- UPDATE: Rapid Appeals Modernization Program (RAMP) now sending claims to the Board of Veterans’ Appeals (BVA or the Board)
- What is the Court of Appeals for Veterans Claims (CAVC or “The Court”)?
- Can the Court take new evidence?
- Precedential Decisions at the CAVC
- Rice v. Shinseki (2009) – Individual Unemployability (TDIU) is not a separate claim
- Esteban v. Brown (1994) – The VA’s Anti-Pyramiding Rule and separate ratings for the same disability
- How VA rates disabilities using diagnostic codes
- Mittleider v. West (1998) – Non-service-connected and service-connected disabilities with overlapping symptoms
- DeLuca v. Brown (1995) – VA must consider pain, weakness, etc. when a condition’s rating is based on range of motion (often relates to knee, back, neck, and other orthopedic VA claims)
- Colvin v. Derwinski (1991) – VA must rely on independent medical evidence (NOT their own medical judgment) to support its benefits decisions
- Colvin and the standard for New and Material Evidence
Read the original CAVC Decisions here:
Zach Stoltz: Good afternoon and welcome to Facebook live from Chisholm, Chisolm & Kilpatrick in Providence, Rhode Island. Today we’re going to be discussing part 2 of top ten Court of Appeals for Veterans Claims cases. If you have not have done so, please watch part 1 of this series, which we taped last Thursday. It is on our website which is cck-law.com.
And while you are watching today, we’ll do a quick refresher and then we’re going to talk about some more–the rest of the top ten cases which we’ll get to in just a second. Please feel free to ask questions, we have a dedicated team here who will pass along your questions to the panelists who are participating today.
And again this week joining me, to my right is my partner Robert Chisholm of Chisholm, Chisolm and Kilpatrick and to my left is Jenna Zellmer of Chisholm, Chisolm and Kilpatrick. Both of whom have a wealth of experience at the Court of Appeals for Veterans Claims as well, as at the VA agency-level at the Federal Circuit.
To get started, I am told that Robert Chisholm has a special announcement about the RAMP program for VA so let’s hear from Robert on that one.
Robert Chisholm: So we’ve been talking about RAMP since the program was implemented.
Zach: Which is?
Robert: I can’t tell you what the acronym stands for but it –
Jenna Zellmer: Rapid Appeals Modernization Program.
Robert: Rapid Appeals Modernization Program. Put me on the spot, Zach. Anyway, so far only two lanes of RAMP have been open. That’s higher level review and supplemental claim lane, but as of October 1st, the Board lane is open and I want it to update people that if they get a denial in RAMP, they can now appeal to the Board.
And we understand as of this week, there were 386 R.A.M.P appeals in the Board lane. Of those, a 108 are in what they call the direct lane, 65 were on the evidence lane and little over 200 are in the hearing lane. The other thing, I think would be good to point out, let people know is that in fiscal year 2018, so the government’s fiscal year runs from October 1st to September 30th so 2018 just ended. The Board signed over 85,000 decisions, that is they made 85,000 decisions which was up substantially from 53 or 54 from the previous year.
And we hear that the target for the Board for 2019, fiscal year 2019 which is again just began on October 1st is to do 90,000 decisions. So that’s my quick update on RAMP, we have a lot of articles on RAMP on the website if you want to learn more about that.
Zach: So congratulations to the Board of Veterans Appeals for meeting their goal this year.
Robert: Yes. Yes.
Zach: Actually really–I truly mean that it’s really great work and good that they did that so the veterans can get more timely decisions on their appeals, and hopefully they’ll be able to keep at it and maybe do even better in 2019.
So moving from the Board of Veterans Appeals to the Court of Appeals for Veterans Claims, let’s start off with a quick refresher from Jenna Zellmer about what the Court of Appeals for Veterans Claims is…what it’s all about.
Jenna: Right, and as Zach mentioned, we did do a part one of this Facebook live last week and so we’re just going to give a brief refresher. But if you want a little bit more information on the court and history of the court, you can go back and look at last week’s presentation.
Essentially, the CAVC or the Court of Appeals for Veterans Claims, is a separate entity, it’s not part of VA and it’s the court that reviews all of VA’s decisions. And so, if you’re a veteran and you received a Board decision, you can appeal it to the court and that’s what I mostly do. And the court will review the record, review our arguments and determine whether or not the Board made any legal errors or if it overlooked at any relevant facts.
Zach: Jenna, can the court take new evidence, like if you appeal your case to court, can a veteran submit like a new medical opinion in court?
Jenna: That’s a good question, Robert. No, so the court operates on something that we’d call a closed record. So, essentially what the court is doing is looking at a snapshot of whatever the court had in front of it at the time that it made its decision. And just based on that evidence, the court can determine whether or not the Board made a legal error.
The good part about appealing to the court though is that if you do get a remand from the court, then the record becomes re-opened and you can submit new evidence that would support your claim.
Zach: Alright, with that background, let’s talk about the five cases that we’re going to talk about this week. We’ll start with a case called Rice. And I did want to give a little bit more background, these are cases that are precedent cases from the Court of Appeals for Veterans Claims. By and large, the court issues what is called, single judge memorandum decisions, which are not precedential, which means that those only apply to the particular veteran that brought that case. But when the court sits as three judges or as all nine judges together, they make a precedent decision which affects all of veterans law.
And so we’re going to talk about five of those cases that affect all of veterans law and we’re going to start with an all-time favorite, a pretty much anybody who practices VA law and a very helpful case for all of veterans called Rice vs Shinseki. Shinseki being the secretary of veterans affairs at the time in 2009 and Robert, want to get us kicked off with Rice?
Robert: So, I believe the cases are going to be posted on our website if you actually want to read them, so you can see them at cck-law.com. So Rice dealt with the issue of TDIU, and TDIU is an acronym Total Disability based upon Individual Unemployability. And what the TDIU benefit is if the veteran has less than a 100% rating, a combined rating of a 100%, and they’re unable to work due to their service-connected disabilities, they’re entitled to a 100% rating. And for years, the VA treated TDIU as a separate claim. Separate and apart from anything else that was pending, so let’s talk through a hypothetical here.
Let’s suppose that a veteran has a back injury and files for service connection for back condition and that back condition is rated at 60%, and due to that back condition, they’re unable to work. And let’s say that the veteran is fighting from the RO up to the Board, the case gets remanded and service connection is the issue. Then the veteran gets a 60% rating but appeals the rating saying, “I can’t work”. And under the way the VA used to adjudicate these claims, it could’ve been pending for five years, but if the veteran says “I can’t work due to the back injury”, the VA would treat that as a new claim as opposed to, and this is the magic language, part and parcel of the back claim.
So Rice held and this serves the Court of Appeals Veterans Claims held that it’s not a separate claim; in fact, it’s part and parcel of any pending claim as long as the veteran alleges that the service-connected disability caused the inability to work.
Zach: It was a huge case when it came out and it remains huge to this day, it’s probably one of the most cited cases I would say in the court’s history and continues even though it’s coming up on its 10th anniversary to be one of the major milestones in VA law.
Robert: And I think it’s important to point out that we are still filing appeals to the–in 2018, I’ll have you know, dealing with this issue and its ramifications, because the VA still has not correctly applied the court’s holding. In many cases, unfortunately.
Zach: And Rice is one of several cases that stands for the general proposition that veterans claims are supposed to be read as liberally as possible by the department. There are probably four or five cases that stand for that general proposition in a different context. But Rice is important because it stands for in the context of TDIU, which is a common benefit that is sought and also a benefit that is worth a substantial amount of money, which makes it a very important case.
So that is Rice vs. Shinseki, we will move to Jenna who is going to talk about a case that’s a little older. It came out 1994 and it’s Esteban vs. Brown.
Jenna: So Esteban dealt with a VA policy called the anti-pyramiding rule. And basically what that means is that veterans can have multiple service-connected disabilities and they can have multiple different ratings for all of those different disabilities. But the anti-pyramiding rule says that if you have two disabilities that have the same manifestation; for example, if you have two different disabilities that both manifest in pain, you can only get compensated for that specific symptom under one of the disabilities, You can’t get double compensation.
And so, Esteban dealt with this in a situation in which a veteran was seeking compensation for multiple different facial injuries, and originally he was denied separate ratings because they said that they were all just symptoms of the face. But Esteban said that “if you have different, separate manifestations of the same disability, you can actually get separate ratings. So, in Esteban’s case, he had one manifestation that was pain, I believe he had another manifestation that was difficulty moving his jaw. And I think another one that had to do with muscle…
Robert: I believe we have a helpful infographic right now.
Jenna : Yes, we do. And so because–even though it was all around the same body area, he had different symptoms, and though each symptom was entitled to its own benefit. And so, generally what we like to say is that, when you’re considering a veteran’s disability, you’re supposed to be not just considering what the disability is labeled or the area of the body it’s in. You’re supposed to be considering what the actual symptoms or manifestations of that disability are.
And so, if you have separate disability or separate manifestations, you should be getting compensated for all of those disabilities or all of those manifestations. We have a helpful infographic. I guess it’s good to back up and kind of explain how VA rates disabilities and they rate them by something called diagnostic codes.
So every disability is assigned to a different code and every code lists ratings on and the disability’s symptoms that correlate to each rating. For example, orthopedic conditions, you get a certain amount of rating based on your limited range of motion. For psychiatric disabilities, you get a certain rating based on how severe your symptoms are.
A certain diagnostic code could compensate limitation of motion for the knee for example, and a separate diagnostic code can compensate for instability of the knee.
Zach: See how easy it is?
Jenna: And so because even though you have one knee disability, those diagnostic codes compensate different manifestations and you can get two separate ratings from those disabilities. So that’s what Esteban stands for.
Zach: Piece of cake.
Robert: And so I’m going to confess, I’ve been confused about this for years. I always have to go back and reread the case to make sure it’s applied correctly.
Zach: Yes it is a very important case. It’s extraordinarily often cited and seldom understood.
Jenna: I think a good way to consider it is you just put every single symptom in a box. And then you compare each of those symptoms to all of the different potential rating criteria, all the different diagnostic codes and you just match them up. If you have one diagnostic code that contemplates symptoms A, B, and C, you get a rating for that and then there’s a separate diagnostic code that contemplates symptoms B, C, D and E, I forgot where I left off.
But you get compensated for that. So you just go down the line and you figure it out, and if, at any point, you have two diagnostic codes that both contemplates symptom A, you just get one of those.
Zach: And feel free to ask any questions along the way as we’re going. Let’s move on from Esteban, because I have to before my head explodes, to Mittleider vs West which is much easier to understand. It is from 1998 and Robert Chisholm is going to talk about with this a little bit about her major holding of Mittleider.
Robert: So in Mittleider, the court held when it’s not possible to separate the effects of non-service-connected condition from the service-connected condition. The benefit of the doubt goes to the veteran so that all the symptoms from the two are considered, in what Jenna was just talking about, in rating the case.
So in Mr. Mittleider’s case it was a psychiatric issue. So I think it would be good to give a concrete example of how this plays out in reality. We represented a veteran a few decades ago at a case and that veteran had a zero percent rating for his post-traumatic stress disorder, which the VA found was due to his service in Vietnam.
He also had a non-service-connected organic brain syndrome. And after the Mittleider case came out, we argued to the VA that the medical opinions were not able to sort out which symptoms were due to the PTSD, and which symptoms were due to the organic brain syndrome. In fact, we got a medical opinion from a professional who said the DSM-IV, which is the Diagnostic and Statistical Manual that psychiatrists and psychologists use to diagnose mental disorders and psychiatric disorders, specifically said you can’t do that.
Because they were unable to sort out what was due to the PTSD and what was due to the organic brain syndrome which was nonservice-connected, we eventually got the VA to rate the 0% PTSD up to a 100% using the principle announced in Mittleider.
Mittleider also has been used in cases such as D.I.C cases, where it’s unclear precisely what caused the death of the veteran, whether it was a non-service-connected issue or a service-connected issue, we’ve used Mittleider arguments in those kinds of cases. I believe we’ve also used it in the orthopedic arena as well. So the general principle about the benefit of the doubt goes to the veteran when it comes to actually rating disabilities and the symptoms and whether they’re due to a service-connect or non-service connected condition, this opinion has helped many veterans get the benefits they deserve.
Zach: So that is Mittleider and we’re going to move on another all-time favorite. We have two left and we’re still definitely taking questions if you have any. As we move through these, we’re going to go switch over to Jenna for the world-famous DeLuca v Brown case, which comes from 1995 which is still often, very, very, very often debated between appellants and the department of Veterans Affairs at the court level. It is a major case, it led to at least three or four other cases that stem from DeLuca but let’s start with DeLuca from 1995.
Jenna: So DeLuca is a nice transition from Esteban I think because, as I was…
Zach: They’re all are great, from Esteban.
Jenna:…as I was saying in Esteban, VA rates its disabilities based on the diagnostic code. And so for orthopedic conditions, the diagnostic code is pretty simple. An orthopedic condition, which is you know, anything to do with the bones. A knee, a back, the neck, ankle, wrists, etc. All of those are rated based on how far in your range of motion you can move that area of the body.
And so, DeLuca stands for the premise that just because that diagnostic code is based strictly on raw range of motion measurements, that’s not the end of the necessary inquiry that the Board is supposed to take on into consideration. There are actually two regulations that almost kind of supplement what the diagnostic code is, and inform the Board on other things that they’re supposed to look at in terms of functional loss.
Just because a veteran may be able to move his back to a certain degree during an examination, that doesn’t necessarily mean that in the daily course of his life, that range of motion translates to an ability to perform all of his daily activities and perform work. And so, it’s possible that due to weakness, fatigability, incoordination sometimes flare ups of pain, he could be far more disabled than is typically shown in his range of motion.
So, DeLuca keeps kind of says that the Board can’t just look at the diagnostic code, they need to consider all of these other factors to take into whether or not the veteran is actually more disabled than it appears to be based on the diagnostic code.
Zach: DeLuca is one of the cases that tries to be realistic about a veteran’s circumstance because one can imagine that you can make somebody bend their back or their arm, they can bend it further than when the pain sets in, but as a practical matter, the person is disabled when it becomes too painful to move even if they can keep going.
DeLuca was the first case that really came along and took the reality of that situation into account and threw some subjectivity into veterans law, to where you don’t just match up the absolute maximum that somebody can do. You have to match up what they can realistically do in a ordinary daily life setting. So that I think is one of the most important takeaways of DeLuca and there are now dozens of cases that tend to go along that general philosophy.
Jenna: Yeah, they guide kind of what the examiners are supposed to be looking for in terms of not just measuring range of motion but kind of taking all those factors into account.
Robert: Can I just add one thing in terms of if you’re a veteran going to a medical exam, it’s really important not to be the tough person and say, hey, doesn’t hurt at all. You need to be candid with the examiner and tell them when the pain sets in and when you start having difficulty with range of motion, that’s really important for the exam.
And if you believe the doctor didn’t hear you? You can always submit a written statement that when the doctor moved my arm this much, it began to hurt.
Zach: Absolutely. And speaking of examinations, this is our last case of the day and an all-time personal favorite which is Colvin vs Derwinski of 1991. The court basically started deciding cases in late 1990 I think, and so this is really one of the first cases from the court is still absolutely cited almost every day in veterans law, even though it is coming up on its 30th anniversary here in a couple of years. So let’s talk about Colvin, Robert.
Robert: Almost three decades.
Zach: Three decades of Colvin, we’ll get T-shirts.
Robert: So, in the old days, prior to the court’s creation, prior to judicial review, the Board would make decisions with three members. And many times, one of those members was a medical professional. This case stood for the proposition that the Board couldn’t rely on its own medical professional to give an opinion essentially.
So they needed independent medical evidence in order to refute or to deny a claim. It was no longer based upon their own judgment. So, this case stood for that proposition and VA could only use independent medical evidence to support its benefits decisions.
So as a result of this decision, we have, I think literally hundreds of thousands of compensations and pension exams every year done by the VA and those are independent under the guise of the Colvin decision. The Board is also able to go out and hire experts either within the VA system or outside the VA system if it’s a particularly difficult medical question. But they no longer able to use just their own medical judgment.
And on occasion, we still see this issue surfacing 30 years later in cases. Where a war judge will use their own opinion and if the court concedes it’s a medical opinion, they need independent evidence to support that assertion. When that happens, the usual results is a remand back to the court to get an independent opinion.
Zach: It’s basically an order back to the Board of Veterans Appeals saying you’re a lawyer, not a doctor. So have a doctor give an opinion about this, that’s the long and short of Colvin. It’s amazing how often it still happens but it does still happen quite a bit.
Robert: But there’s another interesting historical footnote with the Colvin decision. Dealing with the issue of new and material evidence. So if a claim becomes final, under VA law, the veteran is able to re-open a claim with new material evidence. That’s going to change after appeal’s reform, it’s going to be new and relevant evidence but under present law, it’s new and material evidence. And in this case, the court back in 1991 interpreted what new and material evidence is.
And instead of relying on the VA’s regulation that is giving deference to the VA’s interpretation, they grafted it from social security, they came up with the definition. And that remained the state of the law until a federal circuit court case called Hodge, said no, no, no, no, you can’t go borrowing someone else’s interpretation when the VA’s interpretation is entitled to deference.
And so in the Hodge case, they overruled the standard for new and material evidence in Colvin. We look forward to seeing what the final interpretation of new and relevant evidence is going to be with appeals reform and that should be coming sometime soon those regulations will become final, and we’ll see what that is going forward. so that’s a little footnote on Colvin.
Zach: So that is the completion of the five cases we had remaining from the top ten U.S Court of Appeals for Veterans Claims cases. I’m sure that it will be hotly debated, whether we picked the right ten.
Robert: Let us know here.
Zach: But these are ten that are certainly very important.
From Jenna Zellmer, Robert Chisholm and Zach Stoltz in Providence, Rhode Island, we thank you very much for watching today and we will see you all again soon in our next Facebook live. Thank you.