Hatfield: Informed Consent and CUE

Hatfield v. McDonough, Case Number 21-5125, decided March 28, 2023 involves a claim for an earlier effective date based on CUE in a prior Board hearing.

This is a continuation of a precedential decision where in “Hatfield I, we held that the reasonable person exception to informed consent–which allows defects in informed consent that are minor and immaterial if a reasonable person in similar circumstances would have proceeded with treatment even if informed of a foreseeable risk–does not apply when no consent is obtained at all.”  Id. at *1.

After the decision, the veteran argued for CUE in a prior Board denial and that the result should be an earlier effective date.  The Court decided:

In a nutshell, the language of the statute then–as today–does not contain any reference to informed consent, and the legislative history of the statute reinforces the conclusion that the failure to obtain a patient's informed consent did not support compensation under the provision. Moreover, the regulation implementing section 351 underscores the point that a lack of informed consent did not undebatably provide a basis for compensation. Indeed, the concept of informed consent forming a basis upon which compensation was warranted does not appear in relevant regulations until the mid-1990s. Finally, we are not persuaded by appellant's argument that the common law of medical malpractice supports a finding that the only reasonable interpretation of section 351 in 1980 was that the statute provided for an award of compensation where VA did not obtain a patient's informed consent. The bottom line is that appellant fails to show that the Board's June 2021 decision finding no CUE in the October 1980 Board decision was arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. Therefore, we will affirm.”

Id. at 2-3.

The Court further explained:

“In sum, and leaving aside for the moment VA's implementing regulations, to which we will turn next, appellant's CUE allegations fail to establish that the only reasonable interpretation of section 351 in 1980 included a failure to obtain a patient's informed consent before treatment or other care as a ground for the award of compensation. It certainly is not undebatable that informed consent was a ground for section 351 compensation under the law in effect at the time of the 1980 Board decision as is required to establish CUE.96 And the 2021 Board's conclusion that appellant's allegation of error did not constitute CUE is not arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.”

Id. at 18.

The Court summarized by stating:

“Section 351 in 1980 did not contain any reference to informed consent, nor did it

incorporate the informed-consent provisions found at section 4131 and § 17.34. Appellant fails to point to any authority indicating that a failure to obtain a patient's informed consent supported an award of compensation under section 351 in October 1980. She points to nothing to show that it is undebatable that a failure to obtain informed consent was a basis upon which the October 1980 Board could award compensation under section 351. Therefore, the Board decision on appeal finding no CUE in the October 1980 decision was not arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.”

Id. at page 23-24.

Decision by Judge Allen and joined in by Judges Meredith and Falvey.

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Edwards: How the AMA Complicated Board Hearings

Edwards v. McDonough, Case Number 20-7244, decided March 20, 2023 involved a NOD where the veteran elected direct review, but attached evidence to the form.  The Court determined the Board should have clarified which review docket the veteran intended to choose and thus the Court set aside the decision and required readjudication.

The veteran submitted a NOD marked direct review, but submitted a statement with the NOD detailing the auto accident which led to his neck injury.  The Board issued a decision stating it was limiting its review to the evidence considered by the RO, but also included the veteran’s statement in the list of evidence it considered.

The veteran argued the NOD and statements liberally read together created a reasonable uncertainty as to what Board review option he intended to elect, which required the Board to ask to clarify pursuant to 38 CFR Section 20.202(f).  The Secretary argued the NOD was clear on its face.

The Court agreed:

“with Mr. Edwards that, when read together, his VA Form 10182 docket election and its attached statement were unclear—if not wholly contradictory—concerning the docket choice that Mr. Edwards intended, and the Board was required to clarify his intent. Mr.

Edwards elected the direct review docket, with the printed restriction that the veteran  agrees that he "will not submit any additional evidence in support of [his] appeal." Simultaneously, Mr. Edwards attached a statement to his form that provided new  information regarding the circumstances of his in-service accident, his symptoms, and the medical care he sought and received to treat those symptoms. Despite the Secretary's protestations to the contrary, it is simply not possible to reconcile Mr. Edwards's submission of this new evidence with his chosen election. Indeed, it is perfectly clear to the Court that Mr. Edwards's scenario gave rise to the exact type of confusion or uncertainty suggested in the regulation's title.”

Id. at *7.

It further explained:

“To be clear, we do not speculate as to whether other scenarios might implicate § 20.202(f) and VA's obligation to clarify a claimant's NOD docket election. Accordingly, we do not address the situation where the veteran submits additional statements or evidence after submitting the VA Form 10182, a scenario referenced by the Secretary at oral argument. We need not address these questions because here Mr. Edwards's VA Form 10182 and attached statement were part of the same submission and were explicitly intended to be contemplated together, and his attached statement created uncertainty as to which Board review docket he intended to elect. We conclude only that the § 20.202(f) duty to clarify the veteran's intent attached in this case because the VA Form 10182 submission as a whole, consisting of the form itself and the attached statement, raised uncertainty that the Board did not acknowledge or attempt to resolve consistent with VA

regulation.”

Id. at *9.

            The Secretary argued that any error was harmless.  The Court rejected such argument saying

“Contrary to the Secretary's argument that Mr. Edwards received the benefit of the evidence submission lane, it is clear that the Board failed to account for Mr. Edwards's new evidence in its analysis, including his statement that he sought neck and back treatment with a chiropractor and that he had seen the chiropractor "over 100 times throughout the years."  

 

Although the Board is presumed to have considered all evidence of record when making its decision, Newhouse v. Nicholson, 497 F.3d 1298, 1302 (Fed. Cir. 2007), that presumption does not relieve the Board of its independent obligation to address potentially favorable, material evidence of record and to provide reasons or bases for its weighing of that evidence , Caluza v. Brown, 7 Vet.App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). Because Mr. Edwards's statement attached to his VA Form 10182 provided, among other things, additional detailregarding treatment sought for his neck disability and potential continuity of symptoms since service, it was potentially favorable, material evidence that the Board was required to address.”

Id. at *11.

This case serves to show the complicated nature of the AMA and demonstrates a commitment by the Veteran’s Court to look at it through the prism of assisting the veteran.

Decision by Chief Judge Bartley and joined in by Judges Toth and Laurer.

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Spicer: Secondary Service Connection Explained Broadly

Spicer v. McDonough, Case Number 2022-1239, was decided March 8, 2023 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 undergoing surgery for his knees.  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 VA and Veterans Court denied service connection, with the Veterans Court concluding:

“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.”

Judge Allen at the Veterans Court 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.”

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.”

The Federal Circuit heard the case and agreed with Judge Allen’s dissent, explaining:

“The dispute is thus narrow: Whether the but-for causation requirement in § 1110 is limited, as the government contends, to bringing something about or the onset or etiological link, or whether, as Mr. Spicer contends, that language may encompass situations where the service connected disease or injury impedes treatment of a disability. For the reasons below, we adopt the latter view.”

Id. at *6.

The Court noted its analysis begins and ends with Section 1110 and noted Congress could have drafted a more narrow causation standard as it had done in another statute.  The Court explained:

“Put together, § 1110 plainly requires compensation when a service-connected disease or injury is a but-for cause of a present-day disability. This broad language applies to the natural progression of a condition not caused by a service-connected injury or disease, but that nonetheless would have been less severe were it not for the serviceconnected disability. Stated another way, § 1110 provides for compensation for a worsening of functionality—whether through an inability to treat or a more direct, etiological cause. Nothing in the statute limits § 1110 to onset or etiological causes of a worsening in functionality.”

Id. at *8.

When I wrote my initial summary on this case two years ago, I wrote: “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.”  It would appear that Judge Allen and I were correct.

Decision by Judge Stoll and joined by Judges Taranto and Chen.

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Costello: Certification to the Board Notice is Not Defective

Costello v. McDonough, Case Number 20-2314, decided February 23, 2023 involved whether a notice stating an appeal had been certified to the Board and the veteran had 90 days or the date of decision to submit new evidence or argument was unconstitutional.

The veteran’s claim was appealed to the Board and resulted in a notice stating the veteran had had 90 days or until the Board issued a decision, whichever came first, to submit additional argument or evidence, or to request a change in representation.  29 days after the letter, the Board made a decision denying the issues sought.  The Board noted the appeal had been advanced on the docket in light of the veteran’s advanced age.

The veteran argued that the section allowing for the letter, Section 20.305(a), was facially invalid as it denied the claimant due process of law.  Specifically, “the language "or up to and including the date the appellate decision is promulgated by the Board, whichever comes first" is facially invalid and violates the Due Process Clause of the U.S. Constitution because it offers only illusory notice that is fundamentally unfair and does not afford claimants before the Board the right to be heard in a meaningful manner. Therefore, he appears to argue that all claimants are denied procedural due process when the Board issues a decision less than 90 days after certification.”  Id. at *3. 

The Court confined its analysis to procedural due rights and not substantive due rights as that was what was argued by the veteran.  The Court conceded potentially a veteran could be deprived his due rights if the Board promulgated a decision on the same day the certification notice was sent, then such an action, absent waiver, could potentially deprive a claimant notice and opportunity to be heard by the Board.  Id. at *11.  The Court also noted the veteran “does not allege that the Board's notice letter was misleading or that he did not receive it before the Board adjudicated his claims.”  Id. at *13.  The Court also noted “Nor did the appellant file a motion to vacate the Board's decision under § 20.1000(a) alleging that he was deprived of due process. Instead, the appellant consistently argues only that § 20.1305 is facially invalid.”  Id. at *14.

Ultimately, the Court determined “The appellant does not clear the high bar to show that § 20.1305(a) facially deprives a legacy claimant of the claimant's constitutional right to notice and the opportunity to respond if the claimant's appeal is decided less than 90 days after notice that it is initially certified to the Board.”  Id. at *16.

This case serves to remind veterans and advocates that the 90 day notice letter should not serve as the time to start writing a memorandum.  In most cases, I submit my brief and any additional evidence at the same time I submit a NOD or Form 9 so as to avoid this problem.

Decision by Judge Pietsch and joined in by judges Meredith and Laurer.

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Mattox: Balancing Competing Medical Opinions

Mattox v. McDonough, Case Number 2021-2175, decided by the Federal Circuit Court of Appeals on January 9, 2023 involved what the Board should do when there are two competing medical opinions and resolved that the Board did not err in looking both at the quantity and quality of the opinions in making a decision.

The veteran argued “because the record (as it pertained to whether he had service-connected PTSD) contained one physical piece of evidence pointing each way (the contradictory opinions of his private doctor and the VA examiner), it stood numerically even on the issue of his condition. Under these circumstances, Mr. Mattox urged, the VA was required by law to give him the benefit of the doubt and concede that he suffered from service-connected PTSD.”  Id. at *7. 

The Federal Circuit reiterated that the Board should assign probative value to the evidence and stated: “In short, when conducting a benefit-of-the-doubt-rule analysis, as in other settings, the Board is required to assign probative value to the evidence.”

The Federal Circuit also considered whether the Board applied the proper standard saying “in Mr. Mattox’s case, the Board followed the proper approach of assigning probative value to the relevant evidence and determining whether “the evidence persuasively favor[ed] one side or the other.” The Board’s erroneous reference to “a preponderance of the evidence” did not affect the correctness of its overall analysis.”  Id. at *17.

Essentially the Federal Circuit rejected a theory that a benefit of the doubt analysis requires a mathematical calculation of pro versus con evidence and then a grant if they are numerically equal.  Instead, they focus on the persuasiveness or quality of the evidence.  Of course, this quality standard will only lead to more disputes over decisions, but fortunately for the Federal Circuit their refusal to consider anything but legal disputes will effectively prevent those decisions from ever being considered by the Federal Circuit.  The Veterans Court’s deferential review standard also means that whatever the VA says will likely by upheld with little recourse except filing a supplemental claim with new evidence, and thus the hamster wheel is perpetuated by the Courts.

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Encarnacion: RO Decisions Implementing A Board Decision Cannot be Appealed

Encarnacion v. McDonough, Case Number 21-1411, decided January 30, 2023 involved whether a RO decision implementing a Board decision could be appealed.

Shortly after the veteran died, the surviving spouse filed for DIC and accrued benefits.  Ultimately the Board granted a 10% rating with an specified effective date for a right knee condition.  The RO then implemented the Board’s decision in another decision.  The surviving spouse filed an NOD as to the AOJ’s implementation with regard to the amount of the rating.  The VA then issued both a SOC and sent a letter rejecting the NOD.  The surviving spouse filed a Form 9 and the SOC was certified to the Board, which issued another decision as to the rating issue.  She appealed that decision to the Court and won a JMR because the Board erred in addressing the merits before determining whether the AOJ properly found it could not accept the NOD.

On remand, the Board determined it lacked jurisdiction because the spouse may not challenge the merits of a Board decision by expressing disagreement with the AOJ’s implementation of it.  The Board determined the law prohibits a NOD with respect to this type of implementation. 

The Court determined: “the pure implementation of a Board adjudication cannot be regarded as a decision "affect[ing] the provision of benefits" under section 511(a) and so cannot be appealed to the Board.”  Id. at *5.  It noted: “Here, the implementation of the Board decision by the AOJ was accompanied by no new findings of fact or law that could affect the award of disability benefits.  The Board had already granted service connection and resolved the proper rating and effective date. Even more importantly, the AOJ couldn't render new findings on factual or legal issues already determined by the Board because that would place the AOJ in the untenable position of reviewing the decision of a superior tribunal on those matters.  In sum, the AOJ's purely ministerial implementation of the Board's judgment was not a "decision" of the Secretary and thus could not be appealed through the filing of an NOD.”  Id. at *5-6.

The surviving spouse tried to argue the VA waived any objection to jurisdictional defect because the VA continued to adjudicate the claim by issuing a SOC and certifying to the Board.  But, the Court found without a decision under Section 511, there is simply nothing to review.  Id. at *6. 

However, the Court did find she was not without recourse.  It found the Board was required to determine whether her written disagreement with the decision (purported NOD) was a motion to reconsider the Board’s decision.  It also noted it was submitted within 120 days, which would abate the finality of the time to appeal to the Court.

This is an odd case with a twisted procedural history that no doubt confused an older, unrepresented surviving spouse.  However, the Courts definition of a decision as one not requiring any further adjudication by the AOJ is a helpful clarification.  Ultimately I believe it is of limited value as it concerns legacy cases. 

Judge Jaquith wrote a concurrence in which he focused on the tortured procedural history of this case and in particular how the VA seems to have not handled the substitution properly and without proper notice.  It is a well-reasoned discussion that sympathetically focuses on the veteran or surviving spouse.

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Atilano: Board Hearings without the Veteran

Atilano v. Wilkie, Case Number 17-1428, decided November 3, 2022 handled a remand from the Federal Circuit regarding whether a Board hearing can be cancelled if the veteran is not in attendance even if the veteran’s representative and an expert witness are there.

As previously summarized, the veteran’s attorney requested a hearing before the Board's central office in Washington, D.C., to present testimony from a licensed psychologist and certified rehabilitation counselor. A hearing date was set but a motion to change the time was granted. 

On the day of the hearing, counsel and the certified rehabilitation counselor appeared at the Board's offices without the veteran.  The Board member declined to hold the hearing without the veteran stating that the claimant’s participation was legally required.  The record was held open for 60 additional days so the expert could submit a report in writing and counsel could do the same with respect to argument.  In her duly submitted written report, the expert opined the veteran was, by reason of his PTSD and in light of his educational and occupational history, unable to hold substantially gainful employment between 1995 and 2010.  She also stated that, if permitted to testify, she would have defended any challenged conclusions and answered any relevant questions asked by the Board member.

Counsel wrote that the veteran had been unable to attend the scheduled hearing because he was severely disabled and that he believed VA was required to hold the hearing despite the veteran's absence. Counsel further argued that the veteran was prejudiced by the Board member's actions because a written report was inferior to oral testimony.

The Court noted the issue on appeal is "whether an appellant must be present at his or her hearing in order for his or her legal representative to elicit sworn testimony from witnesses before the Board."  Id. at *6.

The Veteran’s Court originally reasoned

In short, the overall statutory structure of section 7107 confirms that an appellant exercising the right to a Board hearing must participate in that hearing. The appellant has the choice whether to do so by appearing personally in the presence of the Board member or by participating remotely via video conference or other electronic means, but there is no provision allowing an appellant to invoke the right to a hearing but decline to participate.

However, the decision was appealed to the Federal Circuit and remanded by that Court; however, the Federal Circuit did not clearly rule in favor of the veteran.  The Veteran’s Court concluded the Federal Circuit’s analysis was a wholesale repudiation of the Veteran’s Court’s prior analysis.  Essentially, the Veteran’s Court found the Federal Circuit held a claimant too disabled to attend a hearing could still invoke the right to a hearing. 

Judge Toth wrote a concurrence where he essentially wrote the Federal’s Circuits decision to remand a legal issue as opposed to just find in favor of the veteran was curious.  He reasoned:

But the freedom de novo review offers comes with a price: hard work. The reviewing court has the responsibility to engage directly with the statute, regulation, or law; decide the legal question; and show its own reasoning. It cannot merely point out a few errors in a lower court opinion, send the case back for a do-over, and call it a day. Instead, the common practice among federal appellate courts is to expend little bandwidth assessing whether a lower court erred on a particular point of statutory interpretation and instead take the matter on directly and analyze it as if no court had ever considered the matter before. See, e.g., George v. McDonough, 142 S. Ct. 1953 (2022); Gallegos v. Principi, 283 F.3d 1309 (Fed. Cir. 2002).

 

Which brings me to the rub of the matter: appellate courts remand matters to lower courts

when the lower tribunal has authority to perform some action the higher court cannot. So an appellate court can reverse a legal ruling and remand a matter for a lower tribunal to carry out ministerial tasks, or it can remand when there are unresolved issues and the lower tribunal possesses an authority (e.g., fact finding) that the higher court lacks. By contrast, when an appellate court has authority to resolve an issue fully, there's no basis to order a lower court to reconsider a ruling it has already made merely to suggest the ruling come out differently.

Id. at *7.

This case merely makes clear a very disabled veteran can ask for a hearing and not attend if other evidence is going to be put into the record.  It has a limited real world impact, but certainly the way it was handled by the Federal Circuit procedurally aggravated the Veterans Court.  I would only add that as an advocate before the Veterans Court, I would request that they also be more willing to make a decision in favor of a veteran rather than almost always remand.

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