VA Caselaw Update Fall 2022 Part 2

Walleman v. McDonough, 35 Vet App. 294 (2022)
This is a case regarding the VA’s anti-pyramiding rule. The anti-pyramiding rule prevents compensating veterans twice for the same disabling symptoms.  
 
Background:
The veteran was granted a 10% rating for his left knee under diagnostic code (DC) 5259, for symptoms following removal of the semilunar cartilage. The veteran argued he was also entitled to a rating under DC 5257, for lateral instability of his left knee.  The Court of Appeals for Veterans Claims (CAVC) agreed with the veteran, by finding that as the symptoms listed under DC 5259 do not include lateral instability, and as lateral instability may be a distinct manifestation of a knee disability, rating the veteran under both diagnostic codes does not categorically violate the rule against pyramiding.
 
What This Means for You:
Make sure to get all your symptoms in the record. You may be entitled to multiple ratings, as long as the disability has multiple ratable symptoms.
 
Things to Look Out for:
Although this case seems to favor granting veterans multiple ratings for knee disabilities, there is never a guarantee that the VA is going to go out of their way to find you are entitled to multiple ratings. A veteran should be very clear at the C&P exam about all symptoms they have to make sure it is on the record. If the C&P exam report does not list all of your symptoms, you should submit a lay statement to the VA clarifying what your symptoms are. A thorough review of the record is also necessary to ensure that you are rated appropriately.
 
Other Considerations:
A few different VA rules meld together in cases like this.
First, veterans are not held to strict pleading rules when claiming service connection for disabilities, meaning that they’re not required to accurately identify the specific diagnosis for which they are seeking service connection.

Additionally, the VA is supposed to grant veterans separate ratings for disabilities when disabling conditions are distinct, not duplicative, and do not involve overlapping symptomatology.

On the other hand, the VA’s anti-pyramiding rule is meant to “avoid” evaluating the veteran more than once for the same disability, or for the same manifestation under various diagnoses.
The interpretation of these rules together can be problematic. If a veteran does not know their specific diagnoses, and they are not well versed in all of the VA’s diagnostic codes, there is a good chance that they will be under-rated for their disabilities even before there is a discussion about whether pyramiding occurred or not.
 
Watkins v. McDonough, 35 Vet. App. 256 (2022)
This case deals with whether the veteran was on Active Duty for Training (ACDUTRA) status in the reserves when she first developed bipolar disorder. If she was on ACDUTRA status or ACDUTRA travel status when her bipolar disorder arose, she may qualify for service connection for her bipolar disorder.
 
Background:
The veteran received orders for ACDUTRA starting on June 2, 1997 for a period of 12 days, plus one travel day. On June 2, 1997 the veteran checked into a civilian hospital, states away from her duty station, exhibiting acute psychotic symptoms. She was discharged from the hospital on the same day. The veteran was later diagnosed with bipolar disorder.

The veteran argued that she is entitled to service connection for her bipolar disorder, claiming the disability began while she was on active duty for training, or when she was on authorized travel to her duty station.

The Court of Appeals for Veterans Claims (Court) addressed the argument of whether alleged deviation from the itinerary in the veteran’s orders affected her status as a veteran during the ACDUTRA period.

The Court found that the Board of Veterans’ Appeals (Board) erred in determining what the veteran’s itinerary to her duty station should have been, without sufficient evidence in the record to make this conclusion; and that it erred in not analyzing the military’s Joint Travel Regulations (JTRs) to determine whether the veteran would still be afforded veteran status for travel, even if the veteran took an indirect or circuitous route to her duty station.
 
What This Means for You:
This is an unusual case that probably would not apply to most veterans. It is more common to see physical injuries claimed from ACDUTRA or travel to or from ACDUTRA, like from a training injury or a car accident. Though if you do have mental health symptoms that may be due to your ACDUTRA, it does not hurt to file a claim for service connection.
 
Things to Look Out for:
The Court declined to consider two arguments that were raised for the first time on appeal.
First, whether the Board was required to discuss, or was bound by, the Court of Appeals for the Armed Forces (CAAF) holding that a reserve member is on duty 1 minute past midnight on the day the member is to appear for training, and therefore subject to the Uniform Code of Military Justice (UCMJ) at that time, even if the veteran’s reporting time is not until later in the day. The logic behind this argument is that if the veteran was subject to military discipline under the UCMJ when she had her acute episode, then the rule should be relevant to the Board’s determination of whether the veteran was on duty status when her bipolar disorder manifested.

Second, the veteran claimed that the Navy had committed a due process violation by issuing unclear orders that led her to believe she could deviate from her itinerary while traveling to her duty station.  
 
The Court has discretionary powers to consider arguments that were not previously raised before the Board, and in this case they declined to exercise that discretion. However, since a remand back to the Board was afforded for one of the veteran’s arguments, the veteran is free to raise the arguments to the Board when the case is heard there again.

This is a good example of why it does not hurt to raise new arguments at the Court. The Court may exercise its discretion and consider your new arguments, and even if they don’t, if you get a remand on other bases then you can raise those new arguments at the Board.
 
Other Considerations:
It is not common for a veteran to get service connection for psychiatric disorders that started on reserve active duty for training, though of course it is possible. An advantage of this specific claim is that bipolar I disorder requires at least one lifetime manic episode. So, a manic episode occurring during ACDUTRA or ACDUTRA travel may be stronger evidence that the veteran is entitled to service connection for this disability, as opposed to some other acquired psychiatric disorders.
 
Also, this veteran had been an active duty service member before she joined the reserves. If any symptoms of her bipolar disorder arose when she was on active duty, or if the record showed her performance in service notably declined, and the decline in performance was due to mental health symptoms, she may also have an argument that her bipolar disorder began during her active duty service.
 
Kennedy v. McDonough, 33 F. 4th 1339 (2022)
In this case the widow of a veteran argued for an earlier effective date for her Dependency and Indemnity Compensation (DIC) grant, since she was granted her claim after the VA loosened the evidentiary requirements for some DIC claims. The widow claimed that the VA’s action was a liberalizing VA issue that allowed her an earlier effective date of one year.
 
Background:
In 2013 the VA issued an internal guidance letter, simplifying the process for DIC grants. Under the new guidance, adjudicators are allowed to presume that a death certificate is sufficient proof linking a veteran’s service-connected disability to their death, if the death certificate shows that a service-connected disability contributed to the veteran’s death. Due to this letter, if a service-connected disability is on the veteran’s death certificate, a widow or widower’s DIC claim should be granted without having to provide additional evidence that the death is related to service.
 
The widow in this case had previously filed for DIC three times between 2005 and 2010, and each time she was denied benefits.

The widow filed for DIC a final time in July of 2015. This time the DIC claim was granted, as the veteran’s service-connected depression was on his death certificate. The effective date of the grant was July 2015, the date the widow reopened her claim.

However, the widow argued that she was entitled to an earlier effective date for her claim. VA regulations state that when there is a liberalizing law or liberalizing VA issue approved by the VA Secretary or at the Secretary’s discretion that results in an award or increase in benefits, the effective date is one year prior to the filing date, if the claim is reviewed more than one year after the change in the law or VA issue.
 
The widow argued that the internal guidance letter allowing for simplified evidentiary rules in DIC cases constituted a liberalizing VA issue, that entitled her to an earlier effective date of one year for her DIC grant. Specifically, the widow argued that the issuer of the letter, the Director of Pension and Fiduciary Service, was acting under the VA Secretary’s delegated authority, and that the guidance letter was liberalizing, since it authorized DIC grants under certain criteria.
 
The Court of Appeals for Veterans Claims (CAVC), below, rejected the widow’s earlier effective date argument. The CAVC found that since the internal guidance letter was neither a “law” nor a “VA issue approved by the Secretary or by the Secretary’s discretion”, the widow was not entitled to an earlier effective date for her claim.

Specifically, the CAVC found that the guidance letter was not a “law”, since it was not a statute or regulation. The letter was also not a VA issue “approved by the Secretary or at the Secretary’s discretion”, since the claimant could not show a delegation chain from the VA Secretary to the Director of Pension and Fiduciary Service (the official who issued the guidance letter) nor could she point to law necessitating this delegation.

The CAVC also found that that even if the letter had been issued with the VA Secretary’s approval, the letter was not a “VA issue”, as it was not binding on the Board, and therefore did not bind the Agency.

Finally, the CAVC decided that since the internal guidance letter was neither a “law” nor a “VA issue”, there was no need to decide whether the letter was liberalizing or not.
 
Unusually, the government had made a narrower argument than what the judges at the CAVC held. The government had conceded that the guidance letter may qualify as a “VA issue”, but that it did not allow the widow an earlier effective date for her claim, since the letter was not approved by the Secretary or at the Secretary’s discretion. They also argued that the letter was not a “liberalizing issue”, since it did not have a substantive effect on the award of benefits.  
Even more unusual, although the CAVC found against the claimant, the widow and the CAVC agreed on one element of a “VA issue”: that a VA issue is binding on the Board.
 
The case then went up to the Court of Appeals for the Federal Circuit (Court), which is the case discussed here.

At the Court, the widow now argued that the CAVC’s definition of “VA issue” was too broad, since it required a VA issue to be binding on the VA. Instead, the widow argued, a VA issue need not be binding on the Board, it only needs to be binding on the frontline adjudicators.
The widow also argued that the CAVC should have deferred to the VA’s argument that the guidance letter qualifies as a VA issue.
 
The Court bit at the widow’s apparent change in position, and found that since the CAVC had adopted the same definition of a “VA issue” that she posited below, she could not now argue that the CAVC’s ruling had been wrong. The widow could not claim at the CAVC that a “VA issue” was binding on the Board and thus the VA, then claim at the Court that a “VA issue” is only binding on the claim adjudicators. The Court then declined to consider the rest of the widow’s arguments.
 
Judge Newman issued a strong dissent.  The judge accused the majority of finding an easy excuse to avoid reviewing the CAVC decision, rather than properly discussing the arguments before them.

The judge argued that the widow’s statutory and regulatory interpretation arguments had not been forfeited, since those arguments were debated in depth at both the CAVC and the Federal Circuit. Judge Newman felt the majority had eschewed its duty to discuss arguments raised in the briefs, including the rules of general applicability; the role of agency actions addressed to a class of persons; the meaning of “liberalizing”; the role of frontline VA administrators and the effect of the guidance letter on service center personnel; aspects of agency discretion; the rules of interpretation; the role of the VA Secretary and delegation in the VA; the interpretation of “VA issue”; the Board’s application of the guidance letter to other cases; and principles of administrative law and VA practice. Matters of law like statutory and regulatory interpretations are decided de novo on appeal, and Judge Newman felt that the Court was required to discuss these issues.
 
What This Means for You:
This entire issue would likely have been avoided if the widow had kept her claims going initially, rather than letting them lapse then reopening them later. It is important to keep your claim going, even if you get denied. If the law or VA rules change while your claim is pending on appeal, you will get the earliest effective date possible. If your claim lapses and you reopen it later, like the widow did in this case, your effective date may only be the date you reopened your claim. This means no backpay for the years you were entitled to a grant.

Things to Look Out for:
With such a well-reasoned dissent, it is likely that the effective date issues not addressed by the Court will come up again in the future. The Court’s dismissal of the claim on a forfeiture basis leaves all the other arguments raised before it open for interpretation.
 
Other Considerations:
The strongest DIC claims are those where the veteran’s death certificate lists a service-connected disability. However, even if service-connected disabilities are not on the death certificate, a beneficiary will qualify for DIC if they have strong legal arguments and supporting medical evidence that service-connected disabilities contributed to the veteran’s death. An unfortunate aspect of DIC claims is that almost anything can cause a death, and when drafting death certificates, doctors do not often go out of their way to check that the certificate’s language helps survivors get their benefits.
 
In addition to proving entitlement for DIC on a causal basis, there are other rules that will qualify a widow or widower for DIC.

VA Negligence: If negligent VA medical treatment or vocational readiness training contributed to the veteran’s death, the survivor is entitled to DIC.

The Vital Organ Rule: Service-connected disabilities that affect vital organs may be considered contributory causes of death. Additionally, if this disability was rated at 100% disabling, the VA will assume that the condition was debilitating.

The Progressive or Debilitating Rule: A service-connected disability is deemed to have accelerated the veteran’s death, if the condition affected a vital organ and was progressive or debilitating.

The Aggravation Rule: A service-connected disability can aggravate a non-service connected disability, leading to death.

The 10 Year, 5 Year, and 1 Year Rules: If the veteran was totally disabled for a service-connected disability for ten years prior to death, their survivor will qualify for DIC. If the veteran was receiving total disability compensation when discharged from active duty service, and until they died at least five years later, the survivor is also entitled to DIC. If the veteran was a prisoner of war (POW) and rated totally disabled at least one year prior to death, the survivor is also entitled to DIC.

Death Due to Disabilities That Were Not Service-Connected at Time of Death: Finally, the veteran need not be service-connected for any disabilities at all at the time of death in order for their survivor to qualify for DIC. The survivor can still provide evidence that a disability is related to the veteran’s service, and that the service-connected disability contributed substantially or materially to the veteran’s death.
 
Morris v. McDonough, 40 F.4th 1359 (2022)
This case is a classic example of why arguments should first be raised at the Regional Office, or the Board of Veterans’ Appeals (“Board”), if possible. If the argument is not raised until later, the Courts do not have to consider those arguments.
 
Background:
The veteran filed a service connection claim for a nervous condition in May of 1970. His service connection claim was denied, but the VA granted him non-service-connected pension benefits for schizophrenic reaction, paranoid type.
Pension claims are granted for totally disabling disabilities for war-time veterans, when those disabilities are not related to military service. Pension grants are needs-based, meaning the amount paid is discounted by any income or assets you have.
On the other hand, compensation claims, which are due to disabilities caused by military service, are not needs-based. This means that for compensation claims, no matter what your income, the VA will pay you based on your disability rating. Typically compensation grants are preferred since you are paid the same no matter what your income is.
 
In June 2005, the veteran filed a service-connection claim for post-traumatic stress disorder. He was granted service-connection for this claim and eventually received a 100% rating.
 
After his service-connection grant, the veteran raised numerous arguments that his grant should go back to May of 1970, on a Clear and Unmistakable Error (“CUE”) basis. CUE creates an exception to the rule that the effective date of a previously denied claim is the date you reopened your claim, when the denial of the claim was allowed to lapse. Since the VA “clearly” erred when they first denied your claim, the effective date will be the date of the prior filing.
 
At the Court of Appeals for Veterans Claims (CAVC), the veteran raised a new CUE argument for the first time. The VA had violated the veteran’s Fifth Amendment Due Process rights, he claimed, when they denied his service connection claim in 1970. The alleged Due Process violation was that the VA’s decision did not clearly and explicitly inform him that he was denied service connection for the disability. The veteran also explained that he did not need to raise the argument below at the Regional Office or at the Board, because the CAVC is required to decide all relevant questions of law.
 
The CAVC declined to consider the new argument.
 
At the Court of Appeals for Federal Claims (Court), the case discussed here, the Court considered the argument that the CAVC is required by statute to consider all constitutional issues presented to it. In addition to other cases, the veteran cited to a Supreme Court opinion regarding Social Security disability benefits, Carr v. Saul, 141 S. Ct. 1352 (2021). In Carr, the Supreme Court found that a judicially created exhaustion requirement does not preclude a theory from being raised for the first time at the district court.
 
The Court held that the CAVC’s discretion to hear new arguments applies to both statutory and constitutional arguments; and the CAVC did not err when it declined to consider the newly raised argument. Specifically, regarding the decision in Carr, the Court held that Carr addressed judicially created issue exhaustion rules, while the CAVC’s issue exhaustion rules are rooted in statute.
 
What This Means for You:
It does not hurt to raise new arguments for the first time at the CAVC, since the judges there can always use their discretionary powers to hear the new argument. This is especially true when you have more than one argument. If the CAVC remands one argument to the Board, but not the others, you can raise the other arguments before the Board and they’ll have to consider them. However, in this case since the CAVC declined to consider the new argument, and as there was no remand on other theories, it did not work out for this veteran.
 
Other Considerations:
Fighting CUE this high up may not be necessary, as a grant of CUE will always go back to the date when the VA should have initially granted the service-connection claim or appropriate rating. Outside of CUE claims, the effective date for an unappealed claim is typically only going to be the date of the reopened claim, not the date the claim was denied years ago.

So theoretically, even if a veteran loses their claim at any level of the appellate process and did not timely appeal it, they could reopen the claim at the Regional Office. If the claim is granted, it will have the same effective date as if the veteran had won the claim at the Board or a higher court.

On the other hand, strategically speaking, an experienced practitioner might think the veteran has a better chance of winning higher up in the appellate process, based on the legal theory and how those tribunals have ruled in the past. But if that’s what the claimant was hoping for here, it did not pan out.
 
Carter v. McDonough, 46 F.4th 1356 (2022)
The Court in this case found that a veteran can be denied service-connection for a disability when their own “willful misconduct” resulted in the disability, even though the disability was ultimately caused by another person.
 
Background:
The veteran was injured in-service when military police struck him in the head with a night stick. The injury resulted in a traumatic brain injury (TBI). However, the police report stated that the veteran was combative with the police, and he struck them first, which lead to a policeman striking him back with the night stick.  
 
Veterans are barred from receiving compensation for disabilities that would otherwise be due to service, if the disability was a result of the veteran’s own willful misconduct.
 
In the case here, the veteran argued that the Court of Appeals for Veterans Claims (CAVC) misinterpreted the law. The veteran argued that willful misconduct should not include injuries resulting from the conduct of other persons, “no matter” the veteran’s conduct or actions leading to the actions of others. The veteran did not specifically challenge the VA regulation interpreting willful misconduct.
 
The Court of Appeals for the Federal Circuit (Court) disagreed with the veteran’s arguments, on a statutory interpretation basis.

The statutes barring veterans from receiving benefits due to willful misconduct state that the disability must be the “result of” the veteran’s own willful misconduct.

VA regulations interpreting these statutes state that willful misconduct includes “deliberate or intentional wrongdoing with knowledge of or wanton and reckless disregard of its probable consequences.” Additionally, the willful misconduct must be the proximate cause of the injury, disease, or the veteran’s death.
 
The Court found that there is “proximate cause” when a veteran’s misconduct caused a foreseeable risk of the injury, and that the injury need only be the “result of” the veteran’s misconduct. Proximate cause is not extinguished by the acts of others, except when the result of the injury is so attenuated as to be a “mere fortuity”. The Court stated that they cannot avoid regulatory language and assume that Congress departed from traditional principles of causation.
 
What This Means for You:
If you were injured in the military by someone else, they injured you in response to your misconduct, and that injury was a foreseeable result of your actions, there is a chance you could be barred from service connection for that disability.
 
Things to Look Out for:
This really is not a great case for veterans. It is unlikely that a future court would overrule this. Though there is an easy fix: the VA could always change the language in the regulation to better favor veterans.
 
There are also numerous problems with the Court’s opinion, which I will go over here.
 
The Court stated they used traditional principles of causation in reaching their conclusions, but oddly enough they used foreseeability test from cases involving VA medical malpractice. If they were interpreting traditional rules of causation, you would think they would use causation rules of broader applicability. It does not make sense that they lifted a causation rule from a very specific subset of VA law instead.  

It is also arguable that foreseeable risks resulting from a doctor’s negligence (the test the Court adopted) are different from foreseeable injuries resulting from striking a police officer. A doctor’s negligence is expected to cause serious harm to the patient; a service member striking someone else should not result in serious harm to the service member. 
 
The medical malpractice comparison is also inappropriate since a veteran cannot possibly contribute to injuries caused by a doctor’s negligence.
 
Additionally, the Court has also flipped a test that is meant to help veterans into a test that bars benefits for this specific veteran. The VA medical malpractice foreseeability test is used to grant benefits due to the VA’s negligence, not to deny benefits due to the veteran’s misconduct. The Court flipping this test and using it to deny benefits rather than to grant them, likely violates the VA’s equipoise rule of evidence (evidence or law that is as likely as not in the veteran’s favor should be found in favor of the veteran); and violates the pro-veteran canon of statutory construction (that provisions benefiting members of the armed services are to be construed in the beneficiaries’ favor).
 
Another bizarre use of caselaw found here is the Court’s reliance on a criminal law causation test.

In the case referred to, the Supreme Court had found that a heroin distributer could not face an enhanced sentence for causing a victim’s death, since it could not be shown that the distributed drug was an independently sufficient cause of the victim’s death. Medical examiners at the trial could not say whether the victim would have lived if he had not taken the heroin, due to his long history of drug use, and due to the copious amounts of other drugs found in his system that contributed to his death.  

The Court here used this Supreme Court heroin case to discount the veteran’s arguments. The Court found that although the heroin in the Supreme Court case could not be shown as the “but-for” cause of the victim’s death, the veteran’s misconduct (striking the officer) was the “but-for” cause of the MP striking him and thus causing the TBI.

Again, this comparison makes little sense. Comparing a drug user who was going to die whether he used heroin or not is like saying that the veteran here was going to suffer a TBI whether he’d struck a policeman or not. And why is the Court using a criminal enhancement case to interpret a veteran’s disability case?
 
The Court’s claim that it used traditional causation principles to reach its conclusion is also not the case; as the Court ignored other principles of causation, including comparative negligence and the substantial factor test.

Under very old tort rules, if the plaintiff contributed to their own injury through negligence, they were completely barred from recovering damages. This is called contributory negligence. Contributory negligence is followed by very few jurisdictions today, because of the harsh results it often leads to. Instead, most jurisdictions have moved to a comparative negligence approach. Comparative negligence reduces the plaintiff's award by his percentage of fault.
In a VA disability case like this, the veteran’s amount of recovery could be reduced by the amount he contributed to his own injury, rather than being barred outright.

Another test the Court did not discuss was the substantial factor test. Under the substantial factor test, a defendant’s conduct has to be substantial enough compared to other causes to justify liability.

Again, in a VA case like this, if the Court had discussed the substantial factor test, it may have found that the policeman’s actions of causing the TBI are substantial enough compared to other causes (the veteran striking the policeman first) to justify entitlement to VA benefits for the TBI.
 
The results of this case could have been different if the Court had discussed other traditional elements of causation, rather than the harshest ones least likely to benefit the veteran.
 
Ultimately, we have a veteran’s disability case where the Federal Circuit did a piecemeal job of importing tort rules, to the veteran’s detriment.
 
Other Considerations:
If the VA were to adopt a comparative negligence rule for misconduct cases, this rule could be very similar to the VA’s service connection aggravation rule.

Under an aggravation theory, the veteran is entitled to service-connection for a disability, if a non-service-connected disability is aggravated by military service or by a service-connected disability. However, a veteran in this case is not meant to receive a rating for the full effects of the disability. Instead, they are only compensated to the extent that the disability is aggravated by military service.

A willful misconduct case where someone else caused the veteran’s injuries could use the same offset rule found in aggravation cases. The veteran would not be entitled to the full rating of their disabilities, but instead the rating would be reduced comparatively to the extent of the veteran’s own misconduct contributed to the disability.

-Written By Cameron Kroeger