Hatfield: Informed consent, 38 U.S.C. § 1151

Hatfield v. McDonough, docket no. 19-7165 (Mar. 8, 2021)

HELD: In McNair v. Shinseki, 25 Vet.App. 98, 100 (2011), the Court held that “deviations from the informed consent requirements of 38 C.F.R. § 17.32 are minor and immaterial if a reasonable person in similar circumstances would have proceeded with the medical treatment even if informed of the foreseeable risk.” The issue addressed by the Court here was whether this exception to the informed-consent requirement applies where VA obtains no consent. The Court held that “McNair applies only when VA has attempted to obtain informed consent but obtains consent that contains some defect.” It does not apply where VA does not obtain any consent at all. The Court reversed the Board’s decision and granted benefits.

SUMMARY: Veteran was treated for Hodgkin’s disease with radiation therapy at VA facility. There was no evidence of informed consent in his medical records. The radiation eliminated the Hodgkin’s disease, but caused severe pulmonary complications that resulted in his death. His wife applied for DIC and death pension benefits under 38 U.S.C. § 1151 and was repeatedly denied. The present appeal arises from a 2010 request to reopen. After eight Board decisions and two appeals to the Court, the Court finally ended her “long march through the VA system.”

The Court explained the requirements for establishing service connection under § 1151 (additional, qualifying disability; actual causation; proximate causation – carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault, or event not reasonably foreseeable.” In this case, there was no dispute that there was an additional, qualifying disability (pulmonary complications) that were actually caused by VA treatment (radiation). The only disputed element was regarding proximate cause.

To establish proximate cause (carelessness, etc.), claimant must show either (1) VA failed to exercise the degree of care expected of a reasonable health care provider OR (2) VA provided the treatment without obtaining informed consent. 38 C.F.R. § 3.361(d)(1). Informed consent must meet the requirements of 38 C.F.R. § 17.32 – but “minor deviations” that are “immaterial under the circumstances of the case” will not defeat a finding of informed consent.” 38 C.F.R. § 3.361(d)(1)(ii).

In this case, the Board determined that informed consent can be established EITHER (1) through evidence of a document signed by the patient or representative showing that the practitioner explained the procedure, its benefits, and risks OR (2) by showing that a reasonable person would have proceeding with the treatment even if informed of the risks. This is a misstatement of the McNair rule – and is contrary to the plain language of § 3.361 and 17.32, which do not contemplate the “reasonable person” alternative exception to establishing informed consent where there is no evidence of any consent at all.

McNair’s “reasonable person” alternative provides an exception to defective consent – when the defect is a “minor deviation” from 17.32’s requirements. It does not provide an alternative to a finding of informed consent. In McNair, there was evidence of an attempt to obtain informed consent – but it was defective in that it did not provide information of a specific potential risk. The McNair Court held that “VA’s failure to inform a patient about a potential adverse effect did not defeat a finding of informed consent if a reasonable person faced with similar circumstances would have proceeded with the treatment.” Here, the Court held that “McNair does not apply when there is no attempt to obtain consent (as opposed to where defective consent has been obtained).”

Here, the Board made a factual finding that there was no evidence of informed consent in the record – yet attempted to use the McNair rule to excuse the wholesale lack of consent as a “minor deviation.” The Court found that this “would effectively make a finding of a lack of informed consent meaningless because the reasonable person standard from McNair could excuse any failure to document informed consent in almost every situation.” Because the Board made the necessary factual findings – including that there was no attempt to obtain consent – and because it erred in applying the McNair rule to this case – the Court reversed the Board’s decision and remanded for the Board to assign the correct effective date for the award of benefits.

Bryant: Fair process in legacy appeals at the Board

Bryant v. Wilkie, docket no. 18-0092 (Oct. 26, 2020)

HELD: When claimant informs Board of an intent to submit new evidence, Board must wait the full 90 days or until it receives the evidence before it issues an adverse decision.

SUMMARY: Under 38 C.F.R. § 20.1304(a) (2017), an appellant has 90 days following the mailing of notice that an appeal has been certified and transferred to the Board to submit additional evidence. The mailing of the notice that the appeal has been certified and transferred to the Board is the event that triggers the application of § 20.1304(a). Williams v. Wilkie, 32 Vet.App. 46, 51 (2019).

In this case, the veteran informed VA that it would submit additional evidence to the Board once he received the Board’s 90-day letter. The Board sent its 90-day letter to the veteran on September 2,1 2017 - and denied the appeal 70 days later.

The Court held that once the veteran “informed VA that he planned to submit new argument following receipt of the § 20.1304(a) notice letter, implicitly requesting that VA withhold a decision until he had done so, basic fairness obligated the Board to wait 90 days or until he submitted that argument to decide his appeal.” The Court distinguished Mr. Bryant’s case from Williams v. Wilkie, 32 Vet.App. 51 (2019), because the veteran in that case affirmatively stated that he had nothing more to submit.

Burkhart: Recipient of DIC based on service connection under 38 U.S.C. § 1151 is not entitled to home loan guaranty benefits

Burkhart v. Wilkie, docket no. 2019-1667 (Fed. Cir. August 21, 2020)

HELD: “[C]hapter 37 home loan guaranty benefits are available only to, as relevant here, ‘the surviving spouse of any veteran … who died from a service-connected disability’” – and this does not extend to veterans who are service connected under 38 U.S.C. § 1151. 

SUMMARY: Veteran’s surviving spouse received dependents’ benefits (DIC) under 38 U.S.C. § 1151 because the veteran died while in VA’s care. The widow sought a certificate of eligibility (COE) for a VA home loan in 2007, but she never finalized a loan. In 2013, she requested a new COE and was denied because her late husband had no service-connected conditions during his lifetime – and home loan guaranty benefits under Chapter 37 are only available to the surviving spouse of a veteran who died from a service-connected condition. 

She appealed to the CAVC, and the Court held that she was not eligible for a home loan guaranty under the plain language and legislative history of 38 U.S.C. §§ 1151 and 3701. The Court held that 38 U.S.C. § 3721 – the “incontestability provision” – “applies only to the relationship between the Government and lending institutions …, not the Government and COE recipients.” Finally, the Court denied her requests for equitable relief, finding that to grant such relief “would expand the scope of [its] jurisdiction.” 

She appealed to the Federal Circuit, which upheld the CAVC’s opinion on all three points. 

Lang: VA medical records generated within one year of decision are "constructively" in VA's possession and render that decision nonfinal

Lang v. Wilkie, docket no. 2019-1992 (Fed. Cir. August 19, 2020)

HELD: “[A]ll relevant and reasonably connected VA-generated documents are part of the record and, therefore, constructively known by the VA adjudicator. … [R]ecords received in the post-decision context must be evaluated under the same framework applied to records generated prior to a decision. Evidence is constructively received by the VA adjudicator post-decision if it was (1) generated by the VA or was submitted to the VA and (2) can reasonably be expected to be connected to the veteran’s claim.” 

SUMMARY: Vietnam combat veteran (recipient of the Purple Heart and Combat Action Ribbon) was granted service connection, rated 10%, in June 1996. He did not appeal that decision, but he did continue to receive mental health treatment at the VA from July 1996 to June 1997. In 2014, he sought to revise the 1996 decision on the basis of clear and unmistakable error (CUE). The RO and the Board both denied this request. The CAVC rejected his argument that the 1996 RO decision never became final because the VA medical records that were generated within one year of that decision were never reviewed – and that VA never issued a decision as to whether those records were new and material under 38 C.F.R. § 3.156(b). The CAVC acknowledged that a nonfinal decision could not be the subject of CUE – and held that the VA medical records were not constructively received by the VA adjudicator because the veteran “failed to prove that the ‘VA had sufficient knowledge of the VA treatment records . . . to trigger the Board’s duty to make the requested findings.”

The relevant VA regulation in effect at the time stated: “New and material evidence received prior to the expiration of the appeal period … will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period.” 38 C.F.R. § 3.156(b). The Federal Circuit has held that under this regulation, when VA receives new and material evidence it “must provide a determination that is directly responsive to the new submission and …, until it does so, the claim at issue remains open.” Beraud v. McDonald, 766 F.3d 1402, 1408 (Fed. Cir. 2014). 

On appeal to the Federal Circuit, the Secretary first argued that the CAVC did not have jurisdiction to address the veteran’s argument regarding the post-decision VA medical records because he did not raise that issue below. The Federal Circuit rejected that argument, finding that the veteran’s argument was not a new CUE claim. Rather, “[i]t was an argument that no CUE inquiry need occur because the 1996 rating decision is not final.” 

The Federal Circuit then discussed VA’s “long history of considering documents that were not literally before an examiner to be constructively part of a claimant’s record,” citing several “constructive possession” cases, including Bell v. Derwinski, 2 Vet.App. 611, 613 (1992), Bowey v. West, 11 Vet.App. 106, 108-09 (1998), Goodwin v. West, 11 Vet.App. 494, 496 (1998), and Monzingo v. Shinseki, 26 Vet.App. 97, 102 (2012). 

The Court also examined Turner v. Shulkin, 29 Vet.App. 2017 (2018), in which the CAVC held that constructive receipt of VA treatment records “requires knowledge by VA adjudicators … of the existence of those treatment records within the one-year appeal period.” In other words, the Turner Court required a “triggering principle” in order to deem the records constructively in VA’s possession. The Federal Circuit reversed this holding, finding that the CAVC “articulated an erroneous statement of the law when it failed to adequately address Bell and its progeny.” 

The Court reiterated the CAVC’s prior, consistent holding that “in the context of records created prior to a decision, all relevant records and reasonably connected VA-generated documents are part of the record and, therefore, constructively known by the VA adjudicator.” The Court thus held that 

records received in the post-decision context must be evaluated under the same framework applied to records generated prior to a decision. Evidence is constructively received by the VA adjudicator post-decision if it (1) was generated by the VA or was submitted to the VA and (2) can reasonably be expected to be connected to the veteran’s claim.

The Court added: “There is no requirement that the VA adjudicator have any actual knowledge of the evidence for this principle to apply.” 

Advocacy note: Wow. 

The Court made several other critical statements: (1) “Medical records created by the VAMC as a result of the treatment of a specific veteran are necessarily received by the VA adjudicator of that veteran’s claims because all such records can reasonably be expected to be connected to the veteran’s claims” and (2) “A veteran’s own medical records, generated by the VA itself, are always reasonably related to a veteran’s claim.”

As applied to this case, the Court held that any records created by Mr. Lang’s VA medical facility during the one-year period following the 1996 decision were “in the possession of the VA and constructively received by the VA adjudicator” – and those records rendered the 1996 decision nonfinal until VA makes a decision as to whether those records are new and material under § 3.156(b).

Advocacy note: This case is huge. It will potentially allow veterans to avoid the high burden of establishing CUE in a prior decision IF the veteran received relevant VA medical treatment within one year of that denial. If so, then the veteran could argue, under Lang and § 3.156(b), that the prior denial was nonfinal due to (1) VA’s constructive possession of those relevant records and (2) its failure to make a written determination as to whether those records were “new and material.”

Kisor: To be "relevant," under 38 C.F.R. § 3.156(c)(1), a record must relate to a disputed issue

Kisor v. Wilkie, docket no. 2016-1929 (Fed. Cir. August 12, 2020)

HELD: “[I]n the context of § 3.156(c), the term ‘relevant’ has only ‘one reasonable meaning’ … [and] under the regulation, in order to be ‘relevant’ a record must speak to a matter in issue, in other words, a matter in dispute.” 

SUMMARY: Mr. Kisor filed an initial claim for service connection for PTSD in 1982 and submitted a supporting medical opinion from his Vet Center counselor. VA obtained a negative medical opinion in which the examiner noted the veteran’s participation in “Operation Harvest Moon” in Vietnam, but determined that he did not have PTSD. Because there was no PTSD diagnosis, the RO denied the claim. In 2006, Mr. Kisor submitted a request to reopen and submitted new service records showing his receipt of the Combat Action Ribbon and documenting his participation in Operation Harvest Moon. The RO obtained a favorable medical opinion and granted service connection for PTSD, effective 2006. He appealed for an earlier effective date, which the Board denied, under 38 C.F.R. § 3.156(c), finding that the newly received service records were not “outcome determinative” because they did not relate to the relevant issue of the lack of a PTSD diagnosis.

Mr. Kisor appealed to the CAVC, the Federal Circuit, and the Supreme Court. In the Federal Circuit’s first decision, it found that the term “relevant” in the regulation was ambiguous and deferred to the agency’s reasonable interpretation, which was the Board’s interpretation that required the record to be “outcome determinative.” The Supreme Court held that the Federal Circuit was “too quick to extend Auer [v. Robbins, 519 U.S. 452 (1997)] deference to the Board’s interpretation of ‘relevant’ as it appears in § 3.156(c)(1)” and remanded the appeal back to the Federal Circuit to “decide whether Auer deference ‘applies to the agency interpretation at issue’” and “‘whether the regulation really has more than one reasonable meaning.’” 

On remand, the same three-member panel of the Federal Circuit now determined that the term “relevant” in § 3.156(c)(1) “has only ‘one reasonable meaning,’ the meaning the Board attributed to it.” The Court first found that the term “relevant” in the regulation was “not genuinely ambiguous” – and agreed with the Secretary that “the term has only one reasonable meaning.” The Court held: “To be relevant, a record must address a dispositive issue and therefore affect the outcome of the case.” Because the reason for the prior denial was the lack of a PTSD diagnosis and the new service did not address that issue, the Court determined that they were not “relevant” under § 3.156(c)(1). 

In a thorough and thoughtful dissent, Judge Reyna outlined a strong argument for Mr. Kisor to deploy in appealing this decision. Specifically, Judge Reyna noted that there is nothing in the regulation that requires “relevant” records to “speak to the basis for the VA’s prior decision” or to “affect the outcome.” Rather, in the context of veterans’ benefits, records are relevant if they “help to establish unestablished facts that are necessary for substantiating the veteran’s claim.” 

Judge Reyna pointed out that the initial VA examiner who provided the negative medical opinion described Mr. Kisor’s combat experiences “with palpable skepticism” – something that the majority failed to address. This is particularly relevant to claims for service connection for PTSD because that diagnosis relies on the establishment of a stressor event or events. 

Judge Reyna argued that “when a veterans’ benefit provision is ambiguous on its face, the pro-veteran canon must be weighed alongside the other traditional tools in resolving interpretive doubt.” He stated that “while we have held that the pro-veteran canon applies only to ambiguous statutes and cannot override plain text, that rule does not render the canon a tool of last resort, subordinate to all others.” He added: “The majority wrongly assumes that the Supreme Court’s ‘genuine ambiguity’ criterion for Auer deference applies to the pro-veteran canon” and that if “we can set aside the pro-veteran canon unless and until all other considerations are tied, then the canon is dead because there is no such ‘equipoise’ in legal arguments.”

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: CAVC 14th Judicial Conference

April 11-12, 2019, National Press Club, Washington, DC

The U.S. Court of Appeals for Veterans Claims holds its Judicial Conference every three years. As the Court was formed in 1989, the theme of the 2019 conference is “Celebrating 30 Years.”

ABK spoke on a panel on “Class Actions: Primer, Updates, What’s Next” and presented “An Evolution of a Class Action Rule,” highlighting the process of developing a class action rule for the CAVC.

LINK TO BROCHURE

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