McKinney: HEARING LOSS, PRESUMPTION OF SOUNDNESS

McKinney v. McDonald, 28 Vet.App. 15 (Mar. 11, 2016)

HELD: If the degree of hearing loss noted on a veteran’s enlistment medical examination does not meet VA’s definition of “disability” for hearing loss under 38 C.F.R. § 3.385, the veteran is entitled to the presumption of soundness.

The Court also rejected the Secretary’s argument that hearing loss that is not considered a “disability” for VA compensation purposes under § 3.385 should be considered a “defect” and, therefore, ineligible for disability compensation

FULL DECISION

Dixon: CAVC CANNOT DISMISS UNTIMELY APPEAL WHEN SECRETARY WAIVES TIMELINESS DEFENSE

Dixon v. McDonald, 815 F.3d 799 (Fed. Circ. 2016)

HELD: The CAVC does not have the sua sponte authority to dismiss an untimely appeal when the Secretary has waived a timeliness defense. 

The veteran filed his Notice of Appeal to the CAVC late – sixty days beyond the 120-day filing deadline. The Court dismissed the appeal, based on lack of jurisdiction. After the Court’s dismissal, the U.S. Supreme Court issued Henderson v. Shinseki, 562 U.S. 428, 431 (2011), holding that the 120-day deadline was a procedural rule that was subject to equitable tolling. Following Henderson, the CAVC informed Mr. Dixon that he could ask the court to recall mandate based on an equitable tolling argument. He filed this motion, which the CAVC then denied. He appealed to the Federal Circuit, but passed away while the appeal was pending. The Federal Circuit reversed the CAVC’s decision, finding that the denial had prevented the veteran’s new pro bono counsel access to evidence he would need to prove the claim.

On remand back at the CAVC, Mr. Dixon’s wife substituted in the appeal. She submitted evidence and argument in support of the equitable tolling argument to excuse her husband’s late filing. The Secretary responded by waiving his objection to the late filing, stating that “it appears the criteria [for equitable tolling] has been satisfied” and that “the Secretary is unopposed to the application of equitable tolling.” Despite this waiver, the CAVC nevertheless rejected Mrs. Dixon’s equitable tolling arguments and again dismissed the appeal – essentially “granting the Secretary relief he had explicitly declined to seek on a defense he had waived.”

Mrs. Dixon appealed to the Federal Circuit again. The Federal Circuit discussed Henderson, stating that the Supreme Court “found Congress’s purpose in creating the Veterans Court – to ‘place a thumb on the scale in favor of veterans’ – to imply that Congress could not have intended this time bar to subject veterans to the ‘harsh consequences that accompany the jurisdiction tag.’” The Federal Circuit noted that after Henderson, the CAVC issued Bove v. Shinseki, 25 Vet.App. 136 (2011), in which it discussed how to implement the Supreme Court’s decision. In Bove, the CAVC had held that because the 120-day deadline was “non-jurisdictional, equitable tolling may excuse a veteran’s failure to comply with it.” The CAVC also considered whether it had two types of sua sponte authority – first, the authority to raise the time bar at the start of proceedings and second, the authority to resolve the issue even if it is waived by the Secretary. The CAVC “recognized that, as a general rule, courts lack the authority to raise or resolve non-jurisdictional timeliness defenses sua sponte.” However, the CAVC noted that there was an exception to this rule for habeas cases – and that policy concerns, specifically “the court’s own interest in managing its docket,” allowed it to benefit from an exception to the general rule.

The Federal Circuit had previously determined that the CAVC did have the authority to raise the timeliness issue early on in proceedings. Checo v. Shinseki, 748 F.3d 1373 (Fed. Cir. 2014). In this present case, however, the Federal Circuit determined that the CAVC did not have the sua sponte “authority to resolve timeliness in the face of the Secretary’s waiver by granting him relief that he explicitly declined to seek.” In deeming itself an “exception” to the general rule, the Federal Circuit found that the CAVC failed to account for statutory limits to its jurisdiction, misread the precedent that created the exception to the general rule, and misapprehended the relevant policy considerations. The Court stated: “We are aware of no other court that has the sua sponte authority to resolve a deliberately waived non-jurisdictional timeliness defense.”

The Secretary added an argument to support the CAVC’s authority to resolve the timeliness issue – by pointing to the Court’s “broad discretion to prescribe, interpret, and apply its own rules.” The Federal Circuit rejected this argument, stating that the rules do not suggest that the CAVC “has a special power to enforce their time bar” and that “the rules merely rephrase the statutory time bar in nearly identical language.” The Federal Circuit thus reversed the CAVC’s “determination that it had the authority to dismiss this appeal as time-barred” in the face of the Secretary’s waiver of the timeliness defense. 

FULL DECISION

Sullivan: DUTY TO OBTAIN VA MEDICAL RECORDS

Sullivan v. McDonald, 815 F.3d 786 (Fed. Cir. Mar. 8, 2016)

HELD: VA's duty to assist includes the duty to obtain VA medical records - regardless of the relevancy of those records.

SUMMARY: 38 C.F.R. § 3.159(c)(3) identifies four categories of records that VA will help a claimant obtain in connection with a compensation claim: (1) service medical records, if relevant to the claim; (2) other relevant service records that are held by a government entity; (3) VA medical records; and (4) any other relevant records held by any federal agency. (emphasis added). 

Based on the plain language of the regulation, the Federal Circuit found that VA clearly knew how to impose a relevancy standard on three of the four categories of records – and that it did not impose that same requirement on VA medical records. The Federal Circuit found that the CAVC erred in its interpretation of 38 C.F.R. § 3.159(c)(3) when it concluded that VA’s duty to assist extended only to “potentially relevant” VA records, including VA medical records.

Thompson: RATING FUNCTIONAL LOSS DUE TO PAIN ON MOTION

Thompson v. McDonald, 815 F.3d 781 (Fed. Cir. Mar. 8, 2016)

HELD: Section 4.40 does not provide for a rating separate from 38 C.F.R. § 4.71a.

SUMMARY: Section 4.40 “speaks generally in terms of disability of the musculoskeletal system, and explains what may cause a functional loss,” but does not explicitly provide a rating for any disability. Instead, “§ 4.40 must be viewed in light of the explicitly listed disability ratings for the musculoskeletal system in § 4.71a.” The guidance provided in § 4.40 “is intended to be used in understanding the nature of a veteran’s disability, after which a rating is determined based on the § 4.71a criteria.”

In this case, the veteran was rated 20% for his back condition and appealed for a higher rating. The Board determined that he was not entitled to a higher rating because his pain did not limit his flexion to 30 degrees or less, which is what is required for the higher rating. The Veterans Court agreed, noting that the Board had conceded that Mr. Thompson had additional functional loss due to pain – but that functional loss still did not restrict his motion to 30 degrees or less, such as to warrant a higher rating. 

The Federal Circuit affirmed the CAVC’s decision, stating that 38 C.F.R. § 4.40 “makes clear that functional loss may be due to pain and that pain may render a part seriously disabled.” Nevertheless, the Court maintained that “an applicant for disability benefits is rated based on the criteria set forth in § 4.71a.”

FULL DECISION

Hime: CLEAR & UNMISTAKABLE ERROR (CUE)

Hime v. McDonald, 28 Vet.App. 1 (Mar. 3, 2016)

HELD: A 1983 Board decision was not CLEAR AND UNMISTAKABLE ERROR because the Board (1) was allowed to exercise its own medical judgment at that time and (2) was not required to provide a statement of reasons or bases for its determinations.

SUMMARY: The veteran in this case challenged a November 1983 Board decision on the basis of clear and unmistakable error (CUE). However, the Court found that at the time of the November 1983 decision, the Board did not have a reason-or-bases requirement and Board decisions were decided by three-member panels that included one medical professional. The use of the medical opinion provided by the medical member of the panel was common practice. While the Court agreed with the appellant that the 1983 Board decision was not “evidence,” the Court determined that the Board decision was not CUE because of the law in existence at that time. 

FULL DECISION

SWAN: PETITION FOR RULEMAKING RE: PTSD/MST DENIED

Service Women’s Action Network, VVA v. Sec’y of Veterans Affairs, 815 F.3d 1369 (Fed. Cir. Mar. 3, 2016)

HELD: VA's refusal to promulgate a rule that would ease a veteran's burden in establishing the occurrence of a PTSD/MST stressor event was not "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law."

SUMMARY: 38 C.F.R. § 3.304(f)(3) allows a veteran to establish with lay testimony the occurrence of a PTSD stressor event based on "fear of hostile military and terrorist activity." Under 38 C.F.R. § 3.304(f)(5), however, if the veteran's PTSD is based on military sexual trauma (MST), that veteran's lay testimony will not suffice to establish the occurrence of the traumatic event. 

Petitioners requested VA to promulgate a new subsection of § 3.304 to allow a veteran to establish the occurrence of a PTSD/MST stressor event through his/her lay testimony alone as long as a psychiatrist or psychologist confirms that the stressor is adequate to support the diagnosis. VA denied the request. 

The Federal Circuit determined that VA’s refusal to promulgate a new rule was not “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law,” and was supported by “reasoned decisionmaking.” 

FULL DECISION

Johnson: "SYSTEMIC THERAPY" INCLUDES TOPICAL CORTICOSTEROIDS

Johnson v. McDonald, 27 Vet.App. 497 (Mar. 1, 2016), overruled, Johnson v. Shulkin, 862 F.3d 1351 (Fed. Cir. 2017)

HELD: “[T]he plain wording of Diagnostic Code 7806 is that systemic therapy includes the use of corticosteroids without any limitation to such use being oral or parenteral as opposed to topical.”

SUMMARY: 38 C.F.R. § 4.118, DC 7806, VA’s diagnostic code for rating dermatitis or eczema, provides for compensable ratings based on the use of “systemic therapy such as corticosteroids.” The regulation does not distinguish between topical and oral corticosteroids. Therefore, the Court held that the plain language of DC 7806 includes both oral and topical corticosteroids. 

FULL DECISION

Bozeman: ISSUE EXHAUSTION CANNOT BAR CITATION TO EVIDENCE THAT SUPPORTS LEGAL ARGUMENT

Bozeman v. McDonald, 814 F.3d 1354 (Fed. Cir. Mar. 1, 2016)

HELD: “[I]ssue exhaustion cannot be invoked to bar citation of record evidence in support of a legal argument that has been properly preserved for appeal."

SUMMARY: On appeal to the Veterans Court, the claimant argued that the Board failed to address relevant evidence. The Court refused to address this argument on the grounds of "issue exhaustion." The Federal Circuit found that citation to new evidence in the record is not “a new legal argument for purposes of issue exhaustion,” and held that the CAVC’s refusal to address the claimant’s argument was an improper expansion of the legal definition of issue exhaustion. 

FULL DECISION

Dickens: ISSUE EXHAUSTION, DUTY TO ASSIST

Dickens v. McDonald, 814 F.3d 1359 (Fed. Cir. Mar. 1, 2016)

HELD: The CAVC’s decision to not consider an appellant’s duty-to-assist argument that had not been raised to the Board was not “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law,” and was supported by the principles of issue exhaustion. 

SUMMARY: The appellant in this case raised a duty-to-assist argument for the first time to the Veterans Court, even though she had the opportunity to raise that argument in earlier proceedings - including in a 2012 joint motion for partial remand. The Federal Circuit affirmed the Veterans Court's invocation of issue exhaustion in its decision to not hear the argument. 

FULL DECISION