The Information from VA Indicates that GI Bill Claims Can Not be Processed in Under a Year.

On the information provided by the VA and the article below, it appears that it will take 10 hours to process each GI Bill claim. If the VA has only 900 people working on the 277,000 claim then it will take over a year for the claims to be processed.

According to UAA’s VA coordinator, Teri Gravenmier, "approximately 300 veterans have claimed benefits, Gravenmier is the only full time employee in the Veterans Affairs department. She estimated that up to 3,000 hours are needed to process all the claims."

"According to a Sept. 23 press release, the VA has received 277,000 applications for eligibility for the new GI Bill, and “the VA has over 900 personnel processing education claims".

Full Article at: New GI Bill promises lots, delivers too little, too late
By Kaitlin Johnson | 29 September 2009

Medical Errors and Saying Sorry, Check with your Attorney

When the Government says they are Sorry, accept it, but don't sign anything until you consult with your lawyer.

You have to protect your rights.

Full Article at:Study: Saying 'I'm Sorry' Reduces Lawsuits
09/28/2009

"Apologies and open communication with patients about medical errors are the keys to reducing malpractice claims by as much as 55 percent, according to a recent commentary in the British Medical Journal (BMJ) referencing decades of evidence published by "Sorry Works!," a coalition led by Doug Wojcieszak, a public relations consultant."

"The University of Michigan Health System (UMHS) adopted many of these strategies, including an apology after a medical error that resulted in a greater than 50-percent reduction in average litigation costs and reduced malpractice claims by 55 percent between 1999 and 2006."

VA Shuts Door On Release of Information Regarding Veteran Care

This is very disturbing, I mean don't we veterans have a right to know, a protected right to know?

If the VA gets away with this, what is to stop them from denying any and everything they feel might not be in their best interest. The Best Interest of the Veteran must come before and perceived right to the VA, in my opinion.


Full Report at: Report on VA flaws here leads to disclosure ban

By WALTER F. ROCHE JR.
Pittsburgh Tribune-Review

"Facing congressional scrutiny over a report of poor care given to veterans at a Veterans Administration nursing home in Philadelphia, the U.S. Department of Veterans Affairs has slammed the door on the release of similar reports nationwide.

In a directive dated Friday, VA officials in Washington, D.C., informed local agency officials that inspection reports like the one on the VA nursing home on Civic Center Boulevard are not to be released to the public.

The directive came less than a week after the Tribune-Review disclosed details of a 2008 report on the nursing home that concluded the VA "failed to provide a safe and sanitary environment for their residents."

Such reports from the Long Term Care Institute - which the VA hired to inspect its facilities - are considered "protected" documents under the provisions of a federal law designed to promote improved quality, the directive states."

Starting Oct. 2, $3,000.00 checks for 224,000 Veteran-Students

Full article: Veterans Get Some Relief With Tuition, $3,000 Advances to Bridge GI Bill Backlog
By Emma Brown
Washington Post Staff Writer
Saturday, September 26, 2009


Some 251,000 veterans [students] have submitted claims this year, some 224,000 -- about 90 percent -- have NOT received checks, "according to Veterans Affairs officials."

Many of the 224,000 students are being forced "to take out loans, rack up credit card debt and consider dropping out of school in order to meet living expenses, according to veterans and groups that advocate on their behalf."

"Now, starting Oct. 2, veterans can request a $3,000 advance on their housing and book allowances by bringing a photo ID, course schedule and eligibility certificate to one of the agency's 57 regional offices, including in the District and Baltimore. The agency said it would also send officials to some college campuses and help coordinate transportation to regional offices."

Arlington National Cemetery, Millions in Contracts, No Work Com[plete

Full Article: Millions in contracts, no work completed

By Mark Benjamin
Sept. 29, 2009 |

"A top official at Arlington National Cemetery steered millions of dollars to a handful of contractors operating a series of different companies over the past several years. When the contractors would leave one company and start another, the official would hire them again, yet the work they were hired to do has never been completed. The firms have ostensibly worked since 2003 to computerize burial records at the cemetery, but to date, despite receiving as much as $5.6 million, they have produced almost nothing in return.

The small group of contractors, all favored by Deputy Superintendent Thurman Higginbotham, includes one currently facing more than a dozen counts of child sex offenses and a company that a cemetery information technology manager felt was so unqualified to handle sensitive private data that the manager resigned in disgust."

FedCir Affirms Veteran Court, § 3.343(a) in Retrospective Ratings, Reizenstein v. Shinseki, No. 2009-7012

The FedCir, in Reizenstein v. Shinseki [No. 2009-7012 (DECIDED: September 29, 2009)], has affirmed the Veterans Court's holding that 38 C.F.R. § 3.343(a) does not apply to assignments of retrospective staged ratings that include a temporary total disability rating.

The FedCir went on to state that "Although we agree with the Veterans Court that § 3.343(a) is directed to prospective ratings, this does not mean that the VA is excused from providing its reasons for all changes in disability ratings, whether prospective or retrospective."

MAYER, Circuit Judge, dissenting.
The text of the regulation [38 C.F.R. § 3.343(a)] is clear: “[t]otal disability ratings . . . will not be reduced, in the absence of clear error, without examination showing material improvement in physical or mental condition.” This rule is neither permissive, optional, or discretionary, nor does it state any exception for staged ratings.
+++++++++++++++++++++++++++
Randall Reizenstein appeals the July 16, 2008 decision of the United States Court of Appeals for Veterans Claims (“Veterans Court”) holding that 38 C.F.R. § 3.343(a) does not apply to assignments of retrospective staged ratings that include a temporary total disability rating. For the reasons set forth below, we affirm. Although we agree with the Veterans Court that § 3.343(a) is directed to prospective ratings, this does not mean that the VA is excused from providing its reasons for all changes in disability ratings, whether prospective or retrospective.


United States Court of Appeals for the Federal Circuit
2009-7012
RANDALL D. REIZENSTEIN,
Claimant-Appellant,
v.
ERIC K. SHINSEKI, Secretary of Veterans Affairs,
Respondent-Appellee.
Kenneth M. Carpenter, Carpenter, Chartered, of Topeka, Kansas argued for claimant-appellant.
Martin F. Hockey, Jr., Assistant Director, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, argued for respondent-appellee. With him on the brief were Michael F. Hertz, Acting Assistant Attorney General, Jeanne E. Davidson, Director, and Tara K. Hogan, Trial Attorney. Of counsel were Michael J. Timinski, Deputy Assistant General Counsel, and Dana Raffaelli, Attorney, Office of the General Counsel, United States Department of Veterans Affairs, of Washington, DC.
Appealed from: United States Court of Appeals for Veterans Claims
Judge Lawrence B. Hagel
United States Court of Appeals for the Federal Circuit
2009-7012
RANDALL D. REIZENSTEIN,
Claimant-Appellant,
v.
ERIC K. SHINSEKI, Secretary of Veterans Affairs,
Respondent-Appellee.
Appeal from the United States Court of Appeals for Veterans Claims in 06-1925, Judge Lawrence B. Hagel.
__________________________
DECIDED: September 29, 2009
__________________________
Before NEWMAN, MAYER, and PROST, Circuit Judges.
Opinion for the court filed by Circuit Judge PROST. Dissenting opinion filed by Circuit Judge MAYER.
PROST, Circuit Judge.
Randall Reizenstein appeals the July 16, 2008 decision of the United States Court of Appeals for Veterans Claims (“Veterans Court”) holding that 38 C.F.R. § 3.343(a) does not apply to assignments of retrospective staged ratings that include a temporary total disability rating. For the reasons set forth below, we affirm. Although we agree with the Veterans Court that § 3.343(a) is directed to prospective ratings, this does not mean that the VA is excused from providing its reasons for all changes in disability ratings, whether prospective or retrospective.
I. BACKGROUND
Mr. Reizenstein served on active duty in the United States Marine Corps from May 1968 to May 1970, the United States Army from November 1974 to July 1977, and the United States Navy from December 1980 to February 1981. During his time in the Marine Corps, he served in Vietnam.
In 1996, Mr. Reizenstein filed a claim for benefits for post-traumatic stress disorder (“PTSD”). A Department of Veterans Affairs (“VA”) regional office denied his claim in 1997 because it found that there was “no confirmed diagnosis of posttraumatic stress disorder which would permit a finding of service connection.” In March 1998, Mr. Reizenstein was admitted to a VA medical center. Upon his discharge, he was diagnosed with, among other conditions, alcohol dependence, “post-traumatic stress disorder by history,” dysthymia, and personality disorder. In August 1998, he filed a Notice of Disagreement with the 1997 regional office decision. Several months later, the regional office assigned him a 30% disability rating effective November 7, 1996. Mr. Reizenstein filed another Notice of Disagreement, and proceedings on his claim continued for several years. In March 2006, the Board of Veterans’ Appeals (“Board”) issued a decision awarding Mr. Reizenstein the following retrospective staged rating:
November 7, 1996-December 1, 1996: 30%
December 2, 1996-March 21, 1998: 50%
March 22, 1998-May 5, 1999: 100%
May 6, 1999-present: 30%
The Board’s decision to grant a temporary period of total disability beginning on March 22, 1998, was based on its finding that Mr. Reizenstein’s condition appeared to have become more severe as of the date that he was admitted to the hospital. Although the treatment record for Mr. Reizenstein’s hospital stay gave a primary diagnosis of
2009-7012 2
alcohol dependence and did not indicate a PTSD diagnosis, the Board noted that the record “did not exclude the possibility” that Mr. Reizenstein’s condition was caused at least in part by PTSD and decided to resolve any doubt about the cause of his condition in his favor. The Board’s decision to limit the total disability stage to between March 22, 1998 and May 5, 1999 was based on a May 6, 1999 VA mental health treatment note that stated that the severity of Mr. Reizenstein’s condition had abated. Specifically, the note reported that Mr. Reizenstein denied depression, reported normal sleep patterns, and was neatly groomed. The Board also found that subsequent medical records did not support giving Mr. Reizenstein a rating of greater than 30% for any period of the staged rating occurring after May 6, 1999.
On appeal to the Veterans Court, Mr. Reizenstein alleged several errors in the Board’s decision. First, he argued that the Board failed to provide an adequate statement of the reasons and bases for its decision not to award a total disability rating for each of the periods of the staged rating for which a lesser rating was given. He also challenged the Board’s decision to begin his total disability rating on March 22, 1998. Finally, he asserted that the Board improperly reduced his total disability rating on May 5, 1999, without providing the examination required by 38 C.F.R. § 3.343(a), which provides in relevant part:
Total disability ratings, when warranted by the severity of the condition and not granted purely because of hospital, surgical, or home treatment, or individual unemployability will not be reduced, in the absence of clear error, without examination showing material improvement in physical or mental condition.
The Veterans Court found that the Board adequately stated the reasons and bases underlying the staged rating award. Reizenstein v. Peake, 22 Vet. App. 202,
2009-7012 3
209-11 (2008). Additionally, it concluded that the Board did not violate § 3.343(a) because that regulation only applies to prospective reductions of total disability ratings, and not to retrospective staged ratings such as the one given to Mr. Reizenstein. Id. at 209. In the Veterans Court’s view, the text and history of § 3.343(a) demonstrated that it was enacted to protect veterans who were reliant on the compensation accompanying their total disability rating for day-to-day expenses from arbitrary reductions in their rating without adequate evidence of improvement. Id. at 207. The Veterans Court concluded that applying § 3.343(a) to staged ratings would not advance that purpose because staged ratings provide retrospective, lump sum payments that are made after the period for which the compensation was owed. Id. at 209. Additionally, the Veterans Court explained that
[r]equiring VA to ‘halt adjudication’ after assigning a temporary total disability rating as part of a staged rating to obtain a new medical examination would discourage the use by VA of staged ratings that include a period of temporary total disability and would often result in compensation being paid to a claimant at a higher level than he might otherwise be entitled to for a period of time.
Id.
Mr. Reizenstein appeals the Veterans Court’s decision with respect to the applicability of § 3.343(a). We have jurisdiction under 38 U.S.C. § 7292.

II. DISCUSSION
We review interpretation of regulations by the Veterans Court de novo and may set aside any regulation or interpretation of a regulation that we find to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; contrary to a constitutional right, power, privilege, or immunity; in excess of statutory jurisdiction, authority, or limitations, or in violation of a statutory right; or without observation of a procedure required by law.
2009-7012 4
Smith v. Nicholson, 451 F.3d 1344, 1347 (Fed. Cir. 2006). Absent a constitutional issue, our jurisdictional statute, 38 U.S.C. § 7292, prohibits us from reviewing a challenge to a factual determination or a challenge to a law or regulation as applied to the facts of a particular case. 38 U.S.C. § 7292(d)(2).
As a threshold matter, we note that Mr. Reizenstein does not-and, because of our limited jurisdiction, likely cannot-argue on appeal that the May 6, 1999 VA treatment note is insufficient to support a conclusion that he was not totally disabled as of that date. Instead, his argument is that regardless of the sufficiency of the evidence, the VA is prohibited by regulation from ending the total disability period of his staged rating without complying with 38 C.F.R. § 3.343(a). Our review is confined to the narrow issue of whether § 3.343(a) applies to periods of total disability assigned as part of a retrospective staged rating. We are not asked to review any other of the panoply of statutory and regulatory provisions relating to VA ratings decisions, whether prospective or retrospective. The evidentiary protections afforded thereby remain in place.
Mr. Reizenstein presents the issue on appeal as a conflict between the VA’s regulation, § 3.343(a), and staged ratings, which he characterizes as a “judicially created rule of law.” According to Mr. Reizenstein, the staged ratings “rule of law” was created by the Veterans Court in Fenderson v. West, 12 Vet. App. 119 (1999). In that case, the Veterans Court recognized that “separate ratings can be assigned for separate periods of time based on facts found.” Id. at 126 (quoting the VA’s supplemental brief in that case). In Mr. Reizenstein’s view, the Veterans Court erred by relying on the “staged ratings rule of law” to excuse the VA from compliance with § 3.343(a). Additionally, Mr. Reizenstein asserts that the Veterans Court incorrectly
2009-7012 5
followed its own “rule of law” instead of deferring to the VA’s regulation as required by Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984).
In response, the government asserts that Mr. Reizenstein frames the appeal incorrectly. According to the government, the use of staged ratings is not a “rule of law” that was created in Fenderson. Instead, the government characterizes the use of staged ratings as a practice that the VA has followed for many years in order to assign “the most precise disability rating-one that accounts for the possible dynamic nature of a disability while the claim works its way through the adjudication process.” O’Connell v. Nicholson, 21 Vet. App. 89, 93 (2007). In support of this position, the government points out that the court in Fenderson noted that the VA’s brief acknowledged the use of staged ratings. See Fenderson, 12 Vet. App. at 126. We agree with the government that the use of staged ratings is more properly viewed as a VA practice than as a Veterans Court “rule of law.” See 38 C.F.R. § 4.1; see also Meeks v. West, 216 F.3d 1363, 1365 (Fed. Cir. 2000). Accordingly, we also conclude that Mr. Reizenstein’s argument about Chevron deference is without merit. This follows because once the “rule of law” is properly recognized as a VA practice, it becomes clear that the Veterans Court was not applying its own “rule of law,” but rather was adopting the agency’s interpretation of the applicability of its own regulation. The remaining question, then, is whether the VA’s interpretation that § 3.343(a) does not apply to retrospective staged ratings is permissible.
“[T]he agency’s construction of its own regulations is ‘of controlling weight unless it is plainly erroneous or inconsistent with the regulation.’” Cathedral Candle Co. v. U.S. Int’l Trade Comm’n, 400 F.3d 1352, 1364 (Fed. Cir. 2005) (quoting Bowles v.
2009-7012 6
Seminole Rock & Sand Co., 325 U.S. 410, 414 (1945)). “That generous degree of deference is due to an agency interpretation of its own regulations even when that interpretation is offered in the very litigation in which the argument in favor of deference is made.” Id. In cases in which the agency offers its interpretation for the first time in its briefs during litigation, the agency is entitled to deference so long as there is “no reason to suspect that the interpretation does not reflect the agency’s fair and considered judgment on the matter in question.” Id. (quoting Auer v. Robbins, 519 U.S. 452, 462 (1997)).
Mr. Reizenstein challenges the government’s claim to deference on two grounds. First, he argues that the VA’s position that § 3.343(a) does not apply to total disability ratings that are awarded as part of a staged rating is merely the VA’s post-hoc rationalization for its decision to reduce his rating without providing the requisite examination. As such, Mr. Reizenstein argues, deference is inappropriate. See Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 213 (1988) (“Deference to what appears to be nothing more than an agency’s convenient litigating position would be entirely inappropriate.”). Second, Mr. Reizenstein asserts that the VA’s interpretation is inconsistent with the plain language and clear intent of the regulation and is thus impermissible even if deference is given.
We disagree with Mr. Reizenstein’s assertion that the VA’s interpretation is not entitled to deference because it is merely a litigation position. In order to defeat the VA’s claim to deference, Mr. Reizenstein must give us a “reason to suspect that the interpretation does not reflect the agency’s fair and considered judgment on the matter in question.” Cathedral Candle, 400 F.3d at 1364 (quoting Auer, 519 U.S. at 462). He
2009-7012 7
attempts to do so by citing a portion of the Veterans Court’s decision in O’Connell in which the court noted that the government’s counsel stated at oral argument, “in a stark departure from his brief,” that “§§ 3.343 and 3.344 apply whenever a rating is reduced, including in the staged-ratings context.” 21 Vet. App. at 92. However, that case involved the VA’s interpretation of 38 C.F.R. § 3.105(e) in the context of a staged rating and the court specifically pointed out that “Mr. O’Connell raises no argument with respect to the manner in which the Board applied §[] 3.343” and that it “need not decide that precise issue here.” Id. Given that the opinion expressed by the attorney at oral argument was contrary to the position the VA took in its briefs and was unnecessary to the issue being decided, we decline to view it as preventing us from concluding that the VA’s current position is its considered and legitimate interpretation of § 3.343(a). See Abbott Labs. v. United States, 573 F.3d 1327, 1332-33 (Fed. Cir. 2009).
Mr. Reizenstein also points out that the government’s brief before the Veterans Court in this case requested a remand to “consider and address the potential applicability of § 3.343 in the first instance.” Instead of remanding, the Veterans Court asked the VA to submit a memorandum regarding the history of § 3.343(a) and the VA’s practice in applying it. Reizenstein, 22 Vet. App. at 206. In its memorandum, the VA explained its view that § 3.343(a) only applies to prospective total disability ratings and does not apply to total disability ratings that are part of a retrospective staged rating. Id. The memorandum also included a statement in support of the VA’s position from Bradley Flohr, Assistant Director of Policy for the Compensation and Pension Service. Id. In light of the VA’s supplemental memorandum, we conclude that the position presented to the Veterans Court and to us on appeal is the product of the VA’s “fair and
2009-7012 8
considered judgment” and is accordingly entitled to deference. Cathedral Candle, 400 F.3d at 1364 (quoting Auer, 519 U.S. at 462).
As mentioned above, the VA’s interpretation of its own regulations is “controlling unless plainly erroneous or inconsistent with the regulation.” Auer, 519 U.S. at 461 (quotation marks omitted). This deference “is broader than deference to the agency’s construction of a statute, because in the latter case the agency is addressing Congress’s intentions, while in the former it is addressing its own.” Cathedral Candle, 400 F.3d at 1363-64. In this case, the VA’s interpretation of § 3.343(a) satisfies this deferential standard of review.
The regulation provides as follows:
§ 3.343 Continuance of total disability ratings.
(a) General. Total disability ratings, when warranted by the severity of the condition and not granted purely because of hospital, surgical, or home treatment, or individual unemployability will not be reduced, in the absence of clear error, without examination showing material improvement in physical or mental condition. Examination reports showing material improvement must be evaluated in conjunction with all the facts of record, and consideration must be given particularly to whether the veteran attained improvement under the ordinary conditions of life, i.e., while working or actively seeking work or whether the symptoms have been brought under control by prolonged rest, or generally, by following a regimen which precludes work, and, if the latter, reduction from total disability ratings will not be considered pending reexamination after a period of employment (3 to 6 months).
38 C.F.R. § 3.343(a) (emphasis added). The government argues that the language of the regulation, including the use of the word “continuation” in the title and “reduced” in the text, suggests that the regulation was intended to be applied to existing ratings that are reduced on a prospective basis. We conclude that the text of the regulation does not unambiguously answer the question of whether the regulation applies in the context
2009-7012 9
of a staged rating where the VA looks backwards and, in a single ratings decision, retroactively assigns specific ratings to discrete time periods.
We further conclude that the government’s interpretation of the regulation is reasonable. The government explains that the purpose of § 3.343(a) is to protect veterans who are dependent on the monthly compensation that accompanies their total disability rating from a sudden and arbitrary reduction in their benefits that could jeopardize their ability to pay for day-to-day necessities. Applying this regulation in the context of a retrospective staged rating, however, would not advance this purpose because the benefits for the past periods of disability are distributed in a lump sum that is paid on top of the veteran’s on-going disability compensation, if any. In other words, the money awarded for a staged rating is compensation for a past period of disability and is independent of the veteran’s entitlement to continuing benefits, and is thus significantly less likely to be the veteran’s only source of funds for paying current and on-going expenses. The government’s reasoning with respect to the applicability of § 3.343(a) is consistent with its interpretations of other regulations that govern procedural requirements for reductions in ratings or compensation. See, e.g., O’Connell, 21 Vet. App. 89 (holding that 38 C.F.R. § 3.105(e), which provides for notice and an opportunity for the veteran to submit evidence prior to a reduction in compensation, did not apply in the staged ratings context); VA General Counsel Opinion 1-2007 (explaining that 38 C.F.R. § 3.105(e) did not apply to a retroactive reinstatement of a total disability based on individual unemployability rating).
Additionally, the government points out that applying § 3.343(a) to retrospective staged ratings could result in dramatic overcompensation and might discourage the VA
2009-7012 10
See from awarding total disability awards as part of staged ratings for conditions for which the rating decision is flexibly based on the totality of the evidence. See, e.g., 38 C.F.R. § 4.126 (evaluation of disability from mental disorders). This is because the VA would be unable to end a period of total disability in a staged rating unless there happened to have been a medical examination that satisfied § 3.343(a). Absent a qualifying medical examination, the VA would be compelled to compensate the veteran for that time as if he was totally disabled even if the evidence otherwise showed that a total disability rating was not warranted. For example, in this case, the Veterans Court found that if it adopted Mr. Reizenstein’s position, “it is possible that he would be overcompensated at a 100% rating for as many as 9 years.” Reizenstein, 22 Vet. App. at 209 n.4. The VA reasonably concluded that in the absence of the special concern about taking away the livelihood of a totally disabled veteran who is dependent on his monthly compensation, the extra protection provided by § 3.343(a) was not necessary, given that veterans who are dissatisfied with their staged ratings can, as Mr. Reizenstein has done in this case, challenge the VA’s decision to end the period of total disability.1 id. at 209-11 (concluding that the Board adequately stated the reasons and bases for Mr. Reizenstein’s staged rating); see also 38 U.S.C. § 7105 (providing for notices of disagreement and appeals).
It is important to note that the inapplicability of § 3.343(a) does not give the VA license to arbitrarily terminate periods of total disability that are assigned as part of a
1 We disagree with the dissent’s suggestion that we are “ignoring” § 3.343(a) in order to promote what we have chosen to be the policy goals of the regulation. Contrary to the dissent’s characterization of the case, it is the VA that has made a policy choice in this case.
2009-7012 11 2009-7012 12
staged rating. Rather, in cases such as this in which the Board awards a staged rating with a temporary period of total disability, 38 U.S.C. § 7104(d)(1) requires that the Board provide “a written statement of the Board’s findings and conclusions, and the reasons or bases for those findings and conclusions, on all material issues of fact and law presented on the record.” This statement must “contain clear analysis and [a] succinct but complete explanation[],” Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990), of the decision to terminate a temporary period of total disability. In this case, the Veterans Court concluded that the Board’s reliance on the May 6, 1999 VA treatment note and a subsequent examination provided an adequate basis for its decision to end Mr. Reizenstein’s period of total disability as of May 6, 1999.
III. CONCLUSION
Because the VA’s interpretation of the applicability of § 3.343(a) is not “plainly erroneous or inconsistent with the regulation,” Seminole Rock, 325 U.S. at 414, we affirm the Veterans Court’s decision that § 3.343(a) does not apply to the total disability stage of Mr. Reizenstein’s retrospective staged rating.
COSTS
Each party shall bear its own costs.
AFFIRMED
United States Court of Appeals for the Federal Circuit
2009-7012
RANDALL D. REIZENSTEIN,
Claimant-Appellant.
v.
ERIC K. SHINSEKI, Secretary of Veterans Affairs,
Respondent-Appellee.
Appeal from the United States Court of Appeals for Veterans Claims in 06-1925, Judge Lawrence B. Hagel.
MAYER, Circuit Judge, dissenting.
I respectfully dissent because the Court of Appeals for Veterans Claims has impermissibly failed to apply 38 C.F.R. § 3.343(a) to Reizenstein’s retroactive staged ratings. The text of the regulation is clear: “[t]otal disability ratings . . . will not be reduced, in the absence of clear error, without examination showing material improvement in physical or mental condition.” This rule is neither permissive, optional, or discretionary, nor does it state any exception for staged ratings.
After requesting supplemental briefing from the Department of Veterans Affairs, the Veterans Court accepted its litigation inspired position that section 3.343(a) does not apply to staged ratings because “the concept of a staged rating necessitates that some incremental time periods are rated as less than total based on the evidence of record,” and because staged ratings are applied retrospectively while section 3.343(a) is prospective in nature. In support of its conclusion, the court cited not the current section 3.343(a), but the title of its March 27, 1934, ancestor, Instruction 3, Paragraph 5 of
Veterans Regulation Number 3, which read “Continuance of total disability ratings heretofore made.” It reasoned that the presence of the word “heretofore” suggests that the regulation was intended only for prospective ratings (the only kind that existed at the time) and carried forward this limitation to today’s regulation, which bears a different title. Reizenstein v. Peake, 22 Vet. App. 202, 207 (2008).
Prospective or retrospective, the regulation is as clear as it is functional, and I do not see anything that allows this court to ignore the unambiguous language that total disability ratings will not be reduced outside prescribed conditions. The nature of applying staged ratings retrospectively in no way disables the board from complying with section 3.343(a) by applying a 100% rating where warranted and maintaining the rating until such time as there has been an examination showing material improvement in physical or mental condition. This is consistent with the need for retroactive ratings in the first place: a retroactive rating is granted by standing in the position of a veteran on the date of his claim, then looking forward from that point.
The majority says that the department is not excused from providing its reasons for all changes in disability ratings, regardless of whether the change is prospective or retrospective. I agree, and that is precisely what is required by section 3.343(a) because the reasons would necessarily include a medical examination. The majority should apply this holding to Ronald Reizenstein’s situation as well.
Furthermore, I cannot agree with the majority’s reasoning that a regulation can be ignored when its application would not further the policy goals judges decide were intended by the promulgation of the regulation. This makes a mockery of the literal text
2009-7012 2 2009-7012 3
and invites the judiciary to cherry-pick among policies purportedly the source of the regulation even though the text speaks for itself.
Of course we must defer to an agency’s interpretation of its own regulations, unless the interpretation is “plainly erroneous or inconsistent with the regulation.” Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414 (1945). But, surely, ignoring the regulation is inconsistent with the regulation.

VAOIG Uncovers 296,000 misplaced and 141,000 lost Veteran Claims Folders

VAOIG Report Summary: Audit of Veterans Benefits Administration’s Control of Veterans’ Claims Folders
Report Number 09-01193-228, 9/28/2009


This VAOIG report is particularly telling given the prior VAOIG report of shredding of veterans records and claim folders at virtually every VA office, and the previously convicted VA Attorneys for losing and destroying veteran's records and claim files for the purpose of denying their claims

"Claims folders for approximately 296,000 (7 percent) veterans were at locations different from that shown in COVERS (misplaced). Of the 296,000 misplaced claims folders, we projected about 55 percent were found in other locations inside the regional office, and the remaining 45 percent were found at the VA Records Management Center (RMC).

"Claims folders for approximately 141,000 (3 percent) veterans were lost. Additionally, all of the lost folders had records in COVERS and the Beneficiary Identification and Records Locator System (BIRLS) indicating the folders existed and at one time had been at a Federal Records Center, the RMC, or a regional office."

Electronic Medical Alerts for Abnormal Results, Not Responded to 18% of the Time

Researchers have found that 18% of "123,638 imaging tests (including X-rays, computed tomographic [CT] scans, magnetic resonance imaging [MRI] and mammograms) performed during the study period", were not acknowledged.

"Nearly all abnormal test results lacking timely follow-up at four weeks were eventually found to have measurable clinical impact in terms of further diagnostic testing or treatment," the authors write.


Full Article at: Electronic alerts about abnormal imaging test results do not always result in timely follow-up
Contact: Bobbi Gruner
bobbi.gruner@va.gov
713-794-7349
JAMA and Archives Journals

"Abnormal results on outpatient imaging tests sometimes may not receive timely follow-up even when clinicians receive and read results in an advanced, integrated electronic medical record system, according to a report in the September 28 issue of Archives of Internal Medicine, one of the JAMA/Archives journals."

"The Department of Veterans Affairs, uses electronic communications with alerts to notify clinicians who order imaging tests about critical abnormal results".

"Timely follow-up of abnormal results did not occur following 92 (7.7 percent) of all alerts, including 7.3 percent of alerts that were acknowledged and 9.7 percent of alerts that were unacknowledged. This follow-up was also less likely to occur when more than one clinician received the alert, but more likely to occur when a radiologist also communicated concerns about the results verbally, either by phone or in person. "Nearly all abnormal test results lacking timely follow-up at four weeks were eventually found to have measurable clinical impact in terms of further diagnostic testing or treatment," the authors write."

FedCir Issues Decision for when Veteran Dies before judgement is Issued but the Case has been Fully Submitted

The FedCir. has issued a precedential decision which states that when "the veteran-claimant died before the issuance of the court’s judgment, the proper course in a case such as Mr. Phillips’s, in which the case was fully submitted prior to the veteran-claimant’s death, is for the court to issue its judgment nunc pro tunc as of the date of death."

United States Court of Appeals for the Federal Circuit
2008-7124
DONALD PHILLIPS,
Claimant,
and
DEJUANNA HARRIS,
Movant-Appellant,
v.
ERIC K. SHINSEKI, Secretary of Veterans Affairs,
Respondent-Appellee.
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2008-7142
NATHAN J. DAVIS,
Claimant-Appellant,
and
VALERIE STANBACK,
Movant-Appellant,
v.
ERIC K. SHINSEKI, Secretary of Veterans Affairs,
Respondent-Appellee.
Eric Alan Shumsky, Sidley Austin LLP, of Washington, DC, argued for all appellants. With him on the briefs were Pankaj Venugopal and Naomi Schoenbaum. Of counsel on the briefs was Barton F. Stichman, National Veterans Legal Services
Program, of Washington, DC. Of counsel on the brief in 2008-7124 was Richard V. Spataro. Of counsel on the brief in 2008-7142 were Christine M. Cote and Louis J. George.
Meredyth Cohen Havasy, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, argued for respondent-appellee in appeals 2008-7124 and 2008-7142. With her on the briefs were Jeanne E. Davidson, Director, and Martin F. Hockey, Jr., Assistant Director. Of counsel on the briefs was Michael J. Timinski, Deputy Assistant General Counsel, United States Department of Veterans Affairs, Office of the General Counsel, of Washington, DC. Of counsel on the brief in 2008-7124 was Martin J. Sendek, Attorney. Of counsel on the brief in 2008-7142 and of counsel in 2008-7124 was Michael G. Daugherty, Attorney.
Appealed from: United States Court of Appeals for Veterans Claims
Chief Judge William P. Greene, Jr. (2008-7124)
Judge Mary J. Schoelen (2008-7142)
United States Court of Appeals for the Federal Circuit
2008-7124
DONALD PHILLIPS,
Claimant,
and
DEJUANNA HARRIS,
Movant-Appellant,
v.
ERIC K. SHINSEKI, Secretary of Veterans Affairs,
Respondent-Appellee.
Appeal from the United States Court of Appeals for Veterans Claims
in 05-2404, Chief Judge William P. Greene, Jr.
-------------------------------------------------------------------------------------------
2008-7142
NATHAN J. DAVIS,
Claimant-Appellant,
and
VALERIE STANBACK,
Movant-Appellant,
v.
ERIC K. SHINSEKI, Secretary of Veterans Affairs,
Respondent-Appellee.
Appeal from the United States Court of Appeals for Veterans Claims
in 05-1392, Judge Mary J. Schoelen.
___________________________
DECIDED: September 25, 2009
___________________________
Before MICHEL, Chief Judge, BRYSON, Circuit Judge, and SPENCER, Chief District Judge.*
BRYSON, Circuit Judge.
These two appeals raise questions about the procedures that apply when a veteran who is pursuing a claim for disability benefits dies while his claim is pending. In both cases, the veteran-claimant died while his claim was on appeal before the Court of Appeals for Veterans Claims (“the Veterans Court”). In both cases, the question before us is whether the daughters of the deceased veteran-claimants may be substituted for their fathers so that they can pursue either an “accrued-benefits claim” under 38 U.S.C. § 5121 or a claim for attorney fees under the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412. In both cases, the Veterans Court refused to permit substitution, dismissed the veterans’ appeals, and denied the EAJA claims.
Appeal No. 2008-7142
Nathan Davis, a United States Army veteran, filed a claim in 1997 seeking service connection for post-traumatic stress disorder. After multiple proceedings before a regional office of the Department of Veterans Affairs (“DVA”) and the Board of Veterans’ Appeals, the Board ultimately denied his claim in 2005. When Mr. Davis appealed to the Veterans Court, the Secretary of Veterans Affairs conceded that the
∗ The Honorable James R. Spencer, Chief Judge, United States District Court for the Eastern District of Virginia, sitting by designation.
2008-7124,-7142 2
Board’s decision was erroneous in two respects. First, the Secretary conceded that the Board had failed to ensure that the regional office complied with an earlier remand order from the Board. In that order, the Board had directed the regional office to attempt to verify information provided by Mr. Davis as to an in-service stressor. Second, the Secretary conceded that the Board had mistakenly relied on a June 2004 medical examination that was inadequate for rating purposes.
On December 7, 2006, the Veterans Court issued an opinion vacating the Board’s decision and remanding the case to the Board for further adjudication. The court agreed with the two points on which the Secretary confessed error. With respect to the first point, the court agreed that the regional office had not sought to verify Mr. Davis’s allegations as the Board had directed it to do. With respect to the second point, the court agreed that the medical examiner had erred in concluding that Mr. Davis had never been formally diagnosed with post-traumatic stress disorder and that the examiner had failed to address several of Mr. Davis’s alleged stressors. The court issued its judgment on January 3, 2007, and the court’s mandate issued on March 9, 2007. Three months later, on April 3, 2007, counsel for Mr. Davis filed an EAJA application for attorney fees and expenses.
Before the court acted on the EAJA application, Mr. Davis’s counsel learned that Mr. Davis had died on January 10, 2007, a week after the court entered its judgment in the case. Counsel informed the court of Mr. Davis’s death on April 20, 2007, and moved to substitute Mr. Davis’s daughter, Valerie Stanback, as the claimant for purposes of pursuing the EAJA claim. At that time, Ms. Stanback stated that there was no person eligible to make a claim for accrued benefits under 38 U.S.C. § 5121. She
2008-7124,-7142 3
argued, however, that the EAJA claim could proceed in her name because the Veterans Court’s remand order was a final judgment for purposes of EAJA.
The Secretary opposed both the motion to substitute and the EAJA application. The Secretary asked the Veterans Court to withdraw its judgment and mandate, to vacate the Board’s decision, and to dismiss the appeal. In her reply to the Secretary’s motion, Ms. Stanback asserted that, in addition to being a proper person to pursue the EAJA claim, she was eligible for accrued benefits under 38 U.S.C. § 5121(a)(6) as the person who bore Mr. Davis’s funeral expenses. For that reason, she asserted that she was entitled to substitution as an accrued-benefits claimant under this court’s decision in Padgett v. Nicholson, 473 F.3d 1364 (Fed. Cir. 2007).
The Veterans Court granted the Secretary’s motion and entered an order withdrawing its judgment and mandate, vacating the Board’s decision, and dismissing the appeal. The court stated that because it had vacated the Board’s decision, the Board’s decision and the underlying regional office decision would have no preclusive effect on the adjudication of any future accrued-benefits claim based on Mr. Davis’s entitlements. With respect to the EAJA claim, the court held that in order to be eligible for EAJA fees, an appellant must be a “prevailing party,” and that upon the recall of the court’s judgment, there was no longer any decision as to which the appellant could be said to be a prevailing party. The court therefore dismissed the EAJA claim.
Appeal No. 2008-7124
In 1992, Army veteran Donald Phillips filed an application for disability compensation based on a psychiatric disorder. Over an extended period of time, he unsuccessfully attempted to obtain service connection for his disability. The Board of
2008-7124,-7142 4
Veterans’ Appeals ultimately denied his claim in May 2005. After Mr. Phillips appealed to the Veterans Court, the Secretary agreed to a joint motion for remand. Accordingly, on November 28, 2006, the parties filed a “Joint Motion for an Order Vacating and Remanding the Board Decision and Incorporating the Terms of this Remand.” In the joint motion, the Secretary conceded that the Board had failed to address the significance of evidence potentially favorable to Mr. Phillips’s claim. The Veterans Court granted the joint motion to remand on December 7, 2006, in an order that also served as the court’s mandate.
Unbeknownst to counsel, Mr. Phillips had died on November 30, 2006, two days after the joint remand motion was filed. After learning of Mr. Phillips’s death, his attorney notified the court on January 4, 2007, that Mr. Phillips had died. Counsel then filed an application for attorney fees under EAJA, and Dejuanna Harris, Mr. Phillips’s daughter and the representative of his estate, filed a motion seeking to be substituted as the claimant for purposes of pursuing the attorney fee award.
The Veterans Court denied the motion for substitution and instead issued a decision recalling its judgment and mandate. The court also vacated the underlying Board decision and dismissed the appeal. Because the court’s actions meant that there was no longer a final judgment upon which to base an EAJA award, the court dismissed the EAJA application.
I
As a general rule, a veteran’s claim for disability benefits terminates with the death of the veteran. Richard v. West, 161 F.3d 719, 723 (Fed. Cir. 1998). Consequently, when a veteran-claimant dies during the pendency of proceedings on his
2008-7124,-7142 5
claim, including an appeal to the Veterans Court, no other party is automatically entitled to be substituted on the veteran’s claim for benefits. By statute, however, certain successors acquire an interest in the veteran’s benefits. In particular, the benefits that accrued during the veteran’s last two years and were “due and unpaid” at the time of the veteran’s death are referred to as “accrued benefits” and can be claimed by a person who qualifies as a beneficiary under 38 U.S.C. § 5121(a). The statute defines the qualifying benefits as those “to which [the veteran] was entitled at death under existing ratings or decisions or those based on evidence in the file at date of death.” Id. Thus, the statute “provides a mechanism for survivors to recover certain benefits the entitlement to which has already been established or can be readily established based on evidence in the file at the date of the veteran’s death.” Haines v. West, 154 F.3d 1298, 1300-01 (Fed. Cir. 1998). An accrued-benefits claimant may pursue the accrued benefits by filing his or her own claim, which is distinct and separate from the underlying veteran’s benefit claim. In certain circumstances, however, we have held that an accrued-benefits claimant may be substituted for the deceased veteran claimant on the disability benefits claim in order to protect the accrued-benefits claimant’s legal interests.1
When a veteran-claimant dies during the pendency of his appeal to the Veterans Court, the court normally does not allow substitution of an accrued-benefits claimant for
1 Congress has recently enacted provisions to allow substitution of such claimants as a matter of course, but the effective date of those provisions renders them inapplicable to this case. See Veterans’ Benefits Improvement Act of 2008, Pub. L. No. 110-389, § 212, 122 Stat. 4145, 4151.
2008-7124,-7142 6
the deceased claimant, but instead vacates the Board decision from which the appeal is taken and dismisses the appeal. In Landicho v. Brown, 7 Vet. App. 42, 54 (1994), the court explained that doing so ensures that the Board decision “will have no preclusive effect in the adjudication of any future accrued-benefits claims derived from the veteran’s entitlements.” The court stated that when the Board decision is vacated, the accrued-benefits claimant cannot be said to be “adversely affected” by the Board decision and thus does not have standing to pursue an appeal under 38 U.S.C. § 7266(a). 7 Vet. App. at 54.
In Zevalkink v. Brown, 102 F.3d 1236 (Fed. Cir. 1996), this court approved the general procedure employed by the Veterans Court in Landicho. We agreed that when a veteran dies during the pendency of his appeal to the Veterans Court, substitution of an accrued-benefits claimant is ordinarily not appropriate, because the accrued-benefits claim would not be “adversely affected” by the Board’s decision on the underlying veteran’s disability benefits claim once the Board’s decision was vacated. Id. at 1243.
More recently, we have been called upon to decide whether a different rule applies when the underlying disability benefits claim was fully submitted to the Veterans Court at the time of the veteran’s death. In Padgett v. Nicholson, 473 F.3d 1364 (Fed. Cir. 2007), the Board of Veterans’ Appeals denied Mr. Padgett’s disability benefits claim, but the Veterans Court reversed the Board’s adverse determination and held that Mr. Padgett was entitled to at least some benefits. After the court issued its decision, it learned that Mr. Padgett had died after the case was submitted to the court but prior to the issuance of the court’s decision. Mrs. Padgett then filed an accrued-benefits claim and sought substitution on Mr. Padgett’s disability benefits claim in order to protect her
2008-7124,-7142 7
interest in the accrued benefits. The Veterans Court, however, withdrew its opinion, vacated the underlying Board decision, and dismissed the appeal.
On appeal, we held that the Veterans Court should not have vacated its decision in Mr. Padgett’s favor. Once the case was submitted to the Veterans Court, we explained, the case was in a posture such that it was appropriate to give the accrued-benefits claimant the benefit of the court’s decision by issuing the judgment nunc pro tunc as of the date of Mr. Padgett’s death. In fact, we stated, failure to give effect to the Veterans Court’s decision in Mr. Padgett’s case would be improper because “it would disregard the otherwise final determination of issues relating to the accrued-benefits claim.” Padgett, 473 F.3d at 1369.
We then addressed the related question whether Mrs. Padgett, as the accrued-benefits claimant, should be substituted for Mr. Padgett on the appeal. In order to decide that issue, we addressed whether the “continuing relevance and preclusive effect” of the issues decided in Mr. Padgett’s appeal were sufficient to satisfy the “case or controversy” requirement applied by the Veteran’s Court; whether Mrs. Padgett had standing to pursue the appeal under 38 U.S.C. § 7266(a); and whether substitution would be consistent with justice and fairness to the parties. Padgett, 473 F.3d at 1370. Based on Mrs. Padgett’s entitlement to the benefits of the final judgment in Mr. Padgett’s favor in the appeal, we held that all three requirements were satisfied. Accordingly, we directed the Veterans Court to substitute Mrs. Padgett on the appeal and to enter its judgment nunc pro tunc as of the time of Mr. Padgett’s death. We characterized those steps as “further[ing] judicial and administrative economy by not
2008-7124,-7142 8
requiring relitigation and readjudication of issues already decided by the Veterans Court.” Id.
In a recent decision, Hyatt v. Shinseki, 566 F.3d 1364 (Fed. Cir. 2009), we reaffirmed the approach employed in Padgett. In Hyatt, as in Padgett, the veteran-claimant died after a favorable decision from the Veterans Court, but before issuance of the judgment. Mrs. Hyatt, the widow of the veteran-claimant, sought to protect her rights to accrued benefits by requesting that she be substituted on her deceased husband’s benefits claim and having the Veterans Court reissue its judgment nunc pro tunc as of the date of her husband’s death. She contended that she was entitled to that relief because it would render additional records part of her husband’s claim file, thereby making them available to support her accrued-benefits claim.
The Secretary asserted that Mrs. Hyatt’s request was properly denied because she was “still a long way from establishing entitlement to benefits.” This court explained, however, that “the inquiry is not whether there will be an imminent grant of benefits, but whether [a claimant] is able to show a ‘personal stake’” in the outcome. Hyatt, 566 F.3d at 1369. We held that Padgett stands for the proposition that where an accrued-benefits claimant is seeking to be substituted for the purpose of requesting that a decision be reissued nunc pro tunc, Padgett requires only that the decision have “continuing relevance” such that, but for the nunc pro tunc relief, the accrued-benefits claim would be adversely affected. Thus, we held that “the accrued benefits claimant need only show that the failure to reissue the decision nunc pro tunc will adversely affect her claim in some way.” 566 F.3d at 1369.
2008-7124,-7142 9
Applying that test in the Hyatt case, we concluded that the withdrawal of the Veterans Court’s decision would not adversely affect the accrued-benefits claimant because the Veterans Court’s decision could not materially assist Mrs. Hyatt in prosecuting her claim. We noted that even if the Veterans Court’s judgment had been issued nunc pro tunc, Mrs. Hyatt would not have been able to rely on any new material that was not already in the claims file. We therefore concluded that Mrs. Hyatt could not benefit from being substituted on her husband’s claim, and for that reason she lacked standing to be substituted on the underlying claim.
In the Davis/Stanback case, Ms. Stanback seeks to take advantage of the rule articulated in Padgett and Hyatt and to be substituted for Mr. Davis in order to facilitate the prosecution of her accrued-benefits claim.2 The benefit to Ms. Stanback from having the Veterans Court’s decision remain in effect is that the decision establishes that the medical examiner erred in concluding that Mr. Davis had never had a formal diagnosis of post-traumatic stress disorder and that the examiner failed to address several of the appellant’s alleged stressors. The Veterans Court’s decision thus removes a significant roadblock from Ms. Stanback’s path to obtaining benefits based on the evidence in the file at the time of her father’s death. For that reason, vacating the court’s opinion would have an adverse effect on Ms. Stanback, and under the test
2 The government argues that Ms. Stanback failed to file a timely claim to her father’s accrued benefits and that for that reason this court should reject her claim. In response, she contends that her filings with the Veterans Court during 2007 were sufficient to constitute an informal claim for accrued benefits. The Veterans Court did not address that issue; accordingly, we will assume for present purposes that Ms. Stanback has preserved her rights as an accrued-benefits claimant and leave it to the Veterans Court on remand to determine whether her filings before that court were sufficient to preserve her rights in that regard.
2008-7124,-7142 10
applied in Padgett and Hyatt she therefore has standing to be substituted in place of the veteran-claimant. Because we have held that substitution of an accrued-benefits claimant is appropriate when the veteran-claimant dies after a case has been submitted and the denial of substitution would adversely affect the accrued-benefits claim, we hold that, assuming Ms Stanback has preserved her rights as an accrued-benefits claimant, she is entitled to substitution on her father’s claim and to the benefits of the Veterans Court’s decision in his favor.
II
Ms. Stanback seeks substitution on Mr. Davis’s claim not only to pursue an accrued-benefits claim under 38 U.S.C. § 5121(a), but also to prosecute an EAJA claim for attorney fees. In the companion case, Ms. Harris likewise requests that she be substituted for her deceased father, Donald Phillips, in order to pursue an EAJA claim stemming from his disability benefits claim.
EAJA provides that a “prevailing party” shall be awarded attorney fees unless the government’s position was “substantially justified.” 28 U.S.C. § 2412(d)(1)(A). Ms. Stanback asserts that the Veterans Court’s December 7, 2006, remand order made Mr. Davis a prevailing party and that because the Secretary confessed error in that proceeding, the government’s position was not substantially justified. See Former Employees of Motorola Ceramic Prods. v. United States, 336 F.3d 1360, 1366 (Fed. Cir. 2003) (“where the plaintiff secures a remand requiring further agency proceedings because of alleged error by the agency, the plaintiff qualifies as a prevailing party . . . without regard to the outcome of the agency proceedings where there has been no retention of jurisdiction by the court”). Similarly, Ms. Harris argues that the Veterans
2008-7124,-7142 11
Court’s December 7, 2006, order granting the joint motion to remand rendered Mr. Phillips a prevailing party for EAJA purposes.
The Veterans Court ruled that because the veteran-claimants died before the mandate issued in their cases, the proper course was for the court to recall the issued judgments and mandates. Because the court’s actions resulted in vacating the decisions in the veterans’ favor, the court held that the veterans no longer qualified as prevailing parties, and it therefore dismissed the EAJA applications. According to the Secretary, the Veterans Court properly recalled its mandates in both cases because the court’s decisions in the veterans’ favor were “rendered a nullity” when the veterans died. But that argument reflects an overly formalistic view of the decisional process that is contrary to the policies underlying the EAJA statute.
In both of the cases before us, the Veterans Court ruled in favor of the veteran-claimants pursuant to a joint motion to remand (in the Phillips/Harris case) or a confession of error by the Secretary (in the Davis/Stanback case). It is clear the parties anticipated that the court would rule in accordance with their agreed-upon disposition, as the court did in both cases. It is likewise clear that no further appellate proceedings were contemplated. In particular, there was no realistic likelihood that the government would seek further review of the expected adverse decisions, and indeed the government did not seek further review in either case. In short, both cases were fully submitted by the time of the veterans’ deaths,3 and in Mr. Davis’s case the court had
3 We reject the government’s argument that Mr. Phillips’s appeal was not “submitted” at the time of his death. An appeal is normally regarded as “submitted” after oral argument, if there is one, or after the time for filing a reply brief, if there is no oral argument. In this case, however, the parties submitted the appeal based on a joint
2008-7124,-7142 12
issued its opinion and judgment; all that remained for the court to do in Mr. Davis’s case at the time of his death was to issue its mandate.
Under those circumstances, the claimant’s death should not deprive his estate or representative of the right to seek an EAJA award. In each case, the attorney’s work was completed and the government’s position was set forth prior to the claimant’s death; the court’s subsequent decision provided the basis for the argument that the claimant was a prevailing party and should be entitled to attorney fees. The fact that it was later discovered that certain events in each appeal occurred after the claimant’s death—the issuance of the court’s mandate in the Davis/Stanback case, and the issuance of the court’s judgment and mandate in the Phillips/Harris case—should not deprive the claimant’s estate of the right to recover fees based on the parties’ conduct that was complete when the case was submitted.
EAJA is a remedial statute. See Scarborough v. Principi, 541 U.S. 401, 406-07 (2004). “The basic federal rule is that an action for a penalty does not survive, though remedial actions do.” Faircloth v. Finesod, 938 F.2d 513, 518 (4th Cir. 1991). The Veterans Court, like other courts, has held that an EAJA claim survives the death of the party to the underlying claim. Cohen v. Brown, 8 Vet. App. 5, 7 (1995); see also Estate of Woll by Woll v. United States, 44 F.3d 464, 467-68 (7th Cir. 1994); In re Davis, 899 F.2d 1136, 1143 n.15 (11th Cir. 1990); Hoffman v. Heckler, 656 F. Supp. 1136, 1137 (E.D. Pa. 1987). The Veterans Court in Cohen found persuasive the reasoning that
motion for remand, and no oral argument or reply brief was contemplated. The case was thus “submitted” at the time the joint motion was filed, because all that remained was for the court to rule on the motion.
2008-7124,-7142 13
“[p]recluding attorneys from receiving attorney’s fees if their clients died before the filing of attorney’s fees motions would discourage attorneys from representing sick people entitled to benefits” and rejected the argument that “the right to a legal fee under [EAJA] dies with the aggrieved party.” 8 Vet. App. at 7. The court concluded that “[i]t is equally true, in the context of veterans benefits cases, that precluding the award of EAJA fees where a veteran has died would discourage representation of disabled, ailing, or aging veterans. Congress did not intend such a result.” Id.
The Secretary argues that Cohen is inapplicable to the Davis/Stanback and Phillips/Harris cases because Mr. Cohen had filed an EAJA claim prior to his death, while Mr. Davis and Mr. Phillips had not. We conclude that neither the rationale of Cohen nor the policies underlying EAJA support adopting that limitation on the general principle that EAJA claims survive the death of the original claimant. To the contrary, there are strong policy reasons for allowing the recovery of attorney fees to which a claimant is entitled even if the EAJA claim is not filed until after the claimant’s death.
If the right to recover fees on an EAJA claim survives the death of the veteran, there is no reason to hold that the veteran must survive until the EAJA application is filed in order for the veteran’s estate to have the right to pursue an EAJA award. Congress enacted EAJA to address the “concern that persons may be deterred from seeking review of, or defending against, unreasonable governmental action because of the expense involved in securing the vindication of their rights.” Sullivan v. Hudson, 490 U.S. 877, 883 (1989) (internal quotation marks omitted); see Congressional Findings and Purposes, Pub. L. No. 96-481, § 202, 94 Stat. 2325 (1980) (codified at 5 U.S.C. § 504 note) (“It is the purpose of this title . . . to diminish the deterrent effect of seeking
2008-7124,-7142 14
review of, or defending against, governmental action.”). To bar EAJA awards when the claimant is entitled to an award but dies before filing an EAJA claim would add to the risks run by attorneys who represent veterans in disability claims, without any apparent competing benefit or justification. As the Senate Committee on the Judiciary explained, “The objective of EAJA is to eliminate financial deterrents to individuals attempting to defend themselves against unjustified Government action. Veterans are exactly the type of individuals the statute was intended to help.” S. Rep. No. 102-342, at 39 (1992) (footnotes omitted); see also Jones v. Brown, 41 F.3d 634, 636 (Fed. Cir. 1994). Therefore, we hold that an EAJA claim survives the death of the veteran, regardless of whether the EAJA application was actually filed by the veteran-claimant prior to his death.
With respect to the issue of substitution, the Veterans Court interpreted this court’s decision in Padgett as limited to cases involving accrued benefits, and held that “[o]nly a qualified accrued-benefits claimant may substitute for a veteran in a compensation claim and receive nunc pro tunc relief.” Accordingly, the court ruled that Ms. Stanback and Ms. Harris could not serve as representatives for purposes of prosecuting the EAJA claims because they were not accrued-benefits claimants. Aside from the point that Ms. Stanback argues that she submitted an informal claim as an accrued-benefits claimant—an argument the Veterans Court has not addressed—there is no need for the representative of an estate to have a separate claim in order to prosecute the deceased claimant’s EAJA claim. Subject to their being determined to be
2008-7124,-7142 15
proper representatives of the claimants’ estates, Ms. Stanback and Ms. Harris are therefore entitled to substitution for purposes of prosecuting their fathers’ EAJA claims.4
III
The judgment in Mr. Davis’s case issued before his death. The relief required in that case is therefore simply to permit the substitution of Ms. Stanback and reinstate the judgment and mandate. The judgment in Mr. Phillips’s case, however, did not issue until after his death. According to the Secretary, that is an additional reason Ms. Harris cannot be substituted for Mr. Phillips. We disagree. Even if the Veterans Court considers it necessary in such a case to recall the mandate, we held in Padgett, in an analogous setting, that nunc pro tunc relief is appropriate when it is necessary to effectuate an otherwise proper substitution. 473 F.3d at 1367. That rule applies equally here. As the Supreme Court has explained, “where the delay in rendering a judgment or a decree arises from the act of the court . . . the judgment or the decree may be entered retrospectively, as of a time when it should have or might have been entered up.” Mitchell v. Overman, 103 U.S. 62, 64-65 (1880). Although the power to issue a judgment nunc pro tunc is equitable in nature, the Court held that “it is the duty of the court to see that the parties shall not suffer by the delay.” Id. at 65. In Padgett, we concluded that granting nunc pro tunc relief in such a case “is consistent with, if not compelled by, the statutory scheme for awarding benefits to veterans and their survivors.” 473 F.3d at 1369. Accordingly, while the Veterans Court may elect to recall
4 The Veterans Court did not address or decide whether Ms. Stanback and Ms. Davis are proper representatives of the veterans’ estates, and to the extent that issue is contested, we leave that issue for the court to decide on remand. In addition, we do not address the merits of the EAJA claims in these two appeals, but leave merits-related issues to the Veterans Court to address on remand.
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2008-7124,-7142 17
its mandate when it discovers that the veteran-claimant died before the issuance of the court’s judgment, the proper course in a case such as Mr. Phillips’s, in which the case was fully submitted prior to the veteran-claimant’s death, is for the court to issue its judgment nunc pro tunc as of the date of death.
REVERSED and REMANDED.

Invisible Wounds, the Current Signature War Wound

Clearly, the real signature wounds of the current wars are the invisible wounds: traumatic brain injuries [TBI]; PTSD; and major depression.

"A study conducted by RAND Health states that traumatic brain injuries are the most common injuries of the wars. It found that about 200 veterans had spinal cord injuries and 1,200 had amputations, but 325,000 had traumatic brain injuries and 300,000 had PTSD."

Full Article at: Soldiers seek a new beginning
By SABINA DANA PLASSE
Express Staff Writer

Raymond Pablo Andalio, from San Diego, Calif., also known as “Doc,” suffers from traumatic brain injury and post-traumatic stress disorder. He attended the Sun Valley Adaptive Sports camp at Pettit Lake last month.

Imagine not being able to form a sentence, routinely forgetting the day of the week or losing your balance every other step. Many soldiers who fought in Iraq and Afghanistan suffer from traumatic brain injuries and post-traumatic stress disorder, conditions that can easily disrupt everyday life. They look healthy because they do not have visible injuries, but their wounds are tucked away inside their brains.

"Since the brain is so complicated, it can have thousands of manifestations from an explosion," said Tom Iselin, executive director of Sun Valley Adaptive Sports, an organization that seeks to improve the lives of people with disabilities through sports and recreation. "The injury the size of a pin can cause you not to see, hear or effect your motor skills."

Since 2007, about 1.65 million U.S. troops have been deployed to the wars in Iraq and Afghanistan. A study conducted by RAND Health states that traumatic brain injuries are the most common injuries of the wars. It found that about 200 veterans had spinal cord injuries and 1,200 had amputations, but 325,000 had traumatic brain injuries and 300,000 had PTSD.

"The general public believes the signature wounds of war are a guy in a wheelchair or a guy with an amputated leg or arm," Iselin said. "But the real signature wounds of war are the invisible wounds—traumatic brain injuries, PTSD and major depression. These figures are shocking to the general public because few people realize how widespread these injures are."

Legalview Starts Traumatic Brain Injury Blog

Full Article at: LegalView Announces Traumatic Brain Injury Blog Updates
September 07, 2009

(PRLEAP.COM) "Legalview.com, the leading provider of personal injury legal support online, is pleased to announce that it will soon begin updating a traumatic brain injury (TBI) blog at http://brain-injury.legalview.com/blog/. The blog will be hosted on their highly accessed TBI information portal. The traumatic brain injury information portal provides access to a wealth of resources, including a brain injury lawyer who can assist individuals with pursuing legal action and potential compensation. The TBI blog will feature the most up-to-date information available on a variety of topics relating to brain injuries: developments in treatment, landmark legal cases for TBI victims, issues affecting those suffering from brain injury or TBI effects, and breakthrough surgery techniques that could be incredibly beneficial to those patients suffering head trauma, just to name a few items on the list.

This traumatic brain injury blog comes at a time when brain injury information could not be more vital. With many veterans returning from military service in Iraq and Afghanistan needing to be treated for serious head injuries, some families find themselves seeking more information on such a serious condition. Additionally, there are many individuals and families seeking information about brain injuries suffered on construction sites, in car crashes, or during a sporting event. Whatever the case may be, Legalview offers such a broad selection of information regarding TBI that any of these searches will reveal applicable information, as well as information regarding the possibility of developing a
brain injury lawsuit if the case is appropriate."

VA has Processed only Half of GI Bill Education Benefits Claims

Full Article at: VA says it has processed less than half of GI bill education benefits

By Bob Brewin 09/23/2009

"The Veterans Affairs Department said on Wednesday that it has processed less than half of the pending education benefits claims veterans are entitled to under the post 9/11 GI bill claims, and veteran groups expressed serious concerns students will not be able to pay their rent next month and colleges will need to wait for tuition payments.

The department has paid more than 61,000 benefits claims totaling $50 million since August, according to a statement. VA also said it processed 503,000 claims totaling $1 billion for other education benefit programs during the same period.

But VA told Nextgov that it still must process another 72,329 claims for post-9/11 GI bill benefits, with 60,071 eligibility determinations and 12,258 enrollment certifications. The department has a total of 172,662 education claims pending, which includes the new GI bill claims as well as other education programs.

VA said since May it has received 277,000 applications from veterans for certificates of eligibility or school enrollment certifications under the new GI bill, which greatly expanded the tuition and housing payments granted to veterans to pay for college under the old GI bill. VA said it has sent certificates to fewer than 200,000 veterans.

The Veterans Benefits Administration, in its latest weekly report, showed it had 268,083 items related to education benefits pending as of Sept. 21."

Veterans Suicide Report Earns Emmy for CBSNews

Full Article at: Veterans Suicide Report Earns Emmy

CBS' Armen Keteyian's Investigation Exposing a Cover-up by the VA Honored by Award

By CBSNews.com

"CBS News first reported on the staggering number of veteran suicides in a report last year. Now, newly-released data shows that vets who get help from the VA are still at risk. Armen Keteyian reports.

(CBS) The "CBS Evening News with Katie Couric" won an Emmy Award last night in the category of Outstanding Investigative Journalism in a Regularly Scheduled Newscast for a series of reports by Chief Investigative Correspondent Armen Keteyian that exposed how officials at the Department of Veterans Affairs tried to cover-up the true risk of suicide among veterans.

Investigative Producer Pia Malbran was responsible for the series along with Senior Producer for the investigative unit Keith Summa, Executive Producer for the CBS Evening News Rick Kaplan, assisted by associate producer Ariel Bashi and editors Craig Crawford, Matt Turek and Catherine Landers."

Three Medical Groups Ask Calif. to Investigate Palo Alto-VA over Veteran Blindness

Full Article at: Calls for Calif. probe after vets lose eyesight

(AP) – 2 hours ago

SAN FRANCISCO — "Three medical groups are asking California to investigate the cases of eight veterans who they say suffered preventable vision loss at a Veterans Administration hospital.

An internal probe by the VA Palo Alto found the veterans may have lost eyesight because of care by optometrists who weren't trained to treat glaucoma.

Two California medical associations and the American Glaucoma Society asked the Department of Consumer Affairs to look further into the cases Wednesday."

Michigan Mobile Legal Clinic for Veterans

Mobile Legal Clinic to Help Veterans
Rina Miller (2009-09-20)

ANN ARBOR, MI (Michigan Radio) - A traveling legal clinic for veterans is coming to Southeast Michigan.

Project Salute is a mobile law office.

It's staffed by attorneys and law students who volunteer their time to help low-income veterans with their disability and pension benefits claims.

Bob Walsh is a professor at the University of Detroit Mercy School of Law. He says the federal system has a backlog of about a million cases.

Walsh says there are still many World War Two, Korean and Vietnam War veterans trying to get their benefits.

"There simply isn't any excuse. There's no excuse for not cleaning up this mess and taking care of these men and women," Walsh says.

Project Salute will visit Wayne on Wednesday, Sept. 23, Highland Park on Saturday, Sept. 26, and Detroit on September 28.

Veterans or their families are encouraged to come in person, but the clinic also offers phone interviews."

VAOIG Finds, Hampton-VA Medical Center Ignored Vet's Stroke

Full Article: VA hospital ignored vet's stroke, report finds


What happened
John Morgan, a Marine veteran, went to the Hampton VA Medical Center in November with symptoms of a stroke. He was sent home without a CAT scan or seeing a neurologist, a report found. The next day, Morgan went to a Norfolk hospital, where he was found to have suffered a stroke. It left him permanently disabled.


By Bill Sizemore
The Virginian-Pilot
© September 20, 2009

"The inspector general of the U.S. Department of Veterans Affairs has found the Hampton VA Medical Center at fault after a doctor there failed to diagnose a Chesapeake veteran's stroke, leaving him permanently disabled.

The investigation also found that the vet's medical record contained lab results from another patient and that the medical center staff turned a deaf ear to his repeated complaints in the weeks afterward."

Army Cost Reduction, Give Bad Discharge to PTSD Vets

Revelations like this reinforce the reasons why veterans need legal representation at every stage of interaction with the military and VA.

Sep-19-2009 17:50
Full Article: Army Gives Bad Discharges to Thousands of PTSD Vets
Gordon Duff Salem-News.com

(CINNCINATTI, Ohio) - "It all began as a Bush era program, promoted by Dr. Sally Satel, the famed "PTSD denialist" putting thousands of soldiers at risk and pushing hundreds to suicide.

Thousands of veterans lost all benefits, GI Bill, medical care and more through Army discharge scam, part of Neo-con "cost saving program"

How did it work? Simple. A very large percentage of combat vets with PTSD are problem drinkers, self medicating in the only way they can and, in the process, getting worse and worse. Redeployments of soldiers needing treatment only adds to the problem.

When vets with severe PTSD demonstrate severe symptoms, including alcohol abuse, they are put in short and unproven "quit" programs with an extremely high failure rate. This is all part of a game, one invented to trap soldiers and cut costs.

Step 2 in the game, the Army "orders" the soldier not to drink, knowing the order itself is absurd. Real treatment for PTSD is denied. When the soldier drinks, and they always do, the soldier is arrested, jailed and charged, now get this, with disobeying a direct order, Article 34 and disrespect to an officer or non-com.

Sometimes even more charges are piled on. In the end, the deal is the same. Leave the army with nothing but years of honorable service now labeled as "dishonorable" or "bad conduct" and face civilian life crushed and abandoned by the country you risked your life to serve.

The Army learned the game from the VA. The VA denied PTSD diagnoses to Vietnam veterans used alcohol, claiming they couldn't be diagnosed. Problem is, almost all PTSD vets use alcohol or drugs as self medication. End result, tens of thousands of Vietnam vets were denied diagnosis, treatment and compensation for decades with thousand dying as a result.

The basis of the Army policy is the Dr. Sally Satel "theory" that PTSD does not exist and all vets are fakers. Her beliefs, fringe "neo-con medicine" comes from a theory that soldiers and veterans are part of a non-productive social class that taxes a nations economic health as soon as they leave a combat zone. The end analysis supports the supposition that a disabled veteran and an illegal alien on welfare contribute exactly the same to the overall welfare of society."

Philly-VA Nursing Home Report Documents Wrong Medications, Maggots, Filth

Full Article: Report: Philly VA Nursing Home Patients Lived in Filth, Inspector saw nurse using wrong medication on patient
Updated 5:46 PM EDT, Sat, Sep 19, 2009

Report on Philadelphia Veterans Affairs, obtained under a FOIA request by the Pittsburgh Tribune-Review, finds that: “There was a significant failure to promote and protect their residents' rights to autonomy and to be treated with respect and dignity,".

"Inspectors found dried blood and feeding tubes on the floors, and one patient's leg had to be amputated after maggots were seen falling from his foot".

"The report by the Wisconsin-based Long Term Care Institute concluded that the facility, the bed count of which has been cut from 240 to 120, “failed to provide a sanitary and safe environment for their residents.” It cites substandard treatment of wound care and “multiple concerns regarding nursing competencies.”"

Cognitive Changes Associated with PTSD

Full Article: Soldiers Who Have Intense Or Traumatic Combat Experiences Exhibit Evidence Of Cognitive Changes

Article Date: 08 Sep 2009 - 3:00 PDT

"In a study of whether neuropsychological changes occur following deployment to war zones, post-traumatic stress disorder appeared to be associated with attention deficits in soldiers one year after returning from Iraq, according to a report in the September issue of Archives of General Psychiatry, one of the JAMA/Archives journals. In addition, intense combat experiences were associated with faster reaction times regardless of how recently a soldier was deployed."

"Previous research has suggested that as soldiers face prolonged stressful and life-threatening situations, changes in their brains direct their cognitive (thinking, learning and memory) resources toward survival, according to background information in the article. For instance, they may respond to dangerous events more quickly while losing the ability to pay attention, learn and remember events not related to combat. "However, it remains unknown whether deployment-related neuropsychological changes persist over time, are associated with stress-related factors (e.g., combat intensity, posttraumatic stress disorder [PTSD] symptoms and depressive reactions) or are better accounted for by demographic and contextual variables," the authors write."

"Greater PTSD symptoms were associated with poorer attention in soldiers tested at one-year follow-up but not in recently returned soldiers," the authors write. "Greater combat intensity was associated with enhanced reaction time, irrespective of time since return." Neither depression nor risk-related variables such as alcohol use and head injury were associated with changes in neuropsychological functioning.

"Recent findings reveal notably high rates of poor mental health outcomes among U.S. service members upon return from Iraq deployment," the authors write. "Our findings additionally highlight the neuropsychological consequences of chronic PTSD symptoms. Although neuropsychological changes were not profound and, for reaction time, can be construed as desirable in the short term, their significance lies in the demonstration that psychiatric symptoms often reflect more extensive biological changes, including those affecting brain functioning."

"A growing literature demonstrates the significant impact of prolonged and repetitive stress on health factors (e.g., immune functioning, cardiovascular disease and other systemic medical illnesses) that can be traced to the biological stress response. Thus, subtle cognitive changes (positive or negative) associated with combat exposure or PTSD may represent a warning sign relevant to long-term health."

Arch Gen Psychiatry. 2009;66[9]:996-1004.

Analysis Suggests PTSD Rate of 35% for Iraq Troops

Full Article: Iraq Troops' PTSD Rate As High As 35 Percent, Analysis Finds

ScienceDaily (Sep. 15, 2009) —

"The Veterans’ Administration should expect a high volume of Iraq veterans seeking treatment of post traumatic stress disorder, with researchers anticipating that the rate among armed forces will be as high as 35%, according to the article “A Dynamic Model for Posttraumatic Stress Disorder Among U.S. Troops in Operation Iraqi Freedom” is by Michael P. Atkinson of the Naval Postgraduate School and Adam Guetz and Lawrence M. Wein of Stanford University.

"The authors combine a dynamic mathematical operations research model with deployment data and PTSD data from the Iraq War, and estimate that the PTSD rate among Iraq War veterans will be approximately 35%, which is roughly double the rate from the raw survey data. This doubling is due to the time lag between the PTSD-generating event and the onset of symptoms and to the fact that many surveyed troops will do subsequent deployments.

Consequently, the authors write, the VA system, which is already experiencing significant delays for PTSD treatment provision, urgently needs to ramp up its mental health resource capacity."

The current issue of Management Insights is available at http://mansci.journal.informs.org/cgi/reprint/55/9/iv.

Australian scientists have discovered a gene that can inhibit the treatment for hepatitis C

Full Article at: Hep C's treatment 'inhibited by gene'

Posted 3 hours 58 minutes ago
ABC News

Australian scientists, from Sydney's Westmead Millenium Institute, have discovered a gene [interferon lambda] that can inhibit the treatment for hepatitis C.

Approximately half of all Australians infected with hepatitis C, do not respond to the current treatment because they carry this interferon lambda gene.

That makes this "a very important discovery - about 200,000 Australians have hepatitis C," according to Dr Booth, one of the researchers.

"The current therapy is the only therapy available, so it'll only work in about half those people.

"The rest are then left vulnerable to the effect of having chronic infection which includes liver disease such as ... cancer of the liver."

Infected Miami Veteran Hires Leesfield & Partners to Represent Him

Full Article at: U.S. Army Veteran Files to Sue Miami VA Facility over HIV Contamination - Represented by Attorney Ira Leesfield from Leesfield & Partners


Veteran infected at Miami-VA "hires Ira Leesfield from Miami-based Leesfield & Partners personal injury law firm to represent him in a lawsuit against the Department of Veteran Affairs over HIV contamination contracted during a routine colonoscopy procedure", seeking 20 million in damages.

A U.S. Army veteran "filed claim Form 95 (SF95) on July 20th to the Miami VA Health Care Systems Director at the Department of Medical Affairs Medical Center in Miami, Florida. The claim alleges the Miami Veterans Administration facility failed to properly clean and maintain its medical equipment, and failed to adopt and implement proper policies, protocols and procedures that would have prevented the infection."

Combat Stress, PTSD, Psychological Wounds Persisit Over Time

Full article at: Combat stress can cause persistent attention problems
September 7, 2009 by Shari Roan

Researchers at Veterans Affairs Boston Healthcare System and Boston University studied 268 men and women who served in Iraq between 2003 and 2006. "They found that soldiers with post-traumatic stress disorder had poorer attention at the one-year mark, but this link was not found in soldiers who recently returned from deployment.

The study provides more evidence that the psychological wounds of war may persist and appear in various manifestations over time.

"Our finding indicating that the relationship between PTSD and attentional impairment is minimal early on but strengthens over time is consistent with previous research," the authors wrote. The study also demonstrates "that psychiatric symptoms often reflect more extensive biological changes, including those affecting brain function."

The study is published in the Archives of General Psychiatry.

Widows Win at Federal Circuit, SBP-DIC Offset

Three widows argued successfully before the U.S. Court of Federal Claims, and now before a three-judge panel of the U.S. Court of Appeals for the Federal Circuit, that the plain meaning of the Veterans Benefits Act of 2003 exempted them and any other widow who remarries after age 57 from the SBP-DIC offset.

DIC, a tax-exempt payment, is payable when a military member dies on active duty or dies in retirement from a service-connected condition. But a surviving spouse who draws DIC sees her SBP reduced by an equal amount.


Full Article:WIDOWS' SBP WIN UPHELD

-- A federal appeals court has upheld a lower court's ruling that the Defense Department unlawfully withheld from three military widows -- and probably 400 others -- full survivor benefit payments owed to them since Dec. 16, 2003.

On that date, the Veterans Benefits Act of 2003 (Public Law 108-183) became law and restored eligibility for VA Dependency and Indemnity Compensation (DIC) to military surviving spouses who remarry after age 57.

But three widows argued successfully before the U.S. Court of Federal Claims, and now before a three-judge panel of the U.S. Court of Appeals for the Federal Circuit, that the 2003 law did something more:

It exempted this same small group of widows from the onerous dollar-for-dollar reduction in military Survivor Benefit Plan (SBP) payments that occurs when a survivor spouse chooses to receive DIC.

DIC, a tax-exempt payment, is payable when a military member dies on active duty or dies in retirement from a service-connected condition. But a surviving spouse who draws DIC sees her SBP reduced by an equal amount.

Patricia A. Sharp, Margaret M. Haverkamp and Iva Dean Rogers argued that the plain meaning of the 2003 statute exempted them and any other widow who remarries after age 57 from the SBP-DIC offset.

The appeals court agreed, calling the government's arguments to the contrary "unconvincing," including its contention that Congress would not have targeted so small a group of widows for SBP offset relief.

"Perhaps Congress intended to encourage marriage for older surviving spouses," said the appeals courts in its 11-page decision. "Perhaps section 1311(e) simply represents a first step in an effort to eventually enact full repeal. After all, the service member paid for both benefits: SBP with premiums, DIC with his life."

"Halleluiah," said Sharp when told of the decision Aug. 26. The remarried widow of an Army brigadier general said she is owed about $96,000 in forfeited SBP. "I have reinstated confidence in the government of the United States of America for making laws and abiding by them."

Michael R. Franzinger, a lawyer for the widows, said up to 400 surviving spouses could see more than $35 million in SBP restored over 10 years if the government decides not to appeal either to all 12 judges on the Federal Circuit appeals court or to the U.S. Supreme Court.

Government attorneys had indicated in the lower court that if the ruling was upheld on appeal, Defense officials would work to find and pay all impacted widows rather than require them to apply for benefits owed."