Pederson: The impact of abandonment on CUE and a discussion of TDIU

Pederson v. McDonald, Opinion Number 13-1853, decided February 13, 2015 concerns two issues: the impact of an abandoned issue and TDIU.

The impact of an abandoned issue has previously been addressed by the Court in Cacciola v. Gibson, 27 Vet. App. 45 (2014).  The court has previously determined that when an issue is abandoned and not decided on its merits, it is subject to a collateral attack based on CUE at a later time.  Pederson appears to have been meant to clarify Cacciola.  The Court stated when a notice of appeal from a Board decision places all issues finally decided by the Board before the Court notwithstanding whether the NOA itself or the subsequent briefs narrow the issues on appeal.  The Court notes that generally abandoned issues are not decided on the merits, but that the Court nonetheless has the authority to decide abandoned issues on the merits.  The practical impact is a Court decision must be examined during a subsequent CUE challenge to determine not simply whether the issue was abandoned, but whether the issue was reviewed by the Court on its merits. 

Judges Lance and Hagel would have more severely restricted CUE challenges noting an obligation to raise all arguments to avoid piecemeal litigation.

Pederson also concerned a claim for TDIU.  The veteran argued the Board gave inadequate reasons and bases for considering his occupational and education experience in determining whether his service connected disabilities precluded substantial gainful employment.  The Court agrees that educational and occupational history must be considered by the Board, but found the reasons and bases were sufficient.  The Court seems to take a narrow view on whether the veteran could actually perform sedentary work and not whether such a job actually exists.  This point was severely attacked by Judge Schoelen’s dissent.  Schoelen noted that being physically able to perform a task does not mean that a veteran is educationally or vocationally qualified to perform such employment.  Judge Greenberg also dissented in reference to TDIU feeling the Board deferred to the medical examiner rather than making their own determination.  Judge Pietsch also found the Board did not provide adequate reasons and bases related to TDIU but found no prejudice.

This was an en banc decision with multiple concurring and dissenting opinions.

Thomas Andrews is an attorney in Columbia, South Carolina.  You can visit his website at http://thomasandrewslaw.com/

Equitabe Tolling

Palomar v. McDonald, Opinion Number 14-1017, was decided March 18, 2015 and involves whether equitable tolling should apply to a late notice of appeal sent from the Philippines.

Equitable tolling to justify hearing an appeal where the notice of appeal was beyond the 120 day deadline is a constant source of new published opinions.  Here the veteran sought reconsideration from the Board more than 120 days after the initial Board decision and then the notice of appeal was mailed 133 after the Board decision denying reconsideration. 

The veteran argued equitable tolling should be applied because (1) he lives in the Philippines and the time it takes mail to arrive there is an extraordinary circumstance, (2) his physical condition (deteriorated hearing and eyesight) rendered him incapable of handling his affairs and precluded a timely filing, and (3) the Secretary provided a confusing notice of appellate rights letter.

The Court rejected all reasons for equitable tolling seemingly faulting the veteran for not presenting enough evidence to justify the equitable tolling.  The Court also used against the veteran the fact that he was able to file his notice of appeal within 120 days after the motion to reconsider was denied.

The Court also noted the appellate rights form has been found to be sufficient by the Federal Circuit in Cummins v. West.

The order was by C.J. Kasold and J. Schoelen.  J. Greenberg wrote a dissent pointing to the obvious delay in mail service between the U.S. and the Philippines and stating equity should be allowed due to the veteran’s diligence.

TDIU based on Extraschedular Considerations and the Role of the Director

Wages v. McDonald, Opinion Number 13-2694, was decided January 23, 2015 and involves a claim for TDIU based on extraschedular considerations.

Such a claim is submitted to the Director of the Compensation and Pension Service pursuant to 38 CFR 4.16(b) for determination of entitlement to TDIU. 

In this case, the issue was referred to and denied by the Director.  The Board reviewed the Director’s determination and concluded that based on multiple VA examinations, a private opinion, and the opinion of the Director, that Mr. Wages was not precluded from sedentary employment.

The veteran appealed claiming the Board erred in treating the Director’s opinion as evidence and for providing inadequate reasons and basis for the Board’s opinion for finding he was capable of sedentary work without explaining his vocational and education experience.  The veteran argued the Board owed no deference to the Director’s decision and should review it de novo.

The Secretary took the position that the Director’s decision was not evidence, but that the Board does not have the authority to overturn the Director’s decision on TDIU determinations.   The Court rejected the Secretary’s argument and found the Board has a statutory mandate to render the final decision for the Secretary on all questions arising under 38 USC 511(a).  The Court noted the Secretary’s argument that the Director’s determination was a policy decision rather than claim decision and rejected it and noted instead the Secretary’s regulation mandates that all veterans who are unemployable due to service connected disabilities shall be rated totally disabled regardless of the scheduler rating.  See 38 C.F.R. 4.16.

This is an important decision in that it now allows the Board to review a TDIU decision by the Director.  I would note that C.J. Kasold wrote concurring and stating he would have found that the Veterans Court decision prohibiting an award of extraschedular TDIU in the first instance by the Board was wrongly decided. 

Decision by J. Moorman and Pietsch with C.J. Kasold concurring.

Reliford: The merits of substituting under Sections 5121 and 5121A

Reliford v. McDonald, Opinion Number 13-3048, was decided March 20, 2015 and is an interesting case on the merits of substitution of a surviving spouse under Sections 5121 or 5121A.

Sections 5121 and 5121A allow for substitution of a surviving spouse to gain accrued benefits.  Section 5121 is a separate and distinct claim from the deceased underlying claim and importantly must be made on the evidence that was either physically or constructively in the claims file at the time of death.  On the other hand, section 5121A is a procedural mechanism where a surviving spouse can be substituted in a pending claim and allows the ability to further develop the record, including imposing on the Secretary a duty to assist.

In this case, a mixed VA examination was of record (it originally recommended service-connection, but an addendum stated it reviewed additional evidence and changed her opinion to recommend against service-connection).  There was also a private physician opinion supporting aggravation.  The claim had already been subject to an appeal and remand from the Veterans Court to the Board on the issue of aggravation when the veteran died. 

The spouse submitted a VA form 210534 Application for DIC, Death Pension and Accrued Benefits.  The VA treated it as a request for substitution under section 5121A and send a notice saying they were working on her claim for substitution of claimant and  she may submit additional evidence in support or waive the opportunity to submit evidence.  The Board certified substitution and then remanded for additional development.  A new negative medical opinion was obtained by the VA.

Reliford argued the Board should not have processed her substitution under Section 5121A but 5121 and that as a result they should not have considered new evidence. VA agreed a spouse may seek benefits under either Section 5121 or 5121A, but noted it was processed as a request for substitution pursuant to VA policy and that such policy was beneficial for the vast majority of surviving spouses.

The Court recognized that the VA was attempting to help most spouses, but found “[n]onetheless, although the Secretary notified Mrs. Reliford that she could waive the right to submit additional evidence, he did not notify her that she could waive substitution, in contravention of his policy.”  Id. at *8.  As a result, the Veterans Court remanded the claim for a decision based on the record existing at the time of death.

Decision by CJ Kasold, joined by J. Davis.  J. Lance concurring in a separate opinion.

Swain and Earlier Effective Dates

Alan R. Swain v. McDonald, Opinion Number 14-0947, was decided January 8, 2015 and concerns an earlier effective date for a ratings increase related to hearing loss.

The veteran was service connection for a hearing loss in 1956 but granted a non-compensable rating.  He sought an increase in 2007 and a 2008 VA audiology examination using the Maryland CNC showed a non-compensable rating.  The veteran submitted in support 2009 and 2010 private audiology examinations showing a normal precipitously sloping to profound hearing loss.  Neither examination noted the test used and it appeared they did not use the Maryland CNC test.

Ultimately, an April 2013 remand from the Board resulted in a June 2013 VA audiometric examination in which the examiner used the Maryland CNC test showed normal precipitously sloping to profound hearing loss and the examiner opined that the results were consistent with the 2009 and 2010 examination results.

The RO granted a 10% rating effective to the June 2013 VA examination on the basis that an examination for hearing impairment must include a Maryland CNC test and thus that the effective date of a claim for an increased rating could be no earlier than the date of the Maryland CNC test showing an increased disability rating was warranted.

The Court flatly rejected the VA’s position that the effective date had to be tied to the Maryland CNC test result and stated instead that “we have held that an effective date should not be assigned mechanically based on the date of a diagnosis.  Rather, all the facts should be examined to determine the date that the veteran’s disability first manifested.”  Id. at *7.

The Court also reversed rather than remanded the case, recognizing “[t]he only reason the Board did not assign an effective date as of the November 10, 2009, audiometric test is because the Board thought it could assign an effective date only as of the date of the Maryland CNC test.”  Id. at *8.

This case shows that the proper focus for the effective date is not the date of the diagnosis but the date the disability first manifested.  This case is in line with cases such as Stower v. Shinseki which can be used as powerful tools to significantly push back the effective date.

Decision by CJ Kasold, joined by J. Hagel and J. Schoelen.