Knox v. McDonough

• Decision Date: 01 December 2022
• Docket Number: 21-4418
• Parties: Marshall L. Knox, Appellant, v. Denis McDonough, Secretary of Veterans Affairs, Appellee.
• Court: United States Court of Appeals For Veterans Claims

Marshall L. Knox, Appellant, v. Denis McDonough, Secretary of Veterans Affairs, Appellee.

No. 21-4418

United States Court of Appeals For Veterans Claims

December 1, 2022

Pursuant to U.S. Vet.App. R. 30(a), this action may not be cited as precedent.

Todd M. Wesche, Esq. VA General Counsel

Before GREENBERG, Judge.

MEMORANDUM DECISION

GREENBERG, JUDGE

U.S Army veteran Marshall L. Knox appeals through counsel a March 18, 2021, Board of Veterans' Appeals decision that (1) found that a rating reduction from 60% to 40% for the lumbar spine degenerative arthritis with a lumbar spine strain effective August 1, 2019, was proper; (2) denied entitlement to a total disability rating based on individual unemployability (TDIU); and (3) denied entitlement to special monthly compensation (SMC) by reason of being housebound or based on the need of regular aid and attendance. ^[1] Record (R.) at 529. The Board also denied a disability rating in excess of 40% from August 1, 2019. See id.

The appellant argues that the Board erred by (1) failing to provide proper notice of its proposed rating reduction; (2) failing to address whether an improvement in the disability reflected an actual improvement in the ability to function under the ordinary conditions of life and work; (3) failing to adequately address how all the evidence demonstrated "sustained improvement"; and (4) discounting the private favorable medical opinion when adjudicating the appellant's TDIU issue.

Appellant's Brief at 8-16. The appellant additionally argues that TDIU and SMC are inextricably intertwined with the rating-reduction issue. R. at 16-17.

For the following reasons, the Court will reverse that part of the March 2021 Board decision that found the rating reduction for the appellant's service-connected lumbar spine disability proper, and the Court will remand the matter for VA to reinstate a 60% rating from August 1, 2019. The remainder of the March 2021 decision on appeal will be set aside and the TDIU and SMC matters will be remanded for readjudication.

I.

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) (repealed in part and amended by Act of Feb. 28, 1793, ch. 17, 1 Stat. 324 (1793)). 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^[2] wrote a letter^[3] to President George Washington on behalf of the Circuit Court for the District of New York^[4] acknowledging that "the objects of this act are exceedingly benevolent, and do real honor to the humanity and justice of Congress." See Hayburn'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) ("Given Congress's understandable decision to place a thumb on the scale in the veteran's favor in the course of administrative and judicial review of VA decisions "); see also Henderson v. Shinseki, 562 U.S. 428, 440, 131 S.Ct. 1197, 1205 (2011) (declaring that congressional solicitude for veterans is plainly reflected in "the singular characteristics of the review scheme that Congress created for the adjudication of veterans' benefits claims," and emphasizing that the provision "was enacted as part of the VJRA [because] that legislation was decidedly favorable to the veteran"). 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 a while, will eventually awake, and must be satisfied." Penhallow v. Doane's Adm'r, 3 U.S. 54, 79 (1795).

II.

Justice Alito^[5] 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 ^[6] may issue a binding decision is "unambiguous, unequivocal, and unlimited," see Conroy v. Aniskoff, 507 U.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, 28 F.4th 1348, (Fed. Cir. 2022). We cite decisions from our Court merely for their guidance and persuasive value.

III.

The appellant served on active duty in the U.S. Army from September 1974 to September 1977 as a supply clerk. R. at 14,885 (DD Form 214). During service, the appellant injured his back after falling. R. at 14,882.

IV.

The appellant has been service connected for his spine condition since September 1977. R. at 14,885. The appellant underwent a VA examination in April 2003, during which he reported worsening of his spine condition and that he was unable to secure employment as a result of his back disability. R. at 13,395-96. In July 2003 the regional office (RO) granted the appellant a 60% disability rating effective October 2001 for his service-connected lumbar spine disability. R. at 13,382. The 60% disability rating was awarded because the RO found that

[t]he overall evidence shows you have a degenerative disc disease described as severe. Examination report shows you have limited forward flexion of only 50 degrees with 20 degrees for extension. There was pain over the lumbosacral spine. Your current examination also shows 50 degrees for flexion. Extension was painful at 10 degrees. MRI report shows you have developed an extremely degenerative disc with concomitant disc bulge and neural foraminal narrowing. You report having pain radiating to both legs Although there was a negative straight leg raise there was evidence of narrowing which is likely the cause of the symptoms per the doctors [sic] report. The evidence also shows you take medication for the pain which includes Methodone and Darvocet. The evidence shows you have a back condition which is characterized as pronounced.

Id.

In May 2018, the appellant underwent a VA back examination. R. at 4695-4703. At the examination the appellant reported suffering flare-ups and functional loss during flare-ups. R. at 4696. When prompted to record the description of the appellant's flare-ups and functional loss during a flare-up, the examiner merely wrote: "[Y]es I do.... cold . . . rain ...." and "activities." Id.

In December 2018, the RO proposed reducing the appellant's disability rating from 60% to 40% after finding that the May 2018 VA examination showed "severely reduced ranged of motion, with muscle spasm not resulting in abnormal gait or abnormal spinal contour, and no evidence of radiculopathy or other neurologic abnormalities or findings." R. at 3427. The RO issued a rating decision in May 2019 decreasing the appellant's rating from 60% to 40%, effective August 1, 2019. R. at 2317-18. Although VA cited the May 2018 VA examination when it proposed to reduce the appellant's rating, the RO did not rely on this examination to reduce the appellant's disability rating or list the examination as evidence in its decision. See id.

In May 2020 VA the appellant submitted a private medical opinion from the appellant where the examiner concluded that the appellant was unemployable solely based on his service-connected spinal disability. R. at 701. The examiner stated:

After reviewing the evidence and interviewing the veteran, it is my opinion that it is as likely as not that the combination of pain and limitations caused by his service[-]connected low back conditions diagnosed as lumbosacral strain prevents him from being able to work. My opinion is based on his low back conditions diagnosed as lumbosacral strain alone and does not include his other service connected and non-service[-]connected impairments.

R. at 701.

V.

In March 2021 the Board found that the rating reduction from 60% to 40% for lumbar spine degenerative arthritis with lumbar spine strain, effective August 1, 2019, was proper, and the Board denied entitlement to TDIU and SMC. R. at 5-29. The RO also denied a disability rating in excess of 40%, effective from ...