An Excellent Article on VA Delay and Dysfunction

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James: Equitable Tolling and Filing the Notice of Appeal

James v. Shulkin, Case Number 16-1948, decided October 30, 2017 is another in the line of cases dealing with the equitable tolling of the time allowed to file the notice of appeals with the Court of Appeals for Veterans Claims. 

In this case, the veteran placed his notice of appeal (NOA) in his personnel mailbox the day the NOA was due to be sent.  He then raised the mailbox flag on his box and went out of town for the weekend.  When he got back, he found the mailbox flag was lowered and the mail had not been taken.  He then mailed it at his local post office, outside of the 120 day filing period.  The Court ordered the veteran to show cause why the NOA should not be dismissed as an untimely filing. 

The Court noted equitable tolling is to be determined on a case by case basis, but must be allowed if  the veteran shows three elements (1) extraordinary circumstance; (2) due diligence; and (3) causation.

The veteran argued “ the 120-day appeal window should be equitably tolled because an errantly lowered flag on his residential mailbox constitutes an extraordinary circumstance beyond his control. He argues that "[t]his extraordinary circumstance is akin to other cases in which veterans have filed their NOA on time, but in the wrong place," citing Santana-Venegas, 314 F.3d at 1293, where the veteran timely filed his NOA, but mailed it to the RO instead of the Court.”  Id. at *2.  The Court rejected this argument, saying

The logic of the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) in Santana-Venegas does not apply in this case. The Federal Circuit explicitly noted that "'[m]isfiling cases within the veterans' system are unlike the typical late-filing cases where the limitations period expires before the would-be claimants perform any action to preserve their legal rights.'" Santana-Venegas, 314 F.3d at 1297 (quoting Jaquay v. Principi, 304 F.3d 1276, 1287-88 (Fed. Cir. 2002) (citations omitted)). In the case at hand, Mr. James did not timely misfile his appeal to this Court; rather, he placed his NOA in his personal mailbox on the last day of the appeal period, left town for the weekend, and ultimately mailed his NOA 4 days late. The Court declines to hold that the

alleged extraordinary circumstances here are like those in Santana-Venegas and other timely misfiling cases.

Id. at *2.

The Court finally concluded that “a fallen mailbox flag is not an extraordinary circumstance beyond the appellant's control that warrants equitable tolling, but rather an ordinary hazard of last-minute mailing that could have been avoided but for the appellant's "garden variety neglect."  Id. at *2-3.

Judge Greenberg wrote a dissent that pointed to a key difference in this case and Santana-Venegas.  He noted the majority found “the facts here are akin to ‘the typical late-filing cases where the limitations period expires before the would-be claimants perform any action to preserve their legal rights.’ See ante at 2 (emphasis added) (quoting Santana-Venegas v. Principi, 314 F.3d 1293, 1297 (Fed. Cir. 2002)) (internal quotation marks omitted). Yet, it is undisputed that the appellant placed his NOA in the mailbox on the 120th day, and thus did everything required of him to ensure timely mailing under 38 U.S.C. § 7266.” Id. at *3.  He then essentially argues the majority relies on old case law that ignores repeated admonishments from the Federal Circuit for denying tolling and arguing “The Court must start applying its equitable powers more broadly.”

The decision is a warning to veterans and practitioners that they need to file their notice of appeal quickly and without delay.

Per Curiam Decision by Judges Schoelen and Pietsch. Dissent by Judge Greenberg.

Mead: A Late EAJA Fee Application and Equitable Tolling

Mead v. Shulkin, Case Number 15-015(E), decided October 27, 2017 considers a late EAJA application and whether equitable tolling might apply.  The Court seems to admit that equitable tolling could apply, but rejects it in this case.

This is a sad case where an attorney helped a veteran, but then was diagnosed and had surgery at nearly the same time a joint motion for remand was made.  The attorney submitted a late EAJA application and pointed to her cancer diagnosis and surgery as well as related depression.  The Court requested additional information as to the attorney’s condition and specifically asked her to seek an opinion from her medical providers as to her capacity to handle her affairs during the period to be tolled.  The attorney wrote back declining to provide further information in light of a concern for her privacy and pointed to her professional responsibility of candor to the court.

The Court denied her EAJA application noting she could have sought to have any submission sealed. 

Judge Greenberg wrote an impassioned dissent that noted the attorney’s potentially life threatening illness and noted the attorney’s professional license is contingent upon candor with the court and that absent a specific reason to doubt such candor, the Court should presume its truth.  The dissent further and attacked the Internal Operating Procedure of the Court.  Specifically, he notes 28 USC 7254 states a majority of the judges of the Court shall constitute a quorum for the transaction of the business of the Court, but notes that only two of his colleagues expressed disagreement with his single-judge decision and voted the matter to panel.  The Court had six active members.  He argues that sending a matter for precedential panel disposition constituted business of the court and should have required a 4 vote majority and highlights how this internal operating process is different compared to other appellate courts.  

Greenberg ends with as poetic a paragraph as you might find in an appellate decision:

Any disagreement with my exercise of my own equity discretion in February 2017, when I originally granted tolling of the appellant's EAJA application, should have been pursued by one of the parties through an appeal or motion for reconsideration, or at the very least should have been disturbed only by a "majority of the judges of this Court." 38 U.S.C. § 725(c)(1). A process that allows for a single Judge's veteran-friendly decision to be overturned merely because two other Judges disagreed goes against the intent of Congress in creating our Court, which was to "place a thumb on the scale in the veteran's favor in the course of administrative and judicial review of VA decisions." Henderson, 562 U.S. at 440. I do not believe that in establishing our Court, Congress intended such limitless dilution of a single Judge's statutory authority. It is for these reasons that I dissent.

Per Curiam decision by Judges Schoelen and Bartley, J. Greenberg issued a dissent.

Susic: Substitution of An Adult Child Upon a Veteran’s Death

Susic v. Shulkin, Case Number 13-0158, decided October 26, 2017 considers the ability to substitute an adult child upon a veteran’s death.  At issue was potentially over a decade of accrued benefits related to an earlier effective date.  The case had resulted in numerous appeals and the veteran died shortly after the Federal Circuit remanded the case.

Three adult children of the veteran sought to be substituted.  They argued that while they were adult children, the potential earlier effective date involved a time when the children were still minors.

Substitution is governed largely by 38 USC 5121 as well as 38 USC 101(4)(A) which defines child as an unmarried person under 18 or who before turning 19 became permanently incapable of self-support or who is over 18 but less than 23 and seeking higher education.

The Court determined

In section 5121 of title 38, U.S. Code, Congress stated that an accrued benefits

determination is to be made "upon the death of a veteran." 38 U.S.C. § 5121(a)(2). It is clear from the plain language of the statute that to qualify as an accrued benefits beneficiary, an individual must satisfy the requirements of the statutory framework for these benefits when the veteran dies as opposed to at some point during the pendency of the veteran's claim.

The Court also addressed appellant’s arguments that the law had been changed by Congress and stated:

The Court also concludes that the appellant's counsel has failed to persuade the Court that

when it enacted section 5121A, Congress intended to fundamentally change the accrued benefits beneficiary framework. See Hilkert v. West, 12 Vet.App. 145, 151 (1999) (en banc) (finding that the appellant bears the burden of persuasion on appeals to this Court), aff'd per curiam, 232 F.3d 908 (Fed. Cir. 2000) (table). Congress enacted 38 U.S.C. § 5121A to "improve and modernize VA claims processing." Breedlove, 24 Vet.App. at 14. The appellant's counsel has not identified any support for the proposition that Congress intended section 5121A to change anything other than how VA processed its claims, particularly as it relates to the dependency requirements for accrued benefits beneficiaries.

  

This case is an example of the fundamental unfairness that can result from the VA’s dilatory measures in making a fair decision.  Delays can result in the death of a veteran and a situation where the VA never has to pay the benefits that were long owed.

Per Curium decision by Judges Schoelen, Pietsch, and Greenberg.

Urban: Obstructive Sleep Apnea and Asthma and Agency Deference

Urban v. Shulkin, Case Number 15-3744, decided September 18, 2017 considers 38 CFR Section 4.96(a) and how to evaluate two disabilities on the basis of the predominate respiratory disability alone.  Underpinning this case is extensive case law calling for courts to defer to reasonable agency interpretations of regulations.

Here, the veteran was service connected for both asthma and obstructive sleep apnea, but only given a 60% rating based on the asthma.  The Board noted that if rated separately, the OSA disability would be evaluated at 50%, but noted 4.96(a) called for awarding a rating for the predominate respiratory disability. 

Section 4.96(a) provides that:

[r]atings under [DCs] 6600 through 6817 and 6822 through 6847 will not be combined with each other. . . . A single rating will be assigned under the [DC] which reflects the predominant disability with elevation to the next higher evaluation where the severity of the overall disability warrants such elevation.

The veteran argued the phrase requires the VA to look at symptoms of both disabilities and rate them under DC 6602, essentially arguing his symptoms need not match the criteria for a higher evaluation listed in listed in DC 6602 to obtain a higher evaluation under 4.96(a) and that OSA symptoms not listed in DC 6602 may form the basis of a higher evaluation under DC 6602. 

The VA contended that after determining which disability is predominate (which gives a higher rating), the VA should then apply the predominate disability diagnostic code and consider all symptoms attributable to either disability that is found in the predominate diagnostic code.

The Court found 4.96(a) was ambiguous and determined the VA’s interpretation was warranted deference.  If found the VA’s interpretation was reasonable and consistent and this interpretation would avoid pyramiding. 

The veteran then argued that the VA’s application of 4.96(a) is flawed because the symptoms and treatment for OSA and asthma are so different.  The Court then noted:

[U]nderlying his argument seems to be genuine disagreement with VA's decision to construct the rating schedule to prevent OSA from receiving its own separate evaluation in this instance. 

However, "[t]he Court may not review the schedule of ratings for disabilities adopted under section 1155 of this title or any action of the Secretary in adopting or revising that schedule."  38 U.S.C. § 7252(b).  "The Secretary's discretion over the [rating] schedule, including procedures followed and content selected, is insulated from judicial review with one recognized exception limited to constitutional challenges." Wanner v. Principi, 370 F.3d 1124, 1131 (Fed. Cir. 2004).  Section 4.96(a) clearly prohibits conventional evaluation practices from being applied in this case.  38 C.F.R. § 4.96(a) ("Ratings under DC 6600 through 6817 and 6822 through 6847 will not be combined with each other"). Despite Mr. Urban's discontent with the effect of § 4.96(a) in his case, the Court has no authority to address whether OSA and asthma are so dissimilar that § 4.96(a) unfairly operates to his disadvantage. See id.

The veteran also argued the case should have been referred for extraschedular considerations, but the Court rejected this argument as well.

This is a narrow decision addressing 38 CFR Section 4.96(a) and the use of a predominate respiratory disability, however, it also demonstrates how agency deference can work against a veteran.  It certainly shows a failing of the respiratory disability regulations, but also shows the Court will defer to the VA’s interpretation in many situations.  However, the veteran may still have a path forward using TDIU, which should allow for the use of symptoms or both OSA and asthma.

Decision by Judge Bartley, joined in by Chief Judge Davis and Judge Pietsch.

Jensen: Specially Adapted Housing and “loss of use”

Jensen v. McDonald, Opinion Number 15-4788, was decided September 12, 2017 and concerns the eligibility of a veteran to specially adapted housing (SAH).

The veteran needs a cane to ambulate and for a while effectively used aqua-therapy.  However, the travel and expense to aqua therapy was onerous.  Therefore, he sought SAH to install a therapeutic pool.  The veteran was service connected for radiculopathy of both extremities at 10% as well as a rating for his cervical and lumbar spine, urinary condition, and SMC.  While rated schedularly at 90% he was receiving TDIU.

The VA agreed the veteran met the permanent and total service connected requirement and the pool was a type of SAH available.  The argument was over subparagraph (B), the Court stated:

The portion of subparagraph (B) that applies to this case states that, to be eligible for SAH, a veteran's disability must be "due to the loss, or loss of use, of both lower extremities such as to preclude locomotion without the aid of braces, crutches, canes, or a wheelchair." 38 U.S.C. § 2101(a)(2)(B)(i). The Board made no findings against the appellant concerning the phrases "due to" and "both lower extremities." The Board determined that the appellant's locomotion is "precluded . . . without the aid of braces, crutches, canes, or a wheelchair." That finding is favorable to the appellant. The Court, therefore, will not disturb it. See Medrano v. Nicholson, 21 Vet.App. 165, 170 (2007). The Board also concluded, however, that the appellant's "serviceconnected disabilities do not result in the loss of use of . . . lower extremities." The only question raised by this case, then, is whether his disabilities produce a "loss of use" of both of his lower extremities.

Id at. *4.

The Board and Secretary argued the phrase “such as” in section 2101(a)(2)(B)(i) means “and” essentially arguing the section means “a veteran is eligible for SAH if his permanent disability produces (1) loss, or loss of use of both lower extremities; AND (2) precludes locomotion without the aid of braces, crutches, canes, or a wheelchair.”  Id. at *4. 

“The appellant assert[ed] that the Board erred by ignoring the plain meaning of the phrase "such as." He argues that section 2101(a)(2)(B)(i) clearly conveys that a "loss of use" exists if a veteran's locomotion is precluded without the aid of braces, crutches, canes,

or a wheelchair.  Id. at *4.

The Court accepted the veteran’s reading of section 2101(a)(2)(B)(i).  It noted that

In the scheme that the Secretary envisions, a veteran who has a reduction in the functionality of his lower extremities so severe that he cannot walk without a cane might be ineligible for SAH because he does not have some sort of additional loss of use. Taken one step farther, the Secretary's argument and the Board's findings in this case suggest that the Board believes that it could conclude that a permanently wheelchair-bound  veteran who is entitled to receive disability benefits for a disorder that causes a reduction in functionality in both lower extremities so severe that he cannot walk does not have a loss of use sufficient to warrant SAH.  That creates an undefinable and unworkable standard laden with an unacceptably high potential for absurd and unfair results.

We think it better to view "loss of use" in a manner consistent with the definitions discussed above. It is a deprivation of the ability to avail oneself of the anatomical region in question. It is a general term, one that can readily accept additional specificity in various circumstances.

"Such as" is, if nothing else, a directional phrase, and it links "loss of use" to preclusion in section 2101(a)(2)(B). Consequently, in that provision, a loss of use exists if a veteran has suffered a deprivation in his ability to use his lower extremity so severe that he is precluded from perambulating without one of the required assistive devices.  That definition comports with VA's view of preclusion.

Id. at *14-15

The Court acknowledged the VA’s concerns that too loose a standard would open SAH to all individuals prescribed an assistive device in conjunction with a lower extremity disability.  However, it stated that the VA needs not concern itself with too loose a standard as “That individual must (1) have a permanent and total disability (2) due to a disorder that (3) involves both lower extremities and (4) causes a loss of use so severe that it precludes locomotion without the regular and constant use of assistive devices. There are plenty of limitations built into that standard.”  Id.at *16.

Judge Bartley wrote an interesting concurrence essentially arguing the Court should use the “loss of use” standard as defined in the SMC contexts, which the Secretary had urged.  However, she would have ruled the veteran did meet that standard because the Board had already ruled the veteran’s locomotion was precluded and found the “loss of use” standard would have been triggered by that finding.

This is an interesting case that tests the bounds of SAH and the term loss of use.  While seemingly limited to SAH uses, it might assist in defining “loss of use” in other contexts, such as SMC.

Decision by J. Pietsch, joined in by J. Greenberg.  J. Bartley wrote a concurrence.

Sharp: DeLuca, Lay Statements and Inadequate Medical Examinations

Sharp v. Shulkin, Case Number 16-1385, decided September 6, 2017 examines a medical examination’s adequacy in light of its statement that “It is not possible without mere speculation to estimate either loss of [range of motion] or describe loss of function during flares because there is no conceptual or empirical basis for making such a determination without directly observing function under these circumstances.”

The Court began by noting that DeLuca states

that a VA joints examination that fails to consider the factors listed in §§ 4.40 and 4.45 is inadequate for evaluation purposes. Specifically, for an examination to comply with § 4.40, the examiner must "express an opinion on whether pain could significantly limit functional ability" and the examiner's determination in that regard "should, if feasible, be portrayed in terms of the degree of additional range-of-motion loss due to pain on use or during flare-ups." … Flareups, in other words, must be factored into an examiner’s assessment of functional loss.

(internal quotation marks and alteration omitted);

The Court also noted that the VA Clinician’s Guide states “When conducting evaluations for musculoskeletal disabilities, examiners are instructed to inquire whether there are periods of flare and, if the answer is yes, to state their severity, frequency, and duration; name the precipitating and alleviating factors; and estimate, "per [the] veteran," to what extent, if any, they affect functional impairment. See generally id., ch. 11. These instructions appear in worksheets pertaining to musculoskeletal examinations of the spine, shoulders, elbows, wrists, hips, knees, ankles, feet, and hands, as well as muscles.”

The Court notes that an examination during a flare-up is not always required and that sometimes a medical opinion can state it can’t offer an opinion without resorting to speculation.  Id. at *6-7.  But, the Court notes that Jones v. Shinseki, 23 Vet. App. 382 (2010), “permits the Board to accept a VA examiner's statement that he or she cannot offer an opinion without resorting to speculation, but only after determining that this is not based on the absence of procurable information or on a particular examiner's shortcomings or general aversion to offering an opinion on issues not directly observed.”

The Court then finds in this case the Board failed to provide adequate or bases for its determination the examination was adequate.  It then importantly notes “Fortunately, neither the law nor VA practice requires that an examination be conducted during a flare for the functional impairment caused by flares to be taken into account. Instead, DeLuca and its progeny clearly, albeit implicitly, anticipated that examiners would need to estimate the functional loss that would occur during flares, as is evident from the fact that Mr. DeLuca's left shoulder disorder flared only "at times.”  Id. at *8.

Thus, the Court noted:

The critical question in assessing the adequacy of an examination not conducted during a

flare is whether the examiner was sufficiently informed of and conveyed any additional or increased symptoms and limitations experienced during flares. See Mitchell, 25 Vet.App. at 44.  Moreover, because the September 2015 VA examiner declined to offer an opinion as to additional function loss during flares "without directly observing function under these circumstances," R. at 125, her position is at odds with VA's guidance on the matter. As noted above, the VA Clinician's Guide makes explicit what DeLuca clearly implied: it instructs examiners when evaluating certain musculoskeletal conditions to obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves.

Id. at *9.  Thus, the examination here was inadequate because the examiner did not elicit relevant information as to the veteran’s flare-ups or ask him to describe the additional functional loss during flares or explain why the examiner failed to do so.  Id.  The Board also erred by relying on this inadequate examination.  Id. at *11. 

The Court then dealt with the Secretary’s argument that the record did not contain adequate information as to functional loss and turns the argument against the VA.  It stateds “the Court agrees, with the caveat that the examiner herself was responsible for

failing to elicit such information. However, to the extent that the Secretary is asserting that a veteran's statements can never provide an adequate basis on which to formulate an opinion regarding additional functional loss during flares, that assertion is inconsistent with this Court's case law and VA's own practice as set forth in VA's Clinician's Guide.”  Id. at *11. 

In a footnote, the Court does state an examiner or the Board is not required to accept a veteran’s allegations regarding flare-ups if inconsistent with other reliable evidence.  Id. at n. 5.

This decision by Judge Bartley is a powerful tool to veterans.  It forces the VA to seriously consider the lay statements of veterans regarding functional loss under DeLuca.  It also underscores the fact a veteran should be able to articulate the functional loss aspect of his musculoskeletal disabilities before he goes into an examination.

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