Mason v. Shinseki

Mason v. Shinseki, 743 F.3d 1370 (Feb. 21, 2014)

TIME TO APPEAL ATTORNEY DIRECT-FEE DECISION

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. 

Moffitt v. Shinseki

Moffitt v. Shinseki, 26 Vet.App. 424 (Feb. 14, 2014)

HYPOTHETICAL ENTITLEMENT, RETROACTIVITY

Retroactive application of the VA rule prohibiting hypothetical entitlement to Dependency and Indemnity Compensation (DIC) benefits is not prohibited, even in cases where the claim for DIC under this theory was filed before VA took steps to prohibit hypothetical entitlement.

In 1946, the veteran was awarded a combined 100% disability rating for residuals of injuries sustained during World War II. In 1956, VA reduced his rating to 60%.In 1979, the veteran sought a total disability rating based on individual unemployability. The veteran died while that claim was pending. His surviving spouse was subsequently awarded DIC in 1983. In 1999, she applied for enhanced DIC, asserting that her husband should have been rated 100% for 10 or more years prior to his death. The CAVC discussed the history of hypothetical entitlement, and assessed the question of whether retroactive application of the rule prohibiting hypothetical entitlement was impermissible. The Court conducted the three-prong analysis required by Princess Cruises v. United States, 397 F.3d 1358 (Fed. Cir. 2005), and determined that retroactive application of the rule would not be impermissible in this case. Although this case continues to hammer the nail in the coffin of hypothetical entitlement, the Court’s review suggests that a case-by-case analysis of the Princess Cruises factors will be warranted in situations that are not precisely on point with the existing hypothetical entitlement cases. 

Stallworth v. Shinseki

Stallworth v.Shinseki, 742 F.3d 980 (Feb. 10, 2014)

SEVERING SERVICE CONNECTION – 38 C.F.R. § 3.105(d)

The regulation that provides for the severance of service connection does not require medical examiners to use specific language.

Service connection may be severed “if a medical professional certifies that his or her review of all accumulated evidence indicates that the prior diagnosis is clearly erroneous.” 742 F.3d at 983 (quoting 38 C.F.R. § 3.105(d)). The veteran in this case had been service connected for a mental condition. Following multiple psychiatric hospitalizations, four VA staff physicians concluded that the veteran did not have a mental illness and was “successfully manipulating transfer to various hospitals through ‘deceptive practices.’” Id. at 981-82. The four doctors opined that service connection had been awarded in error, and VA subsequently severed service connection based on clear and unmistakable error (CUE).

Following years of adjudication, the veteran appealed to the CAVC, arguing that the Board misapplied § 3.105(d) because the report from the four VA doctors did not meet the standard required for severing service connection. The CAVC affirmed the Board’s decision, and the veteran appealed to the Federal Circuit. The veteran argued that the CAVC misinterpreted § 3.105(d) by affirming a Board decision that relied on “a medical opinion that failed to certify that ‘in light of all accumulated evidence, the diagnosis upon which service connection was predicated is clearly erroneous.” Id. at 983. The Federal Circuit distinguished this case from Andino v. Nicholson, 498 F.3d 1370 (Fed. Cir. 2007), where the Court “held that service connection could not be severed based on a medical opinion that did not consider all accumulated evidence.” Id. Unlike that case, the CAVC found no error in the Board’s determination that severance was based on a medical opinion that considered all the accumulated evidence and that certified that the prior award of service connection was clear error – even though the doctors did not recite the exact language of the regulation. The Court stated that neither the regulation nor the case law requires the use of “magic words” to sever service connection, and that any such requirement “would elevate form over substance.” Id. at 983-84.

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.