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.

Floore v. Shinseki

Floore v. Shinseki, 26 Vet.App. 376 (Vet.App. Nov. 5, 2013)
This panel opinion was circulating within the Veterans Court for review when the Federal Circuit issued Geib v. Shinseki. The primary issue in Floore is the same as in Geib – whether VA is required to obtain a single medical opinion that assesses the aggregate effect of all service-connected conditions to determine entitlement to TDIU. 

In Floore, the Court discussed and distinguished the various cases relied on by the appellant, and found that none of these cases held that a combined-effects examination is required in assessing TDIU claims. The Court also considered VA’s Fast Letter 13-13, and found that this letter provides guidance, not direction, and that it is ultimately up to the rating agency to determine the need for a medical opinion. The Court held that “the need for a combined-effects medical examination report or opinion with regard to multiple-disability TDIU entitlement decisions is to be determined on a case-by-case basis, and depends on the evidence of record at the time of decision by the [RO] or the Board.” Floore, 26 Vet.App. at 381.

Nevertheless, the Court remanded because it found the Board’s reasons or bases inadequate for review. The Court stated that even though a combined-effects examination is not necessary, “the Board nevertheless must adequately explain how the record evidence supports its determination that the combined effects of multiple disabilities do not prevent substantially gainful employment.” Id. at 382. The Court noted that while the Board “recognized that the cumulative effects of service-connected disabilities can prevent substantially gainful employment, the Board addressed the effects of Mr. Floor’s disabilities individually, and never explained what the cumulative functional impairment of all his service-connected disabilities might be and why they do not prevent substantially gainful employment.” Id. The Court noted that the Board failed to discuss the effects of the veteran’s diabetes, one of his service-connected conditions. The Court also noted that the Board was influenced by the fact that the veteran terminated his employment as a result of non-service-connected conditions, but failed to explain how evidence of that termination was weighed and “to what extent it is even relevant to its determination that Mr. Floore’s service-connected disabilities do not prevent him from undertaking any substantially gainful employment.” Id. at 383. Advocacy Practice Note: Many veterans are denied TDIU because they obtained Social Security disability benefits for non-service-connected conditions. The language in this case should be helpful in requiring VA to explain the relevance of such SSA decisions on the TDIU decision.

NOVA v. Shinseki

NOVA v. Shinseki, docket no. 2011-7191 (Fed. Cir. Aug. 5, 2013)
The National Organization of Veterans’ Advocates challenged a VA rule that appeared to eliminate rights for veterans appearing at hearings before the Board of Veterans’ Appeals. While on review at the Federal Circuit, VA agreed that the rule was invalid, and assured NOVA that it would no longer apply the rule. When VA Board members continued to apply the rule, the Federal Circuit ordered VA to show cause why it should not be sanctioned for its actions. VA conceded error and provided the Court with a plan for notifying every claimant affected by the invalid rule. The notice would also offer to vacate the Board decision and to provide the claimants with new hearings. The Court approved the plan and did not issue sanctions. However, the Court has retained jurisdiction until both parties indicate that judicial review is no longer needed.

Geib v. Shinseki

Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. Oct. 29, 2013)
In a claim for a total disability rating based on individual unemployability (TDIU), VA is not required to obtain a single medical opinion that addresses the combined effect of all the claimant’s service-connected disabilities on employability. Geib, 733 F.3d at 1353-54 (“Although the VA is expected to give full consideration to ‘the effect of combinations of disability,’ [] neither the statute nor the relevant regulations require the combined effect to be assessed by a medical expert.”)

In this case, the veteran was service connected for multiple disabilities. He applied for TDIU and was ultimately afforded two examinations – one for hearing loss and the other for trenchfoot. The audiology examiner opined that the veteran’s hearing loss and tinnitus do not prevent gainful employment. The trenchfoot examiner opined that his trenchfoot did not prevent gainful employment. The RO denied the TDIU claim. The veteran appealed, arguing that the Board was required to obtain a single medical opinion that addressed the impact of all his service-connected conditions. The Veterans Court affirmed the Board’s denial, and the Federal Circuit agreed.

The Federal Circuit noted that the regulations “place responsibility for the ultimate TDIU determination on the VA, not a medical examiner.” Id. at 1354 (citing 38 C.F.R. § 4.16(a)). The Court stated: “Where, as here, separate medical opinions address the impact on employability resulting from independent disabilities, the VA is authorized to assess the aggregate effect of all disabilities, as it did.” Id. The Court emphasized that “the VA is expected to give full consideration to ‘the effect of combinations of disability.’” Id. (citing 38 C.F.R. § 4.15). The Court added that “[w]here neither the regional office nor the Board addresses the aggregate effect of multiple service-connected disabilities,” the record is inadequate for review. Id.

Gill v. Shinseki

Gill v. Shinseki, docket no. 12-3428 (Vet.App. Oct. 28, 2013)
The diagnostic code (DC) for hypertension requires multiple blood pressure readings over multiple days to confirm the diagnosis of the condition. The CAVC held that this requirement only applies to the confirmation of the diagnosis – and not to the assignment of a disability rating.

In this case, the veteran was awarded service connection for hypertension, rated 10% disabling. He appealed the rating assigned, arguing that the medical evidence of record was inadequate because it did not contain reports of two or more blood pressure readings on at least three different days, as required by 38 C.F.R. § 4.104, DC 7101 Note 1. The Court paid substantial deference to the Secretary’s interpretation of VA’s regulation and held that the regulation’s requirement of multiple blood pressure readings over multiple days only applies to the initial confirmation of the diagnosis of hypertension.