Event: 2017 Veterans Clinic Symposium

Nov. 10, 2017 - University of Missouri School of Law, Columbia, MO

Modern Warfare: Challenges Arising from the Gulf War and the War on Terror

ABK will present on "Environmental Challenges: Burn Pits."

LINK TO PROGRAM: http://law.missouri.edu/faculty/symposia/veterans-clinic-symposium/

Event: NOVA 2017 Fall Conference

Oct. 13, 2017 - St. Petersburg, FL

nova 2017 Fall Conference

ABK presentation - Analyzing a BVA Decision: Identifying Issues and Making Decisions on How to Proceed

LINK TO PROGRAM: https://vetadvocates.org/2017-fall-conference/ 

Gazelle: SPECIAL MONTHLY COMPENSATION; COMBINED RATINGS

Gazelle v. Shulkin, 868 F.3d 1006 (Fed. Cir., Aug. 22, 2017)

HELD: The Federal Circuit affirmed the CAVC’s decision in Gazelle v. McDonald, 27 Vet.App. 461 (2016), and held that 38 U.S.C. § 1114(s)(1) “is clear and unambiguous in its direction to calculate special monthly compensation using the combined ratings table.

SUMMARY: Mr. Gazelle was service connected for PTSD, rated 100%, and or multiple disabilities that combined to a 50% disability rating under VA’s combined ratings table, 38 C.F.R. § 4.25. If his disability ratings for these conditions were added, as opposed to combined, the disability rating for his physical conditions would equal 60%.

Under 38 U.S.C. § 1114(s)(1), a veteran is entitled to a higher rate of compensation – special monthly compensation (SMC) – if s/he has “a service-connected disability rated as total” and “additional service-connected disability or disabilities independently ratable at [sixty] percent or more.” Because Mr. Gazelle’s additional disabilities did not combine to a 60% rating, the Board denied SMC.

The Veterans Court affirmed the Board’s denial, holding that “consistent with the plain meaning of subsection 1114(s), the Board appropriately applied the combined ratings table to determine eligibility for SMC benefits.”

Mr. Gazelle appealed to the Federal Circuit, challenging the CAVC’s interpretation of 38 U.S.C. § 1114(s). The Federal Circuit examined the language of the statute, the legislative history, and the placement of this provision in the statutory scheme, and affirmed the CAVC’s decision, holding that “§ 1114(s)(1) unambiguously requires the veteran’s additional disabilities be rated at least at sixty percent based upon the combined ratings table and not the addition of individual disability ratings.” (emphasis in original).

FULL DECISION

Garcia: CLAIMANT MUST RAISE ALL CUE ARGUMENTS RELATED TO CLAIM DECIDED BY BOARD IN THE INITIAL CUE MOTION

Garcia v. Shulkin, 29 Vet.App. 47 (Aug. 9, 2017)

HELD: A claimant must raise all possible errors on a claim in a final Board decision when filing the initial motion for revision on the basis of clear and unmistakable error (CUE) – and this rule applies even when the Court remands that initial CUE challenge. Where the Board has determined that there was no CUE in a prior claim, the Court lacks jurisdiction to remand for the Board to consider any new CUE allegations.

SUMMARY: Veteran Teofilo Garcia was denied service connection for a psychiatric condition in 2003. He appealed to the Board and, after a remand for additional development including a new medical opinion, the Board denied his claim in 2006. He appealed that decision to the Court, through his current counsel, but withdrew the appeal in 2007.

In July 2008, Mr. Garcia, through the same attorney, filed a motion to revise the Board’s 2006 decision on the basis of CUE, arguing that revision was required because (1) the Board did not afford sufficient weight to the favorable medical evidence of record; (2) he was entitled to “a greater duty to assist” since his service records had been destroyed; and (3) the Board should have given him the benefit of the doubt.

The Board denied the motion in April 2010. In July 2010, Mr. Garcia requested reconsideration of that decision, asserting that the Board failed to consider Mr. Garcia’s wife’s hearing testimony. In August 2010, the Board denied the motion to reconsider, finding that its 2006 decision specifically considered Mrs. Garcia’s testimony.

Mr. Garcia appealed to the Court of Appeals for Veterans Claims. In December 2011, the Court affirmed the Board’s determination that there was no CUE in the 2006 decision based on the three arguments he had raised. However, the Court also determined that the Board was required to address Mr. Garcia’s fourth allegation of CUE regarding his wife’s hearing testimony, and remanded for the Board to provide an adequate explanation for its determination that it had properly considered the hearing testimony in its 2006 decision.

The Court also noted Mr. Garcia’s arguments regarding what appeared to be “inappropriate influence” exerted on the VA examiner by the rating specialist, but found that Mr. Garcia had not asserted that this was a due process violation.

Shortly after the Court’s decision, Mr. Garcia died, and his wife was substituted in his appeal. In October 2012, the Board addressed the issues in the Court’s remand and continued to deny the appeal. Mrs. Garcia filed a motion to vacate and reconsider, raising the constitutional due process argument to the Board for the first time. The Board denied the motion and Mrs. Garcia appealed to the Court.

In October 2014, the Court again remanded the issue of CUE regarding the Board’s consideration of Mrs. Garcia’s hearing testimony. The Court also dismissed the constitutional due process allegation because it had not been presented to the Board in the initial CUE motion and the Court thus lacked jurisdiction to consider it.

In May 2015, the Board again determined that there was no CUE in the 2006 decision. Mrs. Garcia again appealed to the Court.

In the present decision, the Court reiterated that “an appellant has only one opportunity to raise allegations of CUE for each claim decided in a Board decision, and any subsequent attempt to raise a CUE challenge to the same claim contained in a Board decision must be dismissed with prejudice,” citing Hillyard v. Shinseki, 24 Vet.App. 343 (2011). The issue in the present appeal was “whether a new CUE challenge may be raised where the Court remands the initial CUE challenge.” The Court held that Hillyard applied to this situation, stating that the “rule established in Hillyard rightly requires that all possible errors in a final Board decision be raised at the time a motion for revision of that Board decision based on CUE is filed.”

The Court concluded that in 2011 and 2014 it had “improperly entertained the fourth allegation of CUE regarding Mrs. Garcia’s testimony,” and that it should have dismissed the appeal of the Board’s decision on that fourth allegation. Because it had no jurisdiction to address this issue, the Court dismissed this portion of the appeal.

Similarly, the Court recognized that it lacked jurisdiction over the due process allegation, since it was not raised in Mr. Garcia’s initial CUE motion. The Court rejected the argument that “due process violations are special and may be raised at any time, regardless of the finality of the underlying decision,” citing Cook v. Principi, 318 F.3d 1334, 1339 (Fed. Cir. 2002) (en banc), for the proposition that there are only two exceptions to finality. The Court acknowledged a footnote in Cook that appeared to be on point with the present issue, and adopted its reasoning in holding that “even an allegation of a due process violation may not vitiate the finality of a decision.” The Court thus dismissed the due process allegation.

FULL DECISION

Manzanares: INCREASED-RATING CLAIM DOES NOT AUTOMATICALLY INCLUDE SECONDARY CONDITION(S) FOR EFFECTIVE DATE PURPOSES

Manzanares v. Shulkin, 863 F.3d 1374 (Fed. Cir. July 19, 2017)

HELD: A claim for an increased rating for a service-connected condition does not automatically include a claim for service connection for a secondary condition related to that original condition. The effective date for the grant of service connection for the secondary condition is the date VA receives the claim for that condition.

SUMMARY: Veteran Martha Manzanares was service connected for stress fractures of both ankles, rated 0%. In February 2006, she submitted a request for an increased rating and was granted 10% for each ankle, effective the date of her request. In April 2007, she filed a timely Notice of Disagreement, as well as a claim for service connection for a back condition, secondary to her ankles.

The RO granted service connection for the back, effective April 2007, the date of her claim. She appealed to the Board, arguing that the effective date should be February 2006, pursuant to 38 C.F.R. § 3.156(b), which states that “[n]ew and material evidence received prior to the expiration of the appeal period . . . will be considered as having been filed in connection with the claim that was pending at the beginning of the appeal period.” The Board denied the earlier effective date, stating that the effective date for service connection is the later of the date VA received the claim or the date entitlement arose. Because she filed her claim for secondary service connection for her back in April 2007, that is the correct effective date for the grant of benefits.

The CAVC affirmed the Board’s decision, finding no error in the Board’s determination that the secondary service-connection claim for her back condition was not part of the increased-rating claim for the ankles and was not filed until April 2007. The Federal Circuit agreed.

Ms. Manzanares argued that she was entitled to a February 2006 effective date based on two regulations – 38 C.F.R. § 3.156(b) (regarding new and material evidence, quoted above) and § 3.310(a), which states that “[w]hen service connection is . . . established for a secondary condition, the secondary condition shall be considered a part of the original condition.”

The Federal Circuit found that these arguments were an attempt to avoid its prior holding in Ellington v. Peake, 541 F.3d 11364, 1369 (Fed. Cir. 2008), which determined “that § 3.310(a) does not mean that primary and secondary conditions receive the same effective date.” In that case, the Court stated that it would be illogical to require the same effective date for primary and secondary conditions – since “secondary conditions may not arise until years after the original condition.” Ellington, 541 F.3d at 1369. Ellington essentially held that “secondary service connection is not part of a primary claim for service connection” – and the Court found that this holding applied to the present case, emphasizing that § 3.310(a) “speaks in terms of conditions, not claims.” (emphasis in original).

The Court added that there was nothing in the regulatory history of 38 C.F.R. § 3.310(a) that “suggests that secondary service connection is part of a claim for primary service connection or one for increased rating for a primary condition.” The Court thus held that “§ 3.310(a) does not make a claim for secondary service connection part of the primary service connection claim.” 

FULL DECISION

Johnson: RATING SKIN CONDITIONS, TOPICAL V. SYSTEMIC THERAPY

Johnson v. Shulkin, 862 F.3d 1351 (Fed. Cir. July 14, 2017)

HELD: When rating skin conditions, “the use of topical corticosteroids does not automatically mean systemic therapy because DC 7806 distinguishes between systemic and topical therapy.” 862 F.3d at 1335 (emphasis in original).

SUMMARY: Under 38 C.F.R. § 4.118, Diagnostic Code (DC) 7806, a skin condition is rated based on the percentage of the body or exposed area affected by the condition or the frequency and type of therapeutic treatment (topical or systemic).

Veteran Paul Johnson was rated 10% for his service-connected skin condition and appealed for a higher rating. He treated this condition with “constant or near-constant corticosteroids and other topical medications.” The Board denied a higher rating because the condition did not affect a higher percentage of his body and, while it did require “constant or near-constant” use of topical corticosteroids, this was not considered “systemic therapy.”

The Court of Appeals for Veterans Claims (CAVC) reversed the Board’s decision, holding that the plain language of the diagnostic code requires that the phrase “systemic therapy . . . includes the use of corticosteroids without any limitation to such use being oral or parenteral as opposed to topical.”

The Federal Circuit reversed, finding that the CAVC “gave an overly broad reading of the term ‘systemic therapy’ in DC 7806 that encompasses any and all forms of topical corticosteroid treatment.” The Court held that “[t]he structure and content of DC 7806 make clear that it contemplates two types of therapy, ‘systemic therapy’ and ‘topical therapy’” and that it distinguishes between the two. Systemic therapy “means ‘treatment pertaining to or affecting the body as a whole,’ whereas topical therapy means ‘treatment pertaining to a particular surface area.’”

The Court noted that topical treatment could potentially be administered on a large enough scale that it would effectively meet the definition of “systemic.” However, that was not the case with Mr. Johnson – and the Court stated that the “mere possibility that the use of a topical corticosteroid could amount to systemic therapy in some cases does not mean all applications of topical corticosteroids mean systemic therapy.” The Court added that the alternative method of rating under DC 7806 (based on the amount of skin affected) further supports the distinction between topical and systemic.

FULL DECISION

Mathis: PRESUMPTION OF VA MEDICAL EXAMINER'S COMPETENCE

Mathis v. Shulkin, 582 U.S. ___ (2017)

HELD: The Supreme Court declined to review the Federal Circuit’s decision that refused to disavow the presumption of competence afforded to VA examiners. The reason the Federal Circuit refused to disavow the presumption in this particular case was because the veteran did not challenge the VA examiner’s credentials or qualifications at the agency level.

Justices Sotomayor and Gorsuch wrote separate statements questioning the presumption. Justice Sotomayor stated that in order for a veteran to challenge an examiner’s qualifications, the veteran must know the examiner’s credentials. This can be difficult/impossible to get from VA – which creates a “Catch-22” for the veteran. She added: “A decision by the VA to deny benefits in reliance on an examiner’s opinion, while denying the veteran access to that examiner’s credentials, ensures that the presumption will work to the veteran’s disadvantage.” She left the door open to a future review, stating: “Full review would require a petition arising from a case in which the VA denied a veteran benefit after declining to provide the medical examiner’s credentials.”

Justice Gorsuch questioned the origin of the presumption – noting that it does not come from statute. He described how the presumption works in practice: “VA usually refuses to supply information that might allow a veteran to challenge the presumption without an order from the Board of Veterans’ Appeals” and the Board will not issue an order unless the veteran provides “a specific reason for thinking the examiner incompetent.” He further questioned how “an administrative agency may manufacture for itself or win from the courts a regime that has no basis in the relevant statutes and does nothing to assist, and much to impair, the interests of those the law says the agency is supposed to serve.” He recognized that several Federal Circuit judges have questioned the propriety of the presumption and stated that “this may well mean the presumption’s days are numbered.” However, he did not hold out hope – and concluded that the issue was worthy of the Supreme Court’s attention.

FULL DECISION

DAV: PETITION TO REVIEW M21-1 PROVISION DISMISSED

Disabled American Veterans v. Sec’y of Veterans Affairs, 859 F.3d 1072 (Fed. Cir. 2017)

HELD: The Federal Circuit can only review M21-1 provisions that are subject to 5 U.S.C. §§ 552(a)(1) and 553 of the Administrative Procedure Act (APA). VA altered the definition of what constitutes a “medically unexplained multisymptom illness” (MUCMI) in its procedure manual (M21-1), but the Court determined that it could not review this M21-1 change because it did not fall under either § 552(a)(1) or § 553.

SUMMARY: Section 552(a)(1) of the Administrative Procedure Act (APA) “refers to agency actions that must be published in the Federal Register.” Section 553 “refers to agency rulemaking that must comply with notice-and-comment procedures under the [APA].” VA regulation 38 C.F.R. § 3.317 defines “a medially unexplained multisymptom illness” (MUCMI) as “a diagnosed illness without conclusive pathophysiology or etiology.”

VA consolidates it policies and procedures into a manual called the M21-1. Any VA employee can request revisions to the M21-1. On the request of an employee, the Secretary revised the definition of MUCMI in the M21-1 from an illness with “no conclusive physiology or etiology” to one with “both an inconclusive pathology, and an inconclusive etiology.” The Secretary also added that sleep apnea cannot be presumptively service connected under 38 C.F.R. § 3.317 “since it is a diagnosable condition.”

Disabled American Veterans (DAV) petitioned the Federal Circuit to review these M21-1 changes, arguing that the changes were similar to cases where the Court had previously reviewed VA policy changes. The Federal Circuit distinguished its prior cases, noting that they fell under 5 U.S.C. § 552(a)(1) because they involved agency actions that had to be published in the Federal Register. See Splane v. West, 216 F.3d 1058 (Fed. Cir. 2000) (reviewing a precedential General Counsel opinion); LeFevre v. Secretary of Veterans Affairs, 66 F.3d 1191 (Fed. Cir. 1995) (reviewing VA’s decision to not add certain conditions to the list of presumptive conditions related to Agent Orange exposure); Military Order of the Purple Heart v. Sec’y of Veterans Affairs, 580 F.3d 1293 (Fed. Cir. 2009) (reviewing a VA Fast Letter).

DAV argued that the Federal Circuit should review the M21-1 revisions because “the revisions announce substantive rules subject to § 553 which should be voided for failure to provide the required notice and comment.” The Court rejected this argument, finding that (1) “VA does not intend for the M21-1 Manual to carry the force of law” and (2) the M21-1 is not binding on VA or the courts.

The Federal Circuit noted that an individual veteran who is adversely affected by an M21-1 provision can challenge that provision by contesting “the validity of that provision as applied to the facts of his case” in the course of a direct appeal.  However, the Court dismissed this petition, holding that it lacked jurisdiction to review manual provisions that “are interpretations adopted by the agency, not published in the Federal Register, not binding on the Board itself, and contained within an administrative staff manual.”

FULL DECISION

Snyder: DISPUTED ATTORNEY FEE RECOVERABLE AFTER VETERAN'S DEATH

Snyder v. Sec’y of VA, 858 F.3d 1410 (Fed. Cir. June 8, 2017)

HELD: A veteran’s surviving spouse can seek to recover a disputed attorney fee after the veteran’s death pursuant to 38 U.S.C. § 5121.

SUMMARY: Attorney Keith Snyder began representing veteran Larry Beck pursuant to a February 2001 fee agreement that called for the payment of 20% of any past-due benefits awarded. Less than a year after entering into the agreement, Attorney Snyder asked the Board of Veterans’ Appeals to revoke his representation, stating that “irreconcilable differences” made his “continued representation of Mr. Beck . . . not possible,” and asked the Board to cancel his fee agreement immediately.

Two years later, VA granted the veteran’s appeal, and awarded past-due benefits at the 100% disability rate, retroactive to June 1992. Despite the fact that Attorney Snyder had terminated representation two years earlier, he still sought attorney fees pursuant to the fee agreement. He presented a copy of that fee agreement to the VA Regional Office (RO), which determined that he was entitled to an attorney fee of over $41,000 and withheld that fee from the past-due benefits award.

The veteran appealed this decision and sought to recover the withheld attorney fee. In November 2005, the Board remanded this matter back to the RO to readjudicate the issue of whether Mr. Snyder was entitled to the attorney fee. In December 2006, while the appeal was still pending, Mr. Beck passed away.

His widow filed an accrued benefits claim, seeking to recover the disputed fee. The RO denied the accrued benefits claim, and Mrs. Beck appealed to the Board. In 2008, the Board dismissed the veteran’s appeal pursuant to 38 C.F.R. § 20.1302 (extinguishing appeal upon veteran’s death) and remanded Mrs. Beck’s claim back to the RO.

The RO again determined that Mrs. Beck “could not recover the disputed attorney fee because her husband’s claim ceased to exist upon his death.” Mrs. Beck again appealed this decision, and the Board requested a VA General Counsel precedent opinion.

In December 2015, VA’s Office of the General Counsel issued an opinion, stating:

A claim, pending at the time of a veteran’s death, challenging an attorney’s entitlement to payment of attorney fees . . . may provide a basis for an accrued benefits claim under [38 U.S.C. §] 5121, because such a claim concerns entitlement to periodic monetary benefits allegedly due and unpaid to the veteran at the time of death.

While this appeal was pending at the Board, Attorney Snyder petitioned the Federal Circuit to review the General Counsel Precedent Opinion pursuant to 38 U.S.C. § 502, which authorizes the Federal Circuit to review agency actions that must be published in the Federal Register and VA’s rulemaking under the Administrative Procedures Act (APA), unless “such review is sought in connection with an appeal” to the Board. If that is the case, then the laws under chapter 72 – relating to Board appeals – apply.

The Secretary argued that the Federal Circuit lacked jurisdiction over this petition “because Mr. Snyder seeks review of VA action in connection with his case before the Board.” The Secretary also argued that the Federal Circuit lacked jurisdiction to review General Counsel Precedent Opinions issued in response to a Board request.

The Court rejected both arguments – yet denied the petition.

The Federal Circuit first noted that General Counsel Precedent Opinions must be published in the Federal Register and are binding on the Board. The fact that this opinion was issued in response to a Board request did not change the Court’s conclusion, since there is nothing in the relevant statute that limits the Court’s “review to only some precedential General Counsel opinions.” The only limitation would be “if Mr. Snyder sought review of the opinion in connection with his appeal.” However, the Court determined that Mr. Snyder sought review under 38 U.S.C. § 502, which applies to the General Counsel Precedent Opinion.

The Secretary argued that this position would be inconsistent with the Federal Circuit’s holding in Paralyzed Veterans of Am. v. Sec’y of Veterans Affairs, 308 F.3d 1262 (Fed. Cir. 2002). The Court rejected this argument, citing an earlier case, Splane v. West, 216 F.3d 1058 (Fed. Cir. 2000), which held that the Court had jurisdiction to review precedential opinions issued in response to a Board request. The Court stated that “[w]hen two cases decided by our court are in apparent conflict, we adopt the first in time and follow it.”

Turning its review to the General Counsel Precedent Opinion, the Court determined that it would have reached the same conclusion as the General Counsel. The Court explained that 38 U.S.C. § 5904 “provides for the payment of attorney fees from ‘past-due benefits awarded on the basis of the claim’ in which the attorney represented the veteran” and which are deducted from veteran’s past-due benefits award. Section 5121 “provides for the recovery of ‘[p]eriodic monetary benefits … due and unpaid’ at the time of a veteran’s death based on ‘existing ratings or decisions or those based on evidence in the file at date of death.’” Because attorney fees are deducted from a past-due benefits award, a dispute over such fees constitutes a dispute over the award. An accrued benefits claimant can seek to recover those fees because her clam is one “of entitlement to periodic monetary benefits allegedly due and unpaid to the veteran.” The fact that 38 C.F.R. § 20.1302 requires an appeal to be dismissed upon a veteran’s death is irrelevant to a claim for accrued benefits.

The Court upheld the General Counsel Precedent Opinion, stating: “If the evidence on file at the date of the veteran’s death shows entitlement to due and unpaid periodic monetary benefits, an accrued benefits claimant can pursue those benefits under § 5121.”

FULL DECISION

Molitor: DUTY TO OBTAIN ANOTHER’S RECORDS TO CORROBORATE ASSAULT; CREDIBILITY; EVIDENCE OF BEHAVIOR CHANGES

Molitor v. Shulkin, docket no. 15-2585 (June 1, 2017)

HELD: "[w]hen a claimant adequately identifies relevant records of fellow servicemembers that may aid in corroborating a claimed personal assault, the duty to assist requires VA to attempt to obtain such records or, at a minimum, to notify the claimant why it will not undertake such efforts.” In addition, the Court held that “a claimant’s credibility does not abrogate or extinguish VA’s duty to assist a claimant in developing her claim” and that “a lack of evidence of behavior changes in service does not constitute negative evidence against a claim for service connection for PTSD based on an in-service personal assault.”

SUMMARY: In 2003, veteran Jaclyn Molitor filed a claim for service connection for PTSD due to military sexual trauma (MST). A 2004 VA examiner diagnosed PTSD due to childhood trauma, and the VA regional office (RO) denied the claim. Ms. Molitor appealed that decision.

Her Vet Center treatment records noted that she was sexually assaulted in service as part of a military police (MP) hazing. She did not report the incident for fear of retribution. Her Vet Center counselor, Cindy Macaulay, wrote a letter stating that Ms. Molitor had repressed memories of the incident and that those memories were coming back with therapy. Ms. Macauley acknowledged the veteran’s other diagnoses, childhood sexual abuse, and post-service events that “complicated the case,” but opined that it was “at least as likely as not” that her PTSD was related to her in-service assaults. Attached to the letter was a sexual trauma markers worksheet that included the approximate date of the assault, location, unit, and names of several witnesses. Ms. Molitor also submitted a statement providing additional details about the assault.

The RO continued to deny the claim in a Statement of the Case (SOC) that Ms. Molitor appealed. In September 2006, she was afforded a Board hearing, during which she testified that she was raped by four or five soldiers during an MP hazing and that she “beat the hell out of the sergeant” in the group.

In July 2007, the Board remanded for additional development. In January 2010, Ms. Macauley submitted another letter in support of the claim. The next month, Ms. Molitor underwent another VA PTSD examination. The examiner questioned her credibility because she denied prior drug and alcohol abuse and mental illness on her service entrance examination report. The examiner noted that there was no evidence of behavior changes in her file and therefore determined that it was less likely that her PTSD was related to service. Later that month, the RO continued to deny the claim in a Supplemental SOC.

In June 2011, the Board remanded again for additional development. In April 2012, the Appeals Management Center determined that Ms. Molitor’s claimed in-service assaults could not be verified.

Her subsequent Vet Center treatment records showed that Ms. Molitor had “cut back on her meds” and was remembering more about the military assaults. Ms. Molitor submitted statements with additional details, including names of the other MPs who raped her, as well as the name of another female MP, Private Lutz, who she believed had also been raped. Ms. Molitor indicated that Private Lutz committed suicide in service. She asked VA to check her file, as well as the files of other women she served with, whom she also identified, for evidence of in-service assault or post-service claims for service connection for PTSD due to MST.

In December 2012, the Board remanded the claim again for another hearing. Ms. Molitor again described the hazing rape and stated that she was subsequently transferred without explanation. Ms. Macauley, her Vet Center therapist, also testified at the hearing, and stated that she believed Ms. Molitor had been raped in service because she consistently reported the details of the assaults. Ms. Macauley explained that the “inconsistencies” perceived by VA were the result of her remembering more details, rather than changing her story.

The Board remanded the case three more times for additional VA medical opinions, including “a medical expert opinion to resolve the conflicting diagnoses.” In January 2015, a VA psychologist diagnosed borderline personality disorder and PTSD due to childhood abuse, and determined that both diagnoses preexisted service. She rejected Ms. Macauley’s diagnosis of PTSD due to MST as “not supported by the record.”

In its May 2015 decision, the Board denied the claim. The Board determined that VA satisfied its duty to assist, but did not discuss Ms. Molitor’s requests to obtain other servicemembers’ records. The Board found Ms. Molitor’s statements not credible because they were “internally inconsistent and contradicted by other evidence of record.” The Board rejected Ms. Macauley’s opinions because they were based on Ms. Molitor’s non-credible statements, and afforded “great probative weight to the negative VA examiners’ opinions.”

On appeal, Ms. Molitor argued that VA did not satisfy its duty to assist because it did not attempt to obtain records from her fellow servicemembers that she had identified, as required by VA’s own G.C. Precedent Opinion 05-14. The Secretary argued that Ms. Molitor had not adequately identified records that could aid in corroborating the claimed assaults, and that VA would not be able to disclose those records without written consent from the servicemembers or a court order. The Secretary further argued that “there is an ‘umbrella of credibility’ that hangs over all of the prongs of the duty to assist” and that the Board’s adverse credibility determination was adequate to explain why no further assistance was provided in this case.

The Court agreed with the veteran. The Court explained that this case involves VA’s “interpretation of intertwining and sometimes conflicting” statutory duties to (1) assist claimants and (2) protect the privacy of all servicemembers. The Court noted that in claims for service connection for PTSD based on personal assault, 38 C.F.R. § 3.304(f)(5) “lowers the evidentiary burden for corroborating the occurrence of an in-service personal assault stressor.” This regulation codified VA’s “existing internal policies that provided for additional development assistance in claims for PTSD based on personal assault.”

Under 38 U.S.C. § 5103A, VA’s duty to assist “includes making reasonable efforts to obtain relevant records from VA or other Federal departments or agencies that have been adequately identified by the claimant.” Once this duty is triggered, VA must make as many requests as necessary unless “it is reasonably certain that such records do not exist” or that “further efforts to obtain those records would be futile” or there is “no reasonable possibility” that any additional assistance would help substantiate the claim. This latter category applies to claims that are “inherently incredible or clearly lack merit.” 38 C.F.R. § 3.159(d)(2).

The Court summarized G.C. Precedent Opinion 05-14 as requiring VA to make reasonable efforts to obtain another individual’s records “if (a) those records were adequately identified, would be relevant to the [v]eteran’s claim, and would aid in substantiating the claim; and (b) VA would be authorized to disclose the relevant portions of such records to the [v]eteran under the Privacy Act and 38 U.S.C. §§ 5701 and 7332.” The latter requirement cites three statutes that limit VA’s disclosure of another individual’s records, but the Precedent Opinion also identified three exceptions in the Privacy Act – (1) written consent from the individual, (2) a court order, or (3) disclosure for “‘routine use’ compatible with the purpose for which the record was collected.”

The Precedent Opinion further concluded that neither the duty to assist (§ 5103A) nor 38 C.F.R. § 3.304(f)(5) “requires VA to solicit written statements from fellow servicemembers” to corroborate a claimed assault. However, the Court noted that it had previously addressed this issue in Forcier v. Nicholson, 19 Vet.App. 414, 422 (2006), which held that VA’s duty to assist may require VA to obtain such written statements if the claimant provides the names of the perpetrator(s) and/or witnesses.

The Court determined that during the course of this appeal Ms. Molitor had adequately identified several individuals whose records could help corroborate her claimed assaults and that these records were relevant to her claim. The Court thus determined that the Board erred by not considering the applicability of G.C. Precedent Opinion 05-14 when it found that VA had satisfied its duty to assist.

With respect to the Secretary’s “umbrella of credibility” argument, the Court held that “a claimant’s credibility does not abrogate or extinguish VA’s duty to assist a claimant in developing her claim because such development may produce evidence that substantiates the claim or otherwise bolsters or rehabilitates a claimant’s credibility.”

The Court thus held that when a claimant for service connection for PTSD based on personal assault “adequately identifies relevant records of fellow servicemembers that may aid in corroborating the claimed assault, G.C. Precedent Opinion 05-14 is applicable to the claim and VA must either attempt to obtain such records or notify the claimant why it will not undertake such efforts.”

The Court further noted that “a lack of evidence of behavior changes in service does not constitute negative evidence against a claim for service connection for PTSD based on an in-service personal assault.” The Court added: “Because behavior changes do not necessarily manifest immediately after a personal assault, it cannot be expected that they would appear in service in every instance of an assault; therefore, a lack of behavior changes in service cannot act as evidence against the occurrence of the assault.” 

FULL DECISION

Ollis: 38 U.S.C. § 1151, REFERRAL FOR NON-VA TREATMENT

Ollis v. Shulkin, docket no. 2016-1315 (Fed. Cir. May 26, 2017)

HELD: “[W]hen recovery is predicated on a referral theory involving an unforeseeable event under § 1151(a)(1)(B), § 1151(a)(1) requires that VA medical care proximately cause the medical treatment or care … during which the unforeseeable event occurred.” In other words, in cases where a disability results from an unforeseeable event due to a medical procedure performed by a non-VA doctor or in a non-VA facility, the question of causation for § 1151 purposes is whether the medical procedure itself “was a remote consequence of VA treatment.”

SUMMARY: Veteran Paul Ollis filed a claim for service connection under 38 U.S.C. § 1151 for disabilities that resulted from a medical procedure (mini-MAZE) that was allegedly recommended by his VA doctor, but performed by a private doctor in a non-VA facility. Although Mr. Ollis’s VA doctor had recommended the mini-MAZE procedure, his private doctor referred him to the physician who actually performed the procedure. Mr. Ollis asserted that his phrenic nerve was damaged during the procedure, causing paralysis of the diaphragm that resulted in shortness of breath and decreased lung function.  

The VA regional office and the Board of Veterans’ Appeals denied service connection for these disabilities under § 1151, and the Veterans Court affirmed. In its decision, the Court noted that the procedure was performed by a non-VA doctor in a non-VA facility, and that there was no contractual relationship between VA and the doctor. The Court also determined that there was “no due process right to notice that referral to a private doctor could affect benefits under § 1151(a).”

On appeal, the Federal Circuit first discussed the history of 38 U.S.C. § 1151, which provides benefits for nonservice-connected conditions to veterans with disabilities resulting from VA medical care. The statute requires that the injury was “caused by” VA care and that the “proximate cause” was “carelessness, negligence, lack of proper skill, error in judgment, or similar instances of fault on the part of the [VA] . . . [or] an event not reasonably foreseeable.” The relevant question addressed by the Court was “how to construe the statutory requirements of § 1151 when the disability-causing event occurred during a medical procedure not performed by a VA doctor or in a VA facility,” which the Court labelled “referral situations.”

The Court examined the two alternative “proximate causation” requirements – the negligence requirement (§ 1151(a)(1)(A)) and the “event not reasonably foreseeable” requirement (§ 1151(a)(1)(B)).

The standard for proving negligence under § 1151(a)(1)(A) is similar to the standard in medical malpractice cases: “It requires that VA medical care actually cause the claimant’s disability . . . and that, in providing such care, VA’s failure ‘to exercise the degree of care that would be expected of a reasonable health care provider proximately caused the disability.’” This proximate cause requirement “incorporates traditional tort law notions of proximate cause,” which “defines its scope in terms of foreseeability, extending only to those foreseeable risks created by the negligent conduct.”

The Veterans Court rejected Mr. Ollis’s argument that VA was at fault for negligently referring him to a particular doctor because there was no proximate cause between VA negligence and the injury – and the Federal Circuit saw no legal error in the Court’s analysis on this point. However, the Federal Circuit found that the Veterans Court did not address the remaining question of whether Mr. Ollis’s VA doctors were negligent under § 1151(a)(1)(A) for recommending the mini-MAZE procedure in the first place.

In examining the alternative proximate cause requirement under § 1151(a)(1)(B), the Federal Circuit noted that a theory under this provision in a referral situation requires the interpretation of the statutory terms “not reasonably foreseeable,” “proximate cause of the disability or death,” and “caused by.” The Court stated that “not reasonably foreseeable” is an event that “‘a reasonable health care provider would not have considered to be an ordinary risk of the treatment provided’ and not ‘the type of risk that a reasonable health care provider would have disclosed in connection with . . . informed consent,’” quoting 38 C.F.R. § 3.361(d)(2). The Federal Circuit stated that the Veterans Court did not address this requirement.

In order to satisfy this alternative “proximate cause” requirement, the “veteran need only show that the disability or death was proximately caused by the unforeseeable event, and a showing of fault is not required.” The Federal Circuit provided an example of “a situation in which an unforeseeable event is not the proximate cause of a disability” – i.e., “if phrenic nerve severance would not foreseeably cause shortness of breath or decreased lung function.” The Federal Circuit stated that it was clear in this case that “an unforeseeable event such as phrenic nerve severance can be the proximate cause of the disability,” and thus satisfy the proximate cause requirement of § 1151. The Veterans Court also did not address this requirement.

The Federal Circuit stated, however, that even if Mr. Ollis satisfied the “unforeseeable event” requirement of § 1151(a)(1)(B), he would still need to satisfy the “caused by” language of § 1151(a)(1). The Court stated that “[b]y definition a claimant cannot show that an injury that is unforeseeable was proximately caused by VA medical care,” but the Court added that “it seems quite clear that Congress intended some concept of remoteness to be inherent in the cause requirement of § 1151(a)(1)” – and that this “remoteness requirement is the same as the traditional proximate cause requirement but without fault and applicable to a limited sequence of events.” In other words, this is a “lesser proximate cause requirement.” In this case, “only the performance of the mini-MAZE procedure and not the nerve severance or the resulting shortness of breath and decreased lung function must be proximately caused by VA medical treatment to satisfy the cause requirement of § 1151(a)(1).”

The Court remanded the case to the CAVC to address the question of “whether VA medical care proximately caused the mini-MAZE procedure,” and summarized its holding on this point as follows:

[W]hen recovery is predicated on a referral theory involving an unforeseeable event under § 1151(a)(1)(B), § 1151(a)(1) requires that VA medical care proximately cause the medical treatment or care (here, the mini-MAZE procedure) during which the unforeseeable event occurred (here, the severance of the phrenic nerve). Section 1151(a)(1)(B) further requires that the unforeseeable event – phrenic nerve damage – proximately cause the disability. As such, the chain of causation has two components (neither of which requires fault) – i.e., proximate cause between VA medical care and the treatment, and proximate cause between the unforeseeable event and the disability.

(emphasis added). The Federal Circuit identified the CAVC’s legal errors as framing the question as (1) whether Mr. Ollis’s disability was a remote consequence of VA treatment, and (2) whether VA treatment caused Mr. Ollis to use a particular private doctor – when the relevant question was whether the VA treatment proximately caused Mr. Ollis to undergo the mini-MAZE procedure.

Mr. Ollis also argued that VA violated his due process rights by failing to inform him that referral to a private facility for the mini-MAZE procedure “could extinguish his eligibility for benefits under § 1151(a).” The Federal Circuit rejected this argument and held that “[t]here is no due process right to notice regarding conditions that might in the future affect an individual veteran’s right to monetary benefits … before the veteran incurs an injury or applies for such benefits.”

Advocacy note: This second holding is important to keep in mind, particularly with VA’s and veterans’ increasing reliance on non-VA doctors through the Choice program. Since VA is under no legal obligation to inform veterans that they may lose eligibility for § 1151 benefits if something goes wrong when they use a private provider, advocates should inform their clients of this.

FULL DECISION

Monk: CAVC’S CLASS ACTION AUTHORITY

Monk v. Shulkin, docket no. 2015-7106 (Fed. Cir. Apr. 26, 2017)

HELD: “[T]he Veterans Court has the authority to certify a class for a class action and to maintain similar aggregate resolution procedures.”

SUMMARY: In 2013, Mr. Monk was denied VA benefits based on his “other-than-honorable” discharge. He appealed that decision and, at the same time, applied for a discharge upgrade with the Board of Correction of Naval Records (BCNR). In 2015, the VA regional office informed Mr. Monk that it would not make a decision on his appeal until it received the BCNR’s decision. Mr. Monk petitioned the CAVC to order the Secretary to act on his appeal, as well as the appeal of “similarly situated veterans.” He asked the Court to certify a class under a class action to be comprised of veterans who had not received a decision within 12 months of filing a Notice of Disagreement and who had also demonstrated medical or financial hardship.

While the petition was pending at the Veterans Court, the BCNR upgraded Mr. Monk’s discharge to honorable. The CAVC denied the petition and rejected the request for class certification, stating that it “does not have the authority to entertain class actions.”

Mr. Monk appealed to the Federal Circuit – and VA subsequently awarded full disability benefits. Because of this, the Secretary argued that Mr. Monk’s appeal was moot. However, the Federal Circuit determined that the grant of benefits did not moot the legal question of whether the CAVC has the “authority to entertain class actions” since this “question exists independently of Mr. Monk’s disability award and it persists in the context of the appeal raised by Mr. Monk.” The Court stated that “where the relief sought is forward-looking, a claim is not moot if it is capable of repetition and yet evades review.” The Court noted that “veterans face, on average, about four years of delay between filing an NOD and receiving a final Board decision,” and that there are thousands of veterans still awaiting decisions on their appeals.

The Court held that the CAVC has the authority to certify and adjudicate class action cases “under the All Writs Act, other statutory authority, and [its] inherent powers.” The Federal Circuit stated that the All Writs Act “unquestionably applies to the Veterans Court” and noted that it “has provided authority to aggregate cases in various contexts.”

With respect the “other statutory authority,” the Federal Circuit noted that the Veterans Judicial Review Act (VJRA, the statute that created the Veterans Court) vested the CAVC “with authority to review Board decisions adverse to veterans,” and noted that there “is no indication that Congress intended such review authority to not include class actions.” The Court further noted that 38 U.S.C. § 7264(a) “authorizes the Veterans Court to create the procedures it needs to exercise its jurisdiction” – and that “[o]ther tribunals have relied on statutes with similar language . . . to aggregate claims and create class action procedures.” Based on this statute, the Federal Circuit held that “the Veterans Court may prescribe procedures for class actions or other methods of aggregation.”

The Federal Circuit recognized the CAVC’s reliance on its own earlier decision that held that it lacked class action authority. That decision, Harrison v. Derwinski, 1 Vet.App. 438 (1991) was based on the Court’s understanding that (1) its jurisdiction was limited to review of final Board decisions, (2) it was statutorily precluded from making factual findings in the first instance, and (3) each person adversely affected by a Board decision was required by statute to file a Notice of Appeal with the CAVC. This decision further recognized that the CAVC has “previously declined to permit class actions because to do so would be unmanageable and unnecessary.”

The Federal Circuit disagreed that the CAVC’s authority was so limited in light of its statutory authority to “compel action of the Secretary unlawfully withheld or unreasonably delayed” (quoting 38 U.S.C. § 7261(a)(2)). The Federal Circuit noted that “there was legislative history that the focus should be on individual claimants, but still found “no persuasive indication that Congress intended to remove class action protection for veterans when it enacted the VJRA.” The Court added that “[c]lass actions can help the Veterans Court exercise that authority by promoting efficiency, consistency, and improving access to legal and expert assistance by parties with limited resources.”

The Federal Circuit bolstered its decision by pointing out the ways in which class actions would help the CAVC achieve its goal of “reviewing VA’s delay in adjudicating appeals,” as well as increase “its prospects for precedential opinions” and “serve as lawgiver and error corrector simultaneously, while also reducing the delays associated with individual appeals.” In advancing the use of “class actions to promote efficiency, consistency, and fairness in its decisions,” the Federal Circuit stated that the CAVC was similar to the “EEOC or bankruptcy courts that have adopted class action mechanisms to promote similar concerns.” The Court thus held that the CAVC “has authority to certify a class for class action or similar aggregate resolution procedure,” but declined to address whether certification was appropriate in this case or the nature of procedures the CAVC may adopt for class actions.

FULL DECISION

Eicher: POST-9/11 GI BILL EDUCATION BENEFITS

Eicher v. Shulkin, docket no. 15-1896 (Apr. 19, 2017)

HELD: “Post-9/11 GI Bill education benefits cannot be used to pay for a nonaccredited program at a foreign educational institution taken by distance learning” and the Court cannot grant benefits on the basis of equitable estoppel. Only the Secretary “has the power to grant equitable relief where administrative error leads to a denial of benefits.”

SUMMARY: Veteran James Eicher applied for VA education benefits to take an online Masters program through a foreign institution. The veteran corresponded with VA and the University via email, requesting an update on the status of his application. In an email, a VA representative stated that the “program was approved” and that a letter with information regarding the approval had been sent. The letter stated that such programs “are approved for in-resident training only” and required in-person attendance “in a formal classroom setting.” The veteran submitted a second electronic application, and received a letter from VA notifying him that he was entitled to “benefits for an approved program of education or training.” The letter instructed him to have his school certify his enrollment before he could get paid.

After VA received the University’s enrollment certification, which showed that the program was taken by distance learning, it denied Mr. Eicher’s request for payment, stating that “distance learning is not approved for GI Bill payment at foreign schools.”

Mr. Eicher appealed to the Board of Veterans’ Appeals, which denied his request, reiterating that “Post 9/11 GI Bill ‘benefits cannot be used to pay for a nonaccredited program at a foreign educational institution taken via distance learning.” The Board noted that “38 U.S.C. § 503 provides for equitable relief when there has been administrative error,” but stated that Mr. Eicher would need to petition the Secretary for such relief. The Board found that it “lacked jurisdiction to consider the Secretary’s exercise of authority to award equitable relief under section 503.”

On appeal, Mr. Eicher asked the Veterans Court to grant relief on the basis of equitable estoppel, arguing that he relied, to his detriment, on VA communications. Alternatively, he argued that the Board failed to adequately explain its decision because it failed to discuss the regulation pertaining to requesting equitable relief and “whether a recommendation to the Secretary for consideration of equitable relief was warranted.” The Secretary argued that the CAVC cannot apply equitable estoppel to grant monetary awards against the government and that the Board is not required to discuss the issue of recommendation for relief under section 503.

The Court briefly discussed the history of the Post 9/11 GI bill and the statutory definitions of “program of education” and “independent study.” The Court found that the Board correctly determined that Mr. Eicher was not enrolled in an approved course of study since he completed the program online, and that the relevant statutes and regulations “make clear that Post 9/11 GI Bill education benefits cannot be used to pay for a nonaccredited program at a foreign educational institution taken by distance learning.”

With respect to the equitable estoppel argument, the Court held that even if it were inclined to grant such relief, it could only do so with statutory authority, as the Appropriations Clause of the Constitution “precludes the judiciary from ordering an award of public funds to a statutorily ineligible claimant on the basis of equitable estoppel.” The Court added that even if VA’s email to the University was misleading, “erroneous advice given by a government employee cannot be used to estop the government from denying benefits.”

The Court noted that the Secretary does have the authority under 38 U.S.C. § 503 to grant equitable relief, but found that both the Court and the Board lack jurisdiction to review the Secretary’s refusal to grant such relief. In two footnotes, the Court noted its “confusion” as to why the Board member did not mention the Chairman’s authority to recommend equitable relief to the Secretary. However, the Court determined that the Board was not required to discuss the recommendation process – and that its failure to do so did not amount to a remandable reasons-or-bases error.

In his dissent, Judge Greenberg pointed out that the relevant regulation does not mention “distance learning” and that the definition of “independent study” is one that “is offered without any regularly scheduled, conventional classroom or laboratory sessions” – and does not expressly encompass online courses. (“A veteran is not engaged in ‘independent study’ merely because he attends a course online.”)

Judge Greenberg rejected the Board’s characterization of Mr. Eicher’s online course as “independent study” stating that “independent study is only barred if the educational institute is non accredited” and adding that VA’s interpretation of its regulation as barring distant learning “is utterly inconsistent with the statutory context of congressional limitations on independent study.”

FULL DECISION

Cantrell: TDIU, EMPLOYMENT "IN A PROTECTED ENVIRONMENT"

Cantrell v. Shulkin, docket no. 15-3439 (Apr. 18, 2017)

HELD: VA has not defined “employment in a protected environment” for purposes of entitlement to TDIU, but factors to consider include “the magnitude of a veteran’s job responsibilities and the degree of accommodation necessary for successful, full-time work.” VA adjudicators must consider the combined impact of a veteran’s multiple service-connected disabilities in determining whether referral for extraschedular consideration is warranted.

SUMMARY: Veteran Eric Cantrell was service connected for ulcerative colitis, among other conditions. He requested a total disability rating based on individual unemployability (TDIU) based on evidence of chronic loose stools and abdominal discomfort that “made it difficult for him to stand or be away from the bathroom for prolonged periods of time.” He reported having 6-10 bowel movements a day – when he was feeling well – and up to 16-20 bowel movements a day during his monthly episodes of “pouchitis” that lasted three to four days.

Mr. Cantrell was employed as a park ranger and was able to “work around his condition by knowing the location of every restroom in the park and by avoiding eating anything at work during pouchitis episodes.” He stated that he was only able to maintain his job “because of the many accommodations made by his employer, including being assigned only to duty stations near restrooms, not being required to remain at emergency scenes, and always having another ranger on call for him in case he needed to leave work early for medical reasons.” He had to leave work early about three times per month, and was unable to work at all about two to three times per month.

To support his claim, he submitted a private vocational assessment, which noted that his condition resulted in 10 to 15 bathroom breaks per day, lasting 20 minutes each, and that his current job was “tantamount to a ‘protected employment’ situation” because no typical employer would allow “a worker to take three and one third (3 1/3) hours per workday/work shift for bathroom break purposes.” The vocational expert determined that Mr. Cantrell’s need for bathroom breaks rendered him “totally unemployable for any competitive occupation.”

The Board denied TDIU, finding that Mr. Cantrell’s employment was substantially gainful. The Board discounted the private vocational expert’s opinion that his job was “in a protected environment,” because it found that the symptoms he reported to the vocational expert were inconsistent with his prior statements. The Board further found that Mr. Cantrell’s employment was not “in a protected environment” because he had “substantial responsibilities” and his employer’s accommodations enabled him to work full time.

On appeal to the Court, Mr. Cantrell argued that the Board provided an inadequate explanation for its determination that his job did not qualify as “in a protected environment.” He noted that VA did not define employment “in a protected environment,” but argued that “‘employment in a protected environment’ exists when a veteran ‘is only able to work because his employer protects him from termination.’” The Secretary argued that VA intentionally chose “not to define ‘employment in a protected environment,’ leaving it to the discretion of the factfinder on [a] case-by-case basis.” The appellant strongly objected to the Secretary’s position, arguing that “without an articulated standard for employment ‘in a protected environment,’ he cannot discern and the Court cannot determine whether the factors the Board considered in this case were appropriate.” The Court agreed with Mr. Cantrell.

The Court first discussed the relevant regulation, C.F.R. § 4.16, which provides that a veteran may be entitled to TDIU when his service-connected conditions render him unable to secure or follow substantially gainful employment. The regulation states that “marginal employment is not gainful employment,” and defines marginal employment as employment that either (1) results in earned annual income below the Census Bureau’s poverty threshold or, when a person’s income exceeds the poverty threshold, (2) on a facts-found basis, including “employment in a protected environment such as a family business or sheltered workshop.”

The Court determined that the meaning of “in a protected environment” is not clear from the plain language of the regulation, but declined to defer to the Secretary’s “we know it when we see it” definition that would essentially rely on hundreds of VA adjudicators to “uniformly and consistently apply that undefined term without guidance.” The Court stated that without a definition, “there is no standard against which VA adjudicators can assess the facts of a veteran’s case to determine whether he or she is employed in a protected environment.” The Court held that “absent an articulated standard for employment ‘in a protected environment’ that is capable of consistent application by VA and meaningful review by this Court, we cannot defer to the Secretary’s decision not to define that term in § 4.16(a).”

The Court discussed VA’s historical difficulties in implementing this regulation, adding that it “has little confidence that VA has or will be able to determine employment ‘in a protected environment’ in a consistent manner without further guidance from the Secretary.”

The Court stated that “the magnitude of a veteran’s job responsibilities and the degree of accommodation necessary for successful, full-time work might be appropriate facts to consider in determining whether a veteran is employed in a protected environment,” but VA’s failure to define this phrase made it impossible for the Court “to meaningfully assess the propriety of the Board’s reliance on the factors it cited in this case.” However, the Court declined to define the phrase, stating that it is VA’s responsibility to define its own regulation, and remanded this case back to the Board to provide an adequate statement of reasons or bases for its decision.

The Court also determined that the Board provided an inadequate explanation for its rejection of the private vocational expert’s opinion. The Board’s assessment of this opinion focused on the vocational expert’s estimate of the amount of time the veteran spent in the restroom each day. The Board determined that the veteran’s reports to the vocational expert were “inconsistent with the rest of the record” because the veteran never stated that “he spends nearly half of his work shift in the restroom.” The Court found, however, that the record contains no other evidence regarding the amount of time spent in the restroom each day – and “thus no statements that may be inconsistent” with the vocational expert’s opinion. The Court concluded that “the Board failed to identify a proper foundation in the record for its adverse credibility determination.”

The Court further determined that the Board erred by denying referral for consideration of entitlement to TDIU on an extraschedular basis. The Court reiterate that the extraschedular referral determination requires the Board to “consider the collective impact of multiple service-connected disabilities whenever that issue is expressly raised by the claimant or reasonably raised by the record,” and determined that the issue was reasonably raised, citing evidence that Mr. Cantrell “could not stand or walk without difficulty as a result of multiple service-connected disabilities.” The Court added that “the Board’s approach in this case improperly focused on individual symptoms, rather than the collective impact of those symptoms on the veteran’s disability picture.” The Court thus rejected the Board’s determination that referral for extraschedular consideration was not warranted because “the Board considered only whether Mr. Cantrell had symptoms not listed in the respective evaluation criteria for each service-connected disability and not whether those disabilities collectively caused an exceptional disability picture not contemplated by the rating schedule.”

Judge Lance wrote a concurring opinion, stating his belief that “a claimant’s income – and, specifically, whether a claimant receives the same pay as similarly situated coworkers who are not disabled – is also a factor relevant to whether the claimant is employed in a protected environment.” Judge Lance noted that disability ratings are based on “the average impairments in earning capacity.” Therefore, “[i]f a claimant’s disabilities do not result in lost income, then there is no loss of earning capacity, and an award of TDIU would not be appropriate.” The concurrence also noted that the Americans with Disabilities Act requires employers to make reasonable accommodations for employees with disabilities – and that where such accommodations are made pursuant to the ADA, “a TDIU award would, in effect, constitute a second paycheck on the back of the taxpayer.”

While the language of this decision is quite useful for claimants who are employed “in a protected environment” and who are seeking entitlement to TDIU, the ultimate remedy in this case was simply a remand for the Board to provide an “adequate explanation” for its decision. I believe the facts of this case and the law should have been sufficient to warrant reversal.

FULL DECISION

Bankhead: RATING MENTAL HEALTH CONDITIONS, SUICIDAL IDEATION

Bankhead v. Shulkin, docket no. 15-2404 (Mar. 27, 2017)

HELD: Under 38 C.F.R. § 4.130, “the presence of suicidal ideation alone, that is, a veteran’s thoughts of his or her own death or thoughts of engaging in suicide-related behavior, may cause social and occupational impairment with deficiencies in most areas,” thus warranting a 70% disability rating – and does not require “evidence of more than thoughts,” inpatient treatment or hospitalizations, or total social and occupational impairment.

SUMMARY: Mr. Bankhead was service connected for PTSD, rated 50% disabling. His medical records were replete with evidence of suicidal ideation, but he also repeatedly denied having any plan or intent to harm himself. The Board determined that he was not entitled to a 70% rating because even though his medical records showed many of the symptoms associated with that higher rating, “those symptoms did not manifest with sufficient frequency and severity to meet the criteria for a higher evaluation.” The Board based this determination on its findings that he was at “low risk of self-harm,” was treated on an outpatient basis, was not hospitalized or subject to in-patient treatment, was credible in “his assurances that he would refrain from self-harm,” and that he “retained some social and occupational functioning.”

On appeal, the CAVC recognized that 38 C.F.R. § 4.130 “‘requires not only the presence of certain symptoms’ but also that those symptoms have caused the level of occupational and social impairment associated with a particular disability evaluation.” *8 (citing Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013)). The Court discussed the “longstanding public concern over the prevalence and risk of suicide among veterans” and looked to various sources to define “suicidal ideation.” *9-10. The Court found that “suicidal ideation does not require suicidal intent, a plan, or prepatory behavior” and that “both passive and active suicidal ideation are comprised of thoughts.” *10.

The Court noted that the criteria for a 70% disability rating includes “suicidal ideation” as a symptom that is representative of “social and occupational impairment with deficiencies in most areas” and that “the presence of suicidal ideation alone” may cause such impairment. *10-11. “Suicidal ideation” is only contained in the 70% rating criteria. The Court found that the Board first erred by appearing to require “more than thought or thoughts to establish the symptom of suicidal ideation,” particularly since risk of actual self-harm is “referenced in the criteria for a 100% evaluation.” *11. The Court held that the Board’s failure to differentiate between Mr. Bankhead’s suicidal ideation and his risk of self-harm “resulted in conflation of distinct concepts” and rendered its reasons or bases inadequate. *12.

The second error identified by the Court was the Board’s finding that Mr. Bankhead was not entitled to a 70% rating because he had not been hospitalized or required in-patient treatment. Id. This imposed “a higher standard than the criteria in the DC for mental disorders,” and the Court held that “VA is not at liberty to create evaluation criteria out of thin air in an individual case and then use the absence of those criteria in the veteran’s records to deny a particular mental disorder evaluation.” *12-14.

The third error found by the Court was the Board’s impermissible melding of the 70% and 100% criteria based on its determination that Mr. Bankhead “still retained some social and occupational functioning.” *14. The Court noted that while the 100% rating requires “total occupational and social impairment, a 70% evaluation requires only occupational and social impairment in most areas.” The Court summarized its holding by stating that

VA must engage in a holistic analysis in which it assesses the severity, frequency, and duration of the signs and symptoms of the veteran’s service-connected mental disorder; quantifies the level of occupational and social impairment caused by those signs and symptoms; and assigns an evaluation that most nearly approximates that level of occupational and social impairment. [Citation omitted.] Where, as here, the Board fails to adequately assess evidence of a sign or symptom experienced by the veteran, misrepresents the meaning of a symptom, or fails to consider the impact of the veteran’s symptoms as a whole, its reasons or bases for its denial of a higher evaluation are inadequate.

*14-15.

Unfortunately, despite the ample evidence of record of suicidal ideation to support the 70% disability rating, the Court determined that the appropriate remedy was remand and not reversal to enable the Board to address the evidence of suicidal ideation and consider the potential applicability of staged ratings. *16. 

FULL DECISION