Event: 2017 Veterans Clinic Symposium - Burn pits

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/

James: NO EQUITABLE TOLLING FOR NOTICE OF APPEAL PLACED IN MAILBOX, BUT NOT PICKED UP ON TIME

James v. Shulkin29 Vet.App. 127 (per curiam order) (Oct. 30, 2017)

HELD: Notice of Appeal that is timely placed in a personal mailbox, but not picked up by the mail carrier prior to the expiration of the 120-day deadline, is not an “extraordinary circumstance” beyond one’s control that warrants equitable tolling. 

SUMMARY: Mr. James sought to appeal a January 28, 2016 Board decision. On the last day to file his Notice of Appeal, he placed the NOA in his personal mailbox, raised the flag to alert his mail carrier to pick up the mail, and left town for the weekend. When he returned, the flag had been lowered, but the NOA had not been picked up. He mailed the NOA four days after the 120-day deadline. 

The Court rejected his NOA as untimely and found that the circumstances of his case did not warrant equitable tolling. Mr. James argued that the “errantly lowered flag on his residential mailbox constitutes an extraordinary circumstance beyond his control” and that the diligence required here should be the same type of diligence required in cases where the veteran files his NOA on time, but in the wrong place. 

The Court disagreed that this situation was the same as the “timely misfiled” cases because he did not timely misfile his NOA – he placed the NOA in his personal mailbox on time and then left town. He filed the NOA 4 days late. The Court found that “a fallen mailbox flag is not an extraordinary circumstance beyond the appellant’s control that warrants equitable tolling, but rather an ordinary hazard of last-minute mailing that could have been avoided but for the appellant’s ‘garden-variety neglect.’” 

Judge Greenberg dissented, asserting that by placing his NOA in the mailbox on the 120th day, the appellant “did everything required of him to ensure timely mailing under 38 U.S.C. § 7266.” Judge Greenberg stated that it is “irrelevant that there were other methods of mailing available, as his actions would have likely been sufficient to ensure timely mailing but for circumstances beyond his control” – and noted that the majority was imposing requirements on veterans beyond what is required by statute or at common law. Judge Greenberg stated that the majority was relying on “decades-old caselaw” to find Mr. James’s mailing amounted to “garden variety negligence” – and reminded the majority that Henderson v. Shinseki“and the repeated admonishments from the Federal Circuit for denying equitable tolling have changed the fundamental approach to the timely filing requirements.” (citing 562 U.S. 428, 441-42 (2011)). The Judge urged the Court to “start applying its equitable powers more broadly.” 

[NOTE: This case was appealed to the Federal Circuit on Dec. 6, 2017.]

FULL DECISION

Mead: NO EQUITABLE TOLLING FOR LATE EAJA APPLICATION

Mead v. Shulkin29 Vet.App. 159 (per curiam order) (Oct. 27, 2017)

HELD: To warrant equitable tolling of the 30-day deadline to file an EAJA application, a claimant must demonstrate that physical or mental illness, individually or in combination, rendered “one incapable of handling one’s own affairs or rational thought and decisionmaking,” and thus “directly or indirectly” prevented the timely filing of the EAJA application. 

SUMMARY: The attorney in this case filed an application for fees under the Equal Access to Justice Act (EAJA) 52 days late. The Court ordered her to explain why the application should not be dismissed as untimely. She admitted that she mistakenly believed she had 60 days to file her EAJA application. However, she explained to the Court that during the appeal, she had been seen for suspected cancer, underwent testing and outpatient surgery, and was under the care of a psychiatrist. She submitted her opposed EAJA application 52 days late – and the Court ordered her to provide additional information regarding the medical procedures and mental health diagnosis. She declined, stating that it would be a privacy violation and would set “an unfortunate precedent that calls into question the integrity of advocates practicing before this Court.” 

The Court explained that the 30-day deadline to file an EAJA application is subject to equitable tolling “if it is established that some ‘extraordinary circumstance’ prevented a timely filing, and that despite the circumstance the applicant pursued her rights diligently.” The Court found that the attorney had not demonstrated that “her physical or mental health singly or in combination directly or indirectlyprevented her from timely filing her EAJA application within the 30-day period.” (emphasis in original). The Court noted that she had outpatient surgery 2 days into the 30-day filing period and was on anti-depressants during the appeal, but found that she did not “allege that these problems rendered her incapable of rational thought or decisionmaking, and she declined to provide opinions from her medical care providers as to her abilities during the 30-day EAJA filing period.” The Court further noted that she had mistakenly thought she had 60 days to file the application – which it characterized as “the type of garden variety neglect not contemplated by equitable tolling.” 

Regarding the attorney’s privacy concerns, the Court stated that she could ask the Court to lock the record. The Court added that it “had not required anything more of counsel than it requires of a veteran seeking equitable tolling of a deadline” – and dismissed the application as untimely. 

Judge Greenberg dissented on two grounds. First, he would have found that the attorney’s “potentially life-threatening illness” amounted to an extraordinary circumstance and that she was diligent in her representation during this time. Second, he challenged the Court’s Internal Operating Procedures that allowed for review of a single-judge decision by two judges as a violation of 38 U.S.C. § 7245(c)(1). This statute states: “A majority of the judges of the Court shall constitute a quorum for the transaction of the business of the Court.” 

In this case, Judge Greenberg had granted equitable tolling in a single-judge order – but two other judges disagreed and called the decision to panel. At that time, there were six active judges on the Court. Judge Greenberg argued that “sending a matter for precedential panel disposition constituted ‘business of the Court’ that should have required a 4 vote majority” – and that “[s]ubjecting an individual Judge’s equitable tolling discretion to panel review is inconsistent with the IOP itself” and with the basic tenets of equity jurisprudence. He concluded that “[a] process that allows for a single Judge’s veteran-friendly decision to be overturned merely because two other Judges disagreed goes against the intent of Congress in creating our Court, which was to ‘place a thumb on the scale in the veteran’s favor in the course of administrative and judicial review of VA decisions.’” (quoting Henderson v. Shinseki, 562 U.S. 428, 440 (2011)). 

FULL DECISION

Sucic: TO SUBSTITUTE, AN ELIGIBLE CHILD MUST MEET VA’S DEFINITION OF “CHILD” AT THE TIME OF THE VETERAN’S DEATH

Sucic v. Shulkin29 Vet.App. 121 (per curiam order) (Oct. 26, 2017)

HELD: A child of a deceased veteran is eligible for substitution only if he/she meets VA’s definition of “child” at the time of the veteran’s death – not just during the pendency of the veteran’s claim. 

SUMMARY: The veteran was granted service connection for PTSD in 2007, effective 2003. He appealed for an earlier the effective date all the way up to the Federal Circuit. In February 2016, the Federal Circuit reversed the Veterans Court’s decision and remanded the matter for the Court to consider a 1992 effective date. In May 2016, the CAVC remanded the issue to the Board. 

In August 2016, the veteran’s attorney notified the Court that the veteran had died in April 2016 and requested substitution of his three adult children. The attorney acknowledged that the “children” were now adults – but argued that the Court should allow them to be substituted because this appeal involves the effective date of PTSD for the period from 1992 to 2003, and the veteran’s children were minors for all or part of this time period. 

The Court disagreed – and held that in order to be substituted “an individual must satisfy the requirements of the statutory framework for these benefits when the veteran dies as opposed to at some point during the pendency of the veteran’s claim.” VA defines an eligible “child” as one who is unmarried and under 18 or “became permanently incapable of self-support” prior to age 18 or who is under age 23 and a full-time student. 38 U.S.C. § 101(4)(A). The Court held: “A child of a deceased veteran is therefore eligible for substitution only if he or she satisfies the definition of 38 U.S.C. § 101(4)(A) ‘upon the death’ of the veteran.” Because none of the adult children met VA’s definition of eligible “child” at the time of the veteran’s death, the Court denied the motion to substitute. 

FULL DECISION

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/ 

Urban: RATING CO-EXISTING RESPIRATORY CONDITIONS, 38 C.F.R. § 4.96

Urban v. Shulkin, 29 Vet.App. 82 (Sept. 18, 2017)

HELD: When assigning a single disability rating for co-existing respiratory conditions, 38 C.F.R. § 4.96(a) allows VA to (1) determine which disability is predominant and then (2) evaluate the overall severity of the multiple conditions under the diagnostic criteria for the predominant disability. The fact that the non-predominant disability may cause symptoms that are not listed in the diagnostic criteria for the predominant disability does not automatically warrant a higher rating. 

SUMMARY: Mr. Urban is service connected for obstructive sleep apnea (OSA) and asthma, evaluated as 60% disabling under the Diagnostic Code (DC) for asthma since that DC results in a higher rating than the DC for OSA. He appealed for a higher rating, arguing that although he was entitled to a 60% rating under the DC for asthma, he should be rated 100% because his OSA required the use of a CPAP machine and caused him to be tired during the day – two factors that are not part of the 60% rating. 

The Board denied the higher rating based on 38 C.F.R. § 4.96(a), which precludes separate evaluations for certain listed respiratory conditions, including asthma and OSA. 

On appeal to the Veterans Court, Mr. Urban argued that the specific criteria for the higher evaluation listed in the predominant disability’s DC need not be met – and that symptoms in the non-predominant disability can warrant a higher rating. The Secretary argued that a higher rating is warranted only when the criteria listed in the DC for the predominant disability are met. Mr. Urban also argued that the Board erred when it denied referral for extraschedular consideration under 38 C.F.R. § 3.321 “because the availability of a higher scheduler evaluation does not prevent extraschedular referral.” The Secretary conceded that the Board may have erred in suggesting that referral was not warranted because of the availability of a higher rating, but argued that the error was harmless because the Board’s overall extraschedular assessment was adequate. 

The Court agreed with the Secretary. Under § 4.96(a), certain listed respiratory conditions cannot be combined, and are instead rated under the DC “which reflects the predominant disability with elevation to the next higher evaluation where the severity of the overall disability warrants such elevation.” The Court noted that the language at issue in this appeal is the meaning of “where the severity of the overall disability warrants such elevation.” The Secretary argued that after determining which disability is predominant, VA then must apply the DC for that disability, “considering all of the signs and symptoms attributable to either one or both of those disabilities.” Mr. Urban agreed that the phrase requires VA to look at the symptoms of both disabilities and evaluated them under DC 6602, but argued that “his symptoms need not match the criteria for a higher evaluation listed in DC 6602 to obtain a higher evaluation under § 4.96(a) and that OSA symptoms not listed in DC 6602 may nevertheless form the basis of a higher evaluation under that DC.” 

The Court found that the language in § 4.96(a) was ambiguous and thus deferred to the Secretary’s “reasonable” interpretation of the phrase “with elevation to the next higher evaluation” to refer to the “next higher evaluation level of the predominant disability DC.” To attain the higher rating, “the criteria listed in that evaluation level are key to assessing the severity of the overall disability from both respiratory conditions.” The Court found that this interpretation allows VA “to assess the overall symptoms of the coexisting respiratory conditions against the criteria listed in the predominant disability’s DC.” The Court found the interpretation to be consistent with the plain language of the regulation, as well as with its purpose within VA’s regulatory scheme (“to avoid duplicate compensation payments for the same symptoms,” i.e., “pyramiding”). 

FULL DECISION

Goodman: 38 C.F.R. § 3.317; MEDICALLY UNEXPLAINED MULTI-SYMPTOM ILLNESS

Goodman v. Shulkin, 870 F.3d 1383 (Fed. Cir. Sept. 18, 2017)

HELD: VA adjudicators may rely on a medical examiner’s opinion as to whether a condition is a medically unexplained multi-symptom illness (MUCMI). However, these decisions are not precedential and do not prevent other veterans from establishing entitlement to service connection for the same condition as a MUCMI under 38 C.F.R. § 3.317. 

SUMMARY: Prezell Goodman served in the U.S. Army from 1972 to 1992, including service in Southwest Asia during the Persian Gulf War. His service medical records were negative for rheumatoid arthritis and he did not report joint pain at separation. In 2007, he was treated for hand stiffness and knee pain, which he said began in service. Shortly after this treatment, he filed a claim for service connection for rheumatoid arthritis. The RO and the Board denied the claim. 

He appealed to the Veterans Court, and the parties entered into a Joint Motion to Remand the appeal for the Board to consider whether Mr. Goodman was entitled to presumptive service connection for rheumatoid arthritis as a MUCMI under 38 C.F.R. § 3.317. The parties agreed that the question of whether Mr. Goodman’s rheumatoid arthritis was a MUCMI is a medical determination. 

The Board obtained a medical opinion by a VA hospital’s Director of Rheumatology, who concluded that it was less likely that Mr. Goodman’s rheumatoid arthritis was a MUCMI under § 3.317 because “it has at least partially explained and widely accepted concepts in regards to etiology and pathogenesis that are well documented and established in the literature.” The examiner added that it was less likely that his rheumatoid arthritis was related to any in-service exposure event because he had no symptoms in service and it was diagnosed 15 years after his discharge. The Board relied on this opinion to deny the claim. 

Mr. Goodman appealed again to the Veterans Court, asserting that the Board erred in relying on the medical opinion because it did not “pinpoint a specific etiology or pathophysiology” for his arthritis. The Court found that the Board did not err in its interpretation of § 3.317 and found that the regulation allows “medical experts to identify which diseases . . . have at least a partially explained etiology and pathophysiology.” 

On appeal to the Federal Circuit, Mr. Goodman argued that the Veterans Court misinterpreted § 3.317 by “improperly delegate[ing] the authority for determining a qualifying disease to an individual physician.” He asserted that “a medical expert in an individual case cannot establish a general or precedential rule precluding rheumatoid arthritis from qualifying as a MUCMI.” 

The Federal Circuit rejected this argument. The Court first noted that 38 U.S.C. § 1117 provides Persian Gulf War veterans with presumptive service connection for a “qualifying chronic disability” that “cannot be attributed to any known clinical diagnosis.” The statute defines “qualifying chronic disability” as one that results from “[a]n undiagnosed illness” or “[a MUCMI] . . . that is defined by a cluster of signs or symptoms.” 38 U.S.C. § 1117(a)(2). The implementing regulation, § 3.317, contains a similar definition of “qualifying chronic disability”: “[T]he term [MUCMI] means a diagnosed illness without conclusive pathophysiology or etiology, that Is characterized by overlapping symptoms and signs . . . . Chronic multisymptom illnesses of partially understood etiology and pathophysiology, such as diabetes and multiple sclerosis, will not be considered medically unexplained.” 38 C.F.R. § 3.317(a)(2)(ii). 

The Court found that the regulation did not expressly “prohibit medical professionals from professing whether certain medical diseases may constitute a MUCMI.” However, because neither the statute nor the regulation “state who has the power to diagnose illnesses that may qualify as a MUCMI,” the Court considered the relevant statutory and regulatory history. In October 2010, VA published guidelines on the regulation to allow medical professionals to provide opinions that adjudicators could use in making MUCMI determinations on a case-by-case basis. The Court noted that this gave VA adjudicators the same authority in MUCMI determinations that they have in other disability claim determinations. See 38 C.F.R. § 4.2 (“It is the responsibility of the rating specialist to interpret reports of examination in the light of the whole recorded history…”). The Court thus held that “VA adjudicators may rely on a medical examiner’s evaluation of whether a veteran’s condition qualifies as a MUCMI pursuant to § 3.317(a)(2)(ii).” 

With respect to Mr. Goodman’s argument that a medical examiner in a particular case cannot establish precedent regarding whether a condition is a MUCMI, the Court noted that Board decisions are not precedential (38 C.F.R. § 20.1303), and the medical opinion in this case only applies to Mr. Goodman’s rheumatoid arthritis. The Court held that “in individual MUCMI determinations, the VA adjudicator may consider evidence of medical expert opinions and all other facts of record to make the final determination of whether a claimant has proven, based on the claimant’s unique symptoms, the existence of a MUCMI.” The Court further held that there is nothing in the regulation that “precludes a previously-denied, or future, rheumatoid arthritis claimant from seeking the presumptive service connection afforded pursuant to § 3.317.”  

FULL DECISION

Jensen: SPECIALLY ADAPTED HOUSING (SAH)

Jensen v. Shulkin, 29 Vet.App. 66 (Sept. 12, 2017)

HELD: In order to be eligible to receive a specially adapted housing (SAH) grant, a claimant “must (1) have a permanent and total disability (2) due toa disorder that (3) involves bothlower extremities and (4) causes a loss of use so severe that it precludeslocomotion without the regular and constant use of assistive devices.” Under 38 U.S.C. § 2101(a)(2)(B), “a loss of use exists if a veteran has suffered a deprivation in his ability to use his lower extremity so severe that he is precluded from perambulating without one of the required assistive devices.” However, “locomotion is precluded even if a veteran is capable on occasion of moving about unaided.”

SUMMARY: Robert Jensen was service connected for residuals of a right-foot fracture shortly after his separation from service in 1984. In 2002, he was service connected for degenerative disc disease of his lumbar spine. In 2006, he was granted an unemployability rating. He had been using a cane since 2004. In 2008, a nurse practitioner wrote that “he is severely limited in his ability to walk due to his condition.” His doctors recommended aqua therapy, which helped. Unfortunately, “the travel and expense necessary to attend therapy sessions had become onerous,” so he filed a claim for SAH, requesting a one-time grant of $50,000 “to defray the cost of installing a heated therapy pool in his home.” 

Under 38 U.S.C. § 2101(a)(1), VA may assist a veteran in acquiring housing or equipment that is made necessary by the veteran’s disability. A veteran is eligible for this benefit if he/she is “entitled to compensation . . . for a permanent and total service-connected disability” that results in the “loss, or loss of use, of both lower extremities such as to preclude locomotion without the aid of braces, crutches, canes, or a wheelchair.” 38 U.S.C. § 2101(a)(2)(B)(i). 

The RO denied Mr. Jensen’s claim and he appealed to the Board. He stated that he needed a cane or crutches to ambulate and that “without the assistance of prosthetic devices and daily aqua-therapy,” he would “no longer have the use of both lower extremities.” After several VA examinations and a Board remand, the RO granted service connection for several related conditions, but continued to deny the SAH grant. The Board affirmed the denial. 

On appeal, the Court considered whether Mr. Jensen’s disabilities resulted in the “loss of use” of both lower extremities that would establish entitlement to SAH. Neither the statute nor the relevant regulation – 38 C.F.R. § 3.809(b)(1) – define “loss of use,” but the Secretary urged the Court to adopt the definition of this phrase from the regulation dealing with special monthly compensation, 38 C.F.R. § 3.350(a)(2)(i). 

The Court discussed the relevant statutory and regulatory history and determined that the definition of “loss, or loss of use” in 38 C.F.R. § 3.350 did not apply to section 2101(a)(2)(B)(i) for several reasons. First, § 3.350(a)(2)(i) defines “loss of use of a foot,” whereas section 2101(a)(2)(B)(i) deals with the loss of use of both lower extremities. Second, other sections of § 3.350 expressly discuss the “loss of use of both lower extremities.” The Court found that the Secretary’s proposed interpretation essentially separated the phrase “loss of use” from “lower extremities” – and that this  “interpretation alters the statute rather than clarifies it.” 

The Court also found it persuasive that “Congress and VA have had nearly 60 years to give some hint of a cross-reference between [§ 3.350 and section 2101(a)(2)(B)(i)] that would have given claimants and adjudicators a clear idea of their intentions, and they never have.” 

Having rejected the Secretary’s proposed interpretation, the Court turned to the dictionary to define “loss of use” and “such as.” The Court held that “a loss of use exists if a veteran has suffered a deprivation in his ability to use his lower extremity so severe that he is precluded from perambulating without one of the required assistive devices.” The Court further held that “locomotion is precluded even if a veteran is capable on occasion of moving about unaided.” Applying this definition to the facts of this case, the Court concluded that Mr. Jensen met the requirements for SAH and reversed the Board’s denial. 

Finally, the Court addressed the Secretary’s argument that “every time an individual is prescribed an assistive device in conjunction with a lower extremity disability, he or she would then automatically be eligible to receive” SAH. The Court rejected this argument by stating that an eligible claimant “must (1) have a permanent and total disability (2) due toa disorder that (3) involves bothlower extremities and (4) causes a loss of use so severe that it precludeslocomotion without the regular and constant use of assistive devices.” 

FULL DECISION

Kisor: 38 C.F.R. § 3.156(c), EARLIER EFFECTIVE DATE

Kisor v. Shulkin, 869 F.3d 1360 (Fed. Cir. Sept. 7, 2017)

HELD: When newly received service records do not “remedy the defects” of a prior claim, those records are not “‘relevant’ for purposes of § 3.156(c)” and thus will not warrant an earlier effective date.

SUMMARY: Mr. Kisor was a Vietnam combat veteran. In 1982, he filed a claim for service connection for PTSD. His Vet Center therapist submitted a letter with a diagnosis of PTSD. However, a 1983 VA (C&P) psychiatrist diagnosed a personality disorder. The RO denied the claim due to the lack of a PTSD diagnosis. Mr. Kisor did not appeal this decision and it became final.

In 2006, he filed a request to reopen his previously denied claim. He subsequently submitted a psychiatric evaluation showing a diagnosis of PTSD. He also submitted service records showing his combat history. The RO obtained an opinion from a VA examiner who confirmed the diagnosis of PTSD. The RO then made a Formal Finding of Information Required to Document the Claimed Stressor and verified his combat service. The RO granted service connection for PTSD, rated 50%, effective June 5, 2006, the date it received his request to reopen. The grant was based on the PTSD diagnosis and the Formal Finding of Information.

Mr. Kisor appealed for a higher rating and an earlier effective date. The RO granted a higher rating, but denied an earlier effective date.

Mr. Kisor appealed to the Board, arguing that there was clear and unmistakable error (CUE) in the 1983 RO decision. The Board rejected his arguments, but identified an alternative argument for an earlier effective date – via 38 C.F.R. § 3.156(c), which requires the VA to reconsider a veteran’s claim when relevant service department records are newly associated with the veteran’s claims file, whether or not they are ‘new and material’ under § 3.156(a).” (quoting Blubaugh v. McDonald, 773 F.3d 1310, 1313 (Fed. Cir. 2014)). The Board considered whether the new evidence warranted reconsideration of his claim such that he would be entitled to a 1982 effective date. The Board determined that the new records were not “relevant” for purposes of § 3.156(c) because the 1983 decision denied service connection due to a lack of a PTSD diagnosis – and there was no dispute as to his combat status or in-service stressor.  

Mr. Kisor appealed to the CAVC, arguing that the Board failed to apply § 3.156(c). The Court rejected this argument, noting that the newly submitted service records did not contain a diagnosis of PTSD – and that the lack of such diagnosis was the basis for the 1983 denial. The Court found no error in the Board’s application of § 3.156(c).

Mr. Kisor appealed to the Federal Circuit, arguing that the Veterans Court misinterpreted § 3.156(c)(1). He argued for a broad interpretation of the word “relevant” based on the Federal Rules of Evidence, which would find a service record “relevant” if it has “any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.”

The Secretary argued for a narrower interpretation of “relevant” that “depends upon the particular claim and the other evidence of record.” The Secretary stated that Mr. Kisor’s newly submitted service records only relate to the existence of an in-service stressor – not to a diagnosis of PTSD – and that the “issue of an in-service stressor was never disputed in the 1983 claim.” The Secretary stated that neither the Board nor the Veterans Court “required that the evidence relate to the basis for the prior denial in all cases.” However, in Mr. Kisor’s case, the evidence relating to the in-service stressor “could not be relevant without a medical diagnosis for PTSD at the time of the previous claim.”

The Federal Circuit first determined that the term “relevant” in 38 C.F.R. § 3.156(c)(1) was ambiguous, and found that the Board’s interpretation was not “plainly erroneous or inconsistent with VA’s regulatory framework.” The Court found that the newly submitted service records were “superfluous” and determined that since they “did not remedy the defect of his 1982 claim and contained facts that were never in question,” there was no error in the Board’s conclusion that they were not “relevant” for purposes of § 3.156(c)(1).

In response to Mr. Kisor’s argument that the Veterans Court construed § 3.156(c)(1) too narrowly, the Federal Circuit held that their interpretation did not require “that relevant records must relate to the basis of a prior denial,” but rather that “on the facts and record of this case, Mr. Kisor’s later-submitted materials were not relevant to [the] determination of his claim.” The Court thus affirmed the CAVC’s decision.

FULL DECISION

Sharp: VA IS NOT REQUIRED TO OBTAIN AN EXAM DURING A “FLARE-UP” IN ALL CASES, BUT EXAMINERS MUST ESTIMATE FUNCTIONAL LOSS DURING A FLARE BASED ON OTHER EVIDENCE, INCLUDING LAY STATEMENTS

Sharp v. Shulkin, 29 Vet.App. 26 (Sept. 6, 2017)

HELD: Whether VA is obligated to obtain an examination during a flare-up period depends on the nature of the disability and the frequency and duration of the flare. The Board cannot rely on an examiner’s broad statement that an opinion as to the extent of functional loss during a flare-up is not possible “without resort to speculation” because there is “no conceptual or empirical basis for making such a determination” without first determining that this statement “is predicated on a lack of knowledge among the ‘medical community at large’ and not the insufficient knowledge of the specific examiner.” Lay statements can provide “an adequate basis on which to formulate an opinion regarding additional functional loss during flares.”

SUMMARY: Mr. Sharp was service connected for arthritis of both shoulders, rated 10% each, and both hands and forearms, rated 0%. He appealed for higher ratings. The Board remanded for an examination that included range-of-motion (ROM) testing, and asked the examiner to explain the extent to which the veteran has “functional loss due to pain” or any other symptoms “during flare-ups and/or with repeated use.”

In September 2015, a VA examiner noted “the veteran’s reports of experiencing periodic flares,” but indicated that he was not experiencing a flare-up during the examination. The examiner stated that the veteran reported “additional functional loss during flare periods in terms of increased pain and lack of endurance,” but concluded that “it was not possible without mere speculation” to estimate the loss of ROM or functional loss during flares “because there is no conceptual or empirical basis for making such a determination without directly observing function under these circumstances.”

The RO granted 10% ratings for Mr. Sharp’s forearm and hand conditions, but denied higher ratings.

The Board affirmed the RO’s decision, finding that “VA substantially complied” with its remand, and that the examiner provided an adequate explanation for not providing an opinion regarding functional loss during a flare-up.

On appeal to the Court, Mr. Sharp argued that the Board clearly erred in accepting the VA medical opinion as adequate because the examiner failed to estimate the additional functional loss during a flare, as required by law and by the Board’s remand. The Secretary argued that this Court’s case law allowed the examiner to “decline to offer an opinion on the grounds that doing so would require resort to speculation.”

The Court summarized the current law surrounding the requirements for evaluating musculoskeletal disabilities, and stated that, according to the VA Clinician’s Guide, “examiners are instructed to inquire whether there are periods of flare,” and, if so, “state their severity, frequency, and duration; name the precipitating and alleviating factors; and estimate, ‘per [the] veteran,’ to what extent, if any, they affect functional impairment.” The obligation to obtain an examination during a flare-up period depends on the nature of the disability in the particular case. For example, if a veteran reports flare-ups that last weeks, it may be possible to schedule an examination during a flare, whereas it is impractical to require an examination during a flare that generally only lasts a few hours or a day. “Thus, the frequency, duration, and severity of flares are necessary considerations when determining whether VA must attempt to schedule an examination during a flare.” (citing Ardison v. Brown, 6 Vet.App. 405, 408 (1994) and Voerth v. West, 13 Vet.App. 117, 122 (1999)).

The Court further explained its holding in Jones v. Shinseki, 23 Vet.App. 382 (2010), as allowing “the Board to accept a VA examiner’s statement that he or she cannot offer an opinion without resorting to speculation, but only after determining that this is not based on the absence of procurable information or on a particular examiner’s shortcomings or general aversion to offering an opinion on issues not directly observed.”

In this case, the Court found that there was no evidence of record regarding the frequency or duration of Mr. Sharp’s flare-ups other than the notes in the examiner’s report. Because of this, the Court determined that the Board did not err in finding the examination inadequate solely because it was not conducted during a flare.

However, the Court determined that even though VA is not required to obtain an examination during a flare-up, VA examiners are required to “estimate the functional loss that would occur during flares.” (citing DeLuca v. Brown, 8 Vet.App. 202, 204 (1995); Mitchell v. Shinseki, 25 Vet.App. 32. 44 (2011); and Petitti v. McDonald, 27 Vet.App. 415, 429-30 (2015) (holding that “credible lay evidence of functional loss due to pain, including during flare periods, observed outside of the VA examination context could constitute objective evidence in support of an evaluation”)). The Court determined that the examination in this case was inadequate because the examiner “did not elicit relevant information as to the veteran’s flares or ask him to describe the additional functional loss, if any, he suffered during flares and then estimate the veteran’s functional lost due to flares based on all the evidence of record—including the veteran’s lay information—or explain why she could not do so.”

The Court held that its “case law and VA guidelines anticipate that examiners will offer flare opinions based on estimates derived from information procured from relevant sources, including the lay statements of veterans.” The Court rejected the examiner’s broad statement regarding “no conceptual or empirical basis” for assessing functional loss during a flare because it is “contradicted by the VA Clinician’s Guide, which specifically advises examiners to try to procure information necessary to render an opinion regarding flares from veterans.”

The Court further reiterated its holding in Jones, stating that “before the Board can accept an examiner’s statement that an opinion cannot be provided without resort to speculation, it must be clear that this is predicated on a lack of knowledge among the ‘medical community at large’ and not the insufficient knowledge of the specific examiner.”

Finally, the Court rejected the notion that lay statements “can never provide an adequate basis on which to formulate an opinion regarding additional functional loss during flares” as “inconsistent with this Court’s case law and VA’s own practice as set forth in VA’s Clinician’s Guide.”  

FULL DECISION

Patricio: MARITAL STATUS FOR DIC INVOLVING MULTIPLE JURISDICTIONS

Patricio v. Shulkin, 29 Vet.App. 38 (Aug. 31, 2017)

HELD: A surviving spouse can challenge VA’s denial of status as a surviving spouse for DIC purposes – even where there is a prior determination that the marriage was not valid for purposes of adding the spouse to the veteran’s benefit during the veteran’s lifetime. The surviving spouse does not have to challenge that earlier decision on the basis of CUE in order to appeal the DIC denial. In fact, the surviving spouse would lack standing to bring such a challenge since the spouse was not the “claimant” in the earlier decision. (The veteran was.)

SUMMARY: This case involves the validity of a marriage for DIC purposes. The veteran, Antonio Patricio, was married to his first wife, Susan, in the Philippines in 1968. They had a daughter in 1970, and her birth certificate lists the veteran’s nationality as American. In 1973, a California court entered final judgment on a divorce decree.

In 1980, the veteran married the appellant in this case, Corazon, in Seoul, Korea. They had a son in 1982, and his birth certificate indicates that the veteran was naturalized as a U.S. citizen in 1973.

In 1986, the veteran filed a Status of Dependents form, seeking additional benefits for his children from both marriages. The RO sought a legal opinion from VA’s district counsel regarding whether the 1973 California divorce legally terminated the veteran’s marriage and, thus, whether Ms. Patricio could be recognized as his wife for the purpose of being added to his award as a dependent. The opinion held that because the veteran lived in the Philippines during and following service, Philippine law governed – and that law does not recognize foreign divorces by its citizens. The RO denied the claim for additional dependents’ benefits and the veteran filed a Notice of Disagreement, but did not perfect his appeal to the Board.

The record also contains a 1989 birth certificate that lists the veteran and a third woman as the child’s parents, with both of their nationalities listed as American. The birth certificate indicates they were married in 1976 in California.

In 1989, the veteran and Ms. Patricio moved to Florida. The veteran died in Texas in 2009. Prior to his death, he had been granted service connection for various disabilities, and was paid as a single veteran with no dependents.

In August 2009, the first wife (Susan) filed a claim for dependency and indemnity compensation (DIC). Two months later, the appellant filed a claim for DIC. In 2011, the RO granted DIC to Susan, and denied the appellant’s claim. Ms. Patricio appealed.

In September 2015, the Board denied Ms. Patricio recognition as the veteran’s surviving spouse because Philippine law would not recognize the 1973 divorce from his first wife, Susan. The Board also determined that Ms. Patricio’s marriage could not be “deemed valid” because DIC benefits had already been granted to Susan.

On appeal to the CAVC, Ms. Patricio argued for reversal under the Constitution’s Full Faith and Credit Clause, asserting that the Court and VA must recognize the validity of the 1973 California divorce decree. The Secretary urged the Court to dismiss the appeal for lack of jurisdiction because Ms. Patricio had not properly filed a motion to revise the 1986 decision on the basis of clear and unmistakable error (CUE). Alternatively, the Secretary argued that the Court should remand the case for the Board to determine the veteran’s citizenship in 1973, when he and Susan divorced.

The Court rejected the Secretary’s argument to dismiss because Ms. Patricio had appealed the RO’s decision that determined that the veteran’s first wife, Susan, was his surviving spouse for VA benefits purposes. This was the subject of the Board decision – and the Court clearly has jurisdiction over final Board decisions. The Court noted that Ms. Patricio was not challenging the 1986 decision that denied the veteran additional compensation based on dependents. In fact, the Court noted that she could not file a CUE motion with that decision – since a CUE challenge can only be initiated by the Secretary or the claimant – and she was not the claimant in that decision. See Rusick v. Gibson, 760 F.3d 1342, 1345-46 (Fed. Cir. 2014) (stating that a veteran’s survivor lacks standing to raise a CUE challenge to a decision pertaining to the veteran’s benefits).

The Court further noted that VA decides survivors’ claims “without regard to any prior disposition of those issues during the veteran’s lifetime,” citing 38 C.F.R. § 20.1106, so the 1986 dependency decision is irrelevant to Ms. Patricio’s DIC claim.

The Court determined that remand was the appropriate remedy, since there were factual issues that the Board did not address – specifically, the veteran’s citizenship at the time of the 1973 California divorce. If he was a naturalized citizen at that time, then U.S. law would govern the issue of surviving spouse status and the California divorce would be valid. If he was a citizen of the Philippines, however, that country’s law would govern – and the 1973 divorce would not be recognized. Because the Board did not make any findings with respect to the veteran’s nationality at the time of the 1973 divorce, the Court determined that remand was necessary for the Board to address this issue.

The Court declined to address Ms. Patricio’s Full Faith and Credit argument, but noted that even if it did address this argument, it might not necessarily result in an award of benefits – since the record contains evidence of a marriage to a third woman that occurred prior to the appellant’s marriage to the veteran. So, even if the divorce from Susan was valid for surviving spouse purposes, it is unclear if and/or how the marriage to the third was terminated. Because the Court cannot make factual findings in the first instance, it remanded the appeal for the Board to address these questions.

FULL DECISION

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