Mathis: PRESUMPTION OF VA MEDICAL EXAMINER'S COMPETENCE

Mathis v. Shulkin, 582 U.S. ___ (2017)

HELD: The Supreme Court declined to review the Federal Circuit’s decision that refused to disavow the presumption of competence afforded to VA examiners. The reason the Federal Circuit refused to disavow the presumption in this particular case was because the veteran did not challenge the VA examiner’s credentials or qualifications at the agency level.

Justices Sotomayor and Gorsuch wrote separate statements questioning the presumption. Justice Sotomayor stated that in order for a veteran to challenge an examiner’s qualifications, the veteran must know the examiner’s credentials. This can be difficult/impossible to get from VA – which creates a “Catch-22” for the veteran. She added: “A decision by the VA to deny benefits in reliance on an examiner’s opinion, while denying the veteran access to that examiner’s credentials, ensures that the presumption will work to the veteran’s disadvantage.” She left the door open to a future review, stating: “Full review would require a petition arising from a case in which the VA denied a veteran benefit after declining to provide the medical examiner’s credentials.”

Justice Gorsuch questioned the origin of the presumption – noting that it does not come from statute. He described how the presumption works in practice: “VA usually refuses to supply information that might allow a veteran to challenge the presumption without an order from the Board of Veterans’ Appeals” and the Board will not issue an order unless the veteran provides “a specific reason for thinking the examiner incompetent.” He further questioned how “an administrative agency may manufacture for itself or win from the courts a regime that has no basis in the relevant statutes and does nothing to assist, and much to impair, the interests of those the law says the agency is supposed to serve.” He recognized that several Federal Circuit judges have questioned the propriety of the presumption and stated that “this may well mean the presumption’s days are numbered.” However, he did not hold out hope – and concluded that the issue was worthy of the Supreme Court’s attention.

FULL DECISION

DAV: PETITION TO REVIEW M21-1 PROVISION DISMISSED

Disabled American Veterans v. Sec’y of Veterans Affairs, 859 F.3d 1072 (Fed. Cir. 2017)

HELD: The Federal Circuit can only review M21-1 provisions that are subject to 5 U.S.C. §§ 552(a)(1) and 553 of the Administrative Procedure Act (APA). VA altered the definition of what constitutes a “medically unexplained multisymptom illness” (MUCMI) in its procedure manual (M21-1), but the Court determined that it could not review this M21-1 change because it did not fall under either § 552(a)(1) or § 553.

SUMMARY: Section 552(a)(1) of the Administrative Procedure Act (APA) “refers to agency actions that must be published in the Federal Register.” Section 553 “refers to agency rulemaking that must comply with notice-and-comment procedures under the [APA].” VA regulation 38 C.F.R. § 3.317 defines “a medially unexplained multisymptom illness” (MUCMI) as “a diagnosed illness without conclusive pathophysiology or etiology.”

VA consolidates it policies and procedures into a manual called the M21-1. Any VA employee can request revisions to the M21-1. On the request of an employee, the Secretary revised the definition of MUCMI in the M21-1 from an illness with “no conclusive physiology or etiology” to one with “both an inconclusive pathology, and an inconclusive etiology.” The Secretary also added that sleep apnea cannot be presumptively service connected under 38 C.F.R. § 3.317 “since it is a diagnosable condition.”

Disabled American Veterans (DAV) petitioned the Federal Circuit to review these M21-1 changes, arguing that the changes were similar to cases where the Court had previously reviewed VA policy changes. The Federal Circuit distinguished its prior cases, noting that they fell under 5 U.S.C. § 552(a)(1) because they involved agency actions that had to be published in the Federal Register. See Splane v. West, 216 F.3d 1058 (Fed. Cir. 2000) (reviewing a precedential General Counsel opinion); LeFevre v. Secretary of Veterans Affairs, 66 F.3d 1191 (Fed. Cir. 1995) (reviewing VA’s decision to not add certain conditions to the list of presumptive conditions related to Agent Orange exposure); Military Order of the Purple Heart v. Sec’y of Veterans Affairs, 580 F.3d 1293 (Fed. Cir. 2009) (reviewing a VA Fast Letter).

DAV argued that the Federal Circuit should review the M21-1 revisions because “the revisions announce substantive rules subject to § 553 which should be voided for failure to provide the required notice and comment.” The Court rejected this argument, finding that (1) “VA does not intend for the M21-1 Manual to carry the force of law” and (2) the M21-1 is not binding on VA or the courts.

The Federal Circuit noted that an individual veteran who is adversely affected by an M21-1 provision can challenge that provision by contesting “the validity of that provision as applied to the facts of his case” in the course of a direct appeal.  However, the Court dismissed this petition, holding that it lacked jurisdiction to review manual provisions that “are interpretations adopted by the agency, not published in the Federal Register, not binding on the Board itself, and contained within an administrative staff manual.”

FULL DECISION

Snyder: DISPUTED ATTORNEY FEE RECOVERABLE AFTER VETERAN'S DEATH

Snyder v. Sec’y of VA, 858 F.3d 1410 (Fed. Cir. June 8, 2017)

HELD: A veteran’s surviving spouse can seek to recover a disputed attorney fee after the veteran’s death pursuant to 38 U.S.C. § 5121.

SUMMARY: Attorney Keith Snyder began representing veteran Larry Beck pursuant to a February 2001 fee agreement that called for the payment of 20% of any past-due benefits awarded. Less than a year after entering into the agreement, Attorney Snyder asked the Board of Veterans’ Appeals to revoke his representation, stating that “irreconcilable differences” made his “continued representation of Mr. Beck . . . not possible,” and asked the Board to cancel his fee agreement immediately.

Two years later, VA granted the veteran’s appeal, and awarded past-due benefits at the 100% disability rate, retroactive to June 1992. Despite the fact that Attorney Snyder had terminated representation two years earlier, he still sought attorney fees pursuant to the fee agreement. He presented a copy of that fee agreement to the VA Regional Office (RO), which determined that he was entitled to an attorney fee of over $41,000 and withheld that fee from the past-due benefits award.

The veteran appealed this decision and sought to recover the withheld attorney fee. In November 2005, the Board remanded this matter back to the RO to readjudicate the issue of whether Mr. Snyder was entitled to the attorney fee. In December 2006, while the appeal was still pending, Mr. Beck passed away.

His widow filed an accrued benefits claim, seeking to recover the disputed fee. The RO denied the accrued benefits claim, and Mrs. Beck appealed to the Board. In 2008, the Board dismissed the veteran’s appeal pursuant to 38 C.F.R. § 20.1302 (extinguishing appeal upon veteran’s death) and remanded Mrs. Beck’s claim back to the RO.

The RO again determined that Mrs. Beck “could not recover the disputed attorney fee because her husband’s claim ceased to exist upon his death.” Mrs. Beck again appealed this decision, and the Board requested a VA General Counsel precedent opinion.

In December 2015, VA’s Office of the General Counsel issued an opinion, stating:

A claim, pending at the time of a veteran’s death, challenging an attorney’s entitlement to payment of attorney fees . . . may provide a basis for an accrued benefits claim under [38 U.S.C. §] 5121, because such a claim concerns entitlement to periodic monetary benefits allegedly due and unpaid to the veteran at the time of death.

While this appeal was pending at the Board, Attorney Snyder petitioned the Federal Circuit to review the General Counsel Precedent Opinion pursuant to 38 U.S.C. § 502, which authorizes the Federal Circuit to review agency actions that must be published in the Federal Register and VA’s rulemaking under the Administrative Procedures Act (APA), unless “such review is sought in connection with an appeal” to the Board. If that is the case, then the laws under chapter 72 – relating to Board appeals – apply.

The Secretary argued that the Federal Circuit lacked jurisdiction over this petition “because Mr. Snyder seeks review of VA action in connection with his case before the Board.” The Secretary also argued that the Federal Circuit lacked jurisdiction to review General Counsel Precedent Opinions issued in response to a Board request.

The Court rejected both arguments – yet denied the petition.

The Federal Circuit first noted that General Counsel Precedent Opinions must be published in the Federal Register and are binding on the Board. The fact that this opinion was issued in response to a Board request did not change the Court’s conclusion, since there is nothing in the relevant statute that limits the Court’s “review to only some precedential General Counsel opinions.” The only limitation would be “if Mr. Snyder sought review of the opinion in connection with his appeal.” However, the Court determined that Mr. Snyder sought review under 38 U.S.C. § 502, which applies to the General Counsel Precedent Opinion.

The Secretary argued that this position would be inconsistent with the Federal Circuit’s holding in Paralyzed Veterans of Am. v. Sec’y of Veterans Affairs, 308 F.3d 1262 (Fed. Cir. 2002). The Court rejected this argument, citing an earlier case, Splane v. West, 216 F.3d 1058 (Fed. Cir. 2000), which held that the Court had jurisdiction to review precedential opinions issued in response to a Board request. The Court stated that “[w]hen two cases decided by our court are in apparent conflict, we adopt the first in time and follow it.”

Turning its review to the General Counsel Precedent Opinion, the Court determined that it would have reached the same conclusion as the General Counsel. The Court explained that 38 U.S.C. § 5904 “provides for the payment of attorney fees from ‘past-due benefits awarded on the basis of the claim’ in which the attorney represented the veteran” and which are deducted from veteran’s past-due benefits award. Section 5121 “provides for the recovery of ‘[p]eriodic monetary benefits … due and unpaid’ at the time of a veteran’s death based on ‘existing ratings or decisions or those based on evidence in the file at date of death.’” Because attorney fees are deducted from a past-due benefits award, a dispute over such fees constitutes a dispute over the award. An accrued benefits claimant can seek to recover those fees because her clam is one “of entitlement to periodic monetary benefits allegedly due and unpaid to the veteran.” The fact that 38 C.F.R. § 20.1302 requires an appeal to be dismissed upon a veteran’s death is irrelevant to a claim for accrued benefits.

The Court upheld the General Counsel Precedent Opinion, stating: “If the evidence on file at the date of the veteran’s death shows entitlement to due and unpaid periodic monetary benefits, an accrued benefits claimant can pursue those benefits under § 5121.”

FULL DECISION

Molitor: DUTY TO OBTAIN ANOTHER’S RECORDS TO CORROBORATE ASSAULT; CREDIBILITY; EVIDENCE OF BEHAVIOR CHANGES

Molitor v. Shulkin, docket no. 15-2585 (June 1, 2017)

HELD: "[w]hen a claimant adequately identifies relevant records of fellow servicemembers that may aid in corroborating a claimed personal assault, the duty to assist requires VA to attempt to obtain such records or, at a minimum, to notify the claimant why it will not undertake such efforts.” In addition, the Court held that “a claimant’s credibility does not abrogate or extinguish VA’s duty to assist a claimant in developing her claim” and that “a lack of evidence of behavior changes in service does not constitute negative evidence against a claim for service connection for PTSD based on an in-service personal assault.”

SUMMARY: In 2003, veteran Jaclyn Molitor filed a claim for service connection for PTSD due to military sexual trauma (MST). A 2004 VA examiner diagnosed PTSD due to childhood trauma, and the VA regional office (RO) denied the claim. Ms. Molitor appealed that decision.

Her Vet Center treatment records noted that she was sexually assaulted in service as part of a military police (MP) hazing. She did not report the incident for fear of retribution. Her Vet Center counselor, Cindy Macaulay, wrote a letter stating that Ms. Molitor had repressed memories of the incident and that those memories were coming back with therapy. Ms. Macauley acknowledged the veteran’s other diagnoses, childhood sexual abuse, and post-service events that “complicated the case,” but opined that it was “at least as likely as not” that her PTSD was related to her in-service assaults. Attached to the letter was a sexual trauma markers worksheet that included the approximate date of the assault, location, unit, and names of several witnesses. Ms. Molitor also submitted a statement providing additional details about the assault.

The RO continued to deny the claim in a Statement of the Case (SOC) that Ms. Molitor appealed. In September 2006, she was afforded a Board hearing, during which she testified that she was raped by four or five soldiers during an MP hazing and that she “beat the hell out of the sergeant” in the group.

In July 2007, the Board remanded for additional development. In January 2010, Ms. Macauley submitted another letter in support of the claim. The next month, Ms. Molitor underwent another VA PTSD examination. The examiner questioned her credibility because she denied prior drug and alcohol abuse and mental illness on her service entrance examination report. The examiner noted that there was no evidence of behavior changes in her file and therefore determined that it was less likely that her PTSD was related to service. Later that month, the RO continued to deny the claim in a Supplemental SOC.

In June 2011, the Board remanded again for additional development. In April 2012, the Appeals Management Center determined that Ms. Molitor’s claimed in-service assaults could not be verified.

Her subsequent Vet Center treatment records showed that Ms. Molitor had “cut back on her meds” and was remembering more about the military assaults. Ms. Molitor submitted statements with additional details, including names of the other MPs who raped her, as well as the name of another female MP, Private Lutz, who she believed had also been raped. Ms. Molitor indicated that Private Lutz committed suicide in service. She asked VA to check her file, as well as the files of other women she served with, whom she also identified, for evidence of in-service assault or post-service claims for service connection for PTSD due to MST.

In December 2012, the Board remanded the claim again for another hearing. Ms. Molitor again described the hazing rape and stated that she was subsequently transferred without explanation. Ms. Macauley, her Vet Center therapist, also testified at the hearing, and stated that she believed Ms. Molitor had been raped in service because she consistently reported the details of the assaults. Ms. Macauley explained that the “inconsistencies” perceived by VA were the result of her remembering more details, rather than changing her story.

The Board remanded the case three more times for additional VA medical opinions, including “a medical expert opinion to resolve the conflicting diagnoses.” In January 2015, a VA psychologist diagnosed borderline personality disorder and PTSD due to childhood abuse, and determined that both diagnoses preexisted service. She rejected Ms. Macauley’s diagnosis of PTSD due to MST as “not supported by the record.”

In its May 2015 decision, the Board denied the claim. The Board determined that VA satisfied its duty to assist, but did not discuss Ms. Molitor’s requests to obtain other servicemembers’ records. The Board found Ms. Molitor’s statements not credible because they were “internally inconsistent and contradicted by other evidence of record.” The Board rejected Ms. Macauley’s opinions because they were based on Ms. Molitor’s non-credible statements, and afforded “great probative weight to the negative VA examiners’ opinions.”

On appeal, Ms. Molitor argued that VA did not satisfy its duty to assist because it did not attempt to obtain records from her fellow servicemembers that she had identified, as required by VA’s own G.C. Precedent Opinion 05-14. The Secretary argued that Ms. Molitor had not adequately identified records that could aid in corroborating the claimed assaults, and that VA would not be able to disclose those records without written consent from the servicemembers or a court order. The Secretary further argued that “there is an ‘umbrella of credibility’ that hangs over all of the prongs of the duty to assist” and that the Board’s adverse credibility determination was adequate to explain why no further assistance was provided in this case.

The Court agreed with the veteran. The Court explained that this case involves VA’s “interpretation of intertwining and sometimes conflicting” statutory duties to (1) assist claimants and (2) protect the privacy of all servicemembers. The Court noted that in claims for service connection for PTSD based on personal assault, 38 C.F.R. § 3.304(f)(5) “lowers the evidentiary burden for corroborating the occurrence of an in-service personal assault stressor.” This regulation codified VA’s “existing internal policies that provided for additional development assistance in claims for PTSD based on personal assault.”

Under 38 U.S.C. § 5103A, VA’s duty to assist “includes making reasonable efforts to obtain relevant records from VA or other Federal departments or agencies that have been adequately identified by the claimant.” Once this duty is triggered, VA must make as many requests as necessary unless “it is reasonably certain that such records do not exist” or that “further efforts to obtain those records would be futile” or there is “no reasonable possibility” that any additional assistance would help substantiate the claim. This latter category applies to claims that are “inherently incredible or clearly lack merit.” 38 C.F.R. § 3.159(d)(2).

The Court summarized G.C. Precedent Opinion 05-14 as requiring VA to make reasonable efforts to obtain another individual’s records “if (a) those records were adequately identified, would be relevant to the [v]eteran’s claim, and would aid in substantiating the claim; and (b) VA would be authorized to disclose the relevant portions of such records to the [v]eteran under the Privacy Act and 38 U.S.C. §§ 5701 and 7332.” The latter requirement cites three statutes that limit VA’s disclosure of another individual’s records, but the Precedent Opinion also identified three exceptions in the Privacy Act – (1) written consent from the individual, (2) a court order, or (3) disclosure for “‘routine use’ compatible with the purpose for which the record was collected.”

The Precedent Opinion further concluded that neither the duty to assist (§ 5103A) nor 38 C.F.R. § 3.304(f)(5) “requires VA to solicit written statements from fellow servicemembers” to corroborate a claimed assault. However, the Court noted that it had previously addressed this issue in Forcier v. Nicholson, 19 Vet.App. 414, 422 (2006), which held that VA’s duty to assist may require VA to obtain such written statements if the claimant provides the names of the perpetrator(s) and/or witnesses.

The Court determined that during the course of this appeal Ms. Molitor had adequately identified several individuals whose records could help corroborate her claimed assaults and that these records were relevant to her claim. The Court thus determined that the Board erred by not considering the applicability of G.C. Precedent Opinion 05-14 when it found that VA had satisfied its duty to assist.

With respect to the Secretary’s “umbrella of credibility” argument, the Court held that “a claimant’s credibility does not abrogate or extinguish VA’s duty to assist a claimant in developing her claim because such development may produce evidence that substantiates the claim or otherwise bolsters or rehabilitates a claimant’s credibility.”

The Court thus held that when a claimant for service connection for PTSD based on personal assault “adequately identifies relevant records of fellow servicemembers that may aid in corroborating the claimed assault, G.C. Precedent Opinion 05-14 is applicable to the claim and VA must either attempt to obtain such records or notify the claimant why it will not undertake such efforts.”

The Court further noted that “a lack of evidence of behavior changes in service does not constitute negative evidence against a claim for service connection for PTSD based on an in-service personal assault.” The Court added: “Because behavior changes do not necessarily manifest immediately after a personal assault, it cannot be expected that they would appear in service in every instance of an assault; therefore, a lack of behavior changes in service cannot act as evidence against the occurrence of the assault.” 

FULL DECISION

Ollis: 38 U.S.C. § 1151, REFERRAL FOR NON-VA TREATMENT

Ollis v. Shulkin, docket no. 2016-1315 (Fed. Cir. May 26, 2017)

HELD: “[W]hen recovery is predicated on a referral theory involving an unforeseeable event under § 1151(a)(1)(B), § 1151(a)(1) requires that VA medical care proximately cause the medical treatment or care … during which the unforeseeable event occurred.” In other words, in cases where a disability results from an unforeseeable event due to a medical procedure performed by a non-VA doctor or in a non-VA facility, the question of causation for § 1151 purposes is whether the medical procedure itself “was a remote consequence of VA treatment.”

SUMMARY: Veteran Paul Ollis filed a claim for service connection under 38 U.S.C. § 1151 for disabilities that resulted from a medical procedure (mini-MAZE) that was allegedly recommended by his VA doctor, but performed by a private doctor in a non-VA facility. Although Mr. Ollis’s VA doctor had recommended the mini-MAZE procedure, his private doctor referred him to the physician who actually performed the procedure. Mr. Ollis asserted that his phrenic nerve was damaged during the procedure, causing paralysis of the diaphragm that resulted in shortness of breath and decreased lung function.  

The VA regional office and the Board of Veterans’ Appeals denied service connection for these disabilities under § 1151, and the Veterans Court affirmed. In its decision, the Court noted that the procedure was performed by a non-VA doctor in a non-VA facility, and that there was no contractual relationship between VA and the doctor. The Court also determined that there was “no due process right to notice that referral to a private doctor could affect benefits under § 1151(a).”

On appeal, the Federal Circuit first discussed the history of 38 U.S.C. § 1151, which provides benefits for nonservice-connected conditions to veterans with disabilities resulting from VA medical care. The statute requires that the injury was “caused by” VA care and that the “proximate cause” was “carelessness, negligence, lack of proper skill, error in judgment, or similar instances of fault on the part of the [VA] . . . [or] an event not reasonably foreseeable.” The relevant question addressed by the Court was “how to construe the statutory requirements of § 1151 when the disability-causing event occurred during a medical procedure not performed by a VA doctor or in a VA facility,” which the Court labelled “referral situations.”

The Court examined the two alternative “proximate causation” requirements – the negligence requirement (§ 1151(a)(1)(A)) and the “event not reasonably foreseeable” requirement (§ 1151(a)(1)(B)).

The standard for proving negligence under § 1151(a)(1)(A) is similar to the standard in medical malpractice cases: “It requires that VA medical care actually cause the claimant’s disability . . . and that, in providing such care, VA’s failure ‘to exercise the degree of care that would be expected of a reasonable health care provider proximately caused the disability.’” This proximate cause requirement “incorporates traditional tort law notions of proximate cause,” which “defines its scope in terms of foreseeability, extending only to those foreseeable risks created by the negligent conduct.”

The Veterans Court rejected Mr. Ollis’s argument that VA was at fault for negligently referring him to a particular doctor because there was no proximate cause between VA negligence and the injury – and the Federal Circuit saw no legal error in the Court’s analysis on this point. However, the Federal Circuit found that the Veterans Court did not address the remaining question of whether Mr. Ollis’s VA doctors were negligent under § 1151(a)(1)(A) for recommending the mini-MAZE procedure in the first place.

In examining the alternative proximate cause requirement under § 1151(a)(1)(B), the Federal Circuit noted that a theory under this provision in a referral situation requires the interpretation of the statutory terms “not reasonably foreseeable,” “proximate cause of the disability or death,” and “caused by.” The Court stated that “not reasonably foreseeable” is an event that “‘a reasonable health care provider would not have considered to be an ordinary risk of the treatment provided’ and not ‘the type of risk that a reasonable health care provider would have disclosed in connection with . . . informed consent,’” quoting 38 C.F.R. § 3.361(d)(2). The Federal Circuit stated that the Veterans Court did not address this requirement.

In order to satisfy this alternative “proximate cause” requirement, the “veteran need only show that the disability or death was proximately caused by the unforeseeable event, and a showing of fault is not required.” The Federal Circuit provided an example of “a situation in which an unforeseeable event is not the proximate cause of a disability” – i.e., “if phrenic nerve severance would not foreseeably cause shortness of breath or decreased lung function.” The Federal Circuit stated that it was clear in this case that “an unforeseeable event such as phrenic nerve severance can be the proximate cause of the disability,” and thus satisfy the proximate cause requirement of § 1151. The Veterans Court also did not address this requirement.

The Federal Circuit stated, however, that even if Mr. Ollis satisfied the “unforeseeable event” requirement of § 1151(a)(1)(B), he would still need to satisfy the “caused by” language of § 1151(a)(1). The Court stated that “[b]y definition a claimant cannot show that an injury that is unforeseeable was proximately caused by VA medical care,” but the Court added that “it seems quite clear that Congress intended some concept of remoteness to be inherent in the cause requirement of § 1151(a)(1)” – and that this “remoteness requirement is the same as the traditional proximate cause requirement but without fault and applicable to a limited sequence of events.” In other words, this is a “lesser proximate cause requirement.” In this case, “only the performance of the mini-MAZE procedure and not the nerve severance or the resulting shortness of breath and decreased lung function must be proximately caused by VA medical treatment to satisfy the cause requirement of § 1151(a)(1).”

The Court remanded the case to the CAVC to address the question of “whether VA medical care proximately caused the mini-MAZE procedure,” and summarized its holding on this point as follows:

[W]hen recovery is predicated on a referral theory involving an unforeseeable event under § 1151(a)(1)(B), § 1151(a)(1) requires that VA medical care proximately cause the medical treatment or care (here, the mini-MAZE procedure) during which the unforeseeable event occurred (here, the severance of the phrenic nerve). Section 1151(a)(1)(B) further requires that the unforeseeable event – phrenic nerve damage – proximately cause the disability. As such, the chain of causation has two components (neither of which requires fault) – i.e., proximate cause between VA medical care and the treatment, and proximate cause between the unforeseeable event and the disability.

(emphasis added). The Federal Circuit identified the CAVC’s legal errors as framing the question as (1) whether Mr. Ollis’s disability was a remote consequence of VA treatment, and (2) whether VA treatment caused Mr. Ollis to use a particular private doctor – when the relevant question was whether the VA treatment proximately caused Mr. Ollis to undergo the mini-MAZE procedure.

Mr. Ollis also argued that VA violated his due process rights by failing to inform him that referral to a private facility for the mini-MAZE procedure “could extinguish his eligibility for benefits under § 1151(a).” The Federal Circuit rejected this argument and held that “[t]here is no due process right to notice regarding conditions that might in the future affect an individual veteran’s right to monetary benefits … before the veteran incurs an injury or applies for such benefits.”

Advocacy note: This second holding is important to keep in mind, particularly with VA’s and veterans’ increasing reliance on non-VA doctors through the Choice program. Since VA is under no legal obligation to inform veterans that they may lose eligibility for § 1151 benefits if something goes wrong when they use a private provider, advocates should inform their clients of this.

FULL DECISION

Monk: CAVC’S CLASS ACTION AUTHORITY

Monk v. Shulkin, docket no. 2015-7106 (Fed. Cir. Apr. 26, 2017)

HELD: “[T]he Veterans Court has the authority to certify a class for a class action and to maintain similar aggregate resolution procedures.”

SUMMARY: In 2013, Mr. Monk was denied VA benefits based on his “other-than-honorable” discharge. He appealed that decision and, at the same time, applied for a discharge upgrade with the Board of Correction of Naval Records (BCNR). In 2015, the VA regional office informed Mr. Monk that it would not make a decision on his appeal until it received the BCNR’s decision. Mr. Monk petitioned the CAVC to order the Secretary to act on his appeal, as well as the appeal of “similarly situated veterans.” He asked the Court to certify a class under a class action to be comprised of veterans who had not received a decision within 12 months of filing a Notice of Disagreement and who had also demonstrated medical or financial hardship.

While the petition was pending at the Veterans Court, the BCNR upgraded Mr. Monk’s discharge to honorable. The CAVC denied the petition and rejected the request for class certification, stating that it “does not have the authority to entertain class actions.”

Mr. Monk appealed to the Federal Circuit – and VA subsequently awarded full disability benefits. Because of this, the Secretary argued that Mr. Monk’s appeal was moot. However, the Federal Circuit determined that the grant of benefits did not moot the legal question of whether the CAVC has the “authority to entertain class actions” since this “question exists independently of Mr. Monk’s disability award and it persists in the context of the appeal raised by Mr. Monk.” The Court stated that “where the relief sought is forward-looking, a claim is not moot if it is capable of repetition and yet evades review.” The Court noted that “veterans face, on average, about four years of delay between filing an NOD and receiving a final Board decision,” and that there are thousands of veterans still awaiting decisions on their appeals.

The Court held that the CAVC has the authority to certify and adjudicate class action cases “under the All Writs Act, other statutory authority, and [its] inherent powers.” The Federal Circuit stated that the All Writs Act “unquestionably applies to the Veterans Court” and noted that it “has provided authority to aggregate cases in various contexts.”

With respect the “other statutory authority,” the Federal Circuit noted that the Veterans Judicial Review Act (VJRA, the statute that created the Veterans Court) vested the CAVC “with authority to review Board decisions adverse to veterans,” and noted that there “is no indication that Congress intended such review authority to not include class actions.” The Court further noted that 38 U.S.C. § 7264(a) “authorizes the Veterans Court to create the procedures it needs to exercise its jurisdiction” – and that “[o]ther tribunals have relied on statutes with similar language . . . to aggregate claims and create class action procedures.” Based on this statute, the Federal Circuit held that “the Veterans Court may prescribe procedures for class actions or other methods of aggregation.”

The Federal Circuit recognized the CAVC’s reliance on its own earlier decision that held that it lacked class action authority. That decision, Harrison v. Derwinski, 1 Vet.App. 438 (1991) was based on the Court’s understanding that (1) its jurisdiction was limited to review of final Board decisions, (2) it was statutorily precluded from making factual findings in the first instance, and (3) each person adversely affected by a Board decision was required by statute to file a Notice of Appeal with the CAVC. This decision further recognized that the CAVC has “previously declined to permit class actions because to do so would be unmanageable and unnecessary.”

The Federal Circuit disagreed that the CAVC’s authority was so limited in light of its statutory authority to “compel action of the Secretary unlawfully withheld or unreasonably delayed” (quoting 38 U.S.C. § 7261(a)(2)). The Federal Circuit noted that “there was legislative history that the focus should be on individual claimants, but still found “no persuasive indication that Congress intended to remove class action protection for veterans when it enacted the VJRA.” The Court added that “[c]lass actions can help the Veterans Court exercise that authority by promoting efficiency, consistency, and improving access to legal and expert assistance by parties with limited resources.”

The Federal Circuit bolstered its decision by pointing out the ways in which class actions would help the CAVC achieve its goal of “reviewing VA’s delay in adjudicating appeals,” as well as increase “its prospects for precedential opinions” and “serve as lawgiver and error corrector simultaneously, while also reducing the delays associated with individual appeals.” In advancing the use of “class actions to promote efficiency, consistency, and fairness in its decisions,” the Federal Circuit stated that the CAVC was similar to the “EEOC or bankruptcy courts that have adopted class action mechanisms to promote similar concerns.” The Court thus held that the CAVC “has authority to certify a class for class action or similar aggregate resolution procedure,” but declined to address whether certification was appropriate in this case or the nature of procedures the CAVC may adopt for class actions.

FULL DECISION

Eicher: POST-9/11 GI BILL EDUCATION BENEFITS

Eicher v. Shulkin, docket no. 15-1896 (Apr. 19, 2017)

HELD: “Post-9/11 GI Bill education benefits cannot be used to pay for a nonaccredited program at a foreign educational institution taken by distance learning” and the Court cannot grant benefits on the basis of equitable estoppel. Only the Secretary “has the power to grant equitable relief where administrative error leads to a denial of benefits.”

SUMMARY: Veteran James Eicher applied for VA education benefits to take an online Masters program through a foreign institution. The veteran corresponded with VA and the University via email, requesting an update on the status of his application. In an email, a VA representative stated that the “program was approved” and that a letter with information regarding the approval had been sent. The letter stated that such programs “are approved for in-resident training only” and required in-person attendance “in a formal classroom setting.” The veteran submitted a second electronic application, and received a letter from VA notifying him that he was entitled to “benefits for an approved program of education or training.” The letter instructed him to have his school certify his enrollment before he could get paid.

After VA received the University’s enrollment certification, which showed that the program was taken by distance learning, it denied Mr. Eicher’s request for payment, stating that “distance learning is not approved for GI Bill payment at foreign schools.”

Mr. Eicher appealed to the Board of Veterans’ Appeals, which denied his request, reiterating that “Post 9/11 GI Bill ‘benefits cannot be used to pay for a nonaccredited program at a foreign educational institution taken via distance learning.” The Board noted that “38 U.S.C. § 503 provides for equitable relief when there has been administrative error,” but stated that Mr. Eicher would need to petition the Secretary for such relief. The Board found that it “lacked jurisdiction to consider the Secretary’s exercise of authority to award equitable relief under section 503.”

On appeal, Mr. Eicher asked the Veterans Court to grant relief on the basis of equitable estoppel, arguing that he relied, to his detriment, on VA communications. Alternatively, he argued that the Board failed to adequately explain its decision because it failed to discuss the regulation pertaining to requesting equitable relief and “whether a recommendation to the Secretary for consideration of equitable relief was warranted.” The Secretary argued that the CAVC cannot apply equitable estoppel to grant monetary awards against the government and that the Board is not required to discuss the issue of recommendation for relief under section 503.

The Court briefly discussed the history of the Post 9/11 GI bill and the statutory definitions of “program of education” and “independent study.” The Court found that the Board correctly determined that Mr. Eicher was not enrolled in an approved course of study since he completed the program online, and that the relevant statutes and regulations “make clear that Post 9/11 GI Bill education benefits cannot be used to pay for a nonaccredited program at a foreign educational institution taken by distance learning.”

With respect to the equitable estoppel argument, the Court held that even if it were inclined to grant such relief, it could only do so with statutory authority, as the Appropriations Clause of the Constitution “precludes the judiciary from ordering an award of public funds to a statutorily ineligible claimant on the basis of equitable estoppel.” The Court added that even if VA’s email to the University was misleading, “erroneous advice given by a government employee cannot be used to estop the government from denying benefits.”

The Court noted that the Secretary does have the authority under 38 U.S.C. § 503 to grant equitable relief, but found that both the Court and the Board lack jurisdiction to review the Secretary’s refusal to grant such relief. In two footnotes, the Court noted its “confusion” as to why the Board member did not mention the Chairman’s authority to recommend equitable relief to the Secretary. However, the Court determined that the Board was not required to discuss the recommendation process – and that its failure to do so did not amount to a remandable reasons-or-bases error.

In his dissent, Judge Greenberg pointed out that the relevant regulation does not mention “distance learning” and that the definition of “independent study” is one that “is offered without any regularly scheduled, conventional classroom or laboratory sessions” – and does not expressly encompass online courses. (“A veteran is not engaged in ‘independent study’ merely because he attends a course online.”)

Judge Greenberg rejected the Board’s characterization of Mr. Eicher’s online course as “independent study” stating that “independent study is only barred if the educational institute is non accredited” and adding that VA’s interpretation of its regulation as barring distant learning “is utterly inconsistent with the statutory context of congressional limitations on independent study.”

FULL DECISION

Cantrell: TDIU, EMPLOYMENT "IN A PROTECTED ENVIRONMENT"

Cantrell v. Shulkin, docket no. 15-3439 (Apr. 18, 2017)

HELD: VA has not defined “employment in a protected environment” for purposes of entitlement to TDIU, but factors to consider include “the magnitude of a veteran’s job responsibilities and the degree of accommodation necessary for successful, full-time work.” VA adjudicators must consider the combined impact of a veteran’s multiple service-connected disabilities in determining whether referral for extraschedular consideration is warranted.

SUMMARY: Veteran Eric Cantrell was service connected for ulcerative colitis, among other conditions. He requested a total disability rating based on individual unemployability (TDIU) based on evidence of chronic loose stools and abdominal discomfort that “made it difficult for him to stand or be away from the bathroom for prolonged periods of time.” He reported having 6-10 bowel movements a day – when he was feeling well – and up to 16-20 bowel movements a day during his monthly episodes of “pouchitis” that lasted three to four days.

Mr. Cantrell was employed as a park ranger and was able to “work around his condition by knowing the location of every restroom in the park and by avoiding eating anything at work during pouchitis episodes.” He stated that he was only able to maintain his job “because of the many accommodations made by his employer, including being assigned only to duty stations near restrooms, not being required to remain at emergency scenes, and always having another ranger on call for him in case he needed to leave work early for medical reasons.” He had to leave work early about three times per month, and was unable to work at all about two to three times per month.

To support his claim, he submitted a private vocational assessment, which noted that his condition resulted in 10 to 15 bathroom breaks per day, lasting 20 minutes each, and that his current job was “tantamount to a ‘protected employment’ situation” because no typical employer would allow “a worker to take three and one third (3 1/3) hours per workday/work shift for bathroom break purposes.” The vocational expert determined that Mr. Cantrell’s need for bathroom breaks rendered him “totally unemployable for any competitive occupation.”

The Board denied TDIU, finding that Mr. Cantrell’s employment was substantially gainful. The Board discounted the private vocational expert’s opinion that his job was “in a protected environment,” because it found that the symptoms he reported to the vocational expert were inconsistent with his prior statements. The Board further found that Mr. Cantrell’s employment was not “in a protected environment” because he had “substantial responsibilities” and his employer’s accommodations enabled him to work full time.

On appeal to the Court, Mr. Cantrell argued that the Board provided an inadequate explanation for its determination that his job did not qualify as “in a protected environment.” He noted that VA did not define employment “in a protected environment,” but argued that “‘employment in a protected environment’ exists when a veteran ‘is only able to work because his employer protects him from termination.’” The Secretary argued that VA intentionally chose “not to define ‘employment in a protected environment,’ leaving it to the discretion of the factfinder on [a] case-by-case basis.” The appellant strongly objected to the Secretary’s position, arguing that “without an articulated standard for employment ‘in a protected environment,’ he cannot discern and the Court cannot determine whether the factors the Board considered in this case were appropriate.” The Court agreed with Mr. Cantrell.

The Court first discussed the relevant regulation, C.F.R. § 4.16, which provides that a veteran may be entitled to TDIU when his service-connected conditions render him unable to secure or follow substantially gainful employment. The regulation states that “marginal employment is not gainful employment,” and defines marginal employment as employment that either (1) results in earned annual income below the Census Bureau’s poverty threshold or, when a person’s income exceeds the poverty threshold, (2) on a facts-found basis, including “employment in a protected environment such as a family business or sheltered workshop.”

The Court determined that the meaning of “in a protected environment” is not clear from the plain language of the regulation, but declined to defer to the Secretary’s “we know it when we see it” definition that would essentially rely on hundreds of VA adjudicators to “uniformly and consistently apply that undefined term without guidance.” The Court stated that without a definition, “there is no standard against which VA adjudicators can assess the facts of a veteran’s case to determine whether he or she is employed in a protected environment.” The Court held that “absent an articulated standard for employment ‘in a protected environment’ that is capable of consistent application by VA and meaningful review by this Court, we cannot defer to the Secretary’s decision not to define that term in § 4.16(a).”

The Court discussed VA’s historical difficulties in implementing this regulation, adding that it “has little confidence that VA has or will be able to determine employment ‘in a protected environment’ in a consistent manner without further guidance from the Secretary.”

The Court stated that “the magnitude of a veteran’s job responsibilities and the degree of accommodation necessary for successful, full-time work might be appropriate facts to consider in determining whether a veteran is employed in a protected environment,” but VA’s failure to define this phrase made it impossible for the Court “to meaningfully assess the propriety of the Board’s reliance on the factors it cited in this case.” However, the Court declined to define the phrase, stating that it is VA’s responsibility to define its own regulation, and remanded this case back to the Board to provide an adequate statement of reasons or bases for its decision.

The Court also determined that the Board provided an inadequate explanation for its rejection of the private vocational expert’s opinion. The Board’s assessment of this opinion focused on the vocational expert’s estimate of the amount of time the veteran spent in the restroom each day. The Board determined that the veteran’s reports to the vocational expert were “inconsistent with the rest of the record” because the veteran never stated that “he spends nearly half of his work shift in the restroom.” The Court found, however, that the record contains no other evidence regarding the amount of time spent in the restroom each day – and “thus no statements that may be inconsistent” with the vocational expert’s opinion. The Court concluded that “the Board failed to identify a proper foundation in the record for its adverse credibility determination.”

The Court further determined that the Board erred by denying referral for consideration of entitlement to TDIU on an extraschedular basis. The Court reiterate that the extraschedular referral determination requires the Board to “consider the collective impact of multiple service-connected disabilities whenever that issue is expressly raised by the claimant or reasonably raised by the record,” and determined that the issue was reasonably raised, citing evidence that Mr. Cantrell “could not stand or walk without difficulty as a result of multiple service-connected disabilities.” The Court added that “the Board’s approach in this case improperly focused on individual symptoms, rather than the collective impact of those symptoms on the veteran’s disability picture.” The Court thus rejected the Board’s determination that referral for extraschedular consideration was not warranted because “the Board considered only whether Mr. Cantrell had symptoms not listed in the respective evaluation criteria for each service-connected disability and not whether those disabilities collectively caused an exceptional disability picture not contemplated by the rating schedule.”

Judge Lance wrote a concurring opinion, stating his belief that “a claimant’s income – and, specifically, whether a claimant receives the same pay as similarly situated coworkers who are not disabled – is also a factor relevant to whether the claimant is employed in a protected environment.” Judge Lance noted that disability ratings are based on “the average impairments in earning capacity.” Therefore, “[i]f a claimant’s disabilities do not result in lost income, then there is no loss of earning capacity, and an award of TDIU would not be appropriate.” The concurrence also noted that the Americans with Disabilities Act requires employers to make reasonable accommodations for employees with disabilities – and that where such accommodations are made pursuant to the ADA, “a TDIU award would, in effect, constitute a second paycheck on the back of the taxpayer.”

While the language of this decision is quite useful for claimants who are employed “in a protected environment” and who are seeking entitlement to TDIU, the ultimate remedy in this case was simply a remand for the Board to provide an “adequate explanation” for its decision. I believe the facts of this case and the law should have been sufficient to warrant reversal.

FULL DECISION

Bankhead: RATING MENTAL HEALTH CONDITIONS, SUICIDAL IDEATION

Bankhead v. Shulkin, docket no. 15-2404 (Mar. 27, 2017)

HELD: Under 38 C.F.R. § 4.130, “the presence of suicidal ideation alone, that is, a veteran’s thoughts of his or her own death or thoughts of engaging in suicide-related behavior, may cause social and occupational impairment with deficiencies in most areas,” thus warranting a 70% disability rating – and does not require “evidence of more than thoughts,” inpatient treatment or hospitalizations, or total social and occupational impairment.

SUMMARY: Mr. Bankhead was service connected for PTSD, rated 50% disabling. His medical records were replete with evidence of suicidal ideation, but he also repeatedly denied having any plan or intent to harm himself. The Board determined that he was not entitled to a 70% rating because even though his medical records showed many of the symptoms associated with that higher rating, “those symptoms did not manifest with sufficient frequency and severity to meet the criteria for a higher evaluation.” The Board based this determination on its findings that he was at “low risk of self-harm,” was treated on an outpatient basis, was not hospitalized or subject to in-patient treatment, was credible in “his assurances that he would refrain from self-harm,” and that he “retained some social and occupational functioning.”

On appeal, the CAVC recognized that 38 C.F.R. § 4.130 “‘requires not only the presence of certain symptoms’ but also that those symptoms have caused the level of occupational and social impairment associated with a particular disability evaluation.” *8 (citing Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013)). The Court discussed the “longstanding public concern over the prevalence and risk of suicide among veterans” and looked to various sources to define “suicidal ideation.” *9-10. The Court found that “suicidal ideation does not require suicidal intent, a plan, or prepatory behavior” and that “both passive and active suicidal ideation are comprised of thoughts.” *10.

The Court noted that the criteria for a 70% disability rating includes “suicidal ideation” as a symptom that is representative of “social and occupational impairment with deficiencies in most areas” and that “the presence of suicidal ideation alone” may cause such impairment. *10-11. “Suicidal ideation” is only contained in the 70% rating criteria. The Court found that the Board first erred by appearing to require “more than thought or thoughts to establish the symptom of suicidal ideation,” particularly since risk of actual self-harm is “referenced in the criteria for a 100% evaluation.” *11. The Court held that the Board’s failure to differentiate between Mr. Bankhead’s suicidal ideation and his risk of self-harm “resulted in conflation of distinct concepts” and rendered its reasons or bases inadequate. *12.

The second error identified by the Court was the Board’s finding that Mr. Bankhead was not entitled to a 70% rating because he had not been hospitalized or required in-patient treatment. Id. This imposed “a higher standard than the criteria in the DC for mental disorders,” and the Court held that “VA is not at liberty to create evaluation criteria out of thin air in an individual case and then use the absence of those criteria in the veteran’s records to deny a particular mental disorder evaluation.” *12-14.

The third error found by the Court was the Board’s impermissible melding of the 70% and 100% criteria based on its determination that Mr. Bankhead “still retained some social and occupational functioning.” *14. The Court noted that while the 100% rating requires “total occupational and social impairment, a 70% evaluation requires only occupational and social impairment in most areas.” The Court summarized its holding by stating that

VA must engage in a holistic analysis in which it assesses the severity, frequency, and duration of the signs and symptoms of the veteran’s service-connected mental disorder; quantifies the level of occupational and social impairment caused by those signs and symptoms; and assigns an evaluation that most nearly approximates that level of occupational and social impairment. [Citation omitted.] Where, as here, the Board fails to adequately assess evidence of a sign or symptom experienced by the veteran, misrepresents the meaning of a symptom, or fails to consider the impact of the veteran’s symptoms as a whole, its reasons or bases for its denial of a higher evaluation are inadequate.

*14-15.

Unfortunately, despite the ample evidence of record of suicidal ideation to support the 70% disability rating, the Court determined that the appropriate remedy was remand and not reversal to enable the Board to address the evidence of suicidal ideation and consider the potential applicability of staged ratings. *16. 

FULL DECISION

Parrott: EAJA - LOCAL V. NATIONAL CPI

Parrott v. Shulkin, docket no. 2016-1450 (Fed. Cir. Mar. 13, 2017)

HELD: Where an attorney works in multiple locations, the correct method for calculating attorney fees is the local Consumer Price Index (CPI) approach, which is based on the cost of living where the legal services were actually performed, and the EAJA application should apportion the attorney’s “time to those locations and use[] the CPI for each locality.”

SUMMARY: The Equal Access to Justice Act (EAJA) provides for an hourly rate of $125 – and allows for an adjustment to this rate to reflect the increased cost of living. The increase is based on one of two calculations: the national Consumer Price Index (CPI) or the local CPI. The national approach focuses on the “national scope of the statutory cap and the ease of computation,” whereas the local approach focuses on where an attorney works and has an office.

In this case, Ms. Parrott’s attorney has his principal office in Dallas, Texas, with additional offices in San Francisco, California and Little Rock, Arkansas. The attorney worked on Ms. Parrott’s case at all three offices. In the EAJA application, he calculated the attorney fee using the CPI rate for Washington, DC. He asserted that this was consistent with the Court’s prior holding in Mannino v. West, 12 Vet.App. 242, 243 (1999), which applied “the local cost-of-living increase actually experienced … where work was performed nationally but always before the Court in Washington, DC.” The Secretary objected to the EAJA application, asserting that the appropriate rate was the CPI for Dallas, the location of the attorney’s principal office.

The CAVC disagreed with both parties, and determined that the fairer approach was to “use the local CPI to calculate the hourly rate for each of the three locations in which [the attorney] performed work and to then review [the attorney’s] itemized billing statement and apportion each billing entry to the firm office where the work resulting in the entry was performed.” Because this approach would require the Court “to seek additional information” from the appellant and her attorney and to “calculate four separate hourly rates,” the Court declined to take on this task and instead ruled that the attorney was entitled to the statutory $125 hourly rate.

On appeal to the Federal Circuit, the attorney argued that the “EAJA does not mandate a particular method for computing attorney fees,” and because statutory ambiguity should be construed in the veteran’s favor, he should be allowed to use the CPI approach that yields the highest fee. This “optimal yield” approach would allow the attorney to use the CPI for Washington, DC. The Secretary argued that the local CPI approach is more consistent with the language of the EAJA and produces fairer results. The Secretary resisted the “optimal yield” approach, noting that the EAJA is not a veterans benefits statute. He further argued that because the EAJA “represents a waiver of sovereign immunity … [it] should be strictly construed in the government’s favor.”

The Federal Circuit examined the language of the statute, discussed the relevant case law, and determined that “the local CPI approach, where a local CPI is available … is more consistent with EAJA than the national approach.” The Court held that the CAVC did not err in ruling that the local CPI approach was the correct calculation method, and that it correctly determined that the attorney’s EAJA application should have apportioned his time to the different locations of his offices and used the CPI’s for each locale.

The Federal Circuit disagreed with the proposed “optimal yield” approach, finding nothing in the statute that would permit a claim for “the highest fee.” The Court found that this approach “runs afoul of the statutory text and EAJA’s prohibition against windfalls.” The Court added that the doctrine of resolving interpretive doubt in the veteran’s favor does not apply to EAJA because EAJA is not a veterans benefits statute.

Finally, the attorney argued that the decision to award the statutory rate of $125 per hour was an abuse of discretion because the CAVC did not permit him to resubmit a corrected EAJA application. The Federal Circuit determined that it lacked jurisdiction “to review all discretionary actions” of the CAVC, and stated that its “jurisdiction attaches when the Veterans Court commits an abuse of discretion rising to the level of legal error.” The Court found that the CAVC “did not interpret any law or regulation in declining to permit [the attorney] to resubmit a corrected EAJA application.” Rather, the CAVC simply determined that the requested fee was not reasonable and “used its broad discretion” to calculate what it deemed an appropriate fee. The Court found no legal error in the CAVC’s ruling.

FULL DECISION

Miller: RATING WHOLLY SENSORY CONDITIONS

Miller v. Shulkin, docket no. 15-2904 (Mar. 6, 2017)

HELD: The regulation for rating peripheral neuropathy provides for “a maximum disability rating for wholly sensory manifestations of incomplete paralysis of a peripheral nerve” and does not cover non-sensory manifestations. Nevertheless, a claimant who has sensory and non-sensory manifestations is not automatically entitled to a higher rating.

SUMMARY: Veteran Earl Miller appealed the Board’s denial of a disability rating higher than 10% for his service-connected peripheral neuropathy of the left foot. The symptoms he described in written submissions and in hearing testimony include the inability to walk more than 4-5 blocks, to stand for more than 15-20 minutes, to run, or to climb a flight of stairs. He also reported frequent stumbling and falling. A VA examiner stated that he had a noticeable limp, walked with a cane, and had difficulty standing because of the peripheral neuropathy. The examiner stated that he did not feel that Mr. Miller was employable because of his peripheral neuropathy.

At a Board hearing, he described his symptoms and stated that he used a cane regularly. His wife testified that he fell at least three times a day and that she had stopped working to take care of him. The Board denied a disability rating higher than 10%.

Peripheral neuropathy is rated under 38 C.F.R. § 4.124a, Diagnostic Code 8620. For all peripheral nerve conditions, the regulation states: “When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree.” 38 C.F.R. § 4.124a. This issue in this case is whether peripheral nerve conditions that are more than “wholly sensory” must be automatically rated, at a minimum, as “moderately severe.” Mr. Miller argued that because the regulation applies to peripheral nerve disorders that are “wholly sensory,” conditions that are more than wholly sensory must be rated at least “moderately severe,” which warrants a 40% disability rating under VA’s rating schedule. The Secretary argued that the language in the regulation created a maximum disability rating for wholly sensory conditions – not a minimum for conditions that are more than sensory.

The Court first acknowledged that Mr. Miller’s condition is more than “wholly sensory.” The Court examined the language of the regulation and determined that it “provides only a maximum disability rating for wholly sensory manifestations” and “contains no mention of non-sensory manifestations.” The Court found that the provision of a maximum 20% disability rating for wholly sensory manifestations did not entitle a claimant with more than sensory manifestations to a higher rating.

Mr. Miller had also argued that VA’s Adjudication Procedures Manual (M21-1) support his position because it defined both mild and moderate symptoms in “wholly sensory” terms, but it defined “severe” symptoms as involving “more than sensory findings . . . such as atrophy, weakness, and diminished reflexes.” The Court determined that it did not have to consider the M21-1 provision, since it already concluded that the language of the regulation was clear. The Court further noted that the Secretary changed the language in the M21-1 after the parties filed their briefs in this case – and that the new portion now states that the regulation does not mean that any non-sensory impairment “must be evaluated as greater than moderate.”

The Court discussed the Board’s rationale for its determination that Mr. Miller was not entitled to a higher rating, and found that the Board had considered the objective and subjective evidence of record and adequately explained its decision.

FULL DECISION

Doucette: RATING HEARING LOSS

Doucette v. Shulkin, docket no. 15-2818 (Mar. 6, 2017)

HELD: “[T]he rating criteria for hearing loss contemplate the functional effects of decreased hearing and difficulty understanding speech in an everyday work environment,” but do not explicitly contemplate “other functional effects, such as dizziness, vertigo, ear pain, etc.” – and the Board does not have to assess whether referral for extraschedular consideration is warranted unless this is raised by the claimant or the evidence of record.  

SUMMARY: Veteran Richard Doucette appealed the Board’s denial of a compensable disability rating for his hearing loss, arguing that the Board misapplied 38 C.F.R. § 3.321(b)(1) and failed to adequately explain its determination that referral for extraschedular consideration was not warranted.

The Court first noted that VA’s “rating criteria for hearing loss, unlike a majority of the conditions in VA’s rating schedule, do not list any specific symptoms or functional effects.” *3 (citing 38 C.F.R. §§ 4.85, 4.86). Instead, VA rates this condition based on a “mechanical application of a veteran’s audiometric testing results to a rating table.” The testing includes puretone audiometry and speech discrimination that “measure a veteran’s ability to hear certain frequencies at specific volumes and to understand speech.” *4. VA’s rating tables “correlate the results of audiometric testing with varying degrees of disability.” The Court thus held that VA’s “rating criteria for hearing loss contemplate the functional effects of decreased hearing and difficulty understanding speech in an everyday work environment, as these are precisely the effects that VA’s audiometric tests are designed to measure.” *4-5.

The Court determined, however, that the rating criteria do not account for other functional effects, “such as dizziness, vertigo, ear pain, etc.” – and further held that the rating schedule did not explicitly contemplate “effects other than difficulty hearing or understanding speech.” *5. Nevertheless, the Court found that referral for extraschedular consideration was not warranted in all hearing loss cases, and that the “Board is only obligated to discuss extraschedular referral for hearing loss when there is evidence in the record which reveals that the appellant’s hearing loss presents exceptional or unusual circumstances or where the appellant has asserted that a schedular rating is inadequate.” *6-7.

The Court reiterated that it was not suggesting “that the rating criteria contemplate all functional impairment due to a claimant’s hearing loss.” The Court pointed out that “a hearing loss claimant could provide evidence of numerous symptoms,” such as “ear pain, dizziness, recurrent loss of balance, or social isolation due to difficulties communicating, and the Board would be required to explain whether the rating criteria contemplate those functional effects.” *8.

The Court found that Mr. Doucette’s hearing difficulties were “contemplated by the schedular rating criteria for hearing loss” and that he had not asserted that his schedular rating was inadequate. The Court thus affirmed the Board’s determination that referral for extraschedular consideration was not warranted. *9.

In dicta, the Court commented that the rating criteria for hearing loss “has led to confusion and inconsistent results for both veterans suffering from hearing loss and adjudicators evaluating their claims,” and questioned “whether it is time for VA to revisit this portion of the rating schedule.” *11.

Judge Schoelen dissented. Although she agreed with the majority that referral for extraschedular consideration was not warranted unless it was raised by the claimant or the record, she believes that the rating criteria for hearing loss “are inadequate to contemplate a veteran’s functional effects and entire disability picture.” She stated that “[b]ecause no symptoms are listed in the rating schedule for hearing loss, there is no way to adequately compare the ‘level of severity and symptomatology’ to the rating criteria,” which is required in determining whether referral for extraschedular consideration is warranted. She pointed out the Court’s prior holding that stated “[u]nlike the rating schedule for hearing loss, § 3.321(b) does not rely exclusively on objective test results to determine whether a referral for an extraschedular rating is warranted.” * 13 (quoting Martinak v. Nicholson, 21 Vet.App. 447, 455 (2007).  

Advocacy note: Even though VA is required by law to construe a claimant’s submissions liberally and assist in developing a claim – and even though VA adjudicators are required to understand the intricacies of VA law and its rating schedule – this decision emphasizes (or maybe even adds to?) the claimant’s burden in establishing entitlement to an appropriate disability rating. One significant flaw in this decision is that it presumes that claimants understand the meaning of “referral for extraschedular consideration” and how to request it, which is a pretty big presumption to impose on claimants seeking benefits in an allegedly claimant-friendly system. In light of this decision, claimants should clearly identify all symptoms related to hearing loss – and, if the rating schedule is not adequately reflecting the level of disability, explain why and request referral for extraschedular consideration.

FULL DECISION

Cook: ADDITIONAL BOARD HEARING FOLLOWING COURT REMAND

Cook v. Snyder, docket no. 15-0873 (Jan. 31, 2017)

HELD: Under 38 U.S.C. § 7107(b), “a claimant who received a personal hearing before the Board at an earlier stage of appellate proceedings in entitled to receive, upon request, a Board hearing following this Court’s remand of the same claim.”

SUMMARY: Mr. Cook was denied service connection for a back condition in 2000. He did not appeal that decision and it became final. In 2006, he filed a request to reopen his claim. The Regional Office (RO) denied the request, determining that he had not submitted new and material evidence that would warrant reopening. He appealed to the Board and testified at a hearing in 2012. The Board determined that new and material had been submitted to reopen the claim, and remanded the issue back to the RO, along with the issue of entitlement to a total disability rating based on individual unemployability (TDIU). The RO continued to deny the claim, and Mr. Cook requested a Board hearing so that he could submit additional evidence. In 2014, the Board acknowledged Mr. Cook’s request for a hearing, but denied the request because he had already been afforded one.

Mr. Cook appealed to the CAVC and the parties entered into a joint motion for remand (JMR) based on the Board’s failure to address favorable a private medical opinion. In November 2014, Mr. Cook again requested a Board hearing so that he could submit additional evidence. In February 2015, the Board denied service connection and TDIU. The Board again acknowledged his hearing request, but stated that the pertinent regulation provides for “a” hearing on appeal, and he already was afforded a hearing.

On appeal to the CAVC, Mr. Cook argued that because he had a protected property interest in obtaining VA benefits, the Board’s denial of a hearing following a remand violated his constitutional due process right to be heard. The Court ordered the parties to submit supplemental memoranda of law regarding any regulatory or non-constitutional authority that addressed a claimant’s right to more than one hearing. Mr. Cook argued that VA’s regulations do not expressly limit a veteran’s right to multiple hearings, specifically asserting that the “indefinite article ‘a’ in [38 C.F.R.] § 20.700(a) does not limit a claimant to one hearing.”

The Secretary argued that neither the statute (38 U.S.C. § 7107) nor the regulation provides for a Board hearing in this situation, asserting that “the indefinite article ‘a’ usually connotes the singular.” He noted that other regulations provide for new hearings “only in certain circumstances not implicated here.” He asserted that even if the statutory and regulatory language were ambiguous, the Court should defer to his interpretation, adding that there are currently thousands of pending Board hearings and allowing for multiple hearings in situations like these “would intolerably burden the system and violate the general rule that agencies are entitled to discretion in implementing their own procedures.” 

The Court first discussed the history of 38 U.S.C. § 7107 and explained the importance of hearings in the VA adjudication process. The Court next considered the statutory language (“The Board shall decide any appeal only after affording the appellant an opportunity for a hearing”) and found that it was ambiguous because it did not “specify that a claimant is limited to one Board hearing irrespective of the number or remands he or she is granted nor does it unambiguously specify that a claimant is entitled to a Board hearing upon request each time a remand is granted.”

The Court did not defer to the Secretary’s interpretation because it found that no VA regulation “resolves the ambiguity in the statute” and because VA’s regulation, 38 C.F.R. § 20.700(a), was promulgated before the statute was enacted. The Court noted that “the statute was enacted to codify the regulatory hearing rights before the Board.” (Emphasis in original.) Therefore, this regulation “cannot possibly have been promulgated to interpret it.” The Court concluded that the Secretary’s interpretation was not persuasive and held that “a VA claimant who has had a Board hearing during one stage in the appellate proceedings is not barred from receiving a Board hearing when the claim is at a different stage in the proceedings, namely, following a remand from this Court.”

The Court further analyzed the statutory language under a less deferential standard, focusing on “its context and with a view to its place in the statutory scheme.” The Court noted that “the VA adjudicatory process ‘is designed to function throughout with a high degree of informality and solicitude for the claimant’” and found that “[r]eading section 7107(b) as barring a claimant who has previously testified at a Board hearing from receiving a Board hearing during a subsequent stage of appellate proceedings – particularly following a remand from this Court – would be neither solicitous of a claimant nor productive of informed Board decisionmaking.”

The Court pointed out that the appellate issue(s) “may change or evolve as a claim wends its way through the VA claims and appeals process” – which is precisely what happened in Mr. Cook’s case. The issue on appeal at the time of his Board hearing was whether new and material evidence had been submitted to reopen his claim. By the time he requested the additional hearing in 2014, the issue had changed to whether the new and material evidence was sufficient to establish entitlement to service connection for a back condition. The Court reiterated its holding as properly interpreting section 7107(b) to allow “a VA claimant the right to request and receive a Board hearing for the purpose of submitting additional evidence after a remand from the Court, even if he or she previously received a hearing before the Board at another stage of appellate proceedings.”

The Court added that “this case implicates the presumption announced in Brown v. Gardner, 513 U.S. 115, 118 (1994), that any doubt in the interpretation of a VA statute must be resolved in favor of a veteran,” and noted that “even where the Secretary’s asserted interpretation is ‘plausible,’ adopting an interpretation that is less favorable to the veteran would be appropriate ‘only if the statutory language unambiguously’ required that less favorable interpretation.” The Court found that the Secretary’s interpretation was not required by the statutory language and was less favorable to the veteran.

Finally, the Court addressed the Secretary’s concerns regarding the burden these additional hearings would impose on VA. The Court stated that it “is not adopting the veteran’s reading of the statute, that he is entitled to a Board hearing at any time on any issue for any reason.” Rather, the Court again reiterated its holding that “a claimant who received a personal hearing at one stage of appellate proceedings before the Board is not barred from requesting and receiving a Board hearing during a separate stage of appellate proceedings before the Board, namely, following a remand from this Court.” The Court added that it “is not convinced that its holding will lead to a wave of requests for additional Board hearings,” noting that a claimant will weigh the right to request an additional Board hearing against the inherent delay in issuing a decision that will be caused by the request.

The Court added that if the Secretary disagrees with the Court, he is free to promulgate a new regulation that resolves the statutory ambiguity. The Court restated its holding again, “under section 7107(b), a claimant who received a personal hearing before the Board at an earlier stage of appellate proceedings is entitled to receive, upon request, a Board hearing following this Court’s remand of the same claim."

Advocacy note: The Court restated the holding of this case at least four times. Read together, the criteria for obtaining an additional Board hearing require that the claimant must (1) request the hearing in writing (2) at a subsequent stage of proceedings (3) following a Court remand of the same claim (4) for the purpose of submitting additional evidence.

FULL DECISION

Kays: CREDIBLE SUPPORTING EVIDENCE, 38 C.F.R. § 3.304(f)

Kays v. Snyder, docket no. 2016-1314 (Fed. Cir. Jan. 25, 2017)

HELD: The Court reviews the question of whether a veteran has submitted “credible supporting evidence” to support the occurrence of a claimed PTSD stressor event under the “clearly erroneous” standard of review.

SUMMARY: Charles Kays sought service connection for PTSD based on two non-combat stressor events. In one event, he claimed he was stabbed during a fight. In another, he claimed that while he was taking diving lessons off duty, he assisted in recovery efforts after a helicopter crash. To establish the occurrence of these events, he submitted lay statements, testimony, and a newspaper article regarding the helicopter crash. The article said nothing about recovery assistance provided by diving students. 

The Board denied his claim because he did not present evidence to support the occurrence of these stressor events. The Board rejected the lay statements because they were unsupported and contradicted by other evidence of record. The Board rejected the credibility of his testimony regarding the helicopter crash recovery because of the “lack of supporting detail in the article, his delay in reporting the event, and his changing and inconsistent story.”

On appeal to the CAVC, Mr. Kays argued that the Court “should review de novo the Board’s decision on whether a veteran has submitted credible supporting evidence that a claimed in-service stressor occurred.” The CAVC rejected this argument, finding that question to be a factual one that is reviewed under the “clearly erroneous” standard of review. Mr. Kays appealed to the Federal Circuit, and the Federal Circuit agreed with the CAVC.

The regulation in question, 38 C.F.R. § 3.304(f) requires that a non-combat veteran seeking service connection for PTSD provide “credible supporting evidence that the claimed in-service stressor occurred.” Mr. Kays argued that this requirement is an evidentiary burden that the Court should review de novo. The Federal Circuit found that while this requirement does impose an evidentiary burden on the claimant, this is “a quintessential factual inquiry” and “precisely the type of factual determination that the Board is tasked with making” and that “the Veterans Court reviews for clear error.”

The Court further noted that de novo review is reserved for situations where the Board “has explicitly interpreted a statute or regulation ‘concerning the correct standard for service connection’” or is “establishing a legal rule to be applied to similar fact situations in future cases.” The Court found that the Board “made quintessential factual determinations regarding Mr. Kays’s evidence, statements, and credibility, and found that he was not entitled to service connection.” The Court thus held that the CAVC “appropriately reviewed these factual determinations under the clearly erroneous standard.”

At oral argument, the veteran asserted that the regulation “requires only evidence that the ‘stressor occurred,’ not that it occurred to the veteran.” (emphasis in original). The Court rejected this argument, stating that the regulation requires “credible supporting evidence that the claimed in-service stressor occurred.” Mr. Kays’s claimed in-service stressor involved his participation in the recovery efforts following a helicopter crash. The regulation thus required him “to submit credible evidence that he was involved in search and rescue activities and not simply that a civilian helicopter crash occurred.”

The Court also rejected Mr. Kays’s argument that his current PTSD diagnosis “assures that the in-service stressor occurred to the veteran,” finding that “a physician’s diagnosis of PTSD does not necessarily identify what stressor caused it.” The Court stated that “the regulation requires the veteran to separately submit credible supporting evidence that the claimed in-service stressor occurred.” The Federal Circuit thus held that the CAVC “applied the proper standard of review” and affirmed its decision “because § 3.304(f) requires credible supporting evidence that the claimed in-service stressor occurred as claimed by the veteran.”

Advocacy note: The focus of this case is on the CAVC’s standard of review of the Board’s factual determination as to whether a veteran has submitted “credible supporting evidence that the claimed in-service stressor occurred.” The CAVC has previously held that the requirement of corroborating evidence under 38 C.F.R. § 3.304(f) does not require “corroboration of every detail including the appellant’s personal participation in the [event].” Suozzi v. Brown, 10 Vet.App. 307, 311 (1997); see also Pentecost v. Principi, 16 Vet.App. 124, 129 (2002) (holding that § 3.304(f) “only requires, as to stressor corroboration, ‘credible supporting evidence’ that the claimed in-service stressor occurred”).

In both Suozzi and Pentecost, the Court held that where there was corroborating evidence of the occurrence of a stressor event, the veteran’s personal involvement could, in certain circumstances, be inferred from the evidence. In Suozzi, the corroborating evidence showed that the veteran’s unit in Vietnam experienced casualties from an attack – and the Court could infer from this evidence that even a “company clerk [the claimant] would assist in the casualty identification.” Suozzi, 10 Vet.App. at 310-11. In Pentecost, the corroborating evidence showed that the veteran was stationed with a unit in Vietnam that experienced rocket attacks – and the Court found that this evidence “strongly suggest[s] that he was, in fact, exposed to the attacks.” Pentecost, 16 Vet.App. at 128.

Although the Federal Circuit in Kays did not mention Suozzi or Pentecost, its decision appears to undermine the holdings of those two cases. One distinguishing factor is that the stressor events in Kays occurred while the veteran was off duty, and, therefore, there were no service records to corroborate these events – whereas the events in Suozzi and Pentecost were corroborated by service records showing that the claimed events actually happened to the claimants’ units, and the Court could thus infer the claimants’ participation in those events.

As a practical matter, advocates should explain the credible, corroborating facts of their cases at the agency level – and, if denied, should argue at the Court that the Board’s rejection of that credible, corroborating evidence was clearly erroneous.

FULL DECISION

Vilfranc: RATING TMJ

Vilfranc v. McDonald, docket no. 15-0904 (Jan. 5, 2017)

 

HELD: The diagnostic code for temporomandibular joint dysfunction (TMJ), 38 C.F.R § 4.150, Diagnostic Code (DC) 9905, allows for “only a single disability rating for limitation of inter-incisal motion.” 

SUMMARY: Veteran Mary Vilfranc appealed a Board decision that denied entitlement to a disability rating in excess of 10% for TMJ, arguing that she was entitled to separate disability ratings for each joint.

The Secretary argued that Ms. Vilfranc was not entitled to an additional rating because she had not shown that she has more than one distinct disability. The Secretary also argued that DC 9905 supports the assignment of a single rating because the temporomandibular joints operate as a single unit.

In her reply brief, Ms. Vilfranc argued that 38 C.F.R. § 4.59 supported the assignment of separate compensable ratings because she experienced pain in each joint.

The Court first discussed the “location and function of the temporomandibular joints,” explaining that the temporomandibular is the combination of three facial bones – the mandible and two temporal bones – that are connected and act in concert, aided by the temporomandibular joint on each side. The Court rejected Ms. Vilfranc’s argument under 38 C.F.R. § 4.59, stating that this regulation provides for a minimum compensable rating for a joint that is actually painful even when evaluating a condition that is not predicated on range of motion – and that she is already in receipt of the minimum compensable rating (10%) for actual limitation of motion. The Court reiterated, “§ 4.59 is meant to compensate a claimant whose pain does not cause enough limitation of motion in a joint to reach a compensable level; it is not for application where, as here the claimant already has a compensable level of limitation of motion.”

The Court then addressed whether the Secretary’s interpretation of DC 9905 – as limiting a claimant to a single disability rating for TMJ – was reasonable and thus entitled to deference. Relying, on the Federal Circuit’s opinion in Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006), which dealt with a similar argument regarding the assignment of a single disability rating for tinnitus even when the condition is experienced in both ears, the Court determined that the regulation in question was ambiguous, but that the Secretary’s interpretation was reasonable, even though it was offered for the first time in a brief. The Court concluded that “a claimant is entitled to only a single disability rating for limitation of inter-incisal motion under 38 C.F.R. § 4.150, Diagnostic Code 9905.”

FULL DECISION

2016 VETERANS LAW HOLDINGS

Download pdf of 2016 Veterans Law Holdings

Southall-Norman: RATING MUSCULOSKELETAL DISABILITIES; 38 C.F.R. § 4.59

Southall-Norman v. McDonald, docket no. 15-1357 (Dec. 15, 2016)

HELD: VA regulations require the award of a minimum compensable disability rating where there is “evidence of an actually painful, unstable, or malaligned joint or periarticular region and the presence of a compensable evaluation in the applicable DC [Diagnostic Code],” regardless of whether that DC is “predicated on range of motion measurements.” 

SUMMARY: Veteran Crystal D. Southall-Norman was granted service connection for bilateral hallux valgus and hemorrhoids, rated 0% for both conditions. She appealed for compensable ratings, and the Board granted 10% for the hemorrhoid condition and remanded the bilateral foot issue for another examination. She appealed the issue of the 10% hemorrhoid rating to the Court, and the parties entered into a Joint Motion for Remand stipulating that the Board failed to consider whether she was entitled to a separate compensable rating based on loss of sphincter control. The JMR directed the Board to address Ms. Southall-Norman’s reports of fecal leakage and consider the credibility and probative value of those reports in light of the fact that the relevant Diagnostic Code (38 C.F.R. § 4.114, DC 7332) does not require that such leakage “be confirmed by objective findings.”

Meanwhile, Ms. Southall-Norman was afforded another C&P examination for her feet. The examiner diagnosed bilateral pes planus and opined that this condition was related to her service-connected bilateral hallux valgus. The RO granted service connection for bilateral pes planus, rated 50% disabling under 38 C.F.R. § 4.71a, DC 5276 (flatfoot, acquired), effective June 2, 2014, the date of the C&P examination.

The appeal returned to the Board, which denied a compensable rating for her foot condition prior to the date of the C&P examination, under either DC 5276 (flatfoot) or 5280 (hallux valgus), because her symptoms were only mild or moderate symptoms during that time. The Board did not mention 38 C.F.R. § 4.59 (“painful motion”) in evaluating her foot condition. The Board also determined that she was not entitled to a separate rating for sphincter impairment because her reports of fecal leakage were “inconsistent” and “contradicted by the medical evidence of record.” The Board found that she “did not always differentiate between fecal leakage and other types of leakage,” and determined that her reports of fecal leakage “were insufficient to demonstrate constant slight or occasional moderate fecal leakage required for a compensable evaluation under DC 7332.”

In this present decision, the Court first addressed the foot condition and the appellant’s argument that the Board failed to discuss 38 C.F.R. § 4.59. The Secretary argued that the Board was not required to discuss § 4.59 because this regulation only applies when evaluating a joint disability under a DC based on range of motion. Because the relevant DCs in this case - DCs 5276 and 5280 - do not mention range of motion, the Secretary asserted that the Board need not discuss § 4.59. In her reply brief, Ms. Southall-Norman argued that the Secretary’s interpretation was inconsistent with the plain language of the regulation, which did not expressly limit itself to conditions based on range of motion. Alternatively, she argued that the Court should not defer to the Secretary’s interpretation because the Secretary had taken contrary positions in other cases.

The Court examined the language of the regulation and held that the “plain language of § 4.59 indicates that the regulation is not limited to the evaluation of musculoskeletal disabilities under DCs predicated on range of motion measurements.” The Court added:

§ 4.59 does not, as the Secretary contends, condition the award of a minimum compensable evaluation for a musculoskeletal disability on the presence of range of motion measurements in that DC; rather, it conditions that award on evidence of an actually painful, unstable, or malaligned joint or periarticular region and the presence of a compensable evaluation in the applicable DC.

The Court further determined that even if § 4.59 was ambiguous, the Court would not defer to the Secretary’s interpretation “because it does not reflect the agency’s considered view on the matter, as he has not consistently adhered to that interpretation.” To support this conclusion, the Court pointed to the Secretary's contrary position taken during oral argument on another case, as well as a number of single judge (i.e., nonprecendential) decisions.

Advocacy Note: The Court’s Rules allow for citation to nonprecedential authority “for the persuasive value of their logic and reasoning” and only if “no clear precedent exists on point and the party includes a discussion of the reasoning as applied to the instant case.” U.S.C.A.V.C. Rule 30(a).

With respect to a separate compensable rating for sphincter control, the Court determined that the Board did not adequately explain its rejection of Ms. Southall-Norman’s lay statements. More specifically, the Court rejected the Board’s credibility determination. The Court identified one of the “putative inconsistencies” noted by the Board and determined that it was consistent with her prior statement. The Court also found that the Board improperly questioned the credibility of Ms. Southall-Norman’s lay statements as inconsistent with a C&P examiner’s finding because the Board failed to acknowledge other evidence that was consistent with her statement. The Court held that “[a]lthough the Board is allowed to find a veteran not credible based on inconsistencies between medical evidence and lay evidence, . .. it must account for the potentially favorable material evidence of record when doing so.” The Court remanded both issues to the Board.

Advocacy Note: Although the primary holding of this case is that § 4.59 must be considered in evaluating all musculoskeletal disabilities – not just those predicated on range of motion – I found the Court’s review of the Board’s credibility determination to be refreshing. Instead of simply deferring to the Board’s “fact finding,” the Court carefully examined the evidence and rejected the Board’s determination that it was inconsistent with the appellant’s statements. The Court's language regarding the Board's duty to "account for potentially favorable material evidence of record" in making a credibility determination will be useful to advocates in cases where the Board appears to cherry-pick and/or mischaracterize the evidence of record.

FULL DECISION

McCarroll: DISABILITY RATING, HYPERTENSION

McCarroll v. McDonald, docket no. 14-2345 (en banc) (Nov. 7, 2016)

HELD: Because the diagnostic code for hypertension (38 C.F.R. § 4.104, DC 7101) specifically discusses the effects of medication, the Board was not required to consider whether a compensable rating would be warranted if the veteran was not medicated.

SUMMARY: Veteran Billy D. McCarroll appealed the Board’s denial of a compensable disability rating for his service-connected hypertension, arguing that the Board “failed to discount the ameliorative effects of his blood pressure medication.” Without his medication, he argued, his blood pressure would be at compensable levels. For support, Mr. McCarroll cited Jones v. Shinseki, 26 Vet.App. 56, 63 (2012), which held that the Board cannot deny a higher disability rating based on symptoms that are relieved by medication when the diagnostic code does not contemplate the effects of medication on the condition.

The Court held that Jones did not apply in this case because the diagnostic code for hypertension, DC 7101, expressly considers the effects of medication. DC 7101 provides for a 10% disability rating if (1) diastolic pressure is predominantly 100 or more OR (2) systolic pressure is predominantly 160 or more OR (3) “for an individual with a history of diastolic pressure predominantly 100 or more who requires continuous medication for control.” Although Mr. McCarroll did require medication for his hypertension, his medical records did not show a history of diastolic pressure at 100 or more or systolic pressure at 160 or more. Because of this, the Court further held that the Board did not err when it determined that Mr. McCarroll’s symptoms did not more nearly approximate the criteria for a 10% disability rating. The Court also rejected his argument that he was entitled to referral for extraschedular consideration because he did not raise that issue at the Board or the RO.

In a concurring opinion, two judges argued that Jones should be overturned as it is “predicated on a misunderstanding of the rating schedule.” These judges note that “although some diagnostic codes mention the fact of medication usage as a rating criterion, none require the Board to make any affirmative use of information about the ‘ameliorative effects’ of the medication.” They also note that the Jones holding “invites medical speculation in trying to guess what a veteran’s symptoms might be without the medication, or medical malpractice in the cessation of medication so that the veteran’s symptoms without medication might be recorded.”

In a dissenting opinion, two other judges found that DC 7101 provided three alternative paths to a 10% disability rating – and only one of those “contemplates the ameliorative effects of medication.” The dissenting judges would have held that Jones applies to this case and that the Board erred when it failed to consider the ameliorative effects of medication under the first two paths to a 10% rating under DC 7101.

FULL DECISION

Cox: AFGHANISTAN VETERANS NOT ENTITLED TO PERSIAN GULF PRESUMPTIONS

Cox v. McDonald, docket no. 14-2779 (Nov. 7, 2016)

HELD: Veterans with Afghanistan service are not entitled to the presumption of service connection for certain conditions, including chronic undiagnosed illnesses, provided in 38 U.S.C. § 1117 and 38 C.F.R. § 3.117. VA’s exclusion of Afghanistan from its definition of the geographic area comprising the “Southwest Asia theater of operations” is “reasonable” in light of the legislative history of 38 U.S.C. § 1117, and VA’s Training Letter that indicated that VA was going to amend its regulation to include Afghanistan was not a substantive rule that required a “notice-and-comment” period in order to be rescinded.

SUMMARY: Veteran Clifford Cox appealed the Board’s denial of service connection for back and knee disabilities, arguing to the Court that the Board failed to apply the “Gulf War provisions” of 38 U.S.C. § 1117. This statute and its implementing regulation, 38 C.F.R. § 3.117(b), provide for presumptive service connection for veterans with “qualifying chronic disabilities,” including diagnosed and undiagnosed illnesses, who served in the “Southwest Asia theater of operations.”

Mr. Cox served in Afghanistan in 2009, and began experiencing back and knee problems during that deployment. His current x-rays and examinations were negative for any abnormalities. However, he argued that the statute and case law (specifically, Joyner v. McDonald, 766 F.3d 1393, 1395 (Fed. Cir. 2014)) state that pain alone “may establish an undiagnosed illness that causes a qualifying chronic disability.” Because the record contained medical and lay evidence of back and knee pain that the Board found credible, he argued that the Board erred by failing to apply the presumptions of 38 U.S.C. § 1117.

He also pointed out that in February 2010, VA issued a Training Letter indicating that it was going to amend its regulation to include Afghanistan in the definition of “Southwest Asia theater of operations.” In October 2010, VA issued a revised version of that Training Letter that deleted the language concerning veterans with Afghanistan service. Mr. Cox argued that the February 2010 Training Letter created a “substantive rule” that VA could not withdraw or change without complying with the “notice-and-comment” requirements of the Administrative Procedure Act.

The Court disagreed with Mr. Cox’s interpretation of the statute and with his characterization of the Training Letter as a substantive rule.

The Court first noted that Congress did not define the geographic area comprising the “Southwest Asia theater of operations” in 38 U.S.C. § 1117 – but instead delegated the authority to VA to issue regulations that defined the area. The Court found that the plain language and the legislative history of the statute did not support Mr. Cox’s position – particularly since Afghanistan was not part of the “Southwest Asia theater of operations” when the statute was first enacted in 1994. After 9/11, when Afghanistan was added by Executive Order as a combat area, Congress amended the statute in December 2001 to expand the definition of included illnesses – but still did not include a definition of “Southwest Asia theater of operations.”

In 2010, VA proposed to amend its regulation to include Afghanistan, but that never made it into the final rule. Based on the plain language of the statute – and the legislative history showing that Congress could have, but did not amend the statue to define the geographic area to include Afghanistan – the Court found VA’s interpretation of the statute as including only the original Desert Storm theater of operations to be permissible.  

With respect to the Training Letter, the Court found that it did not create any substantive “rights” that a claimant could rely on – but that it instead only provided “guidance” to VA personnel regarding potential future changes to the regulations.

The Court acknowledged that VA has publicly recognized that Afghanistan veterans face the same types of exposures to environmental hazards as Iraq veterans – and “encouraged” VA to “review the appropriateness of an overall change to the definition of ‘Southwest Asia theater of operations’ to explicitly include Afghanistan.” Unfortunately, the Court made these statements in footnotes, which do not alter the holding of this case.

FULL DECISION

Green: REMOTE VBMS ACCESS

Green v. McDonald, docket no. 16-0740 (per curiam order) (Oct. 24, 2016)

HELD: There is no regulatory right to remote access to the Veterans Benefits Management System (VBMS) for attorneys practicing before the Veterans Court who are not accredited to practice before VA.

SUMMARY: Mr. Green appealed an adverse Board decision to the Court of Appeals for Veterans Claims (CAVC). Pursuant to the Court’s rules, the Secretary provided Mr. Green’s attorney with a copy of the Record Before the Agency (RBA), and the attorney had 14 days to dispute the contents and/or preparation of the RBA.

Recognizing a potential discrepancy in the RBA, the attorney requested “read-only” remote access to Mr. Green’s electronic file contained in VA’s Veterans Benefits Management System (VBMS). The Secretary denied remote access, but would allow the attorney to review the file at any VA office. The attorney filed a motion with the Court asking the Court to compel the Secretary to allow remote read-only access to his client’s VBMS file. In the motion, he argued that VA’s own regulations allow attorney access to “VBA automated claims records from a location other than a VA [regional office]” – and that the Secretary cannot require attorneys to be accredited by VA in order to gain such access for Court proceedings.

The Secretary argued that he had offered the attorney the same opportunity to review the veteran’s file as any non-accredited attorney representing a veteran at the Court prior to VA’s adoption of an electronic records management system. The Secretary asserted that VA accreditation is required for remote read-only access so as to protect VA’s “internal system which contains highly sensitive records.” The Secretary stated that the regulations “do not confer an enforceable right” to remote VBMS access – and that the regulations cited by Mr. Green’s attorney are inapplicable to VBMS.

The Court agreed with the Secretary. The Court examined the regulations cited by the attorney, 38 C.F.R. §§ 1.600-.603, and determined that while there is no requirement that an attorney be accredited by VA to remotely access “VBA automated claims records,” this category of records does not include VBMS files. The Court based this determination on the plain language of 38 C.F.R. § 1.600(c)(1), which expressly limits access to certain categories of data. The Court noted, in a footnote, that it was “unsettling that the Secretary has not amended his regulations to reflect his current telecommunications systems and the data that is available via remote access.” Nevertheless, the Court declined to redefine “automated claims records” in the regulations to include VBMS.

The Court further determined that VA’s policy of requiring attorneys in Court proceedings to travel to a VA office to review a veteran’s electronic claims file was reasonable in light of VA’s “longstanding” policy “rooted in safeguarding individual privacy from the misuse of information.” The Court noted that VA did not deny access to Mr. Green’s VBMS file – but only denied remote access to a non-accredited attorney. The Court thus held that the Secretary’s policies and procedures regarding access to original materials in the RBA – “whether that material is stored in paper or electronic format” – are reasonable and in compliance with the Court’s own rules.

Even though the Court agreed with the Secretary in the holding of this case, the Court stated that it was “compelled to comment on the Secretary’s current stance” requiring VA accreditation as the only way for VA to protect the privacy of records – as the Secretary did not explain how accreditation “by VA serves any security purpose.” The Court noted the length of time it takes to become accredited by VA, which is longer than the amount of time an attorney would have to dispute the RBA in a court proceeding, and referred to the Secretary’s “endeavor to make remote read-only access available” via VA accreditation as “an empty gesture,” particularly for attorneys who only represent veterans at the Court. 

In a concurring opinion, Judge Lance noted that some attorneys – particularly in rural areas – might be hundreds of miles from a VA office where they would be able to review an appellant’s original or VBMS file. (The attorney in this case worked less than a mile from a VA regional office.) Judge Lance stated if an attorney had to travel a significant distance to review the original file, he was “not certain” that VA’s current procedures would be considered “reasonable.

FULL DECISION