Dixon v. Shinseki

Dixon v. Shinseki, 741 F.3d 1367 (Feb. 4, 2014)

NEW EVIDENCE ON MOTION FOR RECONSIDERATION, EQUITABLE TOLLING

Under certain circumstances, the introduction of new, clarifying evidence on motion for reconsideration may be necessary to allow the Court to fully evaluate the facts of a veteran’s equitable tolling claim.

Pro se veteran filed his Notice of Appeal to the CAVC 60 days beyond the 120-day filing deadline, and the Court thus dismissed the appeal. Following the Supreme Court’s decision in Henderson ex rel. Henderson v. Shinseki, 131 S. Ct. 1197, 1203-06 (2011), which held that the 120-day filing deadline is not a jurisdictional requirement, the CAVC issued orders to veterans whose appeals had been dismissed to file motions to recall mandate. Still acting pro se, Mr. Dixon filed a motion seeking equitable tolling, explaining the disabilities that prevented him from timely filing his notice of appeal. He subsequently submitted a supplemental motion along with a letter from his doctor to support his claim. The CAVC denied the motion and dismissed the appeal because it determined that Mr. Dixon failed to establish that the untimely filing was “the direct result of his illnesses.” 741 F.3d at 1371. Mr. Dixon secured pro bono representation, and his attorneys moved for an extension of time to file a motion for reconsideration, which the CAVC granted.

VA officials obstructed every attempt made by the attorneys to obtain a copy of the claims file, review the file, have copies of pages from the file sent before their deadline, and have Mr. Dixon’s doctor sign a statement regarding his condition. Because of this, the attorneys subsequently filed a second motion for an extension of time, which the CAVC denied. The Court then entered judgment against Mr. Dixon, stating that he had “no right to ‘augment[] the record’ on motion for reconsideration because such a motion ‘must be based on the record at the time of the decision upon which reconsideration or panel review is sought.’” Id. at 1373.

The Federal Circuit reversed, stating that “[w]here a litigant is unjustifiably denied timely access to pertinent evidence in the possession of the opposing party, fairness dictates that he be granted an extension of time sufficient to allow him to obtain and review such evidence.” Id. at 1374. The Court held that the CAVC “erred to the extent that it concluded that Rule 35(e) imposes an absolute prohibition on the submission of clarifying evidence in support of an equitable tolling decision,” and that “under certain circumstances, introduction of clarifying evidence is necessary for ‘a full and fair consideration of [a veteran’s] equitable tolling request, including assessment of all relevant facts.’” Id. at 1375.  

Middleton v. Shinseki

Middleton v. Shinseki, 743 F.3d 1356 (Feb. 3, 2014)

38 C.F.R. § 4.7, ENTITLEMENT TO HIGHER DISABILITY RATING

The Federal Circuit denied the appellant’s petition for panel and en banc rehearing of its opinion that held that where a veteran’s disability meets all the criteria of a lower disability rating, but only meets some of the criteria of a higher rating, the veteran is only entitled to the lower rating. This decision contains two strongly worded dissents.

Pacheco v. Shinseki

Pacheco v. Shinseki, 26 Vet.App. 413 (Jan. 16, 2014)

38 C.F.R. § 3.157(b) – MEDICAL EVIDENCE AS INFORMAL CLAIM

“[A]s long as a pension claim previously has been allowed as required in [38 C.F.R.] § 3.157(b), a VA examination report will constitute the requisite informal claim for increase or reopening for service connection disability compensation benefits under § 3.157(b)(1), irrespective of whether any disability identified in the original pension claim relates to the same condition as the more recent examination report.” 26 Vet.App. at 417 (emphasis added).

World War II veteran applied for VA disability compensation and pension benefits in 1974. Because the veteran’s service records had been destroyed, VA was unable to corroborate his allegation of in-service injury and denied disability compensation. VA did, however, award pension benefits. Several years later, the veteran filed a request to reopen. VA was able to locate some service records, but continued to deny his claim, and also denied pension because his income was now too high. The veteran continued to submit requests to reopen, and was eventually awarded disability compensation benefits in 2002, effective as of the date he submitted his most recent request. He appealed the assignment of the effective date under 38 C.F.R. §§ 3.157(b) and 3.156(c).

The Court held that because his pension claim had been previously allowed, he met the threshold requirement of § 3.157(b), which states that “[o]nce a formal claim for pension . . . has been allowed . . . , receipt of [VA medical report] will be accepted as an informal claim for increased benefits or an informal claim to reopen.” 26 Vet.App. at 416. The Court also noted that the regulation does not “explicitly require that an original pension claim relate to the same condition as the recent VA examination report,” although in this case the veteran’s claims and VA medical report were for the same disabilities. Id. at 417. The Court reversed the Board’s decision, finding that the veteran was entitled to a May 2001 effective date, the date of the VA medical report. The Court also remanded the case to the Board to consider, in the first instance, the applicability of § 3.156(c), based on VA’s receipt of service records.

Ausmer v. Shinseki

Ausmer v. Shinseki, 26 Vet.App. 392 (Dec. 19, 2013) (order)

SERVICEMEMBERS CIVIL RELIEF ACT, TIME TO FILE NOTICE OF APPEAL

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.

Sneed v. Shinseki

Sneed v. Shinseki, 737 F.3d 719 (Dec. 9, 2013)

EQUITABLE TOLLING

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.

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.