Green: REMOTE VBMS ACCESS

Green v. McDonald, docket no. 16-0740 (per curiam order) (Oct. 24, 2016)

HELD: There is no regulatory right to remote access to the Veterans Benefits Management System (VBMS) for attorneys practicing before the Veterans Court who are not accredited to practice before VA.

SUMMARY: Mr. Green appealed an adverse Board decision to the Court of Appeals for Veterans Claims (CAVC). Pursuant to the Court’s rules, the Secretary provided Mr. Green’s attorney with a copy of the Record Before the Agency (RBA), and the attorney had 14 days to dispute the contents and/or preparation of the RBA.

Recognizing a potential discrepancy in the RBA, the attorney requested “read-only” remote access to Mr. Green’s electronic file contained in VA’s Veterans Benefits Management System (VBMS). The Secretary denied remote access, but would allow the attorney to review the file at any VA office. The attorney filed a motion with the Court asking the Court to compel the Secretary to allow remote read-only access to his client’s VBMS file. In the motion, he argued that VA’s own regulations allow attorney access to “VBA automated claims records from a location other than a VA [regional office]” – and that the Secretary cannot require attorneys to be accredited by VA in order to gain such access for Court proceedings.

The Secretary argued that he had offered the attorney the same opportunity to review the veteran’s file as any non-accredited attorney representing a veteran at the Court prior to VA’s adoption of an electronic records management system. The Secretary asserted that VA accreditation is required for remote read-only access so as to protect VA’s “internal system which contains highly sensitive records.” The Secretary stated that the regulations “do not confer an enforceable right” to remote VBMS access – and that the regulations cited by Mr. Green’s attorney are inapplicable to VBMS.

The Court agreed with the Secretary. The Court examined the regulations cited by the attorney, 38 C.F.R. §§ 1.600-.603, and determined that while there is no requirement that an attorney be accredited by VA to remotely access “VBA automated claims records,” this category of records does not include VBMS files. The Court based this determination on the plain language of 38 C.F.R. § 1.600(c)(1), which expressly limits access to certain categories of data. The Court noted, in a footnote, that it was “unsettling that the Secretary has not amended his regulations to reflect his current telecommunications systems and the data that is available via remote access.” Nevertheless, the Court declined to redefine “automated claims records” in the regulations to include VBMS.

The Court further determined that VA’s policy of requiring attorneys in Court proceedings to travel to a VA office to review a veteran’s electronic claims file was reasonable in light of VA’s “longstanding” policy “rooted in safeguarding individual privacy from the misuse of information.” The Court noted that VA did not deny access to Mr. Green’s VBMS file – but only denied remote access to a non-accredited attorney. The Court thus held that the Secretary’s policies and procedures regarding access to original materials in the RBA – “whether that material is stored in paper or electronic format” – are reasonable and in compliance with the Court’s own rules.

Even though the Court agreed with the Secretary in the holding of this case, the Court stated that it was “compelled to comment on the Secretary’s current stance” requiring VA accreditation as the only way for VA to protect the privacy of records – as the Secretary did not explain how accreditation “by VA serves any security purpose.” The Court noted the length of time it takes to become accredited by VA, which is longer than the amount of time an attorney would have to dispute the RBA in a court proceeding, and referred to the Secretary’s “endeavor to make remote read-only access available” via VA accreditation as “an empty gesture,” particularly for attorneys who only represent veterans at the Court. 

In a concurring opinion, Judge Lance noted that some attorneys – particularly in rural areas – might be hundreds of miles from a VA office where they would be able to review an appellant’s original or VBMS file. (The attorney in this case worked less than a mile from a VA regional office.) Judge Lance stated if an attorney had to travel a significant distance to review the original file, he was “not certain” that VA’s current procedures would be considered “reasonable.

FULL DECISION

Mathews: REASONS OR BASES; COMPLIANCE WITH PRIOR REMAND

Mathews v. McDonald, docket no. 15-1787 (Oct. 14, 2016)

HELD: The Board cannot “sub silentio incorporate its reasons or bases from a prior remand order into a later decision”; the Board must “provide or reiterate reasons or bases for unfavorable findings made in prior remand orders – assuming those reasons or bases still apply, given that new evidence or argument may have been submitted in the interim . . . – so that they become part of a final Board decision and subject to appellate review.”

SUMMARY: Mr. Mathews served in the U.S. Navy from 1966 to 1970, including combat service in Vietnam. In 2002, he was treated for a neck “lesion” that was subsequently the subject of various diagnoses, including metastatic carcinoma and melanoma, among others. Two private physicians stated that this condition “could be” related to his exposure to Agent Orange. In June 2003, he filed a claim for “neck cancer.” The RO denied because the evidence did not show that he had a type of cancer on VA’s presumptive list. He appealed the denial, and submitted additional evidence regarding his various diagnoses. In 2004, he appealed to the Board.

In 2007, following a hearing, the Board remanded his appeal, and directed the Appeals Management Center to have his claims file and a tissue sample reviewed by a “panel of three oncologists” who could provide “consensus answers” to the complicated medical questions of the case.

The AMC was unable to find a panel of three oncologists, but was apparently able to have the Board’s remand order “amended” so that they could obtain an opinion by one oncologist. A private physician from the El Paso Cancer Treatment Center provided a negative nexus opinion and the AMC continued its denial in a Supplemental Statement of the Case (SSOC).

In December 2011, the Board remanded again because VA had not obtained authorization to release a tissue sample and because the medical opinion was inadequate. In this remand order, the Board determined that Mr. Mathews was “not prejudiced” by having a medical opinion provided by only one oncologist, instead of three, because the oncologist was qualified to provide the opinion.

In 2013, VA obtained a new negative medical opinion from a registered nurse. Mr. Mathews challenged the adequacy of this opinion, and the Board remanded this appeal for a third time.

In January 2014, a VA staff physician in the hematology/oncology section provided a negative medical opinion. In June 2014, the Board remanded for a fourth time for an addendum opinion, which was provided the following October. The AMC continued the denial in yet another SSOC.

In January 2015, the Board issued the decision on appeal, finding that the AMC had substantially complied with its prior remand orders and continued to deny service connection.

On appeal to the Court, Mr. Mathews argued that the Board provided an inadequate explanation for its determination that the AMC had substantially complied with its prior remand order because the Board did not explain why an opinion from a panel of three oncologists was no longer needed. The Secretary argued that the Board was not required to address that question in the recent decision because it had explained in its December 2011 remand order that there was no prejudice to the veteran by having an opinion provided by only one oncologist. Mr. Mathews argued that “there is no legal authority that permits the Board to sub silentio incorporate its reasons or bases from a prior remand order into a later decision.” The Court agree with Mr. Mathews, noting that “[m]ore than nine years and three Board remands later, VA has still not obtained the ordered opinion from a three-oncologist panel, and the Board in its most recent decision did not explain why such an opinion was no longer necessary.”

Without an explanation from the Board, the Court found that it could not “discern the precise basis for the Board’s finding that the AMC had substantially complied with the May 2007 remand order,” and thus held that “the Board is not permitted to sub silentio incorporate its reasons or bases from a prior remand order into a later decision.”

To support this decision, the Court noted that “all of the Board’s findings in the non-final remand orders are insulated from judicial review because remand orders are not appealable to this Court.” The Court added that it has never stated that “findings in Board remand orders that are unfavorable to the appellant are final and binding,” emphasizing that such a conclusion “would be antithetical to the pro-claimant veterans benefits system.” The Court reiterated that the Board must “provide or reiterate reasons or bases for unfavorable findings made in prior remand orders – assuming those reasons or bases still apply, given that new evidence or argument may have been submitted in the interim . . . – so that they become part of a final Board decision and subject to appellate review.”

The Court further determined that the Board’s reasons-or-bases error in this case prejudiced the appellant because “it must be presumed that the Board in May 2007 determined that, due to the medical complexity of the issues involved, a medical opinion from a panel of three competent oncologists was required to decide the claim.” Because the Board did not explain how “having one competent oncologist assess the veteran’s tumor could satisfy the Board’s May 2007 remand” that called for a “consensus” on the issue by three competent oncologists, the Court found that the Board’s error was not harmless. The Court remanded for further development, if necessary, and readjudication.

FULL DECISION

Hill: ACDUTRA & AGGRAVATION

Hill v. McDonald, docket no. 14-1811 (Oct. 7, 2016)

HELD: Once a claimant has established “veteran” status for a disability incurred or aggravated during a period of ACDUTRA, that status applies to all other disabilities claimed to have been incurred or aggravated during that period – and the veteran is entitled to the presumption of aggravation for those claims, even if there is no entrance examination of record. 

SUMMARY: Mr. Hill had several periods of Reserve and National Guard duty from 1980 to 2002. He also had one period of active duty for training (ACDUTRA) from June 7 to 21, 1997. His service medical records (SMRs) and private records show psychiatric treatment prior to June 1997, and private records also show treatment for a back condition related to a 1994 work injury.

During his 1997 period of ACDUTRA, Mr. Hill’s unit was performing field exercises, when a tree he was standing next to was struck by lightning. He fell and sought medical treatment for knee and back pain. The National Guard investigation report of the lightning strike classified his knee injury as incurred in the line of duty, and his back pain as “in line of duty-[existed prior to service]-aggravation.” The investigator stated that “the force of being thrown to the ground may have aggravated [his back] condition.” The record contains evidence of Mr. Hill’s subsequent reports that his physical and psychiatric symptoms worsened after the lightning strike.

In 2002, he filed a claim for service-connected disability benefits for his back, knee, and memory loss. The Regional Office (RO) granted service connection for the right knee, but denied his back and memory loss claims. He did not appeal that decision and it became final.

In 2008, he attempted to reopen his claims for a back condition and memory loss with PTSD. The RO denied the PTSD claim and determined that new and material evidence had not been submitted to reopen the back claim. Mr. Hill appealed this decision, and submitted internet articles about the effects of lightning strikes. The RO issued a Statement of the Case, continuing to deny the PTSD claim and reaffirming that new and material evidence had not been submitted to reopen his back claim. Mr. Hill perfected his appeal with a VA Form 9 and requested a hearing. He testified that he had been thrown 25 feet as a result of the lightning strike and hurt his knee and back.

In April 2014, the Board determined that veteran status during his period of ACDUTRA had been established for these claims because of his service-connected knee disability. However, the Board determined that new and material evidence had not been submitted to reopen his back claim, rejecting his hearing testimony as “patently incredible.” The Board denied service connection for the psychiatric claim based on a 2010 C&P opinion.

On appeal, the Court addressed the issues of (1) whether the establishment of veteran status during a period of ACDUTRA for one condition extends to other conditions incurred during that period; (2) whether, once veteran status for a period of ACDUTRA is established, the veteran is entitled to the presumption of aggravation with respect to any additional pre-existing conditions; and (3) whether the presumption of aggravation requires an enlistment examination to determine the pre-service severity of a pre-existing condition claimed to have been aggravated during a period of ACDUTRA.

The Court first addressed the issue of “veteran status” and determined, based on the plain language of the relevant statutes, that “once an individual establishes that any disability was incurred during a period of ACDUTRA, he has established that the particular period of ACDUTRA constitutes ‘active, military, naval or air service.’” The Court thus held that “once a claimant has achieved veteran status for a single disability incurred or aggravated during a period of ACDUTRA, that status applies to all disabilities claimed to have been incurred or aggravated during that period of ACDUTRA.”

The Court further held that a veteran who has established veteran status for one condition during a period of ACDUTRA “is now a veteran for the purposes of all other claims based on that same period of ACDUTRA” and is thus entitled to the presumption of aggravation for different, pre-existing conditions that worsened during that period.

With respect to the enlistment examination requirement, the Court first noted that in order to benefit from the presumption of aggravation, the evidence must first show that a condition was “noted” on the veteran’s enlistment examination. The Secretary conceded in this case that ACDUTRA veterans are generally not provided with the same routine examinations as regular military personnel are – and that the record will likely not contain an enlistment examination noting a pre-existing condition for these veterans. To answer the question of whether the presumption of aggravation requires an enlistment examination, the Court again looked to the statutory language, specifically 38 U.S.C. §§ 1111 and 1153.

The Court found that section 1153 “makes no reference whatsoever to an examination,” but that section 1111, the presumption of soundness statute, “makes explicit reference to an entrance examination.” In light of this, the Court determined that the statutory language was ambiguous. The Court then looked to VA’s implementing regulation, 38 C.F.R. § 3.306(a), but found that this “merely parrots section 1153” and that the Secretary’s interpretation was thus not due any deference. The Court concluded that, for the claimant who is already service connected for one condition incurred during a period of ACDUTRA and is attempting to establish service connection for a different, preexisting condition based on that same period, “no entrance examination is necessary where there is contemporaneous evidence of the baseline severity of the preexisting condition.” In other words, as long as the claimant submits evidence showing the severity of the pre-existing condition prior to the aggravation event during the period ofACDUTRA, as well as evidence of a permanent increase in disability during the period of ACDUTRA, that claimant can benefit from the statutory presumption of aggravation – even though there is no enlistment examination of record.

With respect to Mr. Hill’s back claim, the Court determined that the Board clearly erred in determining that his submissions and testimony were not new and material. Specifically, the Court found that one of the internet articles stated that a lightning strike might affect the musculoskeletal system – and that this article was “material to whether the lightning strike could have worsened the appellant’s preexisting back condition.” The Court also determined that the Board clearly erred in determining that Mr. Hill’s hearing testimony was “patently incredible,” finding that “the Board engaged in improper, pre-reopening weighing of the evidence, which is prohibited.” To support this, the Court cited Justus v. Principi, 3 Vet.App. 510, 513 (1992) (holding that, for purposes of reopening, “VA is required to presume the credibility of newly submitted evidence”). The Court directed the Board to reopen this issue on remand.

With respect to the psychiatric claim, the Court found that the Board provided an inadequate statement of reasons or bases for its reliance on a C&P examination as negative evidence – when that report appeared to include favorable findings. The Court directed the Board to obtain clarification or a new medical opinion for the psychiatric claim on remand.

FULL DECISION

Bly: EAJA & EQUITABLE TOLLING

Bly v. McDonald, docket no. 15-0502(E) (Oct. 7, 2016), overruled, Bly v. Shulkin, docket no. 17-1287 (Fed. Cir. Mar. 2, 2018)

HELD: The 30-day appeal period to file an EAJA application is subject to equitable tolling, but the person seeking equitable tolling must show (1) that he has pursued his rights diligently and (2) that extraordinary circumstance prevented timely filing.  

SUMMARY: On January 5, 2016, the Court granted the parties’ joint motion for remand. In its order, the Court stated “this order is the mandate of the Court,” meaning that the Court’s judgment became “final.” On February 5, 2016 – 31 days after the Court’s order – Mr. Bly submitted his application for attorney fees under the Equal Access to Justice Act (EAJA). Because an EAJA application must be filed within 30 days of the Court’s final judgment, the Court ordered Mr. Bly to show cause as to why his application should not be dismissed.

Mr. Bly contended that the application was timely, and alternatively argued that the deadline should be equitably tolled. The Court sent this case to panel to determine whether equitable tolling applies to EAJA applications and, if so, what standard should be applied.

The parties agreed that equitable tolling applies to EAJA applications, but disagreed on the appropriate standard to apply to determine whether equitable tolling is warranted in these cases. Mr. Bly argued that the Court should adopt a standard in which it only asks “whether a veteran would be financially harmed without tolling and whether the Government would be prejudiced by tolling.” The Secretary asserted that the Court should apply the same standard as the general test for equitable tolling, which inquires as to “whether an extraordinary circumstance prevented the timely filing despite due diligence.”

The Court first determined that Mr. Bly’s EAJA application was untimely, rejecting his argument that “final judgment had not entered and he still had time to appeal.” The Court found this argument to be “incorrect as a matter of law,” since the EAJA statute defines “final judgment” to include “an order of settlement” and the Court’s rules provide that judgment is effective when the Court “order states that it constitutes the mandate of the Court.” The Court’s order, in Mr. Bly’s case, expressly stated that “this order is the mandate of the court.” U.S. Vet.App. R. 41(b). In addition to the EAJA statute and the Court’s own rules, the Court also pointed to its precedential caselaw stating that “an order granting a joint motion for remand . . . is final and not appealable.”

Next, the Court determined that “the doctrine of equitable tolling may be applied to the 30-day time limit for filing an EAJA application.” The Court rejected Mr. Bly’s arguments regarding the standard to apply, finding that applying his proposed standard “would essentially swallow the statutory rule that an EAJA application is due within 30 days of final judgment.” The Court explained that to base an equitable tolling determination on the question of whether a veteran would be financially harmed if the EAJA petition were dismissed, could apply to “virtually every case where an EAJA application is untimely filed.” The Court found that Mr. Bly had not shown extraordinary circumstance or due diligence to warrant equitable tolling.

Finally, Mr. Bly had also argued that dismissing his EAJA application would result in a potentially smaller retroactive award to the veteran, if the veteran is awarded benefits on remand. This is because any contingent attorney fee would have been offset dollar for dollar by the EAJA amount, resulting in a higher award for the veteran. The Court rejected this argument, noting that the Secretary and the Court both have the authority to review attorney fee agreements for reasonableness. The Court expressly directed the Secretary to consider the holding in this case when assessing the reasonableness of any potential attorney fees that result on remand.

Judge Greenberg concurred with the portion of the decision that held that the 30-day EAJA filing period is subject to equitable tolling, but dissented from the holding that equitable tolling was not warranted in this case. He emphasized the importance of encouraging lawyers to represent veterans and noted that the application was only one day late and there was “no evidence of prejudice to the Secretary as a result of that delay.” Judge Greenberg stated that “[p]enalizing an attorney for filing 1 day late where there is no prejudice to the Government, not only unnecessarily penalizes the veteran, but also may have chilling effects on worthy veterans obtaining adequate representation.”

FULL DECISION