Joe Whitcomb
denied retroactive effective date
Robert E. Crews is appealing a decision by the Board of Veterans' Appeals that denied him a retroactive effective date for disability benefits. The court ultimately vacated the Board's decision and remanded the case for further proceedings. The case revolves around the Blue Water Navy Vietnam Veterans Act of 2019, which provides benefits for veterans with herbicide-related conditions. The court held that the Act does not preclude a veteran from receiving a retroactive effective date for benefits, even if their claim was previously denied. Three judges presided over the case: Meredith, Falvey, and Jaquith. Meredith wrote the opinion, Jaquith concurred, and Falvey dissented. Crews was initially denied benefits because the RO found that there was no evidence of an event, disease, or injury in service. Crews did not file a Notice of Disagreement with that decision.
Crews later sought review of the assigned effective date, asserting that his 2013 claim had been denied due to the interpretation of Agent Orange exposure at the time. The RO granted an earlier effective date of September 5, 2018, based on its finding that VA had committed a clear and unmistakable error. The RO denied Crews' request for an effective date as early as the date of his 2013 claim, explaining that the Blue Water Act requires that the veteran was denied because a diagnosed presumptive disability was of record. Crews again sought benefits for IHD, stating that he had served directly off the coast of Vietnam. The Board denied both entitlement to an effective date prior to September 5, 2018, and the award of benefits for CAD. The Board determined that the Blue Water Act's exception to the general rules for effective dates did not apply because the appellant's original claim had been denied on the basis that the evidence of record did not show that he had a current disability. The court discusses the history of herbicide use during the Vietnam War and the subsequent litigation. The Agent Orange Act of 1991 provided a presumption of service connection for veterans who served in the Republic of Vietnam and developed certain diseases. The Federal Circuit initially upheld the Secretary's interpretation that the presumption did not extend to servicemembers who never set foot within the land borders of Vietnam. However, the Federal Circuit overruled this decision in 2019, holding that the "Republic of Vietnam" included both its landmass and its 12 nautical mile territorial sea.
the Blue Water Act
Following this decision, Congress enacted the Blue Water Act, which added a provision to title 38 of the U.S. Code that allows for a presumption of service connection for veterans who served offshore of the Republic of Vietnam. Robert E. Crews, a veteran, is appealing a decision by the Board of Veterans' Appeals that denied him a retroactive effective date for disability benefits. Crews filed a claim in September 2013 for disability compensation for ischemic heart disease (IHD) as a result of herbicide exposure, which was denied in July 2014. After the Blue Water Act took effect in January 2020, Crews filed a new claim, which was granted in April 2020. The Board assigned an effective date of September 5, 2018, one year prior to the date of Crews' 2019 claim. The court ultimately vacated the Board's decision and remanded the case for further proceedings. Crews argues that the Board erred in denying an effective date earlier than September 5, 2018, for the award of benefits for coronary artery disease (CAD) based on herbicide exposure. He contends that the Board overlooked that the RO denied his claim in July 2014 for multiple reasons, not just because of a lack of a current disability. Crews argues that the Blue Water Act's effective date exception applies to his case because the RO denied his claim in part on the basis that his condition was not incurred in or aggravated by service.
The Secretary counters that the Board did not need to address the full text of the July 2014 RO decision because the Board correctly determined that the RO had denied the appellant's original claim based on the lack of a current disability. The Secretary argues that the Blue Water Act's exception to the general effective date rules only applies when the only reason for the prior denial was that there was no evidence establishing that the disease was incurred or aggravated by service. Crews argues that the phrase "the disease was incurred or aggravated by the service of the veteran" encompasses all elements of service connection, as confirmed by Shedden v. Principi. He asserts that the Blue Water Act does not require that any elements of service connection have been previously established. The Secretary argues that the Board's statement was in line with the purpose of the Blue Water Act, and that any error was not prejudicial. Crews disputes the Secretary's interpretation of the effective date exception, arguing that the language of the statute does not support such a reading. He contends that the Blue Water Act does not require that the prior denial be based solely on the lack of an in-service event, and that Congress has already provided a solution to that scenario in 38 U.S.C. § 5110.
"submitted a claim" language
The Secretary argues that the Blue Water Act should only allow a retroactive effective date if the veteran had established a current disability at the time of the prior denial. The Secretary contends that the language "submitted a claim" requires that the first element of service connection must have been satisfied at the time of the prior denial. The appellant argues that remand is warranted because the Board failed to adequately explain the basis for the denial. The Secretary argues that the appellant's interpretation would lead to absurd results, while the appellant argues that the Secretary's interpretation would lead to arbitrary outcomes. The Secretary argues that the Board was correct in denying the appellant a retroactive effective date because the July 2014 denial was not based solely on the appellant's failure to establish exposure to herbicides. The Secretary argues that the appellant is barred from receiving a retroactive effective date because he had both brown and blue water service.
The Board found that the appellant was awarded presumptive service connection based on exposure to herbicides during his blue water service, and considered whether the effective date could be retroactive under the Blue Water Act. The Court ultimately vacated the Board's decision and remanded the case for further proceedings. The Court discusses the criteria for a retroactive effective date under the Blue Water Act, which requires that the veteran filed a claim for disability compensation between September 1985 and January 2020, and that the claim was denied because the disease was not established as being incurred or aggravated by the veteran's service. The Court notes that the language of the statute does not suggest that the criteria are not exclusive, and that the requirements for a retroactive effective date are therefore clear. The Court also discusses the principles of statutory interpretation, noting that if the intent of Congress is clear, the Court must give effect to that intent.
"by reason of" Language
The Court discusses the meaning of the phrase "by reason of" in the context of the Blue Water Act, concluding that it connotes "because of" and does not necessarily mean "sole" cause. The Court clarifies that the prior claim must have been for a disease covered by section 1116A, which includes conditions that may be presumptively service connected based on herbicide exposure. The Court notes that the Blue Water Act does not require that the veteran have alleged herbicide exposure in the prior claim, and that the focus is on the condition for which the claimant sought benefits. The Court discusses the meaning of "the claim not establishing" in the context of the Blue Water Act, noting that it refers to a situation in which the claimant failed to provide sufficient evidence to support the claim. The Court discusses the elements necessary for a veteran to establish service connection prior to the Blue Water Act, which include evidence of a current disability, incurrence or aggravation of a disease or injury in service, and a nexus between the claimed in-service injury or disease and the current disability.
The Court argues that the Blue Water Act could not have intended for the lack of evidence that "the disease was incurred or aggravated by … service" to be the sole cause for the prior denial, as a denial could have been predicated on the absence of one, two, or three elements. The Court discusses the requirements for presumptive service connection based on herbicide exposure, which include service in the Republic of Vietnam during a specified time period and development of a covered disease. The Court argues that it is not reasonable to conclude that Congress intended the lack of one factor to be the sole cause for the prior denial, as another factor would also necessarily be lacking. The court discusses the meaning of "the disease was [not] incurred or aggravated by … service" in the Blue Water Act, but does not come to a definitive answer. The court focuses on whether the prior denial could have been based on the lack of a current disability and whether the denial must have been based on a narrower definition of service in Vietnam.
no presumptive service connection or herbicide exposure claim requirement
The court finds that the Blue Water Act does not require the veteran to have previously sought presumptive service connection or even to have alleged herbicide exposure. The court rejects the Secretary's argument that the phrase "incurred or aggravated by … service" in the Blue Water Act must have the same meaning as in section 1116. The court concludes that the Blue Water Act does not specify which factors were either established or lacking in the prior denial, nor does it exclude denials based on insufficient evidence of a current disability. The court discusses the definition of "child" for Social Security Administration purposes and how it differs from the definition for VA purposes. The court argues that the use of "the" in "the disease" does not imply that the claimant must have previously established the existence of a current disability. The court finds that the Blue Water Act does not require the prior denial to have been based on the lack of confirmed service in Vietnam.
The court does not address the requirements for filing a new claim because there is no dispute in the current case. The court discusses the criteria for a retroactive effective date for disability benefits. The court finds that the Board did not address the full scope of the RO's earlier findings. The court concludes that the Board erred in inserting a requirement into the statute that is not present. The court remands the case for further proceedings. The court discusses the importance of statutory construction and the separation of powers. The court argues that the Board's interpretation of 38 U.S.C. § 1116A(c)(2)(B)(i) is incorrect because it adds a word that is not present in the statute. The court vacates the Board's decision and remands the case for further proceedings. Three judges filed separate opinions: one wrote the opinion of the court, one concurred, and one dissented. The Secretary argues that Congress did not intend for a veteran to receive retroactive benefits for a period when the veteran had no disability. The court rejects this argument, stating that it is not their role to rewrite the statute to reflect what they think Congress intended. The court references the pro-veteran canon, which requires that any ambiguity in the statute be resolved in the veteran's favor.
incurred or aggravated by service Requirement
The Regional Office (RO) denied the veteran's claim because it did not establish that his ischemic heart disease (IHD) was incurred or aggravated by his Navy service. The RO cited three reasons for the denial: lack of evidence of an event, disease, or injury in service; lack of complaints, treatment, or diagnosis in service treatment records; and lack of evidence that the IHD developed to a compensable degree within the specified time period. The court argues that the Secretary's suggestion that the veteran might receive retroactive benefits for a time when he had no disability is misplaced, as the effective date is set by the later of the date of the prior denied claim or the date the facts show that entitlement arose. The Board's decision rests on a misleading half-truth in the April 2020 RO decision's characterization of the July 2014 RO decision.
The Board dismissed the rating decision without discussing what it actually said, taking the statement that the evidence did not show a current diagnosed disability out of context. The July 2014 RO's denial of service connection amounts to a favorable finding that is binding on all subsequent adjudicators unless rebutted by evidence of clear and unmistakable error (CUE). The Board mischaracterized the July 2014 rating decision by ignoring the RO's favorable finding, necessitating remand. The April 2020 RO decision granting service connection and a 60% disability rating for the veteran's heart condition was misleading, as it failed to mention that the RO's July 2014 rating decision also said that it denied service connection because the evidence did not show an event, disease, or injury in service. The May 2020 RO determined that the April 2020 decision was "clearly and unmistakably erroneous" and established an effective date in September 2018 for the veteran's heart disabilities. Judge Falvey dissents from the majority opinion. The Court disagrees with the Board's interpretation of the Blue Water Act, which allows for a retroactive effective date for disability benefits. The Court argues that the Board's interpretation is not consistent with what Congress intended.
canon against surplusage
The Court contends that the Board's interpretation renders certain language in the statute superfluous, which goes against the canon against surplusage. The dissent argues that the Court's interpretation is incorrect, and that the Board's interpretation is consistent with the statute. The Court discusses the importance of understanding why a claimant was denied benefits in order to determine if the earlier effective date provisions apply. The Court argues that the Board's interpretation of the statute would put blue water veterans in a better position than similarly situated boots-on-the-ground veterans, which is not what Congress intended. The dissent argues that the Board's factual finding on why VA denied benefits in 2014 is plausible and should not be disturbed. The Court ultimately vacates the Board's decision and remands the case for further proceedings. The dissent argues that the denial of Mr. Crews' claim was not because the disease was not incurred or aggravated by service, as required by section 1116A(c)(2)(B)(i). The dissent argues that if Congress wanted a different result, they would have written the statute differently.
The dissent would affirm the Board's decision. The court discusses the effective date for an award of benefits, which is generally the date of the claim leading to the award. hSection 1116A allows for an effective date based on a prior claim if certain requirements are met. The appellant, Robert E. Crews, is a Vietnam War veteran who had both blue water and brown water service. The case references regulations that allow for certain chronic conditions to be presumed related to service. The court also discusses the Nehmer class action lawsuit, which resulted in VA's ongoing responsibilities for rulemaking and disability payments. The appellant suffered from coronary artery disease (CAD) at the time of the July 2014 denial, but VA did not have the medical records reflecting this diagnosis. The court ultimately vacated the board's decision and remanded the case for further proceedings. The case discusses the Blue Water Act, which allows for a retroactive effective date for disability benefits. The court notes that the appellant's claim was not filed during the window of time that would make the Blue Water Act applicable.
Federal Circuit's Procopio decision
The court references the Walker v. Shinseki case, which discusses the VA's adjudicative determination for chronic conditions. The court points out that regional offices prior to 1990 had no obligation to specify the reasons for decisions, but the appellant's claim postdates this time period. The board did not acknowledge the "incurred or aggravated by… service" requirement of the Blue Water Act. The court discusses the factors that must be met in order to receive benefits. The court notes that the Blue Water Act was intended to "codify" the Federal Circuit's Procopio decision and define the term territorial seas. The court discusses the distinction between Judge Falvey's position and the Secretary's, noting that there is no meaningful difference. The case references the Shedden v. Principi case, which outlines the three requirements for establishing service connection for a claimed disability.
The court criticizes the RO for failing to provide a fair, individualized assessment of the appellant's case. The court notes that the veteran submitted a statement about his Coast Guard service and exposure to Agent Orange. The court points out that it is unclear whether the same RO that decided the veteran's original claim made the April 2020 rating decision. The case defines "AOJ" as the agency of original jurisdiction. The dissent argues that the most reasonable reading of the statute excludes veterans whose claims VA denied because they did not have a disability. The concurrence suggests that the RO buried the finding that the appellant did not have a disability because the evidence was weak. The court references Mr. Crews's September 2013 claim, which included Dr. Cook's private medical records documenting his heart condition. The case notes that the only attachments to Mr. Crews's claim were a power of attorney and the veteran's DD-214. The court mentions that the RO attempted to obtain records from Dr. Cook, but did not receive a response. The case suggests that the July 2014 RO decision may have contained errors, but Mr. Crews did not appeal the decision or allege CUE.