Rossy: Hearing Loss and Referral for Extraschedular Consideration, Reconsidered

Rossy v. Shulkin, Case Number 16-0720, decided December 13, 2017 considers whether a claim for hearing loss should be referred for extraschedular consideration. 

The Court determined this case was controlled by Doucette v. Shulkin, 28 Vet. App. 366 (2017).  Essentially Doucette concerned a case where the scheduler rating for hearing loss was not dispute but the veteran believed it should have been referred for extraschedular consideration.  In Doucette 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. 

The Court here, said Doucette controls and noted the only particularized hearing problem was understanding conversations, particularly in noisy or crowded circumstances.  The Court noted that referral for extraschedular considerations might be necessary based on a collective impact of multiple disabilities but states the veteran’s attorney did not raise such an argument in his opening brief and such omission constitutes abandonment.  It further notes that even reviewing the record, the Court found no indication the veteran explicitly asserted the combined effects of bilateral hearing and his PTSD required extraschedular considerations nor reasonably raised the issue before the Board.

Judge Greenberg dissented and wrote the record reasonably raised the collective impact issue because the appellant has difficulties communicating because of his hearing loss and reported his PTSD causes feelings of detachment and estrangement from others. 

The lesson from this case might be to explicitly raise a combined effect argument when seeking extraschedular consideration.  However, the case also displays the Court taking a narrow view of what was raised by the veteran and before the Board, a concern when so many veterans are not represented by attorneys.

Decision by Judge Toth and joined by Judge Bartley.  Dissent by Judge Greenberg

Lyles: The Interplay Between DC’s in Knee Claims and Pyramiding

Lyles v. Shulkin, Case Number 16-0994, decided December 29, 2017 examines whether a veteran should also have received a rating under DC 5258 or 5259 in addition to ratings under DC 5257 and 5261.

DC 5258 and 5259 concern the dislocated or removed cartilage.  DC 5257 involves subluxation or instability and DC 5261 concerns extension.  The veteran received ratings for instability and limited extension under DC 5257 and 5261, but also sought a rating under either DC 5258 or 5259.

The Board found evidence of removal of semilunar cartilage. And,

acknowledged that the veteran experienced popping, locking, grinding, pain, swelling, looseness, and giving way or falling related to semilunar cartilage removal, but found that a separate evaluation under DC 5259 was not warranted because each of those symptoms was already “encompassed" by his current evaluations under DCs 5257 and 5261. Specifically, the Board indicated that the veteran's pain, swelling, looseness, and giving way or falling had been attributed to left knee lateral instability and were the very symptoms that formed the basis for the 30% evaluation under DC 5257.  Similarly, the

Board found that, because popping, grinding, and locking were symptoms of impaired motion, they were contemplated in the evaluation criteria for DC 5261 and had already "been considered in conjunction with the potential further impairment of motion" pursuant to DeLuca. The Board's DeLuca analysis consists primarily of its observation that there was "no clinical evidence that the [v]eteran has further range of motion impairment due to fatigability, incoordination, pain, or flare-ups, and the April 2010 and August 2015 examiners both commented that they could not say without resort to speculation what such impairment would be." Ultimately, the Board concluded that a separate left knee evaluation under DC 5259 would constitute impermissible pyramiding and denied the claim.

Id. at *4. 

The Court held that as a matter of law evaluation of a knee disability under DC 5257 or 5261 does not preclude a rating under either DC 5258 or 5259.   The Court noted “The crux of the Secretary's argument that, as a matter of law, evaluation under DC 5257 or

5261 precludes separate evaluation under DC 5258 or 5259, and vice versa, is that the meniscal DCs are so broadly drawn that they necessarily encompass recurrent subluxation, lateral instability, and limitation of motion, such that evaluation under DC 5257 or 5261 and DC 5258 or 5259 would necessarily result in duplicate compensation of the same manifestations of knee disability”.  Id. at *7.  The Court found the Secretary’s interpretation is contrary to the plain meaning of Section 4.71a and as that section did not specifically prohibit separate evaluations under DC 5257 or 5261 and a meniscal DC and instead states to evaluate each disability separate except when instructed by the rating schedule.

The Court then focused on whether the symptoms of Mr. Lyles's left knee disabilities already been compensated under DCs 5257 and 5261 such that separate evaluation under DC 5258 or 5259 is not warranted on the facts of this case?  Id. at *10.  The Court then turned to Delisle v. McDonald and a VA General Counsel Opinion from two decades prior.  The Court explained Delisle found

DC 5257 is unambiguous; by its plain language, it provides compensation for veterans suffering from impairments of the knee, other than those enumerated elsewhere in the relevant regulations, that cause the symptoms of recurrent subluxation or lateral instability." In so holding, the Federal Circuit expressly rejected the veteran's argument in that case that DC 5257 should be read to include manifestations of knee disability other than recurrent subluxation or lateral instability, concluding that "DC 5257 is limited to establishing compensation for disabilities causing such specifically enumerated symptoms."

Id. at *11.

The Court then found the Board read into DC 5257 criteria not in it (compensation for pain and swelling) and that such finding must be reversed.  Id. at *12.

The Court then acknowledged the error with regard to DC 5257 could be harmless if DC 5261 properly left knee meniscus disability (including pain and swelling) was compensated fully by DC 5261), but found that was not the case here. 

The Court noted that DeLuca factors could lead to an elevation of the DC 5261 rating, but found that not the case here.  The Court noted the veteran admitted the symptoms he complained of could have resulted in a higher rating pursuant to DC 5261 because of DeLuca but noted the “Board's reasons or bases for denying a higher left knee evaluation under DC 5261 reveal that those manifestations have not yet been compensated in this case.”  Id. at *14-15.  It also stated:

The Board then considered §§ 4.40 and 4.45 and explained that there was "no clinical evidence that the [v]eteran has further range of motion impairment due to fatigability, incoordination, pain, or flare-ups" because the April 2010 and August 2015 VA examiners "both commented that they could not say without resort to speculation what such impairment would be." …

Ultimately, the Board concluded that, "[w]ithout clinical medical evidence indicating such additional functional limitation, the Board is unable to find that the [v]eteran's pain is so disabling as to actually or effectively limit . . . extension of the left knee to such an extent as to warrant assignment of higher ratings." This analysis is inadequate in several respects.

Id. at *15.

The analysis was inadequate because the Board focused on pain and did not also consider swelling, popping, locking, and grinding; and, the reliance on the examinations was error due to the court’s recent decision in Sharp related to resorting to mere speculation regarding flare-ups (Sharp focused on interviewing the veteran to assist the physician).  The Court then concluded  

it is clear that the Board has not yet properly assessed whether Mr. Lyles's pain, swelling, popping, locking, and grinding associated with his left knee meniscal disability have been compensated by his current left knee evaluations under DC 5261. Remand of the veteran's left knee meniscal disability claim is therefore warranted to determine whether

separate evaluation of a meniscal disability under either DC 5258 or 5259 is warranted on the facts of this case or whether such evaluation would constitute impermissible pyramiding.

Id. at *17.

This decision by Judge Bartley first explains that DC 5258 and DC 5259 are stand-alone codes that compensate for a knee disability in addition to other knee centered codes.  It also is valuable for tackling the subject of pyramiding and making it a very fact specific determination focused on the actual compensated manifestations of a disability.

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

Frost: Secondary Service Connection Does Not Require Prior Service Connection of the Underlying Disability

Frost v. Shulkin, Case Number 15-3102, decided November 30, 2017 considers service connection for a secondary condition and whether the underlying condition had to be diagnosed or service connected prior to the occurrence of the secondary condition.

The veteran suffered injuries in a train accident while in service and was ultimately granted service connection for PTSD related to such accident.  However, a couple years after discharge and approximately two decades prior to service connection or even diagnosis of the PTSD, he was involved in an altercation wherein he was shot.

The veteran was applied for and was service connected for his PTSD and then a few years later sought service connection for the gunshot residuals saying they occurred due to his PTSD and thus were caused by his service connected PTSD.  The RO and Board denied the claim.  The Secretary initially argued in his brief that the veteran could not be service connected for an injury that occurred before the underlying condition was either diagnosed or service connected.  At oral argument, the Secretary withdrew this contention and conceded that a veteran may be granted secondary service connection on a causation basis even when the purported primary condition is the subject of diagnosis and award of service connection after incurrence of the purported secondary condition.  Id. at *5.

The Court, in an attempt to clarify the issue for future veterans, examined the Secretary’s initial temporal argument.  It noted “However, the plain language of § 3.310(a)—that a disability ‘proximately due to or the result of a service-connected disease or injury shall be service connected’—does not establish such a temporal requirement. See Petitti, 27 Vet.App. at 422. Nothing in the text of the regulation specifies or indicates that the primary condition must be service connected, or even diagnosed, at the time the secondary condition is incurred.” Id. at *6.

It further stated “Because no language in the text refers to such a temporal requirement, the Court concludes that the plain meaning of § 3.310(a) is clear in this regard and we reject the Secretary's interpretation that would have Mr. Frost's claim barred as a matter of law.”  Id. at *7.

The Court also delayed VA delay in resolving claims and used the delay as a reason why the VA’s interpretation does not make sense.  Id. at *7.

The Court then remanded the claim because the Board failed to provide adequate reasons or bases for its failure to seek a VA examination or medical opinion on the issue.  The Court also noted several pieces of evidence ignored by the Board and took the Board to task for making its own medical determination.  Id. at *9-10.

This is a case with unusual facts that solidifies what should have been already accepted by the VA, that a secondary disability can arise before the underlying condition is diagnosed or service connected.  Also, while having unusual facts, they are facts that appear not infrequently in PTSD situations.

Decision by written by Judge Bartley and joined in by C.J. Davis and Judge Schoelen.

An Excellent Article on VA Delay and Dysfunction

https://nyti.ms/2jooBlF

James: Equitable Tolling and Filing the Notice of Appeal

James v. Shulkin, Case Number 16-1948, decided October 30, 2017 is another in the line of cases dealing with the equitable tolling of the time allowed to file the notice of appeals with the Court of Appeals for Veterans Claims. 

In this case, the veteran placed his notice of appeal (NOA) in his personnel mailbox the day the NOA was due to be sent.  He then raised the mailbox flag on his box and went out of town for the weekend.  When he got back, he found the mailbox flag was lowered and the mail had not been taken.  He then mailed it at his local post office, outside of the 120 day filing period.  The Court ordered the veteran to show cause why the NOA should not be dismissed as an untimely filing. 

The Court noted equitable tolling is to be determined on a case by case basis, but must be allowed if  the veteran shows three elements (1) extraordinary circumstance; (2) due diligence; and (3) causation.

The veteran argued “ the 120-day appeal window should be equitably tolled because an errantly lowered flag on his residential mailbox constitutes an extraordinary circumstance beyond his control. He argues that "[t]his extraordinary circumstance is akin to other cases in which veterans have filed their NOA on time, but in the wrong place," citing Santana-Venegas, 314 F.3d at 1293, where the veteran timely filed his NOA, but mailed it to the RO instead of the Court.”  Id. at *2.  The Court rejected this argument, saying

The logic of the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) in Santana-Venegas does not apply in this case. The Federal Circuit explicitly noted that "'[m]isfiling cases within the veterans' system are unlike the typical late-filing cases where the limitations period expires before the would-be claimants perform any action to preserve their legal rights.'" Santana-Venegas, 314 F.3d at 1297 (quoting Jaquay v. Principi, 304 F.3d 1276, 1287-88 (Fed. Cir. 2002) (citations omitted)). In the case at hand, Mr. James did not timely misfile his appeal to this Court; rather, he placed his NOA in his personal mailbox on the last day of the appeal period, left town for the weekend, and ultimately mailed his NOA 4 days late. The Court declines to hold that the

alleged extraordinary circumstances here are like those in Santana-Venegas and other timely misfiling cases.

Id. at *2.

The Court finally concluded that “a fallen mailbox flag is not an extraordinary circumstance beyond the appellant's control that warrants equitable tolling, but rather an ordinary hazard of last-minute mailing that could have been avoided but for the appellant's "garden variety neglect."  Id. at *2-3.

Judge Greenberg wrote a dissent that pointed to a key difference in this case and Santana-Venegas.  He noted the majority found “the facts here are akin to ‘the typical late-filing cases where the limitations period expires before the would-be claimants perform any action to preserve their legal rights.’ See ante at 2 (emphasis added) (quoting Santana-Venegas v. Principi, 314 F.3d 1293, 1297 (Fed. Cir. 2002)) (internal quotation marks omitted). Yet, it is undisputed that the appellant placed his NOA in the mailbox on the 120th day, and thus did everything required of him to ensure timely mailing under 38 U.S.C. § 7266.” Id. at *3.  He then essentially argues the majority relies on old case law that ignores repeated admonishments from the Federal Circuit for denying tolling and arguing “The Court must start applying its equitable powers more broadly.”

The decision is a warning to veterans and practitioners that they need to file their notice of appeal quickly and without delay.

Per Curiam Decision by Judges Schoelen and Pietsch. Dissent by Judge Greenberg.

Mead: A Late EAJA Fee Application and Equitable Tolling

Mead v. Shulkin, Case Number 15-015(E), decided October 27, 2017 considers a late EAJA application and whether equitable tolling might apply.  The Court seems to admit that equitable tolling could apply, but rejects it in this case.

This is a sad case where an attorney helped a veteran, but then was diagnosed and had surgery at nearly the same time a joint motion for remand was made.  The attorney submitted a late EAJA application and pointed to her cancer diagnosis and surgery as well as related depression.  The Court requested additional information as to the attorney’s condition and specifically asked her to seek an opinion from her medical providers as to her capacity to handle her affairs during the period to be tolled.  The attorney wrote back declining to provide further information in light of a concern for her privacy and pointed to her professional responsibility of candor to the court.

The Court denied her EAJA application noting she could have sought to have any submission sealed. 

Judge Greenberg wrote an impassioned dissent that noted the attorney’s potentially life threatening illness and noted the attorney’s professional license is contingent upon candor with the court and that absent a specific reason to doubt such candor, the Court should presume its truth.  The dissent further and attacked the Internal Operating Procedure of the Court.  Specifically, he notes 28 USC 7254 states a majority of the judges of the Court shall constitute a quorum for the transaction of the business of the Court, but notes that only two of his colleagues expressed disagreement with his single-judge decision and voted the matter to panel.  The Court had six active members.  He argues that sending a matter for precedential panel disposition constituted business of the court and should have required a 4 vote majority and highlights how this internal operating process is different compared to other appellate courts.  

Greenberg ends with as poetic a paragraph as you might find in an appellate decision:

Any disagreement with my exercise of my own equity discretion in February 2017, when I originally granted tolling of the appellant's EAJA application, should have been pursued by one of the parties through an appeal or motion for reconsideration, or at the very least should have been disturbed only by a "majority of the judges of this Court." 38 U.S.C. § 725(c)(1). A process that allows for a single Judge's veteran-friendly decision to be overturned merely because two other Judges disagreed goes against the intent of Congress in creating our Court, which was to "place a thumb on the scale in the veteran's favor in the course of administrative and judicial review of VA decisions." Henderson, 562 U.S. at 440. I do not believe that in establishing our Court, Congress intended such limitless dilution of a single Judge's statutory authority. It is for these reasons that I dissent.

Per Curiam decision by Judges Schoelen and Bartley, J. Greenberg issued a dissent.

Susic: Substitution of An Adult Child Upon a Veteran’s Death

Susic v. Shulkin, Case Number 13-0158, decided October 26, 2017 considers the ability to substitute an adult child upon a veteran’s death.  At issue was potentially over a decade of accrued benefits related to an earlier effective date.  The case had resulted in numerous appeals and the veteran died shortly after the Federal Circuit remanded the case.

Three adult children of the veteran sought to be substituted.  They argued that while they were adult children, the potential earlier effective date involved a time when the children were still minors.

Substitution is governed largely by 38 USC 5121 as well as 38 USC 101(4)(A) which defines child as an unmarried person under 18 or who before turning 19 became permanently incapable of self-support or who is over 18 but less than 23 and seeking higher education.

The Court determined

In section 5121 of title 38, U.S. Code, Congress stated that an accrued benefits

determination is to be made "upon the death of a veteran." 38 U.S.C. § 5121(a)(2). It is clear from the plain language of the statute that to qualify as an accrued benefits beneficiary, an individual must satisfy the requirements of the statutory framework for these benefits when the veteran dies as opposed to at some point during the pendency of the veteran's claim.

The Court also addressed appellant’s arguments that the law had been changed by Congress and stated:

The Court also concludes that the appellant's counsel has failed to persuade the Court that

when it enacted section 5121A, Congress intended to fundamentally change the accrued benefits beneficiary framework. See Hilkert v. West, 12 Vet.App. 145, 151 (1999) (en banc) (finding that the appellant bears the burden of persuasion on appeals to this Court), aff'd per curiam, 232 F.3d 908 (Fed. Cir. 2000) (table). Congress enacted 38 U.S.C. § 5121A to "improve and modernize VA claims processing." Breedlove, 24 Vet.App. at 14. The appellant's counsel has not identified any support for the proposition that Congress intended section 5121A to change anything other than how VA processed its claims, particularly as it relates to the dependency requirements for accrued benefits beneficiaries.

  

This case is an example of the fundamental unfairness that can result from the VA’s dilatory measures in making a fair decision.  Delays can result in the death of a veteran and a situation where the VA never has to pay the benefits that were long owed.

Per Curium decision by Judges Schoelen, Pietsch, and Greenberg.