Crews: Blue Water Act and Effective Dates

Crews v. McDonough, Case Number 21-0226, decided April 17, 2023 involves the impact of the Blue Water Act on an effective date.

The veteran sought service connection for ischemic heart disease in 2013 asserting the condition began in 1991 and was caused by Agent Orange.  The claim was initially denied.  In that denial, stated the evidence does not show an event, disease, or injury in service; service treatment records did not reflect complaints, treatment or diagnosis of the condition; and the condition did not develop to a compensable degree within he presumptive period of discharge.  The RO also stated there are some presumptive conditions including IHD, but denied because “the evidence does not show a diagnosis of a condition for which VA has found a positive association to herbicide exposure.” 

The veteran submitted a supplemental claim in 2019 and stated he served off the coast of Vietnam and went ashore.  Evidence developed showed he had undergone a coronary artery bypass graft in 1991.  As a result of this supplemental claim, the RO granted benefits.  However, the RO also explained that while service connection was granted due to a presumption, the veteran’s original claim was denied because of no evidence of a diagnosis and as a result an earlier effective date cannot be applied.

The veteran argued his 2013 claim had been denied "only due to the fact that Agent Orange exposure at that time was interpreted to mean 'on land/inland waterway exposure'" and arguing that his effective date should be retroactive to the date of that claim.  The RO effectively denied explaining:

“To allow entitlement to an earlier effective date based on a previously denied claim, the [Blue Water Act] requires that you were denied because a diagnosed presumptive disability was of record[ but] exposure to herbicide was not conceded. As you were denied because there was no evidence of a diagnosed presumptive disability, not because herbicide exposure was[ not] conceded, entitlement to an earlier effective date prior to September 5, 2018[,] is denied.”  Id. at *3.

The Board also denied and in part explained (1) the prior denial was premised on a lack of a diagnosis and (2) the denial was premised on a prior more restrictive definition of service in Vietnam; and (3) private treatment records showing CAD were not associated with the claims file in 2013.

Before the Court, the veteran argued “in determining that the retroactive effective date provision in the Blue Water Act did not apply, the Board overlooked that the RO in July 2014 denied his claim "for multiple reasons, and not only because of a lack of a current disability.”  Id. at *8.   The veteran next argued the plain language of the Blue Water Act makes clear that for the effective date exception to apply the only requirement for the prior denial is the claim was denied by reason of the claim not establishing the disease was incurred in or aggravated by the service of the veteran. 

The Court noted the denial of a retroactive effective date was premised on its conclusion that the prior claim was denied "on the basis that the evidence of record did not show that he had a current disability" and, secondarily, on its determination that the prior denial was not based on a more restrictive definition of service in Vietnam.”  Id. at *14. 

The Court began it analysis by noting “the Blue Water Act permits the effective date for an award of benefits under that Act to be based on "the date on which [an] individual filed [a] prior claim" if, as pertinent here, the individual "is a veteran . . . who meets the following criteria": (i) The veteran . . . submitted a claim for disability compensation on or after September 25, 1985, and before January 1, 2020, for a disease covered by this section, and the claim was denied by reason of the claim not establishing that the disease was incurred or aggravated by the service of the veteran.  (ii) The veteran . . . submits a claim for disability compensation on or after January 1, 2020, for the same condition covered by the prior claim under clause (i), and the claim is approved pursuant to this section.

Id. at *16-17.

The Court then noted based on the language of the Act, “after identifying when the prior claim was filed, the singular focus is the condition for which the claimant sought benefits.  Importantly, for purposes of the arguments before the Court, nothing in subsection 1116A(c)(2)(B)(i) mandates that the prior claim for benefits must have been based on a particular theory, such as direct or presumptive service connection, nor does it require that the veteran have alleged herbicide exposure in the prior claim.”

Id. at *18.

The Court then analyzed the statute’s phrase “by reason of” and stated: “In sum, the best reading of "by reason of" is that it does not signal the only cause for the prior denial. Taking all this into account, the language thus far indicates that the veteran must have previously sought benefits for a condition that is now considered presumptively related to herbicide exposure, and VA must have denied the claim, at a minimum, because the claimant did "not establish[]" that "the disease was incurred or aggravated by . . . service.””  Id. at *21-22.

The Court also noted as to the prior denial “More importantly, as explained above, section 1116A does not require the veteran to have previously sought presumptive service connection or even to have alleged herbicide exposure; rather, the only requirement is that the veteran sought benefits for a condition that is now considered presumptively related to herbicide exposure.”  Id. at *23.  It further explained “although subsection (B)(i) identifies at least one required reason for the prior denial, it does not identify the sole cause and thus leaves open the possibility that other grounds were present. In sum, the specific criteria that Congress enumerated for a retroactive effective date simply do not include a prohibition on the prior denial having been based in part on the lack of evidence of a current disability.”  Id. at *24.

To summarize all, the Court stated: “Based on the foregoing, the Court concludes that the plain language of the Blue Water Act reflects that Congress established five exclusive criteria for a veteran to receive a retroactive effective date for an award of benefits under that Act. As pertinent here, the veteran must have previously filed a claim for a condition that is now considered presumptively related to herbicide exposure, and VA must have denied that claim, at a minimum, because the appellant did not establish that the claimed disease was "incurred or aggravated by . . . service." However, those criteria do not prohibit a retroactive effective date when the prior denial was based in part on the lack of evidence of a current disability, and they do not include a requirement that the denial was predicated on the pre-Procopio understanding of service in the Republic of Vietnam.”

Id. at *25. 

The Court ended up remanding to the Board for a new decision in light of the case. 

This is an impactful case that potentially helps many Blue Water Vietnam Veteran’s get an earlier effective where they had previously be denied for a now presumptive condition.

The case did a dissent by Judge Falvey where he argued Congress did not allow an earlier effective date in case like this because he read the term “by reason of the claim not establishing that the disease was incurred or aggravated by the service of the veteran” as narrowly limiting the exception to exclude those veterans who were denied at least in part because they did not have a disability.  Interestingly, Judge Jaquith so disliked Judge Falvey’s dissent and the way the Board had framed the case that he took the time to write a powerful concurrence.

Decision by Judge Meredith.  Concurrence by Judge Jaquith.  Dissent by Judge Falvey. 

While the VA does not as a matter of course appeal decisions to the Federal Circuit, I would anticipate an appeal in this case.

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Hairston: Non-Service Connected Pension and a Spouse’s Income

Hairston v. McDonough, Case Number 20-4692, decided April 20, 2023 involves whether the VA can consider a spouse’s income when calculating income for the purposes of a Non-Service Connected Pension.  The Court answered yes.

The veteran argued the spouse’s income should not be counted toward the veteran annual income for purposes of a non-service connected pension and focused on the authorizing statute.  The veteran argued (1) the Board misunderstood or misapplied § 3.23(b) by including his wife's income in its calculation of his countable income; (2) § 3.23(d)(4), which defines a veteran's annual income, is invalid because it does not comport with its authorizing statute, 38 U.S.C. § 1521, and (3) §§ 3.274 and 3.275, which impose a net worth limit on pension eligibility, superseded § 3.23's pension rate reduction scheme such that both the net worth and income limits cannot be applied to a single veteran.

The Court found “38 U.S.C. § 1521(c) clearly requires that the payable pension rate be reduced by a spouse's income because it is countable as part of a veteran's annual income. Because § 3.23(d)(4) simply makes this clear statutory mandate pellucid, it is a valid regulation and fully applicable to Mr. Hairston's pension claim.”  Id. at *7.  The Court also found §§ 3.23, 3.274, and 3.275 operate together to implement the pension program Congress established, and the Board didn't err in applying the relevant aspects of those rules here.”  Id. at *9. 

Decision by Judge Toth and joined in by Judges Pietsch and Meredith.

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Hatfield: Informed Consent and CUE

Hatfield v. McDonough, Case Number 21-5125, decided March 28, 2023 involves a claim for an earlier effective date based on CUE in a prior Board hearing.

This is a continuation of a precedential decision where in “Hatfield I, we held that the reasonable person exception to informed consent–which allows defects in informed consent that are minor and immaterial if a reasonable person in similar circumstances would have proceeded with treatment even if informed of a foreseeable risk–does not apply when no consent is obtained at all.”  Id. at *1.

After the decision, the veteran argued for CUE in a prior Board denial and that the result should be an earlier effective date.  The Court decided:

In a nutshell, the language of the statute then–as today–does not contain any reference to informed consent, and the legislative history of the statute reinforces the conclusion that the failure to obtain a patient's informed consent did not support compensation under the provision. Moreover, the regulation implementing section 351 underscores the point that a lack of informed consent did not undebatably provide a basis for compensation. Indeed, the concept of informed consent forming a basis upon which compensation was warranted does not appear in relevant regulations until the mid-1990s. Finally, we are not persuaded by appellant's argument that the common law of medical malpractice supports a finding that the only reasonable interpretation of section 351 in 1980 was that the statute provided for an award of compensation where VA did not obtain a patient's informed consent. The bottom line is that appellant fails to show that the Board's June 2021 decision finding no CUE in the October 1980 Board decision was arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. Therefore, we will affirm.”

Id. at 2-3.

The Court further explained:

“In sum, and leaving aside for the moment VA's implementing regulations, to which we will turn next, appellant's CUE allegations fail to establish that the only reasonable interpretation of section 351 in 1980 included a failure to obtain a patient's informed consent before treatment or other care as a ground for the award of compensation. It certainly is not undebatable that informed consent was a ground for section 351 compensation under the law in effect at the time of the 1980 Board decision as is required to establish CUE.96 And the 2021 Board's conclusion that appellant's allegation of error did not constitute CUE is not arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.”

Id. at 18.

The Court summarized by stating:

“Section 351 in 1980 did not contain any reference to informed consent, nor did it

incorporate the informed-consent provisions found at section 4131 and § 17.34. Appellant fails to point to any authority indicating that a failure to obtain a patient's informed consent supported an award of compensation under section 351 in October 1980. She points to nothing to show that it is undebatable that a failure to obtain informed consent was a basis upon which the October 1980 Board could award compensation under section 351. Therefore, the Board decision on appeal finding no CUE in the October 1980 decision was not arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.”

Id. at page 23-24.

Decision by Judge Allen and joined in by Judges Meredith and Falvey.

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Edwards: How the AMA Complicated Board Hearings

Edwards v. McDonough, Case Number 20-7244, decided March 20, 2023 involved a NOD where the veteran elected direct review, but attached evidence to the form.  The Court determined the Board should have clarified which review docket the veteran intended to choose and thus the Court set aside the decision and required readjudication.

The veteran submitted a NOD marked direct review, but submitted a statement with the NOD detailing the auto accident which led to his neck injury.  The Board issued a decision stating it was limiting its review to the evidence considered by the RO, but also included the veteran’s statement in the list of evidence it considered.

The veteran argued the NOD and statements liberally read together created a reasonable uncertainty as to what Board review option he intended to elect, which required the Board to ask to clarify pursuant to 38 CFR Section 20.202(f).  The Secretary argued the NOD was clear on its face.

The Court agreed:

“with Mr. Edwards that, when read together, his VA Form 10182 docket election and its attached statement were unclear—if not wholly contradictory—concerning the docket choice that Mr. Edwards intended, and the Board was required to clarify his intent. Mr.

Edwards elected the direct review docket, with the printed restriction that the veteran  agrees that he "will not submit any additional evidence in support of [his] appeal." Simultaneously, Mr. Edwards attached a statement to his form that provided new  information regarding the circumstances of his in-service accident, his symptoms, and the medical care he sought and received to treat those symptoms. Despite the Secretary's protestations to the contrary, it is simply not possible to reconcile Mr. Edwards's submission of this new evidence with his chosen election. Indeed, it is perfectly clear to the Court that Mr. Edwards's scenario gave rise to the exact type of confusion or uncertainty suggested in the regulation's title.”

Id. at *7.

It further explained:

“To be clear, we do not speculate as to whether other scenarios might implicate § 20.202(f) and VA's obligation to clarify a claimant's NOD docket election. Accordingly, we do not address the situation where the veteran submits additional statements or evidence after submitting the VA Form 10182, a scenario referenced by the Secretary at oral argument. We need not address these questions because here Mr. Edwards's VA Form 10182 and attached statement were part of the same submission and were explicitly intended to be contemplated together, and his attached statement created uncertainty as to which Board review docket he intended to elect. We conclude only that the § 20.202(f) duty to clarify the veteran's intent attached in this case because the VA Form 10182 submission as a whole, consisting of the form itself and the attached statement, raised uncertainty that the Board did not acknowledge or attempt to resolve consistent with VA

regulation.”

Id. at *9.

            The Secretary argued that any error was harmless.  The Court rejected such argument saying

“Contrary to the Secretary's argument that Mr. Edwards received the benefit of the evidence submission lane, it is clear that the Board failed to account for Mr. Edwards's new evidence in its analysis, including his statement that he sought neck and back treatment with a chiropractor and that he had seen the chiropractor "over 100 times throughout the years."  

 

Although the Board is presumed to have considered all evidence of record when making its decision, Newhouse v. Nicholson, 497 F.3d 1298, 1302 (Fed. Cir. 2007), that presumption does not relieve the Board of its independent obligation to address potentially favorable, material evidence of record and to provide reasons or bases for its weighing of that evidence , Caluza v. Brown, 7 Vet.App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). Because Mr. Edwards's statement attached to his VA Form 10182 provided, among other things, additional detailregarding treatment sought for his neck disability and potential continuity of symptoms since service, it was potentially favorable, material evidence that the Board was required to address.”

Id. at *11.

This case serves to show the complicated nature of the AMA and demonstrates a commitment by the Veteran’s Court to look at it through the prism of assisting the veteran.

Decision by Chief Judge Bartley and joined in by Judges Toth and Laurer.

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Spicer: Secondary Service Connection Explained Broadly

Spicer v. McDonough, Case Number 2022-1239, was decided March 8, 2023 and involves a claim for service connection for a leg disability secondary to service connected leukemia.    

The veteran sought service connection for a leg disability, weakness and instability in his knees due to arthritis.  The theory was that his service connected leukemia did not actually cause or aggravate his knee arthritis, but treatment for his leukemia prevent him from undergoing surgery for his knees.  The veteran specifically noted a 2014 knee replacement surgery had been cancelled because chemotherapy for his leukemia had depressed his red blood cell level and it was unlikely his count would ever increase enough to allow the surgery.

The VA and Veterans Court denied service connection, with the Veterans Court concluding:

“Mr. Spicer's knee arthritis did not, in any reasonable sense of the phrase, "result from" his service-connected cancer or the chemotherapy provided to treat it. There is no contention on appeal that they caused the arthritis or that they made it worse. The current state of his knee functionality is not a consequence or effect of these service-related agents. At most, they interfered with his attempts through affirmative intervention to alter the arthritis's natural progress. Unless we can say that the current state of his arthritis would not exist in the absence of his cancer or chemotherapy, however, there is no actual but-for causation. And but-for causation is what Congress required in section 1110.”

Judge Allen at the Veterans Court dissented arguing:

“In my view, however, the statute sets out a much broader, causation-based standard. And because that is so, I also believe that VA's regulation implementing section 1110, 38 C.F.R. § 3.310(b), improperly limits that language in a way Congress did not intend. Therefore, I would hold that the regulation is not a permissible construction of section 1110.”

He further explained:

“the phrase "resulting from" in section 1110 provides for compensation when a disability is the consequence or effect of military service. Stated another way, the statute's language merely requires that one thing flow from another, namely that a disability flow from military service. Congress imposed no other limitations in connection with establishing service connection beyond this broad, causation-based principle that one thing be a consequence of another.”

The Federal Circuit heard the case and agreed with Judge Allen’s dissent, explaining:

“The dispute is thus narrow: Whether the but-for causation requirement in § 1110 is limited, as the government contends, to bringing something about or the onset or etiological link, or whether, as Mr. Spicer contends, that language may encompass situations where the service connected disease or injury impedes treatment of a disability. For the reasons below, we adopt the latter view.”

Id. at *6.

The Court noted its analysis begins and ends with Section 1110 and noted Congress could have drafted a more narrow causation standard as it had done in another statute.  The Court explained:

“Put together, § 1110 plainly requires compensation when a service-connected disease or injury is a but-for cause of a present-day disability. This broad language applies to the natural progression of a condition not caused by a service-connected injury or disease, but that nonetheless would have been less severe were it not for the serviceconnected disability. Stated another way, § 1110 provides for compensation for a worsening of functionality—whether through an inability to treat or a more direct, etiological cause. Nothing in the statute limits § 1110 to onset or etiological causes of a worsening in functionality.”

Id. at *8.

When I wrote my initial summary on this case two years ago, I wrote: “This is an important case that effectively tested the limits of secondary service connection and found it at what I believe is too narrow a limit.  Judge Allen’s dissent is powerful. I would expect an appeal to the Federal Circuit and a possible reversal.”  It would appear that Judge Allen and I were correct.

Decision by Judge Stoll and joined by Judges Taranto and Chen.

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Costello: Certification to the Board Notice is Not Defective

Costello v. McDonough, Case Number 20-2314, decided February 23, 2023 involved whether a notice stating an appeal had been certified to the Board and the veteran had 90 days or the date of decision to submit new evidence or argument was unconstitutional.

The veteran’s claim was appealed to the Board and resulted in a notice stating the veteran had had 90 days or until the Board issued a decision, whichever came first, to submit additional argument or evidence, or to request a change in representation.  29 days after the letter, the Board made a decision denying the issues sought.  The Board noted the appeal had been advanced on the docket in light of the veteran’s advanced age.

The veteran argued that the section allowing for the letter, Section 20.305(a), was facially invalid as it denied the claimant due process of law.  Specifically, “the language "or up to and including the date the appellate decision is promulgated by the Board, whichever comes first" is facially invalid and violates the Due Process Clause of the U.S. Constitution because it offers only illusory notice that is fundamentally unfair and does not afford claimants before the Board the right to be heard in a meaningful manner. Therefore, he appears to argue that all claimants are denied procedural due process when the Board issues a decision less than 90 days after certification.”  Id. at *3. 

The Court confined its analysis to procedural due rights and not substantive due rights as that was what was argued by the veteran.  The Court conceded potentially a veteran could be deprived his due rights if the Board promulgated a decision on the same day the certification notice was sent, then such an action, absent waiver, could potentially deprive a claimant notice and opportunity to be heard by the Board.  Id. at *11.  The Court also noted the veteran “does not allege that the Board's notice letter was misleading or that he did not receive it before the Board adjudicated his claims.”  Id. at *13.  The Court also noted “Nor did the appellant file a motion to vacate the Board's decision under § 20.1000(a) alleging that he was deprived of due process. Instead, the appellant consistently argues only that § 20.1305 is facially invalid.”  Id. at *14.

Ultimately, the Court determined “The appellant does not clear the high bar to show that § 20.1305(a) facially deprives a legacy claimant of the claimant's constitutional right to notice and the opportunity to respond if the claimant's appeal is decided less than 90 days after notice that it is initially certified to the Board.”  Id. at *16.

This case serves to remind veterans and advocates that the 90 day notice letter should not serve as the time to start writing a memorandum.  In most cases, I submit my brief and any additional evidence at the same time I submit a NOD or Form 9 so as to avoid this problem.

Decision by Judge Pietsch and joined in by judges Meredith and Laurer.

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Mattox: Balancing Competing Medical Opinions

Mattox v. McDonough, Case Number 2021-2175, decided by the Federal Circuit Court of Appeals on January 9, 2023 involved what the Board should do when there are two competing medical opinions and resolved that the Board did not err in looking both at the quantity and quality of the opinions in making a decision.

The veteran argued “because the record (as it pertained to whether he had service-connected PTSD) contained one physical piece of evidence pointing each way (the contradictory opinions of his private doctor and the VA examiner), it stood numerically even on the issue of his condition. Under these circumstances, Mr. Mattox urged, the VA was required by law to give him the benefit of the doubt and concede that he suffered from service-connected PTSD.”  Id. at *7. 

The Federal Circuit reiterated that the Board should assign probative value to the evidence and stated: “In short, when conducting a benefit-of-the-doubt-rule analysis, as in other settings, the Board is required to assign probative value to the evidence.”

The Federal Circuit also considered whether the Board applied the proper standard saying “in Mr. Mattox’s case, the Board followed the proper approach of assigning probative value to the relevant evidence and determining whether “the evidence persuasively favor[ed] one side or the other.” The Board’s erroneous reference to “a preponderance of the evidence” did not affect the correctness of its overall analysis.”  Id. at *17.

Essentially the Federal Circuit rejected a theory that a benefit of the doubt analysis requires a mathematical calculation of pro versus con evidence and then a grant if they are numerically equal.  Instead, they focus on the persuasiveness or quality of the evidence.  Of course, this quality standard will only lead to more disputes over decisions, but fortunately for the Federal Circuit their refusal to consider anything but legal disputes will effectively prevent those decisions from ever being considered by the Federal Circuit.  The Veterans Court’s deferential review standard also means that whatever the VA says will likely by upheld with little recourse except filing a supplemental claim with new evidence, and thus the hamster wheel is perpetuated by the Courts.

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