Event: 2018 Mizzou Veterans Clinic Symposium

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

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

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

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

Event: 2018 TVC Pro Bono Mission Partner Awards Reception

October 3, 2018

Union Station, Washington, DC

The Veterans Law Office of Amy B. Kretkowski is proud to help sponsor The Veterans Consortium Pro Bono Program’s 2018 Mission Partner Awards Reception and Fireside Chat.

LINK TO PROGRAM: https://www.vetsprobono.org 

Overton: M21-1 definition of "inland waterways" is not binding on the Board

Overton v. Wilkiedocket no. 17-0125 (Sept. 19, 2018)

HELD: The M21-1 provision that excludes all Vietnamese bays and harbors from the definition of “inland waterways,” for purposes of presumptive exposure to herbicides, is not binding on the Board – and while the Board can rely on this M21-1 provision as a factor in its analysis, it “must independently review the matter the M21-1 addresses” and explain its reliance on the provision. 

SUMMARY: Patrick Overton appealed the denial of service connection for diabetes and ischemic heart disease, asserting that he was exposed to herbicides while serving aboard the USS Providencein Da Nang Harbor in 1967. The Board denied the claims based on VA’s Adjudication Procedures Manual(M21-1) that excluded all bays and harbors from the definition of “inland waterways.” *3. 

At the Court, Mr. Overton argued that he is entitled to the presumption of service connection based on herbicide exposure and that the Board failed to analyze the possibility of his exposure. *4. He argued that the Board is required to determine whether it was at least as likely as not that there were levels of herbicides in Da Nang Harbor “sufficient to justify the herbicide exposure presumption, not whether it is probable that he was exposed to herbicides.” *5. The Secretary argued that the Board properly applied the law. 

The Court discussed the legal history surrounding VA’s distinction between “blue water” and “brown water” and its definition of “inland waterways” for purposes of presuming exposure to herbicides. *6-7. The Court summarized this history as follows: (1) VA can “draw reasonable lines demarcating inland versus offshore waterways when considering whether a veteran is entitled to the presumption of herbicide exposure” (Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008)); (2) VA must do so “in a reasoned, nonarbitrary manner focused on the likelihood of herbicide exposure” (Gray v. McDonald, 27 Vet.App. 313 (2015)); and (3) “the Board is not bound by M21-1 provisions” (Gray v. Sec’y of Veterans Affairs, 875 F.3d 1102 (Fed. Cir. 2017)). *7. 

Turning to Mr. Overton’s appeal, the Court found that the Board provided no more than a description of the holdings in Haasand Gray“to support its conclusion that Da Nang Harbor is not brown water warranting presumptive herbicide exposure.” *8. The Court found that the Board’s terse reference to the “new guidance” of the M21-1 provision was error because the Board is not bound by the M21-1 – and for it to simply “cite an M21-1 provision without further analysis … would effectively convert the M21-1 into substantive rules as a practical matter without providing a means to challenge such rules under the [Administrative Procedure Act].” *8. The Court added that the Board’s citation to the M21-1 as the sole support for its conclusion – that Da Nang Harbor is blue water – is inconsistent with the statutory requirement that the Board adequately explain its decisions. 

The Court recognized that the M21-1 provision is relevant to issues on appeal – and that the Board cannot ignore this relevant provision. However, the Court held that the Board cannot “simply rely on an M21-1 provision … without first independently reviewing the matter” and explaining “why it finds the M21-1 an accurate guideline for its decision.” The Court rephrased its holding: “[T]he Board is required to discuss any relevant provisions contained in the M21-1 as part of its duty to provide adequate reasons or bases, but because it is not bound by those provisions, it must make its own determination before it chooses to rely on an M21-1 provision as a factor to support its decision.” *8. The Court remanded for the Board to explain its reliance on the M21-1 provision. *9.  

The Court further noted that the purpose of the regulation that established the herbicide presumption was “to compensate veterans based on the probability or likelihood of exposure to herbicides.” On remand, the Court directed the Board to “explain why its determination of entitlement to presumptive service connection is based on a likely herbicide exposure and achieves the purpose behind the regulation.” *9. 

At oral argument, the Secretary urged the Court to defer to his M21-1 interpretation under Auer v. Robins, 519 U.S. 452 (1997). The Court declined to address this argument, as the Secretary did not raise it in his brief, but instead raised it for the first time at oral argument. *9-10. 

The Court also declined the address Mr. Overton’s arguments regarding service connection on a direct basis because that theory might be connected to the issue of presumptive exposure. *11. 

FULL DECISION

Marcelino: Obesity is not a "disease" for VA compensation purposes

Marcelino v. Shulkin29 Vet.App. 155 (Jan. 23, 2018)

HELD: Because the Court is statutorily precluded from reviewing VA’s rating schedule, the Court lacks jurisdiction to consider whether obesity should be considered a disability under the rating schedule. 

SUMMARY: Mr. Marcelino was denied service connection for obesity because the Board stated that this condition was not a disability for purposes of service connection and VA compensation. 

The Court first noted that it does not have jurisdiction to review the content of VA’s rating schedule, nor can it review “what should be considered a disability.” There are three exceptions to this general principle – cases involving (1) a constitutional challenge, (2) interpretation of a regulation that relates to the rating schedule, and (3) a procedural challenge to VA’s adoption of schedule regulations. Because “obesity” is not listed in the rating schedule, the Court determined that the question of whether VA should include obesity in the schedule did not fall under one of the exceptions and “would require the Court to undertake the very review of the rating schedule that has been barred from its jurisdiction.”  

ADVOCACY NOTEVA’s Office of the General Counsel issued a Precedent opinion in January 2017 that recognized that while obesity is not a disability for purposes of secondary SC under 38 C.F.R. § 3.310, it can be an “intermediate step” between a service-connected disability and a current disability that may be service connected on a secondary basis. VAOGCPREC 1-2017.

FULL DECISION

Foreman: Amendment to 38 C.F.R. § 3.304(f) is not a liberalizing law for effective date purposes

Foreman v. Shulkin29 Vet.App. 155 (Jan. 22, 2018)

HELD: The July 2010 amendment to 38 C.F.R. § 3.304(f) that eased the burden of proof for certain veterans with claims for service connection for PTSD is not a “liberalizing” rule and, therefore, “for purposes of determining the effective date for an award of benefits based on that amendment, 38 C.F.R. § 3.114 does not apply to prevent an effective date earlier than July 2010.”

SUMMARY: In 1972, immediately following his separation from service, Vietnam veteran Frazier Foreman submitted a claim for service connection for “fungus or skin disease” and a back condition. His separation examination report notedtrouble sleeping, depression, and nervous trouble, which the examiner characterized as “nervous condition –mild.” 

In 1973, the RO granted service connection for skin, back, and residuals of a right ring finger fracture. The RO referred to Mr. Foreman’s entrance and separation examinations, but mentioned no other conditions. 

Between 2004 and 2008, Mr. Foreman received treatment at VA for post-traumatic stress disorder (PTSD).In 2008, he filed a claim for service connection for PTSD. In July 2010, while his claim was pending, VA amended 38 C.F.R. § 3.304(f) to ease the evidentiary burden on veterans with claims for service connection based on fear of hostile military or terrorist activity. During a C&P examination, Mr. Foreman reported that he was attached to a graves registration in Vietnam and “was exposed to dismembered bodies multiple times over several months.” He reported his belief that he could have been injured and that he felt “horrified.” The examiner determined that he did not have PTSD because he did not have “fear of hostile military or terrorist activity.” The RO denied Mr. Foreman’s claim because he did not have a PTSD diagnosis – even though the RO noted record evidence of prior treatment for PTSD. 

Mr. Foreman appealed and underwent another C&P examination. This examiner diagnosed PTSD, noting the veteran’s traumatic experiences. The RO granted service connection for PTSD, effective March 2011, the date of the most recent C&P examination. 

Mr. Foreman appealed to the Board, and the Board granted an effective date of July 13, 2010, the date of the “liberalizing” change to 38 C.F.R. § 3.304(f). Mr. Foreman appealed to the Veterans Court, arguing that he is entitled to a 1972 effective date because his submission at that time was an informal claim and the 2010 change to § 3.304(f) was “procedural,” so he was not limited to the July 2010 effective date.  

The Court agreed that the § 3.304(f) amendment was procedural and did not preclude an effective date earlier than July 2010. In general, the effective date for any award of benefits is the date VA receives the claim. 38 C.F.R. § 3.400. For claims granted based on change in law (or a “liberalizing” rule), the effective date cannot be earlier than the effective date of the change in law. 38 C.F.R. §§ 3.400(p), 3.114. 

The Court noted that the Federal Circuit previously held that a “liberalizing law for purposes of determining effective dates is one that brings about a substantive change in the law, creating a new and different entitlement to a benefit.” Spencer v. Brown, 17 F.3d 368, 372-73 (Fed. Cir. 1994). The Court stated that VA itself had “recognized the procedural nature of the amendment when it published the final rule,” and held: “The July 13, 2010, amendment to § 3.304(f) is not a liberalizing rule and …for purposes of determining the effective date for an award of benefits based on that amendment, 38 C.F.R. § 3.114 does not apply to prevent an effective date earlier than July 2010.” 

The Court declined to assign a September 2008 effective date (as requested by VA) –because Mr. Foreman was asking for an effective date earlier than 2008. The Court reversed the portion of the Board’s decision that denied an effective date earlier than July 2010, and remanded for the Board to determine the appropriate effective date.  

FULL DECISION

King: Existence of higher schedular rating is irrelevant to extraschedular analysis

King v. Shulkin29 Vet.App. 174 (Dec. 21, 2017)

HELD: “[T]he availability of higher scheduler ratings plays no role in an extraschedular analysis and [] it is inappropriate for the Board to deny extraschedular referral on this basis.” 

SUMMARY: Dudley King is service connected for hearing loss, rated 0%. He appeals for a compensable rating. VA examiners noted “significant effects” on occupation, “poor social interactions,” “hearing difficulty,” “balance problems,” and “dizziness.” One VA examiner summarized the effect of his hearing loss on his life and his work as “difficulty hearing.” 

At a Board hearing, he testified that he could not hear the phone ring; he needed to turn up the volume on the television, which made his wife leave the room; he could not hear bird sounds; and he got angry at having to ask people to repeat themselves. The Board remanded for a new examination, and the subsequent VA examiner stated that his hearing loss did not impact his life or work. The Board denied a compensable rating and extraschedular referral because it found that the rating criteria “reasonably describe” his disability and “provide[] for higher ratings for more severe symptoms.”

He appealed to the Court of Appeals for Veterans Claims. The Court framed the issues as (1) whether the rating criteria adequately contemplated the function effects of his hearing loss such that extraschedular referral was not required and (2) whether the availability of a higher schedularrating is relevant to the extraschedular analysis. 

The Court began its analysis by explaining the relevant law regarding schedular and extraschedular ratings. The Court emphasized that “[t]he goal of the entire rating process is to appropriately compensate veterans. The schedular and extraschedular analyses are just different means of doing so.” 

The Court described the “three-part inquiry” in determining whether referral for extraschedular consideration is warranted. The first element of 38 C.F.R. § 3.321(b) –whether the evidence “presents such an exceptional disability picture” that the schedular ratings are inadequate –requires VA to “compare a veteran’s specific symptoms and their severity with those contemplated by the plain language of the rating schedule.” With respect to this element, the Court noted that “impact on employment is not a symptom.”

If the Board determines that the symptoms or their severity are not contemplated by the rating schedule, the second step requires the Board to determine whether the exceptional disability picture exhibits “other related factors,” such as “marked interference with employment or frequent periods of hospitalization.” In this case, the Board determined that extraschedular referral was not warranted because it found the rating criteria reasonably describe Mr. King’s disability and provide for “higher ratings for more severe symptoms.” It was this second rationale that caught the Court’s attention. 

As the Court recently held in Doucette v. Shulkin, 28 Vet.App. 366 (2017), the hearing loss ratings “contemplate the functional effects of decreased hearing and difficulty understanding speech,” but do not “contemplate all functional impairment due to a claimant’s hearing loss.” The Court in Doucette “provided a non-exhaustive list of functional effects” that are outside the rating schedule – such as “pain, dizziness, recurrent loss of balance, or social isolation” – and “acknowledged the existence of effects that would be inherently outside the rating schedule,”

The Court held that ”[t]he availability of higher schedular ratings plays no role in an extraschedular analysis and [ ] it is inappropriate for the Board to deny extraschedular referral on this basis.” The Court explained that the Board’s logic in such a denial “would functionally invalidate § 3.321(b)(1) entirely,” and provided the following example: Assume a disability is rated 30% for symptoms A and B; and 50% for symptoms A, B, X, and Z. What happens to a veteran who’s rated 30% - but has symptoms A, B, and X, but not Z? “Under the Board’s logic, no matter how significantly that veteran’s earning ability were impaired,” VA would be able to deny extraschedular referral just because the rating schedule provided for a higher schedular rating. The Court stated that “[t]his example is precisely the situation § 3.321(b)(1) was created to address.”

The Court further clarified that the holding of King is not limited to hearing loss claims. “Section 3.321 is applicable to all claims.”

FULL DECISION

Crediford: Service department findings (i.e., willful misconduct, LOD determinations) are binding on VA

Crediford v. Shulkin877 F.3d 1040 (Fed. Cir. Dec. 18, 2017)

HELD: The Board cannot “make its own findings on of the facts of line of duty and willful misconduct,” particularly when there are relevant service records before it.   

SUMMARY: Marvin Crediford served in the U.S. Coast Guard from August 1983 to August 1985 and January 1990 to March 1991. In January 1985, he was in a car accident after he had been drinking. Several hours after he had stopped drinking, his blood alcohol level was measured as .12 percent. He was charged with driving under the influence. 

He reported the incident to the Coast Guard, and in April 1985, the local commanding officer issued a report, stating that fatigue and alcohol were responsible for the accident, and that his injuries “were not the result of his own misconduct and were incurred in the line of duty.”

In December 1985, several months after he left the Coast Guard, a memorandum was issued by the Commander of the Thirteenth Coast Guard District. This memorandum referred to a November 1985 “finding” by the Commandant of the Coast Guard that his injuries were “not incurred in the line of duty and were due to his own misconduct.”  

In 2004, Mr. Crediford filed a claim for disability compensation. The RO denied the claim because his injuries were the result of willful misconduct and not incurred in the line of duty. The RO stated that the veteran’s service records did not contain a line-of-duty determination. The RO noted the December 1985 memorandum – but not the April 1985 decision. 

Mr. Crediford appealed and submitted the April 1985 decision. At a Board hearing, he asserted that the December 1985 memorandum was issued “post-discharge, without notice that an LOD investigation was ongoing and was not disclosed.” The Board found the preponderance of the evidence against the claim, noting that his blood alcohol content raised “a presumption” of intoxication that “was not rebutted in this case.” 

The Court of Appeals for Veterans Claims affirmed the Board’s decision, finding that the Board provided adequate reasons for bases for its finding that his Mr. Crediford’s injury was the result of willful misconduct. Neither the Board nor the Court resolved the discrepancy between the April and November 1985 findings regarding willful misconduct. 

On appeal to the Federal Circuit, Mr. Crediford argued that the April 1985 LOD decision should prevail because the December 1985 memorandum was not a line-of-duty determination and the November 1985 document referenced in the memorandum was not in the record. Thus, the April 1985 decision was the only LOD determinationof record that was binding on VA. Mr. Crediford also argued that the Board and the Veterans Court “created a new per se standard or presumption of willful misconduct based solely on blood alcohol level, contrary to VA regulation.” 

The Federal Circuit noted that in-service injuries are presumed to be incurred in the line of duty unless they are caused by the veteran’s willful misconduct or substance abuse. Under VA regulations, drinking alcohol, in and of itself, is not willful misconduct unless “a service member consumes alcohol to enjoy its intoxicating effects, and the intoxication ‘proximately and immediately’ results in the injury.” *7 (citing 38 C.F.R. § 3.301(c)(2)). The Court also noted that service department findings – including findings regarding willful misconduct and line of duty – are binding on VA. *7-8 (citing 38 C.F.R. §§ 3.1(m) and (n)). The Court framed the issue on appeal as “whether the Board had authority to ignore the Service Department’s findings.” 

The Court found that neither the Board nor the Court resolved the conflict between the April 1985 decision and the November 1985 document, and held that “the Board erred in simply making its own findings on the question of willful misconduct when there were service department findings before it.” The Court added that the Coast Guard’s “determinations, made in 1985 when the accident occurred, must be addressed” and that “[i]t was error for the Board to make its own findings of the facts of line of duty and willful misconduct.” The Court remanded for further proceedings to address the question of application of 38 C.F.R. § 3.1(m)-(n). 

FULL DECISION

Ebanks: Unreasonable delay; petition mooted

Ebanks v. Shulkin877 F.3d 1037 (Fed. Cir. Dec. 14, 2017)

HELD: Petition for writ of mandamus based on unreasonable delay in scheduling a Board hearing is mooted by the actual scheduling of the hearing – and does not fall within the exception to mootness if the claimant does not have a “reasonable expectation” that he will be subjected to the same action again. 

SUMMARY: Elon Ebanks appealed an RO denial of an increased rating and requested a Board hearing in December 2014. Nearly two years later, in September 2016, he petitioned the Veterans Court for a writ of mandamus to compel the Board to schedule the hearing. The Court denied the petition, and Mr. Ebanks appealed that decision to the Federal Circuit. 

While the appeal was pending, the Board held the requested hearing in October 2017 – nearly three years after his request. Because the hearing was held, the government claimed that the appeal was moot. Mr. Ebanks argued that the appeal was not moot because it falls under the exception for mootness for cases that are “capable of repetition yet evading review.” 

This exception applies when “(1) ‘the challenged action [is] in its duration too short to be fully litigated prior to the cessation or expiration,’ and (2) ‘there [is] a reasonable expectation that the same complaining party [will] be subject to the same action again.” Mr. Ebanks asserted that even if he prevailed at the Board, the usual relief was to remand to the RO, which would result in further adjudication. He expected that he would likely ask for a new hearing and would again be subjected to unreasonable delay. The government disputed that argument. 

The Federal Circuit noted that any future hearing on remand would be subject to “expedited treatment under 38 U.S.C. § 7112.” The government also pointed out that Congress recently overhauled the appeals process and argued that any future appeal may be subject to this new regime. The Court found that Mr. Ebanks “has not established that future Board proceedings will be subject to the same delays as is presently the case” and thus “has not shown a sufficiently reasonable expectation that he will again be subjected to the same action.” 

The Court stated that even if the case were not moot, granting Mr. Ebanks’ petition “may result in no more than line-jumping without resolving the underlying problem of overall delay.” The Court added that the issue of delay “seems best addressed in the class-action context,” noting that it had “recently approved the use of collective actions in the Court of Appeals for Veterans Claims,” citing Monk v. Shulkin, 855 F.3d 1312, 1318-22 (Fed. Cir. 2017). 

FULL DECISION

Rossy: Extraschedular consideration for hearing loss not warranted

Rossy v. Shulkin29 Vet.App. 142 (Dec. 13, 2017)

HELD: When the only hearing loss problem alleged by a claimant is “difficulty understanding conversations,” referral for extraschedular consideration is not warranted since that complaint is type of symptom and functional effect that is contemplated and compensated by VA’s rating schedule. 

SUMMARY: Jose Rossy served in the U.S. Army from 1949 to 1952. More than 50 years later, he applied for and was granted service connection for bilateral hearing loss, rated 0%. His appeal for a compensable rating was stayed at the Court, pending the outcome of Doucette v. Shulkin, 28 Vet.App. 366 (2017). 

In Doucette, the Court held that the rating criteria for hearing loss contemplate and compensate for “the functional effects of hearing loss, namely difficulty understanding speech and the inability to hear sounds in various contexts.” Doucetteleft open “the possibility that extraschedular consideration for hearing loss might be warranted by other symptoms or functional effects,” but held that “extraschedular referral is not reasonably raised when complaints of difficulty hearing are the only complaints of record.” 

Because Mr. Rossy’s complaints were “within the type of symptoms and functional effects contemplated and compensated by VA’s schedular rating criteria,” the Court affirmed the Board’s denial of referral for extraschedular consideration. 

The Court also concluded that extraschedular referral was not warranted based on the combined effects of Mr. Rossy’s various service-connected conditions because this issue was not reasonably raised by the record or the appellant. 

FULL DECISION

Browder: Fiduciary, allegations of misuse of funds

Browder v. Shulkin29 Vet.App. 170 (Dec. 12, 2017)

HELD: Petition to compel Secretary to act is dismissed as moot when Secretary finally acts on veteran's allegations of fiduciary's misuse of his benefits. 

SUMMARY: More than a decade prior to this petition, veteran Joe Browder alleged that his VA-appointed fiduciary had embezzled a portion of his benefits. VA refused to investigate and Mr. Browder attempted to appeal to the Board. When VA took no action on his appeal, Mr. Browder petitioned the Court for a writ of mandamus to compel the Secretary to act. 

The Court formed a panel to consider “whether a decision by the Secretary not to formally investigate a misuse allegation may be appealed to the Board and eventually to the Court.” The Court noted that Congress created a statute defining misuse by a fiduciary, 38 U.S.C. § 6106. Yet, the Secretary never issued regulations addressing misuse or explaining how VA is to respond to veterans’ complaints. Instead, VA has created “policy” to respond to misuse allegations. 

After the panel was formed, the Secretary informed the Court that the fiduciary hub involved in Mr. Browder’s case “had reversed course,” conducted a formal investigation, and issued a report, along with notice of his right to appeal that decision. Because Mr. Browder had now received a decision that he could appeal to the Board, the Court dismissed the petition as moot. 

Understanding Mr. Browder’s frustration with this process and acknowledging the “injustice” of his case, as well as VA’s fiduciary policies in general, the Court stated: 

The Secretary, for more than a decade, refused to formally investigate the petitioner’s misuse allegations or allow him to bring them before the Board and ignored many of his arguments. Then, within months of learning that a precedential decision might upend his fiduciary investigation policies, the Secretary mooted the petition by sending out a formal misuse report that strained, filler and all, to reach two pages. It is hard not to see how the Secretary’s actions could come across as cynical, and they are especially concerning given the “growing consensus outside VA that the fiduciary system is broken.” 

FULL DECISION

Frost: Secondary service connection

Frost v. Shulkin29 Vet.App. 131 (Nov .30, 2017)

HELD: “[F]or a veteran to receive secondary service connection on a causation basis under § 3.310(a), the primary disability need not be service connected, or even diagnosed, at the time the secondary condition is incurred.” 

SUMMARY: In 1980, during his active duty service, veteran John Frost was involved in a train accident, injuring his shoulder and leg. In 1982, following his separation from service, he got into a fight with a store proprietor and was shot in his neck. In 1985, he was awarded non-service-connected pension for left extremity paralysis due to the 1982 gunshot wound (GSW). 

In 2001, he filed a claim for service connection for PTSD related to the 1980 train accident. He reported that after the train accident, he received two Article 15 punishments for fighting, occasionally became violent, and that his wife filed for divorce shortly after his separation from service. A VA examiner diagnosed PTSD and noted recurring memories of the 1980 train accident. The Regional Office granted service connection for PTSD. 

A few years later, he filed a claim for the residuals of the 1982 GSW as secondary to his now service-connected PTSD. The RO denied the claim and he appealed, asserting that his PTSD caused him to become involved in the fight that resulted in the GSW. The Board denied the claim, finding that he was first shown to have PTSD in 2002, twenty years after the 1982 incident. 

On appeal to the CAVC, the Court examined the regulation governing service connection on a secondary basis, 38 C.F.R. § 3.310, and held: “Nothing in the text of the regulation specifies or indicates that the primary condition must be service connected, or even diagnosed, at the time the secondary condition is incurred.” Because there is no reference in § 3.310 to a temporal requirement, the Court rejected VA’s argument that Mr. Frost’s claim was barred as a matter of law. 

The Court recognized the “basic logic” that there must be a primary service-connected condition in order to establish secondary service connection, but clarified that “at the time that any decisionestablishing entitlement to secondary service connection is rendered, there must be a primary service-connected condition.” The Court concluded that “for a veteran to receive secondary service connection on a causation basis under § 3.310(a), the primary disability need not be service connected, or even diagnosed, at the time the secondary condition is incurred.” The Court remanded the claim to the Board to determine whether a VA examination is necessary to determine whether the GSW residuals are proximately due to or the result of his service-connected PTSD. 

FULL DECISION

Lyles: Rating knee disabilities

Lyles v. Shulkin29 Vet.App. 107 (Nov. 29, 2017)

HELD: “[E]valuation of a knee disability under DCs 5257 or 5261 or both does not, as a matter of law, preclude separate evaluation of a meniscal disability of the same knee under DC 5258 or 5259, and vice versa.” Entitlement to a separate rating depends on whether the symptoms have already been compensated under another DC. For musculoskeletal conditions based on limited motion, a symptom has not been compensated if it “did not result in an elevation of the evaluation under 38 C.F.R. §§ 4.40 and 4.45 pursuant to the principles set forth in DeLuca v. Brown, 8 Vet.App. 202 (1995).”

SUMMARY: Thomas Lyles sought an increased rating for residuals of his service-connected left knee disability, which was rated 30% under DC 5257 for instability. After ten years of appeals, he was finally granted an additional 30% rating under DC 5261, based on limited extension. He appealed to the Court, which remanded for the Board to address whether he was entitled to an additional separate rating under DC 5258 (dislocated semilunar cartilage) or 5259 (removed and symptomatic semilunar cartilage). 

The Board obtained a new VA joints examination in which the examiner noted objective evidence of pain, tenderness, and crepitus, but concluded that he could not offer an opinion as to whether pain, weakness, fatigability, etc., resulted in additional functional loss because there was “no objective evidence” to support such loss. The Board denied an additional rating, finding that his additional symptoms were “already ‘encompassed’ by his current evaluations under DCs 5257 and 5261.” The Board determined that Mr. Lyles was not entitled to a higher rating under DeLucabecause there was “no clinical evidence” of further impairment and the VA examiners “‘could not say without resort to mere speculation what such impairment would be.’” The Board concluded that an additional rating would violate the rule against pyramiding, and denied the claim. 

On appeal to the Court, Mr. Lyles argued that the plain language DCs 5257 and 5261 shows that they only cover instability and limited extension, and do not include not all the manifestations of his left knee disability – popping, locking, grinding, pain, and swelling. He acknowledged that VA mayconsider these symptoms under DC 5261, pursuant to DeLuca, but that those manifestations had not been compensated in his case. The Secretary argued that his left knee symptoms had already been considered under DC 5261 and could not be rated again under DC 5258 or 5259. 

The issue before the Court was whether “evaluation of a knee disability under DC 5257 or 5261 preclude, as a matter of law, separate evaluation of a meniscal disability of the same knee under DC 5258 or 5259.” The Court held that it does not. 

DC 5257 covers “recurrent subluxation or lateral instability” and DC 5261 covers limitation of leg extension. See 38 C.F.R. § 4.71a. DC 5258 provides a 20% rating for “cartilage, semilunar, dislocated, with frequent episodes of ‘locking,’ pain, and effusion into the joint.” DC 5259 provides a 10% rating for “cartilage, semilunar, removal of, symptomatic.” Id

The Court found that the plain language of 38 C.F.R. § 4.71a “does not expressly prohibit separate evaluation under DC 5257 or 5261 and a meniscal DC,” Lyles, 29 Vet.App, at 114(citing Esteban v. Brown, 6 Vet.App. 259, 261 (1994) (examining separate ratings under scar DCs) and Yonek v. Shinseki, 722 F.3d 1355, 1358 (Fed. Cir. 2013) (regarding separate ratings under musculoskeletal DCs)). The Court noted that VA’s rating schedule “is replete with rules that prohibit separate evaluations of other disabilities,” such as 38 C.F.R. § 4.96 (prohibiting separate ratings of specific respiratory conditions), § 4.113 (regarding rating digestive conditions), § 4.115 (prohibiting separate ratings for heart conditions and nephritis). Id. The Secretary’s demonstrated ability to “craft regulations that expressly forbid” separate ratings strongly suggests that the absence of such language in § 4.71a “must be read as a deliberate decision to permit separate evaluation.” Id. at 115. 

The Court briefly explored the regulatory history of § 4.71a, and held that the language of the regulation, its history, and the surrounding regulations “unambiguously reflect that evaluation of a knee disability under DC 5257 or 5261 does not preclude, as a matter of law, separate evaluation of a meniscal disability of that same knee under DC 5258 or 5259,” and vice versa. 

As to whether Mr. Lyles’ symptoms have already been compensated, the Court found that DC 5257 “compensates veterans only for knee impairment resulting in recurrent subluxation and lateral instability,” and thus reversed the Board’s determination that this DC also compensated him for pain and swelling. 

Because DC 5261 is based on limitation of motion, the Court discussed the relevant regulations pertaining to rating musculoskeletal conditions based on limitation of motion – 38 C.F.R. §§ 4.40, 4.45, and 4.59. These regulations provide for higher ratings where there is evidence of (1) functional loss due to pain and other factors, (2) reduction of normal movement, or (3) an “actually painful, unstable, or malaligned” joint. *13 (citing Mitchell v. Shinseki, 25 Vet.App. 32, 36-37 (2011); DeLuca, 8 Vet.App. 205-07; Southall-Norman v. McDonald, 28 Vet.App. 346, 352 (2016)and Petitti v. McDonald, 27 Vet.App. 415, 425 (2015)). Lyles, 29 Vet.App. at 117-18. 

The Court stated that the purpose of the rating schedule “is to ensure that a claimant is properly compensated, but not overcompensated, for the actual level of impairment.” Id. at 118. Mr. Lyles conceded, and the Court agreed, that each of his additional symptoms couldbe compensated under DC 5261 – by assigning a higher rating pursuant to DeLucaand §§ 4.40, 4.45, and 4.59. The Court found, however, that the Board’s discussion of §§ 4.40 and 4.45 demonstrates that these symptoms have not been compensated in Mr. Lyles’ case. The Court based this determination on the Board’s “failure to address whether swelling, popping, locking, or grinding caused additional functional limitation” that would result in a higher rating under DC 5261 and DeLuca, and the Board’s improper reliance on medical opinions in which the examiners refused to offer the requested opinions regarding additional functional limitation during flare-ups. Lyles, 29 Vet.App. at 419-20 (citing Sharp v. Shulkin, 29 Vet.App. 26, 36 (2017)). 

The Court remanded for the Board to determine whether a separate evaluation is warranted under DC 5258 or 5259. 

Advocacy NoteLylesdemonstrates how VA’s own regulations – 38 C.F.R. §§ 4.40, 4.45, 4.59 – require adjudicators to assess additional functional loss based on limited motion or painful motion. The Court has repeatedly admonished VA for not complying with its own regulations when rating musculoskeletal conditions, and the cases cited in Lyles reflect this history. 

FULL DECISION

Gray: FC cannot review M21-1 revision to "inland waterways" definition

Gray v. Secy of Veterans Affairs, 875 F.3d 1102 (Fed. Cir. Nov. 16, 2017)

HELD: The Federal Circuit lacks jurisdiction to review VA’s policy manual revisions that exclude Navy personnel who served outside the “inland waterways” – including ports, harbors, and open-water bays – because the M21-1 policy manual is merely “guidance to VA adjudicators” and “lacks the force and effect of law.”

SUMMARY: Robert Gray is a Blue Water Navy veteran who challenged VA’s exclusion of Da Nang Harbor from its definition of “inland waterways” for purposes of presumptive service connection for conditions related to herbicide (Agent Orange) exposure. The Veterans Court concluded that VA’s definition was “both inconsistent with the regulatory purpose and irrational,” and remanded for VA to “reevaluate its definition of ‘inland waterway’ to be consistent with [38 C.F.R.] § 3.307(a)(6)(iii),” the regulation governing the presumption of herbicide exposure.  

Instead of amending the regulation – which would have required notice-and-comment rulemaking – VA amended its M21-1 policy manual with language that continued “to exclude all Navy personnel who served … in [Vietnam’s] ports, harbors, and open waters [] from presumptive service connection for diseases or illnesses connected with exposure to Agent Orange.”

Mr. Gray challenged the amendment to VA’s policy under 38 U.S.C. § 502, which governs judicial review of rules and regulations. This statute limits the Federal Circuit’s jurisdiction to agency actions that are subject to two provisions of the Administrative Procedure Act – 5 U.S.C. § 552(a)(1) and § 553. The question in this appeal is whether the revision to the M21-1 falls under § 552(a)(1). The Federal Circuit held that it did not.

This provision covers agency actions that are published in the Federal Register and are “substantive rules of general applicability as authorized by law, and statements of general policy or interpretations of general applicability formulated and adopted by the agency.” In other words – notice-and-comment rulemaking. The Federal Circuit stated that there are three factors to consider in assessing “whether an agency action constitutes substantive rulemaking … (1) the [a]gency’s own characteristics of the action; (2) whether the action was published in the Federal Register or the Code of Federal Regulations; and (3) whether the action has binding effects on private parties or on the agency.” (quoting Disabled Am. Veterans v. Sec’y of Veterans Affairs, 859 F.3d 1072, 1077 (Fed. Cir. 2017).  

The Court found that the M21-1 is meant to guide VA adjudicators, but “is not intended to establish substantive rules.” The Court noted that the Board is not bound by the M21-1 – and thus “where the action is not binding on private parties or the agency itself, we have no jurisdiction to review it.”

The Court found that Mr. Gray – and his fellow Blue Water Navy Veterans – still had other options to pursue. First, if they are “adversely affected by a M21-1” provision, they can challenge that provision on direct appeal. Second, they can petition VA for rulemaking. (Mr. Gray pointed out that both options were currently pending.) The Court recognized that it would likely take years for “individual adjudications or petitions for rulemaking” to run their course. Unfortunately, the sad reality of this situation does not change the Federal Circuit’s jurisdiction.

In a partial dissent, Judge Dyk argued that DAV was wrongly decided and that it unnecessarily narrows the Court’s jurisdiction. In Judge Dyk’s view, the “relevant question for jurisdictional purposes … is whether the Manual revisions here are properly characterized as ‘statements of general policy or interpretations of general applicability.” If so, the Federal Circuit would have jurisdiction to review the challenge. The problem with DAV (and, now, the majority opinion in this case), is that it essentially enables VA to evade judicial review by simply not publishing the revision in the Federal Register.

FULL DECISION

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