Porriello: CUE, res judicata

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Porriello v. Shulkin, 30 Vet.App. 1 (Mar. 12, 2018)

HELD: A challenge to the Board’s jurisdiction to address a specific allegation of clear and unmistakable error (CUE) must be raised during the appeal period of the relevant decision and cannot later be challenged on the basis of CUE when the appeal period has passed and additional appellate tribunals have already issued final decisions on the matter.

 SUMMARY: Mr. Porrriello’s enlistment examination noted no conditions, but he was hospitalized in service for ulcerative colitis, which was determined to have pre-existed service by a 1961 Medical Board. Shortly after separation, he applied for disability benefits and was denied in March and July 1961. He did not appeal, but did file another claim in 1967, which was denied in June 1968. In January 2005, he was finally granted benefits based on new medical evidence. One month later, he submitted a statement, asserting his belief that his claim was “erroneously denied” 40 years ago.

In October 2005, the veteran’s DAV representative characterized the statement as a Notice of Disagreement, but later withdrew the appeal and instead stated that he had argued CUE in the June 1968 decision. There was no mention of the 1961 decision. The RO denied an earlier effective date, but did not mention any specific CUE theory. The veteran appealed, and the RO issued a Statement of the Case stating that he had not provided rationale to support his CUE allegation, but still found no CUE in 1961 and 1968. The veteran filed a VA Form 9. He did not provide any specific theory of CUE, but referred to his entrance examination showing no evidence of a pre-existing condition. The DAV representative then submitted a document identifying the issue as CUE in the 1961 decision. The representative described a specific theory of CUE based on a private doctor’s diagnosis of the pre-service symptoms that was different from the in-service diagnosis of ulcerative colitis.

In May 2008, the Board addressed and rejected this CUE theory. Mr. Porriello appealed to this Court, through counsel, and the Court affirmed the Board’s decision. The Federal Circuit, in turn, affirmed this Court’s decision.

In May 2013, Mr. Porriello filed, through counsel, a request for revision of the 1961 decision on the basis of CUE, arguing that the RO failed to properly apply the presumption of soundness. The RO denied the request, noting that the 2008 Board already considered the application of the presumption of soundness. He appealed to the Board and the Board found that it lacked jurisdiction to address his arguments since the 2008 Board decision had considered the presumption of soundness and “the 1961 and 1968 rating decisions were subsumed by the 2008 Board decision.”

 On appeal to the Court, Mr. Porriello argued that the 2008 Board lacked subject matter jurisdiction to consider any CUE allegation in the 1961 and 1968 rating decisions because he never raised any specific CUE allegation “at the outset of proceedings leading to that decision.” Because the Board lacked jurisdiction, he further asserted that neither this Court nor the Federal Circuit had jurisdiction to review the Board’s decision.

 This Court found that Mr. Porriello’s “jurisdictional arguments might have force and weight” – but that “[t]he time for raising such jurisdictional objections, however, has passed” and that he should have raised these issues during his appeal of the May 2008 Board decision. The Court agreed that the Board erred in determining that the 1961 and 1968 RO decisions were subsumed by the May 2008 Board decision. However, Mr. Porriello’s “failure to raise any jurisdictional challenge on direct appeal means that the decisions of the Board, this Court, and the Federal Circuit are both final and valid.” The Court held that “the doctrine of res judicata precludes raising the same CUE theory again,” and affirmed the Board’s decision.

FULL DECISION

Zeglin: Medication copayment reimbursement

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Zeglin v. Shulkin, 29 Vet.App. 226 (Mar. 6, 2018)

HELD: The Board’s failure to properly discuss VA’s offset policy was harmless error where the record demonstrates that the Board properly applied the policy. Similarly, the Board’s error in finding “that VA does not have the authority to verify that reimbursements it receives from third-party payors are comparable to that which the third party would pay to a non-federal entity” was also harmless error where VA has established policies for ensuring that the rates are comparable.

SUMMARY: Most veterans are required to pay a copayment for each 30-day (or less) supply of medication. For nonservice-connected veterans, VA can seek reimbursement of reasonable charges from their private health insurance – as long as those charges do not exceed the amount that would be paid to a non-federal entity in the same geographic location. Prior to March 2011, VA billed private health insurers a flat rate of $51 for each prescription, regardless of the length of the supply. In March 2011, VA changed its billing practices to more accurately reflect the cost of each medication.

The veteran in this case accrued an outstanding balance of unpaid medication copayments and was denied a waiver of the debt owed to VA. He appealed to the Board, and the Board determined that VA properly charged him an $8 copayment for each 30-day supply of medication. He appealed to the Court.

The Secretary and the Court agreed with Mr. Zeglin that the Board erred in its discussion of VA policy “to offset a veteran’s copayment charge dollar-for-dollar with the amount received from a third[-]party insurance company regardless of whether that amount is less than the amount billed to the third party.” However, because the Board properly applied that policy, the Court determined that the error was harmless.

The Secretary and the Court also agreed with Mr. Zeglin that the Board erred in finding that VA was not authorized to verify that “reimbursements received from third-party payors are comparable” to payments the third party would make to a non-federal entity for the same medication. However, the Court again found that this error was harmless based on information provided by the Secretary showing that VA “has an established third-party payor review process that evaluates reimbursement rates” and that VA will initiate “a formal rate verification” when a third-party insurer reimburses a below-market rate. The Court thus determined that Mr. Zeglin failed to show how he was prejudiced by the Board’s errors, and affirmed the decision.

FULL DECISION

Bly: EAJA, timeliness

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Bly v. Shulkin, 883 F.3d 1374 (Mar. 2, 2018)

HELD: Unless a Court order specifically prohibits an appeal, an order granting the parties’ motion for remand will become final and “‘not appealable’ 60 days after the entry of the remand order.”

SUMMARY: The Equal Access to Justice Act (EAJA) requires an application for attorney fees to be filed “within 30 days of final judgment in the action.” 28 U.S.C. § 2412(d)(1)(B). Mr. Bly’s attorney filed his EAJA application with the CAVC 31 days after the Court issued its order granting the parties’ joint motion for remand. The Court, relying on three of its own rules of practice and procedure, denied the application because it was one day late. These rules state that (1) an EAJA application must be made “not later than 30 days after the Court’s judgment becomes final”; (2) when the Court remands a case on the parties’ consent, judgment is effective the date of the Court order when that order states that it constitutes the mandate of the Court; (3) mandate is when the Court’s judgment becomes final; and (4) mandate is generally 60 days after judgment, unless it is “part of an order on consent … remanding a case” or “the Court directs otherwise.” See Rules 39(a), 36(b)(1)(B)(i), 41(a) and (b). 

The Federal Circuit reversed the CAVC’s decision based on the EAJA’s definition of “final judgment” as a “judgment that is final and not appealable, and includes an order of settlement.” Mr. Bly argued that his EAJA application was timely because the “Court’s judgment was not yet ‘final and not appealable’ until 60 days after the date of the remand order.

The Federal Circuit noted that the courts of appeals have taken two different approaches to the issue of finality for EAJA purposes. Under the “uniform” approach, the time to file an EAJA application “would run from the expiration of the time for appeal, without consideration of whether the particular final judgment would have or could have been appealed.” The “functional” approach, on the other hand, requires a “case by case exploration of whether an appeal could have been taken by either party.” The Federal Circuit had previously “adopted the uniform rule for voluntary dismissals, ‘at least where the order of dismissal does not specifically prohibit appeal’” – and saw no reason to depart from that approach in the context of “consent judgments,” as in this case. The Court thus held that the “consent judgment here became ‘not appealable’ 60 days after the entry of the remand order” – and, therefore, Mr. Bly’s EAJA application was timely. 

The Secretary had also argued that the CAVC order granting the parties’ joint motion for remand was “an order of settlement” and, therefore, a final judgment under the EAJA. The Federal Circuit rejected this argument because the order granted the motion to remand did not resolve the underlying service-connection dispute. The appeal would go back to the Board – and may even return to the Court – so the Federal Circuit did not this fit within the plain meaning of “settlement.” The Federal Circuit remanded this matter to the CAVC to consider the merits of the EAJA application. 

FULL DECISION