Bonds: Any formal claim for one benefit can raise an informal claim for another (applies to claims filed before Mar. 24, 2015)

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Bonds v. McDonough, 35 Vet.App. 355 (2022)

HELD: A formal claim for compensation under 38 U.S.C. § 1151 CAN ALSO SERVE AS A CLAIM FOR COMPENSATION UNDER 38 u.s.c. § 1110 under the regulation in effect prior to March 24, 2015.

Summary: Veteran filed a VA Form 21-526 explicitly requesting service connection under 38 U.S.C. § 1151 for a leg amputation that he claimed was caused by VA’s inadequate care of his wound. He argued that he was diabetic and should have received extra care. The record showed that he was diagnosed with diabetes (a listed chronic condition under 38 C.F.R. § 3.309(a)) within a year of separation from service.

The Court held that VA has a duty to liberally construe claim forms - and because the veteran’s claim under § 1151 was received when the regulations allowed for informal claims, VA was required to identify all explicitly- and implicitly-raised claims. Even if a request for benefits under § 1151 cannot encompass a claim for § 1110 benefits, it can raise a separate, informal claim for § 1110 benefits.

NOVA: Pre-2021 version of DC 5055 applies to partial knee replacements

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NOVA v. Secretary of VA, 48 F.4th 1307 (Fed. Cir. 2022)

HELD: DC 5055 did not unambiguously exclude partial knee replacements.

Summary: In Hudgens v. McDonald, VA denied a 100% rating for a veteran’s partial knee replacement because it determined that DC 5055 only applied to TOTAL knee replacements. The CAVC affirmed – and Mr. Hudgens appealed to the Federal Circuit. Less than two weeks before the Secretary’s brief was due, VA published its “Knee Replacement Guidance,” which said it was VA’s “long-standing interpretation” of the regulations that the 100% rating only applied to total knee replacements – and that an “explanatory note” saying this would be added to 38 CFR 4.71a. Despite this (or maybe because of this?), the Federal Circuit reversed the CAVC’s decision and held that DC 5055 doesn’t unambiguously exclude partial knee replacements.

Four years later, VA amended DC 5055 – following notice and comment rulemaking – to clarify the intent that this DC only applies to total knee replacements. The change became effective on Feb. 7, 2021.

NOVA petitioned the Federal Circuit to invalidate the new rule. The Court first determined that the GUIDANCE was “final agency action” that could be reviewed under 38 USC § 502 – and determined that it was arbitrary & capricious – because it inserted an explanatory note into DC 5055 (the regulation) WITHOUT going through notice-and-comment rulemaking. VA promulgated DC 5055 in 1978 following such rulemaking. Therefore, VA can’t amend DC 5055 without going through that same process.

The Federal Circuit refused to defer to the Agency’s interpretation because it was inconsistent with numerous Board decisions that rated partial knee replacements under DC 5055.

Advocacy note: This case is a good example of using Board decisions for their persuasive value.

Skaar: Only claimants who have appealed a Board decision or are still able to can be part of a proposed class

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Skaar v. McDonough, 48 F.4th 1323 (Fed. Cir. 2022)

HELD: In order to participate as a member of a class action at the CAVC, the proposed class member must have either appealed a Board decision or must be able to appeal a Board decision.

Summary: A group of veterans who were exposed to radiation at Palomares challenged the evidence used for dose estimates. The CAVC certified a class that was comprised of (1) present claimants (those who had appealed or could still appeal a Board denial); (2) present-future claimants (those who had a claim still pending before the RO or Board); and (3) future-future claimants (those who had not yet filed a claim with the RO). The Secretary appealed to the Federal Circuit, which held that only claimants who have timely appealed a Board decision to the Court or who were still able to appeal can be part of the proposed class. The CAVC’s jurisdiction is defined by 38 U.S.C. § 7252 only. There is no supplemental jurisdiction and class certification doesn’t create jurisdiction.

Stover: Board must define terms in order for the Court to review its decisions

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Stover v. McDonough, 35 Vet.App. 394 (2022)

HELD: Board must define “near” before the court can review its decision that a veteran was not “on or near the perimeter of the base.” And the board must apply the m21-1 when it adopts it as a rule in its decision.

Summary: Thailand Veteran who served at Takhli Royal Thai Air Force Base claimed service connection based on herbicide exposure, stating that he worked 100 years from the base perimeter and slept near the perimeter. The Board determined that he was not “near the perimeter” and thus could not be found to have been exposed to herbicides.

The Court held that because the Board adopted a provision of the M21-1 regarding herbicide exposure for Thailand veterans, it was bound by that provision. However, because the Board did not define or explain “near the perimeter,” the Court remanded for the Board to do so. The Court rejected the Secretary’s proposed definition - that “near the perimeter” means “ON the perimeter” - not because the definition is ridiculous, but because it was not the Board’s definition.

Advocacy note: The PACT Act created a presumption of herbicide exposure for these Thailand veterans - but this case is still useful, for effective date purposes, for those who had claims/appeals pending prior to the PACT Act.

Long: Secondary service connection and extraschedular evaluations do not require a showing of direct causation

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Long v. McDonough, 38 F4th 1063 (2022)

HELD: Neither 38 C.F.R. § 3.310(a) nor § 3.321(b)(1) require a showing of direct causation between the secondary symptoms and the primary service-connected disabilities.

Summary: Veteran was service connected for hearing loss. He testified that his hearing aids cause ear pain. The CAVC held that the Board did not need to consider ear pain in its extraschedular analysis because the pain was caused by the hearing aids, not the hearing loss. The Federal Circuit disagreed and found that the CAVC did not properly analyze the veteran’s ear pain under the extraschedular analysis.

The Court reiterated the Thun factors to state that “extra-schedular consideration is available to a veteran when (1) the schedular rating criteria are inadequate to describe the severity and symptoms of his disability; (2) the disability is exceptional or unusual, such as because of marked interference with employment or frequent periods of hospitalization; and (3) the award of an extra-schedular disability rating is in the interest of justice.” The Court held that the CAVC “erred in holding that direct causation between a secondary condition and an original condition is required for extra-schedular consideration of the secondary condition.”

Bowling: VA's definition of insanity for character-of-discharge purposes is not unconstitutionally vague

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Bowling v. McDonough, 38 F.4th 1051 (Fed. Cir. 2022)

HELD: The veterans in this case did not show that 38 C.F.R. § 3.354(a) is unconstitutionally vague.

Summary: 38 C.F.R. § 3.354(a) says: “An insane person is one who, while not mentally defective or constitutionally psychopathic, except when a psychosis has been engrafted upon such basic condition, exhibits, due to disease, a more or less prolonged deviation from his normal method of behavior; or who interferes with the peace of society; or who has so departed (become antisocial) from the accepted standards of the community to which by birth and education he belongs as to lack the adaptability to make further adjustment to the social customs of the community in which he resides.”

The Federal Circuit rejected the argument that the regulation was vague under the Due Process clause because the regulation refers to “objectively describable conduct,” “diseases,” and “causation.” The Court further held that “even if the Board could not grant appellants their requested relief of declaring § 3.354(a) unconstitutionally vague, presenting such evidence to the Board would not be futile.”

Frantzis: There is no statutory right to have the same Board member who presided over a hearing decide the appeal

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Frantzis v. McDonough, 35 Vet.App. 14 (2022)

HELD: under the ama, A VETERAN DOES NOT HAVE THE RIGHT TO HAVE THE SAME BOARD MEMBER WHO CONDUCTED THE HEARING DECIDE THE APPEAL.

Summary: In June 2018, veteran opts into the AMA via the RAMP. In May 2019, the veteran and his wife testify before a Veterans Law Judge. In September 2019, a DIFFERENT Veterans Law Judge issues a decision. This VLJ acknowledges the hearing testimony, but finds the medical evidence is more probative. 

At the CAVC, the veteran argues that 38 USC § 7102 requires the VLJ who held hearing to issue decision. The Secretary argues that 38 USC § 7107 controls - and this statute does not say that the Board member who conducted the hearing must write the decision. The CAVC agreed with the Secretary, noting that Congress removed the requirement that the Board member who conducts the hearing must issue the decision.

The dissent includes great language regarding the principle of fair process and the pro-veteran canon. This case was appealed to the Federal Circuit on August 28, 2022.


George: VA's erroneous interpretation of a statute is not CUE

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George v. McDonough, 142 S.Ct. 1953 (2022)

HELD: VA’S FAILURE TO PROPERLY APPLY THE PRESUMPTION OF SOUNDNESS FOR DECADES WAS NOT CLEAR AND UNMISTAKABLE ERROR - BECAUSE THE FEDERAL CIRCUIT’S DECISION THAT INVALIDATED VA’S ERRONEOUS INTERPRETATION WAS A CHANGE IN THE INTERPRETATION OF THE LAW.

Summary: In 1977, the Board denied service connection for schizophrenia - finding that it pre-existed service. The Board made no finding as to whether the condition was also aggravated by service, as required by 38 USC § 1111. In 2003, VA amended its regulation to include the aggravation prong of the presumption of soundness. In 2004, the Federal Circuit held in Wagner v. Shinseki, that 38 USC § 1111 plainly includes an aggravation prong - meaning that the statute has always required VA to prove that a condition BOTH pre-existed service AND was NOT aggravated by service in order to rebut the presumption of soundness. In 2014, the veteran filed a motion to revise the 1977 decision on the basis of clear and unmistakable error (CUE) - arguing that VA misapplied the law.

The case goes all the way up to the Supreme Court, which determined that CUE did not include changes in law or changes in interpretation of the law - and that the Federal Circuit’s decision in Wagner was a change in the interpretation of the law.

Cowan: Notice under the AMA can be in the letter, the decision, enclosures, or some combination.

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Cowan v. McDonough, 35 Vet.App. 232 (2022)

HELD: The notice required by 38 USC § 5104A can come in the form of the notice letter, the rating decision, the enclosures, and/or any combination of these documents.

Summary: In a RAMP decision, VA provided favorable findings for only one portion of the relevant rating period - and the accompanying letter provided the same information about obtaining evidence as a legacy notice letter. The veteran appealed to the Court, arguing that the decision and notice were defective under 38 USC § 5104 - and that without proper notice, the veteran couldn’t make an informed choice about which AMA lane to choose.

The Court reviewed the language and history of § 5104 and found that it did not specify the form of the required notice. VA filled this statutory “gap” with 38 C.F.R. § 3.103(f), which allows notice to be provided in the letter, enclosures, or a combination of the two. Unfortunately, the Board didn’t make any factual findings regarding the adequacy of teh notice contained in VA’s decision letter and enclosures - so the Court remanded for the Board to make these findings in the first instance.

Appealed to Federal Circuit on Sept. 20, 2022.

Walleman: Separate ratings for knees under pre-2021 versions of DC 5259 and 5257 are allowed

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Walleman v. McDonough, 35 Vet.App. 295 (2022)

HELD: The rule against pyramiding does not categorically preclude separate ratings under DCs 5257 and 5259 – even if instability is a residual of a meniscectomy – as long as there are other residuals that could warrant a separate rating under DC 5259. 

Summary: Veteran sought an increased rating for his left knee disability. The Board assigned 10% for DC 5260 (limited flexion) and 10% for DC 5259 (residuals of meniscectomy – “swelling, popping, locking, stiffness, grating, and clicking”). The Board acknowledged “slight instability,” but denied a separate rating under DC 5257, citing the rule against pyramiding.

The Court rejected the Board’s rationale. DC 5257 provides for 10%, 20%, and 30% ratings for recurrent subluxation or lateral instability that is mild, moderate, or severe. DC 5259 is for “cartilage, semilunar, removal of, symptomatic.” This DC does not define “symptomatic” or identify or exclude symptoms. And DC 5257 refers to only one symptom - instability. The Court determined that the appropriate way to assess these cases is to look at whether any of the symptoms are overlapping and whether there is a “common manifestation” (i.e., symptom) that would be improper to compensate more than once. This case illustrates a tug-of-war between two VA rating principles: the rule against pyramiding (38 CFR § 4.14) and the duty to maximize benefits (38 CFR § 4.25(b)).

Advocacy note: This case only applies to the pre-2021 version of these diagnostic codes.

Aviles-Rivera: NAS Updates are evidence subject to AMA evidentiary limits

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Aviles-Rivera v. McDonough, 35 Vet.App. 268 (2022)

HELD: NAS updates that were created outside the AMA evidentiary window are evidence and cannot be deemed to be constructively in the record.

Summary: In April 2017, the Board remanded the Vietnam veteran’s appeal for service connection for hypertension for an examiner to consider the NAS Updates. The examiner provided an opinion in October 2017. In June 2018, the veteran opted into the AMA through the RAMP pilot program. In September 2018, VA issued a Higher Level Review decision. In November 2018, the NAS Update links hypertension to herbicide exposure. The veteran appealed to the Board - selecting the “Direct Review” option. In April 2019, the Board continued to deny service connection, without considering the NAS Update.

On appeal to the CAVC, the veteran argued that the Board improperly ignored the 2018 NAS Update and that the examiner’s opinion was inadequate because it was rendered without the benefit of that information. The CAVC rejected these arguments, finding that because the veteran opted into the AMA and chose the “Direct Review” docket at the Board, he “agreed” that the Board would not consider any evidence after the September 2018 decision.

The Court found that the 2017 Board remand to ”consider NAS Updates” did not require VA to delay the appeal while waiting for any future updates - and also held that the AMA evidentiary review limits do not violate the principles of fair process.

This case was appealed to the Federal Circuit on July 22, 2022.

Rivera-Colon: Board's failure to define "symptoms" frustrates judicial review

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Rivera-Colon v. McDonough, 35 Vet.App. 221 (2022)

HELD: BECAUSE VA HASN’T DEFINED THE USUAL “SYMPTOMS” OF GASTRITIS, THE COURT CAN’T REVIEW THE BOARD’S DENIAL OF A HIGHER RATING.

Summary: Veteran sought a rating higher than 10% for gastritis. The regulation provides 10% for “with small nodule lesions, and symptoms”; 30% for “multiple small eroded or ulcerated areas, and symptoms”; and 60% for “severe hemorrhages, or large ulcerated or eroded areas.” 38 C.F.R. § 4.114, DC 7307. VA exams showed complaints of multiple symptoms, such as pain, nausea, vomiting (at least 4x/year, lasting 9 days per episode); vomiting blood 3x/year; 22-pound weight loss; incapacitating episodes; had to stop working because of nausea and vomiting. Board denied a rating higher than 10% under several DCs, but didn’t address extraschedular. Instead, the denial was based on the absence of evidence of “multiple small eroded or ulcerated areas.”

The Court determined that, “Judicial review is frustrated because a critical term is undefined” - and reminded VA that it must define the terms in its regulations, citing Ortiz-Valles v. McDonald, Ray v. Wilkie, Johnson v. Shulkin, Cantrell v. Shulkin. “Symptoms” in the DC is not so broad as to encompass all possible symptoms – so an extraschedular rating is possible. The Board didn’t “explain how it determined what the usual symptoms of gastritis are.”

Slaughter: CAVC's prejudicial error analysis was too rigid; "combined nerve injuries" refers to service-connected nerves only

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Slaughter v. McDonald, 29 F.4th 1351 (Fed. Circ. 2022)

HELD: The burden of proving prejudicial error is not an “onerous” one and the CAVC needs to look at the circumstances of the case to determine prejudice. “combined nerve injuries” under 38 C.F.R. § 4.124A refers to service-connected conditions only.

Summary: Veteran was service connected for ulnar nerve under 38 C.F.R. § 4.124, DC 8516. He later developed median nerve issues. VA examiner couldn’t distinguish symptoms related to the individual nerves - and VA increased his rating to 40% based on the symptoms of both nerve issues. Veteran argued for a higher rating under DC 8512 for combination of nerve injuries based on a note in § 4.124a regarding “combined nerve injuries.”

The Federal Circuit held that the phrase “combined nerve injuries” in the note unambiguously referred to service-connected conditions, relying on 38 C.F.R. § 4.1 and VA’s treatment of service-connected and nonservice-connected conditions in other regulations.

Regarding the CAVC’S prejudicial error analysis, the Federal Circuit found that the CAVC “applied too rigid of a prejudicial error standard and placed too heavy a burden on Mr. Slaughter to show prejudice.” While the burden is on the claimant, it’s not an “onerous” one - and the Court should look “to the circumstances of the case to see if the alleged error was harmful.” Prejudice can be shown if the error affected or could have affected the outcome.

Martinez-Bodon: Formal DSM-5 diagnosis required in order to be compensated for mental health disability

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Martinez-Bodon v. McDonough, 28 F.4th 1241 (Fed. Cir. 2022)

HELD: VA REGULATIONS require a formal DSM-5 diagnosis in order to be compensated for a mental health disability.

Summary: Veteran had psychiatric symptoms, but no formal diagnosis. The Board denied service connection. Veteran argued that he didn’t need a diagnosis because Saunders v. Wilkie held that “pain that reaches the level of ‘functional impairment of earning capacity’ could constitute a ‘disability’ under 38 U.S.C. § 1110.”

The Court rejected this argument because the question in Saunders ”was whether conditions not on the rating schedule may still be considered for service connection purposes under § 1110.” VA regulations - 38 C.F.R. §§ 4.125, 4.130 - provide specific ratings for mental health conditions – so Saunders doesn’t apply. These regulations require a mental health diagnosis that conforms to the DSM-5.

Advocacy note: Make sure the record contains a formal DSM-5 diagnosis. Even if there are conflicting diagnoses. If the veteran doesn’t have a DSM-5 diagnosis, suggest that the veteran see a different practitioner. (You see 5 different psychologists, you’ll get 5 different diagnoses.)

Gumpenberger: Appeal for TDIU doesn't necessarily include appeal for higher rating

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Gumpenberger v. McDonough, 35 Vet.App. 195 (2022)

HELD: Because entitlement to TDIU and a higher rating involve different considerations, an NOD that expressly appeals for TDIU does not encompass an appeal of the TBI rating.

SUMMARY: In May 2013, VA granted a 70% rating for TBI and denied service connection for a psychiatric condition and TDIU. The following month, the veteran appealed - identifying service connection for the psychiatric condition and TDIU only. The RO continued to deny both in a Statement of the Case that the veteran appealed with a timely VA Form 9. In December 2015, he withdrew his appeal for service connection for a psychiatric disorder - so the only remaining appeal issue was entitlement to TDIU.

In July 2016, VA reviewed the TBI rating on its own - and granted 100%. The veteran’s attorney sought attorney fees on that 100% award. VA denied fees because the agency re-processed the TBI claim in accordance with the Secretary’s authority to award equitable relief – and the resulting favorable decision was not due to an appeal.

On appeal to the Board, the attorney argued that the withdrawal of the psychiatric claim was “conditioned on the grant of TDIU” – and that the “avenue to 100% is immaterial.” The Board continued to deny fees because the 2013 NOD was for TDIU and the psychiatric condition only – and the 100% rating for TBI was the result of VA’s own internal review.

On appeal to the CAVC, the attorney argued that (1) relevant statutes don’t require specificity in an NOD (38 USC §§ 5904(c)(1), 7105(a)); (2) VA regulation requiring identification of specific issue is inconsistent with statutes; and (3) TDIU & 100% are “different means to the same results.”

The Court disagreed based on the statutory language (7105(a)) and surrounding provisions, specifically § 7105(d) that says a Statement of the Case must provide a summary of evidence with the issue or issues “with which disagreement has been expressed.” VA’s regulation, 38 CFR § 20.201, is a valid interpretation of the statute. Further, the issues of entitlement to an increased rating for TBI and TDIU have different requirements. While an appeal for a higher rating can include entitlement to TDIU, “teh reverse is not necessarily true.”

Appealed to the Federal Circuit on June 9, 2022.

Advocacy note: In order to preserve the appropriate effective date for a higher rating, to include TDIU, you must appeal all relevant issues that could potentially impact employability.

Stern: Reversal is appropriate when Board's analysis of rating reduction is not complete.

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Stern v. McDonough, docket no. 18-4425 (Apr. 20, 2021)

HELD: When the Board fails to conduct the complete analysis required by Brown v. Brown, 5 Vet.App. 413, 421 (1995), in evaluating the propriety of a rating reduction – even one that has been in effect for less than five years – the appropriate remedy is to reverse the Board’s decision and order the rating reinstated.

SUMMARY: Veteran was granted service connection for bilateral upper and lower extremity peripheral neuropathy was various ratings in 2007. He filed a request for increases in 2008 and the RO denied the increases. At VA’s request, he underwent an examination in 2010, and the RO proposed to reduce all his ratings to 10%. He challenged the proposed reductions, but the RO reduced the ratings in 2011. He appealed to the Board.

The Board first noted that his ratings had been in effect for less than five years, so he was not entitled to the protections of 38 C.F.R. § 3.344(a). The Board noted that in any reduction case, VA must determine whether the reduction was properly based on a finding that there was actual improvement and that such improvement would be maintained under the ordinary conditions of life and work. The Board then determined that the evidence showed actual improvement and concluded that the reductions were proper.

The appellant argued – and the Court agreed – that the Board failed to address the second part of the analysis when it “failed to consider the effects of his disabilities on the ordinary conditions of life and work,” in light of his statements regarding his ability to work. The Secretary argued that this is a reasons or bases error and that remand is appropriate, not reversal.

The Court first discussed VA regulations regarding reducing ratings, including the heightened procedural requirements of 38 C.F.R. § 3.344(a), which applies to ratings that have been in effect for five years or more. The Court noted that in Brown, it had held that other VA regulations – specifically 38 C.F.R. §§ 4.2 and 4.10 – say that VA cannot reduce any rating without first determining that “improvement in a disability actually occurred” and “that that improvement actually reflects an improvement in the veteran’s ability to function under the ordinary conditions of life and work.” In rating reduction cases, “the burden is on the Board ‘to establish, by a preponderance of the evidence … that a rating reduction was warranted.’”

In cases where VA has failed to comply with the required procedures for reducing a rating that has been in effect for more than five years, the Court has routinely reversed the improper rating reductions and ordered VA to reinstate the prior ratings. On the other hand, the Court has remanded other rating reduction cases for reasons-or-bases errors where the Board failed to address evidence or discuss the relevant regulations or where the Court questioned its own jurisdiction to address the matter. The Court also found no prejudice in a rating reduction that did not fully comply with the regulatory procedures the Board made findings to support its decision that the reduction was proper.

In this case, the Court found that reversal was the appropriate remedy – even though the heightened procedural requirements of 38 C.F.R. § 3.344(a) did not apply. The Court held that “the Board’s failure entirely to address, as required by Brown, whether the improvement in the disability reflects an improvement in the ability function under the ordinary conditions of life and work, also requires reversal of a rating reduction.” The Court stated that even though § 3.344(a) does not apply to this rating reduction, “Brown established that two factual findings must be made for a valid reduction of a non-protected disability rating: (1) actual improvement in the disability and (2) that improvement reflects ‘improvement in the ... ability to function under the ordinary conditions of life and work.’”

The Court declined to hold that all Board errors in reduction cases require reversal and reinstatement, noting that “the Court has in some circumstances concluded that a remedy other than reversal and reinstatement is appropriate even after identifying Board error.”