Warren: Beware the VA Employee Who Wants You to Withdraw an Appeal

Warren v. McDonald, Opinion Number 15-0641, decided September 14, 2016 involves an alleged withdraw of an appeal before the Board and the impact it had on a subsequent decision.

The veteran was denied service connection for sleep apnea in December 2008.  He subsequently filed a NOD in April 2009 asking for an appeal to be processed by a decision review officer rather than the traditional appeals process. 

In April 2010 a statement of the case was issued again denying service connection for sleep apnea.  However, in a March 2010 statement in support, the veteran stated he wished to withdraw his request for a decision review officer and asked instead for a Board hearing.  An April 29, 2010 statement from the veteran’s representative reiterated the request for a Board hearing for the issue of sleep apnea.  However, on April 30, 2010 a VA employee noted on a VA form 21-0820 that she had spoken to the veteran and he wished to withdraw the sleep apnea condition from the pending appeal.  However, a May 2010 note from another VA employee noted the veteran called and requested a travel board hearing.  In May 2010, the RO certified the sleep apnea claim to the Board.

Later in May 2010, the veteran’s representative sent a physician’s nexus statement with a  cover letter stating it was being sent in support of the veteran’s pending claim.  The RO apparently considered this a new claim and in September 2010 the RO granted service connection for sleep apnea effective the May 2010, which was the date the VA considered the claim reopened.  As to the effective date, the RO noted it had received the prior NOD for sleep apnea but that he had withdrawn that claim. 

In April 2013, the veteran inquired with the VA about the status of his travel Board hearing, which he had requested in February 2010.  A June 2013 Board hearing was held and the veteran argued the form withdrawing his appeal was a misrepresentation of his wishes, instead he had wanted to withdraw his claim from DRO review and wanted to proceed with a Board hearing.

The Board issued a decision in November 2014 in which they noted the appeal was from a denial of service connection for sleep apnea but characterized the issue now as an earlier effective date.  The Board noted the form purportedly withdrawing the appeal appeared proper and there was no prohibition against a veteran withdrawing a claim by telephone.  The Board then found the proper effective date was May 2010.

The Secretary principally relied on Hanson v. Brown, 9 Vet. App. 29 (1996) wherein the Court affirmed a finding the veteran withdrew a claim that was withdrawn when a VA social worker conducted an in-person meeting and completed a contact form withdrawing the issue.  The Court noted “Withdrawal of an appeal is only effective where withdrawal is explicit, unambiguous, and one with a full understanding of the consequences of such action on the part of the claimant.”  The Court then noted the dissimilarities between Hanson and the case at hand.  They noted, Hanson involved an in-person meeting as opposed to a telephone call and they also noted “unlike in Hanson, there is considerable evidence that Mr. Warren did not intend to withdraw his 2008 sleep apnea claim when he called VA in April 2010.  Instead, the … evidence indicates that Mr. Warren merely wished to remove his sleep apnea claim from the DRO process and that, even after the April 2010 purported withdrawal, he believed that his sleep apnea claim was still pending on appeal….”  The Court then concluded “On the record as a whole, the Court is left with the definite and firm conviction that the Board committed a mistake by finding that Mr. Warren withdrew his appeal.”

Next, the Court dealt with whether the most recent Board decision should have considered the veteran’s service connection for sleep apnea or the issue of the effective date.  The Court noted this case had two claim streams, the 2008 claim for service connection for sleep apnea and the 2010 claim that occurred when the RO construed the veteran’s submission as an application to reopen the claim.  The Court stated “Caselaw is clear that, because the veteran timely appealed the April 2009 RO decision denying the December 2008 claim, only a Board decision can resolve the December 2008 claim….  The September 2010 RO decision could not resolve Mr. Warren’s appeal of his December 2008 sleep apnea claim because, by virtue of his appeal, the Board, not the RO, had jurisdiction over it.  The decision of the lower adjudicative body, the RO, cannot finally decide an issue already on appeal to the Board, the higher administrative appellate body.” 

The result is a remand for the Board to consider the merits of the December 2008 claim for service connection for sleep apnea, including all subsequent evidence and argument.

This is an important decision some advocates have noticed a pattern whereby VA employees seek to persuade veterans to withdraw their appeal and simply file a new application for benefits.  While this might result in a quicker grant of benefits, it will probably result in the veteran not receiving the proper effective date.  Veterans should beware of this practice.  This case also seems suggest the Court is more than willing to find the VA’s factual argument is not correct if the veteran can point to evidence that rebuts it.  While the VA should be looking out for veterans and applying the benefit of the doubt to assist them, it is clear that a veteran should beware of the VA’s actions and suggestions.

Decided by Judge Bartley, joined by Judges Lance and Davis.

Emerson: Earlier Effective Dates under 38 CFR 3.156(c)(3)

Emerson v. McDonald, Opinion Number 14-2968, decided August 210, 2016 involves a claim for an earlier effective date after inclusion of service records pursuant to 38 CFR 3.156(c)(3).

The veteran was denied servicec connection for PTSD in 2003 based on a lack of proof of a stressor.  Service connection was subsequently granted in 2011 after the requirement of proof of a stressor for combat related situations was relaxed. 

The veteran appealed the effective date and noted he submitted military personnel records after 2003 that purported to show he was onboard a helicopter during combat flight missions in Vietnam.  He argued 3.156(c)(3) applied due to the fact he submitted relevant service records that were not associated with this file at the time of the denial in 2003 and required the VA to reconsider his original claim.  The Board denied an earlier effective date and the VA argued he was not entitled to consideration under 3.156(c)(3) due to the intervening grant of service connection in 2011. 

The Court reversed and found that the intervening grant of service connection did not prohibit the application of 3.156(c)(3).  The Court stated if the following criteria are met, the VA must reconsider the original claim: (1) receipt of relevant service records which existed and had not been associated with the file at the time of the original decision, and (2) receipt “at any time after VA issues a decision on a claim.”  The Court also strongly suggested that unlike a CUE claim, the law existing now should inform the decision looking back to see if 3.156(c)(3) applied.  The Court also framed the issue on remand as whether the newly associated records are “at least partially decisive” as to an award.

The VA had argued the Court should not consider this issue as it was raised in a conclusory manner before the Board.  The Court rejected this argument and stated under the law the argument did not need to be as fully developed as it was before the Court.  The Court also noted the Board did not even consider 3.156, but rather than remanding, noted it was a legal issue and relevant facts are not in dispute.  Finally, the veteran was granted a reasons and bases remand for a higher rating for PTSD.

This is an important decision as the VA apparently hoped to foreclose the use of 3.156 to gain an earlier effective date for combat veterans suffering from PTSD.  This decision makes clear those veterans can still pursue an earlier effective date under 3.156 in the event newly associated service records are found even if they have subsequently been granted service connection.

Decided by Judge Bartley, joined by Chief Judge Hagel and Judge Pietsch.

Parseeya-Picchione: Thailand Agent Orange Exposure

Parseeya-Picchione v. McDonald, Case Number 15-2124, decided July 11, 2016 involves herbicide exposure and subsequent development of diabetes.

The claim was by the veteran’s surviving spouse and for DIC.  The veteran stated he had been stationed in Thailand and exposed to agent orange when he stopped in Vietnam on a flight to Thailand and in Thailand where he was stationed.

The case was remanded on reasons and bases reasons.  First, the Court did not find error in the Board’s determination the veteran’s statement of a layover in Vietnam was not credible.  However, the Court softened this blow by finding the Board did not provide an adequate statement of reasons or bases for its conclusion the appellant did not step foot in Vietnam because it did not consider other evidence.  Specifically, an archivist at the Air Force Historical Research Agency wrote as a general rule military cargo aircrafts en route to bases in Thailand would stop at Ton Son Nhut Air Base in Vietnam.  Additionally, a USAF major wrote confirming the AF Historical Research Agency statement.  The Board responded by saying the evidence only provided “general information” and did not support the claim the veteran himself stopped overnight in Vietnam.   The Court stated “This cursory discussion does not enable the appellant to understand the Board’s precise basis for concluding that the veteran had not set foot in Vietnam and frustrates judicial review of that issue.  Remand is warranted.”  Id. at *6.

The Court also concluded the Board failed to provide adequate reasons and bases for denying herbicide exposure on a direct basis in light of the Board’s acknowledgement the veteran served in Camp Friendship at Korat Air Force Base in Thailand, which was located near the perimeter of the base.  The Board acknowledged Camp Friendship was at the outer edge of the base, but then determined without much explanation that it was not the perimeter.  The Court remanded for a clarification of the position of the veteran’s camp.

The VA also acknowledged the Board was wrong when it stated tactical herbicides were used in Thailand four years prior to the veteran’s service there, but argued the misstatement was not prejudicial.  The Court noted if the VA found the veteran served near the perimeter, the VA’s misstatement would be crucial. 

This will be an important template in assisting veterans who were exposed to Agent Orange in Thailand as it helps show how to demonstrate a stopover in Vietnam was likely and the Board cannot discount statements the veteran was near the perimeter.

Written by Judge Greenberg and joined in by Judges Schoelen and Pietsch.

Butts: EAJA Award for a JMR Resulting from a Federal Circuit Decision

Butts v. McDonald, Case Number 14-3019(E), decided June 3, 2016 involved an attorney fee request under EAJA.

This case involved a JMR that resulted after the Federal Circuit issued an opinion overturning a CAVC decision regarding 38 CFR 3.321(b)(1) and reference to multiple or individual disabilities when evaluating for a higher rating pursuant to 3.321.  The appealed from Board decision was issued between the CAVC decision and the CAFC decision reversing the CAVC decision.

The parties to Butts agreed the CAFC decision applied and entered into a JMR.  The veteran’s attorney then sought fairly modest attorney fees.  The question centered on whether the Secretary’s position was substantially justified.

The decision was a barnburner.  It was an en banc decision with multiple dissenting opinions.  The majority awarded EAJA fees.

The majority noted the Secretary bore the burden of demonstrating its position was substantially justified.  It noted the Secretary’s seeming only argument in favor its position was that the general scheme of the rating schedule assigns scheduler ratings on a disability by disability basis.  The majority also notes the Board decision does not explicitly reference the CAVC decision, however, it counts in terms of substantial justification the fact the Board was acting in accord with existing judicial precedent.  The majority then notes that compliance with precedent does not relieve the Court of its duty to evaluate the reasonableness of the Secretary’s position.  The majority focuses on the totality of the circumstances.  It noted the the dissent argues the CAVC decision demonstrates the Secretary’s position was reasonable, but notes a CAVC error in deferring to the Secretary’s interpretation of a regulation does not end the matter and that cannot be the dispositive factor.  The majority also expresses the profound opinion that if compliance with precedent was a bar to EAJA fees, veterans with limited means would face even greater difficulty obtaining counsel to bring valid challenges to existing case law.

Judge Kasold wrote a concurring and dissenting opinion that focused on the right to appeal to the CAFC and stated the a decision by the CAVC should not operate to prevent EAJA fees.

Various dissenting opinions were written.  Perhaps the most academic and vigorous was by the Judge Bartley who is concerned the Board’s reliance on a CAVC decision could be considered not substantially justified.  Judges Lance and Moorman also wrote a powerful dissent that seemed at its base to be truly antagonistic to EAJA fee awards in general.

This decision is important because it defends EAJA fees and thus preserves the ability for veterans to obtain counsel.  If EAJA fees were not available or seriously curtailed, then the simple truth is that attorneys could not afford to take these cases and veterans would  be left making pro se arguments.  However, this decision also shows a deep split in the judges of the CAVC and an apparent dislike of EAJA fees by some members of the dissenting group.

Decision by Judge Davis, joined by Judge Hagel, Schoelen and Greenberg.  A concurring and dissenting opinion by Judge Kasold.  Dissenting were Judges Lance, Pietsch, Bartley, and Moorman.

Noah: Earlier Effective Dates and Constitutional Due Process Arguments

Noah v. McDonald, Case Number 2015-0334, decided June 10, 2016 is a decision involving the request for an earlier effective date based on a misleading VA letter to the veteran and the related constitutional Due Process arguments implicated. 

The veteran applied for service connection of PTSD in 1981 and sent a misleading notice of the time required to submit evidence necessary to complete his PTSD application. The letter stated more information was needed about his Vietnam experiences and that the VA “must have postservice medical evidence to support your claim.”  It also stated “Please reply within 30 days.  If we have no reply within 60 days, we will assume that you have withdrawn your claim.”

The veteran did not respond to the VA’s letter.  He submitted a new claim in 2007, was granted service connection for PTSD, and assigned a rating of 2007.  He appealed the effective date.  He argued he understand the 1982 letter has requiring him to send in medical evidence showing he had PTSD and that if he didn’t within 60 days they would close his file.  Due to financial issues, he was unable to find and submit the “required” evidence within 60 days.  He stated if he had known he really had 1 year, he could have gotten the required evidence by using a medical clinic.  A 2011 private psychologist opined he had PTSD in 1981 and 1982.

The veteran argued the Court should find the Board erred in not considering whether his claim should be equitably tolled.  He also, after urging by the Court, that there was a due process failure by the government. 

The Court found it lacked authority to equitably toll the deadline to submit evidence by the veteran, but they reached farther and issued a decision that did consider the Constitutional due process implications of the VA’s misleading notice to the veteran.

Initially, the Court reiterated that a veteran’s entitlement to disability benefits is a property interest protected by the Due Process Clause.  The Court then considered whether Due Process Clause factors enunciated in Matthews v. Eldridge by the U.S. Supreme Court applied to this case.  First, the Court found the “special beneficence afforded to our nation’s veterans cannot tolerate notice that misleads the potential receipt of benefits”.  Second, the Court found the the erroneous deprivation of the veteran’s right to benefits was great as a result of the VA’s practices.  The Court noted, “This is not a matter of whether a claimant is properly charged with knowledge of the relevant law.  Rather, VA provided Mr. Noah inaccurate and misleading notice that gave him significantly less time than the law allowed to respond to VA’s request for information.”  Finally, the Court noted the government’s interest and burdens and stated “once VA assumed the responsibility of providing notice of the time to submit evidence, it is unclear to the Court how any requirement that VA provide accurate information imposes a fiscal or  claimant with accurate information.”

The Court then considered whether the veteran detrimentally relied on the VA’s misleading notice.  The Court noted the Board disregarded the evidence on detrimental reliance because they found the veteran was subject to the one year abandonment provision in statute 38 CFR 3.158.  The Court found because the 1982 notice letter failed to satisfy procedural due process requirements and thus if the veteran was successful in demonstrating he relied to his detriment on the notice, his December 1981 claim remained pending and unadjudicated.  As a result, the Court vacated the Board’s decision and remanded the case to the Board to weigh the evidence and assess the evidence and determine whether the veteran relied to his detriment on the misleading notice. 

Judge Lance wrote a concurring opinion stating he agreed the case should be remanded for assessment of detrimental reliance, but stated he would exercise judicial restraint and not discuss the Due Process arguments until further appeal.

This case is a nice explication and application of a Constitutional Due Process argument to a misleading notice by the VA.  It is likely many such old notices exist and can be used to argue an earlier effective date.  Special review of the veteran’s efforts to show detrimental reliance should be used as a template for future advocates.

Decision written by Judge Schoelen and joined in by C.J. Hagel.  Concurring opinion by J. Lance.

Warren: Systemic Therapy for Skin Conditions or the VA Really Can't Read its Own Regulations

Warren v. McDonald, Opinion Number 13-3161, decided May 10, 2016 involves the consideration of the phrase “systemic therapy such as corticosteroids or other immunosuppressive drugs” in relation to skin conditions.

The veteran was service connected for a skin condition and granted a 10% rating under Diagnostic Code 7806.  He argued that he deserved a higher rating because he was orally taking Lamisil for his skin condition that qualified as “systemic therapy such as corticosteroids or other immunosuppressive drugs”.

The Board denied saying “only systemic therapy such as a corticosteroid or immunosuppressive drug is contemplated by the DC 7806, and Lamisil does not qualify as either.”

The Court remanded saying “Because ‘systemic therapy’ which is the type of therapy that creates compensability, is connected to the phrase ‘corticosteroids or other immunosuppressive drugs’ by ‘such as,’ those drug types do not constitute an exhaustive list of all compensable systemic therapies, but rather serve as examples of the kind and degrees of treatments used to justify a particular disability rating.  Consequently, the types of systemic treatments that are compensable under DC 7806 are not limited to ‘corticosteroids or other immunosuppressive drugs.’  Compensation is available for all systemic therapies that are like or similar to corticosteroids or other immunosuppressive drugs.” Id. at *4-5

The Secretary also argued his interpretation was consistent with practice, an alleged fact that was debunked by the Court by referencing the M21-1MR.

The Court remanded the case because the Board did not determine whether Lamisil is a systemic therapy like or similar to a corticosteroid or other immunosuppressive drugs.  Id. at *6.

Judge Bartley concurred simply clarifying that she believes the term systemic therapy is restricted to immunosuppressive drugs of which corticosteroid drugs are one example.

This case is but one example of the VA restrictively interpreting what is otherwise a plainly written regulation.

RRDecided by Chief Judge Hagel and Judges Pietsch and Bartley.

Threatt: Equitable Tolling Continued, Again or Moving Closer to a Bright Line Test

The Court issued an order in Threatt v. McDonald, Case Number 15-0835, on May 17, 2016 involved equitable tolling.

This involved a 2003 decision by the Board that prompted the veteran to write a letter to his U.S. Representative asking the representative to forward the letter to the Board showing dissatisfaction with the result and asking the Board to send him a copy of his service military medical records and duty stations.  A flurry of VA to veteran and veteran to VA letters (again via his representative) resulted. 

Years later the veteran ultimately appointed an attorney who appealed a subsequent decision to the Court.  When the attorney got the c-file she discovered the various letters from the veteran to the Board. She immediately appealed the 2003 decision to the Court.  The attorney argued the 2015 notice of appeal should be considered timely because his May 2003 correspondence to the RO constituted a timely misfiled appeal of the February 2003 decision.

The Court noted the Federal Circuit has found a veteran who misfiles the notice of appeal with the RO within the 120 day appeal period has pursued his judicial remedies and the 120 day period is tolled.  Additionally, a motion to reconsider to the Board tolls the 120 day period and the veteran receives a new 120 day period when the Board issues a denial of the motion or new decision.

The Court noted here the veteran submitted to the Board within 120 days a written statement disagreeing with the decision. The VA acted on the letter determining it was correspondence rather than a motion and reinformed the veteran of his appellate rights.  The Court noted this began a new 120 day period.  The veteran then submitted another letter to his RO stating his intent to appeal the 2003 decision to the CAVC.

The Secretary argued the filings were defective because they came from the veteran’s U.S. Representative.  The Court summarily rejected this argument.  The Secretary also argued the appellant didn’t meet the diligence requirement of equitable tolling.  Importantly, the Court then found prior case law “directly contradict the Secretary’s statements regarding diligence in briefing and set forth a clear rule that the due diligence requirement is satisfied as a matter of law by the timely misfiling of a notice of appeal.  The Court discerns no compelling reason to deviate from this rule.”

There was a conference by Judge Pietsch.  She wrote that she feared the ramifications of the decision and argued the due diligence conclusion should have been case specific rather than a bright line test.  She showed a deep suspicion of allowing late notice of appeals without requiring some action by the veteran, noting that he effectively filed a notice of appeal in 2003 but did nothing until over a decade later.

This order is helpful to veterans as it seems to move the Court toward a bright line test in equitable tolling that reduces the requirement of due diligence. 

Decided by Judges Bartley and Greenberg, and concurred in by Judge Pietsch.