Cousins: Spondylolysis, CUE, Defects and Degenerative Conditions

Cousins v. Wilkie, Case Number 2017-1971, decided September 28, 2018 is a Federal Circuit Court of Appeals case that addressed whether a 1950s RO decision finding the veteran’s lumbar condition should not be service connected contained clear and unmistakable error.

The veteran had not back problems on his September 1951 entrance examination and in fact hurt his back in 1952 resulting in diagnosis of a back strain and restricted duty.  A 1953 x-ray showed spondylolysis.  After discharge, the veteran sought service connection for his back, but the claim was denied because “Service records show that, on 5-9-52, the veteran had a pain in the back “catching in nature.” Examination showed a mild back strain. There is no further evidence of treatment or complaint of this condition. It is  vonsidered to have been acute, without residuals”  Id at *3. 

Finally, a 2013 decision granted service connection and granted an effective date as the date of application.  The veteran argued an earlier date of discharge effective date was owed because the 1954 decision contained CUE.  The Board

acknowledged that the 1954 decision contains no reference to, or discussion of, the fact that Mr. Cousin was placed on a permanent physical profile for his back in March 1953, but noted under then-existing precedent the RO was not required to give a detailed explanation of its findings. Citing the 1946 Schedule for Rating Disabilities (“1946 schedule”), the Board found that because Mr. Cousin’s 1953 x-ray revealed evidence of a “defect,” the RO “might well have concluded that the condition” was a noncompensable “congenital defect.”

Id. at *3.  The Veterans Court affirmed the Board decision saying it offered a plausible explanation for discounting the 1953 records and that the RO in 1954 did not have to fully explain its findings.

Essentially, the veteran argued the Board and Veterans Court did not apply the proper legal standard for determining whether a condition is a non-compensable “defect” in

crediting the RO’s 1954 decision.  The veteran argued his medical records demonstrated he had a back condition called spondylolysis, which, based on undisputed facts, is a “disease” capable of progression and not a “defect” for purposes of compensation under then-existing law.  Id. at *5.  The Federal Circuit pointed out that the Secretary conceded the veteran was diagnosed with spondylolysis and that it is a degenerative disease.  Id. at *6-7.  The Court then stated

the only way the 1954 RO could have found against Mr. Cousin is if it concluded the legal definition of “defect” under the 1946 schedule included degenerative conditions. That would have been error as a matter of law. At no point has the government suggested that the legal definition of “defect” could include a degenerative condition. To the contrary, the Department of Veterans Affairs and the government have argued that a “defect” under the regulation does not include degenerative conditions.

Id. at *7.

The Court thus concluded

we are not retroactively applying this law; rather, we are interpreting the 1946 regulation in effect at the time. Whether a defect under the regulation can include a degenerative condition is a question of law over which we have jurisdiction. We conclude that “defect” is properly construed as excluding degenerative conditions, and we do not understand the government to contend otherwise in this case.

Id.  The Court then stated based on the proper legal interpretation of defect and the concessions by the Secretary, the RO could not determined spondylolysis was a defect and thus the 1954 decision as a matter of law contained clear and unmistakable error.  Id. *8.

The veteran sought for a judicial determination defining sedentary work the same as a Department of Labor publication.  The Court refused, reasoning that sedentary work is absent from Section 4.16 and thus not necessarily a part of a proper TDIU analysis.  Id. at *10.

The Court expressed sympathy that the decision did not offer a clear cut resolution by refusing to define the term sedentary work.  Instead, it noted the definition of sedentary work must be discerned on a case by cases basis from the medical and lay evidence presented and in light of the veteran’s education, training, and work history.

The Court also explicitly stated the Secretary could use notice and comment rule making to amend Section 4.16 to include and define the term sedentary work or veterans and veteran advocates could petition the VA for rulemaking to do the same.  However, I suspect the VA and advocates will let the matter alone.  My reading is that a grant or denial of TDIU should consider all evidence, including the veteran’s work history and education.  In other words, a holistic approach to consideration of TDIU (as required) does not specifically need the term sedentary work to be defined.

This is an early decision by Judge Toth and frankly demonstrates a willingness to refuse both the Secretary and veteran advocates what they want.  It likely reveals a judicial temperament that is tough but clear minded and deferential to the language of the law.

This is an unusual case in that rather than remanding for further development, it found as a matter of law that CUE existed. 

The decision was by Judge Moore and joined in by Judges Schall and Wallach.

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Burton: Systemic Therapy For Skin Disabilities (Johnson v. Shulkin Continued)

Burton v. Wilkie, Opinion Number 16-2037, decided September 28, 2018 addresses and helps define systemic therapy for skin disabilities.  It is essentially an explanation of Johnson v. Shulkin, 862 F.3d 1351 (Fed. Cir. 2017). 

DC 7806, which impacts certain skin conditions, asks whether the treatment is systemic therapy.  The Court noted:

In Johnson, the Federal Circuit reversed this Court's decision that under DC 7806 topical

corticosteroids categorically constituted systemic therapy. 862 F.3d at 1352. Instead, the Federal Circuit held that the DC contemplated two types of therapy: systemic and topical. Id. at 1354. The court referenced Dorland's Illustrated Medical Dictionary in defining "systemic therapy." Id. at 1354-55. The court noted that "systemic" is defined as "pertaining to or affecting the body as a whole" and "therapy" is defined as "treatment of diseases." Id. at 1355. We will rely on these definitions to guide our analysis.

Although the Federal Circuit found a distinction between topical and systemic therapies, it made clear that sometimes a topical treatment can be systemic therapy. Id. at 1355-56. The Federal Circuit stated that "a topical corticosteroid could be considered either a systemic therapy or topical therapy based on the factual circumstances of each case." Id. at 1356. The court went on to opine that a topical therapy could be systemic if it was applied on a large enough scale.

Id. at *5.

The Court first rejected any argument that the key to systemic therapy required large scale topical application and held “large scale application is merely an example of a factual circumstance that can convert topical treatment into a systemic therapy.” Id. at *6.

The Court then stated “to qualify as a systemic therapy it is not enough that the

treatment standing alone affects the entire body. Rather, it must affect the entire body in its treatment of the condition at issue.”  Id.  The Court then concluded that

the Board must determine whether a topical treatment operates by affecting the body as a whole in treating the veteran's skin condition. Stated a different way, the Board must decide how the topical treatment works – not by its contact with the affected location of the condition on the body, but instead in some other way that affects the body more broadly. For example, a topical treatment may affect the body as a whole if it circulates through the bloodstream. Thus, in affecting the body as a whole, it essentially would not

matter whether the topical treatment was applied where the condition was located or some other part of the body, as the body in its entirety would be involved in the treatment.

How a topical treatment works is a factual question that may, but not necessarily, require

a medical opinion for its resolution.

Id. at *6-7.

While discussing this line of reasoning, the Court took time to attack the VA’s failure to update the M21-1 (the VA Adjudication Procedures Manual).  It noted the manual conflicts with Federal Circuit case by stating topical treatments are not considered systemic.  Id. at *7.  It then went further and stated “The Secretary's delay of a year and counting in updating VA's materials to comply with a Federal Circuit decision is unacceptable and especially egregious because it is not the first time that VA has delayed in implementing a court directive.”  Id. at *8.

The Court then noted the VA has changed the skin disordered diagnostic code to state topically applied treatment cannot qualify as systemic therapy, though the rule does not apply to claims made prior to August 13, 2018.  It then seemed to fire a warning shot at the VA in terms of a continued failure to implement court directives stating:

As noted above, after continued delay in updating the M21-1 to reflect Johnson, VA

published a final rule and changed DC 7806, effective August 13, 2018. There is nothing wrong with an administrative agency engaging in rulemaking, as VA has done, when it disagrees with a judicial interpretation of a regulation. Provided the agency follows the appropriate procedures, such rulemaking is a prime example of how separation of powers operates in American Government. An agency can change the law going forward. But  what an agency may not do is refuse to implement a court's decision while the agency seeks to change a regulation to conform to its view. Such refusal is antithetical to separation of powers. It is not acceptable in a country governed by the rule of law. VA should stop these actions of its own accord. Otherwise, the courts will have to act to preserve the constitutional separation of powers.

Id. at *8.

The Court then considered the impact of side effects from medication and determined:

It is simply not enough under DC 7806 for something to be systemic; it must also be treatment for the condition.  Therefore, if a treatment does not affect the body as a whole in the way in which it treats a skin condition, it cannot be considered systemic therapy for that skin condition, regardless of whether side effects result.

As the Secretary pointed out at oral argument, side effects can raise the possibility of

secondary service connection.

Id. at *9.

The Court also considered the veteran’s use of Benadryl and argument that if its use was systemic it might entitle the veteran to a higher rating, and determined

In Warren, this Court held that "systemic therapy" in DC 7806 was not limited to corticosteroids or immunosuppressive drugs. 28 Vet.App. at 197. Rather, the use of the phrase "such as" in DC 7806 before "corticosteroids or other immunosuppressive drugs" means that "those drug types do not constitute an exhaustive list of all compensable systemic therapies, but rather serve as examples of the kind and degrees of treatments used to justify a particular disability rating." Id. Therefore, the Board must determine whether a given treatment is "like" a corticosteroid or other immunosuppressive drug in determining whether the treatment constituted a systemic therapy to warrant a higher rating.

Id. at *10.

This case reveals the depths the VA will go to avoid a judicial decision they disagree with—they will simply change the regulation to make a less pro-veteran friendly regulation and refuse to change its manual (which gives guidance to VA decision-makers). It was heartening to see the Court especially take issue with the refusal to change the manual to conform with court directives. 

Decision by Judge Allen and joined in by Judges Schoelen and Greenberg.


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Overton: Presumption of Exposure to Agent Orange, Bluewater v Brownwater Part 3

Overton v. Wilkie, Case Number 17-0125, decided September 19, 2018 is the third case in a long line of cases (including many cases by Gray) dealing with the VA’s illogical distinction between Blue and Brownwater veterans.

The blue versus brownwater distinction is important because those veterans who served on what is termed brownwater areas are deemed to be exposed to Agent Orange and thus a presumption applies to several disabilities.

In the 2015 decision Gray v. McDonald, the Court held the VA’s interpretation of a statute designating Da Nang Harbor as offshore was arbitrary and capricious and remanded the case so the VA could reevaluate its waterway definition in light of the purpose of the regulation, which is to provide compensation based on herbicide exposure.  Rather than creating a more pro-veteran rule, the VA modified its Adjudications Procedural Manual (M21-1) to exclude all Vietnamese bays and harbors from the definition of “inland waterways.” 

Importantly, the VA avoided changing the actual regulation, which would have required notice and comment rulemaking and simply changed its internal manual.  The result was a challenge before the Federal Circuit of the manual change and a decision, Gray v. Secretary of Veteran Affairs, by that Court stating the M21-1 was internal manual used to guide adjudicators and was not a substantive rule and that the Board is not bound by the M21-1.

In light of these decisions, the Board denied service connection to Overton for among other things type II diabetes mellitus, which would normally be presumed to be caused by Agent Orange for veterans who served in Vietnam (including in inland waterways).  The Court noted “The Board relied on the modified M21-1 provision to deny the appellant's claims concerning presumptive herbicide exposure.11 Yet, the Board did not discuss why it relied on the M21-1.”  Id. at *2.

The Court then held:

that when relying on any M21-1 provision, the Board must independently review the matter the M21-1 addresses. If after such review, the Board chooses to rely on the M21-1 as a factor in its analysis or as the rule of decision, it must provide adequate reasons or bases for doing so. The Board may not simply rely on the nonbinding M21-1 position

without analysis. Because the Board did not engage in the appropriate analysis here, the Court will set aside the November 1, 2016, Board decision and remand the matter for readjudication consistent with this decision.

Id. at *2.

            In its analysis, the Court recited the history of the Gray decisions and particularly the Federal Circuit case and stated:

we know first that VA is permitted to draw reasonable lines demarcating inland versus offshore waterways when considering whether a veteran is entitled to the presumption of herbicide exposure. Second, when drawing such a line, VA must do so in a reasoned, nonarbitrary manner focused on the likelihood of herbicide exposure. And finally, the Board is not bound by M21-1 provisions.

Id. at *7.

considers the Board’s reference to GAF scores when setting a PTSD rating.  The Court strictly determines GAF scores should not be considered. 

As said by the Court:

The "Global Assessment of Functioning" scale was a scale ranging from 0 to 100, that was created to reflect "psychological, social, and occupational functioning on a hypothetical continuum of mental health illness." See DSM-IV at 32. In other words, a GAF score was a numerical summary on a standardized scale reflecting the presence and severity of psychological symptoms and their effects.

Id. at *4.

The Court then explained the Board

provided nothing more than this historical recitation to support its conclusion that Da Nang Harbor is not brown water warranting presumptive herbicide exposure. Instead, the Board tersely stated that the "new guidance," referring to its earlier discussion of the M21-1 provision, deems all harbors or bays offshore, and all rivers and deltas inland.44 This is error.
The Federal Circuit made it clear that the Board is not bound by the M21-1.45 This holding is meaningful. To support its decision the Board can't simply cite an M21-1 provision without further analysis. First, doing so would effectively negate the Federal Circuit's decisions in Gray and DAV. Doing so would convert the M21-1 into substantive rules as a practical matter without providing a means to challenge such rules under the APA. Second, because the M21-1 is not binding on the Board, the Board's citation to a manual provision as the only support for a conclusion–here that Da Nang Harbor is blue water–is inconsistent with the Board's congressionally mandated obligation to provide an adequate statement of reasons or bases for its decisions

Id. at *8.

The Court also noted the Board suggested the all or nothing rule of stating all bays and harbors are not inland waterways alleviated the problems from Gray, but the Court made clear the problem is the lack of rationale in determining what makes something an inland or offshore waterway.  Id. at *9.

The Court also rejected the Secretary’s last minute request that the Court defer to the agency.  The Court rejected because the matter was not briefed but raised at oral argument and such deference would be misplaced where the Court was reviewing the Board decision as opposed to the M2-1 provision.

This Court reveals a significant flaw in the VA’s failure to pursue notice and comment rulemaking and demonstrates how reliance on an M21-1 provision can be attacked.

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


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Johnson: Headaches and DC 8100 Explained

Johnson v. Wilkie, Case Number 16-3808, decided September 19, 2018 addresses DC 8100 and defines it as a successive rating.

A successive rating is one which requires the veteran satisfy each and every criteria listed for a higher rating.  A successive rating criteria is a limited exception to the general regulatory structure, which states it is not expected that all claims must satisfy every single criteria in a DC.  As a general matter, a higher evaluation will be assigned if the veteran’s disability picture more nearly approximates the criteria required for the higher rating.

The Court concluded DC 8100 was a successive rating criteria, which means that  higher rating will not be assigned unless the veteran meets every criteria for the higher rating.  The Court reasoned that “DC 8100 has all the hallmarks required of successive rating criteria under the law.  In sum, each disability level builds on another in terms of duration and frequency, requiring that a veteran rated at a higher level to satisfy all the  requirements of the lower levels.”  Id. at *10.

The Court then turned to whether the Board actually gave proper reasons for its refusal to deny a higher rating.  Id. at *11.  The Court concluded some of the conclusions of the Board were not consistent with the actual evidence—for instance, the Board said the veteran had headaches on average of once per month whereas the examination noted them more frequently.  But, the Court really focused on problems of the actual Diagnostic Code.  It stated

            More fundamentally, DC 8100 is rife with subjective terms of degree, the standards for which are undefined in the Board's discussion or anywhere in the regulatory structure. The Board stated that "[w]hile three times a month may be deemed frequent, the Board finds it does not equal very frequent." R. at 7. The Board also found that the headaches were not "completely prostrating" despite the October 2010 report stating that he is "unable to perform any task with prostrating attacks." R. at 524. Finally, the Board concluded that the headaches were not "prolonged" when the evidence stated that they lasted from 15 minutes to "hours," R. at 417, 524, and that he took leave under the FMLA, at least through 2011.3  R. at 489.

            Without a standard for comparing and assessing terms of degree, such conclusory findings are unreviewable in this Court. Furthermore, a Board member's dogmatic pronouncement of bare conclusions for a decision denying a claim for a rating increase under DC 8100 prevents a veteran from assessing what his or her evidence must demonstrate, and virtually guarantees inconsistent results. At oral argument, the Secretary maintained that the Board may determine whether the "very frequent" requirement is met without disclosing what benchmark it employed to reach that conclusion. The Court rejects the Secretary's position that the Board may make such determinations without any obligation to disclose the standard under which it is operating. It is unacceptable for the Court to be placed in the position of accepting the Board's determination that Mr. Johnson's headaches do not meet the requirements of DC 8100 "because I say so."

Id. at *12.

Judge Allen wrote a concurrence where he focused on the VA’s failure to define terms.  Specifically he wrote: “I write separately to underscore a disturbing agency practice this appeal illustrates. That practice is both unacceptable and unlawful.”  Id. at *13. 

Judge Allen continued to explain:

In this case, the Board denied the appellant's claims, in part, because it concluded that his headaches were neither "very frequent" nor "prolonged." R. at 7. Both of these concepts are important to the assignment of an appropriate rating for headaches, see 38 C.F.R. § 4.12a, Diagnostic Code (DC) 8100 (2018). But neither is defined in statute or VA regulation. The absence of such definitions is troubling alone. More concerning still, however, is that despite the centrality of these terms to the Board's decision in the appellant's case, the Board itself did not define either term.

Id. at *12.

This decision takes away the opportunity for a veteran to argue that he deserves a higher rating even if he does not meet every element. However, it also shows how subject to attack decisions to deny a higher rating under DC 8100 are in cases where there is evidence of severity.  It will be interesting to see how the Board and the VA react in their decisions.

The decision was by Chief Judge Davis and joined in by Judge Schoelen with a concurring opinion by Judge Allen.

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Thurlow: Retroactive Application of the Revised Extraschedular Consideration Regulation

Thurlow v. Wilkie, Case Number 16-3633, decided September 12, 2018 address whether the revised Section 3.321(b) applies retroactively. 

In December 2017, the VA issued a final regulation amending 38 CFR Section 3.321(b).  Specifically, the 2014 Federal Circuit decision Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014) had determined extraschedular consideration was based on the collective impact of multiple disabilities.  The amendment to the regulation clarified that extraschedular consideration should be based on just a single service connected disability.  Importantly, this new regulation was issued while this case was pending and the question arose whether it applied to cases pending before the Court.  The regulation specifically stated it applied to cases before the Courts.

After noting that retroactivity is not favored in the law, the Court then delved into the issue.  The Court acknowledged the change in regulation was unfavorable to veterans and then pivoted to Princess Cruises, Inc. v. United States, 397 F.3d 1358 (Fed. Cir. 2005) for help in considering whether the case should be applied retroactively.  Princess Cruises explains that when assessing the retroactive application of a new or amended regulation, the Court must consider: (1) "the nature and extent of the change in the law," (2) "the degree of connection between the operation of the new rule and a relevant past event," and (3) "familiar considerations of fair play, reasonable reliance, and settled expectations."  Id. at *6.

The Court then noted that if Congress had passed a statute applying retroactively it would not have had to engage in the Princess Cruises analysis but when a regulation is changed, the analysis must be undertaken.  Id. at *7.  The veteran argued a substantive right cannot be impacted retroactively, but the Court pointed to Tarver v. Shinseki, 557 F.3d 1371 (2009) and Rodriguez v. Peake, 511 F.3d 1147 (2008), noting in these “cases, the Federal Circuit upheld retroactive application of new regulations less favorable to claimants where, as here, the amended regulation reinstated VA's earlier regulatory interpretation.”  Id. at *8.

The Court then applied the Princess Cruises factors.  First, it determined the change in law was a return to a position it had held in successive stages of litigation and no substantial than Rodriguez.  Second, the Court focused on the fact there was no indication the veteran altered his behavior in reliance on Johnson v. McDonald.  Finally, the Court reasoned in light of the history of proceedings, the veteran had fair notice of the Secretary’s position and could have no settled expectations the Johnson interpretation would not change.  As a result, the Court determined there was no impermissible retroactive effect in the Secretary’s intent to apply the new regulation to claims currently on appeal to the Court and as a result of the new regulation, Thurlow’s arguments as to the collective impact of the disabilities must fail.

Besides illustrating that the VA is not interested in the best interests of veterans (they not only fought, but retroactively changed rules making it impossible for a veteran with multiple service connected disabilities to get an extraschedular rating for the combined impact of those ratings), this case demonstrates the deferential approach taken by the Courts to agency regulations.  This is a larger issue than those simply involving veteran, but such deference is especially problematic in veteran cases where a regulations should be read under Gardner v. Brown in the veteran’s favor.  I also have a hard time thinking of a veteran’s case where the Princess Cruises analysis would prevent retroactive application of a law, which suggests it is an ineffective guard against retroactive legislation.  I am hopeful this case is appealed to the Federal Circuit, I am not sure they will alter the Princess Cruises framework, which the Veteran’s Court felt bound to follow, but its application to veteran’s cases should be called into question.

The decision was by Chief Judge Davis and joined by Judges Pietsch and Toth.

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Spellers: Extraschedular Ratings v Schedular Symptoms for Sciatica and Reasons and Bases Problems

Spellers v. Wilkie, Case Number 16-4053, decided September 7, 2018 considers referral for an extraschedular rating under 38 CFR Section 3.321(b)(1) and determines that it is not required because the scheduler rating covered the symptoms complained of by the veteran.

The veteran was rated for bilateral lower extremity sciatica at mild for each leg.  The veteran did not appeal the sciatica rating of mild, but did appeal the failure to refer for an extraschedular rating due to his use of an assistive device (cane or walker).  “This matter was submitted to a panel of the Court principally to address whether the Board must consider the  Appellant's use of assistive devices, such as a cane or walker, in its extraschedular analysis of his sciatica. As we will further explain, because of the nature of the criteria contained in 38 C.F.R. § 4.124a, Diagnostic Code (DC) 8520 and 38 C.F.R. § 4.120, we hold that the schedular rating criteria contemplate the symptoms necessitating the use of assistive devices, as well as the severity of those symptoms, and thus referral for extraschedular consideration on that basis was not warranted.”  Id. at *1.

An extraschedular rating is called for if “A finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards.”  Id. at *3. The Court explained that referral was governed by a three part inquiry found in Thun v. Peake, 22 Vet. App. 111, 115 (2008).  First,

whether the "evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate." This requires the Board to compare a veteran's specific symptoms and their severity with those contemplated by the rating schedule.  If the Board determines that a veteran's symptoms or their severity is not contemplated by the rating schedule, the second element requires the Board to "determine whether the claimant's exceptional disability picture exhibits other related factors," such as marked interference with employment or frequent periods of hospitalization. Finally, if the first two elements are met, the final element mandates that the Board refer the claim to the Under Secretary for Benefits or the Director of Compensation Service for a determination about whether an extraschedular rating is warranted.

Id. at *3-4 (internal citations omitted).

The Court then pivoted to the sciatica rating and noted the relevant Diagnostic Code is 38 CFR Section 4.124a, which contains a note stating “this regulation provides that "disabilit[ies] from the following diseases and their residuals may be rated from 10[%] to 100[%] in proportion to the impairment of motor, sensory, or mental function." …  It further notes that, when rating nerve injuries, "attention should be given to the site and character of the injury, the relative impairment in motor function, trophic changes, or sensory disturbances."  Id. at *4.

The veteran had argued DC 8520 does not contemplate use of an assistive device (cane or walker), but the Court essentially found the note contained before DC 8520 does cover use of an assistive device.  It then found:

Given the broad nature of that provision, finding symptoms not contemplated by its

"impairment of motor, sensory or mental function" language presents quite a challenge. All the symptoms for which a cane or walker could serve as a proxy are contemplated by § 4.120 as impairments of motor and sensory function. In other words, the symptoms of sciatica that cause the appellant to use assistive devices such as a cane or walker are contemplated by the scheduler rating criteria and therefore do not satisfy the first part of Thun's first element.

Id. at *7.

The Court then considered whether the rating schedule contemplates the severity of the symptoms and found

if the appellant is correct that "his assigned 10[%] ratings do not contemplate the severity of his bilateral lower extremity sciatica," then the rating schedule itself provides the appropriate remedy – assignment of a rating greater than mild.  This is so regardless of the reasons why his condition may be worse than mild (here purportedly due to use of assistive devices), because there are no criteria in DC 8520 that would need to be satisfied other than a level of severity worse than mild.

Id. at *8.

The Court stated: “In sum, both the symptoms and severity of the appellant's sciatica that require him to use a cane or walker are contemplated by the schedular rating criteria, specifically, in the regulations prefatory to DC 8520, such as § 4.120, and in DC 8520 itself.  Therefore, we hold that the Board did not err in its finding that the first element of Thun was not met on the ground that the appellant's condition necessitates use of assistive devices.”  Id. at *9.

The Court then considered a Board determination about the veteran’s credibility as to side effects of medication.  The veteran had recited side effects of medication warranted a higher rating, but the Board found the statements about the alleged side effects lacked credibility largely because complaints of the side effects are not captured in any of the medical records.  The Court rejected such an argument stating simply because they are not recorded in the records does not show they did not exist.  It explained

those records simply did not mention side effects.  It is not clear, therefore, that the appellant was asked about side effects at those times or that he did not actively deny side effects. "[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence." Buchanan, 451 F.3d at 1337. Rather, the Board must "first establish a proper foundation for drawing inferences against a claimant from an absence of documentation."

Id. at *10-11.

While having potentially wider reaching impacts, this case really shows that attacking a sciatica rating should be done by attacking the actual rating as opposed to hoping for use of a an extraschedular rating.  While the mild, moderate and severe categories are not well defined, this case should encourage veterans and advocates to argue use of an assistive device prompts a higher rating than mild.  It shows that a veteran and advocate must closely examine the notes associated with a Diagnostic Code and let that lead them in how to attack a low rating.

The decision was by Judge Allen, joined in by Judges Bartley and Meredith.


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The Pending Claims Backlog

The below is a VA Office of Inspector General report on the pending claims backlog.  What is most interesting is that it confirms what many of us have known for years, the VA plays games with how it reports the number of claims waiting for a decision in order for it to make itself look more efficient than it is.

The report looks at the claim that the VA reported it had reduced the pending backlog from a peak of 611,000 in March 2013 to 71,690 at the end of September 2016 and at the end of May 2018, the reported pending backlog was 70,537.

The report was a review of whether VA’s reported statistics related to the pending disability claims backlog accurately included all disability claims over 125 days old requiring rating decisions.  OIG found that VA’s reported backlog did not include all claims that had been awaiting rating decisions for more than 125 days during the first and second quarters of FY 2016.  OIG estimated VA staff completed about 63,600 other EPs that required rating decisions that took over 125 days to complete but that VA did not count as part of the backlog. As a result, the OIG estimated that, in its completed backlog, VA only reported about 79 percent of the claims that required rating decisions that took over 125 days. More importantly, VA generally prioritized its workload of rating EPs over other EPs, resulting in significant delays in processing other EPs that were older and required rating decisions.

VA Office of Inspector General Report on the Pending Claims Backlog

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