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.

Walsh: Obesity as "intermediate step"

Walsh v. Wilkie, docket no. 18-0495 (February 24, 2020)

HELD: Obesity may be an “intermediate step” between a service-connected condition and a nonservice-connected condition when the service-connected condition aggravates the obesity. The service-connected condition need not cause the obesity.

SUMMARY: Veteran was service connected for bilateral knee, hip, and back conditions and sought service connection on a secondary basis for hypertension and sleep apnea. While her appeal was pending, VA issued a General Counsel Precedent Opinion (GC Prec. Op. 1-2017) stating that while obesity is not a disability for VA compensation purposes, obesity can serve as an “intermediate step” between a service-connected and nonservice-connected condition under 38 C.F.R. § 3.310(a). VA then sought a medical opinion to determine (1) whether the veteran’s service-connected conditions “caused” her to gain weight or become obese and, (2) if so, whether the obesity was a “substantial factor” in causing her hypertension or sleep apnea, and, (3) if so, whether those conditions would not have occurred but for the obesity that was “caused” by the service-connected condition. The examiner provided a negative opinion, focusing on the causation and “but-for” factors – and the Board relied on the opinion to deny the claim. 

On appeal to the Court, the veteran argued that the GC Opinion requires VA to determine whether the obesity was caused or aggravated by the service-connected conditions. The Court agreed, noting that the GC Opinion does not mention aggravation. Still, the Court found that “the principles contained in § 3.310 make any distinction in G.C. Opinion 1-2017 between causation and aggravation legally untenable.” 

The Court first noted that GC Opinions are binding on the Board, but not the Court. Turning to the language of the regulation: section 3.310(a) states that a “disability which is proximately due to or the result of a service-connected disease or injury shall be service connected.” Section 3.310(b) states: “Any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected.” The Court found that the “operative language in these provisions is essentially identical” because “[b]oth discus something that ‘is proximately due to or the result of a service-connected disease or injury’ and advise that this ‘shall [or will] be service connected.’” The Court found that “[n]othing in this language justifies a distinction between causation and aggravation in the first step of the analysis in G.C. Opinion 1-2017.” 

The Court thus held that “there is no permissible basis in the relevant regulation for concluding that obesity may be an ‘intermediate step’ in a secondary-service-connection analysis when service-connected disability causes it, but not when service-connected disability aggravates it.” Regarding the absence of the word “aggravation” in the GG Opinion, the Court found that the opinion “does not purport to prohibit inquiry into whether a service-connected disability aggravates a veteran’s obesity” since “this would contradict VA’s aggravation regulation.” The Court clarified that “[d]espite the G.C. opinion’s silence regarding aggravation, the Board, in accordance with § 3.310(b), must consider aggravation in this context when the theory is explicitly raised by the veteran or reasonably raised by the record.” The Court remanded for the Board to obtain a new medical opinion that addresses whether the veteran’s service-connected conditions caused or aggravated her weight gain. 

Langdon: Rating thoracic/lumbar spine conditions

Langdon v. Wilkie, docket no. 18-0520 (February 5, 2020)

HELD: “[T]he functional impairment caused by appellant’s non-service-connected lumbar spine disability cannot be considered when rating his thoracic spine disability where there is medical evidence distinguishing between impairments caused by the thoracic and lumbar spine disabilities.”  

SUMMARY: Veteran filed a claim for service connection for thoracic and lumbar spine disabilities and was service-connected for the thoracic spine condition, rated 0%. He appealed and the Board remanded for the RO to address the lumbar spine disability, noting that the thoracic and lumbar spine are evaluated together in VA’s rating schedule. 

The RO obtained a medical opinion that concluded that his lumbar spine disability was not related to service, that there was no functional impairment due to the thoracic spine disability, and that all the veteran’s current functional impairment (decreased range of motion) was due to the nonservice-connected lumbar spine disability. The Board ultimately granted a 10% rating for the thoracic spine disability under 38 C.F.R. §§ 4.45 and 4.59, but denied a higher rating. 

On appeal to the Court, the veteran argued that the Board incorrectly applied 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5237 because that DC considers the thoracic and lumbar spine as a single unit. 

DC 5237 rates disabilities of the thoracic and lumbar spine based on range of motion of the thoracolumbar spine – and describes those ranges using the word “thoracolumbar.” The Court noted this language, but relied on the first regulation in VA’s rating schedule, 38 C.F.R. § 4.1, which makes it “clear that the rating schedule is meant to compensate only service-connected disabilities.” The Court thus rejected the veteran’s argument because it “would mean that he would be compensated for his non-service-connected lumbar spine disability simply because he happens to have a service-connected thoracic spine condition.” The Court found that while DC 5237 “calls for the thoracic and lumbar spines generally to be rated as a unit … it does not mandate that they be rated together.” 

The Court emphasized that the regulation combines the thoracic and lumbar spine for rating purposes – and that “[t]he ‘logically up-stream element of service-connectedness’ is distinct from the ‘logically downstream element of compensation level.’” (quoting Grantham v. Brown 114 F.3d 1156, 1158-59 (Fed. Cir. 1997)). Because VA denied service connection for the veteran’s lumbar spine disability, it was not required to consider the lumbar spine when rating his service-connected thoracic spine disability. 

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.” 

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

Skaar: Limited remand; class action certification

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

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

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

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

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

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

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

FULL DECISION

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

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

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

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

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

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

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

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

FULL DECISION

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

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

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

George: Presumption of Soundness, CUE, Retroactivity

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

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

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

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

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

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

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

Finally, the Court discussed the Patrick line of primarily nonprecedential cases that addressed 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

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

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 whole…to function under the ordinary conditions of daily life including employment” (38 C.F.R. § 4.10).

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

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

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

 FULL DECISION

Porriello: CUE, res judicata

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

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

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

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

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

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

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

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

FULL DECISION

Golden: GAF scores, rating psychiatric conditions

Golden, Jr. v. Shulkin, 29 Vet.App. 221 (Feb. 23, 2018)

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

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

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

FULL DECISION

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

Turner v. Shulkin, 29 Vet.App. 207 (Feb. 8, 2018)

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

FULL DECISION

Harvey: Attorney serving as expert witness

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

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

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

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

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

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

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

FULL DECISION

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

Marcelino v. Shulkin, 29 Vet.App. 155 (Jan. 23, 2018)

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

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

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

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

FULL DECISION