Elomina v. McDonough
| Decision Date | 29 April 2022 |
| Docket Number | 20-4407 |
| Parties | Ambert A. Elomina, Appellant, v. Denis McDonough, Secretary of Veterans Affairs, Appellee. |
| Court | United States Court of Appeals For Veterans Claims |
Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent.
Ambert A. Elomina VA General Counsel
Before GREENBERG, Judge.
U.S Marine Corps veteran Ambert A. Elomina, pro se, appeals that part of a March 31, 2020, Board of Veterans' Appeals decision that denied (1) an effective date earlier than July 22, 2004, for the grant of service connection for a cervical strain on the basis of clear and unmistakable error (CUE) in an October 2004 rating decision; (2) an effective date earlier than August 12, 2004, for the grant of service connection for a lumbar strain on the basis of CUE in an October 2004 rating decision; (3) entitlement to specially adapted housing; and (4) entitlement to a special home adaptation grant. Record (R.) at 5-16. The Board also dismissed appeals seeking a higher initial disability rating for service-connected (1) cervical strain and (2) lumbar strain. Id.
The appellant informally argues that the Board (1) incorrectly stated the facts of the case; (2) misapplied the appropriate law to the case; (3) failed to evaluate his claim for special monthly compensation (SMC); (4) failed to apply the benefit of the doubt doctrine; and (5) failed to evaluate his claims under 38 U.S.C. § 1151. Appellant's Informal Brief at 1-10. The appellant also claims that VA failed to satisfy the duty to assist by not obtaining all his postservice treatment records. Id.
For the following reason the Court will set aside those parts of the March 2020 Board decision that denied an effective date earlier than July 22, 2004, for the grant of service connection for a cervical strain and an effective date earlier than August 12, 2004, for the grant of service connection for a lumbar strain, both on the basis of CUE in an October 2004 rating decision, for readjudication. The remaining portion of the March 2020 Board decision on appeal will be affirmed.
The Veterans Administration was established in 1930 when Congress consolidated the Bureau of Pensions, the National Home for Disabled Volunteer Soldiers, and the U.S. Veterans' Bureau into one agency. Act of July 3, 1930, ch 863, 46 Stat 1016. This Court was created with the enactment of the Veterans' Judicial Review Act(VJRA) in 1988. See Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). Before the VJRA, for nearly 60 years VA rules, regulations, and decisions lived in "splendid isolation," generally unconstrained by judicial review. See Brown v. Gardner, 513 U.S. 115, 122 (1994) (Souter, J.).
Yet, the creation of a special court solely for veterans is consistent with congressional intent as old as the Republic. Congress first sought judicial assistance in affording veterans relief when it adopted the Invalid Pensions Act of 1792, which provided "for the settlement of the claims of widows and orphans . . . and to regulate the claims to invalid pensions," for those injured during the Revolutionary War. Act of Mar. 23, 1792, ch. 11, 1 U.S. Stat 243 (1792) (). The act, though magnanimous, curtailed the power of the judiciary, by providing the Secretary of War the ability to withhold favorable determinations to claimants by circuit courts if the Secretary believed that the circuit court had erred in favor of the soldier based on "suspected imposition or mistake." See id.
Chief Justice John Jay[1] wrote a letter[2] to President George Washington on behalf of the Circuit Court for the District of New York[3] acknowledging that "the objects of this act are exceedingly benevolent, and do real honor to the humanity and justice of Congress." See Hay burn's Case, 2 U.S. (2 Dall.) 409, 410 n, 1 L.Ed. 436 (1792). Jay also noted that 'judges desire to manifest, on all proper occasions and in every proper manner their high respect for the national legislature." Id.
This desire to effect congressional intent favorable to veterans has echoed throughout the Supreme Court's decisions on matters that emanated from our Court. See Shinseki v. Sanders, 556 U.S. 396, 416, 129 S.Ct. 1696, 1709 (2009) (Souter, J., dissenting) (); see also Henderson v. Shinseki, 562 U.S. 428, 440, 131 S.Ct. 1197, 1205 (2011) (). In the words of Justice Paterson, "[J]udges may die, and courts be at an end; but justice still lives, and, though she may sleep for awhile, will eventually awake, and must be satisfied." Penhallow v. Doane's Adm'r, 3 U.S. 54, 79(1795).
Justice Alito[4] observed in Henderson v. Shinseki that our Court's scope of review is "similar to that of an Article III court reviewing agency action under the Administrative Procedure Act, 5 U.S.C. § 706." 562 U.S. at 432 n.2 (2011); see 38 U.S.C. § 7261. "The Court may hear cases by judges sitting alone or in panels, as determined pursuant to procedures established by the Court." 38 U.S.C. § 7254. The statutory command that a single judge[5] may issue a binding decision is "unambiguous, unequivocal, and unlimited," see Conroy v. Aniskoff 507U.S. 511, 514 (1993). The Court's practice of treating panel decisions as "precedential" is unnecessary, particularly since the Court's adoption of class action litigation. See Wolfe v. Wilkie, 32 Vet. App. 1 (2019) (order), rev'd sub nom. Wolfe v. McDonough, ___F.4th ___, No. 2020-1958, 2022 WL 803395 (Fed. Cir. Mar. 17, 2022). We cite decisions from our Court merely for their guidance and persuasive value.
The appellant served on active duty in the U.S. Marine Corps from April 1987 to June 1991 as a mortarman. R. at 11, 181. The appellant earned many medals and commendations during service, including a Southwest Asia Service Medal; a Letter of Appreciation; a Sea Service Deployment Ribbon with 1 service star; and a Sharpshooter-grade Marksmanship Qualification Badge with the rifle. Id.
In October 2000, the appellant was treated for cervical and back pain. R. at 10, 322.
In February 2001, the appellant applied for disability benefits seeking service connection for back pain, alleging that this pain was caused by his service-connected tendon inflammation (service-connected tendonitis of the left knee). R. at 10, 300, 9470. In October 2001, the appellant sought service connection for a neck condition. R. at 10, 291.
In March 2003 and April 2003, the appellant was treated for back and neck pain that he described as aching and sharp, intermittent in duration, and caused him to have limited movement. R. at 10, 134, 10, 124.
In July 2004, the appellant testified that during service he sought treatment for back and neck pain after going on a 50-mile hike. R. at 9609. He also submitted medical records indicating that between March 2000 and September 2003, he received repeated treatment for cervical, thoracic, and lumbar spine pain that was aggravated by physical activity and exertion, cold temperatures, and wrong positioning. R. at 9599, 9592, 9589, 9587, 9584, 9582, 9580, 9578, 9577.
Also in July 2004, the appellant sought treatment for neck pain and stiff neck muscles and was diagnosed with a cervical strain. R. at 9476.
In August 2004, the appellant underwent a VA joints examination, R. at 9550-55. The appellant complained of neck and back pain with lack of endurance. R. at 9550. The examiner diagnosed the appellant with a back strain, exaggerated lumbar lordosis, and a cervical strain, and the examiner opined that the appellant's cervical strain and back strain were at least likely as not related to complaints during service, based on the appellant's service medical record and the physical findings on examination. R. at 9555.
In October 2004, the regional office (RO) granted service connection for (1) a cervical strain (claimed as a neck condition), with a 10% disability rating, effective July 22, 2004, and (2) a lumbar strain (claimed as a condition manifested by back pain), with a 10% disability rating, effective August 12. 2004. R. at 9467-69.
In April 2014, the appellant applied for temporary adaptive housing assistance. R. at 7924.
In February 2016, the appellant filed a motion for revision based on CUE in the October 2004 rating decision. R. at 6324-26.
In June 2016, the Board increased the appellant's disability rating for (1) a lumbar spine disability, from 10% to 20%, effective July 25, 2007, and (2) a cervical spine disability, from 10% to 20%), effective November 27, 2007. R. at 6264-92. The Board also referred the issue whether there was CUE in the October 2004 rating decision back to the agency of original jurisdiction. Id
In October 2016, the RO (1) implemented the June 2016 Board decision and increased the appellant's disability ratings for a lumbar strain and a cervical strain, from 10%> to20%>, effective July 25, 2007, and November 27, 2007, respectively; and (2) denied an earlier effective date for service connection for both a cervical strain and a lumbar strain on the basis of CUE in the October 2004 rating decision. R. at 5782-85.
In January 2017, the appellant filed a Notice of Disagreement appealing the entire October 2016 rating decision. R. at 5728-32...
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