Wilson: The Scope of the Claim before the Board

Wilson v. McDonough, Opinion Number 19-3791, was decided January 26, 2022 and involves what happens when the VA performs minimal or inadequate VA examiantions.

The veteran was granted a 10% tinnitus rating and 0% hearing loss rating.  However, the veteran filed a Form 9 to the Board noting the VA had not tested for peripheral vestibular disorder (PVD) and noting his PVD caused dizziness and staggering.   

The VA responded by sending a form letter stating his claims had to be submitted on a standardized form.  The form letter said “nothing about whether the veteran's PVD would be included in his appeal, and it does not indicate that a separate claim for that disorder was required or that PVD would not be considered based on what he had already submitted. The veteran acknowledged the correspondence and, having "no further claims to submit," asked "that the appeal process continue."

The Board then rendered a decision which did not address the veteran’s PVD or dizziness or staggering.  The veteran appealed and focused on the need for a new examination.  The Secretary took the position that the Form 9 indicated an informal intent to seek benefits for PVD, dizziness and staggering, but the Board was under no obligation to discuss these issues because the veteran never filed a formal claim as instructed.

The Court began with Bailey v. Wilkie, 33 Vet.App. 188, 199 (2021), and noted "VA is obligated to develop and adjudicate claims for secondary service connection that are reasonably raised during the processing of a properly initiated claim as to the primary service-connected disability's evaluation level.”  The Court in Bailey reasoned "the ordinary meaning of 'complications' in § 3.155(d)(2) encompasses disabilities caused or aggravated by treatment for a service connected disability," the regulation imposes a duty n the Agency to consider claims for secondary service connection if they are raised during the course of adjudicating a complete claim concerning a related, primary disability.”

The Court then found the Secretary had conceded the Form 9 request was for service connection on a direct or secondary basis.  The Court then noted the Board is required to consider all issues raised by a veteran and to construe the arguments in a liberal manner for purposes of determining whether they raise issues on appeal. 

The Court found the Form 9 was directed to the Board and the response from the VA contained boilerplate and did not address the actual issue (PVD) in the letter.  The Court actually characterized the VA’s letter as an “uninformative form letter.”  The Court then determined a remand was necessary because:

“no one told the claimant in an understandable way that what he'd submitted was insufficient or notified him "of the information necessary to complete the appropriate application form prescribed by the Secretary." 38 C.F.R. § 3.155(b)(3) (setting forth the Secretary's responsibility "[u]pon receipt of an intent to file a claim"). Moreover, the Board did not state any reasons or bases for not addressing the veteran's February 2017 Form 9 claims.”

This is an important case that pushes back against the VA’s increasingly narrow definition of a claim and unwillingness of the Board to address issues that were not specifically addressed by the RO.  Since the AMA, the VA has become chained to forms rather than reason to the detriment of veteran.  This case should help push back against that ignorance.

Decision by Judge Jaquith and joined in by Judges Pietsch and Greenberg.

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Constantine: Nehmer and Korean Veterans

Constantine v. McDonough, Case Number 18-7044, decided January 14, 2022 discusses the expansion of the Nehmer class to allow for an earlier effective date for the veteran. 

Nehmer is a class action suit related to VA regulations as to Agent Orange exposure that resulted in a class action order in the US District Courts, which has been overseen by the U.S. District Court of Northern California.

In this case, the Board determined the veteran was not a member of the class identified in Nehmer and thus does not receive the earlier effective date allowed by the class settlement.  The Veterans Court noted it had jurisdiction over the appeal and the authority to decide whether the veteran was/should be a class member, but declined to exercise jurisdiction for risk two federal courts could arrive at conflicting outcomes and thus unnecessarily complicate litigation.

The veteran in this case did not serve in Vietnam, but Korea in the DMZ.  The veteran argued he should receive the effective date allowed by Nehmer because the Nehmer class definition was not limited based on geographic location of herbicide exposure. 

The Court declined to exercise jurisdiction and explained:

“Congress transferred exclusive subject-matter jurisdiction over veterans benefits cases to our Court in 1988. Nehmer remains a vestige of the pre-VJRA judicial system—a historical anachronism—and that fact and the factors discussed herein weigh in favor of declining to exercise jurisdiction over the only argument raised by the veteran in this case. But we stress, however, the unique and extraordinarily rare situation that this case presents. Our decision to decline exercising jurisdiction in Mr. Constantine's appeal comports with general principles of comity and judicial economy that counsel against courts exercising jurisdiction in such a way that might interfere with the order of another court. See, e.g., Zambrana v. Califano, 651 F.2d 842, 844 (2d Cir. 1981) (citing Bergh v. State of Washington, 535 F.3d 505, 507 (9th Cir. 1976), Torquay Corp. v. Radio Corp. of America, 2 F. Supp. 841, 844 (S.D. N.Y. 1932) ("[A]s a matter of comity and of the orderly administration of justice, [a] court should refuse to exercise its jurisdiction to interfere with the operation of a decree of another federal court.")). Accordingly, we decline to exercise jurisdiction in this case. To the extent that Mr. Constantine believes that he is wrongfully being excluded from the Nehmer class, he is not without recourse; he can seek enforcement with the District Court.”

This decision is a novel attack on the class member definition found in Nehmer and has already been appealed to the Federal Circuit.  The result will be interesting.

Decision by Chief Judge Bartley and joined by Judge Meredith.  Judge Greenberg dissented saying he would exercise jurisdiction.

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Page: Adding to the RBA

Page v. McDonough, Case Number 19-0865, decided January 14, 2022 discusses an addition to the RBA. 

This case involves the Record Before the Agency, constructive possession by the Board, and the interaction with Euzebio v. McDonough (Euzebio II), 989 F.3d 1305 (Fed. Cir. 2021), vacating, remanding Euzebio v. Wilkie (Euzebio I), 31 Vet.App. 394 (2019).

The Court noted “the appellant argues that there are references in the record of proceedings (ROP) to fee-basis treatment records that had been scanned into VistA, but because VistA records are not automatically included in the claims file, those records were "not before the Board as required." As a result, the Secretary attempted to add the records to the RBA and continue the case before the Court.  The Veteran argued instead . “where the Board has actual notice of the existence of records missing from the claims file, the Board errs in not obtaining and reviewing those records, and the Court must remand for the Board to do so.”

The Court held:

“where a party in the context of a record dispute proffers for inclusion in the RBA documents that were constructively before the Board, those records should be included in the RBA.  Based on the appellant's concession that the VistA Imaging documents at issue here were constructively part of the record before the Board, the Court will grant the Secretary's motions and allow him to amend the RBA to include the January 2015 and May 2018 VistA Imaging documents.  Furthermore, because those documents are properly part of the RBA, the Court will deny the appellant's motion to strike portions of the Secretary's brief referencing those records. To the extent the appellant argues that the Court may not review these records in the first instance, those arguments pertain to the merits of the appeal and are separate considerations from what must be included in the RBA.”

This decision affirms that documents referenced by other documents should be part of the RBA and should lead a careful advocate to look for these documents.

Decision by Judges Pietsch, Meredith, and Falvey.

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Snider: Board Analysis of Referral for Extraschedular Consideration After Ray

Snider v. McDonough, Case Number 19-6707, was decided November 19, 2021 and involves an extension of Ray v. Wilkie, which addresses referral for extraschedular TDIU consideration.

The court summarized the result as stating:

In Ray v. Wilkie, 31 Vet.App. 58, 66 (2019), a case where the Board referred for extraschedular TDIU consideration but later denied TDIU benefits, the Court held that the initial extraschedular referral decision under 38 C.F.R. § 4.16(b) addresses whether there is sufficient evidence to substantiate a reasonable possibility that a veteran is unemployable because of serviceconnected disabilities. We are asked to decide whether this holding applies to situations like in Ms. Snider's case, in which the Board denied both the referral for extraschedular TDIU consideration and TDIU benefits. Because granting or denying a referral for extraschedular TDIU consideration addresses the same question—Is referral warranted?—we hold that Ray's "reasonable possibility" standard applies to the Board's decision to grant or deny the referral.

And because Ray applies to this case and the Board did not consider the evidence under the "reasonable possibility" standard when determining whether referral was warranted, remand is necessary for the Board to do so, especially because both parties agree that the Court cannot make this factual determination in the first instance. Thus, we will set aside the part of the June 2019 Board decision denying TDIU and remand the matter for readjudication.

Id. at *1-2.

The veteran sought TDIU based on service connected disabilities of sinusitis and hemorrhoids.  The Board found referral for extraschedular TDIU consideration was not warranted.  The Court noted “[t]he Board concluded that, given Mr. Snider's occupational history, he could work in occupations 4 other than those involving food service where symptoms such as dripping mucous and taking six bathroom breaks a day would not interfere with the completion of work duties.”  Id. at *3-4.

Before the Court, the veteran argued “the Board erred or provided inadequate reasons or bases for not referring TDIU for extraschedular consideration because the Board did not address the veteran's claim under the "reasonable possibility" standard discussed in Ray.”  Id. at *5.

The Court concluded by finding:

In this case, the Board determined that referral for extraschedular TDIU consideration was not warranted because the evidence did not support a finding that the veteran's service-connected sinusitis and hemorrhoids rendered him unable to obtain or maintain substantially gainful employment. R. at 12. The Board did not consider the evidence under Ray's "reasonable possibility" standard when making its referral decision. Because that standard applies to all extraschedular TDIU referral decisions, including this case, and because the Board here did not employ that standard, remand is necessary for the Board to do so. See Tucker v. West, 11 Vet.App. 369, 374 (1998) (holding that remand is the appropriate remedy where the Board incorrectly applied the law or did not provide an adequate statement of reasons or bases or where the record is otherwise inadequate). As the parties agree, the Court cannot make the initial decision about whether the evidence was sufficient under the "reasonable possibility" standard.

Id. at *12. 

This seems like particularly unnecessary decision and can only wonder why the VA defended.  It is barely an expansion of Ray and its analysis regarding referral for extraschedular consideration.

Decision by Judge Falvey and joined by Judges Pietsch and Toth.

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Foster: Prostate Cancer Reductions

Foster v. McDonough, Case Number 19-7442, was decided October 20, 2021 and involves a reduction after prostate cancer surgery.

The veteran appealed a reduction from 100% to 10% after prostate cancer went into remission and the discontinuance of SMC. 

Initially, the Court focused on the use of the term reduction in this case, saying:

the semantic difficulty that cuts across this appeal. The central issue we face is whether, when VA changes a claimant's disability rating for prostate cancer under DC 7528 from 100% to some lower rating, that change is a rating reduction entitling a claimant to the special regulatory procedures associated with such reductions (along with judicial interpretations of those regulations). The difficulty is that, of course, when VA changed appellant's disability rating from 100% to 10%, the change was a "reduction" in the colloquial sense. No one can argue otherwise. But, there is a certain awkwardness in explaining the matters at issue in this appeal because of the limitations of the written word. So, it is important to keep in mind that we are not dealing with the colloquial, common-sense meaning of "reduction." Rather, we are concerned with whether the common-sense "reduction" that occurred here was a "rating reduction," a legal concept in veteran's law that obligates VA to utilize the special procedures that apply to such actions.

Id. at *2.

Importantly, DC 7528 provides that after “the cessation of surgical, X-ray, antineoplastic chemotherapy or other therapeutic procedure” a 100% rating “shall continue with a mandatory VA examination at the expiration of six months.”  It then states if there is no reoccurrence, the residuals will be rated voiding or renal dysfunction after section 3.105(e) notice.

The Court found “[i]t is clear from the language of DC 7528 that the discontinuance of appellant's 100% disability rating does not constitute a traditional rating reduction but is instead part of the initial rating assigned for the condition.”  Id. at *9.  After discussing how the decision squares with other case law, the Court states:

“In sum, our holding today builds on the precedential caselaw before it. The common thread that links this caselaw is the plain language of the DCs at issue in those cases. And an adjudicator should simply apply the DC's procedures, including any temporal components that may be present, as written. Here, the note accompanying DC 7528 is clear. The discontinuance of a 100% prostate cancer rating following the procedures set out in that note is not a rating reduction requiring VA to follow the special procedures associated with rating reductions.”

 

Id. at *17.

The Court then turned to the 10% rating and noted a remand was necessary on a reasons and bases error because:

the Board failed to explain why it found appellant's statements that his voiding dysfunction required the use of absorbent materials not credible. The parties agree that the Board's finding that there was no record of incontinence is inaccurate, because various treatment records indicate that appellant had incontinence.  Thus, the Board based its credibility finding on an inaccurate description of the evidence of record. The Court agrees with the parties and accepts the Secretary's concession of error. 

Id. at *18. 

Decision by Judge Allen, and joined by Chief Judge Bartley and Judge Falvey.

 

Hall: Board Jurisdiction and Submission of an Incorrect Form

Hall v. McDonough, Case Number 19-8717, was decided October 18, 2021 and involves whether the Board has jurisdiction to decide a claim when an improper form had been submitted.

This involves a legacy appeal that was decided the day the VAIMA went into effect.  The veteran submitted a VAIMA NOD as opposed to an older NOD.  Ultimately, the Board noted the form and stated the claim was on its docket.  Later, the Board dismissed the claim when it found he used a new NOD as opposed to the older version of a NOD.  The Board determined it did not have jurisdiction.

The veteran argued: “the requirement to use VA Form 21-0958 is not a jurisdictional hook and the Board waived that requirement when it accepted and processed his appeal. He also asks the Court to ensure that an SOC is issued regarding his foot, ankle, and hip conditions.”  Id. at *2.

The Court began by noting

The Supreme Court has repeatedly emphasized the distinction between rules affecting jurisdiction and mandatory "claims-processing" provisions that govern the orderly processing of cases but otherwise do not create or withdraw jurisdiction. "Clarity would be facilitated if courts and litigants used the label 'jurisdictional' not for claims-processing rules, but only for prescriptions delineating the classes of cases (subject-matter jurisdiction) and the persons (personal jurisdiction) falling within a court's adjudicatory authority."

Id. at *3.

It then explained:

As relevant here, 38 U.S.C. § 511(a) provides a cause of action and establishes that "[t]he Secretary shall decide all questions of law and fact necessary to a decision by the Secretary under a law that affects the provision of benefits by the Secretary to veterans or the dependents or survivors of veterans." It is absolutely clear that Congress intended to grant to the Secretary "the power to declare the law" by adjudicating cases brought under section 511(a). Steel, 523 U.S. at 94. There's no dispute that Mr. Hall brings a claim for veterans benefits under section 511(a).

The Board's jurisdiction is derivative of the Secretary's. As with section 511(a), 38 U.S.C. § 7104(a), which sets out the Board's jurisdiction, uses the same mandatory shall in directing that "[a]ll questions in a matter which under section 511(a) of this title is subject to a decision by the Secretary shall be subject to one review on appeal to the Secretary." Taken together, sections 511 and 7104 offer no indication that Congress sought to eliminate VA's authority to adjudicate veterans benefits disputes—i.e., its subject matter jurisdiction—whenever a claimant's pleading fails to conform to form or timing requirements.

Id. at *4.

The Court then noted that Percy v. Shinseki had noted a substantive appeal is not jurisdictional but a claims-processing mechanism and the Board could summarily dismiss an appeal based on jurisdiction, but had to discuss why dismissal was appropriate.  Id. at *5.  The Court in this case rejected the VA’s argument that regulations 20.202 and 20.203 ruled by noting regulations are not jurisdictional in nature and only Congress may confrer or withdraw jurisdiction.  Id. at *5. 

The Court then determined:

In sum, the Board had jurisdiction here because Mr. Hall appeals the RO's denial of his claim for benefits and because nothing in section 7105 suggests that Congress intended to limit the Board's jurisdiction based on the specific form that the appellant used to file his NOD. Thus, the Board erred in dismissing Mr. Hall's case on jurisdictional grounds. R. at 6 ("[T]he claims . . . must be dismissed because the Board does not have jurisdiction over the issues." (emphasis added)). This error effectively prevented Mr. Hall from participating in the adjudicative process as the Board neither heard his appeal nor explained why any formal defect in the appeal merited dismissal under a claims-processing rationale. See Simmons v. Wilkie, 30 Vet.App. 267, 279 (2018), aff'd, 964 F.3d 1381 (Fed. Cir. 2020). The Court thus remands for the Board to either hear 6 Mr. Hall's appeal or to provide a rationale for declining to do so. If it dismisses his claim, the Board should identify the governing law, any formal defects in the appeal, whether waiver or forfeiture is a relevant consideration, and any other relevant factors.

Id. at *5-6.

This is an interesting case in that it reaffirms that a lack of jurisdiction is not an adequate reason for the Board to dismiss an appeal which was on the incorrect NOD form.  I would have expected the Court to note the non adversarial nature of the VA process, but instead this Court focused strictly on the technical aspects of the jurisdictional argument.  What is also interesting is to see how this could more broadly help other veterans.  If a wrong NOD is not jurisdictional, than a late one also isn’t.  The next question is whether a NOD on a form is even required.  The Court seems to have opened a door and it will be interesting to how quickly it is shut or far it is opened.

Decision by Judge Toth and joined by Judges Laurer and Jaquith.

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Spicer: Testing the Limits of Secondary Service Connection

Spicer v. McDonough, Case Number 18-4489, was decided September 14, 2021 and involves a claim for service connection for a leg disability secondary to service connected leukemia.    

The veteran sought service connection for a leg disability, weakness and instability in his knees due to arthritis.  The theory was that his service connected leukemia did not actually cause or aggravate his knee arthritis, but treatment for his leukemia prevent him from underlying surgery for his knees.

The Court began by noting “no statute expressly provides for secondary service connection, where compensation for a disability is not related directly to service but to problems that themselves stem from service. Instead, this theory of entitlement is set forth in a longstanding regulation, 38 C.F.R. § 3.310, which was first promulgated in 1930.2  Under this rule, VA recognizes that "disability which is proximately due to or the result of a service-connected disease or injury shall be service connected" as "a secondary condition." 38 C.F.R. § 3.310(a).”  Id. at *2.

The veteran specifically noted a 2014 knee replacement surgery had been cancelled because chemotherapy for his leukemia had depressed his red blood cell level and it was unlikely his count would ever increase enough to allow the surgery.

The Board determined the "inability to undergo knee replacement surgery because of the effects of his service-connected leukemia is not contemplated by the applicable laws or regulations to fall within the meaning of secondary service connection."  Id. at *4.

The veteran focused on the word “disability” as a broad enough term to encompass his theory of service connection.  The veteran argued any worsening in functional impairment constituted a worsening disability under section 1110.  Id. at *5.  However, the Court focused on the “resulting from” language in Section 1110 and “conclude that "resulting from" requires actual causality and so does not encompass such disabilities.”  Id. at *5-6.  The Court reasoned:

Given that the phrase "resulting from" has for almost a century plainly expressed a causation requirement, we must reject Mr. Spicer's contention that section 1110 doesn't contain an etiological component. Although the veteran is not explicit, we understand him to use the word "etiology" to refer to "the cause(s) or origin of a disease." Allen, 7 Vet.App. at 445 (emphasis omitted). In this light, section 1110's "resulting from" language clearly requires an etiological nexus and that language imposes "a requirement of actual causality." Burrage, 571 U.S. at 211. Put another way, Congress's intention to provide compensation only in situations where there's an etiological link between service and a disability's onset or worsening is evident from its use of the phrase "resulting from."

Id. at *6. 

As to the facts of the case, the Court concluded:

Mr. Spicer's knee arthritis did not, in any reasonable sense of the phrase, "result from" his service-connected cancer or the chemotherapy provided to treat it. There is no contention on appeal that they caused the arthritis or that they made it worse. The current state of his knee functionality is not a consequence or effect of these service-related agents. At most, they interfered with his attempts through affirmative intervention to alter the arthritis's natural progress. Unless we can say that the current state of his arthritis would not exist in the absence of his cancer or chemotherapy, however, there is no actual but-for causation. And but-for causation is what Congress required in section 1110.

Id. at *7.

Judge Allen dissented, arguing:

In my view, however, the statute sets out a much broader, causation-based standard. And because that is so, I also believe that VA's regulation implementing section 1110, 38 C.F.R. § 3.310(b), improperly limits that language in a way Congress did not intend. Therefore, I would hold that the regulation is not a permissible construction of section 1110.

Id. at *12. He further explained:

the phrase "resulting from" in section 1110 provides for compensation when a disability is the consequence or effect of military service. Stated another way, the statute's language merely requires that one thing flow from another, namely that a disability flow from military service. Congress imposed no other limitations in connection with establishing service connection beyond this broad, causation-based principle that one thing be a consequence of another

Id. at *14.

This is an important case that effectively tested the limits of secondary service connection and found it at what I believe is too narrow a limit.  Judge Allen’s dissent is powerful. I would expect an appeal to the Federal Circuit and a possible reversal.

Decision by Judge Toth and joined by Judge Pietsch.  Dissent by Judge Allen.

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