Terrance D. Massie v. Eric K. Shinseki

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 09-3397
TERRANCE D. MASSIE, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
On Appeal from the Board of Veterans' Appeals
(Argued September 14, 2011 Decided December 19, 2011)
Kenneth M. Carpenter, of Topeka, Kansas, for the appellant.
Selket N. Cottle, 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 HAGEL, LANCE, and DAVIS, Judges.
HAGEL, Judge: Terrance D. Massie appeals through counsel a May 19, 2009, Board of
Veterans' Appeals (Board) decision that denied an effective date earlier than April 4, 2001, for a
100% disability rating for varicose veins.1 Record (R.) at 3-16. Mr. Massie's Notice of Appeal was
timely and the Court has jurisdiction to review the Board decision pursuant to 38 U.S.C. § 7252(a).
Although the parties did not request oral argument or identify issues that they believed required a
precedential decision of the Court, the Court determined that panel consideration was necessary to
determine whether a letter contained in the record that was written and signed by a VA physician
constituted a "report of examination" pursuant to 38 C.F.R. § 3.157(b)(1). The Court ordered oral
argument to assist it in resolving this issue. Because the letter in question was not a "report of
examination," neither Mr. Massie nor the record raised the theory of entitlement to an earlier
effective date that he now presents for the first time on appeal to the Court. Consequently, the Board
1
As explained in more detail below, the attorney who currently represents Mr. Massie also represented him
during proceedings before VA, including during a portion of the proceedings before the regional office and during his
appeal to the Board.
was not obligated to consider such a theory and the Court will therefore affirm the May 2009 Board
decision.
I. FACTS
Mr. Massie served on active duty in the U.S. Army from November 1968 to August 1970.
A January 1971 VA regional office rating decision awarded Mr. Massie VA benefits for
varicose veins of the left leg resulting from the surgical removal of the long saphenous vein in that
leg. This condition was initially rated as 10% disabling and increased to 50% disabling effective
March 1990.
On April 4, 2001, Mr. Massie filed a claim for an increased disability rating for his varicose
veins. In his application, Mr. Massie indicated that he was also submitting information, including
letters from his treating physicians, pertaining to his physical condition. Mr. Massie indicated that
this information had previously been submitted to the Social Security Administration in connection
with a claim for Social Security disability benefits. One of these letters was a May 1999 letter from
Dr. Lewis J. Wesselius, a physician at the VA Medical Center in Kansas City, Missouri, that was
addressed "To Whom it May Concern." R. at 1299. Dr. Wesselius indicated that he had been
treating Mr. Massie for "multiple medical problems," one of which was "chronic venous
insufficiency" that had "persisted in spite of prior surgical treatment with vein stripping." R. at 1299.
Dr. Wesselius further stated that "[t]his problem . . . left Mr. Massie with significant pain when he
[was] on his feet for any period of time." Id.After several years of development, in December 2005 the regional office issued a rating
decision increasing Mr. Massie's disability rating for post-operative varicose veins of the left leg
from 50% to 100%, effective April 4, 2001, the date his formal claim for an increased disability
rating had been filed.
In December 2006, Mr. Massie retained current counsel and informed VA that this lawyer
was his authorized representative in connection with his claim for an increased disability rating.
Later that month, Mr. Massie filed through counsel a Notice of Disagreement. In relevant part, the
Notice of Disagreement stated:
2
Mr. Massie disagrees with the VA's decision to deny an effective date for the award
of increased compensation for his service[-]connected varicose veins to 100% from
April 4, 2001. Mr. Massie asserts that the VA failed to consider and apply 38 U.S.C.
§ 5110(b)(2) and 38 C.F.R. § 3.400(o)(2). . . . Mr. Massie was entitled to
consideration of an effective date of April 4, 2000, for the increase in compensation
to include consideration of the available rating of 60% as well as 100%.
Pursuant to 38 U.S.C. § 5110(b)(2) and 38 C.F.R. § 3.400(o)(2), the VA was
obligated to determine whether, in the one year prior to April 4, 2001, the date of the
claim for increased compensation for his service[-]connected disability, Mr. Massie's
disability had increased in severity.
R. at 378.
In December 2007, Mr. Massie filed through the same counsel who now represents him a
Substantive Appeal to the Board, continuing to argue only that proper application of section
5110(b)(2) and § 3.400(o)(2) entitled him to an increased disability rating effective April 4, 2000.
R. at 103. He specifically cited various evidence of record, including Dr. Wesselius's May 1999
letter, arguing that "[t]his evidence made it factually ascertainable that [his] disability had increased
in severity in the one year prior to April 4, 2001, as contemplated by . . . [section] 5110(b)(2) and
. . . § 3.400(o)(2)," thus "requir[ing] the VA to assign an effective date of April 4, 2000." R. at 105.
In May 2009, the Board issued the decision now on appeal. The Board noted that Mr.
Massie's argument on appeal was "that a higher rating [was] warranted effective April 4, 2000, one
year prior to the date of claim" because Dr. Wesselius's May 1999 letter demonstrated that "it was
factually ascertainable that an increase in the severity of [his] disability occurred up to one year prior
to the date of claim." R. at 7, 8. Because this letter was dated more than one year prior to the date
of Mr. Massie's formal claim, the Board interpreted his argument as being that "the 1999 letter from
Dr. Wesselius . . . reflect[ed] a chronic disability picture, still applicable during the year prior to the
claim," and therefore "evaluated and weighed [this evidence] in conjunction with other pertinent
evidence of record." R. at 9; see 38 U.S.C. § 5110(b)(2) ("The effective date of an award of
increased compensation shall be the earliest date as of which it is ascertainable that an increase in
disability had occurred, if application is received within one year from such date." (emphasis
added)); 38 C.F.R. § 3.400(o)(2) (2011) (providing that the effective date for an increased disability
rating for a service-connected disability will be the date the claim for an increase is received or the
3
"[e]arliest date as of which it is factually ascertainable that an increase in disability had occurred if
[the] claim is received within [one] year from such date") (emphasis added)).
In conducting this evaluation, the Board noted that there was no evidence that Dr. Wesselius
even treated Mr. Massie between April 4, 2000, (the date he contended was the appropriate effective
date for his increased disability rating) and April 4, 2001, (the date he filed his formal claim for an
increased rating). It thus found that the probative value of Dr. Wesselius's letter was "necessarily
limited by the fact that . . . it [did not] directly address[] the period at issue," and that other evidence
of record directly relating to this period of time did not reflect that the criteria for an increased rating
had been satisfied. R. at 10, 11. The Board therefore concluded that an effective date for the
increased disability rating prior to April 4, 2001, was inappropriate.
On appeal, Mr. Massie argues for the first time–and through the same counsel who
represented him before VA–that the Board erred by failing to consider whether Dr. Wesselius's May
1999 letter constituted an informal claim for an increased disability rating pursuant to 38 C.F.R.
§ 3.157(b)(1), thereby entitling him to an effective date as of May 1999, if not earlier.
In response, the Secretary argues that the Court should exercise its discretion and decline to
entertain Mr. Massie's argument because, despite the opportunity to do so, he did not raise it below.
The Secretary further contends that, even if the Court chooses to consider Mr. Massie's argument,
the Board did not err in failing to discuss § 3.157(b)(1) because neither Mr. Massie nor any
reasonable reading of the evidence of record raised the issue of that provision's applicability.
II. ANALYSIS
A. Whether the Court Should Consider Mr. Massie's Argument in the First Instance
As a threshold issue, the parties disagree as to whether the Court should even entertain Mr.
Massie's newly raised argument. Citing Maggitt v. West, 202 F.3d 1370 (Fed. Cir. 2000), the
Secretary contends that the Court has discretion as to whether it will entertain arguments raised for
the first time on appeal to the Court and that, in this instance, the Court should refuse to hear Mr.
Massie's newly raised argument, particularly because he "is currently represented by the same
counsel who represented him before the Board [and the regional office], and he has provided no
justification for not raising this argument to VA." Secretary's Brief (Br.) at 5.
4
In Maggitt, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) held that this
Court "has jurisdiction to hear arguments presented to it in the first instance, provided it otherwise
has jurisdiction over the veteran's claim," and therefore has discretion to consider such arguments
in the first instance, remand them for Board consideration, or simply decline to consider them on the
ground that the veteran did not exhaust his or her administrative remedies prior to appealing to the
Court. 202 F.3d at 1377. In choosing between these options, "[t]he test is whether the interests of
the individual weigh heavily against the institutional interests the [exhaustion of administrative
remedies] doctrine exists to serve," the primary interests being "to protect agency administrative
authority and to promote judicial efficiency." Id.However, the Federal Circuit directed this Court to use caution in applying the exhaustion
of remedies doctrine against a party such "that the party's arguments go unheard," id., because, at that
time, "[r]ealistic considerations . . . reduce[d] the ability of . . . veteran[s] to mount legal challenges
in the regional office or at the Board." Id. at 1378. Specifically, the Federal Circuit expressed its
concern that, because attorneys were then statutorily prohibited from collecting a fee for services
provided prior to a final Board decision,2 they were unlikely to represent veterans before VA. See
id. (citing 38 U.S.C. § 5904(c)(1) (1994)). The Federal Circuit noted that this aspect of the VA
benefits system was "not particularly 'user friendly'" and that it often resulted in poorly defined legal
challenges to regional office and Board determinations prior to the submission of briefs to this Court
on appeal. Id.Because this Court's jurisdiction flows from the Board's decision on a particular claim, not
on a particular argument or theory offered in support of that claim, Robinson v. Peake, 21 Vet.App.
545, 550-51 (2008), aff'd sub nom. Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009), and
because Mr. Massie now presents a new theory in his attempt to obtain an earlier effective date rather
than an entirely new claim, see Hillyard v. Shinseki, 24 Vet.App. 343, 355 (2011) (quoting 38 C.F.R.
§ 3.1(p) in defining a "claim" as "'a formal or informal communication in writing requesting a
determination of entitlement or evidencing a belief in entitlement[] to a benefit,'" and Roebuck v.
Nicholson, 20 Vet.App. 307, 313 (2006), in defining "theory" as "a 'means of establishing
2
As explained in more detail below, attorneys are now permitted to collect a fee for services rendered during
proceedings before VA. See footnote 3, infra.
5
entitlement to a benefit for a disability,'" and noting that "'if the theories all pertain to the same
benefit for the same disability, they constitute the same claim'"), this Court has jurisdiction to hear
his newly raised argument.
Nevertheless, this case presents circumstances that would ordinarily lead the Court to
exercise its discretion so as to invoke the exhaustion of remedies doctrine against Mr. Massie and
refuse to consider his newly raised argument. See Maggitt, 202 F.3d at 1378 (declining "to establish
an across-the-board presumption for or against invocation of the exhaustion doctrine" and explaining
that this Court "is uniquely positioned to balance and decide the considerations regarding exhaustion
in a particular case"). Specifically, in this case, Mr. Massie was represented by his current counsel
throughout the administrative appeals process, meaning that the Federal Circuit's concerns regarding
the potentially harsh result of applying the exhaustion of remedies doctrine against a party who was
not represented by an attorney while before VA has no bearing upon this appeal.3 Mr. Massie's
counsel has not provided any justification for not having first presented his relatively unique theory,
described in more detail below, for an earlier effective date to VA in the first instance. Indeed, at
3
In general, the Federal Circuit's concern in this regard is now diminished because, in recent years, Congress
has for the first time authorized attorneys to collect a reasonable fee for representation provided to veterans in
proceedings before VA. See 38 U.S.C. § 5904(c) (permitting attorneys to collect reasonable fees for services rendered
on or after the date of the filing of a Notice of Disagreement); see also Veterans Benefits, Health Care, and Information
Technology Act of 2006, Pub. L. No. 109-461, 120 Stat. 3403 (Dec. 22, 2006). Further, it is worth noting that veterans
appear to be gaining greater access to attorneys. For instance, the Court's own records indicate that, in October 2001,
1,941 attorneys were members of the Court's bar, with 537 of these attorneys authorizing the Court to place their names
and contact information on a public list made available to veterans seeking representation. See Renard v. D.C. Dep't of
Emp't Servs., 673 A.2d 1274, 1276 (D.C. 1996) (explaining that "[t]he contents of a court's records are readily
ascertainable facts, particularly appropriate for judicial notice" and, "generally, a court may [thus] take judicial notice
of its own records" (citations omitted)). As of October 20, 2011, the Court's records indicate that 4,038 attorneys are
members of the Court's bar, with 1,459 on these appearing on the public list. Similarly, in its annual report released in
2005, the Veterans Consortium Pro Bono Program indicated that 67 attorneys participated in the program. THE
VETERANS CONSORTIUM PRO BONO PROGRAM, 2005 ANNUAL REPORT 3, available for download at
http://www.vetsprobono.net/about-us/annual-reports/ (last visited Oct. 3, 2011). In that organization's 2010 annual
report, it indicated that in the previous year it trained 183 attorneys, while 218 attorneys from 57 law firms and 176
private practitioners provided legal services. THE VETERANS CONSORTIUM PRO BONO PROGRAM, 2010 ANNUAL REPORT
3, available for download at http://www.vetsprobono.net/about-us/annual-reports/ (last visited Oct. 3, 2011). Although
this program facilitates attorney representation on behalf of veterans in appeals to this Court, these increasing numbers,
as well as those reflected in the Court's own records, nevertheless indicate a growing awareness and interest in veterans
law among practitioners, something borne out by the more than 8,000 attorneys now accredited to practice before VA.
See Dep't of Veterans Affairs, OGC - Accreditation Search, http://www.va.gov/ogc/apps.accreditation/index.asp (last
visited Dec. 1, 2011).
6
oral argument, counsel attributed his failure in this regard to not having identified the theory prior
to filing a Notice of Appeal with the Court.
The Court concludes that, under these circumstances, VA's interest in having a fair and full
opportunity to consider all theories relevant to Mr. Massie's appeal for an earlier effective date
outweighs Mr. Massie's interest in having his argument heard for the first time on appeal to this
Court. Further, interests of judicial efficiency weigh in favor of invoking the exhaustion doctrine
against Mr. Massie. Again, this is not a situation in which a veteran who was self-represented or
represented by a veterans service organization filed a nondescript Notice of Disagreement and
Substantive Appeal while before VA, expressing disagreement with a regional office determination
in only the broadest terms. Rather, Mr. Massie was represented by an attorney and filed pleadings
during his administrative appeal that set forth in detail the precise theory, statutes, and regulations
upon which he intended to rely. His attempt on appeal to this Court to obtain a remand by presenting
a different theory dependent upon different provisions of law would, if successful, only perpetuate
the ever-increasing "hamster-wheel reputation of veterans law." Coburn v. Nicholson, 19 Vet.App.
427, 434 (2006) (Lance, J., dissenting). Interests of judicial economy demand that a represented
veteran present all theories and assignments of error to VA before appealing to this Court,
particularly where, as in this case, the newly raised theory involves a relatively novel application of
fact to law.4
4
The Court acknowledges that certain issues cannot be profitably raised to the Board. For instance, if on appeal
a veteran for the first time challenges the constitutionality of a relevant statute, the Board could not afford the desired
relief by declaring an act of Congress unconstitutional. See Johnson v. Robison, 415 U.S. 361, 368 (1974) (noting that
the Board "follows the principle that '[a]djudication of the constitutionality of congressional enactments has generally
been thought beyond the jurisdiction of administrative agencies'" (quoting Oestereich v. Selective Service Board,
393 U.S. 233, 242 (1968) (Harlan, J., concurring)). Nonetheless, as this Court has previously recognized,
[a]lthough courts generally will not require the exhaustion of administrative remedies where the
administrative agency's inability to grant the relief requested renders such exhaustion futile,
Asociacion Colombiana de Exportadores de Flores v. United States, 916 F.2d 1571, 1575 (Fed. Cir.
1990), the need for factual development to help the court resolve the constitutional issue is a proper
reason for requiring exhaustion of remedies before judicial review of the constitutionality of a statute.
Saunders v. Brown, 4 Vet.App. 320, 326 (1993) (citing W.E.B. DuBois Clubs of America v. Clark, 389 U.S. 309, 312
(1967)). Accordingly, the nature of the relief requested by a veteran on appeal to this Court, the Board's ability to
provide such relief, and the need for further factual development of the record are additional factors for the Court's
consideration when it exercises its discretion under Maggitt. See Maggitt, 202 F.3d at 1378.
7
B. The Robinson Decisions
As outlined above, the Court would ordinarily exercise its discretion under Maggitt and
decline to entertain Mr. Massie's newly raised argument. However, the Court notes that Mr. Massie
asserts that the Court must consider his newly raised theory of entitlement to an earlier effective date
because, to the extent this theory was reasonably raised by the record before the agency, the Board
itself erred in not considering it sua sponte. Reply Br. at 4-6. He further argues that his
representation by counsel below is of no import to the issue of whether his newly raised argument
should be considered by this Court for the first time on appeal. Mr. Massie's argument is premised
on this Court's decision in Robinson v. Peake, 21 Vet.App. 545 (2008), and, more on point, the
Federal Circuit's affirmance of that decision in Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009).
Robinson also dealt with a situation in which an appellant raised a new theory of entitlement
for the first time on appeal to the Court. 21 Vet.App. at 548. Citing Maggitt, this Court initially
determined that it had jurisdiction over the underlying claim that related to the newly presented
argument and then examined the issue of exhaustion of remedies. Id. at 550-51. In addressing this
issue, the Court noted that, "by regulation, the Board is required to construe an appellant's arguments
'in a liberal manner for purposes of determining whether they raise issues on appeal,'" and that the
Board is therefore required to consider all issues raised either by the appellant or by the evidence of
record. Id. at 552 (quoting 38 C.F.R. § 20.202 (2006)). The Court clarified, however, that this "does
not require the Board to assume the impossible task of inventing and rejecting every conceivable
argument in order to produce a valid decision." Id. at 553. Instead, "[t]he Board commits error only
in failing to discuss a theory of entitlement that was raised either by the appellant or by the evidence
of record." Id. "The question of the precise location of the line between the issues fairly raised by
the appellant's pleadings and the record and those that are not must be based on the record in the case
at hand; therefore, it is an essentially factual question." Id. In drawing this line, the Court recently
clarified that, although a veteran's claim must always be liberally construed by VA, "representation
[by an attorney] may be a factor in determining the degree to which the pleading is liberally
construed." Cogburn v. Shinseki, 24 Vet.App. 205, 213 (2010) (emphasis added); see also Robinson,
21 Vet.App. at 554 (explaining that the Board may assume that "an experienced attorney in veteran's
law[] says what he means and means what he says"). Ultimately, the Court in Robinson concluded
8
that the theory of entitlement offered by the appellant for the first time on appeal had not been raised
to the Board by either the appellant or the record, meaning that the Board did not err by failing to
consider it. 21 Vet.App. at 554-56.
On appeal, the Federal Circuit affirmed the Court's decision. The Federal Circuit held that
once a "basic issue" related to the claim that is before the Board has been expressly raised (in
Robinson, whether the veteran was entitled to service connection for a disability on a direct basis),
the Board is obligated to consider other theories that relate to that issue (in Robinson, whether
service connection could be established on a secondary basis), so long as such alternative theories
are reasonably raised by the record. Robinson, 557 F.3d at 1362. However, the Federal Circuit
clarified that "[w]here a fully developed record is presented to the Board with no evidentiary support
for a particular theory of recovery, there is no reason for the Board to address or consider such a
theory." Id. at 1361. Accordingly, if the Board fails to consider and adjudicate an argument or
theory "reasonably raised by the record," the Federal Circuit's Robinson holds that the Board
commits error requiring remand. Id. at 1362. The Federal Circuit also held that, in assessing which
arguments or theories are reasonably raised by the record, the Board must afford a liberal reading to
the party's pleadings and documents "regardless of whether the claimant is represented by an
attorney." Id. at 1360.
Although the Federal Circuit acknowledged that this Court characterized the question before
it "as one of 'issue exhaustion,'" id. at 1358 (quoting Robinson, 21 Vet.App. at 553), it provided no
further discussion pertaining to the exhaustion of remedies doctrine or its earlier decision in Maggitt,
which expressly states that this Court has discretion as to whether it will give any consideration to
arguments first raised on appeal. Given the resulting uncertainty regarding whether the Court truly
maintains such discretion or must instead always engage in the type of "reasonably raised by the
record" analysis described in the Robinson decisions, the Court, out of an abundance of caution, will
address Mr. Massie's assertion that, in this case, his newly raised theory for an earlier effective date
was raised by the record before the agency and that the Board erred in failing to consider it sua
sponte.
9
C. Robinson Analysis
Here, the claim that Mr. Massie appealed to the Board was entitlement to an increased
disability rating for service-connected varicose veins. See Hillyard, 24 Vet.App. at 355. Mr. Massie
limited his appeal to the Board to one element of that claim, namely the effective date assigned for
the increase in disability compensation that was awarded. See id. (quoting Black's Law Dictionary
at 597 in defining an "element" of a claim as "'[a] constituent part of a claim that must be proved for
the claim to succeed'"). The Board's decision now on appeal made a determination related to this
element of the claim and Mr. Massie now appeals that decision to the Court. Although he presents
a new theory in arguing for entitlement to an earlier effective date, see id., as noted above, this Court
derives its jurisdiction from the Board's decision on a particular claim, even if the decision pertains
to only one argument or theory offered in support of that claim.5 See Robinson, 21 Vet.App. at 550-
51. Accordingly, the Court has jurisdiction over Mr. Massie's claim and must now assess whether
the Board erred in failing to consider the theory Mr. Massie now advances.
Initially, the Court notes that, in both his Notice of Disagreement and his Substantive Appeal
to the Board, Mr. Massie raised the "basic issue" of whether he was entitled to an earlier effective
date for an increase in his disability compensation that had previously been awarded for his service-
5
The Court acknowledges that when, unlike here, an appellant does expressly present two theories of
entitlement to a particular benefit to the Board or, alternatively, the Board recognizes a second theory of entitlement and
considers it sua sponte, the Board may bifurcate the distinct theories for purposes of adjudication, deciding one and
remanding the other for further development. See, e.g., Tyrues v. Shinseki, 23 Vet.App. 166, 169 (2009), aff'd, 631 F.3d
1380 (Fed. Cir. 2011), vacated and remanded, 132 S. Ct. 75 (2011). In such cases, this Court has held that a final Board
decision on the claim regarding one theory is immediately appealable to this Court, even where the portion of the claim
involving the separate theory remains before the regional office on remand from the Board. Id. at 176 (concluding "that
a final Board decision denying VA disability compensation based upon direct service connection, while the consideration
of benefits based upon presumptive service connection is still under adjudication, constitutes a final decision subject to
separate appeal to the Court"). At least in part, the rationale for this rule is that a veteran ought not be forced to wait for
VA to fully adjudicate the remaining theory of entitlement, a process that can take many years, if he or she believes the
finally denied theory of entitlement to the desired benefit is meritorious. Id. (explaining that "[i]n meritorious cases
where the Board denies benefits based on a particular issue with distinct criteria and remands for further adjudication
another issue of establishing entitlement to benefits, a veteran might otherwise have to wait years for resolution and
possibly benefits to which he or she is entitled").
However, the type of situation at issue in cases like Tyrues is distinct from that at issue in cases like this one,
Maggitt, and Robinson, where the veteran presents to the Board only one theory of entitlement to a particular benefit and
the Board issues a final decision denying that benefit without considering any other theories sua sponte. As noted above,
in such situations, the Court has jurisdiction to consider alternative theories raised by the veteran for the first time on
appeal because, ultimately, the Court's jurisdiction flows from final Board decisions with respect to the benefit sought.
See Robinson, 21 Vet.App. at 550-51.
10
connected varicose veins. However, neither his Notice of Disagreement nor his Substantive Appeal
suggested in any way that his argument for an earlier effective date was premised on a theory that
Dr. Wesselius's May 1999 letter constituted an informal claim for an increased disability rating
pursuant to § 3.157(b)(1). Indeed, that regulation was not cited in either document and the precise
theory raised in presenting his claim for increased disability compensation was that proper
application of section 5110(b)(2)6 and § 3.400(o)(2)7 entitled him to an effective date of April 4,
2000, as opposed to the date of Dr. Wesselius's letter, May 1999.
Further, Mr. Massie was then represented by the same attorney who now acts as his counsel
in the instant appeal. Thus, in interpreting Mr. Massie's pleadings, the Board, although required to
provide a liberal reading, was entitled to assume that the arguments presented by Mr. Massie were
limited for whatever reason under the advice of counsel and that those were the theories upon which
he intended to rely. See Cogburn, 24 Vet.App. at 213. Regardless, even pursuant to a very liberal
reading of these documents, there is no indication that, while before the Board, Mr. Massie intended
to rely on the theory he now presents, and the Court thus concludes that he did not raise his
§ 3.157(b)(1) theory to the Board. Indeed, and as described above, on appeal Mr. Massie concedes
that he did not explicitly raise this theory to the Board. It follows that the Board only erred in not
considering and discussing such a theory if it was raised by the record.
To evaluate this question, the Court must first discuss the nature of § 3.157(b)(1) and its
place in the statutory and regulatory scheme that governs the establishment of effective dates for
awards of increased disability compensation.
D. Effective Dates for Increased Disability Compensation
As a general matter, "the effective date of an award based on . . . a claim for increase[] of
compensation . . . shall be fixed in accordance with the facts found, but shall not be earlier than the
date of receipt of application therefor." 38 U.S.C. § 5110(a). There are statutory and regulatory
6
38 U.S.C. § 5110(b)(2) provides: "The effective date of an award of increased compensation shall be the
earliest date as of which it is ascertainable that an increase in disability had occurred, if application is received within
one year from such date."
7
38 C.F.R. § 3.400(o)(2) provides that the effective date for an increase in disability compensation shall be the
"[e]arliest date as of which it is factually ascertainable that an increase in disability had occurred if claim is received
within [one] year from such date otherwise, date of receipt of claim."
11
exceptions to this general rule, however. For instance, section 5110(b)(2) provides that "[t]he
effective date of an award of increased compensation shall be the earliest date as of which it is
ascertainable that an increase in disability had occurred, if application is received within one year
from such date." See also 38 C.F.R. § 3.400(o)(2) (implementing section 5110(b)(2)).
Relevant to this appeal is § 3.157(b), which provides in pertinent part:
Once a formal claim for . . . compensation has been allowed . . . receipt of one of the
following will be accepted as an informal claim for increased benefits . . . .
(1) Report of examination or hospitalization by Department of Veterans Affairs or
uniformed services. The date of outpatient or hospital examination . . . will be
accepted as the date of receipt of a claim. . . . The provisions of this paragraph apply
only when such reports relate to examination or treatment of a disability for which
service-connection has previously been established . . . .
Thus, this provision "provides that an informal claim for benefits 'will' be initiated by a report of
examination or hospitalization for previously established service-connected disabilities." Norris v.
West, 12 Vet.App. 413, 417 (1999).8
It is self-evident that the purpose of § 3.157(b)(1) is to avoid requiring a veteran to file a
formal claim for an increased disability rating where the veteran's disability is already service
connected and the findings of a VA report of examination or hospitalization demonstrate that the
disability has worsened. Further, because this provision provides that "[t]he date of outpatient or
hospital examination . . . will be accepted as the date of receipt of a claim," § 3.157(b)(1) operates
in conjunction with section 5110(a) to entitle such a veteran to an effective date for any increase in
compensation as of the date of the examination (or, pursuant to section 5110(b)(2), up to one year
prior thereto, should the examination report or other evidence demonstrate that the increase in
disability was first ascertainable within that period).
Here, Mr. Massie's newly stated theory is that Dr. Wesselius's May 1999 letter was a "report
of examination," as contemplated by § 3.157(b)(1), and that that provision therefore operated to
8
The Court notes that the Veterans Benefits Administration and the Veterans Health Administration, although
both within the Department of Veterans Affairs, are separate administrative organizations. Thus, to be clear, it is only
after the Veterans Benefits Administration has received a report of examination or hospitalization from the Veterans
Health Administration that it is required to treat the report as an informal claim for an increase in disability compensation
and initiate the adjudicative process. Section 3.157(b)(1) merely requires that, once received, the regional office will
recognize "[t]he date of outpatient or hospital examination" as the date that the informal claim was filed.
12
transform the letter into an informal claim for an increased disability rating, potentially entitling him
to an effective date sometime between May 1998 and May 1999.
Neither party has identified in § 3.157 or in any other statute or regulation a specific
definition for the term "report of examination," nor has the Court's own search of these sources
unearthed such a definition. Indeed, the sole reason panel consideration is necessary in this case is
that the issue of what qualifies as a report of examination is vital to resolution of this appeal and VA
has failed to promulgate a regulation clearly defining this term. VA's failure to specifically define
this term is troublesome in light of the myriad records generated by VA medical personnel who
provide treatment to veterans for service-connected conditions on a daily basis.
At oral argument, the Court raised the issue of whether certain provisions of the Veterans
Benefits Administration Adjudication Procedures Manual (M21-1MR) are intended to describe the
type of VA medical record that qualifies as a "report of examination." In particular, under the
heading "Reviewing Department of Veterans Affairs . . . Examination Reports," one portion of the
M21-1MR provides:
The examination report must include
• an up-to-date, brief, medical and industrial history from the date of discharge
or last examination
• a record of subjective complaints
• a complete description of objective findings, stated in concrete terms
• a diagnosis for each described condition[]
• answer(s) to any question specifically included in the examination request
• opinions specifically requested in the exam request
• a diagnosis or notation that a chronic disease or disability was ruled out for
each disability, complaint, or symptom listed on the examination request, and
• the clinical findings required by the rating schedule for the evaluation of the
specific disability being claimed. (For example, if a joint is being examined,
the range of motion in degrees should be noted as part of the examination.
If a cardiovascular condition is being examined, the metabolic equivalent
expanded before fatigue, chest pain, and so on, result should be expressed.)
M21-1MR, pt. III, subpt. iv, ch. 3, sec. D(f).
In response to the Court's inquiry, counsel for the Secretary stated that this provision is
intended to assist VA adjudicators in determining what constitutes a sufficient report of examination
for compensation and pension purposes, but conceded that a particular VA medical record may still
13
qualify as a "report of examination" under § 3.157(b)(1) even if it is not as detailed as required by
this M21-1MR provision. The Court agrees that the type of VA medical record contemplated by
§ 3.157(b)(1) certainly could be less detailed than that described by the relevant provision of the
M21-1MR. Nevertheless, in the absence of a precise regulatory definition, this provision at least
provides some helpful indication of the type of information typically contained in a "report of
examination" that the Court may look to in the future when faced with similar questions.
In the present case, even without the assistance of the M21-1MR provision detailed above,
the Court concludes that Mr. Massie's argument is not persuasive because Dr. Wesselius's May 1999
letter could not possibly qualify as a report of examination under § 3.157(b)(1). The plain language
of the term "report of examination" necessarily implies that the medical record in question must
describe the results of a specific, particular examination. See Frederick v. Shinseki, 24 Vet.App.
335, 338 (2011) (explaining that any analysis of the meaning of statutory or regulatory language must
begin with the plain meaning of the language). Here, however, it is apparent that Dr. Wesselius's
May 1999 letter did not relate to a specific VA medical examination. In the letter, Dr. Wesselius
identified himself as the VA physician "who ha[d] been caring for Mr. Massie . . . since
approximately 1987." R. at 1299. The letter's only reference to Mr. Massie's varicose veins
condition was to note that "[t]he venous insufficiency ha[d] persisted in spite of prior surgical
treatment with vein stripping," and that "[t]his problem . . . left Mr. Massie with significant pain
when he [was] on his feet for any period of time." R. at 1299. Thus, this letter was not generated
in connection with any particular VA medical examination; rather, as the record reveals, it was
generated in connection with Mr. Massie's claim for Social Security disability benefits that was
pending at the time it was written. Similarly, the letter did not indicate the findings of or treatment
provided during a specific VA medical examination, the date of which could possibly serve as the
date of an informal claim for increased disability compensation; rather, the letter presented a very
short summation of Mr. Massie's general condition, as Dr. Wesselius had observed it over an
approximately 12-year period. Simply put, the letter did not relate to a specific, identifiable
outpatient or hospital examination and therefore did not qualify as a "report of examination," as
contemplated by § 3.157(b)(1).
14
Further, Dr. Wesselius's letter does not suggest that Mr. Massie's condition had in any way
worsened. Although the language of § 3.157(b)(1) does not expressly require that a report of
examination or hospitalization indicate that the veteran's service-connected disability worsened since
the time it was last evaluated, any interpretation of § 3.157(b)(1) that does not include such a
requirement would produce an absurd result. See Timex V.I. v. United States, 157 F.3d 879, 886
(Fed. Cir. 1998) (holding that a statutory or regulatory construction "that causes absurd results is to
be avoided if at all possible" (citing Haggar Co. v. Helvering, 308 U.S. 389, 394 (1940))). Without
such a requirement, every medical record generated by the Veterans Health Administration and
received by VA that could possibly be construed as a report of examination would trigger the
provisions of § 3.157(b)(1). This would unnecessarily burden VA by requiring it to treat every such
medical record as an informal claim for an increased disability rating, even where a particular
medical record shows no change in the veteran's condition.
Because, for the reasons outlined above, § 3.157(b)(1) was not implicated by Dr. Wesselius's
May 1999 letter or any other aspect of the record as it has been presented to the Court, the Court
concludes that the Board did not err in failing to discuss the theory now expressly raised by Mr.
Massie in the first instance. See Robinson, 557 F.3d at 1361 ("Where a fully developed record is
presented to the Board with no evidentiary support for a particular theory of recovery, there is no
reason for the Board to address or consider such a theory."); Robinson, 21 Vet.App. at 553 ("The
Board commits error only in failing to discuss a theory of entitlement that was raised either by the
appellant or by the evidence of record."). Accordingly, the Court will affirm the Board's May 2009
decision.
E. Other Matters
Since the Federal Circuit's decision in Robinson, the Court has witnessed an increase in the
number of cases in which the appellant presents a new theory or argument that was not explicitly
raised to VA, even in cases such as this one in which the appellant was represented by an attorney
throughout the administrative process. Invariably, as is the case here, the appellant will cite the
Federal Circuit's decision in Robinson for the proposition that the Board erred by failing to consider
and adjudicate the particular issue, theory, or argument that was purportedly "reasonably raised by
the record," but not expressly presented to VA by the appellant. To the extent that this Court no
15
longer has discretion under Maggitt to simply refuse to entertain such newly raised theories or
arguments due to the represented appellant's failure to present them below—regardless of whether
the theory was reasonably raised by the record—the Court is troubled that the current system
provides very little incentive for an attorney practicing before VA to present all available arguments
to the agency in one comprehensive appeal to the Board where veterans' claims can be resolved in
a timely manner.
Last year 62% of the cases decided by the Court resulted in either a reversal or a remand; of
these, 86% resulted in the payment of fees and expenses to lawyers by the United States under the
Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412(d). See U.S. COURT OF APPEALS FOR
VETERANS CLAIMS, ANNUAL REPORT FOR FISCAL YEAR 2010, available for download at
http://www.uscourts.cavc.gov/annual_report/ (last visited Sept. 30, 2011).9 In this way, the more
times a lawyer gets a case to this Court, the more money the lawyer may make. This is particularly
true for the unscrupulous or complacent attorney who waits to present a potentially meritorious
argument or theory until he or she is before the Court, in that, in addition to collecting EAJA fees
resulting from a Court remand, he may then collect a reasonable fee—often paid from a veteran's
benefits—for representation provided during proceedings before VA. By this, we do not intend to
imply that such is often the intention of lawyers, as they are obligated to continually and vigorously
represent their clients.10 However, because such a large percentage of successful appeals results in
the payment of fees under the EAJA, any system that requires the Court to remand a claim because
a theory or argument was reasonably raised by the record before the agency but not explicitly by the
appellant will result, in many cases, in lawyers collecting fees when attentive representation below
9
Specifically, of the 4,959 appeals filed with the Court in fiscal year 2010, 1,670 resulted in a remand, 560
resulted in the Board decision being reversed or vacated and remanded in whole or in part, and 832 resulted in a portion
of the Board decision being affirmed or dismissed in part and the remainder reversed or vacated and remanded. Thus,
3,062 of the appeals filed with the Court, or 62%, resulted in a favorable or partially favorable disposition for the
appellant. Of the 2,652 EAJA applications that were filed in connection with these successful appeals, the vast majority,
2,627, were granted, at least in part. Accordingly, approximately 86% of successful or partially successful appeals to
the Court resulted in an award of fees and costs pursuant to the EAJA.
10
Indeed, the observations contained in this section are not intended to reflect on Mr. Massie's current counsel,
but are set forth as the result of the Court's more general concerns regarding difficulties encountered when argument is
presented for the first time on appeal to this Court by veterans who were represented by an attorney during proceedings
before VA.
16
would have led to the presentation and resolution of all issues at an earlier stage of the proceedings.11
Any monetary incentive for attorneys who represent veterans before VA should be oil for the gears
of the system, not sand in the works. Congress may wish to consider an explicit exception to EAJA
for cases where the appellant was represented below and obtains a remand based upon the Board's
failure to address an issue that counsel failed to raise.12 Such a change would clearly align attorneys'
financial incentives with the best interests of veterans.
III. CONCLUSION
Upon consideration of the foregoing, the May 19, 2009, Board decision is AFFIRMED.
11
It also raises the specter that unscrupulous counsel might seek to prolong matters with a low-effort appeal
and statistically likely remand from the Court so as to increase the size of the back award from which a contingency fee
would be collected. Even if such motives are unlikely to be true, the mere appearance of such impropriety feeds public
sentiment against the profession.
12
The Court has not yet had reason to consider whether there are "special circumstances [that] make an award
unjust" under the EAJA. 28 U.S.C. § 2412(d)(1)(A). Nor has the Court had cause to consider whether a reduction or
denial of fees requested pursuant to the EAJA would be appropriate in instances in which an attorney who represented
a veteran before VA first presents, without justification, a potentially meritorious theory or argument on appeal to this
Court. See 28 U.S.C. § 2412(d)(1)(C) ("The court, in its discretion, may reduce the amount to be awarded pursuant to
this subsection, or deny an award, to the extent that the prevailing party during the course of the proceedings engaged
in conduct which unduly and unreasonably protracted the final resolution of the matter in controversy.").
17