Episode 004: CAVC Oral Argument – Johnson v. Wilkie, #16-3808 (April 24, 2018) Successive Rating Criteria for Migraines)

VA Form 21 Podcast

General Preview of the Case:

This is a complex case involving the complex issue of “successive rating criteria”, with a lot of regulatory interpretation and factual application issues at play.

There is one, and possibly more, diagnostic codes for rating veterans disabilities which include what are called “successive rating criteria”. Camacho v. Nicholson, 21 Vet.App. 360 (2007). This means that each level of rating includes, within it, the criteria for the lower ratings.

The rating for diabetes is the most well known of the VA diagnostic codes believed to have successive rating criteria. Camacho v. Nicholson, 21 Vet.App. 360 (2007).

The CAVC has held in Camacho that because the schedule for rating diabetes requires establishment of successive rating criteria, certain VA regulations do not apply.

First, the Court held that 38 C.F.R. §4.7 does not apply where there are successive rating criteria in a diagnostic code. 38 CFR 4.7 says that where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating.

I disagree with the premise and holding of Camacho. I believe that it is entirely possible to have a set of rating criteria which are successive while still having a fact pattern in which the disability picture more nearly approximates the higher rating while not strictly meeting all of its criteria. If you have a BVA decision that refuses to apply either or all of 38 C.F.R. §§4.3, 4.7, or 4.21 because the rating criteria are believed to be successive, please contact my law office to review your BVA decision for possible appeal to the CAVC.

In a later case, Pierce v. Principi, 18 Vet. App. 440 (2004), when considering whether DC 8100 for rating migraines contained successive rating criteria, the Court suggested that certain other regulations besides the benefit of the doubt regulation might not apply. Two of those regulations were 38 C.F.R. §4.3 (the benefit of the doubt standard) and 38 C.F.R. 4.21 (in which the Secretary expects atypical instances of a disease in which all of the criteria for a particular set of rating criteria may not manifest).

In this case, the question arose whether DC 8100 (for rating migraines) did include “successive rating criteria”.

The Court’s driving concern is that it wants a clear standard for when a particular diseases’ rating criteria could be said to be successive, and if those rating criteria were only “partially successive”, to include how the Court might analyze whether the three regulations noted above would apply. Would they only apply to the successive ratings, or all the rating levels, or none.

The Court fears an overly complex analysis for evaluating whether the BVA properly applied rating criteria would always include the first question of whether the various impairment levels of the rating criteria were successive, partially overlapping, or wholly independent.

Facts & BVA Decision.

The veteran, Willie Johnson, is rated 30% for his service-connected migraine headaches. He sought a higher rating, after pointing to evidence which might arguably establish a 50% rating.

The BVA refused to consider 38 C.F.R. §4.7, and did not consider which rating more nearly approximates the veteran’s migraine disability (30% or 50%) because DC 8100 (diagnostic code for rating migraines) contained successive rating criteria, and, under 38 C.F.R. § 4.7 was not applicable.

Curiously, the BVA did not cite to Camacho for the proposition that 38 C.F.R. §4.7 does not apply to diagnostic codes with successive rating criteria. Instead, the BVA Hearing Officer cited to Tatum v. Shinseki, 23 Vet. App. 152 (2009) which, arguably in dicta, rejected that expansive characterization of the Camacho holding.

Preface to the Parties Arguments.

Neither party raised the issue of whether 38 C.F.R. §4.7 (or 38 C.F.R. §4.3 or 38 C.F.R. §4.21) applied to diagnostic codes with successive rating criteria.

The phrase “successive rating criteria” appears in neither brief.

Neither parties primary briefs discuss or cite to Camacho. The Secretary alone makes the singular citation to 38 C.F.R. §4.7, arguing that the BVA decision is not clearly erroneous because “[t]here is a plausible basis in the record as a whole for the Board’s determination that Appellant’s headaches more nearly approximate the 30% rating throughout the entire appeal period.”

I do not mention these facts to embarrass either party. Parties are free to frame the issues in their case in the way that is most beneficial to their client.

I mention this only because it is rare for the Veterans Court to seek out an un-briefed issues to adjudicate.

As a result, in the arguments, you will hear the Court and the parties struggle to understand how to define whether a particular diagnostic codes levels of impairment are or are not successive rating criteria.

Though I do not want to prejudice your understanding of the issues in this argument with my point of view, I suggest that this might have been a scenario where the Court waited until the parties themselves raised the issue of what constitutes a successive rating criteria, so the issue might be adjudicated in the context of a clear fact pattern.

Veterans Arguments on the Panel’s Issue:

The veteran argues that there is a difference between ratings which overlap (different rating levels have some criteria in common) and there are others which are successive rating criteria (each level builds on the prior level).

When there are successive rating criteria, as in the case of DC 7913 for diabetes, no analysis of the “interplay” between 38 C.F.R. §§ 4.3, 4.7, and 4.21 is necessary.

In regards to whether DC 8100 for rating migraines contains successive rating criteria, Mr. Johnson argues that the lower ratings of DC 8100 are successive, but the higher ratings are not.

He points out that the criteria for a 30 percent rating for migraines requires “characteristic prostrating attacks occurring on an average once a month over last several months”.

He notes the criteria for a 50 percent rating for migraines requires “very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability.”

He hypothesizes that it is possible the criteria are not successive because the terms for the ratings themselves are different.

Secretary’s Arguments

The Secretary does not dispute that successive rating criteria exist where each criterion for the lower disability rating is included in the criterion for the higher disability rating.

The Secretary does, however, differ from Appellant in that he argues 38 C.F.R. §4.3 (the VA regulation governing application of the rule of the benefit of the doubt) is fact dependent and can apply whether or not the criteria are successive, overlapping or independent.

The Secretary, in his briefs, disagrees with Appellant and states that DC 8100 for rating migraines includes successive rating criteria because “they build upon one another in both frequency and severity; one cannot fulfill a higher rating without fulfillment of a lower rating.”

The Secretary seems to take a different approach in the oral arguments, but I will leave you to listen to that argument, and the Court’s strong negative reaction to it towards the end of the Secretary’s arguments.

Court’s Statement of the Issue

The case was assigned to a panel to provide binding precedent on the application of the concept of successive rating criteria to all DCs, and resolving uncertainty with regard to DC 8100 in particular.

The Court will discuss the following 3 specific questions:

1) What are the determinants of whether a DC involves successive rating criteria, such that an analysis of the interplay among §§ 4.3, 4.7, and 4.21 is not required to assign a rating under any given DC?

2) How do those determinants apply in the specific instance of DC 8100?

3) If the panel were to agree that DC 8100 has successive rating criteria, would that conclusion create a conflict with Pierce requiring an en banc decision to resolve?

Panel for Court of Appeals for Veterans Claims:

Chief Judge Robert N. Davis (link to bio on Court webpage)

Judge Mary J. Schoelen (link to bio on Court webpage)

Judge Michael P. Allen (link to bio on Court webpage)

Appellant’s Counsel:

Raymond J. Kim, Attorney on the Supplemental Briefs and at Argument [National Veterans Legal Services Project]

VA Office of General Counsel Attorney:

Sarah E. Wolf, Attorney on the Briefs and at Argument

Links to the Parties Briefs

Appellant’s Opening Brief

Appellee’s Response Brief

Appellant’s Reply Brief

Court’s Briefing Order

Appellant’s Supplemental Brief

Appellee’s Supplemental Brief

Appellant’s Amended Supplemental Brief

BVA Decision

VA Regional Office: Roanoke, Virginia

BVA Hearing Officer: Paul Sorisio

The post Episode 004: CAVC Oral Argument – Johnson v. Wilkie, #16-3808 (April 24, 2018) Successive Rating Criteria for Migraines) first appeared on Attig Curran Steel, PLLC.

The post Episode 004: CAVC Oral Argument – Johnson v. Wilkie, #16-3808 (April 24, 2018) Successive Rating Criteria for Migraines) appeared first on Attig Curran Steel, PLLC.