Thursday, June 30, 2011
Stressors, Ashley v. Brown, 6 Vet.App.
Excerpt from decision below:
"For the reasons set forth below, the Court holds that the BVA did not provide adequate "reasons or bases" for its conclusions, in light of all the evidence presented relevant to appellant's claim.
The Board in this case did not address evidence of possible stressors
in service or provide reasons or bases for its conclusion that the veteran
did not experience stressors while in the service or for its apparent
determination that the veteran's evidence was inadequate evidence of
stressors. In particular, the Board did not mention JSESG records
indicating that he may have seen combat with guerillas, been exposed to
sniper fire, and participated in guarding his compound from the enemy. R.
at 238-41. The Board should also have discussed the relevance of evidence
that two men from the veteran's company had received Purple Hearts, and
that one member of the company was killed by enemy fire, evidence which,
on its face, would constitute evidence of the occurrence of stressful
episodes."
=================================================
Skip navigation
U.S. Court of Appeals for Veterans Claims
View | Download | Details Previous document | Next document
. 91-386
ASHLEY.386
Search Terms: JSESG RECORDS
UNITED STATES COURT OF VETERANS APPEALS
No. 91-386
Phyllis D. Ashley, Appellant,
v.
Jesse Brown,
Secretary of Veterans Affairs, Appellee.
On Appeal from the Board of Veterans' Appeals
(Decided December 2, 1993 )
Roberta L. Valente, Ruth E. Eisenberg, and Gershon M. Ratner,
National Veterans Legal Services Project, were on the briefs for appellant.
James A. Endicott, Jr., General Counsel, Norman G. Cooper, Acting
Assistant General Counsel, Andrew J. Mullen, Deputy Assistant General
Counsel, and Angela Foehl were on the brief for appellee.
Before NEBEKER, Chief Judge, and IVERS and STEINBERG, Judges.
IVERS, Judge: Phyllis D. Ashley, the widow of veteran David Lee
Ashley, appeals an October 24, 1990, decision of the Board of Veterans'
Appeals (BVA or Board) which denied her claim for burial benefits and
dependency and indemnity compensation benefits (DIC), on the ground that
the veteran's death was not caused by service-connected post-traumatic
stress disorder (PTSD). Phyllis D. Ashley, BVA 90-35610 (Oct. 24, 1990).
Counsel for appellant filed a brief and a reply brief urging remand. The
Secretary filed a brief urging affirmance. The Court has jurisdiction
over the case pursuant to 38 U.S.C.A. ù 7252(a) (West 1991). For the
reasons set forth below, the Court vacates the decision of the BVA and
remands the case for readjudication consistent with this opinion.
I. Background
The veteran served in the United States Army from July 13, 1965, to
July 12, 1968. R. at 1, 55. His induction examination was negative for
any medical or psychological defects. R. at 2-8. During his service, the
veteran served a ten-month tour of duty in the Republic of Vietnam. R.
at 56; see R. at 107. The record contains evidence from which it can
reasonably be concluded that the veteran experienced disturbing events
during that tour of duty. First, he accidently ran over a Vietnamese
civilian while driving a gasoline truck. R. at 213. Second, he saw a
friend killed on a street in Saigon. R. at 203. Third, he was exposed to
enemy fire while working on a utility pole. R. at 213-14. Finally, the
veteran and his older brother, Frank Ashley, were both on duty
simultaneously in Vietnam. R. at 89. Because of this, Frank Ashley was
given permission by the Marine Corps to return stateside. Frank Ashley
gave his younger brother, David Ashley, the veteran here, the opportunity
to come home. Four hours after David Ashley's departure from Saigon, on
September 28, 1967, his brother was killed in action. R. at 83, 92-93.
A review of the recordsNext Hit for 1967 from the Joint Services
Environmental Support Group (Previous HitJSESGNext Hit) indicates that the veteran served in a
signal company whose mission was, among others, to "provide direct and
general maintenance support to all supported units; provide over-flow
direct support maintenance that is beyond the capacity of supported
division maintenance battalions, non-di-visional [sic] units and other
direct support battalions in the Saigon/Cholon/Tan Son Nhut area." R. at
238. In July 1967, two members of the company were injured when a "
terrorist threw a homemade grenade at them in Cholon. Both received the
Purple Heart." R. at 240. In August 1967, the company came under sniper
fire, and one member was killed in action. R. at 240.
The veteran's service medical Previous HitrecordsNext Hit (SMRs) indicate that on
February 14, 1968, he was seen in a U.S. Army Hospital (name and place are
illegible) for "nervousness and tremors." R. at 24. He was prescribed
Librium (no amount noted). R. at 24. Librium is prescribed for the
relief of anxiety. Physicians' Desk Reference 2020 (1993) [hereinafter
PDR]. On February 23, 1968, he reported to the Troop Dispensary at Fort
Eustis, Virginia, for the same problem. R. at 24. The prescription was
changed from
Librium to Thorazine 25 mg. TID [three times a day]. Thorazine is a
psychotropic drug used for the manifestations of psychotic disorders.
PDR at 2327. Psychotropic means capable of modifying mental activity.
Dorland's Illustrated Medical Dictionary 1386 (1988). He was honorably
discharged in July 1968. R. at 1.
On October 28, 1987, the veteran was admitted to Portsmouth
Psychiatric Center (PPC) for alcohol dependence after his daughter
attempted suicide, claiming that she was unable to deal with the veteran's
drinking and dependence. R. at 126-29. The PPC nursing admission
assessment form stated the reason for hospitalization as "alcohol and the
war." R. at 130. On November 16, 1987, he was discharged because of lack
of insurance coverage and prescribed Antabuse, 250 mg. every evening. R.
at 122-25. Antabuse is a drug used to stop people from drinking while
they are being treated for alcoholism. Robert O'brien & Sidney Cohen,
The Encyclopedia of Drug Abuse 29 (1984). Preparatory to the early
discharge, a social worker noted "unresolved conflicts over Vietnam war
experience." R. at 152.
On February 28, 1988, the veteran was shot and killed during a
domestic dispute with his spouse, appellant here, Phyllis D. Ashley. R.
at 63-64. Phyllis Ashley was arrested and charged with murder and use of
a firearm during a felony. R. at 64. The police report indicates that
the veteran was under the influence of alcohol, and had a .38 caliber
revolver on his waist. R. at 66-68. The wife grabbed the revolver and
shot the veteran in the back after he stabbed her in the hand with a knife
. R. at 66-69, 82. On March 23, 1988, appellant filed, on behalf of
herself and her two children, David Ashley and Carrie Ashley, an
Application for Dependency and Indemnity Compensation or Death Pension by
Surviving Spouse or Child , claiming that the veteran's death was service
connected as a result of PTSD. R. at 73, 77. On July 25, 1988, a grand
jury refused to indict Phyllis Ashley on the charges. R. at 101. On
January 10, 1989, a Department of Veterans Affairs (VA) Regional Office (
RO) Administrative Decision held that the widow did not wrongfully cause
the veteran's death, and thus was not precluded by 38 C.F.R. ù 3.11 from
receiving DIC benefits. R. at 102.
In support of her DIC application, appellant submitted letters from
herself, the veteran's parents, her children, and friends that the veteran
was an alcoholic, that he
carried knives and guns, and that he threatened to use them when he was
upset. R. at 84-91, 199. A letter from Willie Ashley, the veteran's
father, stated that his son had not been the same since he returned from
Vietnam. He indicated:
He had threatened to kill his children, his wife and me many
times. He has even held a 38 pistol to my neck for more than
ten minutes. He drank and wasted a lot of his pay check. I
paid for most of the things he wanted when he didn't have the
money to get them. He was violent if I didn't have the money
to get them. He was violent if I didn't give him the things
he asked for.
David never acted like himself after he came home from the war.
Something happened to his mind and he couldn't get the war off
his mind.
R. at 83. On May 2, 1989, the RO denied service-connected disability and
held:
We, therefore, see no connection between the vet's behavior
after service which led to his demise and his active military
service. Furthermore, there is absolutely no evidence to
establish the existence of PTSD. There is no evidence
confirming his actual involvement in a life threatening
situation while in service.
R. at 107. On October 12, 1989, appellant filed a Notice of Disagreement,
and the RO issued a Statement of the Case. R. at 111-12.
On November 30, 1989, appellant appealed to the BVA, claiming that,
although the veteran was not definitively diagnosed with PTSD, his traumas,
survival guilt, and alcoholism were all manifestations of PTSD. R. at 117
. In support of her appeal, appellant submitted additional evidence
consisting of a report from Dr. David Grady, a psychologist who served as
a participating researcher and contributor on the congressionally mandated
National Vietnam Veterans Readjustment Study. R. at 195. Dr. Grady's
additional credentials consisted of eight years of experience as a VA-
certified Veterans Service Officer and seven years as a member of the VA's
Advisory Committee on the Readjustment Problems of Vietnam Veterans. Id.
Dr. Grady stated that in his expert opinion the veteran had been suffering
from PTSD as defined by the Diagnostic and Statistical Manual of Mental
Disorders (DSM-III-R), and that his alcohol dependence was a manifestation
of his PTSD. R. at 195-97. Dr. Grady based his opinion on his evaluation
of the veteran's military
Previous HitrecordsNext Hit, post-service treatment Previous HitrecordsNext Hit, and personal statements from
family and friends. R. at 195. In a decision dated October 24, 1990, the
Board denied service connection for the cause of the veteran's death,
stating that symptoms characteristic of PTSD were not noted in the
clinical record, and that the facts did not warrant an independent medical
expert evaluation or Chief Medical Director opinion in the case. Ashley,
BVA 90-35610, at 5. A timely appeal to this Court followed.
II. Analysis
Determinations regarding whether a particular disability was incurred
in or aggravated by service and the degree of impairment for purposes of
rating such a disability are findings of fact. Stegman v. Derwinski, 3
Vet.App. 228, 229-30 (1992); Harrison v. Principi, 3 Vet.App. 532, 533 (
1992); Lovelace v. Derwinski, 1 Vet.App. 73, 74 (1990); Gilbert v.
Derwinski, 1 Vet.App. 49, 52-53 (1990). Factual findings of the BVA will
not be overturned by this Court unless they fail to meet the "clearly
erroneous" standard of review. Gilbert, 1 Vet.App. at 52-53. Under this
standard, "if there is a 'plausible' basis in the record for the factual
determinations of the BVA, even if this Court might not have reached the
same factual determinations, [the Court] cannot overturn them." Id. at 53.
Pursuant to 38 U.S.C.A. ù 7104(d)(1) (West 1991), a final decision
of the Board must include "a written statement of the Board's findings and
conclusions, and the reasons or bases for those findings and conclusions,
on all material issues of fact and law presented on the record. . . ."
This Court has held that the BVA must "articulate with reasonable clarity
its 'reasons or bases' for decisions, and in order to facilitate effective
judicial review, the Board must identify those findings it deems crucial
to its decision and account for the evidence which it finds to be
persuasive or unpersuasive." Gilbert, 1 Vet.App. at 57. Where the Board
fails to fulfill this duty, the Court may be precluded from effectively
reviewing the adjudication. Meeks v. Brown, 5 Vet.App. 284, 288 (1993);
Browder v. Brown, 5 Vet.App. 268, 272 (1993). For the reasons set forth
below, the Court holds that the BVA did not provide adequate "reasons or
bases" for its conclusions, in light of all the evidence presented
relevant to appellant's claim.
The Board in this case did not address evidence of possible stressors
in service or provide reasons or bases for its conclusion that the veteran
did not experience stressors while in the service or for its apparent
determination that the veteran's evidence was inadequate evidence of
stressors. In particular, the Board did not mention Previous HitJSESGNext Hit Previous HitrecordsNext Hit
indicating that he may have seen combat with guerillas, been exposed to
sniper fire, and participated in guarding his compound from the enemy. R.
at 238-41. The Board should also have discussed the relevance of evidence
that two men from the veteran's company had received Purple Hearts, and
that one member of the company was killed by enemy fire, evidence which,
on its face, would constitute evidence of the occurrence of stressful
episodes. Department of Veterans Affairs Adjudication Procedure Manual (
M21-1), Part VI, para. 7.46e.
Here, the BVA decision failed to include an analysis of the March 27,
1989, hearing testimony, including a discussion of the credibility and the
probative value of the testimony of the veteran's father, and of appellant
regarding the veteran's behavior after returning from Vietnam. R. at 220.
A claimant's sworn testimony is evidence which the Board must consider,
and the Board must "provide adequate reasons or bases for its rejection of
the appellant's testimonial evidence." Pruitt v. Derwinski, 2 Vet.App.
83, 85 (1992). The VA's statutory "duty to assist" the veteran under 38 U.
S.C.A. ù 5107(a) to develop the facts pertinent to his claim must extend
the liberal reading given to a veteran's substantive appeal "to include
issues raised in all documents or oral testimony submitted prior to the
BVA decision." EF v. Derwinski, 1 Vet.App. 324, 326 (1991); see Suttmann
v. Brown, 5 Vet.App. 127, 132 (1993). In addition, the BVA decision did
not provide reasons or bases for rejecting supporting documents from
friends and family. Ashley, BVA 90-35610, at 4-5.
According to 38 U.S.C.A. ù 1154(b) (West 1991), the Board is
required to consider lay evidence of service connection or aggravation.
The section indicates:
In the case of any veteran who engaged in combat with the enemy
in active service with a military, naval, or air organization
of the United States during a period of war, campaign, or
expedition, the Secretary shall accept as sufficient proof of
service-connection of any disease or injury alleged to have
been incurred in or aggravated by such service satisfactory
lay or other evidence of service incurrence or aggravation of
such injury or disease, if consistent with the circumstances,
conditions, or hardships of such service, notwithstanding the
fact that there is no official record of such incurrence or
aggravation in such service . . . .
Id. (Emphasis added). Section 3.304(d) reiterates that satisfactory lay
evidence alone will be accepted as sufficient proof of service connection
:
Combat. Satisfactory lay or other evidence that an injury or
disease was incurred or aggravated in combat will be accepted
as sufficient proof of service connection if the evidence is
consistent with the circumstances, conditions or hardships of
such service even though there is no official record of such
incurrence or aggravation.
38 C.F.R. ù 3.304(d) (1993) (emphasis added).
In a case similar to the case at bar, Sheets v. Derwinski, 2 Vet.App.
512 (1992), where a World War II veteran committed suicide and his wife
filed a claim for service connection for her husband's death, contending
that the suicide was the result of PTSD, this Court held that under 38 U.
S.C.A. ù 1154(b), the fact that lay evidence is unsupported by clinical
Previous HitrecordsNext Hit does not allow the conclusion that the lay evidence is therefore
uncorroborated and necessarily an insufficient justification for service
connection. Sheets also held that the widow's claim and the evidence in
support of her position that the veteran's suicide resulted from allegedly
service-incurred PTSD required consideration of the benefit-of-the-doubt
doctrine, especially where the BVA cited no evidence or facts by which to
impeach or contradict Mrs. Sheets' claim. Sheets, 2 Vet.App. at 514, 517
. This case also held that the BVA failed in its duty to assist the
veteran's widow in developing the facts pertinent to her claim. Id.
In support of the Board's decision, the Secretary argues that,
because appellant's SMRs do not reveal a diagnosis of PTSD during service,
because clinical Previous HitrecordsNext Hit establish alcohol dependence rather than PTSD,
and because the cause of death of the veteran was a bullet wound, service
connection is unwarranted. Secretary's Brief at 14-15. On the other hand,
appellant contends that the veteran's death was service connected; she
argues that the veteran died from a gunshot wound due to his violence and
that, but for his experiences
in Vietnam, he would not have been so violent. She further contends that
PTSD was his primary illness and that his alcohol abuse was an attempt to
self-medicate his service-incurred PTSD. As support for these contentions,
appellant points to the testimony of her father-in-law, the supporting
documentation from friends and family, and the opinion of Dr. Grady. R.
at 77-92, 195-98. Appellant also contends that the Secretary has neither
solicited nor produced an opinion contrary to Dr. Grady's diagnosis that
the veteran's alcohol abuse is secondary to his PTSD. Ashley, BVA 90-
35610, at 1-6.
In order to establish service connection for the cause of a veteran's
death, the evidence must show that a disability incurred in or aggravated
by service was either the principal cause of death or a contributory cause
of death. 38 C.F.R. ù 3.312(a) (1993). A service-connected disability
will be considered to be the principal cause of death when it, either
singly or jointly with some other condition, was the immediate or
underlying cause of death or was etiologically related to the cause of
death. 38 C.F.R. ù 3.312(b) (1993). In defining what constitutes a "
contributory cause of death," VA regulations provide:
Contributory cause of death is inherently one not related to
the principal cause. In determining whether the service-
connected disability contributed to death, it must be shown
that it contributed substantially or materially; that it
combined to cause death; that it aided or lent assistance to
the production of death. It is not sufficient to show that it
casually shared in producing death, but rather it must be shown
that there was a causal connection.
38 C.F.R. ù 3.312(c)(1) (1993).
The Board erred by employing its own unsubstantiated medical opinion
to answer whether alcohol dependence resulting from PTSD may have been the "
primary or contributory" cause of the veteran's death. In Colvin v.
Derwinski, 1 Vet.App. 171 (1991), we held that the Board may not
substitute its own medical judgment for independent medical evidence.
See also Cosman v. Principi, 3 Vet.App. 503, 506 (1992); Hatlestad v.
Derwinski, 3 Vet.App. 213, 217 (1992) (Hatlestad II); Budnik v. Derwinski,
3 Vet.App. 185, 187 (1992); Quarles v. Derwinski, 3 Vet.App. 129, 139 (
1992); Tobin v. Derwinski, 2 Vet.App. 34, 39 (1991). While the Board is
not required to accept the medical authority supporting a claim, it must
provide its reasons for rejecting such evidence and, more importantly,
must
provide a medical basis other than its own unsubstantiated conclusions to
support its ultimate decision. Colvin, 1 Vet.App. at 175; see also Simon
v. Derwinski, 2 Vet.App. 621, 622 (1992); Hatlestad v. Derwinski, 1 Vet.
App. 164, 169 (1991) (Hatlestad I); Gilbert, 1 Vet.App. at 57; Murphy v.
Derwinski, 1 Vet.App. 78, 81 (1990). The BVA is obliged under 38 U.S.C.A.
ù 5107(a) to assist claimants in developing the facts pertinent to their
claims. Under this provision, a claimant bears the initial burden of
submitting evidence "sufficient to justify a belief by a fair and
impartial individual that the claim is well grounded." 38 U.S.C.A. ù
5107(a) (West 1991). "A well[-]grounded claim is a plausible claim, one
which is meritorious on its own or capable of substantiation. Such a
claim need not be conclusive but only possible to satisfy the initial
burden" required by the statute. Sheets, 2 Vet.App. at 517; Moore v.
Derwinski, 1 Vet.App. 401, 405 (1991); Murphy, 1 Vet.App. at 81. Here,
the Court holds that appellant, by means of Dr. Grady's opinion and
citations to medical treatises, has provided competent medical evidence, i.
e., evidence which may justify a belief in a fair and impartial individual
that the claim is "plausible" or "possible," to meet the threshold well-
grounded-claim requirement with respect to her claim for service
connection for the cause of the veteran's death. Moreover, in its
discussion, the BVA stated that "[s]everal symptoms, such as mood swings,
flat affect, restlessness, night sweats, anxiety and tremors have been
highlighted, but they are consistent with the diagnosis of alcohol
dependence and are not specific to only PTSD." Ashley, BVA 90-35610, at 5 (
emphasis added).
In Sheets, the Court held that the issues presented an appropriate
case in which to seek an advisory medical opinion as to the relationship
between the "veteran's combat experience, his behavior, and his death on
the one hand, and the causes and symptoms associated with PTSD on the
other." Sheets, 2. Vet.App. at 517. Here, as in Sheets, "such action
would be a viable way for the BVA to fulfill its duty to assist the
appellant." Id.; see 38 U.S.C.A. ù 5107(a).
Nevertheless, in the instant case the Board concluded:
A private psychologist opined in August 1990 that the veteran
was suffering from PTSD at the time of his death. His opinion
is based, in part, on statements from relatives and friends of
the
veteran, who described a noticeable change in the veteran's
personality when he returned from Vietnam, his problems with
drinking, uncontrollable temper, guilt over surviving his
brother, startle response to sudden loud noises, flashbacks,
nightmares and social isolation. . . . However, the only
clinical evidence recorded while the veteran was alive, records
from a private psychiatric center from late 1987, do not
demonstrate PTSD. The final diagnosis then was alcohol
dependence. The private psychologist stated in August 1990
that it was not unusual for the veteran, while undergoing
treatment for alcoholism, not to identify problems with PTSD,
but the symptoms characteristic of PTSD were not noted in
clinical records, even though the veteran was a patient for
three weeks. Several symptoms, such as mood swings, flat
affect, restlessness, night sweats, anxiety and tremors have
been highlighted, but they are consistent with the diagnosis of
alcohol dependence and are not specific to only PTSD. Although
the reason for hospitalization was stated as "alcohol and the
war," and "unresolved conflicts over Vietnam war experience"
was noted in progress notes, the constellation of symptoms
characteristic of PTSD was not clinically demonstrated.
Additionally, there was no relationship shown between his
psychiatric symptoms and specific stressors experienced during
his Vietnam service.
Ashley, BVA 90-35610, at 4-5. Having said that, the Board, in its effort
to contradict Dr. Grady's opinion that the veteran suffered symptoms of
PTSD, does not point to any evidence in the record that appellant's
alcoholism could not be diagnostic of, or secondary to, PTSD or could not
have stemmed from PTSD. This Court has held:
Even where there is a lack of official records to corroborate
that an injury or disease was incurred or aggravated during
service (including a period of combat), the [Secretary] is
required to accept as sufficient proof of service connection
satisfactory lay or other evidence that an injury or disease
was incurred or aggravated during such period of service, if
the evidence is consistent with the circumstances, conditions,
or hardships of such service.
Hayes v. Brown, 5 Vet.App. 60, 66 (1993); 38 U.S.C.A. ù 1154(b); 38 C.F.
R. ù 3.304(d). It is not the function of this Court to speculate on the
relationship between any service-connected disabilities a veteran may have
and his or her cause of death; rather, it is the function of this Court to
decide whether the Board's factual determinations on the issue
constitute clear error. See Shoemaker v. Derwinski, 3 Vet.App. 248, 254 (
1992); Gilbert, 1 Vet.App. at 53.
This Court has held that the failure of the BVA in certain cases to
consider the benefit-of-the-doubt doctrine and set forth clearly its
reasons for not applying it constitutes error. Sheets, 2 Vet.App. at 516;
see O'Hare v. Derwinski, 1 Vet.App. 365, 367 (1991). The doctrine
requires that where there "is an approximate balance of positive and
negative evidence regarding the merits of an issue material to the
determination of the matter, the benefit of the doubt in resolving each
issue shall be given to the claimant." 38 U.S.C.A. ù 5107(b) (West 1991
). The BVA decision, in stating that the veteran's symptoms "are not
specific to only PTSD," indicates that the evidence may be in equipoise,
and that the appellant may be entitled to the benefit of the doubt. In
Williams v. Brown, 4 Vet.App. 270, 273-74 (1993), the Court held that "
where there is significant evidence in support of an appellant's claim, as
there is here, the Board must provide a satisfactory explanation as to why
the evidence was not in equipoise."
III. Conclusion
Accordingly, upon consideration of the record, appellant's brief, and
the Secretary's brief, the Court holds that the decision of the BVA is
VACATED, and the case is REMANDED for readjudication consistent with this
opinion.
"For the reasons set forth below, the Court holds that the BVA did not provide adequate "reasons or bases" for its conclusions, in light of all the evidence presented relevant to appellant's claim.
The Board in this case did not address evidence of possible stressors
in service or provide reasons or bases for its conclusion that the veteran
did not experience stressors while in the service or for its apparent
determination that the veteran's evidence was inadequate evidence of
stressors. In particular, the Board did not mention JSESG records
indicating that he may have seen combat with guerillas, been exposed to
sniper fire, and participated in guarding his compound from the enemy. R.
at 238-41. The Board should also have discussed the relevance of evidence
that two men from the veteran's company had received Purple Hearts, and
that one member of the company was killed by enemy fire, evidence which,
on its face, would constitute evidence of the occurrence of stressful
episodes."
=================================================
Skip navigation
U.S. Court of Appeals for Veterans Claims
View | Download | Details Previous document | Next document
. 91-386
ASHLEY.386
Search Terms: JSESG RECORDS
UNITED STATES COURT OF VETERANS APPEALS
No. 91-386
Phyllis D. Ashley, Appellant,
v.
Jesse Brown,
Secretary of Veterans Affairs, Appellee.
On Appeal from the Board of Veterans' Appeals
(Decided December 2, 1993 )
Roberta L. Valente, Ruth E. Eisenberg, and Gershon M. Ratner,
National Veterans Legal Services Project, were on the briefs for appellant.
James A. Endicott, Jr., General Counsel, Norman G. Cooper, Acting
Assistant General Counsel, Andrew J. Mullen, Deputy Assistant General
Counsel, and Angela Foehl were on the brief for appellee.
Before NEBEKER, Chief Judge, and IVERS and STEINBERG, Judges.
IVERS, Judge: Phyllis D. Ashley, the widow of veteran David Lee
Ashley, appeals an October 24, 1990, decision of the Board of Veterans'
Appeals (BVA or Board) which denied her claim for burial benefits and
dependency and indemnity compensation benefits (DIC), on the ground that
the veteran's death was not caused by service-connected post-traumatic
stress disorder (PTSD). Phyllis D. Ashley, BVA 90-35610 (Oct. 24, 1990).
Counsel for appellant filed a brief and a reply brief urging remand. The
Secretary filed a brief urging affirmance. The Court has jurisdiction
over the case pursuant to 38 U.S.C.A. ù 7252(a) (West 1991). For the
reasons set forth below, the Court vacates the decision of the BVA and
remands the case for readjudication consistent with this opinion.
I. Background
The veteran served in the United States Army from July 13, 1965, to
July 12, 1968. R. at 1, 55. His induction examination was negative for
any medical or psychological defects. R. at 2-8. During his service, the
veteran served a ten-month tour of duty in the Republic of Vietnam. R.
at 56; see R. at 107. The record contains evidence from which it can
reasonably be concluded that the veteran experienced disturbing events
during that tour of duty. First, he accidently ran over a Vietnamese
civilian while driving a gasoline truck. R. at 213. Second, he saw a
friend killed on a street in Saigon. R. at 203. Third, he was exposed to
enemy fire while working on a utility pole. R. at 213-14. Finally, the
veteran and his older brother, Frank Ashley, were both on duty
simultaneously in Vietnam. R. at 89. Because of this, Frank Ashley was
given permission by the Marine Corps to return stateside. Frank Ashley
gave his younger brother, David Ashley, the veteran here, the opportunity
to come home. Four hours after David Ashley's departure from Saigon, on
September 28, 1967, his brother was killed in action. R. at 83, 92-93.
A review of the recordsNext Hit for 1967 from the Joint Services
Environmental Support Group (Previous HitJSESGNext Hit) indicates that the veteran served in a
signal company whose mission was, among others, to "provide direct and
general maintenance support to all supported units; provide over-flow
direct support maintenance that is beyond the capacity of supported
division maintenance battalions, non-di-visional [sic] units and other
direct support battalions in the Saigon/Cholon/Tan Son Nhut area." R. at
238. In July 1967, two members of the company were injured when a "
terrorist threw a homemade grenade at them in Cholon. Both received the
Purple Heart." R. at 240. In August 1967, the company came under sniper
fire, and one member was killed in action. R. at 240.
The veteran's service medical Previous HitrecordsNext Hit (SMRs) indicate that on
February 14, 1968, he was seen in a U.S. Army Hospital (name and place are
illegible) for "nervousness and tremors." R. at 24. He was prescribed
Librium (no amount noted). R. at 24. Librium is prescribed for the
relief of anxiety. Physicians' Desk Reference 2020 (1993) [hereinafter
PDR]. On February 23, 1968, he reported to the Troop Dispensary at Fort
Eustis, Virginia, for the same problem. R. at 24. The prescription was
changed from
Librium to Thorazine 25 mg. TID [three times a day]. Thorazine is a
psychotropic drug used for the manifestations of psychotic disorders.
PDR at 2327. Psychotropic means capable of modifying mental activity.
Dorland's Illustrated Medical Dictionary 1386 (1988). He was honorably
discharged in July 1968. R. at 1.
On October 28, 1987, the veteran was admitted to Portsmouth
Psychiatric Center (PPC) for alcohol dependence after his daughter
attempted suicide, claiming that she was unable to deal with the veteran's
drinking and dependence. R. at 126-29. The PPC nursing admission
assessment form stated the reason for hospitalization as "alcohol and the
war." R. at 130. On November 16, 1987, he was discharged because of lack
of insurance coverage and prescribed Antabuse, 250 mg. every evening. R.
at 122-25. Antabuse is a drug used to stop people from drinking while
they are being treated for alcoholism. Robert O'brien & Sidney Cohen,
The Encyclopedia of Drug Abuse 29 (1984). Preparatory to the early
discharge, a social worker noted "unresolved conflicts over Vietnam war
experience." R. at 152.
On February 28, 1988, the veteran was shot and killed during a
domestic dispute with his spouse, appellant here, Phyllis D. Ashley. R.
at 63-64. Phyllis Ashley was arrested and charged with murder and use of
a firearm during a felony. R. at 64. The police report indicates that
the veteran was under the influence of alcohol, and had a .38 caliber
revolver on his waist. R. at 66-68. The wife grabbed the revolver and
shot the veteran in the back after he stabbed her in the hand with a knife
. R. at 66-69, 82. On March 23, 1988, appellant filed, on behalf of
herself and her two children, David Ashley and Carrie Ashley, an
Application for Dependency and Indemnity Compensation or Death Pension by
Surviving Spouse or Child , claiming that the veteran's death was service
connected as a result of PTSD. R. at 73, 77. On July 25, 1988, a grand
jury refused to indict Phyllis Ashley on the charges. R. at 101. On
January 10, 1989, a Department of Veterans Affairs (VA) Regional Office (
RO) Administrative Decision held that the widow did not wrongfully cause
the veteran's death, and thus was not precluded by 38 C.F.R. ù 3.11 from
receiving DIC benefits. R. at 102.
In support of her DIC application, appellant submitted letters from
herself, the veteran's parents, her children, and friends that the veteran
was an alcoholic, that he
carried knives and guns, and that he threatened to use them when he was
upset. R. at 84-91, 199. A letter from Willie Ashley, the veteran's
father, stated that his son had not been the same since he returned from
Vietnam. He indicated:
He had threatened to kill his children, his wife and me many
times. He has even held a 38 pistol to my neck for more than
ten minutes. He drank and wasted a lot of his pay check. I
paid for most of the things he wanted when he didn't have the
money to get them. He was violent if I didn't have the money
to get them. He was violent if I didn't give him the things
he asked for.
David never acted like himself after he came home from the war.
Something happened to his mind and he couldn't get the war off
his mind.
R. at 83. On May 2, 1989, the RO denied service-connected disability and
held:
We, therefore, see no connection between the vet's behavior
after service which led to his demise and his active military
service. Furthermore, there is absolutely no evidence to
establish the existence of PTSD. There is no evidence
confirming his actual involvement in a life threatening
situation while in service.
R. at 107. On October 12, 1989, appellant filed a Notice of Disagreement,
and the RO issued a Statement of the Case. R. at 111-12.
On November 30, 1989, appellant appealed to the BVA, claiming that,
although the veteran was not definitively diagnosed with PTSD, his traumas,
survival guilt, and alcoholism were all manifestations of PTSD. R. at 117
. In support of her appeal, appellant submitted additional evidence
consisting of a report from Dr. David Grady, a psychologist who served as
a participating researcher and contributor on the congressionally mandated
National Vietnam Veterans Readjustment Study. R. at 195. Dr. Grady's
additional credentials consisted of eight years of experience as a VA-
certified Veterans Service Officer and seven years as a member of the VA's
Advisory Committee on the Readjustment Problems of Vietnam Veterans. Id.
Dr. Grady stated that in his expert opinion the veteran had been suffering
from PTSD as defined by the Diagnostic and Statistical Manual of Mental
Disorders (DSM-III-R), and that his alcohol dependence was a manifestation
of his PTSD. R. at 195-97. Dr. Grady based his opinion on his evaluation
of the veteran's military
Previous HitrecordsNext Hit, post-service treatment Previous HitrecordsNext Hit, and personal statements from
family and friends. R. at 195. In a decision dated October 24, 1990, the
Board denied service connection for the cause of the veteran's death,
stating that symptoms characteristic of PTSD were not noted in the
clinical record, and that the facts did not warrant an independent medical
expert evaluation or Chief Medical Director opinion in the case. Ashley,
BVA 90-35610, at 5. A timely appeal to this Court followed.
II. Analysis
Determinations regarding whether a particular disability was incurred
in or aggravated by service and the degree of impairment for purposes of
rating such a disability are findings of fact. Stegman v. Derwinski, 3
Vet.App. 228, 229-30 (1992); Harrison v. Principi, 3 Vet.App. 532, 533 (
1992); Lovelace v. Derwinski, 1 Vet.App. 73, 74 (1990); Gilbert v.
Derwinski, 1 Vet.App. 49, 52-53 (1990). Factual findings of the BVA will
not be overturned by this Court unless they fail to meet the "clearly
erroneous" standard of review. Gilbert, 1 Vet.App. at 52-53. Under this
standard, "if there is a 'plausible' basis in the record for the factual
determinations of the BVA, even if this Court might not have reached the
same factual determinations, [the Court] cannot overturn them." Id. at 53.
Pursuant to 38 U.S.C.A. ù 7104(d)(1) (West 1991), a final decision
of the Board must include "a written statement of the Board's findings and
conclusions, and the reasons or bases for those findings and conclusions,
on all material issues of fact and law presented on the record. . . ."
This Court has held that the BVA must "articulate with reasonable clarity
its 'reasons or bases' for decisions, and in order to facilitate effective
judicial review, the Board must identify those findings it deems crucial
to its decision and account for the evidence which it finds to be
persuasive or unpersuasive." Gilbert, 1 Vet.App. at 57. Where the Board
fails to fulfill this duty, the Court may be precluded from effectively
reviewing the adjudication. Meeks v. Brown, 5 Vet.App. 284, 288 (1993);
Browder v. Brown, 5 Vet.App. 268, 272 (1993). For the reasons set forth
below, the Court holds that the BVA did not provide adequate "reasons or
bases" for its conclusions, in light of all the evidence presented
relevant to appellant's claim.
The Board in this case did not address evidence of possible stressors
in service or provide reasons or bases for its conclusion that the veteran
did not experience stressors while in the service or for its apparent
determination that the veteran's evidence was inadequate evidence of
stressors. In particular, the Board did not mention Previous HitJSESGNext Hit Previous HitrecordsNext Hit
indicating that he may have seen combat with guerillas, been exposed to
sniper fire, and participated in guarding his compound from the enemy. R.
at 238-41. The Board should also have discussed the relevance of evidence
that two men from the veteran's company had received Purple Hearts, and
that one member of the company was killed by enemy fire, evidence which,
on its face, would constitute evidence of the occurrence of stressful
episodes. Department of Veterans Affairs Adjudication Procedure Manual (
M21-1), Part VI, para. 7.46e.
Here, the BVA decision failed to include an analysis of the March 27,
1989, hearing testimony, including a discussion of the credibility and the
probative value of the testimony of the veteran's father, and of appellant
regarding the veteran's behavior after returning from Vietnam. R. at 220.
A claimant's sworn testimony is evidence which the Board must consider,
and the Board must "provide adequate reasons or bases for its rejection of
the appellant's testimonial evidence." Pruitt v. Derwinski, 2 Vet.App.
83, 85 (1992). The VA's statutory "duty to assist" the veteran under 38 U.
S.C.A. ù 5107(a) to develop the facts pertinent to his claim must extend
the liberal reading given to a veteran's substantive appeal "to include
issues raised in all documents or oral testimony submitted prior to the
BVA decision." EF v. Derwinski, 1 Vet.App. 324, 326 (1991); see Suttmann
v. Brown, 5 Vet.App. 127, 132 (1993). In addition, the BVA decision did
not provide reasons or bases for rejecting supporting documents from
friends and family. Ashley, BVA 90-35610, at 4-5.
According to 38 U.S.C.A. ù 1154(b) (West 1991), the Board is
required to consider lay evidence of service connection or aggravation.
The section indicates:
In the case of any veteran who engaged in combat with the enemy
in active service with a military, naval, or air organization
of the United States during a period of war, campaign, or
expedition, the Secretary shall accept as sufficient proof of
service-connection of any disease or injury alleged to have
been incurred in or aggravated by such service satisfactory
lay or other evidence of service incurrence or aggravation of
such injury or disease, if consistent with the circumstances,
conditions, or hardships of such service, notwithstanding the
fact that there is no official record of such incurrence or
aggravation in such service . . . .
Id. (Emphasis added). Section 3.304(d) reiterates that satisfactory lay
evidence alone will be accepted as sufficient proof of service connection
:
Combat. Satisfactory lay or other evidence that an injury or
disease was incurred or aggravated in combat will be accepted
as sufficient proof of service connection if the evidence is
consistent with the circumstances, conditions or hardships of
such service even though there is no official record of such
incurrence or aggravation.
38 C.F.R. ù 3.304(d) (1993) (emphasis added).
In a case similar to the case at bar, Sheets v. Derwinski, 2 Vet.App.
512 (1992), where a World War II veteran committed suicide and his wife
filed a claim for service connection for her husband's death, contending
that the suicide was the result of PTSD, this Court held that under 38 U.
S.C.A. ù 1154(b), the fact that lay evidence is unsupported by clinical
Previous HitrecordsNext Hit does not allow the conclusion that the lay evidence is therefore
uncorroborated and necessarily an insufficient justification for service
connection. Sheets also held that the widow's claim and the evidence in
support of her position that the veteran's suicide resulted from allegedly
service-incurred PTSD required consideration of the benefit-of-the-doubt
doctrine, especially where the BVA cited no evidence or facts by which to
impeach or contradict Mrs. Sheets' claim. Sheets, 2 Vet.App. at 514, 517
. This case also held that the BVA failed in its duty to assist the
veteran's widow in developing the facts pertinent to her claim. Id.
In support of the Board's decision, the Secretary argues that,
because appellant's SMRs do not reveal a diagnosis of PTSD during service,
because clinical Previous HitrecordsNext Hit establish alcohol dependence rather than PTSD,
and because the cause of death of the veteran was a bullet wound, service
connection is unwarranted. Secretary's Brief at 14-15. On the other hand,
appellant contends that the veteran's death was service connected; she
argues that the veteran died from a gunshot wound due to his violence and
that, but for his experiences
in Vietnam, he would not have been so violent. She further contends that
PTSD was his primary illness and that his alcohol abuse was an attempt to
self-medicate his service-incurred PTSD. As support for these contentions,
appellant points to the testimony of her father-in-law, the supporting
documentation from friends and family, and the opinion of Dr. Grady. R.
at 77-92, 195-98. Appellant also contends that the Secretary has neither
solicited nor produced an opinion contrary to Dr. Grady's diagnosis that
the veteran's alcohol abuse is secondary to his PTSD. Ashley, BVA 90-
35610, at 1-6.
In order to establish service connection for the cause of a veteran's
death, the evidence must show that a disability incurred in or aggravated
by service was either the principal cause of death or a contributory cause
of death. 38 C.F.R. ù 3.312(a) (1993). A service-connected disability
will be considered to be the principal cause of death when it, either
singly or jointly with some other condition, was the immediate or
underlying cause of death or was etiologically related to the cause of
death. 38 C.F.R. ù 3.312(b) (1993). In defining what constitutes a "
contributory cause of death," VA regulations provide:
Contributory cause of death is inherently one not related to
the principal cause. In determining whether the service-
connected disability contributed to death, it must be shown
that it contributed substantially or materially; that it
combined to cause death; that it aided or lent assistance to
the production of death. It is not sufficient to show that it
casually shared in producing death, but rather it must be shown
that there was a causal connection.
38 C.F.R. ù 3.312(c)(1) (1993).
The Board erred by employing its own unsubstantiated medical opinion
to answer whether alcohol dependence resulting from PTSD may have been the "
primary or contributory" cause of the veteran's death. In Colvin v.
Derwinski, 1 Vet.App. 171 (1991), we held that the Board may not
substitute its own medical judgment for independent medical evidence.
See also Cosman v. Principi, 3 Vet.App. 503, 506 (1992); Hatlestad v.
Derwinski, 3 Vet.App. 213, 217 (1992) (Hatlestad II); Budnik v. Derwinski,
3 Vet.App. 185, 187 (1992); Quarles v. Derwinski, 3 Vet.App. 129, 139 (
1992); Tobin v. Derwinski, 2 Vet.App. 34, 39 (1991). While the Board is
not required to accept the medical authority supporting a claim, it must
provide its reasons for rejecting such evidence and, more importantly,
must
provide a medical basis other than its own unsubstantiated conclusions to
support its ultimate decision. Colvin, 1 Vet.App. at 175; see also Simon
v. Derwinski, 2 Vet.App. 621, 622 (1992); Hatlestad v. Derwinski, 1 Vet.
App. 164, 169 (1991) (Hatlestad I); Gilbert, 1 Vet.App. at 57; Murphy v.
Derwinski, 1 Vet.App. 78, 81 (1990). The BVA is obliged under 38 U.S.C.A.
ù 5107(a) to assist claimants in developing the facts pertinent to their
claims. Under this provision, a claimant bears the initial burden of
submitting evidence "sufficient to justify a belief by a fair and
impartial individual that the claim is well grounded." 38 U.S.C.A. ù
5107(a) (West 1991). "A well[-]grounded claim is a plausible claim, one
which is meritorious on its own or capable of substantiation. Such a
claim need not be conclusive but only possible to satisfy the initial
burden" required by the statute. Sheets, 2 Vet.App. at 517; Moore v.
Derwinski, 1 Vet.App. 401, 405 (1991); Murphy, 1 Vet.App. at 81. Here,
the Court holds that appellant, by means of Dr. Grady's opinion and
citations to medical treatises, has provided competent medical evidence, i.
e., evidence which may justify a belief in a fair and impartial individual
that the claim is "plausible" or "possible," to meet the threshold well-
grounded-claim requirement with respect to her claim for service
connection for the cause of the veteran's death. Moreover, in its
discussion, the BVA stated that "[s]everal symptoms, such as mood swings,
flat affect, restlessness, night sweats, anxiety and tremors have been
highlighted, but they are consistent with the diagnosis of alcohol
dependence and are not specific to only PTSD." Ashley, BVA 90-35610, at 5 (
emphasis added).
In Sheets, the Court held that the issues presented an appropriate
case in which to seek an advisory medical opinion as to the relationship
between the "veteran's combat experience, his behavior, and his death on
the one hand, and the causes and symptoms associated with PTSD on the
other." Sheets, 2. Vet.App. at 517. Here, as in Sheets, "such action
would be a viable way for the BVA to fulfill its duty to assist the
appellant." Id.; see 38 U.S.C.A. ù 5107(a).
Nevertheless, in the instant case the Board concluded:
A private psychologist opined in August 1990 that the veteran
was suffering from PTSD at the time of his death. His opinion
is based, in part, on statements from relatives and friends of
the
veteran, who described a noticeable change in the veteran's
personality when he returned from Vietnam, his problems with
drinking, uncontrollable temper, guilt over surviving his
brother, startle response to sudden loud noises, flashbacks,
nightmares and social isolation. . . . However, the only
clinical evidence recorded while the veteran was alive, records
from a private psychiatric center from late 1987, do not
demonstrate PTSD. The final diagnosis then was alcohol
dependence. The private psychologist stated in August 1990
that it was not unusual for the veteran, while undergoing
treatment for alcoholism, not to identify problems with PTSD,
but the symptoms characteristic of PTSD were not noted in
clinical records, even though the veteran was a patient for
three weeks. Several symptoms, such as mood swings, flat
affect, restlessness, night sweats, anxiety and tremors have
been highlighted, but they are consistent with the diagnosis of
alcohol dependence and are not specific to only PTSD. Although
the reason for hospitalization was stated as "alcohol and the
war," and "unresolved conflicts over Vietnam war experience"
was noted in progress notes, the constellation of symptoms
characteristic of PTSD was not clinically demonstrated.
Additionally, there was no relationship shown between his
psychiatric symptoms and specific stressors experienced during
his Vietnam service.
Ashley, BVA 90-35610, at 4-5. Having said that, the Board, in its effort
to contradict Dr. Grady's opinion that the veteran suffered symptoms of
PTSD, does not point to any evidence in the record that appellant's
alcoholism could not be diagnostic of, or secondary to, PTSD or could not
have stemmed from PTSD. This Court has held:
Even where there is a lack of official records to corroborate
that an injury or disease was incurred or aggravated during
service (including a period of combat), the [Secretary] is
required to accept as sufficient proof of service connection
satisfactory lay or other evidence that an injury or disease
was incurred or aggravated during such period of service, if
the evidence is consistent with the circumstances, conditions,
or hardships of such service.
Hayes v. Brown, 5 Vet.App. 60, 66 (1993); 38 U.S.C.A. ù 1154(b); 38 C.F.
R. ù 3.304(d). It is not the function of this Court to speculate on the
relationship between any service-connected disabilities a veteran may have
and his or her cause of death; rather, it is the function of this Court to
decide whether the Board's factual determinations on the issue
constitute clear error. See Shoemaker v. Derwinski, 3 Vet.App. 248, 254 (
1992); Gilbert, 1 Vet.App. at 53.
This Court has held that the failure of the BVA in certain cases to
consider the benefit-of-the-doubt doctrine and set forth clearly its
reasons for not applying it constitutes error. Sheets, 2 Vet.App. at 516;
see O'Hare v. Derwinski, 1 Vet.App. 365, 367 (1991). The doctrine
requires that where there "is an approximate balance of positive and
negative evidence regarding the merits of an issue material to the
determination of the matter, the benefit of the doubt in resolving each
issue shall be given to the claimant." 38 U.S.C.A. ù 5107(b) (West 1991
). The BVA decision, in stating that the veteran's symptoms "are not
specific to only PTSD," indicates that the evidence may be in equipoise,
and that the appellant may be entitled to the benefit of the doubt. In
Williams v. Brown, 4 Vet.App. 270, 273-74 (1993), the Court held that "
where there is significant evidence in support of an appellant's claim, as
there is here, the Board must provide a satisfactory explanation as to why
the evidence was not in equipoise."
III. Conclusion
Accordingly, upon consideration of the record, appellant's brief, and
the Secretary's brief, the Court holds that the decision of the BVA is
VACATED, and the case is REMANDED for readjudication consistent with this
opinion.
Wednesday, June 29, 2011
Single Judge Application, ExtraSchedular Rating, Conduct Comparison of Severity of Symptoms with Schedular Criteria as Thun Requires, Thun v. Peake, 22 Vet.App. 111, 115 (2008)
Excerpt from decision below:
"Mr. Morrow also argues that the Board inadequately explained its findings that an extraschedular rating was not warranted. App. Br. at 8-9. In Thun v. Peake, this Court held that the
determination of whether a claimant is entitled to an extraschedular
rating under 38 C.F.R. § 3.321(b) is a three-step inquiry. 22 Vet.App. 111, 115 (2008). The first step is to determine whether "the evidence before VA presents such an exceptional disability
picture that the available schedular evaluations for that service-connected disability are inadequate." Id. If the adjudicator
determines that this is so, the second step of the inquiry requires the
adjudicator to "determine whether the claimant's exceptional disability picture exhibits other related factors," such as marked
interference with employment or frequent periods of hospitalization. Id. at 116. Finally, if the first two steps of the inquiry have been satisfied, the third step requires the adjudicator to refer the claim
to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for a
4
determination of whether an extraschedular rating is warranted. Id. If
the threshold determination for a referral is not met, an error by the Board in applying the second step may be nonprejudicial to
the appellant's claim. See id. at 119.
In this case, Mr. Morrow persuasively argues that the Board's analysis, which does not address any of his arguments specifically, consists of conclusory statements reasoning that the record does not present such an exceptional or unusual disability picture, "with such related factors as marked interference with employment or frequent periods of hospitalization" as to render the schedular criteria impractical. App. Br. at 9. He argues that the reasoning is inadequate because it does not conduct the comparison of the severity of the appellant's symptoms with the schedular criteria that Thun requires. Mr. Morrow notes that he has extremely limited ulnar and radial deviation, which the schedular criteria do not contemplate at all absent ankylosis. See 38 C.F.R. §§ 4.71 plate I, 4.71a DC 5214, 5215; R. at 111. Mr. Morrow further notes that his wrist joint is
painful and weak, such that he has difficulty picking up and holding
objects. R. at 68, 112, 316, 347-48, 354, 361. He also argues that the Board fails to account for the April 2007 VA examiner's finding that the wrist pain had a "[s]ignificant" general occupational effect. R. at 113.
In its decision, the Board fails to explain why this finding, in
conjunction with the evidence of pain and weakness, does not reflect sufficient interference with employment to support referral.
The Secretary offers the post hoc rationalization that the Board's conclusion was supported by evidence of record, including the 2006 compensation and pension examination that noted that Mr.
Morrow has not "missed work or had to change his duties at this point." Secretary's Br. at 12; R. at 347; see Martin v. Occupational Safety & Health Review Comm'n, 499 U.S. 144, 156 (1991)
("'[L]itigating positions' are not entitled to deference when they are
merely appellate counsel's 'post hoc rationalizations' for agency action, advanced for the first time in the reviewing court."). The
Secretary argues that in the April 2007 compensation and pension
examination, the examiner noted that Mr. Morrow was "currently employed," that he had not missed any days from work in the
previous12-month period, that wrist and knee "pain" was the "impact onoccupational activities" and that his spine condition had "no significant effects" on his employment. Secretary's Br. at 12, relying
on R. at 113, 125. Because the Board did not rely on or note this evidence in its discussion, the Secretary's post hoc rationalization is without merit and this issue should be remanded for the Board
5
to provide adequate reasons or bases for its determination that an extraschedular evaluation is not warranted.
==============================================
Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 09-0454
JAMES R. MORROW, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before Previous DocumentGREENENext Hit, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
GREENE, Judge: Veteran James R. Morrow appeals, through counsel, a December 9, 2008, Board of Veterans' Appeal (Board) decision that denied disability ratings higher than 20% for
left-navicular-bone-fusion residuals(left wrist disability) and 10% for lumbar-degenerative arthritis, right-knee arthritis, and right-knee disability. Record (R.) at 3-33. Mr. Morrow argues that the
Board failed to provide adequate reasons or bases by inadequately
explaining its (1) interpretation of the VA examination reports, (2) rejection of a separate neurological rating for his lumbar disability and a separate loss-of-motion rating for his left thumb, and (3) rejection of extraschedular consideration. Appellant's (App.) Brief (Br.) at 6-11. He also argues that the Board erred in finding that the Secretary's duty to assist was satisfied. Id. In particular, he contends that the Board erred when it failed to remand his claim for an adequate VA orthopedic examination to provide findings necessary for the Board to applythe rating criteria and other applicable regulations. Id. Mr. Morrow further asserts that the Board erred by failing to remand his claim to the
regional office (RO) with instructions to obtain a 2006 VA medical report of his right knee. Id.
On February 3, 2011, a single-judge memorandum decision affirmed, in part,
and vacated,
in part, the 2008 Board decision. Subsequently, Mr. Morrow moved for
reconsideration, or, in the
alternative, panel consideration. Mr. Morrow's motion for reconsideration
is granted, the Court's February 2011 memorandum decision is withdrawn, and this memorandum decision is issued in its stead. For the reasons set forth below, the Court will affirm in part and
vacate in part the December 2008 Board decision.
I. LAW AND ANALYSIS
A. Reasons or Bases
The Board must include in its decision a written statement of the reasons or bases for its findings and conclusions on all material issues of fact and law presented on the record; the statement
must be adequate to enable an appellant to understand the precise basis for the Board's decision and to facilitate informed review in this Court. 38 U.S.C. § 7104(d)(1); Allday v. Brown, 7 Vet.App. 517, 527 (1995); Gilbert v. Derwinski, 1 Vet.App. 49, 57 (1990). To comply
with this requirement, the Board must analyze the credibility and probative value of the evidence, account for the evidence
that it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Caluza v. Brown, 7 Vet.App. 498, 506 (1995), aff'd per curiam,
78 F.3d 604 (Fed. Cir. 1996) (table).
1. Increased Rating for Left Wrist disability
Mr. Morrow argues that the Board inadequately explained its finding that his complaints of pain, fatigue, swelling, and weakness do not support a higher rating under
38 C.F.R. § 4.71a, Diagnostic Code (DC) 5214. App. Br. at 6. He maintains that, although the Board acknowledged that the April 2007 VA examination "documented significant pain," this finding is contradicted by its subsequent finding "that the veteran retained significant motion of the wrist and even with pain did not have motion that would be tantamount to having ankylosis" beyond that contemplated by the 20% rating. Id., relying on R. at 29. The April 2007 VA examination of Mr. Morrow's left wrist records 20 degrees of dorsiflexion, 45 degrees of palmar flexion, 10 degrees of ulnar deviation, and 10 degrees of radial deviation. R. at 111. Given these notations, Mr. Morrow argues that he has extremely limited motion because he has approximately 30% of normal
dorsiflexion, approximately
50% of normal palmar flexion, approximately 22% of normal ulnar deviation,
and 50% of normal
radial deviation. App. Br. 7. He asserts that this loss of motion is large enough that the Board could
2
not declare "the veteran retained significant motion of the wrist" without explanation. Id. He further argues that the Board's conclusory statement that the loss of motion is not tantamount to the degree of ankylosis necessary for a 30% rating under DC 5214 is inadequately explained. Id.
Mr. Morrow also notes that the examination report makes no affirmative findings on weakness, fatigability, and incoordination (App. Br. at 7, relying on R. at 108-13) and that the Board does not cite to anyevidence that indicates these symptoms are now present (id., relying on R. at 29).
Therefore, Mr. Morrow concludes that with the Board's acknowledgment that he experienced significant pain, its finding that"pain, fatigue, swelling, and weakness" do not
support a higher rating under DeLuca v. Brown, 8 Vet. App. 202 (1995), is merely a conclusory statement lacking the
necessary factual predicate for informed judicial review. App. Br. at 8-9.
In its decision, the Board set forth the regulations applicable to the
rating of Mr. Morrow’s wrist disability. R. at 26-27. Under the applicable DC for wrist disabilities, a 20% disability rating is warranted for favorable ankylosis of the minor wrist where range of
motion testing reveals dorsiflexion between 20 and 30 degrees. § 4.71a, DC 5214. A 30% disability rating is warranted
for favorable ankylosis of the major wrist where range of motion
testing reveals dorsiflexion between 20 and 30 degrees or unfavorable ankylosis in the minor wrist in positions other than favorable. Id.
The Board also discussed the findings of the March 2006 and April 2007 VA medical examinations. R. at 26-30. The March 2006 VA examination revealed a diagnosis of left wrist pain, post traumatic,
and post-surgical wrist arthritis. R. 347-55. It also noted a primary
disability of left wrist pain and developing weakness in Mr. Morrow’s left hand. Id. The evidence before the Board also shows that the April 2007 VA medical examiner documented significant pain of the left wrist and rendered a diagnosis of left wrist arthritis, status post partial wrist fusion. R. at 108-25.
The evidence noted above provides a plausible basis for the Board’s determination that an increased rating is not warranted because there is no evidence of ankylosis in any other position
except favorable. R. at 29. Indeed, in its decision, the Board noted that the March 2006 and April 2007 VA examinations considered the effects of painful motion and found that repeated motion did
not result in any additional limitation of motion. R. at 29. Thus, there
was no error and the Board articulated a thorough analysis of determining the proper disability rating.
That analysis is sufficient for judicial review and satisfies the reasons or bases requirement.
3
Mr. Morrow argues that the Board failed to adequately explain why the April 2007 VA examination report did not provide a basis for a staged rating. App. Br. at 8. He asserts that there is a wide discrepancy between the range of motion (ROM) findings in the March 2006 and April 2007 VA examination reports, which renders the Board's finding an inadequately explained
conclusory statement. App. Br. at 8.
Separate disability ratings may be assigned for separate periods of time in accordance with the facts found when initial or increased disability ratings are assigned. Such separate disability ratings are known as staged ratings. Fenderson v. West, 12 Vet.App. 119,
126 (1999); see Hart v.
Mansfield, 21 Vet.App. 505, 511 (2007). A review of the March 2006 and April 2007 VA examinations reveals that Mr.Morrow's symptoms did not remain constant during the appeal period.
The March 2006 examination indicates normal ROM (R. at 348), while the April 2007 examination reflects significantly limited motion (R. at 111). However, as the Secretary correctly indicated, because the Board adequately determined that there was no evidence of
record of unfavorable ankylosis in Mr. Morrow's wrist, regardless of the changes noted in the ROM of his wrist in the April 2007 examination, there was no indication that his symptoms regarding the
presence of unfavorable ankylosis changed during the pendency of the increased rating claim. Secretary's Br. at 10-11, relying on R. at 29. Accordingly, the Court holds that the Board correctly determined that staged ratings were not warranted. See Hart and Fenderson, both supra.
Mr. Morrow also argues that the Board inadequately explained its findings that an extraschedular rating was not warranted. App. Br. at 8-9. In Thun v. Peake, this Court held that the
determination of whether a claimant is entitled to an extraschedular
rating under 38 C.F.R. § 3.321(b) is a three-step inquiry. 22 Vet.App. 111, 115 (2008). The first step is to determine whether "the evidence before VA presents such an exceptional disability
picture that the available schedular evaluations for that service-connected disability are inadequate." Id. If the adjudicator
determines that this is so, the second step of the inquiry requires the
adjudicator to "determine whether the claimant's exceptional disability picture exhibits other related factors," such as marked
interference with employment or frequent periods of hospitalization. Id. at 116. Finally, if the first two steps of the inquiry have been satisfied, the third step requires the adjudicator to refer the claim
to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for a
4
determination of whether an extraschedular rating is warranted. Id. If
the threshold determination for a referral is not met, an error by the Board in applying the second step may be nonprejudicial to
the appellant's claim. See id. at 119.
In this case, Mr. Morrow persuasively argues that the Board's analysis, which does not address any of his arguments specifically, consists of conclusory statements reasoning that the record does not present such an exceptional or unusual disability picture, "with such related factors as marked interference with employment or frequent periods of hospitalization" as to render the schedular criteria impractical. App. Br. at 9. He argues that the reasoning is inadequate because it does not conduct the comparison of the severity of the appellant's symptoms with the schedular criteria that Thun requires. Mr. Morrow notes that he has extremely limited ulnar and radial deviation, which the schedular criteria do not contemplate at all absent ankylosis. See 38 C.F.R. §§ 4.71 plate I, 4.71a DC 5214, 5215; R. at 111. Mr. Morrow further notes that his wrist joint is
painful and weak, such that he has difficulty picking up and holding
objects. R. at 68, 112, 316, 347-48, 354, 361. He also argues that the Board fails to account for the April 2007 VA examiner's finding that the wrist pain had a "[s]ignificant" general occupational effect. R. at 113.
In its decision, the Board fails to explain why this finding, in
conjunction with the evidence of pain and weakness, does not reflect sufficient interference with employment to support referral.
The Secretary offers the post hoc rationalization that the Board's conclusion was supported by evidence of record, including the 2006 compensation and pension examination that noted that Mr.
Morrow has not "missed work or had to change his duties at this point." Secretary's Br. at 12; R. at 347; see Martin v. Occupational Safety & Health Review Comm'n, 499 U.S. 144, 156 (1991)
("'[L]itigating positions' are not entitled to deference when they are
merely appellate counsel's 'post hoc rationalizations' for agency action, advanced for the first time in the reviewing court."). The
Secretary argues that in the April 2007 compensation and pension
examination, the examiner noted that Mr. Morrow was "currently employed," that he had not missed any days from work in the
previous12-month period, that wrist and knee "pain" was the "impact onoccupational activities" and that his spine condition had "no significant effects" on his employment. Secretary's Br. at 12, relying
on R. at 113, 125. Because the Board did not rely on or note this evidence in its discussion, the Secretary's post hoc rationalization is without merit and this issue should be remanded for the Board
5
to provide adequate reasons or bases for its determination that an extraschedular evaluation is not warranted.
Mr. Morrow argues that the Board erred when it did not address whether a separate rating was warranted for his loss of left thumb motion. App. Br. at 7-10.
Specifically he argues that a separate rating for loss of thumb motion would not constitute impermissible pyramiding, because the symptomatology of his left thumb and left wrist do not overlap. Id.;
see 38 C.F.R. § 4.14; see also Esteban v. Brown, 6 Vet.App. 259, 261-61 (1994). Limitation of movement of a thumb is rated for compensation purposes under 38 C.F.R. § 4.71a, DC 5228. To
receive any rating pursuant to DC 5228, including a 0% rating, there must be at least some gap " between the thumb pad and the
fingers, with the thumb attempting to oppose the fingers." Id. Mr. Morrow has not identified any evidence of record indicating that he has any of the symptoms listed under DC 5228 for even a 0%
rating. Moreover, because pain itself is not compensable under DC 5228, there is no basis upon which to grant Mr. Morrow a rating under this DC. As such, the Secretary correctly argues that,
although the Board did not address whether a separate rating was warranted for Mr. Morrow's thumb, such error was harmless because, even if a separate claim for the limitation of motion of the thumb had been considered, based on the evidence of record, he could not have been awarded anydisability compensation and remanding his claim for such consideration would result in no benefit to him.
2. Lumbar Spine
Mr. Morrow contends that the Board inadequatelyexplained its finding that a separate rating was unwarranted for the neurological component of his lumbar disability. App. Br. at 10-11. In its
decision, the Board found that the April 2007 VA examination "noted
complaints of radiculopathy," but contained no objective findings of neurological symptoms or abnormal sensory or reflex findings. R. at 20. Mr. Morrow argues that none of the examiner's sensory findings, however, expressly rules out radiating pain. App. Br. at 11, relying on R. at 119-21, 125. Relying on McLendon v. Nicholson, 20 Vet. App. 79, 85 (2006), he contends that the absence of a finding does
not equate to a negative finding. App. Br. at 11. Mr. Morrow also argues that the absence of an express finding deprived the Board of the ability to make a finding on the question either way, rendering the examination report inadequate. Id.
6
In the Board decision on appeal, the Board stated that the April 2007
compensation and pension examination noted Mr. Morrow's complaints of radiculopathy, and further noted that "there were no objective findings of neurological symptoms upon clinical
examination" and that "sensory and reflex examinations performed at that time were normal." R. at 20. The Board concluded that there were no objective findings sufficient to warrant a separate
evaluation for a neurological disability. Id. As the Secretary argues, this conclusion is supported by the April 2007 compensation and pension examination report, in which the examiner, while noting Mr. Morrow's complaints of "radiating pain" in his left leg and a history of "paresthesias," found Mr. Morrow's spine to be "normal" following a "detailed sensoryexam" and a "detailed reflex exam." Secretary's Br. at 14-15, relying on R. at 114-15, 119-21. Accordingly, the Court holds that the Board adequately supported its findings upon evidence of the record and its conclusion is plausible based upon that record.
3. 38 U.S.C. § 5103A
Mr. Morrow argues that the Board erred by not providing adequate reasons or bases for its determination that VA complied with its duty to assist under 38 U.S.C. § 5103A. App. Br. at 11-15.
He specifically argues that the Board did not discuss the inadequacies of the 2006 and 2007 VA examination reports. Id. The Secretary argues that even though the examiners conducting the 2006 and 2007 VA examinations did not review Mr.Morrow's claims file, the examinations were adequate because both examiners "elicited information from Mr. Morrow regarding the history of his prior medical treatment and the current status of his claimed conditions." Secretary's Br. at 16. He further argues that the two VA examiners fully considered Mr. Morrow's history that they collected orally, along with their observations and the testing they conducted as evidenced by the record, and therefore the information was sufficient for these examiners to make an informed opinion regarding the status of Mr. Morrow's disability even without reviewing the claims file. Id. The Court agrees.
An examination is adequate when "it is based upon consideration of the veteran's prior medical history and examinations and also describes the disability . . . in sufficient detail so that the Board's 'evaluation of the claimed disability will be a fully informed one.'
" Stefl v. Nicholson, 21 Vet.App. 120, 123 (2007) (quoting Ardison v. Brown, 6 Vet.App. 405, 407 (1994). Although the VA examiners did not review the appellant's claims file, such fact alone does not render the examinations or any opinions contained in the examination reports inadequate. See Nieves-
7
Rodriguez v. Peake, 22 Vet.App. 295, 301 (2008); see also Kowalski v. Nicholson, 19 Vet.App. 171, 179 (2006) (noting that a medical opinion cannot be disregarded solely on the rationale that the medical opinion is based on a history provided by the veteran); see also Snuffer v. Gober, 10 Vet.App. 400, 403-04 (1997). Rather, the Board may determine the probative value of a medical opinion based upon, among other things, whether the examiner was "informed of sufficient facts upon which to base an opinion relevant to the problem at hand." Nieves-Rodriguez, 22 Vet.App. at 302. Therefore, despite Mr. Morrow's argument to the contrary, the 2006
and 2007 VA medical examination reports were adequate and satisfied VA's duty to assist, and the Board did not err by
concluding so.
Mr. Morrow also contends that the assistance was inadequate on the basis that the 2006 and 2007 VA examinations did not properly address the factors required by DeLuca. App. Br. at 13-14.
The Secretary argues that the facts before the Board reveal that in the 2007 VA examination the DeLuca factors were adequately addressed by the examiner noting Mr. Morrow's "functional
limitations" in walking and standing, and Mr. Morrow's no responses to joint weakness and a history of fatigue in his spine. Secretary's Br. at 18, relying on R. at 108-126.
In Deluca, the Court held that 38 C.F.R. § 4.40 requires that VA consider the disabling effect of painful motion when assigning
disability ratings for joint conditions. Deluca, 8 Vet.App. at 205-06. In short, when rating disabilities of the joints including the spine, the Board must discuss any additional limitations a claimant experiences due to pain, weakness, or fatigue. Id.
The evidence before the Board indicates that the examiner further recorded Mr. Morrow's complaints of spinal pain and noted the loss of range of motion in his spine after repetitive use. Id. Moreover, the examiner made note of Mr. Morrow's pain in his wrist and right knee as well as his pain on movement. Id. RegardingMr. Morrow's knee, the examiner found no crepitus and observed that Mr. Morrow had pain at 140 degrees "during the range of motion exercise." R. at 349. As to Mr. Morrow's spine, the examiner commented that Mr. Morrow did have pain on movement of the spine. Id. Regarding the 2007 compensation and pension exam, the examiner noted that Mr.
Morrow experienced painful motion in his wrist, knee, and spine, and that this pain would not presumably subside under a weight-bearing test of the joint. See 38 C.F.R. § 4.59. The Board
8
addressed this evidence and, therefore, Mr. Morrow's argument lacks merit as the Board's decision provides a clear discussion of the DeLuca factors as it pertains to his claims.
Finally, Mr. Morrow argues that the Board should have remanded his claim to the RO with instructions to obtain a 2006 VA magnetic resonance imaging (MRI) report of his right knee. App. Br. at 14. He asserts that VA received adequate notice of his pending results in personal statements dated May and July 2006 and VA treatment records dated April and May 2006. Id., relying on R. at 188, 191, 254, 314. The Secretary contends that, although Mr. Morrow's
2006 MRI report was not obtained, any error resulting in his duty to assist is harmless as the report would not support an increased rating for his service-connected right knee disability. Secretary's Br. at 20-22.
Under § 5103A, the Secretary's duty to assist includes making "reasonable efforts to obtain relevant records (including private records) that the claimant adequately identifies to the Secretary
and authorizes the Secretary to obtain." 38 U.S.C. § 5103A(b)(1); see Moore v. Shinseki, 555 F.3d 1369, 1372 (Fed.Cir. 2009); Loving v. Nicholson, 19 Vet.App. 96, 102 (2008). The Board's
determination that the Secretary has or has not fulfilled his duty to assist is generally a finding of fact reviewed under the "clearly erroneous" standard of review. Nolen v. Gober,14 Vet.App. 183, 184 (2000).
Despite the Secretary's argument, the Courts holds that VA's failure to obtain Mr. Morrow's 2006 MRI report constitutes clear error. See Nolen, supra. It is not the Secretary's responsibility to assess the credibility and probative value of the 2006 MRI report, which has yet to be obtained, as
that duty is vested in the Board. See Owens v. Brown, 7 Vet.App. 429, 433 (1995) (holding that "[i]t is the responsibility of the [Board], . . . to assess the credibility and weight to be given to evidence").
Accordingly, remand is required for VA to comply with its duty to obtain the report referenced by Mr. Morrow and for the Board to analyze the credibility and probative value of the evidence, account
for the evidence that it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. 38 U.S.C. § 5103A(b)(1); see Moore and Loving, both supra; see also Caluza, supra.
9
II. CONCLUSION
Upon consideration of the foregoing analysis, the record on appeal,
and the parties 'pleadings, that part of the December 9, 2008, Board decision that denied referral for the assignment of extraschedular evaluation of the left wrist claim is VACATED and that matter is REMANDED to the Board for adjudication consistent with this decision. On remand, the Board is also instructed to fulfill its duty to assist and obtain Mr. Morrow's 2006 MRI report concerning his lumbar spine. The decision is otherwise AFFIRMED.
DATED: June 9, 2011
Copies to:
Glenn R. Bergmann, Esq.
VA General Counsel (027)
10
"Mr. Morrow also argues that the Board inadequately explained its findings that an extraschedular rating was not warranted. App. Br. at 8-9. In Thun v. Peake, this Court held that the
determination of whether a claimant is entitled to an extraschedular
rating under 38 C.F.R. § 3.321(b) is a three-step inquiry. 22 Vet.App. 111, 115 (2008). The first step is to determine whether "the evidence before VA presents such an exceptional disability
picture that the available schedular evaluations for that service-connected disability are inadequate." Id. If the adjudicator
determines that this is so, the second step of the inquiry requires the
adjudicator to "determine whether the claimant's exceptional disability picture exhibits other related factors," such as marked
interference with employment or frequent periods of hospitalization. Id. at 116. Finally, if the first two steps of the inquiry have been satisfied, the third step requires the adjudicator to refer the claim
to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for a
4
determination of whether an extraschedular rating is warranted. Id. If
the threshold determination for a referral is not met, an error by the Board in applying the second step may be nonprejudicial to
the appellant's claim. See id. at 119.
In this case, Mr. Morrow persuasively argues that the Board's analysis, which does not address any of his arguments specifically, consists of conclusory statements reasoning that the record does not present such an exceptional or unusual disability picture, "with such related factors as marked interference with employment or frequent periods of hospitalization" as to render the schedular criteria impractical. App. Br. at 9. He argues that the reasoning is inadequate because it does not conduct the comparison of the severity of the appellant's symptoms with the schedular criteria that Thun requires. Mr. Morrow notes that he has extremely limited ulnar and radial deviation, which the schedular criteria do not contemplate at all absent ankylosis. See 38 C.F.R. §§ 4.71 plate I, 4.71a DC 5214, 5215; R. at 111. Mr. Morrow further notes that his wrist joint is
painful and weak, such that he has difficulty picking up and holding
objects. R. at 68, 112, 316, 347-48, 354, 361. He also argues that the Board fails to account for the April 2007 VA examiner's finding that the wrist pain had a "[s]ignificant" general occupational effect. R. at 113.
In its decision, the Board fails to explain why this finding, in
conjunction with the evidence of pain and weakness, does not reflect sufficient interference with employment to support referral.
The Secretary offers the post hoc rationalization that the Board's conclusion was supported by evidence of record, including the 2006 compensation and pension examination that noted that Mr.
Morrow has not "missed work or had to change his duties at this point." Secretary's Br. at 12; R. at 347; see Martin v. Occupational Safety & Health Review Comm'n, 499 U.S. 144, 156 (1991)
("'[L]itigating positions' are not entitled to deference when they are
merely appellate counsel's 'post hoc rationalizations' for agency action, advanced for the first time in the reviewing court."). The
Secretary argues that in the April 2007 compensation and pension
examination, the examiner noted that Mr. Morrow was "currently employed," that he had not missed any days from work in the
previous12-month period, that wrist and knee "pain" was the "impact onoccupational activities" and that his spine condition had "no significant effects" on his employment. Secretary's Br. at 12, relying
on R. at 113, 125. Because the Board did not rely on or note this evidence in its discussion, the Secretary's post hoc rationalization is without merit and this issue should be remanded for the Board
5
to provide adequate reasons or bases for its determination that an extraschedular evaluation is not warranted.
==============================================
Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 09-0454
JAMES R. MORROW, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before Previous DocumentGREENENext Hit, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
GREENE, Judge: Veteran James R. Morrow appeals, through counsel, a December 9, 2008, Board of Veterans' Appeal (Board) decision that denied disability ratings higher than 20% for
left-navicular-bone-fusion residuals(left wrist disability) and 10% for lumbar-degenerative arthritis, right-knee arthritis, and right-knee disability. Record (R.) at 3-33. Mr. Morrow argues that the
Board failed to provide adequate reasons or bases by inadequately
explaining its (1) interpretation of the VA examination reports, (2) rejection of a separate neurological rating for his lumbar disability and a separate loss-of-motion rating for his left thumb, and (3) rejection of extraschedular consideration. Appellant's (App.) Brief (Br.) at 6-11. He also argues that the Board erred in finding that the Secretary's duty to assist was satisfied. Id. In particular, he contends that the Board erred when it failed to remand his claim for an adequate VA orthopedic examination to provide findings necessary for the Board to applythe rating criteria and other applicable regulations. Id. Mr. Morrow further asserts that the Board erred by failing to remand his claim to the
regional office (RO) with instructions to obtain a 2006 VA medical report of his right knee. Id.
On February 3, 2011, a single-judge memorandum decision affirmed, in part,
and vacated,
in part, the 2008 Board decision. Subsequently, Mr. Morrow moved for
reconsideration, or, in the
alternative, panel consideration. Mr. Morrow's motion for reconsideration
is granted, the Court's February 2011 memorandum decision is withdrawn, and this memorandum decision is issued in its stead. For the reasons set forth below, the Court will affirm in part and
vacate in part the December 2008 Board decision.
I. LAW AND ANALYSIS
A. Reasons or Bases
The Board must include in its decision a written statement of the reasons or bases for its findings and conclusions on all material issues of fact and law presented on the record; the statement
must be adequate to enable an appellant to understand the precise basis for the Board's decision and to facilitate informed review in this Court. 38 U.S.C. § 7104(d)(1); Allday v. Brown, 7 Vet.App. 517, 527 (1995); Gilbert v. Derwinski, 1 Vet.App. 49, 57 (1990). To comply
with this requirement, the Board must analyze the credibility and probative value of the evidence, account for the evidence
that it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Caluza v. Brown, 7 Vet.App. 498, 506 (1995), aff'd per curiam,
78 F.3d 604 (Fed. Cir. 1996) (table).
1. Increased Rating for Left Wrist disability
Mr. Morrow argues that the Board inadequately explained its finding that his complaints of pain, fatigue, swelling, and weakness do not support a higher rating under
38 C.F.R. § 4.71a, Diagnostic Code (DC) 5214. App. Br. at 6. He maintains that, although the Board acknowledged that the April 2007 VA examination "documented significant pain," this finding is contradicted by its subsequent finding "that the veteran retained significant motion of the wrist and even with pain did not have motion that would be tantamount to having ankylosis" beyond that contemplated by the 20% rating. Id., relying on R. at 29. The April 2007 VA examination of Mr. Morrow's left wrist records 20 degrees of dorsiflexion, 45 degrees of palmar flexion, 10 degrees of ulnar deviation, and 10 degrees of radial deviation. R. at 111. Given these notations, Mr. Morrow argues that he has extremely limited motion because he has approximately 30% of normal
dorsiflexion, approximately
50% of normal palmar flexion, approximately 22% of normal ulnar deviation,
and 50% of normal
radial deviation. App. Br. 7. He asserts that this loss of motion is large enough that the Board could
2
not declare "the veteran retained significant motion of the wrist" without explanation. Id. He further argues that the Board's conclusory statement that the loss of motion is not tantamount to the degree of ankylosis necessary for a 30% rating under DC 5214 is inadequately explained. Id.
Mr. Morrow also notes that the examination report makes no affirmative findings on weakness, fatigability, and incoordination (App. Br. at 7, relying on R. at 108-13) and that the Board does not cite to anyevidence that indicates these symptoms are now present (id., relying on R. at 29).
Therefore, Mr. Morrow concludes that with the Board's acknowledgment that he experienced significant pain, its finding that"pain, fatigue, swelling, and weakness" do not
support a higher rating under DeLuca v. Brown, 8 Vet. App. 202 (1995), is merely a conclusory statement lacking the
necessary factual predicate for informed judicial review. App. Br. at 8-9.
In its decision, the Board set forth the regulations applicable to the
rating of Mr. Morrow’s wrist disability. R. at 26-27. Under the applicable DC for wrist disabilities, a 20% disability rating is warranted for favorable ankylosis of the minor wrist where range of
motion testing reveals dorsiflexion between 20 and 30 degrees. § 4.71a, DC 5214. A 30% disability rating is warranted
for favorable ankylosis of the major wrist where range of motion
testing reveals dorsiflexion between 20 and 30 degrees or unfavorable ankylosis in the minor wrist in positions other than favorable. Id.
The Board also discussed the findings of the March 2006 and April 2007 VA medical examinations. R. at 26-30. The March 2006 VA examination revealed a diagnosis of left wrist pain, post traumatic,
and post-surgical wrist arthritis. R. 347-55. It also noted a primary
disability of left wrist pain and developing weakness in Mr. Morrow’s left hand. Id. The evidence before the Board also shows that the April 2007 VA medical examiner documented significant pain of the left wrist and rendered a diagnosis of left wrist arthritis, status post partial wrist fusion. R. at 108-25.
The evidence noted above provides a plausible basis for the Board’s determination that an increased rating is not warranted because there is no evidence of ankylosis in any other position
except favorable. R. at 29. Indeed, in its decision, the Board noted that the March 2006 and April 2007 VA examinations considered the effects of painful motion and found that repeated motion did
not result in any additional limitation of motion. R. at 29. Thus, there
was no error and the Board articulated a thorough analysis of determining the proper disability rating.
That analysis is sufficient for judicial review and satisfies the reasons or bases requirement.
3
Mr. Morrow argues that the Board failed to adequately explain why the April 2007 VA examination report did not provide a basis for a staged rating. App. Br. at 8. He asserts that there is a wide discrepancy between the range of motion (ROM) findings in the March 2006 and April 2007 VA examination reports, which renders the Board's finding an inadequately explained
conclusory statement. App. Br. at 8.
Separate disability ratings may be assigned for separate periods of time in accordance with the facts found when initial or increased disability ratings are assigned. Such separate disability ratings are known as staged ratings. Fenderson v. West, 12 Vet.App. 119,
126 (1999); see Hart v.
Mansfield, 21 Vet.App. 505, 511 (2007). A review of the March 2006 and April 2007 VA examinations reveals that Mr.Morrow's symptoms did not remain constant during the appeal period.
The March 2006 examination indicates normal ROM (R. at 348), while the April 2007 examination reflects significantly limited motion (R. at 111). However, as the Secretary correctly indicated, because the Board adequately determined that there was no evidence of
record of unfavorable ankylosis in Mr. Morrow's wrist, regardless of the changes noted in the ROM of his wrist in the April 2007 examination, there was no indication that his symptoms regarding the
presence of unfavorable ankylosis changed during the pendency of the increased rating claim. Secretary's Br. at 10-11, relying on R. at 29. Accordingly, the Court holds that the Board correctly determined that staged ratings were not warranted. See Hart and Fenderson, both supra.
Mr. Morrow also argues that the Board inadequately explained its findings that an extraschedular rating was not warranted. App. Br. at 8-9. In Thun v. Peake, this Court held that the
determination of whether a claimant is entitled to an extraschedular
rating under 38 C.F.R. § 3.321(b) is a three-step inquiry. 22 Vet.App. 111, 115 (2008). The first step is to determine whether "the evidence before VA presents such an exceptional disability
picture that the available schedular evaluations for that service-connected disability are inadequate." Id. If the adjudicator
determines that this is so, the second step of the inquiry requires the
adjudicator to "determine whether the claimant's exceptional disability picture exhibits other related factors," such as marked
interference with employment or frequent periods of hospitalization. Id. at 116. Finally, if the first two steps of the inquiry have been satisfied, the third step requires the adjudicator to refer the claim
to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for a
4
determination of whether an extraschedular rating is warranted. Id. If
the threshold determination for a referral is not met, an error by the Board in applying the second step may be nonprejudicial to
the appellant's claim. See id. at 119.
In this case, Mr. Morrow persuasively argues that the Board's analysis, which does not address any of his arguments specifically, consists of conclusory statements reasoning that the record does not present such an exceptional or unusual disability picture, "with such related factors as marked interference with employment or frequent periods of hospitalization" as to render the schedular criteria impractical. App. Br. at 9. He argues that the reasoning is inadequate because it does not conduct the comparison of the severity of the appellant's symptoms with the schedular criteria that Thun requires. Mr. Morrow notes that he has extremely limited ulnar and radial deviation, which the schedular criteria do not contemplate at all absent ankylosis. See 38 C.F.R. §§ 4.71 plate I, 4.71a DC 5214, 5215; R. at 111. Mr. Morrow further notes that his wrist joint is
painful and weak, such that he has difficulty picking up and holding
objects. R. at 68, 112, 316, 347-48, 354, 361. He also argues that the Board fails to account for the April 2007 VA examiner's finding that the wrist pain had a "[s]ignificant" general occupational effect. R. at 113.
In its decision, the Board fails to explain why this finding, in
conjunction with the evidence of pain and weakness, does not reflect sufficient interference with employment to support referral.
The Secretary offers the post hoc rationalization that the Board's conclusion was supported by evidence of record, including the 2006 compensation and pension examination that noted that Mr.
Morrow has not "missed work or had to change his duties at this point." Secretary's Br. at 12; R. at 347; see Martin v. Occupational Safety & Health Review Comm'n, 499 U.S. 144, 156 (1991)
("'[L]itigating positions' are not entitled to deference when they are
merely appellate counsel's 'post hoc rationalizations' for agency action, advanced for the first time in the reviewing court."). The
Secretary argues that in the April 2007 compensation and pension
examination, the examiner noted that Mr. Morrow was "currently employed," that he had not missed any days from work in the
previous12-month period, that wrist and knee "pain" was the "impact onoccupational activities" and that his spine condition had "no significant effects" on his employment. Secretary's Br. at 12, relying
on R. at 113, 125. Because the Board did not rely on or note this evidence in its discussion, the Secretary's post hoc rationalization is without merit and this issue should be remanded for the Board
5
to provide adequate reasons or bases for its determination that an extraschedular evaluation is not warranted.
Mr. Morrow argues that the Board erred when it did not address whether a separate rating was warranted for his loss of left thumb motion. App. Br. at 7-10.
Specifically he argues that a separate rating for loss of thumb motion would not constitute impermissible pyramiding, because the symptomatology of his left thumb and left wrist do not overlap. Id.;
see 38 C.F.R. § 4.14; see also Esteban v. Brown, 6 Vet.App. 259, 261-61 (1994). Limitation of movement of a thumb is rated for compensation purposes under 38 C.F.R. § 4.71a, DC 5228. To
receive any rating pursuant to DC 5228, including a 0% rating, there must be at least some gap " between the thumb pad and the
fingers, with the thumb attempting to oppose the fingers." Id. Mr. Morrow has not identified any evidence of record indicating that he has any of the symptoms listed under DC 5228 for even a 0%
rating. Moreover, because pain itself is not compensable under DC 5228, there is no basis upon which to grant Mr. Morrow a rating under this DC. As such, the Secretary correctly argues that,
although the Board did not address whether a separate rating was warranted for Mr. Morrow's thumb, such error was harmless because, even if a separate claim for the limitation of motion of the thumb had been considered, based on the evidence of record, he could not have been awarded anydisability compensation and remanding his claim for such consideration would result in no benefit to him.
2. Lumbar Spine
Mr. Morrow contends that the Board inadequatelyexplained its finding that a separate rating was unwarranted for the neurological component of his lumbar disability. App. Br. at 10-11. In its
decision, the Board found that the April 2007 VA examination "noted
complaints of radiculopathy," but contained no objective findings of neurological symptoms or abnormal sensory or reflex findings. R. at 20. Mr. Morrow argues that none of the examiner's sensory findings, however, expressly rules out radiating pain. App. Br. at 11, relying on R. at 119-21, 125. Relying on McLendon v. Nicholson, 20 Vet. App. 79, 85 (2006), he contends that the absence of a finding does
not equate to a negative finding. App. Br. at 11. Mr. Morrow also argues that the absence of an express finding deprived the Board of the ability to make a finding on the question either way, rendering the examination report inadequate. Id.
6
In the Board decision on appeal, the Board stated that the April 2007
compensation and pension examination noted Mr. Morrow's complaints of radiculopathy, and further noted that "there were no objective findings of neurological symptoms upon clinical
examination" and that "sensory and reflex examinations performed at that time were normal." R. at 20. The Board concluded that there were no objective findings sufficient to warrant a separate
evaluation for a neurological disability. Id. As the Secretary argues, this conclusion is supported by the April 2007 compensation and pension examination report, in which the examiner, while noting Mr. Morrow's complaints of "radiating pain" in his left leg and a history of "paresthesias," found Mr. Morrow's spine to be "normal" following a "detailed sensoryexam" and a "detailed reflex exam." Secretary's Br. at 14-15, relying on R. at 114-15, 119-21. Accordingly, the Court holds that the Board adequately supported its findings upon evidence of the record and its conclusion is plausible based upon that record.
3. 38 U.S.C. § 5103A
Mr. Morrow argues that the Board erred by not providing adequate reasons or bases for its determination that VA complied with its duty to assist under 38 U.S.C. § 5103A. App. Br. at 11-15.
He specifically argues that the Board did not discuss the inadequacies of the 2006 and 2007 VA examination reports. Id. The Secretary argues that even though the examiners conducting the 2006 and 2007 VA examinations did not review Mr.Morrow's claims file, the examinations were adequate because both examiners "elicited information from Mr. Morrow regarding the history of his prior medical treatment and the current status of his claimed conditions." Secretary's Br. at 16. He further argues that the two VA examiners fully considered Mr. Morrow's history that they collected orally, along with their observations and the testing they conducted as evidenced by the record, and therefore the information was sufficient for these examiners to make an informed opinion regarding the status of Mr. Morrow's disability even without reviewing the claims file. Id. The Court agrees.
An examination is adequate when "it is based upon consideration of the veteran's prior medical history and examinations and also describes the disability . . . in sufficient detail so that the Board's 'evaluation of the claimed disability will be a fully informed one.'
" Stefl v. Nicholson, 21 Vet.App. 120, 123 (2007) (quoting Ardison v. Brown, 6 Vet.App. 405, 407 (1994). Although the VA examiners did not review the appellant's claims file, such fact alone does not render the examinations or any opinions contained in the examination reports inadequate. See Nieves-
7
Rodriguez v. Peake, 22 Vet.App. 295, 301 (2008); see also Kowalski v. Nicholson, 19 Vet.App. 171, 179 (2006) (noting that a medical opinion cannot be disregarded solely on the rationale that the medical opinion is based on a history provided by the veteran); see also Snuffer v. Gober, 10 Vet.App. 400, 403-04 (1997). Rather, the Board may determine the probative value of a medical opinion based upon, among other things, whether the examiner was "informed of sufficient facts upon which to base an opinion relevant to the problem at hand." Nieves-Rodriguez, 22 Vet.App. at 302. Therefore, despite Mr. Morrow's argument to the contrary, the 2006
and 2007 VA medical examination reports were adequate and satisfied VA's duty to assist, and the Board did not err by
concluding so.
Mr. Morrow also contends that the assistance was inadequate on the basis that the 2006 and 2007 VA examinations did not properly address the factors required by DeLuca. App. Br. at 13-14.
The Secretary argues that the facts before the Board reveal that in the 2007 VA examination the DeLuca factors were adequately addressed by the examiner noting Mr. Morrow's "functional
limitations" in walking and standing, and Mr. Morrow's no responses to joint weakness and a history of fatigue in his spine. Secretary's Br. at 18, relying on R. at 108-126.
In Deluca, the Court held that 38 C.F.R. § 4.40 requires that VA consider the disabling effect of painful motion when assigning
disability ratings for joint conditions. Deluca, 8 Vet.App. at 205-06. In short, when rating disabilities of the joints including the spine, the Board must discuss any additional limitations a claimant experiences due to pain, weakness, or fatigue. Id.
The evidence before the Board indicates that the examiner further recorded Mr. Morrow's complaints of spinal pain and noted the loss of range of motion in his spine after repetitive use. Id. Moreover, the examiner made note of Mr. Morrow's pain in his wrist and right knee as well as his pain on movement. Id. RegardingMr. Morrow's knee, the examiner found no crepitus and observed that Mr. Morrow had pain at 140 degrees "during the range of motion exercise." R. at 349. As to Mr. Morrow's spine, the examiner commented that Mr. Morrow did have pain on movement of the spine. Id. Regarding the 2007 compensation and pension exam, the examiner noted that Mr.
Morrow experienced painful motion in his wrist, knee, and spine, and that this pain would not presumably subside under a weight-bearing test of the joint. See 38 C.F.R. § 4.59. The Board
8
addressed this evidence and, therefore, Mr. Morrow's argument lacks merit as the Board's decision provides a clear discussion of the DeLuca factors as it pertains to his claims.
Finally, Mr. Morrow argues that the Board should have remanded his claim to the RO with instructions to obtain a 2006 VA magnetic resonance imaging (MRI) report of his right knee. App. Br. at 14. He asserts that VA received adequate notice of his pending results in personal statements dated May and July 2006 and VA treatment records dated April and May 2006. Id., relying on R. at 188, 191, 254, 314. The Secretary contends that, although Mr. Morrow's
2006 MRI report was not obtained, any error resulting in his duty to assist is harmless as the report would not support an increased rating for his service-connected right knee disability. Secretary's Br. at 20-22.
Under § 5103A, the Secretary's duty to assist includes making "reasonable efforts to obtain relevant records (including private records) that the claimant adequately identifies to the Secretary
and authorizes the Secretary to obtain." 38 U.S.C. § 5103A(b)(1); see Moore v. Shinseki, 555 F.3d 1369, 1372 (Fed.Cir. 2009); Loving v. Nicholson, 19 Vet.App. 96, 102 (2008). The Board's
determination that the Secretary has or has not fulfilled his duty to assist is generally a finding of fact reviewed under the "clearly erroneous" standard of review. Nolen v. Gober,14 Vet.App. 183, 184 (2000).
Despite the Secretary's argument, the Courts holds that VA's failure to obtain Mr. Morrow's 2006 MRI report constitutes clear error. See Nolen, supra. It is not the Secretary's responsibility to assess the credibility and probative value of the 2006 MRI report, which has yet to be obtained, as
that duty is vested in the Board. See Owens v. Brown, 7 Vet.App. 429, 433 (1995) (holding that "[i]t is the responsibility of the [Board], . . . to assess the credibility and weight to be given to evidence").
Accordingly, remand is required for VA to comply with its duty to obtain the report referenced by Mr. Morrow and for the Board to analyze the credibility and probative value of the evidence, account
for the evidence that it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. 38 U.S.C. § 5103A(b)(1); see Moore and Loving, both supra; see also Caluza, supra.
9
II. CONCLUSION
Upon consideration of the foregoing analysis, the record on appeal,
and the parties 'pleadings, that part of the December 9, 2008, Board decision that denied referral for the assignment of extraschedular evaluation of the left wrist claim is VACATED and that matter is REMANDED to the Board for adjudication consistent with this decision. On remand, the Board is also instructed to fulfill its duty to assist and obtain Mr. Morrow's 2006 MRI report concerning his lumbar spine. The decision is otherwise AFFIRMED.
DATED: June 9, 2011
Copies to:
Glenn R. Bergmann, Esq.
VA General Counsel (027)
10
Tuesday, June 28, 2011
Monday, June 27, 2011
Panel Decision, Need to Allege Failure to Perform Duties, Mountford v. Shinseki
Mountford v. Shinseki, No. 09-1759 (Argued March 30, 2011 Decided June 21, 2011)
Excerpts from decision below:
"VA's obligation is to accurately determine the results of the proceedings in the State court before depriving a veteran of benefits pursuant to the statute. In this case, Mr. Mountford has not even alleged that either system did not perform the duties allocated to it."
++++++++++++++++++++++++++++++++++++++++++++++
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 09-1759
STEVE W. MOUNTFORD, APPELLANT,
v.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
On Appeal from the Board of Veterans' Appeals
(Argued March 30, 2011 Decided June 21, 2011)
Amy Fletcher, of Washington, D.C., for the appellant.
Jessica M. Swartz, with whom Will A. Gunn, General Counsel; R. Randall Campbell, Assistant General Counsel; and Kenneth A. Walsh, Deputy Assistant General Counsel, all of Washington, D.C., were on the brief for the appellee.
Before KASOLD, Chief Judge, and LANCE and DAVIS, Judges.
DAVIS, Judge, filed the opinion of the Court. KASOLD, Chief Judge, filed a dissenting opinion.
DAVIS, Judge: U.S. Air Force veteran Steve W. Mountford appeals through counsel from a February 26, 2009, Board of Veterans' Appeals (Board) decision that denied entitlement to restoration of benefits for his service-connected schizophrenia prior to May 25, 2004, because he was found to be a "fugitive felon" under 38 U.S.C. § 5313B.
On December 27, 2001, Congress enacted 38 U.S.C. § 5313B. That statute bars veterans and their dependents from receiving VA benefits while veterans or their beneficiaries are "fugitive felons." 38 U.S.C. § 5313B(a). Mr. Mountford argues that the Board's determination that he was a fugitive felon from December 21, 2001, to May 25, 2004, pursuant to section 5313B was erroneous as a matter of law and that his benefits should be fully restored for that period. For the following reasons, the Court will affirm the Board's February 2009 decision.
I. BACKGROUND
Mr. Mountford served on active duty in the U.S. Air Force from October 1977 until August 1978 when he was granted medical retirement. On November 16, 1978, Mr. Mountford was awarded service connection for schizophrenia.
Later, in April 1994, after pleading nolo contendere to charges of felony burglary and criminal mischief in Florida, Mr. Mountford was granted leniency and placed on probation.1 See Record (R.) at 295. In September 1994, based on Mr. Mountford's probation officer's sworn statement that Mr. Mountford had violated his probation,2 an arrest warrant was issued. That warrant remained unserved and outstanding for nearly 10 years. See id.at 296, 373. On December 27, 2001, while Mr. Mountford's warrant was outstanding, Congress enacted 38 U.S.C. § 5313B, which provides in part that "[a] veteran who is otherwise eligible for a benefit . . . may not be paid or otherwise provided such benefit for any period during which such veteran is
a fugitive felon." 38 U.S.C. § 5313B(a). The statute defines "fugitive felon," as a person who is a fugitive by reason of (A) fleeing to avoid prosecution, or custody or confinement after conviction, for an offense, or an attempt to commit an offense, which is a felony under the laws of the place from which the person flees; or (B) violating a condition of probation or parole imposed for commission of a felony under Federal or State law. 38 U.S.C. § 5313B(b)1(A),(B).
In April 2004 VA notified Mr. Mountford of the warrant and informed him that his benefits could be temporarily suspended pursuant to the fugitive felon statute. Shortly thereafter Mr. Mountford turned himself in and was found guilty of both the violation and the underlying crimes and was sentenced to time served effective May 25, 2004.3 See R. at 106-07. On June 4, 2004, VA sent Mr. Mountford notice stating: "Effective December 27, 2001 your monthly compensation
footnote 1 The Florida court system contains a pro-defendant provision where a trial judge may withhold adjudication of guilt if the judge places the defendant on probation and judgment is withheld subject to compliance with the conditions of that probation. FL. R. CRIM. P. 3.670.
footnote 2 The probation officer's sworn statement provided that Mr. Mountford had violated the conditions of his probation by failing to submit two monthly written reports and pay three months of supervisory fees totaling $156.
footnote 3 Mr. Mountford was actually adjudicated guilty June 2, 2004, but the Florida court recognized the violation of probation and adjudication of guilt as of May 25, 2004, the date the warrant was served.
2
benefits are terminated." R. at 331. On June 16, 2004, Mr. Mountford, with the help of the American Legion, submitted paperwork to VA to have his benefits reinstated. See id. at 290, 295, 296, 298.
The evidence submitted at this time included documentation of a judgment against Mr. Mountford for the underlying crimes of felony burglary and criminal mischief as well as an admission to the violation of probation. See id. at 295-96. There was no evidence submitted, however, of the warrant
being cleared or any information regarding when the warrant was served.
On July 2, 2004, the Togus, Maine, regional office (RO) erroneously informed Mr. Mountford that his benefits had been reinstated as of the date of the initial termination, December 27, 2001, effectively eliminating any period in which he was a fugitive felon under section 5313B.
See id. at 288-89. The error appears to have been caused by the RO's lack of information regarding the date the warrant was served. See id. at 290, 295, 296.
In February 2006, VA notified Mr. Mountford that it was informed of the existence of the same warrant by law enforcement authorities and that the warrant was still outstanding. See id. at 167-68. On July 31, 2006, VA first learned that the warrant was served on May 25, 2004. See id. at 162. In August 2006, based on the newly obtained evidence, the Togus RO found that Mr. Mountford had wrongfully received benefits from December 27, 2001, to May 25, 2004, because of his fugitive felon status, causing an overpayment in excess of $63,000.4 See id. at 159-61. Mr. Mountford does not dispute any of these facts.
The question before the Court is whether an adjudication of guilt is required under 38 U.S.C. § 5313B(1)(b) for a veteran to be considered a fugitive felon. The Court's inquiry into the proper interpretation of section 5313B is a question of law, and the Court reviews the Board's interpretation de novo. See Butts v. Brown, 5 Vet.App. 532, 539 (1993) (en banc); see also Hensley v. West, 212 F.3d 1255, 1262-64 (Fed. Cir. 2000) (discussing proper application of de novo review).
footnote 4 While the RO in February 2006 determined that Mr. Mountford had received an overpayment in benefits, it did not find that the July 2, 2004, RO decision contained clear and unmistakable error. See 38 C.F.R. § 3.105 (2010).
However, counsel for appellant at oral argument conceded that any error in VA's failure to follow procedure in the August 2006 decision was harmless. See Oral Arg. at 19:33-20:45, available at http://uscourts.cavc.gov/
oral_arguments/2011OralArguments.cfm; see also 38 U.S.C. § 7261; see also Marciniak v. Brown, 10 Vet.App. 198, 201 (1997) (indicating appellant must allege and demonstrate prejudice or Court will conclude procedural error is harmless). Moreover, as a result of the July 2004 error, Mr. Mountford in effect received an interest-free loan from the Government for more than two years and therefore actually benefitted from the mistake.
3
II. ARGUMENTS OF THE PARTIES
A. The Appellant
Mr. Mountford argues that the Court should reverse the Board's finding that the appellant was a "fugitive felon" under 38 U.S.C. § 5313B for the period December 27, 2001, through May 25, 2004, because an adjudication of guilt is required under the statute and was not entered until June 2004. Appellant's Brief (Br.) at 7. He contends that the language "commission of a felony" signals Congress's desire to include as fugitive felons only those who have been adjudicated guilty of a felony–not those, like him, who have pled nolo contendere. Id. Similarly Mr. Mountford contends that the Board interpreted 38 U.S.C. § 5313B(b)1(B) in such a way as to inflict upon him an unconstitutional bill of attainder and deprive him of his protected property interest in the continued receipt of VA disability benefits without due process. Id. at 12-15.
Alternatively, he argues that the Court should reverse the Board's finding that he was a fugitive felon under 38 U.S.C. § 5313B because a plea of nolo contendere does not act as an admission of guilt for purposes of subsequent civil proceedings. Id. at 15-18.
B. The Secretary
The Secretary responds that Mr. Mountford was a fugitive felon under 38 U.S.C. § 5313B(b)1(B) because he violated the terms of his probation for the commission of a felony, not for the underlying felony. Secretary's Br. at 9-11. Therefore, whether or when appellant was adjudicated guilty of felony burglary has no bearing on VA's application of the fugitive felon statute
in this case. Id. at 11-12.
The Secretary also responds that Mr. Mountford's interpretation of 38 U.S.C. § 5313B does not meet the elements of a bill of attainder. Id. at 15-24. He points out that for a law to be a bill of attainder it must "legislatively determine[] guilt and inflict[] punishment without provision of the
protections of a judicial trial." Id. at 15 (quoting Nixon v. Admin'r of Gen. Servs., 433 U.S. 425, 468 (1977)). Therefore, he argues that the Board's interpretation cannot be a bill of attainder because it is not a legislative determination. Id.
Additionally the Secretary responds that the Board did not adjudicate Mr. Mountford's guilt but only found that he was a fugitive felon under the statute for a violation of probation. Mr. Mountford was afforded due process because of the procedures used by VA, including notice of the
4
violation, information on how to rectify the violation, a hearing before the decision officer, and the chance to appeal from any findings of the decision officer. Id. at 23. Thus there is no merit to Mr. Mountford's argument that he was not afforded due process.
III. ANALYSIS
A. Plain Language
The Court, in determining whether an adjudication of guilt is required for a veteran or beneficiary to be a fugitive felon, turns first to the language of the statute. "'Statutory interpretation begins with the language of the statute, the plain meaning of which we derive from its text and its structure.'" Myore v. Nicholson, 489 F.3d 1207, 1211 (Fed. Cir. 2007) (quoting McEntee v. MSPB, 404 F.3d 1320, 1328 (Fed. Cir. 2005)). "In evaluating whether Congress has directly spoken to the question at issue, the starting point is to examine the language and structure of the statute itself." Sursely v. Peake, 22 Vet.App. 21, 24 (2007); see also Good Samaritan Hosp. v. Shalala, 508 U.S. 402, 409 (1993). "'[E]ach part or section [of a statute] should be construed in connection with every other part or section so as to produce a harmonious whole.'" Meeks v. West, 12 Vet.App. 352, 354 (1999) (quoting 2A N. SINGER, SUTHERLAND ON STATUTORY CONSTRUCTION § 46.05 (5th ed. 1992)).
The plain language of section 5313B(b)(1)(B) provides that a person is a fugitive felon by reason of "violating a condition of probation or parole imposed for commission of a felony under Federal or State law." 38 U.S.C. § 5313B(b)1(B). The plain language is unambiguous: The violation of a condition of probation makes one a fugitive felon. Therefore, the question for VA is whether that probation was imposed based on the commission of a felony. The ambiguity arises in the word "commission." Mr. Mountford argues that a "commission" requires an adjudication of guilt.
"Commission" is defined as "[t]he act of doing or perpetrating (as a crime)." BLACK'S LAW DICTIONARY 306 (9th ed. 2009) [hereinafter BLACK'S]. Under Florida law, probation may not be imposed without, at minimum, a plea of nolo contendere by a defendant. FLA. STAT. § 948.01. A plea of nolo contendere is an admission of the facts for the purpose of the pending prosecution. Vinson v. State, 345 So. 2d 711 (Fla. 1977). While Mr. Mountford is correct that a plea of nolo
5
contendere cannot be used as an admission of the underlying facts in a subsequent civil suit, see id., the imposition of probation is part of the criminal prosecution. In the present case, the Board noted the following conclusions of law:
(1) Under Florida law, burglary is a felony. See Fla. Stat. § 810.02 (1994). (2) Under Florida Statutes . . . section 948.01, probation may not be imposed without, at minimum, a plea of nolo contendere by a defendant; under Florida law, a plea of nolo contendere is an admission of the facts for the purpose of the pending prosecution. [id.]. R. at 6.
Mr. Mountford's argument that an adjudication of guilt is required under section 5313B(b)(1)(B) would be more convincing had Congress used the phrase "[v]iolating a condition of probation . . . imposed for the conviction of a felony under Federal or State law." The term "conviction" is defined as "[t]he act or process of judicially finding someone guilty of a crime." BLACK'S 384. A broader review of the fugitive felon statute reveals that the word "conviction" appears in 38 U.S.C. § 5313B(b)(1)(A). Had Congress intended an adjudication of guilt to be necessary under section 5313B(b)(1)(B), mirroring the language "conviction" used in section 5313B(b)(1)(A) would have been an obvious means of triggering such a requirement. The
Court therefore finds that a withholding of adjudication has no bearing on whether a veteran "violat[ed] a condition of probation or parole imposed under commission of a felony." Congress has not indicated an intention to except those who have already received a benefit in the withholding
of adjudication from such pro-defendant statutes as the one Mr. Mountford benefitted from in Florida. See FL. R. Crim. Proc. 3.670.
As an adjudication of guilt is not required for an individual to be considered a fugitive felon under section 5313B(b)(1)(B), the Court discerns no merit in Mr. Mountford's argument that 38 U.S.C. § 5313B does not apply to his situation. The Board determined that Mr. Mountford admitted all the facts necessary to find him guilty of felony burglary, but that in lieu of a finding of guilt, a Florida judge granted leniency and withheld a guilty judgment for a felony pending Mr. Mountford's compliance with the conditions of probation–conditions he violated numerous times in the five months after they were imposed. Mr. Mountford does not dispute any of these facts, specifically that he violated the probation imposed for his act of felony burglary. Mr. Mountford, in 1994, "violat[ed]
6
a condition of probation or parole imposed under commission of a felony under Federal or State law," despite the fact he was not adjudicated guilty until 2004 and was therefore a fugitive felon from December 27, 2001, to May 25, 2004. See 38 U.S.C. § 5313B(b)(1)(B). As the statute provides, a
fugitive felon may not be paid or otherwise provided such benefit for any period during which such veteran is a fugitive felon.
Our colleague's dissent is based on arguments not raised by the parties, nor discussed at oral argument, and is not central to the main holding. It is not the practice of a court to raise new arguments for the parties. See Roberts v. Shinseki, __ F.3d __, __, No. 2010-7104, slip op. at 3 n.1, 2011 WL 2162899, at *1 n.1 (Fed. Cir. June 1, 2011) (The Federal Circuit expressly declined to address arguments not raised by the parties.). The dissent attacks the plain-meaning approach of the majority's definition of "fugitive felon" and argues instead that, because Mr. Mountford may not have been aware of the existence of a warrant, he could not be a fleeing felon under the statute. In
essence, the dissent is reading into the plain meaning of the words "fugitive felon" a scienter requirement. Nowhere in the statute (section 5313B(b)(1)) or its legislative history is the slightest suggestion that one must have the prerequisite knowledge imposed by the dissent. Rather, "fugitive felon" under this statute is a term of art. The plain language of the statute very simply defines a "fugitive felon" as one who violates the conditions of probation. Congress has spoken with no ambiguity. Moreover, Mr. Mountford was acutely aware of the conditions of his probation,
including his duties to pay supervisory fees and submit monthly reports to his probation officer. He certainly was advised and understood the consequences of his failure to comply with the terms and conditions of his probation. Whether or not he had actual knowledge that a warrant had been issued was irrelevant and certainly not a part of the statutory requirement.
B. Due Process
Mr. Mountford next argues that the Board deprived him of his VA benefits without due process "by conceding that Appellant was not adjudicated guilty of any offense in 1994, but determining nonetheless that Appellant, had, in fact, committed a felony offense at that time."
Appellant's Br. at 14. Because the Court has determined that, based on the plain language of the statute, all that is required to be considered a fugitive felon under section 5313B(b)(1)(B) is a
7
violation of probation for the commission of a felony and not an adjudication of guilt on the underlying felony, this argument also fails. Since Mapp v. Ohio, 367 U.S. 643 (1961), it has been clear that due process governs State
court procedures for searches and arrests, including the procedures to issue warrants. The Supreme Court has also made clear that the responsibility for the accuracy of warrants lies with the issuing court and not the officials executing the consequences of the warrant:
Given the requirements that arrest be made only on probable cause and that one detained be accorded a speedy trial, we do not think a sheriff executing an arrest warrant is required by the Constitution to investigate independently every claim of innocence, whether the claim is based on mistaken identity or a defense such as lack of requisite intent. Nor is the official charged with maintaining custody of the accused named in the warrant required by the Constitution to perform an error-free investigation of such a claim. The ultimate determination of such claims of innocence is placed in the hands of the judge and the jury. Baker v. McCollan, 443 U.S. 137, 145-46 (1979).
In this case, Mr. Mountford has not even alleged that the procedures of the Florida court system for issuing the warrant in this case violate due process. Hence, the Court has no cause to question whether the warrant for probation violation was issued without probable cause or otherwise in violation of due process. Nor has the appellant alleged that VA's procedures for determining the existence of the warrant are in any way so error prone or inaccurate as to violate due process.
Therefore, the appellant's allegations that he was denied due process are unfounded.
To the extent that the appellant asserts that he was not provided trial-like procedures to challenge the allegation that he committed the underlying offense, his argument is doubly misplaced.
First, as noted above, Mr. Mountford's guilt of the underlying crime was not the basis of withholding his benefits under the statute. Second, regardless of whether his benefits were withheld based upon his probation violation or his commission of the charged offense, it is the Florida court system—not the Board—that is obligated to provide due process to accurately make these determinations. VA's obligation is to accurately determine the results of the proceedings in the State court before depriving a veteran of benefits pursuant to the statute. In this case, Mr. Mountford has not even alleged that either system did not perform the duties allocated to it.
8
C. Bill of Attainder
Finally, Mr. Mountford argues that the Board interpreted the statute in such a way as to inflict upon him an unconstitutional bill of attainder. A bill of attainder is a special legislative act prescribing punishment, without a trial, for a specific person or group. See BLACK'S 188. Article I, section 9 of the U.S. Constitution prohibits the legislative branch from passing bills of attainder.5
Accordingly, Congress may not determine guilt and inflict punishment upon an identifiable individual without provision of the protections of a judicial trial. Nixon v. Admin'r of Gen. Servs., supra. The elements of a bill of attainder are (1) specification of affected persons; (2) punishment;
and (3) lack of judicial trial. Selective Serv. Sys. v. Minn. Pub. Interest Research Grp., 468 U.S. 841, 847 (1984). "The fact that activity engaged in prior to the enactment of the legislation may be regarded administratively and judicially as relevant" under a statute does not make it an impermissible bill of attainder when it is directed to activity that continues after the effective date
of the legislation. Communist Party of U.S. v. Subversive Activities Control Bd., 367 U.S. 1, 87 (1961). "'[O]nly the clearest proof could suffice to establish the unconstitutionality of a statute on [the grounds that it is a bill of attainder].'" Id. at 83 (quoting Flemming v. Nestor, 363 U.S. 603, 617 (1960)).
The statute in this case is clearly not a bill of attainder for at least three reasons. First, the statute is not directed at Mr. Mountford or any group defined by actions taken prior to the legislation.
Second, the punishment is not imposed by the statute in lieu of a judicial proceeding, but rather as an additional consequence of a judicial proceeding. Third, the statute did not punish Mr. Mountford's pre-enactment behavior, but instead added a consequence to his ongoing probation violation. Thus, Congress was not circumventing the judicial process to intentionally harm Mr. Mountford, but rather was promoting sound public policy by establishing additional consequences to augment the actions of the appropriate criminal courts.6
footnote 5 The bill of attainder clause traditionally applies only to prevent Congress from passing unjust legislation, not
to impede a member of the executive branch, in this case the Secretary in interpreting an otherwise permissible statute.
footnote 6 Here, although not raised by the parties, the dissent additionally argues that section 5313B does not allow the
Secretary to recover benefits he has already paid but only prohibits the Secretary from making payments to fugitive felons. If section 5313B were the only statute at play in this process, perhaps the dissent would have a point; however, that is not the case. Pursuant to 38 U.S.C. § 3685(a), "[w]henever the Secretary finds that an overpayment has been made to a veteran . . . , the amount of such overpayment shall constitute a liability of such veteran or . . . to the United States."
9
IV. CONCLUSION
Based on the foregoing, the Court AFFIRMS the February 26, 2009, Board decision.
KASOLD, Chief Judge, dissenting: Mr. Mountford is a U.S. Air Force veteran, service connected for schizophrenia since 1978; he has had a total disability rating since 1997. He pled nolo contendere to attempted burglary in 1994 and was placed on probation. He failed to comply with all of the probationary requirements and a warrant for his arrest issued in September 1994. The warrant remained outstanding for over nine years, despite Mr. Mountford's travels into and out of the country in relative freedom. The Board found that Mr. Mountford had no knowledge of the warrant, and the record reflects that upon notice from VA that a warrant was outstanding and that he should explain why his VA benefits should not be recouped and stopped, Mr. Mountford promptly turned himself in and settled the matter with the state. Subsequently, the Secretary notified Mr. Mountford that his benefits were fully restored. For reasons unexplained, and without following regulation, the Secretary initiated action two years later to recoup over $63,000 for a period of time that Mr. Mountford received benefits and when neither he nor VA was aware that he had a warrant outstanding, culminating in this appeal.
Accepting arguendo the majority's general rejection of Mr. Mountford's specific arguments, and recognizing the general rule that "refusal to consider arguments not raised is a sound prudential practice," I nevertheless note and agree with the observation that courts have an "obligation to decide according to the law," and therefore, "there are times when prudence dictates the contrary." Davis v. United States, 512 U.S. 452, 464-65 (1994) (Scalia, J., concurring); see also Kamen v. Kemper Fin. Servs., Inc., 500 U.S. 90, 99 (1991) ("When an issue or claim is properly before the court, the court is not limited to the particular legal theories advanced by the parties, but rather retains the independent power to identify and apply the proper construction of governing law."); Carducci v. Regan, 714 F.2d 171, 177 (D.C. Cir. 1983) (noting that although courts are essentially "arbiters of "Any overpayment referred to in subsection (a) . . . may be recovered . . . in the same manner as any other debt due to the United States." 38 U.S.C. § 3685(c); see also 38 U.S.C. § 5314(a) ("[T]he Secretary shall . . . deduct the amount of the indebtedness of any person who has determined to be indebted to the United States by virtue of such person's participation in a benefits program administered by the Secretary from future payments made to such person under any law administered by the Secretary." (Emphasis added)). Thus, there was no need for section 5313B to specifically mention the recovery of benefits.
10
legal questions presented and argued by the parties before them [,] . . . not all legal arguments bearing upon the issue in question will always be identified by counsel, and we are not precluded from supplementing the contentions of counsel through our own deliberation and research").7
This appeal involves a question of jurisdiction, as well as obvious statutory and regulatory errors prejudicial to Mr. Mountford that flow from his general contention that the Board wrongfully applied section 38 U.S.C. § 5313B. Because interpretation of section 5313B is a matter of first impression for the Court and the errors in the Board's decision are patent and prejudicial, they should have been addressed by the Court. See Davis and Carducci, both supra. The errors are threefold.
1. Retrospective Application. There is nothing in section 5313B that permits the Secretary to recover benefits he already has paid. Rather, section 5313B prohibits the Secretary from making payments to veterans who are fugitive felons, once the Secretary is aware that a veteran is a fugitive felon. The prohibition is prospective, not retrospective; it is dependent on the Secretary having knowledge that a person is a fugitive felon. See 38 U.S.C. § 5313B(a) (providing in pertinent part that "[a] veteran who is otherwise eligible for a benefit specified in subsection (c) may not be paid or otherwise provided such benefit for any period during which the veteran is a fugitive felon"
(emphasis added)); see also United States v. LaBonte, 520 U.S. 751, 757 (1997) ("[W]e assume that in drafting this legislation, Congress said what it meant.").
The legislative history amply supports the prospective nature, and plain meaning, of the legislation and the action authorized therein. See Gardner v. Derwinski, 1 Vet.App. 584, 586-87 (1991) (plain meaning controls unless it demonstrably conflicts with legislative intent). Before section 5313B was enacted into law, there was no provision "to prevent veterans who are fugitives from justice from receiving VA benefits." S. REP. NO. 107-86, at 17 (2001). Section 5313B is "designed to cut off the means of support that allows [sic] fugitive felons to continue to flee." Id.
(emphasis added). Retrospective benefit recovery, as the Board and the majority permit, has nothing to do with cutting off a fugitive's means to continue to flee. And large, retroactive recoveries, as in
footnote 7 My colleagues definitively state that my dissent addresses issues "not central to the main holding". Ante at 7. But making such a statement does not make it so. The central holding is that section 5313B authorizes the Secretary to retroactively take benefits from a veteran who has a warrant out for his arrest, even when the Board finds that the veteran had no knowledge that a warrant was outstanding, and even when the veteran takes prompt action to clear the warrant when he learns of the warrant. I leave to the reader to determine if I address issues "central to the main holding."
11
this case, will impact a veteran's future benefits long after his fugitive felon status ends. Nothing in section 5313B supports such action.
Comparison to 42 U.S.C. § 1382(e)(4)(A), the Social Security statute upon which section 5313B is based, is instructive. The Social Security statute is drafted in terms of when a person is ineligible to receive Social Security benefits. See 42 U.S.C. § 1382(e)(4)(A) ("No person shall be considered an eligible individual . . . with respect to any month if during such month the person is . . . violating a condition of probation or parole imposed under Federal or State law."). In contrast, the veterans benefits statute, section 5313B, is drafted in terms of prohibiting VA from making payments; it does not define periods of ineligibility. See 38 U.S.C. § 5313B ("A veteran who is
otherwise eligible [ ] may not be paid. . . ."). The legislative history clearly demonstrates that Congress considered the Social Security legislation, which contains the "ineligibility" construction, but chose instead to prohibit payment from the Secretary, which intuitively requires knowledge on
the Secretary's part that a veteran is a fugitive felon before payment can be stopped. The Board's interpretation ignores this obvious distinction between the Social Security and veterans benefits statutes, and permits the Secretary to recover benefits from Mr. Mountford as though section 5313B defined the eligibility of a veteran to receive benefits as opposed to prohibiting the payment of benefits once the Secretary is aware a veteran is a fugitive felon. Essentially, despite the significantly different statutory approaches, the majority treat section 5313B as a duplicate of 42 U.S.C. § 1382(e)(4)(A). It is not. See LaBonte, supra.8
2. "Fugitive." Noting that section 5313B(b)(1) provides that "a fugitive felon is 'a person who is a fugitive by reason of . . . violating a condition of probation or parole imposed for commission of a felony under Federal or State law,'" the majority conclude that "[t]he plain language of the statute very simply defines a 'fugitive felon' as one who violates the conditions of probation."
footnote 8 The suggestion of my colleagues that because the Secretary is authorized by statute to recover overpayments, there was no need to state such authority in section 5313B, misses the point. Ante at 9 n.6. There is no dispute over the Secretary's authority to recover an overpayment. But there has to be an overpayment. Congress quite clearly rejected the legislative approach taken with Social Security benefits, which is to deny eligibility to a person in a fugitive felon status. Had Congress taken that approach with regard to veterans, payments made while a veteran was a fugitive felon would constitute an overpayment because the veteran would not be eligible to receive them. Instead, when addressing the same issue with veterans, Congress placed the burden on the Secretary to stop payments whenever the Secretary learned that a veteran was a fugitive felon. Until the Secretary learns that a veteran is a fugitive felon, it cannot be said that the Secretary has violated the law, and thus there has been no overpayment to be recovered.
12
Ante at 7. This ignores, however, the fact that Congress chose to describe a fugitive felon in terms of the reason one is a fugitive, as opposed to redefining the plain and natural meaning of the word "fugitive." Otherwise stated, although one might become a fugitive felon "by reason of" violating
probation, there remains the overarching requirement that one must nevertheless be a "fugitive" to be deemed a "fugitive felon." This invokes considerations of due process such as notice that one is wanted.
Indeed, a fugitive is "[a] person who flees or escapes; a refugee." BLACK'S LAW DICTIONARY 741 (9th ed. 2009); see also WEBSTER'S II NEW COLLEGE DICTIONARY 451 (3rd ed. 2001) (defining "fugitive" as "[f]leeing, as from the law"). It is self-evident that one must have some knowledge of being wanted in order to be fleeing, and this is the understanding encoded in other provisions of Federal law. See, e.g., 28 U.S.C. § 2466 (entitled "fugitive disentitlement," and providing that a
person forfeits the use of the U.S. courts if he, inter alia, leaves the jurisdiction of the United States "after notice or knowledge of the fact that a warrant or process has been issued for his apprehension"); 18 U.S.C. § 921(a)(15) ("The term 'fugitive from justice' means any person who has
fled from any State to avoid prosecution for a crime or to avoid giving testimony in any criminal proceeding.").9
Moreover, the Veterans Benefits Administration's Adjudication Procedures Manual (M21-1MR) interprets "fugitive" consistent with this natural meaning. According to the M21-MR, an outstanding arrest warrant raises only a presumption that the beneficiary is a fugitive felon for VA purposes. M21-MR, pt. X, ch. 16, 2. Indeed, when a beneficiary denies ever having received notice of a warrant, the RO is instructed to contact the Office of Inspector General (OIG), whose duties are described as follows:
The OIG fugitive felon coordinator will generally recommend that benefits payments not be discontinued if the evidence establishes that the beneficiary was unaware of
footnote 9 My colleagues also definitively state that "[n]owhere in the statute (section 5313B(b)(1)) or its legislative history is the slightest suggestion that one must have the prerequisite knowledge imposed by the dissent." Ante at 7 (emphasis added). But, again, stating it does not make it so. I leave to the reader to determine whether the use by Congress of the word "fugitive" was done without an understanding of its well-accepted meaning, or whether Congress intended to alter the commonly recognized meaning from English-language dictionaries. And I query, if there is not even the slightest suggestion in legislation or legislative intent that knowledge of an outstanding warrant is an element of being a fugitive felon, and I am imposing it in the first instance, why does the VA Adjudication Procedures Manual state that such knowledge is an element? See M21-1MR, pt. X, ch. 16.2.
13
the warrant or made good faith attempts to clear the warrant as soon as he/she knew or should have known of the existence of the warrant. Id. at 12 (emphasis added). Here, it is undisputed that the Board found that Mr. Mountford was unaware that he was the subject of an outstanding arrest warrant and that he promptly cleared the warrant when he learned about it. By the plain meaning of the term "fugitive," he was not a "fugitive felon." And, by the specific terms of the M21-MR, his VA benefits should not have been recouped.
3. Grave Procedural Error and Jurisdiction. It is well established that a decision becomes final after one year if a Notice of Disagreement is not filed. Percy v. Shinseki, 23 Vet.App. 37, 41 (2009) (citing 38 U.S.C. § 7105(b)(1)). Favorable final decisions are revised only when they contain clear and unmistakable error, an error long described by this Court as being an "undebatable" error. Russell v. Principi, 3 Vet.App. 310, 313-14 (1992) (en banc) ("The words 'clear and unmistakable error' are self-defining. They are errors that are undebatable, so that it can be said that reasonable minds could only conclude that the original decision was fatally flawed at the time it was made."); see also 38 U.S.C. § 5109A(a) ("A decision by the Secretary under this chapter is subject to revision on the grounds of clear and unmistakable error."). Moreover, although the Court has not addressed whether clear and unmistakable error is a jurisdictional requirement to reversing an otherwise final decision on a claim, the issue is so analogous to the fact that new and material evidence is a jurisdictional requirement for the Board to reopen a claim, that it should be addressed. See e.g., Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996) (holding that pursuant to 38 U.S.C. 5108, "the Board does not have jurisdiction to consider a claim which it previously adjudicated unless new and material evidence is presented, and before the Board may reopen such a claim, it must so find."); compare 38 U.S.C. § 5108 (new and material evidence required to reopen a claim) with 38 U.S.C. § 5109A (clear and unmistakable error required to revise RO decisions) and § 7111 (same as to Board decision).
In the decision on appeal, the Board acknowledged that the regional office cleared Mr. Mountford of fugitive felon status in July 2004 and reversed any recoupment action, but then later, without explanation, adjudicated the matter again in August 2006, this time unfavorably. The record reflects that neither the August 2006 decision nor the Board decision on appeal gave any
14
consideration to the fact that clear and unmistakable error was required to overturn the 2004 decision.
Given the natural meaning of "fugitive," the fact that Mr. Mountford was not aware a warrant was out for his arrest and took prompt corrective action upon being told of the warrant, the prospective nature of section 5313B in authorizing benefit payments to be stopped, and the Secretary's own M21-MR guidance that recoupment is not warranted if the veteran was not aware that he was the subject of an outstanding warrant, as is the case here, the 2004 decision cannot reasonably be said to be the product of clear and unmistakable error.10
My colleagues's suggestion that the RO may have reinstated Mr. Mountford's benefits
footnote 10. based upon a lack of information regarding the date the warrant was served is pure conjecture, without any basis in the record. Ante at 3.
Nothing in the record on appeal suggests confusion by the RO, as opposed to implementation of the very concept now contained in the M21-MR that benefits not be taken retroactively if the veteran was not aware he was the subject of an outstanding warrant. Even assuming confusion by the RO, it remains unexplained how a lack of information regarding the date Mr. Mounford was served with the warrant could have been a basis for reinstating benefits and two years later reversing that reinstatement. The date appears to be relevant only to when Mr. Mountford had knowledge that a warrant issued for his arrest, which would support a revocation of benefits back only to that date.
Additionally, my colleagues state that Mr. Mountford does not dispute any of the "facts" laid out in the Court's majority opinion. Ante at 3. Such a statement is presumptive in that Mr. Mountford not only has not had an opportunity to review the facts laid out by the majority, but unwarranted liberty has been taken with regard to what might be a "fact."
For example, my colleagues state as a fact that the Secretary did not learn until July 2006 that Mr. Mountford had been served with a warrant in April 2004. But, the cite referenced by my colleagues as support for this "fact" states nothing about this being the first notification to the Secretary. R. at 162. Additionally, my colleagues definitively state that no evidence of the warrant being cleared was submitted to the RO with Mr. Mountford's American Legion assisted June 2004 submission seeking reinstatement, but the record on appeal does not state what documents were or were not
attached thereto. Moreover, the record on appeal is not the entire record, see VET. APP. R. 28.1 (requiring a record of proceedings to be submitted for review, in lieu of the entire record), and when the Board has not addressed a matter and a party has not otherwise admitted a fact, there is no proper basis for an appellate court to state a fact that is not clear on its face in the record on appeal; to do that, the entire record would have to be reviewed, see 38 U.S.C. § 7261(b)(providing for judicial review on the record). Accordingly, remand for the Board to address a potentially important issue is appropriate in such circumstances. See Maggitt v. West, 202 F.3d. 1370, 1377-78 (Fed. Cir. 2000) (holding that the Court has the discretion to hear or remand legal issue raised for the first time on appeal). Furthermore, the submission by a congressionally authorized veterans service organization that explicitly states a warrant has been cleared is evidence; it may not be accepted by the factfinder, but it is evidence. Flynn v. Brown, 6 Vet.App. 500, 504 (1994) (holding that the hearsay rule does not apply to the VA claims adjudication process); see also R. at 290. And, nothing in the record on appeal indicates the representation of the American Legion was not accepted by the RO or that the warrant was not cleared; indeed, the evidence of conviction and time served is evidence that the warrant was resolved.
For whatever reason, my colleagues also state that "Mr. Mountford was acutely aware of the conditions of his probation, including his duties to pay supervisory fees and submit monthly reports to his probation officer. He certainly was advised and understood the consequences of his failure to comply with the terms and conditions of his probation." Ante at 7 (emphasis added). No citation to the record on appeal is provided for such definitive findings of Mr. Mountford's awareness and understanding, and no such finding was made by the Board. A guilty finding presumes the necessary mens rea, but that is a far cry from "acute awareness" and being "advised" of and having "understood"
15
Although Mr. Mountford's counsel stated at oral argument that she did not raise this issue in her briefing because she thought this procedural error was harmless, her thinking is not dispositive. For one, as noted above, whether or not there was clear and unmistakable error in the July 2004 RO decision raises a question of jurisdiction, an issue that cannot be waived. Jarrell v. Nicholson, 20 Vet.App. 326, 331 (2006) (en banc). Second, there is no indication this issue was discussed with her client. The assertion of a veteran's counsel cannot always control the outcome. See Janssen v. Principi, 15 Vet.App. 370, 374 (2001) (counsel's waiver of a guaranteed right is effective if the appellant has knowledge of the right and voluntarily intends to relinquish that right); Jarrell, 20 Vet.App. at 338 (Hagel, J., dissenting) (to be an effective waiver of a right, a claimant must have knowledge of a right and must intend voluntarily and freely to relinquish or surrender that right); see also Davis, supra. Moreover, it is the Court's statutory duty to "take due account of prejudicial error." 38 U.S.C. § 7261(b)(2); Newhouse v. Nicholson, 497 F.3d 1298, 1301 (Fed. Cir. 2007) ("[T]he Veterans Court [is] required to examine whether any errors by VA were prejudicial and [] it must do so based on the administrative record."); Parker v. Brown, 9 Vet.App. 476, 481 (1996) ("'Prejudice . . . means injury to an interest that the statute, regulation, or rule in question was designed to protect.'" (quoting Intercargo Ins. Co. v. United States, 83 F.3d 391, 396 (Fed. Cir. 1996))). In the heat of aggressive oral argument, and given the obvious prejudice associated with adjudicating a matter under a far lesser standard than authorized by regulation, counsel's oral argument statement should not be accepted as a knowing waiver of the veteran's rights.
For these reasons, I respectfully dissent.
consequences. Indeed, the record on appeal reflects that Mr. Mountford is 100% disabled for schizophrenia.
16
Excerpts from decision below:
"VA's obligation is to accurately determine the results of the proceedings in the State court before depriving a veteran of benefits pursuant to the statute. In this case, Mr. Mountford has not even alleged that either system did not perform the duties allocated to it."
++++++++++++++++++++++++++++++++++++++++++++++
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 09-1759
STEVE W. MOUNTFORD, APPELLANT,
v.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
On Appeal from the Board of Veterans' Appeals
(Argued March 30, 2011 Decided June 21, 2011)
Amy Fletcher, of Washington, D.C., for the appellant.
Jessica M. Swartz, with whom Will A. Gunn, General Counsel; R. Randall Campbell, Assistant General Counsel; and Kenneth A. Walsh, Deputy Assistant General Counsel, all of Washington, D.C., were on the brief for the appellee.
Before KASOLD, Chief Judge, and LANCE and DAVIS, Judges.
DAVIS, Judge, filed the opinion of the Court. KASOLD, Chief Judge, filed a dissenting opinion.
DAVIS, Judge: U.S. Air Force veteran Steve W. Mountford appeals through counsel from a February 26, 2009, Board of Veterans' Appeals (Board) decision that denied entitlement to restoration of benefits for his service-connected schizophrenia prior to May 25, 2004, because he was found to be a "fugitive felon" under 38 U.S.C. § 5313B.
On December 27, 2001, Congress enacted 38 U.S.C. § 5313B. That statute bars veterans and their dependents from receiving VA benefits while veterans or their beneficiaries are "fugitive felons." 38 U.S.C. § 5313B(a). Mr. Mountford argues that the Board's determination that he was a fugitive felon from December 21, 2001, to May 25, 2004, pursuant to section 5313B was erroneous as a matter of law and that his benefits should be fully restored for that period. For the following reasons, the Court will affirm the Board's February 2009 decision.
I. BACKGROUND
Mr. Mountford served on active duty in the U.S. Air Force from October 1977 until August 1978 when he was granted medical retirement. On November 16, 1978, Mr. Mountford was awarded service connection for schizophrenia.
Later, in April 1994, after pleading nolo contendere to charges of felony burglary and criminal mischief in Florida, Mr. Mountford was granted leniency and placed on probation.1 See Record (R.) at 295. In September 1994, based on Mr. Mountford's probation officer's sworn statement that Mr. Mountford had violated his probation,2 an arrest warrant was issued. That warrant remained unserved and outstanding for nearly 10 years. See id.at 296, 373. On December 27, 2001, while Mr. Mountford's warrant was outstanding, Congress enacted 38 U.S.C. § 5313B, which provides in part that "[a] veteran who is otherwise eligible for a benefit . . . may not be paid or otherwise provided such benefit for any period during which such veteran is
a fugitive felon." 38 U.S.C. § 5313B(a). The statute defines "fugitive felon," as a person who is a fugitive by reason of (A) fleeing to avoid prosecution, or custody or confinement after conviction, for an offense, or an attempt to commit an offense, which is a felony under the laws of the place from which the person flees; or (B) violating a condition of probation or parole imposed for commission of a felony under Federal or State law. 38 U.S.C. § 5313B(b)1(A),(B).
In April 2004 VA notified Mr. Mountford of the warrant and informed him that his benefits could be temporarily suspended pursuant to the fugitive felon statute. Shortly thereafter Mr. Mountford turned himself in and was found guilty of both the violation and the underlying crimes and was sentenced to time served effective May 25, 2004.3 See R. at 106-07. On June 4, 2004, VA sent Mr. Mountford notice stating: "Effective December 27, 2001 your monthly compensation
footnote 1 The Florida court system contains a pro-defendant provision where a trial judge may withhold adjudication of guilt if the judge places the defendant on probation and judgment is withheld subject to compliance with the conditions of that probation. FL. R. CRIM. P. 3.670.
footnote 2 The probation officer's sworn statement provided that Mr. Mountford had violated the conditions of his probation by failing to submit two monthly written reports and pay three months of supervisory fees totaling $156.
footnote 3 Mr. Mountford was actually adjudicated guilty June 2, 2004, but the Florida court recognized the violation of probation and adjudication of guilt as of May 25, 2004, the date the warrant was served.
2
benefits are terminated." R. at 331. On June 16, 2004, Mr. Mountford, with the help of the American Legion, submitted paperwork to VA to have his benefits reinstated. See id. at 290, 295, 296, 298.
The evidence submitted at this time included documentation of a judgment against Mr. Mountford for the underlying crimes of felony burglary and criminal mischief as well as an admission to the violation of probation. See id. at 295-96. There was no evidence submitted, however, of the warrant
being cleared or any information regarding when the warrant was served.
On July 2, 2004, the Togus, Maine, regional office (RO) erroneously informed Mr. Mountford that his benefits had been reinstated as of the date of the initial termination, December 27, 2001, effectively eliminating any period in which he was a fugitive felon under section 5313B.
See id. at 288-89. The error appears to have been caused by the RO's lack of information regarding the date the warrant was served. See id. at 290, 295, 296.
In February 2006, VA notified Mr. Mountford that it was informed of the existence of the same warrant by law enforcement authorities and that the warrant was still outstanding. See id. at 167-68. On July 31, 2006, VA first learned that the warrant was served on May 25, 2004. See id. at 162. In August 2006, based on the newly obtained evidence, the Togus RO found that Mr. Mountford had wrongfully received benefits from December 27, 2001, to May 25, 2004, because of his fugitive felon status, causing an overpayment in excess of $63,000.4 See id. at 159-61. Mr. Mountford does not dispute any of these facts.
The question before the Court is whether an adjudication of guilt is required under 38 U.S.C. § 5313B(1)(b) for a veteran to be considered a fugitive felon. The Court's inquiry into the proper interpretation of section 5313B is a question of law, and the Court reviews the Board's interpretation de novo. See Butts v. Brown, 5 Vet.App. 532, 539 (1993) (en banc); see also Hensley v. West, 212 F.3d 1255, 1262-64 (Fed. Cir. 2000) (discussing proper application of de novo review).
footnote 4 While the RO in February 2006 determined that Mr. Mountford had received an overpayment in benefits, it did not find that the July 2, 2004, RO decision contained clear and unmistakable error. See 38 C.F.R. § 3.105 (2010).
However, counsel for appellant at oral argument conceded that any error in VA's failure to follow procedure in the August 2006 decision was harmless. See Oral Arg. at 19:33-20:45, available at http://uscourts.cavc.gov/
oral_arguments/2011OralArguments.cfm; see also 38 U.S.C. § 7261; see also Marciniak v. Brown, 10 Vet.App. 198, 201 (1997) (indicating appellant must allege and demonstrate prejudice or Court will conclude procedural error is harmless). Moreover, as a result of the July 2004 error, Mr. Mountford in effect received an interest-free loan from the Government for more than two years and therefore actually benefitted from the mistake.
3
II. ARGUMENTS OF THE PARTIES
A. The Appellant
Mr. Mountford argues that the Court should reverse the Board's finding that the appellant was a "fugitive felon" under 38 U.S.C. § 5313B for the period December 27, 2001, through May 25, 2004, because an adjudication of guilt is required under the statute and was not entered until June 2004. Appellant's Brief (Br.) at 7. He contends that the language "commission of a felony" signals Congress's desire to include as fugitive felons only those who have been adjudicated guilty of a felony–not those, like him, who have pled nolo contendere. Id. Similarly Mr. Mountford contends that the Board interpreted 38 U.S.C. § 5313B(b)1(B) in such a way as to inflict upon him an unconstitutional bill of attainder and deprive him of his protected property interest in the continued receipt of VA disability benefits without due process. Id. at 12-15.
Alternatively, he argues that the Court should reverse the Board's finding that he was a fugitive felon under 38 U.S.C. § 5313B because a plea of nolo contendere does not act as an admission of guilt for purposes of subsequent civil proceedings. Id. at 15-18.
B. The Secretary
The Secretary responds that Mr. Mountford was a fugitive felon under 38 U.S.C. § 5313B(b)1(B) because he violated the terms of his probation for the commission of a felony, not for the underlying felony. Secretary's Br. at 9-11. Therefore, whether or when appellant was adjudicated guilty of felony burglary has no bearing on VA's application of the fugitive felon statute
in this case. Id. at 11-12.
The Secretary also responds that Mr. Mountford's interpretation of 38 U.S.C. § 5313B does not meet the elements of a bill of attainder. Id. at 15-24. He points out that for a law to be a bill of attainder it must "legislatively determine[] guilt and inflict[] punishment without provision of the
protections of a judicial trial." Id. at 15 (quoting Nixon v. Admin'r of Gen. Servs., 433 U.S. 425, 468 (1977)). Therefore, he argues that the Board's interpretation cannot be a bill of attainder because it is not a legislative determination. Id.
Additionally the Secretary responds that the Board did not adjudicate Mr. Mountford's guilt but only found that he was a fugitive felon under the statute for a violation of probation. Mr. Mountford was afforded due process because of the procedures used by VA, including notice of the
4
violation, information on how to rectify the violation, a hearing before the decision officer, and the chance to appeal from any findings of the decision officer. Id. at 23. Thus there is no merit to Mr. Mountford's argument that he was not afforded due process.
III. ANALYSIS
A. Plain Language
The Court, in determining whether an adjudication of guilt is required for a veteran or beneficiary to be a fugitive felon, turns first to the language of the statute. "'Statutory interpretation begins with the language of the statute, the plain meaning of which we derive from its text and its structure.'" Myore v. Nicholson, 489 F.3d 1207, 1211 (Fed. Cir. 2007) (quoting McEntee v. MSPB, 404 F.3d 1320, 1328 (Fed. Cir. 2005)). "In evaluating whether Congress has directly spoken to the question at issue, the starting point is to examine the language and structure of the statute itself." Sursely v. Peake, 22 Vet.App. 21, 24 (2007); see also Good Samaritan Hosp. v. Shalala, 508 U.S. 402, 409 (1993). "'[E]ach part or section [of a statute] should be construed in connection with every other part or section so as to produce a harmonious whole.'" Meeks v. West, 12 Vet.App. 352, 354 (1999) (quoting 2A N. SINGER, SUTHERLAND ON STATUTORY CONSTRUCTION § 46.05 (5th ed. 1992)).
The plain language of section 5313B(b)(1)(B) provides that a person is a fugitive felon by reason of "violating a condition of probation or parole imposed for commission of a felony under Federal or State law." 38 U.S.C. § 5313B(b)1(B). The plain language is unambiguous: The violation of a condition of probation makes one a fugitive felon. Therefore, the question for VA is whether that probation was imposed based on the commission of a felony. The ambiguity arises in the word "commission." Mr. Mountford argues that a "commission" requires an adjudication of guilt.
"Commission" is defined as "[t]he act of doing or perpetrating (as a crime)." BLACK'S LAW DICTIONARY 306 (9th ed. 2009) [hereinafter BLACK'S]. Under Florida law, probation may not be imposed without, at minimum, a plea of nolo contendere by a defendant. FLA. STAT. § 948.01. A plea of nolo contendere is an admission of the facts for the purpose of the pending prosecution. Vinson v. State, 345 So. 2d 711 (Fla. 1977). While Mr. Mountford is correct that a plea of nolo
5
contendere cannot be used as an admission of the underlying facts in a subsequent civil suit, see id., the imposition of probation is part of the criminal prosecution. In the present case, the Board noted the following conclusions of law:
(1) Under Florida law, burglary is a felony. See Fla. Stat. § 810.02 (1994). (2) Under Florida Statutes . . . section 948.01, probation may not be imposed without, at minimum, a plea of nolo contendere by a defendant; under Florida law, a plea of nolo contendere is an admission of the facts for the purpose of the pending prosecution. [id.]. R. at 6.
Mr. Mountford's argument that an adjudication of guilt is required under section 5313B(b)(1)(B) would be more convincing had Congress used the phrase "[v]iolating a condition of probation . . . imposed for the conviction of a felony under Federal or State law." The term "conviction" is defined as "[t]he act or process of judicially finding someone guilty of a crime." BLACK'S 384. A broader review of the fugitive felon statute reveals that the word "conviction" appears in 38 U.S.C. § 5313B(b)(1)(A). Had Congress intended an adjudication of guilt to be necessary under section 5313B(b)(1)(B), mirroring the language "conviction" used in section 5313B(b)(1)(A) would have been an obvious means of triggering such a requirement. The
Court therefore finds that a withholding of adjudication has no bearing on whether a veteran "violat[ed] a condition of probation or parole imposed under commission of a felony." Congress has not indicated an intention to except those who have already received a benefit in the withholding
of adjudication from such pro-defendant statutes as the one Mr. Mountford benefitted from in Florida. See FL. R. Crim. Proc. 3.670.
As an adjudication of guilt is not required for an individual to be considered a fugitive felon under section 5313B(b)(1)(B), the Court discerns no merit in Mr. Mountford's argument that 38 U.S.C. § 5313B does not apply to his situation. The Board determined that Mr. Mountford admitted all the facts necessary to find him guilty of felony burglary, but that in lieu of a finding of guilt, a Florida judge granted leniency and withheld a guilty judgment for a felony pending Mr. Mountford's compliance with the conditions of probation–conditions he violated numerous times in the five months after they were imposed. Mr. Mountford does not dispute any of these facts, specifically that he violated the probation imposed for his act of felony burglary. Mr. Mountford, in 1994, "violat[ed]
6
a condition of probation or parole imposed under commission of a felony under Federal or State law," despite the fact he was not adjudicated guilty until 2004 and was therefore a fugitive felon from December 27, 2001, to May 25, 2004. See 38 U.S.C. § 5313B(b)(1)(B). As the statute provides, a
fugitive felon may not be paid or otherwise provided such benefit for any period during which such veteran is a fugitive felon.
Our colleague's dissent is based on arguments not raised by the parties, nor discussed at oral argument, and is not central to the main holding. It is not the practice of a court to raise new arguments for the parties. See Roberts v. Shinseki, __ F.3d __, __, No. 2010-7104, slip op. at 3 n.1, 2011 WL 2162899, at *1 n.1 (Fed. Cir. June 1, 2011) (The Federal Circuit expressly declined to address arguments not raised by the parties.). The dissent attacks the plain-meaning approach of the majority's definition of "fugitive felon" and argues instead that, because Mr. Mountford may not have been aware of the existence of a warrant, he could not be a fleeing felon under the statute. In
essence, the dissent is reading into the plain meaning of the words "fugitive felon" a scienter requirement. Nowhere in the statute (section 5313B(b)(1)) or its legislative history is the slightest suggestion that one must have the prerequisite knowledge imposed by the dissent. Rather, "fugitive felon" under this statute is a term of art. The plain language of the statute very simply defines a "fugitive felon" as one who violates the conditions of probation. Congress has spoken with no ambiguity. Moreover, Mr. Mountford was acutely aware of the conditions of his probation,
including his duties to pay supervisory fees and submit monthly reports to his probation officer. He certainly was advised and understood the consequences of his failure to comply with the terms and conditions of his probation. Whether or not he had actual knowledge that a warrant had been issued was irrelevant and certainly not a part of the statutory requirement.
B. Due Process
Mr. Mountford next argues that the Board deprived him of his VA benefits without due process "by conceding that Appellant was not adjudicated guilty of any offense in 1994, but determining nonetheless that Appellant, had, in fact, committed a felony offense at that time."
Appellant's Br. at 14. Because the Court has determined that, based on the plain language of the statute, all that is required to be considered a fugitive felon under section 5313B(b)(1)(B) is a
7
violation of probation for the commission of a felony and not an adjudication of guilt on the underlying felony, this argument also fails. Since Mapp v. Ohio, 367 U.S. 643 (1961), it has been clear that due process governs State
court procedures for searches and arrests, including the procedures to issue warrants. The Supreme Court has also made clear that the responsibility for the accuracy of warrants lies with the issuing court and not the officials executing the consequences of the warrant:
Given the requirements that arrest be made only on probable cause and that one detained be accorded a speedy trial, we do not think a sheriff executing an arrest warrant is required by the Constitution to investigate independently every claim of innocence, whether the claim is based on mistaken identity or a defense such as lack of requisite intent. Nor is the official charged with maintaining custody of the accused named in the warrant required by the Constitution to perform an error-free investigation of such a claim. The ultimate determination of such claims of innocence is placed in the hands of the judge and the jury. Baker v. McCollan, 443 U.S. 137, 145-46 (1979).
In this case, Mr. Mountford has not even alleged that the procedures of the Florida court system for issuing the warrant in this case violate due process. Hence, the Court has no cause to question whether the warrant for probation violation was issued without probable cause or otherwise in violation of due process. Nor has the appellant alleged that VA's procedures for determining the existence of the warrant are in any way so error prone or inaccurate as to violate due process.
Therefore, the appellant's allegations that he was denied due process are unfounded.
To the extent that the appellant asserts that he was not provided trial-like procedures to challenge the allegation that he committed the underlying offense, his argument is doubly misplaced.
First, as noted above, Mr. Mountford's guilt of the underlying crime was not the basis of withholding his benefits under the statute. Second, regardless of whether his benefits were withheld based upon his probation violation or his commission of the charged offense, it is the Florida court system—not the Board—that is obligated to provide due process to accurately make these determinations. VA's obligation is to accurately determine the results of the proceedings in the State court before depriving a veteran of benefits pursuant to the statute. In this case, Mr. Mountford has not even alleged that either system did not perform the duties allocated to it.
8
C. Bill of Attainder
Finally, Mr. Mountford argues that the Board interpreted the statute in such a way as to inflict upon him an unconstitutional bill of attainder. A bill of attainder is a special legislative act prescribing punishment, without a trial, for a specific person or group. See BLACK'S 188. Article I, section 9 of the U.S. Constitution prohibits the legislative branch from passing bills of attainder.5
Accordingly, Congress may not determine guilt and inflict punishment upon an identifiable individual without provision of the protections of a judicial trial. Nixon v. Admin'r of Gen. Servs., supra. The elements of a bill of attainder are (1) specification of affected persons; (2) punishment;
and (3) lack of judicial trial. Selective Serv. Sys. v. Minn. Pub. Interest Research Grp., 468 U.S. 841, 847 (1984). "The fact that activity engaged in prior to the enactment of the legislation may be regarded administratively and judicially as relevant" under a statute does not make it an impermissible bill of attainder when it is directed to activity that continues after the effective date
of the legislation. Communist Party of U.S. v. Subversive Activities Control Bd., 367 U.S. 1, 87 (1961). "'[O]nly the clearest proof could suffice to establish the unconstitutionality of a statute on [the grounds that it is a bill of attainder].'" Id. at 83 (quoting Flemming v. Nestor, 363 U.S. 603, 617 (1960)).
The statute in this case is clearly not a bill of attainder for at least three reasons. First, the statute is not directed at Mr. Mountford or any group defined by actions taken prior to the legislation.
Second, the punishment is not imposed by the statute in lieu of a judicial proceeding, but rather as an additional consequence of a judicial proceeding. Third, the statute did not punish Mr. Mountford's pre-enactment behavior, but instead added a consequence to his ongoing probation violation. Thus, Congress was not circumventing the judicial process to intentionally harm Mr. Mountford, but rather was promoting sound public policy by establishing additional consequences to augment the actions of the appropriate criminal courts.6
footnote 5 The bill of attainder clause traditionally applies only to prevent Congress from passing unjust legislation, not
to impede a member of the executive branch, in this case the Secretary in interpreting an otherwise permissible statute.
footnote 6 Here, although not raised by the parties, the dissent additionally argues that section 5313B does not allow the
Secretary to recover benefits he has already paid but only prohibits the Secretary from making payments to fugitive felons. If section 5313B were the only statute at play in this process, perhaps the dissent would have a point; however, that is not the case. Pursuant to 38 U.S.C. § 3685(a), "[w]henever the Secretary finds that an overpayment has been made to a veteran . . . , the amount of such overpayment shall constitute a liability of such veteran or . . . to the United States."
9
IV. CONCLUSION
Based on the foregoing, the Court AFFIRMS the February 26, 2009, Board decision.
KASOLD, Chief Judge, dissenting: Mr. Mountford is a U.S. Air Force veteran, service connected for schizophrenia since 1978; he has had a total disability rating since 1997. He pled nolo contendere to attempted burglary in 1994 and was placed on probation. He failed to comply with all of the probationary requirements and a warrant for his arrest issued in September 1994. The warrant remained outstanding for over nine years, despite Mr. Mountford's travels into and out of the country in relative freedom. The Board found that Mr. Mountford had no knowledge of the warrant, and the record reflects that upon notice from VA that a warrant was outstanding and that he should explain why his VA benefits should not be recouped and stopped, Mr. Mountford promptly turned himself in and settled the matter with the state. Subsequently, the Secretary notified Mr. Mountford that his benefits were fully restored. For reasons unexplained, and without following regulation, the Secretary initiated action two years later to recoup over $63,000 for a period of time that Mr. Mountford received benefits and when neither he nor VA was aware that he had a warrant outstanding, culminating in this appeal.
Accepting arguendo the majority's general rejection of Mr. Mountford's specific arguments, and recognizing the general rule that "refusal to consider arguments not raised is a sound prudential practice," I nevertheless note and agree with the observation that courts have an "obligation to decide according to the law," and therefore, "there are times when prudence dictates the contrary." Davis v. United States, 512 U.S. 452, 464-65 (1994) (Scalia, J., concurring); see also Kamen v. Kemper Fin. Servs., Inc., 500 U.S. 90, 99 (1991) ("When an issue or claim is properly before the court, the court is not limited to the particular legal theories advanced by the parties, but rather retains the independent power to identify and apply the proper construction of governing law."); Carducci v. Regan, 714 F.2d 171, 177 (D.C. Cir. 1983) (noting that although courts are essentially "arbiters of "Any overpayment referred to in subsection (a) . . . may be recovered . . . in the same manner as any other debt due to the United States." 38 U.S.C. § 3685(c); see also 38 U.S.C. § 5314(a) ("[T]he Secretary shall . . . deduct the amount of the indebtedness of any person who has determined to be indebted to the United States by virtue of such person's participation in a benefits program administered by the Secretary from future payments made to such person under any law administered by the Secretary." (Emphasis added)). Thus, there was no need for section 5313B to specifically mention the recovery of benefits.
10
legal questions presented and argued by the parties before them [,] . . . not all legal arguments bearing upon the issue in question will always be identified by counsel, and we are not precluded from supplementing the contentions of counsel through our own deliberation and research").7
This appeal involves a question of jurisdiction, as well as obvious statutory and regulatory errors prejudicial to Mr. Mountford that flow from his general contention that the Board wrongfully applied section 38 U.S.C. § 5313B. Because interpretation of section 5313B is a matter of first impression for the Court and the errors in the Board's decision are patent and prejudicial, they should have been addressed by the Court. See Davis and Carducci, both supra. The errors are threefold.
1. Retrospective Application. There is nothing in section 5313B that permits the Secretary to recover benefits he already has paid. Rather, section 5313B prohibits the Secretary from making payments to veterans who are fugitive felons, once the Secretary is aware that a veteran is a fugitive felon. The prohibition is prospective, not retrospective; it is dependent on the Secretary having knowledge that a person is a fugitive felon. See 38 U.S.C. § 5313B(a) (providing in pertinent part that "[a] veteran who is otherwise eligible for a benefit specified in subsection (c) may not be paid or otherwise provided such benefit for any period during which the veteran is a fugitive felon"
(emphasis added)); see also United States v. LaBonte, 520 U.S. 751, 757 (1997) ("[W]e assume that in drafting this legislation, Congress said what it meant.").
The legislative history amply supports the prospective nature, and plain meaning, of the legislation and the action authorized therein. See Gardner v. Derwinski, 1 Vet.App. 584, 586-87 (1991) (plain meaning controls unless it demonstrably conflicts with legislative intent). Before section 5313B was enacted into law, there was no provision "to prevent veterans who are fugitives from justice from receiving VA benefits." S. REP. NO. 107-86, at 17 (2001). Section 5313B is "designed to cut off the means of support that allows [sic] fugitive felons to continue to flee." Id.
(emphasis added). Retrospective benefit recovery, as the Board and the majority permit, has nothing to do with cutting off a fugitive's means to continue to flee. And large, retroactive recoveries, as in
footnote 7 My colleagues definitively state that my dissent addresses issues "not central to the main holding". Ante at 7. But making such a statement does not make it so. The central holding is that section 5313B authorizes the Secretary to retroactively take benefits from a veteran who has a warrant out for his arrest, even when the Board finds that the veteran had no knowledge that a warrant was outstanding, and even when the veteran takes prompt action to clear the warrant when he learns of the warrant. I leave to the reader to determine if I address issues "central to the main holding."
11
this case, will impact a veteran's future benefits long after his fugitive felon status ends. Nothing in section 5313B supports such action.
Comparison to 42 U.S.C. § 1382(e)(4)(A), the Social Security statute upon which section 5313B is based, is instructive. The Social Security statute is drafted in terms of when a person is ineligible to receive Social Security benefits. See 42 U.S.C. § 1382(e)(4)(A) ("No person shall be considered an eligible individual . . . with respect to any month if during such month the person is . . . violating a condition of probation or parole imposed under Federal or State law."). In contrast, the veterans benefits statute, section 5313B, is drafted in terms of prohibiting VA from making payments; it does not define periods of ineligibility. See 38 U.S.C. § 5313B ("A veteran who is
otherwise eligible [ ] may not be paid. . . ."). The legislative history clearly demonstrates that Congress considered the Social Security legislation, which contains the "ineligibility" construction, but chose instead to prohibit payment from the Secretary, which intuitively requires knowledge on
the Secretary's part that a veteran is a fugitive felon before payment can be stopped. The Board's interpretation ignores this obvious distinction between the Social Security and veterans benefits statutes, and permits the Secretary to recover benefits from Mr. Mountford as though section 5313B defined the eligibility of a veteran to receive benefits as opposed to prohibiting the payment of benefits once the Secretary is aware a veteran is a fugitive felon. Essentially, despite the significantly different statutory approaches, the majority treat section 5313B as a duplicate of 42 U.S.C. § 1382(e)(4)(A). It is not. See LaBonte, supra.8
2. "Fugitive." Noting that section 5313B(b)(1) provides that "a fugitive felon is 'a person who is a fugitive by reason of . . . violating a condition of probation or parole imposed for commission of a felony under Federal or State law,'" the majority conclude that "[t]he plain language of the statute very simply defines a 'fugitive felon' as one who violates the conditions of probation."
footnote 8 The suggestion of my colleagues that because the Secretary is authorized by statute to recover overpayments, there was no need to state such authority in section 5313B, misses the point. Ante at 9 n.6. There is no dispute over the Secretary's authority to recover an overpayment. But there has to be an overpayment. Congress quite clearly rejected the legislative approach taken with Social Security benefits, which is to deny eligibility to a person in a fugitive felon status. Had Congress taken that approach with regard to veterans, payments made while a veteran was a fugitive felon would constitute an overpayment because the veteran would not be eligible to receive them. Instead, when addressing the same issue with veterans, Congress placed the burden on the Secretary to stop payments whenever the Secretary learned that a veteran was a fugitive felon. Until the Secretary learns that a veteran is a fugitive felon, it cannot be said that the Secretary has violated the law, and thus there has been no overpayment to be recovered.
12
Ante at 7. This ignores, however, the fact that Congress chose to describe a fugitive felon in terms of the reason one is a fugitive, as opposed to redefining the plain and natural meaning of the word "fugitive." Otherwise stated, although one might become a fugitive felon "by reason of" violating
probation, there remains the overarching requirement that one must nevertheless be a "fugitive" to be deemed a "fugitive felon." This invokes considerations of due process such as notice that one is wanted.
Indeed, a fugitive is "[a] person who flees or escapes; a refugee." BLACK'S LAW DICTIONARY 741 (9th ed. 2009); see also WEBSTER'S II NEW COLLEGE DICTIONARY 451 (3rd ed. 2001) (defining "fugitive" as "[f]leeing, as from the law"). It is self-evident that one must have some knowledge of being wanted in order to be fleeing, and this is the understanding encoded in other provisions of Federal law. See, e.g., 28 U.S.C. § 2466 (entitled "fugitive disentitlement," and providing that a
person forfeits the use of the U.S. courts if he, inter alia, leaves the jurisdiction of the United States "after notice or knowledge of the fact that a warrant or process has been issued for his apprehension"); 18 U.S.C. § 921(a)(15) ("The term 'fugitive from justice' means any person who has
fled from any State to avoid prosecution for a crime or to avoid giving testimony in any criminal proceeding.").9
Moreover, the Veterans Benefits Administration's Adjudication Procedures Manual (M21-1MR) interprets "fugitive" consistent with this natural meaning. According to the M21-MR, an outstanding arrest warrant raises only a presumption that the beneficiary is a fugitive felon for VA purposes. M21-MR, pt. X, ch. 16, 2. Indeed, when a beneficiary denies ever having received notice of a warrant, the RO is instructed to contact the Office of Inspector General (OIG), whose duties are described as follows:
The OIG fugitive felon coordinator will generally recommend that benefits payments not be discontinued if the evidence establishes that the beneficiary was unaware of
footnote 9 My colleagues also definitively state that "[n]owhere in the statute (section 5313B(b)(1)) or its legislative history is the slightest suggestion that one must have the prerequisite knowledge imposed by the dissent." Ante at 7 (emphasis added). But, again, stating it does not make it so. I leave to the reader to determine whether the use by Congress of the word "fugitive" was done without an understanding of its well-accepted meaning, or whether Congress intended to alter the commonly recognized meaning from English-language dictionaries. And I query, if there is not even the slightest suggestion in legislation or legislative intent that knowledge of an outstanding warrant is an element of being a fugitive felon, and I am imposing it in the first instance, why does the VA Adjudication Procedures Manual state that such knowledge is an element? See M21-1MR, pt. X, ch. 16.2.
13
the warrant or made good faith attempts to clear the warrant as soon as he/she knew or should have known of the existence of the warrant. Id. at 12 (emphasis added). Here, it is undisputed that the Board found that Mr. Mountford was unaware that he was the subject of an outstanding arrest warrant and that he promptly cleared the warrant when he learned about it. By the plain meaning of the term "fugitive," he was not a "fugitive felon." And, by the specific terms of the M21-MR, his VA benefits should not have been recouped.
3. Grave Procedural Error and Jurisdiction. It is well established that a decision becomes final after one year if a Notice of Disagreement is not filed. Percy v. Shinseki, 23 Vet.App. 37, 41 (2009) (citing 38 U.S.C. § 7105(b)(1)). Favorable final decisions are revised only when they contain clear and unmistakable error, an error long described by this Court as being an "undebatable" error. Russell v. Principi, 3 Vet.App. 310, 313-14 (1992) (en banc) ("The words 'clear and unmistakable error' are self-defining. They are errors that are undebatable, so that it can be said that reasonable minds could only conclude that the original decision was fatally flawed at the time it was made."); see also 38 U.S.C. § 5109A(a) ("A decision by the Secretary under this chapter is subject to revision on the grounds of clear and unmistakable error."). Moreover, although the Court has not addressed whether clear and unmistakable error is a jurisdictional requirement to reversing an otherwise final decision on a claim, the issue is so analogous to the fact that new and material evidence is a jurisdictional requirement for the Board to reopen a claim, that it should be addressed. See e.g., Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996) (holding that pursuant to 38 U.S.C. 5108, "the Board does not have jurisdiction to consider a claim which it previously adjudicated unless new and material evidence is presented, and before the Board may reopen such a claim, it must so find."); compare 38 U.S.C. § 5108 (new and material evidence required to reopen a claim) with 38 U.S.C. § 5109A (clear and unmistakable error required to revise RO decisions) and § 7111 (same as to Board decision).
In the decision on appeal, the Board acknowledged that the regional office cleared Mr. Mountford of fugitive felon status in July 2004 and reversed any recoupment action, but then later, without explanation, adjudicated the matter again in August 2006, this time unfavorably. The record reflects that neither the August 2006 decision nor the Board decision on appeal gave any
14
consideration to the fact that clear and unmistakable error was required to overturn the 2004 decision.
Given the natural meaning of "fugitive," the fact that Mr. Mountford was not aware a warrant was out for his arrest and took prompt corrective action upon being told of the warrant, the prospective nature of section 5313B in authorizing benefit payments to be stopped, and the Secretary's own M21-MR guidance that recoupment is not warranted if the veteran was not aware that he was the subject of an outstanding warrant, as is the case here, the 2004 decision cannot reasonably be said to be the product of clear and unmistakable error.10
My colleagues's suggestion that the RO may have reinstated Mr. Mountford's benefits
footnote 10. based upon a lack of information regarding the date the warrant was served is pure conjecture, without any basis in the record. Ante at 3.
Nothing in the record on appeal suggests confusion by the RO, as opposed to implementation of the very concept now contained in the M21-MR that benefits not be taken retroactively if the veteran was not aware he was the subject of an outstanding warrant. Even assuming confusion by the RO, it remains unexplained how a lack of information regarding the date Mr. Mounford was served with the warrant could have been a basis for reinstating benefits and two years later reversing that reinstatement. The date appears to be relevant only to when Mr. Mountford had knowledge that a warrant issued for his arrest, which would support a revocation of benefits back only to that date.
Additionally, my colleagues state that Mr. Mountford does not dispute any of the "facts" laid out in the Court's majority opinion. Ante at 3. Such a statement is presumptive in that Mr. Mountford not only has not had an opportunity to review the facts laid out by the majority, but unwarranted liberty has been taken with regard to what might be a "fact."
For example, my colleagues state as a fact that the Secretary did not learn until July 2006 that Mr. Mountford had been served with a warrant in April 2004. But, the cite referenced by my colleagues as support for this "fact" states nothing about this being the first notification to the Secretary. R. at 162. Additionally, my colleagues definitively state that no evidence of the warrant being cleared was submitted to the RO with Mr. Mountford's American Legion assisted June 2004 submission seeking reinstatement, but the record on appeal does not state what documents were or were not
attached thereto. Moreover, the record on appeal is not the entire record, see VET. APP. R. 28.1 (requiring a record of proceedings to be submitted for review, in lieu of the entire record), and when the Board has not addressed a matter and a party has not otherwise admitted a fact, there is no proper basis for an appellate court to state a fact that is not clear on its face in the record on appeal; to do that, the entire record would have to be reviewed, see 38 U.S.C. § 7261(b)(providing for judicial review on the record). Accordingly, remand for the Board to address a potentially important issue is appropriate in such circumstances. See Maggitt v. West, 202 F.3d. 1370, 1377-78 (Fed. Cir. 2000) (holding that the Court has the discretion to hear or remand legal issue raised for the first time on appeal). Furthermore, the submission by a congressionally authorized veterans service organization that explicitly states a warrant has been cleared is evidence; it may not be accepted by the factfinder, but it is evidence. Flynn v. Brown, 6 Vet.App. 500, 504 (1994) (holding that the hearsay rule does not apply to the VA claims adjudication process); see also R. at 290. And, nothing in the record on appeal indicates the representation of the American Legion was not accepted by the RO or that the warrant was not cleared; indeed, the evidence of conviction and time served is evidence that the warrant was resolved.
For whatever reason, my colleagues also state that "Mr. Mountford was acutely aware of the conditions of his probation, including his duties to pay supervisory fees and submit monthly reports to his probation officer. He certainly was advised and understood the consequences of his failure to comply with the terms and conditions of his probation." Ante at 7 (emphasis added). No citation to the record on appeal is provided for such definitive findings of Mr. Mountford's awareness and understanding, and no such finding was made by the Board. A guilty finding presumes the necessary mens rea, but that is a far cry from "acute awareness" and being "advised" of and having "understood"
15
Although Mr. Mountford's counsel stated at oral argument that she did not raise this issue in her briefing because she thought this procedural error was harmless, her thinking is not dispositive. For one, as noted above, whether or not there was clear and unmistakable error in the July 2004 RO decision raises a question of jurisdiction, an issue that cannot be waived. Jarrell v. Nicholson, 20 Vet.App. 326, 331 (2006) (en banc). Second, there is no indication this issue was discussed with her client. The assertion of a veteran's counsel cannot always control the outcome. See Janssen v. Principi, 15 Vet.App. 370, 374 (2001) (counsel's waiver of a guaranteed right is effective if the appellant has knowledge of the right and voluntarily intends to relinquish that right); Jarrell, 20 Vet.App. at 338 (Hagel, J., dissenting) (to be an effective waiver of a right, a claimant must have knowledge of a right and must intend voluntarily and freely to relinquish or surrender that right); see also Davis, supra. Moreover, it is the Court's statutory duty to "take due account of prejudicial error." 38 U.S.C. § 7261(b)(2); Newhouse v. Nicholson, 497 F.3d 1298, 1301 (Fed. Cir. 2007) ("[T]he Veterans Court [is] required to examine whether any errors by VA were prejudicial and [] it must do so based on the administrative record."); Parker v. Brown, 9 Vet.App. 476, 481 (1996) ("'Prejudice . . . means injury to an interest that the statute, regulation, or rule in question was designed to protect.'" (quoting Intercargo Ins. Co. v. United States, 83 F.3d 391, 396 (Fed. Cir. 1996))). In the heat of aggressive oral argument, and given the obvious prejudice associated with adjudicating a matter under a far lesser standard than authorized by regulation, counsel's oral argument statement should not be accepted as a knowing waiver of the veteran's rights.
For these reasons, I respectfully dissent.
consequences. Indeed, the record on appeal reflects that Mr. Mountford is 100% disabled for schizophrenia.
16
Subscribe to:
Posts (Atom)