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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Walsh: Obesity as "intermediate step"

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

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

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

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

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

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

Langdon: Rating thoracic/lumbar spine conditions

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Shealey: EAJA, discharged attorneys

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

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

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

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

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

EVENT: NOVA 2019 Fall Conference

September 12-14, 2019, National Organization of Veterans’ Advocates conference, Portland, OR

ABK presents on fee agreements at NOVA’s 2019 Fall conference basic session.

LINK TO BROCHURE

LINK TO NOVA CONFERENCE SITE: https://www.vetadvocates.org/events/2019-fall-conference

Crumlich: Presumption of mailing SOC rebutted

Crumlich v. Wilkie, docket no. 17-2630 (June 6, 2019)

HELD: VA’s regulation, 38 C.F.R. § 20.302(b)(1), presumes that the date on the Statement of the Case (SOC) is the date it was mailed, if there is no date on the cover letter. The Court invalidated this portion of the regulation, find that it potentially conflicts with the statute that affords claimants 60 days to appeal an SOC from the date the SOC was actually mailed. The Court found that the undated SOC cover letter, the confusing instructions in the letter, and the absence of evidence showing when the SOC was actually mailed was clear evidence to rebut the presumption of regularity that VA followed its regular mailing practices.

SUMMARY: Veteran appealed a VA denial of benefits and VA issued a Statement of the Case (SOC), dated June 2, 2015. The cover letter accompanying the SOC stated that the claimant had 60 days from the date of the letter to appeal – but the letter was undated. On page 15 of the 18-page SOC, the RO included languagr from 38 C.F.R. § 20.302(b)(1), which states that the “date of the mailing of the [SOC] will be presumed to be the same as the date of the [SOC].” Based on that regulation, the veteran had until August 3, 2015 to submit his appeal.

On August 11, 2015, he filed his appeal, through counsel, explaining that the letter accompanying the SOC was undated and that he did not know when the appeal was due. He asked the RO to accept the appeal as timely.

The RO rejected the appeal as untimely and the veteran appealed that decision. The Board acknowledged that the cover letter was undated, but noted that the SOC was dated and contained the language of § 20.302(b)(1), and thus concluded that the RO properly closed the appeal.

The CAVC first discussed the competing presumptions presented in this case: (1) the regulatory presumption in § 20.302(b)(1) that presumes an SOC was mailed on the date of the SOC and (2) the judge-made presumption of regularity that presumes “that public officers perform their duties correctly, fairly, in good faith, and in accordance with the law and governing regulations.” The Court determined that the regulatory presumption in § 20.302(b)(1) would apply in this case, since it “specifically addresses the date of the of mailing of the SOC, the precise issue in this case.”

Appellant challenged the validity of this regulation, arguing that it was inconsistent with its authorizing statute, 38 U.S.C. § 7105(d), which states that a claimant “will be afforded a period of sixty days from the date the [SOC] is mailed to file the formal appeal.” The Secretary conceded that the letters accompanying SOCs are sometimes dated later than the date of the SOC – and that the letter states that a claimant has 60 days from the date of the letter to appeal. The Secretary stated that the regulatory presumption applies in cases where the letter is undated. The Secretary conceded that, in this case, where the letter was undated, VA has no information about when the SOC was actually mailed or received. The Court found that the date on the letter is “clear evidence” of when the SOC was mailed – and that the regulatory presumption applies only when there is no date on the letter. The Court thus determined that “the regulatory presumption is not applied to ensure that all claimants receive 60 days from the date the SOC ‘is mailed’ to file a Substantive Appeal” – but rather it is used to “shield VA” in cases where it is actually unknown if the claimant received the statutorily mandated 60 days to file his or her appeal. The Court invalided the portion of § 20.302(b)(1) regarding the presumption that the SOC was mailed on the date on the SOC.

The Court next turned to the general presumption of regularity and assumed, without deciding, that it did apply and that the Secretary could rely on it. The presumption of regularity can be rebutted with “clear evidence that VA did not follow its regular mailing practices or that its practices were not regular.” The Court found that the undated letter in this case and the Secretary’s concession that SOC letters are sometimes dated after the date of the SOC was “sufficient to show that, even assuming the Secretary has a regular procedure for dating and mailing SOCs, … that procedure was not followed in this case.” Additional evidence to rebut the presumption of regularity included the confusing instructions in the letter indicating that the letter was dated (when it was not) and the Secretary’s concession that he did not have any specific information about when the SOC was actually mailed.

Once the presumption of regularity has been rebutted, the burden shifts to the Secretary to show that the mailing was proper. Based on the undated letter and the absence of information regarding the actual mailing of the SOC, the Court found that the Secretary did not meet this burden. The Court remanded for the Board to determine when the Appellant received the SOC and whether it was timely appealed.

In a concurring opinion, Judge Pietsch expressed frustration at the Secretary’s actions in this case:

His decision to take a hard line even though he mailed the appellant an incorrect, improperly prepared and plainly misleading notice letter caused a lot of resources to be wasted—not least the appellant’s time—all to receive a decision that costs VA the use of a regulation. If the paternalistic nature of VA is to be more than mere platitude, cases like this should be handled in a more empathetic manner. 

FULL DECISION

Event: NOVA 2019 Spring Conference

March 21, 2019, Basic Session, NOVA 2019 Spring Conference, Nashville, TN

ABK will present on “How To Get Your Client’s Condition Service Connected.”

LINK TO BROCHURE

LINK TO NOVA CONFERENCE SITE: https://www.vetadvocates.org/events/2019-spring-conference

Jones: VA's duty to obtain VA medical records

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

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

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

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

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

FULL DECISION

James: Equitable Tolling; Extraordinary Circumstances

James v. Wilkie, 917 F.3d 1368 (Fed. Cir. Mar. 7, 2019)

HELD: In determining whether a situation is extraordinary enough to warrant equitable tolling of the 120-day appeal deadline, the Court must analyze the specific facts of the case and cannot make a “categorical determination that a particular set of facts will never warrant equitable tolling of the filing deadline.” 

SUMMARY: Charles James sought service connection for back and neck conditions and an increased rating for pseudofolliculitis barbae. The Board denied his claims on January 28, 2016. On May 27, 2016, Mr. James put his Notice of Appeal to the CAVC in a stamped envelope, put the envelope in his home mailbox, and raised the flag on the box for collection. He then left town for the weekend. He returned the evening of May 30 – and saw that the mail had not been picked up. He mailed it that night and the CAVC received the appeal, postmarked May 31, 2016.

This was more than 120 days after the January 28, 2016 decision – so the CAVC ordered Mr. James to show cause why his appeal should not be dismissed. Through counsel, Mr. James responded, arguing that the 120-day appeal deadline should be equitably tolled because “an errantly lowered flag on his residential mailbox constitutes an extraordinary circumstance beyond his control.” He submitted a sworn declaration that he had spoken with his neighbor who had received mail on May 27 – and had seen some neighborhood kids playing in the street who “might have put the flag down.” The CAVC dismissed the appeal because he had not demonstrated that equitable tolling was warranted because “a fallen mailbox flag” was not “an extraordinary circumstance beyond [his] control … but rather an ordinary hazard of last minute mailing that could have been avoided.” 

On appeal to the Federal Circuit, Mr. James argued that the CAVC erred as a matter of law by “creating a categorical ban against equitable tolling in cases involving a fallen mailbox flag.” The Federal Circuit agreed, finding that the CAVC did not perform the necessary case-specific analysis of Mr. James’s case, but instead “made a categorical determination that a fallen mailbox flag is not entitled to equitable tolling but is ‘rather an ordinary hazard of last-minute mailing that could have been avoided.”

The Federal Circuit held that “because the extraordinary circumstances element requires a case-by-case analysis” the CAVC erred in making what appeared to be a categorical determination that Mr. James’s fallen mailbox flag did not neatly fall into “one of the factual patterns of past cases” that considered equitable tolling. The Court stated that the CAVC “failed to consider whether the fallen mailbox flag due to an alleged third-party interference with the federal collection of mail could justify invoking equitable tolling in Mr. James’s case as a matter of law.” 

The Court further held that “it is irrelevant to the extraordinary circumstances element analysis whether Mr. James could have done more after he put his NOA in his residential mailbox” – when the relevant and undisputed fact was that he put his NOA in a mailbox “in time for it to be postmarked within the 120-day filing deadline.” 

FULL DECISION

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

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

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

FULL DECISION

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

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

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

FULL DECISION

 

Skaar: Limited remand; class action certification

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

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

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

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

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

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

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

FULL DECISION

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

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

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

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

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

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

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

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

FULL DECISION

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

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

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