Thursday, December 19, 2013

Ausmer v. Shinseki

Ausmer v. Shinseki, 26 Vet.App. 392 (Dec. 19, 2013) (order)
The Servicemembers Civil Relief Act (SCRA) applies to proceedings at the CAVC, and automatically tolls the 120-day deadline to appeal an adverse Board decision to the Court. Under the specific circumstances of this case – which involved physical disabilities as well as PTSD and difficulty readjusting to civilian life – the Court determined that the appellant was entitled to an additional 90-day stay after his active service ended before the appeal period commenced.

Monday, December 9, 2013

Sneed v. Shinseki

Sneed v. Shinseki, 737 F.3d 719 (Dec. 9, 2013)
The 120–day period to appeal an adverse Board decision to the CAVC is subject to equitable tolling that “is not ‘limited to a small and closed set of factual patterns,’” but rather is decided on a “case-by-case basis.” 737 F.3d at 726. In this case, the claimant contacted an attorney to represent her in her appeal. She received the attorney’s letter declining to represent her one day before the Notice of Appeal (NOA) was due, and missed the deadline to file the NOA herself. Six days later, she filed the NOA, explaining the circumstances. The CAVC held that these circumstances did not “fit within the ‘parameters’ of equitable tolling” and dismissed the appeal. Ms. Sneed appealed to the Federal Circuit, which held that the CAVC “focused too narrowly” on a limited set of factual circumstances to determine that equitable tolling did not apply – and “failed to consider whether attorney misconduct … may constitute a basis for equitable tolling.” Id.

Tuesday, November 19, 2013

Prinkey v. Shinseki

Prinkey v. Shinseki, 735 F.3d 1375 (Fed. Cir. Nov. 19, 2013)
The question of whether a medical opinion is adequate is a question of fact and, therefore, beyond the Federal Circuit’s jurisdiction.
In this case, the veteran was awarded service connection for Type II diabetes due to Agent Orange exposure in 2003. He sought to reopen his claim in 2005. On review of his file, a nurse practitioner discovered that Mr. Prinkey had a pancreatectomy in 1994 – two years before his diabetes diagnosis. The regional office (RO) obtained an opinion from an endocrinologist stating that his diabetes was due to the pancreatectomy and not Agent Orange exposure, and subsequently severed the award of service connection. The Board of Veterans’ Appeals and the U.S. Court of Appeals for Veterans Claims (CAVC) affirmed the RO’s decision.

On appeal to the Federal Circuit, the Court held that it lacked jurisdiction to review the CAVC’s assessment of the adequacy of the medical opinion because that was a question of fact. The Federal Circuit determined that the appellant’s other two arguments lacked merit, and affirmed the CAVC’s decision.

Tuesday, November 5, 2013

Floore v. Shinseki

Floore v. Shinseki, 26 Vet.App. 376 (Vet.App. Nov. 5, 2013)
This panel opinion was circulating within the Veterans Court for review when the Federal Circuit issued Geib v. Shinseki. The primary issue in Floore is the same as in Geib – whether VA is required to obtain a single medical opinion that assesses the aggregate effect of all service-connected conditions to determine entitlement to TDIU. 

In Floore, the Court discussed and distinguished the various cases relied on by the appellant, and found that none of these cases held that a combined-effects examination is required in assessing TDIU claims. The Court also considered VA’s Fast Letter 13-13, and found that this letter provides guidance, not direction, and that it is ultimately up to the rating agency to determine the need for a medical opinion. The Court held that “the need for a combined-effects medical examination report or opinion with regard to multiple-disability TDIU entitlement decisions is to be determined on a case-by-case basis, and depends on the evidence of record at the time of decision by the [RO] or the Board.” Floore, 26 Vet.App. at 381.

Nevertheless, the Court remanded because it found the Board’s reasons or bases inadequate for review. The Court stated that even though a combined-effects examination is not necessary, “the Board nevertheless must adequately explain how the record evidence supports its determination that the combined effects of multiple disabilities do not prevent substantially gainful employment.” Id. at 382. The Court noted that while the Board “recognized that the cumulative effects of service-connected disabilities can prevent substantially gainful employment, the Board addressed the effects of Mr. Floor’s disabilities individually, and never explained what the cumulative functional impairment of all his service-connected disabilities might be and why they do not prevent substantially gainful employment.” Id. The Court noted that the Board failed to discuss the effects of the veteran’s diabetes, one of his service-connected conditions. The Court also noted that the Board was influenced by the fact that the veteran terminated his employment as a result of non-service-connected conditions, but failed to explain how evidence of that termination was weighed and “to what extent it is even relevant to its determination that Mr. Floore’s service-connected disabilities do not prevent him from undertaking any substantially gainful employment.” Id. at 383. Advocacy Practice Note: Many veterans are denied TDIU because they obtained Social Security disability benefits for non-service-connected conditions. The language in this case should be helpful in requiring VA to explain the relevance of such SSA decisions on the TDIU decision.

Tuesday, October 29, 2013

NOVA v. Shinseki

NOVA v. Shinseki, docket no. 2011-7191 (Fed. Cir. Aug. 5, 2013)
The National Organization of Veterans’ Advocates challenged a VA rule that appeared to eliminate rights for veterans appearing at hearings before the Board of Veterans’ Appeals. While on review at the Federal Circuit, VA agreed that the rule was invalid, and assured NOVA that it would no longer apply the rule. When VA Board members continued to apply the rule, the Federal Circuit ordered VA to show cause why it should not be sanctioned for its actions. VA conceded error and provided the Court with a plan for notifying every claimant affected by the invalid rule. The notice would also offer to vacate the Board decision and to provide the claimants with new hearings. The Court approved the plan and did not issue sanctions. However, the Court has retained jurisdiction until both parties indicate that judicial review is no longer needed.

Geib v. Shinseki

Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. Oct. 29, 2013)
In a claim for a total disability rating based on individual unemployability (TDIU), VA is not required to obtain a single medical opinion that addresses the combined effect of all the claimant’s service-connected disabilities on employability. Geib, 733 F.3d at 1353-54 (“Although the VA is expected to give full consideration to ‘the effect of combinations of disability,’ [] neither the statute nor the relevant regulations require the combined effect to be assessed by a medical expert.”)

In this case, the veteran was service connected for multiple disabilities. He applied for TDIU and was ultimately afforded two examinations – one for hearing loss and the other for trenchfoot. The audiology examiner opined that the veteran’s hearing loss and tinnitus do not prevent gainful employment. The trenchfoot examiner opined that his trenchfoot did not prevent gainful employment. The RO denied the TDIU claim. The veteran appealed, arguing that the Board was required to obtain a single medical opinion that addressed the impact of all his service-connected conditions. The Veterans Court affirmed the Board’s denial, and the Federal Circuit agreed.

The Federal Circuit noted that the regulations “place responsibility for the ultimate TDIU determination on the VA, not a medical examiner.” Id. at 1354 (citing 38 C.F.R. § 4.16(a)). The Court stated: “Where, as here, separate medical opinions address the impact on employability resulting from independent disabilities, the VA is authorized to assess the aggregate effect of all disabilities, as it did.” Id. The Court emphasized that “the VA is expected to give full consideration to ‘the effect of combinations of disability.’” Id. (citing 38 C.F.R. § 4.15). The Court added that “[w]here neither the regional office nor the Board addresses the aggregate effect of multiple service-connected disabilities,” the record is inadequate for review. Id.

Monday, October 28, 2013

Gill v. Shinseki

Gill v. Shinseki, docket no. 12-3428 (Vet.App. Oct. 28, 2013)
The diagnostic code (DC) for hypertension requires multiple blood pressure readings over multiple days to confirm the diagnosis of the condition. The CAVC held that this requirement only applies to the confirmation of the diagnosis – and not to the assignment of a disability rating.

In this case, the veteran was awarded service connection for hypertension, rated 10% disabling. He appealed the rating assigned, arguing that the medical evidence of record was inadequate because it did not contain reports of two or more blood pressure readings on at least three different days, as required by 38 C.F.R. § 4.104, DC 7101 Note 1. The Court paid substantial deference to the Secretary’s interpretation of VA’s regulation and held that the regulation’s requirement of multiple blood pressure readings over multiple days only applies to the initial confirmation of the diagnosis of hypertension.

Thursday, October 24, 2013

Sprinkle v. Shinseki

Sprinkle v. Shinseki, 733 F.3d 1180 (Fed. Cir. Oct. 24, 2013)
The fair process doctrine is not implicated when a regional office considers and summarizes new evidence in a Supplemental Statement of the Case (SSOC). The fair process doctrine is only triggered when the Board obtains evidence after the SOC or SSOC has been issued.

In this case, the Board remanded to the RO to obtain a medical opinion. The RO obtained the medical evidence and summarized it in an SSOC, in which the veteran was informed that he had 30 days to submit additional evidence. The veteran responded that he had no additional evidence to submit and requested that the RO return his case to the Board. The RO certified the case to the Board and informed the veteran that he had 90 days to send the Board additional evidence. The veteran then retained an attorney, who requested a copy of all evidence obtained by VA since December 2004, which would include the most recent medical opinion. The attorney submitted this request, along with subsequent follow-up requests, to the RO. Because the appeal had been certified to the Board – and the veteran’s file was already at the Board – the RO forwarded the requests to Washington, DC. The Board finally sent the attorney the requested documents – and issued a decision less than 30 days later. The veteran appealed, arguing that the Board failed to afford him fair process by not providing him a copy of the newly obtained medical opinion until less than 30 days before issuing its decision. The CAVC affirmed the Board’s decision, finding that the veteran had not been denied fair process.

The Federal Circuit agreed, explaining that the regulation regarding advisory medical opinions obtained by the Board, 38 C.F.R. § 20.903(a), does not apply when the RO obtains a medical opinion. The Court found that the “fair process doctrine,” developed by the Veterans Court in the context of evidence obtained and relied on by the Board after the issuance of the most recent SOC or SSOC, is not implicated when the RO obtains evidence and summarizes it in an SSOC. The Federal Circuit noted that the veteran in this case “has not challenged the adequacy of the summary” and that he had 30 days to respond to the SSOC. The Federal Circuit held that “[b]ecause the [RO] received and considered the evidence before summarizing it in a [SSOC], this case does not implicate the statutory exception to the prohibition against first-instance Board review of evidence that the fair process doctrine is designed to safeguard.” Advocacy Practice Note: If you have requested and not received medical evidence developed by the RO that has been summarized in an SOC or SSOC, challenge the summary of the evidence and state that you will clarify your challenge once you have received and have had a chance to review the evidence.

Wagner v. Shinseki

Wagner v. Shinseki, 733 F.3d 1343 (Fed. Cir. Oct. 24, 2013)
Filing a supplemental Equal Access to Justice Act (EAJA) application does not abate the finality of a previously filed EAJA application for which judgment and mandate have already been entered. A pending request for supplemental EAJA fees is separate from the underlying application for EAJA fees.

In this case, the appellant won a remand from the CAVC and filed an EAJA application. The government conceded that the appellant was a prevailing party, but contested the amount. The CAVC granted the fee application, but reduced the fee in response to the government’s challenge.

The appellant then filed a supplemental EAJA application. Before ruling on the supplemental application, the CAVC entered judgment on the initial award. The Court revoked judgment the next day, with no explanation. The appellant moved the Court to enter judgment and the Court denied the motion. That same day, the Court denied the supplemental EAJA application.

The appellant appealed this decision to the Federal Circuit, which reversed, holding that because Mr. Wagner was partially successful in defending the initial EAJA application, he was entitled to a commensurate supplemental fee. The CAVC subsequently granted Mr. Wagner’s supplemental EAJA application and entered judgment – but the judgment order did not explicitly say whether it applied to both the initial and/or supplemental EAJA applications.

Mr. Wagner then filed a second supplemental application, this time for his successful appeal to the Federal Circuit. Nine months later, Mr. Wagner had yet to receive any payment on his initial or supplemental EAJA applications. He filed a motion for judgment with the CAVC. The Court granted his second supplemental EAJA application, reducing his fees by 41.5 fewer hours than he had requested. The Court denied the motion for judgment because it stated that the Secretary opposed the motion and the Court would not “circumvent his appellate rights.”

Mr. Wagner appealed the CAVC’s refusal to order the government to promptly pay his initial and first supplemental EAJA applications. The Federal Circuit concluded that the CAVC “relied on an incorrect view of the law” in denying the appellant’s motion for judgment on the initial and first supplemental EAJA applications. The Federal Circuit found that the CAVC’s sole explanation for its decision – to not “circumvent [the Secretary’s] appellate rights” – was erroneous because the Secretary did not appeal the CAVC’s decisions regarding the initial and first supplemental EAJA awards.

The government also argued that the timing provision of the EAJA itself precluded entry of judgment on a fee application if a supplemental application was pending. The Federal Circuit rejected this argument, finding that the EAJA’s timing requirement is satisfied when an initial application is filed within 30 days of the merits judgment and that this timing provision does not apply to supplemental EAJA applications. The Federal Circuit noted that nothing in the EAJA supports long delays in issuing enforceable judgments for payments – and that the prompt payment of attorney’s fees “plays the particularly important role in the veterans’ adjudicatory system of ensuring that litigants will not be deterred from seeking review of, or defending against, unjustified governmental action because of the expense involved.” *10 (internal quotation marks omitted). 

Thursday, October 10, 2013

Tyrues v. Shinseki

Tyrues v. Shinseki, 732 F.3d 1351 (Oct. 10, 2013)
FINALITY IN MIXED DECISIONS (i.e., where one or more issue is denied and one or more issue is remanded)
“When the Board renders a clear definitive denial of benefits as part of a mixed decision … the veteran not only can appeal immediately, but must bring any appeal from the denial portion within the 120-day period allowed by statute.” 732 F.3d at 1357 (emphasis added). Equitable tolling does not allow a veteran “the discretion to file an appeal immediately or to wait until completion of all remand proceedings.” Id.

Monday, September 30, 2013

AZ v. Shinseki

AZ v. Shinseki, docket no. 2012-7046 (Fed. Cir. Sept. 30, 2013)
In evaluating PTSD cases based on military sexual assault, the Federal Circuit held that “the absence of a service record documenting an unreported sexual assault is not pertinent evidence that the sexual assault did not occur.” The Court further held that VA and the Veterans Court “may not rely on a veteran’s failure to report an in-service sexual assault to military authorities as pertinent evidence that the sexual assault did not occur.”

The Court found that the lack of service records showing that an alleged assault occurred or was reported in service is NOT pertinent evidence that the assault did not happen because it is not reasonable to believe that these assaults are reported. The Court relied on statistics from the Department of Defense showing that the vast majority of these incidents are not reported to military authorities. The Court also relied on the common-law approach that gives weight to the absence of evidence only if the event was normally recorded. In-service sexual assaults are not usually reported – and therefore are normally not recorded – so it is not reasonable to construe the absence of such evidence (reporting/recording) as negative evidence against the claim. The Court in this case stated that “where an alleged sexual assault, like most in-service sexual assaults, is not reported, the absence of service records documenting the alleged assault is not pertinent evidence that the assault did not occur.” AZ v. Shinseki, at *28-29.

Thursday, September 26, 2013

Schertz v. Shinseki

Schertz v. Shinseki, docket no. 11-2694 (Vet. App. Sept. 26, 2013)
Under 38 U.S.C. § 1151, an “event not reasonably foreseeable” is an objective standard based on what a reasonable health care provider would have foreseen. Actual foreseeability by the patient’s medical provider is not dispositive.

This case involves a veteran who suffered partial paralysis as a result of VA surgery. Prior to surgery, he and his wife had been informed, both in writing and orally, of the potential risks of surgery, to include paralysis. The veteran lost the use of his legs shortly following surgery and filed a claim for service connection under section 1151. The Court reviewed the statute and VA’s implementing regulation, and determined that while the term “reasonably foreseeable” is ambiguous, VA has adopted an objective standard to interpret the term, based on the “reasonable health care provider.” The Court held that what was actually foreseen by the physician – and what was provided in the informed consent – is not dispositive, but rather is evidence to be weighed in determining whether an event was reasonably foreseeable such that a reasonable health care provider would have disclosed the risk. 38 C.F.R. §§ 3.361(d)(2), 17.32. Because the Board did not consider whether a “reasonable health care provider” would have disclosed the possibility of spinal cord injury and paralysis as a reasonably foreseeable risk, the Court remanded the case back to the Board to make this determination in the first instance.

Wednesday, September 11, 2013

Ratliff v. Shinseki

Ratliff v. Shinseki, docket no. 11-3243 (Vet. App. Sept. 11, 2013) (order)
A written expression of disagreement with a Board decision that is filed with a VA regional office during the 120-day appeal period will abate the finality of that Board decision for the purposes of appealing to the Court until (1) VA determines that the written disagreement is a Notice of Appeal (NOA) and returns it to the claimant with information on the proper location or forwards it to the Veterans Court; (2) the Board Chairman determines the status of the written disagreement and notifies the claimant; or (3) the claimant files an NOA with the Court after filing a written disagreement with the RO, and the Court determines that the written disagreement was a misfiled NOA. 

Friday, August 30, 2013

Cline v. Shinseki

Cline v. Shinseki, docket no. 10-3543(E) (Vet. App. Aug. 30, 2013)
In this Equal Access to Justice (EAJA) case, the Veterans Court applied the “totality of the circumstances” approach to reviewing whether the Secretary’s actions were substantially justified and determined that they were not. Nevertheless, the Court reduced the attorney’s fees because the attorney did not (1) reduce the amount of hours spent by his paralegal on “non-prevailing” issues, pursuant to Vazquez-Flores v. Shinseki, 26 Vet.App. 9, 15 (2013), and (2) specify what his “travel expenses” were.

Garsow v. Shinseki

Garsow v. Shinseki, docket no. 12-548(E) (Vet. App. Aug. 30, 2013)
In this Equal Access to Justice (EAJA) case, the Veterans Court held that the parties’ agreement to a Joint Motion to Vacate the Board’s decision based on a lack of jurisdiction did not confer “prevailing party” status on the veteran’s attorney, and thus denied EAJA fees.

Friday, August 16, 2013

Wingard v. Shinseki

Wingard v. Shinseki, docket no. 11-1214 (Vet. App. Aug. 16, 2013)
VA’s assignment of 0% disability ratings is valid and not inconsistent with the veterans’ benefits statutory scheme.

In order to obtain VA non-service-connected burial benefits, a veteran must be “in receipt of” VA compensation at the time of death. The veteran was service connected for a hernia, rated 0%. He died from non-service-connected conditions. VA denied non-service-connected burial benefits because his service-connected condition was rated as 0% disabling – and, therefore, he was not “in receipt of” compensation. The veteran’s surviving daughter appealed, arguing that the pertinent statutes did not provide for a 0% disability rating. The Veterans Court found that the assignment of a 0% rating was valid and in line with the statutory scheme.

Thursday, August 15, 2013

Middleton v. Shinseki

Middleton v. Shinseki, 727 F.3d 1127 (Fed. Cir. Aug. 15, 2013)
Assignment of a 40% disability rating for diabetes under Diagnostic Code (DC) 7913 requires that all three criteria in the diagnostic code are met – including the administration of insulin. This rating is not available to a claimant who uses another drug that causes the body to secrete insulin.

Veteran was service connected for diabetes, rated 20% disabling. He sought a higher rating because he was treated with three oral medications and daily injections of Byetta, a drug that induces the body to secrete insulin. VA denied the higher rating because the veteran did not use insulin to regulate his diabetes. The Board of Veterans’ Appeals held that the use of insulin was necessary to obtain the 40% rating. The Veterans Court and Federal Circuit affirmed. The Federal Circuit noted that the diagnostic code expressly calls for the use of insulin and does not provide for the use of another compound. The Federal Circuit agreed with the Secretary that the diagnostic code for diabetes (DC 7913) is a successive and cumulative rating schedule that requires the veteran to satisfy all criteria for the specific rating. The Court found that 38 C.F.R. § 4.7 did not apply in a case such as this because there was no question as to which rating applied when the veteran did not satisfy all the criteria of the higher rating, but did satisfy all the criteria for the lower rating.