Event: CAVC 14th Judicial Conference

April 11-12, 2019, National Press Club, Washington, DC

The U.S. Court of Appeals for Veterans Claims holds its Judicial Conference every three years. As the Court was formed in 1989, the theme of the 2019 conference is “Celebrating 30 Years.”

ABK spoke on a panel on “Class Actions: Primer, Updates, What’s Next” and presented “An Evolution of a Class Action Rule,” highlighting the process of developing a class action rule for the CAVC.


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.


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.]

Rosinski: Attorney challenges VA policy re: access to draft rating decisions

Rosinski v. Wilkie, docket no. 18-0678 (en banc) (Jan. 24, 2019) 

HELD: Attorney challenging VA’s policy to provide draft rating decisions to VSOs, but not attorneys, has direct standing and third-party standing to bring the challenge, and the appropriate remedy is to order the Secretary to issue a decision on his request for access to draft rating decisions.

 SUMMARY: Mr. Rosinski, veterans’ attorney, petitioned the Court for a writ of mandamus to compel VA to provide him with the same access to preliminary draft rating decisions that VA makes available to VSOs. This is the second petition filed on this issue. The Court dismissed the first one for lack of standing.

 The Court now determined that Mr. Rosinski has direct standing to have the Court hear his petition because (1) he has a statutory right under 38 U.S.C. § 5904(a) to represent clients throughout the VA claims process and the Secretary’s policy violates that right; (2) the Secretary is required under 38 U.S.C. § 5701(b) to disclosed “files, records, reports, and other papers and documents” to the “duly authorized agent or representative of a claimant”; and (3) “the Secretary’s policy results in both tangible and intangible harm” to the petitioner.

 The Court also determined that Mr. Rosinski has third-party standing on behalf of his clients to bring this petition. The Court noted that each of his clients “has a due process right to fair adjudication of his claim for benefits” and that while VA’s policy granting VSOs review of draft decisions is discretionary, “it results in a system where some veterans – those represented by attorneys – are deprived of a benefit afforded to others – those represented by VSOs.” The Court also found that because he has “existing attorney-client relationships with [his] clients, . . . he has a sufficiently close relationship to warrant third-party standing,” regardless of the fact that he “has not identified a specific client.” The Court further found that “there is a hindrance to the petitioner’s clients’ ability to protect their own interests . . . because of the structure of the VA adjudication system” and that the petitioner “is in a better position to assert his clients’ rights in this matter than any one of his clients is individually.”

While the Court found that Mr. Rosinski has standing to have his petition heard, the Court declined the address the merits of the petition because it determined that he has alternative means to obtain his relief – namely, by obtaining an appealable decision from VA. The Court granted the petition, in part, and directed the Secretary to issue an official, appealable decision on Mr. Rosinski’s request for access to draft rating decisions within 30 days. The Court noted that the Secretary “has the power to resolve this case with a single stroke of his pen” by changing the policy to allow ALL accredited representatives access to draft decisions. The Court added that the Secretary’s inaction in the year since the prior petition “is troubling” and that “the Secretary should consider whether he – and the veterans Congress charged him to assist – would be better served by voluntarily changing his policy, rather than by waiting for the lengthy appeals process to run its course.”


Demery: Notice of Appeal Filed After Veteran's Death

Demery v. Wilkie, docket no. 17-3469 (per curiam order) (Jan. 17, 2019)

HELD: Timely Notice of Appeal filed after the veteran’s death was not valid with respect to the substituted party, but the eligible substitute may amend the NOA to name her as the appellant and ask the Court to relate the amended NOA back to the date the original NOA was filed so as to make it timely.

SUMMARY: On October 3, 2017, the Court received a timely NOA of a June 22, 2017 Board decision. Shortly afterwards, the attorneys who filed the NOA notified the Court that the veteran had passed away and filed a motion to substitute his surviving spouse. The Court then discovered that the veteran had passed away in August 2017 – after the Board’s decision, but before the NOA had been filed. Because “a dead person may not appeal a Board decision,” the Court found that the NOA was “defective,” but still allowed the surviving spouse to file an amended NOA and to relate that NOA back to the date of the original filing.


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.”


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

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

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

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

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


Kisor: Supreme Court grants certiorari

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

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

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

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

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. 


Martin: Petition for writ of mandamus; TRAC standard

Martin v. O’Rourke891 F.3d 1338 (June 7, 2018) 

HELD: The multi-factorial TRAC standard is the appropriate standard for the CAVC to use in evaluating petitions for writs of mandamus based on unreasonable delay. 

SUMMARY: In evaluating mandamus petitions based on unreasonable delay, the Court has applied the standard from Costanza v. West, 12 Vet.App,. 133 (1999) (per curiam), that requires a petitioner to demonstrate that “the delay he complains of is so extraordinary, given the demands and resources of the Secretary, that the delay amounts to an arbitrary refusal to act, and not the product of a burdened system.”

The Federal Circuit held that this standard was “insurmountable,” and that the more appropriate standard was the one set forth in Telecomms. Research & Action Ctr. v. FCC (“TRAC”), 750 F.2d 70, 76 (D.C. Cir. 1984). The Federal Circuit noted that other courts have used the TRAC standard when evaluating petitions based on an administrative agency’s unreasonable delay – and found that the TRAC framework was more appropriate than the CAVC’s current Constanza standard. 

The TRAC framework requires courts to consider six factors: 

(1) the time agencies take to make decisions must be governed by a “rule of reason”; 

(2) where Congress has provided a timetable or other indication of the speed with which it expects the agency to proceed in the enabling statute, that statutory scheme may supply content for this rule of reason; 

(3) delays that might be reasonable in the sphere of economic regulation are less tolerable when human health and welfare are at stake; 

(4) the court should consider the effect of expediting delayed action on agency activities of a higher or competing priority; 

(5) the court should also take into account the nature and extent of the interests prejudiced by delay; and 

(6) the court need not find “any impropriety lurking behind agency lassitude” in order to hold that agency action is unreasonably delayed.

The Federal Circuit remanded for the CAVC to use the TRAC framework as guidance in evaluating petitions based on delay. 


Acree: Withdrawal of appeal during Board hearing

Acree v. O’Rourke891 F.3d 1009 (June 4, 2018)

HELD: A veteran can withdraw an appeal at a hearing, as long as the withdrawal “is explicit, unambiguous, and done with a full understanding of the consequences of such action on the part of the claimant.”

SUMMARY: At a Board hearing, the veteran withdrew seven of his eleven appeal issues. He was represented by a DAV representative. The Board issued a decision, remanding the remaining four claims and dismissing the withdrawn claims. Mr. Acree then appealed to the CAVC, arguing that the Board failed to adequately explain its determination that he had effectively withdrawn the seven claims. He quoted DeLisio v. Shinseki, 25 Vet.App. 45 (2011), to assert that a veteran’s withdrawal of a claim is not effective unless the withdrawal “is explicit, unambiguous, and done with a full understanding of the consequences of such action on the part of the claimant.” The CAVC affirmed the Board’s decision. 

On appeal, the Federal Circuit first noted that VA’s regulation regarding withdrawal of appeals at the Board, 38 C.F.R. § 20.204(b)(1), describes what is required to withdraw an appeal in writing, but is silent with respect to how to withdraw an appeal during a hearing. The Federal Circuit noted the CAVC’s holding in DeLisioand that case’s harmony with the “uniquely pro-claimant nature” of the VA benefits scheme, and determined that “DeLisio sets a reasonable standard for withdrawals at hearings.” The Court found that the CAVC erred by not ensuring that the Board adhered to the DeLisio standard. Because the CAVC “improperly absolved the Board of any obligation” to ensure the veteran had a “full understanding of the consequences” of the withdrawal, the Federal Circuit vacated and remanded the CAVC’s decision.


Blue: EAJA, prevailing party status

Blue v. Wilkie30 Vet.App. 61 (May 16, 2018)

HELD: To determine “prevailing party” status where agency error is not explicitly found in the merits decision or conceded by the Secretary, the Court will look to “the substantive discussion in the merits decision, the relief awarded, and whether the caselaw cited in the merits decision would allow such relief in the absence of agency error.”

SUMMARY: CAVC issued a memorandum decision that remanded the veteran’s appeal for additional development and readjudication – specifically directing the Board to obtain VA medical records. In its decision, the Court stated that it found “no error” in the Board’s failure to obtain these records because the veteran had not provided VA with the dates of treatment. 

The appellant’s attorney filed an EAJA application and the Secretary challenged it, arguing that he was not a “prevailing party” since the Court expressly found “no error” in the Board’s decision. 

The Court first discussed the relevant case law and outlined a three-part test, from Dover v. McDonald, 818 F.3d 1316 (Fed. Cir. 2016), to determine “prevailing party” status for EAJA purposes: “(1) the remand was necessitated by or predicated upon administrative error, (2) the remanding court did not retain jurisdiction, and (3) the language of the remand order clearly called for further agency proceedings, which leaves the possibility of attaining a favorable merits determination.” The only issue here was whether the remand was based on administrative error.  

The Court noted that error can be explicit or implicit – and it could be found by the Court or conceded by the Secretary. In this case, the Court expressly found “no error” and the Secretary did not concede error – so the Court looked at “the context of the remand order itself to determine whether the remand was implicitly predicated on agency error.” The Court determined that Mr. Blue was a prevailing party based on “the substantive discussion in the merits decision, the relief awarded, and whether the caselaw cited in the merits decision would allow such relief in the absence of agency error.” The Court determined that the cases cited in the merits decision would not allow for remand in the absence of agency error – and thus concluded that, “under the unique circumstances presented by this case,” the appellant demonstrated that the remand “must have been implicitly predicated on ‘actual or perceived’ agency error.” The Court found the appellant was a prevailing party in this matter. 


O'Brien: Dependency, Legal Guardianship

O’Brien v. Wilkie16-2651 (May 4, 2018)

HELD: Legal guardianship does not satisfy VA’s definition of “child” for dependency purposes.

SUMMARY: Veteran sought dependency benefits for his grandson. The veteran was the grandson’s legal guardian, but had not formally adopted him. VA denied dependency benefits for the grandson since he did not meet VA’s definition of a dependent child. Veteran appealed to the Court, arguing that the Court should rely on the “plain meaning” of the word “dependent” – and that because his grandson is “actually dependent” on the veteran, he should be included as a dependent for VA benefits purposes. 

The Court disagreed, finding that while the relevant statute and regulation do not define “dependent,” the structure of the statute (38 U.S.C. § 1115) makes it clear that Congress intended to limit “dependents” to “spouses, children, and dependent parents.” The Court also found that Congress expressly limited the definition of “child” to a minor “who is a legitimate child, a legally adopted child, [or] a stepchild who is a member of the veteran’s household,” citing 38 U.S.C. § 101(4)(A). 


Burris: Education benefits, equitable relief

Burris v. Wilkie888 F.3d 1352 (May 2, 2018)

HELD: The CAVC lacks the authority to grant substantive (i.e., monetary) equitable relief. 

SUMMARY: In this consolidated case, the sons of two veterans were denied equitable relief for extension of education benefits and reimbursement of education-related expenses. In both cases, the Board held that it did not have the “authority to grant additional benefits on an equitable basis.” The CAVC affirmed the Board’s decisions in both cases, holding that only the Secretary can grant equitable relief in certain circumstances and that the CAVC itself lacked authority to grant such relief. 

On appeal to the Federal Circuit, the appellants argued that the CAVC wrongly determined that it lacked jurisdiction to grant equitable relief. The Federal Circuit disagreed, noting that the relevant statute regarding equitable relief, 38 U.S.C. § 503, only allows the Secretary to provide such relief – not the Court. The Federal Circuit further found that the CAVC’s inherent equitable powers do not allow it to grant the equitable relief sought by the appellants in these cases – namely, monetary relief. The Court acknowledged that the CAVC does have the “authority to grant certain forms of non-substantive equitable relief,” such as the authority to certify classes, issue judgment nunc pro tunc, and consider equitable defenses. However, the Court found that those forms of relief were either based on other statutes or were procedural – and were not the same as the monetary relief sought in the present cases. The Court thus held that the CAVC correctly affirmed the Board’s decisions – and correctly determined that it lacked authority to grant this type of equitable relief.  


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.


Bly: EAJA, timeliness

Bly v. Shulkin883 F.3d 1374 (Mar. 2, 2018)

HELD: Unless a Court order specifically prohibits an appeal, an order granting the parties’ motion for remand will become final and “‘not appealable’ 60 days after the entry of the remand order.”

SUMMARY: The Equal Access to Justice Act (EAJA) requires an application for attorney fees to be filed “within 30 days of final judgment in the action.” 28 U.S.C. § 2412(d)(1)(B). Mr. Bly’s attorney filed his EAJA application with the CAVC 31 days after the Court issued its order granting the parties’ joint motion for remand. The Court, relying on three of its own rules of practice and procedure, denied the application because it was one day late. These rules state that (1) an EAJA application must be made “not later than 30 days after the Court’s judgment becomes final”; (2) when the Court remands a case on the parties’ consent, judgment is effective the date of the Court order when that order states that it constitutes the mandate of the Court; (3) mandate is when the Court’s judgment becomes final; and (4) mandate is generally 60 days after judgment, unless it is “part of an order on consent … remanding a case” or “the Court directs otherwise.” See Rules 39(a), 36(b)(1)(B)(i), 41(a) and (b). 

The Federal Circuit reversed the CAVC’s decision based on the EAJA’s definition of “final judgment” as a “judgment that is final and not appealable, and includes an order of settlement.” Mr. Bly argued that his EAJA application was timely because the “Court’s judgment was not yet ‘final and not appealable’ until 60 days after the date of the remand order.

The Federal Circuit noted that the courts of appeals have taken two different approaches to the issue of finality for EAJA purposes. Under the “uniform” approach, the time to file an EAJA application “would run from the expiration of the time for appeal, without consideration of whether the particular final judgment would have or could have been appealed.” The “functional” approach, on the other hand, requires a “case by case exploration of whether an appeal could have been taken by either party.” The Federal Circuit had previously “adopted the uniform rule for voluntary dismissals, ‘at least where the order of dismissal does not specifically prohibit appeal’” – and saw no reason to depart from that approach in the context of “consent judgments,” as in this case. The Court thus held that the “consent judgment here became ‘not appealable’ 60 days after the entry of the remand order” – and, therefore, Mr. Bly’s EAJA application was timely. 

The Secretary had also argued that the CAVC order granting the parties’ joint motion for remand was “an order of settlement” and, therefore, a final judgment under the EAJA. The Federal Circuit rejected this argument because the order granted the motion to remand did not resolve the underlying service-connection dispute. The appeal would go back to the Board – and may even return to the Court – so the Federal Circuit did not this fit within the plain meaning of “settlement.” The Federal Circuit remanded this matter to the CAVC to consider the merits of the EAJA application. 


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.” 


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.”


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.”