Sellers: What Statement is Enough to Raise a Valid Claim for Benefits

Sellers v. Wilkie, Case Number 16-2993, decided August 23, 2018 address the question of what is enough to constitute a valid claim for VA benefits.

Specifically, the veteran applied for benefits and listed several physical injuries, but also wrote “Request service connection for disabilities occurring during active duty service.”  Importantly, while in the service, the veteran was diagnosed with a dysthymia and personality disorder which had led to an emergency mental health examination, care, and even had an examination aimed at addressing his fitness for duty.

The veteran applied for benefits, but did not list his mental health issues.  He later applied for PTSD was granted service connection with a date of that PTSD application, and appealed seeking an earlier effective date back to his first mental health issues.

The Court acknowledged generally the effective date is the date the VA received a claim or the date on which entitlement arose, whichever is later.  Id. at *3.  The elements of any claim, formal or informal, are (1) an intent to apply for benefits, (2) an identification of the benefits sought, and (3) a communication in writing.  Id.  And, the identification of the benefit sought does not require technical precision and the VA must fully and sympathetically develop a claim. The Court also noted past case law saying the “VA is not required to anticipate a claim for benefits for disabilities that have not been identified in the record by medical professions or by competent lay evidence at the time a claimant files a claim or during the claim's development.”  Id. at *4.

The veteran argued his general statement of an intent to seek benefits for disabilities occurring during active duty service combined with the VA’s actual possession of service treatment records is sufficient to constitute a claim.  The Secretary argued the general statement did not identify the benefit sought.

The Court’s reasoning is so well written I will quote in whole the Court’s holding:

The Secretary is correct that a general statement of intent to seek benefits for unspecified

disabilities standing alone is insufficient to constitute a claim. Yet, the Secretary's  argument misses a crucial additional factor present here: evidence of reasonably identifiable in-service diagnoses of psychiatric conditions that predate the appellant's claim were in the possession of the RO before it rendered its rating decision. The disability at issue here was identified in the record by military medical professionals well before the appellant filed his March 1996 claim, and the record was in VA's possession at the time of the initial decision.  Further, the appellant's mental health issues were well documented in those records. They reflect that the appellant's mental health was a subject of serious concern while he was in the military as he was twice diagnosed with dysthymia, subjected to extensive psychological testing, evaluated for retention purposes, and involuntarily hospitalized. It is undisputed on appeal to the Court that the appellant was diagnosed in service with a psychiatric condition. But what is not clear is whether that diagnosis was reasonably identifiable by VA adjudicators at the time of his putative formal claim in March 1996 or prior to the RO's deciding the claim. As we explain below, whether an inservice diagnosis in a veteran's service records is reasonably identifiable by VA adjudicators at the time a claimant seeks benefits or prior to the RO's deciding the claim is a factual determination for the Board.

As a general principle, VA may not ignore in-service diagnoses of specific disabilities, even those coupled with a general statement of intent to seek benefits, provided those diagnoses are reasonably identifiable from a review of the record.  But, we are cognizant of the difficulties that VA adjudicators would face when confronted with a general statement of intent to apply for benefits for conditions experienced in service. Service medical records reflecting such conditions could be voluminous and, even if they are not, the records could reflect numerous conditions. The fact finder must determine, based on the totality of the service medical record, both qualitatively and quantitatively, whether the condition at issue would be sufficiently apparent to an adjudicator.

To assist the Board in this endeavor, we provide the following thoughts on the types of factors that may be relevant to the Board's inquiry. These are not the only factors the Board may find helpful as it makes its assessment on this factual question. They are merely illustrations of factors that may be relevant to the Board's assessment. Qualitatively, for example, service medical records might contain many notes of conditions ranging from descriptions of trivial conditions (a hangnail) to full-blown diagnoses of significant illnesses (PTSD). And the record might describe certain conditions in great detail or, in contrast, in only a passing manner. Or, for example, medical records could contain vague complaints of symptoms regarding a condition but no formal diagnosis.

Quantitatively, the sheer volume of medical records may potentially be a factor in determining whether a condition would have been reasonably identifiable to a VA adjudicator. For example, the Board could decide that a single diagnosis reflected in a single page of a 2,000-page service record is not reasonably identifiable. Whether this is the case here is a factual question that the Board must address in the first instance, and the Board must provide support its determination with adequate reasons and bases.

Because the Board did not assess whether the medical record is such that the disability in question was reasonably identifiable, it did not appropriately consider this issue and, thus, remand is warranted. On remand the Board must determine whether the appellant's in-service records reflect a reasonably identifiable diagnosis of a psychiatric condition given the nature of the records at issue and, if necessary, reconsider its determination concerning the proper effective date of the appellant's MDD accordingly.

In sum, we recognize the Court's warning in Brokowski that general statements of intent "cannot be used as a pleading device to require the Secretary to conduct an unguided safari through the record to identify all conditions for which the veteran may possibly be able to assert entitlement to a claim for disability compensation," 23 Vet.App. at 89, and we emphasize that our holding here is a narrow one. Only records containing diagnoses that are reasonably identifiable from a review of the record may otherwise cure an insufficient general statement of intent to seek benefits. To continue Brokowski's metaphor, we caution that VA at most must participate in a fully guided safari.

Id. at *4-6

The Court also deferred consideration of a higher mental health rating but seemed to issue some guidance about the use of vocational expert reports.  It stated:

we caution the Board that it cannot reject a vocational  expert's opinion merely because it is not a medical opinion. Vocational experts can be necessary depending on the facts of a particular case. See Smith v. Shinseki, 647 F.3d 1380, 1386 (Fed. Cir. 2011). While the Board is entitled to discount or reject the medical conclusions of a vocational examiner, it cannot discount the vocational conclusions of a vocational examiner simply because he or she is not a medical professional. No law, regulation, or precedent requires that an examination be conducted by an examiner with a particular expertise or specialty. Instead, an examination must be performed by someone with the "education, training, or experience" necessary to provide an opinion. 38 C.F.R. § 3.159(a)(1).

Id. at *7.

This is an important, but limited decision.  First, the factual predicate is pretty unusual—a case involving an effective date where there was a general request for benefits and clear indications of problems in the service treatment records.  Second, it is important to note that as of September 25, 2015, the VA no longer recognizes informal claims.  Still, this case could lead to a substantial earlier effective date in some cases and it is also helpful to those using a vocational expert.

The decision was by Judge Allen and joined in by Chief Judge Davis and Judge Schoelen.

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Petermann: Diabetes, Extraschedular Consideration and Successive Ratings

Petermann v. Wilkie, Opinion Number 2016-1093 is a Veterans Court decision dated August 10, 2018 which deals with how extraschedular consideration interact with a successive rating such as DC 7913.

The veteran was service connected for diabetes and granted a 40% rating.  He argued, however, that the severity of his diabetes was not adequately contemplated by his existing rating and referral for extraschedular considations is warranted to compensate for those uncontemplated symptoms.  Id. at  *3.

The Secretary argued

                        

the relevant question when determining whether the first prong of the Thun v. Peake,

22 Vet.App. 111 (2008) analysis is met is whether the manifestations of a disability are

contemplated by the criteria of the entire DC at issue, not whether the manifestations of a disability are contemplated by the criteria of the particular rating assigned. Id. at 8-11. Because § 3.321(b)(1), title 38, Code of Federal Regulations, allows for an extraschedular evaluation "where the schedular evaluations are found to be inadequate," the Government contends, the adequacy of an assigned rating is measured against "multiple available evaluations rather than the singular evaluation that is assigned." Secretary's Motion for Reconsideration at 3 (emphasis in original). It is the Secretary's position that allowing the appellant extraschedular referral for diabetes based on symptoms contemplated at higher ratings of DC 7913 would "eviscerate" the Court's holding in Camacho regarding the successive nature of the criteria under this DC and the requirements to receive a schedular rating under this DC.

Id. at *3-4.

            The Court noted DC 7913 rating criteria ‘are successive and therefore, to establish a given disability rating, all the rating criteria for that and for lower ratings must be met.”  Id. at *4.  It then disagreed with the Secretary’s argument that the appropriate comparison in an extraschedular analysis is between the symptoms of a veteran and the criteria of the entire DC at issue.  Id. at *6.  It explained

Such an interpretation solely contemplates mere symptomatology and eliminates in extraschedular referral analysis the requirement to compare the type of symptoms the appellant suffers from with the criteria of his assigned rating….  The Secretary's assertion simply conflates the concepts of schedular and extraschedular disability ratings: it is not logically possible for these distinct rating avenues to overlap to the extent the Secretary suggests. Nothing in today's holding changes how the schedular analysis operates.

For example, the rating schedule retains its character, including the inapplicability of 38 C.F.R. § 4.7.  Thus, because of the successive nature of the rating schedule, there will be some symptoms (as our hypothetical showed) that will not be addressed in a schedular rating. And that remains the case. But that conclusion does not say anything about the role an extraschedular analysis might play in addressing those symptoms.  The Secretary acknowledges § 3.321's "gap filling function" but argues that "it is not true that Appellant has shown there is any gap to be filled here." Id.  But the gap to be filled comes from the unique nature of successive ratings and precisely because the successive schedular rating retains its attributes. Thus, applying King's logic here allows § 3.321(b)(1) to fill that gap. Any failure to consider symptoms not contemplated by a claimant's disability rating is contrary to law and potentially deprives a veteran of compensation.

Id. at *6.

The Court turned its holding to the case at hand and determined

Because the rating criteria for diabetes are successive, see Camacho, 21 Vet.App. 360, the appellant's 40% disability rating solely contemplates his insulin use, his restricted diet, and the regulation of his activities. See 38 C.F.R. § 4.119, DC 7913. The appellant requires multiple daily injections of insulin as well as an insulin pump, diabetic management that is contemplated by a 100% disability rating. R. at 234, see C.F.R. § 4.119, DC 7913.  The appellant has testified that he has had ketoacidosis and hypoglycemic episodes as well as diabetic complications…. These episodes are potentially relevant to a 60% disability rating. See id. The Board failed to explain how a 40% schedular rating adequately compensates the appellant's service-connected disability.
***

Remand is required for the Board to provide an adequate statement of reasons or bases for its extraschedular consideration.

Id. at *6-7.

Judge Toth filed a dissent in which he argued

VA rules generally provide that, even if a disability does not manifest all the criteria in a specific rating within a given DC, the higher rating will be assigned if a veteran's disability picture more nearly approximates the criteria in that rating than in the lower rating, because real-life disabilities may not be exactly as DCs describe them. See Tatum v. Shinseki, 23 Vet.App. 152, 155-57 (2009). These rules, however, don't apply in the case of a cumulative DC such as 7913.  See Middleton v. Shinseki, 727 F.3d 1172, 1178 (Fed. Cir. 2013). That's because the "enumerated elements" of a rating in DC 7913 "are part of a structured scheme of specific, successive, cumulative criteria for establishing a disability rating" where a higher rating includes the same criteria as a lower rating plus distinct new criteria. Id. In other words, DC 7913 is crafted holistically: Each rating must be read with an eye towards the ratings above and below it. So, even if the 40% rating doesn't explicitly list a criterion—for example, episodes of ketoacidosis requiring visits to a diabetic care provider—it can't be said that the rating fails to contemplate that criterion.

Id. at *8.

It seems likely the VA will appeal this case to the Federal Circuit.  However, it is helpful at present for establishing that even in successive diagnostic code situations, referral for extraschedular consideration might be required.

Decision by Judge Greenberg and jointed by Judge Allen.  Dissent by Judge Toth.

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Withers: TDIU and Sedentary Work

Withers v. Wilkie, Case Number 16-1543, decided August 10, 2018 address Sedenary Work in the context of a TDIU claim.

This case involved a Vietnam combat veteran who was service connected for gunshot wound residuals in his arm and leg, lower back problems and PTSD.  He had operated a financial services and investment firm for some time, but began to miss works due to physical complications and PTSD related problems.  He ultimately stopped his employment shortly thereafter. 

His VA examinations revealed PTSD complaints of depression and fatigue, as well as difficulty interacting with people and handling stress. With respect to his back disability, Mr. Withers reported that he could walk slowly for only 10 to 15 minutes and avoided heavy lifting; the examiner found objective evidence of pain and limitation of motion of the lumbosacral spine but no additional loss of motion, fatigue, incoordination, or lack of endurance upon repetitive use. The veteran endorsed similar limitations with respect to his right leg disabilities, and that same examiner found evidence of residual pain and some limitation of motion in the right knee, as well as limited right ankle motion.  Id. at *2-3.  Meanwhile, the Social Security Administration determined the veteran had “the residual functional capacity to perform sedentary work as defined in 20 [C.F.R. §] 404.1567(a) except that the claimant is unable to perform competitive work on a full-time basis.”  Id. at *3.

A VA examiner noted significant limitations and “concluded that the veteran was ‘unable to do any kind of strenuous or sustained work’ but should ‘be able to do light work or sedentary work.’  He adhered to that conclusion the following year but advised that he couldn't offer an opinion on the effects of PTSD.”  Id.

The Board denied TDIU reasoning no examiner found the veteran’s service connected disabilities precluded sedentary employment and his college education and history of management suggested he had the training to perform sedentary employment.  Id. at *4.

The Court noted the use of the term sedentary work is not found in any relevant VA statute or regulation, but is frequently arises in the context of TDIU claims.  It then noted:

VA has never forwarded, nor has this Court developed through precedential decisions, an interpretation of § 4.16 that accords dispositive significance to a veteran's ability to perform sedentary work. This sets up the central tension in this case: the parties urge the Court to define a term that has no independent legal significance. For this reason, to define the phrase would put the cart before the proverbial horse. The threshold question in this context is not what "sedentary employment" means, but what connection sedentary employment bears to the requirements of § 4.16.

Id. at *6.

The Secretary sought to have the term sedentary work defined by its ordinary usage, but the Court refused to go along and instead found:

We cannot settle the meaning of "sedentary work" as used by different VA examiners in this case or provide guidance in future cases by resort to the ordinary-meaning canon. What we can say, however, is that, where a veteran's ability to perform sedentary work is a basis for the Board's decision, the meaning of sedentary work must be determined from the particulars of the medical opinion in which it is used. That is, the Board must explain this meaning—to the extent that it is not apparent from the Board's overall discussion of the opinion—as well as how the concept of sedentary work factors into the veteran's overall disability picture and vocational history, and the veteran's ability to secure or follow a substantially gainful occupation.

This approach accords with how the Board generally must assess evidence and adjudicate

the issue of TDIU.  We have repeatedly reiterated that a medical opinion must be read and interpreted as a whole, e.g., Gill v. Shinseki, 26 Vet.App. 386, 391 (2013), so when an examiner uses the term sedentary work, the surrounding medical opinion may give the term its content, based on the specific functional limitations, if any, found by the examiner. When, as here, an examiner describes certain types of functional limitations and still opines that a veteran is capable of sedentary work, the Board may need to determine whether a common-sense inference can be drawn that the concept of sedentary work, as understood by the examiner, does not encompass the physical or mental acts that the veteran is incapable of performing.

Id. at *8-9.

The Court then explained

Likewise, although §4.16 does not make the concept of sedentary work an explicit TDIU factor, if the Board bases its denial of TDIU in part on the conclusion that a veteran is capable of sedentary work, then it must explain how it interprets that concept in the context of that case. This includes, where necessary, an explanation of how a finding that a veteran is capable of sedentary employment squares with the veteran's educational and occupational history. See Pederson, 27 Vet.App. at 287. In other words, the meaning of "sedentary work" is arrived at inductively with the facts cited providing the context for understanding how the observation applies in a given situation. This allows for

individualized assessment; absent such factual context however, the phrase can be regarded as conclusory and meaningless on its own.

Id. * 9.

The Court also determined:

VA examiners opined that Mr. Withers was capable of sedentary work. However, they also remarked that service connected physical disabilities interfered to some extent with his ability to stand, walk, lift, and carry.  It is not clear from the current decision whether the Board arrived at its own conclusion regarding the veteran's ability to perform sedentary work or simply adopted the examiners' conclusions. As noted above, the Board is not obliged to consider the standards used by SSA or the DOT, but it must sufficiently explain how it interpreted the examiners' use of the term and how the concept of sedentary work figures into a veteran's overall disability picture and vocational history.

Further compromising the Board's discussion of the sedentary employment issue is the

failure to mention Mr. Withers's psychiatric disability.

Id. at *10-11.

The veteran sought for a judicial determination defining sedentary work the same as a Department of Labor publication.  The Court refused, reasoning that sedentary work is absent from Section 4.16 and thus not necessarily a part of a proper TDIU analysis.  Id. at *10.

The Court expressed sympathy that the decision did not offer a clear cut resolution by refusing to define the term sedentary work.  Instead, it noted the definition of sedentary work must be discerned on a case by cases basis from the medical and lay evidence presented and in light of the veteran’s education, training, and work history.

The Court also explicitly stated the Secretary could use notice and comment rule making to amend Section 4.16 to include and define the term sedentary work or veterans and veteran advocates could petition the VA for rulemaking to do the same.  However, I suspect the VA and advocates will let the matter alone.  My reading is that a grant or denial of TDIU should consider all evidence, including the veteran’s work history and education.  In other words, a holistic approach to consideration of TDIU (as required) does not specifically need the term sedentary work to be defined.

This is an early decision by Judge Toth and frankly demonstrates a willingness to refuse both the Secretary and veteran advocates what they want.  It likely reveals a judicial temperament that is tough but clear minded and deferential to the language of the law.

The decision was by Judge Toth and joined in by Chief Judge Davis and Judge Meredith.

Williams: Erectile Dysfunction and the Meaning of Deformity

Williams v. Wilkie, Case Number 16-3252, decided August 7, 2018 considers whether the meaning of “deformity” in the context of a rating for erectile dysfunction.

This case involved a veteran who was service connected for prostate cancer secondary to herbicide exposure from Vietnam.  He had to undergo a radical prostatectomy which resulted in severe erectile dysfunction.  He was service connected for the erectile dysfunction but given a non-compensable rating (i.e., 0%). 

The Board denied a rating of 20% pursuant to DC 7522 which resulted in a 2015 remand by the Court requiring a medical opinion as to whether the veteran had an internal deformity.  A subsequent examination found no deformity but also stated “[t]here are no

specific tests for ‘internal deformity of the penis’ that would show evidence of nerve damage. Basically, there is no evidence of deformity of the penis at all.  Deformity would occur in diseases such as Peyronie's disease, which he does not  have. Nerve damage does not cause deformities generally, but rather loss of function.”  Id. at *2.

The Board determined in its decision

that the Veterans Benefits Administration “has indicated that a compensable rating under [DC] 7522 is not warranted in the absence of deformity, and instructs that such deformity be 'evident.'" R. at 8 (quoting VA Adjudication Procedures Manual (M21-1), pt.  II.iv.4.I.2.a). The Board concluded that "no deformity was found at any point pertinent to this appeal, to include examinations conducted in January 2008, April 2009, January 2012, and December 2015."

Additionally, the Board found that an award of a compensable rating for "[ED] alone, regardless of the severity," under DC 7522 would constitute impermissible pyramiding because the appellant was already in receipt of SMC benefits for the loss of use of a creative organ. R. at 11 (citing 38 C.F.R. § 4.14 (2017)).

Id. at *3.

First, the Court rejected the Board’s conclusion that benefits under DC 5722 in addition to SMC for loss of a creative organ would constitute impermissible pyramiding.  Id. at *4.  It noted “VA's regulations state that a veteran is not barred from receiving SMC under 38 U.S.C. § 1114(k) in addition to schedular compensation for a disability. See 38 C.F.R. § 3.350(a) (2018).”  Id.

Second, the Court stated, “This case turns on the proper definition of "deformity," in particular whether a deformity under DC 7522 must be external.” Id. at *5.  The Court then noted that the term deformity is not expressly defined by the VA and so determined it should use the ordinary meaning of the word.  It then stated:

A "deformity" is a "distortion of any part or general disfigurement of the body." DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 478 (32d ed. 2012) [hereinafter DORLAND'S].  DORLAND'S further defines various types of internal and external deformities. See id. The Court therefore holds that "deformity" under DC 7522 means a distortion of the penis, either internal or external.

Id. at *6.

The Court then determined remand was necessary for the Board to apply the ordinary meaning of “deformity,” in other words, to determine whether severed nerves caused by a radical prostatectomy meet the definition of penile deformity.  Id.

This is a powerful case as many veterans are secondarily service connected for ED and receiving SMC.  This case opens the door to a higher rating.

I would expect the VA to take two actions in response.  First, change the manual language to try to address the deformity issue.  And, second, try to change the regulations to clarify that this fact pattern would constitute pyramiding.  The first change will be difficult to challenge.  But, the second change is more time consuming for the VA.  Until such time as those changes, I would continue to hammer away at these claims and even after the changes their might be room to argue for a separate rating under DC 7522 for ED.

The decision was by Judge Greenberg and joined in by Judges Schoelen and Pietsch.

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.

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