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.
Tuesday, August 13, 2013
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.
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.
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.
Monday, July 29, 2013
Massie v. Shinseki
Massie v. Shinseki, docket no. 2012-7087 (Fed. Cir. July 29, 2013)
In order for medical evidence to constitute a “report of examination” under 38 C.F.R. § 3.157(b)(1), and thus qualify as an informal claim for an increased rating, the medical evidence must (1) refer to at least one specific medical examination and (2) assert that the veteran’s service-connected condition has worsened. In this case, the veteran attempted to assert that a letter from his VA doctor raised an informal claim for an increased rating – even though the letter did not mention an examination or state that the veteran’s condition had worsened. The CAVC interpreted 38 C.F.R. § 3.157(b)(1) to require these two elements – and the Federal Circuit agreed.
In order for medical evidence to constitute a “report of examination” under 38 C.F.R. § 3.157(b)(1), and thus qualify as an informal claim for an increased rating, the medical evidence must (1) refer to at least one specific medical examination and (2) assert that the veteran’s service-connected condition has worsened. In this case, the veteran attempted to assert that a letter from his VA doctor raised an informal claim for an increased rating – even though the letter did not mention an examination or state that the veteran’s condition had worsened. The CAVC interpreted 38 C.F.R. § 3.157(b)(1) to require these two elements – and the Federal Circuit agreed.
Tuesday, July 16, 2013
Burden v. Shinseki
Burden v. Shinseki, docket no. 2012-7096 (Fed. Cir. July 16, 2013)
In this case, the Federal Circuit affirmed the CAVC’s opinion that state law, including state evidentiary standards, must be applied in determining the validity of a common-law marriage.
In this case, the Federal Circuit affirmed the CAVC’s opinion that state law, including state evidentiary standards, must be applied in determining the validity of a common-law marriage.
Wednesday, July 10, 2013
Romanowsky v. Shinseki
Romanowsky v. Shinseki, docket no. 11-3272 (Vet. App. July 10, 2013)
Evidence of a recent diagnosis of a disability that was made prior to the veteran’s filing of a claim for that disability is relevant evidence that the Board must address in determining whether a current disability existed when the claim was filed or during its pendency. In this case, the veteran was diagnosed with an adjustment disorder in May 2008, which resulted in his discharge from service. He filed a claim for VA benefits for that disorder in November 2008. In December 2008, a VA examiner determined that the veteran did not have an adjustment disorder, and VA denied the claim the following month. The veteran appealed to the Board of Veterans’ Appeals – and the Board relied on the CAVC’s prior holding in McClain v. Nicholson, 21 Vet.App. 319 (2007), to determine that the May 2008 diagnosis falls outside the claim period, and that there was no current diagnosis for VA benefits purposes.
The Court held that the Board misconstrued McClain and erred by not considering whether the May 2008 diagnosis established that his disability existed at the time he filed his claim, even if the disability resolved prior to adjudication. The Court also provided a lengthy discussion of the appropriate remedy, and appeared poised to reverse, noting that “the ‘clearly erroneous’ standard applied by the Court is less deferential than the ‘substantial evidence’ standard applied by courts when reviewing non-VA administrative adjudication.” Opinion at *10 (quoting R. Pierce, Administrative Law Treatise §§ 11.2, 11.3 (5th ed. 2010)). However, the Court determined that remand was appropriate in this case because of the Board’s misinterpretation of McClain and its failure to weigh the evidence.
Evidence of a recent diagnosis of a disability that was made prior to the veteran’s filing of a claim for that disability is relevant evidence that the Board must address in determining whether a current disability existed when the claim was filed or during its pendency. In this case, the veteran was diagnosed with an adjustment disorder in May 2008, which resulted in his discharge from service. He filed a claim for VA benefits for that disorder in November 2008. In December 2008, a VA examiner determined that the veteran did not have an adjustment disorder, and VA denied the claim the following month. The veteran appealed to the Board of Veterans’ Appeals – and the Board relied on the CAVC’s prior holding in McClain v. Nicholson, 21 Vet.App. 319 (2007), to determine that the May 2008 diagnosis falls outside the claim period, and that there was no current diagnosis for VA benefits purposes.
The Court held that the Board misconstrued McClain and erred by not considering whether the May 2008 diagnosis established that his disability existed at the time he filed his claim, even if the disability resolved prior to adjudication. The Court also provided a lengthy discussion of the appropriate remedy, and appeared poised to reverse, noting that “the ‘clearly erroneous’ standard applied by the Court is less deferential than the ‘substantial evidence’ standard applied by courts when reviewing non-VA administrative adjudication.” Opinion at *10 (quoting R. Pierce, Administrative Law Treatise §§ 11.2, 11.3 (5th ed. 2010)). However, the Court determined that remand was appropriate in this case because of the Board’s misinterpretation of McClain and its failure to weigh the evidence.
Monday, July 8, 2013
Yonek v. Shinseki
Yonek v. Shinseki, docket no. 2012-7120 (Fed. Cir. July 8, 2013)
In this case, the Federal Circuit held that a veteran is only entitled to a single disability rating under 38 C.F.R. § 4.71a, Diagnostic Code 5201, for each arm where there is limited motion of the shoulder. The Court held that a veteran cannot get separate ratings for flexion and abduction. The Court acknowledged that diagnostic codes for the knee and elbow allow for separate ratings for limitation of flexion and extension, but relied on the plain language of DC 5201 to find that any limitation of motion of the shoulder constitutes a single disability, regardless of the various ways in which the motion is limited.
In this case, the Federal Circuit held that a veteran is only entitled to a single disability rating under 38 C.F.R. § 4.71a, Diagnostic Code 5201, for each arm where there is limited motion of the shoulder. The Court held that a veteran cannot get separate ratings for flexion and abduction. The Court acknowledged that diagnostic codes for the knee and elbow allow for separate ratings for limitation of flexion and extension, but relied on the plain language of DC 5201 to find that any limitation of motion of the shoulder constitutes a single disability, regardless of the various ways in which the motion is limited.
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