After years of zooming by 38 CFR §3.303(b) like an anonymous building alongside  the freeway at 65 mph and seeing it quoted often in denials of HCV cases, I was rudely awakened to the following. Apparently a lot of us pro se idiots were misinterpreting it to encompass diseases as well as injuries like degenerative disc disease. No way, Jose. Mr. James E. Walker and I just got an education in what the regulation says, and most importantly, what it doesn’t say. Oddly enough, the VASEC apparently has been lost in the same fog and finally stumbled out of it with an interesting legal epiphany.

38 CFR §3.303 has been around in one form or another since 1947 so it isn’t some new mission creep, post hoc rationalization trotted out for the first time in a dastardly attempt to create new law or precedence. It pretty much means what it says. It encompasses in section (a)  much what 38 USC 1154(a) does in how the rating shall be based with due respect on the what you and your organization were up to during your service. If your platoon was effectively wiped out and you survived, it could be said that you deserve the combat accommodation in  §1154(b) as well.

They throw in the benefit of the doubt at the bottom just to make it look fair.

§ 3.303

Principles relating to service connection.

(a) General. Service connection connotes many factors but basically it means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. This may be accomplished by affirmatively showing inception or aggravation during service or through the application of statutory presumptions. Each disabling condition shown by a veteran’s service records, or for which he seeks a service connection must be considered on the basis of the places, types and circumstances of his service as shown by service records, the official history of each organization in which he served, his medical records and all pertinent medical and lay evidence. Determinations as to service connection will be based on review of the entire evidence of record, with due consideration to the policy of the Department of Veterans Affairs to administer the law under a broad and liberal interpretation consistent with the facts in each individual case.

In the red above, please note that it mentions both disease and injury. Now parse §3.303(b)…

(b) Chronicity and continuity. With chronic disease shown as such in service (or within the presumptive period under § 3.307) so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. This rule does not mean that any manifestation of joint pain, any abnormality of heart action or heart sounds, any urinary findings of casts, or any cough, in service will permit service connection of arthritis, disease of the heart, nephritis, or pulmonary disease, first shown as a clearcut clinical entity, at some later date. For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word “Chronic.” When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim.

Wow. Big uh-oh. No longer can you point to a back injury in service and a current, ongoing, chronic injury and say it’s the same one by basing your argument on §303(b). You will have to rely on your SMRs and the word “chronic” mentioned there. Any nexus letter will also have to discuss quite a bit of medical science and why the doctor came to the conclusions he did. 38 CFR §3.303(a) will now be the default setting for all “injuries”.

VA has probably under-enforced this for years, or, on the other hand erred in favor of the Vet with a generous interpretation. That will all be erased by a quick revamp of the M21-1MR to regurgitate all the prior ones for a redo based on CUE.

Walker is going to be anathema for years until a new defense based on other legal facets can be fashioned out of 38 USC Part 3. Either that or someone is going to have to pull their plug and go upstairs. The CFRs, being an invention of VASEC, merely interpret the Statute. If they become overly broad and are determined to be too restrictive for Vets or overreaching, they’ll be trimmed like the proverbial hedge.

Herein lies the poison pill:

Walker’s briefs on appeal, and his oral argument, reduce the appeal to a single question: whether Walker is  entitled to a remand for consideration of service connection for his diagnosed bi-lateral hearing loss under 38 C.F.R. § 3.303(b). The answer to this question requires interpretation of the term “chronic disease” as it appears in § 3.303(b). Under Walker’s interpretation of the term, he is entitled to the remand he requests. Under the Secretary’s interpretation, the Veterans Court correctly denied the remand request. We thus turn to subsection (b) of § 3.303   Walker v. Shinseki 2013

This one sentence will be quoted for a long time.

 The Secretary thus concludes that “every ‘chronic disease’ is persistent or long-lasting, but not every persistent or long-lasting disease is a ‘chronic disease’” for purposes of §3.303(b).”   Walker supra

Here’s the bombshell in footnotes 3 and 4 (pages 13 & 14)…

3   The Secretary advises us that he disagrees with Savage v. Gober and other Veterans Court decisions in cases that have extended § 3.303(b), in reliance on Savage v. Gober, beyond the list of chronic diseases found in § 3.309(a). For example, the Veterans Court gave the benefit of §3.303(b) to a claim for psoriasis in Kent v. Nicholson, 20 Vet. App. 1 (2006), and to a claim for varicose veins in Barr v. Nicholson, 21 Vet. App. 303 (2007), even though neither condition is named as a chronic disease in § 3.309(a).

4  The question of whether and to what extent § 3.303(b) is constrained by § 3.309(a) is new to this court. This question has not arisen for adjudication in the limited number of our cases that have cited § 3.303(b). In one case, in dictum, we suggested that § 3.303(b) is not so constrained. See Groves v. Peake, 524 F.3d 1306, 1309 n.1 (Fed. Cir. 2008). That suggestion is incorrect, and the decisions of the Veterans Court that have extended continuity of symptomatology under § 3.303(b) to chronic diseases not enumerated in § 3.309(a) are hereby abrogated.

This is over the top. The Federal Circus has already ruled in the positive in Groves v. Peake and now they are striking it down. Groves was a fine, well  reasoned piece of law that adequately accommodated §3.303(b) in the context that a mental disease in service was the same (chronic) after service. As you can see, they stepped on their necktie and are attempting to revamp established precedence. This isn’t over. I can see Mr. Walker’s leagle beagles headed straight to the Supremes for certiorari. Whether they get it or not is going to be intriguing. The rending asunder of years and years of work (and established precedent) cannot be done so arbitrarily or lightly. By reading §3.303(b) as they did for this long, they have inadvertently given their seal of approval to it. In this matter, Walker  is now settled law and a new “finding”. The Feds are  trying to go back and erase that which came before. Abrogating Groves and a host of other  similar ones like Savage, Kent and Barr is going to set Veterans rights back on their heels. A large vein of jurisprudence is predicated on just Savage alone.

The BVA and VAROs can actually have a field day with this and undoubtedly will. Watch how quickly this is inserted into the mix. I know in 1992 during my BVA decision that numerous new precedents like Wilson and Shafrath were ignored for months, if not years, even though promulgated as much as 90 days previous. Don’t be fooled. Walker can’t stand as it is. Too much goes down the tubes with this. The Feds have been granting it for almost a decade. VASEC hasn’t protested once (until now). This smacks of a way to have more denials and thus fund more Human Rights seminars in Costa Rica.

Eventually, the Supremes could rule that VA has been doing it this way for years so why the bitch all of a sudden. Isn’t that the favorite complaint from VASEC when they are caught rearranging the judicial regulations to mean new things?  Oddly, the VASEC is on very firm legal ground but indefensible inasmuch as he has never put his foot down and complained. To do so now smells of desperation and a desire to be vindictive. He’s convinced the Feds to go along and they are only obeying the undisputed reading of §3.303(b). Arguments about §3.309 missing from it are specious and cannot rise to the level of it being flawed.

Say what you will but §3.303(b) is one of those tar babies the VASEC forgot to keep track of for the last sixty six years and now wants a do over on. It would appear he has it. Anyone who obtained ratings based on this with less that 10 years under the belt stands a darn good chance of being pulled in and having it removed. For those of you with less than five years, I think we can say Sayonara to any Savage or Barr jurisprudence. Time will tell if this will stand. Earth shattering would be a good synopsis for Vets.

And if you thought the backlog was ginormous before, wait until you see the VA crank up the CUE machine on all these erroneous grants based on Savage v. Gober and its progeny. This may get ugly. What the hey? Now VASEC has another excuse for why 2015 and 125 days is right out.

Thus we award the Alfred (I don’t care about Vets) E. Neuman award to the Federal Circus this month for finally putting their glasses on and actually discerning the difference between 38 CFRs §§ 3.303(a) and (b).


What? Me worry about whether it says "diseases"? No way.

What? Me worry about whether it says “diseases”? No way. I see it now so no harm, no foul. Got it? Make it so, Numbah 1.

About asknod

VA claims blogger
This entry was posted in CAVC ruling, Veterans Law and tagged , , , , , , , , , , , . Bookmark the permalink.

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