court well summarized the veteran’s argument as:

The main premise of the appellant's appeal is that once service connection has been established for a disability, "any claim for additional service[-]connected compensation in the form of an increased schedular rating, increased rating based on unemployability, or . . . secondary service[-]connected compensation, is part and parcel of the same claim stream." Appellant's Br. at 4. In making this argument, the appellant maintains that regardless of whether the claim is framed or presented as a claim for increased schedular rating, increased rating based on unemployability, or secondary service-connected compensation, "the purpose of all these claims is to increase the amount of compensation payable for the veteran's service[-]connected injury."

Id. at *4.

The Court noted:

At issue here is a related provision, which was applicable to pending claims and provided as follows: "New and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed, . . . will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period." 38 C.F.R. § 3.156(b) (effective to February 19, 2019).

Id. at *8.

The Court turned to the facts and whether a claim for secondary service connection constitutes a claim for increased compensation related to the already service connected primary condition and whether the secondary claim is therefore part and parcel to the same claim.  The Court rejected this argument.  Id. at *11-13. It found, “The law is clear that claims for secondary service connection are not claims for increased compensation and are not part and parcel of a claim for increased compensation for the primary condition.”  Id. at *16.

It further explained: 

Pursuant to Manzanares and Ross, a claim for secondary service connection is not part of every claim for service connection for the primary disability or for an increase in the primary disability, nor is it a claim for increased compensation. See Manzanares, 863 F.3d at 1379 (concluding that a claim for secondary service connection was not part of a pending claim for an increased rating of the primary condition and thus was not entitled to the same effective date as the primary condition); Ross, 21 Vet.App. at 532 (holding that an award of secondary service connection is not an award of increased compensation because it requires the incurrence of an additional disability).

Id. at *17.

Judge Greenberg wrote a dissent where he argued:

As the majority clearly and excellently explains, the appellant argues that the Federal Circuit's rulings in Bond and Beraud required the Board to assess, per 38 C.F.R. § 3.156(c)'s "new and material evidence" requirement, the evidence received in October 2015 as it related to the open and pending May 2014 claim for sleep apnea. See Appellant's Br. at 7-9; see also infra section II. The appellant next argues that once the Court made the threshold determination that § 3.156(c) applied, the Court should expand its holding in Rice by finding that the October 2015 submissions were "part and parcel" of the May 2014 claim, which impliedly encompassed a secondary-serviceconnection claim, increased disability rating for PTSD claim, and the matter of TDIU. See infra section II. See Appellant's Br. at 4-9; see also Oral Argument at 2:28–2:45, Gudinas v. Wlkie, U.S. Vet. App. No. 19-2640 (oral argument held Jan. 22, 2021), https://youtu.be/tNDRzKSlllg (last visited Mar. 18, 2021). Though the Secretary and majority found these arguments unavailing, I believe these arguments warranted a different outcome.

Id. at *21.

This case was a novel attempt to force the VA and Court to treat a claim for disability benefits to trigger a claim for all possible benefits.  However, it is clear the Court is not willing to go so far on behalf of veterans.

Opinion by Judge Pietsch and joined in by Judge Meredith.  A dissent by Judge Greenberg.

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Chavis: Ankylosis of the Spine and DeLuca

Chavis v. McDonough, Opinion Number 18-2928, was decided April 16, 2021 and involves the definition of ankylosis of the spine.

The veteran was service connected for a low back injury with a 20% rating.  Years later he sought an increased rating and complained of radiating pain in his legs.  The result was an increase to 40% based on limited forward flexion and eventually 10% ratings for each lower extremity due to radiculopathy.

The Board denied a higher rating for the lumbar back noting there was no ankylosis of the spine or IVDS treated by prescribed best rest.  However, the Board increased the radiculopathy ratings to 20% each.

The veteran argued to the Court that functional loss during flare-ups effectively rendered his spine ankylosised.

The Court noted the term ankylosis has been used by the VA since 1919 and the medical meaning is "[i]mmobility and consolidation of a joint due to disease, injury, or surgical procedure."  Id. at *7.   The Court then found “ankylosis is a diagnosis, it is worth reiterating that VA considers ankylosis to be an objective finding like limitation of motion, muscle spasm, guarding, and tenderness.”  Id. at *9.

The Court then pivoted to the Deluca factors and noted “a veteran may be entitled to a higher evaluation where there is evidence that his or her disability causes additional functional loss—i.e., "the inability . . . to perform the normal working movements of the body with normal excursion, strength, speed, coordination[,] and endurance"—including as due to pain. 38 C.F.R. § 4.40 (2020); see Mitchell v. Shinseki, 25 Vet.App. 32, 36-37 (2011); DeLuca v. Brown, 8 Vet.App. 202, 205-06 (1995). Additionally, a higher evaluation may also be awarded where there is a reduction of a joint's normal excursion of movement in different planes, including changes in the joint's range of movement, strength, fatigability, or coordination.”  Id. at *10.  It then noted: “Although in the past we have focused on application of the DeLuca factors in the context of limitation of motion, nothing in those regulations or our caselaw suggests 11 that those factors should not apply in the context of ankylosis, particularly as ankylosis is, in essence, a complete limitation of motion. See DORLAND'S at 94. This is consistent with VA's aim to "ensure that a claimant is properly compensated, but not overcompensated, for the actual level of impairment."”  Id. at *10-11.

As related to the facts of the case at hand, the Court ruled:

the Board committed an error of law when it determined that §§ 4.40 and 4.45 were not for application because Mr. Chavis was already receiving a 40% evaluation for his lumbar spine disability, the highest evaluation available based on limitation of motion. Therefore, the Board incorrectly foreclosed application of §§ 4.40 and 4.45 in evaluating Mr. Chavis's lumbar spine disability. Accordingly, the Court concludes that remand of the lumbar spine claim is warranted for readjudication.

Id. at *13-14.

As to the radicular rating, the veteran argued the Board’s “failure to articulate the standard it used to conclude that his disability was moderate in severity—as opposed to moderately severe, the next higher level of severity in the Rating Schedule—renders its decision arbitrary and capricious.”  Id. at *14-15.  This led to an unusual discussion about the Court’s jurisdiction of the radiculopathy issue as the veteran never filed a NOD as to that issue.

The Court concluded:

“that, given the nature and progression of Mr. Chavis's lumbar spine condition and VA's duty to sympathetically construe his broadly worded, pro se filings, the issues of increased evaluations for Mr. Chavis's bilateral lower extremity radiculopathy were part of his claim seeking a higher evaluation for the underlying lumbar spine disability.”

Id. at *16.   As to the merits of the argument, the Court agrees with the veteran and stated: “the Board failed to define the subjective terms contained in DC 8520. Without established benchmarks for those subjective terms, the Court is left without standards upon which to review the Board's decision.”  Id. at *19.

Judge Meredith concurred in part but wrote separately to argue that the Board and Court did not have jurisdiction over the issue of the bilateral radiculopathy rating.  She argued

This case is very helpful in both opening the door to higher back ratings based on DeLuca Factors.  The goal would be to argue they are so extreme as to result in ankylosis.  It also provides some support to argue radiculopathy is always contained or reasonably raised by lumbar disabilities.

Opinion by Chief Judge Bartley and joined in by Judge Falvey.  A concurrence was written by Judge Meredith.

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Rouse: Sedentary Work

Rouse v. McDonough, Case Number 19-5699, decided April 13, 2021 involves TDIU and the term “sedentary work”.

This involves a claim for TDIU.  The veteran had a back condition and a VA examiner found the back disability prevent substantial gainful employment in physical occupations, but noted it did not preclude him from “sedentary occupations.”

The veteran argued the Board should accept the definition of sedentary work found in Social Security Administration regulations: “Sedentary employment is 'defined as one which involves sitting,' as much as two-thirds of an 5 eight hour[] day, or a little more than five hours."”

The Court noted that in a prior decision (Withers), it determined that it could not provide a fixed definition of the term sedentary  work, but stated the Board must provide sufficient factual context to show what it meant by the term and how its findings related to the sue of the term in the veteran’s overall disability picture and work history.  Id. at *5.

The Court then turned to the case at hand and stated: “the Board in this case explained how it determined that the veteran was capable of certain types of work in light of his overall disability picture and prior educational and occupational history. Thus, the Board applied sufficient context to allow the Court to understand what it meant.”

The Court then explained:

Moreover, despite Mr. Rouse's assertions to the contrary, the Board considered his other physical limitations such as standing and bending over for prolonged periods of time but, given his full disability picture, it found no evidence that the veteran was precluded from obtaining substantially gainful employment with reasonable workplace accommodations. Although Mr. Rouse disagrees with the Board's determination, the Board satisfied the requirements articulated in Withers and fully explained its reasons for finding that the veteran was capable of work, so that TDIU wasn't warranted. See 30 Vet.App. at 148. The Board's factual determinations reflect a plausible reading of the record and the Court will not overturn it.

Id. at *6.

The Court also considered an argument that a recent decision (Ray) requires the VA to adopt the SSA’s specific definition of sedentary work.  Id. at *7.  The Court determined Ray did not upset Withers or define the term sedentary work.  Id. at *9.  The Court relied on the notion that while it can determine the meaning of terms, it should do so only to the extent necessary to its decision.

Decision by Judge Toth and joined in by Judges Pietsch and Laurer. 

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Bowling and Appling: Insanity as a Bar to Benefits, Class Actions, and Judicial Notice

Bowling v. McDonough, Opinion Number 18-5263 and Appling v. McDonough, Opinion Number 19-0602, were decided March 29, 2021 and were consolidated cases involving whether a character of discharge involving insanity was a bar to service connection.  Specifically, the veterans argued the definition of "insanity" in 38 C.F.R. § 3.354(a) is unconstitutional because it denies claimants due process of law.  “The Court holds that appellants have not met their burden to demonstrate that § 3.354(a) denies claimants due process or is constitutionally invalid.”  Id. at *2.

The Court noted:

The sole dispute in this case is the validity of 38 C.F.R. § 3.354(a). 5 Appellants argue that VA's definition of "insanity," as stated in § 3.354(a), "violates constitutional due process of law" because it "results in arbitrary and inconsistent outcomes," Bowling Br. at 4; see Reply Br. at 1 (asserting that § 3.354(a) "creates an unnecessary risk of arbitrary and inconsistent decision making"), and because it "fails to provide adequate notice" to claimants as to the evidence needed to support a finding of insanity. They assert that this is so because congressional intent in enacting the Servicemen's Readjustment Act of 1944, ch. 268 § 300, 58 Stat. 284, 286, now codified at 38 U.S.C. § 5303(b), the statute underlying § 3.354(a), was to implement "a dramatically liberalizing change" that would "severely limit the number of people denied benefits," yet large numbers of former servicemembers with psychiatric disorders are denied VA benefits based on VA's character of discharge determinations.

Id. at *10 (internal citations omitted).  The veteran’s argued the regulatory definition of insanity is narrower than intended by congress and that VA examiners lack a clear understanding of how to render an opinion regarding insanity due to a lack of training.  Id. at *10.  They also argue the regulation does not provide adequate notice to claimants as to how to support a claim of insanity.  Id. at *11.

The Court summarized the veteran’s argument as:

Ultimately, appellants contend that, because (1) the number of decisions granting access to VA benefits varies among individual adjudicators; (2) VA examiners lack access to training on how to apply VA's definition of "insanity"; and (3) the definition is so vague that claimants lack guidance as to what evidence is necessary to support a claim of insanity, VA's attempts to apply § 3.354(a) result in arbitrary and inconsistent outcomes. Bowling Br. at 4, 15, 19-21; Reply Br. at 9. And because "the essence of due process of law is that the government must act in a way that is reasonably predictable and consistent," Bowling Br. at 23, they assert that § 3.354(a) "does not provide due process of law.

Id. at *11.

The Court determined that “While appellants may be correct that § 3.354 is not a model of clarity, they have not demonstrated that VA is incapable of applying § 3.354(a) or that the regulation fails to provide fair notice of the factors by which insanity may be established, except by way of speculation based on the extrarecord opinion evidence that the Court may not consider.”  Id. at *16-*17.

The Court then rejected many constitutional arguments as undeveloped or relying on data that could not be considered by the Court, stating: “In summary, appellants have not met their burden to demonstrate that VA is incapable of applying § 3.354(a) fairly or that claimants lack adequate notice of how to succeed under the regulation.”  Id. at *19.

An important issue in this case was that the Court also considered taking judicial notice of evidence, specifically numerical data related to denials, and referenced FRE 201.  However, the Court dodged taking judicial notice of this data by saying:

Here, appellants ask that we take notice of evidence that, at least in some cases, includes numeric data or references historical events, which could potentially qualify as factual evidence that is not reasonably disputed.  But they do not rely on this evidence to establish facts not subject to reasonable dispute. Rather, they ask the Court to take judicial notice of the evidence and then draw inferences from it to support their arguments.  Although the evidence may cite certain facts or figures or report on past events, it does not show—in a manner that is not subject to reasonable dispute—that the number of servicemembers barred from VA benefits signifies that more are denied access to benefits than Congress intended, that the reason servicemembers are barred from VA benefits is because VA adjudicators are applying § 3.354(a) in an arbitrary and capricious manner, or that claimants receive inadequate notice of the evidence necessary to support their claims.

Id. at *16-*17 (internal citations omitted).

The Court also considered the Appellant’s motion for class certification and denied on that the class motion would be moot if they did not succeed on the merits.  However, the Court went further and alternatively argued that the class would not have met the Court’s necessity or superiority requirements.  The Court noted: “Given that any determination that a regulation is unconstitutional would be binding on VA, appellants must explain why a precedential decision would not be adequate in this instance to overcome the presumption against certifying a class.”  Id. at *7.

This case represents an early foray into class actions before the Court.  It will almost certainly be appealed to the Federal Circuit.  I find the Court’s judicial notice analysis to be interesting as it truly seems to be the fulcrum on which the case loses on the merits.  It seems that issue will likely appear in front of the Federal Circuit and offer some law on the application of FRE 201 by the Veterans Court.

Opinion by C.J. Bartley and joined by Judges Meredith and Falvey.

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Wolfe: Non VA Emergency Medical Care Reimbursement

Wolfe v. McDonough, Opinion Number 18-6091, was decided March 24, 2021 and involves whether the Court should appoint a special master to enforce the Court’s prior order in a class action matter involving non-VA facility emergency medical expenses. 

This matter involved certification of a class of veterans whose claims for reimbursement of emergency medical expenses incurred at non-VA facilities was denied in whole or in part on the ground they were part of the deductible or coinsurance for which a veteran was responsible.  A September 9, 2019 court order granted certification to the class and appointed class counsel.  This led to an appeal to the Federal Circuit and that appeal remains pending.

The Court noted since its order:

While at the time the Court was not aware of the activities taking place in the wake of our entry of judgment, the Secretary proceeded with readjudications and provided class counsel with the status reports we had directed. But the process was not a smooth one, or at least not one in which the parties could agree that matters were proceeding appropriately or well. We learned of that reality with the filing of the October 2020 Motion before us today, the Motion concerning the appointment of a special master. It suffices to say that class counsel believe that the Secretary is acting too slowly in terms of readjudications and has provided confusing and inaccurate status reports, hampering counsels' ability to ensure that VA is complying with the terms of the September 2019 order.

Id. at *5.  Due to the difficulties between the class counsel and the VA, the Court determined it had the authority and should appoint a special master to handle the ongoing dispute.  It noted:

we are in a difficult position in terms of assessing the parties' competing narratives concerning VA's compliance with our orders. The briefs present different, often starkly different, takes on the pace of readjudications as well as on the accuracy and utility of the Secretary's status reports. We attempted to address these issues by designating a member of the panel to hold a status conference with counsel and, after that, we directed the parties to work to narrow their dispute. Through no fault of any party, that process did not succeed either in result or in clarifying the state of affairs. We conclude that an independent assessment of the factual underpinnings of the parties' dispute would assist the Court greatly.

Id. at *5.  It also concluded by saying:

In sum, we have concluded that a special master would assist in two principal areas. First, a special master would assist in providing the Court with information – that is, the special master would provide an independent assessment of matters related to compliance with the Court's order. Second, a special master would serve as a facilitator of sorts. It may be that counsel simply can't work together more effectively than they have. Sometimes that happens, even when everyone acts in good faith. But it may be that communication can be improved through the presence of an independent third party. And if that is the case, it also may be that some of the issues between the parties can be resolved without formal judicial intervention.

Id. at *6.  The Court then appointed a retired judge from the Court of Appeals for the District of Columbia to serve as special master and tasked him with compiling a report to the Court in 120 days.

This is an astonishing order as it is the next concrete step toward using class actions to fundamentally address VA failings.  It shows a willingness of the Court to select a neutral to give it a full opinion and recommendation as to further action.  It also suggests that those impacted by Wolfe should be seeing a reimbursement for non-VA emergency care sooner than later.

Opinion by Judge Allen and joined by Judge Greenburg. Judge Falvey wrote a concurring opinion.

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