Veteranclaims’s Blog

August 24, 2015

BVA 2014 List of Important Case Law; AZ v. Shinseki, 731 F.3d 1303 (Fed. Cir. 2013); Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014); Wise v. Shinseki, 26 Vet. App. 517 (2014); Carter v. Shinseki, 26 Vet. App. 534 (2014); Tagupa v. McDonald, 27 Vet. App. 95 (2014);National Organization of Veterans Advocates, Inc. (NOVA) v. Secretary of Veterans Affairs, 725 F.3d 1312 (Fed. Cir. 2013)

Significant Judicial Precedent and Its Effect on the Board Throughout FY 2014, the CAVC and the Federal Circuit issued many significant decisions that impact the way VA adjudicates appeals, including the following:
AZ v. Shinseki, 731 F.3d 1303 (Fed. Cir. 2013):
In this consolidated case, two Appellants originally filed claims for service connection for posttraumatic stress disorder (PTSD) alleged to have resulted from sexual assaults that occurred during service. The Board and
the CAVC denied both claims, in part on the ground that the Veterans’ service records didnot include reports of the alleged assaults, and because the Veterans stated that the assaultswere never reported to the military authorities. The Federal Circuit vacated and remanded the CAVC decisions, holding that VA may not rely on a Veteran’s failure to report an in-service sexual assault to military authorities as pertinent evidence that the sexual assault did not occur.
In reaching this decision, the Federal Circuit noted that by statute, VA is required to “consider all information and lay and medical evidence of record” in determining serviceconnection, 38 U.S.C. § 5107(b), and that such medical and lay evidence be “pertinent,” see38 U.S.C. § 1154(a). The Federal Circuit then noted that while the regulations governing the
criteria for establishing service connection for a PTSD claim, and particularly those pertinent to a PTSD claim based on an “in-service personal assault,” identify the types of lay and medical evidence that must be considered, neither the statute nor any other VA regulation directly addresses the role that the absence of service records reporting the alleged assault should play in a disability determination. As a result, the Federal Circuit looked to other
authorities, including the Federal Rules of Evidence 803(7) and case law from other courts, for the proposition that the absence of a notation in a record may only be considered if it is first shown both that the record is complete and also that the fact would have been recorded had it been reported. The Federal Circuit then considered substantial sociological evidence, including studies by the Department of Defense and VA, to find that military sexual trauma is not normally reported. Accordingly, the Federal Circuit concluded that where an alleged sexual assault, like most in-service sexual assaults, is not reported, the absence of service records documenting the alleged assault is not pertinent evidence that the assault did not occur. Also, VA may not treat a claimant’s failure to report an alleged sexual assault to military authorities as pertinent evidence that the sexual assault did not occur. This case is significant because the Federal Circuit made it clear that it is unreasonable to presume that sexual assaults would be reported to superior officers or that there would be records of unreported assaults; therefore, such evidence is not pertinent that the assault did not occur
and will change how VA analyzes this issue.
Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014):
In this case, the Federal Circuit reversed an en banc CAVC decision that had given deference to VA’s interpretation of
the regulation pertaining to extra-schedular ratings, 38 CFR § 3.321(b). For background purposes, the provisions of 38 CFR § 3.321(b)(1) state, in pert
inent part, as follows:
To accord justice … to the exceptional case where the schedular evaluations are found to be inadequate, the Under Secretary for Benefits or the Director … is authorized to approve on the basis of the criteria set forth in this paragraph an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities. The governing norm in these exceptional
cases is: A finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards.
When the Appellant’s case was before the CAVC, he had argued that he was entitled to referral for consideration of an extra-schedular rating on either an individual basis for each of his service-connected disabilities involving his heart and right knee or on a collective basis for the two disabilities. The CAVC concluded that the wording in 38 CFR § 3.321(b)
was ambiguous as to whether an extra-schedular rating is to be awarded on an individual basis or on the combined effect of a Veteran’s service-connected disabilities. As such, the CAVC deferred to VA’s interpretation of § 3.321(b) in the Veterans Benefits Administration Adjudication Procedure Manual (VBA Manual) Rewrite M21–1MR, which states that a claim is to be submitted for extra-schedular consideration “if the schedular evaluations are
considered inadequate for an individual disability.”
The Appellant appealed the CAVC’s decision to the Federal Circuit, who agreed with the Appellant’s interpretation of § 3.321(b), and concluded that the CAVC’s interpretation of the regulation “contravenes the plain meaning of the regulation.” The Federal Circuit explained that the plain meaning of the regulation provides for referral for extra-schedular consideration based on the collective impact of multiple disabilities, as the wording in the regulation uses the plural form of “evaluation,” which “suggests that the regulation contemplates a situation in which evaluations assigned to multiple disabilities are inadequate.” Additionally, it added that the plain language of the regulation was consistent with the language of 38 U.S.C. § 1155, the statute that authorizes the regulation.
Specifically, this statute authorizes the Secretary to “adopt and apply a schedule of ratings of reductions in earning capacity from specific injuries or combination of injuries.” Further, the Federal Circuit stated that the use of the language “disability picture” in § 3.321 referred to the “collective impact” of a Veteran’s service-connected disability or disabilities. This case is significant because it is inconsistent with VA’s understanding of the regulation as noted
above and its current practice, and it requires VA to change the way it adjudicates claims involving extra-schedular consideration and evaluation under § 3.321.
Wise v. Shinseki, 26 Vet. App. 517 (2014):
The Appellant in this case appealed a decision that denied dependency and indemnity compensation based on service connection for the cause of the Veteran’s death. The Board requested an advisory medical opinion to determine whether the Veteran’s service connected posttraumatic stress disorder caused or aggravated the atherosclerotic heart disease which caused his death. The medical opinion was provided by a cardiologist, who specifically stated that she had “no formal training or background in [p]sychiatry other than the rudimentary month[-]long [p]sychiatry rotation in medical school
more than 25 years ago.” The cardiologist then referred to her “perspective of psychiatry” as that of a “relative lay person’s.”
The CAVC set aside and remanded the Board’s decision for failure to address whether the advisory medical opinion was provided by a competent medical professional. The CAVC noted that there was a presumption of competence in medical professionals chosen by VA to provide medical opinions, and that the Appellant had not challenged the medical professional’s competence before VA. However, the CAVC found that the medical professional had called her own competence into question. The CAVC therefore held that “where . . . a medical professional admits that he or she lacks the expertise necessary to provide the opinion requested by the Board . . . the opinion itself creates the appearance of irregularity in the process resulting in the selection of that medical professional that prevents
the presumption of competence from attaching, and the Board must therefore address the medical professional’s competence before relying on his or her opinion.”
In addition, the Board found that medical literature evidence that was potentially favorable to the Appellant was of limited probative value because it espoused a medical principle that was not yet “generally accepted” in the scientific community. The CAVC found that this violated the benefit of the doubt rule and held that “the Board, when evaluating . . . evidence, cannot
demand a level of acceptance in the scientific community greater than the level of proof required by the benefit of the doubt rule.” As noted in one of the seminal cases in Veterans law, this standard of proof is reflective of “the high esteem in which our nation holds those who have served in the Armed Services.”
Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990).
In this regard, the CAVC stated that “[b]y requiring only an ‘approximate balance of positive and negative evidence’ to prove any issue material to a claim for veterans benefits, 38 U.S.C. § 5107(b), the nation, ‘in recognition of our debt to our veterans,’ has ‘taken upon itself the risk of error’ in awarding such benefits.”
This case is significant as it creates an exception to the presumption of competence and provides additional guidance on how the Board can weigh medical evidence. It also provides a reminder on the deliberately unique standard of proof in Veterans law.
Carter v. Shinseki, 26 Vet. App. 534 (2014):
In this case, the Appellant pursued entitlement
to service connection for degenerative disc disease of the lumbosacral spine. The Appellant
had appealed a September 2009 Board decision to the CAVC. At this time, the Appellant
obtained representation by an attorney, who continued to represent him throughout the
remaining litigation. The parties entered into a joint motion for remand in June 2010, which
was granted in July 2010. The Board denied the appeal the second time in a February
2011 decision. The Appellant again appealed to the CAVC, asserting three new errors, all
of which were based on the record as it existed at the time of the first Board decision and
which were not mentioned in the joint motion for remand or pled to the Board prior to the
second decision.
The CAVC held that when an attorney-represented Appellant enters into to a joint motion
for remand identifying specific Board issues and raises no additional issues on remand,
the Board is required to focus on the arguments specifically advanced by the attorney in
the motion. However, the CAVC may look to the terms of the joint motion for remand
to determine the scope of the Board’s duty to search the record for other issues that are
reasonably raised by the record. The degree to which the joint motion for remand relieves
the Board of its duties to search the record is determined by the terms of the joint motion for
remand in the context of the other facts present in the case. The CAVC further held that “the
parties must give clear direction to the Board of the errors that they agree are raised by the
record and specify what further action the Board must take with respect to the claim.” This
case is significant because while the agreement of the parties guides the scope of the Board’s
review, it may also require the Board to once again review the record to determine if any
issues were reasonably raised, even if not specified by the joint motion for remand.
Tagupa v. McDonald, 27 Vet. App. 95 (2014):
In this case, the Board denied the
Appellant’s claim for basic entitlement to VA death benefits on the grounds that her deceased
spouse did not have qualifying active service. The Board relied on a National Personnel
Records Center (NPRC) finding that the decedent had not been a member of the Philippine
Commonwealth Army, including the recognized guerrillas, in the service of the United States
Armed Forces. However, the Board did not discuss whether the NPRC, as an agency of the
National Archives Records Administration (NARA), was authorized to verify the decedent’s
service, or whether such determinations fell solely within the province of the relevant service
department (here, the Department of the Army). On appeal to the CAVC, the Appellant
contended that, in instances when there was insufficient evidence of qualifying service under
38 CFR § 3.203(a)(1), VA was required to seek verification from the appropriate service
department in accordance with 38 CFR § 3.203(c). In response, VA averred that the Army
had delegated its authority in this regard via a 1998 memorandum of agreement (MOA),
transferring responsibility for “providing reference services on the collection of Philippine
Army files and archival holdings” to NARA indefinitely.
After taking judicial notice of the MOA, the CAVC found it was unclear whether this
agreement delegated to NARA “the authority to make administrative determinations
verifying service or…to act simply as a reference librarian.” Given the ambiguous language
of the MOA, the CAVC reasoned that it was precluded from finding that the “Army [had]
delegated its duty to make administrative determinations verifying service to NARA, or its
agency, NPRC.” Moreover, absent such evidence of delegation, the CAVC found that it was
bound by the “plain mandatory language” of 38 CFR §3.203(c), which states that VA “shall
request verification of service from the service department.” Accordingly, as no request
to the service department had been made, the CAVC held that the adverse Board decision
should be set aside and that the appeal should be remanded so that the appropriate service
verification efforts could be undertaken. This case is significant because VA must seek
verification of service directly from the service department instead of via the NPRC.
National Organization of Veterans Advocates, Inc. (NOVA) v. Secretary of Veterans Affairs, 725 F.3d 1312 (Fed. Cir. 2013):
Although this case was decided in August 2013
(FY 2013), implementation of the decision crossed well into FY 2014. In this case, NOVA
petitioned the Federal Circuit to review an immediately effective rule promulgated by
VA that stated that certain regulatory provisions regarding the duties of a VA employee
conducting a hearing did not apply to hearings before the Board. During the course of
proceedings before the Federal Circuit, VA agreed to repeal the rulemaking, finding it
procedurally invalid, and, with NOVA’s agreement, crafted a remedial plan to address any
potential prejudice that may have been caused to appellants by application of the rulemaking
in Board decisions. The Federal Circuit approved the plan and concluded that it was not
necessary to impose sanctions against VA.
At the end of FY 2013, the Board, using search criteria outlined in the approved plan,
identified and sent notice letters to 1,023 appellants. These notice letters provided appellants
with the opportunity to have the affected Board decision vacated and the option to appear at
a new hearing and/or to submit new evidence, followed by issuance of a new Board decision.
Of the 1,023 appellants notified, 380 (37 percent) requested that further action be taken in
their cases. During FY 2014, the Board continued implementation of the plan by vacating
affected Board decisions, scheduling and conducting requested hearings, and issuing
new decisions

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