Bankhead: RATING MENTAL HEALTH CONDITIONS, SUICIDAL IDEATION

Bankhead v. Shulkin, docket no. 15-2404 (Mar. 27, 2017)

HELD: Under 38 C.F.R. § 4.130, “the presence of suicidal ideation alone, that is, a veteran’s thoughts of his or her own death or thoughts of engaging in suicide-related behavior, may cause social and occupational impairment with deficiencies in most areas,” thus warranting a 70% disability rating – and does not require “evidence of more than thoughts,” inpatient treatment or hospitalizations, or total social and occupational impairment.

SUMMARY: Mr. Bankhead was service connected for PTSD, rated 50% disabling. His medical records were replete with evidence of suicidal ideation, but he also repeatedly denied having any plan or intent to harm himself. The Board determined that he was not entitled to a 70% rating because even though his medical records showed many of the symptoms associated with that higher rating, “those symptoms did not manifest with sufficient frequency and severity to meet the criteria for a higher evaluation.” The Board based this determination on its findings that he was at “low risk of self-harm,” was treated on an outpatient basis, was not hospitalized or subject to in-patient treatment, was credible in “his assurances that he would refrain from self-harm,” and that he “retained some social and occupational functioning.”

On appeal, the CAVC recognized that 38 C.F.R. § 4.130 “‘requires not only the presence of certain symptoms’ but also that those symptoms have caused the level of occupational and social impairment associated with a particular disability evaluation.” *8 (citing Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013)). The Court discussed the “longstanding public concern over the prevalence and risk of suicide among veterans” and looked to various sources to define “suicidal ideation.” *9-10. The Court found that “suicidal ideation does not require suicidal intent, a plan, or prepatory behavior” and that “both passive and active suicidal ideation are comprised of thoughts.” *10.

The Court noted that the criteria for a 70% disability rating includes “suicidal ideation” as a symptom that is representative of “social and occupational impairment with deficiencies in most areas” and that “the presence of suicidal ideation alone” may cause such impairment. *10-11. “Suicidal ideation” is only contained in the 70% rating criteria. The Court found that the Board first erred by appearing to require “more than thought or thoughts to establish the symptom of suicidal ideation,” particularly since risk of actual self-harm is “referenced in the criteria for a 100% evaluation.” *11. The Court held that the Board’s failure to differentiate between Mr. Bankhead’s suicidal ideation and his risk of self-harm “resulted in conflation of distinct concepts” and rendered its reasons or bases inadequate. *12.

The second error identified by the Court was the Board’s finding that Mr. Bankhead was not entitled to a 70% rating because he had not been hospitalized or required in-patient treatment. Id. This imposed “a higher standard than the criteria in the DC for mental disorders,” and the Court held that “VA is not at liberty to create evaluation criteria out of thin air in an individual case and then use the absence of those criteria in the veteran’s records to deny a particular mental disorder evaluation.” *12-14.

The third error found by the Court was the Board’s impermissible melding of the 70% and 100% criteria based on its determination that Mr. Bankhead “still retained some social and occupational functioning.” *14. The Court noted that while the 100% rating requires “total occupational and social impairment, a 70% evaluation requires only occupational and social impairment in most areas.” The Court summarized its holding by stating that

VA must engage in a holistic analysis in which it assesses the severity, frequency, and duration of the signs and symptoms of the veteran’s service-connected mental disorder; quantifies the level of occupational and social impairment caused by those signs and symptoms; and assigns an evaluation that most nearly approximates that level of occupational and social impairment. [Citation omitted.] Where, as here, the Board fails to adequately assess evidence of a sign or symptom experienced by the veteran, misrepresents the meaning of a symptom, or fails to consider the impact of the veteran’s symptoms as a whole, its reasons or bases for its denial of a higher evaluation are inadequate.

*14-15.

Unfortunately, despite the ample evidence of record of suicidal ideation to support the 70% disability rating, the Court determined that the appropriate remedy was remand and not reversal to enable the Board to address the evidence of suicidal ideation and consider the potential applicability of staged ratings. *16. 

FULL DECISION

Parrott: EAJA - LOCAL V. NATIONAL CPI

Parrott v. Shulkin, docket no. 2016-1450 (Fed. Cir. Mar. 13, 2017)

HELD: Where an attorney works in multiple locations, the correct method for calculating attorney fees is the local Consumer Price Index (CPI) approach, which is based on the cost of living where the legal services were actually performed, and the EAJA application should apportion the attorney’s “time to those locations and use[] the CPI for each locality.”

SUMMARY: The Equal Access to Justice Act (EAJA) provides for an hourly rate of $125 – and allows for an adjustment to this rate to reflect the increased cost of living. The increase is based on one of two calculations: the national Consumer Price Index (CPI) or the local CPI. The national approach focuses on the “national scope of the statutory cap and the ease of computation,” whereas the local approach focuses on where an attorney works and has an office.

In this case, Ms. Parrott’s attorney has his principal office in Dallas, Texas, with additional offices in San Francisco, California and Little Rock, Arkansas. The attorney worked on Ms. Parrott’s case at all three offices. In the EAJA application, he calculated the attorney fee using the CPI rate for Washington, DC. He asserted that this was consistent with the Court’s prior holding in Mannino v. West, 12 Vet.App. 242, 243 (1999), which applied “the local cost-of-living increase actually experienced … where work was performed nationally but always before the Court in Washington, DC.” The Secretary objected to the EAJA application, asserting that the appropriate rate was the CPI for Dallas, the location of the attorney’s principal office.

The CAVC disagreed with both parties, and determined that the fairer approach was to “use the local CPI to calculate the hourly rate for each of the three locations in which [the attorney] performed work and to then review [the attorney’s] itemized billing statement and apportion each billing entry to the firm office where the work resulting in the entry was performed.” Because this approach would require the Court “to seek additional information” from the appellant and her attorney and to “calculate four separate hourly rates,” the Court declined to take on this task and instead ruled that the attorney was entitled to the statutory $125 hourly rate.

On appeal to the Federal Circuit, the attorney argued that the “EAJA does not mandate a particular method for computing attorney fees,” and because statutory ambiguity should be construed in the veteran’s favor, he should be allowed to use the CPI approach that yields the highest fee. This “optimal yield” approach would allow the attorney to use the CPI for Washington, DC. The Secretary argued that the local CPI approach is more consistent with the language of the EAJA and produces fairer results. The Secretary resisted the “optimal yield” approach, noting that the EAJA is not a veterans benefits statute. He further argued that because the EAJA “represents a waiver of sovereign immunity … [it] should be strictly construed in the government’s favor.”

The Federal Circuit examined the language of the statute, discussed the relevant case law, and determined that “the local CPI approach, where a local CPI is available … is more consistent with EAJA than the national approach.” The Court held that the CAVC did not err in ruling that the local CPI approach was the correct calculation method, and that it correctly determined that the attorney’s EAJA application should have apportioned his time to the different locations of his offices and used the CPI’s for each locale.

The Federal Circuit disagreed with the proposed “optimal yield” approach, finding nothing in the statute that would permit a claim for “the highest fee.” The Court found that this approach “runs afoul of the statutory text and EAJA’s prohibition against windfalls.” The Court added that the doctrine of resolving interpretive doubt in the veteran’s favor does not apply to EAJA because EAJA is not a veterans benefits statute.

Finally, the attorney argued that the decision to award the statutory rate of $125 per hour was an abuse of discretion because the CAVC did not permit him to resubmit a corrected EAJA application. The Federal Circuit determined that it lacked jurisdiction “to review all discretionary actions” of the CAVC, and stated that its “jurisdiction attaches when the Veterans Court commits an abuse of discretion rising to the level of legal error.” The Court found that the CAVC “did not interpret any law or regulation in declining to permit [the attorney] to resubmit a corrected EAJA application.” Rather, the CAVC simply determined that the requested fee was not reasonable and “used its broad discretion” to calculate what it deemed an appropriate fee. The Court found no legal error in the CAVC’s ruling.

FULL DECISION

Cook: ADDITIONAL BOARD HEARING FOLLOWING COURT REMAND

Cook v. Snyder, docket no. 15-0873 (Jan. 31, 2017)

HELD: Under 38 U.S.C. § 7107(b), “a claimant who received a personal hearing before the Board at an earlier stage of appellate proceedings in entitled to receive, upon request, a Board hearing following this Court’s remand of the same claim.”

SUMMARY: Mr. Cook was denied service connection for a back condition in 2000. He did not appeal that decision and it became final. In 2006, he filed a request to reopen his claim. The Regional Office (RO) denied the request, determining that he had not submitted new and material evidence that would warrant reopening. He appealed to the Board and testified at a hearing in 2012. The Board determined that new and material had been submitted to reopen the claim, and remanded the issue back to the RO, along with the issue of entitlement to a total disability rating based on individual unemployability (TDIU). The RO continued to deny the claim, and Mr. Cook requested a Board hearing so that he could submit additional evidence. In 2014, the Board acknowledged Mr. Cook’s request for a hearing, but denied the request because he had already been afforded one.

Mr. Cook appealed to the CAVC and the parties entered into a joint motion for remand (JMR) based on the Board’s failure to address favorable a private medical opinion. In November 2014, Mr. Cook again requested a Board hearing so that he could submit additional evidence. In February 2015, the Board denied service connection and TDIU. The Board again acknowledged his hearing request, but stated that the pertinent regulation provides for “a” hearing on appeal, and he already was afforded a hearing.

On appeal to the CAVC, Mr. Cook argued that because he had a protected property interest in obtaining VA benefits, the Board’s denial of a hearing following a remand violated his constitutional due process right to be heard. The Court ordered the parties to submit supplemental memoranda of law regarding any regulatory or non-constitutional authority that addressed a claimant’s right to more than one hearing. Mr. Cook argued that VA’s regulations do not expressly limit a veteran’s right to multiple hearings, specifically asserting that the “indefinite article ‘a’ in [38 C.F.R.] § 20.700(a) does not limit a claimant to one hearing.”

The Secretary argued that neither the statute (38 U.S.C. § 7107) nor the regulation provides for a Board hearing in this situation, asserting that “the indefinite article ‘a’ usually connotes the singular.” He noted that other regulations provide for new hearings “only in certain circumstances not implicated here.” He asserted that even if the statutory and regulatory language were ambiguous, the Court should defer to his interpretation, adding that there are currently thousands of pending Board hearings and allowing for multiple hearings in situations like these “would intolerably burden the system and violate the general rule that agencies are entitled to discretion in implementing their own procedures.” 

The Court first discussed the history of 38 U.S.C. § 7107 and explained the importance of hearings in the VA adjudication process. The Court next considered the statutory language (“The Board shall decide any appeal only after affording the appellant an opportunity for a hearing”) and found that it was ambiguous because it did not “specify that a claimant is limited to one Board hearing irrespective of the number or remands he or she is granted nor does it unambiguously specify that a claimant is entitled to a Board hearing upon request each time a remand is granted.”

The Court did not defer to the Secretary’s interpretation because it found that no VA regulation “resolves the ambiguity in the statute” and because VA’s regulation, 38 C.F.R. § 20.700(a), was promulgated before the statute was enacted. The Court noted that “the statute was enacted to codify the regulatory hearing rights before the Board.” (Emphasis in original.) Therefore, this regulation “cannot possibly have been promulgated to interpret it.” The Court concluded that the Secretary’s interpretation was not persuasive and held that “a VA claimant who has had a Board hearing during one stage in the appellate proceedings is not barred from receiving a Board hearing when the claim is at a different stage in the proceedings, namely, following a remand from this Court.”

The Court further analyzed the statutory language under a less deferential standard, focusing on “its context and with a view to its place in the statutory scheme.” The Court noted that “the VA adjudicatory process ‘is designed to function throughout with a high degree of informality and solicitude for the claimant’” and found that “[r]eading section 7107(b) as barring a claimant who has previously testified at a Board hearing from receiving a Board hearing during a subsequent stage of appellate proceedings – particularly following a remand from this Court – would be neither solicitous of a claimant nor productive of informed Board decisionmaking.”

The Court pointed out that the appellate issue(s) “may change or evolve as a claim wends its way through the VA claims and appeals process” – which is precisely what happened in Mr. Cook’s case. The issue on appeal at the time of his Board hearing was whether new and material evidence had been submitted to reopen his claim. By the time he requested the additional hearing in 2014, the issue had changed to whether the new and material evidence was sufficient to establish entitlement to service connection for a back condition. The Court reiterated its holding as properly interpreting section 7107(b) to allow “a VA claimant the right to request and receive a Board hearing for the purpose of submitting additional evidence after a remand from the Court, even if he or she previously received a hearing before the Board at another stage of appellate proceedings.”

The Court added that “this case implicates the presumption announced in Brown v. Gardner, 513 U.S. 115, 118 (1994), that any doubt in the interpretation of a VA statute must be resolved in favor of a veteran,” and noted that “even where the Secretary’s asserted interpretation is ‘plausible,’ adopting an interpretation that is less favorable to the veteran would be appropriate ‘only if the statutory language unambiguously’ required that less favorable interpretation.” The Court found that the Secretary’s interpretation was not required by the statutory language and was less favorable to the veteran.

Finally, the Court addressed the Secretary’s concerns regarding the burden these additional hearings would impose on VA. The Court stated that it “is not adopting the veteran’s reading of the statute, that he is entitled to a Board hearing at any time on any issue for any reason.” Rather, the Court again reiterated its holding that “a claimant who received a personal hearing at one stage of appellate proceedings before the Board is not barred from requesting and receiving a Board hearing during a separate stage of appellate proceedings before the Board, namely, following a remand from this Court.” The Court added that it “is not convinced that its holding will lead to a wave of requests for additional Board hearings,” noting that a claimant will weigh the right to request an additional Board hearing against the inherent delay in issuing a decision that will be caused by the request.

The Court added that if the Secretary disagrees with the Court, he is free to promulgate a new regulation that resolves the statutory ambiguity. The Court restated its holding again, “under section 7107(b), a claimant who received a personal hearing before the Board at an earlier stage of appellate proceedings is entitled to receive, upon request, a Board hearing following this Court’s remand of the same claim."

Advocacy note: The Court restated the holding of this case at least four times. Read together, the criteria for obtaining an additional Board hearing require that the claimant must (1) request the hearing in writing (2) at a subsequent stage of proceedings (3) following a Court remand of the same claim (4) for the purpose of submitting additional evidence.

FULL DECISION

Kays: CREDIBLE SUPPORTING EVIDENCE, 38 C.F.R. § 3.304(f)

Kays v. Snyder, docket no. 2016-1314 (Fed. Cir. Jan. 25, 2017)

HELD: The Court reviews the question of whether a veteran has submitted “credible supporting evidence” to support the occurrence of a claimed PTSD stressor event under the “clearly erroneous” standard of review.

SUMMARY: Charles Kays sought service connection for PTSD based on two non-combat stressor events. In one event, he claimed he was stabbed during a fight. In another, he claimed that while he was taking diving lessons off duty, he assisted in recovery efforts after a helicopter crash. To establish the occurrence of these events, he submitted lay statements, testimony, and a newspaper article regarding the helicopter crash. The article said nothing about recovery assistance provided by diving students. 

The Board denied his claim because he did not present evidence to support the occurrence of these stressor events. The Board rejected the lay statements because they were unsupported and contradicted by other evidence of record. The Board rejected the credibility of his testimony regarding the helicopter crash recovery because of the “lack of supporting detail in the article, his delay in reporting the event, and his changing and inconsistent story.”

On appeal to the CAVC, Mr. Kays argued that the Court “should review de novo the Board’s decision on whether a veteran has submitted credible supporting evidence that a claimed in-service stressor occurred.” The CAVC rejected this argument, finding that question to be a factual one that is reviewed under the “clearly erroneous” standard of review. Mr. Kays appealed to the Federal Circuit, and the Federal Circuit agreed with the CAVC.

The regulation in question, 38 C.F.R. § 3.304(f) requires that a non-combat veteran seeking service connection for PTSD provide “credible supporting evidence that the claimed in-service stressor occurred.” Mr. Kays argued that this requirement is an evidentiary burden that the Court should review de novo. The Federal Circuit found that while this requirement does impose an evidentiary burden on the claimant, this is “a quintessential factual inquiry” and “precisely the type of factual determination that the Board is tasked with making” and that “the Veterans Court reviews for clear error.”

The Court further noted that de novo review is reserved for situations where the Board “has explicitly interpreted a statute or regulation ‘concerning the correct standard for service connection’” or is “establishing a legal rule to be applied to similar fact situations in future cases.” The Court found that the Board “made quintessential factual determinations regarding Mr. Kays’s evidence, statements, and credibility, and found that he was not entitled to service connection.” The Court thus held that the CAVC “appropriately reviewed these factual determinations under the clearly erroneous standard.”

At oral argument, the veteran asserted that the regulation “requires only evidence that the ‘stressor occurred,’ not that it occurred to the veteran.” (emphasis in original). The Court rejected this argument, stating that the regulation requires “credible supporting evidence that the claimed in-service stressor occurred.” Mr. Kays’s claimed in-service stressor involved his participation in the recovery efforts following a helicopter crash. The regulation thus required him “to submit credible evidence that he was involved in search and rescue activities and not simply that a civilian helicopter crash occurred.”

The Court also rejected Mr. Kays’s argument that his current PTSD diagnosis “assures that the in-service stressor occurred to the veteran,” finding that “a physician’s diagnosis of PTSD does not necessarily identify what stressor caused it.” The Court stated that “the regulation requires the veteran to separately submit credible supporting evidence that the claimed in-service stressor occurred.” The Federal Circuit thus held that the CAVC “applied the proper standard of review” and affirmed its decision “because § 3.304(f) requires credible supporting evidence that the claimed in-service stressor occurred as claimed by the veteran.”

Advocacy note: The focus of this case is on the CAVC’s standard of review of the Board’s factual determination as to whether a veteran has submitted “credible supporting evidence that the claimed in-service stressor occurred.” The CAVC has previously held that the requirement of corroborating evidence under 38 C.F.R. § 3.304(f) does not require “corroboration of every detail including the appellant’s personal participation in the [event].” Suozzi v. Brown, 10 Vet.App. 307, 311 (1997); see also Pentecost v. Principi, 16 Vet.App. 124, 129 (2002) (holding that § 3.304(f) “only requires, as to stressor corroboration, ‘credible supporting evidence’ that the claimed in-service stressor occurred”).

In both Suozzi and Pentecost, the Court held that where there was corroborating evidence of the occurrence of a stressor event, the veteran’s personal involvement could, in certain circumstances, be inferred from the evidence. In Suozzi, the corroborating evidence showed that the veteran’s unit in Vietnam experienced casualties from an attack – and the Court could infer from this evidence that even a “company clerk [the claimant] would assist in the casualty identification.” Suozzi, 10 Vet.App. at 310-11. In Pentecost, the corroborating evidence showed that the veteran was stationed with a unit in Vietnam that experienced rocket attacks – and the Court found that this evidence “strongly suggest[s] that he was, in fact, exposed to the attacks.” Pentecost, 16 Vet.App. at 128.

Although the Federal Circuit in Kays did not mention Suozzi or Pentecost, its decision appears to undermine the holdings of those two cases. One distinguishing factor is that the stressor events in Kays occurred while the veteran was off duty, and, therefore, there were no service records to corroborate these events – whereas the events in Suozzi and Pentecost were corroborated by service records showing that the claimed events actually happened to the claimants’ units, and the Court could thus infer the claimants’ participation in those events.

As a practical matter, advocates should explain the credible, corroborating facts of their cases at the agency level – and, if denied, should argue at the Court that the Board’s rejection of that credible, corroborating evidence was clearly erroneous.

FULL DECISION

Vilfranc: RATING TMJ

Vilfranc v. McDonald, docket no. 15-0904 (Jan. 5, 2017)

 

HELD: The diagnostic code for temporomandibular joint dysfunction (TMJ), 38 C.F.R § 4.150, Diagnostic Code (DC) 9905, allows for “only a single disability rating for limitation of inter-incisal motion.” 

SUMMARY: Veteran Mary Vilfranc appealed a Board decision that denied entitlement to a disability rating in excess of 10% for TMJ, arguing that she was entitled to separate disability ratings for each joint.

The Secretary argued that Ms. Vilfranc was not entitled to an additional rating because she had not shown that she has more than one distinct disability. The Secretary also argued that DC 9905 supports the assignment of a single rating because the temporomandibular joints operate as a single unit.

In her reply brief, Ms. Vilfranc argued that 38 C.F.R. § 4.59 supported the assignment of separate compensable ratings because she experienced pain in each joint.

The Court first discussed the “location and function of the temporomandibular joints,” explaining that the temporomandibular is the combination of three facial bones – the mandible and two temporal bones – that are connected and act in concert, aided by the temporomandibular joint on each side. The Court rejected Ms. Vilfranc’s argument under 38 C.F.R. § 4.59, stating that this regulation provides for a minimum compensable rating for a joint that is actually painful even when evaluating a condition that is not predicated on range of motion – and that she is already in receipt of the minimum compensable rating (10%) for actual limitation of motion. The Court reiterated, “§ 4.59 is meant to compensate a claimant whose pain does not cause enough limitation of motion in a joint to reach a compensable level; it is not for application where, as here the claimant already has a compensable level of limitation of motion.”

The Court then addressed whether the Secretary’s interpretation of DC 9905 – as limiting a claimant to a single disability rating for TMJ – was reasonable and thus entitled to deference. Relying, on the Federal Circuit’s opinion in Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006), which dealt with a similar argument regarding the assignment of a single disability rating for tinnitus even when the condition is experienced in both ears, the Court determined that the regulation in question was ambiguous, but that the Secretary’s interpretation was reasonable, even though it was offered for the first time in a brief. The Court concluded that “a claimant is entitled to only a single disability rating for limitation of inter-incisal motion under 38 C.F.R. § 4.150, Diagnostic Code 9905.”

FULL DECISION

2016 VETERANS LAW HOLDINGS

Download pdf of 2016 Veterans Law Holdings

McCarroll: DISABILITY RATING, HYPERTENSION

McCarroll v. McDonald, docket no. 14-2345 (en banc) (Nov. 7, 2016)

HELD: Because the diagnostic code for hypertension (38 C.F.R. § 4.104, DC 7101) specifically discusses the effects of medication, the Board was not required to consider whether a compensable rating would be warranted if the veteran was not medicated.

SUMMARY: Veteran Billy D. McCarroll appealed the Board’s denial of a compensable disability rating for his service-connected hypertension, arguing that the Board “failed to discount the ameliorative effects of his blood pressure medication.” Without his medication, he argued, his blood pressure would be at compensable levels. For support, Mr. McCarroll cited Jones v. Shinseki, 26 Vet.App. 56, 63 (2012), which held that the Board cannot deny a higher disability rating based on symptoms that are relieved by medication when the diagnostic code does not contemplate the effects of medication on the condition.

The Court held that Jones did not apply in this case because the diagnostic code for hypertension, DC 7101, expressly considers the effects of medication. DC 7101 provides for a 10% disability rating if (1) diastolic pressure is predominantly 100 or more OR (2) systolic pressure is predominantly 160 or more OR (3) “for an individual with a history of diastolic pressure predominantly 100 or more who requires continuous medication for control.” Although Mr. McCarroll did require medication for his hypertension, his medical records did not show a history of diastolic pressure at 100 or more or systolic pressure at 160 or more. Because of this, the Court further held that the Board did not err when it determined that Mr. McCarroll’s symptoms did not more nearly approximate the criteria for a 10% disability rating. The Court also rejected his argument that he was entitled to referral for extraschedular consideration because he did not raise that issue at the Board or the RO.

In a concurring opinion, two judges argued that Jones should be overturned as it is “predicated on a misunderstanding of the rating schedule.” These judges note that “although some diagnostic codes mention the fact of medication usage as a rating criterion, none require the Board to make any affirmative use of information about the ‘ameliorative effects’ of the medication.” They also note that the Jones holding “invites medical speculation in trying to guess what a veteran’s symptoms might be without the medication, or medical malpractice in the cessation of medication so that the veteran’s symptoms without medication might be recorded.”

In a dissenting opinion, two other judges found that DC 7101 provided three alternative paths to a 10% disability rating – and only one of those “contemplates the ameliorative effects of medication.” The dissenting judges would have held that Jones applies to this case and that the Board erred when it failed to consider the ameliorative effects of medication under the first two paths to a 10% rating under DC 7101.

FULL DECISION

Cox: AFGHANISTAN VETERANS NOT ENTITLED TO PERSIAN GULF PRESUMPTIONS

Cox v. McDonald, docket no. 14-2779 (Nov. 7, 2016)

HELD: Veterans with Afghanistan service are not entitled to the presumption of service connection for certain conditions, including chronic undiagnosed illnesses, provided in 38 U.S.C. § 1117 and 38 C.F.R. § 3.117. VA’s exclusion of Afghanistan from its definition of the geographic area comprising the “Southwest Asia theater of operations” is “reasonable” in light of the legislative history of 38 U.S.C. § 1117, and VA’s Training Letter that indicated that VA was going to amend its regulation to include Afghanistan was not a substantive rule that required a “notice-and-comment” period in order to be rescinded.

SUMMARY: Veteran Clifford Cox appealed the Board’s denial of service connection for back and knee disabilities, arguing to the Court that the Board failed to apply the “Gulf War provisions” of 38 U.S.C. § 1117. This statute and its implementing regulation, 38 C.F.R. § 3.117(b), provide for presumptive service connection for veterans with “qualifying chronic disabilities,” including diagnosed and undiagnosed illnesses, who served in the “Southwest Asia theater of operations.”

Mr. Cox served in Afghanistan in 2009, and began experiencing back and knee problems during that deployment. His current x-rays and examinations were negative for any abnormalities. However, he argued that the statute and case law (specifically, Joyner v. McDonald, 766 F.3d 1393, 1395 (Fed. Cir. 2014)) state that pain alone “may establish an undiagnosed illness that causes a qualifying chronic disability.” Because the record contained medical and lay evidence of back and knee pain that the Board found credible, he argued that the Board erred by failing to apply the presumptions of 38 U.S.C. § 1117.

He also pointed out that in February 2010, VA issued a Training Letter indicating that it was going to amend its regulation to include Afghanistan in the definition of “Southwest Asia theater of operations.” In October 2010, VA issued a revised version of that Training Letter that deleted the language concerning veterans with Afghanistan service. Mr. Cox argued that the February 2010 Training Letter created a “substantive rule” that VA could not withdraw or change without complying with the “notice-and-comment” requirements of the Administrative Procedure Act.

The Court disagreed with Mr. Cox’s interpretation of the statute and with his characterization of the Training Letter as a substantive rule.

The Court first noted that Congress did not define the geographic area comprising the “Southwest Asia theater of operations” in 38 U.S.C. § 1117 – but instead delegated the authority to VA to issue regulations that defined the area. The Court found that the plain language and the legislative history of the statute did not support Mr. Cox’s position – particularly since Afghanistan was not part of the “Southwest Asia theater of operations” when the statute was first enacted in 1994. After 9/11, when Afghanistan was added by Executive Order as a combat area, Congress amended the statute in December 2001 to expand the definition of included illnesses – but still did not include a definition of “Southwest Asia theater of operations.”

In 2010, VA proposed to amend its regulation to include Afghanistan, but that never made it into the final rule. Based on the plain language of the statute – and the legislative history showing that Congress could have, but did not amend the statue to define the geographic area to include Afghanistan – the Court found VA’s interpretation of the statute as including only the original Desert Storm theater of operations to be permissible.  

With respect to the Training Letter, the Court found that it did not create any substantive “rights” that a claimant could rely on – but that it instead only provided “guidance” to VA personnel regarding potential future changes to the regulations.

The Court acknowledged that VA has publicly recognized that Afghanistan veterans face the same types of exposures to environmental hazards as Iraq veterans – and “encouraged” VA to “review the appropriateness of an overall change to the definition of ‘Southwest Asia theater of operations’ to explicitly include Afghanistan.” Unfortunately, the Court made these statements in footnotes, which do not alter the holding of this case.

FULL DECISION

Green: REMOTE VBMS ACCESS

Green v. McDonald, docket no. 16-0740 (per curiam order) (Oct. 24, 2016)

HELD: There is no regulatory right to remote access to the Veterans Benefits Management System (VBMS) for attorneys practicing before the Veterans Court who are not accredited to practice before VA.

SUMMARY: Mr. Green appealed an adverse Board decision to the Court of Appeals for Veterans Claims (CAVC). Pursuant to the Court’s rules, the Secretary provided Mr. Green’s attorney with a copy of the Record Before the Agency (RBA), and the attorney had 14 days to dispute the contents and/or preparation of the RBA.

Recognizing a potential discrepancy in the RBA, the attorney requested “read-only” remote access to Mr. Green’s electronic file contained in VA’s Veterans Benefits Management System (VBMS). The Secretary denied remote access, but would allow the attorney to review the file at any VA office. The attorney filed a motion with the Court asking the Court to compel the Secretary to allow remote read-only access to his client’s VBMS file. In the motion, he argued that VA’s own regulations allow attorney access to “VBA automated claims records from a location other than a VA [regional office]” – and that the Secretary cannot require attorneys to be accredited by VA in order to gain such access for Court proceedings.

The Secretary argued that he had offered the attorney the same opportunity to review the veteran’s file as any non-accredited attorney representing a veteran at the Court prior to VA’s adoption of an electronic records management system. The Secretary asserted that VA accreditation is required for remote read-only access so as to protect VA’s “internal system which contains highly sensitive records.” The Secretary stated that the regulations “do not confer an enforceable right” to remote VBMS access – and that the regulations cited by Mr. Green’s attorney are inapplicable to VBMS.

The Court agreed with the Secretary. The Court examined the regulations cited by the attorney, 38 C.F.R. §§ 1.600-.603, and determined that while there is no requirement that an attorney be accredited by VA to remotely access “VBA automated claims records,” this category of records does not include VBMS files. The Court based this determination on the plain language of 38 C.F.R. § 1.600(c)(1), which expressly limits access to certain categories of data. The Court noted, in a footnote, that it was “unsettling that the Secretary has not amended his regulations to reflect his current telecommunications systems and the data that is available via remote access.” Nevertheless, the Court declined to redefine “automated claims records” in the regulations to include VBMS.

The Court further determined that VA’s policy of requiring attorneys in Court proceedings to travel to a VA office to review a veteran’s electronic claims file was reasonable in light of VA’s “longstanding” policy “rooted in safeguarding individual privacy from the misuse of information.” The Court noted that VA did not deny access to Mr. Green’s VBMS file – but only denied remote access to a non-accredited attorney. The Court thus held that the Secretary’s policies and procedures regarding access to original materials in the RBA – “whether that material is stored in paper or electronic format” – are reasonable and in compliance with the Court’s own rules.

Even though the Court agreed with the Secretary in the holding of this case, the Court stated that it was “compelled to comment on the Secretary’s current stance” requiring VA accreditation as the only way for VA to protect the privacy of records – as the Secretary did not explain how accreditation “by VA serves any security purpose.” The Court noted the length of time it takes to become accredited by VA, which is longer than the amount of time an attorney would have to dispute the RBA in a court proceeding, and referred to the Secretary’s “endeavor to make remote read-only access available” via VA accreditation as “an empty gesture,” particularly for attorneys who only represent veterans at the Court. 

In a concurring opinion, Judge Lance noted that some attorneys – particularly in rural areas – might be hundreds of miles from a VA office where they would be able to review an appellant’s original or VBMS file. (The attorney in this case worked less than a mile from a VA regional office.) Judge Lance stated if an attorney had to travel a significant distance to review the original file, he was “not certain” that VA’s current procedures would be considered “reasonable.

FULL DECISION