Kisor: Supreme Court grants certiorari

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

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

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

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

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

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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

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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

Martin: Petition for writ of mandamus; TRAC standard

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Martin v. O’Rourke, 891 F.3d 1338 (June 7, 2018) 

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

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

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

The TRAC framework requires courts to consider six factors: 

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

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

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

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

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

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

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

FULL DECISION

Acree: Withdrawal of appeal during Board hearing

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Acree v. O’Rourke, 891 F.3d 1009 (June 4, 2018)

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

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

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

FULL DECISION

Blue: EAJA, prevailing party status

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Blue v. Wilkie, 30 Vet.App. 61 (May 16, 2018)

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

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

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

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

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

FULL DECISION

O'Brien: Dependency, Legal Guardianship

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O’Brien v. Wilkie, 16-2651 (May 4, 2018)

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

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

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

FULL DECISION

Burris: Education benefits, equitable relief

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Burris v. Wilkie, 888 F.3d 1352 (May 2, 2018)

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

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

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

FULL DECISION

Saunders: Pain is a disability subject to compensation

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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

Bly: EAJA, timeliness

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Bly v. Shulkin, 883 F.3d 1374 (Mar. 2, 2018)

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

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

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

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

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

FULL DECISION

Golden: GAF scores, rating psychiatric conditions

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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

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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

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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

George: 38 C.F.R. § 3.156(c) & CUE

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George v. Shulkin, 29 Vet.App. 199 (Feb. 5, 2018)

HELD: Upon receiving new service records, VA must “reconsider” a claimant’s original claim even if service connection has already been granted with a later effective date. However, “given the imprecise definition of ‘reconsider’ under § 3.156(c)(1),” the Court in this case did not find CUE in the Board’s determination that a proper reconsideration occurred. 

SUMMARY: In 1998, the RO denied Mr. George’s claim for service connection for PTSD because there was no confirmed PTSD diagnosis and no in-service stressor. In 2003, the veteran requested reopening. VA obtained service records, confirming the in-service stressor, and granted service connection, effective 2003. Mr. George appealed, arguing that 1998 denial should be reconsidered under 38 C.F.R. § 3.156(c). 

In 2012, on appeal to the CAVC, the parties agreed to remand for Board to consider the applicability of § 3.156(c). The Board subsequently remands for a retrospective medical opinion to determine when Mr. George’s PTSD first manifested. The C&P examiner opined that the condition first manifested in 2003, based on the 2003 C&P examiner’s report. 

In 2014, the Board denies entitlement to an earlier effective date, noting that the grant could go back to 1997, but that the first evidence of a PTSD diagnosis was not until 2003. The veteran did not appeal this decision. 

In 2015, Mr. George filed a motion to revise the 2014 decision on the basis of clear and unmistakable error (CUE), arguing that the Board misapplied § 3.156(c). The Board determined that there was no CUE in the 2014 decision because the medical evidence did not support a PTSD diagnosis prior to 2003. 

On appeal to the CAVC, the veteran argued that the Board erred in determining that the 2014 decision was not CUE because the Board did not “reconsider” his claim under § 3.156(c)(1), but instead only reviewed the proper effective date under § 3.156(c)(3). He argued that the finality of the original 1997 decision “‘had been undone’ by receipt of new service treatment records, and because the RO never engaged in a full readjudication, the Board erred when it found no CUE.” 

At the very beginning of its opinion, the Court emphasized that “our resolution of the claimed error here under § 3.156(c) is largely dictated by the fact that we consider that matter through the prism of CUE.” (Advocacy note: This point must be emphasized. Had the veteran directly appealed the effective date assigned in the 2003 decision, this issue would not have been subjected to the heightened CUE standard.)

The CAVC discussed § 3.156(c) and found that “upon receiving official service department records in 2007, VA had a duty to ‘reconsider’ the appellant’s 1997 claim for service connection for PTSD, despite the fact that service connection for PTSD was granted in 2007 with an effective date of 2003.” The Court noted that “what would satisfy the reconsideration required is a gray area under existing law,” and noted that “§ 3.156(c) is about more than effective dates; it’s also about development of the claim in at least some respect.” Nevertheless, the Court determined that the Board “applied the correct legal principles under § 3.156(c) when it reviewed the 2014 decision.” 

Turning to the question of whether the 2015 Board properly determined that there was no CUE in the 2014 decision, the Court stated: “given the imprecise definition of ‘reconsider’ under § 3.156(c)(1), the Board’s determination that a proper reconsideration occurred based on the gathering of new evidence and the reweighing of old evidence, is not arbitrary and capricious under the deferential CUE standard.” 

In a footnote, the Court acknowledged the appellant’s argument that had the Board conducted a “‘full readjudication’ in 2014, his lay statements may have triggered VA’s duty to assist.” The Court stated that the duty-to-assist argument could have been raised on direct appeal, but noted that it is well established that a duty-to-assist violation cannot be CUE. 

FULL DECISION

Kisor: Petition for panel, en banc rehearing denied

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Kisor v. Shulkin, 880 F.3d 1378 (Jan. 31, 2018) (per curiam order)

SUMMARY: The majority of the en banc Court denied the petition for rehearing. However, three judges dissented on the basis that the original panel decision was predicated on Auer deference, “despite the Supreme Court’s repeated reminder that statutes concerning veterans are to be construed liberally in favor of the veteran.” 

FULL DECISION 

Rosinski: Standing to Challenge VA Policy Re: Access to Preliminary Decisions

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Rosinski v. Shulkin, 29 Vet.App. 183 (Jan. 26, 2018) (per curiam order)

HELD: Attorney lacks standing to challenge VA policy limiting access to preliminary VA rating decisions to VSOs.

SUMMARY: VA has a policy that allows VSOs access to preliminary rating decisions before they are promulgated, which enables VSOs to identify any clear errors before the decisions are issued. VA limits this access to VSOs and does not provide attorneys who represent veterans with access to these preliminary decisions. An attorney challenged this policy as impeding his ability to provide competent representation, violating his rights as an accredited representative, and denying his clients fair process. 

The Court held that the attorney lacked standing to challenge this policy because he did not establish that he suffered an injury (economic harm) as a result of the policy or demonstrate that the policy preventing him from representing his clients. Because the attorney lacked standing and did not show that he had asserted “a claim typical of a class,” the Court further denied the attorney’s motion for aggregate action. 

In a footnote, the Court stated that it did not hold that “attorneyscategorically lack standing to challenge VA’s policy, only that Mr. Rosinski has not demonstrated that he has standing on the facts of this case.” 

In a concurring opinion, Chief Judge Davis wrote that the “increased involvement of attorneys in the adjudication process . . . suggests that the disparate treatment of VSO representatives and attorneys . . . may no longer be rationally justified.” 

FULL DECISION

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

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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

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

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Foreman v. Shulkin, 29 Vet.App. 155 (Jan. 22, 2018)

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

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

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

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

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

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

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

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

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

FULL DECISION