Mayfield (Substitution Before the Court)

Mayfield v. McDonough, Case Number 21-8176, decided July 28, 2023 is an order involving substitution after a veteran has died during the appeal.

In Breedlove v. Shinseki, 24 Vet.App. 7, 20–21 (2010) (per curiam order), the court found it had discretion to permit a movant to be substituted for an appellant who dies during the pendency of an appeal in this Court, provided that there is either a determination by VA or a concession by the Secretary that the movant is an eligible accrued-benefits claimant.   The VA typically conditions its position regarding a substitution motion filed on how the regional office rules on a movant's parallel request for substitution filed with the Agency. As a consequence, the RO's ruling is usually dispositive.

This case involves a question arising from Breedlove, what happens when the moving party is dissatisfied with the RO’s denial for a request for substitution.  Can they seek to have the Court directly review the propriety of the RO's ruling.  The Court determined it generally will not grant a motion for substitution unless the VA first determines that the movant is the appropriate party to step into the appellant's shoes.  It then explains, a would-be substitute dissatisfied with the RO's determination must challenge it through the administrative appeals process and cannot short-circuit that process by challenging it directly to the Court first.

Underneath this determination is a long-running and very much disputed battle regarding substitution, the proper forms required for substitution (as opposed to seeking accrued benefits), and the Court’s inherent powers to control a case before it. 

I would expect this order to result in an appeal to the Federal Circuit.

Order by Judge Toth and joined in by Judges Meredith and Laurer. 

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Duran: Regulatory Interpretation, Agency Deference, and Pro-Veteran Canon

Duran v. McDonough, Case Number 20-5759, decided July 20, 2023 involves how to properly rate Parkinson’s disease. 

In this case, the Board replaced a 30% rating the veteran had been receiving under DC 8004 with a combined 50% rating for three distinct Parkinson's manifestations evaluated under different DCs.  These three ratings accounted for only some of his confirmed Parkinson's manifestations.  The Court noted “This appeal raises a narrow question about the proper reading of DC 8004: When some manifestations of Parkinson's disease are rated as compensable and total more than 30% under DCs other than DC 8004, but some manifestations remain that are not rated as compensable, do the ratings under the other DCs replace or combine with DC 8004's minimum 30% rating?” Id. at *1-2.

The veteran argued “compensable ratings under other DCs should be added to DC 8004's minimum 30% rating so long as additional ascertainable Parkinson's manifestations exist that are not otherwise compensable under the rating schedule. Based on the relevant text and regulatory context and the broader policies governing VA's rating scheme, we agree with [the veteran] on the regulation's plain meaning.”  Id. at *2.

Judge Toth wrote a detailed decision that focused on the plain reading of the regulation and focusing on the language of the regulation found:

“By virtue of having a diagnosis of Parkinson's disease with at least one ascertainable manifestation, Mr. Duran is entitled to a minimum 30% under DC 8004. Even when ascertainable manifestation ratings under other DCs combine for a total rating in excess of 30%, the basis for the minimum rating under DC 8004 remains as long as there is at least one ascertainable manifestation of Parkinson's disease that is not compensable under any other DC.  Thus, when VA assigns compensable ratings for Parkinson's manifestations that total more than 30% under DCs other than DC 8004, those other ratings do not replace the minimum 30% rating under DC 8004 provided that some manifestations remain that are not rated as compensable.”

Id. at *7.

As to this case, it then explained:

“Here, the Board found that Mr. Duran's Parkinson's disease manifested itself in at least eight ways. It concluded that three of those manifestations were entitled to separate compensable ratings that totaled 50% and that two were already compensated as parts of other conditions. That left three remaining manifestations that were not compensable under other DCs pertaining to the bodily systems involved: constipation, a chewing and swallowing condition, and a speech condition. Even in isolation, any of these three ascertainable manifestations warranted the minimum 30% rating under DC 8004. That means the Board should not have replaced the 30% rating under DC 8004 in this case. We therefore reverse the Board's discontinuance of that rating.”

Id. at *8.

Judge Jaquith wrote a concurring opinion to advance his belief that the pro-veteran canon applies to this case.  He argued that even if the preamble, DC 8004 and the note with $.25(b) make clear the veteran deserves separate ratings, the pro-veteran canon should still be considered because regulatory interpretation requires interpretation of words in the context and the context of the law as a whole should include the pro-veteran canon.  He argued that “the pro-veteran canon is part of the context within which we ascertain plain meaning.”  Id. at *16.

He also agreed with Judge Allen’s concurrence that even if the regulation was truly ambiguous, the Board’s decision was not owed deference because it is clear that is not the VA’s authoritative policy as to Parkinson’s disease.  Id. at *17.

Judge Allen also wrote a concurrence explaining he agreed with the result, but not the reasoning of Judge Toth.  Judge Allen wrote he believed the regulation was ambiguous and then stated “because the Secretary has not identified any official, authoritative agency position to which the Court can properly defer in terms of resolving the ambiguity before us, I would search for the best reading of the ambiguous regulation. That endeavor necessarily considers the pro-veteran canon of construction, the application of which removes any doubt here about the proper interpretation of 38 C.F.R. § 4.124a, DC 8004.”  Id. at *19-20.

Judge Allen found an ambiguity and then rejected the VA’s reliance on the Board decision itself as the source of any Kisor/Auer deference.  Id. at *22.  He also noted that the pro-veteran canon of interpretation is particularly helpful here “because both parties' interpretations of the regulatory structure are plausible.”  Id. at *23. Judge Allen then argued as to his interpretation of the pro-veteran canon that “Utilizing the pro-veteran canon to decide between two plausible interpretations does not mean the individual veteran automatically wins.  Rather, in my view, the canon means that the Court should adopt an interpretation of an ambiguous statute or regulation that is categorically favorable to veterans as a group.  There will be situations in which there is no universal pro-veteran meaning and, in such cases, the canon has no application. Here, there is no question that reading § 4.124a, DC 8004, as appellant suggests benefits all veterans seeking compensation for Parkinson's disease who manifest ascertainable but noncompensable Parkinson's residuals when VA has already assigned a separate compensable rating or ratings for Parkinson's manifestations that total more than 30% under diagnostic codes other than 8004.”

This is simply a fascinating case.  One judge ruled based solely on the plain language of the regulation whereas another found an ambiguity, but still favored the veteran.  Another, wrote a powerful concurrence essentially arguing that no regulation interpretation can occur absent rooting it in the pro-veteran canon.

I fully expect the VA to appeal this case and look forward to the Federal Circuit’s decision.  I would guess that it will be upheld and hope Judge Jaquith’s reasoning carries the day.

Decision by Judge Toth with separate concurrences by both Judge Allen and Jaquith.

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Webb: The Federal Circuit Looks at Ratings by Analogy

Webb v. McDonough, Case Number 2022-1243, decided June 29, 2023 was a case before the Federal Circuit and concerns how a condition not listed in the diagnostic code can be rated analogous to a listed condition.

The VA’s diagnostic codes are extensive, but it is possible a condition does not clearly fall under on one of the delineated codes.  VA regulations, specifically 38 CFR 4.20 acknowledges this possibility and states:  “When an unlisted condition is encountered it will be permissible to rate under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous.”

The Court explained: “In other words, this regulation provides that a veteran having an “unlisted” condition, i.e., one that is not included on the Schedule, can be rated analogously to—and given the associated disability rating of—a listed disease or injury, provided that the affected functions, anatomical location, and symptomatology of the veteran’s condition are “closely analogous” to those of the listed disease or injury.”  Id. at *3.

It is well accepted law that when considering an analogous rating, the VA should take into consideration three factors when determining which listed rating is most closely analogous: “(1) whether the ‘functions affected’ by ailments are analogous; (2) whether the ‘anatomical localization’ of the ailments is analogous; and (3) whether the ‘symptomatology’ of the ailments is analogous.”  Id. at *3.

In this case, the veteran developed service connected prostate cancer, the treatment for which caused erectile dysfunction (ED).  After the veteran reopened an earlier claim requesting disability benefits for his ED, the VA issued a decision assigning him a noncompensable (i.e., zero percent) rating for his disability. At that time, the Schedule did not include a diagnostic code for ED. See 38 C.F.R. § 4.115b (2015).  As a result, the RO rated the disability by analogy to diagnostic code (DC) 7522, which provides for a 20 percent disability rating for “[p]enis, deformity, with loss of erectile power.” IWith little discussion, the RO determined that his particular disability entitled him only to a noncompensable rating.  The Board found DC 7522 required a deformity and since the veteran could not show an actual deformity, the Board determined the veteran was not entitled to a higher rating.  This decision was affirmed by the Veterans Court.

The Federal Circuit noted the Veterans Court did not address the three factors already established in the law and concluded:

“that the Veterans Court erred by requiring Mr. Webb, to be eligible for benefits, to show that his unlisted condition identically matched the criteria of the listed condition to which his condition was rated by analogy. In doing so, the Veterans Court imposed a  requirement not stated in § 4.20, the sole regulation governing rating by analogy. We hold that, when rating by analogy under § 4.20, the VA must adhere to the requirements of that regulation. The listed disease or injury to which a veteran’s unlisted condition is being rated by analogy must be only “closely related,” not identical, to the unlisted condition. That regulation provides guidance for determining whether a listed condition is “closely related” to the unlisted condition: it is one “in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous” to the unlisted condition. 38 C.F.R. § 4.20; see also Lendenmann, 3 Vet. App. at 350–51. Further, once the VA has concluded that a listed disease or injury is “closely analogous” to a veteran’s unlisted condition, we see no source of law directing the VA to withhold the rating based on the qualifying criteria associated with that listed disease or injury’s diagnostic code.”

Id. at *6.

The Court further explained “it would be nonsensical to require a veteran’s unlisted disability to precisely meet the criteria for a listed disease or injury’s diagnostic code. After all, if a veteran’s condition did precisely meet the requirements of a listed condition, that condition could simply be rated under that listed condition’s diagnostic code; there would be no need to rate by analogy.”  Id. at *7.

The decision is a sensible explanation of a rating by analogy that points out that a rating by analogy is precisely that and does not require the elements of each symptom to match up perfectly.

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

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Frazier: The Federal Circuit Rejects a Minimum 10% Rating for Painful Joints

Frazier v. McDonough, Case Number 2022-1184, decided May 5, 2023 was a case before the Federal Circuit and concerned a rating for a hand injury.  Specifically, the veteran focused on whether a minimum a 10% rating for a joint injury is a minimum assignable rating.  The Federal Circuit answered in the negative.

The veteran injured two fingers when his PTSD caused him to become startled and he hurt himself.  He ultimately was granted service connection for the fingers, but a non-compensable rating was assigned.  The VA rated pursuant to DC 5230 (limitation of motion to the fingers), which provides a 0% rating.

The veteran noted 38 CFR Section 4.59 states: “The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint.”  The veteran then argued that because there was pain in the fourth and fifth fingers, Section 4.59 required at least a minimum compensable rating of 10%. 

The Court noted the veteran “claims that even for a condition clearly falling under Diagnostic Code 5230, section 4.59 of the regulations contains a freestanding requirement for the DVA to grant at least a 10 percent rating for any service-connected joint condition that is associated with pain.” 

The Federal Circuit explained “section 4.59 is not addressed to situations in which the injury in question lacks an appropriate diagnostic code. Rather, it applies to injuries that fall within particular diagnostic codes but are accompanied by pain. We therefore read section 4.59 as applying in conjunction with the appropriate diagnostic code for a particular condition and requiring reference to that diagnostic code to determine the minimum compensable rating for the injury in question.”

The veteran also more boldly argued the VA was barred by statute (specifically 38 USC 1114) from adopting disability ratings of zero, but that argument was also rejected by the Court. 

This was a novel argument and attempt to attack 0% ratings that was rejected by the Federal Circuit and points us back toward using the Diagnostic Codes and if appropriate extraschedular ratings.

Decision by Judge Bryson and joined by Judges Dyk and Prost with a separate concurrence by Judge Dyk.

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Taylor: DoD Edgefield Experiments, Secrecy Oaths, VA Effective Dates, and the Federal Circuit Wades In

Taylor v. McDonough, Case Number 19-2211, decided June 15, 2023 address a truly tragic set of facts.  The veteran had been the subject of chemical agent exposure studies at the Edgewood Arsenal during the Vietnam era.  He had specifically signed an oath of secrecy related to those tests and ultimately suffered severe psychological harm as a result of the testing.

“In 2006, the Department of Defense (DOD) declassified the names of the servicemen and women who had volunteered for the Edgewood Program and, in June of that year, VA sent the appellant a letter advising him that DOD had given permission for those identified to disclose to health care providers information about their involvement in the Edgewood Program that affected their health.”  See prior case.  In fact, the DOD had recommended telling participants of likely health consequences in 1979.

The veteran applied for benefits in February 2007 related to PTSD and submitted stressor statements related to the testing and additional stressors occurring in Vietnam.  A VA examiner determined there was PTSD resulting from “cumulative response” to the Edgewood experiments and Vietnam experiences.  The veteran was ultimately service connected for PTSD and granted TDIU with an effective date of his application date.

This appeal concerned whether an effective date prior to his application should be granted.  The veteran agreed normally an earlier effective date would not be allowed, but argued under the unusual facts of this case—i.e., the secrecy oath related to the testing—that an earlier effective date should be granted. 

The Veteran’s Court denied the veteran’s relief, but on appeal to the Federal Circuit, the Federal Circuit overturned on fairly narrow grounds.

As mentioned, the Veterans Court denied the veteran relief.  First, related to his Constitutional Due Process argument, the Veterans Court tersely found there was no good argument in favor and denied.  Second, the veteran sought equitable relief.  The Veterans Court again denied, saying their right to grant equitable relief is tightly circumscribed by case and statutory law and that they are not able to grant through equity substantive, monetary relief.

The Veterans Court then stated prior case law prevents equitable tolling in the context of the assignment of effective dates.  Judge Greenburg wrote a masterful dissent. 

On appeal to the Federal Circuit, the Federal Circuit found the doctrine of equitable estoppel is barred by prior Supreme Court precedent, which states that courts may not rely on equitable estoppel to award money from the public fisc of the United States in violation of limitations established by statute.

The Federal Circuit also found against an argument that 38 USC 6303 (directing the VA to provide information and assistance regarding potential claims before they even file or when the indicate interest in filing) was not persuasive. 

However, the Court did grant.  It found:

“we agree with Mr. Taylor in his alternative argument that he is entitled under the Constitution to have the effective date of his benefits determined notwithstanding § 5110’s claim filing limits on the effective date. For decades, the government denied Mr. Taylor his fundamental constitutional right of access to the adjudication system of VA, the exclusive forum for securing his legal entitlement to the benefits at issue. The government’s threat of court-martial or prosecution—without an exception for claims made to VA—affirmatively foreclosed meaningful access to the exclusive adjudicatory forum. And without questioning the strength of the interest in military secrecy, we see no adequate justification for this denial of access. The government makes only highly general assertions of national-security interests, but it acknowledges that VA has created and uses special processes for adjudicating claims by former members of the special forces for injuries incurred during military operations whose existence remains classified, and the government has furnished no adequate reason that secrecy could not have been similarly protected for Edgewood veterans like Mr. Taylor. For those reasons, which reach what we would expect to be a very rare set of circumstances, we hold that the claim-filing effective-date provisions of § 5110 are unconstitutional as applied to Mr. Taylor. A veteran in Mr. Taylor’s position is entitled, under ordinary remedial principles, to receive benefits for service-connected disabilities from the effective date that the veteran would have had in the absence of the government’s challenged conduct.  We reverse the Veterans Court’s decision and remand for expeditious proceedings to implement our holding.” 

Id. at *5-6.

Interestingly, four or five judges, depending on how you count, wrote an occurrence where they say they would have avoided reaching the constitutional arguments and found that equitable estoppel should be applied.  Id. at *59.  As to the bar of the use of equitable estoppel against the government involving claims for money, these judges read it much more narrowly as to allow this claim especially in light of Section 6303.

This case might have a narrow application, but surely there are a handful of Edgefield Experiment veterans who deserve a much earlier effective date for the tragedies inflicting on them that should now receive it.  More interestingly is the fact the Secretary of the VA never interceded and exercised is equitable powers to ends this case and grant what benefits were owed all of these years.

The decision was by Judge Taranto and was an en banc decision.

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Greer: The Board does not have to comply with section 5104(b)

Greer v. McDonough, Case Number 20-3047, decided June 12, 2023 involves the issue of whether the Board must comply with Section 5104(b) notice requirements. 

The case deal with whether a veteran could receive non-service connected pension benefits in light of his net worth, which was held in a trust.  But, the issues important going forward are whether the Board must comply with the notice requirements in 38 USC 5104(b) and whether the Board should have obtained a legal expert to address a complex trust document.

As to the first issue, the Court held “based upon the rule of construction included by Congress in the PACT Act, section 5104 as amended by the AMA does not apply to Board decisions. So, to the extent Ms. Greer contends that amended section 5104 imposes requirements that are substantively distinct from those imposed by section 7104, any noncompliance by the Board with respect to section 5104 wasn't error.”  Id. at *8.

The Court explained: “the decisive text is not "a decision by the Secretary under section 511" but rather the PACT Act's rule of construction for section 5104. The rule states that the amendments to section 5104 "shall not be construed to apply section 5104(a) . . . to decisions of the Board." Critically, "apply" is being used transitively rather than intransitively. The rule of construction doesn't say that the amendments themselves shall not be read to apply to Board decisions; it says that the amendments shall not be read to apply section 5104(a)—that is, make section 5104(a) applicable— to Board decisions. From this plain language, we understand the implicit but clear instruction from Congress to be that section 5104(a) did not apply to decisions of the Board under the AMA at the time of the PACT Act's passage and that this inapplicability is to continue thereafter.” Id. at *6.

As to the second issue, the Court “rejects the attempt to pigeonhole Board members as competent only to address run-of-the-mill veterans law issues. Colvin's rule regarding medical questions cannot be analogized to legal questions, and we decline to impose a presumption of incompetence on the Board when it comes to broader legal issues—a presumption incompatible with this country's adjudicatory tradition. We hold that the Board member in this case was not required to secure an expert legal opinion in order to competently assess the Trust.”  Id. at *12.

The determination that the Board does not have to comply with Section 5104(b) notice requirements is a shift that will likely impact the future.  It allows the Board to dispense with arguments without ever really considering them fully.

Decision by Judge Toth and joined by Chief Judge Bartley and Judge Jaquith. 

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Bean: The Federal Circuit explains the Veterans Court Jurisdiction Includes Issues Before the Board but Not Decided by the Board

Bean v. McDonough, Case Number 2022-1447, decided April 26, 2023 was a case before the Federal Circuit and concerned the Veterans Court’s jurisdiction.

The veteran submitted a claim for PTSD in 1997 and a VA examiner diagnosed other mental health conditions, but not PTSD.  The VA denied the claim and the veteran did not appeal.

In 2006, the veteran submitted an informal claim, seeking service connection for depression, anxiety disorder, and PTSD. The VA granted service connection for PTSD and assigned a 2006 effective date, the date of the application.  The veteran appealed the effective date.  At the same time, he argued he had an unadjudicated claim pending from 1997 because the claim for PTSD constituted a claim for the other diagnosed mental health conditions.

The Board denied.  It acknowledged the veteran had been diagnosed with major depression and generalized anxiety disorder in 1997, but stated the issue of an unadjudicated claim was not before it and Mr. Bean could file a motion for CUE in the alternative.

Following the Board’s advice, the veteran did not file an appeal to the CAVC, but filed a CUE motion.  The RO and Board then denied, and the veteran appealed to the CAVC.

An original single-judge decision was withdrawn after a motion for reconsideration by the Secretary.  The Court then denied based on lack of jurisdiction, determining the Board did not actually decide the issue of the unadjudicated claim, but only the issue of an earlier effective date.

The Federal Circuit reversed.  It held the Veterans Court erred in finding its jurisdiction was limited to affirmative determinations made by the Board.  The Federal Circuit explained the Veterans Court’s holding “is clearly contrary to the legal principle that when a claim is adequately presented to the Board but not addressed by the Board, the Board’s disposition of the appeal constitutes a decision of the Board on that claim that may be appealed to the Veterans Court.  The Veterans Court deemed its jurisdiction to be limited to the affirmative determinations made by the Board, and not to cover a Board disposition of an appeal that is challenged as improperly failing to address contentions clearly before the Board.” Id. at *17.  The Federal Circuit found the original single-judge opinion decided the issue properly and the CAVC should not have reversed itself on the Secretary’s motion.

The Federal Circuit then went further and helped the veteran by noting: “Having noted above some precedent on the issue, we add that, to the extent relevant, the Veterans Court should also take account of our precedent establishing that, when the RO has not adjudicated claims before it, there is not a final decision on those claims and “a CUE analysis [with its demanding standards] is not required.””  Id. at *19.

Decision by Judge Schall and joined by Judges Newman and Taranto.

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