Friday, July 31, 2009

Army Refuses to Release Records of Guidance Discouraging PTSD Diagnosis

CREW Sues Dept of Army for Refusing to Disclose Records of Guidance Discouraging PTSD Diagnosis

WASHINGTON - July 31 - Today, CREW filed a lawsuit against the Army, CREW v. Dep't of the Army, challenging the Army's failure to produce records in response to CREW's FOIA request seeking documentation of Army guidance that discourages diagnoses of post traumatic stress disorder (PTSD). The Veterans Affairs has issued similar guidance that CREW also is seeking to document through a FOIA request that is also the subject of pending litigation.

Read CREW's complaint and FOIA request in the Related Documents section on the right.


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Citizens for Responsibility and Ethics in Washington (CREW) is a nonprofit 501(c)(3) organization dedicated to promoting ethics and accountability in government and public life by targeting government officials -- regardless of party affiliation -- who sacrifice the common good to special interests. CREW advances its mission using a combination of research, litigation and media outreach.

Thursday, July 30, 2009

VA and Helena Montana Fired Opthalmologist Settle

VA reaches settlement with fired doctor

Gazette News Service | Posted: Tuesday, July 28, 2009 2:20 pm | Loading…

HELENA - The VA Medical Center west of Helena says it has reached a settlement with a fired doctor.

A disciplinary appeals board had been planning to meet Tuesday to hear the case of the March 13 firing of 74-year-old ophthalmologist Harvey Casebeer of Butte.

The firing was made public in a VA inspector general's report early in the month. Casebeer was not named in the report, which said he was fired for delivering substandard care and falsifying medical records.

Charles Hail, a VA attorney in Helena, says terms of the settlement are confidential and bring an end to the process. He says Casebeer will not be returning to work

Casebeer's lawyer, John Doubek of Helena, could not be reached for comment Tuesday.

Casebeer had argued the complaint may have been retaliatory.

Director Montgomery VA Medical Center Promoted to Houston VA Medical Center

Adam Walmus, director of the Jack C. Montgomery VA Medical Center, has accepted a promotion to Houston to be director of the Michael E. Debakey VA Medical Center, which has been rated as “one of the most complex” VA medical centers in the country.

When Walmus first arrived he "saw the need for and got approved for, was to add inpatient mental health,” he said. “That’s 14 beds. And, to add inpatient rehabilitation for post-stroke, post-surgery patients. We have a 15-bed program. The fifth floor was closed when I got here. That’s where we put in our mental health unit and our palliative care program.”

The number of medical and surgical beds increased from 50 to 75. Walmus said they are in the final phases of adding a seven-bed hospice and palliative care program. By the end of this year, the medical center will have grown to 112 beds.

Walmus has brought in additional physicians as services have expanded: a chief of surgery, a second oncologist, a cardiologist, a hand surgeon, two neurologists, two anesthesiologists, two urologists, and four general surgeons."
Full Article: VAMC director promoted away
By Keith Purtell
Phoenix Staff Writer

Wednesday, July 29, 2009

Potential Endoscopy HIV Sources Come Forward

Nashville Vet Could Have Spread HIV
Man Says He Always Told Health Care Workers Of Virus
Reported By Nancy Amons

POSTED: 4:37 pm CDT July 28, 2009

This may be the key that the infected vets need to prove that they contacted HIV though contaminated equipment. I say that because with a potential source of HIV they will be able to compare the DNA and see if there is a match. Also, Mike Sheppard, attorney representing exposed veterans, said "he's representing another man who could also be the source."

"MURFREESBORO, Tenn. -- A Nashville veteran who had a colonoscopy there says he feels a heavy burden knowing he could have spread HIV infection to others."
""I'm sorry for the person who came behind me," said Hereford. "'Cause I already knew I was HIV-positive."

Hereford had a colonoscopy at the Murfreesboro VA in 2003. Five years later, the VA admitted its equipment wasn't properly assembled or sterilized. That caused bodily fluids to be passed from one patient to the next.

The VA has said 32 veterans have since tested positive for hepatitis B or C or HIV.

"Look how many people that didn't, don't deserve this, that are going to have it. They don't deserve it," said Hereford.

He said veterans should be compensated. He has contacted attorney Mike Sheppard, who has filed claims on behalf of 60 veterans so far.

Sheppard hasn't interviewed Hereford yet but said Hereford could possibly be the source of the HIV infection. Sheppard said he's representing another man who could also be the source."

Monday, July 27, 2009

VA-Salem Surgeon in Lawsuit Alleging Incapacitation

Patient Says VA Surgeon Was Incapacitated
By RYAN ABBOTT

ROANOKE, Va. (CN) - A surgeon with a long history of alcohol abuse severely injured a man during knee replacement surgery at the Veterans Affairs Medical Center in Salem, Va., the 71-year-old veteran claims in Federal Court.
Hal Gibson Paxton, an Army vet, claims that Dr. James McLeod was incapacitated during his surgery, and had to leave after lacerating an artery and vein, sending Paxton to intensive care, where he needed more surgeries to repair the torn blood vessels. Paxton says McLeod had to leave the surgery after an hour and 20 minutes because he was incapacitated, and other doctors had to complete the more than 6-hour surgery. He says he was hospitalized for nearly a month after the botched operation.
He claims McLeod injured him with "a laceration of the right popliteal artery and vein, an injury to the medial collateral ligament, a laceration to the gastrocnemius in excess of the usual case, and the anterior medial portion of the tibial plateau was broken off."
The complaint alleges that Dr. McLeod had numerous citations for driving under the influence and rehab trips as well as a stay in intensive care at his own hospital for treatment of alcoholic ketoacidosis.
Paxton sued the United States, demanding $2 million for medical malpractice and negligent retention. He is represented by Anthony Russell with Gentry Locke & Rakes.

Prognosis Poor for 14 Veterans Who Received Substandard Care

"Up to 14 people who got substandard care at the Philadelphia VA Medical Center now face a poor prognosis, a federal official said Thursday, The Philadelphia Inquirer reports.

"The treatment was clearly not effective in six veterans who received radioactive seed implants, based on the blood protein test that monitors signs of prostate cancer. An additional eight patients may also have suffered treatment failures; their PSA test levels have begun to rise - a worrisome sign, Michael Hagen, the VA's national director of radiation oncology services, told members of the House VA Subcommittee on Oversight and Investigations yesterday. Time will tell if more veterans face a recurrence of their cancers, Hagen said.""

Full Article: Federal Official Says Poor Prognosis Result From VA Center's Substandard Treatment
Article Date: 27 Jul 2009 - 3:00 PDT

Attorney Filing Cliams Against VA for Veterans Exposed to Infectious Body Fluids

Attorney, Mike Sheppard of Nashville, said he is preparing to file claims with the VA for about 60 veterans, including three women against the U.S. Department of Veterans Affairs to pay disability benefits and damages for hospital mistakes that may have exposed veterans to infectious body fluids — a complaint that he said could ultimately multiply into many more such demands.

"Among them are veterans who have tested positive for HIV and hepatitis and others who suffered emotional distress after the VA provided them with initial positive blood tests for infections that turned out to be wrong.

Sheppard also said other veterans among the roughly 10,000 affected former patients at VA hospitals in Murfreesboro, Tenn., Miami and Augusta, Ga., are likely to seek compensation beyond the VA's offer of free medical care."

Full Report:
Vets affected by VA hospital errors to file claims


By BILL POOVEY, Associated Press Writer

Sunday, July 26, 2009

Traumatic Brain Injury Increases Risk of Alzheimer's by 400-Percent

"Researchers already know that people who experience traumatic brain injury are at 400-percent increased risk for developing Alzheimer’s. Both disorders involve build-up of beta amyloid, a toxic brain protein."

The researchers "noted that buildup of beta amyloid occurs in a second wave of damage to brain cells following the first loss of nerve cells to traumatic injury. This second stage of injury can go on for months, if not years, resulting in large gaps in brain tissue."

Full Article: Those with PTSD nearly twice as likely to suffer dementia
Lee Bowman
Published: Sunday, July 26, 2009
Medical Journal

Federal Program Wants Foster Families for Disabled Veterans

This is definitely a program which qualified disabled veterans should be aware of and check out!

A "federal program that is new to Pennsylvania and will attempt to provide those veterans with family foster homes, said Teresa Stump-Klinger, medical foster home coordinator at the Lebanon VA Medical Center.

So far, about two-dozen veterans - including several from Berks County - who are served by the medical center have requested to be considered for the program."

"What's the cost? Veterans might pay a family or caregiver $2,000 to $3,000 a month - negotiable with the caregiver - to live with them. The amount that the U.S. Department of Veterans Affairs will reimburse the veterans is determined case by case."

Full Articl: Uncle Sam seeks foster families to take in disabled veterans
By Jason Brudereck
Reading Eagle

Friday, July 24, 2009

VAOIG Investigated Alleged Inappropriate Care in the Community Living Center Tomah VA Medical Center Tomah, Wisconsin

Healthcare Inspection Alleged Inappropriate Care in the Community Living Center Tomah VA Medical Center Tomah, Wisconsin

Report Number 09-00410-174, 7/23/2009

"The purpose of this inspection was to determine the validity of allegations that a registered nurse at the Tomah VA Medical Center, Tomah, Wisconsin, provided inappropriate care during an incident involving a terminally ill patient in the Community Living Center. We did not substantiate that an intentional unsafe act occurred or that the patient died as a result of the incident. We determined that managers did not follow Veterans Health Administration or medical center policy related to allegations of patient abuse. We recommended that managers ensure staff immediately report suspected incidents of patient abuse and that further actions are taken, in accordance with VHA and medical center policy."

Board Hearing For Fired Helena Montanna VA Ophthalmologist

"A disciplinary appeals board on July 28 will hear the case of a doctor fired from the VA Medical Center near Helena, a lawyer for the Department of Veterans Affairs said Monday.

The March 13 firing of 74-year-old ophthalmologist Harvey Casebeer, of Butte, was made public in a VA inspector general's report last week. Casebeer was not named in the report, which said he was fired for delivering substandard care and falsifying medical records."
Full Article: Board to hear fired VA doctor's appeal July 28
7/13/2009, 4:10 p.m. EDT
LEN IWANSKI
The Associated Press

Thursday, July 23, 2009

Palo Alto-VA Optomertist Defended by State Organization

Dr. Stephen Ezeji-Okoye, deputy chief of staff at Palo Alto-VA said: "It was identified that there were treatment options available that potentially could have prevented their loss," he added. "We felt that they didn't get optimal treatment."

Despite VA's investigation and finding of improper care, "A state optometrists association Wednesday publicly declared its support for an optometry chief placed on administrative leave as part of an investigation at the Palo Alto veterans hospital."

"Dr. Hilary Hawthorne, president of the California Optometric Association, said Wednesday her group stands behind Keswick.

"Dr. Keswick is a member of our organization," Hawthorne said in a statement. "I've known Curt for almost a decade as a compassionate and thorough optometrist. It's sad that this information was given to the media before he was given the opportunity to respond fully. We're hopeful that he'll be able to confront his unnamed accusers in public, to protect his rights and his reputation."

Full Article: Optometrists association defends Palo Alto VA optometry chief

By Jessica Bernstein-Wax

Daily News Staff Writer
Posted: 07/22/2009 11:43:31 PM PDT
Updated: 07/22/2009 11:43:32 PM PDT

Wednesday, July 22, 2009

VA Physician Assigned to Correct Botched Radiation Treatment Previously Botched Radiation Treatments

"The expert assigned by the Veterans Administration to "touch up" the treatment of veterans given the wrong doses of radiation for prostate cancer in Philadelphia was accused in federal lawsuits of botching the radiation treatments for three of his patients.

Court records show Kent Wallner, the Seattle VA physician, was accused in lawsuits against the VA of causing extensive damage to three veterans being treated for prostate cancer. Two of the three cases were settled for $1 million apiece. The third case was dismissed, and an appeal to the Supreme Court is being considered.

"This is truly the fox guarding the hen house," said Ann R. Deutscher, a Seattle lawyer who represented the veterans in the cases involving Wallner. "I'm just astounded," she said when informed the eight patients from Philadelphia were sent to Wallner."

Full Article: Veterans Administration physician accused of botching cancer treatment

By Walter F. Roche Jr.
TRIBUNE-REVIEW
Wednesday, July 22, 2009

WWII Veteran's Estate Awarded $749,000.00 for Lost Vision

"A federal judge has awarded $749,000 to the estate of a World War II veteran who lost much of his vision during surgery at the Veterans Administration medical facility in Jackson.

U.S. District Judge Tom Lee said in a footnote to Monday’s 18-page ruling that he was inclined to award more money for Charles West’s suffering, “which clearly has been extreme,” but was limited by Mississippi’s pain-and-suffering cap in such lawsuits.

West, who owned a grocery store in Greenville before moving to Brandon after his wife died, claimed in his suit that he suffered damage to the corneas of both eyes during a blepharoplasty, a procedure to remove sagging skin between the eyebrow and the eye lid.

West’s injury most likely occurred when a nurse used an undiluted Betadine solution or scrub during preparation for his surgery on March 10, 2006, Lee said.

“After the malpractice, the VA called Mr. West, his 83-year-old sister and his niece into a meeting and told them he had an allergic reaction. They lied to him,” West’s attorney, Billy Quin, said Wednesday. “If they just would have said this, ’We messed up, but we’re going to take care of you’ and then followed through and taken care of him there probably never would have been a lawsuit.”

An attorney for the VA did not respond to messages left by The Associated Press."

Full Article: Estate of late WWII vet gets $749,000 over surgery

By HOLBROOK MOHR • Associated Press Writer • July 22, 2009

VA Glaucoma Mistreatment Causes Blindness in 7 Veterans

VA informed 7 patients that improper care might of caused their blindness.

"In February the VA Palo Alto Health Care System, or VAPAHCS, initiated a three-month internal review of 381 charts and determined 23 glaucoma patients experienced "progressive visual loss" while receiving treatment in the hospital's optometry department, the Veterans Affairs office in Washington, D.C. told The Daily News."

"The U.S. Department of Veterans Affairs has confirmed its Palo Alto facility put the chief of optometry on administrative leave and reassigned another optometrist while it recently investigated the treatment of hundreds of eye patients, some of whom experienced significant vision loss under the department's care."

Full Article: VA says glaucoma patients at Palo Alto facility suffered severe vision loss due to mistreatment

By Jessica Bernstein-Wax

Daily News Staff Writer
Posted: 07/22/2009 12:00:12 AM PDT
Updated: 07/22/2009 11:07:43 AM PDT

Sunday, July 19, 2009

Prostate Radiation Errors, Unplugged Computer Emblamatic of the Problem

"The unplugged computer was emblematic of the disconnection and disregard that investigators say pervaded the brachytherapy program at the Philadelphia VA."

"For a year, starting in November 2006, the computer workstation with the software used to calculate the post-implant dosages was unplugged from the hospital's network.

All that time, no one took steps to plug it back in, work around it, or tell patient-safety officials, investigators found.

As a result, post-implant calculations weren't performed during that period for Armstrong and 15 other patients, according to the U.S. Nuclear Regulatory Commission, which oversees medical use of radiation.

Even after the computer was finally reconnected to the network, investigators discovered, post-implant calculations continued to be omitted for an additional seven patients.

"The standard of care is that you do post-implant dosimetry in every case. There's never an excuse for not doing it," said radiation oncologist Gregory Merrick of Wheeling, W. Va., author of a textbook on brachytherapy. "Most institutions will not allow you to continue doing procedures if you have no quality assurance.""

Full Article: VA radiation errors laid to offline computer

By Marie McCullough and Josh Goldstein
Philly.com
Inquirer Staff Writers

Friday, July 17, 2009

Dr. Stephen Ondra Appointed as Senior Policy Advisor for Health Affairs

Dr. Stephen Ondra, neurosurgeon and veteran of Operations Desert Shield and Desert Storm, has been appointed by President Barack Obama as the Senior Policy Advisor for Health Affairs in the Office of the Secretary at the Department of Veterans Affairs.

Ondra said: “The current system is both economically unsustainable and fails to give the country the value that we need or the quality we should have. We can and must do better.”

Full Article: Alumnus Appointed as White House Advisor

One More Exposed Veteran Tests Positive for Hepatitis C

One more veteran exposed to contaminated equipment at Murfreeboro has tested positive for Hepatitis C.
Results here: Endoscopic Notification Alvin C. York Campus, in Murfreesboro, Tennessee

Again we urge all potentially exposed to get tested and obtain a complete copy of all your medical records.

Thursday, July 16, 2009

Pittsburgh VA Inflates Claim Performance, Receive $300 Bonuses

Altmire presses for in-depth probe into VA benefits
Saturday, July 11, 2009
Pittsburgh Post-Gazette

Dissatisfied with a recent probe into the handling of benefit claims at the Pittsburgh Veterans Affairs office, U.S. Rep. Jason Altmire yesterday called for "a second, more in-depth investigation."

A report released in May by the Department of Veterans Affairs Office of Inspector General found that the Pittsburgh VA office's performance numbers were artificially inflated due to a delay in the processing of veterans' claims. The result, Mr. Altmire said, was that employees received $300 bonuses.

"I want the VA OIG to dig deeper so we can find out exactly what went wrong and what we need to do to ensure mistakes like this do not happen in the future," said Mr. Altmire, D-McCandless. "We owe it to our veterans to ensure that they receive the benefits they have earned as quickly as possible."

The Office of Inspector General's first report simply stated that a "misunderstanding" between management and staff led to a delay in the processing of veterans' claims.

New VA Endoscopy Letters Linked to Money

WSMV Nashville

VA Letters Give Vets Two Options
Patients Can File Federal Tort Claim, Apply For Monthly VA Payments


POSTED: 4:41 pm CDT July 15, 2009
UPDATED: 7:38 pm CDT July 15, 2009
MURFREESBORO, Tenn. -- More letters are being sent to veterans who may have had questionable colonoscopy procedures at the Murfreesboro VA Hospital. But this time, the letters are linked to money.

One attorney warns recipients might want to read the fine print before signing on the dotted line.

The letters offer veterans who have tested positive for HIV and hepatitis B or C after colonoscopy procedures at the Murfreesboro VA options to seek payment, but by filing out these forms, patients could be placing limits on future options.


Tony Mayo of Chattanooga served three years in the U.S. Army in the early 1970s. He said he always had a clean bill of health, until recently.

Mayo had a colonoscopy three years ago at the Alvin York Medical Center in Murfreesboro. In February, he was informed he'd tested positive for hepatitis C.

"Last week, they changed it to hepatitis B, chronic," said Mayo.

The problem left Mayo and his wife confused and worried.

"We've got 13 grandkids," said Mayo's wife, Sandra. "It worries me that maybe one of them could catch it."

The Mayos recently received a letter, which they plan to send to their attorney Mike Shepard for advice.

"I think it's premature for the veterans to be asked to settle at this point," said Shepard. "You have to be careful, understanding exactly what's happened to you before you start filing claims.

The letter starts with an apology but quickly gets down to business, giving veterans two options: They can file a federal tort claim or apply for monthly payments from the VA.

"Just because you get these forms have been sent out doesn't mean there's going to be compensation for the veterans," Shepard said.

Shephard said both options can be filed for, but both cannot be received. Opting to receive the monthly benefits will offset any lump sum payment received from the tort claim act.

Veterans will have two years to file a federal tort claims act. Shepard advises letter recipients refrain from filing because all the facts aren't yet in.

"Don't jump the gun here," he said. "Wait until the investigation is complete. Wait 'til Congress is done with their investigation."

Another issue to think about is if veterans file now and receive compensation, some of these infections lay dormant for years, so it could be three years before the patient realizes he or she has full-blown HIV but has already settled with the VA.

Last week, the VA announced that any veteran affected will receive completely free treatment from the VA.

Percentage of Veterans with Mental Health Problems Jumps Nearly 50%

"About 37% of veterans returning from Iraq and Afghanistan have mental health problems, a nearly 50% increase from the last time the prevalence was calculated, according to a new study published today analyzing national Department of Veterans Affairs data.

The study, which examined the records of about 289,000 veterans who sought care at the VA between 2002 and 2008, also found higher rates of post-traumatic stress disorder and depression.

“What’s really striking is the dramatic acceleration in mental health diagnoses, particularly PTSD, after the beginning of the conflict in Iraq,” said the study’s lead author, Dr. Karen Seal, a staff physician at the San Francisco VA Medical Center and an assistant professor at UC San Francisco."

Full Article: Percentage of veterans with mental health problems jumps dramatically
LA Times
1:00 PM, July 16, 2009

Congressman Filner Backs Paying all Disability Claims Now

Harvard Professor Linda Bilmes has noted, that the VA ends up paying almost 90% of all filed VA disability claims and proposed that, given this, why not handle disability claims like "the way the Internal Revenue Service handles most tax refunds. The IRS pays refunds to most and just reviews a small percentage of the tax returns. Why can't the VA do something similar?"

"Here's how we can stimulate the economy: Pay our military veterans the benefits we owe them - right now! We can treat VA benefits claims like IRS tax returns. Select a sampling, perhaps 10 percent to 25 percent, to be reviewed - and immediately pay the claims of the rest.

"That's a great idea - let's do it," said House Veterans' Affairs Committee Chairman Bob Filner, D-Calif. "I endorse it completely."

He said Vietnam War veterans are still being challenged for disability claims due to exposure to the defoliant Agent Orange - stop challenging and start paying."

Full Article:

Schram: What to do about vets' claims? Pay them - now


By Martin Schram/Syndicated columnist

Sunday, July 12, 2009

Update, Topeka VA Medical Center Standoff

According to "Jim Gleisberg, public affairs officer for the medical center, said a veteran walked into the emergency room at 12:10 p.m. asking to speak to a VA police officer.

"The veteran showed the officer he had a gun and threatened his own life," Gleisberg said. "The police officer acted very professionally. He got the veteran to leave the emergency room area, and other staff members on duty called the Topeka police.""

Full article: Gunman Surrenders at VA

Standoff at Colmery-O'Neil VA Medical Center in Topeka Ends Peacefully

KWCH.com Reports

Standoff at VA Hospital in Topeka Ends

Latest Update:

The standoff at the Colmery-O'Neil VA Medical Center in Topeka is now over.

The Topeka Capital-Journal reports the gunman surrendered around 1:45pm Sunday afternoon. The paper reports the gunman ejected rounds from his weapon in exchange for cigarettes.

Police arrested the man. No one was hurt.

Saturday, July 11, 2009

Colorado Hospital Hepatitis Scare, Thousands at Risk

The possible contamination with Hepatitis C in a Denver Hospital is sad.

However, it will allow a comparison as to how these types of incidents are handled in the media when it is civilians verses veterans.

One of the first things I noticed is the notation that there needs to be a follow-up test after 6 weeks. That was never mentioned to veterans who had been potentially exposed to Hepatitis C, they were just offered the initial testing.

Follow-up testing is one of the things that we have been stressing, along with obtaining all of your medical records.

Full Colorado article:

Scrub tech causes major hepatitis scare in Colo.

By P. SOLOMON BANDA, Associated Press Writer

One More Veterans Test Positive Following Exposure to Contaminated Equipment

One more veteran exposed to contaminated equipment at Miami-VA Medical Center has tested positive for HIV, the total of HIV positive now stands at 8 from all three VA medical facilities.

Bruce W. Carter Medical Center in Miami, Florida

Miami Data:
http://www.miami.va.gov/Miami_07062009.pdf

Friday, July 10, 2009

VA Medication Errors Still Placing Veterans at Risk of Overdose


Report: VA putting patients at risk of overdose, By KIMBERLY HEFLING, Associated Press Writer


Two years after an overdose fatality at a Los Angeles Veterans Affairs facility, the problems blamed in his death have not been corrected at many of the VA's residential treatment sites according to the VA's inspector general ordered the review as part of legislation passed to fix the problem.

"This report indicates what we and the Bailey family feared," said Sen. Daniel Akaka, D-Hawaii, chairman of the Senate Veterans Affairs committee.

Veterans Affairs Office Inspector General Report: http://www.va.gov/oig/54/reports/VAOIG-08-00038-152.pdf

Newly Discharged Veterans Unemployment Claims

There were 2,062 initial claims by newly discharged veterans, a decrease of 33 from the preceding week.

For the week ending June 20, newly discharged veterans claiming benefits totaled 28,528, an increase of 164 from the prior week.

source Department of Labor

Details Emerge About Montana-VA Doctor's Firing

The Associated Press, Details Emerge About VA Doctor's Firing, 7/10/2009, 1:04 a.m. EDT

(AP) — FORT HARRISON, Mont. - "A doctor at Fort Harrison's VA Medical Center who is accused of improperly conducting patient exams and altering records to reflect care that was never given was fired based on the findings of an investigation that began last year.

The hospital declined to release the name or specialty of the doctor, who was fired March 13. But a spokeswoman for the center said his patients were told of the findings and were assigned to another practitioner."

VA Letter to Infected Vets Offers to Forgo Co-pay

Seems that other Veteran advocates share our concerns, as we wrote yesterday, The remaining question is all the associated costs caused by the infection and stress related illnesses to the veteran and his family.

AP writer Bill Poovey published in the Miami Herald,
National Organization of Veterans' Advocates President Richard Cohen said the VA pledge of no-cost medical care - included in a letter received Wednesday by a Tennessee congressman - promises nothing "that the VA wouldn't do if these veterans were not subjected to unsanitary devices." He goes on to say "They are not giving them anything there." "The issue down the line in the case of somebody who has contracted hepatitis C or HIV or something else, the question is are they going to make these folks jump through hurdles in order to get" benefits or compensation?

"Somebody who receives negligent medical treatment and ends up with permanent disability is entitled to benefits."

Thursday, July 9, 2009

Botched Cancer Treatment Lacked Strong Safety Culture

According to the The Daily Pennsylvanian "after each brachytherapy procedure at the medical center, a urologist is required to scan the patient to find any seeds within the patient's bladder and remove them at that time."


"According to Steven Reynolds, director of the Division of Nuclear Materials Safety for the NRC, reporting standards were established in 1978 and are the same for all hospitals.

"What we have seen is a lack of a strong safety culture here at the VA of Philadelphia," Reynolds said. "It ought to have been reported to patients that seeds were in the bladder."

Former Camp Lejeune resident files lawsuit claiming contaminated drinking water

http://www.justicenewsflash.com/2009/07/09/camp-lejeune-resident-poisoned_200907091629.html

Veteran’s Administration News - Former Camp Lejeune contaminated drinking water!
2009-07-09 01:43:31 (GMT) (JusticeNewsFlash.com - Justice News Flash, Personal Injury)

Former Camp Lejeune resident sues feds citing contaminated drinking water.

Dallas, TX (JusticeNewsFlash.com)–Star News reported, a personal injury lawsuit was filed against the U.S. government on July 4, in federal court in the Eastern District of North Carolina. The lawsuit is seeking an upwards of $10,000 in personal injury damages. The plaintiff alleges she consumed polluted drinking water during the time she was living at Camp Lejeune in Jacksonville, Florida. Attorneys for the plaintiff and former Lejeune resident, Laura J. Jones, asserts the United States government, and agents of the Department of Defense, knowingly and willfully exposed Marines, sailors, their families, and civilian employees to highly polluted drinking water contained at the military base.

Civil litigation attorneys for Jones further allege, the government knowingly destroyed information revealing the dangers of exposure to the highly contaminated drinking water. Personal injury attorneys representing Jones state, the goal of the lawsuit is to expose the truth of the countless years military personnel, civilian employees, and their families have been exposed to contaminated drinking water. In addition, the plaintiff is seeking compensation for the adverse effects on her health from the daily exposure to hazardous pollutants in the water. The claimant also says health problems arising from the hazardous exposure have included cancers, reproductive disorders, and birth defects.

Although the number of affected people could reach in the millions, the claim cannot become a class-action lawsuit. Under the Feres Doctrine, soldiers and veterans are unable to sue the federal government; only spouses and children of the affected military personnel and veterans will be able to file suit.

Media Contact:Dallas Veteran’s Administration Lawyer Amy K. Witherite
Practice areas: Personal Injury Plaintiff
Amy Witherite. Eberstein & Witherite, LLP. 3100 Monticello Avenue, Suite 500. Dallas, TX 75205 - Toll Free: (888) 407-6669

VA to Treat all Infected Veterans

The remaining question is all the associated costs caused by the infection and stress related illnesses to the veteran and his family.

WASHINGTON – "The U.S. Department of Veterans Affairs has agreed to cover costs associated with treatment and follow-up testing for infected veterans in the wake of the endoscopy problems at the Alvin York VA Hospital."

Congressman Bart Gordon received a "letter on July 8 from John R. Gingrich, Chief of Staff to VA Secretary Eric Shinseki, which stated, “Each VA facility is working with any veteran who received positive results from follow-up testing…. Specifically, VA Tennessee Valley Healthcare System (VATVHS) will provide no-cost diagnostic testing and follow-up care to its veterans. VA will ensure they that understand that the treatment they receive is at no cost to them.”"

Full Article:
Gordon: VA to pay for treatment for infected veterans

The Daily News Journal • July 9, 2009

VAOIG Raises Concern over Clinical Service at Helena Montana

VAOIG Raises Concern over Clinical Service at Helena Montana

Lack of "external peer reviews of care provided" was cited as the reason that the recent botched radiation cancer treatment went on for 6 years without being noticed and corrected.

Hopefully the VA will quickly make public the clinical service involved.

The Associated Press reported July 8, 2009 that "a physician at the Veterans Administration Medical Center at Fort Harrison was fired for delivering substandard care and falsifying medical records."

The VA’s Office of Inspector General’s report [Report Number 08-02992-162, 7/8/2009], released Wednesday stated: "

"In the course of performing this oversight review, we had numerous additional concerns regarding the provision of care to veterans beyond the allegation about a single physician’s practice. These concerns referred to the overall operation of a clinical service. We recommend that the Acting Under Secretary for Health empanel a team of relevant specialists and administrators to perform a comprehensive review of all aspects of the referenced specialty care for veterans served by the medical center."

VAOIG Report

AP Report:
Doctor fired at Helena VA hospital

Wednesday, July 8, 2009

One in Four Gulf War Veterans Suffer from Gulf War illnesses

July 6, 2009
One in Four Vets Suffers Gulf War Illness

By Caleb Daniloff

Roberta White, a neuropsychologist and chair of environmental health at the School of Public Health, has been studying Gulf War syndrome in U.S. military veterans since 1991.

Medical stories transcend all boundaries, because all of us — rich or poor, old or young, Mayflower descendant or recent arrival — hope for good health and need care sooner or later. This week, we revisit some intriguing medical reports from the past school year; the insights and breakthroughs they reveal could well shape our lives going forward.

Effectively debunking years of government denials, Gulf War veterans suffering a host of neurological problems scored a huge victory last fall in their struggle to legitimize their medical claims — thanks in part to public health experts at BU.

Comprising leading scientists, medical experts, and military veterans, a congressionally mandated panel charged with shaping federal health research related to the 1991 Middle East conflict has concluded that Gulf War syndrome is a real medical condition and that it afflicts at least one in four of the 697,000 U.S. veterans who fought in Iraq, Kuwait, and Saudi Arabia. The landmark report, presented in November 2008 by the Research Advisory Committee on Gulf War Veterans’ Illnesses to Secretary of Veterans Affairs James Peake, calls on Congress to appropriate $60 million for treatment of Gulf War vets.

“Veterans of the first Gulf War have been plagued by symptoms of ill health, including fatigue, problems with thinking, skin lesions, and gastrointestinal upset, since their return 17 years ago,” says Roberta White, the committee’s scientific director and chair of the department of environmental health at BU’s School of Public Health. “Despite their persistence and severity, these symptoms have often led to no diagnosis in a substantial portion of the war’s veterans.”

The 450-page report, which was prepared under the leadership of Lea Steele, the committee's former scientific director, and released under White, brings together for the first time the full range of scientific research and government investigations on Gulf War illness. The report found that the condition fundamentally differs from stress-related syndromes seen after other wars and states that scientific evidence “leaves no question that Gulf War illness is a real condition.”

The report lays the blame for several health problems on the troops’ exposure to toxins, primarily in two self-inflicted contexts. In anticipation of a chemical attack, the drug pyridostigmine bromide was given to hundreds of thousands of troops. And to battle desert insects, living and dining areas, as well as tents and uniforms, were sprayed with pesticides.

The report also suggests that the U.S. demolition of an Iraqi munitions dump may have exposed 100,000 troops to nerve gas stored at the facility. Gulf War veterans have shown significantly higher rates of amyotrophic lateral sclerosis, a neurodegenerative disease also known as Lou Gehrig’s disease, than veterans of other wars. And troops that were stationed downwind from the demolitions have died from brain cancer at twice the rate of other Gulf War veterans.

For almost two decades, the government and the military have downplayed veterans’ complaints, often referring to it as another form of post-traumatic stress disorder (PTSD). For its report, the research committee evaluated hundreds of studies of Gulf War veterans, extensive research in other human populations, studies on toxic exposures in animals, and government investigations related to exposures in the Gulf War.

“The illness is probably controversial because it’s symptom-based and most veterans don’t have a common medical diagnosis that fits all of their symptoms,” White says. “It may also be controversial because people feel that it’s obvious that war is stressful and therefore stress must be causing the health symptoms, even though this has never been proven. In fact, it’s been discounted in quite a few studies.”

White has been studying Gulf War illnesses since 1993 and served as research director of one of the three initial VA-funded centers on Gulf War illness. Since the early 1990s the U.S. Department of Defense and Department of Veterans Affairs, among other federal entities, have funded SPH studies of Gulf War veterans and the effects of exposure to low-level sarin, pesticides, and pyridostigmine bromide.

The Research Advisory Committee on Gulf War Veterans’ Illnesses has been based at BU since last year.

VA Failing to Reconize and Treat Women Veterans

Women veterans fall through cracks in system
July 8, 2009


KUDOS TO The Boston Globe for educating the public about the rising numbers of homeless women veterans (Page A1, July 6).

Women veterans often fall through the cracks of a system that has not been built to recognize servicewomen’s accomplishments, sacrifices, or specific needs. The Department of Veterans Affairs has much progress to make in recognizing women’s physical and psychological wounds and awarding women veterans equal disability compensation for their trauma.

Similarly, the epidemic of military sexual trauma - sexual harassment, sexual assault, and rape - has yet to be adequately addressed by the armed forces, the VA, or mainstream veterans’ groups, leading to untreated post-traumatic stress disorder, alcohol and drug abuse, homelessness, and suicide among female and male vets.

But another point needs to be made: One of the reasons women veterans fall through the cracks is that they are rarely given the authority to represent their own issues or advocate for themselves. It’s a shame that reporter Bryan Bender relied heavily on the voices of male veterans who can hardly be considered experts on the needs of women in uniform.

Anuradha Bhagwati
Brooklyn, N.Y.

The writer, a former Marine captain, is executive director of Service Women’s Action Network.

$700000 Settlement in Beacon Hill-VA Veterans Suciide

"The family of a veteran whose suicide at the Veterans Affairs hospital on Beacon Hill in 2006 helped expose unsafe conditions in the facility's psychiatric ward has settled a lawsuit against the government for $700,000, according to court documents and the family's attorney."

"For two days, according to the lawsuit, staff in the psychiatric ward documented that Whitcomb was delusional, paranoid and at serious risk for suicide. He was hearing voices and said his neighbors were plotting to kill him. Twice on Nov. 9, the lawsuit said, nurses put notes in his file saying that Whitcomb was suicidal and delusional.

Yet, the staff never took away his belt. Just hours after the last note was written, he hanged himself with the belt on a non-breakaway shower bar in a bathroom"



Full Article:
By Mike Carter
Seattle Times staff reporte
Family of Federal Way veteran settles VA suit for $700,000

Tuesday, July 7, 2009

Prostate Raditiation Errors, Vet Files Medical Malpractice Claim

"A Vietnam veteran and former Special Forces officer has presented a claim against the federal government in connection with botched cancer treatments performed by what has been referred to as a “rogue” cancer unit at the Philadelphia VA Medical Center.

Barry Lackro, 59, is one of nearly 100 veterans that received substandard treatment from a Veteran Affairs unit that performed brachytherapy treatment on prostate cancer patients, according to a story in the Philadelphia Inquirer."

"Lackro’s problems with the VA did not begin with the brachytherapy treatment. In October, 2004, shortly after he was diagnosed with prostate cancer, VA doctors tried to remove his prostate despite Lackro’s warnings that he had two hernia meshes inserted previously. After six and a half hours on the operating table, VA doctors determined that removal of Lackro’s prostate was not a viable treatment.

Lackro’s claim against the VA comes amidst a string of high-profile Veterans Affairs controversies this year involving the quality of medical care provided. Just before the Philadelphia VA cancer clinic issues were publicly disclosed, a congressional hearing was held to look into colonoscopy contamination problems at several VA facilities that exposed thousands of patients to HIV, hepatitis and other blood borne diseases. It has been discovered that unsanitary and improperly used endoscopic equipment exposed veterans to the bodily fluids of other patients over a period of several years at some facilities."

Full Article:
Philadelphia VA Hospital Malpractice Claim Filed Over Cancer Clinic Problems

Monday, July 6, 2009

Veteran Medical Test Results Not being Placed in Medical File

The researchers examined medical data on 4,112 people who had computed tomography (CT) scans at the Veterans Affairs hospitals in Iowa City, Iowa, and Omaha, Neb.

About 11 percent, or 440 people, were found to have aortic dilations, or an area of the aorta that was weakened or bulging.

Of those, 91 had new dilations that had not been previously noted in the medical record.

But in 58 percent of the new dilations, there was still no record of the dilation in the person's electronic medical record within three months of the CT scan. In 29 percent of the cases, there was no documentation of the aortic dilations after an average of three years.

Full Article:Despite More Tests, Some Aren't Getting Results

Informal Claims, FedCir Adams v. Shinseki, No. 2008-7162 (Decided: June 15, 2009)

Adams v. Shinseki, No. 2008-7162 (Decided: June 15, 2009)

Tags: 38 C.F.R. § 3.155(a); informal claims; Moody v. Principi, 360 F.3d 1306, 1310 (Fed. Cir. 2004) (discussing the DVA’s duty to determine all potential claims raised by the evidence)."

"informal claims for benefits, which can be based upon “any communication or action” indicating an intent to apply for benefits, even correspondence that does not come from the claimant himself. See 38 C.F.R. § 3.155(a); see also Moody v. Principi, 360 F.3d 1306, 1310 (Fed. Cir. 2004) (discussing the DVA’s duty to determine all potential claims raised by the evidence)."


United States Court of Appeals for the Federal Circuit
2008-7162
LEE P. ADAMS, Claimant-Appellant,
v.
ERIC K. SHINSEKI, Secretary of Veterans Affairs, Respondent-Appellee.

Marshall O. Potter, Jr., of Vienna, Virginia, 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. With her on the brief were Jeanne E. Davidson, Director, and Martin F. Hockey, Jr., Assistant Director. Of counsel on the brief were David J. Barrans, Deputy Assistant General Counsel, and Amanda R. Blackmon, Attorney, United States Department of Veterans Affairs, of Washington, DC.

Appealed from: United States Court of Appeals for Veterans Claims
Judge Mary J. Schoelen

United States Court of Appeals for the Federal Circuit
2008-7162
LEE P. ADAMS,
Claimant-Appellant,
v.
ERIC K. SHINSEKI, Secretary of Veterans Affairs,
Respondent-Appellee.
Appeal from the United States Court of Appeals for Veterans Claims
in 06-0095, Judge Mary J. Schoelen
___________________________
DECIDED: June 15, 2009
___________________________
Before NEWMAN, SCHALL, and BRYSON, Circuit Judges.
BRYSON, Circuit Judge.
When a veteran files a claim for disability compensation, that claim is regarded as pending until it is acted upon by the Department of Veterans Affairs (“DVA”). In some instances in which a veteran files several claims, or in which the veteran’s claim is treated as constituting several separate claims, the DVA does not expressly act upon each of the claims. In that setting, it is necessary to decide whether the unaddressed claim is still pending or has been implicitly denied. The answer to that question is important because it can affect the effective date of the veteran’s claim and the

2008-7162 2

standard to be applied if the veteran seeks, at some later time, to reassert the claim that was not expressly resolved.
In this case, the Court of Appeals for Veterans Claims (“the Veterans Court”) held that a claim filed by the veteran, Lee P. Adams, was implicitly denied by a Veterans Administration regional office in 1951 and by the Board of Veterans’ Appeals in 1952. The court rejected Mr. Adams’s contention that the claim was never denied and therefore was still pending when Mr. Adams sought to reopen it in 1989. Mr. Adams now argues that the Veterans Court applied an incorrect legal standard in deciding that the Veterans Administration implicitly denied his claim in 1951 and 1952. We hold that the Veterans Court applied the correct standard, and we therefore affirm.
I
Mr. Adams served on active duty in the U.S. Air Force for approximately one month, from January 15, 1951, to February 16, 1951. A medical examination conducted when he entered the service did not disclose any heart abnormalities. Eleven days later, however, Mr. Adams was admitted to an Air Force hospital for evaluation of a heart murmur that was detected during a physical examination performed upon his arrival at an Air Force base in San Antonio, Texas. Mr. Adams was hospitalized for about two weeks and diagnosed with inactive rheumatic valvulitis with deformity in the aortic valve. He was also suffering from a respiratory infection at the time.
After Mr. Adams was released from the hospital, a military medical board determined that he had rheumatic heart disease that preexisted and was not aggravated by service. As a result of his heart condition, Mr. Adams was honorably discharged from the Air Force.

2008-7162 3

On April 23, 1951, Mr. Adams filed an application with the Veterans Administration seeking disability compensation for what he termed “rheumatic heart.” In support of that claim, Mr. Adams submitted a medical report prepared by a private physician whom Mr. Adams consulted when he became ill again shortly after his discharge. The physician diagnosed Mr. Adams with “rheumatic valvular heart disease, aortic insufficiency, and mitral insufficiency,” as well as a fresh respiratory infection. In a June 1951 decision, a Veterans Administration regional office denied Mr. Adams’s claim for benefits on the ground that he had no active symptoms of “rheumatic valvulitis or associated disease” during his service.
Mr. Adams continued to complain of severe chills and fever, and on his physician’s recommendation he was hospitalized in a Veterans Administration facility from May to August 1951. A hospital report dated August 1951 listed two diagnoses: (1) “Rheumatic heart disease, active, aortic insufficiency, cardiac enlargement, myocardial disease, myocardial insufficiency,” and (2) “Subacute bacterial endocarditis, due to streptococcus mitis, secondary to [his rheumatic heart disease].” The regional office reviewed the hospital report but concluded that it did not contain any new and material evidence as to the issue of service connection for Mr. Adams’s heart condition. The regional office therefore again denied his claim for disability compensation.
On October 11, 1951, Mr. Adams submitted an affidavit to the regional office in which he referred to the hospital report and the diagnoses of rheumatic heart disease and subacute bacterial endocarditis listed in the report. The regional office reconsidered his claim for disability compensation based on the affidavit but again determined that no change in the previous disallowance decision was warranted.

2008-7162 4

Mr. Adams appealed from the regional office’s decisions, contending that he was entitled to service connection for a “heart condition.” The Board of Veterans’ Appeals denied the appeal on March 4, 1952. The Board noted that it had considered the entire record, including the August 1951 hospital report and the October 1951 affidavit. The Board concluded that the “medical records do not disclose active rheumatic fever or other active cardiac pathology during service” and that Mr. Adams’s “rheumatic valvulitis” was incurred prior to and not aggravated during his military service.
Nearly 40 years later, on February 2, 1989, Mr. Adams submitted a request to reopen his claim for disability compensation based on additional medical evidence. The Board conducted a hearing and determined that the issue for consideration was more appropriately characterized as a claim for “entitlement to service connection for endocarditis residuals.” After further proceedings before the regional office, the Board on February 7, 1997, awarded Mr. Adams service connection for “heart disease, claimed as residuals of endocarditis, including heart valve damage.” Specifically, the Board found that Mr. Adams had congenital heart disease with a bicuspid aortic valve when he entered the service. That preexisting condition predisposed him to bacterial endocarditis, which the Board found he incurred while in the service and which resulted in additional heart valve damage. The regional office ultimately assigned an effective date for the grant of service connection of January 19, 1989, the date on which Mr. Adams was admitted to a veterans hospital for treatment of a heart condition. See 38 C.F.R. § 3.157(b)(1).
Dissatisfied with the effective date that was assigned to his award of benefits, Mr. Adams asked the Board to assign him an earlier effective date. The linchpin of Mr.

2008-7162 5

Adams’s argument was that his 1951 claim for endocarditis remained pending until the Board’s 1997 decision that awarded him service connection for heart disease; for that reason, Mr. Adams contended, he was entitled to an effective date of February 17, 1951, the day after his separation from service. See 38 U.S.C. § 5110(a), (b)(1). The Board rejected that argument, concluding that there was no pending claim for service connection for heart disease after the Board’s 1952 decision.
Mr. Adams took an appeal to the Veterans Court, which accepted Mr. Adams’s argument that he had filed two distinct claims for service connection in 1951: a formal claim for rheumatic heart disease and an informal claim for endocarditis. Nonetheless, the court concluded that the regional office’s 1951 decision regarding Mr. Adams’s formal claim for rheumatic heart condition had implicitly denied Mr. Adams’s informal claim for service connection for endocarditis. The court therefore affirmed the Board’s denial of an effective date earlier than January 19, 1989, on the ground that Mr. Adams had no pending claim for service connection prior to that date. Mr. Adams appeals.
II
The rules for determining the effective date of a veteran’s claim for benefits are not in dispute. Generally, the effective date for an original claim is the date that the DVA receives the claim or the date that the entitlement to the benefit arose, whichever is later. 38 U.S.C. § 5110(a). If a veteran files a claim within one year after separation from service, the effective date of the claim is the day after the veteran’s discharge. Id. § 5110(b)(1). For an award based on a claim reopened after final adjudication, however, the effective date is typically the date that the DVA receives the request to reopen the claim (as opposed to the date of receipt of the original claim) or the date that

2008-7162 6

the entitlement to benefits arose, whichever is later. Id. § 5110(a); 38 C.F.R. § 3.400(q)(2), (r); see generally Livesay v. Principi, 15 Vet. App. 165, 171-72 (2001).
A claim for benefits, whether formal or informal, remains pending until it is finally adjudicated. 38 C.F.R. § 3.160(c); see Richardson v. Nicholson, 20 Vet. App. 64, 72 n.8 (2006). A claim will also be considered to be pending if the DVA has failed to notify the claimant of the denial of his claim or of his right to appeal an adverse decision. Cook v. Principi, 318 F.3d 1334, 1340 (Fed. Cir. 2002) (en banc). If a claim is left pending, it can be addressed when a subsequent claim for the same disability is adjudicated by the DVA, in which case the effective date for any award of benefits will be the effective date applicable to the original claim. See Myers v. Principi, 16 Vet. App. 228, 236 (2002).
The dispute in this case turns on whether Mr. Adams’s informal claim for service connection for endocarditis was denied by the regional office in October 1951. If the regional office considered and denied the endocarditis claim in 1951, that claim became final after the Board’s 1952 affirmance, and Mr. Adams is not entitled to an effective date of 1951 for his endocarditis claim. However, if the regional office did not adjudicate the endocarditis claim in 1951, that claim remained pending when Mr. Adams filed the renewed claim in 1987 that ultimately led to the award of benefits. In the latter case, Mr. Adams would be entitled to an effective date of 1951, the year in which he was discharged from service and in which he made his original claim for benefits.
Applying our decision in Deshotel v. Nicholson, 457 F.3d 1258 (Fed. Cir. 2006), and its own decision in Ingram v. Nicholson, 21 Vet. App. 232 (2007), the Veterans Court found that the 1951 endocarditis claim was implicitly denied as part of the action

2008-7162 7

the Veterans Administration took on his related claim for rheumatic heart disease. For that reason, the Veterans Court concluded that Mr. Adams was not entitled to a 1951 effective date for his claim. Because, with the exception of constitutional issues, we cannot review decisions of the Veterans Court with respect to factual issues or the application of law to fact, 38 U.S.C. § 7292(d)(2), the principal question before us is whether the Veterans Court applied the correct legal standard when it determined that the Veterans Administration implicitly denied the 1951 endocarditis claim.
A
The “implicit denial” rule provides that, in certain circumstances, a claim for benefits will be deemed to have been denied, and thus finally adjudicated, even if the DVA did not expressly address that claim in its decision. One such circumstance is illustrated by our decision in Deshotel. Mr. Deshotel filed a claim in 1984 for disability compensation for the residuals of a head injury. The regional office issued a decision in 1985 granting service connection for head trauma. Although the regional office did not explicitly decide Mr. Deshotel’s claim for compensation based on a psychiatric disability, it noted that Mr. Deshotel’s physical examination showed no evidence of a psychiatric condition. In 1999, Mr. Deshotel sought disability compensation for a psychiatric condition secondary to his head trauma. The regional office treated that application as a request to reopen based on new and material evidence, and it awarded service connection for the psychiatric condition with an effective date of 1999.
Mr. Deshotel appealed, seeking to have the date on which he filed his 1984 application declared the effective date for his compensation benefits. He argued that the DVA was required to treat his initial application as including an informal claim for a

2008-7162 8

psychiatric condition and that his psychiatric claim remained open because the regional office did not explicitly address that claim in its 1985 decision. We rejected that argument and ruled that the 1985 decision constituted a final adjudication of the psychiatric claim under the implicit denial rule. We explained: “Where the veteran files more than one claim with the RO at the same time, and the RO's decision acts (favorably or unfavorably) on one of the claims but fails to specifically address the other claim, the second claim is deemed denied, and the appeal period begins to run.” 457 F.3d at 1261.
In Ingram v. Nicholson, the Veterans Court elaborated on the test set forth in Deshotel for determining when a claim not expressly addressed by the DVA will be deemed to have been denied. Mr. Ingram filed a claim in 1986 for non-service-connected pension benefits after his lung was removed at a veterans hospital. The regional office denied that claim because it concluded that Mr. Ingram’s condition was not shown to be permanent. In 1992, Mr. Ingram filed a claim for benefits under 38 U.S.C. § 1151, which provides benefits to veterans injured by DVA hospital, medical, or surgical care. He asserted that he had developed an esophageal leak as a result of the lung-removal surgery. The Board awarded him compensation under section 1151, but it denied his request for an effective date earlier than 1992 because it concluded that his 1986 application for pension benefits did not also include a claim for benefits under section 1151.
On appeal, the Veterans Court characterized the issue as whether the regional office implicitly denied any claim under section 1151 when it adjudicated his claim for pension benefits but did not explicitly address section 1151. Ingram, 21 Vet. App. at

2008-7162 9

243. Citing Deshotel, the Secretary argued that whenever multiple claims are filed at the same time an adjudication of one claim without mention of the other necessarily results in an adjudication of the second claim, regardless of the nature of the claims made or the type of benefits sought. The Veterans Court rejected that interpretation of Deshotel as overly broad and held that the regional office’s decision granting Mr. Ingram’s claim for pension benefits did not implicitly deny his section 1151 claim.
The court held that, unlike the claims at issue in Deshotel, Mr. Ingram’s section 1151 claim was “in no way related to” his claim for non-service-connected pension; instead, each of his claims was “separately statutorily based and defined.” Ingram, 21 Vet. App. at 247. Moreover, while the regional office’s original decision denied Mr. Ingram’s claim for pension benefits because he did not establish that he was permanently disabled, an award of disability compensation under section 1151 does not require that a disability be permanent. Thus, the regional office’s explanation of its rejection of Mr. Ingram’s non-service-connection claim for pension benefits did not give Mr. Ingram reasonable notice that it was also rejecting his claim for disability compensation under section 1151. Consequently, the Veterans Court held that the regional office’s 1986 decision did not constitute an implicit denial of any pending section 1151 claim. Id. at 247-48, 255.
B
Mr. Adams does not take issue with the implicit denial rule applied in Deshotel and Ingram. Rather, he asserts that the Veterans Court misinterpreted those decisions and therefore used an incorrect legal standard when it applied the implied denial rule in this case. We disagree. Nothing in the Veterans Court’s decision in this case suggests

2008-7162 10

that it departed from the rationale of the implicit denial rule or that it failed to focus on the proper considerations bearing on the application of that rule in settings such as the one in this case.
Mr. Adams contends that Deshotel stands for the proposition that “claims must have been made at the same time in order for one to be ‘deemed denied’ when the other was acted on.” Because the formal and informal claims in this case were not filed simultaneously, he argues that under Deshotel the informal claim, as a matter of law, cannot have been implicitly denied when the formal claim was denied.
That argument is based on a basic flaw in reasoning. The veteran in Deshotel was considered to have filed more than one claim at the same time. In that setting, the court held that when the regional office acted on one of the claims, the second claim was deemed denied and the appeal period began to run. 457 F.3d at 1261. But in this instance, as in many others, the inverse of a true proposition is not necessarily true. See Capitol Records, Inc. v. Naxos of Am., Inc., 372 F.3d 471, 480 (2d Cir. 2004). Thus, the fact that the claims were not filed at the same time does not mean that the implicit denial rule does not apply.
Based on its prior decision in Ingram, the Veterans Court held that when a regional office decision “discusses a claim in terms sufficient to put the claimant on notice that it was being considered and rejected, then it constitutes a denial of that claim even if the formal adjudicative language does not ‘specifically’ deny that claim.” Adams v. Peake, No. 06-0095, slip op. at 5 (Vet. App. Feb. 20, 2008), quoting from Ingram, 21 Vet. App. at 255. That principle is consistent with the decision in Deshotel, and when applied to cases in which the DVA’s decision is clear but not expressed, it reflects an

2008-7162 11

appropriate balance between the interest in finality and the need to provide notice to veterans when their claims have been decided.
In applying the implicit denial rule, the Veterans Court properly looked first to the language of the Veterans Administration’s 1951 and 1952 decisions to determine whether they provided sufficient information for a reasonable claimant to know that he would not be awarded benefits for his asserted disability. The court pointed out that the October 1951 decision denying Mr. Adams’s application for benefits specifically stated that the regional office had considered his affidavit, which expressly referred to both rheumatic heart disease and subacute bacterial endocarditis. Thus, although the 1951 decision expressly addressed only Mr. Adams’s formal claim for rheumatic heart disease, the court held that the decision alluded to the underlying claims in a manner that put Mr. Adams on notice that his informal claim for bacterial endocarditis based on the referenced affidavit was also denied. Moreover, as the court further explained, Mr. Adams’s appeal to the Board referred to his “heart condition,” a general characterization that encompassed both his rheumatic heart disease and bacterial endocarditis claims. And in its decision, the Board explicitly noted that it had reviewed Mr. Adams’s hospital reports and his affidavit, but found that those records “do not disclose active rheumatic fever or other active cardiac pathology during service” (emphasis added). Applying the Ingram standard, the court held that in those circumstances the regional office’s decisions in 1951 and the Board’s decision in 1952 “reasonably informed the appellant that a claim for any heart condition, including endocarditis, was denied.” Adams, slip op. at 6.

2008-7162 12

The facts of Deshotel are similar in this regard. In Deshotel, the regional office noted, when it granted service connection for a head injury, that the claimant’s medical examination showed no evidence of psychiatric symptomatology. Under those circumstances, a reasonable veteran would have known that his claim for disability compensation for a psychiatric condition was denied.
Another factor bearing on whether an adjudication that specifically addresses one claim implicitly denies another is the relatedness of the claims. The conditions for which Mr. Adams sought service connection in 1951 are closely related. Rheumatic heart disease and bacterial endocarditis both affect heart valves, and bacterial endocarditis is frequently associated with rheumatic heart disease because the damage to heart valves caused by rheumatic valvulitis predisposes them to infection. Furthermore, the hospital report considered by the regional office and the Board explicitly referred to Mr. Adams’s bacterial endocarditis as “secondary” to his rheumatic heart disease.
Once again, the facts of Deshotel are similar. The claimant sought service connection for two conditions that were closely related: a head injury, and a psychiatric disability resulting from that head injury. By contrast, the court in Ingram noted that the claimant’s section 1151 service connection claim was unrelated to his claim for non-service-connected pension benefits.
The timing of the claims is also highly significant. As noted, in Deshotel we applied the implicit denial rule in a situation in which the veteran was deemed to have filed more than one claim at the same time and the regional office’s decision specifically adjudicated one claim but failed to address the other. 457 F.3d at 1261. In this case,

2008-7162 13

although Mr. Adams’s informal claim for bacterial endocarditis was filed roughly six months after he filed his initial claim for service connection for rheumatic heart, the two claims were closely associated both in time and in the manner in which they were presented to the Veterans Administration.
When we addressed the specific case of claims filed at the same time in Deshotel, we did not suggest that the implicit denial rule is limited to situations in which the veteran files multiple claims in a single application. As the Veterans Court noted in Ingram, veterans benefits litigation typically proceeds in a piecemeal fashion. 21 Vet. App. at 253. The regional office attaches a single file number to all claims filed by a claimant, even if those claims are filed at different times. And claimants typically do not submit information in a single document, but “submit a continuous stream of evidence and correspondence” that may be pertinent to one or more claims. Id. at 254. That is particularly true in the case of informal claims for benefits, which can be based upon “any communication or action” indicating an intent to apply for benefits, even correspondence that does not come from the claimant himself. See 38 C.F.R. § 3.155(a); see also Moody v. Principi, 360 F.3d 1306, 1310 (Fed. Cir. 2004) (discussing the DVA’s duty to determine all potential claims raised by the evidence).
Any interpretation of the implicit denial rule that rests on a requirement that the veteran’s claims be filed simultaneously in a single document ignores the fact that veterans can submit information pertaining to a single claim at different times, and that the regional office often adjudicates distinct claims that were filed at different times in a single decision. As the Veterans Court noted in Ingram and in this case, the key question in the implicit denial inquiry is whether it would be clear to a reasonable person

2008-7162 14

that the DVA’s action that expressly refers to one claim is intended to dispose of others as well.
Mr. Adams contends that his case is distinguishable from Deshotel because in that case the veteran failed to appeal a decision by the regional office to the Board, whereas in this case, he timely appealed the regional office’s denial of his claim. As the Veterans Court explained, however, that distinction is meaningless. The implicit denial rule is not limited to cases in which the veteran failed to appeal a decision to the Board. Rather, the implicit denial rule applies where a regional office’s decision provides a veteran with reasonable notice that his claim for benefits was denied. Whether or not the regional office’s decision was appealed has no bearing on the reasonableness of the notice afforded by that decision. In sum, we reject Mr. Adams’s contention that the Veterans Court’s decision in this case departed from the proper standard for applying the implicit denial rule, as set forth and applied in Deshotel and Ingram.
III
Mr. Adams further contends that the Veterans Court’s application of the implicit denial rule violated his due process right to receive fair notice of the regional office’s decision denying his claim for benefits. We reject that argument. As discussed above, the implicit denial rule is, at bottom, a notice provision. In this case, the regional office’s decision put Mr. Adams on notice that his claim for service connection for bacterial endocarditis was denied. Because Mr. Adams received adequate notice of, and an opportunity to respond to, the regional office’s decision, he was not deprived of any due process rights that he asserts were implicated by his application for benefits.
Each party shall bear its own costs for this appeal.

2008-7162 15
AFFIRMED.

Implicit Denial, FedCir Adams v. Shinseki, No. 2008-7162 (Decided: June 15, 2009)

Adams v. Shinseki, No. 2008-7162 (Decided: June 15, 2009)

Tags: Deshotel v. Nicholson, 457 F.3d 1258 (Fed. Cir. 2006); Ingram v. Nicholson, 21 Vet. App. 232 (2007),

The FedCir decision places another burden upon veterans because vets must now be able to read what is expressed in RO decisions.

"DVA’s decision is clear but not expressed, it reflects an appropriate balance between the interest in finality and the need to provide notice to veterans when their claims have been decided"

"the implicit denial rule is, at bottom, a notice provision."

+++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++

"The “implicit denial” rule provides that, in certain circumstances, a claim for benefits will be deemed to have been denied, and thus finally adjudicated, even if the DVA did not expressly address that claim in its decision. One such circumstance is illustrated by our decision in Deshotel."

"Although the regional office did not explicitly decide Mr. Deshotel’s claim for compensation based on a psychiatric disability, it noted that Mr. Deshotel’s physical examination showed no evidence of a psychiatric condition."

"Mr. Deshotel appealed, seeking to have the date on which he filed his 1984 application declared the effective date for his compensation benefits. He argued that the DVA was required to treat his initial application as including an informal claim for a psychiatric condition and that his psychiatric claim remained open because the regional office did not explicitly address that claim in its 1985 decision. We rejected that argument and ruled that the 1985 decision constituted a final adjudication of the psychiatric claim under the implicit denial rule. We explained: “Where the veteran files more than one claim with the RO at the same time, and the RO's decision acts (favorably or unfavorably) on one of the claims but fails to specifically address the other claim, the second claim is deemed denied, and the appeal period begins to run.” 457 F.3d at 1261."

"In Ingram v. Nicholson, the Veterans Court elaborated on the test set forth in Deshotel for determining when a claim not expressly addressed by the DVA will be deemed to have been denied."

In Ingram, the Secretary before the Veterans Court, citing Deshotel, "argued that whenever multiple claims are filed at the same time an adjudication of one claim without mention of the other necessarily results in an adjudication of the second claim, regardless of the nature of the claims made or the type of benefits sought. The Veterans Court rejected that interpretation of Deshotel as overly broad and held that the regional office’s decision granting Mr. Ingram’s claim for pension benefits did not implicitly deny his section 1151 claim."

The Veterans Court "held that, unlike the claims at issue in Deshotel, Mr. Ingram’s section 1151 claim was “in no way related to” his claim for non-service-connected pension; instead, each of his claims was “separately statutorily based and defined.” Ingram, 21 Vet. App. at 247."

"Nothing in the Veterans Court’s decision in this case suggests that it departed from the rationale of the implicit denial rule or that it failed to focus on the proper considerations bearing on the application of that rule in settings such as the one in this case."

"the fact that the claims were not filed at the same time does not mean that the implicit denial rule does not apply."

The Veterans Court, basing on Ingram, "held that when a regional office decision “discusses a claim in terms sufficient to put the claimant on notice that it was being considered and rejected, then it constitutes a denial of that claim even if the formal adjudicative language does not ‘specifically’ deny that claim.” Adams v. Peake, No. 06-0095, slip op. at 5 (Vet. App. Feb. 20, 2008), quoting from Ingram, 21 Vet. App. at 255. That principle is consistent with the decision in Deshotel, and when applied to cases in which the DVA’s decision is clear but not expressed, it reflects an appropriate balance between the interest in finality and the need to provide notice to veterans when their claims have been decided."


++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++

United States Court of Appeals for the Federal Circuit
2008-7162
LEE P. ADAMS, Claimant-Appellant,
v.
ERIC K. SHINSEKI, Secretary of Veterans Affairs, Respondent-Appellee.

Marshall O. Potter, Jr., of Vienna, Virginia, 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. With her on the brief were Jeanne E. Davidson, Director, and Martin F. Hockey, Jr., Assistant Director. Of counsel on the brief were David J. Barrans, Deputy Assistant General Counsel, and Amanda R. Blackmon, Attorney, United States Department of Veterans Affairs, of Washington, DC.

Appealed from: United States Court of Appeals for Veterans Claims
Judge Mary J. Schoelen

United States Court of Appeals for the Federal Circuit
2008-7162
LEE P. ADAMS,
Claimant-Appellant,
v.
ERIC K. SHINSEKI, Secretary of Veterans Affairs,
Respondent-Appellee.
Appeal from the United States Court of Appeals for Veterans Claims
in 06-0095, Judge Mary J. Schoelen
___________________________
DECIDED: June 15, 2009
___________________________
Before NEWMAN, SCHALL, and BRYSON, Circuit Judges.
BRYSON, Circuit Judge.
When a veteran files a claim for disability compensation, that claim is regarded as pending until it is acted upon by the Department of Veterans Affairs (“DVA”). In some instances in which a veteran files several claims, or in which the veteran’s claim is treated as constituting several separate claims, the DVA does not expressly act upon each of the claims. In that setting, it is necessary to decide whether the unaddressed claim is still pending or has been implicitly denied. The answer to that question is important because it can affect the effective date of the veteran’s claim and the

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standard to be applied if the veteran seeks, at some later time, to reassert the claim that was not expressly resolved.
In this case, the Court of Appeals for Veterans Claims (“the Veterans Court”) held that a claim filed by the veteran, Lee P. Adams, was implicitly denied by a Veterans Administration regional office in 1951 and by the Board of Veterans’ Appeals in 1952. The court rejected Mr. Adams’s contention that the claim was never denied and therefore was still pending when Mr. Adams sought to reopen it in 1989. Mr. Adams now argues that the Veterans Court applied an incorrect legal standard in deciding that the Veterans Administration implicitly denied his claim in 1951 and 1952. We hold that the Veterans Court applied the correct standard, and we therefore affirm.
I
Mr. Adams served on active duty in the U.S. Air Force for approximately one month, from January 15, 1951, to February 16, 1951. A medical examination conducted when he entered the service did not disclose any heart abnormalities. Eleven days later, however, Mr. Adams was admitted to an Air Force hospital for evaluation of a heart murmur that was detected during a physical examination performed upon his arrival at an Air Force base in San Antonio, Texas. Mr. Adams was hospitalized for about two weeks and diagnosed with inactive rheumatic valvulitis with deformity in the aortic valve. He was also suffering from a respiratory infection at the time.
After Mr. Adams was released from the hospital, a military medical board determined that he had rheumatic heart disease that preexisted and was not aggravated by service. As a result of his heart condition, Mr. Adams was honorably discharged from the Air Force.

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On April 23, 1951, Mr. Adams filed an application with the Veterans Administration seeking disability compensation for what he termed “rheumatic heart.” In support of that claim, Mr. Adams submitted a medical report prepared by a private physician whom Mr. Adams consulted when he became ill again shortly after his discharge. The physician diagnosed Mr. Adams with “rheumatic valvular heart disease, aortic insufficiency, and mitral insufficiency,” as well as a fresh respiratory infection. In a June 1951 decision, a Veterans Administration regional office denied Mr. Adams’s claim for benefits on the ground that he had no active symptoms of “rheumatic valvulitis or associated disease” during his service.
Mr. Adams continued to complain of severe chills and fever, and on his physician’s recommendation he was hospitalized in a Veterans Administration facility from May to August 1951. A hospital report dated August 1951 listed two diagnoses: (1) “Rheumatic heart disease, active, aortic insufficiency, cardiac enlargement, myocardial disease, myocardial insufficiency,” and (2) “Subacute bacterial endocarditis, due to streptococcus mitis, secondary to [his rheumatic heart disease].” The regional office reviewed the hospital report but concluded that it did not contain any new and material evidence as to the issue of service connection for Mr. Adams’s heart condition. The regional office therefore again denied his claim for disability compensation.
On October 11, 1951, Mr. Adams submitted an affidavit to the regional office in which he referred to the hospital report and the diagnoses of rheumatic heart disease and subacute bacterial endocarditis listed in the report. The regional office reconsidered his claim for disability compensation based on the affidavit but again determined that no change in the previous disallowance decision was warranted.

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Mr. Adams appealed from the regional office’s decisions, contending that he was entitled to service connection for a “heart condition.” The Board of Veterans’ Appeals denied the appeal on March 4, 1952. The Board noted that it had considered the entire record, including the August 1951 hospital report and the October 1951 affidavit. The Board concluded that the “medical records do not disclose active rheumatic fever or other active cardiac pathology during service” and that Mr. Adams’s “rheumatic valvulitis” was incurred prior to and not aggravated during his military service.
Nearly 40 years later, on February 2, 1989, Mr. Adams submitted a request to reopen his claim for disability compensation based on additional medical evidence. The Board conducted a hearing and determined that the issue for consideration was more appropriately characterized as a claim for “entitlement to service connection for endocarditis residuals.” After further proceedings before the regional office, the Board on February 7, 1997, awarded Mr. Adams service connection for “heart disease, claimed as residuals of endocarditis, including heart valve damage.” Specifically, the Board found that Mr. Adams had congenital heart disease with a bicuspid aortic valve when he entered the service. That preexisting condition predisposed him to bacterial endocarditis, which the Board found he incurred while in the service and which resulted in additional heart valve damage. The regional office ultimately assigned an effective date for the grant of service connection of January 19, 1989, the date on which Mr. Adams was admitted to a veterans hospital for treatment of a heart condition. See 38 C.F.R. § 3.157(b)(1).
Dissatisfied with the effective date that was assigned to his award of benefits, Mr. Adams asked the Board to assign him an earlier effective date. The linchpin of Mr.

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Adams’s argument was that his 1951 claim for endocarditis remained pending until the Board’s 1997 decision that awarded him service connection for heart disease; for that reason, Mr. Adams contended, he was entitled to an effective date of February 17, 1951, the day after his separation from service. See 38 U.S.C. § 5110(a), (b)(1). The Board rejected that argument, concluding that there was no pending claim for service connection for heart disease after the Board’s 1952 decision.
Mr. Adams took an appeal to the Veterans Court, which accepted Mr. Adams’s argument that he had filed two distinct claims for service connection in 1951: a formal claim for rheumatic heart disease and an informal claim for endocarditis. Nonetheless, the court concluded that the regional office’s 1951 decision regarding Mr. Adams’s formal claim for rheumatic heart condition had implicitly denied Mr. Adams’s informal claim for service connection for endocarditis. The court therefore affirmed the Board’s denial of an effective date earlier than January 19, 1989, on the ground that Mr. Adams had no pending claim for service connection prior to that date. Mr. Adams appeals.
II
The rules for determining the effective date of a veteran’s claim for benefits are not in dispute. Generally, the effective date for an original claim is the date that the DVA receives the claim or the date that the entitlement to the benefit arose, whichever is later. 38 U.S.C. § 5110(a). If a veteran files a claim within one year after separation from service, the effective date of the claim is the day after the veteran’s discharge. Id. § 5110(b)(1). For an award based on a claim reopened after final adjudication, however, the effective date is typically the date that the DVA receives the request to reopen the claim (as opposed to the date of receipt of the original claim) or the date that

2008-7162 6

the entitlement to benefits arose, whichever is later. Id. § 5110(a); 38 C.F.R. § 3.400(q)(2), (r); see generally Livesay v. Principi, 15 Vet. App. 165, 171-72 (2001).
A claim for benefits, whether formal or informal, remains pending until it is finally adjudicated. 38 C.F.R. § 3.160(c); see Richardson v. Nicholson, 20 Vet. App. 64, 72 n.8 (2006). A claim will also be considered to be pending if the DVA has failed to notify the claimant of the denial of his claim or of his right to appeal an adverse decision. Cook v. Principi, 318 F.3d 1334, 1340 (Fed. Cir. 2002) (en banc). If a claim is left pending, it can be addressed when a subsequent claim for the same disability is adjudicated by the DVA, in which case the effective date for any award of benefits will be the effective date applicable to the original claim. See Myers v. Principi, 16 Vet. App. 228, 236 (2002).
The dispute in this case turns on whether Mr. Adams’s informal claim for service connection for endocarditis was denied by the regional office in October 1951. If the regional office considered and denied the endocarditis claim in 1951, that claim became final after the Board’s 1952 affirmance, and Mr. Adams is not entitled to an effective date of 1951 for his endocarditis claim. However, if the regional office did not adjudicate the endocarditis claim in 1951, that claim remained pending when Mr. Adams filed the renewed claim in 1987 that ultimately led to the award of benefits. In the latter case, Mr. Adams would be entitled to an effective date of 1951, the year in which he was discharged from service and in which he made his original claim for benefits.
Applying our decision in Deshotel v. Nicholson, 457 F.3d 1258 (Fed. Cir. 2006), and its own decision in Ingram v. Nicholson, 21 Vet. App. 232 (2007), the Veterans Court found that the 1951 endocarditis claim was implicitly denied as part of the action

2008-7162 7

the Veterans Administration took on his related claim for rheumatic heart disease. For that reason, the Veterans Court concluded that Mr. Adams was not entitled to a 1951 effective date for his claim. Because, with the exception of constitutional issues, we cannot review decisions of the Veterans Court with respect to factual issues or the application of law to fact, 38 U.S.C. § 7292(d)(2), the principal question before us is whether the Veterans Court applied the correct legal standard when it determined that the Veterans Administration implicitly denied the 1951 endocarditis claim.
A
The “implicit denial” rule provides that, in certain circumstances, a claim for benefits will be deemed to have been denied, and thus finally adjudicated, even if the DVA did not expressly address that claim in its decision. One such circumstance is illustrated by our decision in Deshotel. Mr. Deshotel filed a claim in 1984 for disability compensation for the residuals of a head injury. The regional office issued a decision in 1985 granting service connection for head trauma. Although the regional office did not explicitly decide Mr. Deshotel’s claim for compensation based on a psychiatric disability, it noted that Mr. Deshotel’s physical examination showed no evidence of a psychiatric condition. In 1999, Mr. Deshotel sought disability compensation for a psychiatric condition secondary to his head trauma. The regional office treated that application as a request to reopen based on new and material evidence, and it awarded service connection for the psychiatric condition with an effective date of 1999.
Mr. Deshotel appealed, seeking to have the date on which he filed his 1984 application declared the effective date for his compensation benefits. He argued that the DVA was required to treat his initial application as including an informal claim for a

2008-7162 8

psychiatric condition and that his psychiatric claim remained open because the regional office did not explicitly address that claim in its 1985 decision. We rejected that argument and ruled that the 1985 decision constituted a final adjudication of the psychiatric claim under the implicit denial rule. We explained: “Where the veteran files more than one claim with the RO at the same time, and the RO's decision acts (favorably or unfavorably) on one of the claims but fails to specifically address the other claim, the second claim is deemed denied, and the appeal period begins to run.” 457 F.3d at 1261.
In Ingram v. Nicholson, the Veterans Court elaborated on the test set forth in Deshotel for determining when a claim not expressly addressed by the DVA will be deemed to have been denied. Mr. Ingram filed a claim in 1986 for non-service-connected pension benefits after his lung was removed at a veterans hospital. The regional office denied that claim because it concluded that Mr. Ingram’s condition was not shown to be permanent. In 1992, Mr. Ingram filed a claim for benefits under 38 U.S.C. § 1151, which provides benefits to veterans injured by DVA hospital, medical, or surgical care. He asserted that he had developed an esophageal leak as a result of the lung-removal surgery. The Board awarded him compensation under section 1151, but it denied his request for an effective date earlier than 1992 because it concluded that his 1986 application for pension benefits did not also include a claim for benefits under section 1151.
On appeal, the Veterans Court characterized the issue as whether the regional office implicitly denied any claim under section 1151 when it adjudicated his claim for pension benefits but did not explicitly address section 1151. Ingram, 21 Vet. App. at

2008-7162 9

243. Citing Deshotel, the Secretary argued that whenever multiple claims are filed at the same time an adjudication of one claim without mention of the other necessarily results in an adjudication of the second claim, regardless of the nature of the claims made or the type of benefits sought. The Veterans Court rejected that interpretation of Deshotel as overly broad and held that the regional office’s decision granting Mr. Ingram’s claim for pension benefits did not implicitly deny his section 1151 claim.
The court held that, unlike the claims at issue in Deshotel, Mr. Ingram’s section 1151 claim was “in no way related to” his claim for non-service-connected pension; instead, each of his claims was “separately statutorily based and defined.” Ingram, 21 Vet. App. at 247. Moreover, while the regional office’s original decision denied Mr. Ingram’s claim for pension benefits because he did not establish that he was permanently disabled, an award of disability compensation under section 1151 does not require that a disability be permanent. Thus, the regional office’s explanation of its rejection of Mr. Ingram’s non-service-connection claim for pension benefits did not give Mr. Ingram reasonable notice that it was also rejecting his claim for disability compensation under section 1151. Consequently, the Veterans Court held that the regional office’s 1986 decision did not constitute an implicit denial of any pending section 1151 claim. Id. at 247-48, 255.
B
Mr. Adams does not take issue with the implicit denial rule applied in Deshotel and Ingram. Rather, he asserts that the Veterans Court misinterpreted those decisions and therefore used an incorrect legal standard when it applied the implied denial rule in this case. We disagree. Nothing in the Veterans Court’s decision in this case suggests

2008-7162 10

that it departed from the rationale of the implicit denial rule or that it failed to focus on the proper considerations bearing on the application of that rule in settings such as the one in this case.
Mr. Adams contends that Deshotel stands for the proposition that “claims must have been made at the same time in order for one to be ‘deemed denied’ when the other was acted on.” Because the formal and informal claims in this case were not filed simultaneously, he argues that under Deshotel the informal claim, as a matter of law, cannot have been implicitly denied when the formal claim was denied.
That argument is based on a basic flaw in reasoning. The veteran in Deshotel was considered to have filed more than one claim at the same time. In that setting, the court held that when the regional office acted on one of the claims, the second claim was deemed denied and the appeal period began to run. 457 F.3d at 1261. But in this instance, as in many others, the inverse of a true proposition is not necessarily true. See Capitol Records, Inc. v. Naxos of Am., Inc., 372 F.3d 471, 480 (2d Cir. 2004). Thus, the fact that the claims were not filed at the same time does not mean that the implicit denial rule does not apply.
Based on its prior decision in Ingram, the Veterans Court held that when a regional office decision “discusses a claim in terms sufficient to put the claimant on notice that it was being considered and rejected, then it constitutes a denial of that claim even if the formal adjudicative language does not ‘specifically’ deny that claim.” Adams v. Peake, No. 06-0095, slip op. at 5 (Vet. App. Feb. 20, 2008), quoting from Ingram, 21 Vet. App. at 255. That principle is consistent with the decision in Deshotel, and when applied to cases in which the DVA’s decision is clear but not expressed, it reflects an

2008-7162 11

appropriate balance between the interest in finality and the need to provide notice to veterans when their claims have been decided.
In applying the implicit denial rule, the Veterans Court properly looked first to the language of the Veterans Administration’s 1951 and 1952 decisions to determine whether they provided sufficient information for a reasonable claimant to know that he would not be awarded benefits for his asserted disability. The court pointed out that the October 1951 decision denying Mr. Adams’s application for benefits specifically stated that the regional office had considered his affidavit, which expressly referred to both rheumatic heart disease and subacute bacterial endocarditis. Thus, although the 1951 decision expressly addressed only Mr. Adams’s formal claim for rheumatic heart disease, the court held that the decision alluded to the underlying claims in a manner that put Mr. Adams on notice that his informal claim for bacterial endocarditis based on the referenced affidavit was also denied. Moreover, as the court further explained, Mr. Adams’s appeal to the Board referred to his “heart condition,” a general characterization that encompassed both his rheumatic heart disease and bacterial endocarditis claims. And in its decision, the Board explicitly noted that it had reviewed Mr. Adams’s hospital reports and his affidavit, but found that those records “do not disclose active rheumatic fever or other active cardiac pathology during service” (emphasis added). Applying the Ingram standard, the court held that in those circumstances the regional office’s decisions in 1951 and the Board’s decision in 1952 “reasonably informed the appellant that a claim for any heart condition, including endocarditis, was denied.” Adams, slip op. at 6.

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The facts of Deshotel are similar in this regard. In Deshotel, the regional office noted, when it granted service connection for a head injury, that the claimant’s medical examination showed no evidence of psychiatric symptomatology. Under those circumstances, a reasonable veteran would have known that his claim for disability compensation for a psychiatric condition was denied.
Another factor bearing on whether an adjudication that specifically addresses one claim implicitly denies another is the relatedness of the claims. The conditions for which Mr. Adams sought service connection in 1951 are closely related. Rheumatic heart disease and bacterial endocarditis both affect heart valves, and bacterial endocarditis is frequently associated with rheumatic heart disease because the damage to heart valves caused by rheumatic valvulitis predisposes them to infection. Furthermore, the hospital report considered by the regional office and the Board explicitly referred to Mr. Adams’s bacterial endocarditis as “secondary” to his rheumatic heart disease.
Once again, the facts of Deshotel are similar. The claimant sought service connection for two conditions that were closely related: a head injury, and a psychiatric disability resulting from that head injury. By contrast, the court in Ingram noted that the claimant’s section 1151 service connection claim was unrelated to his claim for non-service-connected pension benefits.
The timing of the claims is also highly significant. As noted, in Deshotel we applied the implicit denial rule in a situation in which the veteran was deemed to have filed more than one claim at the same time and the regional office’s decision specifically adjudicated one claim but failed to address the other. 457 F.3d at 1261. In this case,

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although Mr. Adams’s informal claim for bacterial endocarditis was filed roughly six months after he filed his initial claim for service connection for rheumatic heart, the two claims were closely associated both in time and in the manner in which they were presented to the Veterans Administration.
When we addressed the specific case of claims filed at the same time in Deshotel, we did not suggest that the implicit denial rule is limited to situations in which the veteran files multiple claims in a single application. As the Veterans Court noted in Ingram, veterans benefits litigation typically proceeds in a piecemeal fashion. 21 Vet. App. at 253. The regional office attaches a single file number to all claims filed by a claimant, even if those claims are filed at different times. And claimants typically do not submit information in a single document, but “submit a continuous stream of evidence and correspondence” that may be pertinent to one or more claims. Id. at 254. That is particularly true in the case of informal claims for benefits, which can be based upon “any communication or action” indicating an intent to apply for benefits, even correspondence that does not come from the claimant himself. See 38 C.F.R. § 3.155(a); see also Moody v. Principi, 360 F.3d 1306, 1310 (Fed. Cir. 2004) (discussing the DVA’s duty to determine all potential claims raised by the evidence).
Any interpretation of the implicit denial rule that rests on a requirement that the veteran’s claims be filed simultaneously in a single document ignores the fact that veterans can submit information pertaining to a single claim at different times, and that the regional office often adjudicates distinct claims that were filed at different times in a single decision. As the Veterans Court noted in Ingram and in this case, the key question in the implicit denial inquiry is whether it would be clear to a reasonable person

2008-7162 14

that the DVA’s action that expressly refers to one claim is intended to dispose of others as well.
Mr. Adams contends that his case is distinguishable from Deshotel because in that case the veteran failed to appeal a decision by the regional office to the Board, whereas in this case, he timely appealed the regional office’s denial of his claim. As the Veterans Court explained, however, that distinction is meaningless. The implicit denial rule is not limited to cases in which the veteran failed to appeal a decision to the Board. Rather, the implicit denial rule applies where a regional office’s decision provides a veteran with reasonable notice that his claim for benefits was denied. Whether or not the regional office’s decision was appealed has no bearing on the reasonableness of the notice afforded by that decision. In sum, we reject Mr. Adams’s contention that the Veterans Court’s decision in this case departed from the proper standard for applying the implicit denial rule, as set forth and applied in Deshotel and Ingram.
III
Mr. Adams further contends that the Veterans Court’s application of the implicit denial rule violated his due process right to receive fair notice of the regional office’s decision denying his claim for benefits. We reject that argument. As discussed above, the implicit denial rule is, at bottom, a notice provision. In this case, the regional office’s decision put Mr. Adams on notice that his claim for service connection for bacterial endocarditis was denied. Because Mr. Adams received adequate notice of, and an opportunity to respond to, the regional office’s decision, he was not deprived of any due process rights that he asserts were implicated by his application for benefits.
Each party shall bear its own costs for this appeal.

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AFFIRMED.