Kisor: To be "relevant," under 38 C.F.R. § 3.156(c)(1), a record must relate to a disputed issue

Kisor v. Wilkie, docket no. 2016-1929 (Fed. Cir. August 12, 2020)

HELD: “[I]n the context of § 3.156(c), the term ‘relevant’ has only ‘one reasonable meaning’ … [and] under the regulation, in order to be ‘relevant’ a record must speak to a matter in issue, in other words, a matter in dispute.” 

SUMMARY: Mr. Kisor filed an initial claim for service connection for PTSD in 1982 and submitted a supporting medical opinion from his Vet Center counselor. VA obtained a negative medical opinion in which the examiner noted the veteran’s participation in “Operation Harvest Moon” in Vietnam, but determined that he did not have PTSD. Because there was no PTSD diagnosis, the RO denied the claim. In 2006, Mr. Kisor submitted a request to reopen and submitted new service records showing his receipt of the Combat Action Ribbon and documenting his participation in Operation Harvest Moon. The RO obtained a favorable medical opinion and granted service connection for PTSD, effective 2006. He appealed for an earlier effective date, which the Board denied, under 38 C.F.R. § 3.156(c), finding that the newly received service records were not “outcome determinative” because they did not relate to the relevant issue of the lack of a PTSD diagnosis.

Mr. Kisor appealed to the CAVC, the Federal Circuit, and the Supreme Court. In the Federal Circuit’s first decision, it found that the term “relevant” in the regulation was ambiguous and deferred to the agency’s reasonable interpretation, which was the Board’s interpretation that required the record to be “outcome determinative.” The Supreme Court held that the Federal Circuit was “too quick to extend Auer [v. Robbins, 519 U.S. 452 (1997)] deference to the Board’s interpretation of ‘relevant’ as it appears in § 3.156(c)(1)” and remanded the appeal back to the Federal Circuit to “decide whether Auer deference ‘applies to the agency interpretation at issue’” and “‘whether the regulation really has more than one reasonable meaning.’” 

On remand, the same three-member panel of the Federal Circuit now determined that the term “relevant” in § 3.156(c)(1) “has only ‘one reasonable meaning,’ the meaning the Board attributed to it.” The Court first found that the term “relevant” in the regulation was “not genuinely ambiguous” – and agreed with the Secretary that “the term has only one reasonable meaning.” The Court held: “To be relevant, a record must address a dispositive issue and therefore affect the outcome of the case.” Because the reason for the prior denial was the lack of a PTSD diagnosis and the new service did not address that issue, the Court determined that they were not “relevant” under § 3.156(c)(1). 

In a thorough and thoughtful dissent, Judge Reyna outlined a strong argument for Mr. Kisor to deploy in appealing this decision. Specifically, Judge Reyna noted that there is nothing in the regulation that requires “relevant” records to “speak to the basis for the VA’s prior decision” or to “affect the outcome.” Rather, in the context of veterans’ benefits, records are relevant if they “help to establish unestablished facts that are necessary for substantiating the veteran’s claim.” 

Judge Reyna pointed out that the initial VA examiner who provided the negative medical opinion described Mr. Kisor’s combat experiences “with palpable skepticism” – something that the majority failed to address. This is particularly relevant to claims for service connection for PTSD because that diagnosis relies on the establishment of a stressor event or events. 

Judge Reyna argued that “when a veterans’ benefit provision is ambiguous on its face, the pro-veteran canon must be weighed alongside the other traditional tools in resolving interpretive doubt.” He stated that “while we have held that the pro-veteran canon applies only to ambiguous statutes and cannot override plain text, that rule does not render the canon a tool of last resort, subordinate to all others.” He added: “The majority wrongly assumes that the Supreme Court’s ‘genuine ambiguity’ criterion for Auer deference applies to the pro-veteran canon” and that if “we can set aside the pro-veteran canon unless and until all other considerations are tied, then the canon is dead because there is no such ‘equipoise’ in legal arguments.”

Martinez-Bodon: In order to be a "disability" for VA benefits purposes, a mental health condition must have a DSM-5 diagnosis

Martinez-Bodon v. Wilkie, docket no. 18-3721 (August 11, 2020)

HELD: “The definition of ‘disability’ in section 1110 includes any condition that results in ‘functional impairment of earning capacity’” and this definition applies to psychiatric conditions. However, VA regulation “requires a DSM-5 diagnosis to compensate a psychiatric disability” – and while the Court can interpret the meaning of VA’s regulations within the rating schedule, it “lack[s] jurisdiction to determine whether the regulations are consistent with section 1110.” 

SUMMARY: Veteran filed a claim for disability benefits for diabetes and a mental health condition related to the diabetes. A VA examiner determined that he did not have a diagnosis that “met the criteria for a mental condition per DSM-5.” The RO granted service connection for diabetes, but denied the mental health claim. The veteran appealed to the Board and the Board confirmed the RO’s denial. 

On appeal to the Court, the veteran argued that the Board’s requirement of a diagnosis is inconsistent with Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018), in which the Federal Circuit held that “pain alone, without a specific diagnosis or otherwise identified disease or injury, may constitute a disability under 38 U.S.C. § 1110.” He argued that as long as his mental health symptoms “‘caused impairment of earning capacity,’ they constitute a disability for service-connection purposes.” In the alternative, he argued that he should receive separate ratings for his anxiety and sleep problems – secondary to his service-connected diabetes – because those symptoms are not reflected in the rating for diabetes. 

The Court first found that the Federal Circuit in Saunders “defined ‘disability’ as ‘functional impairment of earning capacity’” and that it “gave no indication that it was defining that term differently for pain than it would have for any other condition.” The Court thus held that “Saunders is not limited to pain” and that “the definition of ‘disability’ in section 1110 includes any condition that results in ‘functional impairment of earning capacity’ . . . including the psychiatric condition at issue here.” 

The Court then turned to 38 C.F.R. §§ 4.125 and 4.130, which appear to require a formal diagnosis consistent with the DSM-5 – and examined these regulations in light of Saunders and in the context of an undiagnosed mental health condition. The Court first acknowledged that it cannot “review” the rating schedule – but found that this “jurisdictional limitation does not prevent” the Court from interpreting these regulations. The Court held that these regulations “require[] a DSM-5 diagnosis to compensate a psychiatric disability” and that “the Saunders definition of a ‘disability’ is constrained as relevant to this appeal by VA’s decision to limit the psychiatric disabilities it would compensate.” 

The Court stated that it “lacks jurisdiction to question what the Secretary decides constitutes a disability, including whether the Secretary’s definition of certain disabilities complies with section 1110” – and reiterated that it lacked “jurisdiction to review the Secretary’s regulations concerning mental health conditions contained in the rating schedule to determine whether they are consistent with section 1110.”

The Court rejected the veteran’s alternative argument regarding separately rating his mental health symptoms related to his diabetes – repeating that “VA’s rating schedule requires a DSM-5 diagnosis as a precondition for compensating veterans for psychiatric disabilities.” 

Smith: Board must notify claimant when it reverses its prior favorable credibility determination

Smith v. Wilkie, docket no. 18-1189 (April 27, 2020)

HELD: “[T]he principles of fair process require the Board to provide claimants notice and an opportunity to respond when it purports to reverse prior assertions that evidence is credible or otherwise satisfactory to establish a fact necessary to the claim or when the Board’s order would leave the impression that it had determined that the evidence was credible.”

SUMMARY: Veteran filed a claim for disability benefits for a left shoulder condition, asserting that he injured the shoulder and received treatment for it in service. VA denied service connection and he appealed to the Board. At his hearing, he described the in-service injury and treatment. The Board remanded the claim for a medical opinion, directing the examiner to accept the veteran’s lay statements regarding the in-service injury and ongoing post-service pain as “true” and “credible.”

The VA examiner provided a negative opinion based on the lack of in-service evidence of the injury or treatment, and the RO continued to deny the claim.

The Board remanded the matter again because it was not clear if the examiner “complied with the Board’s instruction to accept as credible Mr. Smith’s lay testimony regarding a left shoulder injury.” The same examiner provided a supplemental opinion, stating that the veteran’s testimony was “deemed credible,” but noting that “there was no objective evidence of residuals within one year after separation.” The

RO again denied the claim based on the lack of evidence linking the shoulder to his service. The RO did not address Mr. Smith’s lay testimony or credibility.  

The Board denied service connection, finding that the veteran’s statements “were not credible” based on the absence of evidence in the SMRs and post-service medical records. The Board stated that even if the alleged injury had occurred, Mr. Smith’s statements regarding “chronic and recurring symptoms during and after service was not credible.”  

On appeal to the Court, the veteran argued that he relied on the Board’s prior favorable credibility determinations “to his detriment” and that by the time he was notified of the Board’s adverse credibility determination, it was too late to respond with additional evidence because the Court cannot consider evidence that was not before the Board. Mr. Smith argued that this violated both fair process and due process. The Court agreed “that the Board violated his right to a fair process,” and so declined to address the Constitutional due process question.  

The Court discussed the “nonadversarial claims system” and the case law establishing “that the principle of fair process applies throughout the process of evidentiary development.” The Court framed the issue in this appeal as “whether fair process requires notice and an opportunity to respond when the Board, in its role as de novo fact finder, purports to reverse its prior characterization, in non-final Board remand decisions, that evidence is credible or otherwise satisfactory…”  

The Court held that “fair process requires that VA not give claimants … the impression that it has made factual determinations upon which they can rely,” adding that “when VA’s actions reasonably—but mistakenly—lead a claimant to conclude that a factual matter has been resolved favorably, the claimant has not properly received notification concerning the information or evidence necessary to substantiate the claim, lacks a meaningful opportunity to respond, and is denied fair process.” Because the Board in this case previously found Mr. Smith’s statements credible, fair process required the Board to give him notice of its proposed adverse credibility determination and to give him an opportunity to respond.

The Court also addressed the adequacy of the VA medical opinions, noting the examiner stated that Mr. Smith’s statements were credible, but added that there was “no evidence of residuals within one year” of his separation from service. The Court stated that “contrary to the Bard’s express instructions, the medical examiner did not consider Mr. Smith’s lay statements as true.” The Court remanded the appeal to allow Mr. Smith an opportunity to respond to the Board’s credibility determination and for the Board to consider the need for a new medical opinion that could possibly inform its “credibility findings.”  

George: 38 C.F.R. § 3.156(c) in the context of CUE

George v. Wilkie, docket no. 16-1221 (March 26, 2020) 

HELD: Under 38 C.F.R. § 3.156(c), VA is required to reconsider a previously denied claim when it receives relevant service records that were not of record at the time of the prior decision – and that “reconsideration” requires some form of evidentiary development. The Court does not have jurisdiction over a CUE argument that was not raised to the Board.

SUMMARY: Mr. George first attempted to obtain service connection for PTSD in 1997. The RO denied the claim and he did not appeal. In 2003, he attempted to reopen his claim. After a series of Board remands, the RO obtained service records that confirmed his claimed stressor and granted service connection, effective 2003. He appealed for an earlier effective date under 38 C.F.R. § 3.156(c) and this issue was remanded by the Court in 2012. In 2013, the Board sent the appeal back to the RO to obtain a retrospective medical opinion to determine when his PTSD first manifested. The RO obtained the opinion and denied an earlier effective date. In 2014, the Board affirmed the denial and Mr. George did not appeal that decision.

In 2015, Mr. George filed a motion to revise the Board’s 2014 decision on the basis of clear and unmistakable error (CUE), arguing that the Board misapplied § 3.156(c). The Board determined that its prior decision did not contain CUE and the Court affirmed that decision. The Federal Circuit remanded the appeal back to the CAVC to determine whether one of the specific CUE allegations was distinct from the CUE allegations that were raised to the Board. If so, the Court would not have jurisdiction over that specific CUE allegation.

At the outset of this opinion, the Court emphasized that its resolution of the § 3.156(c) error “is largely dictated by the fact that we consider that issue through the prism of CUE.” Had Mr. George appealed the Board’s 2014 decision to the Court, then the Court’s review would have been a direct appeal and would not have been subject to the higher standard of CUE.

The first argument the Court addressed was regarding the Board’s treatment of the veteran’s lay statements. The Court held that the 2015 Board did not err in finding that there was no CUE in the 2014 Board’s treatment of the veteran’s lay statements. The Court acknowledged the appellant’s argument that his lay statements should have triggered VA’s duty to assist – but found that this was not CUE because a duty-to-assist violation cannot ever be CUE.

Regarding the Board’s application of § 3.156(c), the Court found that this argument could be viewed two ways: (1) “that the 2015 Board misunderstood how § 3.156(c) operates” or (2) “that the 2014 Board decision contained CUE because it misapplied § 3.156(c) in terms of what type of reconsideration was necessary.” The Court rejected the first argument and determined that it lacked jurisdiction over the second.

The Court discussed the relevant law surrounding § 3.156(c), stating that “reconsideration” under § 3.156(c)(1) requires some development of evidence, citing Vigil v. Peake, 22 Vet.App. 63, 66-67 (2008). The Court held that the 2015 Board “applied the correct legal principles under § 3.156(c) when it reviewed the 2014 decision” because it noted that the earliest possible effective date for the grant of benefits would be 1997 and discussed the development performed by the RO after it received the service records – specifically, obtaining a retrospective medical opinion and considering additional evidence.

As for the second “view” of the appellant’s argument – that the 2014 Board decision was CUE because the Board at that time misapplied § 3.156(c) when it failed to properly reconsider his claim – the Court held that it lacked jurisdiction over this argument because it was not specifically raised to the 2015 Board. The Court found that the appellant had made very specific allegations of error in its 2015 motion to revise based on CUE – as CUE requires – and that to allow him to “broaden” his “CUE assertion before the Court to encompass a general challenge to the application of a particular regulation … would render the specificity requirement of a CUE motion essentially meaningless.” The Court noted that this is “especially true in this matter, where appellant hs been represented by the same counsel throughout this appeal.” The Court dismissed the appeal “to the extent appellant has raised this argument.”

Judge Greenberg dissented “simply because the factual circumstances of this case warrant a more equitable result.”

Webb: Can a veteran get disability compensation for mental health symptoms absent a diagnosis that conforms with the DSM?

Webb v. Wilkie, docket no. 18-0966 (March 26, 2020)

HELD: Because the Court found that this case “presents factual disputes that should be resolved by the Board in the first instance,” which may ultimately moot the panel question, the Court declined to address whether a veteran can establish entitlement to disability benefits for symptoms of a mental health condition in the absence of a confirmed dignosis that conforms with the DSM.

SUMMARY: Veteran filed a claim for disability benefits for PTSD. He underwent several VA examinations that described mental health symptoms, but found that he did not have a diagnosis that conformed with the Diagnostic and Statistical Manual of Mental Disorders (DSM). His representative raised several arguments regarding the adequacy of the medical opinions, but the RO and the Board denied his claim based on the lack of a confirmed diagnosis.

At the Court, Mr. Webb argued that the Board “erred by failing to consider whether his lay statements are evidence of a psychiatric disability other than PTSD.” He asserted that his “symptoms caused functional impairment and … constitute a ‘current disability’ for purposes of establishing entitlement to disability compensation,” citing Saunders v. Wilkie, 886 F.23d 1356 (Fed. Cir. 2018).

The Secretary argued that “Saunders is limited to the facts of that case—that pain alone, absent a diagnosis, may be compensated if it causes functional loss.”

Unfortunately, the Court did not address this important question because it found that “the Board did not make any explicit findings regarding the adequacy of [the VA] examinations or explain which examinations it relied on to deny the appellant’s claim and, to the extent that it implicitly found either or both examinations adequate, its reasons are not readily apparent.” Because the Board did not make these “necessary factual findings in the first instance,” the Court declined to address the question that was the reason this case was sent to a panel.

Miller: Appropriate remedy when examiner fails to address lay evidence & Board does not make credibility determination

Miller v. Wilkie, docket no. 18-2796 (January 16, 2020)

HELD: “[W]hen the examiner fails to address the veteran’s lay evidence, and the Board fails to find the veteran not credible or not competent to offer that lay evidence, the appropriate remedy is for VA to obtain a new examination.”   

SUMMARY: Veteran sought service connection for multiple conditions and submitted statements regarding details about his ongoing symptoms. VA denied his claims and the veteran appealed. He submitted additional statements regarding his symptoms and the Board remanded for another medical opinion. The medical examiner provided negative opinions, but did not acknowledge any of the veteran’s statements. The Board found that VA satisfied its duty to assist because the examinations were adequate and denied the claims. The veteran appealed to the CAVC. 

The issue before the Court was to determine “the proper remedy when a VA medical examiner fails to address the veteran’s reports of his medical history and symptoms and the Board does not address the credibility of those statements or otherwise find the veteran not credible.” The Court first reviewed the law regarding what makes a medical examination adequate, which “includes addressing a veteran’s reports of symptoms and medical history.” In Barr v. Nicholson, 21 Vet.App. 303 (2007), the Court remanded for the Board to make a credibility determination – even though it had found the medical examination that the Board relied on to be inadequate. In McKinney v. McDonald, 28 Vet.App. 15 (2016), the Court remanded for a new medical examination because the examiner did not address the veteran’s testimony – even though the Court also noted that the Board did not made a credibility determination. 

The parties agreed that the Board decision should be remanded – but did not agree about why. The Secretary wanted the decision to be remanded because the Board failed to make a credibility determination and address the veteran’s lay statements. Mr. Miller wanted the Court to reverse the Board’s duty-to-assist determination and order the Board on remand to obtain a new medical examination. The Court noted that the Secretary’s argument for remand was supported by Barr – whereas the veteran’s argument was supported by McKinney. 

The Court distinguished these two cases. The central issue in Barr was whether the veteran was competent to report his claimed condition (varicose veins) – and because the Board found that he was not competent, it did not even reach the credibility issue. In McKinney, the Court stated that “nothing stopped the Board from reaching credibility” – so the Court ordered the Board to obtain a new examination because “[t]here was nothing for the Board to do about the veteran’s reports.” The Court concluded, in McKinney, that “because the examiner did not provide a clear rationale for her opinion or consider relevant evidence in formulating her opinion, the Court holds that the Board erred in relying on that opinion to deny Mr. McKinney’s claim.” 

The Court synthesized these two cases “to say that an examiner must address the veteran’s relevant statements and, if the examiner fails to address the veteran’s reports of his or her medical history and the Board is silent about the credibility of the veteran’s lay statements, the Court will order a new examination absent an indication that the Board did not reach credibility.” In other words, when reviewing a Board decision that relies “on a medical opinion that does not address the veteran’s own report of symptoms,” the Court “will order a new examination if the Board never impugned the veteran’s credibility.” 

The Court agreed with the veteran that “the Board’s credibility determination can benefit from information obtained in a medical opinion,” noting its prior holding that “the Board should consider whether a favorable medical opinion corroborates the veteran’s assertions of an in-service injury.” (citing Washington v. Nicholson, 19 Vet.App. 362, 369 (2005). The Court also discussed Kahana v. Shinseki, 24 Vet.App. 428, 435 (2011), in which the Court “suggested questions to the Board that would have led to a medical opinion that could help the Board determine whether the veteran’s reports were plausible.” Although credibility determinations must be made by the Board, the Court recognized “the useful role that a medical examiner can play in helping the Board evaluate the credibility of the veteran’s reports.” The Court thus held: 

The examiner must address the veteran’s lay statements to provide the Board with an adequate medical opinion. And absent an indication that the Board found that lay evidence not credible, or had a reason not to address its credibility … we will conclude that the Board found the lay evidence credible and order a new examination that addresses this evidence.  

The Court further determined that “[w]hen the Board has made its decision without finding that the veteran is not competent to report symptoms and nothing suggests that the Board failed to review the evidence at issue, we may reasonably conclude that it implicitly found the veteran credible.” 

The Court held that “where the examiner failed to address the veteran’s lay evidence and the Board fails to find the veteran not credible or not competent to offer that lay evidence, the proper remedy is for VA to obtain a new examination.” 

Shealey: EAJA, discharged attorneys

Shealey v. Wilkie, docket no. 2019-1057 (January 6, 2020)

HELD: Discharged attorneys lacked standing to seek fees under the EAJA

SUMMARY: Veteran hired legal aid organization to represent him in his appeal to the CAVC. The two attorneys represented the veteran for three months and learned, at the Rule 33 conference, that the Secretary planned to file a motion to dismiss the appeal. Based on the prospect of a dismissal, the attorneys advised the veteran to file a new claim. The veteran disagreed with their advice – and discharged the attorneys. He was represented by new counsel for the remainder of the appeal. The Court ultimately vacated and remanded the Board’s decision. There was no dispute that the veteran was a “prevailing party” in the appeal. 

The two prior attorneys then filed an application for fees under the Equal Access to Justice Act (EAJA) for the work they had done prior to their discharge. The government did not oppose the fee award – but the veteran did. The Court allowed the two attorneys to intervene – but then dismissed the EAJA application because it determined that they lacked standing to seek fees under the EAJA. 

The attorneys appealed to the Federal Circuit, which first found that the statutory “right” to fees under the EAJA is limited to the “prevailing party” and the prevailing party is the veteran, not the attorney. The Court next found that they did not have a right to assignment of the veteran’s EAJA claim under their fee agreement – because their claim for fees is against the government and the law prohibits such assignment unless the government has waived its objection to the assignment. Finally, the Court rejected the notion that the attorneys had third-party standing because even though the attorneys did have a “relationship” to the claimant (the veteran), the veteran was free to assert the fee claim on his own and his interest in settling the fee claim (or not pursuing it at all) would be impaired if the attorneys had standing. The Court affirmed the CAVC’s decision. 

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

Jones: VA's duty to obtain VA medical records

Jones v. Wilkie, 918 F.3d 922 (Mar. 13, 2019)

HELD: VA’s duty to assist does not require a veteran “to show that a particular record exists or that such a record would independently prove his or her claim.” VA must obtain VA medical records unless “no reasonable possibility exists that such assistance would aid in substantiating the claim.”

 SUMMARY: Mr. Jones was diagnosed with PTSD by a VA psychiatrist in 2000. He formally applied for VA disability benefits in 2011. In 2012, he was granted service connection, rated 100% disabled. He appealed for an earlier effective date, arguing that his medical records show treatment beginning in 2000 and stating that he did not file a claim until 11 years later “because the doctors did not explain to [him] what PTSD really was back in 2000.” The Board acknowledged the existence of VA medical records from 2000, but found that they were not an informal claim for benefits. The CAVC affirmed. The Court noted that the veteran’s VA medical records from 2000 and 2001 were not in the record – but found that since he stated that he did not file a claim until 2011, the chances of finding an informal claim in the VA medical records “is extremely low.” 

The Federal Circuit held that the CAVC erred “in requiring an impermissibly high threshold to trigger the VA’s duty to assist” because “it actually required Mr. Jones to show more than what the statute requires.” Under 38 U.S.C. § 5103A, VA cannot avoid its “duty to assist in obtaining records based on a mere belief that the likelihood of finding a record substantiating a veteran’s claim is ‘low’ or ‘extremely low.’” Instead, “the applicable standard is whether ‘no reasonable possibility exists that such assistance would aid in substantiating the claim.” 

The Court reiterated its prior holding in Sullivan v. McDonald, 815 F.3d 786, 790-91 (Fed. Cir. 2016) that “VA may not consider relevance when determining whether to assist in obtaining VA medical records.” In other words, VA medical records are per se relevant and VA must obtain them unless “no reasonable possibility exists” that the records could help. The Federal Circuit remanded for the CAVC to return the appeal to the Board and, in turn, to the RO to obtain all of Mr. Jones’s VA medical records. 

FULL DECISION

Young: VA can revise decision based on CUE while appeal is pending

Young v. Wilkie, 31 Vet.App. 51 (Mar. 11, 2019)

HELD: In representing a veteran in an appeal challenging a debt owed to VA, the representative is only entitled to a fee based on the amount of the invalidated debt that was actually recouped – not on the entire amount of the invalidated debt. 

SUMMARY: Robert Young was granted service connection in a June 2012 decision. He appealed for an earlier effective date for the assignment of a higher rating. On review, a DRO determined that the June 2012 assignment of the higher rating was CUE and proposed to reduce the rating. In June 2013, the RO reduced the rating, and the veteran appealed. 

At the CAVC, he argued that VA could not revise the June 2012 rating based on CUE because the CUE regulation only allows for revisions of “final” decisions – and because he had appealed that decision, it was not yet final and, therefore, could not be subject to revision based on CUE. The CAVC noted that 38 C.F.R. § 3.105(a) says that “final and binding” decisions are subject to CUE – and that § 3.104 defines final as “the end of any internal review of a matter by an AOJ.” This regulation also says that a rating decision is an example of a “final and binding” determination.

The Court also found that “it is far more efficient – and beneficial to claimants – to allow VA to correct obvious errors at the time of the identification of the error than to force it to wait until a claim is fully adjudicated and then pursue overpayments in the form of recoupment.”  

FULL DECISION

Speigner: EAJA rate is based on teleworking attorney's residence

Speigner v. Wilkie, docket no. 16-2811(E) (Feb. 28, 2019)

HELD: “[W]here a teleworking attorney has worked on a case from his or her residence, the CPI-U should correspond to the location of the attorney's residence” - and not to the location of the main office “where overhead costs are incurred.”

FULL DECISION

Gumpenberger: Fee on recouped debt; 38 U.S.C. § 5904(d)(1)

Gumpenberger v. Wilkie, 31 Vet.App, 33 (Feb. 7, 2019) 

HELD: In representing a veteran in an appeal challenging a debt owed to VA, the representative is only entitled to a fee based on the amount of the invalidated debt that was actually recouped – not on the entire amount of the invalidated debt.

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.]

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.”

FULL DECISION

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.

FULL DECISION

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 Wagner, Jordan, 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

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

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

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

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

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

FULL DECISION

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. Wilkie, docket 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