Tag: section

Single Judge Application; section 311 meant in 1981; CUE; presumption of soundness; The appellant argues that the Board erred in its determination that no CUE existed in the 1981 RO decision. Specifically, he contends that Wagner is an authoritative statement of what section 311 meant at the time of the 1981 RO decision. Appellant’s Brief (Br.) at 6. The Court agrees with the appellant that the Federal Circuit’s interpretation of section 1111 in Wagner is an authoritative statement of what that statute has meant since the date of enactment in 1958. See Rivers v. Roadway Express, 511 U.S. 298, 312-13 (1994) (“A judicial construction of a statute is an authoritative statement of what the statute meant before as well as after the decision of the case giving rise to that construction.”); Patrick v. Shinseki, 668 F.3d at 1325, 1329 (Fed. Cir. 2011) (“We made clear . . . , that ‘[u]nlike changes in regulations and statutes, which are prospective, our interpretation of a statute is retrospective in that it explains what the statute has meant since the date of enactment.’” (quoting Patrick v. Nicholson, 242 F. App’x 695, 698 (Fed. Cir. 2007)(remanding for further consideration of CUE request using the correct standard articulated in Wagner and directing remand to Board, if necessary, to determine whether the Secretary has rebutted the presumption of soundness by providing clear and unmistakable evidence that the presumption has been rebutted))); see also Jordan v. Nicholson, 401 F.3d 1296, 1298 (Fed. Cir. 2005) (noting that the appellant’s CUE request challenges the validity of a regulation but does not question the correct legal standard under the statute, and that “Wagner governs that issue”). Thus, the Court agrees with the appellant that the Board erred when it concluded that he could not challenge the correct legal standard that applies under section 1111 in the CUE context.;

Single Judge Application; section 311 meant in 1981; CUE; presumption of soundness; The appellant argues that the Board erred in its determination that no CUE existed in the 1981 RO decision. Specifically, he contends that Wagner is an authoritative statement of what section 311 meant at the time of the 1981 RO decision. Appellant’s Brief (Br.) at 6. The Court agrees with the appellant that the Federal Circuit’s interpretation of section 1111 in Wagner is an authoritative statement of what that statute has meant since the date of enactment in 1958. See Rivers v. Roadway Express, 511 U.S. 298, 312-13 (1994) (“A judicial construction of a statute is an authoritative statement of what the statute meant before as well as after the decision of the case giving rise to that construction.”); Patrick v. Shinseki, 668 F.3d at 1325, 1329 (Fed. Cir. 2011) (“We made clear . . . , that ‘[u]nlike changes in regulations and statutes, which are prospective, our interpretation of a statute is retrospective in that it explains what the statute has meant since the date of enactment.’” (quoting Patrick v. Nicholson, 242 F. App’x 695, 698 (Fed. Cir. 2007)(remanding for further consideration of CUE request using the correct standard articulated in Wagner and directing remand to Board, if necessary, to determine whether the Secretary has rebutted the presumption of soundness by providing clear and unmistakable evidence that the presumption has been rebutted))); see also Jordan v. Nicholson, 401 F.3d 1296, 1298 (Fed. Cir. 2005) (noting that the appellant’s CUE request challenges the validity of a regulation but does not question the correct legal standard under the statute, and that “Wagner governs that issue”). Thus, the Court agrees with the appellant that the Board erred when it concluded that he could not challenge the correct legal standard that applies under section 1111 in the CUE context.;

Single Judge Application; section 311 meant in 1981; CUE; presumption of soundness; The appellant argues that the Board erred in its determination that no CUE existed in the 1981 ...

Panel Application; section 1155 directs the Secretary to establish in the rating schedule “ten grades of disability” for evaluating the severity of such conditions, the Secretary has provided less than ten levels of disability for most of the conditions listed in the schedule. See generally 38 C.F.R. §§ 4.71a – 4.150 (1992). Therefore, the schedular ratings established by the Secretary for compensation purposes may not in all cases provide a sufficiently comprehensive basis for determining when a measured worsening of a particular veteran’s condition in service constitutes an “increase in disability” for purposes of establishing service connection through aggravation under section 1153. This would seem to be so where the next higher rating is more than one decile greater. Furthermore, the rating-schedule provisions may not in all cases provide the most accurate or most logical basis for determining whether there has been an “increase in disability” during service. For example, with respect to organic mental disorders and psychoneurotic disorders, the rating schedule provides for disability ratings based on a finding that the condition causes “total”, “severe”, “considerable”, “definite”, or “mild” social and industrial impairment. See 38 C.F.R. § 4.132, Diagnostic Codes 9300-9411 (1992);

Panel Application; section 1155 directs the Secretary to establish in the rating schedule “ten grades of disability” for evaluating the severity of such conditions, the Secretary has provided less than ten levels of disability for most of the conditions listed in the schedule. See generally 38 C.F.R. §§ 4.71a – 4.150 (1992). Therefore, the schedular ratings established by the Secretary for compensation purposes may not in all cases provide a sufficiently comprehensive basis for determining when a measured worsening of a particular veteran’s condition in service constitutes an “increase in disability” for purposes of establishing service connection through aggravation under section 1153. This would seem to be so where the next higher rating is more than one decile greater. Furthermore, the rating-schedule provisions may not in all cases provide the most accurate or most logical basis for determining whether there has been an “increase in disability” during service. For example, with respect to organic mental disorders and psychoneurotic disorders, the rating schedule provides for disability ratings based on a finding that the condition causes “total”, “severe”, “considerable”, “definite”, or “mild” social and industrial impairment. See 38 C.F.R. § 4.132, Diagnostic Codes 9300-9411 (1992);

Panel Application; section 1155 directs the Secretary to establish in the rating schedule “ten grades of disability” for evaluating the severity of such conditions, the Secretary has provided less ...

Single Judge Application; The Board cannot avoid adjudicating an issue before it, here the proper rating, simply because it may also arise in a different claim. See Rice, 22 Vet.App. at 450-54 (clarifying that TDIU is not a “claim” but an entitlement to a total disability rating when certain qualifications are met); As appellant notes, the Board’s failure to address entitlement to TDIU based solely on the veteran’s migraine headaches was prejudicial because that entitlement may lead to eligibility for SMC under 38 U.S.C. § 1114(s). See Bradley v. Peake, 22 Vet.App. 280, 293 (2008) (“[S]ection 1114(s) does not limit ‘a service-connected disability rated as total’ to only a schedular rating of 100%, and the Secretary’s current regulation permits a [total disability rating based on individual unemployability] based on a single disability to satisfy the statutory requirement of a total rating.” (quoting 38 U.S.C. § 1114(s))); And VA has had a long-standing policy of considering SMC where it may apply, even if not explicitly raised. See Akles v. Derwinski, 1 Vet.App. 118, 121 (1991);
Dolbin v. McDonough, No. 21-2890(DATED: August 26, 2021); Appeals Improvement and Modernization Act of 2017 (VAIMA); Under VAIMA, appeals in RAMP are docketed in the order that they are received on a dedicated docket. Pub. L. No. 115-55, § 4(b)(3)(B)(i)(II), 131 Stat. 1105, 1121; VAIMA makes clear that RAMP operates independently of the existing “legacy” appeals system. Pub. L. No. 115-55, § 4(b)(1), 131 Stat. at 1120 (“The Secretary of Veterans Affairs may, under subsection (a)(1), carry out a program to provide the option of an alternative appeals process”); The Act also clearly sets out a first-come, first-served docketing system for RAMP appeals; Section 4(b)(3)(B) requires the Board to “maintain fully developed appeals on a separate docket than standard appeals” and to “decide fully developed appeals in the order that the fully developed appeals are received on the fully developed appeal docket.” Id. § 4(b)(3)(B)(i)(I)-(II), 131 Stat. at 1121;
Carr v. McDonough, No. 16-3438(Decided February 19, 2021); Carr v. Wilkie, 961 F.3d 1168, 1176 (Fed. Cir. 2020), rev’g 31 Vet.App. 128 (2019); a person may receive benefits exceeding 48 months, notwithstanding section 3695’s express prohibition; § 21.9635(y) is not consistent with section 3319; 38 U.S.C. § 3319 (authorizing the transfer of unused benefits to a spouse orchildren); the Federal Circuit reversed, interpreting the phrase “may receive” as referring only to an initial calculation of a veteran’s entitlement and not to the amount of benefits that a person may, in fact, receive. It then concluded that the statute does not preclude an individual, who has accumulated and used a total of 48 months of educational benefits from a combination of chapters, from receiving an extension in benefits until the end of a semester. Carr, 961 F.3d at 1173;