FEDERAL CIRCUIT RULINGS AND THEIR IMPACT ON VETERANS – 2018
- What is the US Federal Circuit Court?
- What kinds of cases does it hear?
- What is its impact on veterans?
ACREE V. O’ROURKE
- Acree V. O’Rourke (on Withdrawing Claims)
- How Acree Could Affect Effective Dates
- Written vs. Verbal Withdrawals, On the Record vs. Off the Record
- Acree Applied: A Hypothetical Example
- What is VA’s responsibility to educate the veteran about the consequences of withdrawing a claim?
- If a claim is withdrawn without a veteran’s understanding, what will happen? Is it a CUE?
MARTIN V. O’ROURKE
- Martin v. O’Rourke (on Timeliness at the CAVC and Petitions for Writs of Mandamus)
- What is a Writ of Mandamus?
- What is considered “unreasonable delay” at the VA?
SAUNDERS V. WILKIE
- Saunders v. Wilkie (on Service Connection for Pain without an Underlying Disability) Read more on the Saunders Ruling Here
- Saunders Applied: A Hypothetical Example
“It takes – on average – six and a half years for a veteran to challenge a VBA determination and get a decision on remand. God help this nation if it took that long for these brave men and women to answer the call to serve and protect. We owe them more.”
– The Honorable Kimberly Moore
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Zach: Hello, my name is Zach Stolz. I am an attorney at Chisholm Chisholm & Kilpatrick. We’re here today to talk about cases at the Court of Appeals for the Federal Circuit. Helping me with this today, to my right, is Kerry Baker who works at CCK and Barb Cook, both of whom have unique expertise in the area of veterans law and are going to talk today about two very recent rulings from the Court of Appeals for the Federal Circuit and how they affect veterans’ right across the country.
To get started, I wanted to first give an overview of what the Court of Appeals for the Federal Circuit is, where it is located, and what it does and where it is in the proceeds. On your screen right now I believe there is a claim stream for veterans disability compensation claims. Many are familiar with filing a claim at the Regional Office and appealing to the Board of Veterans’ Appeals. But the talk today focuses more on the court aspect which not only at the Court of Appeals for Veterans Claims, which is where many appeals end up but there is still another court above the Court of Appeals for the Veterans Claims that oversees questions of law. So if a veteran is unsatisfied with a decision that he or she received at the Court of Appeals for Veterans Claims and they believe that a legal error was committed by that Court, they can appeal to the Court of Appeal for the Federal Circuit, which is another specialty court. It is also located in Washington, D.C. It is an interesting court because it has jurisdiction over intellectual property appeals and some patent appeals and veterans appeals. Just by act of Congress, they decided 20 or 30 years ago that the Court of Appeal for the Federal Circuit was going to be the last court before you got to the Supreme Court.
It has an extraordinarily narrow jurisdiction and by that I mean it does not hear a lot of cases because the questions that it can hear can involve no questions of fact, and they can involve no questions of application of law to fact. So the only thing that the Court of Appeal for the Federal Circuit in the veterans context can weigh in on are pure questions of interpretation of the law. Recently they’ve been a very busy court and have handed down several decisions involving veterans claims and giving guidance to people that practice veterans law and to veterans that have appeals in the disability claims process. Several of those cases upheld the Court of Appeals for the Veterans Claims, which is what usually happens. Generally the Court of Appeals for Veterans Claims is upheld by the Federal Circuit.
However, there are two cases today that we are going to talk about in which the Veteran’s Court was actually reversed by the Federal Circuit or at least their findings of law were reversed. The Federal Circuit offered a bit more guidance that applies nationwide because the court has a national jurisdiction. What it says and its decisions have a precedential effect on all veterans and all veterans seeking disability benefits. So it is a very important court and whenever they write a decision those of us who practice veterans law read them very, very carefully knowing that they will affect our clients and will affect the veterans that we are trying to help guide through the disability process. So there is a little bit of background about it, as I said Kerry Baker and Barb Cook are here to kind of help me to make sense of two rulings. The first one is going to be Acree vs. O’Rourke, I am going to start with Barb to explain a little bit about what this case was about.
Barb: This case involved a veteran who had a hearing in a front of the Board of Veterans’ Appeals and he had a number of claims that he had appealed successfully to the Board and at the actual Board hearing, the Board decided that he had waived or given up seven of those claims. So they dismissed those claims, and ultimately the Federal Circuit ruled that that was not proper, but the path from the Board to the Federal Circuit was this: The veteran had a hearing as I mentioned and at the hearing, the Board made the decision that the veteran’s waiver or giving up of those claims was both explicit, that is it was clear, and it was unambiguous. Those are two of the three tests for deciding whether a person has given up a claim. The Board did not decide or assess whether the veteran fully understood the consequences of giving up those claims, what would it mean in terms of his rating for example, what would it mean in terms of his effective date or his entitlement to potentially get other benefits. So when the case went to the Veterans Court, on appeal he argued that he had not voluntarily waived those other claims and he wanted the court to send the case back to the Board of Veterans’ Appeals so that those claims could be heard. The Veterans Court ruled that because the Board had decided that he had been both explicit and unambiguous in the way he waived the claims, then that was sufficient. They did not order the Board of Veterans’ Appeals to decide whether he had a full understanding of the consequence of his actions and it was on that basis then that the Federal Circuit as a matter of law said the Board actually had to do all three steps. They couldn’t just do two of the steps to decide whether the veteran actually waived those claims, gave up those claims. And so the case is now back before the Veterans Court and it will go back to the Board of Veterans’ Appeals to make that assessment.
Zach: Barb mentioned something when she was explaining the case about effective dates, and effective dates in the world of veterans law are very important because that has to with how far back in time a veteran can be awarded compensation benefits for his or her disability. Kerry, this ruling, it sounds to me, and after Barb explained it, may help some veterans maintain and secure that earlier effective date, can you talk about that a little bit?
Kerry: Sure, I think it is a tricky world when you are talking about whether you are entitled to an earlier effective date based on a withdrawn claim. In this circumstance, the Court appeared to limit its discussion to issues that had been withdrawn from appeal in a hearing, in other words orally in a hearing rather than in a written statement by the veteran. So I think that distinction is important. I don’t know that the case actually affects any withdrawn claim where the veteran writes in to VA under his own signature that says I am withdrawing a specific claim. But, a lot of veterans do that same thing at a local hearing before a Decision Review Officers or a hearing with the Board of Veterans’ Appeals. So in those circumstances which is what this Court talked about here, that’s — if those three tests aren’t met, especially that last test whether the veteran knew the consequences of doing that, then there is a potential argument that where the veteran and VA may have thought that the veteran withdrew his claim that the claim is not technically withdrawn and if later the veteran decides, I didn’t mean to withdraw that that claim, I didn’t realize what I was doing. I didn’t have appropriate council advising me, the hearing officer didn’t tell me. There is an argument there that claim is not therefore withdrawn and still open before the VA. So it’s a narrow set of circumstances but if you happen to be one of those veterans that fall under those circumstances, it could help you with an earlier effective date, simply by virtue of the claim not actually having been legally withdrawn.
Zach: What you are talking about also has some importance with, you talked about the written withdrawal and you talked about a withdrawal maybe on the record. Then there are withdrawals off the record where the Board maybe asks a veteran if they are having a Board hearing for example, or a Decision Review Officer hearing whether or not they want to give up some of their claims. Let’s do a hypothetical. There is a claim for service connection for post-traumatic stress, there is a claim for an increased rating all of this is on one part- in one case, service connection for post-traumatic stress and an increased rating for a knee disability and an increased rating for diabetes and those are all together. The Veterans Law Judge perhaps in this scenario says, “I understand the post-traumatic stress condition. I understand the increase for the knee but doesn’t look to me that you have diabetes, do you want to withdraw it?” The veteran says yes. Is that going to be good enough, and does it depend on when in the process the veterans says that, if he says on the record or says just at the beginning of the hearing.
Kerry: I think in a situation like that, it’s a case-by-case analysis except for if, in my opinion of this case, if the veteran does it off the record and there is no transcript of the testimony where the veteran has acknowledged withdrawing that issue. I don’t believe any of the factors are met at that point in this case on what is required to adequately withdraw something. Now, if they do it on the record I think it comes down to a case, a specific case scenario type situation. If what you explained is the only thing stated in the record in the transcript of the hearing, I think there is an argument there that that issue is not fully withdrawn because it didn’t sound to me like the veteran really knew the circumstances of that. I mean one, they’re talk about he does or does not have a diagnosis, well the veteran is not a doctor. We don’t know what the record says, that seems to be little pre-adjudicatory, in other words making the decision before the decision is actually made. I think there is plenty of reasons to probably point to a case like that and say, I would argue that that issue is not technically withdrawn.
Zach: So this is important for veterans and it is important for the representatives whether that is an attorney representative or veterans service organization representative or whomever is guiding the veteran through this process, to be very, very careful about withdrawing cases, about withdrawing issues, because once they are withdrawn and you do meet the three part test that was laid out in this Acree case, then the veteran they’re gone from appeal and the only way the veteran can raise them again is by submitting new and material evidence and starting all the way back at the beginning and maybe losing his or her effective date. So for all advocates out there it is a very delicate situation when this happens and you have to be very, very careful and be aware of this case law. But that’s on the veterans and on the advocates side. What about the VA, Kerry, what is their responsibility in making sure the veteran knows what the impact of withdrawing a claim is going to be?
Kerry: I think because what we’re really talking about here is, what occurs during a hearing. Now in this case it was a hearing before the Board of Veterans’ Appeals, personally I don’t think there is a difference if you’re talking about a hearing before the Board of Veterans’ Appeals or hearing before a Decision Review Officers which, you know, far more veterans have hearings before local Appeals Teams at the Regional Office than they do at the Board of Veterans’ Appeals and so I think the three tests kind of outlined what VA’s responsibilities are. At least give it some guidance. It has to be explicit, unambiguous, and done with the full understanding of the consequences of such action. Most veterans out there are not going to know that third one, they may not know the first two. The hearing officer or Board Judge who is presiding over there, whatever VA employee is presiding over the hearing has an inherent duty, one, to do this on the record, to do it where it’s transcribed, not off the record.
But two, make sure they state on the record in a way that’s understandable to that veteran that shows that that veteran knows all the consequences of what’s going on here. If it is an increased rating claim, are they being asked to withdraw something that the DRO just feels doesn’t really make a difference? Those are very steep slippery slopes in my opinion, and if a veteran withdraws that, does he understand that there might be a chance for an increased rating and a higher level of review? Does he understand that that might be the one condition that entitles him to additional benefits like unemployability? You know, there’s all kinds of consequences that come from withdrawing something where there’s still benefits on the table. That’s personally, what I would ask in a case like that. What you’re withdrawing, whatever issue it may be, is it going to affect benefits on the table for that veteran? If there’s a possibility that that issue is going to enhance the veteran’s benefits, then the hearing officer- I think VA has a very strict duty to ensure that the veteran understands what they’re doing.
Zach: If the veteran did, so if there is an issue withdrawn that he or she didn’t want to withdraw or something happened it was mistake or there was a miscommunication, how does it is effecting, how does this ruling affect their case, Barb?
Barb: Well, first I think we have to distinguish between cases that are currently pending or alive and cases that have been finally decided and adjudicated. I am not sure that a person whose claim has been finally adjudicated will be able, for example, to claim that there was clear and unmistakable error in that decision-making, simply based on this kind of a ruling. But for cases that are currently pending where the person is either still at the Regional Office or at the Board or at now has the opportunity to, still has the opportunity to appeal to the Court or is at the Court. This presents a powerful argument for those people who have not been asked the three key questions. If they have been asked the three key questions and they acknowledge that they understood what was going on, then again I don’t think this case is going to help them very much. But the odds are that they have not been asked those questions. If that’s the case then it becomes a powerful weapon for them to say this really needs to go back, assuming that there is some merit to the claims that they were said to have given up.
Zach: Okay. Let’s move to the next case. The second case that we’re going to talk about today, which is Martin v. O’Rourke, and it is not just John Martin who is the named appellant in that case, the Court of Appeals for the Federal Circuit consolidated the case because the issue that was, the question that was before the Court in Martin was also a question that was before the Veterans Court in several other cases. So there are several named appellants. But Martin is the lead appellant. And this case has to do with petitions for writs of mandamus. This case touches almost exclusively on how long claims are taking at the Department of Veterans Affairs. Anybody who is paying attention to this particular production understands how long VA takes in the appeals process, how long it can take for a veteran’s case to wind its way all the way through to either getting benefits or being denied benefits. That’s what this case deals with. So, Barb what was this case about?
Barb: Well this involved, as you said, a number of appellants who had sought help from the Veterans Court because their cases had been delayed and they argued in front of the Veterans Court that they had been unreasonably delayed. The Veterans Court dismissed all of those and then they appealed to the Federal Circuit arguing that the Veterans Court used the wrong test for deciding whether they were entitled to help from the Court of Appeals for Veterans Claims. The rule that the Veterans Court has used since it first established the rule, which I think was back in the early 1990s, was that in order to secure a writ, in order to secure an order from the Veterans Court requiring VA to act on a case outside of the normal appeal process, the appellant had to show that the VA was showing an arbitrary refusal to act and if VA could come forward and show that this was just, actually the person also had to show that this was not just the result of an overburdened system. In other words if everybody is being treated the same and having significant delays, then the Court was not going to issue a writ in favor of one person over another. So that was the rule that the Veterans Court was using and used in these particular claimants’ cases and that’s the rule the Federal Circuit said was not a good rule. They have now instructed the Veterans Court–
Zach: So it sounds like the VA were able to say, “Well, we’re busy.”
Barb: It did sort of come down to that. There is nothing we can do about it. These cases take a long time. Yes they would say things like that.
Zach: And the Federal Circuit is saying, you can’t just say, “Well we’re busy.” You have to do better than that.
Barb: Right, you have to do better than that. So they came up with, they ordered the Veterans Court to use a six part test that they’ve used in other, the Federal Circuit has used in other cases to say, you have to weigh all these different factors. You can’t just say, “VA is busy.” That’s too bad. That’s the way it goes. You have to look at things like, is this an issue that affects the health and welfare of the claimant, which in veterans cases it does. They do get to look at other priorities of the agency, so if the agency has other cases that are more compelling or other priorities, then that is again a factor. It is not the only factor. They have to look at the prejudice to the veteran. So people with very severe disabilities or very severe health issues, very severe income-based issues if that’s what they are seeking ultimately from VA is an award of financial benefits, that’s another factor. Unlike the Veterans Court, the Veterans Court had historically required basically bad behavior on the part of the VA and that rule is no longer to be applied.
Zach: Okay. To back up just a little bit, this case deals, as Barb said, with petitions for writs of mandamus, and mandamus is a Latin term that means we command. What it essentially is is a way to get out or to not have to wait for a full Board of Veterans’ Appeals decision to appeal to court, it is used commonly by veterans practitioners. They file a petition for a writ of mandamus from the court which literally means what they are asking is for the Court of Appeals Veterans Claims to command the Department of Veterans Affairs to do something. And often time it’s used by practitioners to say look this claim has been languishing at VA for so long that there is no point waiting for an appeal. The Court needs to tell VA to do something, whether that is issue a decision or issue a Statement of the Case, or certify the case to the Board of Veterans’ Appeals. That’s what people, that’s what advocates are seeking for the veterans or the veterans are seeking. As Barb was saying, in the past essentially VA had the ability to come into court and say, “Our system is really really busy, we know it takes a long time, we are really sorry but we’re busy.” The Court of Appeals for the Federal Circuit, in the decision went through how long things take at the Board and essentially said, “No you can’t just do that anymore,” you have to meet the six part test and then it was very, a little bit harsh on the Department about how long these appeals are taking and about how long just simple paperwork takes for VA to complete. Be that as it may, I don’t think any of us know how it is going to play out in practice, it is a very, very new case but some of the questions that they wrestled with are, what is unreasonable delay, especially in the VA system which as we all know takes such a long time to begin with. Kerry, do you want to take a shot on what unreasonable delay means? You can say I don’t know.
Kerry: I don’t think anybody knows. Unreasonable delay, up until now and even now, that’s almost an impossible question to answer because everyone’s case is the most important case to that person. So any delay is likely unreasonable. But you can’t paint, really, with a broad brush. If somebody is terminally ill, a month might be unreasonable, so I would say a two year wait on a Notice of Disagreement at the Regional Office is certainly unreasonable in that scenario. And the Court grappled with that same thing about the reasonableness or unreasonableness of delays. Even they implied that it is really a case-by-case situation, obviously you can look at the average amount of time an appeal is taking and then break that down by further averages amount of appeal is taking each phase in the appeal. That doesn’t answer on a case-by-case level whether something is unreasonable or not because it is just in the aggregate. So when you are talking about homeless veterans, terminally ill veterans, elderly veterans, there’s all kinds of other factors in there that could make a delay on something like that unreasonable. But I think it was interesting that the Court pointed out that when VA, without getting into too much detail, when VA had to wait on the veteran, such as VA issues a Statement of the Case, it is then up to that veteran or the claimant to submit a Form 9 to substantiate that appeal to the Board of Veterans’ Appeals. It was something like 23 days. So it wasn’t taking VA’s clients long at all, to do their part.
Zach: Yes. Veterans have to do things fast.
Kerry: Right. So, the next part for the VA to do is to certify the case to the Board of Veterans’ Appeals. Certification is an administerial action, it’s a filling out of a certification form. In some cases, it takes a few minutes. Now VA might say it takes hours. It does not take hours. It might take a couple of hours in some complicated cases. But this is not something that takes a long time but yet it was in the neighborhood of 300 and some days just for a form to be filled out. When the veteran themselves were only taking on average 23 days to submit something.
Zach: It is an interesting discussion. I think we are all sympathetic to the fact that VA does have a very, very difficult job and most people at the Department of Veterans Affairs work very, very hard and care extraordinarily about veterans but the system as a whole, the court clearly was getting frustrated with the system as a whole and how long things were taking in it. We got a question not about one of the two cases we were talking about but the Saunders decision which also came out within the last two months from the Federal Circuit which was also a reversal of the Court of Appeals for Veterans Claims which has to do with ratings about pain without an underlying disease or disability. We do have a blog on the cck-law.com website about the Saunders decision. This is kind of putting us on the spot, but Barb, and now I will put Barb on the spot, do you have a quick, maybe, summary of the Saunders decision and then people can read a little bit more about it on our website?
Barb: Sure, in Saunders—
Zach: I knew you would.
Barb: Historically, VA has required a diagnosis first and foremost before one can obtain compensation and in Saunders, the veteran did not have a specific diagnosis but everyone acknowledged that she had significant pain. The Federal Circuit ruled that, for purposes of compensation, the issue is functional loss, not the underlying diagnosis and so therefore, pain, even though it does not have a formal diagnosis, can be compensated to the extent that it causes functional loss. So it is a pretty big change in the way VA will be required to assess cases.
Kerry: Can I add something to that?
Zach: Of course, Kerry.
Kerry: Just to give an example, because we see these all the time on how Saunders would apply to a specific set of facts. Say a veteran was in the service for a number of years and complained of knee pain or back pain and maybe they diagnosed a lumbar strain or something wrong with the knee. They did x-rays, didn’t find any arthritis, no ligament tears. Everything was normal but the pain was certainly there on active duty. Veteran gets off active duty, immediately files a claim with VA. VA examines the veteran, maybe x-rays the knee or whatever it may be, still comes up normal. So they can’t come up with a diagnosis. Historically, VA would deny that claim because there is no diagnosed disability. That’s, in my opinion, and you guys weigh in here if you disagree. I think that’s a perfect example how Saunders would help a veteran because in that scenario, you’re filling a claim right after service for symptoms you had in service, you still have those symptoms. So you are not trying to bridge a gap of 20 years or something and so per Saunders, service connection would be in order for that pain that the veteran started to experience in service.
Zach: I think that’s a good point.
Zach: We’re still- many- I think that most people are still kind of digesting what Saunders means, we’re going to be digesting what Acree means. That’s the nature of appellate law is these cases come out and they take a little while to get applied but CCK is certainly on top of it, we have certainly started to cite Saunders in some of our cases. We have started to help our veteran clients with cases relying on Saunders. So I can assure anybody who is listening that we are working on it. To close down for today, as we were saying, VA does have a very, very hard job and there are millions of claims. But it is worth knowing I think that veterans can get their day in court. One thing that I did not explain when I was talking about the Court of Appeals for the Federal Circuit is when you appeal, there are- three judges will hear the case and three judges heard the case in Martin which was the case we were talking about that was talking about all the delay at VA. But it was such an important case to the judges that heard it that one of the judges, Judge Kimberly Moore, she wrote a concurring opinion, she agreed that the Court of Appeal for Veterans Claims used the wrong standard for the petitions for mandamus, but she wanted to write, by herself, to really underscore how frustrated she was, not with anybody in particular at VA, but just with the process in general.
So I wanted to close with just one paragraph from her concurrence which I thought was interesting which I think is of interest to veterans to know that you are heard in court and you can get to the highest levels of our court system in the country and judges do actually care, which is very, really, really nice especially at the end of a long process that you will be heard. She writes, “The men and women in these cases protected this country and the freedoms we hold dear. They were disabled in the service of their country, the least we can do is properly resolve their disability claims so that they have the food and shelter necessary for survival. It takes on average six and half year for veterans to challenge a veterans- a VBA determination and get a decision on remand. God help this nation if it took that long for these brave men and women to answer the call to serve and protect. We owe them more.” So I thought that was a really interesting thing for her to say and something with which I think all of us at CCK agree. So thank you very much for watching. I am Zach Stolz from Chisholm Chisholm & Kilpatrick. Thank you to Barb Cook and to Kerry Baker for joining me today. Thank you all.