Lorio: DIC and SBP Payments

Lorio v. Collins, Case Number 22-1323, decided March 6, 2025 concerns whether the VA had authority to withhold DIC payments to prevent concurrent receipt of Survivor Benefit Plan (SBP) and DIC benefits. 

Appellant began receiving SBP in 1994, which is a subsidized insurance plan that provides annuity payments to survivors of military retirees, and in 2015 was granted DIC effective 1994.  At the time, a surviving spouse could not receive both SBP and DIC.  However, in 2008 Congress mandated certain notice requirements where recoupment of benefits is proposed subject to the DIC-SBP offset. 

“This Court previously addressed SBP in Roberts v. McDonald, where the Court reviewed a Board determination that VA had properly withheld a portion of retroactive DIC benefits based on receipt of SBP payments. 27 Vet.App. 108 (2014). The Board relied on 38 C.F.R. § 3.658 as the withholding authority but the Secretary conceded that this was incorrect and proffered that VA's DIC withholding authority stemmed from 38 U.S.C. § 5314, 38 C.F.R. §§ 1.911(a), 1.912a(a), and a 2010 memorandum of understanding (MOU)4 between VA and DOD. Roberts, 27 Vet.App. at 110. The Court remanded the appeal, concluding that reliance on inapplicable authority deprived Ms. Roberts of reasonable notice and fair process.” Id. at *3.

“As relevant here, the Court also concluded that section 5314 and §§ 1.911(a) and 1.912a did not appear to apply because they involved overpayment of VA benefits, not DOD benefits. Id. at 112-13. And to the extent that the Secretary relied on a DOD regulation to support VA's authority to withhold benefits, the Court indicated that "the regulation appears to contemplate written authorization from the SBP annuitant before there is a reduction in DIC to satisfy an SBP annuity overpayment." Id. at 113 (citing DOD Financial Management Regulation, vol. 7B, ch. 46, paras. 460402, 460701 (July 2011)). As will be discussed, Roberts has implications for the Court's resolution of Ms. Lorio's case.”  Id. at *3-4.

After being granted DIC, “Ms. Lorio through counsel appealed to the Board, challenging the RO's withholding of retroactive DIC benefits and arguing that VA did not properly provide notice of the SBP overpayment and DIC withholding. In January 2019, the Board remanded the withholding issue, agreeing that Ms. Lorio was not properly notified prior to VA's withholding of DIC benefits. The Board again remanded the issue in October 2019, finding that Ms. Lorio had not been provided proper notice of and an opportunity to dispute the withholding and because the RO failed to comply with prior Board remand directives.”  Id. at *5.

“In her principal brief, Ms. Lorio argued that the Board clearly erred in determining that VA had authority to withhold retroactive DIC benefits and forward those benefits to DOD.   Although she acknowledged that she's not entitled to receive both DIC and SBP benefits for the same period, she argued that, because a statute pertaining to DOD, 10 U.S.C. § 1450(c)(1), prohibits receipt of SBP (rather than DIC), the Secretary of the Army, not the VA Secretary, is responsible for recouping erroneously paid SBP benefits, id. at 11 (citing 10 U.S.C. §§ 1450(c), 1453(a)). Ms. Lorio further asserted that the legal authority identified by the Board—section 5301 of title 38, the Appropriations Clause, and the VA-DOD MOU—did not provide VA with authority to withhold DIC benefits. Ms. Lorio argued that the proper remedy was remand for the Board to provide section 1450(c)(3)-compliant notice to ensure proper accounting of the SBP overpayment, id. at 14-22, noting that the current accounting didn't address whether SBP premium refunds were reimbursed or the varying tax consequences of SBP and DIC payments.”  Id. at *6.

Ultimately, the Court remanded.  It explained:

“In sum, the Court concludes that the Board failed to provide Ms. Lorio adequate notice and fair process prior to rendering its November 2021 decision, and that the matter must be remanded. Upon readjudication, the Board must provide legal authority for the withholding and process undertaken in Ms. Lorio's case, consider in the first instance evidence secured by the Secretary during this appeal, consisting of Ms. Lorio's April 1994 SBP application and Ms. Lauver's declaration, and the parties' competing arguments regarding the import of that evidence. The Board must also independently review Ms. Lauver's accounting with specific attention to any discrepancies identified and address the parties' competing arguments regarding whether the accounting should address the differing tax consequences of SBP and DIC payments.”  Id. at *13.

Decision by Judges Bartley, Meredith, and Jaquith.

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Shorette: The VA Fiduciary Program and Sanctions

Shorette v. McDonough, Case Number 23-7775, resulted in a February 6, 2025 order dismissing the motion for extraordinary relief. 

Without fully detailing the past history of the case, the petitioner was the spouse of a veteran who had served as her husband’s VA fiduciary and was removed by the VA.  From 2008 until 2018 she had served and allocated approximately $3,000 per month toward family expenses for the veteran’s dependents.  However, she was removed after a medical record suggested she was misusing the veteran’s funds.  When a successor fiduciary was appointed, no benefits were allocated for his dependents and family expenses.  Ultimately, the VA found there had been no misuse and funds, but still did not restore the wife as the fiduciary and ignored her appeal.

Ultimately a 2024 order granted much of what the spouse wanted, but this order finalized the rest of the case.  The petitioner had asked for sanctions against the Secretary.  The Court did not sanction the Secretary stating:

“Upon consideration of the foregoing, the Court will exercise restraint and will not impose sanctions. In that regard, although the Secretary's August 8, 2024, response and the P&F analyst's declaration could have been—indeed, should have been—clearer, the Court accepts counsel's representation, as an officer of the Court, that VA did not intentionally provide false information to the Court. Further, given counsel's explanations that VA viewed that information as nuanced and proactively attempted to clarify those nuances at oral argument, the Court concludes that it is not clear and convincing that VA failed to comply with an order of the Court.”

Id. at *6-7.

Judge Bartley wrote a concurrence stating:

“I agree, although reluctantly, that sanctions are not warranted in this matter. I write separately to emphasize that VA's actions regarding Ms. Shorette have been inconsistent with its mission to care for veterans and their families. It goes without saying that VA doesn't err when it investigates misuse-of-funds allegations, but VA went far beyond that here. It refused to reinstate a spouse-fiduciary once misuse allegations were determined to be unfounded and for many years deprived Ms. Shorette of benefit payments that it acknowledges she was entitled to receive. Based on the records before the Court, it is understandable why Ms. Shorette would conclude that VA's actions were punitive and retaliatory in nature—intent on punishing her for challenging their misuse-of-funds determination, for demonstrating that she had not misused funds, for proving that she had appealed her removal as a spouse-fiduciary and the subsequent appointment of a paid fiduciary, for proving that she was entitled to reinstatement as spouse-fiduciary, and for achieving at least some success in petitioning this Court. In conclusion, it is clear that VA's Veterans Benefits Administration Pension and Fiduciary Service requires substantially more thorough oversight to ensure, among other things, that it is not wasting government funds retaliating against the veterans and family members it is sworn to protect and assist.”

Id. at *7.

While the entire VA claims process can be byzantine, the VA’s fiduciary program makes the rest of the VA look like quick and accurate justice.  The fiduciary program is simply the worst process I’ve ever heard of at the VA.  It should reiterate that any veteran who can, should avoid it if possible.  I am also concerned that the Secretary would not level sanctions in this case, if not here—when.

Per Curiam decision by Judges Bartley, Meredith and Laurer.

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Ley and the Doctrine of Equitable Estoppel

Ley v. McDonough, Case Number 23-1547, decided January 2, 2025 concerns whether the doctrine of equitable estoppel or constitutional principles can lead to an earlier effective date than that provided by 38 USC 5110.

The veteran was granted service connection for chronic lymphocytic leukemia (CLL) and given an effective date based on the veteran’s application for benefits with a 1 year look back pursuant to 38 CFR 3.114, which led to an effective date of January 29, 2015.

The Court then summarized the veteran’s position as: “Appellant does not contest the Board's analysis of the effective date to which he is entitled under section 5110. Instead, appellant raises two nonstatutory bases on which he maintains he is entitled to an effective date before January 29, 2015, for the award of service connection for CLL. One of appellant's arguments is that VA is equitably estopped from enforcing section 5110's effective date limits because the Agency's actions, in particular the alleged withholding of information from him about CLL, prevented him from filing a claim any earlier than he did. Appellant's other argument is that section 5110's effective date limitations are unconstitutional as applied to his situation because VA actively interfered with his right of access to the benefits system when Agency medical personnel failed to properly inform him of a CLL diagnosis before January 2016.”  Id. at *2.

The Court then determined: “Neither of appellant's contentions are persuasive. First, appellant's equitable estoppel argument is directly foreclosed under Taylor, in which a majority of the en banc Federal Circuit unambiguously held that "equitable estoppel is not available to override the claim-filing effectivedate limits of [section] 5110." Even if we agreed with appellant as a general matter about equitable estoppel, we are bound by the Federal Circuit's majority opinion in Taylor. Second, as we explain below, Taylor does not establish a binding rule about as-applied constitutional challenges under section 5110. However, we independently reach the same conclusion as the Taylor plurality did—that section 5110 is potentially subject to an as-applied constitutional challenge. Nevertheless, appellant can't prevail because his right-of-access claim falls well short of the kind of extraordinarily rare circumstance that could justify a court ordering the assignment of an effective date outside the parameters Congress set forth in section 5110. Because both of appellant's grounds for circumventing section 5110 are unsuccessful, and he has abandoned any other grounds for challenging the Board decision on appeal, we will affirm the Board's December 8, 2022, decision finding that appellant is not entitled to an effective date before January 29, 2015, for service connection for CLL.”  Id. at *2-3.

Judge Jaquith wrote a powerful dissent in which he agreed with the Court’s analysis of Taylor and 38 USC 5110, but determined “I disagree with the majority's conclusion that section 5110 is not unconstitutional as applied to Mr. Ley, so I respectfully dissent. In my view, a VA doctor's decision to deceive a patient about the nature and extent of his disability is (and should be) the kind of extraordinarily rare circumstance that justifies ordering the assignment of an effective date outside the parameters of section 5110.”  Id. at *22-23.

Judge Jaquith wrote: “ The majority embraces the Board's characterization of the veteran's allegation of the doctor's conduct as a "misdiagnosis" and acknowledges that the veteran also argued that the doctor deliberately withheld information and failed to properly inform him; but the majority asserts that its analysis and conclusion are the same under each formulation.157 In my view, if the hematologist "knew appellant should be diagnosed with CLL and chose not to convey that diagnosis to him,"158 that hematologist—a VA doctor—foreclosed VA's use of section 5110 as a sword to cut off, from the effective date for his claim, the years until the veteran was told the truth (by a forthcoming VA doctor) about the serious nature of his disability.”  Id. at *23.

This is an odd case built on exceptional facts.  Still, I hope it is appealed to the Federal Circuit and they find the extraordinarily rare circumstances they discussed in Taylor, includes what happened here.

Decision by Chief Judge Allen and joined by Judge Falvey, dissent by the Judge Jaquith.

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Sellers and the Presumption of Regularity

Sellers v. McDonough, Case Number 23-4114, decided December 20, 2024 involves whether a notice of appeal filed in July 2023 from a June 1996 Board decision was untimely. 

The VA filed a motion to dismiss the appeal as untimely.  The veteran noted he had not received the notice of the June 1996 Board decision until July 2023 when his current counsel reviewed the record.

The question was whether the VA had fulfilled its notice obligations, specifically the duty to notify the veteran of the Board decision when it had actual knowledge the address the Board used was not his current address even though it was the address on file with the VA at the time. 

The Court held: “Our decision today is a narrow one. As we will explain in more detail below, we assume that Davis controls the situation we face and, that under Davis, VA only has an obligation to search for additional and plausible addresses that existed at the time of the Board's decision. So for the purposes of this decision, we assume–without deciding–that the Board satisfied its notice obligations under Davis at the time it mailed its June 1996 decision because there were no other plausible addresses in the file beyond the address the Board used to mail the decision to appellant. That does not end the matter, however, because we also conclude that under the unique facts of this case, the Board bound itself to greater notice obligations than Davis required. Specifically, the Board directed VA to continue to search for addresses that would afford appellant actual notice of the June 1996 decision. And because VA failed to satisfy those greater notice obligations, the presumption of regularity does not resolve the question about whether this appeal is timely. Instead, the relevant legal principle is that an agency may elect to provide a claimant more process than the law requires. The Board did so in 1996, and VA did not comply with those additional procedural protections. So on that narrow basis, we will deny the Secretary's motion to dismiss appellant's appeal.”  Id. at *2.

The case offers a good summary of the presumption of regularity and VA’s notice obligations. 

Order by Chief Judge Allen as well as Judges Pietsch and Bartley. 

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Heller: Advancing on the Docket Before the Board, Suicidal Ideation, and a Writ of Mandamus

Heller v. McDonough, Case Number 24-3504, decided November 21, 2024 concerns a request for a writ of mandamus to compel the Board to grant a motion to advance on the docket.

A case before the Board can take approximately 3 years for a decision.  However, a veteran can seek to be advanced on the docket if an appellant is seriously ill or is under severe financial hardship.  In this case, the veteran sought to have his case advanced on the docket arguing his suicidal ideation constituted serious illness.  The Board denied the request.

As a result, his attorney filed a writ of mandamus to the Court. Initially, the Court determined a denial of a motion to advance on the docket is a not an appealable issue.  However, a writ of mandamus operates as a vehicle to request the Court to compel the VA to do something.  Specifically,

“with the All Writs Act (AWA), Congress also empowered courts (including this Court) to issue writs in aid of their statutory jurisdiction. See 28 U.S.C. § 1651(a). In exercising this authority, we must be mindful that it is not a separate source of jurisdiction. Instead, we can use it to fill gaps in our appellate jurisdiction when, absent a writ, our prospective jurisdiction would be frustrated. See Love v. McDonough, 35 Vet.App. 336, 342 (2022) (per curiam order), aff'd, 100 F.4th 1388 (Fed. Cir. 2024); see also Roche v. Evaporated Milk Ass'n, 319 U.S. 21, 26 (1943) (noting that the "function of mandamus in aid of appellate jurisdiction is to remove obstacles to appeal"). What this means is that we can't use the AWA to independently decide legal disputes that don't facilitate a Board decision. See Love, 35 Vet.App. at 342. But we can use our AWA authority to remedy unreasonable delay.”

Id. at *6.

The Court then noted:

“Before we may issue a writ, we need to make sure three conditions are met: (1) a petitioner must show a lack of adequate alternative means to obtain the desired relief, thus ensuring that the writ is not used to replace the appeals process; (2) a petitioner must show a clear and indisputable right to the writ; and (3) the Court must be convinced, given the circumstances, that issuing the writ is warranted. See Cheney v. U.S. Dist. Ct., 542 U.S. 367, 380-81 (2004). And in the delay Case: 24-3504 Page: 6 of 12 Filed: 11/21/2024 7 context, our consideration is also informed by the six "TRAC factors." Martin, 891 F.3d at 1344 (citing Telecomms. Rsch. & Action Ctr. v. FCC (TRAC), 750 F.2d 70, 79 (D.C. Cir. 1984)).”

Id. at *6-7.

The Court then assessed the TRAC factors and determined:

“Troubled by suicidal ideation and financial difficulties, Mr. Heller asked the Board four times to advance his case on the docket; Congress said the Board could do so when a veteran has a serious illness or financial hardship. Each time, he was met with conclusory denials. With no likelihood of success at the Board, and an AOD appeal off the table, we find that Mr. Heller has shown he lacks adequate alternate means to have his case decided more quickly. See Cheney, 542 U.S. at 380-81. And because Mr. Heller has multiple records showing severe suicidal ideation, at times with a plan or an intent and an assessment of moderate to high risk of suicide, in addition to unemployment and a long period with no VA action on his appeal, we conclude that the TRAC factors clearly favor Mr. Heller and that he has shown a clear and indisputable right to a writ. See id. Finally, although mandamus is a drastic remedy, the Court is convinced that issuing a writ is warranted here. Thus, the Court will grant Mr. Heller's petition and order the Board to issue a decision within 30 days of the date of this order.”

 

Id. at *11.

This is an important case for two reasons.  First, it clarifies that a denial of a motion to advance on the docket is not an appealable issues.  Second, it offers a pathway to remedy such denial.  However, I suspect the Court will be loath to expand the impact of this case and issue more writs.  In short, this was an exceptional case driven by significant facts.  My only hope is that the Board is now more cognizant of the potential of suicidal ideation constituting serious illness.

Per Curiam decision by Judges Meredith, Toth, and Falvey.

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Spigner: New Evidence Time Lines in Appeals to the Board

Spigner v. McDonough, Case Number 22-2636, decided November 7, 2024 concerns a particular rule stating the Board cannot consider new evidence submitted prior to the hearing.

The AMA adding layers of complication to an already complicated system.  The oddest one might be that when a veteran appeals to the Board and requests a hearing, the Board will only consider new evidence submitted at the hearing or within 90 days after the hearing.  This is odd because many times a veteran will submit a memorandum with their notice of disagreement or before the hearing.  Any new evidence submitted at that time cannot be considered by the Board.  However, if that new evidence is submitted within 90 days of the hearing, the Board can consider it.

In this case, new evidence was submitted but the Board did not consider it because it was not submitted within the 90 days after the hearing.  The odd thing about this case was that the Board had rescheduled a hearing on its own accord.  The new evidence was submitted after and within 90 days of the originally scheduled hearing. 

The Court remanded the case arguing under this odd set of facts the Board erred in not considering the new evidence.  “The Court holds that because the Board sua sponte rescheduled the August 2021 hearing, that is, the Board rescheduled the hearing without a request from the appellant, and because the Board's rescheduling is not consistent with withdrawal referred to in 38 C.F.R. § 20.704(d), the rescheduling here was not "subject to" § 20.704(d). Therefore, § 20.302(c) controls as to the evidentiary record before the Board; and because § 20.302(c) provides that where a hearing "is not rescheduled subject to § 20.704(d)," the Board decision should have been based on evidence submitted by the appellant or his or her representative within 90 days following the date of the scheduled hearing. The Court concludes that in the Board's March 2022 decision, the Board erred by refusing to consider the appellant's September 2021 evidentiary submission. Accordingly, the Court will set aside that Board decision and remand the matters for proceedings consistent with this decision.”

This is an odd case on an unusual set of facts.  While illustrating a particularity of the law, I am not sure that it has much other import.

Decision by Judge Greenberg and jointed by Judges Bartley and Jaquith.

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Shorette: The VA's Stinking Fiduciary Process

Shorette v. McDonough, Case Number 23-7775, decided September 20, 2024 delves into the abuses of the VA Fiduciary Program.

The petitioner was the spouse of a veteran who had served as her husband’s VA fiduciary and was removed by the VA.  From 2008 until 2018 she had served and allocated approximately $3,000 per month toward family expenses for the veteran’s dependents.  However, she was removed after a medical record suggested she was misusing the veteran’s funds.  When a successor fiduciary was appointed, no benefits were allocated for his dependents and family expenses.

Three years later, in 2021, the VA determined their had been no misuse of funds and did not restore the wife as the fiduciary and ignored her appeal, as guardian under state court order, of VA’s appointment of a paid fiduciary.  Finally, the VA’s inaction resulted in a request that the Court order the VA to o (1) issue a decision regarding her entitlement to be reinstated as representative payee for Mr. Shorette, (2) address her complaints that his then-current fiduciary was violating a July 2010 fiduciary agreement in which VA approved monthly expenses to support the veteran's family, and (3) release the withheld funds.  Id. at *1.

After an oral argument, the Court ordered the VA to process the NOD.  Additionally, the petitioner tried to resolve the familial expenses issue with the VA.  Finally, in December 2023, the petitioner filed another petition because the VA ignored her requires for the VA’s fiduciary file, still had not process her 2018 NOD, and had not address the familial expenses issue.  As to the familial expenses issue, the VA argued that the paid fiduciary had all control. 

Next, the VA found the surviving spouse and veteran were estranged because they did not live together and thus could not be treated as a spouse fiduciary, which is less cumbersome.  In fact, they did not live together because the veteran was a nursing home.

At the same time the VA in response to one argument stated “the fiduciary must provide evidence that reimbursement is warranted before VA will authorize a reimbursement of funds.”

The Court then noted that at oral argument

“VA admittedly erred in 2018 when it determined that Mrs. Shorette misused the veteran's funds, and the undisputed facts reflect that VA compounded that error over the next 6 years by ignoring Mrs. Shorette's complaints and failing to ensure that the prior paid fiduciary was fulfilling his duties to assess the welfare and overall financial situation of the veteran's dependents. In that regard, counsel for the Secretary could not offer any reason why the fiduciary budget for familial expenses was reduced from roughly $3,200 per month to zero, other than an unfounded allegation that the petitioner refused to comply with a field examination, and counsel was unable or unwilling to say that VA will not investigate Mrs. Shorette if she reimbursed herself with those funds that would not have accumulated in the veteran's managed account but for VA's or the prior fiduciary's errors.”

Id. at *7.

The Court ordered the Secretary to file a memorandum explaining why the VA will not make a preemptive decision that it will not initiate a misuse determination or seek to remove the spouse as fiduciary if she reimburses herself the amount of familial expenses that was in the initial budget but was never paid.

While the entire VA claims process can be byzantine, the VA’s fiduciary program makes the rest of the VA look like quick and accurate justice.  The fiduciary program is simply the worst process I’ve ever heard of at the VA.  It should reiterate that any veteran who can, should avoid it if possible.  I am frankly shocked that the Veteran’s Court did not go further in its order and direct more forceful action.

Per Curiam decision by Chief Judge Bartley, Meredith and Laurer.

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Cooper: Appealing a Board Remand?

Cooper v. McDonough, Case Number 23-5963, decided September 18, 2024 is an opinion by the Court affirming prior case law stating a Board remand cannot be appealed to the Court.

The veteran’s claims were first remanded by the Court and then the Board so that the agency of original jurisdiction could obtain an addendum opinion from a medical provider. 

While case law made clear that typically remands could not be appealed, the veteran argued that the passage of the AMA dramatically changed the legal landscape and allowed for remands to be appealed. He essentially argued because under the AMA system RO decisions that were the result of a Board remand are not automatically returned to the Board, the Board decision itself represents a final decision, which confers jurisdiction onto the Court.

The Court determined that “[h]owever extensive the changes to VA's claims processing regime effectuated by the AMA may be, none directly implicates the factors governing how this Court assesses its jurisdiction, namely: (1) whether a ruling constitutes a decision per section 7252; (2) whether it is "final" per section 7266; and (3) whether it is adverse. Hence, although Mr. Cooper contends that we need to reframe our inquiry to assess finality solely through the veteran's right to "one review on appeal to the Secretary" under section 7104, it's not clear how even the most sweeping changes to VA's claims processing regime could transform the nature of an administrative remand order in such manner as to render it capable of satisfying those three requirements.”  Id. at *7.

The Court acknowledged a concern about excessive or unnecessary Board remands and stated “if a claimant believes that VA is unlawfully avoiding or unreasonably delaying issuing a final decision on a claim, the appropriate avenue for relief is to file a petition for extraordinary relief under the All Writs Act.”  Id. at *8.

This was a novel try to use the AMA to argue a larger change.  It appears the case will be appealed to the Federal Circuit.

Decision by Judge Toth and joined by Greenberg and Laurer.

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Laska: SMC(t), plain meaning, and the VA's attempt to impose a higher burden on veterans

Laska v. McDonough, Case Number 22-1018, decided September 6, 2024 concerned whether a veteran should receive SMC(t) for a traumatic brain injury and the VA’s attempt to read into the regulation a requirement for regular aid and attendance.  The Court rejected the VA’s attempt to make SMC(t) harder to get than was outlined in the statute passed by Congress.

Initially, special monthly compensation provide for compensation where service connected disabilities result in additional hardships above and beyond those contemplated by the VA’s rating schedule.  The veteran’s attorney provided both a PO box and street address on the appointment form.  The Board denied an appeal in a September 2021 decision and listed only the physical address and not the P.O. box.  The veteran appointed a VSO in January 2022 for another claim, which caused the attorney to lose access to the electronic claims file.  The attorney’s access was restored in September 2023 when the veteran appointed him again and counsel filed the NOA in December 2023. 

 The statute governing SMC(t) states it should be granted “when a veteran (1) is in need of regular aid and attendance for service-connected residuals of TBI; (2) is not eligible for compensation under subsection (r)(2); and (3) in the absence of such "regular aid and attendance," would require hospitalization, nursing home care, or other residential institutional care. 38 U.S.C. § 1114(t).”  Id. at *5. 

The regulation promulgated by the VA states that aa higher level of care is needed for "personal health-care services provided on a daily basis in the veteran's home by a person who is licensed to provide such services under the regular supervision of a licensed healthcare professional." 

 The veteran argued the VA erred in denying the claim for SMC(t) for a lack of a higher level of care because the plain language of the statute does not require it and the VA’s regulation exceeds the statute.  The VA argued that the statute was not clear on its face and the regulation was a valid definition of the level of care required for SMC(t).

 The Court was faced with statutory interpretation and determined:

 “Section 1114, as a whole, can logically be read to give the same meaning to "regular aid and attendance" in both subsection (l) and the first requirement of subsection (t), as modified with the third requirement of needing "hospitalization, nursing home care, or other residential institutional care" in the absence of regular aid and attendance. Unlike the Secretary's strained interpretation of the text and structure of section 1114(t), this reading comports with the plain language of subsection (t) and harmonizes that provision with the rest of the statute.”

Id. at *11.

The Court also stated that while the plain language was clear, the legislative history also supported their conclusion.  They noted “According to the Senate Committee, veterans with TBI not only need assistance with tasks they can no longer perform, but also someone to facilitate tasks they cannot keep up with. Id. And the Senate Committee made clear that such assistance can be provided by a family member rather than a licensed health-care professional.”  Id. at *12.  The also noted: “nothing in section 1114(t)'s legislative history reflects that Congress intended to impose a higher-level care requirement for SMC(t). To the contrary, that legislative history confirms our plain language and structural analysis that the level of care required for SMC(t) is the need for regular aid and attendance under (r)(1).”  Id

The Court concluded: “section 1114(t) specifies that the requisite level of care for entitlement to SMC(t) is the need for regular aid and attendance and the Secretary's implementing regulation, § 3.352(b)(2), requires the higher-level care described in 1114(r)(2). Thus, the regulation exceeds its authorizing statute and must be set aside as invalid.”

This is an important decision for anyone that has ever been denied a SMC(t) rating and should open the door to greater assistance.  It also demonstrates the VA’s willingness to impose higher burdens than those imposed by Congress.

Decision by Chief Judge Bartley and joined in by Judges Falvey and Laurer. 

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Burgan: Presumption of Regularity in Mailinbg

Burgan v. McDonough, Case Number 23-7869, decided August 23, 2024 is a decision by the Veterans Court regarding the presumption of regularity related to the filing of a notice of appeal.

The veteran’s attorney provided both a PO box and street address on the appointment form.  The Board denied an appeal in a September 2021 decision and listed only the physical address and not the P.O. box.  The veteran appointed a VSO in January 2022 for another claim, which caused the attorney to lose access to the electronic claims file.  The attorney’s access was restored in September 2023 when the veteran appointed him again and counsel filed the NOA in December 2023. 

As to whether the veteran had rebutted the presumption, the Court noted “an error in addressing the mail is not alone sufficient to rebut the presumption; rather the error must impact delivery.” Id. at *8.  Reviewing the Domestic Mail Manual guidance on dual addresses, i.e., those containing both a P.O. box and a street address, the Court noted no requirement that both must be provided for the mail to be deliverable. Rather, this guidance states that the priority is for the USPS to deliver the mail to the address directly above the city and the state in the address, and “the party addressing the mail must therefore use the ZIP Code for whichever location is listed immediately about the city and state.” Id. at *9. The Court found that, since appellant provided no authority for the position that omitting the P.O. box or ZIP code for the P.O. box affected delivery and the Board addressed it to his proper street address and ZIP code, he did not meet the burden of demonstrating the omission was consequential to delivery sufficient to rebut the presumption.  Ultimately, the Court found the NOA was untimely and granted the Secretary’s motion to dismiss.

Decision by Judge Pietsch, Greenberg and Meredith. 

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Rorie: Judicial Deference post-Loper Bright

Rorie v. McDonough, Case Number 22-5377, decided August 16, 2024 is a decision by the Veterans Court regarding judicial deference and stare decisis.

The case involves an assertion of an earlier effective date.  There were two arguments.  One, pre-March 2015, a medical professional examination report served as an informal claim pursuant to 38 C.F.R. 3.157(b) and Pacheco v. Gibson.  However, Pacheco also prevented the claim and that was the focus of the Court—how the U.S. Supreme Court’s decision in Kisor v. Wilkie impacted Pacheco.  The veteran argued: “because the Court in Pacheco employed a preKisor deference analysis under Auer to interpret § 3.157(b), we must reevaluate our interpretation of § 3.157(b) using a Kisor-compliant deference analysis.”  Id. at *2.

The Court held that Kisor does not require the Court to revisit Pacheco.  It also noted:

“the Supreme Court overruled the Chevron doctrine that had outlined a framework for judicial deference to administrative agency's views of ambiguous statutes. Significantly, the Supreme Court made clear that its decision did not upset earlier decisions that had relied on the Chevron doctrine. In other words, principles of stare decisis generally required courts to adhere to such earlier decisions that had been rendered under the then-required Chevron framework. We see no principled reason that the same rule of stare decisis does not hold sway in the context of the Supreme Court's change from Auer to Kisor deference in terms of ambiguous regulations. And, as we will explain in detail, to the extent this Court's recent decision in LaBruzza v. McDonough proceeded along a different path, we conclude that it is irreconcilable with the logic of Loper Bright Enterprises v. Raimondo. So, we conclude that we remain bound by Pacheco.”

Id. at *3.

This was an innovative attempt to apply new Supreme Court case law to achieve a more pro-veteran friendly framework of established case law.  However, the Court clearly wants to avoid re-litigating what it perceives to be finally litigated decisions.

Decision by Judge Allen and joined in by Judge Favley with a concurrence by Judge Toth. 

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Phillips: Narrowing of TDIU Effective Dates post-AMA

Phillips v. McDonough, Case Number 22-2575, decided July 30, 2024 is a decision by the Veterans Court regarding the impact of the AMA on Rice and TDIU.

The Court ordered a panel review to “to address how this Court's existing precedent about TDIU—chiefly Rice v. Shinseki, 22 Vet.App. 447, 452 (2009)— interacts with the claims system in our new Veterans Appeals Improvement and Modernization Act (AMA) world.”  Id. at *1-2.

The Court determined “that Rice remains viable in AMA but that the different choices created by AMA for seeking review of adverse decisions can make dealing with TDIU more complicated.”  Id. at *2.  And, “reaffirm the central holding of Rice: TDIU is not a separate claim, it is a rating option available whenever a claimant attempts to get service connection or a higher rating from VA and the record includes evidence of unemployability.”  Id. at *2.

The Court explained: “TDIU can come up basically any time VA is rating a disability, VA may need to address it as part of separate claim streams when it is rating different disabilities. Put another way, TDIU is not its own separate benefit that VA can grant or deny unmoored from the underlying service-connection claim or rating. See Harper, 30 Vet.App. at 360; see also Rice, 22 Vet.App. at 454. Instead, TDIU is part of that underlying claim—as an option for a potential rating—and the eventual effective date depends on the specific claim VA is then adjudicating.”  Id. at *9.

However, the Court foreclosed the veterans argument for an earlier effective date stating: “What Mr. Phillips appears to want is for TDIU to be its own unique "super claim." Not a standalone claim when raising the issue, but its own solo claim when figuring out effective dates. The problem is, that's simply not what TDIU is. TDIU is a potential rating for the veteran's disability. If you don't qualify for a 100% rating but you can't work, TDIU may be an option. Thus, the Board needed to, and did, consider TDIU when it rated Mr. Phillips's disabilities. But when the case got to the Board, there was no separate standalone TDIU claim with its own effective date going back to 2002.”  Id. at *11.

The court admitted TDIU was reasonably raised as part of his 2002, 2009 and 2021, but then states “That Mr. Phillips put TDIU in play as part of his other claims but did not receive a decision resolving TDIU for all of them at the same time is a product of the choices built into the AMA system. This choice is a feature, not a bug, of the system. "Central to the AMA's many reforms, claimants may now choose from three procedural lanes to obtain review of their claim within one year of the initial decision (in contrast to the legacy system's single pathway for appeal to the Board)."  Id. at *11.  The Court admitted under the legacy system that TDIU likely would have been in play as of 2002.  Id.  But, then stated: “In the end, that is not the case we have here. We're dealing with the AMA world. In this world, Mr. Phillips's claims stemmed from his April 2021 application. By his own choice, the only disability he brought to the Board was his request for a higher rating for PTSD before April 2021 when he filed an NOD seeking to appeal his PTSD rating effective date and TDIU but not his skin rating. The potential effective date for that increased rating was controlled by his April 2021 application. And one option for that higher rating—and it's the option he ultimately won with— was TDIU. Thus, the potential effective date for TDIU was also controlled by his April 2021 claim.”  Id. at *13.

Chief Judge Bartley wrote a well-reasoned and impassioned dissent.  She noting “the majority's take on TDIU post-AMA would require veterans to appeal rating decisions they actually agree with to protect their earliest effective date for TDIU, clogging an already overstretched VA claims process and harming veterans who may not know to file protective appeals. Therefore, I respectfully dissent.”  Id. at *13.  She essentially argued the majority ignored the intent of Rice, which “that an assertion of unemployability within 1 year of a decision that grants service connection and assigns an initial evaluation abates that decision's finality, potentially affording veterans entitlement to TDIU as part of their initial award of benefits.  In other words, a veteran's potential earliest effective date for TDIU was the date of the claim for service connection, id. at 453, and not, as VA believed prior to Rice, limited to 1 year before the veteran submitted the TDIU application. The Court's holding was to expand VA's prior understanding of TDIU as only being raised when the formal TDIU application was filed—and it was corrective of VA's then-prevalent view that TDIU was unable to be raised by the evidence of record when a veteran filed a claim for service connection.”  Id. at *14.

She then states the majority “turns TDIU into an ordinary individual increased evaluation claim and fails to reckon with TDIU's unique characteristics under the governing regulation, 38 C.F.R. § 4.16. In so doing, the majority limits a claimant’s potential recovery and sanctions a claim prosecution view for TDIU that gives outsize impact to a claimant's inexpert medical and vocational decision about which service-connected disability or disabilities are causing or contributing to unemployability, which evaluation decision to appeal, and which lane to choose.”  Id. at *14-15.  She explained: “But let's be clear: this result is contrary to the Court's intent in Rice and to Congressional intent in creating the AMA system to streamline an already burdened system while maintaining a paternalistic process designed to maximize veterans benefits.”  Id. at *15.  She argues: “the majority does not explain how or why AMA, a process and procedure change, would result in such dramatic substantive entitlement changes when there has been no change to the entitlement requirements of 38 C.F.R. § 4.16, the TDIU regulation.”  Id. She then notes: “This precedent will apply to unemployable veterans who had no warning that they should have appealed each and every initial and increased evaluation decision for every one of their service-connected conditions, irrespective of their agreement with those decisions. As noted earlier, these veterans most likely assumed that since § 4.16 remained untouched by the AMA, its process and procedure changes would not affect TDIU entitlement. Unfortunately, this decision tells these veterans that they were wrong. Five years after AMA's effective date veterans find out, with the issuance of this decision, that the rules of engagement regarding TDIU and TDIU effective dates have changed.”  Id. at *16.

This case is a dramatic sea change in the law that will narrow the availability of TDIU under the AMA system without warning to veterans or advocates.  It will create more appeals and more burden on the VA and complication for advocates who have to tease out claim streams and maintain due to the possibility of TDIU.  I can only hope the advocates who took this case are willing to invest in appealing it to the Federal Circuit.

Decision by Judge Falvey and joined in by Judge Allen.  Dissent by Chief Judge Bartley.  

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Banschbach: Separate Ratings for Paralysis, neuritis, and neuralgia.

Banschbach v. McDonough, Case Number 22-6609, decided July 26, 2024 is a decision by the Veterans Court regarding different and separate nerve ratings.

The veteran is service connected for paralysis of the ilio-inguinal nerve under diagnostic code 8530 as a residual of his in-service hernia repair.  The appeal concerned the Board’s failure to address reasonably raised issues of separate ratings for neuritis of his left ilio-inguinal nerve under diagnostic code 8630 and for neuralgia of his left ilio-inguinal nerve under diagnostic code 8730.  The VA argued the paralysis rating encompassed neuritis and neuralgia symptoms, so separate ratings for all three conditions are prohibited by the rule against pyramiding.

The Court determined “the relevant diagnostic codes should not be read to prohibit separate ratings for paralysis, neuralgia, and neuritis,” and determined as a result that “it is premature to consider what role, if any, the rule against pyramiding may play in this case” because  the record raised the issue.  Id. at *2.

The Court found it “discern[ed] nothing in the rating schedule or related regulations that prohibits consideration of separate ratings for neuritis or neuralgia of a peripheral nerve when a veteran is rated for paralysis of the same nerve under § 4.124a. If VA wishes that to be the case, it has regulatory power at its disposal to enact such a change.”  Id. at *8.

This case has important implications and raises the possibility of multiple ratings for paralysis, neuritis and neuralgia that could lead to real benefits for veterans.

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

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De Hart: Scope of An NOD in a Radiculopathy Case and a Reframing of Chavis

De Hart v. McDonough, Case Number 21-6247, decided July 23, 2024 is a decision by the Veterans Court regarding an earlier effective date for radiculopathy.

The claim began related to a noncompensable rating for the veteran spine, during the claim the RO granted a higher rating for the spine and also granted service connection for bilateral lower extremity radiculopathy in a 2019 decision.  The veteran did not file a NOD as to that decision, but the spine rating issue returned to the Board resulting in the Board decision on appeal.

The Board decision noted the grant of service connection for radiculopathy but did not otherwise discuss the award or effective date.  The veteran sought an earlier effective date from the Court and argued “that the issue of an earlier effective date for her right leg radiculopathy was before the Board in 2021 by virtue of the 2009 NOD because, as a neurological complication, radiculopathy must always be considered part and parcel of her spine condition.”  Id. at *1-2.

The Court disagreed and determined: “that once radiculopathy is recognized by VA as a distinct service-connected disability with its own rating criteria, it is subject to the same general rules that would govern the appeal of any other separately adjudicated issue. To that end, we hold that, although neurological complications secondary to a spine condition claim must be considered and properly compensated by VA when they are raised by a veteran or reasonably raised by the record, they do not as a legal matter remain part and parcel of the spine claim once they have been separately addressed and adjudicated in a VA decision. And because the veteran did not file an NOD as to the effective date for right leg radiculopathy assigned by the RO in its 2019 decision, the issue was not before the Board in June 2021, and the Board had no obligation to address it. This result follows naturally from our caselaw, which regards "downstream" issues that have yet to be decided as beyond the scope of an NOD that appeals an "upstream" issue.”  Id. at *2.

Judge Jaquith wrote a powerful and pointed dissent.  He argued the opinion violated the holding found in Chavis v. McDonough, 34 Vet.App. 1 (2021) and the only way to overrule Chavis was an en banc court’s decision.  Id. at *14.  He assailed the majority’s decision to characterize Chavis as factbound, noting its argument really just echoed the dissent in Chavis.  He then asserted: “The circumstances in this case are not meaningfully different from those in Chavis. Though it is true that the Chavismajority left "for another day the question whether issues of higher evaluations for radiculopathy are always part of claims seeking higher evaluations for the underlying spine disability," 34 Vet.App. at 15 n. 17, that footnote does not render the Chavis opinion nonprecedential and is not a license to reverse it in the nearly identical circumstances here. And that is what is happening. Under the guise of addressing an unanswered question, the majority opinion is nullifying the Chavis holding and elevating the Chavis dissent. If that flip-flop is warranted, it must be accomplished by the en banc Court.”  Id. at *15.

I would expect to see a motion to reconsider and find Judge Jaquith's dissent a powerful indictment against a decision that seems to simply change the result of a precedential decision. 

Decision by Judge Toth and joined in by Judge Pietsch.  Dissent by Judge Jaquith. 

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Bolds: Secretary Waiver Allows for New Evidence on Remand

Bolds v. McDonough, Case Number 22-2484, decided July 11, 2024 concerns what happens a case is remanded from the Court to the Board and the remand language allows for new evidence. 

The AMA allows for Board review under three options, this case involves where the veteran sought the hearing docket which allows for new evidence at the hearing or within 90 days after the hearing.  The case was appealed and a joint motion for remand was agreed to by the parties.  In the JMR the parties agreed the veteran can submit additional evidence on remand.

On remand, the Board then rejected the claim and rejected medical records the veteran had submitted to the Board on remand.  The Court noted the limitations of presenting new evidence but found those limits “are claims processing rules that may be waived by the Secretary” and that they were waived.

This decision is an artifact from the transition to AMA and will likely have limited impact.

Decision by Chief Judge Bartley and joined by Judges Pietsch and Greenberg.

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Cardoza: NOD Rejection is Appealable

Cardoza v. McDonough, Case Number 20-6380, decided July 10, 2024 concerns whether a Board letter refusing to accept an NOD was a final order. 

A June 2019 RO decision granted service connection for PTSD and granted a 50% rating and June 2018 effective date.

The veteran filed an HLR as to the rating and a NOD as to the effective date.  A month later, the VA informed the veteran the Board received the NOD, but because of the HLR request the Board could not review the case because “You can only choose one review option for each issue.”

Subsequently the HLR was denied and the veteran filed a notice of appeal from the Board letter.  The Secretary moved to dismiss saying there was no final Board decision.

The veteran argued the Board letter “is an adverse final decision of the Board over which the Court can exercise jurisdiction under 38 U.S.C. § 7266.”

The Court held “that it has jurisdiction to consider this appeal and that the May 19, 2020, letter is a final decision of the Board because in the letter the Board denied the appellant entitlement to the relief sought. See 38 U.S.C. § 7104(d). By refusing to docket the appellant's April 2020 VA Form 10182 in which the appellant sought an earlier effective date for service connection for a psychiatric condition, the Board denied an earlier effective date; this action has the same procedural impact as a dismissal of the appeal, rendering the effective date assigned in the June 2019 rating decision final.”  Id. at *4.  It Court noted: “The May 2020 letter satisfies the requirements of section 7104(d) because the letter (1) is in writing; (2) contains the Board's finding and conclusion, i.e., that the Board could not process the appellant's appeal; (3) contains a statement of reasons or bases explaining that the appellant can choose only one review option per issue; and (4) denied an earlier effective date by refusing to docket his appeal. What's more, Mr. Arnold—the Vice Chairman of the Board and a Board member himself—inspected appellant's VA Form 10182 within the procedural context—meaning that Mr. Arnold assessed the facts and then concluded that the Board could not review appellant's case. So Mr. Arnold provided a legal conclusion. He adjudicated whether the Board had jurisdiction and, through his dismissal, decided a legal question.”  Id. at *3-4.

The order took aim at the dissent by Judge Falvey noting it is incorrect and that its offer of a possible writ of mandamus is no option at all.  It appears the dissent focuses too narrowly on whether a benefit is granted or denied and comes to the conclusion that rejecting a NOD is not a denial.  Ultimately, the dissent seems to object to the idea of “splitting” a claim in terms of separating the issues of effective date and rating.

Decision by Judge Greenberg and joined by Judge Laurer.  Dissent by Judge Falvey.

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Williams: How Long Do You Have to Change Board Appeal Lanes?

Williams v. McDonough, Case Number 21-7363, decided June 21, 2024 involves the question of what happens when the Board decides an appeal prior to the expiration of time to change the appeal lane.

The question was whether the Board erred by deciding his case before his deadline to modify his choice of Board appeal lane under 38 C.F.R. § 20.202(c)(2). 

The veteran filed a NOD and selected the direct review docket.  The VA notified him it had received the NOD and then “[t]racking the text of § 20.202, this notice told Mr. Williams that he could not submit more evidence, but if wished to switch dockets, he could file a request within 60 days of the date that the Board received his NOD, "or within one year of the VA decision being appealed, whichever date is later," and that he could request an extension of time to submit such a "docket switch request."”  Id. at *2.

Importantly, “Despite what the letter said, VA didn't give Mr. Williams the promised time to change his NOD and switch dockets. Instead, on July 16, 2021, the Board issued the decision on appeal denying a rating higher than 10%. This was less than 60 days from when the Board received his NOD and far short of a year since the December 2020 AOJ decision.”  Id. at *2-3.

The veteran argued “that the time to switch lanes in § 20.202(c)(2) is illusory if the Board can issue a decision within 60 days of NOD submission. To make the case that the Board's error prejudiced him, Mr. Williams tells us that he would have modified his NOD (electing the submission of additional evidence lane) and submitted evidence— some of which is already in the record but post-dates the AOJ decision.”  Id. at *3.

The Court concluded: “we agree with Mr. Williams that the Board cannot issue a decision until the time to modify an NOD under § 20.202(c)(2) has run.”  Id. at *6.

The Court then considered the issue of harmless error and specifically the VA’s point that the veteran could always just submit additional evidence in a supplemental claim and explained: “In simple terms, with a supplemental claim, you can't just submit any evidence to have VA consider the merits of your claim; the evidence has to be new and relevant….  This means that a claimant has an easier time getting VA merits review of the claim based on evidence submitted through one of the Board lanes than through the supplemental claim option. This also means that we must reject the Secretary's argument that the option of a supplemental claim means the Board's failure to give Mr. Williams a chance to submit evidence is harmless.”  Id. at *8.

This is an interesting case.  Frankly, the court is right in focusing on the fact that supplemental claim requires new and relevant evidence and that the VA should wait until the 60 days or one year after a NOD filing is up before a decision, but I can’t wonder about the negative impacts of these and how they might just lead to further delays.

Decision by Judge Falvey and joined by Judge Jaquith and Senior Judge Greene.

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Frantzis: Board Hearing Before the Person to Decide the Case

Frantzis v. McDonough, Case Number 2022-2210, was decided on June 4, 2024 and concerns whether under the AMA a veteran is entitled to a Board hearing before the Board member who will ultimately decide their appeal.

This was an appeal from a panel decision by the Veterans Court which had answered in the negative that noted there was a requirement in the Legacy Appeals system for the Board member who conducted the hearing to decide the case whereas there is nosuch requirement in the AMA.  Judge Jaquith wrote a dissent saying fair process requires the Board member who held a hearing to decide the case because it allows them to properly access the credibility of the witnesses.

The Federal Circuit affirmed the decision agreeing with the Veterans Court stating: “The statutory scheme and its history are clear—the same judge is not required to both conduct the hearing and author the final determination under the AMA.”  Id. at *6.

As for the due process argument, the Court noted “The fair process doctrine is a recognition that due process applies in the claimant process.  For example, we explained the fair process doctrine requires the Board to “provide a claimant with reasonable notice of [new] evidence . . . and a reasonable opportunity for the claimant to respond to it.”  To the extent Mr. Frantzis argues the fair process doctrine creates a procedural right, the argument was not presented below and is thus forfeited.”  Id. at *6.

Thus, it appears the AMA does not require a hearing before the Board member who will make a decision.  However, the Federal Circuit seemed to at least leave a crack in the door to the fair process doctrine argument, but found the argument was forfeited because it was not presented to the Veterans Court.  I imagine some attorney will look for the right Board decision to make these arguments and fully brief the issue and see how the Veteran Court and Federal Circuit responds.

Decision by Chief Judge Moore and joined in by Judges Clevenger and Chen.

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Greenidge: EAJA Fees and Prevailing Party Status

Greenidge v. McDonough, Opinion Number 20-7820(E), was decided May 31, 2024 by the Veteran Court and concerns attorney fees.

The case concerns when attorney fees can be granted on an appeal.  The Court had held it lacked jurisdiction to award attorney fees and expenses pursuant to the Equal Access to Justice Act (EAJA) after it had set aside a Board decision for lack of jurisdiction.  That decision was appealed to the Federal Circuit which led to a remand for the Veterans Court to reconsider in light of Halpern v. Principi II, which had held the authority to award EAJA fees was tied to the exercise of appellate jurisdiction and not contingent upon whether the Board properly exercised its own jurisdiction in the underlying decision.

On reconsideration, the Veterans Court concluded its prior decision was error and the Corut possessed jurisdiction to entertain the challenge to the Board’s exercise of its jurisdiction and thus had authority to consider the EAJA application.  However, the Court found the veteran was not a prevailing party and thus denied the application.

Factually, the veteran was granted a 10% PTSD rating in 1993 which was not appealed.  Subsequently, he filed a CUE motion and the RO denied the motion.  Before the veteran could file a NOD, the Board adjudicated the CUE motion on its own volition and denied revision of the underlying decision.  The veteran ultimately filed a NOD, after the Board issued a decision on the matter.  Before the NOD was filed, the veteran also appealed the Board’s decision to the Veterans Court.  The parties agreed the Board lacked jurisdiction to adjudicate the CUE motion because a NOD had not yet been filed and thus the Board did not have jurisdiction.  The veteran then sought EAJA fees and was denied.

Initially, it is helpful the Court reaffirmed Halpern II that “our EAJA jurisdiction isn't defeated by a conclusion that the Board issued an unauthorized, or "ultra vires," decision. Rather, when our review is properly invoked to consider whether the Board stayed within its own jurisdictional bounds, we are exercising the "jurisdiction" over a "civil action" that section 2412(d)(1)(A) says is necessary before we are authorized to award EAJA fees and expenses.”  Id. at *4.  In other words, “Taken together, the Federal Circuit's decisions in Hudson and Halpern II make clear that the "jurisdiction" required by section 2412(d)(1)(A) before an EAJA application can be considered is not confined to the Court's jurisdiction over the merits of a Board decision but encompasses the Court's jurisdiction to assess the propriety of the Board's exercise of jurisdiction.”  Id. at *9.

Then, the Court pivoted to prevailing party status and denied EAJA fees on that basis.  The Court determined: “he most immediate obstacle for the veteran is that there was no remand to the Board in this case; instead, the Court simply vacated the Board decision and dismissed the appeal. Indeed, the whole basis of the veteran's appeal was that the Board reached out and prematurely adjudicated the CUE motion before he had decided to file an NOD and invoke the Board's jurisdiction. Since there was no matter properly before the Board at the time it rendered its decision, there was nothing for the Court to remand….  More importantly, the absence of a remand order here means perforce that there was "no remand order clearly call[ing] for further agency proceedings." Blue, 30 Vet.App. at 67. That is a critical consideration in this case. In the Halpern litigation, the Federal Circuit ultimately concluded that this Court's disposition of the appeal—vacating the Board decision (for lack of original jurisdiction to determine an attorney's eligibility for a contingent fee award) and remanding the case to the Board with instructions to dismiss—did not confer prevailing party status.”  Id. at *10.

Judge Jaquith dissented on the prevailing party issue.  He roots his idea of a prevailing party in the actual definition of “prevail” and the facts at hand.  He explained: “Prevail is precisely what the veteran did in his underlying case, in which he appealed the Board's October 2022 decision prematurely denying his CUE motion—which was not yet before the Board—the Secretary agreed that the Board had erred, and the Court vacated the Board's decision and dismissed the appeal so the veteran's later appeal of the regional office's denial of his CUE motion could move forward.”  Id. at *12.  He argued the requirement of a remand is misplaced and that instead stated in the context of a CUE motion, “vacating an improper decision is a pivotal prevailment because denial of a CUE motion may foreclose any further attempt at revision.”  Id. at *15.

I would expect this case to again go to the Federal Circuit as Judge Jaquith’s explanation of a prevailing party is persuasive.

Opinion by Judge Toth and Greenberg with a dissent by Judge Jaquith.

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Ferko: An Untimely NOD and 38 CFR 3.109(b)

Ferko v. McDonough, Case Number 21-3467, decided May 28, 2024 concerns whether a NOD was timely.

Typically a NOD must be submitted within one year from the date of mailing of notice of the decision.  The veteran missed the date by 2 weeks after he had had emergency open heart surgery.  At the time he requested an extension based on good cause citing his surgery.

The VA determined the NOD was untimely but never addressed the extension request.  It then found it did not have jurisdiction.

The Court determined:

“The one-year deadline in section 7105(b) to file an NOD in the legacy system is not a jurisdictional bar to Board review. It is an important and mandatory claim-processing rule, but it does not deprive the Board of the authority to consider the merits of an appeal simply because the NOD is received late. As a nonjurisdictional claim processing rule, section 7105(b)'s one-year period is amenable to an appropriate exception. Indeed, this is exactly what a current VA regulation allows, as our caselaw has long held that 38 C.F.R. § 3.109(b) applies to NODs. That regulation permits extensions to VA's internal deadlines for good cause. It is under this governing regulatory standard that the Board should have considered and adjudicated Mr. Ferko's extension request. But despite the lengthy passage of time, VA has still not issued a decision evincing a proper understanding of § 3.109(b)'s role in permitting it to accept the veteran's untimely NOD.”

Id. at *2. 

Critically, the Court found 38 CFR Section 3.109(b) applies to NODs and states:

“Extension of time limit. Time limits within which claimants or beneficiaries are required to act to perfect a claim or challenge an adverse VA decision may be extended for good cause shown. Where an extension is requested after expiration of a time limit, the action required of the claimant or beneficiary must be taken concurrent with or prior to the filing of a request for extension of the time limit, and good cause must be shown as to why the required action could not have been taken during the original time period and could not have been taken sooner than it was. Denials of time limit extensions are separately appealable issues.”

Thus, the Court sidestepped the issue of equitable tolling and simply relied on Section 3.109.

A concurrence also wrote: “The evidence makes a viable case for reversal: Mr. Ferko submitted treatment notes attesting to his open-heart surgery and convalescence that seem sufficient to excuse a 12-day delay in filing his NOD.  Let's face it, if open-heart surgery is not good cause, it's hard to imagine what is. That said, the Board looked at the case through the lens of equitable tolling. R. at 9. It did not grapple with this question as it is framed by the requirements of the regulation. See 38 C.F.R. § 3.109(b) (requiring the claimant to show good cause "as to why the required action could not have been taken during the original time period and could not have been taken sooner than it was"). Stinson and Tadlock counsel that it would be impermissible factfinding for this Court to conclude that Mr. Ferko met the good cause requirement of § 3.109(b). Therefore, mindful of limiting precedent, this case returns to the Board for it to consider the matter of good cause under § 3.109(b).”  Id. at *11.

Another concurrence wrote that it would have decided the case on the basis of equitable tolling because the veteran specifically disclaimed the statutory argument and instead sought to rely on equitable tolling.

This was a full panel decision with the opinion by Judge Toth and several concurring opinions. 

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