Spence v. McDonough

Opinion

Case: 22-1105 Document: 32 Page: 1 Filed: 04/21/2023

NOTE: This disposition is nonprecedential.

United States Court of Appeals for the Federal Circuit ______________________

BETTY SPENCE, Claimant-Appellant

v.

DENIS MCDONOUGH, SECRETARY OF VETERANS AFFAIRS, Respondent-Appellee ______________________

2022-1105 ______________________

Appeal from the United States Court of Appeals for Veterans Claims in No. 18-4761, Judge William S. Green- berg. ______________________

Decided: April 21, 2023 ______________________

KENNETH DOJAQUEZ, Carpenter Chartered, Topeka, KS, argued for claimant-appellant.

MEEN GEU OH, Commercial Litigation Branch, Civil Di- vision, United States Department of Justice, Washington, DC, argued for respondent-appellee. Also represented by BRIAN M. BOYNTON, CLAUDIA BURKE, PATRICIA M. MCCARTHY; BRIAN D. GRIFFIN, JONATHAN KRISCH, Office of Case: 22-1105 Document: 32 Page: 2 Filed: 04/21/2023

General Counsel, United States Department of Veterans Affairs, Washington, DC. ______________________

Before LOURIE, PROST, and CHEN, Circuit Judges. CHEN, Circuit Judge. Mrs. Betty Spence appeals a decision of the United States Court of Appeals for Veterans Claims (Veterans Court) affirming a decision of the Board of Veterans’ Ap- peals (Board) denying an earlier effective date for her de- ceased husband’s service-connected coronary artery disease (CAD) disability compensation award. Spence v. McDonough, No. 18-4761, 2021 WL 1204116 at *3 (Vet. App. Mar. 31, 2021) (Veterans Court Decision). Because the Veterans Court failed to address an argument raised by Mrs. Spence, we vacate and remand. BACKGROUND I A Nehmer class member is a “Vietnam veteran who has a covered herbicide disease” listed in 38 C.F.R. § 3.309(e) (2022). 38 C.F.R. § 3.816(b)(1) (2021). Section 3.816(c) out- lines special rules for calculating the effective date of a dis- ability compensation award for Nehmer class members. Relevant here, if a “class member’s claim for disability com- pensation for the covered herbicide disease was [] pending before [the Department of Veterans Affairs (VA)] on May 3, 1989 . . . the effective date of the award will be the later of the date such claim was received by VA or the date the disability arose.” Id. § 3.816(c)(2). A claim “will be consid- ered a claim for compensation for a particular covered herbicide disease if . . . [t]he claimant’s application and other supporting statements and submissions may reason- ably be viewed . . . as indicating an intent to apply for com- pensation for the covered herbicide disability.” Id. § 3.816(c)(2)(i). Case: 22-1105 Document: 32 Page: 3 Filed: 04/21/2023

SPENCE v. MCDONOUGH 3

II Mrs. Spence’s deceased husband, Mr. Robert Spence, served on active duty in the U.S. Army from the late 1960s to the early 1970s with service in Vietnam. J.A. 28–29. In October 1984, Mr. Spence filed claims for several alleged, service-connected conditions—including PTSD and CAD— and requested to reopen a previously denied claim for hear- ing loss. In April 1985, VA denied Mr. Spence’s new claims. J.A. 19–20. In August 1985, VA granted Mr. Spence’s reo- pened hearing loss claim at a 0% disability rating. J.A. 21– 22. There is no dispute that the April 1985 CAD decision was sent to both Mr. Spence and his representative, but the August 1985 hearing loss decision was sent only to Mr. Spence. See Appellant’s Br. 11; Appellee’s Br. 4; com- pare J.A. 18, with J.A. 23. Mr. Spence did not appeal either decision. On May 24, 1996, Mr. Spence requested VA reopen his October 1984 claim for PTSD, J.A. 24, and VA subse- quently granted a 30% disability rating, J.A. 25. Mr. Spence passed away on March 12, 2010. In April 2010, Mrs. Spence requested dependency and indemnity com- pensation. After reviewing Mr. Spence’s record and deter- mining he was a Nehmer class member, VA granted service-connection for CAD from May 24, 1996—i.e., the date Mr. Spence requested VA reopen his claim for PTSD— to his death on March 12, 2010. J.A. 29. Mrs. Spence appealed the May 24, 1996 effective date to the Board and argued a claim for CAD remained pending since October 1984. J.A. 80. The Board disagreed and af- firmed the effective date, finding the CAD claim was denied in April 1985 and made final. J.A. 38. Mrs. Spence appealed to the Veterans Court arguing an earlier effective date for the CAD claim based on an al- legedly pending hearing loss claim. She argued Mr. Spence’s October 1984 hearing loss claim remained pending because notice of the August 1985 hearing loss Case: 22-1105 Document: 32 Page: 4 Filed: 04/21/2023

decision was not sent to Mr. Spence’s then-representative as required by 38 C.F.R. § 1.525(d), and under the special effective date rules for Nehmer class members, that pend- ing hearing loss claim could also be construed as a claim for CAD and thus provide an earlier effective date for the condition. J.A. 68–72. To support her argument, Mrs. Spence cited the VA’s Nehmer training guide, which states: [I]t is a rule that if, at the time of a prior decision on any compensation claim, VA had medical evi- dence containing a diagnosis of a now-covered con- dition (e.g., [ischemic heart disease, which includes CAD]), then the condition is considered to have been part of the previously denied claim. Veterans Benefits Admin., U.S. Dep’t of Veterans Affairs, Nehmer Training Guide 19 (2011) (emphasis added) (citing Nehmer v. U.S. Veterans Admin., No. CV-86-6160, 1991 U.S. Dist. LEXIS 22110, at *4 n.1 (N.D. Cal. May 17, 1991)). 1 Mrs. Spence argued that her husband’s 1984

1 This appears to be how the special effective date rules for Nehmer class members are applied in practice. See Stanley v. McDonald, No. 14-1328, 2015 WL 1757661, at *3, *4–5 (Vet. App. Apr. 20, 2015) (remanding to the Board because the Board failed to address whether the vet- eran was “entitled to an earlier effective date for service connection for [CAD] pursuant to Nehmer” when VA pos- sessed evidence of his CAD diagnosis before a decision is- sued on a non-covered condition); Wilber v. McDonough, No. 20-6623, 2021 WL 6123378, at *4 (Vet. App. Dec. 28, 2021) (remanding to the Board to consider “the appellant’s argument for an earlier effective date under [Nehmer] [that] rests on the premise that VA received medical rec- ords documenting a diagnosis of carotid stenosis prior to its April 2015 rating decision”). Case: 22-1105 Document: 32 Page: 5 Filed: 04/21/2023

SPENCE v. MCDONOUGH 5

hearing loss claim could be construed as a claim for CAD under Nehmer because there is no doubt that VA possessed evidence of Mr. Spence’s CAD diagnosis during the (very long) pendency of the hearing loss claim. J.A. 71–72. The Veterans Court affirmed. It interpreted Mrs. Spence to have argued the August 1985 hearing loss decision “constituted a new decision[] denying service con- nection for a cardiovascular disability” and found “this simply [was] not true.” Veterans Court Decision, 2021 WL 1204116, at *2. The Veterans Court held “the August 1985 decision listing CAD did not constitute a denial of the vet- eran’s CAD claim,” but it never considered Mrs. Spence’s argument as to whether the August 1985 decision ever be- came final under 38 C.F.R. § 1.525(d). Id. at *3. Rather, it appears the court assumed the August 1985 decision was final, and then explained why neither the April 1985 deci- sion nor the August 1985 decision could assist in providing an earlier date for Mr. Spence’s Nehmer claim: Therefore, even if VA had evidence of a current di- agnosis of CAD prior to April 1985, the April 1985 decision would have been the first rating decision, not the August 1985 rating decision. The appellant does not allege that evidence of a current diagnosis of CAD was submitted between April 1985 and Au- gust 1985 which would be the only situation where the first Nehmer footnote would apply. Id. at *3 n.2 (emphasis added). Mrs. Spence timely appealed. DISCUSSION Our jurisdiction to review decisions of the Veterans Court is limited by statute. We may review the validity of a Veterans Court’s interpretation of a rule of law or any statute or regulation relied on by the Veterans Court in making its decision. 38 U.S.C. § 7292(a). We review legal Case: 22-1105 Document: 32 Page: 6 Filed: 04/21/2023

determinations of the Veterans Court de novo. Lynch v. McDonough, 21 F.4th 776, 779 (Fed. Cir. 2021). The Veterans Court erred by never addressing whether the hearing loss claim remained pending after the August 1985 decision was sent to Mr. Spence but not his repre- sentative. As discussed above, it appears this claim, de- spite not explicitly for a covered herbicide disease, nonetheless can be considered a claim for a covered herbi- cide disease if certain conditions are met. Thus, whether the hearing loss claim remained pending is critical to de- termine whether Mrs. Spence might be able to rely on that claim, along with any medical records possessed by VA of Mr. Spence’s CAD diagnosis, to support an earlier effective date for CAD. If, on remand, it is determined that the hear- ing loss claim remained pending, it should also be deter- mined when VA possessed evidence of a CAD diagnosis in considering the proper effective date of the CAD claim. 2 CONCLUSION For the foregoing reasons, the Veterans Court’s deci- sion is vacated and remanded. VACATED AND REMANDED COSTS No costs.

2 At oral argument, the Secretary suggested the April 1985 decision explicitly denying CAD foreclosed ap- plying the special effective date rules for Nehmer class members to the August 1985 hearing loss decision. See Oral Arg. at 33:54–37:19. As this issue was not fully briefed on appeal, we leave it to the Veterans Court to ad- dress on remand as appropriate.