Friday, February 28, 2014

Martin v. Shinseki

Martin v. Shinseki, docket no. 11-3814 (Vet.App. Feb. 28, 2014)
The grant of S-DVI under 38 U.S.C. § 1922(b) is treated, by operation of law, as an award under § 1922(a). However, in order to be eligible for Supplemental S-DVI under 38 U.S.C. § 1922A, a veteran must qualify for a waiver of premiums under 38 U.S.C. § 1912.

S-DVI is life insurance for service-connected veterans who are otherwise in good health. Veterans with service-connected conditions payable at 10% or more are eligible for S-DVI if they apply for the insurance within two years of the date of service connection and pay the required premiums. 38 U.S.C. § 1922(a). Under § 1922(b), veterans who would be qualified for insurance under subsection (a), but who were found to be mentally incompetent at the time of death, “shall be deemed to have applied for and to have been granted such insurance, as of the date of death.” 38 U.S.C. § 1922(b). 

A veteran who is granted S-DVI, and qualifies for a waiver of premiums based on being totally disabled, is eligible for Supplemental S-DVI. 38 U.S.C. § 1922A. Supplemental S-DVI is granted under the same terms and conditions as S-DVI, as long as the veteran applies before age 65. Premium payments may be waived during the continuous total disability of the insured. 38 U.S.C. § 1912(a). If the veteran dies before applying for a waiver, the insured veteran’s beneficiary may file an application within a year of the veteran’s death. 38 U.S.C. § 1912(c).

The veteran in this case did not apply for S-DVI. He was awarded 100% disability for pancreatic cancer right before he passed away. A hospice nurse stated that the veteran was unable to manage his affairs at the end of his life due to high doses of medication. *3.  After the veteran died, his wife applied for S-DVI and Supplemental S-DVI. The RO awarded gratuitous S-DVI under 38 U.S.C. § 1922(b) (awarded where the veteran is unable to apply as a result of mental incapacity). The RO denied Supplemental S-DVI because the veteran never applied for S-DVI while he was alive. Id. The wife appealed, arguing that she should be entitled to Supplemental S-DVI as the beneficiary of her totally disabled husband. The Court disagreed, finding that while an award of S-DVI under § 1922(b) is treated, as a matter of law, as an award under § 1922(a), eligibility for Supplemental S-DVI requires the veteran to qualify for a waiver of premiums under § 1912. *8-10; 38 U.S.C. § 1922A. Since the veteran in this case did not meet all the requirements for a waiver under § 1912, his wife was not entitled to Supplemental S-DVI. *9-10.

Wednesday, February 26, 2014

King v. Shinseki

King v. Shinseki, 26 Vet.App. 433 (Feb. 26, 2014)
The RO’s failure to mention favorable evidence in a pre-1990 rating decision cannot be CUE because there was no reasons-or-bases requirement prior to 1990, and a finding of CUE would require that the RO actually denied the existence of the favorable evidence, not just that it failed to mention the evidence. 26 Vet.App. at 440 (citing Bouton v. Peake, 23 Vet.App. 70, 71 (2008)). A “manifest change in the outcome of the determination means that, absent the clear and unmistakable error, the benefit sought would have been granted at the outset” – and not that the RO would have been required to send a medical opinion back for clarification. Id. at 441.

The veteran was awarded service connection for a mental health condition in 1973, and assigned a 10% disability rating. The veteran did not appeal the decision and it became final. In 2006, the veteran sought to revise the 1973 decision based on CUE by asserting that the RO erred by failing to consider favorable private medical evidence that was in the record at the time of the decision. The RO determined that there was no CUE in the 1973 decision, and the Board agreed. The veteran appealed to the CAVC, and the parties agreed to a joint motion for remand because the Board applied the incorrect rating criteria. On remand, the Board again determined that there was no CUE in the 1973 decision.

On appeal, the veteran first argued that his due process right to a fair hearing was violated because the RO failed to consider the favorable evidence. The Court rejected this argument, finding that there was no indication that the favorable evidence was “impermissibly altered,” as was the case in Cushman v. Shinseki, 576 F.3d 1290 (Fed. Cir. 2009), or that the RO “concealed or failed to consider that report or that VA otherwise failed to accord him due process.” Id. at 437-38.

The veteran next argued that even though the favorable medical report was in the record prior to the decision, it was not before the adjudicator because the rating decision did not mention it. He asserted that “if the missing doctor’s report had been considered, a reasonable person’s assessment would have been considerably different.” Id. at 438-39. The Court rejected this argument, noting that the VA did not have a reasons-or-bases requirement prior to 1990, and there was no indication on the face of the 1973 decision that the RO failed to consider that evidence. Id. at 439. The Court found the veteran’s reliance on Bouton unpersuasive because the RO, in that case, denied the existence of the favorable evidence, which was not the case here. Id.  

The Court discussed the requirement that an alleged error must have resulted in a “manifest change of the outcome” of the decision in order to be CUE. Id. at 440-42. The Court found that a manifest change is not whether the RO would have been required to send evidence back for clarification, but rather that the veteran “undoubtedly would have been granted [a higher rating].” Id. at 441. The Court also rejected the veteran’s “reasonable person” argument, finding that the standard for CUE is that the error must be “undebatable,” not whether it would be “reasonable” to conclude that the outcome would be different. Id. at 442.

Tatum v. Shinseki

Tatum v. Shinseki, docket no. 12-1682 (Vet.App. Feb. 26, 2014)
38 C.F.R. § 4.115b, DIAGNOSTIC CODE (DC) 7528
A 100% disability rating for prostate cancer is warranted for six months “[f]ollowing the cessation of surgical, X-ray, antineoplastic chemotherapy or other therapeutic procedure…” 38 C.F.R. § 4.115b, DC 7528. The date of “cessation of surgical, X-ray, antineoplastic chemotherapy or other therapeutic procedure” refers to the date of final treatment for cancer – and not for treatment of residuals of cancer or residuals of cancer treatment.

The veteran underwent treatment for prostate cancer in October and November 2001. A year later, he underwent subsequent procedures to insert a Foley catheter. The Board distinguished between the treatment for cancer that ended in November 2001 and the treatment for residuals (Foley catheter) that ended in December 2002 – and found that, for purposes of the regulation, his treatment ceased in November 2001. The Court agreed, but also determined that the six-month period of entitlement to a 100% disability rating went through May 2002, as opposed to April 2002, which is what had been awarded.

Because the Court remanded this last issue, the Court declined to address the appellant’s remaining arguments regarding VA’s failure to comply with its duty to assist. However, the Court noted that during oral argument, the Secretary asserted that notice of missing records did not trigger VA’s duty to assist. The Court cautioned VA that “when a claimant informs the Secretary that records appear to be missing, the Secretary should, at a minimum, respond to the claimant.” *11.

Friday, February 21, 2014

Mason v. Shinseki

Mason v. Shinseki, 743 F.3d 1370 (Feb. 21, 2014)
RO denials of direct-fee requests are treated as simultaneously contested claims, and thus subject to the 60-day appeal period under 38 U.S.C. § 7105A.

The attorney in this case had a direct-pay fee agreement with the veteran that entitled him to a fee of 20% of the retroactive award of benefits to be paid directly by VA. The RO determined that the attorney was not entitled to a fee, and the attorney appealed this decision 90 days after it was issued. The Court found that the denial of an attorney-fee request should be treated as a simultaneously contested claim. The Court found that the statutory language was ambiguous, and that deference was due to VA’s reasonable interpretation found in 38 C.F.R. § 20.3(p) and its Adjudication and Procedures Manual. The Court also noted that any interpretive doubt should be construed in the veteran’s favor – and that this interpretation, which would result in the veteran keeping the entire retroactive award, was more favorable to the veteran. 743 F.3d 1376, n. 5.