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.

Tuesday, August 13, 2013

VA Policy News: TDIU Claims

VA clarified its procedures regarding claims for total disability ratings based on individual unemployability (TDIU). Significantly, VA will require the veteran to submit a completed VA Form 21-8940 before deciding the claim – and will deny claims if VA requested, but the veteran did not submit, the completed form. In addition, VA acknowledged that a medical examination is not required to determined entitlement to TDIU – and that the determination of unemployability rests with the rating specialist.

Kyhn v. Shinseki

Kyhn v. Shinseki, 716 F.3d 572 (2013)
The Federal Circuit determined that the CAVC improperly relied on evidence that was not in the record before the Board to determine that the presumption of regularity applied in this particular situation. In this case, the veteran failed to attend for a schedule audiology examination, and VA denied his claim for service connection for tinnitus based on the existing evidence of record. On appeal to the CAVC, the veteran asserted that VA never notified him of the examination. The CAVC ordered VA to provide the Court with information regarding VA’s process used to notify veterans of examinations. The Secretary submitted two affidavits from VA employees, only one of whom had professional knowledge of the notification process. The CAVC relied on this evidence to determine that the presumption of regularity applied – and that the absence of a notice from VA in the veteran’s claims file did not rebut the presumption.

The Federal Circuit found that the CAVC exceeded its jurisdiction when it relied on the extra-record affidavits that were not in the record before the Board. The Court found that the CAVC engaged in impermissible fact finding to determine that VA did have a regular process for notifying veterans of scheduled examinations, and remanded the case.

Thursday, August 1, 2013

Kernea v. Shinseki

Kernea v. Shinseki,  724 F.3d 1374 (Fed. Cir. Aug. 1, 2013)
Regulation that bars claims for enhanced dependency and indemnity compensation (DIC) benefits based on hypothetical entitlement can be applied retroactively.

World War II veteran was service connected for diabetes, with a 40% disability rating. In 1961, VA increased his disability rating to 60%. In 1965, VA increased his rating to 100%. Veteran died in 1969. Veteran’s widow was awarded DIC benefits under 38 U.S.C. § 1310 that allows for benefits to survivors of veterans who die from a service-connected condition. In 2003, Mrs. Kernea applied for increased (“enhanced”) DIC benefits, under 38 U.S.C. § 1311(a)(2), which allows for such benefits if a veteran received “or was entitled to receive . . . compensation for a service-connected disability that was rated totally disabling for a continuous period of at least eight years immediately preceding death.” VA denied enhanced DIC benefits because the veteran had not been totally disabled for eight years prior to his death. While Mrs. Kernea appealed this decision, VA issued a new regulation that interpreted the phrase “entitled to receive” as prohibiting “hypothetical entitlement.” Mrs. Kernea argued that this new regulation did not apply to her because it was issued after she filed her claim.

The Board of Veterans’ Appeals determined that the regulation could be retroactively applied to her claim under the retroactivity analysis in Princess Cruises, Inc. v. United States, 397 F.3d 1358 (Fed. Cir. 2005). The Veterans Court and the Federal Circuit affirmed the Board’s decision. In Princess Cruises, the Federal Circuit identified three factors to consider in assessing whether applying an agency’s regulation to conduct that predated the regulation’s issuance would have an improper retroactive effect. The factors are: (1) “the nature and extent of the change of the law”; (2) “the degree of connection between the operation of the new rule and a relevant past event”; and (3) “familiar considerations of fair notice, reasonable reliance, and settled expectations.” Princess Cruises, 397 F.3d at 1364. The Federal Circuit assessed these three factors and determined that all three weighed in favor of retroactive effect and against Mrs. Kernea’s position.