Thurman v. McDonough

• Decision Date: 12 May 2022
• Docket Number: 18-5729
• Parties: Sharon Thurman, Appellant, v. Denis McDonough, Secretary of Veterans Affairs, Appellee.
• Court: United States Court of Appeals For Veterans Claims

Sharon Thurman, Appellant,
v.
Denis McDonough, Secretary of Veterans Affairs, Appellee.

No. 18-5729

United States Court of Appeals For Veterans Claims

May 12, 2022

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

Sharon Thurman VA General Counsel (027)

Before GREENE, Senior Judge ^[1]

MEMORANDUM DECISION

GREENE, Senior Judge:

The appellant, Sharon Thurman, daughter of veteran Shelton Hickerson, Jr., appeals pro se a July 9, 2018, Board of Veterans' Appeals (Board) decision that denied accrued benefits in an amount higher than $3, 460.42. Record of Proceedings (R.) at 4-8. Single-judge disposition is appropriate. See Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). For the following reasons, the Court will vacate the Board's decision and remand for readjudi cation.

I. BACKGROUND

Mr. Hickerson served on active duty in the U.S. Army from April 1961 to October 1969; and from July 1971 to January 1983. R. at 1342. He served in the Republic of Vietnam from October 1963 to October 1969. R. at 4284. According to a September 2010 Board decision, Mr. Hickerson suffered the first of several strokes in April 1997. R. at 3458.

After suffering another stroke in September 2001, Mr. Hickerson submitted several informal service-connection claims for various medical conditions, see R. at 6, 436, 4022-23, 4056.

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In July 2007, he was awarded service connection for diabetes mellitus associated with herbicide exposure, effective March 2006. R. at 3587.

In a September 2010 Board decision, VA granted service connection for a stroke disorder and related residuals, noting that his service-connected diabetes "caused and/or contributed to" this condition. R. at 3044, 3456, 3460. VA apparently did not implement the Board's decision until an August 2012 rating decision assigned a 100% rating for the stroke disorder, "as related to the service-connected disability of diabetes mellitus type II," effective June 28, 2002, "the date [VA] received [his] claim." R. at 3045. Both the Board and VA acknowledged in their respective decisions that Mr. Hickerson had symptoms that "were later diagnosed as diabetes mellitus prior to, or at least at the time of, his September 2001 stroke." R. at 3460, 3045, 3461.

In November 2012, VA declared Mr. Hickerson to be incompetent to manage his personal affairs, including "disbursement of funds." R. at 3048. Accordingly, "[i]n compliance with current procedures," VA "withheld" "retroactive benefits [of] $500, 830 . . . pending appointment of a fiduciary for the [v]eteran and verification from DFAS [(Defense Finance and Accounting Service)] for entitlement to [a] concurrent recipient." R. at 1343. According to correspondence between the director of the VA regional office to the director of VA's Compensation Service, "[o]ver the next several months, attempts to appoint various family members as payee for the [v]eteran's compensation benefits were unsuccessful as credit reports yielded negative results. A request for appointment of fiduciary was pending with the Lincoln NE Fiduciary Unit when the [v]eteran died on June 27, 2013." R. at 1343; 2437; 2109. VA acknowledged that, prior to the "substantial amounts of benefits" "being released," "several mistakes were noted in the timeliness of processing." R. at 443; see also R. at 1344 ("The [v]eteran was entitled to unpaid retroactive benefits of $500, 830.00 based on a BVA decision that was not timely promulgated by VA during his lifetime."). In April 2014. Ms. Thurman filed a claim for equitable relief based on such mistakes and based on the acknowledged delay in VA's appointment of a fiduciary; however her claim was denied. See R. at 2118-53 (claim for equitable relief); R. at 2109 (recommending denial of equitable relief);^[2] R. at 1342 (VA request for special review); R. at 1222 (letter to Ms. Thurman

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explaining VA decisions); and R. at 1246 (second VA review, denying equitable relief). In denying the claim, VA explained that there were "no grounds upon which to grant equitable relief based on administrative error (38 U.S.C. [§] 503)," reasoning that VA "properly withheld retroactive benefits pending the appointment of a fiduciary, and VA actively sought to appoint a fiduciary prior to the death of the [v]eteran." R. at 1246. Moreover, VA asserted that, "had there been administrative error, the claimants do not fit the statutory definition of an eligible beneficiary entitled to equitable relief." R. at 1246.

Ms. Thurman also applied for death and accrued benefits, including retroactive benefits under 38 C.F.R. § 3.816, which governs retroactive awards for certain diseases associated with herbicide exposure (as required by court orders in the class action litigation in Nehmer v. U.S. Veterans' Admin^[3]), and 38 U.S.C. § 5121. R. at 2279-2285, 2249. VA denied her claims in June 2014, and she appealed. R. at 2007-11, 1974-75, 1768-90, 1248-64, 1229-30, 407-37.^[4]

In a 2015 Statement of the Case, VA explained:

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You also stated that the veteran was due retroactive Nehmer benefits due to his service-connected type 2 diabetes mellitus. As previously discussed, retroactive benefits under the Nehmer Court order may be payable if there is evidence of a disability received during a time frame beginning with the Nehmer review period (September 25, 1985) and ending with the effective date of the regulation that linked that disability with Agent Orange exposure. The regulation that associated type 2 diabetes mellitus with the veteran's conceded Agent Orange exposure took effect on May 8, 2001

The veteran's original claim for VA compensation was received on November 8, 2001, which is AFTER the effective date that linked type 2 diabetes mellitus and Agent Orange exposure. Service connection was properly established for this disability effective March 23, 2006, which was the date of the first objective evidence showing a diagnosis of diabetes. Since we did not receive medical evidence documenting a diagnosis of type 2 diabetes mellitus prior May 8, 2001, retroactive benefits under the Nehmer Court order are not warranted for this disability.

R. at 436.

In its decision on appeal, the Board recounted that "[t]he record establishes an August 2012 rating decision implemented the Board's grant of service connection for the residuals of stroke, resulting in a retroactive award of just over $500, 000 that was not paid because a fiduciary was not established prior to the [v]eteran's death." R. at 5. However, the Board determined that Ms. Thurman was not entitled to such accrued benefits under 38 U.S.C. § 5121, because she did not qualify as an eligible "child," see 38 C.F.R. § 3.57, and did not bear more than $3, 460.42 in expenses for the veteran's last sickness and burial. R. at 5-6.

Further, the Board determined that Ms. Thurman was not entitled to such retroactive benefits under 38 C.F.R. § 3.816(f), reasoning that

the retroactive award in question resulted from a grant of service connection for the residuals of a stroke. None of the specifically identified stroke residuals in the August 2012 rating decision are presumptively associated with exposure to herbicide agents under 38 C.F.R. §3.309(e). The record does not establish retroactive benefits are due and unpaid based on an award of service connection for any disease that has been added to the list of presumptive diseases since the date of the [v]eteran's initial service connection claim on November 8, 2001. The AOJ conducted a 'Nehmer review of the [v]eteran's file prior to his death, as evidenced by a July 2011 decision, and determined retroactive benefits were not warranted in this case. It appears the AOJ conducted a second Nehmer review at the [a]ppellant's request in February 2015. The AOJ administratively closed the appeal of the February 2015 decision when the [a]ppellant failed to file a timely substantive appeal. Thus, the only retroactive award that is due and unpaid resulted from the

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August 2012 rating decision that granted service connection for the residuals of stroke. This award does not fall under the accrued benefits provisions outlined in 38 C.F.R.

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