Long: Secondary service connection and extraschedular evaluations do not require a showing of direct causation

Long v. McDonough, 38 F4th 1063 (2022)

HELD: Neither 38 C.F.R. § 3.310(a) nor § 3.321(b)(1) require a showing of direct causation between the secondary symptoms and the primary service-connected disabilities.

Summary: Veteran was service connected for hearing loss. He testified that his hearing aids cause ear pain. The CAVC held that the Board did not need to consider ear pain in its extraschedular analysis because the pain was caused by the hearing aids, not the hearing loss. The Federal Circuit disagreed and found that the CAVC did not properly analyze the veteran’s ear pain under the extraschedular analysis.

The Court reiterated the Thun factors to state that “extra-schedular consideration is available to a veteran when (1) the schedular rating criteria are inadequate to describe the severity and symptoms of his disability; (2) the disability is exceptional or unusual, such as because of marked interference with employment or frequent periods of hospitalization; and (3) the award of an extra-schedular disability rating is in the interest of justice.” The Court held that the CAVC “erred in holding that direct causation between a secondary condition and an original condition is required for extra-schedular consideration of the secondary condition.”

Bowling: VA's definition of insanity for character-of-discharge purposes is not unconstitutionally vague

Bowling v. McDonough, 38 F.4th 1051 (Fed. Cir. 2022)

HELD: The veterans in this case did not show that 38 C.F.R. § 3.354(a) is unconstitutionally vague.

Summary: 38 C.F.R. § 3.354(a) says: “An insane person is one who, while not mentally defective or constitutionally psychopathic, except when a psychosis has been engrafted upon such basic condition, exhibits, due to disease, a more or less prolonged deviation from his normal method of behavior; or who interferes with the peace of society; or who has so departed (become antisocial) from the accepted standards of the community to which by birth and education he belongs as to lack the adaptability to make further adjustment to the social customs of the community in which he resides.”

The Federal Circuit rejected the argument that the regulation was vague under the Due Process clause because the regulation refers to “objectively describable conduct,” “diseases,” and “causation.” The Court further held that “even if the Board could not grant appellants their requested relief of declaring § 3.354(a) unconstitutionally vague, presenting such evidence to the Board would not be futile.”

Frantzis: There is no statutory right to have the same Board member who presided over a hearing decide the appeal

Frantzis v. McDonough, 35 Vet.App. 14 (2022)

HELD: under the ama, A VETERAN DOES NOT HAVE THE RIGHT TO HAVE THE SAME BOARD MEMBER WHO CONDUCTED THE HEARING DECIDE THE APPEAL.

Summary: In June 2018, veteran opts into the AMA via the RAMP. In May 2019, the veteran and his wife testify before a Veterans Law Judge. In September 2019, a DIFFERENT Veterans Law Judge issues a decision. This VLJ acknowledges the hearing testimony, but finds the medical evidence is more probative. 

At the CAVC, the veteran argues that 38 USC § 7102 requires the VLJ who held hearing to issue decision. The Secretary argues that 38 USC § 7107 controls - and this statute does not say that the Board member who conducted the hearing must write the decision. The CAVC agreed with the Secretary, noting that Congress removed the requirement that the Board member who conducts the hearing must issue the decision.

The dissent includes great language regarding the principle of fair process and the pro-veteran canon. This case was appealed to the Federal Circuit on August 28, 2022.

George: VA's erroneous interpretation of a statute is not CUE

George v. McDonough, 142 S.Ct. 1953 (2022)

HELD: VA’S FAILURE TO PROPERLY APPLY THE PRESUMPTION OF SOUNDNESS FOR DECADES WAS NOT CLEAR AND UNMISTAKABLE ERROR - BECAUSE THE FEDERAL CIRCUIT’S DECISION THAT INVALIDATED VA’S ERRONEOUS INTERPRETATION WAS A CHANGE IN THE INTERPRETATION OF THE LAW.

Summary: In 1977, the Board denied service connection for schizophrenia - finding that it pre-existed service. The Board made no finding as to whether the condition was also aggravated by service, as required by 38 USC § 1111. In 2003, VA amended its regulation to include the aggravation prong of the presumption of soundness. In 2004, the Federal Circuit held in Wagner v. Shinseki, that 38 USC § 1111 plainly includes an aggravation prong - meaning that the statute has always required VA to prove that a condition BOTH pre-existed service AND was NOT aggravated by service in order to rebut the presumption of soundness. In 2014, the veteran filed a motion to revise the 1977 decision on the basis of clear and unmistakable error (CUE) - arguing that VA misapplied the law.

The case goes all the way up to the Supreme Court, which determined that CUE did not include changes in law or changes in interpretation of the law - and that the Federal Circuit’s decision in Wagner was a change in the interpretation of the law.

Cowan: Notice under the AMA can be in the letter, the decision, enclosures, or some combination.

Cowan v. McDonough, 35 Vet.App. 232 (2022)

HELD: The notice required by 38 USC § 5104A can come in the form of the notice letter, the rating decision, the enclosures, and/or any combination of these documents.

Summary: In a RAMP decision, VA provided favorable findings for only one portion of the relevant rating period - and the accompanying letter provided the same information about obtaining evidence as a legacy notice letter. The veteran appealed to the Court, arguing that the decision and notice were defective under 38 USC § 5104 - and that without proper notice, the veteran couldn’t make an informed choice about which AMA lane to choose.

The Court reviewed the language and history of § 5104 and found that it did not specify the form of the required notice. VA filled this statutory “gap” with 38 C.F.R. § 3.103(f), which allows notice to be provided in the letter, enclosures, or a combination of the two. Unfortunately, the Board didn’t make any factual findings regarding the adequacy of teh notice contained in VA’s decision letter and enclosures - so the Court remanded for the Board to make these findings in the first instance.

Appealed to Federal Circuit on Sept. 20, 2022.

Walleman: Separate ratings for knees under pre-2021 versions of DC 5259 and 5257 are allowed

Walleman v. McDonough, 35 Vet.App. 295 (2022)

HELD: The rule against pyramiding does not categorically preclude separate ratings under DCs 5257 and 5259 – even if instability is a residual of a meniscectomy – as long as there are other residuals that could warrant a separate rating under DC 5259. 

Summary: Veteran sought an increased rating for his left knee disability. The Board assigned 10% for DC 5260 (limited flexion) and 10% for DC 5259 (residuals of meniscectomy – “swelling, popping, locking, stiffness, grating, and clicking”). The Board acknowledged “slight instability,” but denied a separate rating under DC 5257, citing the rule against pyramiding.

The Court rejected the Board’s rationale. DC 5257 provides for 10%, 20%, and 30% ratings for recurrent subluxation or lateral instability that is mild, moderate, or severe. DC 5259 is for “cartilage, semilunar, removal of, symptomatic.” This DC does not define “symptomatic” or identify or exclude symptoms. And DC 5257 refers to only one symptom - instability. The Court determined that the appropriate way to assess these cases is to look at whether any of the symptoms are overlapping and whether there is a “common manifestation” (i.e., symptom) that would be improper to compensate more than once. This case illustrates a tug-of-war between two VA rating principles: the rule against pyramiding (38 CFR § 4.14) and the duty to maximize benefits (38 CFR § 4.25(b)).

Advocacy note: This case only applies to the pre-2021 version of these diagnostic codes.