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

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

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

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

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

FULL DECISION

Kisor: Supreme Court grants certiorari

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

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

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

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

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

Golden: GAF scores, rating psychiatric conditions

Golden, Jr. v. Shulkin29 Vet.App. 221 (Feb. 23, 2018)

HELD: “Given that the DSM-5 abandoned the GAF scale and that VA has formally adopted the DSM-5, the Court holds that the Board errs when it uses GAF scores to assign a psychiatric rating in cases where the DSM-5 applies.” 

SUMMARY: Veteran is service connected for PTSD, rated 70%. He appealed for a higher rating – and his appeal was certified to the Board in June 2015. The Board denied a higher rating based on the veteran’s GAF scores –even though it acknowledged that the DSM-5 applied to claims certified to the Board after August 4, 2014, and that this edition of the DSM had eliminated the use of GAF scores. 

The Court recognized that VA is required to evaluate a disability “in relation to its history,” per 38 C.F.R. § 4.1, and to consider all medical and lay evidence of record –which may include GAF scores.The Court emphasized that VA’s ”rating analysis for psychiatric disorders has always been ‘symptom driven,’ meaning that ‘symptom[s] should be the fact finder’s primary focus” when assigning a rating.” The Court thus clarified: “to the extent that the Board may have been tempted to use numerical GAF scores as a shortcut for gauging psychiatric impairment, such use would be error.” 

FULL DECISION

Turner: 38 C.F.R. § 3.156(b), "constructively" received VA medical records

Turner v. Shulkin29 Vet.App. 207 (Feb. 8, 2018)

HELD: Under38 C.F.R. §3.156(b), if new and material evidence (which could include VA treatment records)  is “received” during the one-year appeal period following a regional office (RO) decision, the RO is required to consider that evidence as having been submitted with the original claim and proceed accordingly.” VA treatment records can be “constructively” received, which requires VA adjudicators to “have sufficient knowledge, within the one-year appeal period following an RO decision, that the records exist, although they need not know the contents of such records.” Until the RO reconsiders the claim with the newly received (or constructively received) evidence, “the denied claim remains pending.”

FULL DECISION

Harvey: Attorney serving as expert witness

Harvey v. Shulkindocket no. 16-1515 (Feb. 7, 2018)

HELD: Whether an attorney’s submission should be treated as a medical opinion depends on several factors, including (1) the text of the submission, (2) the identification of the author as attorney or medical professional, (3) the indicators of legal advocacy/argument in the submission, and (4) the presence of a medical opinion with supporting rationale. 

SUMMARY: Mr. Harvey appealed the denial of service connection for sleep apnea. At the agency level, he was represented by David Anaise, a licensed medical doctor, attorney, and accredited VA representative. In his “appeal brief” to the RO, he stated that the veteran’s sleep apnea was more likely related to his service-connected PTSD on a secondary basis, and cited supporting medical literature. The Board denied service connection, relying on a negative C&P opinion and stating that “[t]here are no contrary opinions of record.” 

On appeal to the Court, Mr. Harvey argued that the denial was in error because the Board failed to address the favorable medical opinion “submitted by his attorney-physician representative.” The Court noted that VA law does not establish requirements for determining “whether a specific submission constitutes a medical opinion” and declined to “prescribe absolute requirements” for such determinations. The Court held that these determinations are “to be undertaken individually,” and that the Board may “be obligated to assess whether that submission is a medical opinion and consider it in adjudicating a claim.” 

The Court outlined several factors that should be considered in making this assessment, including whether the author of the submission identified himself/herself as a medical professional, whether the content of the submission indicated that it was legal argument, and whether the content of the submission indicated that it was a medical opinion. Because Mr. Anaise did not identify himself as acting in the capacity of a medical professional, and because the submission contained indications of legal argument and no indication that it was a medical opinion (i.e., there was no language, such as “in my medical opinion”), the Court determined that the Board did not err by failing to treat this submission as a medical opinion. 

The Court also ordered oral argument for the parties to address the ethical issue of an attorney representative serving as an expert witness in a case. Because the Court held that Mr. Anaise’s “brief” was not a medical opinion, it found there was no violation of Rule 3.7 of the Model Rules of Professional Conduct.

Finally, the Court addressed the appellant’s argument that “the Board improperly relied on its own medical judgment to determine that the article reflected a correlative rather than a causal relationship between PTSD and sleep apnea.” The Court discussed the medical treatise evidence that had been submitted and stated that it is within the Board’s purview to interpret such treatise’s meaning and assess its probative value. The Court found that the Board correctly applied the legal standard required for assessing service connection on a secondary basis. The Court explained that that “correlation” between a service-connected condition and a secondary condition is not sufficient to establish secondary service connection; “a causation or aggravation relationship is required.” 

FULL DECISION

George: 38 C.F.R. § 3.156(c) & CUE

George v. Shulkin29 Vet.App. 199 (Feb. 5, 2018)

HELD: Upon receiving new service records, VA must “reconsider” a claimant’s original claim even if service connection has already been granted with a later effective date. However, “given the imprecise definition of ‘reconsider’ under § 3.156(c)(1),” the Court in this case did not find CUE in the Board’s determination that a proper reconsideration occurred. 

SUMMARY: In 1998, the RO denied Mr. George’s claim for service connection for PTSD because there was no confirmed PTSD diagnosis and no in-service stressor. In 2003, the veteran requested reopening. VA obtained service records, confirming the in-service stressor, and granted service connection, effective 2003. Mr. George appealed, arguing that 1998 denial should be reconsidered under 38 C.F.R. § 3.156(c). 

In 2012, on appeal to the CAVC, the parties agreed to remand for Board to consider the applicability of § 3.156(c). The Board subsequently remands for a retrospective medical opinion to determine when Mr. George’s PTSD first manifested. The C&P examiner opined that the condition first manifested in 2003, based on the 2003 C&P examiner’s report. 

In 2014, the Board denies entitlement to an earlier effective date, noting that the grant could go back to 1997, but that the first evidence of a PTSD diagnosis was not until 2003. The veteran did not appeal this decision

In 2015, Mr. George filed a motion to revise the 2014 decision on the basis of clear and unmistakable error (CUE), arguing that the Board misapplied § 3.156(c). The Board determined that there was no CUE in the 2014 decision because the medical evidence did not support a PTSD diagnosis prior to 2003. 

On appeal to the CAVC, the veteran argued that the Board erred in determining that the 2014 decision was not CUE because the Board did not “reconsider” his claim under § 3.156(c)(1), but instead only reviewed the proper effective date under § 3.156(c)(3). He argued that the finality of the original 1997 decision “‘had been undone’ by receipt of new service treatment records, and because the RO never engaged in a full readjudication, the Board erred when it found no CUE.” 

At the very beginning of its opinion, the Court emphasized that “our resolution of the claimed error here under § 3.156(c) is largely dictated by the fact that we consider that matter through the prism of CUE.” (Advocacy note: This point must be emphasized. Had the veteran directly appealed the effective date assigned in the 2003 decision, this issue would not have been subjected to the heightened CUE standard.)

The CAVC discussed § 3.156(c) and found that “upon receiving official service department records in 2007, VA had a duty to ‘reconsider’ the appellant’s 1997 claim for service connection for PTSD, despite the fact that service connection for PTSD was granted in 2007 with an effective date of 2003.” The Court noted that “what would satisfy the reconsideration required is a gray area under existing law,” and noted that “§ 3.156(c) is about more than effective dates; it’s also about development of the claim in at least some respect.” Nevertheless, the Court determined that the Board “applied the correct legal principles under § 3.156(c) when it reviewed the 2014 decision.” 

Turning to the question of whether the 2015 Board properly determined that there was no CUE in the 2014 decision, the Court stated: “given the imprecise definition of ‘reconsider’ under § 3.156(c)(1), the Board’s determination that a proper reconsideration occurred based on the gathering of new evidence and the reweighing of old evidence, is not arbitrary and capricious under the deferential CUE standard.” 

In a footnote, the Court acknowledged the appellant’s argument that had the Board conducted a “‘full readjudication’ in 2014, his lay statements may have triggered VA’s duty to assist.” The Court stated that the duty-to-assist argument could have been raised on direct appeal, but noted that it is well established that a duty-to-assist violation cannot be CUE. 

FULL DECISION

Kisor: Petition for panel, en banc rehearing denied

Kisor v. Shulkin880 F.3d 1378 (Jan. 31, 2018) (per curiam order)

SUMMARY: The majority of the en banc Court denied the petition for rehearing. However, three judges dissented on the basis that the original panel decision was predicated on Auer deference, “despite the Supreme Court’s repeated reminder that statutes concerning veterans are to be construed liberally in favor of the veteran.” 

FULL DECISION 

Rosinski: Standing to Challenge VA Policy Re: Access to Preliminary Decisions

Rosinski v. Shulkin29 Vet.App. 183 (Jan. 26, 2018) (per curiam order)

HELD: Attorney lacks standing to challenge VA policy limiting access to preliminary VA rating decisions to VSOs.

SUMMARY: VA has a policy that allows VSOs access to preliminary rating decisions before they are promulgated, which enables VSOs to identify any clear errors before the decisions are issued. VA limits this access to VSOs and does not provide attorneys who represent veterans with access to these preliminary decisions. An attorney challenged this policy as impeding his ability to provide competent representation, violating his rights as an accredited representative, and denying his clients fair process. 

The Court held that the attorney lacked standing to challenge this policy because he did not establish that he suffered an injury (economic harm) as a result of the policy or demonstrate that the policy preventing him from representing his clients. Because the attorney lacked standing and did not show that he had asserted “a claim typical of a class,” the Court further denied the attorney’s motion for aggregate action. 

In a footnote, the Court stated that it did not hold that “attorneyscategorically lack standing to challenge VA’s policy, only that Mr. Rosinski has not demonstrated that he has standing on the facts of this case.” 

In a concurring opinion, Chief Judge Davis wrote that the “increased involvement of attorneys in the adjudication process . . . suggests that the disparate treatment of VSO representatives and attorneys . . . may no longer be rationally justified.” 

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