DeLisio: Effective Dates of a Secondary Condition

Lawrence DeLisio v. Eric K. Shinseki, Opinion Number 09-0404, decided August 24, 2011 involved among other things a claim for service connection for diabetes and peripheral neuropathy (secondary to diabetes) as a result of exposure to pesticides under Nehmer. Specifically, the court had to “resolve the novel issue of whether a disability that is secondarily service-connected can have an effective date earlier than the date a claim was filed explicitly for the primary service-connected disability.” Id. at 1. The Court found that under these limited facts, it could.

The veteran served in Vietnam and in 1980 filed for service connection of “numbness in his left leg”, this claim was never adjudicated. He refilled in 1994 for peripheral neuropathy and this claim was not adjudicated in 2006 when he was diagnosed with diabetes and applied for service-connection for his diabetes.. Importantly, in 2001 diabetes was added to list of herbicide diseases presumptively associated with Agent Orange exposure by Vietnam veterans. Thus, the veteran became a Nehmer class member and potentially entitled to an effective date earlier than the date presumptive service connection for diabetes was authorized. The Board service connected and granted 1 year before the 2006 application.

The court found if (1) a claimant files a claim for benefits for a condition, (2) the case remains open and not finally adjudicated, and (3) the cause of that condition is determined to be a disease or disability incurred in or aggravated by service, then the effective date for both the secondary and primary service-connected disease or disability can be as early as the date of the open claim. Id. at 12.

The VA argued a veteran must file a claim explicitly for the causal or primary disease or disability to establish entitlement to a secondary condition. However, the court rejected the argument and noted the veteran friendly nature of the law and that the VA must investigate the reasonably apparent and potential causes of the veteran’s condition and theories of service-connection that are reasonably raised by the record. Id.at *10.

The court limited its decision by saying:

It is important to note that we do not hold that a claim for benefits reasonably encompasses a claim for unclaimed disabilities that are not a cause of the condition for which benefits are sought, or for unclaimed benefits that arise as a result of the condition for which benefits are sought…. Rather, we hold that, when a claim is pending and information obtained reasonably indicates that the claimed condition is caused by a disease or other disability that may be associated with service, the Secretary generally just investigate the possibility of secondary service connection; and, if that causal disease or disability is, in fact, related to service, the pending claim reasonably encompasses a claim for benefits for the causal disease or disability, such that no separate filing is necessary to initiate a claim for benefits for the causal disease or disability, and such that the effective date of benefits for the causal disability can be as early as the date of the pending claim.

Thus, the court remanded to the Board whether the claim’s effective date for both the peripheral neuropathy and diabetes mellitus should be 2006, 1994, or 1980.

Decided by Chief Judge Kasold, and Judges Hagel and Lance.

DeLuca and Functional Loss Caused by Pain Reviewed

Michell: DeLuca and Functional Loss Caused by Pain Reviewed

Tyra K. Mitchell v. Eric K. Shinseki, Opinion Number 10-2169, decided August 23, 2011 grappled with the question whether pain, by itself, throughout a joint’s range of motion constitutes a functional loss entitling the veteran to a higher disability rating.

This was a pyric victory for the veteran as the Court held that “pain alone does not constitute a functional loss under VA regulations that evaluate disability based upon range-of-motion loss. But, because the Board erroneously relied upon a VA medical examination that did not adequately address whether the pain resulted in a functional loss in this case.” Id. at *1.

It is undisputed that under 38 CFR Section 4.40 functional loss (reduced normal excursion, strength, speed, coordination or endurance) can be caused by pain. Section 4.45 also discusses functional loss in the joints and the court has previously found “a functional loss caused by pain must be rated at the same level as if that functional loss were caused by some other factor (e.g., deformity, adhesion, atrophy, tendon-tie-up …) that actually limited motion.” Id. at *8.

“What the foregoing discussion suggests, then, is that pain itself does not rise to the level of functional loss as contemplated by the VA regulations applicable to the musculoskeletal system. Pain in, like deformity of or insufficient nerve supply to, a particular joint may result in functional loss, but only if it limits the ability ‘to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance.” Id. at *8.

The veteran framed the question before the court as to whether she is entitled to the maximum ratings because painful motion is deemed to be limited motion even if there is no actual limitation of motion. Id. at *9. The court rejected this question and seemed to be concerned with absurd situations where a slight pain in the knee throughout all ROM would result in a greater rating than a situation where another veteran had an actual limitation of flexion and extension.

It is clear the veteran was trying to find a good case that made law saying painful motion that makes a certain range of motion limited should qualify for the same rating that range of motion from another disability would qualify for. This is a sensible reading of the regulations and case law and essentially what advocates have argued for years.

The result will probably be a motion seeking a full panel decision as well as a potential appeal above. On a day to day level, veterans will need to tie the pain to perform normal working movements of the body with normal excursion, strength, speed, coordination or endurance.

Of course, the Court did ultimately find for the veteran by saying the medical examination was inadequate because it did not detail limitations on pain and flare-ups of pain. It seems to me the Court is trying to squeeze too hard for information that has previously been a matter of saying that a veteran could flex or extend x amount with pain and x amount without pain. Asking for a physician to discuss how pain impacts excursion, strength, speed, coordination or endurance is simply asking too much.

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

Russell: JMR Enforced

Russell: The Power of a JMR

Margaret R. Russell v. Eric K. Shinseki, Opinion Number 10-3282, decided August 11, 2011 involved veteran’s motion to reconsider an order of dismissal that did not expressly incorporate the terms of the joint motion for remand.

The Court clarified that terms of a JMR are always enforceable by the Court even if the order dismissing the case does not expressly incorporate the terms of the JMR. The Court also clarified that a writ of mandamus is “an extraordinary remedy not to the granted when, inter alia, the veteran possesses adequate alternative means to obtain the desired relief, such as the ability to appeal a decision through the appeals process”. Id. at *2.

The purpose of this decision seems to be to reiterate the VA must follow the JMR even if the JMR is not expressly incorporated into the Court’s order. It also shows the power of a JMR and the need to carefully consider the VA’s proposed language.

Decided by Chief Judge Kasold, and Judges Hagel and Lance.

Burton: Painful Motion, Pyramiding, and Issue Preservation

Burton: Delucca Applied to More Than Arthritis

Russell W. Burton v. Eric K. Shinseki, Opinion Number 09-2873, decided August 4, 2011 involved a veteran’s claim for a higher rating for a shoulder disability.

The Board decision was initially affirmed by a single judge decision but then affirmed only in part by a full panel.

Importantly, the VA initially argued that 38 CFR section 4.59 only applied to arthritis claims. The Court rejected such an argument by reviewing the language of the section in its entirety. Instead, the Court determined that “When §4.59 is raised by the claimant or reasonably raised by the record, even in non-arthritis contexts, the Board should address its applicability.” Id. at *6.

The Court then turned to a discussion of the facts. They found the Board had mostly considered section 4.59. However, for a small period of time the Board had not discussed painful movement. Specifically, the VA said a VA examination found full range of motion when instead the report listed the veteran’s subjective complaints of pain on motion and then recorded his range of motion without addressing whether he had any actual pain on motion. Id. at *7. The Court found the Board provided inadequate reasons or bases and remanded.

The Court also considered the veteran’s argument that he should receive two separate disability ratings for abduction and flexion limitations to his shoulder. The Court found these limitations arise from one disability, and the law does not permit separate ratings under each circumstance. The Court also seemed to raise the specter of issue preservation by saying the record on appeal does not reflect that Burton raised this argument to the Board. This seems to suggest that issue preservations might be met receptively by the Court in the future, a development that would only assist the VA and put unrepresented veterans at a significant disadvantage.

Decided by C.J. Kasold, and Judges Davis and Holdaway.

Evans: What's in a VA Form 9, Again

James I. Evans v. Eric K. Shinseki, Opinion Number 08-2133, decided August 4, 2011 involves the court’s reconsideration of a previous January 2011 decision and specifically concerns confusion over what issues were appealed when an unrepresented veteran completed a VA Form 9.

The veteran sent in a notice of a disagreement (NOD) from a decision that had 6 issues and the VA prepared a Statement of the Case (SOC). The veteran than submitted a form 9 in which he checked the box saying he wished to appeal all of the issues in the SOC. However, he also specified 3 of the issues listed in the SOC. The VA took the position that he abandoned the other three issues. And, in fact, those were the only issues discussed in a hearing. The BVA decision dismissed the three unspecified claims.

On appeal, the veteran argued the BVA should have addressed the unspecified claims because he had checked a box saying he wanted to appeal all the issues.

The court succinctly stated the issue as “whether the Board erred in determining that a claimant limits his appeal to certain specified issues when he files a VA Form 9 in which he checks the box indicating his desire to appeal ‘ALL OF THE ISSUES LISTED ON THE [SOC]’, but also specifies on the Form 9 arguments as to some, but not all, issues listed in the SOC.”

The Court initially agreed with the veteran. It found the VA had a duty to liberally read pro se filing and the form is ambiguous because it does not explain that if a veteran checks he wants to appeal all issues but then specifies some in the second box, that the second box controls. In its reconsidered opinion, the Court narrowed its decision and found “the Board’s unexplained statement that the appellant had limited his appeal by the manner in which he completed his VA Form 9 constitutes error. It fails to adequately provide reasons or bases for the dismissal of the remaining issues.” Id. at *10. The Court then went on to say that “the veteran-friendly process requires VA at the RO or Board to seek clarification and communicate with the appellant as to any perceived concern about how the appellant had filled out the Form 9.” Id. at *11.

A concurring opinion by Judge Lance preferred a bright line test that the VA should have considered all claims because of a fear that the VA will simply dismiss the claim again and it result in yet another appeal to the Court. Judge Lance’s opinion seems to betray a concern with the sometime seemingly endless process which veterans have to go through.

Decided by Judges Moorman, Lance and Schoelen.