VETERAN CANNOT APPEAL DENIAL OF SPOUSE’S CLAIM FOR CHAMPVA BENEFITS

Braan v. McDonald, docket no. 14-4085 (Aug. 26, 2016)

HELD: Because the veteran did not have the right to appeal his spouse’s claim for CHAMPVA benefits, the Board did not have jurisdiction over this appeal and the appeal must be dismissed. 

SUMMARY: The veteran in this case was service connected under 38 U.S.C. § 1151, and rated 100% disabled. His wife applied for CHAMPVA benefits in March 2010. The following month, the VA Health Administration Center (HAC) issued a decision, addressed to Mrs. Braan, stating that she was not entitled to CHAMPVA benefits because “VA benefits granted under [section 1151] do not include CHAMPVA.”

In September 2010, Mr. Braan filed a “Privacy Release Form” with his congressional representative on behalf of his wife, requesting an appeal of the denial. The Congressman forwarded a memo and Mr. Braan’s Privacy Release Form to VA. In January 2011, the VA HAC issued a Statement of the Case, denying Mrs. Braan’s appeal, but the cover letter was addressed to Mr. Braan. In January 2012, Mr. Braan filed a VA Form 9, stating that as a 100% disabled veteran, he is entitled to CHAMPVA benefits on for his spouse – and that section 1151 claims are treated as service connected.

In October 2014, the Board identified the appeal as Mr. Braan’s, but concluded that Mrs. Braan was not entitled to CHAMPVA benefits because his disability was not “incurred or aggravated” in the line of duty. The Board supported this determination with a VA General Counsel Advisory Opinion stating that section 1151’s “quasi-service-connection” only provides for benefits under chapters 11 or 13 of title 38 of the U.S. Code – and entitlement to CHAMPVA is provided under chapter 17.

Mr. Braan appealed to the Court. The Court issued an order directing Mrs. Braan to file a motion to intervene as an appellant, if she wanted to do so. She never filed a motion to intervene.

The issue addressed by the Court was whether Mr. Braan had standing to bring this appeal to the Court on behalf of his wife. The Court held that he did not – and that the Board did not have jurisdiction to hear his appeal of her claim. The Court characterized Mr. Braan as an “interloper” in Mrs. Braan’s claim and stated that, as such, he did not have the right to pursue her claim – and the Board did not have jurisdiction to hear his appeal of her claim. The Court reiterated that “because Mr. Braan had not submitted a claim, the Board lacked the authority to decide his claim in the first instance” and “did not have jurisdiction to hear Mr. Braan’s appeal.

The Court never reached the relevant question of whether service connection under section 1151 entitles a recipient’s spouse to CHAMPVA benefits. The Court never even reached the question of “whether a CHAMPVA’s sponsor [i.e., the service-connected veteran] may ever be a proper claimant for CHAMPVA benefits that are otherwise due his or her spouse or other qualifying dependent,” stating that “it is undoubtedly improper for a CHAMPVA sponsor to wade into the appeals stream on behalf of a CHAMPVA beneficiary when that beneficiary has already filed the initial claim.”

Advocacy note: This is a very sad decision – and a monumental waste of time – that could have easily been prevented at several steps along the way by the veteran, his spouse, the congressional representative, and the VA officials who were issuing decisions on appeals over which they, allegedly, lacked jurisdiction. It is clear that Mrs. Braan applied for CHAMPVA benefits – and it is clear that she was denied these benefits based solely on the fact that her husband was service connected under section 1151. The standing/jurisdiction issues have nothing to do with the merits of this appeal – and all the Court is doing is guaranteeing that the Braans will wait another six years or more until it can address the relevant issue.

The lesson to take away from this case is that it is important to pay attention to who files the claim, the substance of the claim, and who is then entitled to appeal any adverse decision of that claim. It is a shame that the Court “punted” this one away. 

FULL DECISION

FED CIRCUIT DECLINES TO REVIEW PRESUMPTION OF COMPETENCY OF VA EXAMINERS

Mathis v. McDonald, docket no. 2015-7094 (Fed. Cir. Aug. 19, 2016)

HELD: The Federal Circuit denied the veteran’s petition for en banc rehearing of its prior (non-precedential) decision that declined to disavow the presumption of competence afforded to VA examiners. 

In a single-judge memorandum decision, the CAVC rejected the appellant’s arguments regarding the competency of the VA examiner who had provided a negative medical nexus opinion. See Mathis v. McDonald, docket no. 13-3410 (J. Lance, May 21, 2015) (Mathis I). The CAVC held that while the presumption of competency is rebuttable, the first step in doing so is to challenge the examiner’s competency. Because the veteran did not challenge the competency of the examiner at the Board or RO levels, the Court found that he had not met his burden to rebut the presumption. Id.

The veteran appealed to the Federal Circuit, arguing that the Court should “disavow the presumption of competency as it applies to VA medical examiners,” asserting that “VA’s procedure for selecting qualified examiners is inherently unreliable because the VA broadly recommends assigning generalists except in unusual, ill-defined cases.” See Mathis v. McDonald, docket no. 2015-7094 (Apr. 1, 2016) (Mathis II). The Court, somewhat reluctantly, declined to reassess the presumption of competency, although it did discuss the line of relevant cases (Rizzo v. Shinseki, 580 F.3d 1288 (Fed. Cir. 2009); Bastien v. Shinseki, 599 F.3d 1301 (Fed. Cir. 2010); Sickels v. Shinseki, 643 F.3d 1362 (Fed. Cir. 2011); and Parks v. Shinseki, 716 F.3d 581 (Fed. Cir. 2013)), and noted that the appellant’s argument “presents some legitimate concerns.” Nevertheless, the Court found that it lacked “jurisdiction to make factual findings on appeal regarding the competency” of the VA examiner and “are bound by clear precedent to presume” the examiner’s competency.

In a separate opinion, one of the Federal Circuit judges concluded that “the entire court should review the case law concerning the presumption of competence with the objective of eliminating it.” The judge based his conclusion on VA’s general practice of not providing evidence of an examiner’s qualifications; the appearance that the presumption renders the competency of a VA examiner “unreviewable”; the due process problem in requiring a veteran to challenge an examiner’s qualifications; VA’s “unknown” process in selecting examiners; and, most troubling, VA’s actions since the presumption has been applied. Specifically, since the presumption has been applied, VA has emphasized the use of non-specialists. VA has eliminated the requirement that reports be signed by a physician – now only requiring the signature of a “health care provider.” This judge also highlighted the recent evidence of the “irregularity” in VA’s process for selecting examiners as shown in the controversy surrounding TBI examinations being conducted by unqualified examiners.

Despite this well-crafted opinion, the Federal Circuit declined to rehear this appeal en banc. However, while the order declining en-banc review was only two pages long, the opinion includes an additional 29 pages of separate concurring and dissenting opinions questioning the ongoing validity of applying the presumption of administrative regularity in this context.

Advocacy note: The burden is still on the veteran to challenge the adequacy of an examination and/or the qualifications of the examiner. If the veteran feels that the examination was not adequate and/or the examiner was not qualified to be conducting the examination, the veteran must notify VA of these concerns in writing. 

FULL DECISION

ONLY DoD CAN REVISE EFFECTIVE DATES FOR EDUCATION BENEFITS

Garza v. McDonald, docket no. 14-2711 (Aug. 11, 2016)

HELD: Under 38 C.F.R. 21.9625(j), the effective date for the transfer of education benefits from a veteran to an eligible dependent “may not be earlier than the later of either the date the Secretary of the service department concerned approved the transfer or the date the transferor specified in his or her designation.” 

SUMMARY: The appellant in this case is the adult son of the veteran. Mr. Garza attended ITT Technical Institute and was notified April 2010 of a $15,000 tuition payment. On April 16, 2010, the veteran, who was deployed at the time, submitted an online application to transfer his education benefits to Mr. Garza.

The Department of Defense (DoD) subsequently notified the veteran that the service department had approved the transfer of five months of benefits to his son, effective April 16, 2010, the date of his online application.

In October 2010, Mr. Garza’s mother asked VA to backdate the application for benefits to August 1, 2009. She explained that they would have applied for benefits earlier, but ITT did not inform her son until April 2010 that “no financing had been done . . . dating back to August 2009.” She stated that had she known earlier, they would have applied earlier.

The RO then notified Mr. Garza that he had five months of educational benefits, starting April 16, 2010. In a subsequent letter, the RO stated that “DoD makes this determination not the VA.” Mr. Garza submitted a Notice of Disagreement for an August 2009 effective date. The RO issued a Statement of the Case, stating that benefits could not be paid prior to the April 16, 2010 eligibility date and that the “veteran should contact DoD directly for possible resolution.”

Mr. Garza appealed to the Board, arguing that his benefits should go back to August 1, 2009 because “ITT erred in handling his financing.” The Board denied the appeal, finding that “DoD approves the transfer of entitlement to educational assistance” and that “VA has no authority to revise such a DoD determination.”

The Court reviewed the relevant statutes and regulations, specifically 38 U.S.C. § 3319 and 38 C.F.R. §§ 21.9500-9770. The Court found that 38 U.S.C. § 3319(a)(1) authorizes the Secretary of the relevant service department to approve the transfer of educational assistance benefits to eligible dependents, but the statute was “silent as to whether DoD or VA assigns the eligibility dates.” Because of this “gap” in the statute, the Court looked to the relevant regulations.

The Court recognized that 38 C.F.R. § 21.9570(d)(2) “states that VA will accept the transferor’s designations” and that § 21.9570(g) allows “a transferor to modify the designations . . . ‘at any time’” by submitting written notice to both VA and DoD. However, the Court found that these subsections “must be read in light of § 21.9625(j), which provides that the beginning date of an award for educational assistance to an eligible child will be no later than the latest of either the date the DoD approves the transferor to transfer entitlement or the date the transferor specified.” In this case, the Court found that both of these dates were April 16, 2010. The Court concluded that, “as a matter of law, Mr. Garza’s beginning eligibility date cannot be earlier than April 16, 2010.”

The Court found that this interpretation was further supported by the regulatory history. The Court rejected Mr. Garza’s argument that the Board erred by not addressing 38 C.F.R. § 21.9570(g), regarding written requests for modification – because “this regulation speaks only of the transferor’s rights to modification and . . . nothing in the record shows that the veteran (the transferor) submitted any modification.”

The Court stated that while it was sympathetic to Mr. Garza’s frustrations with ITT for not informing him of his financial status earlier, it could not grant the “equitable relief” that he sought.

Advocacy note: While the Court cannot grant “equitable” relief, VA can. And VA may have granted such relief in this case had the veteran – Mr. Garza’s father – submitted a written request for modification under 38 C.F.R. § 21.9570(g).  

FULL DECISION

38 C.F.R. § 3.156(c)(1) REQUIRES RECONSIDERATION EVEN IF VA HAS ALREADY GRANTED SERVICE CONNECTION

Emerson v. McDonald, docket no. 14-2968 (August 10, 2016)

HELD: Even if a veteran is granted service connection on the basis of a liberalizing regulation, 38 C.F.R. § 3.156(c)(1) still requires VA to reconsider the veteran’s initial claim on the basis of its receipt of newly associated service records. 

SUMMARY: The veteran was denied service connection for PTSD in 2003 based on the lack of a verified stressor. In July 2010, VA amended 38 C.F.R. § 3.304(f) “to eliminate the requirement for corroborative evidence of a stressor where a VA mental health expert has diagnosed PTSD and the stressor is related to the veteran’s fear of hostile military or terrorist activity.” The following month, Mr. Emerson requested to reopen his claim. A VA Compensation and Pension (C&P) examiner noted his reports of combat as a helicopter door gunner. In June 2011, the Regional Office (RO) awarded service connection for PTSD, noting the change in 38 C.F.R. § 3.304(f). The RO assigned a 30% rating, effective August 2010, the date of his request to reopen.

Mr. Emerson appealed the evaluation and the effective date. In 2012, he underwent another C&P examination, and the RO subsequently continued the 30% rating and denied an earlier effective date. In July 2012, he testified at a Board hearing and his then-attorney explicitly raised the issue of the applicability of 38 C.F.R. § 3.156(c) for an earlier effective date. Later that month, Mr. Emerson’s attorney submitted additional argument to the Board regarding § 3.156(c), along with service department records listing “the date and duration of completed helicopter missions, with the letter ‘C’ written next to each ‘Mission Type.’” He also submitted an Army Form 20, listing assignments and campaigns, that included the Tet Counter Offensive.

The Board granted a 50% disability rating, but denied the earlier effective date. The Board did not address the applicability of 38 C.F.R. § 3.156(c).

The CAVC first noted that the applicability of § 3.156(c) was expressly raised, and that the Board was required to address it, citing Robinson v. Peake, 21 Vet.App. 545, 552 (2008, aff’d sub nom. Robinson v. Shinseki, 557 F.3d 1355, 1361 (Fed. Cir. 2009) and Brannon v. West, 12 Vet.App. 32, 35 (1998). The Court next examined the language of § 3.156(c), stating that even though the Board failed to address its applicability, the issue was raised below and the Court has the authority to consider this legal question in the first instance, citing Butts v. Brown, 5 Vet.App. 532, 539 (1993) and Blubaugh v. McDonald, 773 F.3d 1310, 1312 (Fed. Cir. 2014).

The Court noted that while Mr. Emerson was seeking an earlier effective date under 38 C.F.R. § 3.156(c)(3), the issue in this appeal was whether he was entitled to reconsideration under § 3.156(c)(1), which “requires the VA to reconsider only the merits of a veteran’s claim whenever it associates a relevant service department record with his [or her] claims file.” The Court determined that the regulation “requires that official service department records received or associated with the claims file (1) be relevant to the claim, (2) have been in existence when VA first decided the claim, and (3) not have been associated with the claims file when VA first decided the claim” – and that if those requirements are met, the plain language of § 3.156(c)(1) “mandates that ‘VA will reconsider the claim.’”

The Court rejected the Secretary’s argument that § 3.156(c)(1) did not apply since Mr. Emerson had already been awarded service connection when the new service department records were submitted to VA, stating that “nothing in the plain language of (c)(1) states that, for the provision to be applicable, the claim at issue must have been denied immediately prior to the submission of official service department records.” The Court further rejected the Secretary’s argument that § 3.156(c)(1) must be read in context with § 3.156(a), noting that paragraph (c)(1) “begins and ends with two ‘nullifying clauses’” (i.e., “notwithstanding any other section of this part” and “notwithstanding paragraph (a) of this section’). The Court added that the Federal Circuit observed that “§ 3.156(c) requires . . . VA to reconsider a veteran’s claim when relevant service department records are newly associated with the veteran’s claims file, whether or not they are ‘new and material’ under § 3.156(a).’”

The Court determined that it would be a “substantial injustice” to Mr. Emerson to hold that § 3.156(c) did not apply to his case just because he was already awarded service connection based on the amendment to § 3.304(f)(3). The Court added “it would be odd if § 3.304(f)(3), whose ‘main goal’ is ‘[i]mprove[d] timeliness, consistent decision-making, and equitable resolution of PTSD claims,’ . . . were to prevent application in this case of § 3.156(c), an otherwise pertinent regulation that is premised on the notion that “a claimant should not be harmed by an administrative deficiency of the government.” (internal citations omitted). The Court thus held that “based on the plain language of § 3.156(c)(1), upon receiving official service department records in 2012, VA was required to ‘reconsider the claim’ for service connection for PTSD that was denied in February 2003, notwithstanding the fact that service connection for PTSD was granted in 2011.”

The Court also considered Mr. Emerson’s arguments regarding the Board’s rationale for denying a disability rating greater than 50%, and agreed that the Board’s statement of reasons or bases was inadequate.

The Court noted the rating criteria for the 50% and 70% ratings, and stated that assessing whether a 70% evaluation is warranted requires (1) the “initial assessment of the symptoms displayed by the veteran, and if they are of the kind enumerated in the regulation, [(2)] an assessment of whether those symptoms result in occupational and social impairment with deficiencies in most areas.” Mr. Emerson pointed out several pieces of favorable evidence that relate to the 70% criteria that the Board did not discuss. Because of this – and because VA was now required to reconsider this claim under § 3.156(c)(1) – the Court agreed that the Board’s rationale for not assigning a 70% disability rating was inadequate. 

FULL DECISION