Segars: Duty to Assist

Duty to Assist

The case of Theodore J. Segars v. Eric K. Shinseki, Opinion Number 08-1449, decided November 20, 2009, considered the VA’s duty to assist by collecting records when the veteran could later find relevant records that the VA did not find and the Board did not consider.

In a far reaching ruling the Court considered whether a veteran’s brief may refer to documents that are not a part of the record in order to demonstrate that the VA did not fulfill its duty to assist. The case had an interesting procedural posture which was important to the outcome.

The veteran sought and was denied benefits for adenocarcinoma of the colon. The veteran filed an opposed motion to remand his appeal asserting that documents were found that showed the VA did not satisfy its duty to assist. Attached to the motion were those documents. The veteran argued the documents should have been included in the record prior to the Board decision and that the appeal should be remanded to the Board for readjudication with the documents. After a telephone conference involving the VA, veteran’s counsel, and a representative from the court, the motion to remand was withdrawn. Later, the veteran filed a brief which in part argued the VA did not fulfill its duty to assist by obtaining relevant records.

The documents in issue are two part. First, was a report from a pathologist that is referenced by a later statement given by the pathologist that was in the record. Second, the veteran noted that he was represented by another attorney on the date of the missing pathologist report in a matter related to the appealed claim and that the VA had a duty to contact the previous attorney to determine if any additional relevant records existed. Specifically, the veteran asserted that prior counsel had a deposition of a physician that would be relevant to the claim on appeal.

The Court limited itself to determining whether the veteran could include descriptions of the missing documents in its brief as part of his argument that the VA failed the duty to assist by not obtaining the documents. The Court had no problem allowing reference to the missing pathologist report but limited such references to information from the pathologist statement that was part of the record. However, the court refused any reference to the physician deposition on the grounds that the deposition was not referenced in any documents in the record.

The Court reasoned that while it was determining whether the VA satisfied its duty to assist, the content of the documents or even their existence is irrelevant to the question of whether the Secretary had a duty to assist in obtaining adequately identified relevant records. This harsh ruling was somewhat ameliorated by reference in a footnote that statute “clearly presumes that any document referred to in the record exists and places the burden on the Secretary to demonstrate otherwise.” Curiously, the Court goes on to say, “When the Secretary attempts to rebut the presumption, then the existence of documents not contained in the record may be relevant.”

This statement is curious because a central point of the Court’s decision is that its scope is limited by statute to “the record of proceedings before the Secretary and the Board”.

Additionally, the Court also worked hard to limit its need to make a far reaching decision by noting that the missing pathologist report was referenced by another report. In short, the Court determined that in this case they could simply use the references in the record to one of the “missing” pieces of evidence to consider whether the duty to assist was fulfilled. However, while doing so, the Court appears to have actually gone further and shut off any further reference to non-record materials in the future.

The case leaves questions and practical difficulties for veterans and attorneys who discover too late that the VA dropped the ball in searching for documents and records. If you can somehow relate the missing records back to something in the record, you have a chance, otherwise, the VA gets to make a mistake and enjoy the fruits of that mistake.

Perhaps one argument that could be advanced is to use the Court’s language. Perhaps the materials, records, or documents are before the “Secretary” and not the “Board”. If the materials were in the Secretary’s embrace (in a medical file somewhere in a VA hospital) would that mean that the Court could consider it when addressing whether the VA fulfilled its duty to assist? A question that will no doubt come one day.

Decided by Hagel, Lance, and Schoelen, Judges.

Mangham: Disability from VA Treatment

The case of Johnnie R. Mangham v. Eric K. Shinseki, Opinion Number 07-1338, decided November 16, 2009, denied a claim for compensation pursuant to 38 U.S.C. § 1151.

38 U.S.C. § 1151, provides for compensation for injuries or death caused by the VA when it is giving hospital care, medical or surgical treatment or similar instances of fault on the part of the VA in furnishing the hospital care, medical or surgical treatment, or examination … or an event not reasonably foreseeable.

Section 1151 typically comes into play when a veteran receiving medical care from the VA is harmed by that care. However, this case involves a much more dramatic set of facts. Mr. Mangham was being treated in the Temple Domiciliary for health “maintenance” prior to having a femoral surgery. While eating lunch at the cafeteria, another domiciliary resident opened fire on fellow residents and killed one. Mr. Mangham subsequently claimed mental distress after witnessing the shooting.

The Court rejected Mr. Mangham’s argument that the domicile care was a form of care covered by section 1151. Instead, the Court held that disabilities incurred merely coincidentally with VA treatment are not covered and instead the VA treatment must be the “actual cause” of the disability. They reasoned that the mental distress was coincidental to residing at a VA domiciliary and the injury was not caused by the actual provision of hospital care, medical or surgical treatment, or examination at the VA domiciliary.

The Court did recognize that prior to 1996 the claim would have been allowed because that version of section 1151 did not require a veteran to demonstrate that the alleged injury resulted from an overt act by the VA. The Court also recognized that Jackson v. Nicholson, 433 F.3d 822 (Fed. Cir. 2005) was factually almost identical and granted disability but explained that a 1996 Amendment to the law changed the result. It explained that “[i]n the 1996 amendments, Congress repudiated the notion that a coincidental event occurring during ‘hospitalization’ could lead to recovery under section 1151, purposefully replacing that word with ‘hospital care’.”

Therefore, a veteran who is injured or dies while receiving VA treatment from a cause that is merely coincidental with the VA treatment will likely fail with a VA disability claim. Importantly, this does not mean the veteran is without any recourse; instead, they still may rely on the Federal Torts Claims Act.

Still, I would not be surprised to see this opinion appealed to the Court of Appeals for the District of Columbia and wonder if they will agree with this reading of the 1996 amendment.

Decided by Kasold, Moorman, and Lance, Judges.

Meedel: Bilateral Hearing Loss

The case of Edward E. Meedel v. Eric K. Shinseki, Opinion Number 08-1725, decided November 4, 2009, denied service-connection for bilateral hearing loss.

Hearing loss is determined by looking at 38 C.F.R. § 3.385, which provides:

For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent.

Meedel did not meet the first prong as his auditory threshold was not 40 decibels or greater in the prescribed frequencies. Additionally, the Maryland CNC speech recognition test was not at issue in this case. Instead, Meedel argued that he met the second requirement, that at least three of the prescribed frequencies were 26 decibels or greater. Unfortunately, he only met the 26 decibel in the 3000 and 4000 frequencies. However, he exceeded the threshold by having a 30 and 35 decibel reading on his Right ear and 30 and 30 decibel reading on his Left ear.

Meedel attempted to argue that he could average his ear ratings and meet the 26 decibel threshold, essentially using the excess decibels (worse hearing at some frequencies) to pull up the decibel level for the other two frequencies (where he could hear better).

Meedel sought to rely on 38 C.F.R. § 4.85, which does allow averaging when the VA is rating a disability. However, the Court drew a distinction between 3.385, which establishes the existence of a hearing disability and 4.485, which is used to assign the disability rating for the hearing loss. The Court concluded that averaging is not allowed when establishing the existence of a hearing disability because that is the best interpretation of the plain language of the regulation and the Secretary’s interpretation is reasonable.

Decided by Chief Judge Greene, Judge Lance and Judge Davis.