Veteranclaims’s Blog

December 7, 2017

Board’s FY 2015 List of Significant Decisions: Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015); Nohr v. McDonald, 27 Vet. App. 124 (2015); Wages v. McDonald, 27 Vet. App. 233 (2015); Fountain v. McDonald, 27 Vet. App. 258 (2015); service connection for tinnitus may be established under 38 U.S.C. § 1101(3) and 38 CFR § 3.309(a); Gray v. McDonald, 27 Vet. App. 313 (2015);

Significant Judicial Precedent and Its Effect on the Board
Throughout FY 2015, the CAVC and the Federal Circuit issued many significant decisions that impacted the way VA adjudicates appeals, including the following:

Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015): In this case, the incarcerated Appellant requested a Board hearing and noted that his next potential opportunity for parole was over a year later. The RO scheduled the hearing in the interim and the Appellant did not attend. The Appellant requested a rescheduled hearing, but the Board denied the Appellant’s request and denied the appeal on the merits. The claim was appealed to the CAVC, where the Appellant was represented by counsel. The hearing issue was not raised to the CAVC, but the case was remanded on other grounds. The Board then remanded the case to the RO for additional development while noting that the Appellant “has not renewed his request” for a hearing. The Board eventually denied the claim again. During the second appeal to the CAVC, the Appellant argued that the Board erred by denying him his right to a hearing. The CAVC refused to consider the argument because it had not been raised either in the prior CAVC appeal or to the Board during the intervening proceedings. The Federal Circuit affirmed the CAVC. In doing so, it acknowledged that the doctrine of issue exhaustion was appropriate both before the Board and the CAVC in certain circumstances. However, the Federal Circuit also noted that the Board has a special obligation to read filings liberally, whether submitted by counsel or pro se appellant. The Federal Circuit then analyzed what constituted a liberal construction for these purposes,
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stating: “There is a significant difference between considering closely-related theories and evidence that could support [an Appellant’s] claim for disability benefits and considering procedural issues that are collateral to the merits.” The Federal Circuit stated that, for procedural issues, an Appellant’s interest “may be better served by resolution of his claims” rather than by a remand that may not change the final outcome. As a result, the Federal Circuit stated: “Having initially failed to raise the procedural issue, the [Appellant] should not be able to resurrect it months or even years later when, based on new circumstances, the [Appellant] decides that raising the issue is now advantageous.” Accordingly, the Federal Circuit held: “[t]he Board’s obligation to read filings in a liberal manner does not require the Board or the [CAVC] to search the record and address procedural arguments when the [Appellant] fails to raise them before the Board.” This case is significant as it relieves the Board from searching the record to address procedural arguments not raised by the Appellant.

Nohr v. McDonald, 27 Vet. App. 124 (2015): In this case, the Board denied disability compensation benefits for a dysthymic disorder based on a finding that clear and unmistakable evidence demonstrated that the dysthymic disorder preexisted active duty service and was not aggravated by service, relying in part on a VHA specialist’s opinion. Prior to issuing its decision, the Board provided the Appellant and his representative with a copy of the VHA specialist’s opinion. In response, the Appellant submitted questions and requests for documents described as “interrogatories” for the specialist to answer concerning her opinion. In the alternative, the Appellant requested that the Board subpoena the specialist to appear at a personal hearing. In its decision denying disability compensation benefits for a dysthymic disorder, the Board denied the Appellant’s requests to have the specialist answer interrogatories or to issue a subpoena. On appeal to the CAVC, the Appellant contended, in relevant part, that the Board violated his Fifth Amendment procedural due process rights when it declined to either require the specialist to respond to the set of interrogatories or issue a subpoena ordering the specialist to appear for a hearing. VA countered that the Appellant had no constitutional right to submit interrogatories to doctors who provide VA medical opinions, or to otherwise confront doctors at a hearing. The CAVC determined that the submission of interrogatories to the Board reasonably raised issues concerning the competence of the VHA expert, the adequacy of her opinion, and VA’s duty to assist. With respect to the expert, the CAVC found a reasonable basis for the Appellant’s request for the expert’s curriculum vitae, especially in light of the examiner’s identification of a “personal limitation” in providing the opinion. Concerning the duty to obtain records, the CAVC found that the Board did not adequately address why the Appellant’s specific requests in the interrogatories for documents “potentially held by [the expert], a VHA employee” did not obligate VA to make a reasonable effort to assist him in obtaining those records. The CAVC stressed that the Board “reflexively reacted” to the term “interrogatories,” and as a result, failed to consider the requests in light of the duty to assist. The CAVC ultimately declined to discuss some of the Appellant’s arguments, including his Fifth Amendment due process claims, finding that addressing those arguments was unnecessary in light of the holding that VA had not complied with the statutory and regulatory duty to assist.
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This case is significant because it clarified that VA’s duty to assist may include efforts to respond to issues reasonably raised by the Appellant via submissions (to possibly include interrogatories) to the Board.

Wages v. McDonald, 27 Vet. App. 233 (2015): The Board found that the Appellant met the schedular requirements for a total disability rating based on individual unemployability (TDIU) under 38 CFR § 4.16(a) as of December 11, 2009, and further found that he had been unable to secure or follow a substantially gainful occupation since that time; accordingly, he was awarded a TDIU, effective December 11, 2009. The Board also found that “medical and lay evidence suggests that the [Appellant] was unable to work prior to December 11, 2009[,] due to service-connected disabilities,” but the Board concluded that it lacked the authority to award TDIU for this period, because the Appellant did not meet the schedular criteria for TDIU in 38 CFR § 4.16(a) and remanded the matter to the Director of Compensation Service (Director) for extra-schedular consideration. The Director denied extra-schedular TDIU under 38 CFR § 4.16(b) and the RO implemented the Director’s denial in a supplemental statement of the case. The Board then denied extra-schedular TDIU relying, in part, on the Director’s opinion. At the CAVC, the Appellant argued that the Board erred in relying on the Director’s decision as evidence against his appeal for extra-schedular TDIU and that the Board owed no deference to the Director’s opinion and must review this decision de novo. The Secretary argued that the Director’s decision is not evidence and that the Board may only review the factual basis of the Director’s decision for accuracy and completeness, leaving the Board without authority to overturn the Director’s policy decision. The CAVC rejected the Secretary’s argument, and held that the issue of entitlement to extra-schedular TDIU was not a policy question, but was a question of law and fact that fell within 38 U.S.C. § 511(a). The CAVC held that “the policy decision was made when the Secretary promulgated a regulation mandating that all Veterans who are unemployable due to service-connected disabilities will be rated totally disabled, regardless of the schedular ratings assigned.” The CAVC also found that the Board erred as a matter of law in assigning weight to the Director’s decision. The CAVC stated that the Director’s decision is the de facto decision of the RO and is not evidence that can be weighed. This case is significant because it establishes that the Board has jurisdiction to review de novo appeals concerning the matter of entitlement to extra-schedular TDIU after the Director has made a decision.

Fountain v. McDonald, 27 Vet. App. 258 (2015): In this case, the Appellant appealed a decision of the Board that denied entitlement to service connection for tinnitus. The Board rejected the Appellant’s statements concerning the continuity of his symptoms after service based on the absence of complaints of tinnitus symptoms during service and for many years after service. It was also noted that he had not filed a claim for VA benefits for tinnitus during the 29 years that had elapsed since his separation from service, despite filing other claims for compensation during that time period. In addressing whether tinnitus was an “organic disease of the nervous system” and therefore entitled to the presumptions of service connection contained in 38 U.S.C. § 1101(3) and 38 CFR § 3.309(a), the CAVC held that the phrase “organic disease of the nervous system”
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is ambiguous. After finding the Secretary’s position “not persuasive,” the CAVC held that tinnitus is a disease, not a symptom, consistent with the Secretary’s recognition of tinnitus as a disability in VA’s Schedule of Rating Disabilities, and, at a minimum, is an organic disease of the nervous system where there is evidence of acoustic trauma. As a result, the CAVC determined that the appellant may establish entitlement to VA benefits based on chronicity or the continuity of his symptoms. In addition, the CAVC reaffirmed that the Board may weigh a claimant’s lay statements against the absence of contemporary medical evidence, but must first establish a proper foundation for drawing inferences against a claimant from an absence of documentation. The CAVC also held that, based on guidance provided to VA examiners in VA Training Letter 10-02 and VA Fast Letter 08-10, the Board erred when it failed to consider whether the Appellant’s tinnitus was secondary to his service-connected hearing loss. This case is significant because the CAVC held that service connection for tinnitus may be established under 38 U.S.C. § 1101(3) and 38 CFR § 3.309(a).

Gray v. McDonald, 27 Vet. App. 313 (2015): In this case, the Board denied entitlement to service connection for several disabilities claimed as due to in-service exposure to herbicides. The Board concluded that it was VA’s policy that service on board a ship that anchored in Da Nang Harbor, in and of itself, does not constitute service in the inland waters of Vietnam for the purposes of applying the presumptive provisions of 38 CFR §§ 3.307, 3.309(e). In making this conclusion, the Board relied on a December 2008 Compensation and Pension Service (C&P) Bulletin, a September 2010 VBA Training Letter (Training Letter 10-06), the VA Adjudication Procedures Manual 21-1 Rewrite (M21-1MR), and the Federal Circuit’s decision in Haas v. Peake, 525 F.3d 1168 (2008). The CAVC vacated and remanded in part, holding that VA’s interpretation of 38 CFR § 3.307(a)(6)(iii) designating Da Nang Harbor as an offshore, rather than an inland, waterway is inconsistent with the purpose of the regulation and does not reflect the Agency’s fair and considered judgment. The CAVC pointed out that, although the herbicide exposure presumption is purportedly applied where there is evidence of spraying, the documents the Board relied upon are devoid of any indication that VA made a fact-based assessment of the probability of exposure in Da Nang Harbor from aerial spraying. Instead, Training Letter 10-06, the M21-1MR, and the December 2008 C&P Bulletin reflect that VA based its designation of Da Nang Harbor on geographical characteristics – depth and ease of entry – and not on spraying. Although the CAVC found VA’s definition of inland waterways irrational and not entitled to deference, it noted that VA retains discretionary authority to define the scope of the presumption. As such, the CAVC vacated the Board decision, and remanded the matter for VA to reevaluate its definition of inland waterways – particularly as it applies to Da Nang Harbor – and to define inland waterways in a manner consistent with the regulation’s emphasis on the probability of exposure.

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