10 CAVC Cases All Veterans Should Know: Part 2
Part two of our series “10 Court of Appeals for Veterans Claims (CAVC) Cases All Veterans Should Know,” features Founding Partner Robert Chisholm, Partner Zachary Stolz, and Attorney Jenna Zellmer discussing some of the most important rulings issued by the Court of Appeals for Veterans Claims and how these decisions have changed the way VA handles veterans’ claims moving forward.
Missed part one? Watch 10 CAVC Cases All Veterans Should Know: Part 1 here.
Background Knowledge
The Court of Appeals for Veterans Claims (CAVC) is the court, separate from the Department of Veterans Affairs, that reviews decisions issued by the Board of Veterans’ Appeals for legal errors and to ensure that all available evidence was considered correctly during the adjudication process.
Decisions from the CAVC can become precedent-setting cases when decided by more than one of nine judges on the panel. Precedential decisions establish principles or rules that must then be followed when similar circumstances arise. In other words, some decisions issued by the Court of Appeals for Veterans Claims can change the way other veterans’ claims are adjudicated in the future. These are the types of cases we will discuss today.
Rice v. Shinseki (2009)
At issue in Rice v. Shinseki was determining the proper effective date for a total disability based on individual unemployability (TDIU) claim. Total disability based on individual unemployability is a benefit reserved for veterans who are unable to work due to service-connected disabilities, but do not reach a schedular 100 percent disability rating. Veterans in receipt of TDIU are compensated at the 100 percent rate.
To best explain the outcome of this case, let’s dive into an example. Let’s say a veteran has a back injury and is not able to work as a result. He or she then files for service connection for a back condition and is granted a 60 percent disability rating from VA a few years later, but decides to appeal this decision for TDIU. Prior to Rice v. Shinseki, VA would treat that appeal for TDIU as a new claim separate from the back condition or any other pending claim, with an effective date of when TDIU was raised.
The Court of Appeals for Veterans Claims ruled that claims for TDIU are not a separate claim but rather part in parcel of any pending claim the veteran has before VA, marking the effective date for TDIU as the date of the original claim.
Esteban v. Brown (1994)
Esteban v. Brown dealt with VA’s anti-pyramiding rule. For a better understanding of Esteban v. Brown and pyramiding, it is important to first understand how VA rates disabilities under diagnostic codes. Every disability is assigned a diagnostic code in VA’s Schedule for Rating Disabilities (VASRD), and every code lists symptoms to be associated with a percentage rating.
The anti-pyramiding rule essentially states that if a veteran has multiple service-connected disabilities that manifest in the same way, meaning they share the same symptom, the veteran can only be compensated for that symptom under one diagnostic code.
In this case, Mr. Esteban was seeking compensation for multiple facial injuries but was denied separate ratings because they were all symptoms of the same body area. The CAVC ruled that if a veteran has different manifestations from the same disability, they can receive separate ratings for each manifestation. In other words, although these symptoms were concentrated in the same body area, different manifestations existed that warranted their own individual ratings.
Let’s use an example to illustrate this ruling. A veteran with one orthopedic knee condition may receive two ratings for that one disability as long as the symptoms manifest in different ways: for example, one rating for limited range of motion and a separate rating for instability of the knee. Since these manifestations each have their own diagnostic code, the veteran can receive two separate ratings for one disabling condition.
Mittleider v. West (1998)
In the Mittleider case, the CAVC held that when it is not possible to distinguish the effects of a non-service-connected condition from a service-connected condition, the benefit of the doubt goes to the veteran so that all symptoms from each condition are considered during the rating process. One example of how CCK has used this ruling to benefit our clients is as follows:
A veteran was rated at 0 percent for service-connected post-traumatic stress disorder (PTSD) that resulted from his service in Vietnam. This particular veteran also suffered from a non-service-connected organic brain condition. We were able to successfully argue that since medical opinions were unable to separate symptoms of PTSD from the organic brain condition, the veteran should be compensated for all of the symptoms s/he was facing under the PTSD diagnostic code. The veteran was then rated at 100 percent for PTSD.
DeLuca v. Brown (1995)
DeLuca v. Brown was a precedential case for many veterans seeking disability compensation for orthopedic conditions. Orthopedic conditions relate to anything to do with the bones, so a veteran can have an orthopedic condition in areas such as the knee, hip, elbow, wrist, etc. These conditions are rated based on the range of motion of the affected part of the body.
DeLuca established that although a condition is rated strictly on range of motion using the diagnostic code, other factors should be considered when VA assigns a rating. Now, adjudicators must also take functional loss into account. Functional-loss inducing factors can include, but are not limited to: weakness, fatiguability, coordination, flare-ups of pain, etc.
For example, simply because a veteran is able to move their back to a certain degree during an examination does not mean that the condition has no impact on their ability to carry out activities of daily living or work.
Colvin v. Derwinski (1991)
One of the first decisions to come out of the Court of Appeals for Veterans Claims was Colvin v. Derwinski. Prior to the establishment of the CAVC, the Board decided cases using three members, one of which was a medical professional. This case established that VA cannot rely on its own medical opinion to refute or deny a claim; it may only use independent medical opinions. Colvin v. Derwinski also ensured that the opinion regarding a medical issue of Veterans Law Judges is not admissible to rely upon when adjudicating a claim.
One may begin to think about Compensation and Pension examinations, and question whether these can then be considered independent medical opinions. Under the guise of Colvin, C&P exams are considered to be independent. The Board of Veterans’ Appeals is able to rely on other independent medical opinions as well, such as experts within the VA system or in the private sector.
