Terrance D. Massie v. Eric K. Shinseki

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS

NO. 09-3397

TERRANCE D. MASSIE, APPELLANT,

V.

ERIC K. SHINSEKI,

SECRETARY OF VETERANS AFFAIRS, APPELLEE.

On Appeal from the Board of Veterans' Appeals

(Argued September 14, 2011 Decided December 19, 2011)

Kenneth M. Carpenter, of Topeka, Kansas, for the appellant.

Selket N. Cottle, with whom Will A. Gunn, General Counsel; R. Randall Campbell, Assistant

General Counsel; and Kenneth A. Walsh, Deputy Assistant General Counsel, all of Washington,

D.C., were on the brief, for the appellee.

Before HAGEL, LANCE, and DAVIS, Judges.

HAGEL, Judge: Terrance D. Massie appeals through counsel a May 19, 2009, Board of

Veterans' Appeals (Board) decision that denied an effective date earlier than April 4, 2001, for a

100% disability rating for varicose veins.1 Record (R.) at 3-16. Mr. Massie's Notice of Appeal was

timely and the Court has jurisdiction to review the Board decision pursuant to 38 U.S.C. § 7252(a).

Although the parties did not request oral argument or identify issues that they believed required a

precedential decision of the Court, the Court determined that panel consideration was necessary to

determine whether a letter contained in the record that was written and signed by a VA physician

constituted a "report of examination" pursuant to 38 C.F.R. § 3.157(b)(1). The Court ordered oral

argument to assist it in resolving this issue. Because the letter in question was not a "report of

examination," neither Mr. Massie nor the record raised the theory of entitlement to an earlier

effective date that he now presents for the first time on appeal to the Court. Consequently, the Board

1

As explained in more detail below, the attorney who currently represents Mr. Massie also represented him

during proceedings before VA, including during a portion of the proceedings before the regional office and during his

appeal to the Board.

was not obligated to consider such a theory and the Court will therefore affirm the May 2009 Board

decision.

I. FACTS

Mr. Massie served on active duty in the U.S. Army from November 1968 to August 1970.

A January 1971 VA regional office rating decision awarded Mr. Massie VA benefits for

varicose veins of the left leg resulting from the surgical removal of the long saphenous vein in that

leg. This condition was initially rated as 10% disabling and increased to 50% disabling effective

March 1990.

On April 4, 2001, Mr. Massie filed a claim for an increased disability rating for his varicose

veins. In his application, Mr. Massie indicated that he was also submitting information, including

letters from his treating physicians, pertaining to his physical condition. Mr. Massie indicated that

this information had previously been submitted to the Social Security Administration in connection

with a claim for Social Security disability benefits. One of these letters was a May 1999 letter from

Dr. Lewis J. Wesselius, a physician at the VA Medical Center in Kansas City, Missouri, that was

addressed "To Whom it May Concern." R. at 1299. Dr. Wesselius indicated that he had been

treating Mr. Massie for "multiple medical problems," one of which was "chronic venous

insufficiency" that had "persisted in spite of prior surgical treatment with vein stripping." R. at 1299.

Dr. Wesselius further stated that "[t]his problem . . . left Mr. Massie with significant pain when he

[was] on his feet for any period of time." Id.

After several years of development, in December 2005 the regional office issued a rating

decision increasing Mr. Massie's disability rating for post-operative varicose veins of the left leg

from 50% to 100%, effective April 4, 2001, the date his formal claim for an increased disability

rating had been filed.

In December 2006, Mr. Massie retained current counsel and informed VA that this lawyer

was his authorized representative in connection with his claim for an increased disability rating.

Later that month, Mr. Massie filed through counsel a Notice of Disagreement. In relevant part, the

Notice of Disagreement stated:

2

Mr. Massie disagrees with the VA's decision to deny an effective date for the award

of increased compensation for his service[-]connected varicose veins to 100% from

April 4, 2001. Mr. Massie asserts that the VA failed to consider and apply 38 U.S.C.

§ 5110(b)(2) and 38 C.F.R. § 3.400(o)(2). . . . Mr. Massie was entitled to

consideration of an effective date of April 4, 2000, for the increase in compensation

to include consideration of the available rating of 60% as well as 100%.

Pursuant to 38 U.S.C. § 5110(b)(2) and 38 C.F.R. § 3.400(o)(2), the VA was

obligated to determine whether, in the one year prior to April 4, 2001, the date of the

claim for increased compensation for his service[-]connected disability, Mr. Massie's

disability had increased in severity.

R. at 378.

In December 2007, Mr. Massie filed through the same counsel who now represents him a

Substantive Appeal to the Board, continuing to argue only that proper application of section

5110(b)(2) and § 3.400(o)(2) entitled him to an increased disability rating effective April 4, 2000.

R. at 103. He specifically cited various evidence of record, including Dr. Wesselius's May 1999

letter, arguing that "[t]his evidence made it factually ascertainable that [his] disability had increased

in severity in the one year prior to April 4, 2001, as contemplated by . . . [section] 5110(b)(2) and

. . . § 3.400(o)(2)," thus "requir[ing] the VA to assign an effective date of April 4, 2000." R. at 105.

In May 2009, the Board issued the decision now on appeal. The Board noted that Mr.

Massie's argument on appeal was "that a higher rating [was] warranted effective April 4, 2000, one

year prior to the date of claim" because Dr. Wesselius's May 1999 letter demonstrated that "it was

factually ascertainable that an increase in the severity of [his] disability occurred up to one year prior

to the date of claim." R. at 7, 8. Because this letter was dated more than one year prior to the date

of Mr. Massie's formal claim, the Board interpreted his argument as being that "the 1999 letter from

Dr. Wesselius . . . reflect[ed] a chronic disability picture, still applicable during the year prior to the

claim," and therefore "evaluated and weighed [this evidence] in conjunction with other pertinent

evidence of record." R. at 9; see 38 U.S.C. § 5110(b)(2) ("The effective date of an award of

increased compensation shall be the earliest date as of which it is ascertainable that an increase in

disability had occurred, if application is received within one year from such date." (emphasis

added)); 38 C.F.R. § 3.400(o)(2) (2011) (providing that the effective date for an increased disability

rating for a service-connected disability will be the date the claim for an increase is received or the

3

"[e]arliest date as of which it is factually ascertainable that an increase in disability had occurred if

[the] claim is received within [one] year from such date") (emphasis added)).

In conducting this evaluation, the Board noted that there was no evidence that Dr. Wesselius

even treated Mr. Massie between April 4, 2000, (the date he contended was the appropriate effective

date for his increased disability rating) and April 4, 2001, (the date he filed his formal claim for an

increased rating). It thus found that the probative value of Dr. Wesselius's letter was "necessarily

limited by the fact that . . . it [did not] directly address[] the period at issue," and that other evidence

of record directly relating to this period of time did not reflect that the criteria for an increased rating

had been satisfied. R. at 10, 11. The Board therefore concluded that an effective date for the

increased disability rating prior to April 4, 2001, was inappropriate.

On appeal, Mr. Massie argues for the first time–and through the same counsel who

represented him before VA–that the Board erred by failing to consider whether Dr. Wesselius's May

1999 letter constituted an informal claim for an increased disability rating pursuant to 38 C.F.R.

§ 3.157(b)(1), thereby entitling him to an effective date as of May 1999, if not earlier.

In response, the Secretary argues that the Court should exercise its discretion and decline to

entertain Mr. Massie's argument because, despite the opportunity to do so, he did not raise it below.

The Secretary further contends that, even if the Court chooses to consider Mr. Massie's argument,

the Board did not err in failing to discuss § 3.157(b)(1) because neither Mr. Massie nor any

reasonable reading of the evidence of record raised the issue of that provision's applicability.

II. ANALYSIS

A. Whether the Court Should Consider Mr. Massie's Argument in the First Instance

As a threshold issue, the parties disagree as to whether the Court should even entertain Mr.

Massie's newly raised argument. Citing Maggitt v. West, 202 F.3d 1370 (Fed. Cir. 2000), the

Secretary contends that the Court has discretion as to whether it will entertain arguments raised for

the first time on appeal to the Court and that, in this instance, the Court should refuse to hear Mr.

Massie's newly raised argument, particularly because he "is currently represented by the same

counsel who represented him before the Board [and the regional office], and he has provided no

justification for not raising this argument to VA." Secretary's Brief (Br.) at 5.

4

In Maggitt, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) held that this

Court "has jurisdiction to hear arguments presented to it in the first instance, provided it otherwise

has jurisdiction over the veteran's claim," and therefore has discretion to consider such arguments

in the first instance, remand them for Board consideration, or simply decline to consider them on the

ground that the veteran did not exhaust his or her administrative remedies prior to appealing to the

Court. 202 F.3d at 1377. In choosing between these options, "[t]he test is whether the interests of

the individual weigh heavily against the institutional interests the [exhaustion of administrative

remedies] doctrine exists to serve," the primary interests being "to protect agency administrative

authority and to promote judicial efficiency." Id.

However, the Federal Circuit directed this Court to use caution in applying the exhaustion

of remedies doctrine against a party such "that the party's arguments go unheard," id., because, at that

time, "[r]ealistic considerations . . . reduce[d] the ability of . . . veteran[s] to mount legal challenges

in the regional office or at the Board." Id. at 1378. Specifically, the Federal Circuit expressed its

concern that, because attorneys were then statutorily prohibited from collecting a fee for services

provided prior to a final Board decision,2 they were unlikely to represent veterans before VA. See

id. (citing 38 U.S.C. § 5904(c)(1) (1994)). The Federal Circuit noted that this aspect of the VA

benefits system was "not particularly 'user friendly'" and that it often resulted in poorly defined legal

challenges to regional office and Board determinations prior to the submission of briefs to this Court

on appeal. Id.

Because this Court's jurisdiction flows from the Board's decision on a particular claim, not

on a particular argument or theory offered in support of that claim, Robinson v. Peake, 21 Vet.App.

545, 550-51 (2008), aff'd sub nom. Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009), and

because Mr. Massie now presents a new theory in his attempt to obtain an earlier effective date rather

than an entirely new claim, see Hillyard v. Shinseki, 24 Vet.App. 343, 355 (2011) (quoting 38 C.F.R.

§ 3.1(p) in defining a "claim" as "'a formal or informal communication in writing requesting a

determination of entitlement or evidencing a belief in entitlement[] to a benefit,'" and Roebuck v.

Nicholson, 20 Vet.App. 307, 313 (2006), in defining "theory" as "a 'means of establishing

2

As explained in more detail below, attorneys are now permitted to collect a fee for services rendered during

proceedings before VA. See footnote 3, infra.

5

entitlement to a benefit for a disability,'" and noting that "'if the theories all pertain to the same

benefit for the same disability, they constitute the same claim'"), this Court has jurisdiction to hear

his newly raised argument.

Nevertheless, this case presents circumstances that would ordinarily lead the Court to

exercise its discretion so as to invoke the exhaustion of remedies doctrine against Mr. Massie and

refuse to consider his newly raised argument. See Maggitt, 202 F.3d at 1378 (declining "to establish

an across-the-board presumption for or against invocation of the exhaustion doctrine" and explaining

that this Court "is uniquely positioned to balance and decide the considerations regarding exhaustion

in a particular case"). Specifically, in this case, Mr. Massie was represented by his current counsel

throughout the administrative appeals process, meaning that the Federal Circuit's concerns regarding

the potentially harsh result of applying the exhaustion of remedies doctrine against a party who was

not represented by an attorney while before VA has no bearing upon this appeal.3 Mr. Massie's

counsel has not provided any justification for not having first presented his relatively unique theory,

described in more detail below, for an earlier effective date to VA in the first instance. Indeed, at

3

In general, the Federal Circuit's concern in this regard is now diminished because, in recent years, Congress

has for the first time authorized attorneys to collect a reasonable fee for representation provided to veterans in

proceedings before VA. See 38 U.S.C. § 5904(c) (permitting attorneys to collect reasonable fees for services rendered

on or after the date of the filing of a Notice of Disagreement); see also Veterans Benefits, Health Care, and Information

Technology Act of 2006, Pub. L. No. 109-461, 120 Stat. 3403 (Dec. 22, 2006). Further, it is worth noting that veterans

appear to be gaining greater access to attorneys. For instance, the Court's own records indicate that, in October 2001,

1,941 attorneys were members of the Court's bar, with 537 of these attorneys authorizing the Court to place their names

and contact information on a public list made available to veterans seeking representation. See Renard v. D.C. Dep't of

Emp't Servs., 673 A.2d 1274, 1276 (D.C. 1996) (explaining that "[t]he contents of a court's records are readily

ascertainable facts, particularly appropriate for judicial notice" and, "generally, a court may [thus] take judicial notice

of its own records" (citations omitted)). As of October 20, 2011, the Court's records indicate that 4,038 attorneys are

members of the Court's bar, with 1,459 on these appearing on the public list. Similarly, in its annual report released in

2005, the Veterans Consortium Pro Bono Program indicated that 67 attorneys participated in the program. THE

VETERANS CONSORTIUM PRO BONO PROGRAM, 2005 ANNUAL REPORT 3, available for download at

http://www.vetsprobono.net/about-us/annual-reports/ (last visited Oct. 3, 2011). In that organization's 2010 annual

report, it indicated that in the previous year it trained 183 attorneys, while 218 attorneys from 57 law firms and 176

private practitioners provided legal services. THE VETERANS CONSORTIUM PRO BONO PROGRAM, 2010 ANNUAL REPORT

3, available for download at http://www.vetsprobono.net/about-us/annual-reports/ (last visited Oct. 3, 2011). Although

this program facilitates attorney representation on behalf of veterans in appeals to this Court, these increasing numbers,

as well as those reflected in the Court's own records, nevertheless indicate a growing awareness and interest in veterans

law among practitioners, something borne out by the more than 8,000 attorneys now accredited to practice before VA.

See Dep't of Veterans Affairs, OGC - Accreditation Search, http://www.va.gov/ogc/apps.accreditation/index.asp (last

visited Dec. 1, 2011).

6

oral argument, counsel attributed his failure in this regard to not having identified the theory prior

to filing a Notice of Appeal with the Court.

The Court concludes that, under these circumstances, VA's interest in having a fair and full

opportunity to consider all theories relevant to Mr. Massie's appeal for an earlier effective date

outweighs Mr. Massie's interest in having his argument heard for the first time on appeal to this

Court. Further, interests of judicial efficiency weigh in favor of invoking the exhaustion doctrine

against Mr. Massie. Again, this is not a situation in which a veteran who was self-represented or

represented by a veterans service organization filed a nondescript Notice of Disagreement and

Substantive Appeal while before VA, expressing disagreement with a regional office determination

in only the broadest terms. Rather, Mr. Massie was represented by an attorney and filed pleadings

during his administrative appeal that set forth in detail the precise theory, statutes, and regulations

upon which he intended to rely. His attempt on appeal to this Court to obtain a remand by presenting

a different theory dependent upon different provisions of law would, if successful, only perpetuate

the ever-increasing "hamster-wheel reputation of veterans law." Coburn v. Nicholson, 19 Vet.App.

427, 434 (2006) (Lance, J., dissenting). Interests of judicial economy demand that a represented

veteran present all theories and assignments of error to VA before appealing to this Court,

particularly where, as in this case, the newly raised theory involves a relatively novel application of

fact to law.4

4

The Court acknowledges that certain issues cannot be profitably raised to the Board. For instance, if on appeal

a veteran for the first time challenges the constitutionality of a relevant statute, the Board could not afford the desired

relief by declaring an act of Congress unconstitutional. See Johnson v. Robison, 415 U.S. 361, 368 (1974) (noting that

the Board "follows the principle that '[a]djudication of the constitutionality of congressional enactments has generally

been thought beyond the jurisdiction of administrative agencies'" (quoting Oestereich v. Selective Service Board,

393 U.S. 233, 242 (1968) (Harlan, J., concurring)). Nonetheless, as this Court has previously recognized,

[a]lthough courts generally will not require the exhaustion of administrative remedies where the

administrative agency's inability to grant the relief requested renders such exhaustion futile,

Asociacion Colombiana de Exportadores de Flores v. United States, 916 F.2d 1571, 1575 (Fed. Cir.

1990), the need for factual development to help the court resolve the constitutional issue is a proper

reason for requiring exhaustion of remedies before judicial review of the constitutionality of a statute.

Saunders v. Brown, 4 Vet.App. 320, 326 (1993) (citing W.E.B. DuBois Clubs of America v. Clark, 389 U.S. 309, 312

(1967)). Accordingly, the nature of the relief requested by a veteran on appeal to this Court, the Board's ability to

provide such relief, and the need for further factual development of the record are additional factors for the Court's

consideration when it exercises its discretion under Maggitt. See Maggitt, 202 F.3d at 1378.

7

B. The Robinson Decisions

As outlined above, the Court would ordinarily exercise its discretion under Maggitt and

decline to entertain Mr. Massie's newly raised argument. However, the Court notes that Mr. Massie

asserts that the Court must consider his newly raised theory of entitlement to an earlier effective date

because, to the extent this theory was reasonably raised by the record before the agency, the Board

itself erred in not considering it sua sponte. Reply Br. at 4-6. He further argues that his

representation by counsel below is of no import to the issue of whether his newly raised argument

should be considered by this Court for the first time on appeal. Mr. Massie's argument is premised

on this Court's decision in Robinson v. Peake, 21 Vet.App. 545 (2008), and, more on point, the

Federal Circuit's affirmance of that decision in Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009).

Robinson also dealt with a situation in which an appellant raised a new theory of entitlement

for the first time on appeal to the Court. 21 Vet.App. at 548. Citing Maggitt, this Court initially

determined that it had jurisdiction over the underlying claim that related to the newly presented

argument and then examined the issue of exhaustion of remedies. Id. at 550-51. In addressing this

issue, the Court noted that, "by regulation, the Board is required to construe an appellant's arguments

'in a liberal manner for purposes of determining whether they raise issues on appeal,'" and that the

Board is therefore required to consider all issues raised either by the appellant or by the evidence of

record. Id. at 552 (quoting 38 C.F.R. § 20.202 (2006)). The Court clarified, however, that this "does

not require the Board to assume the impossible task of inventing and rejecting every conceivable

argument in order to produce a valid decision." Id. at 553. Instead, "[t]he Board commits error only

in failing to discuss a theory of entitlement that was raised either by the appellant or by the evidence

of record." Id. "The question of the precise location of the line between the issues fairly raised by

the appellant's pleadings and the record and those that are not must be based on the record in the case

at hand; therefore, it is an essentially factual question." Id. In drawing this line, the Court recently

clarified that, although a veteran's claim must always be liberally construed by VA, "representation

[by an attorney] may be a factor in determining the degree to which the pleading is liberally

construed." Cogburn v. Shinseki, 24 Vet.App. 205, 213 (2010) (emphasis added); see also Robinson,

21 Vet.App. at 554 (explaining that the Board may assume that "an experienced attorney in veteran's

law[] says what he means and means what he says"). Ultimately, the Court in Robinson concluded

8

that the theory of entitlement offered by the appellant for the first time on appeal had not been raised

to the Board by either the appellant or the record, meaning that the Board did not err by failing to

consider it. 21 Vet.App. at 554-56.

On appeal, the Federal Circuit affirmed the Court's decision. The Federal Circuit held that

once a "basic issue" related to the claim that is before the Board has been expressly raised (in

Robinson, whether the veteran was entitled to service connection for a disability on a direct basis),

the Board is obligated to consider other theories that relate to that issue (in Robinson, whether

service connection could be established on a secondary basis), so long as such alternative theories

are reasonably raised by the record. Robinson, 557 F.3d at 1362. However, the Federal Circuit

clarified that "[w]here a fully developed record is presented to the Board with no evidentiary support

for a particular theory of recovery, there is no reason for the Board to address or consider such a

theory." Id. at 1361. Accordingly, if the Board fails to consider and adjudicate an argument or

theory "reasonably raised by the record," the Federal Circuit's Robinson holds that the Board

commits error requiring remand. Id. at 1362. The Federal Circuit also held that, in assessing which

arguments or theories are reasonably raised by the record, the Board must afford a liberal reading to

the party's pleadings and documents "regardless of whether the claimant is represented by an

attorney." Id. at 1360.

Although the Federal Circuit acknowledged that this Court characterized the question before

it "as one of 'issue exhaustion,'" id. at 1358 (quoting Robinson, 21 Vet.App. at 553), it provided no

further discussion pertaining to the exhaustion of remedies doctrine or its earlier decision in Maggitt,

which expressly states that this Court has discretion as to whether it will give any consideration to

arguments first raised on appeal. Given the resulting uncertainty regarding whether the Court truly

maintains such discretion or must instead always engage in the type of "reasonably raised by the

record" analysis described in the Robinson decisions, the Court, out of an abundance of caution, will

address Mr. Massie's assertion that, in this case, his newly raised theory for an earlier effective date

was raised by the record before the agency and that the Board erred in failing to consider it sua

sponte.

9

C. Robinson Analysis

Here, the claim that Mr. Massie appealed to the Board was entitlement to an increased

disability rating for service-connected varicose veins. See Hillyard, 24 Vet.App. at 355. Mr. Massie

limited his appeal to the Board to one element of that claim, namely the effective date assigned for

the increase in disability compensation that was awarded. See id. (quoting Black's Law Dictionary

at 597 in defining an "element" of a claim as "'[a] constituent part of a claim that must be proved for

the claim to succeed'"). The Board's decision now on appeal made a determination related to this

element of the claim and Mr. Massie now appeals that decision to the Court. Although he presents

a new theory in arguing for entitlement to an earlier effective date, see id., as noted above, this Court

derives its jurisdiction from the Board's decision on a particular claim, even if the decision pertains

to only one argument or theory offered in support of that claim.5 See Robinson, 21 Vet.App. at 550-

51. Accordingly, the Court has jurisdiction over Mr. Massie's claim and must now assess whether

the Board erred in failing to consider the theory Mr. Massie now advances.

Initially, the Court notes that, in both his Notice of Disagreement and his Substantive Appeal

to the Board, Mr. Massie raised the "basic issue" of whether he was entitled to an earlier effective

date for an increase in his disability compensation that had previously been awarded for his service-

5

The Court acknowledges that when, unlike here, an appellant does expressly present two theories of

entitlement to a particular benefit to the Board or, alternatively, the Board recognizes a second theory of entitlement and

considers it sua sponte, the Board may bifurcate the distinct theories for purposes of adjudication, deciding one and

remanding the other for further development. See, e.g., Tyrues v. Shinseki, 23 Vet.App. 166, 169 (2009), aff'd, 631 F.3d

1380 (Fed. Cir. 2011), vacated and remanded, 132 S. Ct. 75 (2011). In such cases, this Court has held that a final Board

decision on the claim regarding one theory is immediately appealable to this Court, even where the portion of the claim

involving the separate theory remains before the regional office on remand from the Board. Id. at 176 (concluding "that

a final Board decision denying VA disability compensation based upon direct service connection, while the consideration

of benefits based upon presumptive service connection is still under adjudication, constitutes a final decision subject to

separate appeal to the Court"). At least in part, the rationale for this rule is that a veteran ought not be forced to wait for

VA to fully adjudicate the remaining theory of entitlement, a process that can take many years, if he or she believes the

finally denied theory of entitlement to the desired benefit is meritorious. Id. (explaining that "[i]n meritorious cases

where the Board denies benefits based on a particular issue with distinct criteria and remands for further adjudication

another issue of establishing entitlement to benefits, a veteran might otherwise have to wait years for resolution and

possibly benefits to which he or she is entitled").

However, the type of situation at issue in cases like Tyrues is distinct from that at issue in cases like this one,

Maggitt, and Robinson, where the veteran presents to the Board only one theory of entitlement to a particular benefit and

the Board issues a final decision denying that benefit without considering any other theories sua sponte. As noted above,

in such situations, the Court has jurisdiction to consider alternative theories raised by the veteran for the first time on

appeal because, ultimately, the Court's jurisdiction flows from final Board decisions with respect to the benefit sought.

See Robinson, 21 Vet.App. at 550-51.

10

connected varicose veins. However, neither his Notice of Disagreement nor his Substantive Appeal

suggested in any way that his argument for an earlier effective date was premised on a theory that

Dr. Wesselius's May 1999 letter constituted an informal claim for an increased disability rating

pursuant to § 3.157(b)(1). Indeed, that regulation was not cited in either document and the precise

theory raised in presenting his claim for increased disability compensation was that proper

application of section 5110(b)(2)6 and § 3.400(o)(2)7 entitled him to an effective date of April 4,

2000, as opposed to the date of Dr. Wesselius's letter, May 1999.

Further, Mr. Massie was then represented by the same attorney who now acts as his counsel

in the instant appeal. Thus, in interpreting Mr. Massie's pleadings, the Board, although required to

provide a liberal reading, was entitled to assume that the arguments presented by Mr. Massie were

limited for whatever reason under the advice of counsel and that those were the theories upon which

he intended to rely. See Cogburn, 24 Vet.App. at 213. Regardless, even pursuant to a very liberal

reading of these documents, there is no indication that, while before the Board, Mr. Massie intended

to rely on the theory he now presents, and the Court thus concludes that he did not raise his

§ 3.157(b)(1) theory to the Board. Indeed, and as described above, on appeal Mr. Massie concedes

that he did not explicitly raise this theory to the Board. It follows that the Board only erred in not

considering and discussing such a theory if it was raised by the record.

To evaluate this question, the Court must first discuss the nature of § 3.157(b)(1) and its

place in the statutory and regulatory scheme that governs the establishment of effective dates for

awards of increased disability compensation.

D. Effective Dates for Increased Disability Compensation

As a general matter, "the effective date of an award based on . . . a claim for increase[] of

compensation . . . shall be fixed in accordance with the facts found, but shall not be earlier than the

date of receipt of application therefor." 38 U.S.C. § 5110(a). There are statutory and regulatory

6

38 U.S.C. § 5110(b)(2) provides: "The effective date of an award of increased compensation shall be the

earliest date as of which it is ascertainable that an increase in disability had occurred, if application is received within

one year from such date."

7

38 C.F.R. § 3.400(o)(2) provides that the effective date for an increase in disability compensation shall be the

"[e]arliest date as of which it is factually ascertainable that an increase in disability had occurred if claim is received

within [one] year from such date otherwise, date of receipt of claim."

11

exceptions to this general rule, however. For instance, section 5110(b)(2) provides that "[t]he

effective date of an award of increased compensation shall be the earliest date as of which it is

ascertainable that an increase in disability had occurred, if application is received within one year

from such date." See also 38 C.F.R. § 3.400(o)(2) (implementing section 5110(b)(2)).

Relevant to this appeal is § 3.157(b), which provides in pertinent part:

Once a formal claim for . . . compensation has been allowed . . . receipt of one of the

following will be accepted as an informal claim for increased benefits . . . .

(1) Report of examination or hospitalization by Department of Veterans Affairs or

uniformed services. The date of outpatient or hospital examination . . . will be

accepted as the date of receipt of a claim. . . . The provisions of this paragraph apply

only when such reports relate to examination or treatment of a disability for which

service-connection has previously been established . . . .

Thus, this provision "provides that an informal claim for benefits 'will' be initiated by a report of

examination or hospitalization for previously established service-connected disabilities." Norris v.

West, 12 Vet.App. 413, 417 (1999).8

It is self-evident that the purpose of § 3.157(b)(1) is to avoid requiring a veteran to file a

formal claim for an increased disability rating where the veteran's disability is already service

connected and the findings of a VA report of examination or hospitalization demonstrate that the

disability has worsened. Further, because this provision provides that "[t]he date of outpatient or

hospital examination . . . will be accepted as the date of receipt of a claim," § 3.157(b)(1) operates

in conjunction with section 5110(a) to entitle such a veteran to an effective date for any increase in

compensation as of the date of the examination (or, pursuant to section 5110(b)(2), up to one year

prior thereto, should the examination report or other evidence demonstrate that the increase in

disability was first ascertainable within that period).

Here, Mr. Massie's newly stated theory is that Dr. Wesselius's May 1999 letter was a "report

of examination," as contemplated by § 3.157(b)(1), and that that provision therefore operated to

8

The Court notes that the Veterans Benefits Administration and the Veterans Health Administration, although

both within the Department of Veterans Affairs, are separate administrative organizations. Thus, to be clear, it is only

after the Veterans Benefits Administration has received a report of examination or hospitalization from the Veterans

Health Administration that it is required to treat the report as an informal claim for an increase in disability compensation

and initiate the adjudicative process. Section 3.157(b)(1) merely requires that, once received, the regional office will

recognize "[t]he date of outpatient or hospital examination" as the date that the informal claim was filed.

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transform the letter into an informal claim for an increased disability rating, potentially entitling him

to an effective date sometime between May 1998 and May 1999.

Neither party has identified in § 3.157 or in any other statute or regulation a specific

definition for the term "report of examination," nor has the Court's own search of these sources

unearthed such a definition. Indeed, the sole reason panel consideration is necessary in this case is

that the issue of what qualifies as a report of examination is vital to resolution of this appeal and VA

has failed to promulgate a regulation clearly defining this term. VA's failure to specifically define

this term is troublesome in light of the myriad records generated by VA medical personnel who

provide treatment to veterans for service-connected conditions on a daily basis.

At oral argument, the Court raised the issue of whether certain provisions of the Veterans

Benefits Administration Adjudication Procedures Manual (M21-1MR) are intended to describe the

type of VA medical record that qualifies as a "report of examination." In particular, under the

heading "Reviewing Department of Veterans Affairs . . . Examination Reports," one portion of the

M21-1MR provides:

The examination report must include

• an up-to-date, brief, medical and industrial history from the date of discharge

or last examination

• a record of subjective complaints

• a complete description of objective findings, stated in concrete terms

• a diagnosis for each described condition[]

• answer(s) to any question specifically included in the examination request

• opinions specifically requested in the exam request

• a diagnosis or notation that a chronic disease or disability was ruled out for

each disability, complaint, or symptom listed on the examination request, and

• the clinical findings required by the rating schedule for the evaluation of the

specific disability being claimed. (For example, if a joint is being examined,

the range of motion in degrees should be noted as part of the examination.

If a cardiovascular condition is being examined, the metabolic equivalent

expanded before fatigue, chest pain, and so on, result should be expressed.)

M21-1MR, pt. III, subpt. iv, ch. 3, sec. D(f).

In response to the Court's inquiry, counsel for the Secretary stated that this provision is

intended to assist VA adjudicators in determining what constitutes a sufficient report of examination

for compensation and pension purposes, but conceded that a particular VA medical record may still

13

qualify as a "report of examination" under § 3.157(b)(1) even if it is not as detailed as required by

this M21-1MR provision. The Court agrees that the type of VA medical record contemplated by

§ 3.157(b)(1) certainly could be less detailed than that described by the relevant provision of the

M21-1MR. Nevertheless, in the absence of a precise regulatory definition, this provision at least

provides some helpful indication of the type of information typically contained in a "report of

examination" that the Court may look to in the future when faced with similar questions.

In the present case, even without the assistance of the M21-1MR provision detailed above,

the Court concludes that Mr. Massie's argument is not persuasive because Dr. Wesselius's May 1999

letter could not possibly qualify as a report of examination under § 3.157(b)(1). The plain language

of the term "report of examination" necessarily implies that the medical record in question must

describe the results of a specific, particular examination. See Frederick v. Shinseki, 24 Vet.App.

335, 338 (2011) (explaining that any analysis of the meaning of statutory or regulatory language must

begin with the plain meaning of the language). Here, however, it is apparent that Dr. Wesselius's

May 1999 letter did not relate to a specific VA medical examination. In the letter, Dr. Wesselius

identified himself as the VA physician "who ha[d] been caring for Mr. Massie . . . since

approximately 1987." R. at 1299. The letter's only reference to Mr. Massie's varicose veins

condition was to note that "[t]he venous insufficiency ha[d] persisted in spite of prior surgical

treatment with vein stripping," and that "[t]his problem . . . left Mr. Massie with significant pain

when he [was] on his feet for any period of time." R. at 1299. Thus, this letter was not generated

in connection with any particular VA medical examination; rather, as the record reveals, it was

generated in connection with Mr. Massie's claim for Social Security disability benefits that was

pending at the time it was written. Similarly, the letter did not indicate the findings of or treatment

provided during a specific VA medical examination, the date of which could possibly serve as the

date of an informal claim for increased disability compensation; rather, the letter presented a very

short summation of Mr. Massie's general condition, as Dr. Wesselius had observed it over an

approximately 12-year period. Simply put, the letter did not relate to a specific, identifiable

outpatient or hospital examination and therefore did not qualify as a "report of examination," as

contemplated by § 3.157(b)(1).

14

Further, Dr. Wesselius's letter does not suggest that Mr. Massie's condition had in any way

worsened. Although the language of § 3.157(b)(1) does not expressly require that a report of

examination or hospitalization indicate that the veteran's service-connected disability worsened since

the time it was last evaluated, any interpretation of § 3.157(b)(1) that does not include such a

requirement would produce an absurd result. See Timex V.I. v. United States, 157 F.3d 879, 886

(Fed. Cir. 1998) (holding that a statutory or regulatory construction "that causes absurd results is to

be avoided if at all possible" (citing Haggar Co. v. Helvering, 308 U.S. 389, 394 (1940))). Without

such a requirement, every medical record generated by the Veterans Health Administration and

received by VA that could possibly be construed as a report of examination would trigger the

provisions of § 3.157(b)(1). This would unnecessarily burden VA by requiring it to treat every such

medical record as an informal claim for an increased disability rating, even where a particular

medical record shows no change in the veteran's condition.

Because, for the reasons outlined above, § 3.157(b)(1) was not implicated by Dr. Wesselius's

May 1999 letter or any other aspect of the record as it has been presented to the Court, the Court

concludes that the Board did not err in failing to discuss the theory now expressly raised by Mr.

Massie in the first instance. See Robinson, 557 F.3d at 1361 ("Where a fully developed record is

presented to the Board with no evidentiary support for a particular theory of recovery, there is no

reason for the Board to address or consider such a theory."); Robinson, 21 Vet.App. at 553 ("The

Board commits error only in failing to discuss a theory of entitlement that was raised either by the

appellant or by the evidence of record."). Accordingly, the Court will affirm the Board's May 2009

decision.

E. Other Matters

Since the Federal Circuit's decision in Robinson, the Court has witnessed an increase in the

number of cases in which the appellant presents a new theory or argument that was not explicitly

raised to VA, even in cases such as this one in which the appellant was represented by an attorney

throughout the administrative process. Invariably, as is the case here, the appellant will cite the

Federal Circuit's decision in Robinson for the proposition that the Board erred by failing to consider

and adjudicate the particular issue, theory, or argument that was purportedly "reasonably raised by

the record," but not expressly presented to VA by the appellant. To the extent that this Court no

15

longer has discretion under Maggitt to simply refuse to entertain such newly raised theories or

arguments due to the represented appellant's failure to present them below—regardless of whether

the theory was reasonably raised by the record—the Court is troubled that the current system

provides very little incentive for an attorney practicing before VA to present all available arguments

to the agency in one comprehensive appeal to the Board where veterans' claims can be resolved in

a timely manner.

Last year 62% of the cases decided by the Court resulted in either a reversal or a remand; of

these, 86% resulted in the payment of fees and expenses to lawyers by the United States under the

Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412(d). See U.S. COURT OF APPEALS FOR

VETERANS CLAIMS, ANNUAL REPORT FOR FISCAL YEAR 2010, available for download at

http://www.uscourts.cavc.gov/annual_report/ (last visited Sept. 30, 2011).9 In this way, the more

times a lawyer gets a case to this Court, the more money the lawyer may make. This is particularly

true for the unscrupulous or complacent attorney who waits to present a potentially meritorious

argument or theory until he or she is before the Court, in that, in addition to collecting EAJA fees

resulting from a Court remand, he may then collect a reasonable fee—often paid from a veteran's

benefits—for representation provided during proceedings before VA. By this, we do not intend to

imply that such is often the intention of lawyers, as they are obligated to continually and vigorously

represent their clients.10 However, because such a large percentage of successful appeals results in

the payment of fees under the EAJA, any system that requires the Court to remand a claim because

a theory or argument was reasonably raised by the record before the agency but not explicitly by the

appellant will result, in many cases, in lawyers collecting fees when attentive representation below

9

Specifically, of the 4,959 appeals filed with the Court in fiscal year 2010, 1,670 resulted in a remand, 560

resulted in the Board decision being reversed or vacated and remanded in whole or in part, and 832 resulted in a portion

of the Board decision being affirmed or dismissed in part and the remainder reversed or vacated and remanded. Thus,

3,062 of the appeals filed with the Court, or 62%, resulted in a favorable or partially favorable disposition for the

appellant. Of the 2,652 EAJA applications that were filed in connection with these successful appeals, the vast majority,

2,627, were granted, at least in part. Accordingly, approximately 86% of successful or partially successful appeals to

the Court resulted in an award of fees and costs pursuant to the EAJA.

10

Indeed, the observations contained in this section are not intended to reflect on Mr. Massie's current counsel,

but are set forth as the result of the Court's more general concerns regarding difficulties encountered when argument is

presented for the first time on appeal to this Court by veterans who were represented by an attorney during proceedings

before VA.

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would have led to the presentation and resolution of all issues at an earlier stage of the proceedings.11

Any monetary incentive for attorneys who represent veterans before VA should be oil for the gears

of the system, not sand in the works. Congress may wish to consider an explicit exception to EAJA

for cases where the appellant was represented below and obtains a remand based upon the Board's

failure to address an issue that counsel failed to raise.12 Such a change would clearly align attorneys'

financial incentives with the best interests of veterans.

III. CONCLUSION

Upon consideration of the foregoing, the May 19, 2009, Board decision is AFFIRMED.

11

It also raises the specter that unscrupulous counsel might seek to prolong matters with a low-effort appeal

and statistically likely remand from the Court so as to increase the size of the back award from which a contingency fee

would be collected. Even if such motives are unlikely to be true, the mere appearance of such impropriety feeds public

sentiment against the profession.

12

The Court has not yet had reason to consider whether there are "special circumstances [that] make an award

unjust" under the EAJA. 28 U.S.C. § 2412(d)(1)(A). Nor has the Court had cause to consider whether a reduction or

denial of fees requested pursuant to the EAJA would be appropriate in instances in which an attorney who represented

a veteran before VA first presents, without justification, a potentially meritorious theory or argument on appeal to this

Court. See 28 U.S.C. § 2412(d)(1)(C) ("The court, in its discretion, may reduce the amount to be awarded pursuant to

this subsection, or deny an award, to the extent that the prevailing party during the course of the proceedings engaged

in conduct which unduly and unreasonably protracted the final resolution of the matter in controversy.").

17