In response to more question concerning Colvin, I have gone back and located an excellent source to help explain what I posted yesterday on Colvin, this is from "THE VETERANS ADVOCATE", A Veterans Law and Advocacy Journal, January - June 2008.
It better explains what I referring to yesterday [Harmon v. Shinseki, No. 07-3778,and follows closely with the Judge's ruling in that case, citing to Colvin.
VA Can’t Base Denial on its Own Medical Judgment
Colvin v. Derwinski, 1 Vet. App. 171 (1991)
Colvin stands for a now deeply embedded and fundamental principle of veterans law-the VA may use only independent medical evidence to support its benefits decisions. The VA may not use the medical opinion or judgment of the VA rater or BVA Veterans Law Judge to support a decision.
For many years prior to Colvin, VA decisions were based on the findings of VA physicians who were part of the decision-making process. A doctor employed by VA would not only provide the medical opinion that would be used to decide the claim, he or she would participate in deciding whether to grant or deny benefits.
This practice of having VA doctors play a decisionmaking role was ended by Colvin.
The Court held that:
If the medical evidence of record is insufficient, or, in
the opinion of the BVA, of doubtful weight or credibility,
the BVA is always free to supplement the
record by seeking an advisory opinion, ordering
a medical examination or citing recognized medical
treatises in its decisions that clearly support its
ultimate conclusions . . . . This procedure ensures that
all medical evidence contrary to the veteran’s claim
will be made known to him and be part of the record
before this Court.
Colvin, 1 Vet.App. at 175.
But advocates must watch out . . . even though the formal procedure of having a VA doctor play a decisionmaking role stopped after Colvin, VA raters and BVA Veterans Law Judges persist in relying on their own medical judgments to decide claims. For example, the VA and BVA may often make a determination that an in-service injury was “acute, without chronic residual disability.” However, the degree of injury and whether any disabilities resulted from the injury are medical assessments that the VA and the Board are not competent to make unless there is independent medical evidence to support that conclusion. This means that in many cases the VA’s determination that an in-service injury
was acute and did not result in chronic disability may violate Colvin.
Another common problem is that the VA may dismiss favorable medical evidence of record without citing to medical evidence in the record or medical literature to support its rejection.
A good rule of thumb based on Colvin is that if there is a VA-made medical
conclusion-not directly based on a medical examination report, advisory opinion, or medical literature-the conclusion may be erroneous because the VA has no independent medical support for its findings.
Decisions containing unsupported medical conclusions should be appealed.
Monday, December 28, 2009
Sunday, December 27, 2009
Harmon v. Shinseki, No. 07-3778, Citing Colvin v. Derwinski, Board Unsubstantiated Medical Conclusion, Hypertension
Building on the Colvin v. Derwinski post of yesterday, we found this October 2009 single judge decision that emphasizes an example where the Board sought to issue it's own unsubstantiated medical opinion. If you recall this is a specific point that the PVA article drew attention to, something to look for when reviewing Board decisions
++++++++++++++++++++++++++++++++++++++++++
In addition, in determining whether the medical evidence is sufficient to make a decision on the claim, the Board must ensure that it does not rely on its own unsubstantiated medical conclusions. See Colvin v. Derwinski, 1 Vet.App. 171, 175 (holding that the Board must point to medical basis other than its own unsubstantiated opinion to support its decision), overruled on other grounds by Hodge v. West, 155 F.3d 1356 (1998). Although the Board noted that the appellant had elevated BP readings of 128 over 92 and 132 over 84 during service (R. at 5), the Board concluded, without support, that "there is no evidence establishing that the veteran's hypertension occurred during his military service." R. at 6 (emphasis added). Whether the in-service BP readings were indicative of hypertension appears to be a medical question, especiallyin the absence of any reasons or bases from the Board as to how it determined that the in-service readings revealed normal BP. See Colvin, 1 Vet.App. at 175.
+++++++++++++++++++++++++++
U.S. Court of Appeals for Veterans Claims
. 07-3778
Harmon-3778.pdf
----------------------------------------------------
Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 07-3778
CARL J. HARMON, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before MOORMAN, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
MOORMAN,Judge: Theappellant, CarlJ.Harmon,appealsthroughcounselaSeptember6,
2007, Board of Veterans' Appeals (Board) decision that denied his claim
for service connection for
hypertension. Record (R.) at 1-12. The appellant filed a brief, and the
Secretary filed a brief.
Claims remanded by the Board are not on appeal. The Court has jurisdiction
pursuant to 38 U.S.C.
§§ 7252(a) and 7266(a) to review the September 6, 2007, Board decision.
A single judge may
conduct that review because the outcome in this case is controlled by the
Court's precedents and "is
not reasonably debatable." Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (
1990). For the following
reasons, the Court will vacate the Board's September 2007 decision as to
the claim for service
connection for hypertension and remand the matter for readjudication.
I. FACTS
Mr. Harmon served on active duty in the U.S. Navy from May 1973 to May
1975 and again
from August 1975 to January 1979. R. at 2. During his 1972 enlistment
examination, Mr. Harmon's
blood pressure (BP) was recorded at 134 over 80. R. at 23. In May 1975, he
suffered an allergic
reaction and was taken to the emergency room. R at 30. At that time, his
BP was 134 over 84. R. at
30. During his May 1975 separation examination, Mr. Harmon's BP was
recorded at 129 over 92.
R. at 32. His BP was checked three more times, twice on May 8, and again
on May 9. R. at 32. His
BP readings on those days were 112 over 62, 118 over 66, and 110 over 66,
respectively. R. at 32.
In March 1976 another BP reading was taken and was 110 over 64. R. at 276.
A May 1976 BP
reading was 120 over 82. R. at 209. In September of 1978 BP readings were
again taken and
recorded at 116 over 80, 110 over 74, and 118 over 66. R. at 260, 263, 279.
During Mr. Harmon's
December 1978 separation examination his BP was recorded at 108 over 78. R.
at 40-44. Beginning
in 2000 through 2006, Mr. Harmon was diagnosed and treated for a number of
different conditions,
including hypertension. R. at 139-98, 340-47.
In July 2003, Mr. Harmon submitted an application for service connection,
in part, for
hypertension. R. at 142, 143-54. In February 2004, the VA regional office (
RO) denied Mr.
Harmon's claim on the basis that there was no medical evidence to
establish the existence of
hypertension during service or within one year of service and there was no
competent medical
evidence to establish a nexus between Mr. Harmon's current diagnosis of
hypertension and his
military service. R. at 297-302. The rating decision noted that service
connection may be granted
on a presumptive basis under 38 C.F.R. § 3.309, but that Mr. Harmon did
not establish the existence
of hypertension of the requisite severity within the specified period of
time after military service.
R. at 299. He submitted a Notice of Disagreement on April 1, 2004. R. at
304-05. The RO issued
a Statement of the Case in January 2006. R. at 310-29. Mr. Harmon
perfected an appeal. R. at 34,
440.
During a hearing before the Board, Mr. Harmon reported that he had
hypertension prior to
leaving service. R. at 427. He testified that he was "held over" for three
days during his second
discharge examination as a result of high BP readings. R. at 427. He
stated that he did not have
additional
high
BP
readings
again
until
the
1980s.
R.
at
428.
On September 6, 2007, the Board issued the decision here on appeal. R. at
1-12. The Board
denied Mr. Harmon's claim for service connection for hypertension because
there was no evidence
of hypertension during service or within one year of service and there was
no competent medical
evidence of record to establish a nexus between the Mr. Harmon's present
diagnosis of hypertension
and his military service. R. at 1-7.
In his brief, Mr. Harmon asserts that the Board's decision is clearly
erroneous because the
2
Board ignored evidence of record and that the Secretary failed in his
duty to assist by not ordering
a medical nexus examination. Appellant's Brief (App. Br.) at 14,16. The
appellant asks the Court
to reverse and remand the Board decision on appeal. App. Br. at 1. In his
brief, the Secretary argues
that there is a plausible basis for the Board's decision and that Mr.
Harmon has not demonstrated that
prejudicial errorhas been committed. Secretary's Brief (Sec'yBr.) at 4.
The Secretaryasks the Court
to affirm the Board decision. Sec'y Br. at 8.
II. ANALYSIS
A. Service Connection
Establishing service connection generally requires medical or, in certain
circumstances, lay
evidence of (1) a current disability; (2) an in-service incurrence or
aggravation of a disease or injury;
and (3) a nexus between the claimed in-service disease or injury and the
present disability. See
Davidson v. Shinseki, ___F.3d___, No. 2009-7075, 2009 WL 2914339 (Fed. Cir.
Sept. 14, 2009),
Hickson v. West, 12 Vet.App. 247, 253 (1999); Caluza v. Brown, 7 Vet.App.
498, 506 (1995), aff'd
per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); see also Heuer v. Brown,
7 Vet.App. 379, 384
(1995). A finding of service connection, or no service connection, is a
finding of fact reviewed
under the "clearly erroneous" standard in 38 U.S.C. § 7261(a)(4).
See Swann v. Brown,
5 Vet.App. 229, 232 (1993). "A factual finding 'is clearlyerroneous when
although there is evidence
to support it, the reviewing court on the entire evidence is left with the
definite and firm conviction
that a mistake has been committed.'" Herseyv. Derwinski, 2 Vet.App. 91, 94 (
1992) (quoting United
States v. U.S. Gypsum Co., 333 U.S. 364 (1948)). The Court may not
substitute its judgment for the
factual determinations of the Board on issues of material fact merely
because the Court would have
decided those issues differently in the first instance. See id.
Moreover, the Board is required to provide a written statement of the
reasons or bases for its
findings and conclusions on all material issues of fact and law presented
on the record; the statement
must be adequate to enable a claimant to understand the precise basis for
the Board's decision, as
well as to facilitate review in this Court.
See 38 U.S.C. § 7104(d)(1); Allday v. Brown,
7 Vet.App. 517, 527 (1995); Simon v. Derwinski, 2 Vet.App. 621, 622 (1992);
Gilbert v. Derwinski,
1 Vet.App. 49, 57 (1990). To comply with this requirement, the Board must
analyze the credibility
3
and probative value of the evidence, account for the evidence that it
finds to be persuasive or
unpersuasive, and provide the reasons for its rejection of any material
evidence favorable to the
claimant. See Caluza, 7 Vet.App at 506; Gabrielson v. Brown, 7 Vet.App. 36,
39-40 (1994).
InthiscasetheBoardfound that there wasno
nexusbetweentheappellant'scurrentcondition
and his military service. R. at 7. As a basis for that determination the
Board cites a lack of medical
evidence indicating that the appellant suffered from hypertension while in
service. R. at 5-7. The
Board decision indicates that the lay evidence offered by the appellant to
support his claim was
excluded from the Board's consideration of this case. R. at 6-7.
Specifically, the Board stated that
"thereis no indication that [theappellant] or his representativepossess
therequisiteknowledge, skill,
experience, training, or education to qualify as medical experts for his
statements to be considered
competent evidence." R. at 6-7 (citing Espiritu v. Derwinski, 2 Vet.App.
492 (1992)). The Board
also stated that lay persons are not competent to offer testimony
regarding diagnosis or causation.
R. at 6-7. The Board committed error by categorically excluding the
appellant's lay testimony
without further analysis.
In its role as factfinder, the Board must first "determin[e] whether lay
evidence is credible
in and of itself, i.e., because of possible bias, conflicting statements,
etc." Buchanan v. Nicholson,
451 F.3d 1331, 1334-37 (Fed. Cir. 2006); see also Miller v. Derwinski, 3
Vet.App. 201, 204 (1992).
In certain situations, lay evidence may be used to diagnose a veteran's
medical condition. See
Jandreau v. Nicholson, 492 F.3d 1372, 1377 (2007) (holding that lay
evidence may be used to
diagnose a condition when "(1) a layperson is competent to identify the
medical condition, (2) the
layperson is reporting a contemporaneous medical diagnosis, or (3) lay
testimony describing
symptoms at the time supports a later diagnosis by a medical professional
"); Barr v. Nicholson, 21
Vet.App. 303, 307 (2007) (stating that "[l]ay testimony is competent . . .
to establish the presence
of observable symptomatology and 'may provide sufficient support for a
claim of service
connection'" (quoting Layno v. Brown, 6 Vet.App. 465, 469 (1994)));
Washington v. Nicholson, 21
Vet.App. 191, 195 (2007) (holding that, "[a]s a layperson, an appellant is
competent to provide
information regarding visible, or otherwise observable, symptoms of
disability"). Further, lay
evidence maybe competent to show continuity of symptomatology under 38 C.F.
R. § 3.303(b). See
Davidson, ___F.3d at___, slip op. at 3 (rejecting the view that "competent
medical evidence is
4
required . . . [when] the determinative issue involves either medical
etiologyor a medical diagnosis."
(citing Jandreau, 492 F.3d at 1376-77)); Savage v. Gober, 10 Vet.App. 488,
497 (1997). When
considering lay evidence, the Board should determine whether the veteran's
disability is the type of
disability for which lay evidence is competent. See Jandreau, 492 F.3d at
1377, (cited in Robinson
v. Shinseki, 312 F. App'x. 336, 339, 2009 WL 524737 (Fed. Cir. 2009). If
the disability is of the type
for which lay evidence is competent, the Board must weigh that evidence
against the other evidence
of record in making its determination regarding the existence of service
connection. See Buchanan,
451 F.3d at1334-37.
The Board indicated in its analysis that it did not consider the lay
testimony of the appellant
because such evidence is categorically incompetent when offered for
purposes of determining
medical causation or diagnosis. R. at 6-7. This is an incorrect
application of law. See Jandreau, 492
F.2d at 1377, Buchanan, 451 F.3d at 1335. Accordingly, a remand is
necessary to allow the Board
to correctly consider the lay evidence and appropriately weigh the
evidence in accordance with law.
B. Duty To Assist – Medical Nexus Examination
Pursuant to 38 U.S.C. § 5103A, the Secretary's duty to assist includes,
in appropriate cases,
the dutyto conduct a thorough and contemporaneous medical examination. See
Green v. Derwinski,
1 Vet.App. 121, 124 (1991). The Secretary's duty to assist requires that
he provide a VA medical
examination to a claimant when there is (1) competent evidence of a
current disability or persistent
or recurrent symptoms of a disability; (2) evidence establishing that an
event, injury, or disease
occurred in service or, for certain diseases, manifestation of the disease
during an applicable
presumptive period for which the claimant qualifies; and (3) an indication
that the disability or
persistent orrecurrent symptomsofthedisabilitymaybeassociated
withtheveteran's serviceorwith
another service-connected disability; but (4) insufficient competent
medical evidence on file for the
Secretary to make a decision on the claim. See 38 U.S.C. § 5103A(d);
Paralyzed Veterans of Am.
v. Sec'y of Veterans Affairs, 345 F.3d 1334, 1355-57 (Fed. Cir. 2003);
Wells v. Principi, 326 F.3d
1381, 1384 (Fed. Cir. 2003); McLendon v. Nicholson, 20 Vet.App. 79, 81 (
2006); 38 C.F.R.
§3.159(c)(4)(i)(2009). TheBoard's"
ultimateconclusionthatamedicalexaminationisnot necessary
pursuant to section 5103A(d)(2) is reviewed under the 'arbitrary,
capricious, an abuse of discretion,
or otherwise not in accordance with law' standard of review." McLendon, 20
Vet.App. at 81; see
5
Haas v. Shinseki, 22 Vet.App. 385, 388 (2009). The Board's underlying
determinations whether the
appellant has a current disability and whether the appellant suffered an
in-service event, injury, or
disease are findings of fact subject to the "clearly erroneous" standard
of review. Id. at 82; see also
38 U.S.C. § 7261(a)(4).
The categorical exclusion of the lay evidence of record in this case from
the Board's analysis
of the appellant's claim necessarily indicates that the Board did not
properly analyze the third prong
of 38 U.S.C. § 5103A(d) when it determined that a VA medical examination
was not warranted. R.
at 6. The Board has the authority to determine whether lay evidence is
competent and to
appropriately weigh such evidence, but it must make those determinations
based upon the standard
articulated in Buchanan, Jandreau, and Davidson as discussed above. If
there is competent lay
evidence, such evidence must be considered when determining whether or not
to order a medical
nexus examination. This Court has held that 38 U.S.C. § 5103A(d)(2)(B)
establishes a "low
threshold" requirement for determining whether or not a medical nexus
examination is warranted.
McLendon, 20 Vet.App. at 83. Consequently, in order for the Secretary to
fulfill his duty to assist
the veteran, the Board must make a determination under the appropriate
legal standard as to whether
or not the offered layevidence is competent, and, if the evidence is
competent, whether that evidence
meets the low threshold described in McLendon for ordering a medical nexus
examination. In addition, in determining whether the medical evidence is sufficient to make a decision on the claim,
the Board must ensure that it does not rely on its own unsubstantiated medical conclusions. See Colvin v. Derwinski, 1 Vet.App. 171, 175 (holding that the Board must point to medical basis other than its own unsubstantiated opinion to support its decision), overruled on other grounds by Hodge v. West, 155 F.3d 1356 (1998). Although the Board noted that the appellant
had elevated BP readings of 128 over 92 and 132 over 84 during service (R. at 5), the Board concluded, without support, that "there is no evidence establishing that the veteran's hypertension occurred during his military service." R. at 6 (emphasis added). Whether the in-service BP readings were indicative of hypertension appears to be a medical question, especiallyin the absence of any reasons or bases from the Board as to how it determined that the in-service readings revealed normal BP. See Colvin, 1 Vet.App. at 175.
6
III. CONCLUSION
After consideration of the appellant's and the Secretary's briefs, and a
review of the record,
the Board's September 6, 2007, decision is VACATED as to the claim for
service connection for
hypertension and the matter is REMANDED to the Board for further
proceedings consistent with
this decision.
DATED: October 14, 2009
Copies to:
Kenneth L. LaVan
General Counsel (027)
7
++++++++++++++++++++++++++++++++++++++++++
In addition, in determining whether the medical evidence is sufficient to make a decision on the claim, the Board must ensure that it does not rely on its own unsubstantiated medical conclusions. See Colvin v. Derwinski, 1 Vet.App. 171, 175 (holding that the Board must point to medical basis other than its own unsubstantiated opinion to support its decision), overruled on other grounds by Hodge v. West, 155 F.3d 1356 (1998). Although the Board noted that the appellant had elevated BP readings of 128 over 92 and 132 over 84 during service (R. at 5), the Board concluded, without support, that "there is no evidence establishing that the veteran's hypertension occurred during his military service." R. at 6 (emphasis added). Whether the in-service BP readings were indicative of hypertension appears to be a medical question, especiallyin the absence of any reasons or bases from the Board as to how it determined that the in-service readings revealed normal BP. See Colvin, 1 Vet.App. at 175.
+++++++++++++++++++++++++++
U.S. Court of Appeals for Veterans Claims
. 07-3778
Harmon-3778.pdf
----------------------------------------------------
Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 07-3778
CARL J. HARMON, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before MOORMAN, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
MOORMAN,Judge: Theappellant, CarlJ.Harmon,appealsthroughcounselaSeptember6,
2007, Board of Veterans' Appeals (Board) decision that denied his claim
for service connection for
hypertension. Record (R.) at 1-12. The appellant filed a brief, and the
Secretary filed a brief.
Claims remanded by the Board are not on appeal. The Court has jurisdiction
pursuant to 38 U.S.C.
§§ 7252(a) and 7266(a) to review the September 6, 2007, Board decision.
A single judge may
conduct that review because the outcome in this case is controlled by the
Court's precedents and "is
not reasonably debatable." Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (
1990). For the following
reasons, the Court will vacate the Board's September 2007 decision as to
the claim for service
connection for hypertension and remand the matter for readjudication.
I. FACTS
Mr. Harmon served on active duty in the U.S. Navy from May 1973 to May
1975 and again
from August 1975 to January 1979. R. at 2. During his 1972 enlistment
examination, Mr. Harmon's
blood pressure (BP) was recorded at 134 over 80. R. at 23. In May 1975, he
suffered an allergic
reaction and was taken to the emergency room. R at 30. At that time, his
BP was 134 over 84. R. at
30. During his May 1975 separation examination, Mr. Harmon's BP was
recorded at 129 over 92.
R. at 32. His BP was checked three more times, twice on May 8, and again
on May 9. R. at 32. His
BP readings on those days were 112 over 62, 118 over 66, and 110 over 66,
respectively. R. at 32.
In March 1976 another BP reading was taken and was 110 over 64. R. at 276.
A May 1976 BP
reading was 120 over 82. R. at 209. In September of 1978 BP readings were
again taken and
recorded at 116 over 80, 110 over 74, and 118 over 66. R. at 260, 263, 279.
During Mr. Harmon's
December 1978 separation examination his BP was recorded at 108 over 78. R.
at 40-44. Beginning
in 2000 through 2006, Mr. Harmon was diagnosed and treated for a number of
different conditions,
including hypertension. R. at 139-98, 340-47.
In July 2003, Mr. Harmon submitted an application for service connection,
in part, for
hypertension. R. at 142, 143-54. In February 2004, the VA regional office (
RO) denied Mr.
Harmon's claim on the basis that there was no medical evidence to
establish the existence of
hypertension during service or within one year of service and there was no
competent medical
evidence to establish a nexus between Mr. Harmon's current diagnosis of
hypertension and his
military service. R. at 297-302. The rating decision noted that service
connection may be granted
on a presumptive basis under 38 C.F.R. § 3.309, but that Mr. Harmon did
not establish the existence
of hypertension of the requisite severity within the specified period of
time after military service.
R. at 299. He submitted a Notice of Disagreement on April 1, 2004. R. at
304-05. The RO issued
a Statement of the Case in January 2006. R. at 310-29. Mr. Harmon
perfected an appeal. R. at 34,
440.
During a hearing before the Board, Mr. Harmon reported that he had
hypertension prior to
leaving service. R. at 427. He testified that he was "held over" for three
days during his second
discharge examination as a result of high BP readings. R. at 427. He
stated that he did not have
additional
high
BP
readings
again
until
the
1980s.
R.
at
428.
On September 6, 2007, the Board issued the decision here on appeal. R. at
1-12. The Board
denied Mr. Harmon's claim for service connection for hypertension because
there was no evidence
of hypertension during service or within one year of service and there was
no competent medical
evidence of record to establish a nexus between the Mr. Harmon's present
diagnosis of hypertension
and his military service. R. at 1-7.
In his brief, Mr. Harmon asserts that the Board's decision is clearly
erroneous because the
2
Board ignored evidence of record and that the Secretary failed in his
duty to assist by not ordering
a medical nexus examination. Appellant's Brief (App. Br.) at 14,16. The
appellant asks the Court
to reverse and remand the Board decision on appeal. App. Br. at 1. In his
brief, the Secretary argues
that there is a plausible basis for the Board's decision and that Mr.
Harmon has not demonstrated that
prejudicial errorhas been committed. Secretary's Brief (Sec'yBr.) at 4.
The Secretaryasks the Court
to affirm the Board decision. Sec'y Br. at 8.
II. ANALYSIS
A. Service Connection
Establishing service connection generally requires medical or, in certain
circumstances, lay
evidence of (1) a current disability; (2) an in-service incurrence or
aggravation of a disease or injury;
and (3) a nexus between the claimed in-service disease or injury and the
present disability. See
Davidson v. Shinseki, ___F.3d___, No. 2009-7075, 2009 WL 2914339 (Fed. Cir.
Sept. 14, 2009),
Hickson v. West, 12 Vet.App. 247, 253 (1999); Caluza v. Brown, 7 Vet.App.
498, 506 (1995), aff'd
per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); see also Heuer v. Brown,
7 Vet.App. 379, 384
(1995). A finding of service connection, or no service connection, is a
finding of fact reviewed
under the "clearly erroneous" standard in 38 U.S.C. § 7261(a)(4).
See Swann v. Brown,
5 Vet.App. 229, 232 (1993). "A factual finding 'is clearlyerroneous when
although there is evidence
to support it, the reviewing court on the entire evidence is left with the
definite and firm conviction
that a mistake has been committed.'" Herseyv. Derwinski, 2 Vet.App. 91, 94 (
1992) (quoting United
States v. U.S. Gypsum Co., 333 U.S. 364 (1948)). The Court may not
substitute its judgment for the
factual determinations of the Board on issues of material fact merely
because the Court would have
decided those issues differently in the first instance. See id.
Moreover, the Board is required to provide a written statement of the
reasons or bases for its
findings and conclusions on all material issues of fact and law presented
on the record; the statement
must be adequate to enable a claimant to understand the precise basis for
the Board's decision, as
well as to facilitate review in this Court.
See 38 U.S.C. § 7104(d)(1); Allday v. Brown,
7 Vet.App. 517, 527 (1995); Simon v. Derwinski, 2 Vet.App. 621, 622 (1992);
Gilbert v. Derwinski,
1 Vet.App. 49, 57 (1990). To comply with this requirement, the Board must
analyze the credibility
3
and probative value of the evidence, account for the evidence that it
finds to be persuasive or
unpersuasive, and provide the reasons for its rejection of any material
evidence favorable to the
claimant. See Caluza, 7 Vet.App at 506; Gabrielson v. Brown, 7 Vet.App. 36,
39-40 (1994).
InthiscasetheBoardfound that there wasno
nexusbetweentheappellant'scurrentcondition
and his military service. R. at 7. As a basis for that determination the
Board cites a lack of medical
evidence indicating that the appellant suffered from hypertension while in
service. R. at 5-7. The
Board decision indicates that the lay evidence offered by the appellant to
support his claim was
excluded from the Board's consideration of this case. R. at 6-7.
Specifically, the Board stated that
"thereis no indication that [theappellant] or his representativepossess
therequisiteknowledge, skill,
experience, training, or education to qualify as medical experts for his
statements to be considered
competent evidence." R. at 6-7 (citing Espiritu v. Derwinski, 2 Vet.App.
492 (1992)). The Board
also stated that lay persons are not competent to offer testimony
regarding diagnosis or causation.
R. at 6-7. The Board committed error by categorically excluding the
appellant's lay testimony
without further analysis.
In its role as factfinder, the Board must first "determin[e] whether lay
evidence is credible
in and of itself, i.e., because of possible bias, conflicting statements,
etc." Buchanan v. Nicholson,
451 F.3d 1331, 1334-37 (Fed. Cir. 2006); see also Miller v. Derwinski, 3
Vet.App. 201, 204 (1992).
In certain situations, lay evidence may be used to diagnose a veteran's
medical condition. See
Jandreau v. Nicholson, 492 F.3d 1372, 1377 (2007) (holding that lay
evidence may be used to
diagnose a condition when "(1) a layperson is competent to identify the
medical condition, (2) the
layperson is reporting a contemporaneous medical diagnosis, or (3) lay
testimony describing
symptoms at the time supports a later diagnosis by a medical professional
"); Barr v. Nicholson, 21
Vet.App. 303, 307 (2007) (stating that "[l]ay testimony is competent . . .
to establish the presence
of observable symptomatology and 'may provide sufficient support for a
claim of service
connection'" (quoting Layno v. Brown, 6 Vet.App. 465, 469 (1994)));
Washington v. Nicholson, 21
Vet.App. 191, 195 (2007) (holding that, "[a]s a layperson, an appellant is
competent to provide
information regarding visible, or otherwise observable, symptoms of
disability"). Further, lay
evidence maybe competent to show continuity of symptomatology under 38 C.F.
R. § 3.303(b). See
Davidson, ___F.3d at___, slip op. at 3 (rejecting the view that "competent
medical evidence is
4
required . . . [when] the determinative issue involves either medical
etiologyor a medical diagnosis."
(citing Jandreau, 492 F.3d at 1376-77)); Savage v. Gober, 10 Vet.App. 488,
497 (1997). When
considering lay evidence, the Board should determine whether the veteran's
disability is the type of
disability for which lay evidence is competent. See Jandreau, 492 F.3d at
1377, (cited in Robinson
v. Shinseki, 312 F. App'x. 336, 339, 2009 WL 524737 (Fed. Cir. 2009). If
the disability is of the type
for which lay evidence is competent, the Board must weigh that evidence
against the other evidence
of record in making its determination regarding the existence of service
connection. See Buchanan,
451 F.3d at1334-37.
The Board indicated in its analysis that it did not consider the lay
testimony of the appellant
because such evidence is categorically incompetent when offered for
purposes of determining
medical causation or diagnosis. R. at 6-7. This is an incorrect
application of law. See Jandreau, 492
F.2d at 1377, Buchanan, 451 F.3d at 1335. Accordingly, a remand is
necessary to allow the Board
to correctly consider the lay evidence and appropriately weigh the
evidence in accordance with law.
B. Duty To Assist – Medical Nexus Examination
Pursuant to 38 U.S.C. § 5103A, the Secretary's duty to assist includes,
in appropriate cases,
the dutyto conduct a thorough and contemporaneous medical examination. See
Green v. Derwinski,
1 Vet.App. 121, 124 (1991). The Secretary's duty to assist requires that
he provide a VA medical
examination to a claimant when there is (1) competent evidence of a
current disability or persistent
or recurrent symptoms of a disability; (2) evidence establishing that an
event, injury, or disease
occurred in service or, for certain diseases, manifestation of the disease
during an applicable
presumptive period for which the claimant qualifies; and (3) an indication
that the disability or
persistent orrecurrent symptomsofthedisabilitymaybeassociated
withtheveteran's serviceorwith
another service-connected disability; but (4) insufficient competent
medical evidence on file for the
Secretary to make a decision on the claim. See 38 U.S.C. § 5103A(d);
Paralyzed Veterans of Am.
v. Sec'y of Veterans Affairs, 345 F.3d 1334, 1355-57 (Fed. Cir. 2003);
Wells v. Principi, 326 F.3d
1381, 1384 (Fed. Cir. 2003); McLendon v. Nicholson, 20 Vet.App. 79, 81 (
2006); 38 C.F.R.
§3.159(c)(4)(i)(2009). TheBoard's"
ultimateconclusionthatamedicalexaminationisnot necessary
pursuant to section 5103A(d)(2) is reviewed under the 'arbitrary,
capricious, an abuse of discretion,
or otherwise not in accordance with law' standard of review." McLendon, 20
Vet.App. at 81; see
5
Haas v. Shinseki, 22 Vet.App. 385, 388 (2009). The Board's underlying
determinations whether the
appellant has a current disability and whether the appellant suffered an
in-service event, injury, or
disease are findings of fact subject to the "clearly erroneous" standard
of review. Id. at 82; see also
38 U.S.C. § 7261(a)(4).
The categorical exclusion of the lay evidence of record in this case from
the Board's analysis
of the appellant's claim necessarily indicates that the Board did not
properly analyze the third prong
of 38 U.S.C. § 5103A(d) when it determined that a VA medical examination
was not warranted. R.
at 6. The Board has the authority to determine whether lay evidence is
competent and to
appropriately weigh such evidence, but it must make those determinations
based upon the standard
articulated in Buchanan, Jandreau, and Davidson as discussed above. If
there is competent lay
evidence, such evidence must be considered when determining whether or not
to order a medical
nexus examination. This Court has held that 38 U.S.C. § 5103A(d)(2)(B)
establishes a "low
threshold" requirement for determining whether or not a medical nexus
examination is warranted.
McLendon, 20 Vet.App. at 83. Consequently, in order for the Secretary to
fulfill his duty to assist
the veteran, the Board must make a determination under the appropriate
legal standard as to whether
or not the offered layevidence is competent, and, if the evidence is
competent, whether that evidence
meets the low threshold described in McLendon for ordering a medical nexus
examination. In addition, in determining whether the medical evidence is sufficient to make a decision on the claim,
the Board must ensure that it does not rely on its own unsubstantiated medical conclusions. See Colvin v. Derwinski, 1 Vet.App. 171, 175 (holding that the Board must point to medical basis other than its own unsubstantiated opinion to support its decision), overruled on other grounds by Hodge v. West, 155 F.3d 1356 (1998). Although the Board noted that the appellant
had elevated BP readings of 128 over 92 and 132 over 84 during service (R. at 5), the Board concluded, without support, that "there is no evidence establishing that the veteran's hypertension occurred during his military service." R. at 6 (emphasis added). Whether the in-service BP readings were indicative of hypertension appears to be a medical question, especiallyin the absence of any reasons or bases from the Board as to how it determined that the in-service readings revealed normal BP. See Colvin, 1 Vet.App. at 175.
6
III. CONCLUSION
After consideration of the appellant's and the Secretary's briefs, and a
review of the record,
the Board's September 6, 2007, decision is VACATED as to the claim for
service connection for
hypertension and the matter is REMANDED to the Board for further
proceedings consistent with
this decision.
DATED: October 14, 2009
Copies to:
Kenneth L. LaVan
General Counsel (027)
7
Tuesday, December 22, 2009
Tinnitus is Number 1 Service-connected Disability Among Returning Veterans
Full Article at: Professor Begins Study of Treatment for Tinnitus Among Military Personnel
Released: 12/16/2009 4:30 PM EST
Source: University of Alabama
Newswise — Dr. Craig Formby, "a University of Alabama researcher is embarking on a $5.6 million phase-three, randomized, controlled clinical trial to evaluate the effectiveness of an innovative treatment that uses a noise-generating device, along with counseling, to alleviate the debilitating effects of tinnitus – that ringing in the ears that drives some people to distraction."
"Tinnitus is the No. 1 service-connected disability among veterans returning from the Middle East conflicts. In 2008, compensation for tinnitus disability in the VA medical system alone exceeded $500 million and is projected to exceed $1.1 billion and affect more that 800,000 veterans by 2011.
“Tinnitus is a noise inside the ear or head in the absence of any sound that could account for it,” Formby says. “We don’t know what happens. In some cases, it’s related to an acoustic insult or gunfire. However, there may be no obvious cause for the tinnitus for many sufferers. It’s some sort of over-stimulation of the auditory system that produces hyperactivity either at a peripheral or central level.”
Most people who have tinnitus ignore it, Formby says, but for some it’s torture. As many as 50 million Americans experience tinnitus. Estimates are that for about 2 to 5 million people, the problem is incapacitating.
“We know of reports of sufferers who have chronic debilitating tinnitus that is so troublesome that they would elect to cut the auditory nerve to get rid of the persistent ringing,” Formby says.
The current standard of care involves counseling people with debilitating tinnitus. The counselors typically try to help the tinnitus sufferer to manage the problem by suggesting coping strategies and by providing information about tinnitus.
“The standard of care historically has included reassurance that the patient’s condition is not life threatening nor an indicator of imminent hearing loss,” he says."
Released: 12/16/2009 4:30 PM EST
Source: University of Alabama
Newswise — Dr. Craig Formby, "a University of Alabama researcher is embarking on a $5.6 million phase-three, randomized, controlled clinical trial to evaluate the effectiveness of an innovative treatment that uses a noise-generating device, along with counseling, to alleviate the debilitating effects of tinnitus – that ringing in the ears that drives some people to distraction."
"Tinnitus is the No. 1 service-connected disability among veterans returning from the Middle East conflicts. In 2008, compensation for tinnitus disability in the VA medical system alone exceeded $500 million and is projected to exceed $1.1 billion and affect more that 800,000 veterans by 2011.
“Tinnitus is a noise inside the ear or head in the absence of any sound that could account for it,” Formby says. “We don’t know what happens. In some cases, it’s related to an acoustic insult or gunfire. However, there may be no obvious cause for the tinnitus for many sufferers. It’s some sort of over-stimulation of the auditory system that produces hyperactivity either at a peripheral or central level.”
Most people who have tinnitus ignore it, Formby says, but for some it’s torture. As many as 50 million Americans experience tinnitus. Estimates are that for about 2 to 5 million people, the problem is incapacitating.
“We know of reports of sufferers who have chronic debilitating tinnitus that is so troublesome that they would elect to cut the auditory nerve to get rid of the persistent ringing,” Formby says.
The current standard of care involves counseling people with debilitating tinnitus. The counselors typically try to help the tinnitus sufferer to manage the problem by suggesting coping strategies and by providing information about tinnitus.
“The standard of care historically has included reassurance that the patient’s condition is not life threatening nor an indicator of imminent hearing loss,” he says."
DoD Fast-Tracks Face Transplants for 200 Veterans
Full Article at: Pentagon Fast-Tracks Face Transplants; 8 Operations in 18 Months
"the Department of Defense wants to fast-track the surgical science, in hopes of helping the estimated 200 veterans who’ve returned from Iraq and Afghanistan with injuries too serious to benefit from basic cosmetic surgery.
The Boston Globe reports that the Defense Department has given a $3.4 million grant to Brigham and Women’s Hospital in Boston, in hopes that the surgical team there — who performed their first facial transplant, and only the second in the country, in April — can operate on six to eight patients in the next 18 months"
"the Department of Defense wants to fast-track the surgical science, in hopes of helping the estimated 200 veterans who’ve returned from Iraq and Afghanistan with injuries too serious to benefit from basic cosmetic surgery.
The Boston Globe reports that the Defense Department has given a $3.4 million grant to Brigham and Women’s Hospital in Boston, in hopes that the surgical team there — who performed their first facial transplant, and only the second in the country, in April — can operate on six to eight patients in the next 18 months"
Wisconsin Veterans Suicide Rate Disporportionally High
Full Article at: Study finds high suicide rates among Wis. veterans
Associated Press
4:01 a.m. CST, December 22, 2009
"A new study says Wisconsin veterans are more likely to commit suicide than the general population is.
The report says veterans make up 8 percent of Wisconsin's population but committed nearly 21 percent of suicides in the state.
Kenneth Black is the secretary of the state Department of Veterans Affairs. He says his department sees the issue of veteran suicide as a growing concern.
The study was conducted by the state Department of Health Services, the Injury Research Center at the Medical College of Wisconsin and a group called Mental Health America.
The report was presented at a recent meeting of the Board of Veterans Affairs, chaired by Marvin Freedman. He says he'll ask the VA to appoint a staff member to address the report."
Associated Press
4:01 a.m. CST, December 22, 2009
"A new study says Wisconsin veterans are more likely to commit suicide than the general population is.
The report says veterans make up 8 percent of Wisconsin's population but committed nearly 21 percent of suicides in the state.
Kenneth Black is the secretary of the state Department of Veterans Affairs. He says his department sees the issue of veteran suicide as a growing concern.
The study was conducted by the state Department of Health Services, the Injury Research Center at the Medical College of Wisconsin and a group called Mental Health America.
The report was presented at a recent meeting of the Board of Veterans Affairs, chaired by Marvin Freedman. He says he'll ask the VA to appoint a staff member to address the report."
Saturday, December 19, 2009
U.S. Military Says Might be Burn Pit Link to Minor Aliments
While this is positive it falls way short of what is needed in these cases. Seems that they are setting up an out through genetic testing and smoking. Meaning that if you are a smoker or fall within some genetic test you may be found to not qualify for disability benefits.
Full Article at: Military: Burn pits could cause long-term damage to troops
"The Department of Defense found that the burn pits, which are used instead of incinerators on some bases and outposts in Iraq and Afghanistan, could cause effects in the short term -- including irritated eyes and upper respiratory system problems -- that can lead to persistent coughing. But the department said "it is less clear what other longer-term health effects [there] may be."
""Over time, we have come to recognize that certain individuals may be more susceptible to the effects of burn-pit smoke than others because of genetics and pre-existing health conditions and that some of these personnel may be at risk of more serious health effects following prolonged smoke exposure, and possibility to other inhalational exposures, such as tobacco smoke and possibly high levels of air borne particulate matter," Postlewaite said this week in a statement provided to CNN.
Certain individuals may be more susceptible ... because of genetics and pre-existing health conditions.
The military now suspects that exposure to burn-pit smoke combined with other factors -- such as smoking, proximity to the pit, certain genetic factors or pre-existing conditions -- could lead to longer-term effects."
Full Article at: U.S. military cites burn pit-illness link
"A U.S. military official has acknowledged there might be a link between open-air burn pits in Iraq and Afghanistan and soldiers' chronic ill health.
Dr. Craig Postlewaite, who serves as the U.S. military's senior health protection official as the director of Force Health Protection and Readiness Programs, told Tuesday's Salt Lake Tribune he's been convinced of a link by the personal stories of veterans coming forward to report long-term health problems.
"We feel at this point in time that it's quite plausible -- in fact likely -- that there are a small number of people that have been affected with longer-term health problems," Postlewaite told the newspaper.
The Tribune said the admission comes only weeks after Postlewaite had defended the Pentagon's position that smoke from open-pit burning had only "minor, temporary effects" on service members who inhaled the fumes.
A U.S. Air Force whistle-blower first raised alarms over the practice, in which toxins including arsenic, formaldehyde and hydrogen cyanide, were set ablaze in acres-large pits. Dozens of soldiers who served at the base have since reportedly suffered or died from rare forms of blood disorders and cancer, including leukemia."
Full Article at: Military: Burn pits could cause long-term damage to troops
"The Department of Defense found that the burn pits, which are used instead of incinerators on some bases and outposts in Iraq and Afghanistan, could cause effects in the short term -- including irritated eyes and upper respiratory system problems -- that can lead to persistent coughing. But the department said "it is less clear what other longer-term health effects [there] may be."
""Over time, we have come to recognize that certain individuals may be more susceptible to the effects of burn-pit smoke than others because of genetics and pre-existing health conditions and that some of these personnel may be at risk of more serious health effects following prolonged smoke exposure, and possibility to other inhalational exposures, such as tobacco smoke and possibly high levels of air borne particulate matter," Postlewaite said this week in a statement provided to CNN.
Certain individuals may be more susceptible ... because of genetics and pre-existing health conditions.
The military now suspects that exposure to burn-pit smoke combined with other factors -- such as smoking, proximity to the pit, certain genetic factors or pre-existing conditions -- could lead to longer-term effects."
Full Article at: U.S. military cites burn pit-illness link
"A U.S. military official has acknowledged there might be a link between open-air burn pits in Iraq and Afghanistan and soldiers' chronic ill health.
Dr. Craig Postlewaite, who serves as the U.S. military's senior health protection official as the director of Force Health Protection and Readiness Programs, told Tuesday's Salt Lake Tribune he's been convinced of a link by the personal stories of veterans coming forward to report long-term health problems.
"We feel at this point in time that it's quite plausible -- in fact likely -- that there are a small number of people that have been affected with longer-term health problems," Postlewaite told the newspaper.
The Tribune said the admission comes only weeks after Postlewaite had defended the Pentagon's position that smoke from open-pit burning had only "minor, temporary effects" on service members who inhaled the fumes.
A U.S. Air Force whistle-blower first raised alarms over the practice, in which toxins including arsenic, formaldehyde and hydrogen cyanide, were set ablaze in acres-large pits. Dozens of soldiers who served at the base have since reportedly suffered or died from rare forms of blood disorders and cancer, including leukemia."
Friday, December 18, 2009
Prescription Drug Abuse Among Active Duty Troops
Hopefully these soon to be veterans are getting this documented in medical records or the VA will flatly deny their claims.
That is perhaps one of the saddest things about such stats, they are important, but the individually affected veterans virtually never get the proper medical documentation, because it is common knowledge and therefore assumed.
Well common knowledge will not get you the disability rating that they deserve,so get medical documentation.
Full Article at: U.S. troops admit abusing prescription drugs
By Gregg Zoroya, USA TODAY
WASHINGTON — "About one in four soldiers admit abusing prescription drugs, most of them pain relievers, in a one-year period, according to a Pentagon health survey released Wednesday.
The study, which surveyed more than 28,500 U.S. troops last year, showed that about 20% of Marines had also abused prescription drugs, mostly painkillers, in that same period."
"The survey showed that pain relievers were the most abused drug in the military, used illicitly at a rate triple that of marijuana or amphetamines, the next most widely abused drugs.
About 15% of soldiers said they had abused prescription drugs in the 30 days before they were questioned for the survey. About 10% of Marines said the same thing."
"USA TODAY reported last year that narcotic pain-relief prescriptions for injured or wounded U.S. troops jumped from 30,000 a month to 50,000 since the Iraq war began."
"Other survey findings include:
•The percentage of troops showing signs of post-traumatic stress disorder increased during the war years. In a 2005 survey, 7% of the servicemembers described symptoms suggesting PTSD. That increased to 11% in the 2008 study.
The largest increases were within the Army and Marine Corps, the two service branches doing most of the fighting in Iraq and Afghanistan. The rate of soldiers who described problems suggestive of PTSD increased from 9% in 2005 to 13% in 2008, and from 8% to 15% among Marines, the survey results show.
•Nearly 60% of Marines admit engaging in binge drinking. The rate of heavy alcohol use — defined as five or more drinks per occasion once a week — among all servicemembers ages 18 to 35 remained higher than in the civilian population.
•Servicemembers admitting that they had thoughts of suicide during the year prior to being surveyed doubled from 1% in 2005 to 2% in 2008."
That is perhaps one of the saddest things about such stats, they are important, but the individually affected veterans virtually never get the proper medical documentation, because it is common knowledge and therefore assumed.
Well common knowledge will not get you the disability rating that they deserve,so get medical documentation.
Full Article at: U.S. troops admit abusing prescription drugs
By Gregg Zoroya, USA TODAY
WASHINGTON — "About one in four soldiers admit abusing prescription drugs, most of them pain relievers, in a one-year period, according to a Pentagon health survey released Wednesday.
The study, which surveyed more than 28,500 U.S. troops last year, showed that about 20% of Marines had also abused prescription drugs, mostly painkillers, in that same period."
"The survey showed that pain relievers were the most abused drug in the military, used illicitly at a rate triple that of marijuana or amphetamines, the next most widely abused drugs.
About 15% of soldiers said they had abused prescription drugs in the 30 days before they were questioned for the survey. About 10% of Marines said the same thing."
"USA TODAY reported last year that narcotic pain-relief prescriptions for injured or wounded U.S. troops jumped from 30,000 a month to 50,000 since the Iraq war began."
"Other survey findings include:
•The percentage of troops showing signs of post-traumatic stress disorder increased during the war years. In a 2005 survey, 7% of the servicemembers described symptoms suggesting PTSD. That increased to 11% in the 2008 study.
The largest increases were within the Army and Marine Corps, the two service branches doing most of the fighting in Iraq and Afghanistan. The rate of soldiers who described problems suggestive of PTSD increased from 9% in 2005 to 13% in 2008, and from 8% to 15% among Marines, the survey results show.
•Nearly 60% of Marines admit engaging in binge drinking. The rate of heavy alcohol use — defined as five or more drinks per occasion once a week — among all servicemembers ages 18 to 35 remained higher than in the civilian population.
•Servicemembers admitting that they had thoughts of suicide during the year prior to being surveyed doubled from 1% in 2005 to 2% in 2008."
Monday, December 14, 2009
CT Scan Radiation Linked to Cancers, Deaths
These are some pretty scary stats, the one important lesson, given the quality control at VA medical centers, is that veterans should ask if a facility has been accredited by the American College of Radiology, and a copy of the latest certification checkup.
Full Article at: Radiation from CT scans linked to cancers, deaths
By Liz Szabo, USA TODAY
"CT scans deliver far more radiation than previously believed and may contribute to 29,000 new cancers each year, along with 14,500 deaths, suggest two studies in today's Archives of Internal Medicine. One study, led by the National Cancer Institute's Amy Berrington de Gonzalez, used existing exposure data to estimate how many cancers might be caused by CT scans.
Another study in the journal suggests the problem may even be worse. In that study, researchers found that people may be exposed to up to four times as much radiation as estimated by earlier studies. While previous studies relied on dummies equipped with sensors, auth"ors of the new paper studied 1,119 patients at four San Francisco-area hospitals, says author Rebecca-Smith Bindman of the University of California-San Francisco. Based on those higher measurements, a patient could get as much radiation from one CT scan as 74 mammograms or 442 chest X-rays, she says."
Full Article at: Radiation from CT scans linked to cancers, deaths
By Liz Szabo, USA TODAY
"CT scans deliver far more radiation than previously believed and may contribute to 29,000 new cancers each year, along with 14,500 deaths, suggest two studies in today's Archives of Internal Medicine. One study, led by the National Cancer Institute's Amy Berrington de Gonzalez, used existing exposure data to estimate how many cancers might be caused by CT scans.
Another study in the journal suggests the problem may even be worse. In that study, researchers found that people may be exposed to up to four times as much radiation as estimated by earlier studies. While previous studies relied on dummies equipped with sensors, auth"ors of the new paper studied 1,119 patients at four San Francisco-area hospitals, says author Rebecca-Smith Bindman of the University of California-San Francisco. Based on those higher measurements, a patient could get as much radiation from one CT scan as 74 mammograms or 442 chest X-rays, she says."
Friday, December 11, 2009
One in Five Adverse Events Reported to VA Medical Centers due to Poor Communication
Poor communication was the cause of one in five adverse events reported to the Veterans Health Administration system from 2001 to 2006, according to a study published in November's Archives of Surgery (archsurg.ama-assn.org/cgi/content/abstract/144/11/1028/). Problems during the perioperative timeout process were a root cause of errors more than 15% of the time.
About half the mistakes occurred in operating rooms, while the other half involved minor surgical procedures performed outside the OR.
Full Article at: Wrong surgeries a product of poor communication
Mix-ups both inside and outside the operating room lead to procedures performed on the incorrect patient or wrong body part, a new study says.
By Kevin B. O'Reilly, amednews staff. Posted Dec. 11.
Communication failures such as poor handoff of critical information between surgical team members are the leading cause of surgeries involving the wrong patient, the wrong side, the wrong body part, the wrong implant or the wrong procedure.
Poor communication was the cause of one in five adverse events reported to the Veterans Health Administration system from 2001 to 2006, according to a study published in November's Archives of Surgery (archsurg.ama-assn.org/cgi/content/abstract/144/11/1028/). Problems during the perioperative timeout process were a root cause of errors more than 15% of the time.
The mistakes appeared to be rare, occurring once every 18,955 surgeries, although a definitive wrong surgery rate could not be established, because some errors go unreported, the study found. A total of 209 adverse events were reported, as were 314 "close calls" in which mistakes were caught before patients were harmed. Of the adverse events, 12% were serious enough to merit root cause analyses.
The VA system in January 2003 adopted a directive for preventing wrong surgeries. The Joint Commission's similar protocol took effect in June 2004. The safety procedures require surgeons and other health professionals to implement a redundant system of checks of the patient's identity, test results, the procedure to be performed and the surgical site. A pre-op timeout for one last check also should be performed.
When those steps are followed, wrong surgeries do not happen, said study co-author James P. Bagian, MD. "We didn't have any adverse events reported where people followed the procedures," said Dr. Bagian, director of the VA's National Center for Patient Safety since 1998.
About half the mistakes occurred in operating rooms, while the other half involved minor surgical procedures performed outside the OR. Studies have estimated that between five and 10 wrong surgeries occur every day in the U.S."
About half the mistakes occurred in operating rooms, while the other half involved minor surgical procedures performed outside the OR.
Full Article at: Wrong surgeries a product of poor communication
Mix-ups both inside and outside the operating room lead to procedures performed on the incorrect patient or wrong body part, a new study says.
By Kevin B. O'Reilly, amednews staff. Posted Dec. 11.
Communication failures such as poor handoff of critical information between surgical team members are the leading cause of surgeries involving the wrong patient, the wrong side, the wrong body part, the wrong implant or the wrong procedure.
Poor communication was the cause of one in five adverse events reported to the Veterans Health Administration system from 2001 to 2006, according to a study published in November's Archives of Surgery (archsurg.ama-assn.org/cgi/content/abstract/144/11/1028/). Problems during the perioperative timeout process were a root cause of errors more than 15% of the time.
The mistakes appeared to be rare, occurring once every 18,955 surgeries, although a definitive wrong surgery rate could not be established, because some errors go unreported, the study found. A total of 209 adverse events were reported, as were 314 "close calls" in which mistakes were caught before patients were harmed. Of the adverse events, 12% were serious enough to merit root cause analyses.
The VA system in January 2003 adopted a directive for preventing wrong surgeries. The Joint Commission's similar protocol took effect in June 2004. The safety procedures require surgeons and other health professionals to implement a redundant system of checks of the patient's identity, test results, the procedure to be performed and the surgical site. A pre-op timeout for one last check also should be performed.
When those steps are followed, wrong surgeries do not happen, said study co-author James P. Bagian, MD. "We didn't have any adverse events reported where people followed the procedures," said Dr. Bagian, director of the VA's National Center for Patient Safety since 1998.
About half the mistakes occurred in operating rooms, while the other half involved minor surgical procedures performed outside the OR. Studies have estimated that between five and 10 wrong surgeries occur every day in the U.S."
Often Overlooked Aid for War Time Veterans
Full Article at: Little known benefit aids war-time veterans, spouses
Editor:
"Those who serve during conflict are eligible for up to $19,000 a year. A little-known benefit for long-term care expenses is available to war-time veterans and their spouses. But the benefit is being overlooked by thousands of families.
The special pension for Veterans Aid and Attendance pays up to $1,644 a month, $19,736 annually toward assisted living, nursing homes or in-home care for veterans 65 and older who served at least 90 days and one day during war-time - stateside or overseas. Veterans and their spouses can receive up to $23,396 annually and spouses of deceased veterans $12,681. Yet, an estimated $22 billion a year goes unclaimed each year.
In 2007, only 134,000 seniors nationwide received the benefit, which was established in 1952. The Veterans Administration will provide help to families to complete the necessary forms so that approval comes in four to six months. The process is streamlined for vets who are blind or have memory issues and widows with medical needs. Most applicants qualify and payments are retroactive."
Editor:
"Those who serve during conflict are eligible for up to $19,000 a year. A little-known benefit for long-term care expenses is available to war-time veterans and their spouses. But the benefit is being overlooked by thousands of families.
The special pension for Veterans Aid and Attendance pays up to $1,644 a month, $19,736 annually toward assisted living, nursing homes or in-home care for veterans 65 and older who served at least 90 days and one day during war-time - stateside or overseas. Veterans and their spouses can receive up to $23,396 annually and spouses of deceased veterans $12,681. Yet, an estimated $22 billion a year goes unclaimed each year.
In 2007, only 134,000 seniors nationwide received the benefit, which was established in 1952. The Veterans Administration will provide help to families to complete the necessary forms so that approval comes in four to six months. The process is streamlined for vets who are blind or have memory issues and widows with medical needs. Most applicants qualify and payments are retroactive."
Tuesday, December 8, 2009
Two Important PTSD Studies, Yale & Duke Univ.'s
In a study, conducted by Alexander Neumeister of Yale University School of Medicine, he found that veterans diagnosed with PTSD along with another syndrome, such as depression, alcohol abuse, substance abuse or suicidal ideation, had different brain images on a CT scan than did those who had been diagnosed only with PTSD.
Neumeister also said that depression with trauma is “biologically distinct” from depression without a history of severe trauma.
In a second Duke University Medical Center study, Christine Marx of Durham Veterans Affairs Medical Center, showed that blood neurosteroid levels correlated to brain neurosteroid levels, so Marx measured the blood neurosteroid levels of 90 male Iraq and Afghanistan veterans. She found that the neurosteroid levels correlated to symptom severity in PTSD, depression and pain issues, and that those levels might be used to predict how a person reacts to therapy as well as to help develop new therapies.
Full Article at: 2 studies: PTSD is chemical change in brain
By Kelly Kennedy - Staff writer
"Two new studies seem to provide more evidence that post-traumatic stress disorder is a chemical change in the brain caused by trauma — and that it might be possible to diagnose, treat and predict susceptibility to it based on brain scans or blood tests.
In one study, Christine Marx, of the Duke University Medical Center and Durham Veterans Affairs Medical Center, wondered why PTSD, depression and pain often occur together.
Researchers already knew that people with PTSD show changes in their neurosteroids, which are brain chemicals thought to play a role in how the body responds to stress.
Previous animal studies showed that blood neurosteroid levels correlated to brain neurosteroid levels, so Marx measured the blood neurosteroid levels of 90 male Iraq and Afghanistan veterans. She found that the neurosteroid levels correlated to symptom severity in PTSD, depression and pain issues, and that those levels might be used to predict how a person reacts to therapy as well as to help develop new therapies.
Marx is researching treatment for people with traumatic brain injuries using the same kind of brain chemical, and early results show that increasing a person’s neurosteroid level decreases his PTSD symptoms.
Marx’s work was funded by the Veterans Affairs Department, National Institutes of Health, the Defense Department and NARSAD, an organization that funds brain and behavior researcher.
A second study, conducted by Alexander Neumeister of Yale University School of Medicine, found that veterans diagnosed with PTSD along with another syndrome, such as depression, alcohol abuse, substance abuse or suicidal ideation, had different brain images on a CT scan than did those who had been diagnosed only with PTSD.
Neumeister became curious after realizing that veterans dealing only with PTSD responded differently to treatment than did those with PTSD and another diagnosis.
He said the finding is important for two reasons.
First, these differences “can have huge implications for treatment,” he said in a statement issued by the American College of Neuropsychopharmacology, which released the two studies during its annual meeting this week.
For example, he said, treating a person with antidepressants addresses only the depression diagnosis — not the PTSD or the substance abuse issues. All of the issues need to be addressed, he said.
His second reason addresses the stigma behind seeking help for PTSD. Service members have said they fear being perceived as weak or cowardly, or their military careers will be hurt, if they seek help for mental health issues.
“Once veterans see this is a neurobiological disorder in which their brain acts differently in terms of circuitry and chemical function, oftentimes it motivates them to seek treatment,” he said.
In his report, Neumeister also said that depression with trauma is “biologically distinct” from depression without a history of severe trauma.
Neumeister also said that depression with trauma is “biologically distinct” from depression without a history of severe trauma.
In a second Duke University Medical Center study, Christine Marx of Durham Veterans Affairs Medical Center, showed that blood neurosteroid levels correlated to brain neurosteroid levels, so Marx measured the blood neurosteroid levels of 90 male Iraq and Afghanistan veterans. She found that the neurosteroid levels correlated to symptom severity in PTSD, depression and pain issues, and that those levels might be used to predict how a person reacts to therapy as well as to help develop new therapies.
Full Article at: 2 studies: PTSD is chemical change in brain
By Kelly Kennedy - Staff writer
"Two new studies seem to provide more evidence that post-traumatic stress disorder is a chemical change in the brain caused by trauma — and that it might be possible to diagnose, treat and predict susceptibility to it based on brain scans or blood tests.
In one study, Christine Marx, of the Duke University Medical Center and Durham Veterans Affairs Medical Center, wondered why PTSD, depression and pain often occur together.
Researchers already knew that people with PTSD show changes in their neurosteroids, which are brain chemicals thought to play a role in how the body responds to stress.
Previous animal studies showed that blood neurosteroid levels correlated to brain neurosteroid levels, so Marx measured the blood neurosteroid levels of 90 male Iraq and Afghanistan veterans. She found that the neurosteroid levels correlated to symptom severity in PTSD, depression and pain issues, and that those levels might be used to predict how a person reacts to therapy as well as to help develop new therapies.
Marx is researching treatment for people with traumatic brain injuries using the same kind of brain chemical, and early results show that increasing a person’s neurosteroid level decreases his PTSD symptoms.
Marx’s work was funded by the Veterans Affairs Department, National Institutes of Health, the Defense Department and NARSAD, an organization that funds brain and behavior researcher.
A second study, conducted by Alexander Neumeister of Yale University School of Medicine, found that veterans diagnosed with PTSD along with another syndrome, such as depression, alcohol abuse, substance abuse or suicidal ideation, had different brain images on a CT scan than did those who had been diagnosed only with PTSD.
Neumeister became curious after realizing that veterans dealing only with PTSD responded differently to treatment than did those with PTSD and another diagnosis.
He said the finding is important for two reasons.
First, these differences “can have huge implications for treatment,” he said in a statement issued by the American College of Neuropsychopharmacology, which released the two studies during its annual meeting this week.
For example, he said, treating a person with antidepressants addresses only the depression diagnosis — not the PTSD or the substance abuse issues. All of the issues need to be addressed, he said.
His second reason addresses the stigma behind seeking help for PTSD. Service members have said they fear being perceived as weak or cowardly, or their military careers will be hurt, if they seek help for mental health issues.
“Once veterans see this is a neurobiological disorder in which their brain acts differently in terms of circuitry and chemical function, oftentimes it motivates them to seek treatment,” he said.
In his report, Neumeister also said that depression with trauma is “biologically distinct” from depression without a history of severe trauma.
Mandamus, Delays, FedCir. Hawkins v. Shinseki, No. 2009-7068
The Federal Circuit case being presented today, Hawkins v. Shinseki, No. 2009-7068, is due to the Dissent, these are good points to consider when filing a mandamus motion with the Veterans Court.
Indeed the 19 yrs delay in this claim is far more common than the FedCir would like to admit.
It is to be hoped that Appellant’s nineteen-year wait does not represent the experience of most veterans, but rather stands as an outlier that this Court should address.
However, until and unless more veterans present such delays to the FedCir. they will be unable to have the evidence needed to reach a decision that delays at the VA are unacceptable.
==================================
Appellant has shown that he lacks adequate alternative means to attain the desired relief and that he has a right to the writ, Cheney v. U.S. Dist. Court, 542 U.S. 367, 380-81 (2004), because the delay in a final appealable adjudication of his case has been “so extraordinary, given the demands on and resources of the Secretary, that it is equivalent to an arbitrary refusal by the Secretary to act.” Ribaudo v. Nicholson, 20 Vet. App. 552 (2007) (citing Costanza v. West, 12 Vet. App. 133, 134 (1999)). The government’s numerous errors in adjudicating Appellant’s claim, which have required multiple remands, cannot be excused as products of a burdened system. See Costanza, 12 Vet. App. at 134. A writ requiring the RO to act within three months would not constitute a substitute for the appeals process, nor would it involve a review of the merits of Appellant’s case. See 38 U.S.C. § 7292(d).
====================================
NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2009-7068
ELMER A. HAWKINS,
Claimant-Appellant,
v.
ERIC K. SHINSEKI, Secretary of Veterans Affairs,
Respondent-Appellee.
J. Myers Morton, Morton & Morton, PLLC, of Knoxville, Tennessee, argued for claimant-appellant.
Allison Kidd-Miller, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, argued for respondent-appellee. With her on the brief were Tony West, Assistant Attorney General, Jeanne E. Davidson, Director, and Brian M. Simkin, Assistant Director. Of counsel on the brief were David J. Barrans, Deputy Assistant General Counsel, and Y. Ken Lee, Attorney, Office of the General Counsel, United States Department of Veterans Affairs, of Washington, DC.
Appealed from: United States Court of Appeals for Veterans Claims
Judge Mary J. Schoelen
NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2009-7068
ELMER A. HAWKINS,
Claimant-Appellant,
v.
ERIC K. SHINSEKI, Secretary of Veterans Affairs,
Respondent-Appellee.
Appeal from the United States Court of Appeals for Veterans Claims in 08-2336.
__________________________
DECIDED: December 7, 2009
__________________________
Before MAYER and RADER, Circuit Judges, and WILKEN,* District Judge.
Opinion for the court filed by Circuit Judge MAYER. Dissenting opinion filed by District Judge, WILKEN.
MAYER, Circuit Judge.
Elmer A. Hawkins challenges the Court of Appeals for Veterans Claims (“Veterans Court”) refusal to issue a writ of mandamus. Hawkins v. Peake, Sec’y of Veterans Affairs, No. 08-2336 (Ct. Vet. App. Feb. 23, 2009). We affirm.
Hawkins seeks a writ of mandamus to instruct the Secretary of Veterans Affairs ____________________________
* Honorable Claudia Wilken, District Judge, United States District Court for
the Northern District of California, sitting by designation.
2009-7068 2
to: disclose medical files, records, reports, and other documents pertaining to the petitioner’s claim; grant the petitioner service connection; abide by the Veterans Court’s remand instructions; and “adjudicate petitioner’s claim under general principles of fair process according to law of this case and Thurber v. Brown, 5 Vet. App. 119 (1993).”
We review this case under the All Writs Act. See 28 U.S.C. § 1651(a). A writ of mandamus will issue if a petitioner can show: (1) no other adequate means to attain the desired relief; and (2) an indisputable right to issuance of the writ. Cheney v. U.S. Dist. Ct., 542 U.S. 367, 380-81 (2004). Hawkins has not met this burden.
The Veterans Court remanded Hawkins’s appeal to the Board of Veterans’ Appeals. The board has remanded to a regional office (“RO”) of the Department of Veterans Affairs (“VA”) to ensure compliance with a March 2006 order of the Veterans Court. The RO may yet grant Hawkins VA benefits. Even if no VA benefits are granted by the RO, Hawkins has access to appellate review. As such, adequate means exist to attain the desired relief. Additionally, remand to the RO for developing a more complete record benefits Hawkins. The RO’s March 25, 2008, Supplemental Statement of the Case denied service connection. Without service connection an indisputable right to the expansive relief sought in Hawkins’s petition for a writ of mandamus does not exist. Accordingly, the Veterans Court did not abuse its discretion in denying the writ.
NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2009-7068
ELMER A. HAWKINS,
Claimant-Appellant,
v.
ERIC K. SHINSEKI, Secretary of Veterans Affairs,
Respondent-Appellee.
Appeal from the United States Court of Appeals for Veterans Claims in 08-2336.
WILKEN, District Judge, dissenting.
I respectfully dissent. I would grant Appellant’s writ.
Appellant, a Vietnam War veteran, has waited almost two decades for a final decision on his benefits application. His claim, filed on October 22, 1990, asserts that his chronic and severe medical conditions are connected to his service due to exposure to Agent Orange. Over the past nineteen years, the Department of Veterans Affairs (“DVA”) and its predecessor, the Veterans’ Administration, have made repeated errors which have prolonged the decision-making process. Appellant’s case is currently again before a regional office (“RO”) of the DVA, on remand from the Board of Veterans’ Appeals.
I would issue a narrowly-tailored writ to expedite the resolution of Appellant’s claim. The writ would require the RO to adjudicate his claim within three months. This
2009-7068 2
Court would retain jurisdiction to monitor the progress of the case to a final, appealable decision.
Appellant has shown that he lacks adequate alternative means to attain the desired relief and that he has a right to the writ, Cheney v. U.S. Dist. Court, 542 U.S. 367, 380-81 (2004), because the delay in a final appealable adjudication of his case has been “so extraordinary, given the demands on and resources of the Secretary, that it is equivalent to an arbitrary refusal by the Secretary to act.” Ribaudo v. Nicholson, 20 Vet. App. 552 (2007) (citing Costanza v. West, 12 Vet. App. 133, 134 (1999)). The government’s numerous errors in adjudicating Appellant’s claim, which have required multiple remands, cannot be excused as products of a burdened system. See Costanza, 12 Vet. App. at 134. A writ requiring the RO to act within three months would not constitute a substitute for the appeals process, nor would it involve a review of the merits of Appellant’s case. See 38 U.S.C. § 7292(d).
Issuing a writ here would not expose the Court to a flood of similar claims. It is to be hoped that Appellant’s nineteen-year wait does not represent the experience of most veterans, but rather stands as an outlier that this Court should address.
Indeed the 19 yrs delay in this claim is far more common than the FedCir would like to admit.
It is to be hoped that Appellant’s nineteen-year wait does not represent the experience of most veterans, but rather stands as an outlier that this Court should address.
However, until and unless more veterans present such delays to the FedCir. they will be unable to have the evidence needed to reach a decision that delays at the VA are unacceptable.
==================================
Appellant has shown that he lacks adequate alternative means to attain the desired relief and that he has a right to the writ, Cheney v. U.S. Dist. Court, 542 U.S. 367, 380-81 (2004), because the delay in a final appealable adjudication of his case has been “so extraordinary, given the demands on and resources of the Secretary, that it is equivalent to an arbitrary refusal by the Secretary to act.” Ribaudo v. Nicholson, 20 Vet. App. 552 (2007) (citing Costanza v. West, 12 Vet. App. 133, 134 (1999)). The government’s numerous errors in adjudicating Appellant’s claim, which have required multiple remands, cannot be excused as products of a burdened system. See Costanza, 12 Vet. App. at 134. A writ requiring the RO to act within three months would not constitute a substitute for the appeals process, nor would it involve a review of the merits of Appellant’s case. See 38 U.S.C. § 7292(d).
====================================
NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2009-7068
ELMER A. HAWKINS,
Claimant-Appellant,
v.
ERIC K. SHINSEKI, Secretary of Veterans Affairs,
Respondent-Appellee.
J. Myers Morton, Morton & Morton, PLLC, of Knoxville, Tennessee, argued for claimant-appellant.
Allison Kidd-Miller, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, argued for respondent-appellee. With her on the brief were Tony West, Assistant Attorney General, Jeanne E. Davidson, Director, and Brian M. Simkin, Assistant Director. Of counsel on the brief were David J. Barrans, Deputy Assistant General Counsel, and Y. Ken Lee, Attorney, Office of the General Counsel, United States Department of Veterans Affairs, of Washington, DC.
Appealed from: United States Court of Appeals for Veterans Claims
Judge Mary J. Schoelen
NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2009-7068
ELMER A. HAWKINS,
Claimant-Appellant,
v.
ERIC K. SHINSEKI, Secretary of Veterans Affairs,
Respondent-Appellee.
Appeal from the United States Court of Appeals for Veterans Claims in 08-2336.
__________________________
DECIDED: December 7, 2009
__________________________
Before MAYER and RADER, Circuit Judges, and WILKEN,* District Judge.
Opinion for the court filed by Circuit Judge MAYER. Dissenting opinion filed by District Judge, WILKEN.
MAYER, Circuit Judge.
Elmer A. Hawkins challenges the Court of Appeals for Veterans Claims (“Veterans Court”) refusal to issue a writ of mandamus. Hawkins v. Peake, Sec’y of Veterans Affairs, No. 08-2336 (Ct. Vet. App. Feb. 23, 2009). We affirm.
Hawkins seeks a writ of mandamus to instruct the Secretary of Veterans Affairs ____________________________
* Honorable Claudia Wilken, District Judge, United States District Court for
the Northern District of California, sitting by designation.
2009-7068 2
to: disclose medical files, records, reports, and other documents pertaining to the petitioner’s claim; grant the petitioner service connection; abide by the Veterans Court’s remand instructions; and “adjudicate petitioner’s claim under general principles of fair process according to law of this case and Thurber v. Brown, 5 Vet. App. 119 (1993).”
We review this case under the All Writs Act. See 28 U.S.C. § 1651(a). A writ of mandamus will issue if a petitioner can show: (1) no other adequate means to attain the desired relief; and (2) an indisputable right to issuance of the writ. Cheney v. U.S. Dist. Ct., 542 U.S. 367, 380-81 (2004). Hawkins has not met this burden.
The Veterans Court remanded Hawkins’s appeal to the Board of Veterans’ Appeals. The board has remanded to a regional office (“RO”) of the Department of Veterans Affairs (“VA”) to ensure compliance with a March 2006 order of the Veterans Court. The RO may yet grant Hawkins VA benefits. Even if no VA benefits are granted by the RO, Hawkins has access to appellate review. As such, adequate means exist to attain the desired relief. Additionally, remand to the RO for developing a more complete record benefits Hawkins. The RO’s March 25, 2008, Supplemental Statement of the Case denied service connection. Without service connection an indisputable right to the expansive relief sought in Hawkins’s petition for a writ of mandamus does not exist. Accordingly, the Veterans Court did not abuse its discretion in denying the writ.
NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2009-7068
ELMER A. HAWKINS,
Claimant-Appellant,
v.
ERIC K. SHINSEKI, Secretary of Veterans Affairs,
Respondent-Appellee.
Appeal from the United States Court of Appeals for Veterans Claims in 08-2336.
WILKEN, District Judge, dissenting.
I respectfully dissent. I would grant Appellant’s writ.
Appellant, a Vietnam War veteran, has waited almost two decades for a final decision on his benefits application. His claim, filed on October 22, 1990, asserts that his chronic and severe medical conditions are connected to his service due to exposure to Agent Orange. Over the past nineteen years, the Department of Veterans Affairs (“DVA”) and its predecessor, the Veterans’ Administration, have made repeated errors which have prolonged the decision-making process. Appellant’s case is currently again before a regional office (“RO”) of the DVA, on remand from the Board of Veterans’ Appeals.
I would issue a narrowly-tailored writ to expedite the resolution of Appellant’s claim. The writ would require the RO to adjudicate his claim within three months. This
2009-7068 2
Court would retain jurisdiction to monitor the progress of the case to a final, appealable decision.
Appellant has shown that he lacks adequate alternative means to attain the desired relief and that he has a right to the writ, Cheney v. U.S. Dist. Court, 542 U.S. 367, 380-81 (2004), because the delay in a final appealable adjudication of his case has been “so extraordinary, given the demands on and resources of the Secretary, that it is equivalent to an arbitrary refusal by the Secretary to act.” Ribaudo v. Nicholson, 20 Vet. App. 552 (2007) (citing Costanza v. West, 12 Vet. App. 133, 134 (1999)). The government’s numerous errors in adjudicating Appellant’s claim, which have required multiple remands, cannot be excused as products of a burdened system. See Costanza, 12 Vet. App. at 134. A writ requiring the RO to act within three months would not constitute a substitute for the appeals process, nor would it involve a review of the merits of Appellant’s case. See 38 U.S.C. § 7292(d).
Issuing a writ here would not expose the Court to a flood of similar claims. It is to be hoped that Appellant’s nineteen-year wait does not represent the experience of most veterans, but rather stands as an outlier that this Court should address.
Thursday, December 3, 2009
West Virginia Launches Statewide PTSD Program
Full Article at: New Program Launched to Help Veterans With Injuries, Illnesses
Updated Thursday, December 3, 2009; 08:03 AM
Story by Sarah Lieu
"A new program is being launched in West Virginia to help veterans who suffer from traumatic brain injuries or post traumatic stress disorder.
It's being coordinated by the West Virginia Division of Veterans Affairs and is the first of its kind in the nation to operate on a statewide level.
"Post traumatic stress and traumatic brain injuries are kind of the illnesses of this war," said Mike Lyons with the West Virginia Division of Veterans Affairs, referring to the wars in Iraq and Afghanistan.
There is a growing tide of combat veterans coming home with these unseen scars. That's why the agency is hiring four social workers to find those veterans particularly in rural West Virginia.
State lawmakers approved the money in the last legislative session after hearing about the growing need for help.
The social workers in the program will be placed in each area of the state -- Martinsburg, Beckley, Clarksburg and the Charleston and Huntington area.
It's expected to start in January.
Updated Thursday, December 3, 2009; 08:03 AM
Story by Sarah Lieu
"A new program is being launched in West Virginia to help veterans who suffer from traumatic brain injuries or post traumatic stress disorder.
It's being coordinated by the West Virginia Division of Veterans Affairs and is the first of its kind in the nation to operate on a statewide level.
"Post traumatic stress and traumatic brain injuries are kind of the illnesses of this war," said Mike Lyons with the West Virginia Division of Veterans Affairs, referring to the wars in Iraq and Afghanistan.
There is a growing tide of combat veterans coming home with these unseen scars. That's why the agency is hiring four social workers to find those veterans particularly in rural West Virginia.
State lawmakers approved the money in the last legislative session after hearing about the growing need for help.
The social workers in the program will be placed in each area of the state -- Martinsburg, Beckley, Clarksburg and the Charleston and Huntington area.
It's expected to start in January.
Iraq war changed soldier accused in slayings according to his wife
Full Article at: Wife: Iraq war changed soldier accused in slayings
By MARY ESCH (AP) – 37 minutes ago
ALBANY, N.Y. — "Relatives of a Fort Drum soldier accused of stabbing his two Army buddies to death said Thursday that he told them he saw his best friend "blown to pieces" in Iraq and came back a changed man: abusive, violent, sleepless, edgy and plagued by flashbacks.
Spc. Joshua Hunter, a military policeman, was expected to be arraigned on second-degree murder charges Friday morning, three days after the bodies of Waide James, 20, and Diego Valbuena, 23, were found in their apartment just outside Fort Drum, about 140 miles northwest of Albany. Hunter and the two victims served in Iraq at the same time in the same battalion.
They all were based at the wind-swept Army post near the Canadian border, home of the much-deployed 10th Mountain Division, and shared an off-base apartment.
Hunter's wife, Emily Hunter, told The Associated Press in a phone interview that her husband was outgoing before he went to war, but when he returned stateside, he was an emotional wreck.
"He wasn't in any good mental shape at all," Emily Hunter said. "I tried to get him to go to therapy. They prescribed him medicine and stuff, but it just wasn't enough."
She said he saw a therapist at Fort Drum because of his volatile emotions and violent outbursts.
"He'd just burst into tears; spouts of anger or sadness," she said. "There'd be one emotion but it would be really deep, just extremely happy or extremely sad. His emotions were always on the rocks."
"He'd take his rage out on the wall, or throw something," she said.
While he wasn't violent toward his buddies, he was toward her, she said, adding that she went to the hospital a couple of times for treatment of an injured arm and thumb."
By MARY ESCH (AP) – 37 minutes ago
ALBANY, N.Y. — "Relatives of a Fort Drum soldier accused of stabbing his two Army buddies to death said Thursday that he told them he saw his best friend "blown to pieces" in Iraq and came back a changed man: abusive, violent, sleepless, edgy and plagued by flashbacks.
Spc. Joshua Hunter, a military policeman, was expected to be arraigned on second-degree murder charges Friday morning, three days after the bodies of Waide James, 20, and Diego Valbuena, 23, were found in their apartment just outside Fort Drum, about 140 miles northwest of Albany. Hunter and the two victims served in Iraq at the same time in the same battalion.
They all were based at the wind-swept Army post near the Canadian border, home of the much-deployed 10th Mountain Division, and shared an off-base apartment.
Hunter's wife, Emily Hunter, told The Associated Press in a phone interview that her husband was outgoing before he went to war, but when he returned stateside, he was an emotional wreck.
"He wasn't in any good mental shape at all," Emily Hunter said. "I tried to get him to go to therapy. They prescribed him medicine and stuff, but it just wasn't enough."
She said he saw a therapist at Fort Drum because of his volatile emotions and violent outbursts.
"He'd just burst into tears; spouts of anger or sadness," she said. "There'd be one emotion but it would be really deep, just extremely happy or extremely sad. His emotions were always on the rocks."
"He'd take his rage out on the wall, or throw something," she said.
While he wasn't violent toward his buddies, he was toward her, she said, adding that she went to the hospital a couple of times for treatment of an injured arm and thumb."
El Paso VA's Clinic Opens Doors To Females
Full Article at: El Paso Veteran's Clinic Opens Doors To Females
"Female veterans in the borderland now have a medical clinic of their own. The new women’s clinic at the El Paso VA recently opened its doors inside the William Beaumont Army Medical Center.
The clinic is run by women for women. It's hoped the added privacy will convince more female vets to seek medical care. There are currently more than 13,000 female vets in the borderland.
“We have to have a little more attention. There are other health issues that we have to take care of, " said Rubina Garrison. Garrison is back in El Paso after serving 21 years in the Navy. She's just one of hundreds of female veterans lining up to be seen by female doctors and nurses at the new women's clinic.
The demand for appointments at the new clinic is so high, appointments are already extending into March."
"Female veterans in the borderland now have a medical clinic of their own. The new women’s clinic at the El Paso VA recently opened its doors inside the William Beaumont Army Medical Center.
The clinic is run by women for women. It's hoped the added privacy will convince more female vets to seek medical care. There are currently more than 13,000 female vets in the borderland.
“We have to have a little more attention. There are other health issues that we have to take care of, " said Rubina Garrison. Garrison is back in El Paso after serving 21 years in the Navy. She's just one of hundreds of female veterans lining up to be seen by female doctors and nurses at the new women's clinic.
The demand for appointments at the new clinic is so high, appointments are already extending into March."
Wednesday, December 2, 2009
Ortiz v. U.S., No. 08-16004, Federal Tort Claim Involving Suicide
The court permissibly rejected Jacobson's opinion testimony, the only evidence Plaintiff presented that the actions of the VA hospital staff breached the prevailing professional standards of care. For that reason, Plaintiff did not prove her negligence case. And, the court did not err in granting judgment to the United States.
Full Article at: Leagle, Inc.
ORTIZ v. U.S.
EVELYN ORTIZ, as Personal Representative of the Estate of Rafael I. Ortiz-Pagan, Plaintiff-Appellant,
v.
UNITED STATES OF AMERICA, Defendant-Appellee.
No. 08-16004. Non-Arugument Calendar.
United States Court of Appeals, Eleventh Circuit.
November 30, 2009.
Before BLACK, WILSON and COX, Circuit Judges.
DO NOT PUBLISH
COX, Circuit Judge.
I. BACKGROUND
On Monday, March 17, 2003, Rafael Ortiz-Pagan presented to the emergency room at the Department of Veterans Affairs Hospital in Gainesville, Florida ("the hospital" or "the VA"). Ortiz was a chronic pain patient and had overdosed on his pain medication. The emergency room physician kept Ortiz in the emergency room overnight and ordered a psychiatry consult. The psychiatry resident physician who examined and interviewed Ortiz in the late morning on Tuesday, March 18, invoked The Florida Mental Health Act to involuntarily commit Ortiz to the psychiatric ward of the hospital and placed him on suicide precautions.
Ortiz spent much of the day on Tuesday, March 18, on suicide precautions, in the day room of the psychiatric ward, under constant one-on-one observation by a nurse. During that time, he was evaluated by a staff psychiatrist, Dr. Camilo Martin. In the early afternoon, Martin concluded that Ortiz did not require suicide precautions and downgraded his observational status to close observation. On close observation, patients are assigned a room and observed by a nurse at fifteen-minute intervals.
During the afternoon of March 18, both before and after he had been downgraded to close observation status, Ortiz visited with his wife and sons in the day room of the psychiatric ward. After he was changed to close observation status, the nursing staff checked on him every fifteen minutes. His family departed after 8:00 p.m. Ortiz went to his room and laid in bed. The room Ortiz occupied had several patient beds separated by partitions. There were three other patients in the room. Ortiz was assigned the third bed on the left, a corner bed by a window.
At 11:45 p.m., Ortiz was observed in his bed. At 12:03 a.m. on Wednesday, March 19, 2003, a nurse found Ortiz hanging from a bed sheet attached to the window.[ 1 ] He had committed suicide.
Ortiz's widow ("Plaintiff") brought this lawsuit against the United States under the Federal Tort Claims Act, 28 U.S.C. §§ 1346 & 2671-80, alleging that the hospital staff had been negligent in failing to adequately care for and supervise Ortiz. (R.1-1.) At trial, Plaintiff presented expert testimony from Dr. Gary Jacobson. Jacobson had reviewed Ortiz's medical records and opined that hospital personnel breached the standard of care by negligently failing to conclude that Ortiz was a suicide risk. He further opined that, as a result of the failure to recognize Ortiz was at risk for suicide, the hospital staff failed to monitor Ortiz adequately and failed to place him in an environment that would prevent his suicide. The United States did not present an independent expert witness to rebut Jacobson's testimony. The treating physicians and nurses who interacted with Ortiz on the psychiatric ward testified about their examinations and interactions with him, their assessment of his medical condition, and the actions they took during his hospital stay.
The district court issued a memorandum of decision. The court rejected Jacobson's opinions that the hospital staff had breached the standard of care, offering as an general explanation: "Dr. Jacobson's testimony and his conclusions about Mr. Ortiz were based entirely upon entries in the medical records, some of which were taken out of context and which were later explained in more detail in testimony from treating psychiatrists and nurses." (R.1-73 ¶80.) The court gave specific examples of testimony by treating professionals from which the court concluded that Jacobson's opinions, based solely on the medical record, misinterpreted Ortiz's condition. (Id. ¶¶81-83.) The court stated, "Dr. Jacobson's conclusion that Mr. Ortiz was under an imminent risk of suicide at the VA hospital on March 18, 2003, and that the staff negligently failed to monitor him is not confirmed by the testimony at trial or by the medical records." (Id. ¶87.)
The court also found, "The reasons Dr. Martin gave for removing Mr. Ortiz from suicide precautions reflect a reasonable medical assessment of Mr. Ortiz's condition and his treatment needs," (id. ¶86), and "Dr. Martin's decision to take Mr. Ortiz off of suicide precautions reflects a reasonable medical judgment." (Id. ¶91.) The order concludes, "Under the evidence presented at trial I cannot find that the VA medical staff was negligent in their care and treatment of Mr. Ortiz nor can I find that any act of the VA staff was the proximate cause of his death." (Id. ¶90.)
The court entered judgment for the United States. Plaintiff appeals.
II. ISSUES ON APPEAL AND CONTENTIONS OF THE PARTIES
Plaintiff argues that the district court clearly erred by not adopting Jacobson's opinion that Ortiz was suicidal and by finding that the hospital staff was not negligent and did not cause Ortiz's death. Plaintiff argues that Jacobson's testimony was the only expert testimony on the standard of care and the breach thereof and therefore should have been accepted by the district court.
The United States responds that the district court did not commit error by rejecting Plaintiff's expert witness's opinions and concluding that the hospital staff had not been negligent. The United States argues that a trier of fact may reject an expert's opinions based upon any evidence in the record, whether or not that evidence is offered by another expert witness.
III. STANDARDS OF REVIEW
We review the district court's findings of fact for clear error. Whitley v. United States, 170 F.3d 1061, 1068 n.14 (11th Cir. 1999) (citing Horton v. Reliance Standard Life Ins. Co., 141 F.3d 1038, 1040 (11th Cir.1998). "We cannot find clear error unless `we are left with a definite and firm conviction that a mistake has been committed.'" United States v. Crawford, 407 F.3d 1174, 1177 (11th Cir. 2005) (quoting Glassroth v. Moore, 335 F.3d 1282, 1292 (11th Cir. 2003)).
We review a district court's application of law to the facts de novo. Whitley, 170 F.3d at 1068 (citing Reich v. Davis, 50 F.3d 962, 964 (11th Cir. 1995)).
IV. DISCUSSION
In actions brought under the Federal Tort Claims Act, liability is determined under the law of the state in which the alleged negligence occurred. 28 U.S.C. § 1346(b)(1); F.D.I.C. v. Meyer, 510 U.S. 471, 478, 114 S. Ct. 996, 1001 (1994). Under Florida law, a hospital may be liable for the death of a inpatient who commits suicide. Paddock v. Chacko, 522 So.2d 410, 417 (Fla. 5th DCA 1988) ("Where a patient has surrendered himself to the custody, care and treatment of a psychiatric hospital and its staff, liability may be predicated upon the hospital's failure to take protective measures to prevent the patient from injuring himself.") As in all medical malpractice cases,
[T]he claimant shall have the burden of proving by the greater weight of evidence that the alleged actions of the health care provider represented a breach of the prevailing professional standard of care for that health care provider. The prevailing professional standard of care for a given health care provider shall be that level of care, skill, and treatment which, in light of all relevant surrounding circumstances, is recognized as acceptable and appropriate by reasonably prudent similar health care providers.
Fla. Stat. Ann. § 766.102(1).
In this case, Jacobson gave an expert opinion that the hospital staff should have recognized Ortiz was at acute risk of suicide. (R.2-81 at 47-48.) Jacobson's opinion that the hospital breached the standard of care by failing to diagnose Ortiz as suicidal was based upon his review of medical records that the VA maintained on Ortiz, including outpatient clinic, emergency room, and inpatient hospital records. (Id. at 48.)
The United States did not present an expert witness to opine as to the standard of care. The United States called the doctors and nursing staff members who interacted with Ortiz to explain their medical notes and treatment of Ortiz during his March 2003 stay in the hospital. From that testimony, the district court concluded that Jacobson had misinterpreted notes in the medical record, the only information about Ortiz upon which Jacobson based his opinions. (See R.1-73 ¶¶ 80-83.) And, for that reason, the district court rejected Jacobson's expert opinion of misdiagnosis. (Id. ¶ 87 ("Dr. Jacobson's conclusion that Mr. Ortiz was under an imminent risk of suicide at the VA hospital on March 18, 2003, . . . is not confirmed by the testimony at trial or by the medical records."))
The court did not clearly err. It was within the court's province as fact finder to conclude that Jacobson's opinion that the hospital staff breached the standard of care in failing to recognize Ortiz as suicidal should not be credited. Mims v. United States, 375 F.2d 135, 143 (5th Cir. 1967) ("[E]xpert opinion evidence may be rebutted by showing the incorrectness or inadequacy of the factual assumptions on which the opinion is based . . .");[ 2 ] Easkold v. Rhodes, 614 So.2d 495, 497-98 (Fla. 1993) (jury may disregard a medical expert's opinion, even in the absence of expert testimony to the contrary, if it finds that the medical record upon which the expert opinion was based is incomplete); see also Fla. Std. Jury Instr. (Civ.) 2.2(b) ("You may accept [expert] opinion testimony, reject it, or give it the weight you think it deserves, considering the knowledge, skill, experience, training, or education of the witness, the reasons given by the witness for the opinion expressed, and all the other evidence in the case.") (emphasis added).
The other opinions Jacobson offered regarding breaches of the standard of care concern the standard of care for patients who are suicidal. Jacobson testified that the standard of care for protecting a suicidal patient "is to observe that patient frequently enough that they are not able to make [suicide] attempts . . . in a hospital." (R.2-81 at 51.) Jacobson testified that monitoring a suicidal patient at fifteen-minute increments was inadequate. (Id.) He also testified that a hospital has a duty to provide a safe environment, including providing an environment in which "there's no means or the means are as limited as possible to harm oneself." (R.2-81 at 54-55.) He testified that, paired with inadequate monitoring, placing a suicidal patient in a room with a window that opens so as to allow attachment of a means of hanging would be a breach of the standard of care. (R.2-81 at 55-56.)
Having rejected Jacobson's opinion that the hospital staff negligently failed to diagnose Ortiz as suicidal, the district court did not err in disregarding Jacobson's opinions that the hospital staff breached the standards of care for observation and placement of a suicidal patient. Those opinions became irrelevant once the district court determined that the hospital staff acted reasonably in concluding that Ortiz was not an acute risk for suicide. And, the district court properly disregarded Jacobson's opinions about physical aspects of the room in which Ortiz was placed for another reason. There was no evidentiary basis for Jacobson's opinion that, when paired with monitoring at fifteen-minute intervals, placing Ortiz in a room with a window that opened was a breach of the standard of care. As stated above, there was no evidence that the window was open, only that the bed sheet with which Ortiz hung himself was attached to the top of the window.
V. CONCLUSION
The court permissibly rejected Jacobson's opinion testimony, the only evidence Plaintiff presented that the actions of the VA hospital staff breached the prevailing professional standards of care. For that reason, Plaintiff did not prove her negligence case. And, the court did not err in granting judgment to the United States.
AFFIRMED.
1. There was no evidence as to how Ortiz attached the bed sheet to the window, or whether the window was open. The only evidence about the physical state of the window was: (1) a nurse's note that, when he found Ortiz hanging at 12:03 a.m. on March 19, 2003, "a white sheet . . . was wrapped around [Ortiz's] neck and attached to the top of the window." (R.5 at 33 INP); and (2) testimony by a nursing assistant on the psychiatric ward that the window by Ortiz's bed was big and square and required a key for opening. (R.3-82 at 60.)
2. In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), this court adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to close of business on September 30, 1981.
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ORTIZ v. U.S.
EVELYN ORTIZ, as Personal Representative of the Estate of Rafael I. Ortiz-Pagan, Plaintiff-Appellant,
v.
UNITED STATES OF AMERICA, Defendant-Appellee.
No. 08-16004. Non-Arugument Calendar.
United States Court of Appeals, Eleventh Circuit.
November 30, 2009.
Before BLACK, WILSON and COX, Circuit Judges.
DO NOT PUBLISH
COX, Circuit Judge.
I. BACKGROUND
On Monday, March 17, 2003, Rafael Ortiz-Pagan presented to the emergency room at the Department of Veterans Affairs Hospital in Gainesville, Florida ("the hospital" or "the VA"). Ortiz was a chronic pain patient and had overdosed on his pain medication. The emergency room physician kept Ortiz in the emergency room overnight and ordered a psychiatry consult. The psychiatry resident physician who examined and interviewed Ortiz in the late morning on Tuesday, March 18, invoked The Florida Mental Health Act to involuntarily commit Ortiz to the psychiatric ward of the hospital and placed him on suicide precautions.
Ortiz spent much of the day on Tuesday, March 18, on suicide precautions, in the day room of the psychiatric ward, under constant one-on-one observation by a nurse. During that time, he was evaluated by a staff psychiatrist, Dr. Camilo Martin. In the early afternoon, Martin concluded that Ortiz did not require suicide precautions and downgraded his observational status to close observation. On close observation, patients are assigned a room and observed by a nurse at fifteen-minute intervals.
During the afternoon of March 18, both before and after he had been downgraded to close observation status, Ortiz visited with his wife and sons in the day room of the psychiatric ward. After he was changed to close observation status, the nursing staff checked on him every fifteen minutes. His family departed after 8:00 p.m. Ortiz went to his room and laid in bed. The room Ortiz occupied had several patient beds separated by partitions. There were three other patients in the room. Ortiz was assigned the third bed on the left, a corner bed by a window.
At 11:45 p.m., Ortiz was observed in his bed. At 12:03 a.m. on Wednesday, March 19, 2003, a nurse found Ortiz hanging from a bed sheet attached to the window.[ 1 ] He had committed suicide.
Ortiz's widow ("Plaintiff") brought this lawsuit against the United States under the Federal Tort Claims Act, 28 U.S.C. §§ 1346 & 2671-80, alleging that the hospital staff had been negligent in failing to adequately care for and supervise Ortiz. (R.1-1.) At trial, Plaintiff presented expert testimony from Dr. Gary Jacobson. Jacobson had reviewed Ortiz's medical records and opined that hospital personnel breached the standard of care by negligently failing to conclude that Ortiz was a suicide risk. He further opined that, as a result of the failure to recognize Ortiz was at risk for suicide, the hospital staff failed to monitor Ortiz adequately and failed to place him in an environment that would prevent his suicide. The United States did not present an independent expert witness to rebut Jacobson's testimony. The treating physicians and nurses who interacted with Ortiz on the psychiatric ward testified about their examinations and interactions with him, their assessment of his medical condition, and the actions they took during his hospital stay.
The district court issued a memorandum of decision. The court rejected Jacobson's opinions that the hospital staff had breached the standard of care, offering as an general explanation: "Dr. Jacobson's testimony and his conclusions about Mr. Ortiz were based entirely upon entries in the medical records, some of which were taken out of context and which were later explained in more detail in testimony from treating psychiatrists and nurses." (R.1-73 ¶80.) The court gave specific examples of testimony by treating professionals from which the court concluded that Jacobson's opinions, based solely on the medical record, misinterpreted Ortiz's condition. (Id. ¶¶81-83.) The court stated, "Dr. Jacobson's conclusion that Mr. Ortiz was under an imminent risk of suicide at the VA hospital on March 18, 2003, and that the staff negligently failed to monitor him is not confirmed by the testimony at trial or by the medical records." (Id. ¶87.)
The court also found, "The reasons Dr. Martin gave for removing Mr. Ortiz from suicide precautions reflect a reasonable medical assessment of Mr. Ortiz's condition and his treatment needs," (id. ¶86), and "Dr. Martin's decision to take Mr. Ortiz off of suicide precautions reflects a reasonable medical judgment." (Id. ¶91.) The order concludes, "Under the evidence presented at trial I cannot find that the VA medical staff was negligent in their care and treatment of Mr. Ortiz nor can I find that any act of the VA staff was the proximate cause of his death." (Id. ¶90.)
The court entered judgment for the United States. Plaintiff appeals.
II. ISSUES ON APPEAL AND CONTENTIONS OF THE PARTIES
Plaintiff argues that the district court clearly erred by not adopting Jacobson's opinion that Ortiz was suicidal and by finding that the hospital staff was not negligent and did not cause Ortiz's death. Plaintiff argues that Jacobson's testimony was the only expert testimony on the standard of care and the breach thereof and therefore should have been accepted by the district court.
The United States responds that the district court did not commit error by rejecting Plaintiff's expert witness's opinions and concluding that the hospital staff had not been negligent. The United States argues that a trier of fact may reject an expert's opinions based upon any evidence in the record, whether or not that evidence is offered by another expert witness.
III. STANDARDS OF REVIEW
We review the district court's findings of fact for clear error. Whitley v. United States, 170 F.3d 1061, 1068 n.14 (11th Cir. 1999) (citing Horton v. Reliance Standard Life Ins. Co., 141 F.3d 1038, 1040 (11th Cir.1998). "We cannot find clear error unless `we are left with a definite and firm conviction that a mistake has been committed.'" United States v. Crawford, 407 F.3d 1174, 1177 (11th Cir. 2005) (quoting Glassroth v. Moore, 335 F.3d 1282, 1292 (11th Cir. 2003)).
We review a district court's application of law to the facts de novo. Whitley, 170 F.3d at 1068 (citing Reich v. Davis, 50 F.3d 962, 964 (11th Cir. 1995)).
IV. DISCUSSION
In actions brought under the Federal Tort Claims Act, liability is determined under the law of the state in which the alleged negligence occurred. 28 U.S.C. § 1346(b)(1); F.D.I.C. v. Meyer, 510 U.S. 471, 478, 114 S. Ct. 996, 1001 (1994). Under Florida law, a hospital may be liable for the death of a inpatient who commits suicide. Paddock v. Chacko, 522 So.2d 410, 417 (Fla. 5th DCA 1988) ("Where a patient has surrendered himself to the custody, care and treatment of a psychiatric hospital and its staff, liability may be predicated upon the hospital's failure to take protective measures to prevent the patient from injuring himself.") As in all medical malpractice cases,
[T]he claimant shall have the burden of proving by the greater weight of evidence that the alleged actions of the health care provider represented a breach of the prevailing professional standard of care for that health care provider. The prevailing professional standard of care for a given health care provider shall be that level of care, skill, and treatment which, in light of all relevant surrounding circumstances, is recognized as acceptable and appropriate by reasonably prudent similar health care providers.
Fla. Stat. Ann. § 766.102(1).
In this case, Jacobson gave an expert opinion that the hospital staff should have recognized Ortiz was at acute risk of suicide. (R.2-81 at 47-48.) Jacobson's opinion that the hospital breached the standard of care by failing to diagnose Ortiz as suicidal was based upon his review of medical records that the VA maintained on Ortiz, including outpatient clinic, emergency room, and inpatient hospital records. (Id. at 48.)
The United States did not present an expert witness to opine as to the standard of care. The United States called the doctors and nursing staff members who interacted with Ortiz to explain their medical notes and treatment of Ortiz during his March 2003 stay in the hospital. From that testimony, the district court concluded that Jacobson had misinterpreted notes in the medical record, the only information about Ortiz upon which Jacobson based his opinions. (See R.1-73 ¶¶ 80-83.) And, for that reason, the district court rejected Jacobson's expert opinion of misdiagnosis. (Id. ¶ 87 ("Dr. Jacobson's conclusion that Mr. Ortiz was under an imminent risk of suicide at the VA hospital on March 18, 2003, . . . is not confirmed by the testimony at trial or by the medical records."))
The court did not clearly err. It was within the court's province as fact finder to conclude that Jacobson's opinion that the hospital staff breached the standard of care in failing to recognize Ortiz as suicidal should not be credited. Mims v. United States, 375 F.2d 135, 143 (5th Cir. 1967) ("[E]xpert opinion evidence may be rebutted by showing the incorrectness or inadequacy of the factual assumptions on which the opinion is based . . .");[ 2 ] Easkold v. Rhodes, 614 So.2d 495, 497-98 (Fla. 1993) (jury may disregard a medical expert's opinion, even in the absence of expert testimony to the contrary, if it finds that the medical record upon which the expert opinion was based is incomplete); see also Fla. Std. Jury Instr. (Civ.) 2.2(b) ("You may accept [expert] opinion testimony, reject it, or give it the weight you think it deserves, considering the knowledge, skill, experience, training, or education of the witness, the reasons given by the witness for the opinion expressed, and all the other evidence in the case.") (emphasis added).
The other opinions Jacobson offered regarding breaches of the standard of care concern the standard of care for patients who are suicidal. Jacobson testified that the standard of care for protecting a suicidal patient "is to observe that patient frequently enough that they are not able to make [suicide] attempts . . . in a hospital." (R.2-81 at 51.) Jacobson testified that monitoring a suicidal patient at fifteen-minute increments was inadequate. (Id.) He also testified that a hospital has a duty to provide a safe environment, including providing an environment in which "there's no means or the means are as limited as possible to harm oneself." (R.2-81 at 54-55.) He testified that, paired with inadequate monitoring, placing a suicidal patient in a room with a window that opens so as to allow attachment of a means of hanging would be a breach of the standard of care. (R.2-81 at 55-56.)
Having rejected Jacobson's opinion that the hospital staff negligently failed to diagnose Ortiz as suicidal, the district court did not err in disregarding Jacobson's opinions that the hospital staff breached the standards of care for observation and placement of a suicidal patient. Those opinions became irrelevant once the district court determined that the hospital staff acted reasonably in concluding that Ortiz was not an acute risk for suicide. And, the district court properly disregarded Jacobson's opinions about physical aspects of the room in which Ortiz was placed for another reason. There was no evidentiary basis for Jacobson's opinion that, when paired with monitoring at fifteen-minute intervals, placing Ortiz in a room with a window that opened was a breach of the standard of care. As stated above, there was no evidence that the window was open, only that the bed sheet with which Ortiz hung himself was attached to the top of the window.
V. CONCLUSION
The court permissibly rejected Jacobson's opinion testimony, the only evidence Plaintiff presented that the actions of the VA hospital staff breached the prevailing professional standards of care. For that reason, Plaintiff did not prove her negligence case. And, the court did not err in granting judgment to the United States.
AFFIRMED.
1. There was no evidence as to how Ortiz attached the bed sheet to the window, or whether the window was open. The only evidence about the physical state of the window was: (1) a nurse's note that, when he found Ortiz hanging at 12:03 a.m. on March 19, 2003, "a white sheet . . . was wrapped around [Ortiz's] neck and attached to the top of the window." (R.5 at 33 INP); and (2) testimony by a nursing assistant on the psychiatric ward that the window by Ortiz's bed was big and square and required a key for opening. (R.3-82 at 60.)
2. In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), this court adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to close of business on September 30, 1981.
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National Guard Commander Dies from Cancer, Claimant in Toxic Exposure Lawsuit
Full Article at: Soldier in suit over chemical is dead
A funeral is set today for a retired Indiana National Guard commander who testified in October that exposure to a lethal carcinogen in Iraq caused his cancer.
Lt. Col. James C. Gentry, 52, Williams, Ind., died of lung cancer Wednesday. His death is a poignant marker in a pending federal lawsuit; his life inspired a federal bill working its way through Congress.
Maj. Gen. R. Martin Umbarger, Indiana's top National Guard general, will attend the service at noon at Kraft Funeral Service in New Albany in Southern Indiana."
"Gentry, who was diagnosed with cancer in 2006, last spring joined a federal lawsuit filed in December 2008. It accuses Texas-based KBR and several related companies of concealing the risks faced by 136 Indiana National Guard soldiers potentially exposed to a cancer-causing agent, according to the Department of Veterans Affairs.
The suit originally was filed on behalf of 16 Indiana soldiers but has grown to 47 plaintiffs, including the family of a soldier, David Moore, Dubois, Ind., who died of a lung disease in 2008."
A funeral is set today for a retired Indiana National Guard commander who testified in October that exposure to a lethal carcinogen in Iraq caused his cancer.
Lt. Col. James C. Gentry, 52, Williams, Ind., died of lung cancer Wednesday. His death is a poignant marker in a pending federal lawsuit; his life inspired a federal bill working its way through Congress.
Maj. Gen. R. Martin Umbarger, Indiana's top National Guard general, will attend the service at noon at Kraft Funeral Service in New Albany in Southern Indiana."
"Gentry, who was diagnosed with cancer in 2006, last spring joined a federal lawsuit filed in December 2008. It accuses Texas-based KBR and several related companies of concealing the risks faced by 136 Indiana National Guard soldiers potentially exposed to a cancer-causing agent, according to the Department of Veterans Affairs.
The suit originally was filed on behalf of 16 Indiana soldiers but has grown to 47 plaintiffs, including the family of a soldier, David Moore, Dubois, Ind., who died of a lung disease in 2008."
Judge Delays Hearing for Iraq Veteran, Defense Seeks VA Counseling for PTSD
Full Article at: Hearing delayed for Iraqi war vet charged in bank robbery
The Tribune-Democrat
EBENSBURG — "Judge Gerard Long on Tuesday again delayed the sentencing of an Iraq War veteran on bank robbery and other charges while his lawyer continues to try to get additional counseling though the Veterans Administration for the defendant.
John Matthew Fletcher, 28, of East Taylor Township, already is in counseling for post traumatic stress disorder at a Veterans Center, but “we want to get a more solid program,” Johnstown Attorney Caram Abood said.
Fletcher pleaded guilty last December to terroristic threats and robbery in the knifepoint holdup at 1stSummit Bank in the township on Sept. 25, 2008. He’s also entered guilty pleas in the theft of copper wire, in phoning a bomb threat that forced the evacuation of two schools and in stalking his ex-girlfriend."
The Tribune-Democrat
EBENSBURG — "Judge Gerard Long on Tuesday again delayed the sentencing of an Iraq War veteran on bank robbery and other charges while his lawyer continues to try to get additional counseling though the Veterans Administration for the defendant.
John Matthew Fletcher, 28, of East Taylor Township, already is in counseling for post traumatic stress disorder at a Veterans Center, but “we want to get a more solid program,” Johnstown Attorney Caram Abood said.
Fletcher pleaded guilty last December to terroristic threats and robbery in the knifepoint holdup at 1stSummit Bank in the township on Sept. 25, 2008. He’s also entered guilty pleas in the theft of copper wire, in phoning a bomb threat that forced the evacuation of two schools and in stalking his ex-girlfriend."
Tuesday, December 1, 2009
Federal Circuit, Charles v. Shinseki, No. 2009-7024, 3.103(f), Secretary's failure to respond to argument
We are presenting this decision as it addresses several issues and an explanation of 38 C.F.R. § 3.103(f), that the "RO must notify the claimant in writing of decisions affecting the payment of benefits or granting relief. 38 C.F.R. § 3.103(f). Among other things, this notice must provide the reason for the decision, summarize the evidence considered, and inform the claimant of the right to appeal. Id. " This seems like a useful quote to have on hand.
The FedCir also addresses the abandonment of a claim and the concept of the Secretary's failure to respond to an argument as a possible admission of concession.
=======================================
CHARLES v. SHINSEKI, No. 2009-7024, DECIDED: December 1, 2009
RO must notify the claimant in writing of decisions affecting the payment of benefits or granting relief. 38 C.F.R. § 3.103(f). Among other things, this notice must provide the reason for the decision, summarize the evidence considered, and inform the claimant of the right to appeal. Id.
========================================
We conclude that the Veterans Court misinterpreted 38 C.F.R. § 3.158 when it determined that Mr. Charles’ 1980 claim was finally denied. Abandonment of a non-final and non-appealable later claim cannot render final an unadjudicated earlier claim in which the agency failed to act.3 Neither 38 U.S.C. § 5108 nor 38 C.F.R. § 3.158 can be interpreted as requiring a veteran to submit new and material evidence in order to reopen a pending, unadjudicated claim.
============================================
Mr. Charles asserted-and the government did not refute-that he submitted new evidence within his one-year appeal period. The government never argued below that the evidence was not submitted within the one-year appeal period. In fact, the Veterans Court noted that it “could construe the Secretary’s failure to respond to these arguments as a concession of error.” Charles, 2008 U.S. App. Vet. Claims LEXIS 626, *22.
============================================
As the government acknowledged, when new evidence is submitted within the appeal period, RO must consider it and prepare a Supplemental Statement of the Case.
============================================
United States Court of Appeals for the Federal Circuit
2009-7024
EUGENE CHARLES,
Claimant-Appellant,
v.
ERIC K. SHINSEKI, Secretary of Veterans Affairs,
Respondent-Appellee.
John F. Cameron, Jr., of Montgomery, Alabama, argued for claimant-appellant.
Meredyth Cohen Havasy, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, argued for respondent-appellee. On the brief were Michael F. Hertz, Deputy Assistant Attorney General, Jeanne E. Davidson, Director, Martin F. Hockey, Jr., Assistant Director, and Tara J. Kilfoyle, Trial Attorney. Of counsel on the brief were David J. Barrans, Deputy Assistant General Counsel, and Martie S. Adelman, Attorney, Office of the General Counsel, United States Department of Veterans Affairs, of Washington, DC.
Appealed from: United States Court of Appeals for Veterans Claims
Judge Alan G. Lance, Sr.
United States Court of Appeals for the Federal Circuit
2009-7024
EUGENE CHARLES,
Claimant-Appellant,
v.
ERIC K. SHINSEKI, Secretary of Veterans Affairs,
Respondent-Appellee.
Appeal from the United States Court of Appeals for Veterans Claims in 06-0020, Judge Alan G. Lance, Sr.
___________________________
DECIDED: December 1, 2009
___________________________
Before GAJARSA, DYK, and MOORE, Circuit Judges.
MOORE, Circuit Judge.
Eugene Charles appeals the decision of the Court of Appeals for Veterans Claims (Veterans Court) affirming the Board of Veterans’ Appeals (Board) decision denying Mr. Charles an earlier effective date for service-connected disability benefits. For the reasons discussed below, we vacate and remand.
BACKGROUND
Mr. Charles served on active duty in the United States Navy from August 7, 1972 to August 30, 1974. On September 10, 1980, he filed a claim for service-connected benefits for manic depression (1980 Claim). On October 28, 1980, the Department of Veterans Affairs (VA) regional office (RO) issued a rating decision denying his claim
(1980 Rating Decision). Mr. Charles submitted additional medical evidence, in particular a VA medical certificate dated September 1981 diagnosing him with a paranoid personality disorder. VA did not issue a Supplemental Statement of the Case nor is there any assertion that VA considered this supplemental evidence.
On March 1, 1982, Mr. Charles filed a second claim for benefits for a nerve condition (1982 Claim). RO sent Mr. Charles a letter stating that “[s]ervice connection for nervous condition was previously denied” and informing him that in order to reopen his claim, he “would have to submit evidence not previously considered showing that this condition was incurred in or aggravated by active duty” (1982 Letter).
Thereafter, Mr. Charles submitted additional information to RO, including a third claim1 and additional medical evidence. On February 5, 1991, Mr. Charles filed a fourth claim (1991 Claim), in which he stated he was filing for service-connected disabilities for a “blood disease and nervous condition” and that a doctor at a VA medical center said he should file this claim.
The record is unclear as to exactly what happened next. In 1995, the Board noted that Mr. Charles’ claim file had been lost and rebuilt, and it was “not possible to tell whether [Mr. Charles] was properly notified of the denial” or “what records might have been utilized in this purported denial.” The Board further noted that Mr. Charles appeared to have been awarded benefits by the Social Security Administration (SSA). The Board remanded Mr. Charles’ claim to RO for further development and its remand order stated that RO should request copies of Mr. Charles’ medical records from the
1 The RO interpreted Mr. Charles’ third claim (filed June 2, 1983) as a request for non-service connected benefits. In 1984, RO issued a rating decision granting him pension dating back to July 1, 1983.
2009-7024 2
SSA. RO did not obtain Mr. Charles’ SSA medical records. Charles v. Peake, No. 06-0200, 2008 U.S. App. Vet. Claims LEXIS 626, *26-27 (May 14, 2008). On appeal from RO, in 1997, the Board reviewed the evidence in Mr. Charles’ file and determined that he had not submitted any new and material evidence. The Board therefore denied his request to reopen his claim for a psychiatric disorder.
Mr. Charles appealed to the Veterans Court. In 1998, we invalidated the test for new and material evidence that had been applied by the Board in favor of the standard set forth by VA in 38 C.F.R. § 3.156(a). Hodge v. West, 155 F.3d 1356, 1363-64 (Fed. Cir. 1998). Thus, upon a joint motion filed by the parties, the Veterans Court vacated the Board’s 1997 decision and remanded for a new determination of whether Mr. Charles had submitted new and material evidence. On remand, the Board found that “[c]ompetent evidence linking a current psychiatric disability to an acquired in-service psychiatric disability has been presented.” On July 21, 2000, the Board remanded to RO with detailed instructions for further development of Mr. Charles’ claim, reminding RO that it should afford the claim expeditious treatment. On February 21, 2003, RO issued a rating decision granting Mr. Charles a 50% disability rating for his service-connected psychiatric disorder dating back to February 5, 1991 (the date of Mr. Charles’ “Statement in Support of a Claim”).
Mr. Charles timely submitted a Notice of Disagreement regarding the 2003 Rating Decision, challenging both the rating and the effective date. RO sent Mr. Charles a Statement of the Case dated June 21, 2004, which indicated that he had been granted a 100% disability rating dating back to February 5, 1991. RO denied Mr. Charles’ request for an earlier effective date. RO explained that his benefits could not
2009-7024 3
date back any earlier because his original claim (the 1980 Claim) was final by virtue of the 1980 Rating Decision denying compensation, and his request to reopen that claim was not received until February 5, 1991.
Mr. Charles appealed to the Board. In 2005, the Board denied his request for an effective date earlier than 1991. The Board explained that the benefits could not extend back before the date of a new claim or a claim to reopen. It then determined that Mr. Charles did not have a pending claim or a claim to reopen dated prior to February 5, 1991. With respect to his 1980 Claim, the Board determined that the 1980 Rating Decision became final because Mr. Charles did not appeal. As to the 1982 Claim, the Board interpreted it as a request to reopen his 1980 Claim and concluded that Mr. Charles abandoned the 1982 Claim when he failed to reply to RO’s 1982 Letter requesting new evidence. Thus, the Board found that the preponderance of the evidence weighed against Mr. Charles’ claim for an effective date earlier than February 5, 1991.
Mr. Charles appealed to the Veterans Court, which affirmed the Board’s decision. Charles, 2008 U.S. App. Vet. Claims LEXIS 626. Relevant to this appeal, the Veterans Court agreed with the Board that Mr. Charles abandoned his 1982 Claim by not supplying medical evidence within one year of the date it was requested. Id. at *18-21. The Veterans Court also agreed with the Board that Mr. Charles’ 1980 Claim was final. The Veterans Court held that Mr. Charles failed to appeal the 1980 decision and that by abandoning his 1982 Claim he abandoned the 1980 Claim. The Veterans Court recognized that Mr. Charles asserted that he had submitted new evidence within one year of the 1980 Claim, which would render the 1980 Rating Decision nonfinal, and the
2009-7024 4
at *22. The Veterans Court, however, reasoned that the abandonment of the 1982 Claim rendered his prior pending unadjudicated claims final, citing our decision in , 521 F.3d 1348, 1350 (Fed. Cir. 2008). Thus, the Veterans Court concluded that there was no clear error in the Board’s determination that Mr. Charles was not entitled to an effective date earlier than February 5, 1991. at *24. government had failed to address or refute that assertion. Id. Williams v. PeakeId.
Mr. Charles timely appealed to our court. We have jurisdiction to review the Veterans Court’s decision under 38 U.S.C. § 7292.
DISCUSSION
We may review a decision of the Veterans Court to determine the validity of a statute or regulation or any interpretation thereof that was relied on by the Veterans Court in its decision. 38 U.S.C. § 7292(a). Absent a constitutional issue, we cannot review factual determinations or “challenge[s] to a law or regulation as applied to the facts of a particular case.” Id. § 7292(d)(2).
Mr. Charles argues that the Veterans Court misinterpreted 38 U.S.C. § 5108 and 38 C.F.R. § 3.158(a) when it concluded that the 1980 Rating Decision was final. 38 U.S.C. § 5108 states that “[i]f new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim.” 38 C.F.R. § 3.158(a) states in relevant part that “where evidence requested in connection with an original claim, a claim for increase or to reopen or for the purpose of determining continued entitlement is not furnished within 1 year after the date of request, the claim will be considered abandoned.” Mr. Charles asserts that the 1980 Rating Decision was rendered nonfinal when he
2009-7024 5
2 The government moves to supplement the joint appendix with evidence which it claims would support its new argument that Mr. Charles may not have submitted the new evidence within the one-year time period. As the government waived this argument by failing to raise it in the proceedings below, we deny the motion to supplement the joint appendix.
submitted new evidence within his one-year period of appeal. Once RO renders a decision on a claim for benefits, the claimant may appeal by filing a Notice of Disagreement within one year of the mailing date of the decision. 38 U.S.C. § 7105(b)(1). “New and material evidence received prior to the expiration of the appeal period . . . will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period.” 38 C.F.R. § 3.156(b). RO must notify the claimant in writing of decisions affecting the payment of benefits or granting relief. 38 C.F.R. § 3.103(f). Among other things, this notice must provide the reason for the decision, summarize the evidence considered, and inform the claimant of the right to appeal. Id.
Mr. Charles asserted-and the government did not refute-that he submitted new evidence within his one-year appeal period. The government never argued below that the evidence was not submitted within the one-year appeal period. In fact, the Veterans Court noted that it “could construe the Secretary’s failure to respond to these arguments as a concession of error.” Charles, 2008 U.S. App. Vet. Claims LEXIS 626, *22. The government cannot argue for the first time on appeal that the new evidence was not submitted by Mr. Charles within the one-year appeal period-such argument has been waived.2
As the government acknowledged, when new evidence is submitted within the appeal period, RO must consider it and prepare a Supplemental Statement of the Case.
2009-7024 6
Oral Argument at 16:48-17:02, 18:41-18:50. It is undisputed that RO did not do this with regard to the new evidence that was submitted following the 1980 Rating Decision. Because new evidence was submitted within one year of the 1980 Rating Decision, Mr. Charles’ 1980 Rating Decision did not become final by his failure to appeal within one year. See Muehl v. West, 13 Vet. App. 159, 161-62 (1999) (concluding that where new evidence was received within the appeal period, RO’s decision was not a final decision, and the new evidence should have been considered in conjunction with the original claim).
The government asserts, and the Veterans Court found, that the 1980 Rating Decision became final when Mr. Charles abandoned his 1982 Claim by failing to present new evidence within one year of the VA request. The question of interpretation presented in this case is whether a subsequent claim that is abandoned renders an earlier pending claim also abandoned. This situation is markedly different from that in which a later-filed claim is adjudicated on the merits. As we explained in Williams v. Peake, “a reasonably raised claim remains pending until there is either a recognition of the substance of the claim in an RO decision from which a claimant could deduce that the claim was adjudicated or an explicit adjudication of a subsequent ‘claim’ for the same disability.” 521 F.3d at 1350 (quoting Ingram v. Nicholson, 21 Vet. App. 232, 243 (2007)). Thus, when the substance of a later-filed claim is addressed in an RO decision, the claimant can infer that the earlier-filed claim based on the same disability has also been adjudicated. Id. When a later-filed claim is abandoned, it does not have the same effect. “[U]nlike an adjudicated claim, where a decision has been rendered and notice of that decision has been provided to the claimant, an abandoned claim has
2009-7024 7
3 The government concedes that the 1982 claim was non-final and non-appealable.
not been adjudicated and no specific notice has been provided to the claimant that his claim might be or even has been considered abandoned for failure to timely provide information.” Charles v. Shinseki, No. 06-20, Order Denying Motion for Reconsideration (Kasold, J., dissenting) (Vet. App. Aug. 29, 2008). We conclude that the Veterans Court misinterpreted 38 C.F.R. § 3.158 when it determined that Mr. Charles’ 1980 claim was finally denied. Abandonment of a non-final and non-appealable later claim cannot render final an unadjudicated earlier claim in which the agency failed to act.3 Neither 38 U.S.C. § 5108 nor 38 C.F.R. § 3.158 can be interpreted as requiring a veteran to submit new and material evidence in order to reopen a pending, unadjudicated claim.
In view of our decision that a later abandoned claim cannot render final an earlier-filed unadjudicated claim, we need not reach the issue of whether the time limits under 38 U.S.C. §§ 5102 and 5103 and 38 C.F.R. §§ 3.109 and 3.158 are subject to equitable tolling. Because the 1980 claim was not final, all subsequent claims, correspondence, and medical evidence are part of that claim for consideration by VA. Oral Argument at 29:05-41 (government acknowledges that all subsequent filings would be additional evidence to be considered part of the 1980 claim if it is still pending). Hence, Mr. Charles does not need to prevail on his tolling argument in order to have the subsequent evidence considered by VA. We also need not address whether VA breached its duty to assist Mr. Charles.
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CONCLUSION
For the foregoing reasons, we vacate the decision of the Veterans Court and remand to the Veterans Court with instructions to remand to the Board, and with further instructions for the Board to remand to RO to determine whether Mr. Charles is entitled to an effective date prior to February 5, 1991. On remand, RO must consider all evidence of record dating back to Mr. Charles’ original claim. In addition, RO should request and consider Mr. Charles’ SSA medical records, as initially required by the Board’s 1995 remand order.
VACATED and REMANDED
The FedCir also addresses the abandonment of a claim and the concept of the Secretary's failure to respond to an argument as a possible admission of concession.
=======================================
CHARLES v. SHINSEKI, No. 2009-7024, DECIDED: December 1, 2009
RO must notify the claimant in writing of decisions affecting the payment of benefits or granting relief. 38 C.F.R. § 3.103(f). Among other things, this notice must provide the reason for the decision, summarize the evidence considered, and inform the claimant of the right to appeal. Id.
========================================
We conclude that the Veterans Court misinterpreted 38 C.F.R. § 3.158 when it determined that Mr. Charles’ 1980 claim was finally denied. Abandonment of a non-final and non-appealable later claim cannot render final an unadjudicated earlier claim in which the agency failed to act.3 Neither 38 U.S.C. § 5108 nor 38 C.F.R. § 3.158 can be interpreted as requiring a veteran to submit new and material evidence in order to reopen a pending, unadjudicated claim.
============================================
Mr. Charles asserted-and the government did not refute-that he submitted new evidence within his one-year appeal period. The government never argued below that the evidence was not submitted within the one-year appeal period. In fact, the Veterans Court noted that it “could construe the Secretary’s failure to respond to these arguments as a concession of error.” Charles, 2008 U.S. App. Vet. Claims LEXIS 626, *22.
============================================
As the government acknowledged, when new evidence is submitted within the appeal period, RO must consider it and prepare a Supplemental Statement of the Case.
============================================
United States Court of Appeals for the Federal Circuit
2009-7024
EUGENE CHARLES,
Claimant-Appellant,
v.
ERIC K. SHINSEKI, Secretary of Veterans Affairs,
Respondent-Appellee.
John F. Cameron, Jr., of Montgomery, Alabama, argued for claimant-appellant.
Meredyth Cohen Havasy, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, argued for respondent-appellee. On the brief were Michael F. Hertz, Deputy Assistant Attorney General, Jeanne E. Davidson, Director, Martin F. Hockey, Jr., Assistant Director, and Tara J. Kilfoyle, Trial Attorney. Of counsel on the brief were David J. Barrans, Deputy Assistant General Counsel, and Martie S. Adelman, Attorney, Office of the General Counsel, United States Department of Veterans Affairs, of Washington, DC.
Appealed from: United States Court of Appeals for Veterans Claims
Judge Alan G. Lance, Sr.
United States Court of Appeals for the Federal Circuit
2009-7024
EUGENE CHARLES,
Claimant-Appellant,
v.
ERIC K. SHINSEKI, Secretary of Veterans Affairs,
Respondent-Appellee.
Appeal from the United States Court of Appeals for Veterans Claims in 06-0020, Judge Alan G. Lance, Sr.
___________________________
DECIDED: December 1, 2009
___________________________
Before GAJARSA, DYK, and MOORE, Circuit Judges.
MOORE, Circuit Judge.
Eugene Charles appeals the decision of the Court of Appeals for Veterans Claims (Veterans Court) affirming the Board of Veterans’ Appeals (Board) decision denying Mr. Charles an earlier effective date for service-connected disability benefits. For the reasons discussed below, we vacate and remand.
BACKGROUND
Mr. Charles served on active duty in the United States Navy from August 7, 1972 to August 30, 1974. On September 10, 1980, he filed a claim for service-connected benefits for manic depression (1980 Claim). On October 28, 1980, the Department of Veterans Affairs (VA) regional office (RO) issued a rating decision denying his claim
(1980 Rating Decision). Mr. Charles submitted additional medical evidence, in particular a VA medical certificate dated September 1981 diagnosing him with a paranoid personality disorder. VA did not issue a Supplemental Statement of the Case nor is there any assertion that VA considered this supplemental evidence.
On March 1, 1982, Mr. Charles filed a second claim for benefits for a nerve condition (1982 Claim). RO sent Mr. Charles a letter stating that “[s]ervice connection for nervous condition was previously denied” and informing him that in order to reopen his claim, he “would have to submit evidence not previously considered showing that this condition was incurred in or aggravated by active duty” (1982 Letter).
Thereafter, Mr. Charles submitted additional information to RO, including a third claim1 and additional medical evidence. On February 5, 1991, Mr. Charles filed a fourth claim (1991 Claim), in which he stated he was filing for service-connected disabilities for a “blood disease and nervous condition” and that a doctor at a VA medical center said he should file this claim.
The record is unclear as to exactly what happened next. In 1995, the Board noted that Mr. Charles’ claim file had been lost and rebuilt, and it was “not possible to tell whether [Mr. Charles] was properly notified of the denial” or “what records might have been utilized in this purported denial.” The Board further noted that Mr. Charles appeared to have been awarded benefits by the Social Security Administration (SSA). The Board remanded Mr. Charles’ claim to RO for further development and its remand order stated that RO should request copies of Mr. Charles’ medical records from the
1 The RO interpreted Mr. Charles’ third claim (filed June 2, 1983) as a request for non-service connected benefits. In 1984, RO issued a rating decision granting him pension dating back to July 1, 1983.
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SSA. RO did not obtain Mr. Charles’ SSA medical records. Charles v. Peake, No. 06-0200, 2008 U.S. App. Vet. Claims LEXIS 626, *26-27 (May 14, 2008). On appeal from RO, in 1997, the Board reviewed the evidence in Mr. Charles’ file and determined that he had not submitted any new and material evidence. The Board therefore denied his request to reopen his claim for a psychiatric disorder.
Mr. Charles appealed to the Veterans Court. In 1998, we invalidated the test for new and material evidence that had been applied by the Board in favor of the standard set forth by VA in 38 C.F.R. § 3.156(a). Hodge v. West, 155 F.3d 1356, 1363-64 (Fed. Cir. 1998). Thus, upon a joint motion filed by the parties, the Veterans Court vacated the Board’s 1997 decision and remanded for a new determination of whether Mr. Charles had submitted new and material evidence. On remand, the Board found that “[c]ompetent evidence linking a current psychiatric disability to an acquired in-service psychiatric disability has been presented.” On July 21, 2000, the Board remanded to RO with detailed instructions for further development of Mr. Charles’ claim, reminding RO that it should afford the claim expeditious treatment. On February 21, 2003, RO issued a rating decision granting Mr. Charles a 50% disability rating for his service-connected psychiatric disorder dating back to February 5, 1991 (the date of Mr. Charles’ “Statement in Support of a Claim”).
Mr. Charles timely submitted a Notice of Disagreement regarding the 2003 Rating Decision, challenging both the rating and the effective date. RO sent Mr. Charles a Statement of the Case dated June 21, 2004, which indicated that he had been granted a 100% disability rating dating back to February 5, 1991. RO denied Mr. Charles’ request for an earlier effective date. RO explained that his benefits could not
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date back any earlier because his original claim (the 1980 Claim) was final by virtue of the 1980 Rating Decision denying compensation, and his request to reopen that claim was not received until February 5, 1991.
Mr. Charles appealed to the Board. In 2005, the Board denied his request for an effective date earlier than 1991. The Board explained that the benefits could not extend back before the date of a new claim or a claim to reopen. It then determined that Mr. Charles did not have a pending claim or a claim to reopen dated prior to February 5, 1991. With respect to his 1980 Claim, the Board determined that the 1980 Rating Decision became final because Mr. Charles did not appeal. As to the 1982 Claim, the Board interpreted it as a request to reopen his 1980 Claim and concluded that Mr. Charles abandoned the 1982 Claim when he failed to reply to RO’s 1982 Letter requesting new evidence. Thus, the Board found that the preponderance of the evidence weighed against Mr. Charles’ claim for an effective date earlier than February 5, 1991.
Mr. Charles appealed to the Veterans Court, which affirmed the Board’s decision. Charles, 2008 U.S. App. Vet. Claims LEXIS 626. Relevant to this appeal, the Veterans Court agreed with the Board that Mr. Charles abandoned his 1982 Claim by not supplying medical evidence within one year of the date it was requested. Id. at *18-21. The Veterans Court also agreed with the Board that Mr. Charles’ 1980 Claim was final. The Veterans Court held that Mr. Charles failed to appeal the 1980 decision and that by abandoning his 1982 Claim he abandoned the 1980 Claim. The Veterans Court recognized that Mr. Charles asserted that he had submitted new evidence within one year of the 1980 Claim, which would render the 1980 Rating Decision nonfinal, and the
2009-7024 4
at *22. The Veterans Court, however, reasoned that the abandonment of the 1982 Claim rendered his prior pending unadjudicated claims final, citing our decision in , 521 F.3d 1348, 1350 (Fed. Cir. 2008). Thus, the Veterans Court concluded that there was no clear error in the Board’s determination that Mr. Charles was not entitled to an effective date earlier than February 5, 1991. at *24. government had failed to address or refute that assertion. Id. Williams v. PeakeId.
Mr. Charles timely appealed to our court. We have jurisdiction to review the Veterans Court’s decision under 38 U.S.C. § 7292.
DISCUSSION
We may review a decision of the Veterans Court to determine the validity of a statute or regulation or any interpretation thereof that was relied on by the Veterans Court in its decision. 38 U.S.C. § 7292(a). Absent a constitutional issue, we cannot review factual determinations or “challenge[s] to a law or regulation as applied to the facts of a particular case.” Id. § 7292(d)(2).
Mr. Charles argues that the Veterans Court misinterpreted 38 U.S.C. § 5108 and 38 C.F.R. § 3.158(a) when it concluded that the 1980 Rating Decision was final. 38 U.S.C. § 5108 states that “[i]f new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim.” 38 C.F.R. § 3.158(a) states in relevant part that “where evidence requested in connection with an original claim, a claim for increase or to reopen or for the purpose of determining continued entitlement is not furnished within 1 year after the date of request, the claim will be considered abandoned.” Mr. Charles asserts that the 1980 Rating Decision was rendered nonfinal when he
2009-7024 5
2 The government moves to supplement the joint appendix with evidence which it claims would support its new argument that Mr. Charles may not have submitted the new evidence within the one-year time period. As the government waived this argument by failing to raise it in the proceedings below, we deny the motion to supplement the joint appendix.
submitted new evidence within his one-year period of appeal. Once RO renders a decision on a claim for benefits, the claimant may appeal by filing a Notice of Disagreement within one year of the mailing date of the decision. 38 U.S.C. § 7105(b)(1). “New and material evidence received prior to the expiration of the appeal period . . . will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period.” 38 C.F.R. § 3.156(b). RO must notify the claimant in writing of decisions affecting the payment of benefits or granting relief. 38 C.F.R. § 3.103(f). Among other things, this notice must provide the reason for the decision, summarize the evidence considered, and inform the claimant of the right to appeal. Id.
Mr. Charles asserted-and the government did not refute-that he submitted new evidence within his one-year appeal period. The government never argued below that the evidence was not submitted within the one-year appeal period. In fact, the Veterans Court noted that it “could construe the Secretary’s failure to respond to these arguments as a concession of error.” Charles, 2008 U.S. App. Vet. Claims LEXIS 626, *22. The government cannot argue for the first time on appeal that the new evidence was not submitted by Mr. Charles within the one-year appeal period-such argument has been waived.2
As the government acknowledged, when new evidence is submitted within the appeal period, RO must consider it and prepare a Supplemental Statement of the Case.
2009-7024 6
Oral Argument at 16:48-17:02, 18:41-18:50. It is undisputed that RO did not do this with regard to the new evidence that was submitted following the 1980 Rating Decision. Because new evidence was submitted within one year of the 1980 Rating Decision, Mr. Charles’ 1980 Rating Decision did not become final by his failure to appeal within one year. See Muehl v. West, 13 Vet. App. 159, 161-62 (1999) (concluding that where new evidence was received within the appeal period, RO’s decision was not a final decision, and the new evidence should have been considered in conjunction with the original claim).
The government asserts, and the Veterans Court found, that the 1980 Rating Decision became final when Mr. Charles abandoned his 1982 Claim by failing to present new evidence within one year of the VA request. The question of interpretation presented in this case is whether a subsequent claim that is abandoned renders an earlier pending claim also abandoned. This situation is markedly different from that in which a later-filed claim is adjudicated on the merits. As we explained in Williams v. Peake, “a reasonably raised claim remains pending until there is either a recognition of the substance of the claim in an RO decision from which a claimant could deduce that the claim was adjudicated or an explicit adjudication of a subsequent ‘claim’ for the same disability.” 521 F.3d at 1350 (quoting Ingram v. Nicholson, 21 Vet. App. 232, 243 (2007)). Thus, when the substance of a later-filed claim is addressed in an RO decision, the claimant can infer that the earlier-filed claim based on the same disability has also been adjudicated. Id. When a later-filed claim is abandoned, it does not have the same effect. “[U]nlike an adjudicated claim, where a decision has been rendered and notice of that decision has been provided to the claimant, an abandoned claim has
2009-7024 7
3 The government concedes that the 1982 claim was non-final and non-appealable.
not been adjudicated and no specific notice has been provided to the claimant that his claim might be or even has been considered abandoned for failure to timely provide information.” Charles v. Shinseki, No. 06-20, Order Denying Motion for Reconsideration (Kasold, J., dissenting) (Vet. App. Aug. 29, 2008). We conclude that the Veterans Court misinterpreted 38 C.F.R. § 3.158 when it determined that Mr. Charles’ 1980 claim was finally denied. Abandonment of a non-final and non-appealable later claim cannot render final an unadjudicated earlier claim in which the agency failed to act.3 Neither 38 U.S.C. § 5108 nor 38 C.F.R. § 3.158 can be interpreted as requiring a veteran to submit new and material evidence in order to reopen a pending, unadjudicated claim.
In view of our decision that a later abandoned claim cannot render final an earlier-filed unadjudicated claim, we need not reach the issue of whether the time limits under 38 U.S.C. §§ 5102 and 5103 and 38 C.F.R. §§ 3.109 and 3.158 are subject to equitable tolling. Because the 1980 claim was not final, all subsequent claims, correspondence, and medical evidence are part of that claim for consideration by VA. Oral Argument at 29:05-41 (government acknowledges that all subsequent filings would be additional evidence to be considered part of the 1980 claim if it is still pending). Hence, Mr. Charles does not need to prevail on his tolling argument in order to have the subsequent evidence considered by VA. We also need not address whether VA breached its duty to assist Mr. Charles.
2009-7024 8 2009-7024 9
CONCLUSION
For the foregoing reasons, we vacate the decision of the Veterans Court and remand to the Veterans Court with instructions to remand to the Board, and with further instructions for the Board to remand to RO to determine whether Mr. Charles is entitled to an effective date prior to February 5, 1991. On remand, RO must consider all evidence of record dating back to Mr. Charles’ original claim. In addition, RO should request and consider Mr. Charles’ SSA medical records, as initially required by the Board’s 1995 remand order.
VACATED and REMANDED
Wednesday, November 25, 2009
Philadelphia-VA Claims at $58 Million with 31 Claims Filed
Full Article at: Claims against Phila. VA up to $58 million
By Josh Goldstein
"Injured veterans and their spouses have filed 31 claims against the U.S. Department of Veterans Affairs for botched prostate cancer care at the Philadelphia VA Medical Center, internal records show.
Twenty-seven men who received prostate brachytherapy at the Philadelphia VA and four veterans' wives are seeking a total $58 million in damages for radiation errors at the hospital from 2002 to 2008, according to documents obtained by The Inquirer through a Freedom of Information Act request."
By Josh Goldstein
"Injured veterans and their spouses have filed 31 claims against the U.S. Department of Veterans Affairs for botched prostate cancer care at the Philadelphia VA Medical Center, internal records show.
Twenty-seven men who received prostate brachytherapy at the Philadelphia VA and four veterans' wives are seeking a total $58 million in damages for radiation errors at the hospital from 2002 to 2008, according to documents obtained by The Inquirer through a Freedom of Information Act request."
TDIU Pled by Pro Se Veteran, Case, Jackson v. Shinseki, FedCir.
This case presents two items which are of interest, total disability rating based on individual unemployability [“TDIU”] pled by a pro se veteran and what constitutes a "case".
Jackson v. Shinseki, No. 2009-7015 (DECIDED: November 25, 2009)
============================
Last, in Comer v. Peake, 552 F.3d 1362, 1367 (Fed. Cir. 2009), this court held that “a claim to TDIU benefits is not a free-standing claim that must be pled with specificity.” But, as further clarification, this court went on to explain that it could only be implicitly raised where “a pro se veteran, who presents cogent evidence of unemployability, seeks to obtain a higher disability rating.” Id. (emphasis added). Similarly, in Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001), a decision heavily cited in Comer, this court further instructed the VA to consider any implicit TDIU claim but only where the veteran “submits evidence of unemployability.” Together, Comer and Roberson make clear that a claim for TDIU can be implicitly raised only where the veteran proffers some evidence of unemployability.
=================================
While this court accepts that a TDIU claim may under certain circumstances necessarily be encompassed in a veteran’s claim for increased benefits despite not being expressly raised, those circumstances are absent here. To raise an informal TDIU claim, a veteran must make a claim for the highest rating possible, submit evidence of medical disability, and submit evidence of unemployability. See Roberson, 251 F.3d at 1384 (“Once a veteran submits evidence of a medical disability and makes a claim for the highest rating possible, and additionally submits evidence of unemployability, the ‘identify the benefit sought’ requirement of 38 C.F.R. § 3.155(a) is met and the VA must consider TDIU.”).
===================================
This court has explained that a “case” within the meaning of Section 5904(c) encompasses “all potential claims raised by the evidence, applying all relevant laws and regulations, regardless of whether the claim is specifically labeled . . . .” Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001) (emphasis added).
==================================
Indeed, 38 C.F.R. § 20.202 expressly requires the Board to construe an appellant’s arguments “in a liberal manner for purposes of determining whether they raise issues on appeal.”
================================
United States Court of Appeals for the Federal Circuit
2009-7015
FRANCIS M. JACKSON,
Claimant-Appellant,
v.
ERIC K. SHINSEKI, Secretary of Veterans Affairs,
Respondent-Appellee.
Kenneth M. Carpenter, Carpenter, Chartered, of Topeka, Kansas, argued for claimant-appellant.
Lauren A. Weeman, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, argued for respondent-appellee. On the brief were Michael F. Hertz, Deputy Assistant Attorney General, Jeanne E. Davidson, Director, Kirk T. Manhardt, Assistant Director, and Scott D. Austin, Senior Trial Attorney. Of counsel on the brief were David R. McLenachen, Deputy Assistant General Counsel, and Amanda R. Blackmon, Attorney, Office of the General Counsel, United States Department of Veterans Affairs, of Washington, DC.
Appealed from: United States Court of Appeals for Veterans Claims
Judge Robert N. Davis
UNITED STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT
2009-7015
FRANCIS M. JACKSON,
Claimant-Appellant,
v.
ERIC K. SHINSEKI, Secretary of Veterans Affairs,
Respondent-Appellee.
Appeal from the United States Court of Appeals for Veterans Claims in 06-0823, Judge Robert N. Davis.
___________________________
DECIDED: November 25, 2009
___________________________
Before RADER, BRYSON, and LINN, Circuit Judges.
RADER, Circuit Judge.
The United States Court of Appeals for Veterans Claims (the “Veterans Court”) held that attorney Francis M. Jackson was not entitled to fees for his representation of veteran Gerald Easler in connection with a service disability claim, which ultimately included a total disability rating based on individual unemployability (“TDIU”). Because Mr. Easler’s claim did not include the requisite evidence to support a TDIU claim before the Board of Veterans Appeals (the “Board”), Mr. Easler’s claim was not a part of the “case” as defined in 38 U.S.C. § 5904(c). For that reason, Mr. Jackson does not qualify for fees and this court therefore affirms.
I.
In January 2000, a Department of Veterans Affairs regional office (the “RO”) granted Mr. Easler an increased rating from twenty to forty percent for his lower back disorder. Mr. Easler then filed a supplementary claim seeking an increased rating on his lower back disorder and a new disability rating for a cervical spine disorder. The Board rejected both requests in July 2000.
Mr. Easler then hired Mr. Jackson on a contingency fee basis to prosecute his appeal to the Veterans Court. Under that contingency fee agreement, Mr. Jackson would receive a fee of twenty percent of “the total amount of any past-due benefits awarded on the basis of [Mr. Easler’s] claim before [the Veterans Administration (the ‘VA’)].” The VA would pay Mr. Jackson directly from the benefits recovered by Mr. Easler.
Mr. Jackson then filed an appeal to the Veterans Court on Mr. Easler’s behalf. The Veterans Court shortly thereafter granted a joint motion to vacate the Board’s opinion and remand. During the ensuing proceedings, Mr. Easler and Mr. Jackson entered into a second contingency fee agreement covering all future representations before the Veterans Court and subsequent remands to the Board and RO. The second agreement also provided for an automatic deduction of Mr. Jackson’s fee from any past-due benefits recovered by Mr. Easler.
On a subsequent remand to the RO, Mr. Easler filed a separate claim for depressive disorder. The RO eventually granted that claim assigning a thirty percent disability rating. Mr. Jackson then contacted the RO to inquire about Mr. Easler’s prospect of qualifying for TDIU benefits as a result of this depressive disorder and its
2009-7015 2
accompanying disability rating. The RO adopted Mr. Jackson’s suggestion and granted TDIU.
Under Mr. Jackson’s contingency fee agreements, the VA withheld $7,412.95- twenty percent of the past-due benefits collected-from Mr. Easler. But before disbursal of that amount, the VA informed Mr. Jackson that he was not eligible to receive any past-due benefits relating to TDIU because that issue had not been the subject of a final Board decision per 38 U.S.C. § 5904(c). Mr. Jackson appealed to the Board, which affirmed the RO’s decision:
In this case, there has been no final Board decision on the issue for which the appellant seeks payment, i.e., entitlement to a TDIU. The Board’s decision of July 2000 addressed the veteran’s appeal on the issues of service connection for a cervical spine disorder and increased ratings for a low back disability.
The Board also noted that “the evidence of record [did] not support a finding of unemployability”-a necessary element of TDIU-at the time of the Board’s July 2000 decision.
On appeal to the Veterans Court, Mr. Jackson argued that he had presented Mr. Easler’s TDIU claim to the Board prior to the July 2000 decision because it was reasonably and inherently related to Mr. Easler’s increased rating claim for lower back disorder. The Veterans Court rejected that argument:
To raise an informal TDIU-rating claim, the veteran must make a claim for the highest rating possible, submit evidence of medical disability, and submit evidence of unemployability. The Court concludes that although the veteran made a claim for the highest rating possible and submitted evidence of a medical disability, he did not submit evidence of unemployability. . . . Here, evidence does not suggest the veteran was unemployable. Indeed, it suggests the opposite.
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After the Veterans Court denied a subsequent motion for reconsideration, Mr. Jackson timely appealed.
II.
This court’s jurisdiction to review decisions of the Veterans Court is limited. This court may only review questions relating to the interpretation of constitutional and statutory provisions. 38 U.S.C. § 7292(c). This court has no jurisdiction to review questions of fact, or the application of law to a particular set of facts, unless a constitutional issue is presented. Id. § 7292(d)(2).
Section 5904(c) provides in pertinent part:
[A] fee may not be charged, allowed, or paid for services of agents and attorneys with respect to services provided before the date on which the Board of Veterans' Appeals first makes a final decision in the case. Such a fee may be charged, allowed, or paid in the case of services provided after such date only if an agent or attorney is retained with respect to such case before the end of the one-year period beginning on that date.
38 U.S.C. § 5904(c)(1) (2000) (emphasis added). This court has explained that a “case” within the meaning of Section 5904(c) encompasses “all potential claims raised by the evidence, applying all relevant laws and regulations, regardless of whether the claim is specifically labeled . . . .” Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001) (emphasis added). In that vein, this court has repeatedly endorsed liberal and broad constructions of veterans’ claims. See, e.g., Gambill v. Shinseki, 576 F.3d 1307, 1316 (Fed. Cir. 2009) (“Like the regional office, the Board is required to construe all of the veteran's arguments in a liberal manner.” (citations and internal quotation marks omitted)). Indeed, 38 C.F.R. § 20.202 expressly requires the Board to construe an appellant’s arguments “in a liberal manner for purposes of determining whether they raise issues on appeal.”
2009-7015 4
This case asks whether Mr. Jackson presented a TDIU claim as part of Mr. Easler’s “case” for purposes of Section 5904(c) at the time of the Board’s July 2000 decision. If TDIU was a part of Mr. Easler’s case, then Mr. Jackson is entitled to attorney’s fees related to the payment of TDIU benefits. If it was not, the Board had yet to make “a final decision” on the matter and Mr. Jackson has no entitlement to attorney’s fees.
Before the Veterans Court and on appeal to this court, Mr. Jackson acknowledges that Mr. Easler did not expressly raise a claim for TDIU. Nonetheless, according to Mr. Jackson, a TDIU claim was encompassed by or inherent in the original two claims presented to the Board before the July 2000 decision. In other words, Mr. Jackson contends that a TDIU claim is implicitly raised before the Board where a veteran seeks an increased rating based on either a previous service connection injury or a new disability claim.
While this court accepts that a TDIU claim may under certain circumstances necessarily be encompassed in a veteran’s claim for increased benefits despite not being expressly raised, those circumstances are absent here. To raise an informal TDIU claim, a veteran must make a claim for the highest rating possible, submit evidence of medical disability, and submit evidence of unemployability. See Roberson, 251 F.3d at 1384 (“Once a veteran submits evidence of a medical disability and makes a claim for the highest rating possible, and additionally submits evidence of unemployability, the ‘identify the benefit sought’ requirement of 38 C.F.R. § 3.155(a) is met and the VA must consider TDIU.”). In this case, as the Board determined before the July 2000 ruling, Mr. Easler’s claim included no evidence of unemployability.
2009-7015 5
Indeed, as the Veterans Court explained, the evidence on record “suggest[ed] the opposite”-i.e., that Mr. Easler was employed. This court may not review that factual finding. 38 U.S.C. § 7292(d)(2). Without any modicum of evidence suggesting Mr. Easler’s unemployability, and with the record suggesting the opposite, this court cannot say that TDIU was part of the “case” before the Board’s July 2000 decision. Thus, the Board was entirely correct to refuse to disburse the attorney’s fees to Mr. Jackson, but instead to send the full amount to the veteran.
The decisions relied on by Mr. Jackson do not support his argument. In Stanley v. Principi, 283 F.3d 1350, 1352 (Fed. Cir. 2002), the RO denied the veteran’s claim for service connection of a cervical spine disability. The veteran did not appeal, resulting in a final decision. Id. The RO then denied the veteran’s application to reopen the claim without the submission of new and material evidence. Id. The veteran then hired an attorney, Mr. James Stanley, to prosecute his claims on a contingency fee basis. Id. at 1353. On appeal, the Board vacated its finding because new and material evidence had been submitted by the veteran. Id. In its decision, the Board did not address TDIU. Id. The Board then remanded to the RO where the veteran added a claim for TDIU. Id. The RO eventually granted the veteran’s claim for service connection and his accompanying claim for TDIU benefits. Id. The Veterans Court, nonetheless, denied Mr. Stanley any attorney’s fees finding that no “final decision” had been issued by the Board on either the cervical spine or TDIU claims. Id.
This court vacated because: “attorneys' fees are available in connection with the proceedings associated with reopening a claim after the Board first makes a final decision with respect to a particular issue in the reopening proceedings, even if the
2009-7015 6
decision is not appealable.” Id. at 1359. Despite Stanley’s reference to the broad implications behind Section 5904(c), the decision was limited to only the cervical spine claim. It did not include the claim for TDIU benefits. As to that issue, this court expressly found no entitlement to attorney’s fees because it had not been properly raised by the veteran prior to the appeal to the Board. Id. This case presents facts similar to the TDIU claim in Stanley. No doubt, the TDIU claim in Stanley, as here, was directly related to and stemmed from the veteran’s service connection claim. Notwithstanding that fact, Mr. Stanley, like Mr. Jackson, was not entitled to attorney’s fees.
In Carpenter v. Nicholson, 452 F.3d 1379, 1380 (Fed. Cir. 2006), the veteran originally received a one hundred percent disability rating, which was later reduced by the RO to sixty percent. The veteran then twice brought claims to adjust his disability rating back to one hundred percent. Id. Both claims were denied by the Board. Id. Kenneth Carpenter was then hired as counsel. Id. at 1381. On appeal to the Veterans Court, the case was remanded for error based on a joint motion filed by the parties. Id. Mr. Carpenter’s efforts on remand were successful and the veteran was again awarded a one hundred percent disability rating. Id. The veteran then brought a separate claim seeking an earlier effective date on the ground that the earlier RO decision contained clear and unmistakable error. Id. The RO denied that claim, but on appeal the Board reversed and granted the veteran his requested effective date. Id. Despite his efforts, the Board informed Mr. Carpenter that he was not entitled to attorney’s fees for services rendered relating to the earlier effective date because “no final decision” had been made by the Board on that issue. Id. at 1382.
2009-7015 7
In reversing the Board’s decision, this court found that the Board had already squarely decided the question of effective date because it was necessarily encompassed in the veteran’s service connection claim. Id. at 1384. In other words, because proving an effective date is a necessary component of establishing a disability rating, the effective date of disability was an issue presented in the “case” when the Board considered the overall question of disability. Unlike Carpenter, however, establishing entitlement to TDIU is not a prerequisite to obtaining an increased disability rating. Significantly, there is an essential element of TDIU setting it separate and apart. That element is unemployability-the very element that Mr. Easler’s claim lacked.
Last, in Comer v. Peake, 552 F.3d 1362, 1367 (Fed. Cir. 2009), this court held that “a claim to TDIU benefits is not a free-standing claim that must be pled with specificity.” But, as further clarification, this court went on to explain that it could only be implicitly raised where “a pro se veteran, who presents cogent evidence of unemployability, seeks to obtain a higher disability rating.” Id. (emphasis added). Similarly, in Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001), a decision heavily cited in Comer, this court further instructed the VA to consider any implicit TDIU claim but only where the veteran “submits evidence of unemployability.” Together, Comer and Roberson make clear that a claim for TDIU can be implicitly raised only where the veteran proffers some evidence of unemployability. The record in this case contains no such evidence before the Board’s July 2000 decision. As such, TDIU was not a part of the “case” as required by Section 5904(c).
2009-7015 8 2009-7015 9
III.
For the above-stated reasons, the decision of the Veterans Court to deny Mr. Jackson attorney’s fees in connection with Mr. Easler’s TDIU claim is affirmed. Because no evidence of Mr. Easler’s unemployability was submitted before the Board’s July 2000 decision, the “case” before the Board at that time did not include a claim for TDIU benefits and thus was not a compensable fee under Section 5904(c).
AFFIRMED
COSTS
Each party shall bear its own costs.
Jackson v. Shinseki, No. 2009-7015 (DECIDED: November 25, 2009)
============================
Last, in Comer v. Peake, 552 F.3d 1362, 1367 (Fed. Cir. 2009), this court held that “a claim to TDIU benefits is not a free-standing claim that must be pled with specificity.” But, as further clarification, this court went on to explain that it could only be implicitly raised where “a pro se veteran, who presents cogent evidence of unemployability, seeks to obtain a higher disability rating.” Id. (emphasis added). Similarly, in Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001), a decision heavily cited in Comer, this court further instructed the VA to consider any implicit TDIU claim but only where the veteran “submits evidence of unemployability.” Together, Comer and Roberson make clear that a claim for TDIU can be implicitly raised only where the veteran proffers some evidence of unemployability.
=================================
While this court accepts that a TDIU claim may under certain circumstances necessarily be encompassed in a veteran’s claim for increased benefits despite not being expressly raised, those circumstances are absent here. To raise an informal TDIU claim, a veteran must make a claim for the highest rating possible, submit evidence of medical disability, and submit evidence of unemployability. See Roberson, 251 F.3d at 1384 (“Once a veteran submits evidence of a medical disability and makes a claim for the highest rating possible, and additionally submits evidence of unemployability, the ‘identify the benefit sought’ requirement of 38 C.F.R. § 3.155(a) is met and the VA must consider TDIU.”).
===================================
This court has explained that a “case” within the meaning of Section 5904(c) encompasses “all potential claims raised by the evidence, applying all relevant laws and regulations, regardless of whether the claim is specifically labeled . . . .” Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001) (emphasis added).
==================================
Indeed, 38 C.F.R. § 20.202 expressly requires the Board to construe an appellant’s arguments “in a liberal manner for purposes of determining whether they raise issues on appeal.”
================================
United States Court of Appeals for the Federal Circuit
2009-7015
FRANCIS M. JACKSON,
Claimant-Appellant,
v.
ERIC K. SHINSEKI, Secretary of Veterans Affairs,
Respondent-Appellee.
Kenneth M. Carpenter, Carpenter, Chartered, of Topeka, Kansas, argued for claimant-appellant.
Lauren A. Weeman, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, argued for respondent-appellee. On the brief were Michael F. Hertz, Deputy Assistant Attorney General, Jeanne E. Davidson, Director, Kirk T. Manhardt, Assistant Director, and Scott D. Austin, Senior Trial Attorney. Of counsel on the brief were David R. McLenachen, Deputy Assistant General Counsel, and Amanda R. Blackmon, Attorney, Office of the General Counsel, United States Department of Veterans Affairs, of Washington, DC.
Appealed from: United States Court of Appeals for Veterans Claims
Judge Robert N. Davis
UNITED STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT
2009-7015
FRANCIS M. JACKSON,
Claimant-Appellant,
v.
ERIC K. SHINSEKI, Secretary of Veterans Affairs,
Respondent-Appellee.
Appeal from the United States Court of Appeals for Veterans Claims in 06-0823, Judge Robert N. Davis.
___________________________
DECIDED: November 25, 2009
___________________________
Before RADER, BRYSON, and LINN, Circuit Judges.
RADER, Circuit Judge.
The United States Court of Appeals for Veterans Claims (the “Veterans Court”) held that attorney Francis M. Jackson was not entitled to fees for his representation of veteran Gerald Easler in connection with a service disability claim, which ultimately included a total disability rating based on individual unemployability (“TDIU”). Because Mr. Easler’s claim did not include the requisite evidence to support a TDIU claim before the Board of Veterans Appeals (the “Board”), Mr. Easler’s claim was not a part of the “case” as defined in 38 U.S.C. § 5904(c). For that reason, Mr. Jackson does not qualify for fees and this court therefore affirms.
I.
In January 2000, a Department of Veterans Affairs regional office (the “RO”) granted Mr. Easler an increased rating from twenty to forty percent for his lower back disorder. Mr. Easler then filed a supplementary claim seeking an increased rating on his lower back disorder and a new disability rating for a cervical spine disorder. The Board rejected both requests in July 2000.
Mr. Easler then hired Mr. Jackson on a contingency fee basis to prosecute his appeal to the Veterans Court. Under that contingency fee agreement, Mr. Jackson would receive a fee of twenty percent of “the total amount of any past-due benefits awarded on the basis of [Mr. Easler’s] claim before [the Veterans Administration (the ‘VA’)].” The VA would pay Mr. Jackson directly from the benefits recovered by Mr. Easler.
Mr. Jackson then filed an appeal to the Veterans Court on Mr. Easler’s behalf. The Veterans Court shortly thereafter granted a joint motion to vacate the Board’s opinion and remand. During the ensuing proceedings, Mr. Easler and Mr. Jackson entered into a second contingency fee agreement covering all future representations before the Veterans Court and subsequent remands to the Board and RO. The second agreement also provided for an automatic deduction of Mr. Jackson’s fee from any past-due benefits recovered by Mr. Easler.
On a subsequent remand to the RO, Mr. Easler filed a separate claim for depressive disorder. The RO eventually granted that claim assigning a thirty percent disability rating. Mr. Jackson then contacted the RO to inquire about Mr. Easler’s prospect of qualifying for TDIU benefits as a result of this depressive disorder and its
2009-7015 2
accompanying disability rating. The RO adopted Mr. Jackson’s suggestion and granted TDIU.
Under Mr. Jackson’s contingency fee agreements, the VA withheld $7,412.95- twenty percent of the past-due benefits collected-from Mr. Easler. But before disbursal of that amount, the VA informed Mr. Jackson that he was not eligible to receive any past-due benefits relating to TDIU because that issue had not been the subject of a final Board decision per 38 U.S.C. § 5904(c). Mr. Jackson appealed to the Board, which affirmed the RO’s decision:
In this case, there has been no final Board decision on the issue for which the appellant seeks payment, i.e., entitlement to a TDIU. The Board’s decision of July 2000 addressed the veteran’s appeal on the issues of service connection for a cervical spine disorder and increased ratings for a low back disability.
The Board also noted that “the evidence of record [did] not support a finding of unemployability”-a necessary element of TDIU-at the time of the Board’s July 2000 decision.
On appeal to the Veterans Court, Mr. Jackson argued that he had presented Mr. Easler’s TDIU claim to the Board prior to the July 2000 decision because it was reasonably and inherently related to Mr. Easler’s increased rating claim for lower back disorder. The Veterans Court rejected that argument:
To raise an informal TDIU-rating claim, the veteran must make a claim for the highest rating possible, submit evidence of medical disability, and submit evidence of unemployability. The Court concludes that although the veteran made a claim for the highest rating possible and submitted evidence of a medical disability, he did not submit evidence of unemployability. . . . Here, evidence does not suggest the veteran was unemployable. Indeed, it suggests the opposite.
2009-7015 3
After the Veterans Court denied a subsequent motion for reconsideration, Mr. Jackson timely appealed.
II.
This court’s jurisdiction to review decisions of the Veterans Court is limited. This court may only review questions relating to the interpretation of constitutional and statutory provisions. 38 U.S.C. § 7292(c). This court has no jurisdiction to review questions of fact, or the application of law to a particular set of facts, unless a constitutional issue is presented. Id. § 7292(d)(2).
Section 5904(c) provides in pertinent part:
[A] fee may not be charged, allowed, or paid for services of agents and attorneys with respect to services provided before the date on which the Board of Veterans' Appeals first makes a final decision in the case. Such a fee may be charged, allowed, or paid in the case of services provided after such date only if an agent or attorney is retained with respect to such case before the end of the one-year period beginning on that date.
38 U.S.C. § 5904(c)(1) (2000) (emphasis added). This court has explained that a “case” within the meaning of Section 5904(c) encompasses “all potential claims raised by the evidence, applying all relevant laws and regulations, regardless of whether the claim is specifically labeled . . . .” Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001) (emphasis added). In that vein, this court has repeatedly endorsed liberal and broad constructions of veterans’ claims. See, e.g., Gambill v. Shinseki, 576 F.3d 1307, 1316 (Fed. Cir. 2009) (“Like the regional office, the Board is required to construe all of the veteran's arguments in a liberal manner.” (citations and internal quotation marks omitted)). Indeed, 38 C.F.R. § 20.202 expressly requires the Board to construe an appellant’s arguments “in a liberal manner for purposes of determining whether they raise issues on appeal.”
2009-7015 4
This case asks whether Mr. Jackson presented a TDIU claim as part of Mr. Easler’s “case” for purposes of Section 5904(c) at the time of the Board’s July 2000 decision. If TDIU was a part of Mr. Easler’s case, then Mr. Jackson is entitled to attorney’s fees related to the payment of TDIU benefits. If it was not, the Board had yet to make “a final decision” on the matter and Mr. Jackson has no entitlement to attorney’s fees.
Before the Veterans Court and on appeal to this court, Mr. Jackson acknowledges that Mr. Easler did not expressly raise a claim for TDIU. Nonetheless, according to Mr. Jackson, a TDIU claim was encompassed by or inherent in the original two claims presented to the Board before the July 2000 decision. In other words, Mr. Jackson contends that a TDIU claim is implicitly raised before the Board where a veteran seeks an increased rating based on either a previous service connection injury or a new disability claim.
While this court accepts that a TDIU claim may under certain circumstances necessarily be encompassed in a veteran’s claim for increased benefits despite not being expressly raised, those circumstances are absent here. To raise an informal TDIU claim, a veteran must make a claim for the highest rating possible, submit evidence of medical disability, and submit evidence of unemployability. See Roberson, 251 F.3d at 1384 (“Once a veteran submits evidence of a medical disability and makes a claim for the highest rating possible, and additionally submits evidence of unemployability, the ‘identify the benefit sought’ requirement of 38 C.F.R. § 3.155(a) is met and the VA must consider TDIU.”). In this case, as the Board determined before the July 2000 ruling, Mr. Easler’s claim included no evidence of unemployability.
2009-7015 5
Indeed, as the Veterans Court explained, the evidence on record “suggest[ed] the opposite”-i.e., that Mr. Easler was employed. This court may not review that factual finding. 38 U.S.C. § 7292(d)(2). Without any modicum of evidence suggesting Mr. Easler’s unemployability, and with the record suggesting the opposite, this court cannot say that TDIU was part of the “case” before the Board’s July 2000 decision. Thus, the Board was entirely correct to refuse to disburse the attorney’s fees to Mr. Jackson, but instead to send the full amount to the veteran.
The decisions relied on by Mr. Jackson do not support his argument. In Stanley v. Principi, 283 F.3d 1350, 1352 (Fed. Cir. 2002), the RO denied the veteran’s claim for service connection of a cervical spine disability. The veteran did not appeal, resulting in a final decision. Id. The RO then denied the veteran’s application to reopen the claim without the submission of new and material evidence. Id. The veteran then hired an attorney, Mr. James Stanley, to prosecute his claims on a contingency fee basis. Id. at 1353. On appeal, the Board vacated its finding because new and material evidence had been submitted by the veteran. Id. In its decision, the Board did not address TDIU. Id. The Board then remanded to the RO where the veteran added a claim for TDIU. Id. The RO eventually granted the veteran’s claim for service connection and his accompanying claim for TDIU benefits. Id. The Veterans Court, nonetheless, denied Mr. Stanley any attorney’s fees finding that no “final decision” had been issued by the Board on either the cervical spine or TDIU claims. Id.
This court vacated because: “attorneys' fees are available in connection with the proceedings associated with reopening a claim after the Board first makes a final decision with respect to a particular issue in the reopening proceedings, even if the
2009-7015 6
decision is not appealable.” Id. at 1359. Despite Stanley’s reference to the broad implications behind Section 5904(c), the decision was limited to only the cervical spine claim. It did not include the claim for TDIU benefits. As to that issue, this court expressly found no entitlement to attorney’s fees because it had not been properly raised by the veteran prior to the appeal to the Board. Id. This case presents facts similar to the TDIU claim in Stanley. No doubt, the TDIU claim in Stanley, as here, was directly related to and stemmed from the veteran’s service connection claim. Notwithstanding that fact, Mr. Stanley, like Mr. Jackson, was not entitled to attorney’s fees.
In Carpenter v. Nicholson, 452 F.3d 1379, 1380 (Fed. Cir. 2006), the veteran originally received a one hundred percent disability rating, which was later reduced by the RO to sixty percent. The veteran then twice brought claims to adjust his disability rating back to one hundred percent. Id. Both claims were denied by the Board. Id. Kenneth Carpenter was then hired as counsel. Id. at 1381. On appeal to the Veterans Court, the case was remanded for error based on a joint motion filed by the parties. Id. Mr. Carpenter’s efforts on remand were successful and the veteran was again awarded a one hundred percent disability rating. Id. The veteran then brought a separate claim seeking an earlier effective date on the ground that the earlier RO decision contained clear and unmistakable error. Id. The RO denied that claim, but on appeal the Board reversed and granted the veteran his requested effective date. Id. Despite his efforts, the Board informed Mr. Carpenter that he was not entitled to attorney’s fees for services rendered relating to the earlier effective date because “no final decision” had been made by the Board on that issue. Id. at 1382.
2009-7015 7
In reversing the Board’s decision, this court found that the Board had already squarely decided the question of effective date because it was necessarily encompassed in the veteran’s service connection claim. Id. at 1384. In other words, because proving an effective date is a necessary component of establishing a disability rating, the effective date of disability was an issue presented in the “case” when the Board considered the overall question of disability. Unlike Carpenter, however, establishing entitlement to TDIU is not a prerequisite to obtaining an increased disability rating. Significantly, there is an essential element of TDIU setting it separate and apart. That element is unemployability-the very element that Mr. Easler’s claim lacked.
Last, in Comer v. Peake, 552 F.3d 1362, 1367 (Fed. Cir. 2009), this court held that “a claim to TDIU benefits is not a free-standing claim that must be pled with specificity.” But, as further clarification, this court went on to explain that it could only be implicitly raised where “a pro se veteran, who presents cogent evidence of unemployability, seeks to obtain a higher disability rating.” Id. (emphasis added). Similarly, in Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001), a decision heavily cited in Comer, this court further instructed the VA to consider any implicit TDIU claim but only where the veteran “submits evidence of unemployability.” Together, Comer and Roberson make clear that a claim for TDIU can be implicitly raised only where the veteran proffers some evidence of unemployability. The record in this case contains no such evidence before the Board’s July 2000 decision. As such, TDIU was not a part of the “case” as required by Section 5904(c).
2009-7015 8 2009-7015 9
III.
For the above-stated reasons, the decision of the Veterans Court to deny Mr. Jackson attorney’s fees in connection with Mr. Easler’s TDIU claim is affirmed. Because no evidence of Mr. Easler’s unemployability was submitted before the Board’s July 2000 decision, the “case” before the Board at that time did not include a claim for TDIU benefits and thus was not a compensable fee under Section 5904(c).
AFFIRMED
COSTS
Each party shall bear its own costs.
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