Veteranclaims’s Blog

August 24, 2015

Important Case Law 2013 According to BVA; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); Viegas v. Shinseki , 705 F.3d 1374 (Fed. Cir. 2013); Jones v. Shinseki , 26 Vet. App. 56 (2012); Johnson v. Shinseki , 26 Vet. App. 237 (2013); Romanowsky v. Shinseki , 26 Vet. App. 289 (2013); McClain v. Nicholson, 21 Vet. App. 319(2007);

Filed under: Uncategorized — veteranclaims @ 12:05 pm
Significant Judicial Precedent and Its Effect on the Board
Throughout FY 2013, the CAVC and the Federal Circuit issued many significant decisions that
impacted the way VA adjudicates appeals, including the following:
Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013):
The Federal Circuit affirmed a CAVC
decision that denied the Appellant’s claim for entitlement to service connection for bilateral
hearing loss by interpreting 38 CFR § 3.303(b), which relates to chronicity and continuity of
symptomatology. Specifically, the Federal Circuit held that 38 CFR § 3.309(a) lists all chronic
diseases for the purpose of processing claims under § 3.303(b), and concluded that § 3.303(b)
was not applicable to the Appellant’s bilateral hearing loss claim because § 3.309(a) does not
identify hearing loss as a chronic disability. The Federal Circuit also found that, for chronic
diseases listed in § 3.309(a) that qualify for consideration under § 3.303(b), “there is no ‘nexus’
requirement” unless evidence of an inter-current cause exists. This case is significant because
it clarifies the role of § 3.303(b) so that this continuity of symptomatology provision applies
only to the diseases specifically labeled as “chronic” under § 3.309(a).
Viegas v. Shinseki, 705 F.3d 1374 (Fed. Cir. 2013):
In this case, the Appellant filed a claim
for disability compensation under 38 U.S.C. § 1151, after sustaining additional injuries to
his upper and lower extremities after using a restroom located in a VA facility while seeking
treatment for a separate disability. The RO denied the Appellant’s claim by concluding
that he was “not in direct VA care at the time of [his] fall.” The Board denied the appeal
by finding that benefits are available under section 1151 only if a Veteran’s “additional
disability [is] the result of injury that was part of the natural consequence of cause and effect
flowing directly from the actual provision of hospital care, medical or surgical treatment, or
examination furnished by [the] VA and . . . such additional disability was directly caused by
that VA activity.” The CAVC agreed, finding that although the Appellant’s injury occurred
in a VA facility, it was not caused directly by “hospital care, medical or surgical treatment, or
examination furnished by [the] VA.” The CAVC then noted that while the Appellant might
potentially be able to seek compensation for his injuries under the Federal Torts Claim Act,
28 U.S.C. § 1346(b), the additional disabilities incurred as a result of his fall were “simply
not covered by section 1151.”
The Federal Circuit vacated and remanded the CAVC decision, finding that the CAVC
misinterpreted the causation requirement set forth in section 1151(a)(1). Specifically,
the Federal Circuit noted that section 1151 delineates three prerequisites for obtaining
disability compensation. Of these, the Appellant’s injury clearly met the second causation
element since it was proximately caused by VA’s failure to properly install and maintain
the equipment in the VA medical facility’s bathroom. The sole remaining issue then was
whether the Appellant’s injury was “caused” by the medical treatment or hospital care he
received from VA. After reviewing the language of the statute and its legislative history,
the Federal Circuit found that there was nothing in the plain language of section 1151 that
required a veteran’s injury to be “directly” caused by the “actual provision” of medical care
by VA personnel. Instead, the statute required only a “causal connection,” which includes
injuries that occur in a VA facility as a result of VA’s negligence. The Federal Circuit
further noted that the statute does not extend to “remote consequences” of hospital care or
medical treatment provided by VA. This case is significant because it clarified the causation
requirement under 38 U.S.C. § 1151.
Jones v. Shinseki, 26 Vet. App. 56 (2012):
The Appellant in this case appealed a decision
that denied an increased rating for irritable bowel syndrome. The Veteran’s service-
connected disability was evaluated by analogy under 38 CFR § 4.114, Diagnostic Code 7319,
which addresses irritable colon syndrome. The Board, as part of its basis in denying an
increased rating, stated that the medical records showed that anti-acid medication provided
some relief of the Veteran’s gastrointestinal symptoms. The rating criteria under Diagnostic
Code 7319 do not contemplate the effects of medication in evaluating the disability.
The CAVC concluded that the Board committed legal error by considering the effects
of medication on the Appellant’s irritable bowel syndrome “when those effects were not
explicitly contemplated by the rating criteria.” It cited prior case law holding that the Board
errs as a matter of law when it considers factors that are outside the rating criteria provided
by regulation. The CAVC concluded that there was no intent on behalf of the Secretary to
consider the effects of medication when evaluating irritable colon syndrome. The CAVC
explained that the Secretary had demonstrated in other Diagnostic Codes in the Rating
Schedule that there are disabilities where VA considers the effects of medication when
evaluating the disability. Thus, the failure to include the effects of medication as a criterion
under Diagnostic Code 7319, while including such effects as criteria under other Diagnostic
Codes, must therefore be read as a deliberate choice. This case is significant because the
CAVC stated that to the extent that prior case law had not addressed this issue, it was now
explicitly holding that the Board may not deny entitlement to a higher disability rating on the
basis of relief provided by medication when those effects are not specifically contemplated
by the rating criteria.
Johnson v. Shinseki, 26 Vet. App. 237 (2013):
In this case, the Appellant argued that the
Board decision did not provide an adequate statement of reasons or bases for its conclusions
that he was not entitled to a referral for an extraschedular rating for his heart disease and
right knee disability on either an individual or collective basis. In affirming the Board’s
decision, the CAVC found that 38 CFR § 3.321 is ambiguous as to whether an extraschedular
evaluation is to be awarded solely on a disability-by-disability basis or on the combined
effect of a Veteran’s service-connected disabilities. It then explained that where the language
of a regulation is ambiguous, the CAVC must defer to the Agency’s interpretation of its
regulation as long as the interpretation is not inconsistent with the regulatory language or
otherwise plainly erroneous. The CAVC determined that the Secretary’s “disability-by
disability interpretation of § 3.321(b)(1)” was consistent with the statutory and regulatory
scheme, whereby disability ratings are assigned for each disability separately based on the
level of severity of a particular disability. The CAVC also concluded that the Secretary’s
interpretation was consistent with the regulations governing effective dates, which sets
effective dates in accordance with events related to a single disability claim, such as the
date of receipt of the claim. Thus, the CAVC held that the Secretary’s interpretation that
extraschedular evaluations are awarded based on a single disability was entitled to deference
since it was not unreasonable, plainly erroneous, or inconsistent with the regulation or the
statutory and regulatory scheme when viewed as a whole. This case is significant because
the CAVC determined that the Board is not required to consider whether a Veteran is entitled
to extraschedular consideration for multiple disabilities on a collective basis.
Romanowsky v. Shinseki, 26 Vet. App. 289 (2013):
In this case, the Appellant appealed a decision of the Board denying a claim of entitlement to service connection for a psychiatric disorder, claimed as adjustment disorder. As noted by the CAVC, a diagnosis of adjustment disorder had been made in May 2008, several months before the Appellant filed his claim in November 2008. Thereafter, in December 2008, the Appellant underwent a VA examination,
which did not result in a diagnosis of adjustment disorder. The Board denied the claim, relying on the December 2008 examination alone to conclude that the Appellant did not have a current diagnosis of a mental disorder. In reaching this determination, the Board recognized the earlier diagnosis, but citing to McClain v. Nicholson, 21 Vet. App. 319(2007), found that the earlier diagnosis fell outside the appeal period. The CAVC vacated and remanded the Board decision because the Board did not consider whether the earlier
diagnosis was extant at the time the Appellant filed his claim.
The CAVC explained that its earlier holding in McClain does not prohibit evidence of a diagnosis predating the claim from establishing a current disability as a matter of law. To the contrary, the CAVC held that when the record contains a recent diagnosis made prior to when a Veteran files a claim for benefits based on that disability, the report of diagnosis is
relevant evidence that the Board must address in determining whether a current disability existed at the time the claim was filed or during the pendency of the appeal. (In a footnote, the CAVC noted that the question of whether a diagnosis is sufficiently proximate to the filing of a claim so as to constitute evidence of a “current diagnosis” is a fact finding that must be made by the Board.) The CAVC also found that there was a deficiency in the medical evidence in this case because the December 2008 VA examination did not address whether the Appellant’s psychological disorder, diagnosed in May 2008, had resolved itself or was incorrectly diagnosed, and whether it was acute or chronic. Accordingly, the CAVC concluded that a new medical opinion was necessary to resolve the discrepancy between the existing medical examinations. This case is significant because it requires the Board to
address evidence of a potentially current diagnosis regardless of whether that diagnosis was made prior to when a claim was filed.

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