Mathews: REASONS OR BASES; COMPLIANCE WITH PRIOR REMAND

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Mathews v. McDonald, docket no. 15-1787 (Oct. 14, 2016)

HELD: The Board cannot “sub silentio incorporate its reasons or bases from a prior remand order into a later decision”; the Board must “provide or reiterate reasons or bases for unfavorable findings made in prior remand orders – assuming those reasons or bases still apply, given that new evidence or argument may have been submitted in the interim . . . – so that they become part of a final Board decision and subject to appellate review.”

SUMMARY: Mr. Mathews served in the U.S. Navy from 1966 to 1970, including combat service in Vietnam. In 2002, he was treated for a neck “lesion” that was subsequently the subject of various diagnoses, including metastatic carcinoma and melanoma, among others. Two private physicians stated that this condition “could be” related to his exposure to Agent Orange. In June 2003, he filed a claim for “neck cancer.” The RO denied because the evidence did not show that he had a type of cancer on VA’s presumptive list. He appealed the denial, and submitted additional evidence regarding his various diagnoses. In 2004, he appealed to the Board.

In 2007, following a hearing, the Board remanded his appeal, and directed the Appeals Management Center to have his claims file and a tissue sample reviewed by a “panel of three oncologists” who could provide “consensus answers” to the complicated medical questions of the case.

The AMC was unable to find a panel of three oncologists, but was apparently able to have the Board’s remand order “amended” so that they could obtain an opinion by one oncologist. A private physician from the El Paso Cancer Treatment Center provided a negative nexus opinion and the AMC continued its denial in a Supplemental Statement of the Case (SSOC).

In December 2011, the Board remanded again because VA had not obtained authorization to release a tissue sample and because the medical opinion was inadequate. In this remand order, the Board determined that Mr. Mathews was “not prejudiced” by having a medical opinion provided by only one oncologist, instead of three, because the oncologist was qualified to provide the opinion.

In 2013, VA obtained a new negative medical opinion from a registered nurse. Mr. Mathews challenged the adequacy of this opinion, and the Board remanded this appeal for a third time.

In January 2014, a VA staff physician in the hematology/oncology section provided a negative medical opinion. In June 2014, the Board remanded for a fourth time for an addendum opinion, which was provided the following October. The AMC continued the denial in yet another SSOC.

In January 2015, the Board issued the decision on appeal, finding that the AMC had substantially complied with its prior remand orders and continued to deny service connection.

On appeal to the Court, Mr. Mathews argued that the Board provided an inadequate explanation for its determination that the AMC had substantially complied with its prior remand order because the Board did not explain why an opinion from a panel of three oncologists was no longer needed. The Secretary argued that the Board was not required to address that question in the recent decision because it had explained in its December 2011 remand order that there was no prejudice to the veteran by having an opinion provided by only one oncologist. Mr. Mathews argued that “there is no legal authority that permits the Board to sub silentio incorporate its reasons or bases from a prior remand order into a later decision.” The Court agree with Mr. Mathews, noting that “[m]ore than nine years and three Board remands later, VA has still not obtained the ordered opinion from a three-oncologist panel, and the Board in its most recent decision did not explain why such an opinion was no longer necessary.”

Without an explanation from the Board, the Court found that it could not “discern the precise basis for the Board’s finding that the AMC had substantially complied with the May 2007 remand order,” and thus held that “the Board is not permitted to sub silentio incorporate its reasons or bases from a prior remand order into a later decision.”

To support this decision, the Court noted that “all of the Board’s findings in the non-final remand orders are insulated from judicial review because remand orders are not appealable to this Court.” The Court added that it has never stated that “findings in Board remand orders that are unfavorable to the appellant are final and binding,” emphasizing that such a conclusion “would be antithetical to the pro-claimant veterans benefits system.” The Court reiterated that the Board must “provide or reiterate reasons or bases for unfavorable findings made in prior remand orders – assuming those reasons or bases still apply, given that new evidence or argument may have been submitted in the interim . . . – so that they become part of a final Board decision and subject to appellate review.”

The Court further determined that the Board’s reasons-or-bases error in this case prejudiced the appellant because “it must be presumed that the Board in May 2007 determined that, due to the medical complexity of the issues involved, a medical opinion from a panel of three competent oncologists was required to decide the claim.” Because the Board did not explain how “having one competent oncologist assess the veteran’s tumor could satisfy the Board’s May 2007 remand” that called for a “consensus” on the issue by three competent oncologists, the Court found that the Board’s error was not harmless. The Court remanded for further development, if necessary, and readjudication.

FULL DECISION

Hill: ACDUTRA & AGGRAVATION

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Hill v. McDonald, docket no. 14-1811 (Oct. 7, 2016)

HELD: Once a claimant has established “veteran” status for a disability incurred or aggravated during a period of ACDUTRA, that status applies to all other disabilities claimed to have been incurred or aggravated during that period – and the veteran is entitled to the presumption of aggravation for those claims, even if there is no entrance examination of record. 

SUMMARY: Mr. Hill had several periods of Reserve and National Guard duty from 1980 to 2002. He also had one period of active duty for training (ACDUTRA) from June 7 to 21, 1997. His service medical records (SMRs) and private records show psychiatric treatment prior to June 1997, and private records also show treatment for a back condition related to a 1994 work injury.

During his 1997 period of ACDUTRA, Mr. Hill’s unit was performing field exercises, when a tree he was standing next to was struck by lightning. He fell and sought medical treatment for knee and back pain. The National Guard investigation report of the lightning strike classified his knee injury as incurred in the line of duty, and his back pain as “in line of duty-[existed prior to service]-aggravation.” The investigator stated that “the force of being thrown to the ground may have aggravated [his back] condition.” The record contains evidence of Mr. Hill’s subsequent reports that his physical and psychiatric symptoms worsened after the lightning strike.

In 2002, he filed a claim for service-connected disability benefits for his back, knee, and memory loss. The Regional Office (RO) granted service connection for the right knee, but denied his back and memory loss claims. He did not appeal that decision and it became final.

In 2008, he attempted to reopen his claims for a back condition and memory loss with PTSD. The RO denied the PTSD claim and determined that new and material evidence had not been submitted to reopen the back claim. Mr. Hill appealed this decision, and submitted internet articles about the effects of lightning strikes. The RO issued a Statement of the Case, continuing to deny the PTSD claim and reaffirming that new and material evidence had not been submitted to reopen his back claim. Mr. Hill perfected his appeal with a VA Form 9 and requested a hearing. He testified that he had been thrown 25 feet as a result of the lightning strike and hurt his knee and back.

In April 2014, the Board determined that veteran status during his period of ACDUTRA had been established for these claims because of his service-connected knee disability. However, the Board determined that new and material evidence had not been submitted to reopen his back claim, rejecting his hearing testimony as “patently incredible.” The Board denied service connection for the psychiatric claim based on a 2010 C&P opinion.

On appeal, the Court addressed the issues of (1) whether the establishment of veteran status during a period of ACDUTRA for one condition extends to other conditions incurred during that period; (2) whether, once veteran status for a period of ACDUTRA is established, the veteran is entitled to the presumption of aggravation with respect to any additional pre-existing conditions; and (3) whether the presumption of aggravation requires an enlistment examination to determine the pre-service severity of a pre-existing condition claimed to have been aggravated during a period of ACDUTRA.

The Court first addressed the issue of “veteran status” and determined, based on the plain language of the relevant statutes, that “once an individual establishes that any disability was incurred during a period of ACDUTRA, he has established that the particular period of ACDUTRA constitutes ‘active, military, naval or air service.’” The Court thus held that “once a claimant has achieved veteran status for a single disability incurred or aggravated during a period of ACDUTRA, that status applies to all disabilities claimed to have been incurred or aggravated during that period of ACDUTRA.”

The Court further held that a veteran who has established veteran status for one condition during a period of ACDUTRA “is now a veteran for the purposes of all other claims based on that same period of ACDUTRA” and is thus entitled to the presumption of aggravation for different, pre-existing conditions that worsened during that period.

With respect to the enlistment examination requirement, the Court first noted that in order to benefit from the presumption of aggravation, the evidence must first show that a condition was “noted” on the veteran’s enlistment examination. The Secretary conceded in this case that ACDUTRA veterans are generally not provided with the same routine examinations as regular military personnel are – and that the record will likely not contain an enlistment examination noting a pre-existing condition for these veterans. To answer the question of whether the presumption of aggravation requires an enlistment examination, the Court again looked to the statutory language, specifically 38 U.S.C. §§ 1111 and 1153.

The Court found that section 1153 “makes no reference whatsoever to an examination,” but that section 1111, the presumption of soundness statute, “makes explicit reference to an entrance examination.” In light of this, the Court determined that the statutory language was ambiguous. The Court then looked to VA’s implementing regulation, 38 C.F.R. § 3.306(a), but found that this “merely parrots section 1153” and that the Secretary’s interpretation was thus not due any deference. The Court concluded that, for the claimant who is already service connected for one condition incurred during a period of ACDUTRA and is attempting to establish service connection for a different, preexisting condition based on that same period, “no entrance examination is necessary where there is contemporaneous evidence of the baseline severity of the preexisting condition.” In other words, as long as the claimant submits evidence showing the severity of the pre-existing condition prior to the aggravation event during the period ofACDUTRA, as well as evidence of a permanent increase in disability during the period of ACDUTRA, that claimant can benefit from the statutory presumption of aggravation – even though there is no enlistment examination of record.

With respect to Mr. Hill’s back claim, the Court determined that the Board clearly erred in determining that his submissions and testimony were not new and material. Specifically, the Court found that one of the internet articles stated that a lightning strike might affect the musculoskeletal system – and that this article was “material to whether the lightning strike could have worsened the appellant’s preexisting back condition.” The Court also determined that the Board clearly erred in determining that Mr. Hill’s hearing testimony was “patently incredible,” finding that “the Board engaged in improper, pre-reopening weighing of the evidence, which is prohibited.” To support this, the Court cited Justus v. Principi, 3 Vet.App. 510, 513 (1992) (holding that, for purposes of reopening, “VA is required to presume the credibility of newly submitted evidence”). The Court directed the Board to reopen this issue on remand.

With respect to the psychiatric claim, the Court found that the Board provided an inadequate statement of reasons or bases for its reliance on a C&P examination as negative evidence – when that report appeared to include favorable findings. The Court directed the Board to obtain clarification or a new medical opinion for the psychiatric claim on remand.

FULL DECISION

Bly: EAJA & EQUITABLE TOLLING

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Bly v. McDonald, docket no. 15-0502(E) (Oct. 7, 2016), overruled, Bly v. Shulkin, docket no. 17-1287 (Fed. Cir. Mar. 2, 2018)

HELD: The 30-day appeal period to file an EAJA application is subject to equitable tolling, but the person seeking equitable tolling must show (1) that he has pursued his rights diligently and (2) that extraordinary circumstance prevented timely filing.  

SUMMARY: On January 5, 2016, the Court granted the parties’ joint motion for remand. In its order, the Court stated “this order is the mandate of the Court,” meaning that the Court’s judgment became “final.” On February 5, 2016 – 31 days after the Court’s order – Mr. Bly submitted his application for attorney fees under the Equal Access to Justice Act (EAJA). Because an EAJA application must be filed within 30 days of the Court’s final judgment, the Court ordered Mr. Bly to show cause as to why his application should not be dismissed.

Mr. Bly contended that the application was timely, and alternatively argued that the deadline should be equitably tolled. The Court sent this case to panel to determine whether equitable tolling applies to EAJA applications and, if so, what standard should be applied.

The parties agreed that equitable tolling applies to EAJA applications, but disagreed on the appropriate standard to apply to determine whether equitable tolling is warranted in these cases. Mr. Bly argued that the Court should adopt a standard in which it only asks “whether a veteran would be financially harmed without tolling and whether the Government would be prejudiced by tolling.” The Secretary asserted that the Court should apply the same standard as the general test for equitable tolling, which inquires as to “whether an extraordinary circumstance prevented the timely filing despite due diligence.”

The Court first determined that Mr. Bly’s EAJA application was untimely, rejecting his argument that “final judgment had not entered and he still had time to appeal.” The Court found this argument to be “incorrect as a matter of law,” since the EAJA statute defines “final judgment” to include “an order of settlement” and the Court’s rules provide that judgment is effective when the Court “order states that it constitutes the mandate of the Court.” The Court’s order, in Mr. Bly’s case, expressly stated that “this order is the mandate of the court.” U.S. Vet.App. R. 41(b). In addition to the EAJA statute and the Court’s own rules, the Court also pointed to its precedential caselaw stating that “an order granting a joint motion for remand . . . is final and not appealable.”

Next, the Court determined that “the doctrine of equitable tolling may be applied to the 30-day time limit for filing an EAJA application.” The Court rejected Mr. Bly’s arguments regarding the standard to apply, finding that applying his proposed standard “would essentially swallow the statutory rule that an EAJA application is due within 30 days of final judgment.” The Court explained that to base an equitable tolling determination on the question of whether a veteran would be financially harmed if the EAJA petition were dismissed, could apply to “virtually every case where an EAJA application is untimely filed.” The Court found that Mr. Bly had not shown extraordinary circumstance or due diligence to warrant equitable tolling.

Finally, Mr. Bly had also argued that dismissing his EAJA application would result in a potentially smaller retroactive award to the veteran, if the veteran is awarded benefits on remand. This is because any contingent attorney fee would have been offset dollar for dollar by the EAJA amount, resulting in a higher award for the veteran. The Court rejected this argument, noting that the Secretary and the Court both have the authority to review attorney fee agreements for reasonableness. The Court expressly directed the Secretary to consider the holding in this case when assessing the reasonableness of any potential attorney fees that result on remand.

Judge Greenberg concurred with the portion of the decision that held that the 30-day EAJA filing period is subject to equitable tolling, but dissented from the holding that equitable tolling was not warranted in this case. He emphasized the importance of encouraging lawyers to represent veterans and noted that the application was only one day late and there was “no evidence of prejudice to the Secretary as a result of that delay.” Judge Greenberg stated that “[p]enalizing an attorney for filing 1 day late where there is no prejudice to the Government, not only unnecessarily penalizes the veteran, but also may have chilling effects on worthy veterans obtaining adequate representation.”

FULL DECISION

PARALEGAL ACCESS TO VBMS

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Chisholm v. McDonald, docket no. 15-1594 (per curiam order) (Sept. 30, 2016)

HELD: The Court ordered the Secretary to issue a decision on an attorney’s request for paralegal access to VA’s electronic claims system (VBMS) on behalf of the law firm’s clients. 

SUMMARY: VA’s regulations allow representatives to access their clients’ VA claims files electronically via its Veterans Benefits Management System (VBMS). 38 C.F.R. § 1.600-.603. Attorney Robert Chisholm petitioned the Court for a writ of mandamus to compel VA to provide electronic access to paralegals under his supervision or, in the alternative, to compel VA to issue a decision on his request for electronic access by his paralegals.

The Court found that it had jurisdiction to order the Secretary to issue a decision, and granted the petition, in part, to do so. Because it had granted that portion of the request, the Court determined that Mr. Chisholm was not entitled to an order granting his paralegal staff access to their clients’ electronic records. 

FULL DECISION

WITHDRAWAL OF NOTICE OF DISAGREEMENT VIA TELEPHONE IS INVALID

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Warren v. McDonald, docket no. 15-0641 (Sept. 14, 2016)

HELD: An appellant or his/her representative may withdraw an appeal, but unless the withdrawal is on the record at a hearing, it must be in writing. A withdrawal “is only effective where withdrawal is explicit, unambiguous, and done with a full understanding of the consequences of such action on the part of the claimant.”

SUMMARY: Mr. Warren was denied service connection for sleep apnea in April 2009, and he appealed. The RO continued its denial in Statement of the Case. The RO then received a statement that it treated as a VA Form 9, in which the veteran stated that he was withdrawing his request for review by a Decision Review Officer and instead requesting a Board hearing. The veteran’s representative also submitted a request for a Board hearing.

In April 2010, a VA employee subsequently called the veteran and noted in a “Report of General Information” that she spoke with him over the phone and that he wanted to withdraw his sleep apnea appeal. A few days later, a Report of General Information, completed by a different VA employee, stated that the veteran called to state that he wanted a Board hearing. A few days later, the RO certified his appeal to the Board.

Later that month, on May 28, 2010, Mr. Warren’s representative submitted additional evidence “in support of the pending claim” for service connection for sleep apnea. The RO treated this as a new claim, requiring “new and material evidence” to reopen. Mr. Warren then underwent a Compensation and Pension examination – and the examiner provided a favorable medical nexus opinion. The RO awarded service connection for sleep apnea – assigning May 28, 2010 as the effective date. This decision was not appealed.

In the June 2013, Mr. Warren was afforded a Board hearing in which the presiding Board member characterized the issues to include service connection for sleep apnea. The veteran’s representative stated that the April 2010 Report of General Information mischaracterized Mr. Warren’s request. He clarified that he did not state that he wanted to withdraw his appeal; rather, he wanted to withdraw it from DRO review and proceed directly to a Board hearing.

In its November 2014 decision, the Board stated that the appeal arose from the April 2009 denial of service connection for sleep apnea – but that the April 2010 Report of General Information was a proper withdrawal of that appeal. The Board thus found that May 28, 2010 was the appropriate effective date for the award of service connection for sleep apnea.

On appeal to the Veterans Court, Mr. Warren argued that the Board failed to apply the correct legal standard in finding that he withdrew his appeal. The Secretary did not address this argument – but instead asserted that the Board improperly adjudicated a “freestanding earlier effective date issue” and that the proper remedy was for the Court to vacate the Board’s decision and dismiss the appeal.

The Court noted that the Board’s rules regarding withdrawal of appeals states that only an appellant or his/her representative may withdraw an appeal and that “[e]xcept for appeals withdrawn on the record at a hearing, appeal withdrawals must be in writing.” The Court added that a withdrawal “is only effective where withdrawal is explicit, unambiguous, and done with a full understanding of the consequences of such action on the part of the claimant.” The Court noted that in Mr. Warren’s case, the alleged withdrawal was conducted over the phone and that there was “considerable evidence that Mr. Warren did not intend to withdraw his 2008 sleep apnea claim when he called VA in April 2010,” but that he simply meant to withdraw his request for DRO review. The Court thus reversed the Board’s determination that Mr. Warren had withdrawn his appeal.

As for the issue on appeal, the Court determined that there were two claim streams in this case – (1) the 2008 claim for service connection for sleep apnea that resulted in the April 2009 denial and (2) the May 2010 “claim” that the RO treated as a request to reopen, based on its belief that Mr. Warren had withdrawn his appeal of the April 2009 denial.

The Board characterized the first claim as one for an earlier effective date – but the Court found that the Board did not have jurisdiction over this “claim” because it had not been adjudicated by the RO. The issue that had been appealed to the Board was service connection for sleep apnea – not the effective date.

The Court determined that “because the veteran timely appealed the April 2009 RO decision denying the December 2008 claim, only a Board decision can resolve the December 2008 claim” – and that the September 2010 RO decision could not resolve this issue because “by virtue of his appeal, the Board, not the RO, had jurisdiction over it.”

In this respect, the Court agreed with the Secretary that the Board did not have jurisdiction over the effective date issue. The Board had jurisdiction over the appeal arising from the 2008 claim for service connection. The Court held that the Board clearly erred when it determined that Mr. Warren withdrew his appeal of the April 2009 decision and reversed that portion of the decision. The Court remanded the issue of service connection for sleep apnea – the merits of the December 2008 claim – to the Board, expressly directing it to consider the supporting evidence Mr. Warren submitted in May 2010. 

FULL DECISION

EQUITABLE TOLLING

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Aldridge v. McDonald, docket no. 2015-7115 (Fed. Cir. Sept. 9, 2016)

HELD: Equitable tolling is not warranted when veteran failed to demonstrate how the multiple deaths in his family “directly or indirectly affected the timely filing of his appeal.” 

SUMMARY: In December 2013, the Board of Veterans’ Appeals denied Mr. Aldridge’s claims for increased ratings for his service-connected knee conditions. He had until April 23, 2014 to submit a Notice of Appeal to the U.S. Court of Appeals for Veterans Claims. He did not file his appeal until October 27, 2014 – more than six months past the deadline.

He asked the Court to equitably toll the deadline, explaining that there were multiple deaths in his family and that the “resulting depressive state had prevented him from timely filing his notice of appeal.” The CAVC denied his request, finding that he “had failed to demonstrate how the deaths of his mother and sister and stillborn birth of his grandchild ‘themselves directly or indirectly affected the timely filing of his appeal.’” The Court based this determination on the findings that during the relevant period, he had closed the estates of his deceased mother and sister, became his father’s primary caregiver, continued to work as a desk clerk at a VA hospital, and attempted to hire a law firm to represent him. Because of this, the Court was “unconvinced” that his depression “directly or indirectly prevented his appeal from being timely filed.”

The Federal Circuit, sadly, agreed. Mr. Aldridge argued that the CAVC applied a legal standard that was inconsistent with Holland v. Florida, 560 U.S. 631 (2010), a decision in which the Supreme Court determined that equitable tolling is appropriate when an appellant demonstrates “(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way.” Mr. Aldridge argued that the CAVC’s “causation analysis” placed a heavier burden on the veteran than what was intended by the Supreme Court in Holland. He asserted that the legal standard in Holland – a showing that “some extraordinary circumstances stood in [the] way and prevented timely filing” – “focuses on whether the extraordinary circumstances created a roadblock to timely filing as opposed to a metaphorical chain of causation that links events through time.”

The Federal Circuit agreed with the CAVC and determined that the requirement “that an appellant demonstrate that ‘some extraordinary circumstance stood in his way’ and prevented timely filing . . . necessarily carries with it an element of causation.” The Court noted that the Supreme Court recently reaffirmed this aspect of Holland, when it stated that “the second prong of the equitable tolling test is met only where the circumstances that caused a litigant’s delay are both extraordinary and beyond its control.” The Federal Circuit held that the CAVC “did not apply an incorrect legal standard when it determined that Mr. Aldridge had failed to demonstrate that the deaths in his family ‘themselves directly or indirectly affected the timely filing of his appeal.’”

In a passionate dissent, Judge Newman stated: “This case puts judicial humanity to the test; the Federal Circuit and the Court of Appeals for Veterans Claims fail the test.” This dissent is powerful – and useful for its language regarding equity and the unfortunately adversarial nature of what is supposed to be a solicitous veterans’ benefits scheme.  

This court has been assigned the responsibility for assuring that the legislative purpose of establishing a veteran-friendly regime is implemented. This case should never have come this far. On the undisputed circumstances that existed in this veteran’s family, the VA could readily have allowed the tardy appeal from the BVA to the Veterans Court. Instead, we see the government in uncompromising litigation to prevent this veteran from appealing the BVA decision on his percentage disability, straining precedent to its equivocal limits. What happened to the recognition that “the veterans benefit system is designed to award ‘entitlements to a special class of citizens, those who risked harm to serve and defend their country. This entire scheme is imbued with special beneficence from a grateful sovereign.’”

Dissent at *5. 

FULL DECISION

VETERAN CANNOT APPEAL DENIAL OF SPOUSE’S CLAIM FOR CHAMPVA BENEFITS

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Braan v. McDonald, docket no. 14-4085 (Aug. 26, 2016)

HELD: Because the veteran did not have the right to appeal his spouse’s claim for CHAMPVA benefits, the Board did not have jurisdiction over this appeal and the appeal must be dismissed. 

SUMMARY: The veteran in this case was service connected under 38 U.S.C. § 1151, and rated 100% disabled. His wife applied for CHAMPVA benefits in March 2010. The following month, the VA Health Administration Center (HAC) issued a decision, addressed to Mrs. Braan, stating that she was not entitled to CHAMPVA benefits because “VA benefits granted under [section 1151] do not include CHAMPVA.”

In September 2010, Mr. Braan filed a “Privacy Release Form” with his congressional representative on behalf of his wife, requesting an appeal of the denial. The Congressman forwarded a memo and Mr. Braan’s Privacy Release Form to VA. In January 2011, the VA HAC issued a Statement of the Case, denying Mrs. Braan’s appeal, but the cover letter was addressed to Mr. Braan. In January 2012, Mr. Braan filed a VA Form 9, stating that as a 100% disabled veteran, he is entitled to CHAMPVA benefits on for his spouse – and that section 1151 claims are treated as service connected.

In October 2014, the Board identified the appeal as Mr. Braan’s, but concluded that Mrs. Braan was not entitled to CHAMPVA benefits because his disability was not “incurred or aggravated” in the line of duty. The Board supported this determination with a VA General Counsel Advisory Opinion stating that section 1151’s “quasi-service-connection” only provides for benefits under chapters 11 or 13 of title 38 of the U.S. Code – and entitlement to CHAMPVA is provided under chapter 17.

Mr. Braan appealed to the Court. The Court issued an order directing Mrs. Braan to file a motion to intervene as an appellant, if she wanted to do so. She never filed a motion to intervene.

The issue addressed by the Court was whether Mr. Braan had standing to bring this appeal to the Court on behalf of his wife. The Court held that he did not – and that the Board did not have jurisdiction to hear his appeal of her claim. The Court characterized Mr. Braan as an “interloper” in Mrs. Braan’s claim and stated that, as such, he did not have the right to pursue her claim – and the Board did not have jurisdiction to hear his appeal of her claim. The Court reiterated that “because Mr. Braan had not submitted a claim, the Board lacked the authority to decide his claim in the first instance” and “did not have jurisdiction to hear Mr. Braan’s appeal.

The Court never reached the relevant question of whether service connection under section 1151 entitles a recipient’s spouse to CHAMPVA benefits. The Court never even reached the question of “whether a CHAMPVA’s sponsor [i.e., the service-connected veteran] may ever be a proper claimant for CHAMPVA benefits that are otherwise due his or her spouse or other qualifying dependent,” stating that “it is undoubtedly improper for a CHAMPVA sponsor to wade into the appeals stream on behalf of a CHAMPVA beneficiary when that beneficiary has already filed the initial claim.”

Advocacy note: This is a very sad decision – and a monumental waste of time – that could have easily been prevented at several steps along the way by the veteran, his spouse, the congressional representative, and the VA officials who were issuing decisions on appeals over which they, allegedly, lacked jurisdiction. It is clear that Mrs. Braan applied for CHAMPVA benefits – and it is clear that she was denied these benefits based solely on the fact that her husband was service connected under section 1151. The standing/jurisdiction issues have nothing to do with the merits of this appeal – and all the Court is doing is guaranteeing that the Braans will wait another six years or more until it can address the relevant issue.

The lesson to take away from this case is that it is important to pay attention to who files the claim, the substance of the claim, and who is then entitled to appeal any adverse decision of that claim. It is a shame that the Court “punted” this one away. 

FULL DECISION

FED CIRCUIT DECLINES TO REVIEW PRESUMPTION OF COMPETENCY OF VA EXAMINERS

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Mathis v. McDonald, docket no. 2015-7094 (Fed. Cir. Aug. 19, 2016)

HELD: The Federal Circuit denied the veteran’s petition for en banc rehearing of its prior (non-precedential) decision that declined to disavow the presumption of competence afforded to VA examiners. 

In a single-judge memorandum decision, the CAVC rejected the appellant’s arguments regarding the competency of the VA examiner who had provided a negative medical nexus opinion. See Mathis v. McDonald, docket no. 13-3410 (J. Lance, May 21, 2015) (Mathis I). The CAVC held that while the presumption of competency is rebuttable, the first step in doing so is to challenge the examiner’s competency. Because the veteran did not challenge the competency of the examiner at the Board or RO levels, the Court found that he had not met his burden to rebut the presumption. Id.

The veteran appealed to the Federal Circuit, arguing that the Court should “disavow the presumption of competency as it applies to VA medical examiners,” asserting that “VA’s procedure for selecting qualified examiners is inherently unreliable because the VA broadly recommends assigning generalists except in unusual, ill-defined cases.” See Mathis v. McDonald, docket no. 2015-7094 (Apr. 1, 2016) (Mathis II). The Court, somewhat reluctantly, declined to reassess the presumption of competency, although it did discuss the line of relevant cases (Rizzo v. Shinseki, 580 F.3d 1288 (Fed. Cir. 2009); Bastien v. Shinseki, 599 F.3d 1301 (Fed. Cir. 2010); Sickels v. Shinseki, 643 F.3d 1362 (Fed. Cir. 2011); and Parks v. Shinseki, 716 F.3d 581 (Fed. Cir. 2013)), and noted that the appellant’s argument “presents some legitimate concerns.” Nevertheless, the Court found that it lacked “jurisdiction to make factual findings on appeal regarding the competency” of the VA examiner and “are bound by clear precedent to presume” the examiner’s competency.

In a separate opinion, one of the Federal Circuit judges concluded that “the entire court should review the case law concerning the presumption of competence with the objective of eliminating it.” The judge based his conclusion on VA’s general practice of not providing evidence of an examiner’s qualifications; the appearance that the presumption renders the competency of a VA examiner “unreviewable”; the due process problem in requiring a veteran to challenge an examiner’s qualifications; VA’s “unknown” process in selecting examiners; and, most troubling, VA’s actions since the presumption has been applied. Specifically, since the presumption has been applied, VA has emphasized the use of non-specialists. VA has eliminated the requirement that reports be signed by a physician – now only requiring the signature of a “health care provider.” This judge also highlighted the recent evidence of the “irregularity” in VA’s process for selecting examiners as shown in the controversy surrounding TBI examinations being conducted by unqualified examiners.

Despite this well-crafted opinion, the Federal Circuit declined to rehear this appeal en banc. However, while the order declining en-banc review was only two pages long, the opinion includes an additional 29 pages of separate concurring and dissenting opinions questioning the ongoing validity of applying the presumption of administrative regularity in this context.

Advocacy note: The burden is still on the veteran to challenge the adequacy of an examination and/or the qualifications of the examiner. If the veteran feels that the examination was not adequate and/or the examiner was not qualified to be conducting the examination, the veteran must notify VA of these concerns in writing. 

FULL DECISION

ONLY DoD CAN REVISE EFFECTIVE DATES FOR EDUCATION BENEFITS

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Garza v. McDonald, docket no. 14-2711 (Aug. 11, 2016)

HELD: Under 38 C.F.R. 21.9625(j), the effective date for the transfer of education benefits from a veteran to an eligible dependent “may not be earlier than the later of either the date the Secretary of the service department concerned approved the transfer or the date the transferor specified in his or her designation.” 

SUMMARY: The appellant in this case is the adult son of the veteran. Mr. Garza attended ITT Technical Institute and was notified April 2010 of a $15,000 tuition payment. On April 16, 2010, the veteran, who was deployed at the time, submitted an online application to transfer his education benefits to Mr. Garza.

The Department of Defense (DoD) subsequently notified the veteran that the service department had approved the transfer of five months of benefits to his son, effective April 16, 2010, the date of his online application.

In October 2010, Mr. Garza’s mother asked VA to backdate the application for benefits to August 1, 2009. She explained that they would have applied for benefits earlier, but ITT did not inform her son until April 2010 that “no financing had been done . . . dating back to August 2009.” She stated that had she known earlier, they would have applied earlier.

The RO then notified Mr. Garza that he had five months of educational benefits, starting April 16, 2010. In a subsequent letter, the RO stated that “DoD makes this determination not the VA.” Mr. Garza submitted a Notice of Disagreement for an August 2009 effective date. The RO issued a Statement of the Case, stating that benefits could not be paid prior to the April 16, 2010 eligibility date and that the “veteran should contact DoD directly for possible resolution.”

Mr. Garza appealed to the Board, arguing that his benefits should go back to August 1, 2009 because “ITT erred in handling his financing.” The Board denied the appeal, finding that “DoD approves the transfer of entitlement to educational assistance” and that “VA has no authority to revise such a DoD determination.”

The Court reviewed the relevant statutes and regulations, specifically 38 U.S.C. § 3319 and 38 C.F.R. §§ 21.9500-9770. The Court found that 38 U.S.C. § 3319(a)(1) authorizes the Secretary of the relevant service department to approve the transfer of educational assistance benefits to eligible dependents, but the statute was “silent as to whether DoD or VA assigns the eligibility dates.” Because of this “gap” in the statute, the Court looked to the relevant regulations.

The Court recognized that 38 C.F.R. § 21.9570(d)(2) “states that VA will accept the transferor’s designations” and that § 21.9570(g) allows “a transferor to modify the designations . . . ‘at any time’” by submitting written notice to both VA and DoD. However, the Court found that these subsections “must be read in light of § 21.9625(j), which provides that the beginning date of an award for educational assistance to an eligible child will be no later than the latest of either the date the DoD approves the transferor to transfer entitlement or the date the transferor specified.” In this case, the Court found that both of these dates were April 16, 2010. The Court concluded that, “as a matter of law, Mr. Garza’s beginning eligibility date cannot be earlier than April 16, 2010.”

The Court found that this interpretation was further supported by the regulatory history. The Court rejected Mr. Garza’s argument that the Board erred by not addressing 38 C.F.R. § 21.9570(g), regarding written requests for modification – because “this regulation speaks only of the transferor’s rights to modification and . . . nothing in the record shows that the veteran (the transferor) submitted any modification.”

The Court stated that while it was sympathetic to Mr. Garza’s frustrations with ITT for not informing him of his financial status earlier, it could not grant the “equitable relief” that he sought.

Advocacy note: While the Court cannot grant “equitable” relief, VA can. And VA may have granted such relief in this case had the veteran – Mr. Garza’s father – submitted a written request for modification under 38 C.F.R. § 21.9570(g).  

FULL DECISION

38 C.F.R. § 3.156(c)(1) REQUIRES RECONSIDERATION EVEN IF VA HAS ALREADY GRANTED SERVICE CONNECTION

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Emerson v. McDonald, docket no. 14-2968 (August 10, 2016)

HELD: Even if a veteran is granted service connection on the basis of a liberalizing regulation, 38 C.F.R. § 3.156(c)(1) still requires VA to reconsider the veteran’s initial claim on the basis of its receipt of newly associated service records. 

SUMMARY: The veteran was denied service connection for PTSD in 2003 based on the lack of a verified stressor. In July 2010, VA amended 38 C.F.R. § 3.304(f) “to eliminate the requirement for corroborative evidence of a stressor where a VA mental health expert has diagnosed PTSD and the stressor is related to the veteran’s fear of hostile military or terrorist activity.” The following month, Mr. Emerson requested to reopen his claim. A VA Compensation and Pension (C&P) examiner noted his reports of combat as a helicopter door gunner. In June 2011, the Regional Office (RO) awarded service connection for PTSD, noting the change in 38 C.F.R. § 3.304(f). The RO assigned a 30% rating, effective August 2010, the date of his request to reopen.

Mr. Emerson appealed the evaluation and the effective date. In 2012, he underwent another C&P examination, and the RO subsequently continued the 30% rating and denied an earlier effective date. In July 2012, he testified at a Board hearing and his then-attorney explicitly raised the issue of the applicability of 38 C.F.R. § 3.156(c) for an earlier effective date. Later that month, Mr. Emerson’s attorney submitted additional argument to the Board regarding § 3.156(c), along with service department records listing “the date and duration of completed helicopter missions, with the letter ‘C’ written next to each ‘Mission Type.’” He also submitted an Army Form 20, listing assignments and campaigns, that included the Tet Counter Offensive.

The Board granted a 50% disability rating, but denied the earlier effective date. The Board did not address the applicability of 38 C.F.R. § 3.156(c).

The CAVC first noted that the applicability of § 3.156(c) was expressly raised, and that the Board was required to address it, citing Robinson v. Peake, 21 Vet.App. 545, 552 (2008, aff’d sub nom. Robinson v. Shinseki, 557 F.3d 1355, 1361 (Fed. Cir. 2009) and Brannon v. West, 12 Vet.App. 32, 35 (1998). The Court next examined the language of § 3.156(c), stating that even though the Board failed to address its applicability, the issue was raised below and the Court has the authority to consider this legal question in the first instance, citing Butts v. Brown, 5 Vet.App. 532, 539 (1993) and Blubaugh v. McDonald, 773 F.3d 1310, 1312 (Fed. Cir. 2014).

The Court noted that while Mr. Emerson was seeking an earlier effective date under 38 C.F.R. § 3.156(c)(3), the issue in this appeal was whether he was entitled to reconsideration under § 3.156(c)(1), which “requires the VA to reconsider only the merits of a veteran’s claim whenever it associates a relevant service department record with his [or her] claims file.” The Court determined that the regulation “requires that official service department records received or associated with the claims file (1) be relevant to the claim, (2) have been in existence when VA first decided the claim, and (3) not have been associated with the claims file when VA first decided the claim” – and that if those requirements are met, the plain language of § 3.156(c)(1) “mandates that ‘VA will reconsider the claim.’”

The Court rejected the Secretary’s argument that § 3.156(c)(1) did not apply since Mr. Emerson had already been awarded service connection when the new service department records were submitted to VA, stating that “nothing in the plain language of (c)(1) states that, for the provision to be applicable, the claim at issue must have been denied immediately prior to the submission of official service department records.” The Court further rejected the Secretary’s argument that § 3.156(c)(1) must be read in context with § 3.156(a), noting that paragraph (c)(1) “begins and ends with two ‘nullifying clauses’” (i.e., “notwithstanding any other section of this part” and “notwithstanding paragraph (a) of this section’). The Court added that the Federal Circuit observed that “§ 3.156(c) requires . . . VA to reconsider a veteran’s claim when relevant service department records are newly associated with the veteran’s claims file, whether or not they are ‘new and material’ under § 3.156(a).’”

The Court determined that it would be a “substantial injustice” to Mr. Emerson to hold that § 3.156(c) did not apply to his case just because he was already awarded service connection based on the amendment to § 3.304(f)(3). The Court added “it would be odd if § 3.304(f)(3), whose ‘main goal’ is ‘[i]mprove[d] timeliness, consistent decision-making, and equitable resolution of PTSD claims,’ . . . were to prevent application in this case of § 3.156(c), an otherwise pertinent regulation that is premised on the notion that “a claimant should not be harmed by an administrative deficiency of the government.” (internal citations omitted). The Court thus held that “based on the plain language of § 3.156(c)(1), upon receiving official service department records in 2012, VA was required to ‘reconsider the claim’ for service connection for PTSD that was denied in February 2003, notwithstanding the fact that service connection for PTSD was granted in 2011.”

The Court also considered Mr. Emerson’s arguments regarding the Board’s rationale for denying a disability rating greater than 50%, and agreed that the Board’s statement of reasons or bases was inadequate.

The Court noted the rating criteria for the 50% and 70% ratings, and stated that assessing whether a 70% evaluation is warranted requires (1) the “initial assessment of the symptoms displayed by the veteran, and if they are of the kind enumerated in the regulation, [(2)] an assessment of whether those symptoms result in occupational and social impairment with deficiencies in most areas.” Mr. Emerson pointed out several pieces of favorable evidence that relate to the 70% criteria that the Board did not discuss. Because of this – and because VA was now required to reconsider this claim under § 3.156(c)(1) – the Court agreed that the Board’s rationale for not assigning a 70% disability rating was inadequate. 

FULL DECISION

RIGHT TO REVIEW PAPER RECORDS

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Robinson v. McDonald, docket no. 15-0715 (per curiam order) (July 14, 2016)

HELD: VA’s refusal “to allow an appellant’s representative access to the paper source documents is contrary to the requirements under 38 U.S.C. § 7252(b) and Rule 10 [of the Court’s Rules of Practice and Procedure] that the Court’s review be on the record before the Secretary and the Board and that the appellant be permitted to inspect and copy any original material from that record.”

SUMMARY: The issue in this case is “whether the appellant or his representative has a right to review and compare the existing paper source documents with the electronic documents contained in VBMS [the Veterans Benefits Management System] and VVA [Virtual VA] and whether the Secretary is obligated to preserve those paper source documents.

After filing a Notice of Appeal to the Court and receiving a copy of the Record Before the Agency (RBA) from VA, the appellant noticed that several documents were missing. His representative thus filed a motion under Rule 10 of the Court’s Rules of Practice and Procedure, disputing the contents of the RBA. In that motion, he noted that he had asked to examine the original paper claims file.

The Secretary asserted that the records contained in VBMS and VVA “officially comprise [the appellant’s] claims file” and that the RBA “is a true and accurate copy of the documents contained therein.” The Secretary proposed that the parties enter into a joint motion to remand based on a duty-to-assist violation, but the appellant declined.

In response to a Court order to explain his refusal to allow the appellant to view the paper file, the Secretary acknowledged that “some paper source materials may still exist,” but they are not the “claims file and are now considered duplicates or non-records.” The Secretary noted that the scanning of paper documents was handled by a third-party vendor and that the average accuracy rate “exceeds 99 percent.” He added that VA’s scanning, digitizing, and subsequent destruction process “comported with the law” and that VA had “no obligation to produce the paper originals.”

The appellant then filed a motion under Rule 8, “asking the Court to enjoin the Secretary from destroying any original paper documents related to his claims” and to turn over those “non-records” to the appellant. The Court issued a temporary injunction.

In briefing and at oral argument, the appellant argued that Rule 10 required the Secretary to make the paper copies available, and that the Federal Records Act required the Secretary to keep a paper copy after scanning. The Secretary argued that the appellant has “no absolute ‘right’ to inspect or copy these source documents on appeal to this Court,” and that the Federal Records Act and related laws “require VA to dispose of ‘paper duplicates’ in accordance with established procedures, regardless of any pending litigation before this Court.”

The Veterans Court held that “the Secretary’s refusal in this case to allow an appellant’s representative access to the paper source documents is contrary to the requirements under 38 U.S.C. § 7252(b) and Rule 10 that the Court’s review be on the record before the Secretary and the Board and that the appellant be permitted to inspect and copy any original material from that record.”

In reaching this conclusion, the Court pointed to the relevant statutory language stating that “[r]eview in the Court shall be on the record of proceedings before the Secretary and the Board,” which is “mirrored in Rule 10(a) of the Court’s Rules.” The Court noted that even though the Secretary is an adversarial party in Court proceedings, he is “both the adjudicator and records custodian in lower proceedings, tasked with administrating a system ‘that Congress wished to be as informal and nonadversarial as possible.’” The Court emphasized the importance of review based on an accurate record, noting that “a veteran’s entitlement to disability benefits is a property interest protected by the Due Process Clause of the Fifth Amendment.” (citing Cushman v. Shinseki, 576 F.3d 1290 (Fed. Cir. 2009)).

The Court noted that, in this case, the Secretary compiled the RBA exclusively from the electronic file, even though the original records still existed. The Court rejected the Secretary’s argument that he did not have to allow access to the original file since those records were already maintained in electronic form at the time of the Board decision, stating that “Rule 10(a) requires the RBA to include the claims file at the time of the Board decision and any other relevant documents from the record before the Secretary.”

The Court also rejected the Secretary’s argument that he did not have to provide access to the original documents because his digitization of the material complied with the Federal Records Act, as implemented by the National Archives and Record Administration (NARA). The Court found that the Secretary had not even shown how these laws were applicable to the records in this case, adding that the statute cited by the Secretary “governs the ‘admissibility in evidence before the Court’” of digitized records. The Court stated that the appellant was not challenging the admissibility of anything – and that Rule 10 has nothing to do with “admissibility.” The purpose of the rule “is to help ensure that the Court’s review is based on the record of proceedings that was actually before the agency with respect to its prior adjudication of the benefit on appeal, as mandated by section 7252(b).”

The Court further rejected the Secretary’s argument that he is required to destroy the “duplicates” once the paper file has been digitized, noting that the Secretary’s cited authority actually states that “‘VA may destroy’ original materials after conversion to electronic records is ‘verified’ and ‘when no longer needed for legal or audit purposes, or to support the reconstruction of or serve as a backup to the electronic records.”

The Court found that the facts of this case demonstrate the value of Rule 10 – particularly noting that “the very fact that pages are missing from [the appellant’s initial claims form] suggests that it may have been improperly scanned.” Further support is found in the fact that VA medical records from 1992 were not in the file, even though they were cited as having been reviewed in a rating decision that was in the file.

While the Court did not make a determination with respect to VA’s current records management policies were compliant with federal laws, it did hold that “pursuant to Rule 10(d), the appellant is entitled to inspect the paper source documents and compare them with the electronic records.” The Court thus ordered the Secretary to provide the source documents to the appellant within 15 days.

Finally, while the Court did not “resolve any constitutional due process arguments arising from VA’s records management policies,” it did “express concern with the Secretary’s digitization process.” As an example, the Court noted that a 99% accuracy in a 5,000-page claims file “means that 50 pages will either be scanned incorrectly or will not be scanned” – and that some of those pages might include handwritten buddy statements from a now-deceased veteran or old private medical records that cannot be replaced. The Court also noted the “troubling” findings from the VA Office of Inspector General regarding the disorganized and improper handling of veterans’ documents by contractor facilities.

FULL DECISION

THAILAND, AGENT ORANGE

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Parseeya-Picchione v. McDonald, docket no. 15-2124 (July 11, 2016)

HELD: Even if the Board determines that a veteran’s testimony is not credible, it must still review the other evidence of record and provide an adequate statement of reasons or bases for rejecting it.

Advocacy note: Evidence relevant to this appeal – and to other Thailand veterans with appeals related to herbicide exposure – includes (1) third-party evidence showing that most flights from the U.S. to Thailand stopped in Vietnam en route to Thailand; (2) VA’s C&P Bulletin stating that “some evidence that the herbicides used on the Thailand base perimeters may have been either tactical, procured from Vietnam, or a commercial variant of much greater strength and with characteristics of tactical herbicides”; and (3) the Project CHECO report, describing the air base locations.

SUMMARY: The veteran in this case served in the U.S. Army from 1966 to 1977, including a deployment to Thailand from January 1968 to January 1970. In Thailand, he was assigned Camp Friendship at Korat Royal Thai Air Base.

In 2005, he filed a claim for service connection for diabetes based on exposure to herbicides. He testified that he was in Vietnam in January 1968 during a layover between Hawaii and Thailand. He also asserted that he was exposed to herbicides when he was stationed at Camp Friendship. VA denied his claim, and he appealed up to the Veterans Court, which remanded the appeal in 2011.

Two months after the Court’s remand, the veteran died, and his wife substituted for him in his appeal. She provided a copy of the Project CHECO report, a declassified Air Force report, which described Camp Friendship as “bordering the perimeter of the Korat Air Force base.” She also provided evidence of flight paths from the U.S. to Thailand, showing that these flights had to make several stops, including in Vietnam. The Board continued to deny benefits, and she appealed to the Court. The Court remanded again because the Board failed to provide any explanation for its determination that the evidence did not show that the veteran was exposed to herbicides.

In May 2015, the Board denied the claim again, finding that the preponderance of the evidence was against the veteran’s assertion that he “had set foot in Vietnam.” The Board rejected the veteran’s statements as inconsistent and rejected the evidence regarding the flight paths because it did not corroborate that the veteran spent time in Vietnam. The Board also noted that while Camp Friendship was located “near the outer edge of [Korat]” it was “not located on the perimeter” of the base, as required by VA policy. The Board added that the veteran’s military occupational specialty (MOS) as “clerk” would not require his presence on or near the perimeter of the base.

The veteran’s widow appealed to the Court again. The Court first determined that there was no error in the Board’s determination that the veteran’s testimony was not credible regarding his layover in Vietnam. However, the Court noted that the Board is required to review and explain its rejection of the other evidence of record.

Specifically, the Court noted that the appellant submitted third-party evidence stating that “it would be the exception [rather] than the rule where a flight [from a base not in Southeast Asia to a base in Thailand] would bypass [Ton Son Nhut Air base in Vietnam, where the veteran’s alleged layover took place].” Also in the record: “An email from James S. Howard, an archivist from the Air Force Historical Research Agency, reports that ‘[a]s a general rule, military cargo aircraft, especially those engaged in “airlines” would stop over at Ton Son Nhut Air Base, Republic of Vietnam en[]route to bases in Thailand. Very few of this sort of flight were made “direct” to bases in Thailand from bases outside Southeast Asia.’” In addition, the record contained a letter from a retired Air Force major, asserting that “[b]ased on my experience, it was common for military aircraft flying to and from airbases in Thailand to land at Ton Son Nhut [Air Base] and other Vietnam airbases.” Id.

The Board had rejected this evidence because it was only “general information” and did not support the claim “that the veteran himself stopped in Vietnam over-night during his trip to Thailand.” The Court found that this was not an adequate statement of reasons or bases because “[t]he Board failed to specifically discuss any of this evidence.”

Advocacy note: I believe this portion of the decision is important because it strengthens the requirement that the Board expressly discuss favorable evidence before rejecting it. I believe this is also important because advocates can now use THIS Court decision to point to evidence of layovers in Vietnam.  

The Court rejected the Board’s reasons or bases for its determination that the veteran was not exposed to herbicides in Thailand because the Board acknowledged that Camp Friendship “was located near the perimeter of Korat,” yet found that “Camp Friendship is not located on the perimeter as contemplated by the M21-1MR.” The Court determined that “[t]his discussion of the two locations conflicts with how both the Project CHECO report and the veteran described the locations.”

Advocacy note: I believe this portion of the decision is important because the Court is forcing the Board to reconcile its inconsistent statements with the Project CHECO report. Advocates can now cite to THIS decision to show that the Court has recognized the validity of the Project CHECO report and that the Board has to explain its determinations that conflict with this report.

Finally, the Court rejected the Board’s determination that “the only tactical herbicides used in Thailand were used four years before the veteran arrived and in a wholly separate location than where the veteran served.” The Court found this determination to be in conflict with the C&P Bulletin that acknowledged that there was “some evidence that the herbicides used on the Thailand base perimeters may have been either tactical, procured from Vietnam, or a commercial variant of much greater strength and with characteristics of tactical herbicides.” The Court found this error prejudicial because “[a] VA finding that the veteran did serve near the perimeter of the base may be significant because the perimeter was the only area where herbicides of a type similar to Agent Orange may have been used.”

Advocacy note: I believe this language is important because it forces the Board to comply with the findings in VA’s C&P Bulletin. Advocates can now cite to THIS decision, in addition to the C&P Bulletin, to support the use of tactical-strength herbicides – as opposed to your garden-variety weed killer – on Thailand base perimeters.

FULL DECISION

RANGE-OF-MOTION TESTING REQUIREMENTS

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Correia v. McDonald, docket no. 13-3238 (July 5, 2016)

HELD: “[T]o be adequate, a VA examination of the joints must, wherever possible,[] include the results of the range of motion testing described in the final sentence of § 4.59.” This includes tests for both passive and active motion, in both weight-bearing and non-weight-bearing circumstances, and testing of the opposite, undamaged joint. 

SUMMARY: The veteran in this case appealed the denial of increased ratings for his knees. He argued that the VA examination report on which the Board relied to deny the increased ratings was inadequate because the examiner did not perform all the range-of-motion testing required by 38 C.F.R. § 4.59. To support this argument, the appellant’s attorney submitted two nonprecedential Court decisions showing the Secretary’s position in those cases.

The Secretary first moved to strike the portions of the appellant’s brief that cited to the nonprecedential cases. The Court denied this motion, finding that the decisions were not used for “precedential effect,” but rather to show the factual circumstances and the Secretary’s position in those cases. In a footnote, the Court noted that the rule regarding citation to nonprecedential authority was revised after the Secretary filed his motion, adding that the Court could have taken judicial notice of the Secretary’s contrary positions.

Regarding the regulation, the Secretary argued that it does not establish “a rigid set of protocols” for examinations, and alternatively argued that the regulation was ambiguous and therefore the Court should defer to VA’s interpretation of it.

The Court examined the plain language of the regulation and noted that it describes “ways in which painful motion can be discerned” and “the kind of test results that ‘should’ be obtained to permit an adjudicate to assess the effect of painful motion – range of motion tests for both passive and active motion, and in both weight-bearing and non-weight-bearing circumstances.” (emphasis in original). In addition, the regulation states that, if possible, the same tests should be obtained for the undamaged joint. The Court thus narrowed its analysis here to what the word “should” means.

The Court found that, in the context of § 4.59, the word “should” was ambiguous, and next questioned whether it should defer to the Secretary’s interpretation. The Court concluded that no deference was due to the Secretary’s “interpretation that the regulation creates no requirement that particular kinds of range of motion testing be performed” because the Secretary has previously conceded remand in “at least two cases” (nonprecential) “where the Board relied on medical evidence that did not comport with the final sentence of § 4.59.”

On its own, the Court found several additional cases where the Secretary previously interpreted § 4.59 “in accordance with Mr. Correia’s position” – and only found one other case where the Secretary argued that the regulation “does not create a testing requirement with which VA examiners must comply.” The Court thus stated that “given that the Secretary appears to ordinarily concede before this Court that § 4.59 creates a requirement for VA examiners to conduct the range of motion testing listed in the final sentence where such testing can be performed, the Court cannot conclude that the Secretary’s proffered interpretation in this case represents ‘the agency’s considered view on the matter.’” 

The Court thus held that “the final sentence of § 4.59 creates a requirement that certain range of motion testing be conducted whenever possible in cases of joint disabilities.” The regulation identifies “three things examiners ‘should’ do” – “(1) carefully note facial expression or wincing on pressure or manipulation and relate that to the affected joint; (2) carefully note crepitation in the soft tissues or joint structures; and (3) test for pain throughout range of motion in various ways.” 

NOTE: On July 26, 2016, the Secretary filed a motion for reconsideration and/or full court review. 

FULL DECISION

MISLEADING NOTICE VIOLATES DUE PROCESS

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Noah v. McDonald, docket no. 15-0334 (June 10, 2016)

HELD: When VA sends “affirmatively misleading notice” to a claimant, that notice does not “satisfy the requirements of procedural due process guaranteed by the Fifth Amendment to the U.S. Constitution.”

SUMMARY: In December 1981, Mr. Noah filed a claim for service connection for PTSD. In January 1982, VA sent him a letter regarding additional information that was needed. The letter stated “Please reply within 30 days. If we have no reply within 60 days, we will assume that you have with[]drawn your claim.” Mr. Noah did not respond to this request.  

In December 2007, Mr. Noah filed another claim for service connection for PTSD. The RO granted the claim in 2009, effective the date of the 2007 claim. Mr. Noah appealed the effective date.

In an October 2011 statement, Mr. Noah explained that he had attempted to get medical evidence to support his 1981 claim, but he believed – based on VA’s letter – that if he did not submit the evidence within 60 days, VA would close his file. He was not able to get a medical appointment for approximately 90 days and could not afford to see a private psychiatrist – so he became discouraged and gave up. He stated that had he known that he actually had one year to submit the evidence, he would have waited for the appointment with the psychiatrist and would have been able to submit that evidence.

Mr. Noah later submitted a letter from a private psychiatrist stating that he was suffering from PTSD in 1981 and 1982. VA denied the earlier effective date and Mr. Noah appealed to the Board. At the Board, Mr. Noah’s counsel conceded that he had “abandoned” his 1981 claim, but argued that he “had a constitutional right not to be misled by VA’s letter.”

The Board acknowledged that in 1981, 38 C.F.R. § 3.158 provided that a claim will be considered abandoned if requested evidence is not submitted within one year after the date of the request. The Board acknowledged that VA’s letter was “misleading,” but concluded that “even though Mr. Noah might have believed he had no more than 60 days to submit medical evidence . .  . , he remained subject to the 1-year abandonment provision in effect at the time.”

At the Court, Mr. Noah first argued that he was entitled to equitable tolling of the one-year period to submit evidence, and that equitable tolling might apply in situations such as his where a due process violation is alleged. The Court disagreed and held that “the one-year period in 38 U.S.C. § 3003(a) to submit evidence following VA’s notification of the evidence necessary to complete the application [for benefits] cannot be construed as a statute of limitations and, therefore, is not subject to equitable tolling.”

With respect to Mr. Noah’s due process argument, the Court held that VA’s act of providing the claimant with misleading notice violated his due process right to accurate notice and the “right to be heard,” which the Court described as his “right to have his claim for disability benefits adjudicated.” The Court held that VA’s 1982 notice letter “failed to satisfy the requirements of procedural due process guaranteed by the Fifth Amendment to the U.S. Constitution.”

However, the Court also found that in order to prevail in an argument for an earlier effective date based on the due process violation, the claimant must “demonstrate that he relied to his detriment on the misleading notice.” The Court acknowledged that Mr. Noah did not apply for benefits for PTSD again until 2007, but also noted his explanation for why he stopped pursuing benefits back in 1982. The Court remanded this appeal to the Board to determine whether Mr. Noah relied to his detriment on the misleading notice. If so, then his 1981 claim is “pending and unadjudicated,” and he may be entitled to an earlier effective date for an award of benefits.

FULL DECISION

CHAMPVA, 38 U.S.C. § 1781

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Holle v. McDonald, docket no. 14-1235 (June 10, 2016)

HELD: Eligibility for CHAMPVA requires enrollment in Medicare Part B, subject to only one exception, and the enrollment requirements cannot be construed as a statute of limitations that would be subject to equitable tolling.

SUMMARY: The appellant in this case is the spouse of a veteran who was in receipt of a total disability rating based on individual unemployability for his service-connected PTSD. In 2002, she applied for benefits through the Civilian Health and Medical Program of the Department of Veterans Affairs (CHAMPVA). The following month, she received a letter informing her of her eligibility and explaining how to apply. In 2005, she was awarded Social Security disability benefits. She was enrolled in Medicare Part A as of December 1, 2004, and Part B as of June 1, 2009. She was subsequently informed by VA that she was not eligible for CHAMPVA during the period that she was not enrolled in Medicare Part B – and that she would receive an invoice for any benefits received during that ineligibility period.

She appealed that decision, asserted that she had had a stroke that caused memory loss and impacted her daily living, and that her husband could not assist her because of his PTSD. While sympathetic to her situation, the Board denied the appeal because the eligibility criteria for CHAMPVA require enrollment in Medicare Part B.

On appeal to the Veterans Court, Mrs. Holle argued that she is entitled to “equitable tolling” of the 2004 deadline to enroll in Medicare Part B. The Court examined the language of the statute authorizing the CHAMPVA program, 38 U.S.C. § 1781, noting that it requires enrollment in Medicare Part B unless the applicant was 65 years old as of June 5, 2001, and was not enrolled in Medicare Part B as of that date. Mrs. Holle did not satisfy this exception to the requirement – and the Court thus held that the Board properly interpreted the statute regarding CHAMPVA eligibility.

Regarding the equitable tolling argument, the Court noted that “equitable tolling is a tool used to grant relief when a potential appellant fails to file suit within a statutory limitations period.” Because this situation did not involve the question of a timely appeal to a court – but instead dealt with enrollment requirements – the Court held that equitable tolling did not apply. The Court stated that it “may not award equitable relief,” but noted that “the Secretary, in appropriate cases, may provide equitable relief,” which is entirely discretionary and not reviewable by the Court. 

FULL DECISION

EQUAL ACCESS TO JUSTICE ACT (EAJA)

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Butts v. McDonald, docket no. 14-3019(E) (June 3, 2016)

HELD: VA's compliance with existing Court precedent "does not relieve the Court of its duty to evaluate the reasonableness of the Secretary’s regulatory interpretation and his conduct at the administrative level.” therefore, “the Secretary may be required to pay EAJA fees despite following [Court] precedent.” 

SUMMARY: In Johnson v. Shinseki (Johnson I), 26 Vet.App. 237 (2013) (en banc), the Court held that 38 C.F.R. § 3.321(b)(1) was ambiguous and deferred to the Secretary’s interpretation that limited extraschedular consideration to individual disabilities, as opposed to multiple conditions. The Federal Circuit reversed this decision in Johnson v. McDonald (Johnson II), 762 F.3d 1362 (Fed. Cir. 2014), concluding that the plain language of the regulation was unambiguous and that it “provides for referral for extra-schedular consideration based on the collective impact of multiple disabilities.” Johnson II, 762 F.3d at 1365-66.

While Johnson I was on appeal to the Federal Circuit, the Board of Veterans’ Appeals issued the decision in Mr. Butts’ case, denying referral for extraschedular consideration for his service-connected disabilities. Mr. Butts filed his Notice of Appeal in September 2014 – after the Federal Circuit issued Johnson II. The parties subsequently agreed to a joint motion for partial remand (JMPR) because the Board’s adverse extraschedular determination did not comply with 38 C.F.R. § 3.321. The Court granted the JMPR and Mr. Butts’ attorney filed an application for fees under the Equal Access to Justice Act (EAJA).  

The Secretary disputed the EAJA application, arguing that Mr. Butts was “not a prevailing party because the JMPR was based on a change in precedent, rather than Board error.” Mr. Butts argued that “he is a prevailing party because the JMPR was implicitly based on the Board’s failure to properly apply § 3.321(b)(1), as Johnson II ‘did not create a new interpretation of the regulation, but simply explained what the regulation has always said.’”

The Court first noted that it is the appellant’s burden to show “prevailing-party status under the EAJA,” and that a joint motion for remand “may confer prevailing-party status if the JMR contains an explicit or implicit admission of error.” *4 (citing Thompson v. Shinseki, 24 Vet.App. 176, 178 (2010)). It is the Secretary’s burden to show “that his position was substantially justified at both the administrative and litigation stages.” *5 (citing Locher v. Brown, 9 Vet.App. 535, 537 (1997)).

The Court found that the language of the JMPR “explicitly concedes error” because it stated that the Board’s decision did not comply with § 3.321. Because of this language, the Court determined that Mr. Butts was a prevailing party for EAJA purposes. *7.

The Secretary argued that his position was substantially justified because the Board was bound to comply with Johnson I when it issued its decision. *8. The Court rejected this argument, noting that the Board never mentioned Johnson I in its decision. The Court added that the fact that the Court had previously upheld the Secretary’s “erroneous interpretation” of the regulation in Johnson I did not resolve the substantial-justification question. *9. Instead, the Court must examine the “totality of the circumstances” surrounding the government’s position and assess “the reasonableness of the Secretary’s regulatory interpretation and his conduct at the administrative level.” *9. The Court found that, in Johnson I, the majority had “simply erred when it deferred to the Secretary’s interpretation” – and that the majority’s error did not make the Secretary’s error “reasonable . . . under the totality of the circumstances.” Id. The Court thus held that “under the EAJA’s totality-of-the-circumstances analysis, the Secretary may be required to pay EAJA fees despite following precedent.” *10.

The Court found further support for its holding in the Federal Circuit’s determination “that there was ‘no logic’ and no policy support for [the Secretary’s] interpretation that § 3.321(b)(1) applied only to service-connected disabilities on a disability-by-disability basis ‘and not also on the collective impact of all of the veteran’s disabilities.’” *11.

The Court reiterated the Federal Circuit’s finding that the plain language of the regulation was consistent with 38 U.S.C. § 1155, which authorizes the Secretary to adopt and apply a rating schedule, adding that the Secretary’s interpretation was not supported by the regulation’s history. *12.

The Court also noted that while VA was bound by Johnson I, the Secretary could have sought a stay in any cases that would involve the application of Johnson I while that decision was on appeal to the Federal Circuit. *14-15. The Court concluded that the only factor in favor of substantial justification was the Board’s obligation to comply with Johnson I. That factor was outweighed by

(1) the Secretary’s failure to abide by the plain wording of § 3.321(b)(1) … (2) the fact that the Secretary had no policy basis for his proffered interpretation; (3) the fact that [Johnson I] was a mixed decision and on appeal while the Secretary continued to misapply § 3.321(b)(1); and (4) the fact that the Secretary had the option of staying the case pending a decision on appeal. *15.

FULL DECISION

TDIU, "MARGINAL EMPLOYMENT"

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Ortiz-Valles v. McDonald, docket no. 14-2540 (May 20, 2016)

HELD: the plain language of 38 C.F.R. § 4.16(a) does not allow VA “to limit consideration of marginal employment to only currently employed veterans.”

SUMMARY: In determining whether a claimant is entitled to a total disability rating based on individual unemployability (TDIU), the plain language of 38 C.F.R. § 4.16(a) does not allow VA “to limit consideration of marginal employment to only currently employed veterans.” The regulation defines “marginal employment” as one example “of what is not substantially gainful employment.” Therefore, “when the facts of the case reasonably raise the issue of whether the veteran’s ability to work might be limited to marginal employment,” VA must address this issue and “explain why the evidence does not demonstrate that the veteran is incapable of more than marginal employment.”

FULL DECISION

PARTIAL & TOTAL KNEE REPLACEMENT

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Hudgens v. McDonald, docket no. 2015-7030 (Fed. Cir. May 18, 2016)

HELD: Diagnostic Code 5055 provides for a 100% rating for partial as well as total knee replacements. 

SUMMARY: The Federal Circuit reversed the CAVC’s determination that DC 5055, which provides for a 100% disability rating for “[p]rosthetic replacement of knee joint . . . [f]or 1 year following implantation of prosthesis” applies only to total knee replacements and not partial knee replacements. (Note: While this appeal was pending, VA amended its regulation to clarify that language referring to “Prosthetic Implants” refers to replacement of the whole joint, unless otherwise stated in DC 5054.)

FULL DECISION

EQUITABLE TOLLING

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Threatt v. McDonald, docket no. 15-0835 (May 17, 2016) (per curiam order)

HELD: A veteran’s correspondence to his congressional representative expressing disagreement with a 2003 Board decision was a “timely misfiled” Notice of Appeal. Because this correspondence was submitted to the RO within the 120-day appeal period, the Court found that the appellant “has satisfied all the requirements of circumstance and diligence to warrant the application of equitable tolling.”

FULL DECISION

"SYSTEMIC THERAPY" DEFINED

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Warren v. McDonald, docket no. 13-3161 (May 10, 2016)

HELD: "Systemic therapy" includes both oral and parenteral medication. 

SUMMARY: The Court in this case considered the term "systemic therapy," as used in 38 C.F.R. § 4.118, and found that “the types of systemic treatment that are contemplated under Diagnostic Code 7806 are not limited to ‘corticosteroids or other immunosuppressive drugs.’ Compensation is available for all systemic therapies that are like or similar to corticosteroids or other immunosuppressive drugs.” The Court found further support for this holding in the M21-1MR, VA’s adjudication manual, which defines “systemic therapy” as “any oral or parenteral medication prescribed by a medical professional to treat the underlying skin disorder.”

FULL DECISION