Molitor: Military Sexual Trauma and the VA’s Duty to Assist

Molitor v. Shulkin, Case Number 15-2585, decided June 1, 2017 examines the necessary steps the VA must take to assist a veteran in substantiating a claim of military sexual trama.

The veteran sought service connection for PTSD from a MST.  PTSD/MST claims have a relaxed standard of evidence necessary as explained in 28 CFR Section 3.304(f)(5).

Similarly, there exists a general duty for the VA to assist in developing a claim.

Finally, the VA’s General Council has issued an opinion, GC Precedent Opinion 05-14, which addresses what steps the VA must take to obtain records from servicemembers, other than the claimant, including third party records that may aid in corroborating an alleged personal assault.

The Court found the Board erred in failing to address the GC Precedent Opinion in this case.  Here, she identified several of her assailants, the approximate date of the incident, and ranks and names of four witnesses.  She also identified other women stationed with her that she believed had been sexually assaulted. 

The Court determined:

“The Court is likewise persuaded that the identified records were relevant to and may aid in substantiating the veteran's claim. The alleged assailant's service medical records may show complaints of or treatment for injuries inflicted by Ms. Molitor that would corroborate her account of the rape; the service records and VA claims files of the identified women serving with her in Germany may reflect reports of similar assaults or claims for service connection for residuals of MST that could establish a rape culture at the base; and service records that confirm Private Lutz's suicide would bolster the credibility of Ms. Molitor's reports of other events that occurred in Germany in 1986.  The Court therefore concludes that, for duty to assist purposes, the foregoing records are relevant and have a reasonable possibility of substantiating the veteran's claim because they relate to the claimed initiation rape and may aid in corroborating that stressor.”

Id. at *16 (internal citations omitted).

The Secretary also tried to argue that the veteran was not credible and therefore the VA did not have to attempt to obtain these materials.  The Court found otherwise, finding:

“Given that Ms. Molitor adequately identified relevant records of fellow servicemembers

that may aid in substantiating her claim, G.C. Precedent Opinion 05-14 was applicable to her claim and the Board was required to consider it in assessing whether VA satisfied its duty to assist. Although the Secretary argues that the Board's finding that Ms. Molitor was not credible excused its failure to specifically discuss that G.C. opinion that argument puts the cart before the horse.”  Id. at *16 (internal citations omitted).

The Court then concluded by stating: “Accordingly, the Court holds that where, as here, a claimant pursuing service connection for PTSD based on an in-service personal assault adequately identifies relevant records of fellow servicemembers that may aid in corroborating the claimed assault, G.C. Precedent Opinion 05-14 is applicable to the claim and VA must either attempt to obtain such records or notify the claimant why it will not undertake such efforts. The Board's failure to discuss the G.C. opinion and VA's lack of efforts to attempt to obtain the third-party records identified by Ms. Molitor when assessing whether VA satisfied its duty to assist renders inadequate the Board's reasons or bases for denying her claim.

This decision is a masterful explanation of the duty to assist in cases involving Military Sexual Assault and PTSD and provides a resource that all advocates should use when developing these types of cases

Decision by Judge Bartley, joined by Chief Judge Davis and Judge Greenberg.

Cantrell: TDIU and the “Protected Environment”

Cantrellv. Shulkin, Case Number 15-3439, decided April 17, 2017 considers whether the term “protected environment” in the TDIU context.

The veteran worked as a park ranger, but had significant bilateral hip pain and gastrointestinal issues.  He sought an award of TDIU stating he worked in a protected environment in light of the substantial and numerous accommodations provided by the employer.  and was denied by the Board which found he did not work in a “protected environment.”  The veteran appealed.

During the case, the Court specifically ordered the VA to provide its definition of a protected environment and was told that "VA has purposely chosen not to prescribe a

precise definition of 'protected environment,' allowing the factfinder to make the determination on a case-by-case basis."  Id. at *10.

The Court did not take well to the VA’s position stating “VA's failure to define employment "in a protected environment" or to otherwise specify the factors that adjudicators should consider in making that determination frustrates judicial review of that issue because the Court is unable to meaningfully assess the propriety of the Board's reliance on the factors it cited in this case. The Court simply cannot sanction a statement of reasons or bases that amounts to finding that Mr. Cantrell was not employed in a protected environment  "because I say so." Accordingly, the Court concludes that the Board provided inadequate reasons or bases for denying entitlement to TDIU, necessitating remand.”  Id. at *11-12 (internal citations omitted).

The Court found the term “protected environment” was ambiguous, but declined to define the term at this time instead remanding giving the VA an opportunity to first define the term.

Judge Lance concurred but focused on stating the veteran’s income should impact the calculation (i.e., “whether the claimant receives the same pay as similarly situated coworkers who are not disabled—is also a factor relevant to whether the claimant is employed in a protected”).  He also noted the impact of the ADA and that employers must provide reasonable accommodations and that where an employer must do so payment of TDIU could constitute a “second paycheck on the back of the taxpayer.”

environment.

The decision exposes what has long been recognized as a glaring failure by the VA to really define protected work environments.  However, I fear it will only result in an adoption of a definition by the VA that is anything but veteran friendly.

Decision by Judge Bartley, joined in by Judge Schoelen with a concurring opinion by Judge Lance.

Bankhead: Mental Health Ratings Examined

Bankhead v. Shulkin, Case Number 15-2404, decided March 27, 2017 examines the necessary requirements for mental health ratings and looks especially at the term “suicidal ideation.”

The Board granted a rating of 50% for a major depressive disorder but refused a higher rating.  “The Board recognized that the veteran exhibited many of the symptoms related to a higher disability evaluation, including suicidal ideation, irritability, difficulty sleeping, depression, social isolation, panic attacks, and memory impairment. Nevertheless, the Board concluded that those symptoms did not manifest with sufficient frequency and severity to meet the criteria for a higher evaluation.”  Id. at *6.  The veteran appealed.

First, the veteran attacked the Board’s interpretation of suicidal ideation.  The Court considered the various definitions of suicidal ideation and concluded “In sum, both passive and active suicidal ideation are comprised of thoughts: passive suicidal ideation entails thoughts such as wishing that you were dead, while active suicidal ideation entails thoughts of self-directed violence and death.”  Id. at *10.

It then determined:

The criteria for a 70% evaluation under § 4.130 lists "suicidal ideation" as a symptom VA

deems representative of occupational and social impairment with deficiencies in most areas.  Suicidal ideation appears only in the 70% evaluation criteria. There are no analogues at the lower evaluation levels.  Additionally, there are no descriptors, modifiers, or indicators as to suicidal ideation in the 70% criteria (including no specific mention of "active" suicidal ideation, "passive" suicidal ideation, suicidal "intent," suicidal "plan," suicidal "prepatory behavior," hospitalization, or past suicide attempts). Thus, the language of the regulation indicates that the presence of suicidal ideation alone,

that is, a veteran's thoughts of his or her own death or thoughts of engaging in suicide-related behavior, may cause occupational and social impairment with deficiencies in most areas.

Id. at *10-11 (internal quotations omitted).

The Court noted the record reflected recurrent suicidal thoughts of varying severity, frequency and duration, but noted the Board determined “passive” suicidal ideation did not rise to the level contemplated by a 70% or 100% rating “because he was "at sufficiently low risk of self-harm throughout the period," he had been "consistently treated on an outpatient basis during the period at issue" and there were "no instances where he was hospitalized or treated on an inpatient basis or domiciliary care," "his treating sources have considered his assurances that he would refrain from self-harm to be credible," and he "retained some social and occupational functioning."  Id. at *11.  The Court explained the Board erred because it required evidence more than thoughts to establish suicidal ideation or that he had been hospitalized or treated on an inpatient basis. 

The Court then took a moment to instruct that “[t]he presence or lack of evidence of a specific sign or symptom listed in the evaluation criteria is not necessarily dispositive of any particular disability level, even though, as noted, the Federal Circuit in Vazquez-Claudio found it pertinent that the severity, frequency, and duration of a symptom such as memory loss could be tracked through several disability levels.  In any event, however, VA must engage in a holistic analysis in which it assesses the severity, frequency, and duration of the signs and symptoms of the veteran's service-connected mental disorder; quantifies the level of occupational and social impairment caused by those signs and symptoms; and assigns an evaluation that most nearly approximates that level of occupational and social impairment.” Id. at *14.

The Court remanded for such a determination.  It also found fault with the failure to consider higher staged ratings as the Board focused on lower ratings.  Finally, it denied the veteran’s argument that the issue of TDIU had been reasonably raised.  It noted problems at work, but stated they did not rise to a suggestion of unemployability.

This decision is a master source for attacking the VA’s often erroneous mental health ratings, which frequently graft limiting language to the plain language of the Diagnostic Code.

Decision by Judge Bartley, joined by Judges Schoelen and Greenberg.

Doucette: Hearing Loss and Referral for Extraschedular Consideration

Doucette v. Shulkin, Case Number 15-2818, decided March 6, 2017 considers whether a claim for hearing loss should be referred for extraschedular consideration.

The veteran didn’t dispute the determination that the hearing loss was proper per the scheduler rating, but that the Board failed to provide an adequate statement of reasons or bases for its determination that he wasn’t entitled to referral for extraschedular consideration.  He specifically contended the Board failed to explain how his hearing loss was properly contemplated by the rating schedule and to adequately discuss extraschedular consideration in terms of the hearing loss’s effects on his functional capacity.

The Court explained that when evaluating hearing loss the VA

measures a veteran's ability to hear certain frequencies at specific volumes and to understand speech, using rating tables to correlate the results of audiometric testing with varying degrees of disability. In light of the plain language of §§ 4.85 and 4.86, as well as the regulatory history of those sections, the Court holds that the rating criteria for hearing loss contemplate the functional effects of decreased hearing and difficulty understanding

speech in an everyday work environment, as these are precisely the effects that VA's audiometric tests are designed to measure. Thus, when a claimant's hearing loss results in an inability to hear or understand speech or to hear other sounds in various contexts, those effects are contemplated by the schedular rating criteria. However, as the rating criteria do not otherwise discuss, let alone account for, other functional effects, such as dizziness, vertigo, ear pain, etc., the Court cannot conclude that the rating schedule, on its face, contemplates effects other than difficulty hearing or understanding speech.

Id. at *4-5.

As applied in this case, the Court noted the Board only has to consider referral for extraschedular consideration when there is evidence in the record showing exceptional or unusual circumstances or where the veteran has asserted that a scheduler rating is inadequate.  Specifically, as to hearing loss, the Court stated “the Board is only obligated to discuss extraschedular referral for hearing loss when there is evidence in the record which reveals that the appellant's hearing loss presents exceptional or unusual circumstances or where the appellant has asserted that a schedular rating is inadequate.”  Id. at *6-7.  The Court further stated

To be clear, although the Court holds that the rating criteria for hearing loss contemplate the functional effects of difficulty hearing and understanding speech, the Court does not suggest that the rating criteria contemplate all functional impairment due to a claimant's hearing loss. On the contrary, a hearing loss claimant could provide evidence of numerous symptoms, including—for purposes of example only—ear pain, dizziness, recurrent loss of balance, or social isolation due to difficulties communicating, and the Board would be required to explain whether the rating criteria contemplate those functional effects. In general, however, the Secretary's decision to rate hearing loss disabilities by the application of a veteran's audiometric testing results to rating tables does not alter the circumstances under which the Board must discuss whether referral is appropriate in an individual veteran's appeal.

Id. at *8.

The Court then turned to the merits of this case noting the appellant asserted his hearing loss made it difficult to distinguish sounds in a crowded environment, locating sources of sounds, understanding conversational speech, hearing the TV and using a telephone.  But, the Court noted “each [is] a manifestation of his difficulty hearing or understanding speech which, as the Court discussed above, is contemplated by the scheduler rating criteria for hearing loss.”  Id. at *8.  Therefore, the Court determined the Board wasn’t obligated to discuss extraschedular referral in this case.

A dissent by Judge Schoelen notes the rating criteria is inadequate to contemplate the veteran’s functional effects and the Board provided an inadequate statement of reasons or bases regarding its refusal to refer the hearing loss claim for extraschedular consideration.

She explains:

The fundamental problem arises because the rating schedule for hearing loss does not explain what the effects of the match of puretone threshold with speech discrimination should be. 38 C.F.R. §§ 4.85 (2016), 4.86 (2016). Sections 4.85 and 4.86 consist of tables designed to identify different levels of hearing loss in a controlled environment, but the tables do not address the functional effects or severity of a veteran's hearing loss. Instead, the rating schedule produces only Roman numerals. Although the rating schedule  undoubtedly contemplates hearing loss, it is impossible for the Court to interpret with any particularity the severity or functional effects of a veteran's hearing loss simply by seeing, for example, Roman numeral "IV."

Id. at *12.

She notes that a prior decision, Martinak, directs only VA audiologists to note functional effects of hearing loss and not the Board, but states “nothing in Martinak absolves the Board of its responsibility to provide an adequate statement of reasons or bases it ins decision.”  Id. at *13.  She then doubles down and states “no matter how extensive the Board's statement of reasons or bases is, I do not believe that that statement can ever sufficiently fill in the gaps in the rating schedule. The majority fails to explain how the Board could review the functional effects of hearing loss and match those functional effects with nonexistent criteria. If the Board were permitted to do so, their analysis would be tantamount to a Colvin violation.”  Id. at *14.  She then concludes that she would remand directing the Board to provide an adequate statement of reasons or bases for refusing to refer for extraschedular consideration.

The powerful dissent, which exposes the flaws in the VA rating for hearing loss call out for a the veteran to seek appellate review of this decision. The result should be either more detailed discussions of referral for extraschedular considerations or a revised Diagnostic Code.

Decision by Judge Lance and joined by Chief Judge Davis.  Dissent by Judge Schoelen.

Cook: Right to a Board Hearing After Remand from the Court and an Attack on Deference

Cook v. Snyder, Case Number 15-0873, decided January 31, 2017 answers whether a veteran has the right to another Board hearing after remand of his claim from the CAVC. In a tour de force opinion by Judge Bartley, in which the Court conducts an exhaustive analysis of statutory and regulatory interpretation, the Court ultimately finds the veteran does have a right to another post-remand Board hearing.

The veteran here received a remand from the Court and asked for a hearing from the Board specifically stating he wished the opportunity to address certain points through his testimony.  The Board noted he had previously had a hearing (actually two) and denied the request and the claim. 

Before the Court, the veteran argued the denial of his request for a hearing was in error.  The case dealt with 38 USC 7107(b).  The Court determined that both the veteran and the Secretary’s interpretations of 7107(b) were grammatically plausible and thus the “statute’s language is simply not clear on this point.”  Id. at *9.  The Court noted “Because Congress has not directly addressed the precise issue at question, the next step in the Court’s analysis would be to determine whether the VA’s implementing regulation permissibly construes the statute and, if so, defer to that construction.”  Id. at *10.  The Court concludes Chevron deference is not owed in this case for two reasons.  First, no VA regulation resolves the statutory ambiguity—

Here, the regulations cited by the Secretary all contain the same basic ambiguous language that, although not phrased identically to the statute, do nothing to clarify the ambiguity … as to whether a VA claimant who has had a personal hearing before the Board on an appeal is entitled upon request to another Board hearing following a Court remand.  Therefore, the Court is under no obligation to accord deference to the Secretary’s interpretation under Chevron step two.

Id. at *10-11.  Secondly, the Court noted that the VA regulation preexisted the statute and that because Chevron deference is appropriate only where Congress has delegated authority to the agency to make rules carrying the force of law.  The Court determined the VA has not actually used that delegated authority but simply relies on a regulation predating the statute, which could not have possible been promulgated to interpret the statute.  Id. at *11.

The Court then noted where Chevron deference is inapplicable, the Court proceeds under the Skidmore rules of interpretation which look to guidance from the agency but also weigh whether such guidance is thorough, examines the reasoning, is consistent with earlier practice, and whether it is generally persuasive.  The point is that Skidmore analysis is much less deferential to the agency than Chevron.

The Court then relied heavily on the pro-veteran nature of the VA adjudicatory process as well as the fact the nature of a claim may change through the process to determine barring a post-remand personal hearing “would be neither solicitous of a claimant not productive of informed Board decisionmaking.”  The Court also pulled out the Brown v. Gardner trump card, which states any doubt in the interpretation of a VA statutes or regulations must be resolved in favor of a veteran.

Finally, the Court noted the Board was concerned the need for more hearings would inundate an already overwhelmed Board, but noted “these concerns do not authorize the Court to ignore the intent of Congress … and the solicitous and pro-claimant principles informing veterans benefits law.”  Id. at *19.

I would expect the VA to follow this opinion by seeking to change the regulations to prevent the right to a post-remand hearing.  Frankly this decision is important for at least temporarily protecting the right to a post-remand hearing, but more importantly for furthering a deep analysis to statutory and regulatory interpretation to VA law.  For too long, the VA has gotten by relying on Chevron deference, but this decision shows the veteran’s bar has become more forceful in arguing against Chevron deference and the Court is responding.

Decision by Judge Bartley, joined by Judge Pietsch and Senior Judge Hagel.

Vilfranc: TMJ, Diagnostic Code 9905 and Section 4.59

Vilfranco v. McDonald, Case Number 15-0904, decided January 5, 2017 involves a claim for a higher rating for TMJ.

The veteran was service connected and rated 10% for TMJ.  The veteran argued she deserved a 10% rating for both sides of her jaw.  Her argument took two approaches.  First, she argued 38 CFR Section 4.59, which recognizes painful motion as productive of disability and at least a minimum rating, allows two ratings because it operates to require the VA to assign a minimum rating for each joint.  The Court noted, however, that Section “4.59 is meant to compensate a claimant whose pain does not cause enough limitation of motion in a joint o reach a compensable level” and that “it is not applicable where, as here, the claimant already has a compensable level of limitation of motion.”  Id. at *6.

Second, she argued that under DC 9905 she deserves a separate rating for each joint.  The Court decided DC 9905 is ambiguous as it “does not answer the question posed by Ms. Vilfranc, which is whether dysfunction in both temporomandibular joints constitutes separate disabilities, such that separate disability ratings must be assigned.”  Id. at *8.  However, the Court also found the VA’s position was entitled to deference as it not plainly erroneous or inconsistent with the language of the regulation.  The Court accepted the VA’s argument that the TMJ operates as a single unit and noted that the inter-incisal range is measured once in the center of the mouth.  The Court noted the VA has not appeared to previously interpret DC 9905 in published documents and that the interpretation appears to first be raised in his brief, but that did not dissuade the Court from its finding.

A concurring opinion by Judge Greenberg agrees with the result but argues the case did not necessitate a panel opinion.  The argument appears to be that the issue was realitvely simple, a single judge would have more quickly made a decision, and “[a] timely appeal to the Federal Circuit is the preferred course of review of a single Judge disposition which I believe Congress envisioned.”  Id. at *11.

I think ultimately this case involved regulatory interpretations and reiterated that the Courts are going to largely defer to the VA’s interpretation unless this is some factor to suggest the proferred interpretation is not truly the VA’s interpretation.  See generally Hudgens v McDonald, 823 F.3d 630 (Fed. Cir. 2016).  I am most troubled by Judge Greenberg’s apparent preference for single Judge opinions.  While this case would clearly be one that could be reviewed by the Federal Circuit, the Federal Circuit has internal rules strictly limiting the types of VA cases it will hear.  Judge Greenberg’s apparent dislike of single Judge opinions, could leave veteran’s with no meaningful avenue of appeal.

Decision by Senior Judge Hagel joined by Judge Lance, concurrence by Judge Greenberg.

Southall-Norman: Painful Motion Applied, Lay Statement Credibility and Inadequate Reasons or Bases

Southall-Norman v. McDonald, Opinion Number 15-1657, decided December 15, 2016 involves a dispute over the proper effective date for a foot disability and service connection for impairment of sphincter control.

After a long fight, the VA finally granted the veteran 50% for flat feet with an effective date the date of the most recent compensation and pension examination.  The veteran sought an initial compensable evaluation for her bilateral foot disability prior to the date of the examination based on 38 CFR 4.59.

Section 4.59 is entitled “Painful motion” precedes the more specific musculoskeletal Diagnostic Codes and 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 Secretary argued 4.59 only applies to joint disability where the DC predicates a range of motion measurement.  The Court accepted the veteran’s argument and noted the “Plain language … indicates that the regulation is not limited to the evaluation of musculoskeletal disabilities under DCs predicated on range of motion measurements.”  The Court stated

In other words, Section 4.59 does not, as the Secretary contends, condition the award of a minimum compensable evaluation for a musculoskeletal disability on the presence of a range of motion measurements in that DC; rather, it conditions that award on evidence of an actually painful, unstable, or malaligned joint or periarticular region and the presence of a compensable evaluation in the applicable DC.  Thus, the plain language of Section 4.59 indicates that it is potentially applicable to the evaluation of musculoskeletal disabilities involving joint or periarticular pathology that are painful, whether or not evaluated under a DC predicated on range of motion measurements.

The Court noted that even if Section 4.59 were ambiguous it would rule the same and would not defer to the agency’s proffered interpretation because it does not reflect the agency’s considered view on the matter and pointed to oral argument admissions as well as two nonprecedential decisions were the Secretary conceded the Board provided inadequate reasons or bases for not discussing 4.59 in this context. 

The Court then stated since Section 4.59 is applicable, the Board had to address it in deciding whether the veteran was entitled to an initial compensable evaluation and its failure to do so renders inadequate its reasons or bases and specifically noted evidence as to painful motion.

Regarding sphincter impairment, the issue was fecal leakage.  The veteran argued the Board provided inadequate reasons or bases for its decision that she was not entitled to a separate compensable rating for impairment of sphincter control because it found her board testimony regarding fecal leakage inconsistent with her prior statements.  Specifically, the Board relied on a July 2007 VA examination where she said she had fecal leakage but did not need to wear absorbent pads and her statement in October 2013 that 5-6 years ago she began to experience fecal leakage.  The VA countered the Board made a proper credibility based on numerous inconsistencies in her statements.

The Court agreed with the veteran.  It noted one of the alleged inconsistencies was the October 2013 and July 2007 statements, but then noted that this was not actually an inconstancy because 5-6 years prior to October 2013 is after July 2007.  The Court stated the Board’s reasons or bases for impugning her credibility on that basis are inadequate.  The Court also noted the Board failed to account for potentially favorable medical evidence in the record.  It also noted despite the 2011 examination finding of no impaired sphincter control, “the record is replete with other evidence suggesting such impairment, which the Board improperly discounted.”

The result was a remand on both issues.  This opinion is really a tour de force in explaining that Section 4.59 is not predicated on range of motion measurements and also a text book opinion for eviscerating the Board’s decision and failure to make adequate reasons or bases on multiple issues.  It also, once again, shows the lengths the VA will go to argue a losing interpretation of a regulation—they seem to think the ability to interpret an regulation also includes the ability to ignore its plain language.  It is good to see the Court digging into the VA’s flawed interpretations.

Written by Judge Bartley Davis and joined in by Judges Schoelen and Greenberg.