Court of Appeals for Veterans Claims Decisions Part 2

Female veteran appealing VA benefits decision

Rouse v. McDonough

In July 2019, Joe D. Rouse, an Army veteran, was denied TDIU (Total Disability Individual Unemployability) benefits by the Board of Veterans' Appeals. Rouse appealed, arguing that the Board erred by not adopting the definition of "sedentary work" from Social Security Administration (SSA) regulations. The Court rejected this argument, citing Withers v. Wilkie, which stated that "sedentary work" has no independent legal significance in veterans helps cases. The Court also considered Rouse's medical history and the reasons for denying TDIU benefits. The Court affirmed the Board's decision, finding no error. Rouse moved for reconsideration or panel review, arguing that the Court did not acknowledge that Ray v. Wilkie provided the independent legal significance to "sedentary work" that Withers found lacking. However, the Court responded that Ray did not undermine Withers. The Court granted the panel review motion, withdrew the December 7, 2020 memorandum decision, and issued a new decision affirming the Board's decision, again explaining that the Board had no duty to consult a different agency's definition for a term that does not appear in any VA statute or regulation.

Cowan v. McDonough

In the case of Cowan v. McDonough, 35 Vet.App. 232 (2022), a veteran appealed a decision made by the Board of Veterans' Appeals regarding the service connected disability rating for his knee. The case revolves around the disagreement between the parties on the form in which the notice requirements of section 5104(b) are conveyed to claimants. The Court ultimately finds that the statute does not require that the section 5104 notice elements be in a single notice letter. This decision is in line with the principles of VA benefits appeal, VA disability, and board appeal.

The Court also assesses a regulation using the two-step Chevron framework, and finds that the regulation is a reasonable gap-filling of the statute. However, the Board did not adequately address the veteran's argument regarding the notice letter, specifically that it did not follow the statutory and regulatory requirement to identify favorable findings or explain how to obtain or access evidence used to make the decision. This raises important considerations related to VA form, veterans claims, and VA appeal process.

The case was vacated and remanded, highlighting the significance of the appeals process and the role of VA appeals modernization act in ensuring fair and just outcomes for veterans. Judges Michael P. Allen and Joseph L. Toth both filed concurring opinions, with some disagreement on whether VA's implementation of the statute and regulation was adequate. Their perspectives shed light on the interpretation and application of veterans law, showing the complexities involved in VA benefits appeal and VA disability claim proceedings.

Kenneth M. Carpenter, of Topeka, Kansas, is the attorney for the appellant, William D. Cowan, while Alex Kutrolli, Richard A. Sauber, Mary Ann Flynn, and Selket N. Cottle represent the appellee, Denis McDonough, the Secretary of Veterans Affairs. The case was argued on February 22, 2022 and decided on June 13, 2022, underscoring the importance of legal help and representation for veterans navigating the VA disability benefits system.

Chavis v. McDonough

Chavis v. McDonough, 34 Vet.App. 1 (2021), is a significant case about a veteran's appeal for an increased disability rating for a lumbar spinal disability and radiculopathy. The Court of Appeals for Veterans Claims, presided over by Chief Judge Margaret Bartley, heard arguments from both sides on November 20, 2019. Michael L. Chavis, the appellant, was represented by Zachary M. Stolz and Kaitlyn C. Degnan, while the appellee, Denis McDonough, Secretary of Veterans Affairs, was represented by Clifton A. Prince, James M. Byrne, Mary Ann Flynn, and Sarah W. Fusina.

The case was decided on April 16, 2021, with the court holding that the requirement for ankylosis in the General Rating Formula for Diseases and Injuries of the Spine can be met with evidence of the functional equivalent of ankylosis during a flare. The court remanded the case for readjudication because the Board of Veterans' Appeals (BVA) did not consider whether Chavis's symptoms resulted in the functional equivalent of ankylosis, and because the BVA did not adequately explain the denial of Chavis's claim for increased disability rating for radiculopathy.

The court also addressed several other issues, including the Board's reasoning for denying evaluations higher than 20% for radiculopathy, the Secretary's argument against the functional equivalent of ankylosis, and the appellant's argument that the Board erred in not applying sections 4.40 and 4.45. The court clarified the applicability of certain regulations when evaluating joint disabilities and their manifestations, and found that the Board erred in its interpretation of an earlier case, which led to the Board not considering certain factors in Chavis's case.

The court also discussed the Secretary's argument that the Board did not have to discuss the adequacy of the examination reports, and the Board's jurisdiction to adjudicate increased evaluations for the radiculopathy disabilities. The court ultimately remanded the case due to the Board's failure to provide adequate reasons or bases for its decision, and noted the dissenting opinion from one judge.

Finally, the court referenced two cases, Bailey and Warren, to explain why the Board did not have jurisdiction over the proper disability rating for radiculopathy. The court also discussed the idea of "part and parcel" in relation to a total disability rating based on individual unemployability (TDIU), and clarified that the court would not disturb the Board's decision to grant increased evaluations for bilateral radiculopathy and entitlement to a total disability evaluation. This case underscores the importance of thorough evaluation and correct application of regulations in the pursuit of fair outcomes for veterans.

Bailey v. Wilkie

Bailey v. Wilkie, 33 Vet.App. 188 (2021), is a significant case centered on a veteran's claim for disability benefits regarding the residuals of prostate cancer. The appellant is Herman O. Bailey, while the appellee is Robert L. Wilkie. The case was argued on July 27, 2020, and a decision was reached on January 6, 2021.

Bailey has pursued a review of the decision made by the Board of Veterans' Appeals, which denied his claim for a disability evaluation exceeding 60% for the residuals of prostate cancer. The Court of Appeals for Veterans Claims, in its ruling, held that evaluating residuals of a malignant neoplasm of the genitourinary system should be solely based on voiding or renal dysfunction, as directed by the diagnostic code for malignant neoplasms of the genitourinary system. Non-voiding and non-renal dysfunctions do not contribute to the schedular evaluation, according to the court's interpretation.

Although Bailey's arguments for a broader interpretation of DC 7528 were dismissed, the court acknowledged that his claim for secondary service connection for diarrhea and lower extremity lymphedema was reasonably raised by the record. It also dug into the interpretation of "complications" in § 3.155(d)(2), which encompasses disabilities caused or exacerbated by treatment for a service-connected disability. To support this interpretation, the court referred to relevant cases.

The court addressed the impact of Sellers on the Bailey v. Wilkie case and outlined the proper remedy for the Board's failure to adjudicate the entitlement to secondary service connection for diarrhea and lower extremity lymphedema. The court remanded the case for further proceedings.

This case serves as a notable example of pursuing disability benefits and the complexities involved in evaluating residuals of prostate cancer. It sheds light on the court's interpretation of relevant diagnostic codes, schedular evaluations, and the consideration of secondary service connection claims.
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