Hickson: Section 20.903: Can the Board reach the Merits of a Reopened Claim?

Section 20.903: Can the Board reach the Merits of a Reopened Claim?

The case of Arthur Hickson v. Eric K. Shinseki, Opinion Number 07-1311, decided March 31, 2010, affirmed denial of an acquired psychiatric disorder.

The case involved the application of 38 C.F.R. Section 20.903, which states if the Board is going to consider law not already considered in the Regional Office decision and such consideration could result in denial of the appeal, the Board has to first notify the veteran or the veteran’s representative of such intent.

Here, the veteran had submitted new and material evidence which prompted the Board to reopen the case. Rather than remanding the case for further development along the lines of a medical examination and weighing the credibility of the evidence, the Board denied the claim on the merits. The reason the Board reached the merits is that a medical opinion had already been provided and the Regional Office decision had weighed the evidence.

The veteran’s appeal was based on section 20.903, specifically the Board’s consideration of law not previously considered by the RO. The Secretary argued the regulation only applied to literally new law, as in recently passed rules and case law that wasn’t considered by the RO. The Court rejected the VA’s argument regarding new law and examined whether in fact the Board considered law not previously considered. Upon close examination, the Court determined this was not the case for various reasons. Some of these reasons include that the allegedly unconsidered laws were actually referred to by the RO, were considered in the Supplemental Statement of the Case, were sent by the veteran’s attorney and thus not subject to notice requirements, or related to requirements and powers of the Board which did not trigger the notice requirement.

The lesson behind this case might be that it is possible the Board will reopen a claim and decide on its merits even if the RO had decided against reopening the claim. So, you should prepare your case well and get all possible evidence as soon as possible.

Decision by Chief Judge Green and joined in by Judges Kasold and Davis.

Rickett: Properly Filing Your Notice of Appeal

A Properly Filed Notice of Appeal

The case of William C. Rickett v. Eric K. Shinseki, Opinion Number 09-2493, decided March 17, 2010, is an extension of the Court’s 2009 decision in Irwin v. Shinseki in that it deals with what is a properly filed notice of appeal.

The Court was confronted with a Notice of Appeal (NOA) that was timely sent to the VA General Counsel’s office rather than the Court, and only later sent to the Court (after more than 120 days after the date of the Board of Veterans’ Appeals’ decision). Irwin had decided that equitable tolling is no longer permissible for misfiled notices of appeal. Instead, the veteran attempted to argue that the notice of appellate rights sent by the VA was inadequate and that the Court should exercise its authority to deem the notice of appeal filed with the Court on the date it was misfiled with the Secretary.

Both the majority and the dissent rejected any argument that the notice of appellate rights was inadequate and the majority found the case was controlled by Irwin and required dismissal of the case for lack of jurisdiction.

The dissent pointed to the circumstances where a late notice of appeal would be accepted by the Court and used that to determine that a timely notice of appeal was not a jurisdictional requirement and then concluded that because “[m]ost appeals to the Court involve disabled veterans” and “the Secretary logs in, by date, mail that he receives, and there is no prejudice in requiring him to forward misfiled NOAs to the Court. Applying the basis underlying FRAP 4(d), and our duty to interpret the law, I believe it is proper and appropriate that we focus on timing, not location, and that we consider the date an NOA is misfiled with the Secretary to be the date the NOA is filed with the Court.”

Despite the spirited dissent by Judge Kasold, the lesson is that the Notice of Appeal is a jurisdictional requirement that must be met absent very limited exceptions. So, a self-represented veteran should carefully read the notice of appellate rights and perhaps consult an attorney as early as possible.

Decision by Judges Hagel and Davis, with dissent by Judge Kasold.

Jones: What Must the VA do to obtain an Adequate Medical Examination? Adequate?

Adequacy of A Medical Examination

The case of Michael H. Jones v. Eric K. Shinseki, Opinion Number 07-3060, decided March 25, 2010, remanded a denial for hearing loss and erectile dysfunction.

The Board of Veteran Appeals had denied an compensation rating for right ear hearing loss, service connection for left ear hearing loss, and service connection for erectile dysfunction secondary to Type II diabetes mellitus.

The principal issue before the Court was whether the VA had fulfilled its duty to assist by obtaining two VA medical examinations in which the physicians concluded that they were unable to render an opinion whether there was a causal link between the current disabilities and service without resorting to “mere speculation.”

Regarding the hearing loss, the physician opined that the right ear hearing loss was service connected but that regarding the left ear hearing loss, “there is insufficient information to resolve the etiology and onset of the left ear hearing loss without resorting to mere speculation.” When specifically questioned regarding tinnitus, the physician noted two different accounts of the initial onset and stated “it is not possible to resolve the issue of etiology without resort to speculation.” Regarding the erectile dysfunction, a physician stated “I cannot resolve [the etiology] issue without resort to mere speculation.” The Board denied service connection and noted the inability of the medical examiners to opine on the etiology issue without resort to speculation.

The veteran argued the VA had not fulfilled its duty to assist in providing a medical examination when the examination fails to proffer an opinion on the etiology of a disability and that the VA is required to seek additional opinions until one of two things occur: (a) a definite position on the etiology question is given, or (b) the VA formally concludes that no further examination should be undertaken because no reasonable possibility exists that such assistance would aid in substantiating the case.

The Court rejected the idea that the VA must undertake additional examinations until formally concluding further examinations are futile. However, the court did determine “it just be clear, from some combination of the examiner’s opinion and the Board’s analysis of the record, that the examiner has not invoked the phrase ‘without resort to mere speculation’ as a substitute for the full consideration of all pertinent and available medical facts to which the a claimant is entitled.”

The question essentially faced by the Court is what happens a medical examination states it cannot give an assessment of causation without resorting to speculation. The Court basically allows that an examination can be adequate and conclude without giving a clear picture of etiology. However, the clear to say the medical examiner cannot refuse to offer an opinion of etiology based on mere speculation to short circuit careful consideration of the claim and states that it will look at the following to determine the adequacy of the examination.

Generally the Court determined the opinion, “must be clear on the record that the inability to opine on questions of diagnosis and etiology is no the first impression of an uninformed examiner, but rather an assessment arrived at after all due diligence in seeking relevant medical information that may have bearing on the requested opinion.” The Court specifically noted the examination must explain why a statement would be speculation and pointed to the following considerations: is it based on sufficient facts or data, the physician has research medical literature on the question, the physician should clearly identify the facts that cannot be determined and whether additional testing would be helpful.

In short, the VA does not violate the duty to assist by relying upon a medical examination that does not make a statement of diagnosis or etiology if the physician has done all that reasonably should be done to become informed about a case and carefully explains why he cannot make a determination.

This finding probably will not have any real impact on how a case should be developed by a veteran or his advocate. It is helpful to obtain independent medical opinions and to perform research in medical treatises to submit to the VA when they are considering the claim. However, it is likely the VA will develop a checklist they feel they can meet and then feel comfortable refusing a diagnosis or statement of etiology based on “mere speculation.” The result might be more denials for the unwary and unprepared. However, it might also offer an opportunity to appellant’s to argue that research of medical literature wasn’t performed, a potentially potent argument for future appeals. It also is interesting to note that in addressing the tinnitus claim the physician had essentially weighed the credibility of two accounts given by the veteran and made his determine based on that, the Court clarified the factual question should have been resolved by the Board as the factfinder and then the examiner asked to provide an opinion based on the Board's finding.

The concurring opinion by Judge Lance is also helpful in that it clarifies that if an opinion indicates a disability has only two potential causes and at least on is related to service, then the inability to provide a reason why one is more likely the cause of the disability would place the evidence in equipoise and the benefit of the doubt rule would apply and work to the benefit of the veteran.

Decision written by Judge Davis and joined by Judges Kasold and Lance with a short concurrence by Judge Lance.

Singleton: Stabilized Disability Ratings under Section 3.344

Section 3.344, A Stabilized Disability Rating

The case of George Singleton v. Eric K. Shinseki, Opinion Number 08-1131, decided March 25, 2010, affirmed a PTSD and schizophrenia disability rating of 70%.

The Board of Veteran Appeals assigned an initial staged disability ratings for the veteran for PTSD and schizophrenia from 1980 to 2001. The staged ratings include a 50% rating for a portion of 1980, a 100% rating for 1980-1991, a 70% rating for 1991-2000, and a 100% rating for the time after 2000.

The veteran appealed the 70% rating for the time in 1991-2000 and made two major arguments. First, the veteran argued the Board erred in only granting 70% for this time. The Court noted that while a private psychiatrist had found that the veteran could not function independently outside his home, the Board discounted the opinion based on evidence that he held multiple jobs during this time. Here, the Board considered the relevant evidence but merely reached a different conclusion than the veteran would reach. The Court basically decided that the Board’s explanation was full and adequate and that the veteran failed to show that the decision was clearly erroneous, which would require a showing that although evidence supported the Board’s decision, the Court is left with a definite and firm conviction that a mistake has been committed.

Second, and more important as precedent, the veteran argued that 38 C.F.R. § 3.344 (regarding stabilized disability ratings) applied and prevented the reduction of his rating from 100% to 70%. Section 3.344 requires that a stabilized disability rating (one that has been in effect for 5 years or more) cannot be reduced without a recent, full and complete medical examination. The purpose for Section 3.344 is to protect veterans who are reliant on a disability rating from an arbitrary reduction. In this case, the Board had just service-connected the veteran and was making an initial rating which considered years into the past.

The Court essentially found that Section 3.344 does not apply to initial staged ratings in large part because “[w]here benefits are reduced retrospectively in the staged disability ratings context, there is no danger that a veteran will be deprived of income that he or she is accustomed to using to meet day-to-day expenses.” Thus, the Court accepted the VA’s interpretation and argument that Section 3.344 only applies to prospective rating reductions.

Decision written by Judge Kasold and joined by C.J. Green and J. Schoelen.

Ortiz: Filing the Substantive Appeal

The case of Robert V. Ortiz v. Eric K. Shinseki, Opinion Number 06-0932, decided March 3, 2010, affirmed a denial for an earlier effective date for service connection.

The Board of Veteran Appeals denied a request for an earlier effective date for service connected bipolar disorder. The Court originally affirmed the BVA decision but that decision was withdrawn and replaced with this decision entered after being heard by the full panel of judges.

The Veteran filed and was denied by the Regional Office in 1971 and did not appeal. He re-filed in 1979 and was denied by the Regional Office. He later was granted service connection in 1994 after filing again.

Regarding the 1979 denial, a Substantive Appeal (VA Form 1-9) was never received by the VA. However, at one point the VA sent a letter to the Veteran saying they had not received the form along with a copy of the form and requested that he send it if he wanted to continue his appeal. The Veteran responded with a letter saying he had already sent the form and requesting an update as to the status of the case.

Importantly, the law requires that after the VA issues a Statement of the Case, the veteran “should set out specific allegations of error of fact or law … related to specific items in the Statement of the Case”. The Court determined this requirement “must be interpreted as placing a burden on claimants to expand upon their initial disagreement with the RO decision by setting forth—however inartfully—a particular theory of error for the Board to decide.”

The Court essentially found that while the VA has to liberally construe documents, the basic procedural requirements must be met and they were not met in this case because neither VA Form 1-9 nor a letter alleging a specific error of fact or law was received by the VA. Regarding the Veteran’s letter, the Court stated, “Nothing … references any part of the S[tatement] O[f the] C[ase] or why the denial of the appellant’s claim might be erroneous” and “While the appellant identified his claim, he asserted no reason or theory why the SOC was incorrect as the 1979 Form 1-9 requires.”

The opinion was filed with powerful dissents which argued the majority “inexplicably focuses only on Mr. Ortiz’s May 1980 letter to the Secretary. Such a narrow focus is not the law. Whether or not a Substantive Appeal or the equivalent has been filed is determined by considering the totality of the circumstances…. The result reached by the majority comes simply and plainly from their implicit holding that ‘should’ means ‘must’ in the controlling statute and regulation.” Thus, the dissenting judges found “if the totality of the circumstances and liberal reading permit an understanding of the issue on appeal, the statute is satisfied.”

Perhaps the lesson to be taken is that while a Notice of Disagreement from a Regional Office decision can be vague, after the Statement of the Case is filed by the VA, a more specific Form 1-9 (substantive appeal) must be timely filed and must say enough to focus on the objections to the Statement of the Case.

Full Panel decision written by Judge Lance with dissents by Chief Judge Greene and Judge Kasold

Spina Bifida and the Record Before the Agency

Spina Bifida and the Record Before the Agency

The case of L E. Johnson v. Eric K. Shinseki, Opinion Number 07-0987, decided January 21, 2010, affirmed a denial for service connection for a back injury.

There were two major issues. The first revolved around the use of evidence of back pain during an ineligible period to show a chronic disease or continuity of symptomatology. The second involved whether a medical examination was inadequate in part because it was not signed.

Regarding the first, the veteran had served two periods. During the second, he was discharged under less than honorable conditions. Therefore, a prior decision had found he was entitled to any conditions arising from the first period of service but ineligible for any conditions arising during the second.

The veteran sought to use evidence of a back condition during his second period of service and later post-service evidence to show a continuity of symptoms or a chronic disease that would establish the disability (back condition) was incurred during his first period of service. The VA agreed that “evidence from the ineligible period of service of continuity of symptoms can suffice to establish incurrence of a disability during the prior period of eligible service.” However, the VA disagreed with the argument that “evidence of a chronic disease during a period of ineligible service may be considered by the Board to establish that the chronic disease was initially occurred during a prior, eligible period of service”.

The Court side-stepped answering this question by reaching into the merits of the back condition. Specifically, the BVA found the back pain was spina bifida. Spina bifida is a congenital defect or developmental disorder for which benefits may not be awarded according to the Courts earlier decision in Quirin v. Shinseki, 22 Vet. App. 390, 393 (2009). Since the Court determined the back pain was related to spina bifida and benefits could not be granted for such a congenital or developmental defect, it did not have to decide the limits of using evidence of chronicity from a a disqualified period.

Regarding the medical examination, the veteran had argued that the examiner did not specifically opine whether the developmental back pain disability was aggravated by eligible service. The Court essentially determined it did not matter because “spina bifida cannot be aggravated because it is a congenital defect.” Additionally, the Court also essentially found the physician had said enough, i.e., the veteran’s “current back disability was not related to his eligible service.”

The veteran also argued the examination should not have been treated as evidence because it was not signed by the physician. Here, the Court said the veteran did not submit enough clear evidence to defeat the presumption of regularity because he did not show that the report was not transmitted via an accepted VA internal computer system.

A concurring opinion by Judge Hagel pointed out that it is absurd to expect the veteran to show the report was not transmitted via the VA internal computer system because the only one with access to the system was the VA. To Judge Hagel the presumption of regularity was defeated but then rescued by VA filings of evidence that the report was properly transmitted via the internal computer system. He got this VA generated evidence into the Record Before the Agency by taking a liberal reading of what constituted the record and finding the “VA-generated documents were constructively ‘before the Secretary and Board’” because “the transmittal documents introduced by the Secretary here were clearly generated by the VA during the pendency of Mr. Johnson’s claim”.

This case makes clear that benefits will not be granted for congenital or development disorders. Judge Hagel’s occurrence might also lay a framework regarding how to get information that isn’t part of the Record Before the Agency to the Court.

Decided by Kasold, Hagel and Schoelen, Judges.

Attending Your C&P Examination

Attending Your C&P Examination

The case of Arnold C. Kyhn v. Eric K. Shinseki, Opinion Number 07-2349, decided January 15, 2010, affirmed a denial for service connection for tinnitus in large part because the veteran did not attend his Compensation and Pension examination.

While their were multiple related issues, the case largely centered on the veteran’s failure to attend the scheduled Compensation and Pension examination. This failure served as the primary justification for the Board to deny his request for service connection.

The veteran appealed saying that he had not received notice. The Court grappled with the presumption of regularity. This presumption says the file and any required notices are presumed to be handled appropriately and sent unless there is a showing by the veteran of clear evidence to the contrary.

As clear evidence to defeat the presumption of regularity, the veteran argued their was no written record of the letter sent to him by the VA notifying him of the examination, that the VA had not competed an Appeal Certification Worksheet, and that the VA adjudicated his claim wrongly believing he had not submitted any evidence in support of his claim when in fact he had submitted evidence.

The Court first addressed the lack of a letter in the file and accepted the VA’s explanation that the file is electronically generated by a computer system and a hard copy is not generally placed in the claims file. The Court determined that because the VA does not as a regular practice include the notice in the claims file, the absence of it is not clear evidence that it was not sent. As an aside in the decision, the Court noted that it found persuasive the fact that the Supplemental Statement of the Case raised the fact the veteran did not attend the examination but that he did not at that point raise the lack of notice argument.

Regarding the Appeal Certification Worksheet, the Court found one did exist for the case when the case was initially appealed to the Board. The case had been appealed to and remanded by the Board and the veteran essentially argued a second Appeal Certification Worksheet should have been created and kept with the file when the veteran appealed to the Board for a second time. This is essentially a very technical argument that was rejected on a very technical ground, that the M21-1MR did not require a second Appeal Certification Worksheet but specifically contemplated that any further decision by the Regional Office would be entered into a “Remarks” section of the initial Appeal Certification Worksheet.

Finally, regarding evidence in support of his claim, the Court distinguished between his hearing loss and tinnitus claim. The evidence submitted was read to apply to the hearing loss and not the tinnitus claim, thus meaning that the Board was not incorrect when it stated their was no evidence from the veteran regarding the tinnitus claim.

In a final argument, the veteran argued that the tinnitus was secondary to or aggravated by the existing service-connected hearing loss. The Court rejected this argument without reaching the merits because they determined the veteran was raising this issue for the first time in his brief to the Court and had not raised it to the Board. This seems like a shift from what could have been a decision to remand this issue alone for the Board’s consideration and suggests that as an appellate court, the Court might be beginning to shift more responsibility to develop the case onto the veteran.

From this case, the most practical lesson is that attending Compensation and Pension examinations is very important and any notice problem should be raised immediately. Additionally, on a larger scale, the Court’s treatment of the aggravation issue affirms that a veteran should develop his case as fully as possible before the Board as the Court might not use the remand to allow for such development.

Decided by Chief Judge Greene, and Moorman and Schoelen, Judges.