VA's Obligation to Submit Alleged Stressors to the JSRRC: Send It Again

Gagne v. McDonald, Case Number 14-0334, was decided October 19, 2015 and concerns

the duty to assist within the confines of a confirmation of a PSTD stressor and the VA’s obligation to send a request to the JSRRC to confirm the event.

The veteran was diagnosed with PTSD and submitted a claim for it.  The alleged stressor was that sometime in 1967 or 1968 while in Thailand while he was assisting in building a road his sergeant was crushed between two large vehicles and the veteran tried to assist with the very bloody wounds.

The VA sent letters to the veteran asking him to state within a 2 month date when the event took place.  The veteran wrote that the incident occurred in 1967 or 1968.  A review of the veteran’s military records showed he was a driver with the engineering company in Thailand from August 1967 through August 1968.

The VA never submitted the claim to the JSRRC for confirmation because the claims adjudication manual requires the search be narrowed to a 60 day period, which was apparently done at the request of the JSRRC staff.  The Court looked at the relevant code section which states the “VA will end its efforts to obtain records from a Federal department or agency only if VA concludes that the records sought do not exist or that further efforts to obtain those records would be futile.” 

The Court also at the  implementing regulation and determined it states the veteran must provide enough information to identify and locate the existing records including the appropriate time frame and that “the claimant must provide information ‘sufficient’ for the records custodian to conduct a search for the corroborative records.” 

The Court noted the regulation does not define “sufficient” or grant the records custodian or VA the authority to define the parameters of sufficient.  It also noted the VA should make as many requests as necessary and should only quit when the search would become “futile”.  The Court stated the “VA did not, at the very least, submit multiple requests to the JSRRC, each covering a different 60-day period.”

The Court noted that it does not support creating JSRRC fishing expeditions, but also noted with regard to multiple requests that it does “not find the 13-month period in this case to be unreasonably long, given the particulars of the stressor provided by the appellant.”

This is an important case as it helps explain the VA’s duty to assist in confirming stressors, and makes clear multiple request to the JSRRC are called for when the stressor is defined and clear.

Decision written by Greenberg, joined in by J. Kasold and Davis.

Earlier Effective Dates and 3.156

Mitchell v. McDonald, Case Number 13-1245, was decided November 18, 2015 and concerns the earlier effective dates under 38 CFR Section 3.156 and the application of Beraud v. McDonald, 766 F.3d 1402 (Fed. Cir 2014).

The veteran sought service connection for hearing loss in 1972.  In 1973 the RO denied the claim finding the current existence of a hearing loss has not been established.  He did not appeal the decision, but did submit a private audiogram in December 1973 which showed current hearing loss.  In 1999 the veteran sought to reopen his claim and the RO denied his request without listing his 1973 audiogram as evidence.  The veteran did not appeal the decision.  In 2007 the veteran sought to reopen his claim and the request was once again denied.  Once again the 1973 audiogram was not listed as evidence.

In 2008 the RO received medical opinions explicitly linking his hearing loss to his service, reopened the claim, granted benefits for bilateral hearing loss, and assigned a 100% rating from the date of the final application for benefits.

The veteran sought an earlier effective date of 1973 because the RO never addressed the private audiogram which was submitted 2 months after the RO’s first decision.

28 CFR Section 3.400(q) states the when new and material evidence other than service department records are received within an appeal period or prior to an appellate decision, the effective date will be as though the former decision had not been rendered.  A related provision, 38 CFR 3.156(b) states new and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed, will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period.  In summary 3.156 means that when new evidence is submitted within an RO decision’s appeal period, the RO must consider it and prepare a supplemental statement of the case; failure to do so prevents the RO decision from becoming final.

The Court noted the Beraud decision and then stated “There is no dispute [the veteran] submitted additional evidence pertaining to his hearing loss claim within one year of the October 1973 RO decision that denied service connection for hearing loss.  Under  3.156(b), when a claimant submits evidence within the appeal period, the claim remains open until VA provides a determination that explicitly addresses this new submission.  Here, VA never issued a decision ‘directly responsive’ to [the veteran]’s December 1973 submission.  His August 1972 claim, therefore, ‘remains open.’”

Therefore, the Court remanded the matter to the Board to provide a determination responsive to the 1973 submission of the private audiogram and to assign an effective date consistent with the regulations.

Section 3.156 is a powerful device to reach back and gain an earlier effective date when the VA had failed to consider new evidence within the appeal time of an earlier decision. 

Decision by J. Bartley and Pietsch with dissent by J Kasold.

Beware Motions to Reconsider Before the Board: Impact on the Timeliness of a Notice of Appeal

Gomez v. McDonald, Case Number 14-2751, includes an order decided November 19, 2015 and concerns a facially untimely notice of appeal after the veteran’s motion to the Board was never responded to.  The Court found the notice was timely. 

The Board issued a decision in June 2013.  In July 2013 the veteran, who was pro se, filed a “motion for revision of Board decision pursuant to Subpart-Section 20.1400 Rule A&B) Inextricably Intertwined”.  In August 2014, the veteran filed a notice of appeal with the Veterans Court explaining the Board refused to reply to his Motion for Reconsideration.

The Court received from the Secretary proof the veteran had filed the July 2013 motion, but that a mailroom employee had determined the statement should be sent to the RO rather than being addressed by the Board.  The RO took no action beyond placing it in the claims file.  Still, the Secretary characterized the submission to revise the Board decision based on CUE and that no motions to reconsider had been received by the Board, and filed a motion to dismiss or alternatively to find the notice of appeal was timely. 

The veteran argued, now through counsel, that the July 2013 motion abate the finality of the Board decision and that his prematurely filed notice of appeal was made effective when the Secretary stated the motion was not one for reconsideration.  The Court noted that in Ratcliff v. Shinseki, 26 Vet. App. 356 (2013) the court acknowledged the Board’s policy of treating all written expressions of disagreement as motions to reconsider.  It then followed the veteran’s argument and accepted the Secretary’s later decision to regard the motion as something other than a motion to reconsider as the final date.

Attorneys frequently see instances where there remains confusion by veterans about whether to file a motion with the Board or a notice of appeal with the Court.  If you have time, consulting an attorney before filing either might be most effective.

Order by J. Lance and Bartley.  Dissent by J. Kasold.

Board Review of Extraschedular Disability Ratings

Kuppamala v. McDonald, Opinion Number 14-2449, was decided December 30, 2015 and concerns the Board’s ability to review extraschedular disability ratings under 38 CFR Section 3.321(b)(1). 

The veteran had been rated 40% under the Diagnostic Code for ulcerative colitis, status post colectomy, which is the highest rating under DC 7329.  A referral to the Director of Compensation and Pension decided an extraschedular rating was warranted and awarded a 10% extraschedular rating which raised the veteran’s overall rating to 50%.

Before the Board, the veteran presented compelling evidence that he could not work due to the frequency of his bowel movements, their impact on his sleep, energy, memory, and concentration.  The Board appears to merely have repeated the Director’s analysis and upheld his decision without conducting its own independent review of the evidence.  The veteran appealed on this ground.  The Secretary responded by stating neither the Board or the Court has the ability to review extraschedular disability ratings.

The Court found that in fact the statute and regulation governing extraschedular ratings did not commit the assignment of a rating solely to the Director’s discretion.  The Court noted the Director in acting to decide extraschedular ratings is taking the place of a RO adjudicator and thus must comply with the same requirement as the RO and provide adequate reasons for the decision and a summary of the evidence considered.  The Court also noted that the Board in reviewing the Director’s decision reviews it de novo and may assign an extraschedular rating when appropriate.

Finally, in the case at hand, the Court noted the Board must provide an adequate statement of reasons or bases for its decision.  The Court agreed the Board “summarily concluded that the 50% disability rating is appropriate.  As [the veteran] points out, the Board did not discuss the VA medical examinations or address his symptoms of loss of appetite, weight loss, chronic fatigue, problems with memory and concentration, and lower back and leg pain—all of which he reports affect his ability to work.”  The Court then noted “The Board’s limited analysis frustrates the Court’s ability to review the Board’s assessment of [the veteran]’s disability picture” and remanded the case for review by the Board.

Decision by J. Schoelen, joined by J. Davis and Bartley.

Copeland: "Foot Injuries, Other" Deciphered

Ulysses Copeland v. McDonald, Opinion Number 14-0929, was decided June 25, 2015 and concerns the proper diagnostic code to be applied to bilateral pes planus with hallux valgus. 

The veteran was service connected and granted a rating of 50% for bilateral pes planus with hallux valgus under DC 5276.  The veteran sought separate 30% ratings under DC 5284, which governs “foot injuries, other”, arguing that both DC 5276 and DC 5284 are potentially appropriate diagnostic codes and that DC 5284 is applicable to all foot conditions as a catch all.

The Court rejected the veteran’s position.  It read DC 5284 in the context of other disabilities of the foot and found where a condition is specifically listed in the rating schedule, it should be rated under that code.  It also found that rating it by analogy to DC 5284 was not appropriate. 

Judge Greenberg dissented and wrote that DC 5284 was directly applicable to the veteran’s combined disability.  He read DC 5284 was a broader diagnostic code for foot injuries rather than conditions.  He wrote that “Nothing in the rating schedule prevents a disability from being appropriately compensated under multiple diagnostic codes, and the majority’s implicit suggestion that a disability listed in the rating schedule can only be rated under its listed DC, when other provisions exist, comes dangerously close to the Court reviewing the schedule for ratings for disabilities.”  Id. at *8.

Decision by J. Lance and J. Schoelen.  Dissent by J. Greenberg.

Wingard: The Veterans Court's Inability to Review the Rating Schedule

Wingard v. McDonald, Opinion Number 11-1214, was decided May 8, 2015 and concerns non-service connected burial benefits under 38 USC Section 2302, but is really instructive as to the Veterans Court’s jurisdiction to review the rating schedule.

The veteran had a hernia that was service connected but given a noncompensable rating.  The veteran’s daughter argued the noncompensable rating was at odds with the actual statute.  She then argued from this position that the requirement for a burial benefit was met because the phrase “in receipt of compensation” should be interpreted to include veterans who are entitled to receive compensation at death. 

In a prior decision, the Veterans Court held the statutory prohibition on judicial review of the content of the rating schedule did not preclude the Court from addressing the argument that the regulations are contrary to the plain and unambiguous language of 38 USC Sections 1110 and 1155.  But, then found the Secretary’s interpretation of the statute was reasonable.  On appeal the Federal Circuit found that 38 USC 7252(b) which discusses the Veteran Court’s jurisdiction prohibited the court from determining whether the rating schedule, by including a 0% disability, violates the statutory constraints.

On remand, the Veterans Court made its displeasure known at the Federal Circuit’s decision.  The Court admits Congress did not want piecemeal challenges to the rating schedule but states  the veteran argued that 38 USC Section 1155 specifically lays out 10 grades of disability beginning at 10% and does not authorize a 0% rating.  “The appellant does not seek to alter the substance of the Secretary’s regulations relating to a particular disability or second guess the Secretary’s absolute discretion to determine what warrants one of the 10 disability ratings authorized by section 1155.  Indeed, what if the Secretary were to adopt a schedule authorize a 15% or 17% disability rating, clearly contrary to the plain language of section 1155?  How could such a blatant violation of the clear wording of the statute be beyond our jurisdiction?”  Id. at *5.  “Thus, respectfully, we see the appellant’s issue not as a substantive challenge to the schedule as conflicting with the statute, but as a charge that the Secretary’s adopted schedule has exceeded the contours of the its enabling statute.”  Id. at *6.  However, the Veterans Court recognized it was bound by the Federal Circuit’s determination that it could not review the issue.

This is an interesting decision in that it both illustrates the fact the Court's cannot meddle with the rating schedule while also explaining clearly why some limited Court involvement is desirable.

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

Da Nang Harbor and bluewater veterans

Gray v. McDonald, Opinion Number 13-3339, was decided April 23, 2015 and concerns the Bluewater designation and whether a veteran who served in the Navy aboard a ship that anchored in Da Nang Harbor is entitled to an Agent Orange Presumption.

The veteran served in the Navy and his ship anchored in Da Nang Harbor.  He was seeking service connection for several ailments that are presumptively linked to Agent Orange.  The veteran argued he should be afforded those presumptions based on his location in Da Nang Harbor.  He argued the VA’s interpretation of Da Nang Harbor as an offshore rather than inland waterway was arbitrary and capricious and the Court held the veteran’s interpretation was inconsistent with the purpose of the regulation and does not reflect the Agency’s fair and considered judgment.

The VA requires actual presence on the landmass or inland waters of Vietnam for a presumption of exposure to Agent Orange.  The issue was whether being anchored in Da Nang Harbor constituted service in inland waters. 

The Court recognized the blue versus brown water distinction created in Hass v. Peake and that an agency’s interpretation of its own regulations is given substantial deference.  The Secretary argued labeling Da Nang Harbor bluewater is a reasonable interpretation of its statute and sought to rely on the adjudication manual, a training letter, and a service bulletin as support.  The Court recognized these documents labeled Da Nang Harbor bluewater, but noted they did not explain the likelihood of herbicide exposure based on spraying but seemed to rely on the fact the harbor is easy to sail into.  The Court stated “Absent a connection to the probability of exposure based on spraying, the Court finds the rationale supporting VA’s designation of Da Nang Harbor is inconsistent with the regulation’s purpose of compensation based on the probability of exposure.”  Id. at *13.  Instead the Court found the documents the VA relied upon are devoid of any indication of a fact-based assessment of the probability of exposure to aerial spraying in Da Nang Harbor and determined the VA’s definition of an inland waterway did not reflect the agency’s fair and considered judgment. 

The Court ultimately did not grant service connection but remanded with the instruction the VA had to reevaluate its definition of inland waterways—specifically Da Nang Harbor—and exercise its fair and considered judgment to define them in a manner consistent with the regulation’s emphasis on the probability of exposure.

This is an important case that potentially impacts many Navy veterans who anchored in an inland waterway and were exposed to aerial spraying, but have been denied presumptive Agent Orange exposure because the VA has uniformly labeled these waterways as offshore rather than inland.  It is still unclear how the VA will handle the remand and if they will try to limit its reach, but it bears close watching and could result in compensation for many Navy veterans.

Decision by J. Schoelen and joined by J. Hagel and J. Davis.