Atencio: Gulf War and GERD and JMRs

Atencio v. O’Rourke, Case Number 16-1561, decided July 6, 2018 considers whether GERD is considered to be a medically unexplained chronic multisymptom illness (MUCMI) under 38 CFR 3.317.

Section 3.317 is a regulation implementing benefits for Gulf War veterans with unexplained chronic medical problems.  This case determined GERD does not qualify under the regulation for service connection.  The regulation specifically states it excludes structural gastrointestinal diseases and GERD is considered to be structural.  The veteran tried to argue the broader definition of a MUCMI could include GERD but the Court found the regulation is not ambiguous, specifically excludes GERD, and the more general definition could not overcome the specific exclusion of GERD.

More interestingly, the veteran argued the enabling statute (38 USC 1117) gave the VA power to include disabilities entitled to a presumptive service connection but did not give the power to exclude disabilities.  The argument was the note excluding GERD was not allowed by the statute.  The Court rejected such an argument determining Congress intended to give the Secretary broad authority to determine which disabilities should be compensated and that the Court read this authority to include the power to determine which disabilities are not to be compensated as well as those to be compensated.  Id. at*13.  The Court took pains to say they were merely holding this particular statute provides both inclusion and exclusion power.  Id. 

The Court also addressed an argument by the Secretary related to the law of the case related to a prior JMR from this Court.  Essentially, the Secretary argued a prior JMR concerned service connection of GERD on the presumptive basis allowed under Section 3.317 and so the Court could not now consider any further arguments related to service connection on a direct or secondary basis. 

The Court began by saying

it is not clear whether the traditional law of the case doctrine applies to a JMR and we need not reach that question here. The Court has held that a JMR "effectively moots the case or controversy" before the Court.  More specifically, the Court also has held that an order granting a joint motion for remand premised on the agreement of the parties, and not incorporated by reference into the order, "does not evaluate and adjudicate the arguments or positions of the parties prior to disposition on the merits, but merely dismisses the appeal."  One could view the Clerk's order here as "administrative rather than adjudicatory."  Because the law of the case doctrine applies only to judicial decisions, not administrative determinations, it may be that the doctrine does not apply at all in this case.  The Court need not resolve this question today, however, because even if the doctrine applies, the Court finds that the terms of the JMR did not limit the issues before the Board on remand and, therefore, the Court is not precluded from addressing direct and secondary service connection.

Id. at *14-15 (internal citations omitted).  Thus, the Court really questioned whether the law of the case applied at all.  But, it then analyzed the actual JMRs language and applied it to its previous decision on this issue in Carter v. Shinseki, 26 Vet. App. 534 (2014).  Id. at *15.  The court noted language “vacat[ing] the Board decision” without limiting that vacator and no language limiting the Board’s duties on remand.  The Court concluded the JMR did not limit the issues before the Board or remand and thus the veteran could raise any arguments related to GERD in this appeal, including whether it should be service connected on a direct or secondary basis.  Id. at *15-16.

The Court then found a prior C&P examination was not adequate in its opinion as to secondary service connection.  Id. at *17.  The Court noted “a specific inquiry directly addressing aggravation in a case raising that theory, separate from whether a service-connected disability caused the disability at issue, is necessary when an examiner addresses secondary service connection.”  Id.

The Court then held

the Board failed to provide an adequate statement of reasons or bases for its reliance on the April 2014 examiner's opinion as to aggravation. The examiner's opinion seems to rely on a reversed chronology of the appellant's symptoms, and the Board failed to address the adequacy of this rationale. Furthermore, it is unclear how and why the same rationale was applied to both the causation and aggravation elements of secondary service connection. As El-Amin made clear, examiners must address both in cases raising both theories.  However, the Board did not address the significance of the April 2014 examiner appearing to provide no such distinction between causation and aggravation. 

In this regard, the Court notes that the very structure of her opinion appears to indicate that the two may have been considered together. The examiner was presented with three questions arranged in an alphabetical listing as to whether the appellant's GERD "(A) began during service, (B) is proximately due to or the result of recurrent sinusitis, or (C) is aggravated (worsened) by recurrent sinusitis." In providing responses, the examiner used the same lettering to address each question. Significantly, however, in the section of the report labeled "Rationale," the examiner provided her explanation and references to the medical literature regarding sinusitis and GERD in a paragraph labeled "(B) and (C)." This appears to mix causation and aggravation, and without a more detailed explanation, it is unclear how the Board interpreted this opinion and whether the examiner clearly provided a rationale that dealt with causation and aggravation as independent concepts.

The Board's consideration of the examiner's report concerning aggravation raises the

question of whether aggravation, as opposed to causation, is being treated in an almost slapdash manner by both examiners and the Board. We reiterate that aggravation of a condition by a service connected disability is independent of direct causation. The Board must ensure that medical examinations are adequate on that question and explain the bases for its conclusion concerning aggravation. It did not do so here.

Id. at *18-19.

Judge Meredith issued a separate opinion interestingly making the point that the majority may have not fully addressed the appellant’s argument that the VA could not exclude disabilities, she stated “I do not agree with resolving a matter of this significance—to the veterans community and VA—without any briefing from either party. The majority compounds this by deciding the statutory interpretation question without addressing what, in my view, was the entirety of the argument presented—that 38 U.S.C. §§ 1117 and 1118, read together, do not authorize VA to categorically exclude disorders from

qualifying for Persian Gulf War presumptive service connection.”  Id. at *20. 

Frankly, the clear take away for most Gulf War veterans is that GERD is not covered as a presumptive illness under Section 3.317.  However, the case is also interesting due to its discussion of JMRs and as an example of reliance on an inadequate medical examination.

The decision was by Judge Allen, joined in by Chief Judge Davis.  Judge Meredith wrote a separate opinion.

Clark: Veterans Have 90 Days as of Right to Present Proof to the Board after Remand from the Court

Clark v. O’Rourke, Case Number 16-2826, decided July 10, 2018 considers a veteran’s right to present additional evidence to the Board after a remand from the Court.

In this case, the question was new and material evidence and the Court had issued a remand.  The Board then sent a letter to the veteran stating "[i]f you elect to submit any additional argument or evidence, it must be submitted to this office within 90 days of the date of this letter or until the date the Board issues a decision in your appeal, whichever comes first."

The veteran’s advocate submitted a post-remand brief, but no new evidence.  Fifty days after the remand notice letter, the Board decided there was no new and material evidence and refused to reopen the claim.  This appeal resulted.

The veteran’s counsel argued that under Kutscherousky v. West, 12 Vet. App. 369 (1999)(per curium), 38 C.F.R. § 20.1304(a) applies in cases where a claim is remanded from the Court and gives the veteran 90 days to respond before a decision is made by the Board.  At oral argument, the Secretary conceded the notice letter it had sent was inadequate but argued the appellant implicitly waived his right to utilize all or part of the 90 day period.  Id. at *3-4.  The Secretary then pointed to language in the veteran’s post-remand brief stating it was “look[ing] forward to a decision.”  Id. at *4. 

The Court stated it would not allow the VA to unilaterally reduce or eliminate the 90 day period to submit new evidence and that as this is a matter of right, the right cannot be waived absent a voluntary, knowing and intentional waiver.  Id. at *6-7.  The Court then stated because the notice letter was flawed, there could be no intentional waiver.  Id. at *7.  It also stated:

Nowhere in the postremand brief is there the slightest indication that the appellant waived his right to submit additional evidence. Praying for an "equitable resolution of the appeal" and stating that he "look[ed] forward to a decision representing sound rating principles" cannot reasonably be understood as relinquishing any rights he would otherwise retain up until the actual issuance of that decision.

Id. at * 7.

The Court then determined the error was not prejudicial.  It noted “The appellant asserted in his February 2017 brief regarding his current appeal that, if VA had granted him the full 90 days to submit evidence postremand, he ‘may have been able to procure evidence material to his claim.’ In his reply brief, the appellant asserted that he has new medical evidence which may substantiate his claim and that he therefore can identify evidence that he ‘would have submitted…had the Board not prematurely issued the decision on appeal.’”  Id. at *8.

Judge Meredith wrote a dissent which agreed with the right to a 90 day period to submit new evidence absent a voluntary, knowing, and intentional waiver.  However, she would have determined the appellant had not carried his burden in demonstrating that VA’s errors were prejudicial and because she believes the majority opinion contravened controlling precedent in finding prejudice.  Id. at *9.  It would appear she would have been more comfortable finding prejudicial error if counsel had made a proffer of the evidence that would be submitted. 

The 90 day rule seems enshrined by this case, but the more interesting question might be how it reveals some of the judge’s opinions on the prejudicial error analysis.  Judge Greenberg seems to view it potentially more liberally whereas Judge Meredith might require more.

The decision was by Judge Greenberg and joined in by Judge Schoelen.  Judge Meredith dissented.

Martin: Battling Unreasonable Delays and Using a Writ to Expedite Your Claim

Martin et al v. O’Rourke, ___ F.3d. ___ (Fed. Cir. 2018), Opinion Number 2017-1747 et al is a Federal Circuit decision dated June 7, 2018 and notable as it clarifies a more liberal standard for granting writs and thus expediting your claim or forcing the VA to actually make a decision.

This is actually a series of cases that were all combined for this decision and hearing. The veterans had sought a writ of mandamus asking the Veterans Court for relief after unreasonable delays by the VA (i.e., the veterans were asking the Veterans Court to force the VA to render a decision).  The Veterans Court denied the request, but the Federal Circuit held the Veterans Court applied an improper standard for evaluating these writs based on unreasonable delay.

First, you should know the Veterans Court has the power to hear and grant writs of mandamus forcing the VA to act.  But, the Veterans Court is usually very reluctant to grant these requests when they are based on unreasonable delay by the VA.  The past rationale has basically been that the courts should not tell a cabinet agency how to employ their limited resources to make decisions.

The Federal Circuit began by discussing the long time it takes for the VA to handle appeals.  It noted that after a veteran files a notice of disagreement with a decision, it takes the VA an average of 500 days to prepare the Statement of the Case.  Id. at 5-6.  It then notes the veteran then has to file a Form 9 and then the VA has to certify the appeal to the Board of Veterans’ Appeals.  The Federal Circuit notes it takes 2 ½ hours to complete the certification process, but veterans wait an average of 773 days for this certification to occur and an additional 321 days for the VA to actually transfer the certified appeal to the Board.  Id. at 6.

The Federal Circuit commented about these delays:

In contrast to preparation of the SOC, for which there is arguably an explanation for some delay, it is unclear to us why this two-and-a-half-hour certification process takes an average of 773 days to complete—and the government has not provided an explanation. And the average 321-day delay that occurs when the VA transfers the certified appeal to the BVA is even more mysterious. The government, again, has not explained the cause of this delay, even though the transfer process appears to consist of simply transferring appellate records.

After these often-significant periods of delay, the BVA will issue its decision. Overall, the average time from the filing of a Notice of Disagreement to issuance of a BVA

decision is over five years.

Id. at *6-7.

The Federal Circuit then turned to the question of how should the Veterans Court analyze whether the VA has unreasonably delayed an action.  Id. at *11.

The Court begins by acknowledging the Veteran Court’s current standard which basically asks is the delay so extraordinary, given the demands on and resources of the Secretary, that it is equivalent to an arbitrary refusal by the Secretary to act.  Id. at *11-12

Then, the Court turns to another standard used by some courts to address delay by other agencies.  Id. at *12. See also Telecomms. Research & Action Ctr. v. FCC (“TRAC”), 750 F.2d 70, 76 (D.C. Cir. 1984).

The Court then summarized this standard by saying:

In TRAC, the D.C. Circuit explained that the overarching inquiry in analyzing a claim of unreasonable delay is “whether the agency’s delay is so egregious as to warrant mandamus.” TRAC, 750 F.2d at 79. The D.C. Circuit pointed to six factors as relevant to this inquiry: (1) the time agencies take to make decisions must be governed by a “rule of reason”; (2) where Congress has provided a timetable or other indication of the speed with which it expects the agency to proceed in the enabling statute, that statutory scheme may supply content for this rule of reason; (3) delays that might be reasonable in the sphere of economic regulation are less tolerable when human health and welfare are at stake; (4) the court should consider the effect of expediting delayed action on agency activities of a higher or competing priority; (5) the court should also take into account the nature and extent of the interests prejudiced by delay; and (6) the court need not find “any impropriety lurking behind agency lassitude” in order to hold that agency action is unreasonably delayed.  Id. at 80. In TRAC itself, the D.C. Circuit recognized that this standard is “hardly ironclad, and sometimes suffers from vagueness,” id., and the court has recently emphasized that each case should be analyzed based on its unique circumstances, see Am. Hosp. Ass’n v. Burwell, 812 F.3d 183, 189 (D.C. Cir. 2016).

Id. at *12-13.

After laying out these two competing frameworks for analysis, the Court determines the first standard focuses solely on the VA’s interests at the expense of the veteran’s interests and instead determines the TRAC standards should be applied.  Id. at *14.

The Court then discusses the six TRAC factors in detail, which should serve as a primer for anyone seeking to draft a writ of mandamus for unreasonable delay. 

The Federal Circuit also explicitly states it sees “no reasonable explanation for the historic delays that have occurred during appeal certification, which takes an average of 773 days, and during transfer to the BVA, which takes another 321 days, on average. Such delays appear to be inexplicable.”  Id. at *16, n. 9.

Judge Moore took time to file a concurring opinion in which he expresses his frustration with the VA by stating:

In the cases before us today, we once again find ourselves faced with the fundamentally flawed program that is the veterans’ disability benefits system. Established with the intent of serving those who have served their country, the veterans’ disability benefits system is meant to support veterans by providing what are often life-sustaining funds. Instead, many veterans find themselves trapped for years in a bureaucratic labyrinth, plagued by delays and inaction.

Id. at *Concurrence 4.

He also says “Under the correct mandamus standard which we adopt today, veterans should have a much easier time forcing VA action through the mechanism of mandamus.”  Id. at *8.  He states

It is unfortunate, but the takeaway from all this is quite simple: hiring a lawyer and filing a mandamus petition forces the VA to act. Absent unusual circumstances, certification and docketing should be ministerial acts which take very little time to perform. Cases which languish at this non-substantive stage are good candidates for mandamus based on unreasonable delay and due process violations unless the government can proffer

a reason for the delay specific to the case.

Id. at *9-10.

Judge Moore concludes with this passionate closing:

The men and women in these cases protected this country and the freedoms we hold dear; they were disabled in the service of their country; the least we can do is properly resolve their disability claims so that they have the food and shelter necessary for survival. It takes on average six and a half years for a veteran to challenge a VBA determination and get a decision on remand. God help this nation if it took that long for these brave men

and women to answer the call to serve and protect. We owe them more.

Id. at *10.

This decision is of incredible importance as it liberalizes a nearly impossible writ standard.  The result will likely be a much higher number of writs, but it might also force the VA to actually do there job.

Decision by Chief Judge Prost and joined by Judge Schall.  Concurrence by Judge Moore.

To know more about whether Thomas Andrews can help you, please visit my website.

Chudy: Hearing Loss and Referral for Extraschedular Consideration

Chudy v. O’Rourke, Case Number 17-0082, decided June 14, 2018 considers whether a claim for hearing loss should be referred for extraschedular consideration.  It is in a line of cases most recently including Doucette v. Shulkin, (2017) and King v. Shulkin (2017) which address this issue, but reach a result more narrow than that of King.

In King, the Court focuses on two “central issues: (1) whether, in fact, the rating criteria

adequately contemplated the functional effects of the appellant's bilateral hearing loss such that extraschedular referral was not required and (2) whether the availability of higher schedular ratings has any role in an extraschedular analysis by the Board.”  Id. at *3-4.

However, in Chudy, the Court focused on the Thun factors and the specific facts alleged by the veteran.  The veteran is retired but pointed to evidence of trouble talking with his grandchildren and wife.  The Court concluded “On its face, this statement has no bearing on whether Mr. Chudy's hearing loss interfered with employment.”  Id. at *6.  The Court then stated:

In any event, the Board directly addressed the December 2015 report in its decision and

explained that the VA examiner "noted that the functional impact of Mr. Chudy's hearing loss was that [he] ha[d] difficulty understanding speech in certain circumstances," but that "this alone d[id] not prohibit his ability to work in his given field." Although the Board may have been terse in its finding no marked interference with employment, the Board's brevity was understandable given that there was no evidence to discuss with respect to this issue, nor has Mr. Chudy identified any such evidence. Read as a whole, the Board's statement of reasons or bases for finding that there was no marked interference with employment is understandable and facilitates judicial review, and the Court otherwise discerns no error in the Board's finding.

Id. at *6.

Judge Greenberg who dissented in Doucette and joined in the King opinion wrote a blistering dissent as what he must see as an attempt to rollback and limit the impact of King. 

He begins by noting Chudy is a combat Vietnam Veteran who has received the Purple Heart who has battled with the VA for years for benefits.  The Court then notes “The majority …  skates over the fact that the Board failed to explain how the rating criteria contemplate the appellant's symptomology. See Thun v. Peake, 22 Vet.App. 111, 115 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3 1366 (Fed. Cir. 2009) (when either a claimant or the evidence of record suggests that a schedular rating may be inadequate, the VA must determine whether the evidence before it "presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate.").”.  Id. at *9.  He noted symptoms of ear pain, ear pressure and dizziness and states it is unclear how those symptoms are addressed by the diagnostic code.  Id. at *10.  He then turns on the adequacy of the examinations, which were conducted after retirement and note no impact on functional impairment.  He states:

It is illogical to suggest that a retired claimant who describes a difficulty hearing voices would not experience marked interference with employment; the evidence in the current case simply reflects that the appellant is retired. The appellant's absence from the workforce does not preclude the possibility that his uncompensated symptoms would

have caused marked interference with employment.

Id. at *10

This case is nothing more than a pitched battle among the Court’s judges on whether hearing loss claims should result in referral for extraschedular consideration and a longer game issue regarding the impact of extraschedular consideration for all disabilities.  The Secretary, of course, is working against veterans to attempt to narrow the confines of referral for extraschedular consideration and some judges of the Court are fine with that approach. Others, such as Judge Greenberg are fighting for application of it to assist veterans.

Note the decision was written per curium by Judges Schoelen and Pietsch with the dissent by Judge Greenberg.  Interestingly, Judge Schoelen joined in the King decision, but clearly seeks to limit its reach.

Robinson: EAJA fees and Prevailing Party Status

Robinson v. O’Rourke, Opinion Number 2016-2110 is a Federal Circuit decision dated May 31, 2018 and notable as it follows the Veterans Court’s decision in Blue v. Wilkie issued on May 16, 2018.
This case deals with Equal Access to Justice Act fees (EAJA) which are important in that they are the primary mechanism through which veteran’s attorneys are paid for work before the Courts.

In this case, the veteran’s attorney argued (and the dissenting opinion agreed) that EAJA fees should have been allowed after a remand by the Veterans Court.  The Veterans Court denied fees saying the remand was not predicated on administrative error and did not materially alter the legal relationship between the parties.

The Federal Circuit found the veteran’s attorney for the first time argued before the Veterans Court that the effective date should have been earlier than that determined by the Board.  The Veterans Court permitted the veteran’s argument and remanded but did not identify any error by the Board and specifically said it was allowing the Board to address the arguments in the first instance.

The Federal Circuit noted where a remand without a judicial finding of administrative error or a concession of such error, the default rules is that remand is not based on administrative error for EAJA purposes and the EAJA applicant has the burden of proving the remand was predicated on administrative error.  Id. at *8.

The Federal Circuit also noted the recent Supreme Court decision in CRST Van Expedited, Inc. v. Equal Employment Opportunity Commission, 136 S. Ct. 1642 (2016), which addressed a Civil Rights Act fee shifting statute and states:

“a defendant need not obtain a favorable judgment on the merits in order to be a ‘prevailing party.’” Id. at 1651. The Court reiterated that the “touchstone” of the prevailing-party inquiry is whether there has been a “material alteration of the legal

relationship of the parties.” Id. at 1646 (internal quotation marks omitted). This alteration, the Court stated, “must be marked by ‘judicial imprimatur.’”

Id. at *9.

The Federal Circuit then noted “Neither CRST nor Raniere, however, dealt with remand

to an agency as a basis for finding prevailing-party status, as here.”  Id. at *10.  It then stated: “For these reasons, it is unclear whether, in the wake of CRST, we must reconsider or clarify our precedent requiring administrative error in cases of remand for further agency proceedings. We need not resolve that issue here, however.  Robinson is not a prevailing party under either our precedent or the guidance set forth in CRST.”  Id. at *10.

The Court then explained:

The remand at issue was not predicated on administrative error. The Veterans Court did not address the merits of Robinson’s appeal, much less identify any error committed by the Board below. Nor could it, as Robinson did not argue that he was entitled to an earlier effective date before the Board. Instead, the Veterans Court considered Robinson’s belated argument, and remanded for the Board to make factual findings related to that issue in the first instance. In other words, the remand required the Board to consider an argument that it could not have considered previously, through no fault of its own.

Id. at *11.

The Court continued:

The Veterans Court’s remand decision also did not materially alter the legal relationship between the parties in the manner contemplated by CRST. While it is true that Robinson received additional consideration with respect to his objection to the Board’s effective date determination upon remand, that relief was not predicated on an allegation that the Board had acted improperly. And, as described above, the Veterans Court did not agree—and indeed, could not have agreed—with such an allegation. Even if the Veterans Court’s remand decision compelled the Board to consider new evidence and arguments on remand, the decision did not materially alter the relationship between the parties. Instead, it merely afforded Robinson an opportunity to have his otherwise

waived claims considered by the Board.

Id. at *17.

I believe (as does the dissent) that the Court simply failed to appreciate the nonadversarial nature of VA claims at the agency level.  Id. at *5 (dissent by J. Newman).  Judge Newman then argues:  

The judicial obligation is to assure that the veteran has a reasonable opportunity to obtain the benefits to which he is entitled, an obligation that required Mr. Robinson to take an appeal to the Veterans Court in order to obtain consideration by the BVA of the effective date.  When the veteran has no recourse but through the courts, “EAJA is a vital complement to this system designed to aid veterans, because it helps to ensure that they will seek an appeal when the VA has failed in its duty to aid them or has otherwise erroneously denied them the benefits that they have earned.”

Id. at *5 (dissent)

Secondarily, almost all Federal Circuits have a minor issue regarding jurisdiction.  The Federal Circuit can only hear legal disagreements from the Veterans Court (and not decide factual differences).  The Secretary believes this limitation is nearly without limit, but here the Court agreed they could hear the case because they are reviewing the Veterans Court’s interpretation of EAJA and not reviewing the Veterans Court’s factual determinations or application of the law to the facts.

Decision by Judge O’Malley and joined by Judge Reyna.  Dissent by Judge Newman.

Acree: Withdrawing an Appeal and the Impact of Delisio

Acree v. O’Rourke, Opinion Number 2017-1749 is a Federal Circuit decision notable for its discussion related to an effective withdraw of issues before the Board of Veterans’ Appeals. 

The veteran was represented by the DAV and has PTSD.  During a Board hearing, the Board member asked if he withdrew several issues on appeal and the veteran agreed.   

On appeal to the Court of Appeals for Veterans Claims the veteran argued the withdrawal of a claim was not effective unless it complied with the requirements of DeLisio v.  Shinseki, 25 Vet. App. 45, 57 (2011), which require the withdrawal to be explicit, unambiguous, and done with a full understanding of the consequences of such action on the part of the claimant and noting the Board did not address the third Delisio prong (full understanding of the consequences) . The Veteran’s Court upheld the Board decision.

The Federal Circuit reversed the case.  It determined:

By requiring that an effective verbal claim withdrawal must be explicit, unambiguous, and undertaken with a full understanding of its consequences, the DeLisio standard provides a bulwark against the inadvertent or uninformed forfeiture of a veteran’s rights.

***

As they traverse the “labyrinthine corridors of the veterans’ adjudicatory system,” veterans may lack a complete understanding of the consequences of claim withdrawal.

***

The need to ensure that a veteran understands the consequences of claim withdrawal is particularly acute when, as here, he suffers from psychiatric illness and appears pro se before the board.

Id. at *7-8.

The Federal Circuit then stated after the Veteran’s Court embraced the Delisio standard, it erred by failing to ensure the Board faithfully adhered to it.  Id. at *9.  Because the third prong of Delisio had not been addressed, the Federal Circuit remanded for further development.

While limited to Board hearings, this case likely has wider implications.  The practice of VA employees getting a veteran to withdraw a claim (or an appeal) without the veteran fully understanding the consequences of that action likely happens often and these types of withdrawals are subject to attack.  An example I can foresee is one where a VA employee suggests withdrawing an appeal so a new claim can be filed resulting in a quicker decision.  If the VA employee does not make explicit that the veteran is giving up a possible earlier effective date, this practice is problematic and subject to attack.

The case does distinguish between those veteran’s represented by an attorney and veteran’s service officer, which will likely lead to an assumption that one represented by an attorney understands the consequences of his actions. 

Decision by Judge Mayer and joined by Judge O’Malley and Taranto.

Blue: EAJA and Prevailing Party Status

Blue v. Wilkie, Case Number 15-1884(E), decided May 16, 2018 is an opinion that will mostly be of interest to veteran’s attorneys. 

Attorneys are paid for representation before the Court under the Equal Access for Justice Act (EAJA).  The Act is important for without it, most veterans would not be able to afford representation before the Court and the number of attorneys willing to perform such work would immediately shrink substantially.

A critical element to being able to be paid under EAJA is that the veteran be a “prevailing party.”  This usually means the parties or the Court finds the Secretary made an administrative error.  Administrative error occurs in most, but not all, remands.

This case was unusual in that the initial decision explicitly found “[a]lthough [it] can find no error in the Board's failure to discover the exact dates of the appellant's treatment in California or in VA's failure to request records dated at least 2 years later than the appellant's testimony revealed, the appellant has now identified evidence in the record that meets his burden of providing VA with the information necessary to assist him in obtaining potentially relevant VA records.” Id. at *2.

The Veterans essentially argued that while the Court found no administrative error, it did provide the relief requested. 

The Court began by stating “the underlying merits decision sets the stage for a subsequent EAJA determination.  However, that decision (and the language it uses) is not the end of the matter. Rather, it sets a ‘default rule,’ essentially determining whether the onus will be on the EAJA applicant to demonstrate that a remand without an express finding of error was in fact predicated on administrative error to be deemed a prevailing party.” Id. at *5.

Turning to the case at hand, the Court stated that in the earlier decision “[t]he Court did not explicitly find error either. In fact, the opposite is true. The remand order reflects that the Court could ‘find no error’ on the part of the Board or VA.  Thus, per Davis, the default rule is in effect here, which requires that the Court presume that there is no administrative error and for the appellant to prevail he must demonstrate that the remand order was, despite its language, actually predicated on such error.”  Id. at *6-7.

Practically speaking this means: “First, it is clear that an EAJA decisionmaker is required to examine the context of the remand order itself to determine whether the remand was implicitly predicated on agency error.  When looking at such context, the Federal Circuit examines not only the critical language of the remand order but also the nature of the remand, the record, and the actions of both parties and the merits decision-maker.” Id. at *8.

“Therefore, for EAJA purposes, the language of the remand order, as well as the circumstances surrounding the remand, are the fundamental basis for the determination of whether implicit agency error exists in a remand order. To evaluate the circumstances or context of the remand, the Court can review the parties' perceptions, address actions in favor of judicial policy, and even review the entirety of the record.”  Id. at *9.

Here, Blue argued he was a prevailing party because the remand was predicated on failure to obtain relevant agency records and remanded the case for further adjudication on that basis.  Also, “At oral argument, Mr. Blue asserted that, but for the existence of an administrative error, the Court could not have determined that vacatur and remand were necessary in this case.”  Id. at *10.

The Court found “although the merits decision-maker in part explicitly found no error in its remand order on the underlying merits decision, we conclude that, under the unique circumstances presented by this case, the appellant has met his burden of demonstrating that the remand in this matter must have been implicitly predicated on an "actual or perceived" agency error and the appellant has demonstrated that he is a prevailing party in this matter.”  Id. at *11.

While the case might hold less interest for veterans than attorneys, it is important to understand the history of attorney involvement in the VA system.  For many years, attorneys were effectively prevented from making a living handling VA claims.  The result was few did it and the VA often applied the law in ways that was not favorable to veterans.  With the advent of the ability for attorneys to make a living handing VA claims, attorneys have pressured the VA and lobbied the Courts for interpretations and applications of the law that are more veteran friendly.  This case upholds the broader role attorneys play within the system. 

Decision by Judge Allen and jointed in by Pietsch and Meredith.