Sowers: Section 4.59 Meets Its Limits

William Sowers v. McDonald, Opinion Number 14-0217, decided February 12, 2016  involves the

interpretation of 38 C.F.R. Section 4.59.

Section 4.59 states:  “With any form of arthritis, painful motion is an important factor of disability, the facial expression, wincing, etc., on pressure or manipulation, should be carefully noted and definitely related to affected joints. Muscle spasm will greatly assist the identification. Sciatic neuritis is not uncommonly caused by arthritis of the spine. 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. Crepitation either in the soft tissues such as the tendons or ligaments, or crepitation within the joint structures should be noted carefully as points of contact which are diseased. Flexion elicits such manifestations. The joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint.”

The veteran had a right ring finger disability that was rated under DC 5230 for limitation of motion at 0%.  The veteran was not entitled to a rating under DC 5010 because the arthritis was not confirmed by x-ray and was not ankyloses of the right ring finger.

The veteran argued Section 4.59 should assist in getting him a 10% rating because he didn’t just have limitation of motion, but also painful motion.

The Court found that 4.59 adds flexibility to the rating schedule by acknowledging painful motion that is not severe enough to qualify for a compensable rating.  However, the Court also found that “4.59 is not an independent provision that may be applied without an underlying DC: Section 4.59 is read in conjunction with, and subject to, the DC.”  The Court noted the relevant DC is 5230 and provides only a 0% rating and that a 0% rating indicates no reduction in earning capacity irrespective of impairment of motion.  The Court then said “Reading Section 4.59 in conjunction with DC 5230, Mr. Sower is not entitled to a compensable rating under this DC.  Section 4.59 intends to recognize actually painful joints and provide at least the minimum compensable rating for the joint.  There is no minimum compensable rating available under DC 5230, that is any level of disability warrants a 0% rating.  DC 5230’s specific finding that there is no impairment in earning capacity from any limitation of motion of the ring finger trumps the general intent in Section 4.59 to compensate painful motion with at least the minimum compensable rating.”

However, the case was not totally lost to the veteran.  The Board had denied extraschedular consideration of the disability, but had not considered the combined effects of his multiple finger disabilities of his right hand.  The Court noted that the CAFC had decided in 2014 that the Board must consider the “collective impact of all [the appellant’s] disabilities.”

This was an interesting argument to use Section 4.59 to leverage a higher rating for painful motion that was not mentioned in the relevant DC.  Unfortunately, the Court did not follow.

Decided by Judge Schoelen and joined by Judges Lance and Greenberg.

Gazelle: SMC(s)(1), When a Rating Should Not Be Combined

Frederick Gazelle v. McDonald, Opinion Number 14-2272, decided February 2, 2016 involves a case where the veteran sought SMC(s) for having an individual 100% rating and “additional service-connected disability or disabilities independently ratable at 60 percent or more.” 

The veteran had a 100% rating for PTSD and two ratings of 20% for his back and two 10% ratings for left lower and upper extremity radiculopathy.  The veteran sought a SMC rating, but the Board stated the additional back and radiculopathy ratings when combined using the combined ratings table only total 50%. 

The veteran argued that the statute in play 38 USC Section 1114(s)(1) does not mention the use of the combined rating table and the plain language meaning should be simply to add up his disabilities, which would result in a 60% rating and a grant of the SMC rating.

The Court rejected the veteran’s argument that the combined rating table should not be used and instead stated the Veteran’s Court and Federal Circuit have construed the phrase “additional disability or disabilities independently ratable at 60% or more” to mean that the disabilities should be combined. 

This was an attempt by the veteran and his attorney to expand the VA’s application of SMC(s) ratings and frankly a good argument.  The Court’s reliance on the Federal Circuit decision of Guerra v. Shinseki, 642 F.3d 1046, 1048 (Fed. Cir. 2011) does not appear on closer inspection to be directly applicable as the Court in Guerra was addressing “another independently rated disability or combination of disabilities rated at 60%”).  I would not be surprised if this case ends up before the Federal Circuit.

Opinion by Judge Schoelen, joined in by Judges Davis and Moorman.

Dent: Overpayment of Debts

Preston L. Dent v. McDonald, Case Number 13-2406, decided July 15, 2015 involves an overpayment created by an increase in income in a situation where the veteran was receiving a non-service connected pension. 

The veteran was receiving benefits under a non-service connected pension.  He subsequently started receiving Supplemental Security Income.  The veteran actually sent a copy of the decision to the RO along with his pension check and a letter stating he believed he is only to receive a portion of his check from the VA—“please contact me if I am wrong”.  The VA did not respond for nine months.  During those nine months, the veteran kept receiving and cashing VA pension checks.  Nine months later the VA determined an overpayment had been created.  The veteran later explained that after sending the letter “when the RO did not make an adjustment and instead continued to pay him at his regular pension rate, he assumed that he was entitled to full payment from both agencies.”  However, the VA found the debt for overpayment was properly created.

The law states an overpayment is not created when it is due solely to VA error.  An act or omission by the beneficiary or the beneficiary’s knowledge prevents an overpayment from being solely VA error.  The Court determined the veteran’s continued acceptance and cashing of pension checks with knowledge meant the overpayment was at least in part his fault.

The Court also refused to consider the issue of how much was owed by the veteran because the Board had not ruled on that issue, thought it remanded that issue for further consideration.

Judge Bartley wrote a spirited dissent that basically stated the veteran had done what he was supposed to do—inform the VA of his change in income from the SSA—and therefore he cannot be considered to be at fault.  She also rejected the idea the veteran had knowledge of the VA error because she said the record was replete with evidence the veteran was unsure what he should receive from the VA.  She laments that veterans “are forced to pay for VA’s failure to communicate consequences to veterans and to promptly respond to veteran’s income disclosures.”

The case does not appear to have been appealed to the Federal Circuit. 

Decision by Judge Moorman and joined by Judge Pietsch.  Dissent by Judge Bartley.

Aldridge: Untimely Appeals

Marion Aldridge v. McDonald, Opinion Number 14-3656, decided August 7, 2015 involves a case in the line of Henderson (stating the 120 days to file the NOA is not jurisdictional but procedural). 

The veteran filed the notice of appeal six months after the notice of appeal and explained that just prior to receiving the decision he suffered the death of his mother and sister.  And just following the receipt of the decision he suffered the death of his unborn granddaughter.  He stated these deaths (all within approximately 9 months) sent him into a depression and prevented him from filing. 

The Court granted the Secretary’s motion to dismiss the appeal because the notice of appeal was untimely.  The Court, while sympathetic, found equitable tolling was not warranted.  They noted he was able to take care of his elderly father, close the estate of his mother and sister, and maintain his job during this time. 

Judge Greenberg wrote a dissent noting arguing the result was too harsh and that equitable tolling should be granted.

This case shows that while equitable tolling is a possibility, it is a limited one.  It is incumbent on veteran’s to file the notice of appeal within the prescribed timeline or risk the appeal being dismissed.

Decided by Judge Lance and Davis.  Dissent by Judge Grenberg.

Petitti: Painful motion is Limitation of Motion and the Power of an Affidavit from a Family Member or Friend

Petitti v. McDonald, Case Number 13-3469, was decided October 28, 2015 and concerns the interplay between DC 5002 (arthritis in hands) and 38 CFR 4.59.

This case largely involves what evidence the VA is required to consider when making a determination of painful motion.  The veteran argued all evidence, including lay evidence, was to be considered whereas the Secretary argued for a higher degree of objective evidence.

Regarding the interplay of DC 5002 and Section 4.59, the Court held that “4.59’s reference to ‘painful motion’ is equated with the reference to ‘limitation of motion’ in DC 5002, a claimant with [rheumatoid arthritis] who demonstrates that he has painful motion of a joint is entitled to the minimum disability rating for that joint under DC 5002 and § 4.59, even though the claimant does not have actual limitation of motion.”

Regarding proving the painful motion, the Court found that “DC 5002 requires that limitation of motion must be corroborated by a person other than the veteran based upon that person’s observations.”  “Therefore, a lay description detailing observations of a veteran’s difficulty walking, standing, sitting, or undertaking other activities falls within the scope of ‘satisfactory evidence of painful motion’ that has been ‘objectively confirmed.”

In the case at hand, the Court found the record was replete with medical and lay evidence of actually painful joints. 

This case is helpful because it shows that a minimum rating may be obtained via Section 4.59 for arthritis for painful motion whether or not that necessarily results in a limitation of motion.  It also lays out that lay evidence (typically in the form of an affidavit of a family member or friend) can fulfil the role of objective evidence.

Decision by J. Schoelen and joined in by CJ Hagel and J. Bartley.

Section 1151 Claims and the Requirement that a Disability Must be Caused by Care, Treatment or Examination furnished by the VA

Ollis v. McDonald, Case Number 14-1680, was decided October 28, 2015 and concerns

the reach of a Section 1151 claim.

The veteran had been diagnosed with atrial fibrillation and received a pacemaker.  He continued to have problems with the pacemaker, specifically episodes of dizziness, light-headedness and faintness.  As a result he asked his VA cardiologist about a surgical alternative.  The VA cardiologist wrote that the surgery “is one available option.  The epicardial [surgical treatment] would be the current preference.  While this is not available to the VA (specialized operators and equipment are required), it could be performed at other local institutions.  Recommendations provided.”  Id. at *2.

The veteran than went to his private cardiologist to discuss surgical and medical approaches to treatment.  His private cardiologist notes do not mention any VA recommendation or referral.  The private cardiologist referred the veteran to another private cardiologist, who ultimately performed the surgery.  The surgery was not performed at a VAMC or paid for by the VA.  The veteran suffered damage to his right phrenic nerve during the procedure and his cardiac issues resumed.

The Board denied the veteran’s 1151 claim because while his VA cardiologist recommended the procedure as one option to treat the condition, the procedure was ultimately performed at a non-VA facility by a non-VA employee.  Id. at *4.

The veteran argued the medical advice of the VA cardiologist constituted medical treatment that causally connected to his claimed disability.  The Secretary argued that 1151 is limited to procedures performed by the VA or VA employees.

This case involves the second factor in an 1151 claim, the disability must have been caused by care, treatment or examination furnished by the veteran under any law administered by the Secretary, either by a VA employee or facility.

The majority looked at the history of 1151 and found it only requires a “causal connection” between the disability and VA treatment but also “does not extend to the ‘remote consequences’ of VA medical treatment.”  Id. at *6.  The Court then found the connection in this case is too attenuated.  Id. at *7.  It found the disability was at best “a remote consequence of—and not caused by VA’s conduct.  The majority stated that assuming the VA cardiologist’s advice and recommendation was medical “treatment,” it did not cause the veteran to have the surgery.  “Even assuming [the two private cardiologists] were two of the private doctors recommended by [the VA cardiologist], the fact remains that [the veteran was referred by one private cardiologist to another private cardiologist] and [the veteran] chose to have the … procedure performed by [the private cardiologist].  Based on these intervening and independent actions by non-VA actors, the conduct of [the VA cardiologist] suggesting some physicians to [the veteran] that could perform the … procedure, or even referring him to several physicians, is simply too remote from [the veteran’s] disability to be considered its cause.”  Id. at *8.

The majority also rejected the argument that the VA should have informed the veteran that undergoing a procedure at a non-VA facility might affect his eligibility for 1151 benefits.

The dissent by J. Greenberg is rigorous and powerful.  He finds the application of 1151 “unduly narrow and withdraws necessary protections from a rapidly growing class of veterans.”  Id. at *12. 

He explains “When a veteran’s doctor recommends a course of treatment, it is not a remote consequence of that recommendation for the veteran to pursue it.”  Id.  “The record indicates the appellant went to his doctor for medical advice, the doctor recommended that the appellant undergo the … procedure. And the appellant consequently had it performed, resulting in his … injury.  The connection between the doctor’s recommendation and the performance of the procedure here is hardly attenuated.”  Id. at *13.

J. Greenberg also notes the expanding number of veteran’s authorized to seek treatment at non-VA facilities and states he is concerned “the majority endorses absolving VA and its physicians of any duty to warn claimants when a medical recommendation jeopardizes eligibility for section 1151 benefits.”

This case operates to limit the reach of Section 1151 claims based on a somewhat nebulous standard—when something is “too attenuated” as judged by the Court.  The veteran has filed a notice of appeal to the Federal Circuit Court of Appeals.  This should provide the Court to help define the extent of a causation requirement in Section 1151 and I would not be surprised if they came down on the side of the veteran in this case.

Decision written by J. Kasold and joined in by J. Pietsch.  Dissent by Greenberg.

VA's Obligation to Submit Alleged Stressors to the JSRRC: Send It Again

Gagne v. McDonald, Case Number 14-0334, was decided October 19, 2015 and concerns

the duty to assist within the confines of a confirmation of a PSTD stressor and the VA’s obligation to send a request to the JSRRC to confirm the event.

The veteran was diagnosed with PTSD and submitted a claim for it.  The alleged stressor was that sometime in 1967 or 1968 while in Thailand while he was assisting in building a road his sergeant was crushed between two large vehicles and the veteran tried to assist with the very bloody wounds.

The VA sent letters to the veteran asking him to state within a 2 month date when the event took place.  The veteran wrote that the incident occurred in 1967 or 1968.  A review of the veteran’s military records showed he was a driver with the engineering company in Thailand from August 1967 through August 1968.

The VA never submitted the claim to the JSRRC for confirmation because the claims adjudication manual requires the search be narrowed to a 60 day period, which was apparently done at the request of the JSRRC staff.  The Court looked at the relevant code section which states the “VA will end its efforts to obtain records from a Federal department or agency only if VA concludes that the records sought do not exist or that further efforts to obtain those records would be futile.” 

The Court also at the  implementing regulation and determined it states the veteran must provide enough information to identify and locate the existing records including the appropriate time frame and that “the claimant must provide information ‘sufficient’ for the records custodian to conduct a search for the corroborative records.” 

The Court noted the regulation does not define “sufficient” or grant the records custodian or VA the authority to define the parameters of sufficient.  It also noted the VA should make as many requests as necessary and should only quit when the search would become “futile”.  The Court stated the “VA did not, at the very least, submit multiple requests to the JSRRC, each covering a different 60-day period.”

The Court noted that it does not support creating JSRRC fishing expeditions, but also noted with regard to multiple requests that it does “not find the 13-month period in this case to be unreasonably long, given the particulars of the stressor provided by the appellant.”

This is an important case as it helps explain the VA’s duty to assist in confirming stressors, and makes clear multiple request to the JSRRC are called for when the stressor is defined and clear.

Decision written by Greenberg, joined in by J. Kasold and Davis.