In what Law dogs from NOVA Sea to Shining NVLSP Sea have hoped for years, the long-ignored 38 USC §511’s codicil about how only the Board(s) could make the final decision on an appeal from the Agency of Original Jurisdiction was finally “discovered” by the Court. One decision on appeal suddenly has to mean what Congress intended. You can’t insert the Director of Compensation and Pension into the lineup like a designated hitter. What’s funny is the enlightened folks up at the OGC just couldn’t digest that.
This has to be as unsettling as Walker v Shinseki was for Vets. Here VA has had a path to denial on extraschedular in effect for almost fifty years and suddenly the Court up and reads 38 CFR §4.16(b) literally. And it conflicts (or shall we say collides) with 38 USC §511. VA maintains that it only conflicts if you read it wrong. Ergo, if you read it in the light most favorable to VA, then it’s peachy keen. Unfortunately, Congress wrote it and VA merely is tasked with interpreting it into a regulation. Watch as the Word Wizards at the Court tie the VA up in knots with their own semantics.
Willie C. Wages filed at the Drew Carey Memorial VARO in Columbus Ohio back in the early 80’s and got a few 0% ratings. He finally came back and began building his TDIU in 2000-2010. He was out of work, unemployable and had a rat’s nest of 30%rs, 20%rs and a lot of 10s and 0s. No singular disease was enough to create the benchmark of 40% to add up to a combined 70% nor did he have a singular one of 60%. By 2009 he had enough to do so and applied. VA and the BVA refused to budge. In a showing of what we all know is pure dog and pony show, the BVA judge made a grand gesture of sending out for the Director of Compensation and Pension to wave his magic wand over it and make an informed decision. No dice.
The big error here, for all these years, was to involve the Director in it at all. He became a de facto judge in his own right and Vets didn’t get a “hearing” or an opportunity to rebut his findings. He became a third wheel in what was supposed to be a two step process. Anything he said could not be evidence against you because he wasn’t part of the BVA/VARO adjudication scheme.
Willie’s predicament has been suffered by so many as to be joke. Nobody gets extraschedular unless he/she is related to the VASEC or Laura Eskinazi. The Court decided to disassemble §4.16(b) and look at the component pieces. All was well until you insert the Dir. of Comp/Pen into it. The Court takes the magnanimous position that if you want to write goofy regulations, that’s your business but don’t let them conflict with the USC’s tenets.
Although the Secretary initially argued that the Director’s decision was indeed evidence upon which the Board could rely, the Secretary now contends, in response to the above-mentioned order, that the Director’s decision is not evidence. Rather, the Secretary now argues that, although the Board may review the factual basis of the Director’s decision to ensure that it is accurate and complete, § 4.16(b) operates to divest the Board of the authority to overturn a Director’s decision because determinations under § 4.16(b) are policy decisions committed to the Director’s sole discretion. A contrary view, the Secretary argues, would render the referral process in §4.16(b) meaningless, time consuming, and unnecessary.
You can see the battle lines being drawn here. Rule #1 is: My regulations make sense because I wrote them. Rule #2 is: If they don’t make sense go back to rule #1. The Court is getting ready to take the OGC acolytes on a wild ride and disabuse them of this misconception. Here’s the first shot across the USS OGC’s bow:
Although the Board is required to obtain the Director’s decision before the Board may award extraschedular TDIU, we find no merit in the Secretary’s contention that the Board is limited to ensuring that the Director had the correct and full facts when rendering his decision, or that the Board otherwise is bound by the Director’s decision. Such a contention creates a direct conflict with the statutory mandate that the Board render the final decision for the Secretary on all questions arising under 38 U.S.C. § 511(a), which, as discussed below, indisputably includes an award of TDIU. See 38 U.S.C. § 7104(a) (“Final decisions on [section 511(a)] appeals shall be made by the Board.”)
The Court slowly dismembers the OGC in bits and pieces by cherry picking the proper language the VA has already incorporated into other regulations: The OGC argued above that misreading 4.16 would render the job of Director of Comp/pen superfluous. The Court disagrees subtly:
On its face, the regulatory scheme created by § 4.16(b) merely withholds from rating boards the authority to grant extraschedular TDIU in the first instance. Indeed, nothing in the language of § 4.16(b) purports to limit the Board’s scope of review of the Director’s decision.
Moreover, even if the plain language of the regulation could be interpreted as limiting the Board’s scope of review and precluding a final Board decision that was contrary to the Director’s § 4.16(b) determination, such an interpretation would contravene the clear congressional intent expressed in 38 U.S.C. § 7104(a) that the Board shall be the final authority on all benefits decisions.
Ruh-oh, Rorge rote it rong.
“It is the established policy . . . that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled”. “[T]he mandatory ‘shall ‘ normally creates an obligation impervious to discretion.”
In short, the Director’s decision is no different than an RO’s decision in terms of its effect on the Board’s statutory jurisdiction and the Board’s standard of review.
The judges just keep digging the pit deeper and deeper. Lord knows, the OGC gave them a wealth of shovels to do so. Here’ the clothesline moment. Hizzoner the Secretary is free to write them regulations up any old way he wants to. We don’t see any conflict. If he wants to drive to Boston via Denver, why, by all means have at it.
As to the Secretary’s argument that de novo review of the Director’s decision by the Board renders the referral process in § 4.16(b) meaningless, we note that such a referral is the Secretary’s chosen procedure under § 4.16(b). Withholding the authority of granting extraschedular TDIU from the numerous and various ROs can provide a degree of uniformity over such decisions that would be difficult to maintain if each RO were permitted to award extraschedular TDIU.
The upside to this decision is long overdue. For years, the Director of Comp/Pen has wielded unparalleled power over all extraschedular decisions and rarely awarded any- even in the face of judges inclined to do so. Many are the Vets who ended up on the losing end of this logic-especially on appeal. From here on out the VA is put on notice that the Board has to be the bad guy and deny the extraschedular instead of making the Director the bad guy. Willie’s TDIU gets remanded back for a do over and the Director’s testimony gets tossed. It’s a win-win for us and one more positive step towards what is legitimately ours via §511.
2015 promises a wealth of these Veteran-friendly decisions. Willie might have to appeal all over again but I don’t think he will have to, personally. The writing on the wall for extraschedular is out of the closet. BVA judges are going to have a tough time finding good reasons and bases for denial with this precedent hanging over them.