Walsh: Obesity and Aggravation

Walsh v. Wilkie, Case Number 18-0495, decided February 24, 2020 discusses whether obesity can be caused or aggravated by a service connected disability.

The veteran suffered a service connected knee injury which led to a service connected hip and low back disability.  She then sought service connection for hypertension and a sleeping condition secondary to other service connected disabilities.  It was ultimately denied. 

During the course of the claim, VA General Counsel Opinion 1-2017 was released.  In summary it stated that "[o]besity may be an 'intermediate step' between a service-connected disability and a current disability that may be service connected on a

secondary basis under 38 C.F.R. § 3.310(a)."  Id. at *3.  The opinion explained in one example:

With regard to the hypothetical presented in the previous paragraph, adjudicators would have to resolve the following issues: (1) whether the service-connected back disability caused the veteran to become obese; (2) if so, whether the obesity as a result of the service-connected disability was a substantial factor in causing hypertension; and (3) whether the hypertension would not have occurred but for obesity caused by the service-connected back disability. If these questions are answered in the affirmative, the hypertension may be service connected on a secondary basis.

Id. at *3.  The Court noted: Thus, the first step asks about the connection between a service-connected disability and obesity, while the second and third steps ask about the connection (proximate and but-for causation) between obesity and the disability for

which secondary service connection is sought.”  Id. at *3. 

In the case at hand, the VA received a medical opinion which in part opined “she

couldn't state, based on the current evidence and medical literature, "that there is a cause-effect relationship between arthritis of the back or of the knee and obesity."  Id. at *4.    As a result the Board denied the claims for hypertension and sleep apnea. 

The Court began its analysis by noting:

we note that G.C. precedent opinions are issued by VA's chief legal officer and are binding on the Board. 38 U.S.C. § 7104(c). They are not, however, binding on the Court. Molitor v. Shulkin, 28 Vet.App. 397, 408 (2017). Instead, because such opinions lack the formalities of notice-and-comment rulemaking, the Court defers to them in accordance with their "'power to persuade.'"

Id. at *5.  The significance of this finding is important as it reaffirms that general counsel opinions are not binding on the Court and the Court still has a role besides simply deferring to the VA.  The Court then pivoted to the Section 3.310(a), which discusses secondary service connection and the Court noted recognizes a causal and aggravation theory.  The Court then noted: “In short, there is no permissible basis in the relevant regulation for concluding that obesity may be an "intermediate step" in a secondary-service-connection analysis when service-connected disability causes it, but not when service-connected disability aggravates it.”  Id. at *6. 

The Court then determined:

properly construed, G.C. Opinion 1-2017 does not purport to prohibit inquiry into whether a service-connected disability aggravates a veteran's obesity. And for good reason, as this would contradict VA's aggravation regulation. So, to be clear: Despite the G.C. opinion's silence regarding aggravation, the Board, in accordance with § 3.310(b), must consider aggravation in this context when the theory is explicitly raised by the veteran or reasonably raised by the record.

Id. at *7.

The Court then remanded the claim based on the fact the relevant C&P examination did not discuss the question of aggravation of obesity.

This is an important decision for clarifying that disabilities caused the obesity can be service connected if the veteran can show a service connected condition caused or aggravated obesity.  It is also interesting in that the Court rendered its opinion in such a way as to make it difficult to impossible for the VA to change its General Counsel Opinion to omit aggravation as a factor.  This is a well-reasoned case by Judge Toth demonstrating a deep analysis and understanding of regulatory interpretation. 

Decision by Judge Toth and joined in by Chief Judge Bartley and Judge Pietsch.

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Langdon: Lumbar and Thoracic Spine Conditions

Langdon v. Wilkie, Case Number 18-0520, decided February 5, 2020 discusses the intersection of lumbar and thoracic spine conditions and how they are interrelated and as such should be rated. 

The veteran sought service connection for lumbar and thoracic spine disabilities and was rated 10% for a thoracic spine disability for painful but denied service connection for the lumbar spine after a VA examination found the in-service lumbar strain did not have caused the current lumbar condition.  The lumbar spine denial was not appealed.  Instead,

Appellant argues that the Board incorrectly applied Diagnostic Code (DC) 5237 in denying a disability rating greater than 10% for his service-connected thoracic spine disability. He contends that the plain language of DC 5237 considers the thoracic and lumbar spine as a single unit and that the Board was required to consider them as such, rather than separating the symptoms associated with each. He asserts that under this interpretation, he is entitled to a 20% disability rating because the evidence of record shows forward flexion not greater than 60 degrees. He relies on a 2003 amendment to the general rating formula in which VA proposed to rate the thoracic and lumbar spine as the "thoracolumbar spine" on the basis that they generally moved as a single unit.  Based on this amendment, appellant argues that DC 5237 is clear that his thoracic and lumbar spine disabilities must be considered together.

Id. at *3.

The Court held:

This matter was submitted to a panel of the Court to address whether a non-service connected lumbar spine disability must be considered in rating a service-connected thoracic spine disability under 38 C.F.R. § 4.71a and the General Rating Formula for Diseases and Injuries of the Spine. Given the plain language of the rating formula, read in the context of the regulatory scheme as a whole, we hold that functional impairment caused by appellant's non-service-connected lumbar spine disability cannot be considered when rating his thoracic spine disability where there is medical evidence distinguishing between impairments caused by the thoracic and lumbar spine disabilities.

Id. at *1.

The Court framed the veteran’s argument as: “a contention that VA determined that the

thoracolumbar spine was to be treated as a single unit for all purposes and that it is no longer appropriate to consider the thoracic and lumbar regions separately.”  Id. at *7.  The Court then noted:

it is true that DC 5237 calls for the thoracic and lumbar spines generally to be rated as a

unit. But it does not mandate that they be rated together. DC 5237 provides for such unitary treatment only when both segments of the spine are injured as a result of military service, that is, only when they are both service connected, or when it is not possible to separate the functional limitations of an injury and assign them to each part of the spine and one part is service connected.

Id. at *7-8.  The Court then stated:

Here, we have unchallenged medical evidence attributing appellant's functional impairment solely to his non-service-connected lumbar section of the spine. In this situation–one that perhaps will not be common–the medical evidence is sufficient to carry

out the overall goal of the rating schedule to compensate for injuries that are "a result of or incident to military service."

Id. at *9.

The Court also considered a jurisdictional question.  Appellant argued the Court did not jurisdiction to determine DC 5237 allowed thoracic and lumbar spine disabilities to be rated separately because Congress precluded the Court from re-reviewing the disability schedule.  But, the Court noted it did have jurisdiction over cases involving interpretation of the regulations.  It noted:

appellant's challenge to the Board's decision involves the correct interpretation of DC 5237 when read in the context of the entire regulatory scheme–namely, what does "thoracolumbar" refer to when only one of the two conditions is service connected. Such question falls squarely in the exception permitting this Court to consider the rating schedule, that is, the Court may consider the rating schedule when the Court interprets regulatory language.

Id. at *6.

This is a fairly narrow case where the lumbar disability denial was not appealed and their was evidence separating the thoracic and lumbar spine disabilities.  The case has been appealed to the Federal Circuit.

Decision by Judge Allen and jointed in by Judges Pietsch and Toth.

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Rosinski: Payment of Attorney Fees Based on Amount Awarded Not Actually Recieved

Rosinski v. Wilkie, Case Number 17-3293, decided January 30, 2020 discusses a line of cases involving what happens when an attorney is to be paid 20% of past-due benefits owed the veteran, but what the veteran would be owed is reduced for other reasons, in this case military retirement pay.

The Court framed the issue as:

The discrete question is whether section 5904 requires VA to pay fees to an attorney who obtains a disability rating of less than 50 percent for a veteran receiving military retirement pay—or, whether section 5304 forecloses such payments to attorneys. In Snyder v. Nicholson, 489 F.3d 1213 (Fed. Cir. 2007), the Federal Circuit held that 38 U.S.C. § 5313, a statutory limitation on payments to incarcerated veterans, did not alter VA's obligation to pay attorneys fees under section 5904(d)(1) because section 5313 did not purport to change the monthly compensation awarded on the basis of the veteran's claim but merely served as a withholding device for full payment of benefits otherwise lawfully established. Because Snyder's reasoning—as explained in subsequent cases—applies equally to section 5304, the Court reverses the Board's ruling and directs the Secretary to pay Mr. Rosinski the fees to which he is entitled under section 5904(d)(1).

Id. at *1-2.

The Court noted:

This case marks the fourth in a line of attorneys fees decisions examining VA's obligations to pay attorneys fees under section 5904. The first and most significant of these cases is Snyder, in which the Federal Circuit defined various terms within section 5904 and examined whether VA's obligation to pay attorneys fees was countermanded by a separate statute, section 5313, which limited the monthly compensation payments that an incarcerated veteran could receive on a successful claim. 489 F.3d 1213. The next two decisions, Jackson v. McDonald, 635 F.App'x 858 (Fed. Cir. 2015), and Gumpenberger v. Wilkie, 31 Vet.App. 33 (2019), refined Snyder's interpretation of section 5904 and applied it to other scenarios.

Framed in the most general terms, the question on appeal is whether Snyder's reasoning applies equally to section 5304 and obligates VA to pay attorneys fees even where the veteran receives a rating below fifty percent and hasn't waived retirement pay. Insofar as this question involves interpretation of section 5904, our task is made easier by the fact that Snyder already set out what various terms mean, with Jackson and Gumpenberger providing an assist.

Id. at *4.

In summary, Snyder dealt with incarcerated veterans (finding attorneys were owed the amount that would have been paid if the veteran was not limited to a lesser amount by reasons or incarceration); Jackson dealt with a recently deceased veteran; Gempenberger dealt with a fugitive felon. 

The Court hashed through the Snyder and related analysis and ultimately determined:

What follows here is largely a restatement of our earlier analysis. Snyder established that

VA renders an award on a veteran's claim when it completes the non-mechanical  judgments of assigning a disability rating and effective date. Snyder clearly established that VA's obligations under section 5904 to pay attorneys fees are not affected by additional statutory limitations on a particular veteran's ability to receive payment as those do not affect the amount "awarded on the basis of the claim." VA, for example, may run afoul of the Appropriations Clause if it decided to disregard section 5304 and pay a veteran who hasn't waived retirement pay an award of less than 50 percent. However, the Snyder line of cases establishes that VA's obligations to attorneys under

section 5904 are to be determined by the amount awarded, not by the amount the veteran is actually entitled to receive. Under such reasoning, payment to attorneys does not fall afoul of the Appropriations Clause even where a separate provision limits payment to the claimant.

Id. at *16.

Judge Meredith dissented largely focusing on the fiscal impact on the Treasury.  She wrote:

by finding generally that "VA's obligations to attorneys under section 5904 are to be determined by the amount awarded, not by the amount the veteran is actually entitled to receive," the majority fails to give due meaning to the term "past-due." Ante at 16. The result here is that the veteran was paid 100% of the benefits that he was awarded and entitled to receive (albeit in the form of retirement pay) and VA must pay an additional 20% to the appellant—i.e., the United States will pay 120% for the period from May 2011 to January 2014.

Id. at *22-23. 

Both parties have asked for an en banc ruling in this case.  However, I cannot see how the case is not governed by the Federal Circuit decision in Snyder and do not foresee any change in the result.

Decision by Judge Toth and joined in by Judge Bartley with a dissent by Judge Meredith.

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Miller: Remand for New Medical Examination When Lay Evidence Not Discussed

Miller v. Wilkie, Case Number 18-2796, decided January 16, 2020 discusses what happens when a medical examiner does not discuss lay evidence and the Board does not address the credibility of the lay evidence.  The Court was asked whether the remedy was remand for credibility determination by the Board or remand for a new medical examination.  The Court determined a new medical examination was the proper remand. 

This case really was a battle over the proper remedy on remand and an attempt to clarify prior decisions in McKinney v. McDonald, 28 Vet. App. 15 (2016) and Barr v. Nicholson, 21 Vet. App. 303 (2007).  The Secretary argued for a credibility determination by the Board whereas the veteran argued for a new examination. 

The Court noted

There is no question that adequately informing the Board of the veteran's disability while considering prior medical history requires addressing the veteran's lay reports of

symptomatology.39 Thus, a "VA examiner's failure to consider [the veteran's] testimony when formulating her opinion renders that opinion inadequate."  This is something that both Barr and McKinney agree on—an examination is inadequate if the medical professional fails to consider the veteran's own lay reports of symptoms.

Id. at *8.

The Court noted “it is the Board that must make a credibility determination, something it may not outsource to a medical examiner, we have held that the Board should consider whether a favorable medical opinion corroborates the veteran's assertions of an in-service injury.”  Id. at *10.  The Court explained:

The examiner can better inform the Board's understanding of the medical feasibility of the veteran's lay statements. If an examiner explains that the veteran's assertions are generally inconsistent with medical knowledge or implausible, the Board can weigh that when addressing the veteran's credibility. Or an examiner may explain that the veteran's reports about symptoms or an in-service injury align with how the disease or disability

is known to develop. Any way you look at it, the Board may benefit from this information in makings its credibility determinations. Thus, the examiner's obligation to address lay evidence cannot depend on a future finding of credibility. The examiner must address the veteran's lay statements to provide the Board with an adequate medical opinion. And absent an indication that the Board found that lay evidence not credible, or had a reason not to address its credibility—such as in Barr where it found the veteran not competent to report the symptoms—we will conclude that the Board found the lay evidence credible and order a new examination that addresses this evidence.

Id. at *11-12

In reaching its conclusion, the Court noted it is not engaging in impermissible fact finding, but simply reviewing implicit factual determinations.  Id. at *12.  It explained the Board is considered to have reviewed all evidence (in this case the lay evidence) and since it did not discuss a problem with credibility, the veteran’s lay statements were considered credible.  The Court explained:

Put another way, when the record includes the veteran's lay reports, which the Board did not find to be not credible, we may ordinarily conclude that it made an implicit credibility

determination. If something as fundamental as the veteran's credibility were an issue, we would expect the Board to say something. And because a determination about credibility is a finding of fact, we should treat it like other findings of fact.

Id. at *13.

Decision by Judge Falvey and joined in by Judges Greenberg and Toth.

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Perciavalle: CUE, No Change of Law and Pyramiding

Perciavalle v. Wilkie, Case Number 17-3766, decided September 27, 2019 considers CUE and the prohibition on pyramiding in the context of knee disabilities.

In 1966 the veteran was service connected for a left knee injury and granted a rating of 10% under DC 5259, which covers removal of cartilage from the knee.  In 1971 he sought an increase but was denied and did not appeal.  In 2015, he filed a motion to revise the 1971 decision based on CUE.  He argued he should have been rated

under DC 5257 for slight instability of the knee and separately under DC 5003-5260 for limitation of motion of flexion and discomfort (pain) secondary to arthritis.   Id. at *3.  H explained that an x-ray report obtained during a 1971 VA examination clearly indicated arthritis in his left knee that decreased his range of motion and other evidence in 1971 showed instability.

VA denied the CUE motion stating in 1971 a policy was not in place allowing separate ratings for instability and limited motion. 

Now for some background, ordinarily different ratings for the same disability are not allowed as that would constitute pyramiding (awarding compensation for the same impairment under various diagnostic codes).  However, in the case of Esteban v. Brown, 6 Vet.App. 259 (1994), the Veteran’s Court “recognized that separate ratings were permissible for different diagnoses of the same disability as long as the conditions diagnosed shared no symptomology.”  Id. at *2.  So, separate ratings under different diagnostic codes can be awarded for the same disability if “none of the symptomatology for any one of the conditions was duplicative of or overlapping with the symptomatology of the other [diagnostic code ratings].”  Id. 

Three years after Estaban, the “VA’s General Counsel issued a guidance opinion specifically interpreting the ratings schedule as allowing separate ratings for the conditions at issue here—arthritis and instability in the same knee. VA Gen. Coun. Prec. 23-97 (July 1, 1997).”  Id.   The Court then explained:

The agency determined that, since "the plain terms of DC 5257 and 5003 suggest that those codes apply either to different disabilities or to different manifestations of the same disability, the evaluation of knee dysfunction under both codes would not amount to pyramiding under section 4.14." Id. VA recognized that it was the first time the agency assumed an official position on the matter, as the opinion acknowledged that it was aware "of no formal position taken by the Veterans Benefits Administration on this issue" before then.

Id. at*3.

Turning back to Perciavalle, the Board found the veteran’s CUE argument foreclosed by the existence of 38 C.F.R. Section 20.1403(c), which states CUE cannot be premised on a change in the interpretation of a statute or regulation.  The Board focused on the anti-pyramiding regulation and a finding that that not until Esteban was § 4.14 interpreted to permit separate ratings for distinct, non-overlapping symptomatology of the same underlying injury. It also found that VA did not issue its General Counsel opinion permitting separate ratings for arthritis and instability until 1997.

The Court reviewed the Board’s determinations de novo and pointed out that the VA’s General Counsel opinion in 1997 found no formal position had previously been taken by the VA.  The Court then determined  

our holding in Esteban cannot be deemed a change in interpretation. On its own terms, Esteban did not purport to introduce a definitive interpretation of § 4.14 but merely held that the Board's reading of the regulation was too broad in that case, as rating the veteran's condition under separate diagnostic codes did not constitute pyramiding under the plain language of the regulation. Esteban did not cite to any formal interpretation on VA's part that it repudiated but, citing to the factual findings in that case, merely noted earlier cases from this Court that read the regulation the same way when applied to similar facts. Esteban, 6 Vet.App. at 261 (discussing Fanning v. Brown, 4 Vet.App. 225 (1993)). In short, Esteban neither proposed an interpretation of a regulation nor cited any existing interpretation.

Id. at *6.

The Court found a change in interpretation necessarily requires the existence of a prior interpretation and because neither Esteban nor the 1997 VA General Counsel Opinion changed the law, Section 20.1403(c) is not implicated. 

The Court then considered whether the veteran was prejudiced by the Board’s opinion and determined yes.  The Court focused on a list of errors found in Simmons v. Wilkie, 30 Vet. App. 267, 277 (2018).  The Court found “the Board's error prejudicial in this case because the Board wrongly categorized his motion as precluded by law, thus preventing him from receiving a meaningful opportunity to participate in the adjudicative process.”  Id. at *8.

This is an important decision that upholds the boundaries of 38 C.F.R. 20.1403(c) and also puts into play many decisions involving knee disabilities where the evidence supported an instability rating many years ago, but it was denied in favor of simply a limited motion rating.

Decision by Judge Toth and joined in by Judges Bartley and Greenberg.

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Raybine: Late Notices of Appeal

Raybine v. Wilkie, Case Number 18-6117, decided September 13, 2019 concerned a late notice of appeal to the Court.

The Board decision was mailed October 19, 2017 and on July 11, 2018 filed a motion for reconsideration (longer than 120 days).  The motion was denied on September 12, 2018 and a notice of appeal was filed November 2, 2018.

The Secretary filed a motion to dismiss the appeal as untimely and the Court ordered the veteran to show cause why the motion should not be granted.  The veteran wrote explaining he had difficulty obtaining additional information relevant to his claim.  Specifically, he had participated in human experimentation at the Aberdeen Proving Ground in Aberdeen, Maryland.  When he contacted the National Personnel Record Center, he was told his records did not contain evidence of medical treatment or participation in experimentation but directed him to the Aberdeen Proving Ground.  When he contacted the Aberdeen Proving Ground he was told the records were sealed and would have to provide additional information before they would be released to him.  Additional records were ultimately released.  He also explained that his wife had to do things because he was not able to handle things.

As the Court explained, an appellant must file a notice of appeal within 120 days of a Board decision, which the veteran did not do.  However, the Court noted an exception.  If the veteran files the motion to reconsider with the Board within 120 days of the decision, the finality of the Board decision is abated by the motion.  Id. at *2.  The Court then noted the veteran filed his motion outside of the 120 day window, so he is  not entitled to the exception.

The Court then noted the requirements for equitable tolling, that the appellant must show:

“(1) an extraordinary circumstance; (2) due diligence exercised in attempting to file; and (3) a connection between the extraordinary circumstance and failure to timely file.”  Id. at *2.  The Court then noted “the veteran's response suggested that he may be entitled to equitable tolling based on mental illness or the inability to obtain medical files concerning a classified experiment.”

Regarding mental illness, the Court stated a veteran may be entitled to equitable tolling upon a showing that the mental illness renders the veteran incapable of handling his own affairs.  ID. at *2.  However, the Court then noted “the veteran must offer more than a

medical diagnosis or vague assertions of mental problems.”  Id.   The Court said here, the veteran indicated his service connected PTSD rendered him unable to “handle things.”  Id.  The Court then found:  “However, this does not establish that his condition rendered him incapable of ‘rational thought or deliberate decision making . . . or incapable of handling [his] own affairs or unable to function [in] society.’”  Id.  It then determined: “We are not persuaded that Mr. Raybine's service-connected PTSD rendered him incapable of handling his affairs under the standard set out in the case law.”  Id.

As to the inability to obtain additional records, the Court determined the veteran had not indicated how this constituted an extraordinary circumstance or actually prevented him from timely filing a motion with the Board.  Id. at *3. The Court stated:

An extraordinary circumstance is one beyond the veteran's control.  Assuming that the delayed response from Aberdeen Proving Ground satisfies this criterion, there is no argument before the Court how Mr. Raybine's late filing was a direct result of this circumstance. The relevant case law endorses equitable tolling in situations where a veteran sought to file in a timely manner but was prevented from doing so, such as by physical or mental infirmity, misinformation from a VA employee, homelessness, or potential third-party interference with the mail.

Id. at *3.

The Court then expressed his sympathy, but ruled the appeal untimely.

Judge Greenberg dissented.  He would find that the Supreme Court has never ruled extraordinary circumstances must exist to allow a veteran to untimely appeal to the Court.  Id. at *4.  He then stated until a higher court defines the outer limits of what warrants equitable tolling, he would not apply the higher standard the Veterans Court has applied.  Judge Greenberg noted the veteran suffers from PTSD as a result of being a human test subject and expressed that an opinion that that enough might constitute a reason for tolling.

This comes on the heals of an order in McGee v. Wilkie that expressed a pro-veteran slant in an equitable tolling situation.  What I take from this case is that the more information provided by the veteran on how the mental illness impacts his ability to handle things, the better.

This was a per curium decision by Judges Toth and Falvey with Judge Greenberg dissenting.

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Williams: Section 20.1304(a) and 90 Day Letters

Williams v. Wilkie, Case Number 16-3988, decided September 13, 2019 concerned Section 20.1304(a) and whether the veteran could rely on a letter giving 90 days or the date of the decision to respond before the Board would issue a decision.

In this case, the Board had remanded to the RO and the RO issued a supplemental statement of the case (SSOC) and then the Board made a decision on day 42 after notifying the veteran the Board had received the case back from the RO following the earlier remand.

The Court makes its decision on two grounds.  First, the Court determined the triggering event for application of Section 20.1304(a) was certification of the appeal, not return of the appeal from the RO after a remand.  Id. at *5.

The Court noted, the veteran

argues that preamendment § 20.1304(a) nevertheless applied to his case when it was returned to the Board following the October 2014 remand because, "[a]s long as an appeal is certified, § 20.1304 applies every time the appellate record is transferred to the Board." Reply Br. at 5-6. In essence, he argues that, after an appeal is certified, any mailing of notice that the appellate record has been transferred back to the Board again implicates § 20.1304(a) and begins the running of the time period specified therein. See Mot. for Recon. at 12-14. Although the Court agrees that an appeal remanded to the AOJ does not need to be certified again to be automatically returned to the Board if the RO does not grant benefits in full, we do not agree that § 20.1304(a) is triggered anew each time an appeal is returned to the Board.

Id. at *7.

Second, the veteran argued the Board’s citation to 20.1304(a) in its notice letter made the provision applicable to him and created in him a justifiable reliance on the letter and induced him into believing he had 90 days to submit additional evidence or argument.  Id. at *11.  The Court determined the veteran failed to meet the burden of showing he was harmed by the Board’s erroneous citation to Section 20.1304(a).  Id. at *12.  The Court began by stating the notice actually gives 90 days or until a decision is made to make a decision and also notes the veteran and his VSO repeatedly affirmatively indicated they had no further arguments or evidence.  Id. at *14.  The Court did explain in footnote 7 that:

the Court is not holding that the Board's erroneous citation to § 20.1304(a) in a notice letter is necessarily not prejudicial or that the Board does not err when it issues a decision sooner than 90 days after mailing a notice letter to a claimant in a case where § 20.1304(a) actually applies. Rather, we hold only that Mr. Williams has failed to carry his burden of demonstrating that any Board error in this case prejudiced him.

Id. at *15.

The case underscores the oddity of Section 20.1304(a) which really guarantees nothing to the veteran (90 day or until the Board has already made a decision unless you can make a showing of good cause).

The decision was by Judge Bartley and joined in by Judges Toth and Falvey.

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