Crews v. McDonough
| Decision Date | 17 April 2023 |
| Docket Number | 21-0226 |
| Parties | Robert E. Crews, Appellant, v. Denis McDonough, Secretary of Veterans Affairs, Appellee |
| Court | United States Court of Appeals For Veterans Claims |
Argued August 16, 2022.
On Appeal from the Board of Veterans' Appeals
Bryan Andersen, with whom Glenn R. Bergmann and Kelsey L. Binder were on the brief, all of Bethesda, Maryland, for the appellant.
Brandon A. Jonas, with whom Richard A. Sauber, General Counsel; Mary Ann Flynn, Chief Counsel; Carolyn F Washington, Deputy Chief Counsel; and Timothy A. Campbell Appellate Attorney, all of Washington, D.C., were on the brief for the appellee.
Before MEREDITH, FALVEY, and JAQUITH, Judges.
OPINION
The appellant, Robert E. Crews, through counsel appeals a November 16, 2020, Board of Veterans' Appeals (Board) decision that denied entitlement to an effective date prior to September 5, 2018, for the award of disability benefits for coronary artery disease (CAD), status post myocardial infarction and bypass graft. Record (R.) at 5-14. This appeal is timely, and the Court has jurisdiction to review the Board's decision pursuant to 38 U.S.C. §§ 7252(a) and 7266(a). This matter was referred to a panel of the Court to consider whether the Blue Water Navy Vietnam Veterans Act of 2019 (Blue Water Act), Pub. L. No. 116-23, 133 Stat. 966 (), precludes a veteran from receiving a retroactive effective date[1] for an award of benefits under that Act for an herbicide-related condition if his or her claim was previously denied in part due to the lack of evidence of a current disability. For the reasons that follow, the Court holds that the Act does not, and therefore the Court will vacate the Board's decision and remand the matter for further proceedings consistent with this decision.
The appellant served on active duty in the U.S. Coast Guard from July 1963 to July 1983.[2]R. at 2490, 2632, 2672, 2716, 3338. He filed a claim for benefits for ischemic heart disease (IHD) in September 2013, asserting that the condition began in January 1991 and was caused by in-service exposure to Agent Orange. R. at 3241-46. A VA regional office (RO) denied the claim in July 2014. R. at 2346-51. In that decision, under the heading "Evidence," the RO listed "[m]ilitary [s]ervice [p]ersonnel [r]ecords showing confirmed [Republic of Vietnam] service," and "no response . . . received" for private treatment records from a Dr. Cook at the Sanger Clinic. R. at 2347. In denying the claim, the RO found that "[t]he evidence does not show an event, disease[,] or injury in service"; service treatment records did not reflect complaints, treatment, or diagnoses of the condition; and the condition did not develop to a compensable degree within the presumptive period following discharge from service.[3] R. at 2348. The RO then noted that, under the Agent Orange Act of 1991, presumptive service connection based on herbicide exposure is warranted for specified conditions, including IHD, R. at 2348, but the RO denied "[s]ervice connection based on a relationship to herbicide exposure" because "the evidence does not show a diagnosis of a condition for which VA has found a positive association to herbicide exposure," R. at 2349. The RO further noted that IHD "did not happen in military service, nor was it aggravated or caused by service." Id. It is undisputed that the appellant did not file a Notice of Disagreement with that decision.
In August 2019, the appellant again sought benefits for IHD, stating that he had served "directly off the coast of Vietnam, sometimes . . . actually going ashore," and that he had seen "clouds of Agent Orange coming across the water after [it was] dropped in the trees." R. at 2322; see R. at 2240-41, 2291-95. The evidence developed as a result of this supplemental claim revealed that, in October 1991, the appellant underwent a coronary artery bypass graft, performed by Dr. Cook, to treat CAD. R. at 1535-36, 1547-48.
The record contains a March 2020 VA memorandum indicating that the appellant's herbicide exposure was conceded based on both "[his] duty on the Republic of Vietnam's inland waterways" and "[his] nautical service in the offshore eligible waters as defined in the [Blue Water Act]." R. at 964. The following month, the RO granted benefits for CAD, claimed as IHD associated with herbicide exposure, and assigned a 60% rating, effective September 5, 2019, the date of the supplemental claim. R. at 950-53, 957-58. The RO explained that service connection was "granted on the basis of presumption due to Agent Orange exposure," R. at 951, but given that the appellant's "original claim for [IHD] was denied because there was no evidence of a diagnosis[,] . . . an[] earlier effective date under the [Blue Water Act] cannot be applied to this claim," R. at 952.
The appellant sought review of the assigned effective date, asserting that his 2013 claim had been denied "only due to the fact that Agent Orange exposure at that time was interpreted to mean 'on land/inland waterway exposure'" and arguing that his effective date should be retroactive to the date of that claim. R. at 931; see R. at 933-34. Thereafter, the RO granted an earlier effective date of September 5, 2018, based on its finding that VA had committed a clear and unmistakable error. R. at 542-46. In that regard, the RO found that the record reflected "a compensable diagnosis of [CAD] . . . as early as 1991" and reasoned that, because CAD had been added to the list of presumed herbicide-related conditions on August 31, 2010, VA should have awarded an effective date 1 year prior to the receipt of his 2019 supplemental claim. R. at 543. The RO also denied the appellant's request for an effective date as early as the date of his 2013 claim, explaining as follows:
To allow entitlement to an earlier effective date based on a previously denied claim, the [Blue Water Act] requires that you were denied because a diagnosed presumptive disability was of record[ but] exposure to herbicide was not conceded. As you were denied because there was no evidence of a diagnosed presumptive disability, not because herbicide exposure was[ not] conceded, entitlement to an earlier effective date prior to September 5, 2018[,] is denied.
R. at 544. The appellant sought direct review of that decision by the Board, averring that his 2013 claim had been denied "due to the regulations regarding herbicide exposure at that time." R. at 523; see R. at 525.
In the November 2020 decision on appeal, the Board denied entitlement to an effective date prior to September 5, 2018, for the award of benefits for CAD. R. at 5. 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 "not on the basis that he did not have confirmed service in Vietnam, but on the basis that the evidence of record did not show that he had a current disability," and because the "denial was not based on a prior more restrictive definition of service in the Republic of Vietnam, . . . the general effective date rules apply." R. at 8-9. The Board also acknowledged that the record shows that the appellant had CAD "as early as 1991," but the Board found that the private treatment records showing that disability were not associated with the claims file until after the appellant filed his supplemental claim in September 2019. R. at 11. This appeal followed.
The history of herbicide use during the Vietnam War era and the decades of litigation that followed, including the Nehmer[4] line of cases, have been well documented. See, e.g., Euzebio v. McDonough, 989 F.3d 1305, 1309-14 (Fed. Cir. 2021); Procopio v. Wilkie, 913 F.3d 1371, 1373-74 (Fed. Cir. 2019) (en banc); Constantine, 35 Vet.App. at 83-85. Thus, the Court here will note only significant developments that may provide context for the current dispute.
To begin, in February 1991, Congress passed the Agent Orange Act of 1991, which afforded veterans who served "in the Republic of Vietnam during the Vietnam era" a "[p]resumption[] of service connection" if they developed certain diseases specified in that Act or identified by VA thereafter as having a "positive association with exposure to an herbicide agent." Pub. L. No. 102-4, § 2(a), 105 Stat. 11 (now codified at 38 U.S.C. § 1116).[5] Although the Agent Orange Act "did not provide for readjudication of previously denied claims," the Nehmer class and VA subsequently entered into a consent decree "that detailed VA's ongoing responsibilities for further rulemaking and retroactive disability payments to class members." Constantine, 35 Vet.App. at 83. Since then, VA has continued to add to the list of conditions subject to presumptive service connection pursuant to section 1116, including adding IHD[6] in 2010, 75 Fed.Reg. 53,202, 53,216 (Aug. 31, 2010), and there has been ongoing litigation regarding where, geographically relative to Vietnam, a veteran must have served to qualify for that presumption.
In that regard, at the time that the appellant filed his 2013 claim VA interpreted service "in the Republic of Vietnam," 38 U.S.C. § 1116(a)(1)(A) (2012), as including service on the landmass of Vietnam and the inland waterways, see 38 C.F.R. § 3.307(a)(6)(iii) (effective Sept. 6, 2013, to June 18, 2015); 66 Fed.Reg. 23,166, 23,166 (May 8, 2001), and the United States Court of Appeals for the Federal Circuit (Federal Circuit) had upheld the Secretary's interpretation that the section 1116 presumption did not extend to...
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