VA Secretary Wilkie Stays Proceedings on Blue Water Navy Claims ... and more ...

VA Secretary Robert Wilkie has ordered the Board of Veterans’ Appeals and the Veterans Benefits Administration to stay proceedings on “certain pending claims” for benefits under the Blue Water Navy Vietnam Veterans Act of 2019 - stating that the Act authorizes this action (or lack thereof) until the statute takes effect on January 1, 2020.

The memo not only orders BVA and VBA to stay proceedings on all Blue Water Navy veterans’ claims - but also on claims for:

  • disability compensation for veterans who served near the Korean Demilitarized Zone from Sept. 1, 1967 to Aug. 31, 1971;

  • claims for benefits for survivors of deceased Blue Water Navy and Korean DMZ veterans; and

  • claims for spina bifida from “the children of Veterans who were allegedly exposed to herbicides while serving in Thailand” from Jan. 9, 1962 through May 7, 1975.

The memo does NOT prevent VA from complying with a Board decision that GRANTED benefits to any of the above claimants before the date of the memo (July 1, 2019). The memo also does not prevent VA from complying with “the order of any court.” This would (should) include the Federal Circuit’s order in Procopio v. Wilkie, and subsequent orders from the Court of Appeals for Veterans Claims related to Procopio.

VAWilkieBWNmemo.jpg

Crumlich: Presumption of mailing SOC rebutted

Crumlich v. Wilkie, docket no. 17-2630 (June 6, 2019)

HELD: VA’s regulation, 38 C.F.R. § 20.302(b)(1), presumes that the date on the Statement of the Case (SOC) is the date it was mailed, if there is no date on the cover letter. The Court invalidated this portion of the regulation, find that it potentially conflicts with the statute that affords claimants 60 days to appeal an SOC from the date the SOC was actually mailed. The Court found that the undated SOC cover letter, the confusing instructions in the letter, and the absence of evidence showing when the SOC was actually mailed was clear evidence to rebut the presumption of regularity that VA followed its regular mailing practices.

SUMMARY: Veteran appealed a VA denial of benefits and VA issued a Statement of the Case (SOC), dated June 2, 2015. The cover letter accompanying the SOC stated that the claimant had 60 days from the date of the letter to appeal – but the letter was undated. On page 15 of the 18-page SOC, the RO included languagr from 38 C.F.R. § 20.302(b)(1), which states that the “date of the mailing of the [SOC] will be presumed to be the same as the date of the [SOC].” Based on that regulation, the veteran had until August 3, 2015 to submit his appeal.

On August 11, 2015, he filed his appeal, through counsel, explaining that the letter accompanying the SOC was undated and that he did not know when the appeal was due. He asked the RO to accept the appeal as timely.

The RO rejected the appeal as untimely and the veteran appealed that decision. The Board acknowledged that the cover letter was undated, but noted that the SOC was dated and contained the language of § 20.302(b)(1), and thus concluded that the RO properly closed the appeal.

The CAVC first discussed the competing presumptions presented in this case: (1) the regulatory presumption in § 20.302(b)(1) that presumes an SOC was mailed on the date of the SOC and (2) the judge-made presumption of regularity that presumes “that public officers perform their duties correctly, fairly, in good faith, and in accordance with the law and governing regulations.” The Court determined that the regulatory presumption in § 20.302(b)(1) would apply in this case, since it “specifically addresses the date of the of mailing of the SOC, the precise issue in this case.”

Appellant challenged the validity of this regulation, arguing that it was inconsistent with its authorizing statute, 38 U.S.C. § 7105(d), which states that a claimant “will be afforded a period of sixty days from the date the [SOC] is mailed to file the formal appeal.” The Secretary conceded that the letters accompanying SOCs are sometimes dated later than the date of the SOC – and that the letter states that a claimant has 60 days from the date of the letter to appeal. The Secretary stated that the regulatory presumption applies in cases where the letter is undated. The Secretary conceded that, in this case, where the letter was undated, VA has no information about when the SOC was actually mailed or received. The Court found that the date on the letter is “clear evidence” of when the SOC was mailed – and that the regulatory presumption applies only when there is no date on the letter. The Court thus determined that “the regulatory presumption is not applied to ensure that all claimants receive 60 days from the date the SOC ‘is mailed’ to file a Substantive Appeal” – but rather it is used to “shield VA” in cases where it is actually unknown if the claimant received the statutorily mandated 60 days to file his or her appeal. The Court invalided the portion of § 20.302(b)(1) regarding the presumption that the SOC was mailed on the date on the SOC.

The Court next turned to the general presumption of regularity and assumed, without deciding, that it did apply and that the Secretary could rely on it. The presumption of regularity can be rebutted with “clear evidence that VA did not follow its regular mailing practices or that its practices were not regular.” The Court found that the undated letter in this case and the Secretary’s concession that SOC letters are sometimes dated after the date of the SOC was “sufficient to show that, even assuming the Secretary has a regular procedure for dating and mailing SOCs, … that procedure was not followed in this case.” Additional evidence to rebut the presumption of regularity included the confusing instructions in the letter indicating that the letter was dated (when it was not) and the Secretary’s concession that he did not have any specific information about when the SOC was actually mailed.

Once the presumption of regularity has been rebutted, the burden shifts to the Secretary to show that the mailing was proper. Based on the undated letter and the absence of information regarding the actual mailing of the SOC, the Court found that the Secretary did not meet this burden. The Court remanded for the Board to determine when the Appellant received the SOC and whether it was timely appealed.

In a concurring opinion, Judge Pietsch expressed frustration at the Secretary’s actions in this case:

His decision to take a hard line even though he mailed the appellant an incorrect, improperly prepared and plainly misleading notice letter caused a lot of resources to be wasted—not least the appellant’s time—all to receive a decision that costs VA the use of a regulation. If the paternalistic nature of VA is to be more than mere platitude, cases like this should be handled in a more empathetic manner. 

FULL DECISION

Skaar: Limited remand; class action certification

Skaar v. Wilkie, 31 Vet.App. 16 (Feb. 1, 2019)

HELD: Court can retain jurisdiction over appeal and issue a limited remand for the Board to address an argument that the appellant had expressly raised below.

SUMMARY: Victor Skaar was denied service connection for leukemia, to include as due to radiation exposure. He appealed to the Court and filed a motion to certify a class of veterans “who were present at the 1966 cleanup of plutonium dust at Palomares, Spain,” and whose claims for service connection based on radiation exposure had been denied. 

At the Board, Mr. Skaar challenged the way VA measures radiation exposure under 38 C.F.R. § 3.311, but the Board never addressed this argument. The Court issued a limited remand, directing the Board to address this expressly raised argument, citing Brannon v. West, 12 Vet.App. 32, 35 (1998); Urban v. Principi, 18 Vet.App. 143, 145 (2004); and Robinson v. Peake, 21 Vet.App. 545, 552 (2008) (all holding that “the Board is required to consider all issues raised either by the claimant or by the evidence of record”).

In its limited remand order, the Court allowed Mr. Skaar 90 days to provide the Board with any additional argument or evidence and directed the Board to provide a supplemental statement of reasons or bases within 30 days after the evidence-submission period. The Court stated that “[s]oliciting a supplemental response from the Board, without vacating the decision on appeal, for the discrete purpose of evaluating a class certification motion arising from that appeal – an issue of first impression at the Court – is undoubtedly a unique circumstance” that made it appropriate for the Court to retain jurisdiction over the appeal.

Judge Davis issued a concurring opinion, recommending that the Court expressly overrule Cleary v. Brown, 8 Vet.App. 305 (1995), and broaden the use of limited remands as a necessary tool in support of its remand authority.

Judge Schoelen issued a concurring opinion expressing concern with the majority’s “unacknowledged overruling” of Cleary, and suggesting boundaries for limited remands in cases where the Court retains jurisdiction.

FULL DECISION

Procopio: Blue Water Navy Veterans Entitled to 38 U.S.C. § 1116 Presumption

Procopio v. Wilkie, docket no. 2017-1821 (en banc) (Fed. Cir. Jan. 29, 2019)

HELD: Blue Water Navy veterans who served in the “12 nautical mile territorial sea” of the Republic of Vietnam are entitled to the presumption of herbicide exposure and service connection under 38 U.S.C. § 1116.

SUMMARY: Mr. Procopio served aboard the USS Intrepid from 1964 to 1967, during which time the ship was deployed in the offshore waters of the Republic of Vietnam. In 2006 and 2007, he sought service connection for diabetes and prostate cancer, which the Regional Office denied in 2009. The Board affirmed the denial, as did the CAVC, relying on Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008). In Haas, the Federal Circuit had held that the language in 38 U.S.C. § 1116, “served in the Republic of Vietnam,” was ambiguous and thus deferred to VA’s “reasonable interpretation” that required “duty or visitation on the landmass” of Vietnam or in the inland waterways in order to be entitled to the presumption of service connection for certain herbicide-related conditions. Haas, 525 F.3d at 1184, 1195.

Mr. Procopio appealed to the Federal Circuit and the Court asked the parties to address (1) whether the phrase “served in the Republic of Vietnam” includes “service in the offshore waters within the legally recognized territorial limits of the Republic of Vietnam” and (2) what role, if any, does the “pro-claimant canon” of interpretation of veterans’ statutes play in this analysis.

The Federal Circuit, en banc, reviewed the history of the Agent Orange Act of 1991 and VA’s implementing regulations, and assessed VA’s interpretation of the statutory language under the analysis set forth in Chevron U.S.A. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-43 (1984). Chevron directs courts to first assess “whether Congress has directly spoken to the precise question at issue.” If so, the court is to “give effect to the unambiguously expressed intent of Congress.” If the statutory language is ambiguous, step two of the Chevron analysis requires courts to determine “whether the agency’s answer is based on a permissible construction of the statute” – and, if the agency’s interpretation is “reasonable,” Chevron requires courts to defer to that reasonable interpretation.

In this case, the Federal Circuit determined at step one of the Chevron analysis that “Congress has spoken directly to the question of whether Mr. Procopio, who served in the territorial sea of the ‘Republic of Vietnam,’ ‘served in the Republic of Vietnam.’” The Court based this determination on international law which “confirms that, when the Agent Orange Act was passed in 1991, the ‘Republic of Vietnam’ included both its landmass and its 12 nautical mile territorial sea.” The Court also relied on the language in § 1116 that includes “active military, naval, or air service . . . in the Republic of Vietnam” as reinforcing the “conclusion that Congress was expressly extending the presumption to naval personnel who served in the territorial sea.”

Because the Court determined at Chevron step one that Congress’s intent was clear, it did not reach step two. The Court thus overruled Haas and held that veterans who served in the 12 nautical mile territorial sea of the “Republic of Vietnam” are entitled to the presumption of service connection under 38 U.S.C. § 1116.

FULL DECISION

NOTE: On November 2, 2018, docket no. 17-1679, the Supreme Court granted certiorari in Gray v. Wilkie, to address whether the Federal Circuit has jurisdiction to review VA’s interpretation of its own regulation when VA issues that interpretive rule in its adjudication manual. The manual provision in question is the one that excludes deep water harbors from its definition of “inland waterways.” On February 1, 2019, the Solicitor General submitted a memorandum to the Supreme Court “suggesting that this case may become moot” in light of Procopio. The memorandum notes that “the Solicitor General has not yet determined whether to file a petition for a writ of certiorari in Procopio” and, therefore, the Gray case is not yet moot – nor is it likely to become moot before the February 25, 2019 oral argument. However, the Solicitor General stated that the case may become moot after oral argument but before a decision is issued.  

LINK TO GRAY DOCKET: https://www.supremecourt.gov/docket/docketfiles/html/public/17-1679.html

[My opinion: It is unlikely that VA will ask the Supreme Court to review Procopio. It is more likely that VA will pressure Congress to amend the statute to define “Republic of Vietnam” as limited to its landmass and inland waterways.]

George: Presumption of Soundness, CUE, Retroactivity

George v. Wilkie, docket no. 16-2174 (Jan. 4, 2019) 

HELD: In order to rebut the presumption of soundness, 38 U.S.C. § 1111 has always required VA to prove that a condition both pre-existed and was not aggravated by service. However, that is not how VA interpreted the statute prior to 2003 – and the Court declined to retroactively apply the correct statutory interpretation, as set forth in Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004), to an appeal alleging CUE in a pre-2003 final decision. 

SUMMARY: Kevin George was diagnosed with schizophrenia in service. A Medical Board report found that the condition pre-existed and was aggravated by service, but a Physical Evaluation Board found that the pre-existing condition was not aggravated by service. He filed a claim for service connection a few months after discharge and was denied in 1976. The Board denied the claim in 1977. 

In 2014, he filed a request to revise the 1977 Board decision on the basis of clear-and-unmistakable error (CUE), alleging that the Board failed to correctly apply the presumption of soundness by not rebutting “with clear and unmistakable evidence that his condition was not aggravated by service.” The Board found no CUE in the 1977 decision, noting that the Board at the time was not required to find clear and unmistakable evidence of a lack of aggravation. The Board acknowledged the Federal Circuit’s holding in Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004), but stated that “judicial decisions that formulate new interpretations of the law subsequent to a VA decision cannot form the basis of CUE.” 

On appeal at the CAVC, the Court outlined the relevant law. The Court first noted that the presumption of soundness statute in 1977 (and today) allowed the Secretary to rebut only by showing of clear and unmistakable evidence of bothpre-existence andlack of aggravation. However, VA’s implementing regulation in 1977, 38 C.F.R. § 3.304(b), only required clear and unmistakable evidence that the condition pre-existed service. VA invalidated the regulation in 2003. Wagner was decided in 2004.

The Court explained the requirements for establishing CUE in a final decision, noting that 38 C.F.R. § 20.1403(e) “states that CUE ‘does not include the otherwise correct application of a statute or regulation where, subsequent to the Board decision challenged, there has been a change in the interpretation of the statute or regulation.’” The Court cited DAV v. Gober, 234 F.3d 682, 698 (Fed. Cir. 2000) in holding that “[t]he new interpretation of a statute can only retroactively [a]ffect decisions still open on direct review, not those decisions that are final.”

The Court then discussed the Federal Circuit’s decision in Wagner and its subsequent holding in Jordan v. Nicholson, 401 F.3d 1296 (Fed. Cir. 2005). In Jordan, the Court applied the DAV rule to Wagner, holding that “CUE does not arise from a new regulatory interpretation of a statute.” In other words, even though Wagner explained that the presumption of soundness statute has always meant that it can only be rebutted with clear and unmistakable evidence of both pre-existence and a lack of aggravation, a claimant could not raise a CUE challenge to a final decision based on the invalidation of VA’s implementing regulation that only required a showing of pre-existence to rebut. 

Finally, the Court discussed the Patrick line of primarily nonprecedential cases that addressed WagnerJordan, and retroactivity in a CUE case. In Patrick, as in the present appeal, the claimant argued CUE in a prior final decision based on the incorrect application of the presumption of soundness. The CAVC affirmed the Board’s denial and the Federal Circuit remanded for the Court to consider the application of Wagner, which had recently been decided at that time. 

On remand, the CAVC again affirmed the Board’s denial, citing Jordan for holding that Wagner’s “new” interpretation of the presumption of soundness did not retroactively apply in a CUE case. Mrs. Patrick again appealed, and, in Patrick III, also a nonprecedential decision, the Federal Circuit explained that Jordan dealt with “whether a change in the regulatory interpretation of a statute had retroactive effect on CUE [motions], not whether [its] interpretation of the statute in Wagner had retroactive effect on CUE [motions].” The Federal Circuit described the Jordan holding as limited, stating that “[u]nlike changes in regulations and statutes, which are prospective, [the Court’s] interpretation of a statute is retrospective in that it explains what the statute has meant since the date of enactment.” In other words, “Wagner did not change the law but explained what [section] 1111 has always meant.” The Federal Circuit remanded the matter back to the CAVC to determine whether VA rebutted the presumption of soundness with clear and unmistakable evidence of a lack of aggravation. The CAVC vacated the Board’s decision, and the attorney filed an application for EAJA fees. 

The CAVC denied the EAJA application, finding that the Secretary’s position was substantially justified. Again, Mrs. Patrick appealed to the Federal Circuit. In Patrick v. Shinseki (Patrick VI), 668 F.3d 1325 (Fed. Cir. 2011) – the only precedential decision in this line of cases – the Federal Circuit reversed the CAVC’s decision and remanded for the CAVC to consider substantial justification under the “totality of circumstances” test. In a footnote, the Federal Circuit noted that in Patrick III, it had rejected the CAVC’s determination that the correct “interpretation of section 1111 did not apply retroactively in the context of a CUE claim,” and repeated that “our interpretation of § 1111 . . . did not change the law but explained what [section] 1111 has always meant.”

With respect to retroactivity and CUE, the Court acknowledged that the Federal Circuit’s interpretation of section 1111 in Wagner is “an authoritative statement of what the statute meant before as well as after” that decision, but still found that the 2004 Wagner decision “cannot defeat the finality of a 1977 Board decision . . . because consideration of CUE requires the application of the law as it was understood at the time of the 1977 decision.” The Court explained: “Applying a statute or regulation as it was interpreted and understood at the time a prior final decision is rendered does not become CUE by virtue of a subsequent interpretation of the statute or regulation by this Court or the Federal Circuit.” 

In applying the law to the facts of this case, the Court noted that the Secretary conceded that the Board erred when it determined that the 1977 Board was not required to find clear and unmistakable evidence of a lack of aggravation due to the 1977 version of the implementing regulation. The Court disagreed with this concession of error, stating that “it is not clear how the Board could have ignored [38 C.F.R. § 3.304(b)] or why the Board would have been required to find clear and unmistakable evidence of aggravation in 1977.” [ABK note: I don’t know . . . maybe because the statute says so? Call me crazy . . . ] The Court held: “While the Federal Circuit’s interpretation of the presumption of soundness statute in Wagner sets forth what the statute has always meant, it was not the interpretation or understanding of the statute before its issuance.” The Court noted the Federal Circuit’s finding in Jordan that “there was a change in interpretation of section 1111” when VA invalidated § 3.304(b) and thus determined that “Wagner does not apply retroactively to final decisions.” 

In response to the argument based on the Patrick line of cases, the Court held that Patrick III is not binding precedent and the footnote in Patrick VI is dicta. The Court added that the statements in Patrick III and Patrick VI regarding “Wagner’s retroactivity conflict with other precedential Federal Circuit caselaw,” specifically DAV, which held that “[t]he new interpretation of a statute can only retroactively [a]ffect decisions still open on direct review, not those decision[s] that are final.” To bolster its decision, the Court stated: “The impact of allowing judicial decisions interpreting statutory provisions issued after final VA decisions to support allegations of CUE would cause a tremendous hardship on an already overburdened VA system of administering veterans benefits.” 

The Court further found that even if Wagner applied retroactively, Mr. George’s CUE allegation would fail because he did not prove that the 2016 Board erred in determining that the 1977 Board’s errors did not manifestly change the outcome of its decision. The Court thus affirmed the 2016 Board’s decision.  

In a well-crafted dissent that will likely form the foundation for an appeal to the Federal Circuit, Judge Bartley stated that “the will of Congress, not VA, should prevail.” She reiterated that the Federal Circuit “‘soundly rejected’ the argument ‘that this court’s interpretation of section IIII did not apply retroactively in the context of a CUE claim” citing the Patrick VI footnote, adding that she was “not willing to dismiss this unambiguous and germane guidance from our reviewing court, particularly when that guidance is grounded in the unalterable principle that veteran-friendly congressional intent holds primacy over a VA interpretation that is less beneficial to veterans.” She rejected the majority’s concern of causing “a tremendous hardship” on VA, stating that she would have “no reservations about requiring VA to remedy the decades old errors that prohibit otherwise deserving veterans and their dependents from receiving the benefits to which they are statutorily entitled.”

FULL DECISION

Harper: TDIU is "part and parcel" of underlying claim

Harper v. Wilkie, 30 Vet.App. 356 (Dec. 6, 2018)

HELD: Entitlement to TDIU is “part and parcel of the underlying … claim” and a “grant of TDIU did not bifurcate the appeal but rather served as a partial grant.” Once the issue of a higher rating is in appellate status and the claimant is “not awarded the highest rating possible, including TDIU, for the entire appeal period, the issue of entitlement to TDIU remain[s] on appeal” and the Board has jurisdiction over it.

SUMMARY: The veteran was granted service connection for PTSD, rated 50%. 30 Vet.App. at 357. He appealed for a higher rating and submitted a TDIU application during the pendency of that appeal. Id. at 358. The RO denied TDIU, and Mr. Harper did not appeal that decision. Id.

In December 2015, the RO granted a 70% rating, but no higher. Id. Mr. Harper submitted another application for TDIU in February 2016. Id. The RO then granted TDIU effective February 2016. Id. The veteran appealed to the Board for a higher rating prior to December 2015, and the Board declined to address the effective date for TDIU because he had not appealed the decision that granted TDIU. Id.

This is appeal was sent to a panel for the Court to address whether the RO’s grant of TDIU bifurcated that issue from the appeal for a higher rating, thus requiring the veteran to file a new Notice of Disagreement to appeal the effective date for TDIU.

The Court held that Mr. Harper did not have to appeal the TDIU decision while the appeal for a higher rating for PTSD was pending “because the issue of entitlement to TDIU became part and parcel of the underlying PTSD claim and the RO’s grant of TDIU served only as a partial grant of his request for TDIU.” Id. at 359. The Court stated that “once Mr. Harper’s PTSD claim was in appellate status by virtue of the December 2008 NOD, … the issue of TDIU became part of the underlying PTSD claim when he filed an application for TDIU in February 2014.” Id. The Court stated that the “appeal for a higher disability rating was sufficient, when coupled with evidence of unemployability, to raise the issue of entitlement to TDIU for the entire appeal period” because “the issue of entitlement to TDIU … became part and parcel of the appeal for a higher initial disability rating for PTSD, and … the RO’s grant of TDIU did not bifurcate the appeal but rather served as a partial grant.” Id. at 361. The Court further explained:  

Mr. Harper’s NOD placed the issue of the appropriate disability evaluation into appellate status and, therefore, because he was not awarded the highest rating possible, including TDIU, for the entire appeal period, the issue of entitlement to TDIU for the period prior to February 2016 remained on appeal, and the Board had jurisdiction to consider that matter.  

Id. at 362. The Court reversed the Board’s decision and directed the Board to consider entitlement to TDIU prior to February 2016.

The Court also found that the Board failed to adequately explain its rejection of evidence that it mentioned in its recitation of the facts, but did not address in the analysis portion of the decision. The Court also found that the Board overlooked potentially relevant evidence of occupational impairment, and remanded for the Board to correct its reasons-or-bases errors that had been noted in a prior remand.

FULL DECISION

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

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

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

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

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

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

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

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

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

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

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

FULL DECISION

Saunders: Pain is a disability subject to compensation

Saunders v. Wilkie, 886 F.3d 1356 (Apr. 3, 2018)

HELD: “‘[D]isability’ in [38 U.S.C.] § 1110 refers to the functional impairment of earning capacity, not the underlying cause of said disability” – and “pain is an impairment because it diminishes the body’s ability to function, and that pain need not be diagnosed as connected to a current underlying condition to function as an impairment.”

SUMMARY: This case overrules Sanchez-Benitez v. West, 13 Vet.App. 282, 285 (1999), which held that “pain alone is not a disability for the purpose of VA disability compensation.”

Veteran Melba Saunders served in the U.S. Army from 1987 to 1994. She had no knee problems prior to service. Her service medical records show treatment for “knee pain.” Her separation examination report notes a history of swollen knee.

In 1994, the RO denied her claim for service connection for her knees because she failed to appear for an examination. She did not appeal that decision and it became final. In 2008, she requested reopening, and RO denied service connection for her bilateral knees because it found no evidence of treatment. She appealed and was afforded a C&P examination. The examiner diagnosed “subjective bilateral knee pain” – and concluded that this condition is “at least as likely as not” related to service.

The RO asked the examiner for clarification, noting that “pain” is not a diagnosis. The examiner replied that there is no pathology to render a diagnosis – and that his theory is based on the chronology of events. The RO again denied service connection, and Ms. Saunders appealed to the Board.  

 The Board denied her claim, stating that “pain alone is not a disability,” and citing Sanchez-Benitez. Ms. Saunders appealed to the Court – and the CAVC affirmed the Board’s denial.

The veteran appealed to Federal Circuit, which overruled Sanchez-Benitez and held that (1) pain can constitute a disability under 38 U.S.C. § 1110; (2) the word “disability” in the statute refers to functional impairment; and (2) pain alone may be a functional impairment.

The Federal Circuit examined the plain language of the statute, noting that 38 U.S.C. § 1110 provides for compensation for “a disability resulting from personal injury suffered or disease contracted in line of duty,” but “does not expressly define what constitutes a ‘disability.’” The Court noted that the parties did not dispute that “‘disability’ refers to a functional impairment, rather than the underlying cause of the impairment.” And the Court found that VA’s rating schedule reflected this meaning, noting that the percentages in the rating schedule represent “the average impairment in earning capacity” (citing 38 C.F.R. § 4.1), and that “[t]he basis of disability evaluations is the ability of the body as a wholeto function under the ordinary conditions of daily life including employment” (38 C.F.R. § 4.10).

 The Court also considered Congressional intent in drafting VA benefits statutes, finding that “the legislative history of veterans compensation highlights Congress’s consistent intent that there should be a distinction between a disability and its cause” – adding that Congress defined “disability” for Ch. 17 purposes, but not for compensation benefits.  

 The Court thus held that (1) “‘disability’ in § 1110 refers to the functional impairment of earning capacity, not the underlying cause of said disability”; and (2) “pain is an impairment because it diminishes the body’s ability to function, and that pain need not be diagnosed as connected to a current underlying condition to function as an impairment.”

 To support this second part of its holding, the Federal Circuit noted several references to “pain” throughout VA’s rating schedule, citing §§ 4.10, 4.40, 4.45, 4.56, 4.66, 4.67. The Court added that “a physician’s failure to provide a diagnosis for the immediate cause of a veteran’s pain does not indicate that the pain cannot be a functional impairment that affects a veteran’s earning capacity.” To clarify its holding, the Court stated: “We do not hold that a veteran could demonstrate service connection simply by asserting subjective pain—to establish a disability the veteran’s pain must amount to a functional impairment,” adding that “[t]o establish the presence of a disability, a veteran will need to show that her pain reaches the level of a functional impairment of earning capacity.” The Court remanded this matter to the CAVC with instructions to remand to the Board to make specific factual findings in the first instance.

 FULL DECISION

Porriello: CUE, res judicata

Porriello v. Shulkin, 30 Vet.App. 1 (Mar. 12, 2018)

HELD: A challenge to the Board’s jurisdiction to address a specific allegation of clear and unmistakable error (CUE) must be raised during the appeal period of the relevant decision and cannot later be challenged on the basis of CUE when the appeal period has passed and additional appellate tribunals have already issued final decisions on the matter.

 SUMMARY: Mr. Porrriello’s enlistment examination noted no conditions, but he was hospitalized in service for ulcerative colitis, which was determined to have pre-existed service by a 1961 Medical Board. Shortly after separation, he applied for disability benefits and was denied in March and July 1961. He did not appeal, but did file another claim in 1967, which was denied in June 1968. In January 2005, he was finally granted benefits based on new medical evidence. One month later, he submitted a statement, asserting his belief that his claim was “erroneously denied” 40 years ago.

In October 2005, the veteran’s DAV representative characterized the statement as a Notice of Disagreement, but later withdrew the appeal and instead stated that he had argued CUE in the June 1968 decision. There was no mention of the 1961 decision. The RO denied an earlier effective date, but did not mention any specific CUE theory. The veteran appealed, and the RO issued a Statement of the Case stating that he had not provided rationale to support his CUE allegation, but still found no CUE in 1961 and 1968. The veteran filed a VA Form 9. He did not provide any specific theory of CUE, but referred to his entrance examination showing no evidence of a pre-existing condition. The DAV representative then submitted a document identifying the issue as CUE in the 1961 decision. The representative described a specific theory of CUE based on a private doctor’s diagnosis of the pre-service symptoms that was different from the in-service diagnosis of ulcerative colitis.

In May 2008, the Board addressed and rejected this CUE theory. Mr. Porriello appealed to this Court, through counsel, and the Court affirmed the Board’s decision. The Federal Circuit, in turn, affirmed this Court’s decision.

In May 2013, Mr. Porriello filed, through counsel, a request for revision of the 1961 decision on the basis of CUE, arguing that the RO failed to properly apply the presumption of soundness. The RO denied the request, noting that the 2008 Board already considered the application of the presumption of soundness. He appealed to the Board and the Board found that it lacked jurisdiction to address his arguments since the 2008 Board decision had considered the presumption of soundness and “the 1961 and 1968 rating decisions were subsumed by the 2008 Board decision.”

 On appeal to the Court, Mr. Porriello argued that the 2008 Board lacked subject matter jurisdiction to consider any CUE allegation in the 1961 and 1968 rating decisions because he never raised any specific CUE allegation “at the outset of proceedings leading to that decision.” Because the Board lacked jurisdiction, he further asserted that neither this Court nor the Federal Circuit had jurisdiction to review the Board’s decision.

 This Court found that Mr. Porriello’s “jurisdictional arguments might have force and weight” – but that “[t]he time for raising such jurisdictional objections, however, has passed” and that he should have raised these issues during his appeal of the May 2008 Board decision. The Court agreed that the Board erred in determining that the 1961 and 1968 RO decisions were subsumed by the May 2008 Board decision. However, Mr. Porriello’s “failure to raise any jurisdictional challenge on direct appeal means that the decisions of the Board, this Court, and the Federal Circuit are both final and valid.” The Court held that “the doctrine of res judicata precludes raising the same CUE theory again,” and affirmed the Board’s decision.

FULL DECISION

Golden: GAF scores, rating psychiatric conditions

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

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

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

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

FULL DECISION

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

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

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

FULL DECISION

Harvey: Attorney serving as expert witness

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

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

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

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

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

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

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

FULL DECISION

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

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

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

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

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

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

FULL DECISION

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

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

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

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

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

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

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

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

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

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

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

FULL DECISION

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

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

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

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

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

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

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

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

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

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

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

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

FULL DECISION

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

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

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

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

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

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

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

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

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

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

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

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

FULL DECISION

Rossy: Extraschedular consideration for hearing loss not warranted

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

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

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

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

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

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

FULL DECISION

Browder: Fiduciary, allegations of misuse of funds

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

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

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

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

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

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

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

FULL DECISION

Lyles: Rating knee disabilities

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

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

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

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

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

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

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

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

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

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

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

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

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

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

FULL DECISION

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

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

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

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

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

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

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

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

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

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

FULL DECISION