allan

M21-1-6 Rating Board Procedure 2.07 EVALUATION OF EVIDENCE The rating specialist has responsibility to recognize the need for evidence in relation to a claim. The members have responsibility to determine admissibility of and the weight to be afforded evidence that is presented, the need for additional evidence, and the need for physical examination. If all the evidence is favorable, the claim must be granted. (See Beaty v. Brown, 6 Vet. App. 532 (1994).) a. Probative Value. The rating specialist will determine the probative value of medical or lay testimony. Accept evidence at face value unless contradicted by other evidence or sound medical or legal principles. In the presence of questionable or conflicting evidence, further development may be needed to corroborate testimony to include, if in order, field examinations and/or social surveys to obtain transcripts of original or other appropriate records. Rating decisions must clearly explain why evidence is found to be persuasive or unpersuasive. Decisions must address all the evidence and all of the claimant's contentions. b. Medical Opinions. Medical conclusions must be supported by evidence in the file. Rating specialists cannot refute with their own unsubstantiated medical conclusions medical evidence submitted by the claimant. Recognized medical treatises or an independent medical opinion may be cited to support a conclusion. Such evidence, when relied upon, must be identified in the decision.

M21-1-6 Rating Board Procedure 3.13 REASONS AND BASES a. General. Conclusions without supporting analysis and explanation do not comply with statutory requirements. Explain why the decision was made in the reasons and bases. Each disability at issue in a rating must be discussed separately in its own reasons and bases paragraph. Reasoning deductively from the general to the particular, dedicate the first paragraph to the legal justification and the second to the supporting evidence. Reasons and bases paragraphs containing conclusory statements such as, "The evidence does not warrant any change in the prior evaluation" are inadequate without an analysis of the credibility and value of the evidence considered. b. Review of Evidence. Concisely cite and evaluate all evidence that is relevant and necessary to the determination. Rating decisions must evaluate all the evidence, including oral testimony given under oath and certified statements submitted by claimants, and must clearly explain why that evidence is found to be persuasive or unpersuasive. Decisions must address all pertinent evidence and all of the claimant's contentions. Do not quote at length from letters, affidavits, hospital reports, etc. (1) If service connection is granted, do not relate all the details of treatment in service. A simple statement that the enlistment exam was negative and that beginning on a particular date prior to separation the veteran was treated for whatever condition was diagnosed is usually sufficient. The next entry in the paragraph should be the findings from the current exam or a citation of whatever evidence is necessary to establish chronicity and continuity. If the cause of several claimed disabilities is the same, such as one accident, information concerning the origin need only be discussed in detail once in the reasons and bases paragraph for the first disability of common origin. (2) When granting service connection, extensive discussion of post service treatment is only necessary if essential to the evaluation. (3) Cite evidence, both favorable and unfavorable, without partiality, especially when a decreased benefit is under consideration. Compare relevant findings at the time of previous rating with present findings. c. Current and Next Higher Evaluations. Whenever a separate disability evaluation is assigned for compensation purposes, describe the criteria of the particular diagnostic code which justifies the assigned evaluation. If a higher percentage under that code would be possible, also discuss the criteria for the next higher evaluation. Confine the explanation of the criteria for the assigned and next higher evaluations to the diagnostic code under which the disability is evaluated. In the case of hearing loss or visual impairment, a general statement such as "higher evaluations are assigned for greater loss of hearing (or vision)" will be sufficient. d. Medical Conclusions. Cite medical information and reasoning linking or separating two disabilities or establishing or refuting prior inception or aggravation. Medical conclusions must be supported by evidence in the claims file. Rating specialists cannot refute medical evidence submitted by the claimant with their own medical opinions. Rating decisions can cite recognized medical treatises or an independent medical opinion to support a conclusion. Such authority, when relied upon, must be identified in the decision.

1: Arch Clin Neuropsychol. 1998 Apr;13(3):259-84. A review of the neuropsychological effects of commonly used prescription medications. Stein RA, Strickland TL. HIV Mental Health Services, Harbor-UCLA Medical Center and Charles R. Drew University of Medicine and Science, Torrance, 90509, USA. The practice of clinical neuropsychology has traditionally accorded limited attention to the impact of prescription medications on cognitive functioning. Though neuropsychologists see a wide array of patients with cerebropathologic and other organ system disease that are under pharmacotherapy, systematic attention to how these compounds potentially affect neuropsychological functioning has lagged. Psychomotor functioning, concentration, and memory are the most common cognitive domains negatively affected by such medications. In general sedative, psychomotor, and, to a lesser extent, attention/concentration effects covary and typically show tolerance with sustained drug administration. Memory effects are more resistant probably due to ongoing anticholinergic effects and the established link between the cholinergic system and memory functioning. This review covers the basic science and clinical literature addressing neuropsychological functioning both in healthy nonpatients and in patients treated with antidepressants, anxiolytics, stimulants, antihypertensives, antiepileptics and antihistamines. Critical to the understanding of the effects of these agents is the integration of multiple factors that modulate medication-induced neurocognitive effects, such as chronicity of treatment, tolerance, age, ethnicity, metabolic capacity, psychological, and neurological disorders in the patient, and the benefits of successful treatment of these disorders. PMID: 14590642 [PubMed] ******************************************************************************** ********************************************************************************* ****** Source: http://www.ncbi.nlm.nih.gov/entrez/query.f...t_uids=14590642

Congratulations Larry! When they measured the, "loss of range of motion"(ROM), did they use a device called a "genometer"? If they didn't, the ROM needs to be rechecked using this device. You can save allot of time by submitting & explaining your evidence in person, during a local hearing at the VARO(VA Regional Office). Request using a letter to the VARO. They will notify you of when to appear. You can call the mental health dept at the nearest VAMC you are assigned to & request an appointment to see a psychologist. A statement from a Psychologist is needed to determine how, "pain" & medications effect your ability to function in daily life & hold a job. Submitting an IMO may help as well. Allan

DECISION ASSESSMENT DOCUMENT DOCKET NO.: 97-749 ACTIVITY: RATING NAME: Nash v. West ISSUE(S): Writ of mandamus ACTION BY COURT: Denied (en banc) DECISION DATE: 2/23/98 FACTS: The veteran was stationed in Osaka, Japan, from September to December 1945. In March 1989, he filed a claim for SC for breast cancer due to exposure to ionizing radiation during World War II. Records show that the diagnosis of the veteran’s claimed breast cancer was malignant melanoma (skin cancer) which resulted in a radical mastectomy during the excision of the melanoma. On April 8, 1997, after the Regional Office (RO) denial and three BVA remands, the Board found that the veteran had “never participated in the occupation of either Hiroshima or Nagasaki, as defined at 38 C.F.R. § 3.309(d)(3)(vi).” Concurrently, the Board remanded the claim in order for the RO to obtain further dosage estimates of the veteran's exposure to ionizing radiation during his service in Japan and to conduct further evidentiary development provided for by 38 C.F.R. § 3.311 based on both an eight-hour visit to Hiroshima as early as October 7, 1945 and later exposure resulting from his eating off of tables covered with aluminum sheets salvaged from Hiroshima. On May 14, 1997, the veteran filed a request for extraordinary relief to assure that he received his due process rights in his lifetime, because his appeal had been remanded by the Board a total of four times. The actual relief sought through the petition was an order directing the Board of Veterans’ Appeals (BVA) to decide his claims without further remand. ANALYSIS: In Erspamer v. Derwinski, 1 Vet. App. 3 (1990), the Court held that it has authority to grant extraordinary relief in aid of its potential jurisdiction. In order to show entitlement to the writ, the petitioner must satisfy a two-part test. First, he must demonstrate a clear and indisputable right to the writ. Second, he must show that he lacks an adequate alternative means to obtain the relief sought. In this case, the Court held that the veteran’s allegations do not evidence a clear and indisputable right to the writ. The delay involved, although frustrating to the petitioner, must be unreasonable under all circumstances before the Court will inject itself into the administrative agency’s adjudicative process. Here, the circumstances are not so extraordinary as to justify the Court’s exercise of its All Writs power. The exhaustion of the petitioner’s appellate remedies may secure the relief he ultimately seeks, and if not, he has the remedy of timely appeal as a right to the Court. For that reason, the Court denied the petition for an extraordinary writ because the veteran had not shown that he lacked an adequate alternative means of obtaining a BVA decision on the question of service connection. RECOMMENDED VBA ACTION(S): None. As in previous single judge denials of petitions for extraordinary relief, the en banc Court has held that the claimant must exhaust all VA administrative procedures before the Court will inject itself into the case. This decision has no impact on VA policy, regulations, or procedures. However, the Court in all of its decisions has repeatedly pointed out that VA is required to expedite the remand proceedings when the BVA orders a remand. At this time, it is not known how the Court would react to a petition for extraordinary relief where the delay was determined to be unreasonable under all circumstances. Such a case could potentially result in sanctions against VA. ACTION BY DIRECTOR, C&P SERVICE: Approved? _X_ ___ _____________/s/____________________ 3/19/98 Yes No Kristine A. Moffitt Date SOURCE:http://www.warms.vba.va.gov/Cova/DADS/98DADS/NASH.DOC"" target=_blank"> http://www.warms.vba.va.gov/Cova/DADS/98DADS/NASH.DOC

STATEMENT OF JAMES P. TERRY, CHAIRMAN, BOARD OF VETERANS' APPEALS BEFORE THE COMMITTEE ON VETERANS' AFFAIRS UNITED STATES SENATE July 13, 2006 Good morning, Mr. Chairman. I am happy to discuss with you, Ranking Member Akaka, the members of the Committee, and your staff, what we believe are the reasons for the increase in the number of appeals to the United States Court of Appeals for Veterans Claims (Court or Veterans Court), whether we can expect that trend to continue, and what measures may be taken to assist the Veterans Court in handling this increased workload. With me today before you is R. Randall Campbell, Assistant General Counsel, Professional Staff Group VII of the Office of the General Counsel (Group VII), also known as the Veterans Court Appellate Litigation Group. That Group is charged with representing the Secretary of Veterans Affairs before the Court. While appeals from the final decisions of the Board provide the primary source of the Veterans Court's workload, its workload includes a variety of other matters, including petitions for a writ of mandamus, and applications for fees and expenses under the Equal Access to Justice Act. Group VII is responsible for handling the administrative and legal matters involved in all litigation before the Veterans Court. This is a complex operation, akin to a large law firm employing a staff of nearly 100 consisting of attorneys and a large complement of administrative professionals who run the docket room, computerized case-tracking system, and copy center, among other things. In order to comply with the Veterans Court's Rules of Practice and Procedure, Group VII prepares, serves and files copies of the record on appeal in cases before the Veterans Court, producing an average of more than one million photocopies per month. Group VII has experienced first hand the effects on its own resources of the increasing caseload before the Veterans Court. It is clear that the Veterans Court's caseload has increased continually since it opened its doors for business in 1989. Ten years ago, in Fiscal Year (FY) 1996, for example, the Veterans Court received 1,836 new cases. By contrast, in FY05, the Veterans Court received 4,364 new cases. So far this fiscal year, the Veterans Court is averaging in excess of 393 new cases per month. The number of cases pending decision at the beginning of June 2006 was 4,311. I fully expect the caseload to increase for a number of reasons. First, we at the Board are doing our utmost to increase the number of final decisions we produce. As you know, the mission of the Board of Veterans' Appeals (BVA or Board) is to conduct hearings and render high quality, timely and final decisions in appeals of claims for veterans benefits. The vast majority of appeals involve claims for disability compensation benefits, such as claims for service connection, an increased rating, or survivor's benefits, which were denied at the VA Regional Office level. In order for the Board to reach a fair and just decision in an appeal, the record must contain all evidence necessary to decide the appeal and reflect that all necessary due process has been provided. If the record does not meet these requirements, and the benefits sought cannot be granted, a remand for further development is necessary. Since a remand is a preliminary order and not a final decision on the merits, it generally may not be appealed to the Veterans Court. About three quarters of all remands are eventually returned to the Board for further consideration. It is those decisions in which the Board denies the appeal, in whole or in part, that the claimant may challenge by filing a Notice of Appeal with the Court. Hence, the Veterans Court's potential workload is directly dependent on the number of final decisions on the merits issued by the Board in which a benefit sought remains denied or, if allowed, was not granted to the fullest extent that the claimant is seeking. As the Board's then Acting Chairman, now Vice Chairman, Ron Garvin, testified before this Committee on May 26, 2005, two of the Board's most important initiatives are (1) to contain and reduce the backlog of appeals by increasing decision productivity, while maintaining high quality, and (2) to improve timeliness and service to veterans by eliminating avoidable remands in order to issue more final decisions. In regard to the latter initiative, In July 2004, Deputy Secretary Gordon Mansfield specifically directed both the Under Secretary for Benefits and Board's Chairman to do all within our power to eliminate avoidable remands. This effort required close cooperation between our organizations and the Deputy Secretary's office to develop and implement a comprehensive plan to respond to this directive. I am happy to report that we have had much success in working towards both these goals. While this is good news for the veterans we serve, who benefit from improved service, it has had the ancillary effect of increasing the universe of cases that may be appealed to the Court. To illustrate, in FY 03, the Board issued 31,397 decisions, with a remand rate of 42.6%. In FY 04, while the number of decisions issued increased to 38,371, the remand rate soared to 56.8%. In FY 05, during which we began working concertedly together with the Veterans Benefits Administration to avoid remands to the extent possible, we issued 34,175 decisions of which 38.6% were remanded in whole or part. So far in FY 06, through the end of May, we have issued 24,133 decisions, with a remand rate of 34.1%. We expect to issue about 38,000 decisions by the end of this Fiscal Year, while maintaining as low a remand rate as practicable. The result is that, over the last few years, there has been a significant increase in the number of BVA decisions that may be appealed to the Court. For example, although the Board issued 4,196 fewer decisions in FY 05 than in FY 04, the actual number of decisions in which all benefits sought were denied increased from 9,300 in FY 04 to 13,032 in FY 05. While the number of cases in which a grant of benefits was awarded by the Board also increased during this time, from 6,560 in FY 04 to 7,096 in FY 05, some of these decisions involve a grant of less than all the benefits sought and therefore may be appealed to the Court on those issues. This trend is likely to continue, especially since the Board's workload continues to grow. The Board received 39,956 cases in FY 04, 41,816 cases in FY 05, and expects to receive 43,000 cases in both FY 06 and FY 07. Other factors that may affect the increase in appeals to the Veterans Court are not so readily quantifiable. There is a heightened awareness among veterans of their access to the judicial process. It appears that veterans have become increasingly knowledgeable about their right to appeal to the Veterans Court and are increasingly willing to avail themselves of that right. In addition, there have been changes in the jurisprudence that have influenced the caseload. The courts have determined that the Veterans Court possesses authority to consider petitions for extraordinary relief under the All Writs Act, which has led to a significant amount of work at the Veterans Court. Additionally, the Federal Circuit has played a significant role in increasing the number of appeals at the Veterans Court by applying the "equitable tolling doctrine" to untimely appeals. On perhaps a smaller scale, cases like Bates v. Nicholson, 398 F.3d 1355 (Fed. Cir. 2005) or Meakin v. West, 11 Vet.App. 183 (1998), have expanded the jurisdiction of the Board of Veterans' Appeals and, hence, created the potential for additional cases to be appealed to the Veterans Court. Statutory changes, too, have played an important role. For example, the Equal Access to Justice Act was amended in 1992, in order to authorize the Veterans Court to award fees and expenses to veterans' attorneys. Thereafter, the caseload at the Veterans Court jumped monumentally. Over 20% of the Veterans Court's docket in FY05 was comprised of such fee applications, and that percentage is holding true this year, as well. Another instance was the elimination of the date of filing of the "notice of disagreement" limitation of the Court's jurisdiction, which had been originally enacted in the Veterans' Judicial Review Act to help control the workload of the Veterans Court. The statutory amendment that adopted the "postmark rule" for calculating timeliness of appeals has also had an impact on the Veterans Court's docket. Enactment of the Veterans Claims Assistance Act ("VCAA") has had an enormous impact on the work of the Veterans Court. It is no secret that VCAA remands have been ping-ponging between the Veterans Court and the Department of Veterans Affairs for nearly six years. This is due, in part, to extensive litigation regarding the scope and meaning of the legislation, as well as the reluctance by the Veterans Court to "take due account of the rule of prejudicial error" in making its determinations. 38 U.S.C. § 7261(b)(2). I recognize that this has been a rather contentious issue and one that is currently the subject of ongoing litigation. I can offer only that, if the Court were able to employ this rule to its fullest, it may be able to reduce its workload by rendering more final decisions, rather than remands, in appropriate cases. Ultimately, this would better serve our Nation's veterans. It also should be noted that there have been occasional spikes in the number of new cases over the years that can be attributed to organized efforts to present particular legal issues to the courts. For example, over the last few years the docket of the Veterans Court and the docket of the Federal Circuit have been crowded with cases involving the question of dual ratings for so-called "bilateral" tinnitus. There have been hundreds of such cases filed in the Veterans Court. Such temporary spikes are difficult to predict and can be difficult to manage. Finally, all of us involved in the adjudication system agree that cases have grown more complex, with more numerous issues and much larger records to review and consider. Even a case with just a few simple issues takes more time to process, when, as is increasingly common, the record on appeal may constitute thousands and thousands of pages. When there are changes in law, such as a statutory enactment like the VCAA or issuance of a new precedent by a court, there might be dozens or even hundreds of cases that must be re-briefed, thereby delaying the ultimate decision in those cases. Because of the change in law, many of the cases will be remanded to VA by the Veterans Court and then be returned to the Court on appeal, increasing its workload. If a case is scheduled for oral argument, preparing for oral argument delays processing of other cases while the subject case receives priority treatment. The number of cases scheduled for oral argument has doubled over recent years, and that trend is predicted to continue. All of these factors can contribute to a backlog on the Veterans Court. No doubt the Veterans Court is cognizant that its decisions, even in routine cases, are very important to those veterans who have been waiting for their "day in court." Moreover, precedents issued by the Veterans Court can have a profound and wide-ranging impact on the Department's adjudication system. These factors call for careful deliberation and consistency, which, in turn, affects the amount of time spent on each case. With respect to potential remedies, it is notable that the Veterans Court is evaluating new means for alleviating or managing the press of business. For example, several years ago it adopted new procedures to reduce the amount of time expended by the parties' motions for continuances. It also reinforced its rules governing submission of pleadings, in order to deal with a rise in the filing of facially unsubstantiated writ petitions. We understand that the Veterans Court is currently considering a fundamental change to the procedures for preparing the record on appeal, which will speed the submission of cases to the judges for decision, and that the Veterans Court is also studying the feasibility of electronic filing. The Veterans Court could take better advantage of tools already available to it. For example, the Veterans Court could adopt procedures that welcome, rather than deter, summary motions in appropriate cases. We are hopeful that the plan to revamp the preparation of the record on appeal, which is currently under study, will facilitate the filing of summary motions. As noted above, the Court could be expansive in taking account of the rule of prejudicial error in reviewing the Board's determinations, avoiding remands where justice will permit. The Veterans Court could also be more open to the idea of consolidating cases or granting motions to stay cases, when there is a commonality of issues. In the instance of the tinnitus rating cases, for example, the Veterans Court did not consolidate the majority of the cases on its docket, nor did it grant the Secretary's motions to stay proceedings pending resolution of certain lead cases. Because the cases were permitted to proceed individually, there was an unnecessary expenditure of resources in the individual tinnitus cases and an avoidable diversion of time and resources from other cases on the docket of the Veterans Court. These changes would affect cases that have already been filed. As noted earlier, however, the sheer number of potentially appealable decisions from the Board of Veterans' Appeals is staggering. The problem of backlogs will be a theme that continues into the future, unless steps are taken to meaningfully reduce the actual number of appeals or to employ an expeditious means to dispose of them. Mr. Campbell and I would be pleased to answer any questions you or your colleagues might have. SOURCE: http://www.va.gov/OCA/testimony/svac/06071301.asp

US Code as of: 01/23/00 Sec. 7107. Appeals: dockets; hearings • (a) • (1) Except as provided in paragraphs (2) and (3) and in subsection (f), each case received pursuant to application for review on appeal shall be considered and decided in regular order according to its place upon the docket. • (2) A case referred to in paragraph (1) may, for cause shown, be advanced on motion for earlier consideration and determination. Any such motion shall set forth succinctly the grounds upon which the motion is based. Such a motion may be granted only - • (A) if the case involves interpretation of law of general application affecting other claims; • (B) if the appellant is seriously ill or is under severe financial hardship; or • © for other sufficient cause shown. • (3) A case referred to in paragraph (1) may be postponed for later consideration and determination if such postponement is necessary to afford the appellant a hearing. • (b) The Board shall decide any appeal only after affording the appellant an opportunity for a hearing. • © A hearing docket shall be maintained and formal recorded hearings shall be held by such member or members of the Board as the Chairman may designate. Such member or members designated by the Chairman to conduct the hearing shall, except in the case of a reconsideration of a decision under section 7103 of this title, participate in making the final determination of the claim. • (d) • (1) An appellant may request that a hearing before the Board be held at its principal location or at a facility of the Department located within the area served by a regional office of the Department. • (2) A hearing to be held within an area served by a regional office of the Department shall (except as provided in paragraph (3)) be scheduled to be held in accordance with the place of the case on the docket under subsection (a) relative to other cases on the docket for which hearings are scheduled to be held within that area. • (3) A hearing to be held within an area served by a regional office of the Department may, for cause shown, be advanced on motion for an earlier hearing. Any such motion shall set forth succinctly the grounds upon which the motion is based. Such a motion may be granted only - • (A) if the case involves interpretation of law of general application affecting other claims; • (B) if the appellant is seriously ill or is under severe financial hardship; or • © for other sufficient cause shown. • (e) • (1) At the request of the Chairman, the Secretary may provide suitable facilities and equipment to the Board or other components of the Department to enable an appellant located at a facility within the area served by a regional office to participate, through voice transmission or through picture and voice transmission, by electronic or other means, in a hearing with a Board member or members sitting at the Board's principal location. • (2) When such facilities and equipment are available, the Chairman may afford the appellant an opportunity to participate in a hearing before the Board through the use of such facilities and equipment in lieu of a hearing held by personally appearing before a Board member or panel as provided in subsection (d). Any such hearing shall be conducted in the same manner as, and shall be considered the equivalent of, a personal hearing. If the appellant declines to participate in a hearing through the use of such facilities and equipment, the opportunity of the appellant to a hearing as provided in such subsection (d) shall not be affected. • (f) Nothing in this section shall preclude the screening of cases for purposes of - • (1) determining the adequacy of the record for decisional purposes; or • (2) the development, or attempted development, of a record found to be inadequate for decisional purposes.

IN THE UNITED STATES COURT OF VETERANS APPEALS NAME OF VETERAN, ) ) Petitioner, ) ) v. ) VA File No. C 22 147 726 ) JESSE BROWN, ) Secretary of Veterans Affairs,) ) Respondent. ) VERIFIED PETITION FOR EXTRAORDINARY RELIEF IN THE NATURE OF A WRIT OF MANDAMUS MOTION FOR ATTORNEY'S FEES, COSTS AND EXPENSES UNDER EQUAL ACCESS TO JUSTICE ACT Pursuant to U.S. Vet.App. R. 21, the Petitioner, NAME OF VETERAN, petitions this Court for extraordinary relief in the nature of a writ of mandamus, directed to Respondent, Jesse Brown, Secretary of Veterans Affairs, and its employees and agents in the United States Department of Veterans Affairs; specifically C. J. Matuszak, Adjudication Officer, Winston-Salem, North Carolina Department of Veterans Affairs Regional Office. This action seeks to compel the Adjudication Officer at the Winston-Salem Regional Office to issue a Statement of the Case to support denial or an unresolved issue in a pending claim on the merits concerning whether the Appellant has been paid correctly for past due benefits pursuant to that letter from the Department of Veterans Affairs dated May 10, 1995 as sent to the Appellant. In the alternative, the Petitioner seeks a Rating Decision or Statement of the Case as to why the Appellant is not entitled to the money alleged by the Appellant and his counsel as set forth herein below. Further, this action seeks the opportunity to file a Petition for an award of attorney's fees, costs and expenses under § 2412 of Title 28, United States Code, the Equal Access to Justice Act, in that there is no regulatory justification for the agency of original jurisdiction (AOJ) and the AOJ refusal to issue payment of the monies, issue a Rating Decision, or in the alternative, issue a Statement of the Case. In support of this verified petition, Petitioner alleges the following: THE PARTIES 1. Petitioner, NAME OF VETERAN (hereafter the "veteran"), is a seventy percent (70%) service-connected disabled veteran who now receives individual unemployability and who resides in Bethel, North Carolina. 2. Respondent, Jesse Brown, is the Secretary for the United States Department of Veterans Affairs, and is named herein solely in his official capacity. 3. Respondent, C. J. Matuszak, is the Adjudication Officer in the Adjudication Section of the Winston-Salem, North Carolina Regional Office and is named herein solely in his official capacity. JURISDICTION 4. This Court has jurisdiction over the subject matter of this action under the All-Writs Act, 28 U.S.C. § 1651(a), the general supervisory authority of the U.S. Court of Veterans Appeals over the VA and Board of Veterans' Appeals (BVA) conferred by the Veteran's Judicial Review Act of 1988, Public Law 100-687, 102 Stat. 4105 (11/18/88), 38 U.S.C. § 7251-7292, as amended, and in aid of the Court's potential jurisdiction over the Petitioner's future claims, 38 U.S.C. §§ 7252, 7261(a). Erspamer v. Derwinski, 1 Vet.App. 3 (1990). This Court has jurisdiction to award attorney fees, costs and expenses under the EAJA (28 U.S.C. § 2412), as do all courts established under Article I of the United States Constitution. See Essex Electro Engineers, Inc. v. U.S., 757 F. 2d 247, 251 (Fed.Cir. 1985) and U.S. Navy-Marine Corps Ct. of Mil. Rev. v. Cheney, 29 M.J. 98 (CMA 1989). FACTS 1. On May 10, 1995, the Appellant received a letter from the Winston-Salem Regional Office assigning him certain schedular ratings for service-connected disabilities as set forth in the letter. Basically, the Appellant's bipolar pes planus with calluses was raised from 30% to 50% and the Appellant was granted depressive disorder for 30% for a combined total of 70%. Further, the Appellant was granted individual unemployability as a result of the pes planus or depressive disorder. Said letter is attached hereto as Exhibit A, containing three pages. 2. The Rating Decision granting such benefits containing three pages is attached hereto as Exhibit B. 3. On October 18, 1995, counsel for the Appellant gave notice of appeal to the Regional Office indicating that the Appellant had not been paid correctly based on calculations made at that time. A copy of said letter and calculations are attached hereto as Exhibit C. 4. A copy of the Appellant's contract with his counsel is attached hereto as Exhibit D. 5. On October 18, 1995, counsel for the veteran filed a motion to receive correct attorney's fees in disagreement with that Rating Decision of August 8, 1995, which denied attorney's fees to Appellant's counsel, attached hereto as Exhibit E. 6. On October 17, 1995, the veteran gave notice of appeal to the Board of Veterans' Appeals related to the issues that he had not been paid correctly nor had his issues ever been resolved. A copy is attached hereto as Exhibit F. 7. On October 17, 1995, the veteran submitted a Statement of Specific Issues related to the Veteran's Judicial Review Act and whether the Department of Veterans Affairs had acted in bad faith or deceit under the circumstances. A copy is attached hereto as Exhibit G. 8. On October 19, 1995, the Appellant signed a Notice of Disagreement or disagreement related to his appeal to the Board of Veterans' Appeals that he did not agree with the evaluation of his pes planus disagreement. Such issue has never been resolved as of this date. 9. The current status of said case is now before the United States Court of Veterans Appeals awaiting Appellee's response in the matter. The last action in said case before the United States Court of Veterans Appeals was Appellant's Unopposed Motion for Extension of Time until February 7, 1997 granted on January 9, 1997. Because of counsel's professional relationship with the 027C Group at the Office of the General Counsel, counsel has always readily granted motions for extension of time. 10. On February 25, 1997, the case entitled, "In the Matter of the Fee Agreement of James W. Stanley, Jr.", CVA 96-0017 was decided by the United States Court of Veterans Appeals specifically related to the issue of attorney's fees, payment thereof, and the relationship of 38 C.F.R. § 20.609© and 38 U.S.C. § 5904©. 11. On March 7, 1997, counsel moved for a Summary Reversal in said case based on the case entitled, "In the Matter of the Fee Agreement of James W. Stanley, Jr.,", as cited above and requested that the Court order the Department of Veterans Affairs to pay the 20% contingency fee owed to counsel since there was no issue. To date, the Office of the General Counsel has not responded to said Motion. ARGUMENT General Law As the Court noted in Erspamer v. Derwinski, 1 Vet.App. at 9-10, a petitioner seeking an extraordinary writ, such as a writ of mandamus, must demonstrate both a clear and indisputable entitlement to the writ and the lack of an adequate alternative means to obtain the requested relief. A writ of mandamus is a drastic remedy, one to be invoked in only extraordinary circumstances. In Re: Quigley, 1 Vet.App. 1 (1990). (Quoting from In the Matter of the Fee Agreement of Smith, 4 Vet.App. 487, 500 (1993)) Clear Entitlement to the Writ As the facts demonstrate, the claim for correct payment of benefits pursuant to M21-1 to the veteran should not be in dispute by the General Counsel nor the Secretary. The Department of Veterans Affairs did not follow its own regulations regarding appropriate payment. There is an administrative failure on the part of the Secretary to apply the correct statutory and regulatory provisions to the correct and relevant facts and correct payment per Oppenheimer v. Derwinski, 1 Vet.App. 370, 371 (1991). The failure of the DVA to follow the correct regulations is "[t]he sort of error which, had it not been made, would have manifestly changed the outcome at the time it was made." Russell v. Principi, 3 Vet.App. 310, 313-14 (1992). Clearly, the veteran gave Notice of Disagreement to the decision related to payment of his benefits within the one year period allowed by statute and by regulation. The DVA continues to ignore the claim of the veteran for both increased benefits based on his pes planus as well as correct payment of his benefits. A thorough examination of Title 38 of the Code of Federal Regulations reveals that the general guidelines for the Department of Veterans Affairs are required to give notification of decisions affecting benefits. 38 C.F.R. § 3.103(b) states: (b) The right to notice-(1) General. Claimants and their representatives are entitled to notice of any decision made by VA affecting the payment of benefits or the granting of relief. Such notice shall clearly set forth the decision made, any applicable effective date, the reason(s) for the decision, the right to a hearing on any issue involved in the claim, the right of representation and the right, as well as the necessary procedures and time limits, to initiate an appeal of the decision. 38 C.F.R. § 3.103(f) further expands the requirements of notice stating: (f) . . . The claimant or beneficiary and his or her representative will be notified in writing of decisions affecting the payment of benefits or granting relief. All notifications will advise the claimant of . . . the right to initiate an appeal by filing a Notice of Disagreement which will entitle the individual to a Statement of the Case for assistance in perfecting an appeal. . . . This section of Title 38 of the United States Code requires that when making a decision "affecting the provision of benefits to a claimant, the Secretary shall, on a timely basis, provide to the claimant, the Secretary shall, on a timely basis, provide to the claimant, (and to the claimant's representative) notice of such decision. The notice shall include an explanation of the procedure for obtaining review of the decision." 38 U.S.C. § 5104(a). 38 C.F.R. § 19.26 "Action by Agency of Original Jurisdiction on Notice of Disagreement," a regulation which governs the conduct of the VARO, states: "When a Notice of Disagreement is timely filed, the agency of original jurisdiction must reexamine the claim and determine if additional review or development is warranted. When a Notice of Disagreement is received following a multiple issue determination and it is not clear which issue, or issues, the claimant desires to appeal, clarification sufficient to identify the issue, or issues, being appealed should be requested from the claimant or his or her representative. If no preliminary action is required, or when it is completed, the agency of original jurisdiction must prepare a Statement of the Case pursuant to 19.29 of this part, unless the matter is resolved by granting the benefits sought on appeal or the Notice of Disagreement is withdrawn by the appellant and his or her representative." (emphasis added) 38 C.F.R. § 19.27 notes: "If, within the agency of original jurisdiction, there is a question as to the adequacy of a Notice of Disagreement, the procedures for an administrative appeal must be followed." Finally, 38 C.F.R. § 19.25 requires that: . . . the claimant and his or her representative, if any, will be informed of appellate rights. . . including the right to a personal hearing and the right to representation. The agency of original jurisdiction will provide this information in each notification of a determination of entitlement or non-entitlement to Department of Veterans Affairs benefits. The agency of original jurisdiction has a regulatory obligation to notify claimants of appellate rights, to provide for an administrative appeal if the Notice of Disagreement is in question, or "must prepare a Statement of the Case" following the filing of an adequate Notice of Disagreement. The veteran has sufficiently clarified the issue which should be appealed. Furthermore, the VA has not requested additional review or development. The veteran's counsel, unable to receive any response to his request for an SOC, is entitled by the statues and regulations to a decision. There has been no question raised by the agency of original jurisdiction that the NOD is inadequate and that an administration appeal is necessary. The Department of Veterans Affairs has point blank refused to accept the veteran's NOD, leaving the veteran unable to perfect his appeal to the BVA as is his right under the governing regulations. The VA should have informed the veteran and his representative of any appellate rights, including the right to a personal hearing, and issued an SOC. The VARO continues to fail to comply with their own regulation by refusing to do so. The veteran would then be able to pursue further appellate review as is his right by responding with an appeal. The veteran is clearly entitled to the adjudication the RO is refusing to complete or provide. Lack of Adequate Alternative Means The veteran has been deprived of any further adjudicative process by which to contest the inactivity by the VARO. The statements contained in the October 18, 1995 correspondence are the veteran's position and the VARO has taken no action. No SOC has been issued from which the veteran can now continue his appeal because the VA refuses to issue it despite the obligation to do so created by the statute. Petitioner/veteran has exhausted all available administrative remedies by filing appropriate requests for a decision on an unadjudicated issue, filing the mandatory NOD; further giving notice to the Regional Office that they had failed to render a decision on the unadjudicated issue and correct payments to the veteran. The Petitioner now files this petition for relief, which in and of itself is enough to bring this matter to the attention of the Secretary, and should effectively serve to exhaust any and all administrative remedies. The Petitioner has the better of the legal argument as the VA has shown no statutory or regulatory authority to refuse to take the actions which they have refused to take and the veteran satisfies the All Writs Act test for extraordinary relief by carrying the burden of showing a clear and indisputable entitlement to the writ, and a lack of an adequate alternative means to obtain the requested relief. See Nagler v. Derwinski, 1 Vet.App. 297, 303 (1991). Extraordinary Circumstances It is understood that a writ of mandamus is a drastic remedy to be invoked only in extraordinary circumstances. The Court has noted that the use of the All Writs Act in connection with agency matters has been even more rare and the scope of relief granted in these cases has been narrow. Erspamer, 1 Vet.App. at 7. The Court has stated: "[t]he circumstances that will justify our interference with non-final agency action must be truly extraordinary, for this Court's supervisory province as to agencies is not as direct as our supervisory authority over trial courts." Id. Veteran's request for a writ of mandamus falls within these narrow guidelines. The Court has noted that "All Writs" jurisdiction is particularly applicable where, as here, an alleged refusal to act would forever frustrate the ability of a court to exercise its appellate jurisdiction. 'The Court clearly has the power to issue writs under the All Writs Act in aid of its prospective appellate jurisdiction in the face of action. . . that would frustrate such prospective appellate jurisdiction.' Margolis v. Banner, 599 F.2d at 440-441." Erspamer, 1 Vet.App. at 8. There is clearly a refusal by the Winston-Salem VARO to act by refusing to issue a Statement of the Case and to pay the veteran the money he is owed pursuant to the VA's own regulations. This is not merely a matter of a delay in taking administrative action, or in resolving the veteran's claim, or an inadvertent failure to comply. Only the Court can now compel the agency of original jurisdiction to issue a Statement of the Case and to pay the veteran as he should be paid. The Court has recognized that sometimes a lawsuit is necessary as a "catalyst in prompting defendants to take action to meet plaintiff's claims. . . Lematta v. Brown, ___ Vet.App. ___, U.S. Vet.App. No. 93-923 (1/26/95). Failure to do so would forever frustrate the ability of the veteran to have his valid claim heard, and forever frustrate the ability of the Court to exercise its appellate jurisdiction. This Court has power to award attorney fees, costs and expenses to the Petitioner under the EAJA (28 U.S.C. § 2412). This law has been applied to actions before courts created under Article I of the Constitution of the United States. See Essex Electro Engineers, Inc. v. U.S., 757 F.2d 247, 251 (Fed.Circ. 1985) and U.S. Navy-Marine Corps Ct. of Mil. Rev. v. Cheney, 29 M.J. 98 (Ct. of Mil. Appeals 1989). The actions of the Winston-Salem VARO are without a basis in law or fact. No possible compelling reason exists for the absolute refusal to issue a Statement of the Case or to pay the veteran the money he is owed. Therefore, counsel for veteran should be given the opportunity to file a petition for attorney fees, costs and expenses in this action, as required by 28 U.S.C. § 2412(d)(1)(B). Nature of Relief Sought This action seeks the Court to issue a writ of mandamus compelling the Winston-Salem VARO to render a Statement of the Case or in the alternative, to pay the veteran as he should be paid. In the present circumstance, the veteran cannot pursue appellate relief by the BVA, and if necessary, by this Court; or in the alternative, a formal rating decision with written notification of that decision, thus allowing the veteran to pursue appellate review or appeal to the Board of Veterans' Appeals. This action also seeks the Court's allowance to file a petition for an award of attorney fees, costs and expenses under the EAJA (28 U.S.C. § 2412) in that there was no substantial justification, or support in regulation for the unreasonable refusal of the Winston-Salem VARO to issue a Rating Decision or a Statement of the Case in this matter. CONCLUSION It is respectfully requested that this Court issue an order directed to the Respondents and their counsel to answer Petitioner's Petition and show cause why the relief prayed for in this action should not be granted. Petitioner prays that a writ of mandamus be issued under the seal of this Court commanding the Respondents to produce a Rating Decision or a Statement of the Case based upon the Notice of Disagreement filed by the veteran/Petitioner, or in the alternative, command the Respondent to issue a Rating Decision in response to the veteran/Petitioner's claim; that the Court grant the Petitioner the opportunity to file a petition for an award of attorney fees, costs and expenses incurred in bringing this Petition, under the EAJA; and that the Court grant such other and further relief as may be just and proper. Respectfully submitted this the ___ day of ______, 1997. ______________________________ Hugh D. Cox NC Bar #6567 Attorney for Petitioner 321 Evans Street Mall Suite 102 P. O. Box 154 Greenville, NC 27835-0154 Telephone: (919) 757-3977 FAX: (919) 757-3420 Internet: hcox@skantech.com Admitted to CVA 5 June 1990 V E R I F I C A T I O N STATE OF NORTH CAROLINA COUNTY OF PITT I, the undersigned, say: 1. I am an attorney who has been duly licensed to practice law in the courts of the State of North Carolina since _________, and am a member in good standing of the North Carolina State Bar. I am also a member of the Bar of the U.S. Court of Veterans Appeals, Federal Circuit Court of Appeals, the District of Columbia State Bar, and the U.S. District Court for the Eastern District of North Carolina. 2. I have read the attached Petition for Extraordinary Relief in the Nature of a Writ of Mandamus and I know its contents. The facts stated in the Petition are true to my own personal knowledge, except as to those stated upon information and belief, which I believe to be true. 3. I declare under penalty of perjury that the above is true and correct. EXECUTED on the _ day of ___, 1997, at Greenville, NC. ____________________________ Hugh D. Cox Attorney at Law Sworn to and subscribed before me this the following date: _______________________________ _____________________________ Doris V. Tyson, Notary Public My Commission expires: January 12, 1999 CERTIFICATE OF SERVICE (FOLLOWS BUT NOT INCLUDED) 1999 U.S. Vet. App. LEXIS 32, * [NAME], PETITIONER, v. TOGO D. WEST, JR., SECRETARY OF VETERANS AFFAIRS, RESPONDENT. No. XX-XXXX UNITED STATES COURT OF VETERANS APPEALS 1999 U.S. Vet. App. LEXIS XXXXX January 1999, Decided NOTICE: [*1] PURSUANT TO U.S. VET. APP. R. 28(i), THIS ACTION MAY NOT BE CITED AS PRECEDENT. DISPOSITION: Petitioner's motion for extraordinary relief in the nature of mandamus DENIED and petitioner's motion to file for fees and expenses to be paid under the Equal Access to Justice Act, 28 U.S.C. § 2412, DENIED. CORE TERMS: mandamus, convalescent, Justice Act, issue a writ, indisputable, knee, extraordinary relief, surgery JUDGES: Before WILLIAM P. GREENE, JR., Judge. OPINIONBY: WILLIAM P. GREENE, JR. OPINION: ORDER On December 4, 1998, the petitioner filed a petition for extraordinary relief in the nature of mandamus, and a motion for attorney fees and expenses under the Equal Access to Justice Act, 28 U.S.C. § 2412. As grounds for his petition, he asserts that on December 30, 1997, convalescent payments, awarded to him following a total knee replacement surgery, were terminated by the Winston-Salem, North Carolina, VA Regional Office (RO). He states that in March 1998, he sought assistance from the RO regarding the termination of his benefits, that in April 1998, he sought assistance from his congressman, and that in July 1998, he made application and sought benefits from the RO to continue his convalescence benefits. Also in July 1998, he requested that the VA Inspector General investigate this matter. In September [*2] 1998, the petitioner states that he required a second surgery on his knee. He states that to date, the RO has refused to issue a decision regarding reinstatement of his convalescent benefits. He requests that the Court issue a writ of mandamus compelling the RO to render a rating decision on his request for convalescent benefits so that he may pursue the appellate process, should that be necessary. "The remedy of mandamus is a drastic one, to be invoked only in extraordinary situations." Kerr v. United States District Court, 426 U.S. 394, 402, 48 L. Ed. 2d 725, 96 S. Ct. 2119 (1976). Before a court may issue a writ, petitioners must demonstrate that: (1) they have a clear and indisputable right to the writ and (2) they lack adequate alternative means to obtain the relief they seek. Erspamer v. Derwinski, 1 Vet. App. 3, 9 (1990). The mere passage of time in reviewing a matter does not necessarily constitute the extraordinary circumstances requiring this Court to invoke its mandamus power. Bullock v. Brown, 7 Vet. App. 69 (1994). The delay involved, in this case only a matter of months since the formal application in July 1998, must be unreasonable before this Court will [*3] inject itself into VA's adjudicative process. The petitioner has neither shown a clear and indisputable right to the writ, nor alleged that administrative remedies have been exhausted. On consideration of the foregoing, it is ORDERED that the petitioner's motion for extraordinary relief in the nature of mandamus is DENIED. Accordingly, it is further ORDERED that the petitioner's motion to file for fees and expenses to be paid under the Equal Access to Justice Act, 28 U.S.C. § 2412, is DENIED. DATED: January 6, 1999 BY THE COURT: WILLIAM P. GREENE, JR. Judge

Term: Writ of Mandamus Definition: A writ of mandamus is an order issued by a court to compel an agency to act on a decision that has been unreasonably withheld. It is used in the VA context when the VA simply does nothing on a claim after you have asked that it be decided. It cannot be used to compel a particular result -- say, service connection -- only that the VA go up or down on it.

Hello sixthscents, You seem fairly sharp about VA proceedures. Do you work or volinteer at the veterans affairs or for a national service organization? Allan

: http://veterans.senate.gov/index.cfm?FuseA...CurrentHearings <http://veterans.senate.gov/index.cfm?FuseAction=Hearings.CurrentHearings&rI D=943&hID=250> &rID=943&hID=250 Hearing: VA Claims Adjudication Process STATEMENT OF JAMES P. TERRY, also see full statement at: DANIEL L. COOPER http://veterans.senate.gov/index.cfm?FuseA...CurrentHearings <http://veterans.senate.gov/index.cfm?FuseAction=Hearings.CurrentHearings&rI D=943&hID=249> &rID=943&hID=249 Hearing: VA Claims Adjudication Process STATEMENT OF DANIEL L. COOPER UNDER SECRETARY FOR BENEFITS DEPARTMENT OF VETERANS AFFAIRS BEFORE THE SENATE COMMITTEE ON VETERANS' AFFAIRS March 7, 2007 partial reprint below..due to length In addition, the aging of the veteran population that is service connected for diabetes adds to the complexity of claimed disabilities. Approximately 253,000 veterans are service connected for diabetes, with more than 220,000 of these awards based upon the presumption of herbicide exposure in Vietnam. As veterans with diabetes reach and move past the 10-year point since the initial diagnosis, additional secondary conditions tend to become manifest. VA has already begun seeing increasingly complex medical cases involving neuropathies, vision problems, cardio-vascular problems, and other issues directly related to diabetes. If secondary conditions are not specifically claimed by a veteran, the rating specialist must be alert to identify them. This increasing complexity of the disabilities adds to the increased difficulty of our workload and the resources needed to adequately process it. The number of veterans submitting claims for post-traumatic stress disorder (PTSD) has grown dramatically and contributed to increased complexity in claims processing. From FY 2000 through FY 2006, the number of veterans receiving compensation for PTSD has increased from more than 130,000 to nearly 270,000. These cases present unique processing requirements to obtain the evidence needed to substantiate the event causing the stress disorder ******* Appellate and Non-Rating Workload A significant portion of VBA's workload comes from appeals of regional office decisions, remands by the Board and the CAVC, and account maintenance activities for beneficiaries already receiving benefits. As overall claim receipts increase, so do appellate and non-rating related workloads. As VBA renders more disability decisions, a natural outcome of that process is more appeals filed by veterans and survivors who disagree with some part of the decision made in their case. Veterans can appeal decisions denying service connection for any conditions claimed. They may also appeal the effective date of an award and the evaluation assigned to a disability. Appeals of regional office decisions and remands by the Board and the CAVC following appeal are some of the most challenging types of cases to process because of their complexity and the growing body of evidence necessary to process these claims. In recent years, the appeal rate on disability determinations has climbed from an historical rate prior to 2000 of approximately 7 percent of all disability decisions to the current rate of 11 percent. There are more than 130,000 appeals now pending in the regional offices and the Appeals Management Center. This number includes cases requiring processing prior to transfer of the appeal to the Board and cases remanded by the Board and the CAVC following an appeal. There are over 30,000 additional appeals pending at the Board of Veterans' Appeals. In 2006, VA completed over two million award actions of all types. Of that number, more than 774,000 were award actions in connection with disability rating decisions, and the remaining were associated with account maintenance (dependency adjustments, death pension awards, income adjustments, etc.). The number of veterans on our rolls has increased by nearly 400,000 in recent years, and the total number of veterans and survivors on our rolls is now over 3.6 million. The combination of the higher number of beneficiaries presently on our rolls and the sustained and projected high levels of new claims activity will result in continued growth in account maintenance activities [Non-text portions of this message have been removed] __._,_.___ Messages in this topic (1) Reply (via web post) | Start a new topic Messages "Keep on, Keepin' on" Dan Cedusky, Champaign IL "Colonel Dan" See my web site at: http://www.angelfire.com/il2/VeteranIssues/

fwd from Colonel Dan Veterans' health care fiasco a long time coming Posted by the Asbury Park Press <http://www.app.com/> on 03/11/07 http://www.app.com/apps/pbcs.dll/article?A...N/703110304/103 0 BY CHRISTOPHER H. SMITH Contrite, apologetic and vowing change, top Army brass came to Capitol Hill last week promising reform in the wake of devastating reports of substandard care at Walter Reed Army Medical Center. General after general apologized profusely, while at the same time asserting there were no warning signs about the gross mismanagement, excessive red tape and inadequate conditions that wounded soldiers seeking outpatient care at the hospital have been subjected to for years. Excuse me for remaining skeptical about their contentions. The problems at Walter Reed are a microcosm of the problems I have warned my colleagues and the administration about for years regarding health care for our veterans and service personnel. The fiasco at Walter Reed was avoidable. For too long, Congress and executive branches headed by both parties have sought ways to cut corners and skimp on health care for our wounded servicemen and women, as well as our nation's veterans. Health care cannot be provided on the cheap. If you do not invest in modern facilities, adequate staffing levels and necessary equipment, you end up with inadequate care. In military and Department of Veterans Affairs medical systems, that maxim is worsened by excessive bureaucratic red tape. During my 24 years on the House Veterans Affairs Committee and my time as chairman from 2000 to 2004, I constantly ran into barriers in my efforts to modernize the VA health care system and ensure a seamless transition for wounded servicemen and women as they left Department of Defense-operated hospitals and sought continued care in VA facilities. I worked to pass legislation to promote information sharing between the Defense Department and VA medical systems to reduce bureaucratic delays - just like those experienced by soldiers at Walter Reed - only to see those programs shortchanged by congressional appropriators. I authored and saw legislation to overhaul outdated VA facilities pass in the House in 2001, but it died in the Senate. A similar bill I wrote finally became law two years later, but during that two-year lag, conditions only deteriorated further at many VA facilities. Despite these obstacles, I led the fight that successfully increased funding for veterans health care by 42 percent over four years. After years of study, research and investigation, I knew that more still needed to be done to close the gap between the health care needs of veterans and the funds provided to properly address those needs. When push came to shove, in July of 2003, I urged my colleagues on the committee to dig in our heels and tried to force the leaders of Congress to provide the necessary $1.2 billion that our research showed was necessary to adequately fund VA health care programs. I convinced 59 of my Republican colleagues - including five committee chairmen - and only 50 Democrats to join me in voting against the leadership's proposed VA spending bill because it did not include enough money to cover the shortfall. As a result of that vote, my Republican colleagues who joined me lost funding for their district projects, I lost my chairmanship and - worst of all - veterans lost much-needed resources to provide essential medical care. Within six months of losing my chairmanship, however, the Bush administration and Congress were forced to admit that the funds provided were short for that year - the exact amount that the VA committee under my leadership had predicted. My argument was - and continues to be - that the needs of veterans must come first in the queue for funding. If you are not here for those who volunteer to put their lives on the line for our safety and security, then you do not belong in Congress. Whether it be proper compensation for a service-connected injury or disease, a lifeline to our homeless vets or cutting edge research for traumatic brain and spinal cord injuries, post-traumatic stress disorder or those in need of world-class prosthetics, Congress has a sacred obligation to meet those needs. One way to meet this commitment is to reform the funding mechanisms for VA and military health care. Medical needs comprise half of the VA budget, yet it is this portion of the department's budget that receives discretionary funding that has been consistently shortchanged. Programs like the GI Bill are funded through mandatory spending mechanisms. Education benefits from the GI Bill will be funded at up to $37,000 per participant this year and that money will be there. Surprisingly, the same cannot be said for crucial VA health care programs. The funds for the health care programs are not set and are instead politicized every year. The amounts budgeted by the administration and Congress for veterans' health care vary annually and the total eventually appropriated by Congress is often radically different than the budget request. However, one thing has remained constant in recent years - the final amount allocated to veterans' health care has consistently been low-balled. I will continue to work to change this inequity and ensure mandatory, full and predictable funding for VA health care. Let's change the process. Let the actuaries and health care professionals at VA - not the Office of Management and Budget - tell us what is needed. That same approach should be mandated for Defense Department health care spending. When it comes to budgeting for health care, timeliness, predictability and delivery are as important as funding levels. It is time for years of unheeded recommendations to be acted on. No more excuses. We must honor our commitment in more than words. We must honor our obligation in deeds - and most importantly in this case - in funding. Christopher H. Smith, a Republican, is in his 27th year representing the 4th Congressional District, which includes parts of Monmouth and Ocean counties. [Non-text portions of this message have been removed] "Keep on, Keepin' on" Dan Cedusky, Champaign IL "Colonel Dan" See my web site at: http://www.angelfire.com/il2/VeteranIssues/

fwd from Kelly http://www.2ndbattalion94thartillery.com:8...alChallenge.htm Peripheral Neuropathy Official Challenge to the Government with Associations to Herbicide Exposures Below are the downloads for my challenge on PN. The PN.doc is 113 pages so if you are on dial up it will take a few minutes. The cover letter for the submittal I am still working on. Therefore, it is TBD. I am sending this challenge to congress, two members of the IOM, and most of the major media outlets. I do not know if Dr. Birnbaum might want one also. With this submittal and the completion of the VERPA Challenge already sent to on CD to those folks, I think that is about all I can do in this issue for all of us. I have let my battalion guys down on our 2/94th website to take on what I considered a more important task for all Veterans and their widows. I will take some time off to fight my own battle with the VA (at least get them to recognize a 27 year marriage) and get my battalion site back up to speed. Moreover, I hope work with Congressman Filner on some of our issues. That remains in limbo at this time and unknown if that will happen. I intend to finish my "failure modes and effects matrix" (no time line) on the immune system damages that were found in other Vietnam Veteran studies as well as civilian studies on dysregulated cytokines and such. Just out of curiosity if nothing else. Just in overview, I found some positive associations already. I think that is the key for most of these issues. Whether induction of liver p450 enzymes is the real root cause failure or not? I doubt we will know in our lifetime. Too much government interference and chemical company lobby money in DC to try and find a root cause that may trigger any or all of these issues depending on the individual. Like what caused the analog immune response switch to go totally digital or become confused and when one response is needed the other response is excited or the immune system is so damaged it cannot respond appropriately or effectively. I will be following the new discovery of the pancreas insulin islets being affected by damaged sensory nerves creating not only Type 1 but also insulin resistance in Type II. The study indicated they should have some more definitive data in about 18 months. That could certainly address the issues of diabetes as it applies to our nerve damages first and then diabetes. I hope that proves out just so we can say we told you so! The data for PN is overwhelming in many studies including the newly pronounced flawed Ranch Hand study. If they found that much and it was flawed towards the government side, who really knows what the Odds Ratios and p-values really are “of difference” and “dioxin associations.” I thought if we could just win one issue, we could create some science reports similar to this one on the other issues being denied as well. As most of you know, I tried for at least three years now to point out that Ranch Hand assumptions on exposures was totally flawed. IOM and our congress would not listen. Now they have it from the horses mouth (the lead DoD scientists) the damn thing as it relates to our statistical real issues is a piece of crap. When I reviewed other studies and found that even those study scientists were questioning why Ranch Hand was not finding the cancers and the heart and vascular issues; as well as other issues that they found associated. I think now it is clear they were finding these issues and more. Using flawed assumptions, the statistics were as one scientist said “predictable.” Just like the Air Force wanted them to be with the scientific misconduct that was has gone on for 25 years now. Like comparing a red delicious apple with another one and saying, I see little difference. The other important issue, at least in my opinion, the other studies were not limited to just skin exposures (actual boots on the ground) and certainly found what we have been saying for years now. I should have this challenge in the mail next week. Will it do any good? I doubt it very seriously but I had to try. I do not think our congress has much intestinal fortitude to make Veterans Affairs do much of anything and all the folks that have corrupted the study since day one, even from the Surgeon General’s office, are protected against prosecution for scientific misconduct. The world as a whole had so much to learn by the sacrifices of so many about the causes of cancers, heart issues, metabolism issues, immune system responses, and our government for the sake of the dollar and campaign money, in my opinion, blew it. Not only for the "Nations Very Best" but the entire world of medicine. http://www.2ndbattalion94thartillery.com/P...NCoverSheet.doc http://www.2ndbattalion94thartillery.com/P...CoverLetter.doc http://www.2ndbattalion94thartillery.com/PNChallenge/PN.doc Kelley

UNITED STATES COURT OF VETERANS APPEALS No. 90-583 Freddy, http://webisys.vetapp.gov/ISYSquery/IRLEF2...tmp/6/doc" Freddy J_ Odiorne, Appellant,_ Freddy J_ Odiorne, Appellant BVA 90-11724, at 9. The Board, although concluding that appellant is not precluded from all forms of substantially gainful employment, failed to give reasons or bases for its determination. Although the Board stated that appellant's "unemployed status does not establish that he is unemployable, since lack of employment may result from a variety of causes, not consistent with unemployability," it is appellant's contention that the sole cause of his current unemployment and his inability to find any new employment is his left-knee disability. In his "Statement in Support of Claim," he mentioned that the pain in his knee is severe enough that it has caused [him] problems in finding a job. I have been unemployed since 1986; and can find no employer who will hire me, master's degree included. I have applied through city, county, [and] state agencies, has [sic] no hiring offers from any of them. I cannot stand [one] minute without severe pain - that's why I had to quit coaching in 1985 . R. at 87. The Board must address appellant's allegations and discuss why it finds appellant employable. See 38 C.F.R. • 4.17 (1991). In evaluating appellant's pension claim, the Board must also give more attention to the decision of the Department of Health and Human Services (Social Security). Although the Social Security decision regarding appellant's unemployability is not controlling for purposes of a final VA determination, it is relevant to the present claim. See Collier v. Derwinski, 1 Vet.App. 413, 417 (1991); Murincsak v. Derwinski, 2 Vet. App. 363, 370 (1992). The evidence is relevant to the determination of appellant's ability to secure and follow a substantially gainful occupation under 38 C.F.R. • 4.17. As we stated in Collier: [T]he BVA cannot ignore or disregard relevant evidence in the record. See Webster v. Derwinski, 1 Vet.App. 155, 159 (1991). If it discredits evidence, the BVA must give adequate reasons or bases for doing so. See Sammarco v. Derwinski, 1 Vet.App. 111, 112 (1991); Gilbert v. Derwinski, 1 Vet.App. 49, 56-57 ( 1990) (quoting International Longshoremen's Assoc. v. National Mediation Board, 870 F.2d 733, 735 (D.C.Cir. 1989)). Collier, 1 Vet.App. at 416. In evaluating employability claims, debilitating pain should also be considered pursuant to 38 C.F.R. • 4.59 ( 1991). See Hatlestad v. Derwinski, 1 Vet.App. 164, 169-70 (1991); Martin v. Derwinski, 1 Vet.App. 411, 413 (1991). Here neither the rating board nor the BVA addressed appellant's pain in its evaluations. III. Conclusion For the reasons stated above, the decision of the BVA is AFFIRMED as to appellant's left-knee condition but VACATED as to the Board's erroneous finding of fact that appellant's left-knee arthritis was not present until 15 years after service and as to appellant's pension claim, and those matters are REMANDED for proceedings consistent with this opinion.

M21-1-6 Rating Board Procedures 1.01 GENERAL a. Acceptable Medical Evidence. A statement from any physician that includes clinical manifestations and substantiation of diagnosis by findings of diagnostic techniques generally accepted by medical authorities, such as pathological studies, X-rays, and laboratory tests as appropriate, may be accepted for rating any claim without further examination, provided it is otherwise adequate for rating purposes. See chapter 11 regarding audiological examinations, and 38 CFR 3.326(d) generally. b. Requests for Examination. Request an examination if the evidence of record is insufficient for rating all of the claimed and noted disabilities. Apply a liberal interpretation of "reasonable probability." The rating activity has sole responsibility to request examination of claimants, except in the following instances: (1) Adjudication personnel who are not rating specialists may request examinations in connection with claims for pension at the discretion of the Adjudication Officer. See part III, paragraph 5.21. (2) The Adjudication Officer may authorize an examination in any case in which he or she believes an examination is warranted. c. Nonveteran Claimants and Beneficiaries. Although field examinations may be authorized as necessary, schedule examination of a nonveteran claimant only at the request of the Adjudication Officer or in the following instances: (1) To determine if the claimant is entitled to aid and attendance or housebound benefits. (2) To determine if the claimant was insane at the time he or she caused the death of the veteran. See pt. IV, subpar. 11.10d. (3) To determine if a child claimant is helpless and/or incompetent. (4) To determine the competency status of any beneficiary. d. Disabilities Subject to Periodic Exacerbation and Improvement. Whenever possible, examinations of disabilities subject to periodic exacerbation and improvement, such as skin conditions and other disabilities listed in 38 CFR 3.344, should be scheduled when the conditions would be most disabling. If there is specific information that a disability is worse at predictable times, the examination should be scheduled based on that information. For example: The examining facility may be asked to examine the veteran at the end of the day based on information that the symptoms are worse after work. For a disability subject to periodic flare-ups, where the record contains insufficient information to schedule an examination during a peak period of disability, the veteran should be asked to provide information as to the peak periods of the disability. He or she should also be asked to contact the regional office when the condition worsens. If the veteran received treatment for the worsened condition, he or she should be asked to submit evidence of the treatment. (See Bowers v. Brown, 2 Vet. App. 675, 676 (1992) and Ardison v. Brown, 2 Vet. App. 405 (1994).) Chronic fatigue syndrome, like many other disabilities, is not necessarily stable and may improve. Schedule review examinations to determine residual disability. e. Accompanying Claims Folders. Claims folders will not routinely accompany requests for examination to the examining facility. Exceptional circumstances, such as POW exams or BVA remands, may warrant claims folder review by the examiner.

Department of Memorandum Veterans Affairs Date: May 21, 2003 VAOPGCPREC 1-2003 From: General Counsel (022) Subj: Impact of Disabled American Veterans v. Secretary of Veterans Affairs, Case Nos. 02-7304, -7305, -7316 (Fed. Cir. May 1, 2003) To: Chairman, Board of Veterans’ Appeals (01) QUESTIONS PRESENTED: A. What effect does the decision of the United States Court of Appeals for the Federal Circuit in Disabled American Veterans v. Secretary of Veterans Affairs, Case Nos. 02-7304, -7305, -7316 (Fed. Cir. May 1, 2003) (DAV decision), have on the authority of the Board of Veterans’ Appeals (Board) to develop evidence with respect to cases pending before the Board on appeal? B. May the Board adjudicate claims where new evidence has been obtained if the appellant waives initial consideration of the new evidence by first-tier adjudicators in the Veterans Benefits Administration (VBA)? C. What effect does the DAV decision have on the Board’s authority to send claimants the notice required by 38 U.S.C. § 5103(a) in cases pending before the Board on appeal? D. Is the Board required to identify and readjudicate any claims decided before May 1, 2003 (the date of the DAV decision) in which the Board applied the regulatory provisions that the Federal Circuit held invalid in the DAV decision? COMMENTS: 1. On May 1, 2003, the Federal Circuit issued the DAV decision, which invalidated two regulatory provisions authorizing the Board to carry out certain responsibilities of the Department of Veterans Affairs (VA) under the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096. First, the Court invalidated 38 C.F.R. § 19.9(a)(2), which provides that, if further evidence, clarification of the evidence, correction of a procedural defect, or any other action is essential for a proper appellate decision, a Board Member or panel of Members may “[d]irect Board personnel to undertake the action essential for a proper appellate decision.” The Court concluded that this provision was contrary to 38 U.S.C. § 7104(a), which provides that “[a]ll questions” in a matter subject to decision by the Secretary shall be subject to “one review on appeal” to the Secretary, with the final decision on such appeals being made by the Board. The Court held that, if the Board obtained new evidence and rendered a decision on the basis of such evidence without obtaining a waiver from the claimant, such action would deprive the claimant of “one review” of the additional evidence. 2. The Court also invalidated 38 C.F.R. § 19.9(a)(2)(ii), which states: If the Board undertakes to provide the notice required by 38 U.S.C. 5103(a) and/or § 3.159(b)(1) of this chapter, the appellant shall have not less than 30 days to respond to the notice. If, following the notice, the Board denies a benefit sought in the pending appeal and the appellant submits relevant evidence after the Board’s decision but before the expiration of one year following the notice, that evidence shall be referred to the agency of original jurisdiction. If any evidence so referred, together with the evidence already of record, is subsequently found to be the basis of an allowance of that benefit, the award’s effective date will be the same as if the Board had granted the benefit in the appeal pending when the notice was provided. The Court concluded that this provision is contrary to 38 U.S.C. § 5103(b), which provides that, when VA notifies a claimant of information or evidence the claimant must submit to substantiate the claim, “if such information or evidence is not received by the Secretary within one year from the date of such notification, no benefit may be paid or furnished by reason of the claimant’s application.” The Court concluded that the thirty-day period referenced in § 19.9(a)(2)(ii) “may lead unsuspecting claimants to believe that they must supply the requested evidence within thirty days,” and that the regulation therefore fails to notify the claimant “that he or she has a full year to submit the evidence and still be within the statutory one-year time period.” The Court also held that § 19.9(a)(2)(ii) was misleading as applied to circumstances where a claimant submits evidence after the Board has denied the claim but before expiration of the one-year period, because it does not specify whether the additional evidence must be “new and material” before it can be considered in such circumstances. The Court stated that, “[a]lthough § 19.9(a)(2)(ii) permits the appellant to submit evidence to the [agency of original jurisdiction] after the Board denies a benefit, it prejudices claimants by not providing the statutory one-year period to submit evidence before the Board denies the claim, because under 38 U.S.C. § 7104(b), the Secretary is authorized to reopen such claims only ‘if new and material evidence is presented or secured.’” 3. The first question presented in the opinion request concerns the impact of the DAV decision on the Board’s ability to develop evidence with respect to claims before it on appeal. Although the Federal Circuit invalidated the regulatory provision authorizing the Board to undertake evidentiary development, the Court’s opinion cannot be read to hold that the Board is prohibited from seeking to obtain new evidence. The Court invalidated 38 C.F.R. § 19.9(a)(2) based on its conclusion that 38 U.S.C. § 7104(a) prohibits the Board from adjudicating a claim with new evidence in the absence of a waiver by the appellant. The Federal Circuit’s holding invalidating section 19.9(a)(2) must be read in the context of the Court’s decision. The decision clearly indicates the Court’s conclusion that section 7104(a) prohibits the Board from considering additional evidence without remanding or obtaining a waiver. For example, the Court’s stated conclusion was that section 19.9(a)(2) is invalid “because . . . it allows the Board to consider additional evidence without having to remand the case . . . and without having to obtain the appellant’s waiver.” (Emphasis added.) In its discussion of that issue, the Court stated that the regulation “is inconsistent with 38 U.S.C. § 7104(a), because § 19.9(a)(2) denies appellants ‘one review on appeal to the Secretary’ when the Board considers additional evidence without having to remand . . . and without having to obtain the appellant’s waiver.” (Emphasis added.) The Court’s discussion and conclusion clearly reflect the view that it is the Board’s consideration of new evidence, rather than the mere act of obtaining new evidence, that the Court found to be contrary to law. The Court did not purport to decide the distinct question of whether the Board generally has authority to obtain evidence, and its decision cannot be read as holding that the Board lacks authority to develop evidence. Because the decision rested on the narrow ground that the Board may not initially decide a claim based on new evidence, absent a waiver, we conclude that the decision does not preclude the Board from developing evidence with respect to an appealed claim, subject to the caveat that the Board may not adjudicate the claim based on new evidence unless it obtains the appellant’s waiver. 4. The language of 38 C.F.R. § 19.9(a), as affected by the Court’s decision, does not preclude the Board from obtaining evidence on appeal. Taking into account the Court’s invalidation of section 19.9(a)(2), the surviving provisions of section 19.9(a) provide that, if further evidence is essential for a proper appellate decision, the Board “may . . . [r]emand the case to the agency of original jurisdiction.” The permissive term “may” makes clear that the regulation was not intended to foreclose other actions consistent with the Board’s statutory and regulatory authority. Although the regulation will have to be amended in light of the Court’s decision, we conclude that the surviving language of the regulation does not prevent the Board from obtaining evidence to the extent permissible under current law. 5. Section 5103A of title 38, United States Code, directs the Secretary of Veterans Affairs to make reasonable efforts to assist claimants in obtaining the evidence necessary to substantiate their claims. The statute does not limit this duty to VBA proceedings, nor does it specify or limit the VA personnel who may carry out the duty to assist on behalf of the Secretary. The United States Court of Appeals for Veterans Claims has held that the Board is bound by the duty to assist and is required to seek to obtain relevant evidence of which it has notice. See Holland v. Brown, 6 Vet. App. 443, 448 (1994); Murincsak v. Derwinski, 2 Vet. App. 363, 373 (1992). No statute prohibits the Board from directly providing the assistance required by 38 U.S.C. § 5103A before remanding a claim for a decision with respect to any additional evidence obtained through such assistance. As the Federal Circuit noted in the DAV decision, “the Board is an agent of the Secretary, as are the [agencies of original jurisdiction].” See also Jackson v. Principi, 265 F.3d 1366, 1370 (Fed. Cir. 2001). Accordingly, the Board may be authorized to carry out the Secretary’s duty to assist under section 5103A. 6. The fact that the Board is an appellate body does not preclude it from carrying out the duty to assist with respect to evidentiary development. Unlike appellate courts, appellate administrative bodies ordinarily may obtain or accept additional evidence. See 2 Am. Jur. 2d Administrative Law §§ 372, 375 (2000). Several statutes and regulations authorize the Board to obtain various types of evidence. See 38 U.S.C. §§ 7107(b), 7109(a); 38 C.F.R. §§ 2.2, 2.3, 20.700, 20.901(a), (b), and (d). Congress has voiced approval of VA regulations authorizing the Board to obtain evidence in the form of medical opinions from Veterans Health Administration physicians and has indicated that such evidentiary matters are within VA’s authority and discretion. See S. Rep. No. 87-1844 (1962), reprinted in 1962 U.S.C.C.A.N. 2585, 2586 (“this is a matter within Agency discretion and ample authority for this practice now exists”); see also Explanatory Statement on Compromise Agreement on Division A, 134 Cong. Rec. S16650 (1988), reprinted in 1988 U.S.C.C.A.N. 5834, 5842 (“[t]he Committees also note with approval the current practice of obtaining [independent medical expert] opinions through the Department of Medicine and Surgery.”). 7. We believe there is sufficient authority under existing statutes and regulations for the Board to request and obtain evidence with respect to cases on appeal, subject to the caveat that the Board may not decide the claim based on any new evidence so received unless the claimant waives VBA consideration. The provisions of 38 U.S.C. § 5103A directing “the Secretary” to assist claimants in obtaining evidence may reasonably be construed to vest the Board with authority to take such actions. As noted above, the Board is an agent of the Secretary and acts on behalf of the Secretary with respect to claims before the Board. Moreover, the CAVC’s precedents establish that the Board is required to carry out the Secretary’s duty to assist. See Holland, 6 Vet. App. at 448; Murincsak, 2 Vet. App. at 373. VA’s regulations implementing the statutory duty to assist provide that “VA” will assist claimants, and the regulations make no distinction between VBA and the Board. 38 C.F.R. § 3.159. The CAVC has indicated that the regulations in 38 C.F.R. Part 3 generally apply to the Board unless they clearly indicate otherwise. See Douglas v. Derwinski, 2 Vet. App. 435, 441 (1992) (en banc). The Board’s actions in requesting and obtaining evidence would be consistent with 38 U.S.C. § 5103A and 38 C.F.R. § 3.159 and would not contravene any other procedural requirements of statute or regulation. Moreover, the Board’s actions would be beneficial to claimants in that they would implement the Secretary’s duty to assist expeditiously without the delay that would otherwise result from employing a remand and transferring the claims folder before efforts to locate the necessary evidence could commence. 8. We note also that 38 C.F.R. §§ 2.2 and 2.3 delegate to several VA officials, including the Board Chairman, the authority to “aid claimants in the preparation and presentation of claims,” and to “require the production of books, papers, documents, and other evidence,” among other things. This authority derives from 38 U.S.C. § 5711, which is captioned “Authority to issue subpoenas” and is located in subchapter II of chapter 57 of title 38, United States Code, which pertains to “Investigations.” Although the caption and location of this provision may suggest that it has no bearing on assistance in evidentiary development for benefit claims, we believe it is relevant to the Board’s authority to develop evidence in benefit claims. The plain language of section 5711 and the implementing regulations makes clear that the authority provided by those provisions is not limited to issuing subpoenas, but includes the authority to “aid claimants in the preparation and presentation of claims.” See 38 U.S.C. § 5711(a)(4), 38 C.F.R. § 2.3(a). The statutory provisions derive from legislation enacted in 1936, long predating VA’s statutory duty to assist, and appear to have been designed to provide permissive authority to aid VA in determining the validity of claims for benefits. See Act of June 29, 1936, ch. 867, § 300, 49 Stat. 2031, 2033. The delegation of authority to the Board Chairman has been in effect since 1984. Although that delegation preceded the enactment of the duty to assist currently stated in 38 U.S.C. § 5103A, its plain terms provide delegated authority for the Board to take actions necessary to obtain evidence with respect to benefit claims. 9. In view of the issuance and subsequent invalidation of 38 C.F.R. § 19.9(a)(2), it may be advisable to clarify through rule making or other appropriate means that the Secretary’s authority to develop evidence under section 5103A is delegated to the Board with respect to claims on appeal to the Board. Even if section 5103A were ambiguous as to whether the Board is authorized to obtain evidence, there is little doubt that the Secretary could delegate his authority under section 5103A to the Board as well as to VBA. See 38 U.S.C. § 512(a) (Secretary may assign functions and duties and delegate authority to act with respect to all laws administered by VA, to such officers and employees as the Secretary may find necessary); Splane v. Secretary of Veterans Affairs, 216 F.3d 1058, 1066 (Fed. Cir. 2000) (Secretary may delegate authority to Board). We believe, however, that the Board may develop claims in advance of publication of any such rules or delegations. As explained above, existing statutes and regulations provide authority for the Board to obtain evidence with respect to claims and the actions of the Federal Circuit in the DAV case did not restrict that authority. Further, inasmuch as the suggested delegation would pertain merely to procedural matters and the internal assignment of responsibilities, it would not be subject to the notice-and-comment procedures or the effective-date provisions of the Administrative Procedures Act (APA). See 5 U.S.C. § 553(b)(3)(A) (exempting “rules of agency organization, procedure, or practice”). For similar reasons, the effectiveness of the delegation would not be conditioned on advance publication in the Federal Register under 5 U.S.C. § 552(a). See Splane, 216 F.3d at 1065 (the requirement for publication attaches only to matters that, if not published in the Federal Register, would adversely affect a member of the public); United States v. Hoyland, 960 F.2d 94, 96 (9th Cir. 1992) (“the APA does not require publication of delegation orders”); Hogg v. United States, 428 F.2d 274, 280 (6th Cir. 1970) (§ 552 “does not require that all internal delegations of authority . . . must be published in order to be effective”). 10. Your opinion request raises the question of whether the Board may continue to develop evidence in claims in which development was initiated by the Board prior to May 1, 2003, when the DAV decision was issued, even if the DAV decision is construed to preclude the Board from initiating development action in any other cases after May 1, 2003. For the reasons explained above, we believe that the Board has authority to undertake evidentiary development with respect to claims before it irrespective of whether such development had been initiated prior to May 1, 2003. In view of this conclusion, it is unnecessary to analyze specifically whether the Board may continue development in the more limited class of cases in which the Board initiated development prior to May 1, 2003. We note that judicial decisions generally apply retroactively to all cases still open on direct review. See Harper v. Virginia Dept. of Taxation, 509 U.S. 86, 97 (1993). Accordingly, if the DAV decision had foreclosed the Board from obtaining evidence, that holding would have applied to all pending appeals, including those in which the Board had previously begun gathering evidence. However, because we find that the DAV decision did not restrict the Board’s authority to develop evidence, the Board is free to develop evidence in claims in which such development was initiated prior to May 1, 2003, just as it is free to do so in claims in which development is initiated after that date. 11. The second question raised in the opinion request concerns whether the Board may consider new evidence obtained on appeal if the appellant waives initial consideration by VBA. We conclude that the Board may do so. The Board’s rules historically permitted the Board to consider in the first instance additional evidence submitted by a claimant on appeal if the appellant waived initial consideration of such evidence by the relevant first-tier adjudicator. See 38 C.F.R. § 20.1304© (2001). The provision relating to waivers was removed from section 20.1304© at the same time 38 C.F.R. § 19.9 was revised to provide for the Board’s development and consideration of additional evidence. See 67 Fed. Reg. 3099, 3105 (2002). In the DAV decision, the Federal Circuit held that 38 C.F.R. § 19.9(a)(2) was invalid because “in conjunction with the amended rule codified at 38 C.F.R. § 20.1304, it allows the Board to consider additional evidence without having to remand the case to the [agency of original jurisdiction] for initial consideration and without having to obtain the appellant’s waiver.” Because remand to VBA for initial consideration and obtaining a waiver are mutually exclusive events, clearly the Court contemplated that obtaining a waiver would be sufficient to permit the Board to consider new evidence without a remand. Thus, implicit in that holding is the conclusion that the Board may consider additional evidence when the claimant has waived remand to VBA for initial consideration. 12. The Federal Circuit’s implicit conclusion with respect to waivers comports with the well-established principle that “[a] party may waive any provision either of a contract or of a statute, intended for his benefit.” Shutte v. Thompson, 82 U.S. 151, 159 (1872); see Janssen v. Principi, 15 Vet. App. 370, 374 (2001). The fact that VA’s regulations no longer contain an express reference to an appellant’s ability to waive VBA consideration does not preclude the Board from recognizing such waivers. The Supreme Court has made clear that individuals always have the right to waive statutory provisions intended for their benefit, irrespective of whether a statute or regulation expressly provides for such waiver. See United States v. Mezzanatto, 513 U.S. 196, 200-01 (1995) (“Rather than deeming waiver presumptively unavailable absent some sort of express enabling clause, we instead have adhered to the opposite presumption. . . . [A]bsent some affirmative indication of Congress’ intent to preclude waiver, we have presumed that statutory provisions are subject to waiver by voluntary agreement of the parties.”). 13. In Janssen, the CAVC indicated that, for a waiver to be effective, the claimant “must first possess a right, he must have knowledge of that right, and he must intend, voluntarily and freely, to relinquish or surrender that right.” 15 Vet. App. at 374. Accordingly, in considering waivers, the Board must ensure that the appellant is fully aware of the right to initial VBA consideration and that he or she knowingly and voluntarily intends to relinquish that right. The CAVC indicated that waivers are permitted “where the appellant is represented by counsel,” but did not address the issue of whether an appellant not represented by an attorney also may waive his or her rights. Id. We note, however, that the Supreme Court has repeatedly indicated that unrepresented parties, including pro se criminal defendants, may waive rights intended for their benefit. See, e.g., Godinez v. Moran, 509 U.S. 389, 399-400 (1993) (waiver of right to counsel); Adams v. United States, 317 U.S. 269, 275-81 (1942) (waiver of right to jury trial). The Court has explained: The question in each case is whether the [person] was competent to exercise an intelligent, informed judgment -- and for determination of this question it is of course relevant whether he had the advice of counsel. But it is quite another matter to suggest that the Constitution unqualifiedly deems [a person] incompetent unless he does have the advice of counsel. Adams, 317 U.S. at 277. The Court further stated that, “[w]hat were contrived as protections . . . should not be turned into fetters,” and that a claimant’s informed decision to forego certain procedural protections generally should be respected “even though, in deciding what is best for himself, he follows the guidance of his own wisdom and not that of a lawyer.” Id. at 275, 279. An unrepresented claimant certainly may be competent to weigh the benefits and burdens associated with remand and to conclude, knowingly and intelligently, that he or she would prefer to forego remand. Consistent with the Supreme Court’s precedents, we believe that unrepresented claimants may waive procedural rights, provided their decision is informed and voluntary. 14. The third question presented by the opinion request concerns the impact of the DAV decision on the Board’s authority to provide claimants the notice required by 38 U.S.C. § 5103(a) in cases pending before the Board on appeal. For essentially the same reasons stated above with respect to the Board’s development of evidence, we conclude that the DAV decision does not preclude the Board from sending the notice required by section 5103(a), although the decision will require changes in the content of any notice the Board sends to claimants. The Federal Circuit invalidated 38 C.F.R. § 19.9(a)(2)(ii) based on its conclusion that the reference in that regulation to a period of “not less than thirty days” to respond to a request for information or evidence was inconsistent with section 5103(b), which, the Court held, provides a period of one year for the submission of requested information or evidence. The Court further stated that the regulation improperly failed to specify whether evidence submitted after a final Board decision but before expiration of the statutory one-year period would have to be new and material to be considered by VA. The Court’s decision does not preclude the Board from sending the notice required by section 5103(a), but only precludes the Board from requiring a response to the notice within less than one year or, at a minimum, clearly preserving the claimant’s right to submit the requested information or evidence within one year. 15. The surviving provisions of 38 C.F.R. § 19.9(a)(2) state that the Board “may” remand a case when necessary to cure a procedural defect, but do not foreclose the Board from taking other permissible actions necessary to cure a defect in providing notice under section 5103(a). The plain language of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159 directs “the Secretary” and “VA” to provide the required notice and, as explained above, would ordinarily be construed to apply to the Board as well as to VBA. Further, the Board’s actions in providing notice required by section 5103(a) would be consistent with the authority delegated to the Board Chairman in 38 C.F.R. § 2.3(a) to “aid claimants in the preparation and presentation of claims.” Accordingly, the existing statutes and regulations may reasonably be construed to authorize the Board to provide the notice required by 38 U.S.C. § 5103(a) on behalf of the Secretary. A specific delegation to the Board of the Secretary’s authority to issue notice under section 5103(a) would, of course, clarify this matter and remove the need for interpretation of the statute and regulation to discern the Board’s authority. We note that the question of whether the section-5103(a) notice is sent by the Board or by VBA involves only matters of procedure and assignment of responsibility within VA and thus would not be subject to the notice-and-comment procedures or effective-date provisions of 5 U.S.C. § 553. For those reasons, and because claimants would not be adversely affected by receiving the notice from the Board rather than VBA, any such delegation could be given effect in advance of publication in the Federal Register. Of course, the content of any notice sent by the Board must conform to the requirements of the DAV decision. 16. The fourth question presented by the opinion request concerns whether the Board is required to identify and readjudicate any claims decided before May 1, 2003 (the date of the DAV decision) in which the Board applied the regulatory provisions that the Federal Circuit held invalid in the DAV decision. We conclude that the Board is not required to do so. In VAOPGCPREC 9-94, we held that judicial decisions invalidating VA regulations or statutory interpretations do not have retroactive effect with respect to claims that had been finally decided before the court’s decision was rendered. That conclusion reflects the Supreme Court’s consistent view on the effect of judicial precedents. See Reynoldsville Casket Co. v. Hyde, 514 U.S. 749, 758 (1995) (“[n]ew legal principles . . . do not apply to cases already closed”); Harper, 509 U.S. at 97 (judicial precedents apply retroactively to “cases still open on direct review”); Pittston Coal Group v. Sebben, 488 U.S. 105, 121-23 (1988) (in invalidating agency regulations, it was improper to order agency to readjudicate prior decisions which had become final under governing statutes); Chicot County Drainage Dist. v. Baxter State Bank, 308 U.S. 371 (1940) (judicial decision finding statute unconstitutional does not permit relitigation of cases previously and finally decided under that statute). We note, however, that under both the DAV decision and the invalidated provisions of 38 C.F.R. § 19.9(a)(2)(ii), even claimants who have received final Board decisions may submit requested information or evidence within one year after the date of the notice requesting such information or evidence. Although the Board is not required to seek out and review finally denied claims, VA would be required to review even a finally denied claim if the claimant submits requested information or evidence within the one-year period specified by 38 U.S.C. § 5103(b). HELD: A. The decision of the United States Court of Appeals for the Federal Circuit in Disabled American Veterans v. Secretary of Veterans Affairs, Case Nos. 02-7304, -7305, -7316 (Fed. Cir. May 1, 2003) (DAV decision), does not prohibit the Board of Veterans’ Appeals (Board) from developing evidence in a case on appeal before the Board, provided that the Board does not adjudicate the claim based on any new evidence it obtains unless the claimant waives initial consideration of such evidence by first-tier adjudicators in the Veterans Benefits Administration (VBA). Existing statutes and regulations may reasonably be construed to authorize the Board to develop evidence in such cases. If considered necessary or appropriate to clarify the Board’s authority, the Secretary of Veterans Affairs may expressly delegate to the Board the authority to develop evidence in accordance with 38 U.S.C. § 5103A. B. The Board may adjudicate claims where new evidence has been obtained if the appellant waives initial consideration of the new evidence by VBA. C. The DAV decision does not prohibit the Board from issuing the notice required by 38 U.S.C. § 5103(a) in a case on appeal before the Board. Existing statutes and regulations may reasonably be construed to authorize the Board to provide the required notice in such cases. If considered necessary or appropriate to clarify the Board’s authority, the Secretary of Veterans Affairs may expressly delegate to the Board the authority to issue notice required by 38 U.S.C. § 5103(a). The content of any notice issued by the Board must adhere to the requirements of 38 U.S.C. § 5103 as described by the Federal Circuit in the DAV decision. D. The Board is not required to identify and readjudicate any claims decided by the Board before May 1, 2003 (the date of the DAV decision) in which the Board applied the regulatory provisions that the Federal Circuit held invalid in the DAV decision. However, if a claim was finally denied by the Board and the claimant subsequently submits requested information or evidence within one year after the date of the request, the Department of Veterans Affairs must review the claim. Tim S. McClain

http://www.warms.vba.va.gov/admin21/m21_1/part6/chg110.doc presumptive service connection does not preclude consideration of direct service connection when medical nexus has been provided. Veterans Benefits Administration M21-1, Part VI Department of Veterans Affairs Change 110 Washington, DC 20420 February 5, 2004 Veterans Benefits Manual M21-1, Part VI, “Rating Board Procedures,” is changed as follows: Page 7-i: Remove this page and substitute page 7-i attached. Pages 7-IV-1 through 7-IV-11: Remove these pages and substitute pages 7-IV-1 through 7-IV-12 attached. Paragraph 7.20c is revised to reflect that chloracne and chronic lymphocytic leukemia are not subject to the provisions of 38 CFR 3.816 (the Nehmer Stipulation) show May 8, 2001 as the effective date that Type 2 diabetes mellitus was added to the list of presumptive diseases associated with herbicide exposure, and add chronic lymphocytic leukemia to the list of presumptive diseases, effective October 16, 2003. Paragraph 7.20d is revised and rewritten to show that 38 CFR 3.816 was added effective September 24, 2003 to provide guidance for awarding benefits under the Nehmer litigation provide definitions of “Nehmer class members” and “covered herbicide diseases” under 38 CFR 3.816 state the eligibility and effective date provisions of 38 CFR 3.816 provide additional examples of Nehmer claims reflect that Type 2 diabetes mellitus was added to the list of presumptive diseases in 38 CFR 3.309(e) effective May 8, 2001, rather than July 9, 2001 clarify that the estate of the deceased Nehmer class member’s falls last in the line of succession for payment of unpaid benefits show that development for other survivors is required before the unpaid benefits can be released, and remove the instructions to notify payees of the Nehmer district court order. RESCISSION: Change 67 Change 90 By Direction of the Under Secretary for Benefits Ronald J. Henke Director, Compensation and Pension Service Distribution: RPC: 2068 FD: EX: ASO and AR (included in RPC 2068) LOCAL REPRODUCTION AUTHORIZED February 5, 2004 M21-1, Part VI Change 110 CHAPTER 7. RATING PROCEDURES FOR SPECIFIC ISSUES CONTENTS PARAGRAPH PAGE SUBCHAPTER I. SERVICE CONNECTION 7.01 Service Connection--Direct or Presumptive 7-I-1 7.02 Determination of Service Incurrence 7-I-2 7.03 Disabilities Related to Combat 7-I-3 7.04 Definition of Injury--38 U.S.C. 101(24) and 38 CFR 3.6(a) 7-I-3 7.05 Aggravation of Preservice Disability 7-I-3 7.06 Claims For Secondary Service Connection By Aggravation 7-I-4 SUBCHAPTER II. UNEMPLOYABILITY DETERMINATIONS IN COMPENSATION CASES 7.07 Individual Unemployability 7-II-1 7.08 Evidence Requirements 7-II-1 7.09 Rating Practices and Procedures 7-II-2 7.10 Multiple Injuries Incurred in Action or as Prisoner of War (POW) 7-II-4 7.11 Claims Requiring Central Office Approval 7-II-4 7.12 Control of Evaluations Based on Individual Unemployability 7-II-4 SUBCHAPTER III. UNEMPLOYABILITY DETERMINATIONS IN PENSION CASES 7.13 Requirements 7-III-1 7.14 Unemployability 7-III-1 7.15 Marginal Employment 7-III-3 7.16 Factors Relating to Unemployability or Marginal Employment of Farmers 7-III-4 7.17 Unemployment Due to Loss of Industry in the Community 7-III-4 7.18 Rating Practices and Procedures 7-III-5 SUBCHAPTER IV. ENVIRONMENTAL HAZARDS 7.19 Reconsideration of Previously Denied Claims Based on Exposure to Ionizing Radiation During Occupation of Hiroshima or Nagasaki or in Nuclear Testing 7-IV-1 7.20 Presumptive Diseases Associated With Exposure To Herbicide Agents 7-IV-1 7.21 Asbestos-Related Diseases 7-IV-5 7.22 Compensation for Disabilities Associated with Gulf War Service 7-IV-7 SUBCHAPTER V. POW RATINGS 7.23 Rating Claims Based on Prisoner of War Status 7-V-1 SUBCHAPTER VI. 38 U.S.C. 1151 RATINGS 7.24 Compensation or DIC under 38 U.S.C. 1151 7-VI-1 7-iFebruary 5, 2004 M21-1, Part VI Change 110 SUBCHAPTER IV. ENVIRONMENTAL HAZARDS 7.19 RECONSIDERATION OF PREVIOUSLY DENIED CLAIMS BASED ON EXPOSURE TO IONIZING RADIATION DURING OCCUPATION OF HIROSHIMA OR NAGASAKI OR IN NUCLEAR TESTING Veterans whose claims for service connection based upon exposure to ionizing radiation as a consequence of service with the occupation forces of Hiroshima or Nagasaki, Japan, or in connection with nuclear testing were denied prior to October 24, 1984, are entitled to a de novo review (a complete, new review) of their claims under Public Law 98-542, the "Veterans' Dioxin and Radiation Exposure Compensation Standards Act," which was enacted on October 24, 1984. New and material evidence need not be submitted to reopen these claims. 7.20 PRESUMPTIVE DISEASES ASSOCIATED WITH EXPOSURE TO HERBICIDE AGENTS a. Herbicide Agents. "Herbicide agent" means a chemical used in support of the United States and allied military operations in the Republic of Vietnam during the Vietnam era, specifically: 2,4-D; 2,4,5-T and its contaminant, TCDD; cacodylic acid; and picloram. (38 CFR 3.307(a)(6)(i)) b. Exposure. Unless there is affirmative evidence to the contrary, a veteran who served on active duty in the Republic of Vietnam during the Vietnam era is presumed to have been exposed to a herbicide agent. The last date of exposure is the last date on which he or she served in the Republic of Vietnam during the Vietnam era (38 CFR 3.307((a)(6)(iii)). Any exposure to herbicide agents in circumstances other than Vietnam service must be established on a factual basis. c. Presumptive Diseases (1) Requirements for Service Connection. In order to establish presumptive service connection, all diseases listed in 3.309(e) must become manifest to a degree of 10 percent or more after exposure. Chloracne (or other acneiform disease consistent with chloracne), porphyria cutanea tarda, and acute and subacute peripheral neuropathy must fulfill the 10 percent requirement within a year of last exposure to herbicides. Previously, respiratory cancers (cancers of the lung, bronchus, larynx, trachea) had to become manifest within 30 years of last exposure. Public Law 107-103 eliminated this requirement effective January 1, 2002. There is no time limit for the other listed diseases. (38 CFR 3.307((a)(6)(ii)) NOTE: The requirements for presumptive service connection do not preclude consideration of direct service connection when medical nexus has been provided. See 38 CFR 3.303(d). (2) Acute and Subacute Peripheral Neuropathy. When processing claims for service connection for acute and subacute peripheral neuropathy based on herbicide exposure, it is important to remember that "acute and subacute peripheral neuropathy" means transient peripheral neuropathy that appeared within one year of last exposure to an herbicide agent and resolved within two years of the date of onset. It does not include chronic peripheral neuropathy. A "zero percent" evaluation should not be assigned based on a history of acute and subacute peripheral neuropathy that manifested within one year of last exposure and resolved within two years of the date of onset. Absent proof of a present disability there can be no valid claim (see Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992)). Because any acute or subacute peripheral neuropathy will, by definition, resolve within a short time after exposure, any later-occurring peripheral neuropathy, whether transient or chronic, will not be presumed to be related to the prior herbicide exposure or the previously-resolved acute or subacute peripheral neuropathy. Claims of service connection for such later-occurring peripheral neuropathy should be evaluated under the ordinary standards governing direct service connection. 7-IV-1 M21-1, Part VI February 5, 2004 Change 110 (3) Dates of Entitlement. The diseases listed in 38 CFR 3.309(e) were made subject to presumptive service connection on the dates shown below: Effective Date Disability February 6, 1991* and *** Chloracne or other acneform disease consistent with chloracne February 6, 1991* Soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi’s sarcoma, or mesothelioma) February 6, 1991** Non-Hodgkin’s lymphoma February 3, 1994 Porphyria cutanea tarda, Hodgkin's disease June 9, 1994 Respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), multiple myeloma November 7, 1996 Prostate cancer, acute and subacute peripheral neuropathy May 8, 2001 Diabetes mellitus (Type 2) October 16, 2003*** Chronic lymphocytic leukemia Unless an earlier effective date is determined pursuant to the Nehmer Stipulation, the provisions pertaining to retroactive payment under 38 CFR 3.114(a) apply. * originally September 25, 1985 under section 3.311a ** originally August 5, 1964 under section 3.313 *** not subject to the provisions of 38 CFR 3.816 (See 7.20d.) (4) Conditions for which the Secretary has determined there is no positive association with herbicide exposure. Under the Agent Orange Act of 1991, the Secretary receives periodic reviews and summaries of the scientific evidence concerning the association between exposure to herbicides and diseases suspected to be associated with those exposures from the National Academy of Sciences (NAS). To the extent possible, NAS determines: (1) whether there is a statistical association between specific diseases and herbicide exposure; (2) the increased risk of disease among individuals exposed to herbicides in the Republic of Vietnam during the Vietnam Era; and (3) whether there is a plausible biological mechanism or other evidence that herbicide exposure causes specific diseases. Based on cumulative scientific data reported by NAS since 1993, the Secretary has determined that there is no positive association (i.e., the evidence for an association does not equal or outweigh the evidence against an association) between herbicide exposure and the following conditions: hepatobiliary cancers nasal and nasopharyngeal cancer bone cancers breast cancer cancers of the female reproductive system urinary bladder cancer renal cancer testicular cancer leukemia (other than chronic lymphocytic leukemia) reproductive effects (abnormal sperm parameters and infertility) Parkinson's disease 7-IV-2February 5, 2004 M21-1, Part VI Change 110 chronic persistent peripheral neuropathy lipid and lipoprotein disorders gastrointestinal and digestive disease (other than diabetes mellitus) immune system disorders circulatory disorders respiratory disorders (other than certain respiratory cancers) skin cancer cognitive and neuropsychiatric effects gastrointestinal tract tumors brain tumors amyloidosis d. The Nehmer Stipulation (38 CFR 3.816) (1) Background. Title 38 CFR 3.311a, which became effective on September 25, 1985, was the first VA regulation to provide guidance for the adjudication of claims based on dioxin exposure. In February 1987, a class action entitled Nehmer v. United States Veterans Administration, et al. was filed in the United States District Court for the Northern District of California. On May 3, 1989, the district court invalidated a portion of 38 CFR 3.311a. All denials on or after September 25, 1985 based on that regulation were voided, and a moratorium was placed on further denials. The moratorium was lifted on February 15, 1994. Effective September 24, 2003, 38 CFR 3.816 was added to provide guidance for awarding disability compensation and DIC benefits under the Nehmer litigation. (2) Nehmer Class Members. Nehmer class members under 38 CFR 3.816 include a veteran who served in the Republic of Vietnam during the Vietnam era who has a covered herbicide disease, and the surviving spouse, child, or parent of a deceased veteran who served in the Republic of Vietnam during the Vietnam era and died from a covered herbicide disease. (3) Covered Herbicide Disease. “Covered herbicide disease” under 38 CFR 3.816 means a disease for which VA has established a presumption of service connection before October 1, 2002 under the Agent Orange Act of 1991, other than chloracne. These diseases are Type 2 Diabetes (also known as type II diabetes mellitus or adult-onset diabetes) Hodgkin’s disease Multiple myeloma Non-Hodgkin’s lymphoma Acute and Subacute peripheral neuropathy Porphyria cutanea tarda Prostate cancer Respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), and Soft-tissue sarcoma (as defined in 38 CFR 3.309©). (4) Entitlement to Benefits. A Nehmer class member is entitled to disability compensation or DIC benefits under 38 CFR 3.816 if a claim for service-connected disability or death from a covered herbicide disease was (1) denied in a decision issued between September 25, 1985 and May 3, 1989, (2) pending on May 3, 1989 or, (3) received between May 3, 1989 and the effective date of the regulation establishing a presumption of service connection for the covered disease. Note: Minor differences in the terminology used in the prior decision will not preclude a finding, based on the record at the time of the prior decision, that the prior decision denied compensation for the same covered herbicide disease. (5) Effective Date. The effective date of compensation benefits under 38 CFR 3.816 is the date of receipt of the claim on which the prior denial was based or the date on which the disability arose, whichever is 7-IV-3M21-1, Part VI February 5, 2004 Change 110 later. The effective date of an award of DIC benefits under 38 CFR 3.816 is the later of the date of receipt of the prior claim or the date of the veteran’s death. Exceptions: If VA received the prior claim for compensation within one year after the veteran’s separation from service, the effective date of compensation is governed by 38 CFR 3.400(b)(2). If the prior claim for DIC was received within one year after the veteran’s death, the effective date of DIC is governed by 38 CFR 3.400©. Note: The provisions of 38 CFR 3.114(a) limiting effective dates to no earlier than the date of a liberalizing law or issue do not apply to benefits awarded under 38 CFR 3.816. Example 1: The veteran’s initial claim for lung cancer was received on August 4, 1985 and denied on November 19, 1985. Medical evidence showed a diagnosis of lung cancer in July 1985. In this case, the date of entitlement to benefits under 38 CFR 3.816 would be from the date of claim, August 4, 1985. If the claim had been denied prior to September 25, 1985, it would be unaffected by the Nehmer Stipulation, and the effective date would be governed by 38 CFR 3.114(a). Example 2: The veteran’s initial claim for service connection for lung cancer was received on October 14, 1992 and denied on December 23, 1992. Medical evidence showed a diagnosis of lung cancer in September 1992. Since the claim was received before June 9, 1994, the effective date of the presumption of service connection for lung cancer under 38 CFR 3.309(e), compensation benefits under 38 CFR 3.816 may be awarded from the date of claim, October 14, 1992. Example 3: On November 3, 1986, a veteran with Vietnam service died from Hodgkin's disease. His widow filed a claim for DIC on December 10, 1986, alleging that his death was related to Agent Orange exposure. On February 12, 1987, entitlement to DIC benefits was denied. The effective date for an award of DIC benefits would now be determined with reference to the date of claim, December 10, 1986. Since, in this case, the date of claim is within one year of the veteran's death, the date of eligibility would be the first day of the month in which the veteran's death occurred as required by 38 CFR 3.400©(2). (6) Scope of Retroactive Payment Provisions (a) No Requirement of a Claim That Specifically Mentions Herbicide Exposure. In its February 11, 1999 order the district court held that a Nehmer class member’s compensation or DIC claim need only have requested service connection for the condition in question to qualify as a Nehmer claim. It is not necessary that the claim have asserted that the condition was caused by herbicide exposure. Example: A veteran with Vietnam service filed a claim in 1994, expressly alleging that his prostate cancer was caused by exposure to ionizing radiation in service prior to his service in Vietnam. VA denied the claim in 1995. The veteran reopened the claim in 1997, and service connection was granted. On these facts, the effective date must relate back to the 1994 claim, even though the veteran alleged a different basis for service connection. (b) Porphyria Cutanea Tarda (PCT). Title 38 CFR 3.311a(d), which was published on October 21, 1991, stated that sound scientific and medical evidence did not establish a significant statistical association between herbicide exposure and PCT. A denial of PCT under 38 CFR 3.311a after October 20, 1991, was valid and an earlier effective date for benefits would not be assigned under 38 CFR 3.816. However, a claim for PCT which was denied between September 24, 1985, and October 21, 1991, would be considered for an earlier effective date under 38 CFR 3.816. © Type 2 Diabetes Mellitus. Effective May 8, 2001, Type 2 diabetes mellitus became subject to presumptive service connection under 38 CFR 3.309(e). Retroactive benefits under the Nehmer review may be warranted for claims for service connection for Type 2 diabetes filed or denied during the period from September 25, 1985 to May 7, 2001. If a prior claim did not involve service connection for Type 2 diabetes, it generally would not provide a basis for an earlier effective date. However, a lack of specificity in the initial claim may be clarified by later submissions. 7-IV-4February 5, 2004 M21-1, Part VI Change 110 Example 1: In January 1987, a veteran claimed compensation for hyperglycemia. In developing the claim, VA obtained medical records indicating that the veteran was diagnosed with Type 2 diabetes in February 1987. On these facts, it would be reasonable to treat the January 1987 claim as a claim for service connection of Type 2 diabetes. Under 38 CFR 3.816, benefits may be paid retroactive to the later of the date of that claim or the date the disability arose, as determined by the facts of the case. Example 2: In 1995, a veteran claimed compensation for hyperglycemia. Medical records obtained by VA indicated the veteran did not have Type 2 diabetes. In 2001, the veteran claimed compensation for Type 2 diabetes, submitting evidence showing that the condition was diagnosed in 1996. On these facts, the 1995 claim was not a claim for service connection of Type 2 diabetes, as neither the application nor the evidence of record suggested the presence of Type 2 diabetes. (d) Payment to the Survivors or Estate of a Nehmer Class Member 1. Identifying Appropriate Payee. If a Nehmer class member entitled under 38 CFR 3.816© and (d) dies before receiving the payment of retroactive benefits, award the unpaid benefits to the first individual or entity in existence in the following order: spouse; child or children (divided into equal shares, if more than one child exists), regardless of age or marital status; parents (divided in half, if both parents are alive); estate. Note 1: The survivor or estate of a Nehmer class member is not required to file an application in order to receive the unpaid benefits. Note 2: The provisions of 38 U.S.C. 5121(a) limiting payment of accrued benefits to amounts paid and due for a period not to exceed two years prior do not apply to payments under 38 CFR 3.816. 2. If Appropriate Payee Cannot Be Identified. If a class member is deceased and the claims file does not clearly identify an eligible survivor, use all available information in the file to determine an appropriate payee. For example, if the claims file identifies an authorized representative or relative, this person should be contacted for information on the existence of a surviving spouse, children, parents, or estate. If this development does not identify an appropriate payee, annotate the rating decision that it was not possible to locate any payee eligible for Nehmer payment. 3. Developing for Other Survivors. Before awarding benefits to an identified payee, ask the payee to state whether there are any other survivors of the class member who may have an equal or greater entitlement to payment under 38 CFR 3.816, unless the circumstances clearly indicate that such a request is unnecessary. If, after the claim is developed, the full amount of benefits is awarded to a payee, do not pay any portion of the amount to any other individual, unless the payment previously released can be recovered. 7.21 ASBESTOS-RELATED DISEASES a. General (1) Asbestos fiber masses have a tendency to break easily into tiny dust particles that can float in the air, stick to clothes, and may be inhaled or swallowed. Inhalation of asbestos fibers can produce fibrosis and tumors. The most common disease is interstitial pulmonary fibrosis (asbestosis). Asbestos fibers may also produce pleural effusions and fibrosis, pleural plaques, mesotheliomas of pleura and peritoneum, lung cancer, and cancers of the gastrointestinal tract. Cancers of the larynx and pharynx as well as the urogenital system (except the prostate) are also associated with asbestos exposure. (2) Asbestos, a fibrous form of silicate mineral of varied chemical composition and physical configuration, derives from serpentine and amphibole ore bodies. The asbestos fibers are obtained from these minerals after the rocks have been crushed. Africa has been the source of large quantities of crocidolite and amosite. The main asbestos product now used in the United States is chrysotile which consists of varied mixtures of chrysotile, tremolite, actinolite, and anthophyllite fibers. The biological actions of these fibers differ 7-IV-5 M21-1, Part VI February 5, 2004 Change 110 in some respects. Chrysotile products have their initial effects on the small airways of the lung, cause asbestosis more slowly, but result in lung cancer more often. The African fibers have more initial effects on the small blood vessels of the lung, the alveolar walls and the pleura, and result in more mesothelioma. True chrysotile fibers are hollow and extremely thin. All the other varieties of asbestos fibers are solid. (3) Persons with asbestos exposure have an increased incidence of bronchial, lung, pharyngolaryngeal, gastrointestinal and urogenital cancer. The risk of developing bronchial cancer is increased in current cigarette smokers who have had asbestos exposure. Mesotheliomas are not associated with cigarette smoking. Lung cancer associated with asbestos exposure originates in the lung parenchyma rather than the bronchi. About 50 percent of persons with asbestosis eventually develop lung cancer, about 17 percent develop mesothelioma, and about 10 percent develop gastrointestinal and urogenital cancers. All persons with significant asbestosis develop cor pulmonale and those who do not die from cancer often die from heart failure secondary to cor pulmonale. b. Occupational Exposure (1) Some of the major occupations involving exposure to asbestos include mining, milling, work in shipyards, insulation work, demolition of old buildings, carpentry and construction, manufacture and servicing of friction products such as clutch facings and brake linings, manufacture and installation of roofing and flooring materials, asbestos cement sheet and pipe products, military equipment, etc. Exposure to any simple type of asbestos is unusual except in mines and mills where the raw materials are produced. (2) High exposure to asbestos and a high prevalence of disease have been noted in insulation and shipyard workers. This is significant considering that, during World War II, several million people employed in U.S. shipyards and U.S. Navy veterans were exposed to chrysotile products as well as amosite and crocidolite since these varieties of African asbestos were used extensively in military ship construction. Many of these people have only recently come to medical attention because the latent period varies from 10 to 45 or more years between first exposure and development of disease. Also of significance is that the exposure to asbestos may be brief (as little as a month or two) or indirect (bystander disease). c. Diagnosis. The clinical diagnosis of asbestosis requires a history of exposure and radiographic evidence of parenchymal lung disease. Symptoms and signs may include dyspnea on exertion and end-respiratory rales over the lower lobes. Clubbing of the fingers occurs at late stages of the disease. Pulmonary function impairment and cor pulmonale can be demonstrated by instrumental methods. Compensatory emphysema may also be evident. d. Guidelines (1) When considering VA compensation claims, RVSRs must determine whether or not military records demonstrate evidence of asbestos exposure in service. RVSRs must also assure that development is accomplished to determine whether or not there is preservice and/or post-service evidence of occupational or other asbestos exposure. A determination must then be made as to the relationship between asbestos exposure and the claimed diseases, keeping in mind the latency and exposure information noted above. As always, the reasonable doubt doctrine is for consideration in such claims. If assistance is needed, contact the Compensation and Pension Service Regulations Staff. (2) Rate asbestosis under diagnostic code 6833 and pleural effusions and fibrosis, and pleural plaques analogous to asbestosis. Rate cancers under the diagnostic code for the appropriate body system. Rate mesothelioma of pleura analogous to diagnostic code 6819 and mesothelioma of peritoneum analogous to diagnostic code 7343. 7-IV-6 February 5, 2004 M21-1, Part VI Change 110 7.22 COMPENSATION FOR DISABILITIES ASSOCIATED WITH GULF WAR SERVICE a. Background. (1) The Persian Gulf War Veterans’ Act. On November 2, 1994, Congress enacted the "Persian Gulf War Veterans' Benefits Act," Title I of the "Veterans' Benefits Improvements Act of 1994," Public Law 103-446. That statute added a new section 1117 to Title 38, United States Code, authorizing VA to compensate any Persian Gulf veteran suffering from a chronic disability resulting from an undiagnosed illness or combination of undiagnosed illnesses which became manifest either during active duty in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more within a presumptive period following service in the Southwest Asia theater of operations during the Persian Gulf War. (2) The Persian Gulf War Veterans Act of 1998. The “Persian Gulf War Veterans Act of 1998”, Public Law 105-277 authorized VA to compensate Gulf War veterans for diagnosed or undiagnosed disabilities which are determined by VA regulation to warrant a presumption of service-connection based on a positive association with exposure to a toxic agent, environmental or wartime hazard, or preventive medication or vaccine associated with Gulf War service. This statute added section 1118 to Title 38, United States Code. (3) The Veterans Education and Benefits Expansion Act of 2001. The “Veterans Education and Benefits Expansion Act of 2001,” Public Law 107-103, expanded the definition of “qualifying chronic disability” under 38 U.S.C 1117 to include, effective March 1, 2002, not only a disability resulting from an undiagnosed illness, but also a medically unexplained chronic multi-symptom illness that is defined by a cluster of signs and symptoms, and any diagnosed illness that is determined by VA regulation to warrant a presumption of service-connection. (4) 38 CFR 3.317. Title 38 CFR 3.317, which implements 38 U.S.C. 1117, defines qualifying Gulf War service and qualifying chronic disability as well as establishes a broad but non-exclusive list of signs and symptoms which may be representative of undiagnosed or chronic multi-symptom illnesses for which compensation may be paid, and the presumptive period for service connection. b. “Gulf War Veteran”. The term "Gulf War veteran" under 38 CFR 3.317 means a veteran who served on active military, naval, or air service in the Southwest Asia theater of operations during the Gulf War. The Gulf War extends from August 2, 1990, through a date yet to be determined by law or Presidential proclamation (38 U.S.C. 101(33). The Southwest Asia theater of operations includes: Iraq Kuwait Saudi Arabia The neutral zone between Iraq and Saudi Arabia The United Arab Emirates Bahrain Qatar Oman The Gulf of Aden The Gulf of Oman The Persian Gulf The Arabian Sea The Red Sea The airspace above these locations 7-IV-7M21-1, Part VI February 5, 2004 Change 110 c. Qualifying Chronic Disability (1) Definition. The term “qualifying chronic disability” under 38 CFR 3.317 means a chronic disability resulting from any of the following (or any combination of any of the following): (a) An undiagnosed illness. (b) A medically unexplained chronic multi-symptom illness (such as chronic fatigue syndrome, fibromyalgia, and irritable bowel syndrome) that is defined by a cluster of signs or symptoms. © Any diagnosed illness that is determined by VA regulation to warrant a presumption of service-connection. (2) Signs or Symptoms of Illness. Title 38 CFR 3.317 specifies 13 categories of signs or symptoms that may be a manifestation of an undiagnosed illness or a chronic multi-symptom illness. They are listed below. However, the list of 13 illness categories is not exclusive. Signs or symptoms not represented by one of the listed categories can also qualify for consideration. If a disability is affirmatively shown to have resulted from a cause other than Gulf War service, however, it cannot be compensated under 38 CFR 3.317. Abnormal weight loss Cardiovascular signs or symptoms Fatigue Gastrointestinal signs or symptoms Headache Joint pain Menstrual disorders Muscle pain Neurological signs or symptoms Neuropsychological signs or symptoms Signs or symptoms involving the respiratory system (upper and lower) Signs and symptoms involving the skin Sleep disturbances (3) Chronicity. The claimed illness must be chronic. To fulfill the requirement for chronicity, the claimed illness must have persisted for a period of 6 months. Disabilities which are subject to intermittent episodes of improvement and worsening within a 6-month period would be considered chronic. The 6-month period of chronicity will be measured from the earliest date on which all pertinent evidence establishes that the signs or symptoms of the disability first became manifest. d. Presumptive period for service connection. Title 38 CFR 3.317 establishes the presumptive period as beginning on the date following last performance of active military, naval, or air service in the Southwest Asia theater during the Gulf War. This period extends through December 31, 2006. e. Special Considerations for Undiagnosed Disability Claims (1) Diagnostic Codes. In order to properly identify and track claimed undiagnosed disabilities, the following diagnostic code series beginning with "88" has been established. The 88 code will be the first element of a hyphenated analogous code. It will be assigned according to the body system of the analogous code which it precedes. (See subparagraph 9b.) DIAGNOSTIC CODE DESCRIPTION 8850-50__ UNDIAGNOSED CONDITION--MUSCULOSKELETAL DISEASES 8851-51__ UNDIAGNOSED CONDITION—AMPUTATIONS 7-IV-8February 5, 2004 M21-1, Part VI Change 110 8852-52__ UNDIAGNOSED CONDITION--JOINTS, SKULL, AND RIBS 8853-53__ UNDIAGNOSED CONDITION--MUSCLE INJURIES 8860-60__ UNDIAGNOSED CONDITION--DISEASES OF THE EYE 8861-61__ UNDIAGNOSED CONDITION--HEARING LOSS 8862-62__ UNDIAGNOSED CONDITION--EAR AND OTHER SENSE ORGANS 8863-63__ UNDIAGNOSED CONDITION--SYSTEMIC DISEASES 8865-65__ UNDIAGNOSED CONDITION--NOSE AND THROAT 8866-66__ UNDIAGNOSED CONDITION--TRACHEA AND BRONCHI 8867-67__ UNDIAGNOSED CONDITION--TUBERCULOSIS 8868-68__ UNDIAGNOSED CONDITION--LUNGS AND PLEURA 8870-70__ UNDIAGNOSED CONDITION--HEART DISEASES 8871-71__ UNDIAGNOSED CONDITION--ARTERIES AND VEINS 8872-72__ UNDIAGNOSED CONDITION--UPPER DIGESTIVE SYSTEM 8873-73__ UNDIAGNOSED CONDITION--LOWER DIGESTIVE SYSTEM 8875-75__ UNDIAGNOSED CONDITION--GENITOURINARY SYSTEM 8876-76__ UNDIAGNOSED CONDITION--GYNECOLOGICAL SYSTEM 8877-77__ UNDIAGNOSED CONDITION--HEMIC AND LYMPHATIC SYSTEM 8878-78__ UNDIAGNOSED CONDITION--SKIN 8879-79__ UNDIAGNOSED CONDITION--ENDOCRINE SYSTEM 8880-80__ UNDIAGNOSED CONDITION--CENTRAL NERVOUS SYSTEM 8881-81__ UNDIAGNOSED CONDITION--MISCELLANEOUS NEUROLOGICAL 8882-82__ UNDIAGNOSED CONDITION--CRANIAL NERVE PARALYSIS 8883-83__ UNDIAGNOSED CONDITION--CRANIAL NERVE NEURITIS 8884-84__ UNDIAGNOSED CONDITION--CRANIAL NERVE NEURALGIA 8885-85__ UNDIAGNOSED CONDITION--PERIPHERAL NERVE PARALYSIS 8886-86__ UNDIAGNOSED CONDITION--PERIPHERAL NERVE NEURITIS 8887-87__ UNDIAGNOSED CONDITION--PERIPHERAL NERVE NEURALGIA 8889-89__ UNDIAGNOSED CONDITION--EPILEPSIES 8892-92__ UNDIAGNOSED CONDITION--PSYCHOTIC DISORDERS 8893-93__ UNDIAGNOSED CONDITION--ORGANIC MENTAL 8894-94__ UNDIAGNOSED CONDITION--PSYCHONEUROTIC 8895-95__ UNDIAGNOSED CONDITION--PSYCHOPHYSIOLOGIC 8899-99__ UNDIAGNOSED CONDITION--DENTAL AND ORAL (2) The Issue (a) Issue for Consideration. State the issue for rating as "Service connection for [specify signs or symptoms] as due to an undiagnosed illness." (b) Single or Multiple Issues. The decision to rate multiple symptoms or signs separately or as a single disability will depend on the most favorable outcome to the veteran. Although rating multiple manifestations under a single body system will in most cases allow the maximum benefit, be alert to symptoms affecting fundamentally different body systems which may clearly warrant separate consideration. If service connection for several symptoms or signs is denied for the same reason, consider such symptoms and signs as a single issue. Whether granted or denied, assign one hyphenated diagnostic code in the coded conclusion to each issue which is separately considered. (3) Evidence. If there is a disability due to the existence of an undiagnosed illness, generally there are three facts that must be established before service connection for an undiagnosed illness may be granted or denied: when the disability arose; whether the condition was of compensable severity (unless manifested while in the Southwest Asia theater); and whether the condition chronically persisted for at least six months. (a) Medical and Lay Evidence. When the object of service connection is a diagnosed illness, medical findings are of paramount importance because a physician specializes in identifying disabilities through 7-IV-9 M21-1, Part VI February 5, 2004 Change 110 diagnoses. However, the concept of "objective indications" expressed in 38 CFR 3.317 makes clear that the evidence required for undiagnosed illnesses--illnesses which are outside the scope of medical understanding--is not so dependent on formal medical findings. The veteran's testimony to the effect that he or she is experiencing these symptoms, when combined with an examining physician's inability to make a diagnosis, may be sufficient to establish existence of the illness. Similarly a lay person's statement regarding the veteran's complaints beginning at a certain time, lasting for a certain duration, and having a particular level of severity may be adequate to establish the requirements for consideration. Non-medical indicators include such information as time lost from work, evidence that the veteran has sought medical treatment for his or her symptoms, evidence affirming situations such as a change in the veteran's appearance, physical abilities and mental or emotional attitude. Lay statements from knowledgeable individuals may be accepted as evidence providing objective indications if they support the conclusion that a disability exists. (b) Unnecessary Development. Lay evidence is credible if the person was in a position to know the alleged facts and if not contradicted by evidence of record which is more credible. Do not dismiss any evidence as "self-serving." It is reasonable to expect claimants to provide evidence which they believe is in their best interests. Similarly, unless there is affirmative reason to doubt the credibility of evidence, do not develop for corroboration. For example, if lay evidence alleges that the veteran lost a certain amount of time from employment, accept that statement without further development if otherwise credible. © PGW Registry Examination. In all cases, ask the veteran if he or she had participated in the VHA Persian Gulf Health Registry and had been examined as part of the Registry, and where he or she was examined. If he or she has been examined, secure examination results from the VAMC. (4) Future Examination. Because the course of an undiagnosed illness cannot be predicted, monitor the case by establishing a future examination control within 24 months of the last examination of record. At the expiration of the control, review the evidence of record to determine if a reexamination is necessary. f. Decision. State the rating decision as "Service connection for _____ is denied," or "Service connection for _____ is granted with an evaluation of _____ percent effective _____ ." The earliest effective date for entitlement to service connection under 38 CFR 3.317 is November 2, 1994. g. Reasons For Decision (1) Granted. Service connection established under 38 CFR 3.317 is considered service connection for purposes of all laws. (a) During Active Duty. Service connection will be established if the qualifying chronic disability (as defined in subparagraph 7.22c(1)) became manifest, whether to a compensable degree or not, while the claimant was on active service in the Southwest Asia theater of operations during the Gulf War. Include the following sentence in the "Reasons and Bases" or “Analysis” section of the rating if service connection is established under this circumstance: "Service connection is established for _____ (or for _____ as due to an undiagnosed illness) which began in the Southwest Asia theater of operations during the Gulf War." (b) During Presumptive Period. Service connection will be established if the qualifying chronic disability arose to a compensable degree after the veteran last served in the Southwest Asia theater during the Gulf War, regardless of the veteran's active duty status at the time. If service connection is established during the presumptive period, include the following statement in the "Reasons and Bases" or “Analysis”: "Service connection may be presumed for qualifying disabilities resulting from undiagnosed or diagnosed illnesses which arose to a compensable degree after service in the Southwest Asia theater of operations during the Gulf War. Service connection for _____ has been granted on the basis of this presumption." (2) Evaluation by Analogy (a) Evaluate the level of impairment of chronic undiagnosed disabilities by analogy to an existing diagnostic code in the rating schedule (38 CFR 4.27). Precede a discussion of the evaluation criteria and next 7-IV-10 February 5, 2004 M21-1, Part VI Change 110 higher level in the “Reasons for Decision” with the following statement: "Since the disability at issue does not have its own evaluation criteria assigned in VA regulations, a closely related disease or injury was used for this purpose." (b) The RSVR will use a hyphenated diagnostic code as described in subparagraph 7.22e(1) for undiagnosed disabilities. For the second code, use the diagnostic code that most closely fits the evaluating criteria. Examples of analogies for the 13 signs or symptoms found in 38 CFR 3.317 are provided below. However, use of analogies is not limited to this list. Abnormal weight loss, 8873-7328 (resection of intestine); Cardiovascular signs or symptoms, 8870-7013 (tachycardia), 8870-7005 (ASHD); Fatigue, 8863-6354 (chronic fatigue syndrome), 8877-7700 (anemia); Gastrointestinal signs or symptoms, 8873-7305 (ulcer), 8873-7319 (irritable bowel syndrome); Headache, 8881-8100 (migraine headaches); Joint pain, 8850-5002 (rheumatoid arthritis); Menstrual disorders, 8876-7622 (uterus displacement); Muscle pain, 8850-5021 (myositis); Neurologic signs or symptoms, 8885-85__ (peripheral neuropathy); Neuropsychological signs or symptoms, 8893-9300 (organic mental disorder); Signs or symptoms involving the respiratory system (upper or lower), 8865-65__, 8866-66__, 8868-68__ (respiratory system); Signs and symptoms involving the skin, 8878-7806 (eczema); Sleep disturbances, 8894-9400 (generalized anxiety). © Denied. Begin a discussion of any denial in the "Reasons and Bases" or “Analysis” with a description of the general requirements for service connection under 38 CFR 3.317: "Service connection may be established for qualifying chronic disability resulting from an undiagnosed illness, a medically unexplained chronic multi-symptom illness that is defined by a cluster of signs or symptoms, or a diagnosed illness that is determined by VA regulation to warrant a presumption of service connection which became manifest either during active service in the Southwest Asia theater of operations during the Gulf War, or to a degree of 10 percent or more after the date on which the veteran last performed service in the Southwest Asia theater of operations during the Persian Gulf War." 1. Diagnosed Illnesses. A condition having a known clinical diagnosis cannot be favorably considered for service connection under 38 CFR 3.317 unless it meets the criteria for qualifying chronic disability shown in subparagraph 7.22c, but it will receive consideration for service connection under other provisions. If service connection is denied, include the following language in the "Reasons and Bases" or “Analysis”: "Service connection for _____ is denied because this disability is determined to result from a known clinical diagnosis of _____ , which neither occurred in nor was caused or aggravated by service." 2. Illness Not Chronic. The fact that a claimed disability is not found on last VA examination does not necessarily preclude entitlement under 38 CFR 3.317. The requirement for chronicity is fulfilled if the disability has persisted for at least 6 months. Disabilities subject to episodic improvement and worsening within a 6-month period are considered chronic. If the disability does not meet the 6-month requirement, include the following statement under “Reasons for Decision”: "The disability must have persisted for a period of at least 6 months. Service connection for _____ is denied since this disability was first manifested on _____ and lasted less than 6 months." 3. Attributable to Some Other Etiology. Service connection under 38 CFR 3.317 cannot be established if there is affirmative evidence that the illness was not incurred during active service or was caused by some intercurrent circumstance. Affirmative evidence that the illness is caused by willful misconduct or alcohol or drug abuse will also preclude entitlement. Include the following statement under “Reasons for 7-IV-11M21-1, Part VI February 5, 2004 Change 110 Decision,” if service connection is denied on this basis: "Service connection under this provision is precluded if there is affirmative evidence that the disability was unrelated to service in the Gulf War. Service connection for _____ is denied because evidence established that this disability resulted from _____ ." 4. Illness not shown by the evidence of record. There is no evidence that the condition ever existed. 5. Qualifying Chronic Disability Less than 10 Percent. In order to qualify for service connection, the qualifying chronic disability must have become manifest either during active duty in the Southwest Area Theater during the Gulf War or to a degree of 10 percent or more after the date on which the veteran last performed active service in the Southwest Asia theater of operations during the Gulf War. If the veteran fails to qualify for service connection because the severity of disability is noncompensable, include the following statement in "Reasons and Bases" or “Analysis”: "Service connection for _____ is denied since this disability neither arose during service in the Persian Gulf theater, nor was it manifested to a compensable degree after the last date of service in the Persian Gulf theater during the Gulf War." (d) Description of Dates. Under “Reasons for Decision,” explicitly refer to any date which is pertinent to the decision. This particularly includes the dates during which the veteran served in the Southwest Asia theater, and the earliest date a qualifying chronic illness may have become manifest. h. Coded Conclusion (1) A decision regarding service connection will be shown under either code 1. SC or 8. NSC in the coded conclusion. The parenthetical entry following 1. SC will be "GW PRES." (2) Hyphenated codes will be used for all undiagnosed conditions. The first code will always be one of the diagnostic codes established for Gulf War undiagnosed conditions (see subparagraph 7.22e(1)) followed by the analogous diagnostic code. For example, if the analogy is 6354, the hyphenated code would be 8863-6354; or if the analogy is 5002, the code would be 8850-5002. i. Severance and Reduction. Once service connection is established under 38 CFR 3.317, it is considered service connected for the purpose of all laws, including the provisions pertaining to protection under 38 CFR 3.951 and 3.957. Situations may arise, however, that will require termination or reduction of payments previously awarded under section 3.317; for example, establishment of a known clinical diagnosis as the cause of a veteran's disabilities. Title 38 CFR 3.500 was amended to add a paragraph (38 CFR 3.500(y)) specifically requiring severance or reduction under 38 CFR 3.105(d) or (e) to be effective on the first of the month 60 days after expiration of the predetermination period and final notice to the veteran. Apply the usual procedures for reduction or severance outlined in chapter 9. Termination or reduction of benefits paid under section 3.317 would not preclude continuation of payments if entitlement is established under other regulations governing grants of service connection by incurrence, aggravation, or presumption. j. Participation in Research Projects. Effective December 27, 2001, if a Gulf War veteran participates in a VA-sponsored medical research project, service connection established for disability under 38 U.S.C. 1117 or 1118 will be protected, regardless of the project’s findings, unless the original award of compensation or service connection was based on fraud, or it is clearly shown from military records that the veteran did not have the requisite service or character of discharge. A list of VA-sponsored medical research projects for which service connection is protected will be published in the Federal Register. 7-IV-12

>It never ceases to amaze how many people think the Government should just accept what they say as a truth. We are learning how little truth has to do with operating a Government agency. Hopefully, the Dept. of Veterans Affairs is better at it than the JUSTICE dept.

It's good to see these troops are getting help. If it wasn't for those troops at Walter Reed, practically dragging the news media into it, nothing would be changed today. "THEY" are the brave ones. Guess theres some that missed the testimony, of the wife of a brain injured soldier before congress & what she endured. Wonder what she would change if put in charge. Is that, "if" older vets are put back in line? or do we have to wait until the age of 70, before our claims are processed?

Why we need Mandatory Funding for Veteran’s Healthcare By Gene D. Simes Chairman, Operation Firing For Effect March 29, 2007 Many people are confused about what full funding of the Department of Veterans Affairs really means. Below you will find 8 very good examples of why full mandatory funding of the VA healthcare system is essential. Merely visit the links included to view substantial documentation. On August 22, 1986, the VAMC in Atlanta Georgia released a Memorandum changing their procedures for self injections for diabetic insulin users. The change in policy was as follows; “Effective for new prescriptions written after September 2, 1986, you should use each disposable insulin syringe two times before throwing it away”. The only possible reason for this new policy was budgetary. This change in procedure was a blatant attempt to cut the year’s insulin syringe budget in half. Apparently, the VA needed funds elsewhere, and decided this very questionable and risky injection procedure was a good idea. Well known Georgia veterans rights advocate Jere Beery led a successful public campaign to have this unsafe practice stopped immediately. This one small example illustrates how budget restraints affect the quality of healthcare our veterans receive. Mandatory full funding would guarantee that our veterans would never be asked to use a dirty syringe again. Documentation; http://jerebeery.com/va-syringe-useage.htm Although the telephone has been around for well over a century, it wasn’t until 1996 that all VA hospitals nationwide were equipped with bedside telephones. Up until that time, unless you could make it to the pay phone down the hall, patients made no calls, much less receive any. In 1995, Mr. Francis Dosio of PT Phone Home and the Communication Workers of America Union took up the concept veterans activist Jere Beery had started several years earlier and launched a nationwide project to install bedside phones in every VA hospital in the country. All of the labor and equipment was donated but the story was not publicized. The VA didn’t have to pay one dine for the bedside phone project as all of the funds were donated from the private sector. Mandatory full funding would insure that our veterans do not have to depend on charity for the most basic amenities and services. Documentation; http://jerebeery.com/bedside_telephones_in_va_hospita.htm In 1998, the VAMC in Atlanta attempted to implement parking fees for all veterans visiting the facility. Vietnam combat veteran Jere Beery openly challenged the parking plan and stimulated public outrage which halted the idea before it was enforced. But once again, we see desperation by the VA to find funds while passing the cost onto our veterans. Mandatory full funding would guarantee that our veterans are never again ask to pay to access the healthcare services they have earned. Documentation; http://jerebeery.com/va%20parking%201.htm In 2006, two veterans died after they were refused entrance and lifesaving treatment at the VA hospital in Spokane Washington. The reason; they arrived after the emergency room had closed. Mandatory full funding would insure that all VA hospitals with a pre-existing emergency room could maintain 24/7 emergency services for critically ill veterans. Documentation; http://jerebeery.com/offe_extremely_concerned_about_d.htm In 1978, travel reimbursement for veterans traveling to a VA hospital for a scheduled appointment was 11 cents per mile, which was when gas was 49 cents a gallon. This reimbursement amount has remained unchanged for 29 years. In this case, Mandatory full funding would provide the funds to increase this allowance and allow for the payment of travel pay to fluctuate with the rising cost of fuel. Currently, the VA has a backlog of over 90,000 claims waiting processing. Many veterans are required to wait well over a year for their VA rating decision. Under-staffing is the primary reason for these delays. Mandatory funding would make it possible for the VA to hire additional staff to process and expedite claims. Low wages offered by the VA make it very difficult to entice and retain high quality medical professionals. Doctors, nurses, dentist, psychiatrist, counselors, and nutritionist all make significantly more money in the private sector. Mandatory funding would allow for increases in salaries which would attract more medical professionals into the VA healthcare system. Mandatory funding would also insure that future medical research done by the VA would not be restricted by budget constraints. These are just 8 examples of why we need full funding of the VA. There are many more examples just like these. I hope this report convinces you to support full mandatory funding for the VA healthcare system. I encourage you to visit our web site, http://offe2008.org/public_html/resolution.htm, print out our resolution, sign it and send it to; Operation Firing For Effect, P.O. Box 77303, Rochester, NY 14617. Remember, if you do nothing, you can expect nothing to change.

That will get you quicker up to the BVA? Hello Terry, my appeal docket# is 9819625 That means my appeal was sent to the BVA in 1998. The BVA has not even began to process the claim. It has only been remanded. These new Vets coming home, face 10 or 20 yrs of bullsh*t denials, twisted & fraudulent evidence to deny their claims, JUST LIKE WE DO. Unless the widespread "unethical" practices of VA adjudicators are stopped, it doesn't mean squat what kind of time saving measures is implimented. Why doesn't the VARO's pay for C&P's out of their budget? Why do the VAMC's have to pay for C&P's ordered by the VARO, DRO or Court out of health care funding? This screws a vet from the begining if you ask me & is contradictory to VA manual. You end up with a budget like Nicholson came up with to opperate under, so they provide a candystriper, or NP to provide a definitive diagnoses & determination as to wether your "neuromuscular disorder of unknown cause" is or isn't service connected. All, according to the manuals, codes & regulations with the highest regard for the veteran? This crap is so obvious, even the dain bramaged can pick it out after the decades it takes to process a claim.

Thanks Philip, I'll try to pick something else that sounds better.

Traumatic Brain Injury Independent Study Course Released: January 2004 http://www1.va.gov/vhi/docs/TBI.pdf

Volume 42, Number 1, January/February 2005 Pages 29 — 34 Abstract - Event-related potential in facial affect recognition: Potential clinical utility in patients with traumatic brain injury Henry L. Lew, MD, PhD;1-2* John H. Poole, PhD;2 Jerry Y. P. Chiang, MD;3 Eun Ha Lee, MD;1 Elaine S. Date, MD;1 Deborah Warden, MD4 1Physical Medicine and Rehabilitation Service, Department of Veterans Affairs Palo Alto Health Care System, Palo Alto, CA, 1-2Defense and Veterans Brain Injury Center, Palo Alto, CA; 3Stanford University School of Medicine, Stanford, CA; 4Defense and Veterans Brain Injury Center, Walter Reed Medical Center, Washington, DC Abstract — Traumatic brain injury (TBI) frequently leads to deficits in social behavior. Prior research suggests that such deficits may result from impaired perception of basic social cues. However, these social-emotional deficits have not been studied electrophysiologically. We measured the P300 event-related potential (ERP), which has been shown to be a sensitive index of cognitive efficiency, in 13 patients with a history of moderate to severe TBI and in 13 healthy controls. The P300 response was measured during detection of 30 pictures of angry faces (rare target) randomly distributed among 120 neutral faces (frequent nontarget). Compared to control subjects, the TBI group's P300 responses were significantly delayed in latency (p = 0.002) and lower in amplitude (p = 0.003). TBI patients also showed slower reaction times and reduced accuracy when manually signaling their detection of angry faces. Coefficients of variation (CVs) for the facial P300 response compared favorably to those of many standard clinical assays, suggesting potential clinical utility. For this study, we demonstrated the feasibility of studying TBI patients' P300 responses during the recognition of facial affect. Compared to controls, TBI patients showed significantly impaired electrophysiological and behavioral responses while attempting to detect affective facial cues. Additional studies are required for clinicians to determine whether this measure is related to patients' psychosocial function in the community. Key words: affect recognition, brain injury, cognition, electroencephalograph, emotional processing, event-related potential, social perception. Last Reviewed or Updated Tuesday, June 28, 2005 10:33 AM

Could they be using a symptom for TBI(personality disorder) to deny PTSD claims? If you have an increase in TBI claims, there would be an increase of reported personality disorders overlaping with PTSD claims. But they shouldn't be alowed to punish Vets for it. Allan