Wise v. Shinseki, 26 Vet.App. 517 (Apr. 16, 2014)
PRESUMPTION OF REGULARITY, COMPETENCY OF VA MEDICAL EXAMINER
The
presumption of regularity with regards to the competency of a VA
medical examiner does not attach where the medical opinion itself
demonstrates irregularity.
Veteran’s surviving spouse appealed
BVA denial of DIC benefits, arguing that the Board relied on an
inadequate medical opinion. The VA medical examiner had been asked to
provide an opinion as to the relationship between the deceased veteran’s
service-connected PTSD and the heart condition that caused his death.
The VA cardiologist stated that she had “no formal training” in
psychiatry, had “pre[]cious little experience treating veterans,” and
characterized her “perspective of psychiatry” as that of a “relative lay
person[].” The VA examiner also complained about the lack of complete
records between 2000 and the veteran’s death in 2008, but made certain
assumptions about his treatment. In light of his age and condition, the
examiner stated that there was “no need or logical reason to invoke PTSD
as a contributing factor” to his heart condition, and thus opined that
it was “‘not at all likely’ that PTSD aggravated the veteran’s heart
disease or hastened his death.” The Board relied on this opinion to deny
benefits, explaining that it favored this opinion over the positive
medical evidence submitted by the claimant because the VA opinion was
based on “known risk factors for heart disease,” whereas the claimant’s
evidence (medical studies and favorable medical opinion letters) were
based on “the not yet accepted notion that PTSD causes heart disease.”
On
appeal, the CAVC found that the presumption of regularity that would
normally attach to VA’s selection of a medical profession did not attach
in this case, where “VA’s process of selecting a medical professional
appears irregular,” particularly since the examiner herself called her
own qualifications into question. The Court noted that the claimant did
not challenge the examiner’s qualifications when the case was still at
the agency level, and that “absent such a challenge, the Board is
ordinarily not obligated to discuss an examiner’s competence.” However,
the Court found that because the opinion itself “expressly raised the
issue of [the doctor’s] competence, [] it would be unreasonable to allow
the Board to ignore this explicit denial of expertise.” The Court held
that where a medical examiner admits that she lacks the required
expertise to provide an opinion, “the opinion itself creates the
appearance of irregularity” and the Board must therefore address the
medical professional’s competence before relying on his or her opinion.”
Failure to do so renders the Board’s reasons or bases inadequate.
The
Court also found additional inadequacies in the medical opinion. First,
the examiner based her negative nexus opinion on medical records that
“significantly predated the veteran’s death and shows a clean bill of
cardiovascular health.” Second, the examiner based her conclusion that
PTSD is not a widely accepted cardiac risk on a 2000 article that she
used “to refute” a 2007 article submitted by the claimant. Neither the
examiner nor the Board discussed the more recent article – or explained
why a 2000 article could refute a 2007 article.
The Court also
found that the Board’s conclusion that VA satisfied its duty to assist
was inadequate because VA failed to obtain medical records that had been
identified by the VA medical examiner. In addition, the Court found the
Board’s reasons or bases inadequate for “failing to adequately account
for the potentially favorable medical literature of record. The Court
found that the Board’s rejection of this literature “because it espoused
a medical principle that was not yet ‘generally accepted’ in the
scientific community[] ran afoul of the benefit of the doubt rule.”
Wednesday, September 3, 2014
Murphy v. Shinseki
Murphy v. Shinseki, 26 Vet.App. 510 (Apr. 4, 2014)
SCOPE OF BVA REVIEW FOLLOWING AMC RATING DECISION & SSOC
The Board mischaracterized the issue on appeal when it ignored an AMC rating decision that had awarded an increased rating. When the Board issued its decision, the AMC decision had already been implemented – and the veteran was receiving benefits at the higher rate. Thus the Board’s mischaracterization of the issue constituted a rating reduction that was accomplished without the appropriate process required by regulation.
The veteran sought an increase of his 10% rating for sinusitis. The Board remanded the claim to the AMC for additional development. The AMC issued a rating decision awarding 30%, and a Supplemental Statement of the Case, denying a rating in excess of 30%. The veteran received these decisions and began receiving benefits at the higher rate. Because the veteran did not withdraw his appeals, the case was returned to the Board. The Board characterized the issue as an appeal for an increase in a 10% rating – instead of an increase in excess of 30% – ignoring the AMC rating decision and the SSOC. The Court determined that the Board improperly considered an issue outside the scope of the appeal. The Court held that because the veteran had already been receiving disability payments at the higher rate, he had a reliance interest in that continued payment and that any rating reduction could only be accomplished by following the regulatory procedures outlined in 38 C.F.R. § 3.105(e).
SCOPE OF BVA REVIEW FOLLOWING AMC RATING DECISION & SSOC
The Board mischaracterized the issue on appeal when it ignored an AMC rating decision that had awarded an increased rating. When the Board issued its decision, the AMC decision had already been implemented – and the veteran was receiving benefits at the higher rate. Thus the Board’s mischaracterization of the issue constituted a rating reduction that was accomplished without the appropriate process required by regulation.
The veteran sought an increase of his 10% rating for sinusitis. The Board remanded the claim to the AMC for additional development. The AMC issued a rating decision awarding 30%, and a Supplemental Statement of the Case, denying a rating in excess of 30%. The veteran received these decisions and began receiving benefits at the higher rate. Because the veteran did not withdraw his appeals, the case was returned to the Board. The Board characterized the issue as an appeal for an increase in a 10% rating – instead of an increase in excess of 30% – ignoring the AMC rating decision and the SSOC. The Court determined that the Board improperly considered an issue outside the scope of the appeal. The Court held that because the veteran had already been receiving disability payments at the higher rate, he had a reliance interest in that continued payment and that any rating reduction could only be accomplished by following the regulatory procedures outlined in 38 C.F.R. § 3.105(e).
King (Clarence) v. Shineseki
King (Clarence) v. Shineseki, 26 Vet.App. 484 (Mar. 21, 2014)
PROCEDURES TO DETERMINE QUALIFYING OR CREDITABLE SERVICE; 38 C.F.R. § 3.203
VA regulation describes the procedures and evidence necessary to verify a veteran’s service that is required prior to determining whether the veteran meets the 90-day active service requirement for pension. Failure to follow the regulatory procedure is error.
Veteran was absent without leave for several months during his active service due to his wife’s ongoing recovery from surgery. When he finally surrendered, he was convicted in a court martial and sentenced to confinement and labor. He served his sentence and was discharged “under conditions other than honorable.” He requested a discharge upgrade and was granted a “general” discharge by the Army Discharge Review Board. The Board issued a new DD Form 214, showing one month and days of active service.
The veteran was subsequently awarded nonservice-connected pension benefits, but VA later severed the benefits because it determined that he did not have 90 days of creditable wartime service to qualify for pension. The veteran appealed, arguing that VA was required to follow procedures outlined in 38 C.F.R. § 3.203(c) to obtain a statement from the Army regarding the nature of his service.
The CAVC reversed, finding that this regulation allows VA to accept a DD 214 if it establishes, on its face, the requisite period of service. However, if the DD 214 does not show the requisite period of service, VA must seek verification from the service department and, in cases where the veteran’s service is at issue, VA must obtain “a complete statement of service” from the service department. Because VA did not obtain a complete statement of service from the Army, the Court held that the Board erred by failing to follow the procedures required by 38 C.F.R. § 3.203. The Court thus voided the decision and remanded for reinstatement of the veteran’s pension.
PROCEDURES TO DETERMINE QUALIFYING OR CREDITABLE SERVICE; 38 C.F.R. § 3.203
VA regulation describes the procedures and evidence necessary to verify a veteran’s service that is required prior to determining whether the veteran meets the 90-day active service requirement for pension. Failure to follow the regulatory procedure is error.
Veteran was absent without leave for several months during his active service due to his wife’s ongoing recovery from surgery. When he finally surrendered, he was convicted in a court martial and sentenced to confinement and labor. He served his sentence and was discharged “under conditions other than honorable.” He requested a discharge upgrade and was granted a “general” discharge by the Army Discharge Review Board. The Board issued a new DD Form 214, showing one month and days of active service.
The veteran was subsequently awarded nonservice-connected pension benefits, but VA later severed the benefits because it determined that he did not have 90 days of creditable wartime service to qualify for pension. The veteran appealed, arguing that VA was required to follow procedures outlined in 38 C.F.R. § 3.203(c) to obtain a statement from the Army regarding the nature of his service.
The CAVC reversed, finding that this regulation allows VA to accept a DD 214 if it establishes, on its face, the requisite period of service. However, if the DD 214 does not show the requisite period of service, VA must seek verification from the service department and, in cases where the veteran’s service is at issue, VA must obtain “a complete statement of service” from the service department. Because VA did not obtain a complete statement of service from the Army, the Court held that the Board erred by failing to follow the procedures required by 38 C.F.R. § 3.203. The Court thus voided the decision and remanded for reinstatement of the veteran’s pension.
Morris v. Shinseki
Morris v. Shinseki, 26 Vet.App. 494 (Mar. 20, 2014)
ACCRUED BENEFITS UNDER 38 U.S.C. § 5121(a) & STATE LAW
38 U.S.C. § 5121 limits the classes of individuals qualified to receive a deceased veteran’s accrued VA benefits to surviving spouses, dependent children, or dependent parents. This federal law preempts state law that would allow siblings to inherit.
Prior to the veteran’s death, VA determined that he was incompetent to handle his VA benefits. VA recognized his brother as legal custodian and fiduciary, but withheld $75,0000 in unpaid benefits until the brother obtained an $85,000 surety bond. The veteran passed away before the brother secured the bond. The brother sought to obtain the $75,000 in unpaid “accrued benefits” from VA, and VA denied the claim, noting that he had never obtained the surety bond and that he was not an eligible accrued-benefits claimant under 38 U.S.C. § 5121. The brother appealed, arguing that section 5121 does not preempt state laws of descent, specifically Georgia law that would have allowed him to inherit his late brother’s estate. The CAVC assessed this argument under three circumstances in which federal law supersedes state law – express preemption, field preemption, and conflict preemption. The Court determined that section 5121 conflicted with state law in this case, and, therefore, preempted it.
ACCRUED BENEFITS UNDER 38 U.S.C. § 5121(a) & STATE LAW
38 U.S.C. § 5121 limits the classes of individuals qualified to receive a deceased veteran’s accrued VA benefits to surviving spouses, dependent children, or dependent parents. This federal law preempts state law that would allow siblings to inherit.
Prior to the veteran’s death, VA determined that he was incompetent to handle his VA benefits. VA recognized his brother as legal custodian and fiduciary, but withheld $75,0000 in unpaid benefits until the brother obtained an $85,000 surety bond. The veteran passed away before the brother secured the bond. The brother sought to obtain the $75,000 in unpaid “accrued benefits” from VA, and VA denied the claim, noting that he had never obtained the surety bond and that he was not an eligible accrued-benefits claimant under 38 U.S.C. § 5121. The brother appealed, arguing that section 5121 does not preempt state laws of descent, specifically Georgia law that would have allowed him to inherit his late brother’s estate. The CAVC assessed this argument under three circumstances in which federal law supersedes state law – express preemption, field preemption, and conflict preemption. The Court determined that section 5121 conflicted with state law in this case, and, therefore, preempted it.
Cardona v. Shinseki
Cardona v. Shinseki, 26 Vet.App. 472 (per curiam order) (Mar. 11, 2014)
CONSTITUTIONAL CHALLENGE TO DOMA; MOOTNESS DOCTRINE
Constitutional challenge to the Defense of Marriage Act is mooted when the Secretary actually pays benefits. The voluntary cessation exception to a finding of mootness is refuted by the Secretary’s showing of a genuine policy change. Mere speculation that the policy may change back in the future will not preclude a finding of mootness.
The Board denied spousal benefits because the appellant’s spouse (same sex, legally married in the state of Connecticut) was not a “spouse” for VA benefits purposes. The appellant challenged both VA’s definition of “spouse” and the definition under the DOMA as unconstitutional. The CAVC stayed the case pending the Supreme Court’s decision on the constitutionality of the DOMA. In U.S. v. Windsor, 133 S. Ct. 2675, 2695 (2013), the Supreme Court held that the definition of spouse in the DOMA was unconstitutional. Shortly thereafter, the Secretary informed the CAVC that it would cease enforcing VA’s definition of spouse. The Secretary paid spousal benefits to the appellant and filed a motion to dismiss the case. The appellant opposed the motion, arguing that the voluntary cessation exception to the mootness doctrine applied to her case.
The CAVC discussed the case law surrounding the voluntary cessation exception to the mootness doctrine, which is “based on the concern that a party voluntarily ceasing its conduct might be attempting to manipulate court proceedings and evade judicial review.” 26 Vet.App. at 476. The Court found that the Secretary’s voluntary cessation of enforcing VA’s definition of “spouse” reflected a genuine policy change brought about by a Presidential directive following a Supreme Court decision. The Court rejected the appellant’s argument that this or some future administration could resume enforcement of the definition of spouse at any time, noting that “the standard for voluntary cessation is whether recurrence ‘could . . . reasonably be expected,’ not whether recurrence is possible under a hypothetical future scenario.” Id. at 482. The Court thus determined that the Secretary met his burden to refute the voluntary cessation exception and dismissed the case as moot.
CONSTITUTIONAL CHALLENGE TO DOMA; MOOTNESS DOCTRINE
Constitutional challenge to the Defense of Marriage Act is mooted when the Secretary actually pays benefits. The voluntary cessation exception to a finding of mootness is refuted by the Secretary’s showing of a genuine policy change. Mere speculation that the policy may change back in the future will not preclude a finding of mootness.
The Board denied spousal benefits because the appellant’s spouse (same sex, legally married in the state of Connecticut) was not a “spouse” for VA benefits purposes. The appellant challenged both VA’s definition of “spouse” and the definition under the DOMA as unconstitutional. The CAVC stayed the case pending the Supreme Court’s decision on the constitutionality of the DOMA. In U.S. v. Windsor, 133 S. Ct. 2675, 2695 (2013), the Supreme Court held that the definition of spouse in the DOMA was unconstitutional. Shortly thereafter, the Secretary informed the CAVC that it would cease enforcing VA’s definition of spouse. The Secretary paid spousal benefits to the appellant and filed a motion to dismiss the case. The appellant opposed the motion, arguing that the voluntary cessation exception to the mootness doctrine applied to her case.
The CAVC discussed the case law surrounding the voluntary cessation exception to the mootness doctrine, which is “based on the concern that a party voluntarily ceasing its conduct might be attempting to manipulate court proceedings and evade judicial review.” 26 Vet.App. at 476. The Court found that the Secretary’s voluntary cessation of enforcing VA’s definition of “spouse” reflected a genuine policy change brought about by a Presidential directive following a Supreme Court decision. The Court rejected the appellant’s argument that this or some future administration could resume enforcement of the definition of spouse at any time, noting that “the standard for voluntary cessation is whether recurrence ‘could . . . reasonably be expected,’ not whether recurrence is possible under a hypothetical future scenario.” Id. at 482. The Court thus determined that the Secretary met his burden to refute the voluntary cessation exception and dismissed the case as moot.
Larson v. Shinseki
Larson v. Shinseki, 744 F.3d 1317 (Mar. 10, 2014)
CLEAR & UNMISTAKABLE ERROR (CUE)
Appellant has only one opportunity to raise CUE arguments with each claim in a Board decision, but can raise new CUE arguments with an RO decision at any time.
Veteran was awarded benefits in 1969 and raised a CUE argument with that decision in 2007, asserting that the Board misapplied the diagnostic codes. The RO denied the CUE claim and the Board affirmed. The Board identified two CUE claims, both relating to the application of diagnostic codes. The Board concluded that the veteran had not shown that the law was misapplied or that the correct facts were not before the adjudicator. On appeal to the CAVC, the veteran filed a motion to modify the Board’s decision by removing the reference to a factual argument, which he had not raised at the Board or the RO. The CAVC dismissed the motion as moot, stating that he had exhausted his opportunity to raise further CUE arguments, and affirmed the Board’s decision.
The Federal Circuit reversed, finding that the CAVC erred in dismissing Mr. Larson’s motion. The Federal Circuit noted that the CAVC based its determination on the belief that Hillyard v. Shinseki, 24 Vet.App. 343 (2011), aff’d 695 F.3d 1257 (Fed. Cir. 2012), “limits a claimant to only one opportunity to raise any and all CUE allegations.” Larsen, 744 F.3d at 1318. However, Hillyard only dealt with 38 C.F.R. § 20.1409(c), which relates to the number of CUE arguments that can be raised with a Board decision. A different regulation, 38 C.F.R. § 3.105(a), allows a veteran to raise new CUE arguments with an RO decision at any time. The Federal Circuit held that because Mr. Larsen only challenged the legal basis for the RO’s decision, he was free to raise a “correct facts” argument in the future at the RO. Therefore, the motion to modify the Board decision with regards to its “correct facts” language was not moot – as that language could preclude Mr. Larsen from raising a “correct facts” argument at the RO in the future. The Federal Circuit did not disturb the portion of the CAVC’s decision that affirmed the two legal CUE claims.
CLEAR & UNMISTAKABLE ERROR (CUE)
Appellant has only one opportunity to raise CUE arguments with each claim in a Board decision, but can raise new CUE arguments with an RO decision at any time.
Veteran was awarded benefits in 1969 and raised a CUE argument with that decision in 2007, asserting that the Board misapplied the diagnostic codes. The RO denied the CUE claim and the Board affirmed. The Board identified two CUE claims, both relating to the application of diagnostic codes. The Board concluded that the veteran had not shown that the law was misapplied or that the correct facts were not before the adjudicator. On appeal to the CAVC, the veteran filed a motion to modify the Board’s decision by removing the reference to a factual argument, which he had not raised at the Board or the RO. The CAVC dismissed the motion as moot, stating that he had exhausted his opportunity to raise further CUE arguments, and affirmed the Board’s decision.
The Federal Circuit reversed, finding that the CAVC erred in dismissing Mr. Larson’s motion. The Federal Circuit noted that the CAVC based its determination on the belief that Hillyard v. Shinseki, 24 Vet.App. 343 (2011), aff’d 695 F.3d 1257 (Fed. Cir. 2012), “limits a claimant to only one opportunity to raise any and all CUE allegations.” Larsen, 744 F.3d at 1318. However, Hillyard only dealt with 38 C.F.R. § 20.1409(c), which relates to the number of CUE arguments that can be raised with a Board decision. A different regulation, 38 C.F.R. § 3.105(a), allows a veteran to raise new CUE arguments with an RO decision at any time. The Federal Circuit held that because Mr. Larsen only challenged the legal basis for the RO’s decision, he was free to raise a “correct facts” argument in the future at the RO. Therefore, the motion to modify the Board decision with regards to its “correct facts” language was not moot – as that language could preclude Mr. Larsen from raising a “correct facts” argument at the RO in the future. The Federal Circuit did not disturb the portion of the CAVC’s decision that affirmed the two legal CUE claims.
Jackson v. Shinseki
Jackson v. Shinseki, 26 Vet.App. 460 (Mar. 6, 2014)
ATTORNEY FEE, ACCRUED BENEFITS
An attorney is not entitled to a fee where the veteran/client died before the Regional Office implemented a favorable Board decision and where the veteran’s surviving spouse was subsequently awarded accrued benefits without signing a fee agreement and without having filed an appeal (i.e., the spouse was awarded accrued benefits on the initial application). [Note: this is a pre-2008 accrued benefits claim – so the veteran’s surviving spouse was not able to substitute for the veteran.]
The attorney in this case successfully represented the veteran in an appeal to the Board. The Board awarded service connection, but the veteran died before the RO implemented the decision. The RO denied the attorney fee because no award had been paid. The attorney submitted the surviving spouse’s accrued benefits application – and the RO awarded the claim. The Board upheld the denial of the attorney’s fee because the prior Board award “did not result in any cash payment to the Veteran.” Jackson, 26 Vet.App. at 461-62. The CAVC affirmed, finding that “a determination of service connection is not an ‘award of past-due benefits’ as contemplated by 38 U.S.C. § 5904(d), and no award was thus made in connection with [the veteran’s] claim.” Id. at 467. In a footnote, the Court recognized that its holding did not apply to post-2008 cases involving substitution. Id. n. 2.
In her dissent, Judge Schoelen pointed out the “absurd result” of an accrued benefits claimant collecting more cash benefits than what was actually “due and unpaid” to the veteran at the time of death.
ATTORNEY FEE, ACCRUED BENEFITS
An attorney is not entitled to a fee where the veteran/client died before the Regional Office implemented a favorable Board decision and where the veteran’s surviving spouse was subsequently awarded accrued benefits without signing a fee agreement and without having filed an appeal (i.e., the spouse was awarded accrued benefits on the initial application). [Note: this is a pre-2008 accrued benefits claim – so the veteran’s surviving spouse was not able to substitute for the veteran.]
The attorney in this case successfully represented the veteran in an appeal to the Board. The Board awarded service connection, but the veteran died before the RO implemented the decision. The RO denied the attorney fee because no award had been paid. The attorney submitted the surviving spouse’s accrued benefits application – and the RO awarded the claim. The Board upheld the denial of the attorney’s fee because the prior Board award “did not result in any cash payment to the Veteran.” Jackson, 26 Vet.App. at 461-62. The CAVC affirmed, finding that “a determination of service connection is not an ‘award of past-due benefits’ as contemplated by 38 U.S.C. § 5904(d), and no award was thus made in connection with [the veteran’s] claim.” Id. at 467. In a footnote, the Court recognized that its holding did not apply to post-2008 cases involving substitution. Id. n. 2.
In her dissent, Judge Schoelen pointed out the “absurd result” of an accrued benefits claimant collecting more cash benefits than what was actually “due and unpaid” to the veteran at the time of death.
Subscribe to:
Posts (Atom)