Martin v. McDonald

Martin v. McDonald, 761 F.3d 1366 (August 5, 2014)

38 U.S.C. § 3011, ALCOHOL ABUSE, “WILLFUL MISCONDUCT”

Held: Alcohol abuse cannot always be characterized as willful misconduct, and “it is legal error to rule that willful misconduct is present without an inquiry into and findings about the particular conduct.” 761 F.3d at 1369.

Veteran received an honorable discharge, but the basis of the discharge was “alcohol rehabilitation failure.” He was denied VA education benefits, and the Board upheld the denial “as a matter of law.” Id. at 1368. The CAVC affirmed.

On appeal, the Federal Circuit noted that neither the Board nor the CAVC discussed “any specific acts by Mr. Martin” when they concluded that his discharge was based on “willful misconduct.” Id. at 1369. The Court framed the issue as whether it was legal error for the CAVC to affirm “the Board’s conclusion that Mr. Martin’s discharge rested on ‘willful misconduct’ under 38 U.S.C. § 3011(a)(1)(A)(ii), without specific inquiry into or findings about Mr. Martin’s individual conduct relating to his ‘alcohol rehabilitation failure.’” Id. The Court agreed with Mr. Martin that it was legal error to make such a conclusion “without an inquiry into and findings about the particular conduct.” Id.

The Court discussed the phrase “willful misconduct,” and stated that it required the Board to (1) identify conduct, (2) find that the conduct is misconduct, and (3) find that the misconduct is willful. Id. The Court found that “alcohol rehabilitation failure” cannot always constitute or result from willful misconduct. Id. (“People fail at many things despite their best efforts.”). The Court stated that “[w]ithout more, a finding of an unsuccessful attempt at rehabilitation addresses only a mental state, not misconduct, or willful misconduct.” Id.

The Court noted that three other veterans’ law statutes deny compensation for any condition that is the result of the veteran’s “own willful misconduct or abuse of alcohol or drugs.” Id. at 1371 (citing 38 U.S.C. §§ 105(a), 1110, and 1131). The Court stated that Congress added the phrase “or abuse of alcohol or drugs” to the preexisting willful misconduct language in those three statutes on the same day that it introduced the “willful misconduct” phrase into 38 U.S.C. § 3011. Id. at 1371-72. The Court added that this “underscores that alcohol abuse does not always constitute willful misconduct for purposes of denying basic education-assistance benefits.” Id. at 1372. The Court held that “‘alcohol rehabilitation failure,’ and even alcohol dependence and acts resulting from alcohol dependence, cannot be characterized as being or resulting from willful misconduct in every case,” and remanded for the Board to make factual findings pertinent to this issue.

Rusick v. Gibson

Rusick v. Gibson, 760 F.3d 1342 (July 23, 2014)

CUE, DIC, ACCRUED BENEFITS

Held: A CUE determination that results in an award of dependency and indemnity compensation (DIC) benefits cannot be used to receive accrued benefits where the veteran did not have a claim (CUE or otherwise) pending at the time of death.

Veteran was service connected for anxiety disorder and his disability rating was continued at 30% in 1983. In 1996, he was rated 100%. He passed away in 2000. At the time of his death he had no claims or appeals pending. His widow filed a claim for DIC benefits and was denied. Several years later, she filed another claim for DIC, asserting CUE in the 1983 decision. She argued that her husband should have been rated 100% based on evidence showing he was unemployable. The Board agreed and determined that she was entitled to DIC benefits under 38 U.S.C. § 1318, which allows for DIC benefits for a surviving spouse of a veteran who was “entitled to receive . . . compensation at the time of death for a service-connected disability rated totally disabling if . . . the disability was continuously rated totally disabling for a period of 10 or more years immediately preceding death.” 760 F.3d at 1344 (quoting 38 U.S.C. § 1318). The RO implemented the Board’s decision, but denied her claim for accrued benefits under 38 U.S.C. § 5121, which, if granted, would have entitled her to the benefits Mr. Rusick would have received (i.e., 100% disability compensation) between 1983 and 1996. The Board affirmed the RO’s denial – and the CAVC affirmed the Board’s decision, holding that because the Board’s CUE determination was made after Mr. Rusick’s death, there was no rating decision when he died on which to base an accrued benefits claim. The Court rejected the argument that the corrected 1983 decision became an “existing decision” for purposes of section 5121, and held that a claimant cannot use the CUE statute to “override the specific provisions of section 5121.” Id.

The Federal Circuit agreed, noting that a surviving spouse can only be entitled to accrued benefits if the veteran had a claim pending at the time of death and that a veteran’s interest in a CUE claim dies with him/her. Id. at 1345-46. The Court added that the statute allowing for substitution, 38 U.S.C. § 5121A, was not applicable in this case because the veteran died in 2000, and section 5121A only applies to veterans who died on or after October 2008. Id. at 1346. The Court stated that even though section 5121A might allow a survivor to substitute on a pending CUE claim, the survivor cannot initiate a CUE claim. Id. The Court distinguished this case from its holdings in Pirkl v. Shinseki, 718 F.3d 1379 (Fed. Cir. 2013), and Padgett v. Nicholson, 473 F.3d 1364 (Fed. Cir. 2007), because the veterans in those cases had claims pending when they died. Id. at 1347. The Court held that a veteran’s survivor cannot use a CUE determination made for DIC purposes to also receive accrued benefits where the veteran did not have a CUE claim pending at the time of death. Id.

Cacciola v. Gibson

Cacciola v. Gibson, 27 Vet.App. 45 (July 22, 2014)

ABANDONED ISSUE AT CAVC, SUBSEQUENT CUE MOTION BELOW

Held: An issue that an appellant abandons on appeal to the Court can still be collaterally attacked later on the basis of clear and unmistakable error (CUE) because that abandoned issue was never “decided” by the Court.

Veteran appealed the issue of an earlier effective date in a 2006 Board decision to the Court. The Court remanded the matter in 2011, noting that it “deemed abandoned” the issue of an initial compensable rating because the appellant did not raise any arguments regarding that issue. In a 2012 decision, the Board dismissed the veteran’s CUE motion regarding the effective date in the 2006 decision, but adjudicated the merits of the CUE motion as to the issue of an initial compensable rating.

On appeal to the Court, the parties agreed that the law does “not preclude a claimant from seeking to reverse or revise on the basis of CUE a Board decision on an issue that was abandoned on appeal” since that issue was not decided by the Court. 27 Vet.App. at 50. The Court agreed with the parties, finding that, although a Notice of Appeal puts the entire Board decision on appeal, “an appellant’s abandonment of the right to a decision by the Court on a direct appeal of an issue in a Board decision does not otherwise preclude him from collaterally attacking the Board decision on that issue on the basis of CUE.” Id. at 58.

The appellant argued that the Board provided inadequate reasons or bases for its determination that the 2006 decision was not CUE. The Court determined that the appellant failed to show that the Board decision was CUE and thus affirmed the Board’s 2012 decision. Id. at 59-61.

Robertson v. Gibson

Robertson v. Gibson, 759 F.3d 1351 (July 21, 2014)

CLEMENCY DISCHARGE & VA BENEFITS

Held: The language of a clemency discharge must be read in the context of the program through which it was issued, and, when read in that context, such “pardon does not preclude the VA from considering the conduct underlying [a] less than honorable discharge” when assessing entitlement to VA benefits. 759 F.3d at 1357.

This case affirms the CAVC’s holding in Robertson v. Shinseki, 26 Vet.App. 169 (2013). The veteran in this case received an other-than-honorable discharge after two periods of AWOL, the last one for over 300 days. He received a presidential pardon and clemency discharge under President Ford’s clemency program and applied for VA benefits. He was repeatedly denied based on VA’s review of the circumstances surrounding his discharge. The CAVC affirmed the Board’s denial, and the veteran appealed to the Federal Circuit. The Federal Circuit framed the issue as “whether the clemency discharge and presidential pardon received by Mr. Robertson removed any potential bar to benefits caused by the misconduct that led to his discharge under other than honorable conditions.” Id. at 1356. The Court found that the “pardon was intended to have limited effect with respect to his entitlement to veterans’ benefits” and held that while pardoned individuals can apply for and appeal denials of VA benefits, the pardon itself does not prevent VA from considering the conduct that resulted in the other-than-honorable discharge when determining entitlement to VA benefits. Id. at 1358.

Pacheco v. Gibson

Pacheco v. Gibson, 27 Vet.App. 21 (July 17, 2014) (en banc)

38 C.F.R. § 3.157(b), INFORMAL CLAIM

Held: “A previous allowance of pension can result in an earlier effective date for claims for increased benefits, but not for claims to reopen – which require a previous disallowance for the service-connected disability not being compensable in degree.”

Veteran was awarded nonservice-connected pension benefits in 1974. He continued to apply for service-connected benefits throughout the 1970s. In 1978, he was notified that he was no longer eligible for VA pension benefits because his income was too high. He continued to attempt to reopen his claims for service-connected disability benefits, and was finally awarded benefits in 2005, with an effective date of January 2002, the date VA received his most recent request to reopen.

Mr. Pacheco appealed for an earlier effective date, and submitted additional evidence, including service records and a 2001 VA medical record. The Board denied the appeal. In February 2011, on appeal to the CAVC, the Secretary argued that remand was necessary for the Board to address whether a 2001 medical record was an informal claim to reopen under 38 C.F.R. § 3.157(b). The Court remanded on that basis.

On remand, the Board determined that the 2001 VA medical record was not a claim under § 3.157(b), finding that (1) a formal pension or compensation claim had not been allowed – or had not been disallowed because the condition was noncompensable – and (2) Mr. Pacheco was not service connected for the conditions at the time of the 2001 examination. The Board denied an earlier effective date.

On appeal to the Court, Mr. Pacheco argued that the Board should have awarded an earlier effective under § 3.157(b) because he was previously awarded pension benefits and he filed a claim to reopen his previously denied claim for compensation benefits within one year of the 2001 examination. The Secretary argued that the plain language of the regulation should be read as “pairing” certain sentences with other sentences in the regulation, which would only allow a previous pension award to result in an earlier effective date for an increased-rating claim, but not for a claim to reopen. Thus, the 2001 medical record could not serve as an informal claim to reopen “because his claim was not previously disallowed for being not compensable in degree.” 27 Vet.App. at 25. Alternatively, the Secretary argued that the language was ambiguous and that deference to VA’s interpretation was warranted. Id.

In an en banc decision, the Court determined that the language was ambiguous, and afforded deference to the Secretary’s interpretation. The Court found that the Secretary’s interpretation was “not plainly erroneous or inconsistent with the regulation” when viewed within the context of the regulation’s history and VA’s purportedly “consistent” practice in interpreting this regulation. Id. at 26-29. The Court held that Mr. Pacheco did not meet the criteria of § 3.157(b) that would allow the 2001 VA medical record to serve as an informal claim because at that time he did not have a claim that had been disallowed because it was noncompensable. Id. at 29-30. However, the Court remanded the matter for the Board to consider whether Mr. Pacheco would be entitled to an earlier effective date under 38 C.F.R. § 3.156(c), based on his 2008 submission of military service records. Id. at 30-31.

In a partial dissent, joined by three other judges, Judge Davis disagreed with the majority’s deference to VA. Id. at 36. In a separate dissent, Judge Greenberg questioned the ongoing validity of Auer deference (Auer v. Robbins, 519 U.S. 452, 462 (1997)), stating that he “would not reward the Secretary for writing an ambiguous, and unintelligible, regulation.” Id. at 43. Judge Greenberg questioned the CAVC’s jurisdictional powers to grant equitable relief, concluding: “We must provide equitable remedies to deserving veterans and harmonize our jurisprudence with the veterans canon, applying the full extent of our powers when appropriate.” Id. at 44-45.