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[Code of Federal Regulations]
[Title 38, Volume 1, Parts 0 to 17]
[Revised as of July 1, 1998]
From the U.S. Government Printing Office via GPO Access
[CITE: 38CFR4.42]
[Page 345-346]
TITLE 38--PENSIONS, BONUSES, AND VETERANS' RELIEF
CHAPTER I--DEPARTMENT OF VETERANS AFFAIRS
PART 4--SCHEDULE FOR RATING DISABILITIES--Table of Contents
Subpart B--Disability Ratings
Sec. 4.42 Complete medical examination of injury cases.
The importance of complete medical examination of injury cases at
the time of first medical examination by the Department of Veterans
Affairs cannot be overemphasized. When possible, this should include
complete neurological and psychiatric examination, and other special
examinations indicated by the physical condition, in addition to the
required general and orthopedic or surgical examinations. When complete
examinations are not conducted covering all systems of the body affected
by disease or injury, it is impossible to visualize the nature and
extent of the service connected disability. Incomplete examination is a
common cause of incorrect diagnosis, especially in the neurological and
psychiatric fields, and frequently leaves the Department of
[[Page 346]]
Veterans Affairs in doubt as to the presence or absence of disabling
conditions at the time of the examination.
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[Code of Federal Regulations]
[Title 38, Volume 1]
[Revised as of July 1, 2002]
From the U.S. Government Printing Office via GPO Access
[CITE: 38CFR14.633]
[Page 539-541]
TITLE 38--PENSIONS, BONUSES, AND VETERANS' RELIEF
CHAPTER I--DEPARTMENT OF VETERANS AFFAIRS
PART 14--LEGAL SERVICES, GENERAL COUNSEL, AND MISCELLANEOUS CLAIMS--Table
of Contents
Sec. 14.633 Termination of accreditation of agents, attorneys, and representatives.
(a) Accreditation may be canceled at the request of an agent,
attorney, representative, or organization.
(b) Accreditation shall be canceled at such time a determination is
made that any requirement of Sec. 14.629 is no longer met by an agent,
attorney, or representative.
© Accreditation shall be canceled when the General Counsel finds,
by clear and convincing evidence, one of the following:
[[Page 540]]
(1) Violation of or refusal to comply with the laws administered by
the Department of Veterans Affairs or with the regulations governing
practice before the Department of Veterans Affairs;
(2) Knowingly presenting or prosecuting a fraudulent claim against
the United States, or knowingly providing false information to the
United States;
(3) Demanding or accepting unlawful compensation for preparing,
presenting, prosecuting, or advising or consulting, concerning a claim;
(4) Any other unlawful, unprofessional, or unethical practice.
(Unlawful, unprofessional, or unethical practice shall include but not
be limited to the following--deceiving, misleading or threatening a
claimant or prospective claimant; neglecting to prosecute a claim for 6
months or more; failing to furnish a reasonable response within 90 days
of request for evidence by the Department of Veterans Affairs, or
willfully withholding an application for benefits.)
(d) Accreditation shall be canceled when the General Counsel finds
an agent's, attorney's, or representative's performance before the
Department of Veterans Affairs demonstrates a lack of the degree of
competence necessary to adequately prepare, present, and prosecute
claims for veteran's benefits.
(e) As to cancellation of accreditation under paragraphs (b), © or
(d) of this section, upon receipt of information from any source
indicating failure to meet the requirements of Sec. 14.629, improper
conduct, or incompetence, the Regional Counsel of jurisdiction shall
initiate an inquiry into the matter. If the matter involves an
accredited representative of a recognized organization, this inquiry
shall include contact with the representative's organization.
(1) If the result of the inquiry does not justify further action,
the Regional Counsel will close the inquiry and maintain the record for
3 years.
(2) If the result of the inquiry justifies further action, the
Regional Counsel shall take the following action:
(i) As to representatives, suspend accreditation immediately and
notify the representative and the representative's organization of the
suspension and of an intent to cancel accreditation. The notice to the
representative will also state the reasons for the suspension and
impending cancellation, and inform the representative of a right to
request a hearing on the matter or to submit additional evidence within
10 working days following receipt of such notice. Such time may be
extended for a reasonable period upon a showing of sufficient cause.
(ii) As to agents or attorneys, inform the General Counsel of the
result of the inquiry and notify the agent or attorney of an intent to
cancel accreditation. The notice will also state the reason(s) for the
impending cancellation and inform the party of a right to request a
hearing on the matter or to submit additional evidence within 10 working
days of receipt of such notice. Such time may be extended for a
reasonable period upon a showing of sufficient cause.
(iii) In the event that a hearing is not requested, the Regional
Counsel shall forward the record to the General Counsel for final
determination.
(f) If a hearing is requested, a hearing officer will be appointed
by the Director of the regional office involved. The hearing officer
shall not be from the Office of the Regional Counsel. The hearing
officer will have authority to administer oaths. A member of the
Regional Counsel's office will present the evidence. The party
requesting the hearing will have a right to counsel, to present
evidence, and to cross-examine witnesses. Upon request of the party
requesting the hearing, an appropriate Department of Veterans Affairs
official designated in Sec. 2.1 of this chapter may issue subpoenas to
compel the attendance of witnesses and the production of documents
necessary for a fair hearing. The hearing shall be conducted in an
informal manner and court rules of evidence shall not apply. Testimony
shall be recorded verbatim. The hearing officer shall submit the entire
hearing transcript, any pertinent records or information, and a
recommended finding to the Regional Counsel within 10 working days after
the close of the hearing. The Regional Counsel will immediately forward
the entire record to the General Counsel for decision.
[[Page 541]]
(g) The decision of the General Counsel is final. The effective date
for termination of accreditation shall be the date upon which a final
decision is rendered. The records of the case will be maintained in the
General Counsel's office for 3 years.
(Authority: 38 U.S.C. 501, 5902, 5904)
[53 FR 52422, Dec. 28, 1988]
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FWD FROM: COLONEL DAN
Who supports the troops? It should be DOD & VA? BUT IT IS NOT!!
Story here... http://www.usnews.com/usnews/health/articles/070408/16va.htm
---------------
Insult to Injury
New data reveal an alarming trend: Vets' disabilities are being downgraded
By Linda Robinson
In the middle of a battle in Fallujah in April 2004, an M80 grenade landed a
foot away from Fred Ball. The blast threw the 26-year-old Marine sergeant 10
feet into the air and sent a piece of hot shrapnel into his right temple.
Once his wound was patched up, Ball insisted on rejoining his men. For the
next three months, he continued to go on raids, then returned to Camp
Pendleton, Calif.
But Ball was not all right. Military doctors concluded that Ball was
suffering from a traumatic brain injury, post-traumatic stress disorder
(PTSD), chronic headaches, and balance problems. Ball, who had a 3.5
grade-point average in high school, was found to have a sixth-grade-level
learning capability. In January of last year, the Marine Corps found him
unfit for duty but not disabled enough to receive full permanent disability
retirement benefits and discharged him.
Ball's situation has taken a dire turn for the worse. The tremors that he
experienced after the blast are back, he can hardly walk, and he has trouble
using a pencil or a fork. Ball's case is being handled by the Department of
Veterans Affairs-he receives $337 a month-but while his case is under
appeal, he receives no medical care. He works 16-hour shifts at a
packing-crate plant near his home in East Wenatchee, Wash., but he has gone
into debt to cover his $1,600 monthly mortgage and support his wife and
2-month-old son. "Life is coming down around me," Ball says. Trained to be
strong and self-sufficient, Ball now speaks in tones of audible pain.
Fred Ball's story is just one of a shocking number of cases where the U.S.
military appears to have dispensed low disability ratings to wounded service
members with serious injuries and thus avoided paying them full military
disabled retirement benefits. While most recent attention has been paid to
substandard conditions and outpatient care at Walter Reed Army Medical
Center, the first stop for many wounded soldiers stateside, veterans'
advocates say that a more grievous problem is an arbitrary and dysfunctional
disability ratings process that is short-changing the nation's newest crop
of veterans. The trouble has existed for years, but now that the country is
at war, tens of thousands of Americans are being caught up in it.
Now an extensive investigation by U.S. News and a new Army inspector
general's report reveal that the system is beset by ambiguity and riddled
with discrepancies. Indeed, Department of Defense data examined by U.S. News
and military experts show that the vast majority-nearly 93 percent-of
disabled troops are receiving low ratings, and more have been graded
similarly in recent years. What's more, ground troops, who suffer the most
combat injuries from the ubiquitous roadside bombs, have received the lowest
ratings.
One counselor who has helped wounded soldiers navigate the process for over
a decade believes that as many as half of them may have received ratings
that are too low. Ron Smith, deputy general counsel for the Disabled
American Veterans, says: "If it is even 10 percent, it is unconscionable."
The DAV is chartered by Congress to represent service members as they go
through the evaluation process. Its national service officers are based at
each rating location, and there is a countrywide network of counselors.
Smith says he recently asked the staff to cull those cases that appeared to
have been incorrectly rated. Within six hours, he says, they had forwarded
him 30 cases. "So far," Smith says, "the review supports the conclusion that
a significant number of soldiers are being fairly dramatically underrated by
the U.S. Army."
Magic number. In an effort to learn how extensive the problem is, U.S. News
spent six weeks talking to wounded service members, their counselors, and
veterans advocacy groups and reviewing Pentagon data. At first glance, the
disability ratings process seems straightforward. Each branch of service has
its own Physical Evaluation Boards, which can comprise military officers,
medical professionals, and civilians. The PEBs determine whether the wounded
or ill service members are fit for duty. If they are, it's back to work.
Those found unfit are assigned a disability rating for the condition that
makes them unable to do their military job. The actual rating is key, and
here's why: Service members who have served less than 20 years-the great
majority of wounded soldiers-who receive a rating under 30 percent are sent
home with a severance check. Those who receive a rating of 30 percent or
higher qualify for a host of lifelong, enviable benefits from the DOD, which
include full military retirement pay (based on rank and tenure), life
insurance, health insurance, and access to military commissaries.
But the system is hideously complicated in practice. The military doctors
who prepare the case for the PEBs pick only one condition for the service
member's rating, even though many of the current injuries are much more
complex. The PEBs use the Department of Veterans Affairs ratings scale,
which grades disabilities in increments of 10-a leg amputation, for example,
puts a soldier at between 40 and 60 percent disabled. The PEBs claim they
have the leeway to rate a soldier 20 percent disabled for pain, say, rather
than 30 percent disabled for a back injury. If rated at 20 percent or below
and discharged, the soldier enters the VA system as a retiree where he is
evaluated again to establish his healthcare benefits. Ball, for example, was
found by the VA to be 50 percent disabled for PTSD.
Since 2000, 92.7 percent of the disability ratings handed out by PEBs have
been 20 percent or lower, according to Pentagon data analyzed by the
Veterans' Disability Benefits Commission, which Congress formed in 2004 to
look into veterans' complaints (Page 47). Moreover, fewer veterans have
received ratings of 30 percent or more since America went to war in
Afghanistan and Iraq, according to the Pentagon's annual actuarial reports.
As of 2006, for example, 87,000 disabled retirees were on the list of those
exceeding the 30 percent threshold; in 2000, there were 102,000 recipients.
Last year, only 1,077 of 19,902 service members made it over the 30 percent
threshold (chart, Page 49).
The total amount paid out for these benefit awards has remained roughly
constant in wartime and peacetime, leading disabled veterans like retired
Lt. Col. Mike Parker, who has become an unofficial spokesperson on this
issue, to allege that a budgetary ceiling has been imposed to contain war
costs. A DOD spokesperson, Maj. Stewart Upton, said that the Pentagon "is
committed to improving the Disability Evaluation System across the board and
to ... a full and fair due process with regard to disability evaluation and
compensation."
Other data reveal glaring discrepancies among the military services. Even
though most of those wounded in Iraq and Afghanistan have been ground
troops, the Army and Marine Corps have granted far fewer members full
disabled benefits than the Air Force. The Pentagon records show that 26.7
percent of disabled airmen have been rated 30 percent or more disabled,
while only 4.3 percent of soldiers and 2.7 percent of marines made the
grade. Services engaged in close combat, experts say, could be expected to
find more members unfit for duty and meriting full retirement benefits.
Instead, the Air Force decided that 2,497 airmen fall into that category
while the much larger Army, with its higher tally of wounded, has accorded
those benefits to only 1,763 soldiers since 2000.
How many of these veterans' cases have been decided incorrectly? Nobody
knows. These statistics show trends that are clearly at odds with what logic
would dictate, but there has been no effort to discover how many of those
low ratings were inaccurately conferred or to ascertain why the number
receiving full benefits has declined during wartime or why there is such a
discrepancy between the Air Force and the other services. But there is
abundant anecdotal evidence of a process cloaked in obscurity and riddled
with anomalies, and of ratings that are inconsistent and often arbitrarily
applied.
DAV lawyer Smith, for example, took on the case of a soldier whose radial
nerve of his dominant hand had been destroyed, the same affliction former
Sen. Bob Dole has. Like Dole, the soldier was unable to write with a pen or
to button his shirt. "There is one and only one rating for that condition,
which is 70 percent disability," says Smith. The PEB gave the soldier 30
percent, the lawyer said, "which I found to be fairly outrageous." Upon
appeal to the Army Physical Disability Agency, the entity that oversees that
service's disability evaluation process, the rating was raised to 60
percent. Smith recently took on another case, that of Sgt. Michael Pinero, a
soldier who developed a degenerative eye condition called keratoconus that
required him to wear contact lenses. Army regulations prohibit wearing
contacts in combat, which should have made him ineligible for deployment and
therefore unfit to perform his specific military duties. But the PEB ignored
the eye condition, which Smith believes merited a 30 percent rating or more,
and rated Pinero 10 percent disabled for shin splints. Smith has asked the
Army to clarify whether it considers the regulation on contact lenses
binding or, as one board member alleged, merely a guideline. Disputes over
such distinctions are common in the Alice in Wonderland world of disability
ratings.
Controversy frequently surrounds decisions on which conditions make a
soldier unfit for duty. Smith took issue with a recent statement made by the
Army Physical Disability Agency's legal adviser, quoted in Army Times
newspaper. The official said that short-term memory loss would not
necessarily render soldiers unfit for duty since they could compensate by
carrying a notepad. "Memory loss is a common sign of TBI," Smith said, using
the abbreviation for traumatic brain injury, which has afflicted many
soldiers hit by the roadside bombs commonly used in Iraq. "The rules of
engagement are a seven-step process.... If a suicide bomber is coming at
you, you cannot stop and consult your notepad," he added. "I find this
demonstrative of the attitude that pervades the Physical Disability Agency,"
which is in charge of reviewing evaluations for accuracy and consistency.
Trying to overturn a low rating can be a full-time job-and an exasperating
one. Take Staff Sgt. Chris Bain, who lost the use of his arms but not his
sense of humor. "They call me T-Rex because I have a big mouth and two hands
and I can't do nothing with them," he jokes. He left the Army in February,
but he still has plenty of fight in him. During an ambush in Taji, Iraq, in
2004, a mortar round exploded 2 feet away from him, ripping through his left
arm and hand. A sniper's bullet passed through his right elbow. His buddies
saved his life, throwing Bain on the hood of a humvee and rushing him to a
combat hospital. Once transferred to Walter Reed, Bain refused to have his
arm amputated and underwent eight surgeries to save it. That choice cost
him. While an amputation would have automatically put him over the 30
percent threshold, the injury to his left arm was rated at 20 percent even
though he cannot use the limb.
Bain was angry. A noncommissioned officer who had planned on 20 or 30 years
in the Army, he knew his career was over, but he wasn't going to go quietly.
"I wanted to be an example to all soldiers," he said. "My job was to take
care of troops." He went to find Danny Soto, the DAV representative at
Walter Reed he'd heard so much about. "Danny is just an awesome guy. He took
great care of me, but he should not have had to," Bain says. Soto is a
patron saint to many soldiers at Walter Reed. He walks the halls, finding
the newly injured and urging them to collect documents for their journey
through the tortuous-and, to many, capricious-system. Many soldiers are
young, and after they have spent months or years recuperating, they just
want to get home and are unwilling to argue for the rating they deserve.
Even though he missed his wife and three children, Bain decided: "I've
already been here two years, another one ain't going to hurt me. Too many
people are getting lowballed."
With Soto's help, Bain gathered detailed medical evidence of his injuries
and went to face the board. They gave him a 70 percent rating for injuries
related to the blast except for his hearing loss, which was not considered
unfitting since he had a hearing aid. Oddly enough, however, the board put
him on the temporary disabled retirement list instead of the permanent list.
"What do they think, that after three years, my arm is going to come back to
life?"
A lifetime of adjusting lies ahead for Bain. "I can't tie my shoes, open
bottles of water, or cut my own food," he says. "I have to ask for help."
The 35-year-old veteran has found a new sense of purpose. He's decided to
run for Congress in 2008, and fixing the veterans' system is his top
priority. "I do not want this s--- to happen again to anyone. No one can
communicate with each other. The paper trail doesn't catch up." It's a tall
order, but the soldier says that he has "100,000 fights" left in him.
A systemic fix doesn't appear to be anywhere in sight. A March 2006 report
by the Government Accountability Office found that Pentagon officials were
not even trying to get a handle on the problem. "While DOD has issued
policies and guidance to promote consistent and timely disability
decisions," the report concluded, "[it] is not monitoring compliance." But
the GAO report did spur Army Secretary Francis Harvey, who was forced to
resign last month in the wake of the Walter Reed scandal, to order the
Army's inspector general to conduct an investigation of the disability
evaluation system. After almost a year of work, the inspector general's
office last month issued a 311-page report that begins to pierce the
confusion and opacity surrounding the process. While it does not determine
how many erroneous ratings were accorded to the nearly 40,000 soldiers rated
20 percent disabled or less since 2000, it does make three critical points:
1) the ambiguity in applying the ratings schedule should end; 2) wide
variance in ratings is indisputable, even among the three Army boards, and
3) the Army's oversight body is not doing its job.
Way overdue. Army officials met with U.S. News to discuss the inspector
general's report. "This is something that has been near and dear to our
hearts for a long time, and it's probably way overdue as far as having
someone go and take a look at it," says a senior Army official. The
inspector general's team found that Army policy was not consistent with the
policies of either the Pentagon or the Department of Veterans Affairs. It
recommended that the Army "align [its] adjudication of disability ratings to
more closely reflect those used by the Department of Veterans Affairs." For
years, the Army has asserted that it has the right to depart from VA
standards on grounds that it is assessing fitness for duty and compensating
for loss of military career, not decreased civilian employability.
Veterans' advocates argue that federal law requires the military to use the
Veterans Affairs Schedule for Rating Disabilities as the standard for
assigning the ratings. But over the years, Pentagon directives on applying
the schedule have opened up a whole new gray area by saying the schedule is
to be used only as a guide. And the services have interpreted them in
different ways, engendering further discrepancies. Soto, the DAV national
service officer at Walter Reed, says that inconsistencies are especially
prevalent in complex cases of traumatic brain injury and post-traumatic
stress disorder. "There is a saying going around the compound here," Soto
says, "that if you are not an amputee, you are going to have to fight for
your rating."
The inspector general's report calls for ending the ambiguities. "What we're
saying is it shouldn't be left to interpretation; it should be clearly
defined," says one Army official. "If there were a way to cut down on that
ambiguity, I think that variance would decrease."
Finally, the report bluntly concludes that the system's internal oversight
mechanism is not functioning. "The Army Physical Disability Agency's quality
assurance program does not conform to DOD and Army policy," it says-the same
conclusion the GAO came to a year ago. The inspector general's report adds
evidence of just how little the watchdog is doing to ensure that cases are
correctly decided. The agency is supposed to send cases to either of two
review boards when soldiers rebut their rating evaluations, but from 2002
through 2005, the agency sent only 45 out of 51,000 cases to one of the
boards. The other review board has not been used at all.
The inspector general's team made 41 recommendations in all, finding among
other things that the Army lacks a formal course for training the liaison
officers who are supposed to guide soldiers through the PEB process, that
the disposition of cases lags badly, that the computerized information
systems are antiquated, and that the two key medical and personnel databases
are not integrated and cannot communicate with each other. The report has
been forwarded to the action team that Army Vice Chief of Staff Richard Cody
convened-one of many official groups formed since the revelations of
substandard conditions and bureaucratic delays at Walter Reed.
Veterans' advocates are skeptical that the administration or the military
bureaucracy will make major changes anytime soon. In testimony to Congress
last month, Veterans for America director of veterans' affairs Steve
Robinson recommended taking the entire ratings process away from the
Pentagon and giving it to the Department of Veterans Affairs. "It's hard to
ignore the fact that in time of war they are giving out less disability," he
says. "Is it policy? I don't know. But it is a fact."
Congress has not responded to this problem. Says Rep. Vic Snyder, the
Arkansas Democrat who chairs the House Armed Services subcommittee on
military personnel: "This whole issue of disability ratings is very complex.
It is not well understood by many people, including many in Congress. That
is why we set up the [ Veterans' Disability Benefits] Commission in 2004. We
are hoping it will help us sort this out."
A lot is riding on the commission. Its chairman is Lt. Gen. Terry Scott, who
retired in 1997 and ran Harvard's Kennedy School of Government's National
Security Program until 2001. After the Pentagon data on the disability
process were presented to the commission last week, Scott said "we still
don't understand the whys and wherefores" of the skewed ratings. The core
problem, he believes, is that "the military was not designed to look after
severely wounded people for a long time." The commission has not yet decided
what changes it will recommend, but he said there is a general sense that
"one physical exam at the end of service should be enough for both agencies,
DOD and VA."
Cash and staff. Any solutions that call for transferring more responsibility
to the Department of Veterans Affairs will have to be matched by enormous
infusions of cash and staff. Already, the VA is reeling under a backlog of
over 600,000 claims from retired veterans, which the agency predicts will
grow by an additional 1.6 million in the next two years. Harvard Prof. Linda
Bilmes, an economist who has published two studies on the costs of the Iraq
war and the associated veterans' costs, projects that as much as $150
billion more will be required to deal with the wounded returning from Iraq
and Afghanistan.
Meanwhile, people like Danny Soto want to know who is going to stop the
military boards from giving out ratings like the 10 percent given to one
soldier for a skull fracture and traumatic brain injury, when the VA later
assigned a 100 percent rating. Soto is also frustrated by a recent case in
which a soldier whose legs had been severely injured in a blast in Iraq was
given only a 20 percent disability rating for pain and by the treatment of a
man who has a bullet hole through his eye and suffers from seizures. As Soto
sat with that soldier in front of the board, he asked why he had been placed
on the temporary list. "At what point do you think he is going to fall below
30 percent?"
Soto is unsparing in his criticism of the bureaucracy. "This system," he
says, " is so broke." Old soldiers say the root of the problem is an Army
culture that preaches a "suck it up" attitude. "If you ask for what you are
due, you are perceived to be whining or trying to pad your pocket," says a
retired command sergeant major. "If you're not bleeding, you're not hurt.
That's what we were taught."
With Edward T. Pound
-----Original Message-----
From: Bill [mailto:w.steimel@comcast.net]
Sent: Monday, April 09, 2007 7:58 AM
To: colonel-dan@sbcglobal.net
Subject: VA Watchdog dot Org - VA NEWS FLASH - 04-09-2007 #8 -- INSULT TO
INJURY: CHEATING OUR VETS - HOW THE PENTAGON IS SHORTCHANGING WOUNDED
SOLDIERS -- The U.S. military appears to have dispensed low disability
ratings to wounded service members with serious i
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M21-1-4 Authorization Procedures
Reviewing the Evidence of Record
Introduction The claimant can present documentary evidence as well as oral testimony at the hearing or informal conference. After the hearing, review all the evidence of record. The hearing official has a duty to assist the claimant in obtaining evidence to support his/her claim.
New Issues If new issues separate from the decision in question are raised by the claimant at the hearing, refer the issue(s) to the appropriate VSC activity for development and decision. If the new issue can be resolved at the same time as the decision in question, resolve it. Note: Do not delay making a decision on the issue that was the subject of the hearing pending a decision on the new issue.
VA Examination Needed When VA examination is appropriate, and the claimant agrees to report for the exam, then request the examination.
Development of Evidence While testifying, a claimant may identify sources of information or evidence that can corroborate the claim. Do not make a final decision on the claim until development for that evidence has been completed. When there is an additional source of evidence that was not obtained (such as claimant saying he was treated by Dr. John Smith, and Dr. Smith's report is not in the file), attempt to obtain the evidence.
Types of Testimony Testimony is evidence presented in written or oral form. Written testimony may be in the form of affidavits, or certified statements. Oral testimony consists of evidence sworn under oath.
Examples of Testimony Testimony is evidence and may include statements relating to history symptoms etiology employment, and treatment.
Arguments An argument is defined in Black's Law Dictionary, Fifth Edition, as an effort to establish belief by a course of reasoning.
Example of Arguments Arguments are contentions inferences, or explanations offered by the claimant or representative as to why the evidence supports granting the benefit sought.
Credibility and Value of the Testimony Decision makers must analyze the credibility and value of the testimony presented by the claimant and others who testify in the claimant's behalf. Take care to distinguish between testimony and argument. Lay testimony concerning etiology or diagnosis of a medical condition is of no probative value since medical determinations can only be provided by a witness qualified as an expert by knowledge skill experience training, or education.
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M21-1-3 Claims Development
5.20 MEDICAL EVIDENCE OF PROBABLE ENTITLEMENT
a. General. A private physician's statement meeting the requirements of 38 CFR 3.326(d) or a hospital or examination report from any of the sources provided in 38 CFR 3.326© may be accepted for rating purposes if it is adequate. In all cases, permit simultaneous development of evidence [38 CFR 3.326(b)]. Both lay statements and medical reports of treatment by an attending physician, if available, may be used.
b. Prompt Submission to the Rating Activity. Evidence or current disability may be contained in reports from a VA or a non-VA medical facility at VA expense or in evidence already of record showing the existence of a chronic condition likely to interfere with employability. If so, submit the claim to the rating board.
c. Requesting Medical Information from Social Security Administration. When considering a claim for pension if there is indication that the veteran is receiving disability Social Security benefits, request copies of the medical records on which the SSA decision was based. See chapter 9 for instructions on making this request.
d. Procurement of Evidence. In the absence of any of the conditions listed in subparagraph b above, medical evidence must be provided before the claim is referred to the rating activity or a VA physical examination is ordered. Follow the procedures in paragraph 1.02 re steps to take to fulfill VA’s duty to assist the claimant. If necessary evidence is not received, deny the claim for record purposes and notify the veteran that the evidence must be provided to reopen the claim.
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§4.40 Functional loss.
Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. A little used part of the musculoskeletal system may be expected to show evidence of disuse, either through atrophy, the condition of the skin, absence of normal callosity or the like.
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3.328 lndependent medical opinions.
(a) General. When warranted by the medical complexity or controversy involved in a pending claim, an advisory medical opinion may be obtained from one or more medical experts who are not employees of VA. Opinions shall be obtained from recognized medical schools, universities, clinics or medical institutions with which arrangements for such opinions have been made, and an appropriate official of the institution shall select the individual expert(s) to render an opinion.
(b) Requests. A request for an independent medical opinion in conjunction with a claim pending at the regional office level may be initiated by the office having jurisdiction over the claim, by the claimant, or by his or her duly appointed representative. The request must be submitted in writing and must set forth in detail the reasons why the opinion is necessary. All such requests shall be submitted through the Adjudication Officer of the office having jurisdiction over the claim, and those requests which in the judgment of the Adjudication Officer merit consideration shall be referred to the Compensation and Pension Service for approval.
© Approval. Approval shall be granted only upon a determination by the Compensation and Pension Service that the issue under consideration poses a medical problem of such obscurity or complexity, or has generated such controversy in the medical community at large, as to justify solicitation of an independent medical opinion. When approval has been granted, the Compensation and Pension Service shall obtain the opinion. A determination that an independent medical opinion is not warranted may be contested only as part of an appeal on the merits of the decision rendered on the primary issue by the agency of original jurisdiction.
(d) Notification. The Compensation and Pension Service shall notify the claimant when the request for an independent medical opinion has been approved with regard to his or her claim and shall furnish the claimant with a copy of the opinion when it is received. If, in the judgment of the Secretary, disclosure of the independent medical opinion would be harmful to the physical or mental health of the claimant, disclosure shall be subject to the special procedures set forth in 1.577 of this chapter.
(Authority: 38 U.S.C. 5109, 5701(b)(1); 5 U.S.C. 552a(f)(3))
[55 FR 18602, May 3, 1990]
3.329 [Reserved]
-
§20.901 Rule 901. Medical opinions and opinions of the General Counsel.
(a) Opinion from the Veterans Health Administration. The Board may obtain a medical opinion from an appropriate health care professional in the Veterans Health Administration of the Department of Veterans Affairs on medical questions involved in the consideration of an appeal when, in its judgment, such medical expertise is needed for equitable disposition of an appeal. (Authority: 38 U.S.C. 5107(a))
(b) Armed Forces Institute of Pathology opinions. The Board may refer pathologic material to the Armed Forces Institute of Pathology and request an opinion based on that material. (Authority: 38 U.S.C. 7109(a))
© Opinion of the General Counsel. The Board may obtain an opinion from the General Counsel of the Department of Veterans Affairs on legal questions involved in the consideration of an appeal. (Authority: 38 U.S.C. 7104©)
(d) Independent medical expert opinions. When, in the judgment of the Board, additional medical opinion is warranted by the medical complexity or controversy involved in an appeal, the Board may obtain an advisory medical opinion from one or more medical experts who are not employees of the Department of Veterans Affairs. Opinions will be secured, as requested by the Chairman of the Board, from recognized medical schools, universities, clinics, or medical institutions with which arrangements for such opinions have been made by the Secretary of Veterans Affairs. An appropriate official of the institution will select the individual expert, or experts, to give an opinion. (Authority: 38 U.S.C. 7109)
(e) For purposes of this section, the term “the Board” includes the Chairman, the Vice Chairman, any Deputy Vice Chairman, and any Member of the Board before whom a case is pending. (Authority: 38 U.S.C. 5107(a), 7104©, 7109)
[57 FR 4109, Feb. 3, 1992, as amended at 61 FR 20453, May 7, 1996; 66 FR 38159, July 23, 2001]
Supplement Highlights references: 14(3), 44(3).
§20.902 Rule 902. Filing of requests for the procurement of opinions.
The appellant or representative may request that the Board obtain an opinion under Rule 901 (§20.901 of this part). The request must be in writing. It will be granted upon a showing of good cause, such as the identification of a complex or controversial medical or legal issue involved in the appeal which warrants such an opinion. (Authority: 38 U.S.C. 5107(a), 7102©, 7104©, 7109)
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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.
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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
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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
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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
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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.
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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.
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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
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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.
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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
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: 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]
__._,_.___
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Messages
"Keep on, Keepin' on"
Dan Cedusky, Champaign IL "Colonel Dan"
See my web site at:
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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:
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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
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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.
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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.
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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
Posttraumatic Stress Disorder (ptsd)
in VA Disability Claims Research
Posted
BACKGROUND
WHAT VA IS DOING
For more information on VA research:
Web: www.research.va.gov
Tel: (410) 962-1800, ext. 223
July 2006
Development
Research
PTSD
Posttraumatic Stress Disorder (PTSD) is a psychiatric disorder that
can affect people who have experienced life-threatening events, such
combat, a terrorist attack, or a personal assault. Symptoms include
flashbacks, nightmares, depression and social withdrawal, as well as
physical health changes. Treatment often includes cognitivebehavioral
therapy, with safe, controlled imagining or simulations
of the traumatic event.
Areas of focus for VA research on PTSD include evaluations of
treatments involving medication or specialized group therapy, and
studies of neurological factors that may underlie the condition.
Highlights of current or recent research include the following:
• New PTSD program in Puget Sound—A newly formed team
of clinicians and investigators will be studying the symptoms and
characteristics of patients with PTSD who also abuse drugs. The
researchers will also be studying animal models of the condition
to identify which circuits and chemicals in the brain are involved;
and evaluating World War II veterans with the condition to
identify brain changes associated with long-term PTSD.
• PTSD in women—Nearly 400 women veterans are taking
part in a multisite study comparing two treatments: prolongedexposure
therapy, which includes education and exposure to
memories of the trauma; and present-centered therapy, which
focuses on providing emotional support. Both treatments are
designed to boost patients’ overall mental health and functioning.
• Imaging studies show brain changes—A team of VA and Yale
investigators has used magnetic resonance imaging (MRI) and
positron emission tomography (PET) to document changes in
brain chemistry and structure associated with PTSD, yielding
important clues toward the development of new treatments.
SOURCE: http://www.research.va.gov/resources/pubs/..._fact_sheet.pdf