The effective date of a veteran's claim for a "covered herbicide disease" depends on whether (1) VA denied the claim for the covered herbicide disease between September 25, 1985, and May 3, 1989, or (2) the claim was pending before VA on May 3, 1989, or received by VA between that date and the effective date of the law establishing a presumption of service connection for the condition. 38 C.F.R. § 3.816(c)(1)-(2) (2017).
The veteran had filed a claim in May 1994, which the BVA construed as a claim for the covered condition. The covered condition had been added to the list of conditions presumed to be caused by Agent Orange exposure in August 2010. The BVA assigned a May 1994 effective date.
When the C-file contains evidence of a diagnosis of the covered condition in April 1990, did the BVA err in not considering April 1990 as the effective date?
The Court found that since appellant had provided no evidence of a claim pre-dating the May 1994 effective date, and failed to make a coherent argument otherwise, the BVA did not clearly err in choosing May 1994 as the effective date.
This case is, essentially, a Nehmer “Footnote 1” effective date case. Appellant's attorney appears to have been making an argument distinct from that, but it is impossible to discern what that argument is or the facts on which it relies.
The Court was not pleased with the appellant's briefs, and I encourage attorneys practicing at the Veterans Court to click here and read the principal brief in this case as an example of a brief that will not win favor with the Court.
I think we can agree that no attorney wants to receive this rebuke from a federal court judge:
"…the appellant provides no specific or coherent legal theory as to why the date of the veteran's medical treatment should be treated as the date of the claim for purposes of Nehmer…[t]o the extent that the appellant raises new arguments in her reply brief, the Court notes that 'courts have consistently concluded that the failure of an appellant to include an issue or argument in the opening brief will be deemed a waiver of the issue or argument' ". Carbino v. West, 168 F.3d 32 (Fed. Cir. 1999).
What's important about this case is that it essentially lines out for us what we need, in terms of evidence, to prove entitlement to an earlier effective date in a Nehmer case using a "Footnote 1" type argument.
In any event, Footnote 1 refers to the footnote in the Nehmer stipulations that gave rise to this claim type.
"Footnote 1" has been “memorialized”, for lack of a better phrase, in VA Training Letter 10-04 at 20 (Feb. 10, 2011).
Here’s how it works.
If, during the processing of any past claim for benefits, the VA took into its possession or custody evidence that a veteran had a diagnosis of or was being treated for a condition that - years later - was found to be presumptively caused by Agent Orange exposure, the VA is held to have implicitly denied service connection for the now-covered condition in the very next ratings decision.
The effective date then becomes the date of claim underlying the rating decision with the implicit denial of the now covered decision.
That is quite a mouthful, and hard to follow. Here’s how to piece the argument together.
Step 1: Make sure you have your client’s C-file (click here for an example of a video training course teaching you what the C-File is, how to get it, and how to organize and examine it).
Step 2: When your client is service connected for a presumptive Agent Orange condition, go through that C-File and find the very first medical reference to the diagnosis of that condition.
Step 3: Starting with the date of the very first diagnosis of the now-covered condition, go through the C-File chronologically to find the very next ratings decision. It is this decision you will argue is an implicit denial of the now-covered Agent Orange presumptive medical condition.
Step 4: Note the date of the claim which led to that ratings decision; this becomes the Nehmer Footnote 1 effective date.
Step 5: Don’t limit yourself to this one effective date. The Nehmer Footnote 1 effective date may not be the earliest effective date: it is one possibility among many.
For example, if the claim identified in #4 is actually a submission within a year of another ratings decision and is covered by 3.156(a), other effective date rules may be available.
Additionally, depending on the nature of the covered condition, you may be able to get a much earlier effective date by making an argument that the now-covered Nehmer condition was “reasonably encompassed” in another, earlier, claim.
Appellate advocacy is tough.
The attorney who was rebuked by the court has been practicing law since 1975, and there is no doubt he is capable and competent.
Reading his brief, one can almost discern the salient points he is trying to make; were this a pro-se veteran's brief, I suspect the court might have looked harder for the issue.
If you are a VSO representative or an attorney accredited to represent veterans, and the primary focus of your work is presenting claims and appeals to the VA Regional Office and the BVA, do yourself and your client a huge favor.
Hire an appellate attorney to present, argue and brief the case at the CAVC and/or the Federal Circuit.
It costs you nothing: when an attorney at the CAVC prevails in your client's case, appellate attorneys are compensated under the Equal Access to Justice Act (EAJA).
It gains you everything: the average fully briefed appeal to the CAVC can take between 75-150 hours (or more, depending on the issues, the facts, and the OGC attorney on the case).
From your perspective, that is 2-4 weeks of time that you do not have to spend learning a new skill set, exposing yourself to threat of sanctions before the appellate court.
It enables you to continue working on winning your client's appeals: that is, after all, what you do best, isn't it?
CAVC Judge: Judge Mary J. Schoelen (link to bio on CAVC page)
OGC Attorney: James R. Drysdale
Veteran Representation at CAVC: Michael B. Roberts
Board of Veterans Appeals Veterans Law Judge: Ryan T. Kessel
Regional Office: Waco TX VARO
Vets’ Rep at BVA: Michael B. Roberts
Date of Decision: December 20, 2017
* Photograph of Judge Mary J. Schoelen courtesy Claire Duggan, who is believed to hold the copyright.