VA Secretary Wilkie Stays Proceedings on Blue Water Navy Claims ... and more ...

VA Secretary Robert Wilkie has ordered the Board of Veterans’ Appeals and the Veterans Benefits Administration to stay proceedings on “certain pending claims” for benefits under the Blue Water Navy Vietnam Veterans Act of 2019 - stating that the Act authorizes this action (or lack thereof) until the statute takes effect on January 1, 2020.

The memo not only orders BVA and VBA to stay proceedings on all Blue Water Navy veterans’ claims - but also on claims for:

  • disability compensation for veterans who served near the Korean Demilitarized Zone from Sept. 1, 1967 to Aug. 31, 1971;

  • claims for benefits for survivors of deceased Blue Water Navy and Korean DMZ veterans; and

  • claims for spina bifida from “the children of Veterans who were allegedly exposed to herbicides while serving in Thailand” from Jan. 9, 1962 through May 7, 1975.

The memo does NOT prevent VA from complying with a Board decision that GRANTED benefits to any of the above claimants before the date of the memo (July 1, 2019). The memo also does not prevent VA from complying with “the order of any court.” This would (should) include the Federal Circuit’s order in Procopio v. Wilkie, and subsequent orders from the Court of Appeals for Veterans Claims related to Procopio.

VAWilkieBWNmemo.jpg

Blue Water Navy Vietnam Veterans Act of 2019

This Act, extending the presumption of herbicide exposure to Blue Water Navy veterans who served within the 12 nautical mile territorial sea of the Republic of Vietnam, has been signed into law.

The Act provides specific guidance for determining whether the veteran’s ship was within the 12 nautical mile territorial sea of the RVN. See 38 U.S.C. § 1116A(d).

LINK TO THE FULL TEXT OF THE ACT: https://www.congress.gov/116/bills/hr299/BILLS-116hr299enr.pdf

Crumlich: Presumption of mailing SOC rebutted

Crumlich v. Wilkie, docket no. 17-2630 (June 6, 2019)

HELD: VA’s regulation, 38 C.F.R. § 20.302(b)(1), presumes that the date on the Statement of the Case (SOC) is the date it was mailed, if there is no date on the cover letter. The Court invalidated this portion of the regulation, find that it potentially conflicts with the statute that affords claimants 60 days to appeal an SOC from the date the SOC was actually mailed. The Court found that the undated SOC cover letter, the confusing instructions in the letter, and the absence of evidence showing when the SOC was actually mailed was clear evidence to rebut the presumption of regularity that VA followed its regular mailing practices.

SUMMARY: Veteran appealed a VA denial of benefits and VA issued a Statement of the Case (SOC), dated June 2, 2015. The cover letter accompanying the SOC stated that the claimant had 60 days from the date of the letter to appeal – but the letter was undated. On page 15 of the 18-page SOC, the RO included languagr from 38 C.F.R. § 20.302(b)(1), which states that the “date of the mailing of the [SOC] will be presumed to be the same as the date of the [SOC].” Based on that regulation, the veteran had until August 3, 2015 to submit his appeal.

On August 11, 2015, he filed his appeal, through counsel, explaining that the letter accompanying the SOC was undated and that he did not know when the appeal was due. He asked the RO to accept the appeal as timely.

The RO rejected the appeal as untimely and the veteran appealed that decision. The Board acknowledged that the cover letter was undated, but noted that the SOC was dated and contained the language of § 20.302(b)(1), and thus concluded that the RO properly closed the appeal.

The CAVC first discussed the competing presumptions presented in this case: (1) the regulatory presumption in § 20.302(b)(1) that presumes an SOC was mailed on the date of the SOC and (2) the judge-made presumption of regularity that presumes “that public officers perform their duties correctly, fairly, in good faith, and in accordance with the law and governing regulations.” The Court determined that the regulatory presumption in § 20.302(b)(1) would apply in this case, since it “specifically addresses the date of the of mailing of the SOC, the precise issue in this case.”

Appellant challenged the validity of this regulation, arguing that it was inconsistent with its authorizing statute, 38 U.S.C. § 7105(d), which states that a claimant “will be afforded a period of sixty days from the date the [SOC] is mailed to file the formal appeal.” The Secretary conceded that the letters accompanying SOCs are sometimes dated later than the date of the SOC – and that the letter states that a claimant has 60 days from the date of the letter to appeal. The Secretary stated that the regulatory presumption applies in cases where the letter is undated. The Secretary conceded that, in this case, where the letter was undated, VA has no information about when the SOC was actually mailed or received. The Court found that the date on the letter is “clear evidence” of when the SOC was mailed – and that the regulatory presumption applies only when there is no date on the letter. The Court thus determined that “the regulatory presumption is not applied to ensure that all claimants receive 60 days from the date the SOC ‘is mailed’ to file a Substantive Appeal” – but rather it is used to “shield VA” in cases where it is actually unknown if the claimant received the statutorily mandated 60 days to file his or her appeal. The Court invalided the portion of § 20.302(b)(1) regarding the presumption that the SOC was mailed on the date on the SOC.

The Court next turned to the general presumption of regularity and assumed, without deciding, that it did apply and that the Secretary could rely on it. The presumption of regularity can be rebutted with “clear evidence that VA did not follow its regular mailing practices or that its practices were not regular.” The Court found that the undated letter in this case and the Secretary’s concession that SOC letters are sometimes dated after the date of the SOC was “sufficient to show that, even assuming the Secretary has a regular procedure for dating and mailing SOCs, … that procedure was not followed in this case.” Additional evidence to rebut the presumption of regularity included the confusing instructions in the letter indicating that the letter was dated (when it was not) and the Secretary’s concession that he did not have any specific information about when the SOC was actually mailed.

Once the presumption of regularity has been rebutted, the burden shifts to the Secretary to show that the mailing was proper. Based on the undated letter and the absence of information regarding the actual mailing of the SOC, the Court found that the Secretary did not meet this burden. The Court remanded for the Board to determine when the Appellant received the SOC and whether it was timely appealed.

In a concurring opinion, Judge Pietsch expressed frustration at the Secretary’s actions in this case:

His decision to take a hard line even though he mailed the appellant an incorrect, improperly prepared and plainly misleading notice letter caused a lot of resources to be wasted—not least the appellant’s time—all to receive a decision that costs VA the use of a regulation. If the paternalistic nature of VA is to be more than mere platitude, cases like this should be handled in a more empathetic manner. 

FULL DECISION

Event: CAVC 14th Judicial Conference

April 11-12, 2019, National Press Club, Washington, DC

The U.S. Court of Appeals for Veterans Claims holds its Judicial Conference every three years. As the Court was formed in 1989, the theme of the 2019 conference is “Celebrating 30 Years.”

ABK spoke on a panel on “Class Actions: Primer, Updates, What’s Next” and presented “An Evolution of a Class Action Rule,” highlighting the process of developing a class action rule for the CAVC.

LINK TO BROCHURE

Jones: VA's duty to obtain VA medical records

Jones v. Wilkie, 918 F.3d 922 (Mar. 13, 2019)

HELD: VA’s duty to assist does not require a veteran “to show that a particular record exists or that such a record would independently prove his or her claim.” VA must obtain VA medical records unless “no reasonable possibility exists that such assistance would aid in substantiating the claim.”

 SUMMARY: Mr. Jones was diagnosed with PTSD by a VA psychiatrist in 2000. He formally applied for VA disability benefits in 2011. In 2012, he was granted service connection, rated 100% disabled. He appealed for an earlier effective date, arguing that his medical records show treatment beginning in 2000 and stating that he did not file a claim until 11 years later “because the doctors did not explain to [him] what PTSD really was back in 2000.” The Board acknowledged the existence of VA medical records from 2000, but found that they were not an informal claim for benefits. The CAVC affirmed. The Court noted that the veteran’s VA medical records from 2000 and 2001 were not in the record – but found that since he stated that he did not file a claim until 2011, the chances of finding an informal claim in the VA medical records “is extremely low.” 

The Federal Circuit held that the CAVC erred “in requiring an impermissibly high threshold to trigger the VA’s duty to assist” because “it actually required Mr. Jones to show more than what the statute requires.” Under 38 U.S.C. § 5103A, VA cannot avoid its “duty to assist in obtaining records based on a mere belief that the likelihood of finding a record substantiating a veteran’s claim is ‘low’ or ‘extremely low.’” Instead, “the applicable standard is whether ‘no reasonable possibility exists that such assistance would aid in substantiating the claim.” 

The Court reiterated its prior holding in Sullivan v. McDonald, 815 F.3d 786, 790-91 (Fed. Cir. 2016) that “VA may not consider relevance when determining whether to assist in obtaining VA medical records.” In other words, VA medical records are per se relevant and VA must obtain them unless “no reasonable possibility exists” that the records could help. The Federal Circuit remanded for the CAVC to return the appeal to the Board and, in turn, to the RO to obtain all of Mr. Jones’s VA medical records. 

FULL DECISION

Young: VA can revise decision based on CUE while appeal is pending

Young v. Wilkie, 31 Vet.App. 51 (Mar. 11, 2019)

HELD: In representing a veteran in an appeal challenging a debt owed to VA, the representative is only entitled to a fee based on the amount of the invalidated debt that was actually recouped – not on the entire amount of the invalidated debt. 

SUMMARY: Robert Young was granted service connection in a June 2012 decision. He appealed for an earlier effective date for the assignment of a higher rating. On review, a DRO determined that the June 2012 assignment of the higher rating was CUE and proposed to reduce the rating. In June 2013, the RO reduced the rating, and the veteran appealed. 

At the CAVC, he argued that VA could not revise the June 2012 rating based on CUE because the CUE regulation only allows for revisions of “final” decisions – and because he had appealed that decision, it was not yet final and, therefore, could not be subject to revision based on CUE. The CAVC noted that 38 C.F.R. § 3.105(a) says that “final and binding” decisions are subject to CUE – and that § 3.104 defines final as “the end of any internal review of a matter by an AOJ.” This regulation also says that a rating decision is an example of a “final and binding” determination.

The Court also found that “it is far more efficient – and beneficial to claimants – to allow VA to correct obvious errors at the time of the identification of the error than to force it to wait until a claim is fully adjudicated and then pursue overpayments in the form of recoupment.”  

FULL DECISION

James: Equitable Tolling; Extraordinary Circumstances

James v. Wilkie917 F.3d 1368 (Fed. Cir. Mar. 7, 2019)

HELD: In determining whether a situation is extraordinary enough to warrant equitable tolling of the 120-day appeal deadline, the Court must analyze the specific facts of the case and cannot make a “categorical determination that a particular set of facts will never warrant equitable tolling of the filing deadline.” 

SUMMARY: Charles James sought service connection for back and neck conditions and an increased rating for pseudofolliculitis barbae. The Board denied his claims on January 28, 2016. On May 27, 2016, Mr. James put his Notice of Appeal to the CAVC in a stamped envelope, put the envelope in his home mailbox, and raised the flag on the box for collection. He then left town for the weekend. He returned the evening of May 30 – and saw that the mail had not been picked up. He mailed it that night and the CAVC received the appeal, postmarked May 31, 2016.

This was more than 120 days after the January 28, 2016 decision – so the CAVC ordered Mr. James to show cause why his appeal should not be dismissed. Through counsel, Mr. James responded, arguing that the 120-day appeal deadline should be equitably tolled because “an errantly lowered flag on his residential mailbox constitutes an extraordinary circumstance beyond his control.” He submitted a sworn declaration that he had spoken with his neighbor who had received mail on May 27 – and had seen some neighborhood kids playing in the street who “might have put the flag down.” The CAVC dismissed the appeal because he had not demonstrated that equitable tolling was warranted because “a fallen mailbox flag” was not “an extraordinary circumstance beyond [his] control … but rather an ordinary hazard of last minute mailing that could have been avoided.” 

On appeal to the Federal Circuit, Mr. James argued that the CAVC erred as a matter of law by “creating a categorical ban against equitable tolling in cases involving a fallen mailbox flag.” The Federal Circuit agreed, finding that the CAVC did not perform the necessary case-specific analysis of Mr. James’s case, but instead “made a categorical determination that a fallen mailbox flag is not entitled to equitable tolling but is ‘rather an ordinary hazard of last-minute mailing that could have been avoided.”

The Federal Circuit held that “because the extraordinary circumstances element requires a case-by-case analysis” the CAVC erred in making what appeared to be a categorical determination that Mr. James’s fallen mailbox flag did not neatly fall into “one of the factual patterns of past cases” that considered equitable tolling. The Court stated that the CAVC “failed to consider whether the fallen mailbox flag due to an alleged third-party interference with the federal collection of mail could justify invoking equitable tolling in Mr. James’s case as a matter of law.” 

The Court further held that “it is irrelevant to the extraordinary circumstances element analysis whether Mr. James could have done more after he put his NOA in his residential mailbox” – when the relevant and undisputed fact was that he put his NOA in a mailbox “in time for it to be postmarked within the 120-day filing deadline.” 

FULL DECISION

Speigner: EAJA rate is based on teleworking attorney's residence

Speigner v. Wilkie, docket no. 16-2811(E) (Feb. 28, 2019)

HELD: “[W]here a teleworking attorney has worked on a case from his or her residence, the CPI-U should correspond to the location of the attorney's residence” - and not to the location of the main office “where overhead costs are incurred.”

FULL DECISION

Gumpenberger: Fee on recouped debt; 38 U.S.C. § 5904(d)(1)

Gumpenberger v. Wilkie, 31 Vet.App, 33 (Feb. 7, 2019) 

HELD: In representing a veteran in an appeal challenging a debt owed to VA, the representative is only entitled to a fee based on the amount of the invalidated debt that was actually recouped – not on the entire amount of the invalidated debt.

FULL DECISION

 

Skaar: Limited remand; class action certification

Skaar v. Wilkie, 31 Vet.App. 16 (Feb. 1, 2019)

HELD: Court can retain jurisdiction over appeal and issue a limited remand for the Board to address an argument that the appellant had expressly raised below.

SUMMARY: Victor Skaar was denied service connection for leukemia, to include as due to radiation exposure. He appealed to the Court and filed a motion to certify a class of veterans “who were present at the 1966 cleanup of plutonium dust at Palomares, Spain,” and whose claims for service connection based on radiation exposure had been denied. 

At the Board, Mr. Skaar challenged the way VA measures radiation exposure under 38 C.F.R. § 3.311, but the Board never addressed this argument. The Court issued a limited remand, directing the Board to address this expressly raised argument, citing Brannon v. West, 12 Vet.App. 32, 35 (1998); Urban v. Principi, 18 Vet.App. 143, 145 (2004); and Robinson v. Peake, 21 Vet.App. 545, 552 (2008) (all holding that “the Board is required to consider all issues raised either by the claimant or by the evidence of record”).

In its limited remand order, the Court allowed Mr. Skaar 90 days to provide the Board with any additional argument or evidence and directed the Board to provide a supplemental statement of reasons or bases within 30 days after the evidence-submission period. The Court stated that “[s]oliciting a supplemental response from the Board, without vacating the decision on appeal, for the discrete purpose of evaluating a class certification motion arising from that appeal – an issue of first impression at the Court – is undoubtedly a unique circumstance” that made it appropriate for the Court to retain jurisdiction over the appeal.

Judge Davis issued a concurring opinion, recommending that the Court expressly overrule Cleary v. Brown, 8 Vet.App. 305 (1995), and broaden the use of limited remands as a necessary tool in support of its remand authority.

Judge Schoelen issued a concurring opinion expressing concern with the majority’s “unacknowledged overruling” of Cleary, and suggesting boundaries for limited remands in cases where the Court retains jurisdiction.

FULL DECISION

Procopio: Blue Water Navy Veterans Entitled to 38 U.S.C. § 1116 Presumption

Procopio v. Wilkie, docket no. 2017-1821 (en banc) (Fed. Cir. Jan. 29, 2019)

HELD: Blue Water Navy veterans who served in the “12 nautical mile territorial sea” of the Republic of Vietnam are entitled to the presumption of herbicide exposure and service connection under 38 U.S.C. § 1116.

SUMMARY: Mr. Procopio served aboard the USS Intrepid from 1964 to 1967, during which time the ship was deployed in the offshore waters of the Republic of Vietnam. In 2006 and 2007, he sought service connection for diabetes and prostate cancer, which the Regional Office denied in 2009. The Board affirmed the denial, as did the CAVC, relying on Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008). In Haas, the Federal Circuit had held that the language in 38 U.S.C. § 1116, “served in the Republic of Vietnam,” was ambiguous and thus deferred to VA’s “reasonable interpretation” that required “duty or visitation on the landmass” of Vietnam or in the inland waterways in order to be entitled to the presumption of service connection for certain herbicide-related conditions. Haas, 525 F.3d at 1184, 1195.

Mr. Procopio appealed to the Federal Circuit and the Court asked the parties to address (1) whether the phrase “served in the Republic of Vietnam” includes “service in the offshore waters within the legally recognized territorial limits of the Republic of Vietnam” and (2) what role, if any, does the “pro-claimant canon” of interpretation of veterans’ statutes play in this analysis.

The Federal Circuit, en banc, reviewed the history of the Agent Orange Act of 1991 and VA’s implementing regulations, and assessed VA’s interpretation of the statutory language under the analysis set forth in Chevron U.S.A. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-43 (1984). Chevron directs courts to first assess “whether Congress has directly spoken to the precise question at issue.” If so, the court is to “give effect to the unambiguously expressed intent of Congress.” If the statutory language is ambiguous, step two of the Chevron analysis requires courts to determine “whether the agency’s answer is based on a permissible construction of the statute” – and, if the agency’s interpretation is “reasonable,” Chevron requires courts to defer to that reasonable interpretation.

In this case, the Federal Circuit determined at step one of the Chevron analysis that “Congress has spoken directly to the question of whether Mr. Procopio, who served in the territorial sea of the ‘Republic of Vietnam,’ ‘served in the Republic of Vietnam.’” The Court based this determination on international law which “confirms that, when the Agent Orange Act was passed in 1991, the ‘Republic of Vietnam’ included both its landmass and its 12 nautical mile territorial sea.” The Court also relied on the language in § 1116 that includes “active military, naval, or air service . . . in the Republic of Vietnam” as reinforcing the “conclusion that Congress was expressly extending the presumption to naval personnel who served in the territorial sea.”

Because the Court determined at Chevron step one that Congress’s intent was clear, it did not reach step two. The Court thus overruled Haas and held that veterans who served in the 12 nautical mile territorial sea of the “Republic of Vietnam” are entitled to the presumption of service connection under 38 U.S.C. § 1116.

FULL DECISION

NOTE: On November 2, 2018, docket no. 17-1679, the Supreme Court granted certiorari in Gray v. Wilkie, to address whether the Federal Circuit has jurisdiction to review VA’s interpretation of its own regulation when VA issues that interpretive rule in its adjudication manual. The manual provision in question is the one that excludes deep water harbors from its definition of “inland waterways.” On February 1, 2019, the Solicitor General submitted a memorandum to the Supreme Court “suggesting that this case may become moot” in light of Procopio. The memorandum notes that “the Solicitor General has not yet determined whether to file a petition for a writ of certiorari in Procopio” and, therefore, the Gray case is not yet moot – nor is it likely to become moot before the February 25, 2019 oral argument. However, the Solicitor General stated that the case may become moot after oral argument but before a decision is issued.  

LINK TO GRAY DOCKET: https://www.supremecourt.gov/docket/docketfiles/html/public/17-1679.html

[My opinion: It is unlikely that VA will ask the Supreme Court to review Procopio. It is more likely that VA will pressure Congress to amend the statute to define “Republic of Vietnam” as limited to its landmass and inland waterways.]

Rosinski: Attorney challenges VA policy re: access to draft rating decisions

Rosinski v. Wilkie, docket no. 18-0678 (en banc) (Jan. 24, 2019) 

HELD: Attorney challenging VA’s policy to provide draft rating decisions to VSOs, but not attorneys, has direct standing and third-party standing to bring the challenge, and the appropriate remedy is to order the Secretary to issue a decision on his request for access to draft rating decisions.

 SUMMARY: Mr. Rosinski, veterans’ attorney, petitioned the Court for a writ of mandamus to compel VA to provide him with the same access to preliminary draft rating decisions that VA makes available to VSOs. This is the second petition filed on this issue. The Court dismissed the first one for lack of standing.

 The Court now determined that Mr. Rosinski has direct standing to have the Court hear his petition because (1) he has a statutory right under 38 U.S.C. § 5904(a) to represent clients throughout the VA claims process and the Secretary’s policy violates that right; (2) the Secretary is required under 38 U.S.C. § 5701(b) to disclosed “files, records, reports, and other papers and documents” to the “duly authorized agent or representative of a claimant”; and (3) “the Secretary’s policy results in both tangible and intangible harm” to the petitioner.

 The Court also determined that Mr. Rosinski has third-party standing on behalf of his clients to bring this petition. The Court noted that each of his clients “has a due process right to fair adjudication of his claim for benefits” and that while VA’s policy granting VSOs review of draft decisions is discretionary, “it results in a system where some veterans – those represented by attorneys – are deprived of a benefit afforded to others – those represented by VSOs.” The Court also found that because he has “existing attorney-client relationships with [his] clients, . . . he has a sufficiently close relationship to warrant third-party standing,” regardless of the fact that he “has not identified a specific client.” The Court further found that “there is a hindrance to the petitioner’s clients’ ability to protect their own interests . . . because of the structure of the VA adjudication system” and that the petitioner “is in a better position to assert his clients’ rights in this matter than any one of his clients is individually.”

While the Court found that Mr. Rosinski has standing to have his petition heard, the Court declined the address the merits of the petition because it determined that he has alternative means to obtain his relief – namely, by obtaining an appealable decision from VA. The Court granted the petition, in part, and directed the Secretary to issue an official, appealable decision on Mr. Rosinski’s request for access to draft rating decisions within 30 days. The Court noted that the Secretary “has the power to resolve this case with a single stroke of his pen” by changing the policy to allow ALL accredited representatives access to draft decisions. The Court added that the Secretary’s inaction in the year since the prior petition “is troubling” and that “the Secretary should consider whether he – and the veterans Congress charged him to assist – would be better served by voluntarily changing his policy, rather than by waiting for the lengthy appeals process to run its course.”

FULL DECISION

Demery: Notice of Appeal Filed After Veteran's Death

Demery v. Wilkie, docket no. 17-3469 (per curiam order) (Jan. 17, 2019)

HELD: Timely Notice of Appeal filed after the veteran’s death was not valid with respect to the substituted party, but the eligible substitute may amend the NOA to name her as the appellant and ask the Court to relate the amended NOA back to the date the original NOA was filed so as to make it timely.

SUMMARY: On October 3, 2017, the Court received a timely NOA of a June 22, 2017 Board decision. Shortly afterwards, the attorneys who filed the NOA notified the Court that the veteran had passed away and filed a motion to substitute his surviving spouse. The Court then discovered that the veteran had passed away in August 2017 – after the Board’s decision, but before the NOA had been filed. Because “a dead person may not appeal a Board decision,” the Court found that the NOA was “defective,” but still allowed the surviving spouse to file an amended NOA and to relate that NOA back to the date of the original filing.

FULL DECISION

George: Presumption of Soundness, CUE, Retroactivity

George v. Wilkie, docket no. 16-2174 (Jan. 4, 2019) 

HELD: In order to rebut the presumption of soundness, 38 U.S.C. § 1111 has always required VA to prove that a condition both pre-existed and was not aggravated by service. However, that is not how VA interpreted the statute prior to 2003 – and the Court declined to retroactively apply the correct statutory interpretation, as set forth in Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004), to an appeal alleging CUE in a pre-2003 final decision. 

SUMMARY: Kevin George was diagnosed with schizophrenia in service. A Medical Board report found that the condition pre-existed and was aggravated by service, but a Physical Evaluation Board found that the pre-existing condition was not aggravated by service. He filed a claim for service connection a few months after discharge and was denied in 1976. The Board denied the claim in 1977. 

In 2014, he filed a request to revise the 1977 Board decision on the basis of clear-and-unmistakable error (CUE), alleging that the Board failed to correctly apply the presumption of soundness by not rebutting “with clear and unmistakable evidence that his condition was not aggravated by service.” The Board found no CUE in the 1977 decision, noting that the Board at the time was not required to find clear and unmistakable evidence of a lack of aggravation. The Board acknowledged the Federal Circuit’s holding in Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004), but stated that “judicial decisions that formulate new interpretations of the law subsequent to a VA decision cannot form the basis of CUE.” 

On appeal at the CAVC, the Court outlined the relevant law. The Court first noted that the presumption of soundness statute in 1977 (and today) allowed the Secretary to rebut only by showing of clear and unmistakable evidence of bothpre-existence andlack of aggravation. However, VA’s implementing regulation in 1977, 38 C.F.R. § 3.304(b), only required clear and unmistakable evidence that the condition pre-existed service. VA invalidated the regulation in 2003. Wagner was decided in 2004.

The Court explained the requirements for establishing CUE in a final decision, noting that 38 C.F.R. § 20.1403(e) “states that CUE ‘does not include the otherwise correct application of a statute or regulation where, subsequent to the Board decision challenged, there has been a change in the interpretation of the statute or regulation.’” The Court cited DAV v. Gober, 234 F.3d 682, 698 (Fed. Cir. 2000) in holding that “[t]he new interpretation of a statute can only retroactively [a]ffect decisions still open on direct review, not those decisions that are final.”

The Court then discussed the Federal Circuit’s decision in Wagner and its subsequent holding in Jordan v. Nicholson, 401 F.3d 1296 (Fed. Cir. 2005). In Jordan, the Court applied the DAV rule to Wagner, holding that “CUE does not arise from a new regulatory interpretation of a statute.” In other words, even though Wagner explained that the presumption of soundness statute has always meant that it can only be rebutted with clear and unmistakable evidence of both pre-existence and a lack of aggravation, a claimant could not raise a CUE challenge to a final decision based on the invalidation of VA’s implementing regulation that only required a showing of pre-existence to rebut. 

Finally, the Court discussed the Patrick line of primarily nonprecedential cases that addressed WagnerJordan, and retroactivity in a CUE case. In Patrick, as in the present appeal, the claimant argued CUE in a prior final decision based on the incorrect application of the presumption of soundness. The CAVC affirmed the Board’s denial and the Federal Circuit remanded for the Court to consider the application of Wagner, which had recently been decided at that time. 

On remand, the CAVC again affirmed the Board’s denial, citing Jordan for holding that Wagner’s “new” interpretation of the presumption of soundness did not retroactively apply in a CUE case. Mrs. Patrick again appealed, and, in Patrick III, also a nonprecedential decision, the Federal Circuit explained that Jordan dealt with “whether a change in the regulatory interpretation of a statute had retroactive effect on CUE [motions], not whether [its] interpretation of the statute in Wagner had retroactive effect on CUE [motions].” The Federal Circuit described the Jordan holding as limited, stating that “[u]nlike changes in regulations and statutes, which are prospective, [the Court’s] interpretation of a statute is retrospective in that it explains what the statute has meant since the date of enactment.” In other words, “Wagner did not change the law but explained what [section] 1111 has always meant.” The Federal Circuit remanded the matter back to the CAVC to determine whether VA rebutted the presumption of soundness with clear and unmistakable evidence of a lack of aggravation. The CAVC vacated the Board’s decision, and the attorney filed an application for EAJA fees. 

The CAVC denied the EAJA application, finding that the Secretary’s position was substantially justified. Again, Mrs. Patrick appealed to the Federal Circuit. In Patrick v. Shinseki (Patrick VI), 668 F.3d 1325 (Fed. Cir. 2011) – the only precedential decision in this line of cases – the Federal Circuit reversed the CAVC’s decision and remanded for the CAVC to consider substantial justification under the “totality of circumstances” test. In a footnote, the Federal Circuit noted that in Patrick III, it had rejected the CAVC’s determination that the correct “interpretation of section 1111 did not apply retroactively in the context of a CUE claim,” and repeated that “our interpretation of § 1111 . . . did not change the law but explained what [section] 1111 has always meant.”

With respect to retroactivity and CUE, the Court acknowledged that the Federal Circuit’s interpretation of section 1111 in Wagner is “an authoritative statement of what the statute meant before as well as after” that decision, but still found that the 2004 Wagner decision “cannot defeat the finality of a 1977 Board decision . . . because consideration of CUE requires the application of the law as it was understood at the time of the 1977 decision.” The Court explained: “Applying a statute or regulation as it was interpreted and understood at the time a prior final decision is rendered does not become CUE by virtue of a subsequent interpretation of the statute or regulation by this Court or the Federal Circuit.” 

In applying the law to the facts of this case, the Court noted that the Secretary conceded that the Board erred when it determined that the 1977 Board was not required to find clear and unmistakable evidence of a lack of aggravation due to the 1977 version of the implementing regulation. The Court disagreed with this concession of error, stating that “it is not clear how the Board could have ignored [38 C.F.R. § 3.304(b)] or why the Board would have been required to find clear and unmistakable evidence of aggravation in 1977.” [ABK note: I don’t know . . . maybe because the statute says so? Call me crazy . . . ] The Court held: “While the Federal Circuit’s interpretation of the presumption of soundness statute in Wagner sets forth what the statute has always meant, it was not the interpretation or understanding of the statute before its issuance.” The Court noted the Federal Circuit’s finding in Jordan that “there was a change in interpretation of section 1111” when VA invalidated § 3.304(b) and thus determined that “Wagner does not apply retroactively to final decisions.” 

In response to the argument based on the Patrick line of cases, the Court held that Patrick III is not binding precedent and the footnote in Patrick VI is dicta. The Court added that the statements in Patrick III and Patrick VI regarding “Wagner’s retroactivity conflict with other precedential Federal Circuit caselaw,” specifically DAV, which held that “[t]he new interpretation of a statute can only retroactively [a]ffect decisions still open on direct review, not those decision[s] that are final.” To bolster its decision, the Court stated: “The impact of allowing judicial decisions interpreting statutory provisions issued after final VA decisions to support allegations of CUE would cause a tremendous hardship on an already overburdened VA system of administering veterans benefits.” 

The Court further found that even if Wagner applied retroactively, Mr. George’s CUE allegation would fail because he did not prove that the 2016 Board erred in determining that the 1977 Board’s errors did not manifestly change the outcome of its decision. The Court thus affirmed the 2016 Board’s decision.  

In a well-crafted dissent that will likely form the foundation for an appeal to the Federal Circuit, Judge Bartley stated that “the will of Congress, not VA, should prevail.” She reiterated that the Federal Circuit “‘soundly rejected’ the argument ‘that this court’s interpretation of section IIII did not apply retroactively in the context of a CUE claim” citing the Patrick VI footnote, adding that she was “not willing to dismiss this unambiguous and germane guidance from our reviewing court, particularly when that guidance is grounded in the unalterable principle that veteran-friendly congressional intent holds primacy over a VA interpretation that is less beneficial to veterans.” She rejected the majority’s concern of causing “a tremendous hardship” on VA, stating that she would have “no reservations about requiring VA to remedy the decades old errors that prohibit otherwise deserving veterans and their dependents from receiving the benefits to which they are statutorily entitled.”

FULL DECISION

Burkhart: DIC, 38 U.S.C. § 1151, & VA home loan guaranty

Burkhart v. Wilkiedocket no. 16-1334 (Jan. 3, 2019)

HELD: Surviving spouse of veteran whose death was service connected under 38 U.S.C. § 1151 and who is thus entitled to DIC benefits is not entitled to home loan guaranty benefits under Ch. 37. 

SUMMARY: Surviving spouse was granted dependency and indemnity compensation (DIC) after her husband’s death was deemed service connected under 38 U.S.C. § 1151. She sought and obtained a certificate of eligibility (COE) for a VA home loan in 2007, but never entered into a loan agreement. In 2013, she again requested an eligibility determination for a loan guaranty and was informed that she was not eligible and that the 2007 COE was issue in error. 

On appeal, the Court reviewed the relevant statutory provisions and determined that she was not eligible under the plain language or the legislative history of 38 U.S.C. § 1151 or Ch. 37. The Court also determined that the “incontestability” provision of 38 U.S.C. § 3721 applies to the relationship between the government and lending institutions – not between the government and those who are eligible for a loan guaranty. Finally, the Court addressed the appellant’s arguments regarding the Court’s ability to provide relief based on its equitable powers. The Court acknowledged that while it has equitable authority, “that authority is constrained by the jurisdiction Congress conferred on the Court.” The Court discussed the four equitable principles argued by the appellant – injunctive relief, equitable estoppel, laches, and waiver – and determined that none were available in this case as a form of relief. 

FULL DECISION

Kisor: Supreme Court grants certiorari

The Supreme Court added Kisor v. Wilkie to its docket.

LINK TO SCOTUS ORDER: https://www.supremecourt.gov/orders/courtorders/121018zor_f2ah.pdf

The Court will limit its review to the first question in the petition - whether the Court should overrule Auer v. Robbins, 519 U.S. 452 (1997) and Bowles v. Seminole Rock & Sand Co., 325 U.S. 410 (1945), with respect to deferring to VA’s interpretation of its own ambiguous regulations.

LINK TO PETITION: https://www.supremecourt.gov/DocketPDF/18/18-15/51909/20180629164148460_Kisor.cert.pet.pdf

Harper: TDIU is "part and parcel" of underlying claim

Harper v. Wilkie, 30 Vet.App. 356 (Dec. 6, 2018)

HELD: Entitlement to TDIU is “part and parcel of the underlying … claim” and a “grant of TDIU did not bifurcate the appeal but rather served as a partial grant.” Once the issue of a higher rating is in appellate status and the claimant is “not awarded the highest rating possible, including TDIU, for the entire appeal period, the issue of entitlement to TDIU remain[s] on appeal” and the Board has jurisdiction over it.

SUMMARY: The veteran was granted service connection for PTSD, rated 50%. 30 Vet.App. at 357. He appealed for a higher rating and submitted a TDIU application during the pendency of that appeal. Id. at 358. The RO denied TDIU, and Mr. Harper did not appeal that decision. Id.

In December 2015, the RO granted a 70% rating, but no higher. Id. Mr. Harper submitted another application for TDIU in February 2016. Id. The RO then granted TDIU effective February 2016. Id. The veteran appealed to the Board for a higher rating prior to December 2015, and the Board declined to address the effective date for TDIU because he had not appealed the decision that granted TDIU. Id.

This is appeal was sent to a panel for the Court to address whether the RO’s grant of TDIU bifurcated that issue from the appeal for a higher rating, thus requiring the veteran to file a new Notice of Disagreement to appeal the effective date for TDIU.

The Court held that Mr. Harper did not have to appeal the TDIU decision while the appeal for a higher rating for PTSD was pending “because the issue of entitlement to TDIU became part and parcel of the underlying PTSD claim and the RO’s grant of TDIU served only as a partial grant of his request for TDIU.” Id. at 359. The Court stated that “once Mr. Harper’s PTSD claim was in appellate status by virtue of the December 2008 NOD, … the issue of TDIU became part of the underlying PTSD claim when he filed an application for TDIU in February 2014.” Id. The Court stated that the “appeal for a higher disability rating was sufficient, when coupled with evidence of unemployability, to raise the issue of entitlement to TDIU for the entire appeal period” because “the issue of entitlement to TDIU … became part and parcel of the appeal for a higher initial disability rating for PTSD, and … the RO’s grant of TDIU did not bifurcate the appeal but rather served as a partial grant.” Id. at 361. The Court further explained:  

Mr. Harper’s NOD placed the issue of the appropriate disability evaluation into appellate status and, therefore, because he was not awarded the highest rating possible, including TDIU, for the entire appeal period, the issue of entitlement to TDIU for the period prior to February 2016 remained on appeal, and the Board had jurisdiction to consider that matter.  

Id. at 362. The Court reversed the Board’s decision and directed the Board to consider entitlement to TDIU prior to February 2016.

The Court also found that the Board failed to adequately explain its rejection of evidence that it mentioned in its recitation of the facts, but did not address in the analysis portion of the decision. The Court also found that the Board overlooked potentially relevant evidence of occupational impairment, and remanded for the Board to correct its reasons-or-bases errors that had been noted in a prior remand.

FULL DECISION

Event: 2018 Mizzou Veterans Clinic Symposium

November 9, 2018 - University of Missouri School of Law, Columbia, MO

The Veterans Appeals Improvement and Modernization Act of 2017: Finding Footing

ABK and Zach Stolz, Partner, Chisholm, Chisholm, & Kilpatrick, will provide practice pointers to veterans’ advocates.

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