Mathis: PRESUMPTION OF VA MEDICAL EXAMINER'S COMPETENCE

Mathis v. Shulkin, 582 U.S. ___ (2017)

HELD: The Supreme Court declined to review the Federal Circuit’s decision that refused to disavow the presumption of competence afforded to VA examiners. The reason the Federal Circuit refused to disavow the presumption in this particular case was because the veteran did not challenge the VA examiner’s credentials or qualifications at the agency level.

Justices Sotomayor and Gorsuch wrote separate statements questioning the presumption. Justice Sotomayor stated that in order for a veteran to challenge an examiner’s qualifications, the veteran must know the examiner’s credentials. This can be difficult/impossible to get from VA – which creates a “Catch-22” for the veteran. She added: “A decision by the VA to deny benefits in reliance on an examiner’s opinion, while denying the veteran access to that examiner’s credentials, ensures that the presumption will work to the veteran’s disadvantage.” She left the door open to a future review, stating: “Full review would require a petition arising from a case in which the VA denied a veteran benefit after declining to provide the medical examiner’s credentials.”

Justice Gorsuch questioned the origin of the presumption – noting that it does not come from statute. He described how the presumption works in practice: “VA usually refuses to supply information that might allow a veteran to challenge the presumption without an order from the Board of Veterans’ Appeals” and the Board will not issue an order unless the veteran provides “a specific reason for thinking the examiner incompetent.” He further questioned how “an administrative agency may manufacture for itself or win from the courts a regime that has no basis in the relevant statutes and does nothing to assist, and much to impair, the interests of those the law says the agency is supposed to serve.” He recognized that several Federal Circuit judges have questioned the propriety of the presumption and stated that “this may well mean the presumption’s days are numbered.” However, he did not hold out hope – and concluded that the issue was worthy of the Supreme Court’s attention.

FULL DECISION

DAV: PETITION TO REVIEW M21-1 PROVISION DISMISSED

Disabled American Veterans v. Sec’y of Veterans Affairs, 859 F.3d 1072 (Fed. Cir. 2017)

HELD: The Federal Circuit can only review M21-1 provisions that are subject to 5 U.S.C. §§ 552(a)(1) and 553 of the Administrative Procedure Act (APA). VA altered the definition of what constitutes a “medically unexplained multisymptom illness” (MUCMI) in its procedure manual (M21-1), but the Court determined that it could not review this M21-1 change because it did not fall under either § 552(a)(1) or § 553.

SUMMARY: Section 552(a)(1) of the Administrative Procedure Act (APA) “refers to agency actions that must be published in the Federal Register.” Section 553 “refers to agency rulemaking that must comply with notice-and-comment procedures under the [APA].” VA regulation 38 C.F.R. § 3.317 defines “a medially unexplained multisymptom illness” (MUCMI) as “a diagnosed illness without conclusive pathophysiology or etiology.”

VA consolidates it policies and procedures into a manual called the M21-1. Any VA employee can request revisions to the M21-1. On the request of an employee, the Secretary revised the definition of MUCMI in the M21-1 from an illness with “no conclusive physiology or etiology” to one with “both an inconclusive pathology, and an inconclusive etiology.” The Secretary also added that sleep apnea cannot be presumptively service connected under 38 C.F.R. § 3.317 “since it is a diagnosable condition.”

Disabled American Veterans (DAV) petitioned the Federal Circuit to review these M21-1 changes, arguing that the changes were similar to cases where the Court had previously reviewed VA policy changes. The Federal Circuit distinguished its prior cases, noting that they fell under 5 U.S.C. § 552(a)(1) because they involved agency actions that had to be published in the Federal Register. See Splane v. West, 216 F.3d 1058 (Fed. Cir. 2000) (reviewing a precedential General Counsel opinion); LeFevre v. Secretary of Veterans Affairs, 66 F.3d 1191 (Fed. Cir. 1995) (reviewing VA’s decision to not add certain conditions to the list of presumptive conditions related to Agent Orange exposure); Military Order of the Purple Heart v. Sec’y of Veterans Affairs, 580 F.3d 1293 (Fed. Cir. 2009) (reviewing a VA Fast Letter).

DAV argued that the Federal Circuit should review the M21-1 revisions because “the revisions announce substantive rules subject to § 553 which should be voided for failure to provide the required notice and comment.” The Court rejected this argument, finding that (1) “VA does not intend for the M21-1 Manual to carry the force of law” and (2) the M21-1 is not binding on VA or the courts.

The Federal Circuit noted that an individual veteran who is adversely affected by an M21-1 provision can challenge that provision by contesting “the validity of that provision as applied to the facts of his case” in the course of a direct appeal.  However, the Court dismissed this petition, holding that it lacked jurisdiction to review manual provisions that “are interpretations adopted by the agency, not published in the Federal Register, not binding on the Board itself, and contained within an administrative staff manual.”

FULL DECISION

Snyder: DISPUTED ATTORNEY FEE RECOVERABLE AFTER VETERAN'S DEATH

Snyder v. Sec’y of VA, 858 F.3d 1410 (Fed. Cir. June 8, 2017)

HELD: A veteran’s surviving spouse can seek to recover a disputed attorney fee after the veteran’s death pursuant to 38 U.S.C. § 5121.

SUMMARY: Attorney Keith Snyder began representing veteran Larry Beck pursuant to a February 2001 fee agreement that called for the payment of 20% of any past-due benefits awarded. Less than a year after entering into the agreement, Attorney Snyder asked the Board of Veterans’ Appeals to revoke his representation, stating that “irreconcilable differences” made his “continued representation of Mr. Beck . . . not possible,” and asked the Board to cancel his fee agreement immediately.

Two years later, VA granted the veteran’s appeal, and awarded past-due benefits at the 100% disability rate, retroactive to June 1992. Despite the fact that Attorney Snyder had terminated representation two years earlier, he still sought attorney fees pursuant to the fee agreement. He presented a copy of that fee agreement to the VA Regional Office (RO), which determined that he was entitled to an attorney fee of over $41,000 and withheld that fee from the past-due benefits award.

The veteran appealed this decision and sought to recover the withheld attorney fee. In November 2005, the Board remanded this matter back to the RO to readjudicate the issue of whether Mr. Snyder was entitled to the attorney fee. In December 2006, while the appeal was still pending, Mr. Beck passed away.

His widow filed an accrued benefits claim, seeking to recover the disputed fee. The RO denied the accrued benefits claim, and Mrs. Beck appealed to the Board. In 2008, the Board dismissed the veteran’s appeal pursuant to 38 C.F.R. § 20.1302 (extinguishing appeal upon veteran’s death) and remanded Mrs. Beck’s claim back to the RO.

The RO again determined that Mrs. Beck “could not recover the disputed attorney fee because her husband’s claim ceased to exist upon his death.” Mrs. Beck again appealed this decision, and the Board requested a VA General Counsel precedent opinion.

In December 2015, VA’s Office of the General Counsel issued an opinion, stating:

A claim, pending at the time of a veteran’s death, challenging an attorney’s entitlement to payment of attorney fees . . . may provide a basis for an accrued benefits claim under [38 U.S.C. §] 5121, because such a claim concerns entitlement to periodic monetary benefits allegedly due and unpaid to the veteran at the time of death.

While this appeal was pending at the Board, Attorney Snyder petitioned the Federal Circuit to review the General Counsel Precedent Opinion pursuant to 38 U.S.C. § 502, which authorizes the Federal Circuit to review agency actions that must be published in the Federal Register and VA’s rulemaking under the Administrative Procedures Act (APA), unless “such review is sought in connection with an appeal” to the Board. If that is the case, then the laws under chapter 72 – relating to Board appeals – apply.

The Secretary argued that the Federal Circuit lacked jurisdiction over this petition “because Mr. Snyder seeks review of VA action in connection with his case before the Board.” The Secretary also argued that the Federal Circuit lacked jurisdiction to review General Counsel Precedent Opinions issued in response to a Board request.

The Court rejected both arguments – yet denied the petition.

The Federal Circuit first noted that General Counsel Precedent Opinions must be published in the Federal Register and are binding on the Board. The fact that this opinion was issued in response to a Board request did not change the Court’s conclusion, since there is nothing in the relevant statute that limits the Court’s “review to only some precedential General Counsel opinions.” The only limitation would be “if Mr. Snyder sought review of the opinion in connection with his appeal.” However, the Court determined that Mr. Snyder sought review under 38 U.S.C. § 502, which applies to the General Counsel Precedent Opinion.

The Secretary argued that this position would be inconsistent with the Federal Circuit’s holding in Paralyzed Veterans of Am. v. Sec’y of Veterans Affairs, 308 F.3d 1262 (Fed. Cir. 2002). The Court rejected this argument, citing an earlier case, Splane v. West, 216 F.3d 1058 (Fed. Cir. 2000), which held that the Court had jurisdiction to review precedential opinions issued in response to a Board request. The Court stated that “[w]hen two cases decided by our court are in apparent conflict, we adopt the first in time and follow it.”

Turning its review to the General Counsel Precedent Opinion, the Court determined that it would have reached the same conclusion as the General Counsel. The Court explained that 38 U.S.C. § 5904 “provides for the payment of attorney fees from ‘past-due benefits awarded on the basis of the claim’ in which the attorney represented the veteran” and which are deducted from veteran’s past-due benefits award. Section 5121 “provides for the recovery of ‘[p]eriodic monetary benefits … due and unpaid’ at the time of a veteran’s death based on ‘existing ratings or decisions or those based on evidence in the file at date of death.’” Because attorney fees are deducted from a past-due benefits award, a dispute over such fees constitutes a dispute over the award. An accrued benefits claimant can seek to recover those fees because her clam is one “of entitlement to periodic monetary benefits allegedly due and unpaid to the veteran.” The fact that 38 C.F.R. § 20.1302 requires an appeal to be dismissed upon a veteran’s death is irrelevant to a claim for accrued benefits.

The Court upheld the General Counsel Precedent Opinion, stating: “If the evidence on file at the date of the veteran’s death shows entitlement to due and unpaid periodic monetary benefits, an accrued benefits claimant can pursue those benefits under § 5121.”

FULL DECISION

Molitor: DUTY TO OBTAIN ANOTHER’S RECORDS TO CORROBORATE ASSAULT; CREDIBILITY; EVIDENCE OF BEHAVIOR CHANGES

Molitor v. Shulkin, docket no. 15-2585 (June 1, 2017)

HELD: "[w]hen a claimant adequately identifies relevant records of fellow servicemembers that may aid in corroborating a claimed personal assault, the duty to assist requires VA to attempt to obtain such records or, at a minimum, to notify the claimant why it will not undertake such efforts.” In addition, the Court held that “a claimant’s credibility does not abrogate or extinguish VA’s duty to assist a claimant in developing her claim” and that “a lack of evidence of behavior changes in service does not constitute negative evidence against a claim for service connection for PTSD based on an in-service personal assault.”

SUMMARY: In 2003, veteran Jaclyn Molitor filed a claim for service connection for PTSD due to military sexual trauma (MST). A 2004 VA examiner diagnosed PTSD due to childhood trauma, and the VA regional office (RO) denied the claim. Ms. Molitor appealed that decision.

Her Vet Center treatment records noted that she was sexually assaulted in service as part of a military police (MP) hazing. She did not report the incident for fear of retribution. Her Vet Center counselor, Cindy Macaulay, wrote a letter stating that Ms. Molitor had repressed memories of the incident and that those memories were coming back with therapy. Ms. Macauley acknowledged the veteran’s other diagnoses, childhood sexual abuse, and post-service events that “complicated the case,” but opined that it was “at least as likely as not” that her PTSD was related to her in-service assaults. Attached to the letter was a sexual trauma markers worksheet that included the approximate date of the assault, location, unit, and names of several witnesses. Ms. Molitor also submitted a statement providing additional details about the assault.

The RO continued to deny the claim in a Statement of the Case (SOC) that Ms. Molitor appealed. In September 2006, she was afforded a Board hearing, during which she testified that she was raped by four or five soldiers during an MP hazing and that she “beat the hell out of the sergeant” in the group.

In July 2007, the Board remanded for additional development. In January 2010, Ms. Macauley submitted another letter in support of the claim. The next month, Ms. Molitor underwent another VA PTSD examination. The examiner questioned her credibility because she denied prior drug and alcohol abuse and mental illness on her service entrance examination report. The examiner noted that there was no evidence of behavior changes in her file and therefore determined that it was less likely that her PTSD was related to service. Later that month, the RO continued to deny the claim in a Supplemental SOC.

In June 2011, the Board remanded again for additional development. In April 2012, the Appeals Management Center determined that Ms. Molitor’s claimed in-service assaults could not be verified.

Her subsequent Vet Center treatment records showed that Ms. Molitor had “cut back on her meds” and was remembering more about the military assaults. Ms. Molitor submitted statements with additional details, including names of the other MPs who raped her, as well as the name of another female MP, Private Lutz, who she believed had also been raped. Ms. Molitor indicated that Private Lutz committed suicide in service. She asked VA to check her file, as well as the files of other women she served with, whom she also identified, for evidence of in-service assault or post-service claims for service connection for PTSD due to MST.

In December 2012, the Board remanded the claim again for another hearing. Ms. Molitor again described the hazing rape and stated that she was subsequently transferred without explanation. Ms. Macauley, her Vet Center therapist, also testified at the hearing, and stated that she believed Ms. Molitor had been raped in service because she consistently reported the details of the assaults. Ms. Macauley explained that the “inconsistencies” perceived by VA were the result of her remembering more details, rather than changing her story.

The Board remanded the case three more times for additional VA medical opinions, including “a medical expert opinion to resolve the conflicting diagnoses.” In January 2015, a VA psychologist diagnosed borderline personality disorder and PTSD due to childhood abuse, and determined that both diagnoses preexisted service. She rejected Ms. Macauley’s diagnosis of PTSD due to MST as “not supported by the record.”

In its May 2015 decision, the Board denied the claim. The Board determined that VA satisfied its duty to assist, but did not discuss Ms. Molitor’s requests to obtain other servicemembers’ records. The Board found Ms. Molitor’s statements not credible because they were “internally inconsistent and contradicted by other evidence of record.” The Board rejected Ms. Macauley’s opinions because they were based on Ms. Molitor’s non-credible statements, and afforded “great probative weight to the negative VA examiners’ opinions.”

On appeal, Ms. Molitor argued that VA did not satisfy its duty to assist because it did not attempt to obtain records from her fellow servicemembers that she had identified, as required by VA’s own G.C. Precedent Opinion 05-14. The Secretary argued that Ms. Molitor had not adequately identified records that could aid in corroborating the claimed assaults, and that VA would not be able to disclose those records without written consent from the servicemembers or a court order. The Secretary further argued that “there is an ‘umbrella of credibility’ that hangs over all of the prongs of the duty to assist” and that the Board’s adverse credibility determination was adequate to explain why no further assistance was provided in this case.

The Court agreed with the veteran. The Court explained that this case involves VA’s “interpretation of intertwining and sometimes conflicting” statutory duties to (1) assist claimants and (2) protect the privacy of all servicemembers. The Court noted that in claims for service connection for PTSD based on personal assault, 38 C.F.R. § 3.304(f)(5) “lowers the evidentiary burden for corroborating the occurrence of an in-service personal assault stressor.” This regulation codified VA’s “existing internal policies that provided for additional development assistance in claims for PTSD based on personal assault.”

Under 38 U.S.C. § 5103A, VA’s duty to assist “includes making reasonable efforts to obtain relevant records from VA or other Federal departments or agencies that have been adequately identified by the claimant.” Once this duty is triggered, VA must make as many requests as necessary unless “it is reasonably certain that such records do not exist” or that “further efforts to obtain those records would be futile” or there is “no reasonable possibility” that any additional assistance would help substantiate the claim. This latter category applies to claims that are “inherently incredible or clearly lack merit.” 38 C.F.R. § 3.159(d)(2).

The Court summarized G.C. Precedent Opinion 05-14 as requiring VA to make reasonable efforts to obtain another individual’s records “if (a) those records were adequately identified, would be relevant to the [v]eteran’s claim, and would aid in substantiating the claim; and (b) VA would be authorized to disclose the relevant portions of such records to the [v]eteran under the Privacy Act and 38 U.S.C. §§ 5701 and 7332.” The latter requirement cites three statutes that limit VA’s disclosure of another individual’s records, but the Precedent Opinion also identified three exceptions in the Privacy Act – (1) written consent from the individual, (2) a court order, or (3) disclosure for “‘routine use’ compatible with the purpose for which the record was collected.”

The Precedent Opinion further concluded that neither the duty to assist (§ 5103A) nor 38 C.F.R. § 3.304(f)(5) “requires VA to solicit written statements from fellow servicemembers” to corroborate a claimed assault. However, the Court noted that it had previously addressed this issue in Forcier v. Nicholson, 19 Vet.App. 414, 422 (2006), which held that VA’s duty to assist may require VA to obtain such written statements if the claimant provides the names of the perpetrator(s) and/or witnesses.

The Court determined that during the course of this appeal Ms. Molitor had adequately identified several individuals whose records could help corroborate her claimed assaults and that these records were relevant to her claim. The Court thus determined that the Board erred by not considering the applicability of G.C. Precedent Opinion 05-14 when it found that VA had satisfied its duty to assist.

With respect to the Secretary’s “umbrella of credibility” argument, the Court held that “a claimant’s credibility does not abrogate or extinguish VA’s duty to assist a claimant in developing her claim because such development may produce evidence that substantiates the claim or otherwise bolsters or rehabilitates a claimant’s credibility.”

The Court thus held that when a claimant for service connection for PTSD based on personal assault “adequately identifies relevant records of fellow servicemembers that may aid in corroborating the claimed assault, G.C. Precedent Opinion 05-14 is applicable to the claim and VA must either attempt to obtain such records or notify the claimant why it will not undertake such efforts.”

The Court further noted that “a lack of evidence of behavior changes in service does not constitute negative evidence against a claim for service connection for PTSD based on an in-service personal assault.” The Court added: “Because behavior changes do not necessarily manifest immediately after a personal assault, it cannot be expected that they would appear in service in every instance of an assault; therefore, a lack of behavior changes in service cannot act as evidence against the occurrence of the assault.” 

FULL DECISION