Full Article at: Claims against Phila. VA up to $58 million
By Josh Goldstein
"Injured veterans and their spouses have filed 31 claims against the U.S. Department of Veterans Affairs for botched prostate cancer care at the Philadelphia VA Medical Center, internal records show.
Twenty-seven men who received prostate brachytherapy at the Philadelphia VA and four veterans' wives are seeking a total $58 million in damages for radiation errors at the hospital from 2002 to 2008, according to documents obtained by The Inquirer through a Freedom of Information Act request."
Wednesday, November 25, 2009
TDIU Pled by Pro Se Veteran, Case, Jackson v. Shinseki, FedCir.
This case presents two items which are of interest, total disability rating based on individual unemployability [“TDIU”] pled by a pro se veteran and what constitutes a "case".
Jackson v. Shinseki, No. 2009-7015 (DECIDED: November 25, 2009)
============================
Last, in Comer v. Peake, 552 F.3d 1362, 1367 (Fed. Cir. 2009), this court held that “a claim to TDIU benefits is not a free-standing claim that must be pled with specificity.” But, as further clarification, this court went on to explain that it could only be implicitly raised where “a pro se veteran, who presents cogent evidence of unemployability, seeks to obtain a higher disability rating.” Id. (emphasis added). Similarly, in Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001), a decision heavily cited in Comer, this court further instructed the VA to consider any implicit TDIU claim but only where the veteran “submits evidence of unemployability.” Together, Comer and Roberson make clear that a claim for TDIU can be implicitly raised only where the veteran proffers some evidence of unemployability.
=================================
While this court accepts that a TDIU claim may under certain circumstances necessarily be encompassed in a veteran’s claim for increased benefits despite not being expressly raised, those circumstances are absent here. To raise an informal TDIU claim, a veteran must make a claim for the highest rating possible, submit evidence of medical disability, and submit evidence of unemployability. See Roberson, 251 F.3d at 1384 (“Once a veteran submits evidence of a medical disability and makes a claim for the highest rating possible, and additionally submits evidence of unemployability, the ‘identify the benefit sought’ requirement of 38 C.F.R. § 3.155(a) is met and the VA must consider TDIU.”).
===================================
This court has explained that a “case” within the meaning of Section 5904(c) encompasses “all potential claims raised by the evidence, applying all relevant laws and regulations, regardless of whether the claim is specifically labeled . . . .” Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001) (emphasis added).
==================================
Indeed, 38 C.F.R. § 20.202 expressly requires the Board to construe an appellant’s arguments “in a liberal manner for purposes of determining whether they raise issues on appeal.”
================================
United States Court of Appeals for the Federal Circuit
2009-7015
FRANCIS M. JACKSON,
Claimant-Appellant,
v.
ERIC K. SHINSEKI, Secretary of Veterans Affairs,
Respondent-Appellee.
Kenneth M. Carpenter, Carpenter, Chartered, of Topeka, Kansas, argued for claimant-appellant.
Lauren A. Weeman, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, argued for respondent-appellee. On the brief were Michael F. Hertz, Deputy Assistant Attorney General, Jeanne E. Davidson, Director, Kirk T. Manhardt, Assistant Director, and Scott D. Austin, Senior Trial Attorney. Of counsel on the brief were David R. McLenachen, Deputy Assistant General Counsel, and Amanda R. Blackmon, Attorney, Office of the General Counsel, United States Department of Veterans Affairs, of Washington, DC.
Appealed from: United States Court of Appeals for Veterans Claims
Judge Robert N. Davis
UNITED STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT
2009-7015
FRANCIS M. JACKSON,
Claimant-Appellant,
v.
ERIC K. SHINSEKI, Secretary of Veterans Affairs,
Respondent-Appellee.
Appeal from the United States Court of Appeals for Veterans Claims in 06-0823, Judge Robert N. Davis.
___________________________
DECIDED: November 25, 2009
___________________________
Before RADER, BRYSON, and LINN, Circuit Judges.
RADER, Circuit Judge.
The United States Court of Appeals for Veterans Claims (the “Veterans Court”) held that attorney Francis M. Jackson was not entitled to fees for his representation of veteran Gerald Easler in connection with a service disability claim, which ultimately included a total disability rating based on individual unemployability (“TDIU”). Because Mr. Easler’s claim did not include the requisite evidence to support a TDIU claim before the Board of Veterans Appeals (the “Board”), Mr. Easler’s claim was not a part of the “case” as defined in 38 U.S.C. § 5904(c). For that reason, Mr. Jackson does not qualify for fees and this court therefore affirms.
I.
In January 2000, a Department of Veterans Affairs regional office (the “RO”) granted Mr. Easler an increased rating from twenty to forty percent for his lower back disorder. Mr. Easler then filed a supplementary claim seeking an increased rating on his lower back disorder and a new disability rating for a cervical spine disorder. The Board rejected both requests in July 2000.
Mr. Easler then hired Mr. Jackson on a contingency fee basis to prosecute his appeal to the Veterans Court. Under that contingency fee agreement, Mr. Jackson would receive a fee of twenty percent of “the total amount of any past-due benefits awarded on the basis of [Mr. Easler’s] claim before [the Veterans Administration (the ‘VA’)].” The VA would pay Mr. Jackson directly from the benefits recovered by Mr. Easler.
Mr. Jackson then filed an appeal to the Veterans Court on Mr. Easler’s behalf. The Veterans Court shortly thereafter granted a joint motion to vacate the Board’s opinion and remand. During the ensuing proceedings, Mr. Easler and Mr. Jackson entered into a second contingency fee agreement covering all future representations before the Veterans Court and subsequent remands to the Board and RO. The second agreement also provided for an automatic deduction of Mr. Jackson’s fee from any past-due benefits recovered by Mr. Easler.
On a subsequent remand to the RO, Mr. Easler filed a separate claim for depressive disorder. The RO eventually granted that claim assigning a thirty percent disability rating. Mr. Jackson then contacted the RO to inquire about Mr. Easler’s prospect of qualifying for TDIU benefits as a result of this depressive disorder and its
2009-7015 2
accompanying disability rating. The RO adopted Mr. Jackson’s suggestion and granted TDIU.
Under Mr. Jackson’s contingency fee agreements, the VA withheld $7,412.95- twenty percent of the past-due benefits collected-from Mr. Easler. But before disbursal of that amount, the VA informed Mr. Jackson that he was not eligible to receive any past-due benefits relating to TDIU because that issue had not been the subject of a final Board decision per 38 U.S.C. § 5904(c). Mr. Jackson appealed to the Board, which affirmed the RO’s decision:
In this case, there has been no final Board decision on the issue for which the appellant seeks payment, i.e., entitlement to a TDIU. The Board’s decision of July 2000 addressed the veteran’s appeal on the issues of service connection for a cervical spine disorder and increased ratings for a low back disability.
The Board also noted that “the evidence of record [did] not support a finding of unemployability”-a necessary element of TDIU-at the time of the Board’s July 2000 decision.
On appeal to the Veterans Court, Mr. Jackson argued that he had presented Mr. Easler’s TDIU claim to the Board prior to the July 2000 decision because it was reasonably and inherently related to Mr. Easler’s increased rating claim for lower back disorder. The Veterans Court rejected that argument:
To raise an informal TDIU-rating claim, the veteran must make a claim for the highest rating possible, submit evidence of medical disability, and submit evidence of unemployability. The Court concludes that although the veteran made a claim for the highest rating possible and submitted evidence of a medical disability, he did not submit evidence of unemployability. . . . Here, evidence does not suggest the veteran was unemployable. Indeed, it suggests the opposite.
2009-7015 3
After the Veterans Court denied a subsequent motion for reconsideration, Mr. Jackson timely appealed.
II.
This court’s jurisdiction to review decisions of the Veterans Court is limited. This court may only review questions relating to the interpretation of constitutional and statutory provisions. 38 U.S.C. § 7292(c). This court has no jurisdiction to review questions of fact, or the application of law to a particular set of facts, unless a constitutional issue is presented. Id. § 7292(d)(2).
Section 5904(c) provides in pertinent part:
[A] fee may not be charged, allowed, or paid for services of agents and attorneys with respect to services provided before the date on which the Board of Veterans' Appeals first makes a final decision in the case. Such a fee may be charged, allowed, or paid in the case of services provided after such date only if an agent or attorney is retained with respect to such case before the end of the one-year period beginning on that date.
38 U.S.C. § 5904(c)(1) (2000) (emphasis added). This court has explained that a “case” within the meaning of Section 5904(c) encompasses “all potential claims raised by the evidence, applying all relevant laws and regulations, regardless of whether the claim is specifically labeled . . . .” Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001) (emphasis added). In that vein, this court has repeatedly endorsed liberal and broad constructions of veterans’ claims. See, e.g., Gambill v. Shinseki, 576 F.3d 1307, 1316 (Fed. Cir. 2009) (“Like the regional office, the Board is required to construe all of the veteran's arguments in a liberal manner.” (citations and internal quotation marks omitted)). Indeed, 38 C.F.R. § 20.202 expressly requires the Board to construe an appellant’s arguments “in a liberal manner for purposes of determining whether they raise issues on appeal.”
2009-7015 4
This case asks whether Mr. Jackson presented a TDIU claim as part of Mr. Easler’s “case” for purposes of Section 5904(c) at the time of the Board’s July 2000 decision. If TDIU was a part of Mr. Easler’s case, then Mr. Jackson is entitled to attorney’s fees related to the payment of TDIU benefits. If it was not, the Board had yet to make “a final decision” on the matter and Mr. Jackson has no entitlement to attorney’s fees.
Before the Veterans Court and on appeal to this court, Mr. Jackson acknowledges that Mr. Easler did not expressly raise a claim for TDIU. Nonetheless, according to Mr. Jackson, a TDIU claim was encompassed by or inherent in the original two claims presented to the Board before the July 2000 decision. In other words, Mr. Jackson contends that a TDIU claim is implicitly raised before the Board where a veteran seeks an increased rating based on either a previous service connection injury or a new disability claim.
While this court accepts that a TDIU claim may under certain circumstances necessarily be encompassed in a veteran’s claim for increased benefits despite not being expressly raised, those circumstances are absent here. To raise an informal TDIU claim, a veteran must make a claim for the highest rating possible, submit evidence of medical disability, and submit evidence of unemployability. See Roberson, 251 F.3d at 1384 (“Once a veteran submits evidence of a medical disability and makes a claim for the highest rating possible, and additionally submits evidence of unemployability, the ‘identify the benefit sought’ requirement of 38 C.F.R. § 3.155(a) is met and the VA must consider TDIU.”). In this case, as the Board determined before the July 2000 ruling, Mr. Easler’s claim included no evidence of unemployability.
2009-7015 5
Indeed, as the Veterans Court explained, the evidence on record “suggest[ed] the opposite”-i.e., that Mr. Easler was employed. This court may not review that factual finding. 38 U.S.C. § 7292(d)(2). Without any modicum of evidence suggesting Mr. Easler’s unemployability, and with the record suggesting the opposite, this court cannot say that TDIU was part of the “case” before the Board’s July 2000 decision. Thus, the Board was entirely correct to refuse to disburse the attorney’s fees to Mr. Jackson, but instead to send the full amount to the veteran.
The decisions relied on by Mr. Jackson do not support his argument. In Stanley v. Principi, 283 F.3d 1350, 1352 (Fed. Cir. 2002), the RO denied the veteran’s claim for service connection of a cervical spine disability. The veteran did not appeal, resulting in a final decision. Id. The RO then denied the veteran’s application to reopen the claim without the submission of new and material evidence. Id. The veteran then hired an attorney, Mr. James Stanley, to prosecute his claims on a contingency fee basis. Id. at 1353. On appeal, the Board vacated its finding because new and material evidence had been submitted by the veteran. Id. In its decision, the Board did not address TDIU. Id. The Board then remanded to the RO where the veteran added a claim for TDIU. Id. The RO eventually granted the veteran’s claim for service connection and his accompanying claim for TDIU benefits. Id. The Veterans Court, nonetheless, denied Mr. Stanley any attorney’s fees finding that no “final decision” had been issued by the Board on either the cervical spine or TDIU claims. Id.
This court vacated because: “attorneys' fees are available in connection with the proceedings associated with reopening a claim after the Board first makes a final decision with respect to a particular issue in the reopening proceedings, even if the
2009-7015 6
decision is not appealable.” Id. at 1359. Despite Stanley’s reference to the broad implications behind Section 5904(c), the decision was limited to only the cervical spine claim. It did not include the claim for TDIU benefits. As to that issue, this court expressly found no entitlement to attorney’s fees because it had not been properly raised by the veteran prior to the appeal to the Board. Id. This case presents facts similar to the TDIU claim in Stanley. No doubt, the TDIU claim in Stanley, as here, was directly related to and stemmed from the veteran’s service connection claim. Notwithstanding that fact, Mr. Stanley, like Mr. Jackson, was not entitled to attorney’s fees.
In Carpenter v. Nicholson, 452 F.3d 1379, 1380 (Fed. Cir. 2006), the veteran originally received a one hundred percent disability rating, which was later reduced by the RO to sixty percent. The veteran then twice brought claims to adjust his disability rating back to one hundred percent. Id. Both claims were denied by the Board. Id. Kenneth Carpenter was then hired as counsel. Id. at 1381. On appeal to the Veterans Court, the case was remanded for error based on a joint motion filed by the parties. Id. Mr. Carpenter’s efforts on remand were successful and the veteran was again awarded a one hundred percent disability rating. Id. The veteran then brought a separate claim seeking an earlier effective date on the ground that the earlier RO decision contained clear and unmistakable error. Id. The RO denied that claim, but on appeal the Board reversed and granted the veteran his requested effective date. Id. Despite his efforts, the Board informed Mr. Carpenter that he was not entitled to attorney’s fees for services rendered relating to the earlier effective date because “no final decision” had been made by the Board on that issue. Id. at 1382.
2009-7015 7
In reversing the Board’s decision, this court found that the Board had already squarely decided the question of effective date because it was necessarily encompassed in the veteran’s service connection claim. Id. at 1384. In other words, because proving an effective date is a necessary component of establishing a disability rating, the effective date of disability was an issue presented in the “case” when the Board considered the overall question of disability. Unlike Carpenter, however, establishing entitlement to TDIU is not a prerequisite to obtaining an increased disability rating. Significantly, there is an essential element of TDIU setting it separate and apart. That element is unemployability-the very element that Mr. Easler’s claim lacked.
Last, in Comer v. Peake, 552 F.3d 1362, 1367 (Fed. Cir. 2009), this court held that “a claim to TDIU benefits is not a free-standing claim that must be pled with specificity.” But, as further clarification, this court went on to explain that it could only be implicitly raised where “a pro se veteran, who presents cogent evidence of unemployability, seeks to obtain a higher disability rating.” Id. (emphasis added). Similarly, in Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001), a decision heavily cited in Comer, this court further instructed the VA to consider any implicit TDIU claim but only where the veteran “submits evidence of unemployability.” Together, Comer and Roberson make clear that a claim for TDIU can be implicitly raised only where the veteran proffers some evidence of unemployability. The record in this case contains no such evidence before the Board’s July 2000 decision. As such, TDIU was not a part of the “case” as required by Section 5904(c).
2009-7015 8 2009-7015 9
III.
For the above-stated reasons, the decision of the Veterans Court to deny Mr. Jackson attorney’s fees in connection with Mr. Easler’s TDIU claim is affirmed. Because no evidence of Mr. Easler’s unemployability was submitted before the Board’s July 2000 decision, the “case” before the Board at that time did not include a claim for TDIU benefits and thus was not a compensable fee under Section 5904(c).
AFFIRMED
COSTS
Each party shall bear its own costs.
Jackson v. Shinseki, No. 2009-7015 (DECIDED: November 25, 2009)
============================
Last, in Comer v. Peake, 552 F.3d 1362, 1367 (Fed. Cir. 2009), this court held that “a claim to TDIU benefits is not a free-standing claim that must be pled with specificity.” But, as further clarification, this court went on to explain that it could only be implicitly raised where “a pro se veteran, who presents cogent evidence of unemployability, seeks to obtain a higher disability rating.” Id. (emphasis added). Similarly, in Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001), a decision heavily cited in Comer, this court further instructed the VA to consider any implicit TDIU claim but only where the veteran “submits evidence of unemployability.” Together, Comer and Roberson make clear that a claim for TDIU can be implicitly raised only where the veteran proffers some evidence of unemployability.
=================================
While this court accepts that a TDIU claim may under certain circumstances necessarily be encompassed in a veteran’s claim for increased benefits despite not being expressly raised, those circumstances are absent here. To raise an informal TDIU claim, a veteran must make a claim for the highest rating possible, submit evidence of medical disability, and submit evidence of unemployability. See Roberson, 251 F.3d at 1384 (“Once a veteran submits evidence of a medical disability and makes a claim for the highest rating possible, and additionally submits evidence of unemployability, the ‘identify the benefit sought’ requirement of 38 C.F.R. § 3.155(a) is met and the VA must consider TDIU.”).
===================================
This court has explained that a “case” within the meaning of Section 5904(c) encompasses “all potential claims raised by the evidence, applying all relevant laws and regulations, regardless of whether the claim is specifically labeled . . . .” Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001) (emphasis added).
==================================
Indeed, 38 C.F.R. § 20.202 expressly requires the Board to construe an appellant’s arguments “in a liberal manner for purposes of determining whether they raise issues on appeal.”
================================
United States Court of Appeals for the Federal Circuit
2009-7015
FRANCIS M. JACKSON,
Claimant-Appellant,
v.
ERIC K. SHINSEKI, Secretary of Veterans Affairs,
Respondent-Appellee.
Kenneth M. Carpenter, Carpenter, Chartered, of Topeka, Kansas, argued for claimant-appellant.
Lauren A. Weeman, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, argued for respondent-appellee. On the brief were Michael F. Hertz, Deputy Assistant Attorney General, Jeanne E. Davidson, Director, Kirk T. Manhardt, Assistant Director, and Scott D. Austin, Senior Trial Attorney. Of counsel on the brief were David R. McLenachen, Deputy Assistant General Counsel, and Amanda R. Blackmon, Attorney, Office of the General Counsel, United States Department of Veterans Affairs, of Washington, DC.
Appealed from: United States Court of Appeals for Veterans Claims
Judge Robert N. Davis
UNITED STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT
2009-7015
FRANCIS M. JACKSON,
Claimant-Appellant,
v.
ERIC K. SHINSEKI, Secretary of Veterans Affairs,
Respondent-Appellee.
Appeal from the United States Court of Appeals for Veterans Claims in 06-0823, Judge Robert N. Davis.
___________________________
DECIDED: November 25, 2009
___________________________
Before RADER, BRYSON, and LINN, Circuit Judges.
RADER, Circuit Judge.
The United States Court of Appeals for Veterans Claims (the “Veterans Court”) held that attorney Francis M. Jackson was not entitled to fees for his representation of veteran Gerald Easler in connection with a service disability claim, which ultimately included a total disability rating based on individual unemployability (“TDIU”). Because Mr. Easler’s claim did not include the requisite evidence to support a TDIU claim before the Board of Veterans Appeals (the “Board”), Mr. Easler’s claim was not a part of the “case” as defined in 38 U.S.C. § 5904(c). For that reason, Mr. Jackson does not qualify for fees and this court therefore affirms.
I.
In January 2000, a Department of Veterans Affairs regional office (the “RO”) granted Mr. Easler an increased rating from twenty to forty percent for his lower back disorder. Mr. Easler then filed a supplementary claim seeking an increased rating on his lower back disorder and a new disability rating for a cervical spine disorder. The Board rejected both requests in July 2000.
Mr. Easler then hired Mr. Jackson on a contingency fee basis to prosecute his appeal to the Veterans Court. Under that contingency fee agreement, Mr. Jackson would receive a fee of twenty percent of “the total amount of any past-due benefits awarded on the basis of [Mr. Easler’s] claim before [the Veterans Administration (the ‘VA’)].” The VA would pay Mr. Jackson directly from the benefits recovered by Mr. Easler.
Mr. Jackson then filed an appeal to the Veterans Court on Mr. Easler’s behalf. The Veterans Court shortly thereafter granted a joint motion to vacate the Board’s opinion and remand. During the ensuing proceedings, Mr. Easler and Mr. Jackson entered into a second contingency fee agreement covering all future representations before the Veterans Court and subsequent remands to the Board and RO. The second agreement also provided for an automatic deduction of Mr. Jackson’s fee from any past-due benefits recovered by Mr. Easler.
On a subsequent remand to the RO, Mr. Easler filed a separate claim for depressive disorder. The RO eventually granted that claim assigning a thirty percent disability rating. Mr. Jackson then contacted the RO to inquire about Mr. Easler’s prospect of qualifying for TDIU benefits as a result of this depressive disorder and its
2009-7015 2
accompanying disability rating. The RO adopted Mr. Jackson’s suggestion and granted TDIU.
Under Mr. Jackson’s contingency fee agreements, the VA withheld $7,412.95- twenty percent of the past-due benefits collected-from Mr. Easler. But before disbursal of that amount, the VA informed Mr. Jackson that he was not eligible to receive any past-due benefits relating to TDIU because that issue had not been the subject of a final Board decision per 38 U.S.C. § 5904(c). Mr. Jackson appealed to the Board, which affirmed the RO’s decision:
In this case, there has been no final Board decision on the issue for which the appellant seeks payment, i.e., entitlement to a TDIU. The Board’s decision of July 2000 addressed the veteran’s appeal on the issues of service connection for a cervical spine disorder and increased ratings for a low back disability.
The Board also noted that “the evidence of record [did] not support a finding of unemployability”-a necessary element of TDIU-at the time of the Board’s July 2000 decision.
On appeal to the Veterans Court, Mr. Jackson argued that he had presented Mr. Easler’s TDIU claim to the Board prior to the July 2000 decision because it was reasonably and inherently related to Mr. Easler’s increased rating claim for lower back disorder. The Veterans Court rejected that argument:
To raise an informal TDIU-rating claim, the veteran must make a claim for the highest rating possible, submit evidence of medical disability, and submit evidence of unemployability. The Court concludes that although the veteran made a claim for the highest rating possible and submitted evidence of a medical disability, he did not submit evidence of unemployability. . . . Here, evidence does not suggest the veteran was unemployable. Indeed, it suggests the opposite.
2009-7015 3
After the Veterans Court denied a subsequent motion for reconsideration, Mr. Jackson timely appealed.
II.
This court’s jurisdiction to review decisions of the Veterans Court is limited. This court may only review questions relating to the interpretation of constitutional and statutory provisions. 38 U.S.C. § 7292(c). This court has no jurisdiction to review questions of fact, or the application of law to a particular set of facts, unless a constitutional issue is presented. Id. § 7292(d)(2).
Section 5904(c) provides in pertinent part:
[A] fee may not be charged, allowed, or paid for services of agents and attorneys with respect to services provided before the date on which the Board of Veterans' Appeals first makes a final decision in the case. Such a fee may be charged, allowed, or paid in the case of services provided after such date only if an agent or attorney is retained with respect to such case before the end of the one-year period beginning on that date.
38 U.S.C. § 5904(c)(1) (2000) (emphasis added). This court has explained that a “case” within the meaning of Section 5904(c) encompasses “all potential claims raised by the evidence, applying all relevant laws and regulations, regardless of whether the claim is specifically labeled . . . .” Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001) (emphasis added). In that vein, this court has repeatedly endorsed liberal and broad constructions of veterans’ claims. See, e.g., Gambill v. Shinseki, 576 F.3d 1307, 1316 (Fed. Cir. 2009) (“Like the regional office, the Board is required to construe all of the veteran's arguments in a liberal manner.” (citations and internal quotation marks omitted)). Indeed, 38 C.F.R. § 20.202 expressly requires the Board to construe an appellant’s arguments “in a liberal manner for purposes of determining whether they raise issues on appeal.”
2009-7015 4
This case asks whether Mr. Jackson presented a TDIU claim as part of Mr. Easler’s “case” for purposes of Section 5904(c) at the time of the Board’s July 2000 decision. If TDIU was a part of Mr. Easler’s case, then Mr. Jackson is entitled to attorney’s fees related to the payment of TDIU benefits. If it was not, the Board had yet to make “a final decision” on the matter and Mr. Jackson has no entitlement to attorney’s fees.
Before the Veterans Court and on appeal to this court, Mr. Jackson acknowledges that Mr. Easler did not expressly raise a claim for TDIU. Nonetheless, according to Mr. Jackson, a TDIU claim was encompassed by or inherent in the original two claims presented to the Board before the July 2000 decision. In other words, Mr. Jackson contends that a TDIU claim is implicitly raised before the Board where a veteran seeks an increased rating based on either a previous service connection injury or a new disability claim.
While this court accepts that a TDIU claim may under certain circumstances necessarily be encompassed in a veteran’s claim for increased benefits despite not being expressly raised, those circumstances are absent here. To raise an informal TDIU claim, a veteran must make a claim for the highest rating possible, submit evidence of medical disability, and submit evidence of unemployability. See Roberson, 251 F.3d at 1384 (“Once a veteran submits evidence of a medical disability and makes a claim for the highest rating possible, and additionally submits evidence of unemployability, the ‘identify the benefit sought’ requirement of 38 C.F.R. § 3.155(a) is met and the VA must consider TDIU.”). In this case, as the Board determined before the July 2000 ruling, Mr. Easler’s claim included no evidence of unemployability.
2009-7015 5
Indeed, as the Veterans Court explained, the evidence on record “suggest[ed] the opposite”-i.e., that Mr. Easler was employed. This court may not review that factual finding. 38 U.S.C. § 7292(d)(2). Without any modicum of evidence suggesting Mr. Easler’s unemployability, and with the record suggesting the opposite, this court cannot say that TDIU was part of the “case” before the Board’s July 2000 decision. Thus, the Board was entirely correct to refuse to disburse the attorney’s fees to Mr. Jackson, but instead to send the full amount to the veteran.
The decisions relied on by Mr. Jackson do not support his argument. In Stanley v. Principi, 283 F.3d 1350, 1352 (Fed. Cir. 2002), the RO denied the veteran’s claim for service connection of a cervical spine disability. The veteran did not appeal, resulting in a final decision. Id. The RO then denied the veteran’s application to reopen the claim without the submission of new and material evidence. Id. The veteran then hired an attorney, Mr. James Stanley, to prosecute his claims on a contingency fee basis. Id. at 1353. On appeal, the Board vacated its finding because new and material evidence had been submitted by the veteran. Id. In its decision, the Board did not address TDIU. Id. The Board then remanded to the RO where the veteran added a claim for TDIU. Id. The RO eventually granted the veteran’s claim for service connection and his accompanying claim for TDIU benefits. Id. The Veterans Court, nonetheless, denied Mr. Stanley any attorney’s fees finding that no “final decision” had been issued by the Board on either the cervical spine or TDIU claims. Id.
This court vacated because: “attorneys' fees are available in connection with the proceedings associated with reopening a claim after the Board first makes a final decision with respect to a particular issue in the reopening proceedings, even if the
2009-7015 6
decision is not appealable.” Id. at 1359. Despite Stanley’s reference to the broad implications behind Section 5904(c), the decision was limited to only the cervical spine claim. It did not include the claim for TDIU benefits. As to that issue, this court expressly found no entitlement to attorney’s fees because it had not been properly raised by the veteran prior to the appeal to the Board. Id. This case presents facts similar to the TDIU claim in Stanley. No doubt, the TDIU claim in Stanley, as here, was directly related to and stemmed from the veteran’s service connection claim. Notwithstanding that fact, Mr. Stanley, like Mr. Jackson, was not entitled to attorney’s fees.
In Carpenter v. Nicholson, 452 F.3d 1379, 1380 (Fed. Cir. 2006), the veteran originally received a one hundred percent disability rating, which was later reduced by the RO to sixty percent. The veteran then twice brought claims to adjust his disability rating back to one hundred percent. Id. Both claims were denied by the Board. Id. Kenneth Carpenter was then hired as counsel. Id. at 1381. On appeal to the Veterans Court, the case was remanded for error based on a joint motion filed by the parties. Id. Mr. Carpenter’s efforts on remand were successful and the veteran was again awarded a one hundred percent disability rating. Id. The veteran then brought a separate claim seeking an earlier effective date on the ground that the earlier RO decision contained clear and unmistakable error. Id. The RO denied that claim, but on appeal the Board reversed and granted the veteran his requested effective date. Id. Despite his efforts, the Board informed Mr. Carpenter that he was not entitled to attorney’s fees for services rendered relating to the earlier effective date because “no final decision” had been made by the Board on that issue. Id. at 1382.
2009-7015 7
In reversing the Board’s decision, this court found that the Board had already squarely decided the question of effective date because it was necessarily encompassed in the veteran’s service connection claim. Id. at 1384. In other words, because proving an effective date is a necessary component of establishing a disability rating, the effective date of disability was an issue presented in the “case” when the Board considered the overall question of disability. Unlike Carpenter, however, establishing entitlement to TDIU is not a prerequisite to obtaining an increased disability rating. Significantly, there is an essential element of TDIU setting it separate and apart. That element is unemployability-the very element that Mr. Easler’s claim lacked.
Last, in Comer v. Peake, 552 F.3d 1362, 1367 (Fed. Cir. 2009), this court held that “a claim to TDIU benefits is not a free-standing claim that must be pled with specificity.” But, as further clarification, this court went on to explain that it could only be implicitly raised where “a pro se veteran, who presents cogent evidence of unemployability, seeks to obtain a higher disability rating.” Id. (emphasis added). Similarly, in Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001), a decision heavily cited in Comer, this court further instructed the VA to consider any implicit TDIU claim but only where the veteran “submits evidence of unemployability.” Together, Comer and Roberson make clear that a claim for TDIU can be implicitly raised only where the veteran proffers some evidence of unemployability. The record in this case contains no such evidence before the Board’s July 2000 decision. As such, TDIU was not a part of the “case” as required by Section 5904(c).
2009-7015 8 2009-7015 9
III.
For the above-stated reasons, the decision of the Veterans Court to deny Mr. Jackson attorney’s fees in connection with Mr. Easler’s TDIU claim is affirmed. Because no evidence of Mr. Easler’s unemployability was submitted before the Board’s July 2000 decision, the “case” before the Board at that time did not include a claim for TDIU benefits and thus was not a compensable fee under Section 5904(c).
AFFIRMED
COSTS
Each party shall bear its own costs.
Tuesday, November 24, 2009
Lay Evidence, PTSD Claims, McLendon v. Nicholson, No. 04-0185
Came across this informative site which looks at lay evidence, and PTSD.
This case may prove to be very important because it suggests, for example, that a combat veteran who has nightmares and flashbacks of combat would be entitled to a C&P exam to determine if the veteran has PTSD as a result of combat, if there is no PTSD exam in the record and if the veteran filed a claim for service connection for PTSD claiming combat stressors and stating that the symptoms began after service"
Full Article at: www.wvajustice.com
Richard Paul Cohen, Esq. Attorney at Law
"In that case, McClendon v Nicholson,04 0185, June 5,2006, the Veterans Court noted that the VA must provide a medical exam if there is 1) evidence of a disability or recurrent symptoms of a disability, and 2) evidence establishing that an event, injury or disease occurred in-service, and 3) an indication that the disability or symptoms may be associated with military service, and 4) insufficient medical evidence to make a decision on the claim.
In listing those things which are sufficient to “indicate” that a current disability “maybe associated” with military service, the Court first observed that vague or equivocal medical evidence (which would not be sufficient to prove that there was a link between a current disability and an in-service event) might be sufficient to indicate an association. Likewise, credible evidence of continuation of symptoms such as pain or other symptoms capable of lay observation might be sufficient.
The Court implied that examples of equivocal medical evidence which might be sufficient to indicate an association between the in-service injury and the current disability could include doctor’s statements with wording such as “it is possible”, or “it is within the realm of medical possibility”.
As examples of sufficient lay evidence, the Court noted that credible testimony of ringing in the ears ever since service during which the veteran was exposed noise from things such as a rifle range, bombing and artillery fire would be sufficient to indicate that a hearing disability may be associated with service. In addition, a veteran is fully competent to testify concerning the pain he may have suffered.
This case may prove to be very important because it suggests, for example, that a combat veteran who has nightmares and flashbacks of combat would be entitled to a C&P exam to determine if the veteran has PTSD as a result of combat, if there is no PTSD exam in the record and if the veteran filed a claim for service connection for PTSD claiming combat stressors and stating that the symptoms began after service"
This case may prove to be very important because it suggests, for example, that a combat veteran who has nightmares and flashbacks of combat would be entitled to a C&P exam to determine if the veteran has PTSD as a result of combat, if there is no PTSD exam in the record and if the veteran filed a claim for service connection for PTSD claiming combat stressors and stating that the symptoms began after service"
Full Article at: www.wvajustice.com
Richard Paul Cohen, Esq. Attorney at Law
"In that case, McClendon v Nicholson,04 0185, June 5,2006, the Veterans Court noted that the VA must provide a medical exam if there is 1) evidence of a disability or recurrent symptoms of a disability, and 2) evidence establishing that an event, injury or disease occurred in-service, and 3) an indication that the disability or symptoms may be associated with military service, and 4) insufficient medical evidence to make a decision on the claim.
In listing those things which are sufficient to “indicate” that a current disability “maybe associated” with military service, the Court first observed that vague or equivocal medical evidence (which would not be sufficient to prove that there was a link between a current disability and an in-service event) might be sufficient to indicate an association. Likewise, credible evidence of continuation of symptoms such as pain or other symptoms capable of lay observation might be sufficient.
The Court implied that examples of equivocal medical evidence which might be sufficient to indicate an association between the in-service injury and the current disability could include doctor’s statements with wording such as “it is possible”, or “it is within the realm of medical possibility”.
As examples of sufficient lay evidence, the Court noted that credible testimony of ringing in the ears ever since service during which the veteran was exposed noise from things such as a rifle range, bombing and artillery fire would be sufficient to indicate that a hearing disability may be associated with service. In addition, a veteran is fully competent to testify concerning the pain he may have suffered.
This case may prove to be very important because it suggests, for example, that a combat veteran who has nightmares and flashbacks of combat would be entitled to a C&P exam to determine if the veteran has PTSD as a result of combat, if there is no PTSD exam in the record and if the veteran filed a claim for service connection for PTSD claiming combat stressors and stating that the symptoms began after service"
Monday, November 23, 2009
VA Secretary Announces Mental and Physical Health Study of Women Vietnam Veterans
It is way past time for such a study! It should of been done thirty years ago.
Full Article at: Secretary Shinseki Announces Study of Vietnam-Era Women Veterans
WASHINGTON, Nov. 19 /PRNewswire-USNewswire/ -- Secretary of Veterans Affairs Eric K. Shinseki announced the Department of Veterans Affairs (VA) is launching a comprehensive study of women Veterans who served in the military during the Vietnam War to explore the effects of their military service upon their mental and physical health.
"One of my top priorities is to meet the needs of women Veterans," said Secretary Shinseki. "Our Veterans have earned the very best care. VA realizes that women Veterans require specialized programs, and this study will help VA provide high-quality care for women Veterans of the Vietnam era."
The study, which begins in November and lasts more than four years, will contact approximately 10,000 women in a mailed survey, telephone interview and a review of their medical records.
As women Vietnam Veterans approach their mid-sixties, it is important to understand the impact of wartime deployment on health and mental outcomes nearly 40 years later. The study will assess the prevalence of post-traumatic stress disorder (PTSD) and other mental and physical health conditions for women Vietnam Veterans, and explore the relationship between PTSD and other conditions.
VA will study women Vietnam Veterans who may have had direct exposure to traumatic events, and for the first time, study those who served in facilities near Vietnam. These women may have had similar, but less direct exposures. Both women Veterans who receive their health care from VA and those who receive health care from other providers will be contacted to determine the prevalence of a variety of health conditions.
About 250,000 women Veterans served in the military during the Vietnam War and about 7,000 were in or near Vietnam. Those who were in Vietnam, those who served elsewhere in Southeast Asia and those who served in the United States are potential study participants.
The study represents to date the most comprehensive examination of a group of women Vietnam Veterans, and will be used to shape future research on women Veterans in future wars. Such an understanding will lay the groundwork for planning and providing appropriate services for women Veterans, as well as for the aging Veteran population today.
Women Veterans are one of the fastest growing segments of the Veteran population. There are approximately 1.8 million women Veterans among the nation's total of 23 million living Veterans. Women comprise 7.8 percent of the total Veteran population and nearly 5.5 percent of all Veterans who use VA health care services. VA estimates women Veterans will constitute 10.5 percent of the Veteran population by 2020 and 9.5 percent of all VA patients.
In recent years, VA has undertaken a number of initiatives to create or enhance services for women Veterans, including the implementation of comprehensive primary care throughout the nation, staffing every VA medical center with a women Veterans program manager, supporting a multifaceted research program on women's health, improving communication and outreach to women Veterans, and continuing the operation of organizations like the Center for Women Veterans and the Women Veterans Health Strategic Healthcare Group.
The study, to be managed by VA's Cooperative Studies Program, is projected to cost $5.6 million."
Full Article at: Secretary Shinseki Announces Study of Vietnam-Era Women Veterans
WASHINGTON, Nov. 19 /PRNewswire-USNewswire/ -- Secretary of Veterans Affairs Eric K. Shinseki announced the Department of Veterans Affairs (VA) is launching a comprehensive study of women Veterans who served in the military during the Vietnam War to explore the effects of their military service upon their mental and physical health.
"One of my top priorities is to meet the needs of women Veterans," said Secretary Shinseki. "Our Veterans have earned the very best care. VA realizes that women Veterans require specialized programs, and this study will help VA provide high-quality care for women Veterans of the Vietnam era."
The study, which begins in November and lasts more than four years, will contact approximately 10,000 women in a mailed survey, telephone interview and a review of their medical records.
As women Vietnam Veterans approach their mid-sixties, it is important to understand the impact of wartime deployment on health and mental outcomes nearly 40 years later. The study will assess the prevalence of post-traumatic stress disorder (PTSD) and other mental and physical health conditions for women Vietnam Veterans, and explore the relationship between PTSD and other conditions.
VA will study women Vietnam Veterans who may have had direct exposure to traumatic events, and for the first time, study those who served in facilities near Vietnam. These women may have had similar, but less direct exposures. Both women Veterans who receive their health care from VA and those who receive health care from other providers will be contacted to determine the prevalence of a variety of health conditions.
About 250,000 women Veterans served in the military during the Vietnam War and about 7,000 were in or near Vietnam. Those who were in Vietnam, those who served elsewhere in Southeast Asia and those who served in the United States are potential study participants.
The study represents to date the most comprehensive examination of a group of women Vietnam Veterans, and will be used to shape future research on women Veterans in future wars. Such an understanding will lay the groundwork for planning and providing appropriate services for women Veterans, as well as for the aging Veteran population today.
Women Veterans are one of the fastest growing segments of the Veteran population. There are approximately 1.8 million women Veterans among the nation's total of 23 million living Veterans. Women comprise 7.8 percent of the total Veteran population and nearly 5.5 percent of all Veterans who use VA health care services. VA estimates women Veterans will constitute 10.5 percent of the Veteran population by 2020 and 9.5 percent of all VA patients.
In recent years, VA has undertaken a number of initiatives to create or enhance services for women Veterans, including the implementation of comprehensive primary care throughout the nation, staffing every VA medical center with a women Veterans program manager, supporting a multifaceted research program on women's health, improving communication and outreach to women Veterans, and continuing the operation of organizations like the Center for Women Veterans and the Women Veterans Health Strategic Healthcare Group.
The study, to be managed by VA's Cooperative Studies Program, is projected to cost $5.6 million."
Stanford Researchers Estimate 35% of Veterans Will Develop PTSD
researchers at Stanford University estimated up to 35 percent of all veterans from those two wars either have PTSD or will develop it.
Full Article at: Military suicides: Cases of post-traumatic stress mount at alarming rate
By Star-Ledger Staff
November 22, 2009, 6:59AM
"More than 1.7 million Americans have served in Iraq or Afghanistan over the past eight years. No one can say with precision how many of those service members came home with debilitating mental trauma, but studies suggest the figure is, at the least, many hundreds of thousands.
A report released last year by the RAND Corp., a nonpartisan research group, said at least one in five returning soldiers suffers from depression or PTSD, an anxiety disorder mental health experts and military officials alike say is a contributing factor in the rising suicide rate.
More recently, researchers at Stanford University estimated up to 35 percent of all veterans from those two wars either have PTSD or will develop it."
Full Article at: Military suicides: Cases of post-traumatic stress mount at alarming rate
By Star-Ledger Staff
November 22, 2009, 6:59AM
"More than 1.7 million Americans have served in Iraq or Afghanistan over the past eight years. No one can say with precision how many of those service members came home with debilitating mental trauma, but studies suggest the figure is, at the least, many hundreds of thousands.
A report released last year by the RAND Corp., a nonpartisan research group, said at least one in five returning soldiers suffers from depression or PTSD, an anxiety disorder mental health experts and military officials alike say is a contributing factor in the rising suicide rate.
More recently, researchers at Stanford University estimated up to 35 percent of all veterans from those two wars either have PTSD or will develop it."
Marines Participate in Pre-War Scans to Spot PTSD
I have some serious reservations about this program.
Full Article at: Marines Use Brain Scans to Spot PTSD Before the War
* By Katie Drummond
* November 20, 2009
"The military has launched a new program that’ll use genetic testing and brain scans to figure out whether troops are vulnerable to post-traumatic stress — before they head off to war and experience that stress.
The initiative is a cooperative venture between the Marine Corps, Department of Veterans Affairs and Navy Medicine. Testing on 1,000 Marines started last year, and another 673 were recently recruited: participants undergo a battery of exams to reveal underlying “triggers” that might predispose someone to post-traumatic stress disorder, or PTSD. Examinations include more typical sessions, like psych analysis and stress tests, but also involve brain imaging and genetic evaluation - recent evidence suggests that specific genes might increase risk.
Upon return from war zones, participants will be re-tested for early warning signs of post-traumatic stress. By comparing pre-deployment results with post-deployment symptoms, researchers hope to develop a metric that’ll be used to signal vulnerability among military men and women of the future.
Cmdr. Bryan Schumacher, the top doctor with the 1st Marine Division, says the tests won’t bar members from service - instead, they’ll be used to boost stress-prevention training for at-risk troops.
Initial test conclusions aren’t anticipated for another six months, but they might also be useful for other Pentagon research. Darpa, the DoD’s out-there research agency, wants a better understanding of stress reactions to come up with a quick-fix, PTSD-prevention pharmaceutical."
Full Article at: Marines Use Brain Scans to Spot PTSD Before the War
* By Katie Drummond
* November 20, 2009
"The military has launched a new program that’ll use genetic testing and brain scans to figure out whether troops are vulnerable to post-traumatic stress — before they head off to war and experience that stress.
The initiative is a cooperative venture between the Marine Corps, Department of Veterans Affairs and Navy Medicine. Testing on 1,000 Marines started last year, and another 673 were recently recruited: participants undergo a battery of exams to reveal underlying “triggers” that might predispose someone to post-traumatic stress disorder, or PTSD. Examinations include more typical sessions, like psych analysis and stress tests, but also involve brain imaging and genetic evaluation - recent evidence suggests that specific genes might increase risk.
Upon return from war zones, participants will be re-tested for early warning signs of post-traumatic stress. By comparing pre-deployment results with post-deployment symptoms, researchers hope to develop a metric that’ll be used to signal vulnerability among military men and women of the future.
Cmdr. Bryan Schumacher, the top doctor with the 1st Marine Division, says the tests won’t bar members from service - instead, they’ll be used to boost stress-prevention training for at-risk troops.
Initial test conclusions aren’t anticipated for another six months, but they might also be useful for other Pentagon research. Darpa, the DoD’s out-there research agency, wants a better understanding of stress reactions to come up with a quick-fix, PTSD-prevention pharmaceutical."
Federal Judge Rebukes Bay Pine-VA Administrators
Full Article at: Judge rebukes Bay Pines VA leaders
By William R. Levesque, Times Staff Writer
Posted: Nov 23, 2009
TAMPA — "Four women who won a $3.7 million verdict in July against the Bay Pines VA Medical Center thought the big award would be a hard lesson learned for the facility's administrators.
But even after a jury decided that Bay Pines illegally retaliated against the women for filing workplace discrimination complaints, none of Bay Pines leaders were dismissed or reprimanded.
"The message Bay Pines gave employees is, 'No matter what you do, nothing is going to happen. We're not going to change,' " said Dr. Claudia Cote, one of the four who won the verdict.
All that changed on Monday when a federal judge offered a stunning rebuke of administrators at the nation's fourth-busiest veterans hospital, barring them from any further retaliation against their workforce of 3,000 employees over discrimination complaints.
And the judge ordered administrators back to school, requiring Bay Pines director, Wallace Hopkins, his chief of staff and chief of medicine, to undergo "remedial instruction" on preventing workplace discrimination and retaliation.
Magistrate Judge Tom McCoun said his order is necessary because "discriminatory conduct" would continue without court intervention.
"Indeed, it appears that no changes have been made at all at Bay Pines VA in response to the verdicts in this case," McCoun's order said."
By William R. Levesque, Times Staff Writer
Posted: Nov 23, 2009
TAMPA — "Four women who won a $3.7 million verdict in July against the Bay Pines VA Medical Center thought the big award would be a hard lesson learned for the facility's administrators.
But even after a jury decided that Bay Pines illegally retaliated against the women for filing workplace discrimination complaints, none of Bay Pines leaders were dismissed or reprimanded.
"The message Bay Pines gave employees is, 'No matter what you do, nothing is going to happen. We're not going to change,' " said Dr. Claudia Cote, one of the four who won the verdict.
All that changed on Monday when a federal judge offered a stunning rebuke of administrators at the nation's fourth-busiest veterans hospital, barring them from any further retaliation against their workforce of 3,000 employees over discrimination complaints.
And the judge ordered administrators back to school, requiring Bay Pines director, Wallace Hopkins, his chief of staff and chief of medicine, to undergo "remedial instruction" on preventing workplace discrimination and retaliation.
Magistrate Judge Tom McCoun said his order is necessary because "discriminatory conduct" would continue without court intervention.
"Indeed, it appears that no changes have been made at all at Bay Pines VA in response to the verdicts in this case," McCoun's order said."
Baltimore-RO found Lacking in 14 out of 15 Areas
The VARO did not meet the requirements for 14 of the 15 operational areas reviewed and senior management acknowledged its workload was not under adequate control. The VARO Management team needs to provide additional oversight and training for responsible personnel processing claims identified as diabetes, post-traumatic stress disorder (PTSD), traumatic brain injury (TBI), and Haas cases. The team also needs to improve controls over: tracking veteran’s claims in Control of Veterans Records System (COVERS); establishing the correct dates on claims; correcting errors identified by VBA’s Systematic Technical Accuracy Reviews (STAR); completing Systematic Analysis of Operations (SAO) accurately and timely, safeguarding veteran’s personally identifiable information (PII) and VARO date stamps; handling claims-related mail; responding to congressional and other electronic inquiries; and, processing fiduciary activities.
Inspection of VA Regional Office Baltimore, MD
Report Number 09-01993-29, 11/19/2009 | Full Report (PDF)
The Benefits Inspection Program conducts onsite inspections at VA Regional Offices (VAROs) to review disability compensation claims processing and Veterans Service Center (VSC) operations.
The Baltimore VARO Management team faces multiple challenges in providing benefits and services to veterans, including numerous personnel issues and a loss of experienced staff needed to support the Disability Evaluation System joint project with the Department of Defense. The VARO did not meet the requirements for 14 of the 15 operational areas reviewed and senior management acknowledged its workload was not under adequate control. The VARO Management team needs to provide additional oversight and training for responsible personnel processing claims identified as diabetes, post-traumatic stress disorder (PTSD), traumatic brain injury (TBI), and Haas cases. The team also needs to improve controls over: tracking veteran’s claims in Control of Veterans Records System (COVERS); establishing the correct dates on claims; correcting errors identified by VBA’s Systematic Technical Accuracy Reviews (STAR); completing Systematic Analysis of Operations (SAO) accurately and timely, safeguarding veteran’s personally identifiable information (PII) and VARO date stamps; handling claims-related mail; responding to congressional and other electronic inquiries; and, processing fiduciary activities. We recommend the Under Secretary for Benefits assign a remedial action team to train and help support VSC operations. We recommended that the VARO improve oversight of the quality assurance process for the operational areas found lacking. We also recommended the VARO provide refresher training on the proper procedures to establish the correct date of claim and process fiduciary claims. The Under Secretary for Benefits concurred with our recommendation and assigned VBA’s Eastern Area Director to conduct bi-monthly performance briefings with VSC management. Also, the Compensation and Pension Service will conduct a follow-up site visit in June 2010. The Director of the Baltimore VA Regional Office concurred with all recommendations. The management team’s planned actions are responsive and we will follow-up as required on all actions.
Inspection of VA Regional Office Baltimore, MD
Report Number 09-01993-29, 11/19/2009 | Full Report (PDF)
The Benefits Inspection Program conducts onsite inspections at VA Regional Offices (VAROs) to review disability compensation claims processing and Veterans Service Center (VSC) operations.
The Baltimore VARO Management team faces multiple challenges in providing benefits and services to veterans, including numerous personnel issues and a loss of experienced staff needed to support the Disability Evaluation System joint project with the Department of Defense. The VARO did not meet the requirements for 14 of the 15 operational areas reviewed and senior management acknowledged its workload was not under adequate control. The VARO Management team needs to provide additional oversight and training for responsible personnel processing claims identified as diabetes, post-traumatic stress disorder (PTSD), traumatic brain injury (TBI), and Haas cases. The team also needs to improve controls over: tracking veteran’s claims in Control of Veterans Records System (COVERS); establishing the correct dates on claims; correcting errors identified by VBA’s Systematic Technical Accuracy Reviews (STAR); completing Systematic Analysis of Operations (SAO) accurately and timely, safeguarding veteran’s personally identifiable information (PII) and VARO date stamps; handling claims-related mail; responding to congressional and other electronic inquiries; and, processing fiduciary activities. We recommend the Under Secretary for Benefits assign a remedial action team to train and help support VSC operations. We recommended that the VARO improve oversight of the quality assurance process for the operational areas found lacking. We also recommended the VARO provide refresher training on the proper procedures to establish the correct date of claim and process fiduciary claims. The Under Secretary for Benefits concurred with our recommendation and assigned VBA’s Eastern Area Director to conduct bi-monthly performance briefings with VSC management. Also, the Compensation and Pension Service will conduct a follow-up site visit in June 2010. The Director of the Baltimore VA Regional Office concurred with all recommendations. The management team’s planned actions are responsive and we will follow-up as required on all actions.
Thursday, November 19, 2009
GAO Report States VA Giving Priority PTSD Care to Veterans Returning from Iraq and Afghanistan
Are older PTSD Veterans being sidelined, as new veterans are being treated first!
Officials at six of the seven VA medical facilities visited by GAO researchers reported that although “they are now able to keep up with the current number of veterans seeking PTSD services, they may not be able to meet an increase in demand for these services.”
They also expressed concern because the VA had directed them to give priority for PTSD care to veterans returning from Iraq and Afghanistan. Follow-up care for veterans now receiving PTSD treatment could be delayed as much as 90 days, they fear."
Full Article at: GAO Questions VA's Ability To Provide More PTSD Care
by Kate Mulligan
The VA is working hard to make certain that soldiers returning from Iraq benefit from lessons learned since Vietnam.
Will veterans returning home from Iraq receive prompt and effective treatment for their war-related mental health disorders?
Neither the Department of Veterans Affairs (VA) nor the Department of Defense (DoD) can provide a definitive answer, according to a recent report from the Government Accountability Office (GAO).
The report, released September 20, offered recommendations that would lead to improved data collection and coordination between the two governmental agencies.
The VA is working to implement the recommendations that call for the agency to combine data about veterans receiving treatment for PTSD at VA medical centers with data about those receiving treatment for PTSD at its veterans centers (Vet Centers).
(Vet Centers were established as entities separate from the medical centers because Vietnam veterans were reluctant to receive medical care for their war-related mental health disorders in a federal building.)
The combination of the data sets will give VA officials a better assessment of the current availability of treatment for PTSD and improved ability to project need for more services.
Officials at six of the seven VA medical facilities visited by GAO researchers reported that although “they are now able to keep up with the current number of veterans seeking PTSD services, they may not be able to meet an increase in demand for these services.”
They also expressed concern because the VA had directed them to give priority for PTSD care to veterans returning from Iraq and Afghanistan. Follow-up care for veterans now receiving PTSD treatment could be delayed as much as 90 days, they fear."
Officials at six of the seven VA medical facilities visited by GAO researchers reported that although “they are now able to keep up with the current number of veterans seeking PTSD services, they may not be able to meet an increase in demand for these services.”
They also expressed concern because the VA had directed them to give priority for PTSD care to veterans returning from Iraq and Afghanistan. Follow-up care for veterans now receiving PTSD treatment could be delayed as much as 90 days, they fear."
Full Article at: GAO Questions VA's Ability To Provide More PTSD Care
by Kate Mulligan
The VA is working hard to make certain that soldiers returning from Iraq benefit from lessons learned since Vietnam.
Will veterans returning home from Iraq receive prompt and effective treatment for their war-related mental health disorders?
Neither the Department of Veterans Affairs (VA) nor the Department of Defense (DoD) can provide a definitive answer, according to a recent report from the Government Accountability Office (GAO).
The report, released September 20, offered recommendations that would lead to improved data collection and coordination between the two governmental agencies.
The VA is working to implement the recommendations that call for the agency to combine data about veterans receiving treatment for PTSD at VA medical centers with data about those receiving treatment for PTSD at its veterans centers (Vet Centers).
(Vet Centers were established as entities separate from the medical centers because Vietnam veterans were reluctant to receive medical care for their war-related mental health disorders in a federal building.)
The combination of the data sets will give VA officials a better assessment of the current availability of treatment for PTSD and improved ability to project need for more services.
Officials at six of the seven VA medical facilities visited by GAO researchers reported that although “they are now able to keep up with the current number of veterans seeking PTSD services, they may not be able to meet an increase in demand for these services.”
They also expressed concern because the VA had directed them to give priority for PTSD care to veterans returning from Iraq and Afghanistan. Follow-up care for veterans now receiving PTSD treatment could be delayed as much as 90 days, they fear."
Tens of Thousands of Returning Troops Mental Health Questionnaires Records Missing
This is extremely upsetting, is this what we can expect from electronic records?
Hopefully more will come out on the type of records that were lost, I mean were the lost records associated with soldiers applying for benefits?
Full Article at:
Troops' post-deployment questionnaires missing
By KIMBERLY HEFLING, Associated Press Writer
WASHINGTON – "Congressional investigators said Thursday that tens of thousands of questionnaires aimed at measuring the mental and physical health of returning combat troops can't be found.
As a result, the Government Accountability Office said, the military does not have reasonable assurances that the service members got the opportunity to report their health problems on the forms.
The forms are filled out electronically and used to track health problems among troops. They also give returning soldiers a chance to say if they'd like to see a counselor.
The GAO said about 20 percent of the questionnaires it sought during a set period were missing."
Hopefully more will come out on the type of records that were lost, I mean were the lost records associated with soldiers applying for benefits?
Full Article at:
Troops' post-deployment questionnaires missing
By KIMBERLY HEFLING, Associated Press Writer
WASHINGTON – "Congressional investigators said Thursday that tens of thousands of questionnaires aimed at measuring the mental and physical health of returning combat troops can't be found.
As a result, the Government Accountability Office said, the military does not have reasonable assurances that the service members got the opportunity to report their health problems on the forms.
The forms are filled out electronically and used to track health problems among troops. They also give returning soldiers a chance to say if they'd like to see a counselor.
The GAO said about 20 percent of the questionnaires it sought during a set period were missing."
A Look at the Time Peroids Involved in Changing VA Appeals System
This article give you a look at the time period that is involved in changing the appeal times of veterans claims.
Full Article at: Panel votes to speed benefits appeals of vets
By Rick Maze - Staff writer
"A House subcommittee moved Wednesday to reduce the amount of time it takes for a veteran to appeal a benefits decision, which can add two to five years to the wait for benefits.
Approved by the disability assistance and memorial affairs subcommittee of the House Veterans’ Affairs Committee, the unnumbered draft bill, called the Veterans Appeals Improvement and Modernization Act of 2009, attempts to streamline both the administration appeals process within the Veterans Affairs Department and the judicial review process through the Court of Appeals for Veterans Claims.
Included in the bill are procedural changes, such as allowing new information from a veteran whose claim is under appeal to be sent directly to the Board of Veterans Affairs, rather than to a regional office where it would have to work its way through the bureaucracy; and giving the Court of Appeals for Veterans Claims the power to review an entire claim, not just one part at a time. The change in the appeals court process is aimed at what veterans have come to call the “hamster wheel” of having a claim with multiple issues decided one at a time in a process that never seems to end as the claim is sent back and forth between the regional official and administrative board.
Additionally, the bill tries to set the stage for more fundamental changes by creating an independent panel, the Veterans Judicial Review Commission, that would evaluate the disability and survivor benefits claims process and recommend changes. An interim report from the commission would be required by July 2010 with a final report by Dec. 30, 2010.
The report deadlines make it possible that some changes could be approved by Congress as early as next year, but major changes would not be considered until 2011."
Full Article at: Panel votes to speed benefits appeals of vets
By Rick Maze - Staff writer
"A House subcommittee moved Wednesday to reduce the amount of time it takes for a veteran to appeal a benefits decision, which can add two to five years to the wait for benefits.
Approved by the disability assistance and memorial affairs subcommittee of the House Veterans’ Affairs Committee, the unnumbered draft bill, called the Veterans Appeals Improvement and Modernization Act of 2009, attempts to streamline both the administration appeals process within the Veterans Affairs Department and the judicial review process through the Court of Appeals for Veterans Claims.
Included in the bill are procedural changes, such as allowing new information from a veteran whose claim is under appeal to be sent directly to the Board of Veterans Affairs, rather than to a regional office where it would have to work its way through the bureaucracy; and giving the Court of Appeals for Veterans Claims the power to review an entire claim, not just one part at a time. The change in the appeals court process is aimed at what veterans have come to call the “hamster wheel” of having a claim with multiple issues decided one at a time in a process that never seems to end as the claim is sent back and forth between the regional official and administrative board.
Additionally, the bill tries to set the stage for more fundamental changes by creating an independent panel, the Veterans Judicial Review Commission, that would evaluate the disability and survivor benefits claims process and recommend changes. An interim report from the commission would be required by July 2010 with a final report by Dec. 30, 2010.
The report deadlines make it possible that some changes could be approved by Congress as early as next year, but major changes would not be considered until 2011."
Wednesday, November 18, 2009
Nuclear Regulatory Commission Report Finds Violations at Philadelphia-VA
Full Article at: NRC cites VA clinic for radioactive-treatment violations
By Josh Goldstein and Marie McCullough
Inquirer Staff Writers
"In the first outside report on its flawed prostate-cancer program, the Philadelphia VA Medical Center was cited for eight apparent violations in using radioactive materials on nearly 100 veterans, federal inspectors have concluded.
The Nuclear Regulatory Commission found that the Philadelphia VA staff failed to evaluate radiation doses or know when to report a mistake, according to the 16-page report obtained yesterday by The Inquirer.
The brachytherapy team, for example, failed to check radiation doses for more than a year because a computer was unplugged from the hospital's network, the report said.
The response to correct the problem was also flawed, the report found. The VA hospital, for example, double-counted one patient, and the true number of veterans who got incorrect radiation doses was 97, not 98 as originally reported."
By Josh Goldstein and Marie McCullough
Inquirer Staff Writers
"In the first outside report on its flawed prostate-cancer program, the Philadelphia VA Medical Center was cited for eight apparent violations in using radioactive materials on nearly 100 veterans, federal inspectors have concluded.
The Nuclear Regulatory Commission found that the Philadelphia VA staff failed to evaluate radiation doses or know when to report a mistake, according to the 16-page report obtained yesterday by The Inquirer.
The brachytherapy team, for example, failed to check radiation doses for more than a year because a computer was unplugged from the hospital's network, the report said.
The response to correct the problem was also flawed, the report found. The VA hospital, for example, double-counted one patient, and the true number of veterans who got incorrect radiation doses was 97, not 98 as originally reported."
VA and DoD Expanding Disability Evaluation System Pilot
Full Article at: VA and DoD Announce Disability Evaluation System Pilot Expansion
Delivering Benefits Faster to Veterans
WASHINGTON, Nov. 17 /PRNewswire-USNewswire/ -- To expedite the delivery of benefits to many injured servicemembers who receive disability compensation from the Department of Veterans Affairs (VA), the Department announced the expansion of a program with the Department of Defense (DoD) to streamline the application process for people retiring or exiting the military due to disabilities.
"Streamlining our disability claims system and working closely with DoD to care for today's generation of heroes are among VA's top priorities," said Secretary of Veterans Affairs Eric K. Shinseki. "We will never lose sight of the fact that Veterans and military personnel have sacrificed for their country and earned the right to access services from VA and DoD."
The Disability Evaluation System (DES) pilot began in November 2007 and is expanding to an additional six military installations, bringing the total number to 27 military facilities where a single physical examination serves as the basis for determining whether military personnel are fit enough to stay on active duty and to determine their eligibility for VA disability compensation. To date over 5,431 servicemembers have participated in the pilot.
The new locations will be Fort Benning, Ga.; Fort Bragg, N.C.; Fort Hood, Texas; Fort Lewis, Wash.; Fort Riley, Kan.; and Portsmouth Naval Medical Center, Va. The estimated completion date for the new expansion is scheduled for March 31, 2010."
Delivering Benefits Faster to Veterans
WASHINGTON, Nov. 17 /PRNewswire-USNewswire/ -- To expedite the delivery of benefits to many injured servicemembers who receive disability compensation from the Department of Veterans Affairs (VA), the Department announced the expansion of a program with the Department of Defense (DoD) to streamline the application process for people retiring or exiting the military due to disabilities.
"Streamlining our disability claims system and working closely with DoD to care for today's generation of heroes are among VA's top priorities," said Secretary of Veterans Affairs Eric K. Shinseki. "We will never lose sight of the fact that Veterans and military personnel have sacrificed for their country and earned the right to access services from VA and DoD."
The Disability Evaluation System (DES) pilot began in November 2007 and is expanding to an additional six military installations, bringing the total number to 27 military facilities where a single physical examination serves as the basis for determining whether military personnel are fit enough to stay on active duty and to determine their eligibility for VA disability compensation. To date over 5,431 servicemembers have participated in the pilot.
The new locations will be Fort Benning, Ga.; Fort Bragg, N.C.; Fort Hood, Texas; Fort Lewis, Wash.; Fort Riley, Kan.; and Portsmouth Naval Medical Center, Va. The estimated completion date for the new expansion is scheduled for March 31, 2010."
Tuesday, November 17, 2009
Sobering Statistic on Depressant use by Combat Soldiers
These are some sobering numbers, especially the number of active duty combat personnel on medications.
=================================
Mental health problems and suicide appear to now be systemic in the military.
By October 2007, data within the Army's fifth Mental Health Advisory Team report indicated that approximately 12 percent of combat troops in Iraq and 17 percent of those in Afghanistan were coping by taking prescription antidepressants and/or sleeping pills to cope.
In 2008, the Daily Telegraph of London reported that two out of five suicide victims among troops in Iraq and Afghanistan have been found to be on antidepressants.
In April 2008, the RAND Corporation released a stunning report revealing, "Nearly 20 percent of military service members who have returned from Iraq and Afghanistan - 300,000 in all - report symptoms of post-traumatic stress disorder or major depression, yet only slightly more than half have sought treatment."
A 2008 court case in California revealed a Department of Veterans Affairs (VA) email that revealed 1,000 veterans who are receiving care from the VA are attempting suicide every single month, and 18 veterans kill themselves daily.
============================================
Full Article at: U.S. Army Underreporting Suicides, Says GI Advocacy Group
By Dahr Jamail
ANCHORAGE, Alaska, Nov 16 (IPS) - According to a soldiers' advocacy group at Fort Hood, the U.S. base where an army psychiatrist has been charged with killing 13 people and wounding 30 in a Nov. 5 rampage, the official suicide figures provided by the Army are "definitely" too low.
Chuck Luther served 12 years in the military and is a veteran of two deployments to Iraq, where he was a reconnaissance scout in the 1st Cavalry Division. The former sergeant was based at Fort Hood, where he lives today.
"I see the ugly," Luther told IPS. "I see soldiers beating their wives and trying to kill themselves all the time, and most folks don't want to look at this, including the military."
Luther, who in 2007 became the founder and director of the Soldier's Advocacy Group of Disposable Warriors, knows about these types of internal problems in the military because he has been through many of them himself.
Luther told IPS that he believes the real number of soldiers at Fort Hood committing suicide is being dramatically underreported by the military."
"Mental health problems and suicide appear to now be systemic in the military.
By October 2007, data within the Army's fifth Mental Health Advisory Team report indicated that approximately 12 percent of combat troops in Iraq and 17 percent of those in Afghanistan were coping by taking prescription antidepressants and/or sleeping pills to cope.
In 2008, the Daily Telegraph of London reported that two out of five suicide victims among troops in Iraq and Afghanistan have been found to be on antidepressants.
In April 2008, the RAND Corporation released a stunning report revealing, "Nearly 20 percent of military service members who have returned from Iraq and Afghanistan - 300,000 in all - report symptoms of post-traumatic stress disorder or major depression, yet only slightly more than half have sought treatment."
A 2008 court case in California revealed a Department of Veterans Affairs (VA) email that revealed 1,000 veterans who are receiving care from the VA are attempting suicide every single month, and 18 veterans kill themselves daily."
=================================
Mental health problems and suicide appear to now be systemic in the military.
By October 2007, data within the Army's fifth Mental Health Advisory Team report indicated that approximately 12 percent of combat troops in Iraq and 17 percent of those in Afghanistan were coping by taking prescription antidepressants and/or sleeping pills to cope.
In 2008, the Daily Telegraph of London reported that two out of five suicide victims among troops in Iraq and Afghanistan have been found to be on antidepressants.
In April 2008, the RAND Corporation released a stunning report revealing, "Nearly 20 percent of military service members who have returned from Iraq and Afghanistan - 300,000 in all - report symptoms of post-traumatic stress disorder or major depression, yet only slightly more than half have sought treatment."
A 2008 court case in California revealed a Department of Veterans Affairs (VA) email that revealed 1,000 veterans who are receiving care from the VA are attempting suicide every single month, and 18 veterans kill themselves daily.
============================================
Full Article at: U.S. Army Underreporting Suicides, Says GI Advocacy Group
By Dahr Jamail
ANCHORAGE, Alaska, Nov 16 (IPS) - According to a soldiers' advocacy group at Fort Hood, the U.S. base where an army psychiatrist has been charged with killing 13 people and wounding 30 in a Nov. 5 rampage, the official suicide figures provided by the Army are "definitely" too low.
Chuck Luther served 12 years in the military and is a veteran of two deployments to Iraq, where he was a reconnaissance scout in the 1st Cavalry Division. The former sergeant was based at Fort Hood, where he lives today.
"I see the ugly," Luther told IPS. "I see soldiers beating their wives and trying to kill themselves all the time, and most folks don't want to look at this, including the military."
Luther, who in 2007 became the founder and director of the Soldier's Advocacy Group of Disposable Warriors, knows about these types of internal problems in the military because he has been through many of them himself.
Luther told IPS that he believes the real number of soldiers at Fort Hood committing suicide is being dramatically underreported by the military."
"Mental health problems and suicide appear to now be systemic in the military.
By October 2007, data within the Army's fifth Mental Health Advisory Team report indicated that approximately 12 percent of combat troops in Iraq and 17 percent of those in Afghanistan were coping by taking prescription antidepressants and/or sleeping pills to cope.
In 2008, the Daily Telegraph of London reported that two out of five suicide victims among troops in Iraq and Afghanistan have been found to be on antidepressants.
In April 2008, the RAND Corporation released a stunning report revealing, "Nearly 20 percent of military service members who have returned from Iraq and Afghanistan - 300,000 in all - report symptoms of post-traumatic stress disorder or major depression, yet only slightly more than half have sought treatment."
A 2008 court case in California revealed a Department of Veterans Affairs (VA) email that revealed 1,000 veterans who are receiving care from the VA are attempting suicide every single month, and 18 veterans kill themselves daily."
Army Orders Probe at Arlington National Cemetery
Full Article at: Army Orders Probe at Arlington National Cemetery, Releases Investigation Findings
Secretary of the Army John McHugh announced today that he has ordered an investigation into allegations of lost accountability of some graves, poor record keeping and other issues at Arlington National Cemetery.
“This is the place where valor rests, a place of reverence and respect for all Americans,” McHugh said after signing an order directing the Army’s Inspector General to begin an investigation into allegations regarding cemetery operations. “As the final resting place of our nation’s heroes, any questions about the integrity or accountability of its operations should be examined in a manner befitting their service and sacrifice.”
McHugh’s order comes on the heels of revelations that cemetery workers inadvertently buried cremated remains at a gravesite already in use. The error was discovered in May 2008, and cemetery officials immediately took corrective measures, moving the cremated remains to another gravesite and remarking the original grave. Since then, questions have been raised over whether cemetery officials used proper procedures to correct the mistake, including notifying the next of kin.
McHugh’s announcement of the probe follows completion of separate internal investigation by the Military District of Washington (MDW) - which the Army released today - over the discovery of an unmarked grave. Cemetery officials conducted an extensive search of both internal and Department of Veterans Affairs records, followed by the MDW investigation and additional efforts by the cemetery, which employed ground penetrating radar and a team of geoarchaeologists.
“Cemetery records, the MDW investigation, and the non-invasive geophysical analysis of the grave sites strongly indicate that a husband and wife, who died years apart and should have been buried in the same gravesite, were instead buried in adjacent graves,” said MDW spokesman Col. Dan Baggio.
Cemetery officials have ordered new grave markers for the site. While exhuming the remains and conducting DNA testing would provide a 100 percent assurance of the cemetery’s findings, the family has declined taking such invasive action. The Army is abiding by their wishes.
While the unmarked grave was first discovered in 2003, cemetery officials took no action until 2009. McHugh is now directing the Inspector General to examine accountability and policy issues in that case. The Inspector General is also in the midst of a management review of Arlington National Cemetery, begun under former Army Secretary Pete Geren, to make overall recommendations on how better to operate the facility, including possible changes in policy, procedures and regulations.
“A thorough investigation, and transparency in its results, can help correct whatever may be wrong, and ensure America’s confidence in the operation of its most hallowed ground,” McHugh said, adding, “We will take appropriate action as the facts dictate.”
A copy of the Army Regulation 15-6 investigation can be found at: http://www.defenselink.mil/news/ANC%2015-6%20redacted%2013%20Nov%2009.pdf
Secretary of the Army John McHugh announced today that he has ordered an investigation into allegations of lost accountability of some graves, poor record keeping and other issues at Arlington National Cemetery.
“This is the place where valor rests, a place of reverence and respect for all Americans,” McHugh said after signing an order directing the Army’s Inspector General to begin an investigation into allegations regarding cemetery operations. “As the final resting place of our nation’s heroes, any questions about the integrity or accountability of its operations should be examined in a manner befitting their service and sacrifice.”
McHugh’s order comes on the heels of revelations that cemetery workers inadvertently buried cremated remains at a gravesite already in use. The error was discovered in May 2008, and cemetery officials immediately took corrective measures, moving the cremated remains to another gravesite and remarking the original grave. Since then, questions have been raised over whether cemetery officials used proper procedures to correct the mistake, including notifying the next of kin.
McHugh’s announcement of the probe follows completion of separate internal investigation by the Military District of Washington (MDW) - which the Army released today - over the discovery of an unmarked grave. Cemetery officials conducted an extensive search of both internal and Department of Veterans Affairs records, followed by the MDW investigation and additional efforts by the cemetery, which employed ground penetrating radar and a team of geoarchaeologists.
“Cemetery records, the MDW investigation, and the non-invasive geophysical analysis of the grave sites strongly indicate that a husband and wife, who died years apart and should have been buried in the same gravesite, were instead buried in adjacent graves,” said MDW spokesman Col. Dan Baggio.
Cemetery officials have ordered new grave markers for the site. While exhuming the remains and conducting DNA testing would provide a 100 percent assurance of the cemetery’s findings, the family has declined taking such invasive action. The Army is abiding by their wishes.
While the unmarked grave was first discovered in 2003, cemetery officials took no action until 2009. McHugh is now directing the Inspector General to examine accountability and policy issues in that case. The Inspector General is also in the midst of a management review of Arlington National Cemetery, begun under former Army Secretary Pete Geren, to make overall recommendations on how better to operate the facility, including possible changes in policy, procedures and regulations.
“A thorough investigation, and transparency in its results, can help correct whatever may be wrong, and ensure America’s confidence in the operation of its most hallowed ground,” McHugh said, adding, “We will take appropriate action as the facts dictate.”
A copy of the Army Regulation 15-6 investigation can be found at: http://www.defenselink.mil/news/ANC%2015-6%20redacted%2013%20Nov%2009.pdf
Negative Evidence, Lay Evidence Rejection, & Post Hoc Rationalization References
This single judge decision is presented because it has a reference to a negative evidence reference, a reference to what VA must prove to reject lay evidence, and the Secretary's practice of presenting a rationalization for the Board's action based not upon what the Board based its decision on but a "rationalization of the evidence in lieu of an adequate statement of reasons or bases by the Board".
====================================
see also McLendon, 20 Vet.App. at 85 (concluding that Board's assessment
derived from negative evidence does not constitute substantive evidence).
=====================================
A lay person is "fully competent to testify to any pain he may have suffered, and his testimony can be rejected only if found to be mistaken or otherwise deemed not credible." Id. at 84 (citations omitted). When evaluating lay evidence, the Board, in its role as factfinder, must "determin[e] whether lay evidence is credible in and of itself, i.e., because of possible bias, conflicting statements, etc." Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). "The Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence." Id. at 1336-37.
=====================================
See McLendon, 20 Vet. App. at 83 (noting that credible evidence of continuity of symptomatology could rise to the "low threshold" level of indicating a nexus between a current disability and service).
=====================================
Regardless, the Court cannot accept the Secretary's post hoc
. Martin v. Occupational Safety & Health Review Comm'n, 499 U.S. 144, 156 (1991) ("'[L]itigating positions' are not entitled to deference when they are merely appellate counsel's 'post hoc rationalizations' for agency action, advanced for the first time in the reviewing court.").
=====================================
The Board's analysis fails to account for the overwhelming unavailability of medical treatment records in the record, suggesting that the Board is relying on the absence of corroborating medical records to find the appellant not credible. See Buchanan, 451 F.3d at 1337 (although the Board may weigh the absence of contemporaneous medical evidence against the lay evidence of record, it cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence).
In addition, although the Board refers to records subsequent to the 1984 injury, the Court cannot discern from its review of the Board's decision or the parties' briefs what records the Board is referencing.
=====================================
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UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 08-1000
JOE L. HOWARD, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before SCHOELEN, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
SCHOELEN, Judge: The appellant, Joe L. Howard, through counsel, appeals a
January 23,
2008, Board of Veterans' Appeals (Board) decision that denied entitlement
to service connection for
a low back disability and an initial increased rating for bilateral
hearing loss. Record (R.) at 1-20.
The Board also denied a claim for entitlement to service connection for
asbestosis; however, the
appellant raises no allegation of error as to the asbestosis claim.
Therefore, the Court will consider
the matter to have been abandoned on appeal. See Ford v. Gober, 10 Vet.App.
531, 535 (1997)
(holding claims not argued on appeal are deemed abandoned); Bucklinger v.
Brown, 5 Vet.App. 435
(1993). This appeal is timely, and the Court has jurisdiction to review
the Board's decision pursuant
to 38 U.S.C. §§ 7252(a) and 7266(a). Single-judge disposition is
appropriate. See Frankel v.
Derwinski, 1 Vet.App. 23, 25-26 (1990). For the following reasons, the
Court will vacate the
January23, 2008, Board decision, and remand thematter for further
proceedings consistent with this
decision.
I. BACKGROUND
The appellant served on active duty in the U.S. Army from November 1954 to
November
1956. R. at 24. The majority of the appellant's service medical records (
SMRs) are missing and
believed to have been destroyed in the 1973 fire at the National
Personnel Records Center. R. at
101. The only available SMR is the appellant's separation examination
report. R. at 26. The
appellant reports that at the time of his separation examination he
complained of low back pain. R.
at 113. However, the separation examination report noted a normal spine
and did not reveal any
complaints of low back pain. R. at 26.
In December 2002, the appellant testified at a Board hearing that he
injured his back during
basic training when he fell from a wall and landed on his back. R. at 171.
The appellant reported
that he sought treatment for lower back problems shortly after his
separation from service; however,
records from such treatment are no longer available. R. at 5, 113. The
appellant also reported
treatment for a lower back condition in 1974, 1976, and 1978 or 1980. R.
at 230, 226, 228. These
records also are no longer available. R. at 5.
The first medicalevidenceofrecordrelatedto theappellant's lower back is a
September 1984
physician's report, which reveals that the appellant sustained a work-
related back injury on August
27, 1984. R. at 374. The diagnosis was "[f]racture of the coccyx, proximal
segment, with severe
pain and limitation of motion. Acute traumatic sprain of the low back with
some loss of lumba[r]
lordosis; radiating sciatica down the lower extremities." Id. The report
states that the cause of the
injury was "patient was working at the shop." Id. The appellant has
reported that his coccyx was
surgically removed in the mid to late 1980s and the Board found that
various clinical records appear
to corroborate that history. R. at 172, 6. Records related to the
appellant's surgery are not available.
R. at 6. However, the appellant has reported that the physician who
performed the surgery told him
that he could not have fractured his coccyx from the fall that he
sustained at work in 1984 and that
he must have fractured it earlier. R. at 173. The record does not contain
any physician's opinion
stating that the appellant's current back disability is or is not related
to his military service. Medical
records in 1996, 2001, and 2004 reported the appellant's complaints of low
back pain. R. at 341-43.
The 2004 private treatment record recorded the appellant's history of a
back injury in 1955 and back
surgery in 1985. R. at 341.
In April 2001, the appellant filed a claim for service connection for a
low back disability.
R. at 32-41. After an extensive procedural history, including a prior
appeal to the Court, the
appellant's claim for service connection for a low back disability was
remanded to the Board
2
pursuant to a joint motion for remand. R. at 559-67. The Board was
instructed to reassess the
evidence of a possible nexus to service and, if the Board determined that
no medical examination
was required, to provide an adequate statement of reasons or bases for
such determination. R. at 563.
In May 2004, the appellant filed a claim for entitlement to service
connection for bilateral
hearing loss. R. at 202. The appellant was provided a VA examination in
June 2005, and based on
the results of that examination, the VA regional office (RO) awarded him
service connection for
bilateral hearing loss and assigned a noncompensable rating. R. at 416-18,
423-27. The appellant
filed a Notice of Disagreement with the assigned rating. R. at 429. In
March and April 2006, the
appellant reported to his doctors that he felt his hearing had worsened. R.
at 526-27. The record
indicates that on April 20, 2006, the appellant was seen by a VA doctor
for an "annual audiological
evaluation." R. at 527-28. The appellant filed a Substantive Appeal in
November 2006. R. at 555.
On January23, 2008, the Board issued the decision on appeal. R. at 1-20.
The Board denied
entitlement to service connection for a low back disability because there
was no evidence of a nexus
between the appellant's current low back condition and his military
service. Id. at 5-8. The Board
also found that the medical evidence of record did not warrant an initial
compensable rating for the
appellant's bilateral hearing loss. Id. at 16-18. This appeal followed.
II. ANALYSIS
A. Low Back Claim
The appellant argues that the Board failed to provide an adequate
statement of reasons or
bases for its conclusion that VA's duty to assist did not require a VA
medical examination to assess
whether the appellant's current low back condition is related to his fall
in service. Appellant's Brief
(Br.) at 4-9. Essentially, the appellant contends that the Board
improperly rejected his lay evidence as not credible because of the lack of corroborating service records. Br.
at 5. The Secretary argues that the Board appropriately found the appellant's lay testimony not credible. Secretary's Br. at 9-12.
The Secretary must provide a medical opinion or examination if the information and
evidence
of record does not contain sufficiently complete medical evidence to
decide the claim, but there is
(1) competent evidence of a current disability or persistent or recurrent
symptoms of a disability;
3
(2) evidence establishing that an event, injury, or disease occurred in
service or, for certain diseases
manifestation of the disease during an applicable presumptive period for
which the claimant
qualifies; and (3) an indication that the disabilityorpersistent or
recurrent symptoms of thedisability
may be associated with the veteran's service or with another service-
connected disability. See
McLendon v. Nicholson, 20 Vet.App. 79, 81 (2006); 38 C.F.R. § 3.159(c)(4)(
i) (2009). The third
prong, requiring that the evidence of record "indicate" that "the claimed
disability or symptoms may
be associated with the established event," establishes a "low threshold."
Id. at 83 (emphasis added).
The Court stated in McLendon that "[t]he types of evidence that 'indicate'
that a current disability 'may be associated' with military service include . . .
credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation."Id. A lay person is "fully competent to testify to any pain he may have suffered, and his testimony can be rejected only
if found to be mistaken or otherwise deemed not credible." Id. at 84 (citations omitted). When evaluating lay evidence, the Board, in its role as factfinder, must "determin[e] whether lay evidence is credible in and of itself, i.e., because of possible bias, conflicting statements, etc." Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). "The Board cannot determine that lay evidence
lacks credibility merely because it is unaccompanied by contemporaneous
medical evidence." Id. at 1336-37. As always, the Board is required to include in its decision a
written statement of the
reasons or bases for its findings and conclusions on all material issues
of fact and law presented on
the record; that statement must be adequate to enable an appellant to
understand the precise basis for
the Board's decision, as well as to facilitate informed review in this
Court. See 38 U.S.C. § 7104(a),
(d)(1); Allday v. Brown, 7 Vet.App. 517, 527 (1995); Gilbert v. Derwinski,
1 Vet.App. 49, 56-57
(1990). In cases, where as here, the appellant's SMRs are presumed lost or
destroyed, the Board is
"under a heightened duty to consider and discuss the evidence of record
and supply well-reasoned
bases for its decision." Washington v. Nicholson, 19 Vet.App. 362, 371 (
2005); Cuevas v. Principi, 3 Vet.App. 542, 548 (1992).
In the decision on appeal, the Board concluded that no VA examination was
necessary to satisfy the duty to assist because there is "no evidence demonstrating a low back disability at separation from service, and no competent or credible evidence of record suggesting that the
4
veteran's current low back disability is related to his period of service
." R. at 7. The Board found
the appellant's "lay testimony both as to the circumstances of the
original injury and the continuity of his symptomatology" not credible. R. at 8.
The Court agrees with the appellant that the Board failed to provide
adequate reasons or bases for its conclusion. When determining that the appellant's lay testimony as to the continuity of his symptomatology was not credible, the Board stated:
The first clinical evidence of record of complaints or treatment of low
back pain, dated in September 1984, demonstrates that the veteran sustained an injury to his coccyx and low back while at work. Subsequent records continue to note
that the veteran had sustained a work related injury. It is not until September
2004, 20 years
later, that the clinical evidence of record reflects that the veteran
reported he had
initially sustained a low back injury in 1955, during his active service.
R. at 7. However, these statements ignore the fact that the appellant's
SMRs were presumed
destroyed in the 1973 fireandthatmedicalrecordsrelated to the appellant's
alleged treatment for low
back pain shortly after service, in 1974, 1976, and 1978 or 1980, are also
unavailable. R. at 5, 113,
230, 226, 228. See Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir.
2007) (recognizing that
it is particularly important to consider lay evidence when the veteran's
SMRs have been destroyed);
see also McLendon, 20 Vet.App. at 85 (concluding that Board's assessment
derived from negative evidence does not constitute substantive evidence). The Board's analysis fails to account for the overwhelming unavailability of medical treatment records in the record, suggesting that the Board is relying on the absence of corroborating medical records to find the appellant not credible. See
Buchanan, 451 F.3d at 1337 (although the Board may weigh the absence of
contemporaneous medical evidence against the lay evidence of record, it cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence). In addition, although the Board refers to records subsequent to the 1984 injury, the Court cannot discern from its review of the Board's decision or the parties' briefs what records the Board is referencing. This failure is particularly glaring given the Board's heightened duty in this case to discuss the evidence of record and supply well-reasoned bases for its decision. See Washington and Cuevas, both supra.
Moreover, the Court is not persuaded by the Secretary's argument that the
Board made its
credibility determination based on the conflicting medical evidence in the
record. Secretary's Br.
5
at 10. Specifically, the Secretary asserts that there is conflicting
medical evidence in the record
because although the appellant asserts that he injured his back during
service, the first complaint of
and treatment for a low back disability was in 1984 and the 1956
separation examination report
revealed a "normal" spine. Id. The Board did not state that it found the
appellant's lay testimony not credible because of inconsistent or conflicting evidence, and it is unclear to the Court how the evidence cited by the Secretary is conflicting, especially given the unavailability of the appellant's SMRs. Regardless, the Court cannot accept the Secretary's post hoc
rationalization of the evidence in lieu of an adequate statement of reasons or bases by the Board. Martin v. Occupational Safety & Health Review Comm'n, 499 U.S. 144, 156 (1991) ("'[L]itigating positions' are not entitled to deference when they are merely appellate counsel's 'post hoc rationalizations' for agency action, advanced for the first time in the reviewing court.").
Accordingly, the Court will remand the appellant's claim for service
connection for a low
back disability for the Board to provide an adequate statement of reasons
or bases for its decision.
See 38 U.S.C. § 7104 (a), (d)(1); Duenas v. Principi, 18 Vet.App. 512,
519 (2004) (remanding for
Board to provide an adequate statement of reasons and bases for its
decision that a VA medical
examination was not required). On remand, the Board must reassess the
credibilityof the appellant's lay testimony in accordance with standard articulated in Buchanan, and provide an adequate statement of reasons or bases for its findings, including whether VA's duty to assist requires that the
appellant be provided a medical nexus examination. See McLendon, 20 Vet.
App. at 83 (noting that credible evidence of continuity of symptomatology could rise to the "low threshold" level of indicating a nexus between a current disability and service).
B. Bilateral Hearing Loss
The appellant also argues that the Board failed to provide an adequate
statement of reasons
or bases for its failure to require an additional audiological examination
prior to rendering its
decision. Appellant's Br. at 9-10. The appellant contends that it was
improper for the Board, in
2008, to rely on the results of a June 2005 audiological examination. Id.
The appellant argues that
there was evidence since the 2005 examination that his condition worsened
and the Board failed to
explain why the duty to provide a thorough and contemporaneous medical
examination did not
6
require it to provide a further examination. Id. The appellant notes that
the record contained an
April 2006audiological evaluation; however,heasserts that
the2006evaluation did not complywith
the Secretary's regulations. See 38 C.F.R. § 4.85 (2009) (requiring that
an examination include a
controlled speech discrimination test and a puretone audiometry test).
The Secretary argues that the mere passage of time does not render the
2005 examination
report inadequate. Secretary's Br. at 14. He asserts that the appellant
does not point to any evidence
in the record, other than his own assertions, that his condition worsened
since the 2005 examination.
Id. Indeed, the Secretary maintains that the 2006 evaluation is
essentially "identical to the diagnosis
in the June 2005 VA examination report." Id. at 14-15. Notably, the
Secretary does not address the
appellant's contention that the 2006 evaluation was not conducted in
accordance with 38 C.F.R.
§ 4.85.
TheSecretary'sdutytoassistrequiresathoroughandcontemporaneousmedicalexamin
when the record does not adequately reveal the current state of the
claimant's disability. See
38 U.S.C. § 5103A(d)(1); Green v. Derwinski, 1 Vet.App. 121, 124 (1991);
see also Caffrey v.
Brown, 6 Vet.App. 377, 381 (1994). The record is inadequate and a
contemporaneous examination
is necessary when the "evidence indicates there has been a material change
in a disability or that the
current rating may be incorrect." 38 C.F.R. § 3.327(a) (2009); see
Placzewski v. Nicholson,
21 Vet.App. 174, 182 (2007) (submission of new evidence or allegation that
disability has worsened
may require new medical examination to be provided, but "mere passage of
time between those
events does not"); Caffrey, 6 Vet.App. at 381 (finding 23-month-old
examination too remote to be
contemporaneous where appellant submitted evidence indicating disability
had since worsened);
Olson v. Principi, 3 Vet.App. 480, 482 (1992) ("Where the veteran claims a
disability is worse than
when originally rated, and the available evidence is too old to adequately
evaluate the current state
of the condition, the VA must provide a new examination.").
Here, the Board did not address whether the duty to assist required VA to
obtain a further
medical examination. The Board reviewed the June 2005 examination, noted
that the record also
contained an April 2006 evaluation, and listed the results of that
examination. R. at 17. The Board
also noted that specific pure tone thresholds and speech recognition
ability for each ear were not
7
recorded at that time; ratherthanaddressthis deficiency,
theBoardproceededtodenya compensable
rating based on the June 2005 examination results. R. at 17-18; see
Lendermann v. Principi,
3 Vet.App. 345, 349 (1992) (assignment of disability ratings for hearing
impairment are derived by
amechanicalapplication of theratingscheduleto thenumericdesignation
assigned after audiometric
evaluations are recorded).
The Court finds that the Board did not provide adequate reasons or bases
for its decision to
rely on the results of the 2005 audiological examination given the
appellant's assertion at the time
of his 2006 evaluation that his hearing had worsened. Appellant's Br. at 9-
10; see R. at 527
("Vet[eran] feels his hearing has decreased since his last evaluation.").
Although the Secretary
attempts to establish that the appellant's hearing had not worsened at the
time of the 2006 evaluation
by comparing the results of the 2006 examination to the 2005 examiner's
diagnosis of "Mild to
ModerateSensorineural HearingLoss"(compareR.at527to417),
the2006evaluationalsoincludes
the following impression: "Left ear pure tone thresholds showed no
significant decrease from
previous audio, excluding a 15 [decibel (db)] decrease at 3000 [Hertz (Hz
)], left. Right ear pure tone
thresholds showed a 15 db decrease at 250 Hz and a 20 db decrease from
3000-4000 Hz." R. at 528
(emphasis added). The Board should have addressed the appellant's
assertions that his hearing had
worsened and whether the 2006 evidence indicated there had been a material
change in the
appellant's disability or that the current rating may not be correct. See
38 C.F.R. § 3.327(a); see also
Snuffer v. Gober, 10 Vet.App. 400, 403 (1997) ("[W]here the appellant
complained of an increased
hearing loss two years after his last audiology examination, VA should have
scheduled the appellant
for another examination."). The Court will not assess the April 2006
evaluation in the first instance;
particularly, where the examiner failed to report the specific pure tone
thresholds and speech
recognition ability necessary for proper application to the rating
schedule. See 38 C.F.R. § 4.85.
Accordingly, because the Board failed to provide an adequate statement of
reasons or bases, the
matter will be remanded for readjudication. See Allday and Gilbert, both
supra; see also Tucker v.
West 11 Vet.App. 369, 374 (1998) (remand is the appropriate remedy where
Board fails to provide
adequate reasons or bases for its determinations). On remand, the Board
must consider whether the
April 2006 evaluation indicates a material change in the appellant's
condition or that the current
8
rating is incorrect such that VA's duty to assist requires a further
medical examination in order to
properly assess the appellant's current level of disability. See 38 C.F.R.
§ 3.327(a); see also
Placzewski, Caffrey and Green, all supra.
The appellant is free to submit additional evidence and argument on the
remanded matters,
and the Board is required to consider anysuch relevant evidence and
argument. See Kay v. Principi,
16 Vet.App. 529, 534 (2002) (stating that, on remand, the Board must
consider additional evidence
and argument in assessing entitlement to benefit sought); Kutscherousky v.
West, 12 Vet.App. 369,
372-73 (1999) (per curiam order). The Court has held that "[a] remand is
meant to entail a critical
examination of the justification for the decision." Fletcher v. Derwinski,
1 Vet.App. 394, 397
(1991). The Board must proceed expeditiously, in accordance with 38 U.S.C.
§ 7112 (requiring
Secretary to provide for "expeditious treatment" of claims remanded by the
Court).
III. CONCLUSION
After consideration of the appellant's and the Secretary's pleadings, and
a review of the
record, the Board's January 23, 2008, decision is VACATED and the matter
is REMANDED to the
Board for further proceedings consistent with this decision.
DATED: November 4, 2009
Copies to:
David E. Boelzner, Esq.
VA General Counsel (027)
9
Negative Evidence, Lay Evidence Rejection, & Post Hoc Rationalization References
====================================
see also McLendon, 20 Vet.App. at 85 (concluding that Board's assessment
derived from negative evidence does not constitute substantive evidence).
=====================================
A lay person is "fully competent to testify to any pain he may have suffered, and his testimony can be rejected only if found to be mistaken or otherwise deemed not credible." Id. at 84 (citations omitted). When evaluating lay evidence, the Board, in its role as factfinder, must "determin[e] whether lay evidence is credible in and of itself, i.e., because of possible bias, conflicting statements, etc." Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). "The Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence." Id. at 1336-37.
=====================================
See McLendon, 20 Vet. App. at 83 (noting that credible evidence of continuity of symptomatology could rise to the "low threshold" level of indicating a nexus between a current disability and service).
=====================================
Regardless, the Court cannot accept the Secretary's post hoc
. Martin v. Occupational Safety & Health Review Comm'n, 499 U.S. 144, 156 (1991) ("'[L]itigating positions' are not entitled to deference when they are merely appellate counsel's 'post hoc rationalizations' for agency action, advanced for the first time in the reviewing court.").
=====================================
The Board's analysis fails to account for the overwhelming unavailability of medical treatment records in the record, suggesting that the Board is relying on the absence of corroborating medical records to find the appellant not credible. See Buchanan, 451 F.3d at 1337 (although the Board may weigh the absence of contemporaneous medical evidence against the lay evidence of record, it cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence).
In addition, although the Board refers to records subsequent to the 1984 injury, the Court cannot discern from its review of the Board's decision or the parties' briefs what records the Board is referencing.
=====================================
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UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 08-1000
JOE L. HOWARD, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before SCHOELEN, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
SCHOELEN, Judge: The appellant, Joe L. Howard, through counsel, appeals a
January 23,
2008, Board of Veterans' Appeals (Board) decision that denied entitlement
to service connection for
a low back disability and an initial increased rating for bilateral
hearing loss. Record (R.) at 1-20.
The Board also denied a claim for entitlement to service connection for
asbestosis; however, the
appellant raises no allegation of error as to the asbestosis claim.
Therefore, the Court will consider
the matter to have been abandoned on appeal. See Ford v. Gober, 10 Vet.App.
531, 535 (1997)
(holding claims not argued on appeal are deemed abandoned); Bucklinger v.
Brown, 5 Vet.App. 435
(1993). This appeal is timely, and the Court has jurisdiction to review
the Board's decision pursuant
to 38 U.S.C. §§ 7252(a) and 7266(a). Single-judge disposition is
appropriate. See Frankel v.
Derwinski, 1 Vet.App. 23, 25-26 (1990). For the following reasons, the
Court will vacate the
January23, 2008, Board decision, and remand thematter for further
proceedings consistent with this
decision.
I. BACKGROUND
The appellant served on active duty in the U.S. Army from November 1954 to
November
1956. R. at 24. The majority of the appellant's service medical records (
SMRs) are missing and
believed to have been destroyed in the 1973 fire at the National
Personnel Records Center. R. at
101. The only available SMR is the appellant's separation examination
report. R. at 26. The
appellant reports that at the time of his separation examination he
complained of low back pain. R.
at 113. However, the separation examination report noted a normal spine
and did not reveal any
complaints of low back pain. R. at 26.
In December 2002, the appellant testified at a Board hearing that he
injured his back during
basic training when he fell from a wall and landed on his back. R. at 171.
The appellant reported
that he sought treatment for lower back problems shortly after his
separation from service; however,
records from such treatment are no longer available. R. at 5, 113. The
appellant also reported
treatment for a lower back condition in 1974, 1976, and 1978 or 1980. R.
at 230, 226, 228. These
records also are no longer available. R. at 5.
The first medicalevidenceofrecordrelatedto theappellant's lower back is a
September 1984
physician's report, which reveals that the appellant sustained a work-
related back injury on August
27, 1984. R. at 374. The diagnosis was "[f]racture of the coccyx, proximal
segment, with severe
pain and limitation of motion. Acute traumatic sprain of the low back with
some loss of lumba[r]
lordosis; radiating sciatica down the lower extremities." Id. The report
states that the cause of the
injury was "patient was working at the shop." Id. The appellant has
reported that his coccyx was
surgically removed in the mid to late 1980s and the Board found that
various clinical records appear
to corroborate that history. R. at 172, 6. Records related to the
appellant's surgery are not available.
R. at 6. However, the appellant has reported that the physician who
performed the surgery told him
that he could not have fractured his coccyx from the fall that he
sustained at work in 1984 and that
he must have fractured it earlier. R. at 173. The record does not contain
any physician's opinion
stating that the appellant's current back disability is or is not related
to his military service. Medical
records in 1996, 2001, and 2004 reported the appellant's complaints of low
back pain. R. at 341-43.
The 2004 private treatment record recorded the appellant's history of a
back injury in 1955 and back
surgery in 1985. R. at 341.
In April 2001, the appellant filed a claim for service connection for a
low back disability.
R. at 32-41. After an extensive procedural history, including a prior
appeal to the Court, the
appellant's claim for service connection for a low back disability was
remanded to the Board
2
pursuant to a joint motion for remand. R. at 559-67. The Board was
instructed to reassess the
evidence of a possible nexus to service and, if the Board determined that
no medical examination
was required, to provide an adequate statement of reasons or bases for
such determination. R. at 563.
In May 2004, the appellant filed a claim for entitlement to service
connection for bilateral
hearing loss. R. at 202. The appellant was provided a VA examination in
June 2005, and based on
the results of that examination, the VA regional office (RO) awarded him
service connection for
bilateral hearing loss and assigned a noncompensable rating. R. at 416-18,
423-27. The appellant
filed a Notice of Disagreement with the assigned rating. R. at 429. In
March and April 2006, the
appellant reported to his doctors that he felt his hearing had worsened. R.
at 526-27. The record
indicates that on April 20, 2006, the appellant was seen by a VA doctor
for an "annual audiological
evaluation." R. at 527-28. The appellant filed a Substantive Appeal in
November 2006. R. at 555.
On January23, 2008, the Board issued the decision on appeal. R. at 1-20.
The Board denied
entitlement to service connection for a low back disability because there
was no evidence of a nexus
between the appellant's current low back condition and his military
service. Id. at 5-8. The Board
also found that the medical evidence of record did not warrant an initial
compensable rating for the
appellant's bilateral hearing loss. Id. at 16-18. This appeal followed.
II. ANALYSIS
A. Low Back Claim
The appellant argues that the Board failed to provide an adequate
statement of reasons or
bases for its conclusion that VA's duty to assist did not require a VA
medical examination to assess
whether the appellant's current low back condition is related to his fall
in service. Appellant's Brief
(Br.) at 4-9. Essentially, the appellant contends that the Board
improperly rejected his lay evidence as not credible because of the lack of corroborating service records. Br.
at 5. The Secretary argues that the Board appropriately found the appellant's lay testimony not credible. Secretary's Br. at 9-12.
The Secretary must provide a medical opinion or examination if the information and
evidence
of record does not contain sufficiently complete medical evidence to
decide the claim, but there is
(1) competent evidence of a current disability or persistent or recurrent
symptoms of a disability;
3
(2) evidence establishing that an event, injury, or disease occurred in
service or, for certain diseases
manifestation of the disease during an applicable presumptive period for
which the claimant
qualifies; and (3) an indication that the disabilityorpersistent or
recurrent symptoms of thedisability
may be associated with the veteran's service or with another service-
connected disability. See
McLendon v. Nicholson, 20 Vet.App. 79, 81 (2006); 38 C.F.R. § 3.159(c)(4)(
i) (2009). The third
prong, requiring that the evidence of record "indicate" that "the claimed
disability or symptoms may
be associated with the established event," establishes a "low threshold."
Id. at 83 (emphasis added).
The Court stated in McLendon that "[t]he types of evidence that 'indicate'
that a current disability 'may be associated' with military service include . . .
credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation."Id. A lay person is "fully competent to testify to any pain he may have suffered, and his testimony can be rejected only
if found to be mistaken or otherwise deemed not credible." Id. at 84 (citations omitted). When evaluating lay evidence, the Board, in its role as factfinder, must "determin[e] whether lay evidence is credible in and of itself, i.e., because of possible bias, conflicting statements, etc." Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). "The Board cannot determine that lay evidence
lacks credibility merely because it is unaccompanied by contemporaneous
medical evidence." Id. at 1336-37. As always, the Board is required to include in its decision a
written statement of the
reasons or bases for its findings and conclusions on all material issues
of fact and law presented on
the record; that statement must be adequate to enable an appellant to
understand the precise basis for
the Board's decision, as well as to facilitate informed review in this
Court. See 38 U.S.C. § 7104(a),
(d)(1); Allday v. Brown, 7 Vet.App. 517, 527 (1995); Gilbert v. Derwinski,
1 Vet.App. 49, 56-57
(1990). In cases, where as here, the appellant's SMRs are presumed lost or
destroyed, the Board is
"under a heightened duty to consider and discuss the evidence of record
and supply well-reasoned
bases for its decision." Washington v. Nicholson, 19 Vet.App. 362, 371 (
2005); Cuevas v. Principi, 3 Vet.App. 542, 548 (1992).
In the decision on appeal, the Board concluded that no VA examination was
necessary to satisfy the duty to assist because there is "no evidence demonstrating a low back disability at separation from service, and no competent or credible evidence of record suggesting that the
4
veteran's current low back disability is related to his period of service
." R. at 7. The Board found
the appellant's "lay testimony both as to the circumstances of the
original injury and the continuity of his symptomatology" not credible. R. at 8.
The Court agrees with the appellant that the Board failed to provide
adequate reasons or bases for its conclusion. When determining that the appellant's lay testimony as to the continuity of his symptomatology was not credible, the Board stated:
The first clinical evidence of record of complaints or treatment of low
back pain, dated in September 1984, demonstrates that the veteran sustained an injury to his coccyx and low back while at work. Subsequent records continue to note
that the veteran had sustained a work related injury. It is not until September
2004, 20 years
later, that the clinical evidence of record reflects that the veteran
reported he had
initially sustained a low back injury in 1955, during his active service.
R. at 7. However, these statements ignore the fact that the appellant's
SMRs were presumed
destroyed in the 1973 fireandthatmedicalrecordsrelated to the appellant's
alleged treatment for low
back pain shortly after service, in 1974, 1976, and 1978 or 1980, are also
unavailable. R. at 5, 113,
230, 226, 228. See Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir.
2007) (recognizing that
it is particularly important to consider lay evidence when the veteran's
SMRs have been destroyed);
see also McLendon, 20 Vet.App. at 85 (concluding that Board's assessment
derived from negative evidence does not constitute substantive evidence). The Board's analysis fails to account for the overwhelming unavailability of medical treatment records in the record, suggesting that the Board is relying on the absence of corroborating medical records to find the appellant not credible. See
Buchanan, 451 F.3d at 1337 (although the Board may weigh the absence of
contemporaneous medical evidence against the lay evidence of record, it cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence). In addition, although the Board refers to records subsequent to the 1984 injury, the Court cannot discern from its review of the Board's decision or the parties' briefs what records the Board is referencing. This failure is particularly glaring given the Board's heightened duty in this case to discuss the evidence of record and supply well-reasoned bases for its decision. See Washington and Cuevas, both supra.
Moreover, the Court is not persuaded by the Secretary's argument that the
Board made its
credibility determination based on the conflicting medical evidence in the
record. Secretary's Br.
5
at 10. Specifically, the Secretary asserts that there is conflicting
medical evidence in the record
because although the appellant asserts that he injured his back during
service, the first complaint of
and treatment for a low back disability was in 1984 and the 1956
separation examination report
revealed a "normal" spine. Id. The Board did not state that it found the
appellant's lay testimony not credible because of inconsistent or conflicting evidence, and it is unclear to the Court how the evidence cited by the Secretary is conflicting, especially given the unavailability of the appellant's SMRs. Regardless, the Court cannot accept the Secretary's post hoc
rationalization of the evidence in lieu of an adequate statement of reasons or bases by the Board. Martin v. Occupational Safety & Health Review Comm'n, 499 U.S. 144, 156 (1991) ("'[L]itigating positions' are not entitled to deference when they are merely appellate counsel's 'post hoc rationalizations' for agency action, advanced for the first time in the reviewing court.").
Accordingly, the Court will remand the appellant's claim for service
connection for a low
back disability for the Board to provide an adequate statement of reasons
or bases for its decision.
See 38 U.S.C. § 7104 (a), (d)(1); Duenas v. Principi, 18 Vet.App. 512,
519 (2004) (remanding for
Board to provide an adequate statement of reasons and bases for its
decision that a VA medical
examination was not required). On remand, the Board must reassess the
credibilityof the appellant's lay testimony in accordance with standard articulated in Buchanan, and provide an adequate statement of reasons or bases for its findings, including whether VA's duty to assist requires that the
appellant be provided a medical nexus examination. See McLendon, 20 Vet.
App. at 83 (noting that credible evidence of continuity of symptomatology could rise to the "low threshold" level of indicating a nexus between a current disability and service).
B. Bilateral Hearing Loss
The appellant also argues that the Board failed to provide an adequate
statement of reasons
or bases for its failure to require an additional audiological examination
prior to rendering its
decision. Appellant's Br. at 9-10. The appellant contends that it was
improper for the Board, in
2008, to rely on the results of a June 2005 audiological examination. Id.
The appellant argues that
there was evidence since the 2005 examination that his condition worsened
and the Board failed to
explain why the duty to provide a thorough and contemporaneous medical
examination did not
6
require it to provide a further examination. Id. The appellant notes that
the record contained an
April 2006audiological evaluation; however,heasserts that
the2006evaluation did not complywith
the Secretary's regulations. See 38 C.F.R. § 4.85 (2009) (requiring that
an examination include a
controlled speech discrimination test and a puretone audiometry test).
The Secretary argues that the mere passage of time does not render the
2005 examination
report inadequate. Secretary's Br. at 14. He asserts that the appellant
does not point to any evidence
in the record, other than his own assertions, that his condition worsened
since the 2005 examination.
Id. Indeed, the Secretary maintains that the 2006 evaluation is
essentially "identical to the diagnosis
in the June 2005 VA examination report." Id. at 14-15. Notably, the
Secretary does not address the
appellant's contention that the 2006 evaluation was not conducted in
accordance with 38 C.F.R.
§ 4.85.
TheSecretary'sdutytoassistrequiresathoroughandcontemporaneousmedicalexamin
when the record does not adequately reveal the current state of the
claimant's disability. See
38 U.S.C. § 5103A(d)(1); Green v. Derwinski, 1 Vet.App. 121, 124 (1991);
see also Caffrey v.
Brown, 6 Vet.App. 377, 381 (1994). The record is inadequate and a
contemporaneous examination
is necessary when the "evidence indicates there has been a material change
in a disability or that the
current rating may be incorrect." 38 C.F.R. § 3.327(a) (2009); see
Placzewski v. Nicholson,
21 Vet.App. 174, 182 (2007) (submission of new evidence or allegation that
disability has worsened
may require new medical examination to be provided, but "mere passage of
time between those
events does not"); Caffrey, 6 Vet.App. at 381 (finding 23-month-old
examination too remote to be
contemporaneous where appellant submitted evidence indicating disability
had since worsened);
Olson v. Principi, 3 Vet.App. 480, 482 (1992) ("Where the veteran claims a
disability is worse than
when originally rated, and the available evidence is too old to adequately
evaluate the current state
of the condition, the VA must provide a new examination.").
Here, the Board did not address whether the duty to assist required VA to
obtain a further
medical examination. The Board reviewed the June 2005 examination, noted
that the record also
contained an April 2006 evaluation, and listed the results of that
examination. R. at 17. The Board
also noted that specific pure tone thresholds and speech recognition
ability for each ear were not
7
recorded at that time; ratherthanaddressthis deficiency,
theBoardproceededtodenya compensable
rating based on the June 2005 examination results. R. at 17-18; see
Lendermann v. Principi,
3 Vet.App. 345, 349 (1992) (assignment of disability ratings for hearing
impairment are derived by
amechanicalapplication of theratingscheduleto thenumericdesignation
assigned after audiometric
evaluations are recorded).
The Court finds that the Board did not provide adequate reasons or bases
for its decision to
rely on the results of the 2005 audiological examination given the
appellant's assertion at the time
of his 2006 evaluation that his hearing had worsened. Appellant's Br. at 9-
10; see R. at 527
("Vet[eran] feels his hearing has decreased since his last evaluation.").
Although the Secretary
attempts to establish that the appellant's hearing had not worsened at the
time of the 2006 evaluation
by comparing the results of the 2006 examination to the 2005 examiner's
diagnosis of "Mild to
ModerateSensorineural HearingLoss"(compareR.at527to417),
the2006evaluationalsoincludes
the following impression: "Left ear pure tone thresholds showed no
significant decrease from
previous audio, excluding a 15 [decibel (db)] decrease at 3000 [Hertz (Hz
)], left. Right ear pure tone
thresholds showed a 15 db decrease at 250 Hz and a 20 db decrease from
3000-4000 Hz." R. at 528
(emphasis added). The Board should have addressed the appellant's
assertions that his hearing had
worsened and whether the 2006 evidence indicated there had been a material
change in the
appellant's disability or that the current rating may not be correct. See
38 C.F.R. § 3.327(a); see also
Snuffer v. Gober, 10 Vet.App. 400, 403 (1997) ("[W]here the appellant
complained of an increased
hearing loss two years after his last audiology examination, VA should have
scheduled the appellant
for another examination."). The Court will not assess the April 2006
evaluation in the first instance;
particularly, where the examiner failed to report the specific pure tone
thresholds and speech
recognition ability necessary for proper application to the rating
schedule. See 38 C.F.R. § 4.85.
Accordingly, because the Board failed to provide an adequate statement of
reasons or bases, the
matter will be remanded for readjudication. See Allday and Gilbert, both
supra; see also Tucker v.
West 11 Vet.App. 369, 374 (1998) (remand is the appropriate remedy where
Board fails to provide
adequate reasons or bases for its determinations). On remand, the Board
must consider whether the
April 2006 evaluation indicates a material change in the appellant's
condition or that the current
8
rating is incorrect such that VA's duty to assist requires a further
medical examination in order to
properly assess the appellant's current level of disability. See 38 C.F.R.
§ 3.327(a); see also
Placzewski, Caffrey and Green, all supra.
The appellant is free to submit additional evidence and argument on the
remanded matters,
and the Board is required to consider anysuch relevant evidence and
argument. See Kay v. Principi,
16 Vet.App. 529, 534 (2002) (stating that, on remand, the Board must
consider additional evidence
and argument in assessing entitlement to benefit sought); Kutscherousky v.
West, 12 Vet.App. 369,
372-73 (1999) (per curiam order). The Court has held that "[a] remand is
meant to entail a critical
examination of the justification for the decision." Fletcher v. Derwinski,
1 Vet.App. 394, 397
(1991). The Board must proceed expeditiously, in accordance with 38 U.S.C.
§ 7112 (requiring
Secretary to provide for "expeditious treatment" of claims remanded by the
Court).
III. CONCLUSION
After consideration of the appellant's and the Secretary's pleadings, and
a review of the
record, the Board's January 23, 2008, decision is VACATED and the matter
is REMANDED to the
Board for further proceedings consistent with this decision.
DATED: November 4, 2009
Copies to:
David E. Boelzner, Esq.
VA General Counsel (027)
9
Negative Evidence, Lay Evidence Rejection, & Post Hoc Rationalization References
Monday, November 16, 2009
Philadelphia-VA Medical Errors Bring Few Penalties
This lack of accountability is one of the main reasons that the VA system is in the shape that it is.
Full Article at: VA clinic troubles bring few penalties
Despite poor care in the Phila. prostate program, the agency has only slapped a few hands.
By Josh Goldstein
Inquirer Staff Writer
"More than a year after the Philadelphia VA Medical Center said it had given substandard care to nearly 100 veterans with prostate cancer, the list of sanctions is sparse:
One physician accepted a three-day suspension. A radiation safety official got a letter of reprimand. And the University of Pennsylvania doctor who performed most of the poor procedures lost his job when the Philadelphia VA closed the program.
Several lawmakers who have investigated the cases said that the Department of Veterans Affairs' actions were both anemic and late, and that the agency had acted only after prominent newspaper articles appeared in the summer, detailing radiation overdoses and underdoses.
"They ought not have to wait for a front-page newspaper article or a Senate committee hearing to do what they should have done on their own," said Sen. Arlen Specter (D., Pa.), one of the lawmakers who feels the VA has been slow to respond. "I think that it is regrettably necessary to keep pressure on them to follow up."
Newly obtained documents shed more light on the program, showing that the mistakes began with the earliest cases, starting in 2002, and that the hospital missed numerous opportunities to catch them.
In one 2003 case, for example, more than half the radioactive seeds landed in the patient's bladder instead of in the prostate. Yet no program-wide review ensued, and the brachytherapy treatments continued for five more years.
Gary Kao, the Penn radiation oncologist who directed the program, has been the public whipping boy for its flaws. He lost his VA position when the program was closed but was never officially sanctioned by the hospital. He's now on leave from Penn."
Full Article at: VA clinic troubles bring few penalties
Despite poor care in the Phila. prostate program, the agency has only slapped a few hands.
By Josh Goldstein
Inquirer Staff Writer
"More than a year after the Philadelphia VA Medical Center said it had given substandard care to nearly 100 veterans with prostate cancer, the list of sanctions is sparse:
One physician accepted a three-day suspension. A radiation safety official got a letter of reprimand. And the University of Pennsylvania doctor who performed most of the poor procedures lost his job when the Philadelphia VA closed the program.
Several lawmakers who have investigated the cases said that the Department of Veterans Affairs' actions were both anemic and late, and that the agency had acted only after prominent newspaper articles appeared in the summer, detailing radiation overdoses and underdoses.
"They ought not have to wait for a front-page newspaper article or a Senate committee hearing to do what they should have done on their own," said Sen. Arlen Specter (D., Pa.), one of the lawmakers who feels the VA has been slow to respond. "I think that it is regrettably necessary to keep pressure on them to follow up."
Newly obtained documents shed more light on the program, showing that the mistakes began with the earliest cases, starting in 2002, and that the hospital missed numerous opportunities to catch them.
In one 2003 case, for example, more than half the radioactive seeds landed in the patient's bladder instead of in the prostate. Yet no program-wide review ensued, and the brachytherapy treatments continued for five more years.
Gary Kao, the Penn radiation oncologist who directed the program, has been the public whipping boy for its flaws. He lost his VA position when the program was closed but was never officially sanctioned by the hospital. He's now on leave from Penn."
Calif. State Consumer Affairs Dept. Calls for Probe of Palo Alto-VA
Full Article at: State consumer affairs department requests probe of Palo Alto VA"
By Jessica Bernstein-Wax
Daily News Staff Writer
Posted: 11/14/2009 12:04:18 AM PST
Updated: 11/14/2009 12:04:19 AM PST
"The state consumer affairs department has formally requested an investigation into the VA Palo Alto Health Care System, where 23 glaucoma patients experienced significant vision loss while receiving treatment.
California Department of Consumer Affairs Director Brian Stiger made the request in response to an administrative petition the California Academy of Eye Surgeons and Physicians, the American Glaucoma Society and the California Medical Association filed in September with his agency.
"As the events at the VA hospital do concern consumers, I am formally requesting that the Board of Optometry, together with the Medical Board of California, investigate the occurrences at the Palo Alto Veterans Affairs Hospital regarding the eye care provided to veterans, including the role of optometrists and physicians in that care," Stiger wrote in a Nov. 10 letter addressed to Dr. James Ruben, president of the California Academy of Eye Surgeons and Physicians.
"To the extent permitted by existing state and federal law, I am also requesting that those boards make public the findings of the investigation," Stiger said."
By Jessica Bernstein-Wax
Daily News Staff Writer
Posted: 11/14/2009 12:04:18 AM PST
Updated: 11/14/2009 12:04:19 AM PST
"The state consumer affairs department has formally requested an investigation into the VA Palo Alto Health Care System, where 23 glaucoma patients experienced significant vision loss while receiving treatment.
California Department of Consumer Affairs Director Brian Stiger made the request in response to an administrative petition the California Academy of Eye Surgeons and Physicians, the American Glaucoma Society and the California Medical Association filed in September with his agency.
"As the events at the VA hospital do concern consumers, I am formally requesting that the Board of Optometry, together with the Medical Board of California, investigate the occurrences at the Palo Alto Veterans Affairs Hospital regarding the eye care provided to veterans, including the role of optometrists and physicians in that care," Stiger wrote in a Nov. 10 letter addressed to Dr. James Ruben, president of the California Academy of Eye Surgeons and Physicians.
"To the extent permitted by existing state and federal law, I am also requesting that those boards make public the findings of the investigation," Stiger said."
GI Bill Backlog Not Really Moving
According to the article the VA has processed just 263 GI Bill claims last week, the backlog still stands at 64,452 claims.
Full Article at: The Checks Aren't in the Mail
By Bob Brewin 11/16/09 05:02 pm ET
"Last week, when we celebrated Veterans Day, I heard from student veterans at Boston College, George Mason University and George Washington University that they had not yet received their post-9/11 GI bill stipend checks from the Veterans Affairs Department.
No stipend checks means no cash for rent or food, these student vets told me, though George Washington deserves credit for making loans to its student veterans left penniless. But one wonders how long GW will continue to act as a bank.
These anecdotal reports are backed up by VA statistics. The Nov. 16 Monday Morning Workload Report from the Veterans Benefit Administration shows that VBA had 64,452 post-9/11 GI bill claims pending, down only 263 claims, or 0.4 percent, from last week's 64,715 claims."
Full Article at: The Checks Aren't in the Mail
By Bob Brewin 11/16/09 05:02 pm ET
"Last week, when we celebrated Veterans Day, I heard from student veterans at Boston College, George Mason University and George Washington University that they had not yet received their post-9/11 GI bill stipend checks from the Veterans Affairs Department.
No stipend checks means no cash for rent or food, these student vets told me, though George Washington deserves credit for making loans to its student veterans left penniless. But one wonders how long GW will continue to act as a bank.
These anecdotal reports are backed up by VA statistics. The Nov. 16 Monday Morning Workload Report from the Veterans Benefit Administration shows that VBA had 64,452 post-9/11 GI bill claims pending, down only 263 claims, or 0.4 percent, from last week's 64,715 claims."
Report on VA Surgical Mistakes
Medical errors are a fact of life, even though we wish they were not.
I think the quote about accuracy in reporting these errors is one that needs to be taken into account.
"The concern about the nonreporting of adverse surgical events was echoed in an accompanying editorial by George C. Velmahos, MD, PhD, of Massachusetts General Hospital in Boston."
Full Article at: Surgical Mistakes Continue Despite VA Initiative
By Nancy Walsh,
Published: November 16, 2009
Reviewed by Dori F. Zaleznik, MD; Associate Clinical Professor of Medicine, Harvard Medical School, Boston.
"Despite a concerted effort to reduce them, surgical mistakes, particularly errors in communication, continue to occur in the operating room and elsewhere in hospitals, a Veterans Health Administration study found.
A total of 342 events were reported to a national database between January 2001 and June 2006, 212 of which were actual adverse events and 130 of which were close calls, according to Julia Neily, RN, of the Department of Veterans Affairs in White River Junction, Vt.
A total of 108 (50.9%) of the adverse events occurred in the operating room and 104 (49.1%) occurred in other locations such as procedure rooms and radiology suites, the researchers reported in the November Archives of Surgery.
"Incorrect surgical procedures can be devastating," and an estimated five to ten of these occur daily in the U.S., the researchers wrote.
In January 2003 the Veterans Health Administration began implementing protocols to ensure correct surgical procedures in its 153 major centers. It focused first on operating room errors and then expanded the effort to nonoperating room events in 2004 in a directive known as the Universal Protocol for Preventing Wrong Site, Wrong Procedure, and Wrong Person Surgery.
To evaluate the initiative, Neily and colleagues searched the administration's patient safety database for events that occurred during a 5.5 year period, and found that ophthalmology and invasive radiology had the most reports, with 45 each (21.2%).
The most common type of event involved a communication error (21%), such as mistakes in informed consent or in the dissemination of important information among staff.
Another common type of event related to "time-out" errors (17.6%), which occur when the surgical team is supposed to verify the correct patient, procedure, site, and implants (if applicable) before proceeding with the operation.
The researchers also calculated adverse event rates, reporting that there were 1.8 adverse events per 10,000 cases in ophthalmology and 1.2 per 10,000 cases in orthopedics. In both specialties the most common error was placement of the wrong implant (48.9% and 46.2%, respectively)."
"The researchers emphasized the need for communicating more clearly and earlier when preparing for surgical and invasive procedures, and suggested incorporating the patient into the preoperative briefing to aid in communication.
"We need to work proactively to prevent incorrect surgical procedures; waiting until moments before "take-off" (such as during the final time-out) may, at times, be too late to correct the problem," they wrote."
"The concern about the nonreporting of adverse surgical events was echoed in an accompanying editorial by George C. Velmahos, MD, PhD, of Massachusetts General Hospital in Boston.
"We . . . rely in great part on honesty and personal values for the candid reporting of many adverse events," he wrote.
"It is hard to imagine that errors never occur in some specialties and routinely happen in others. It is possible that honesty is exposed and penalized; an attitude of convenient forgetfulness is not," Velmahos wrote.
For example, the frequency of reported events in ophthalmology in this study may reflect a quality assurance-attentive department head.
Standardized systems that can reliably capture all adverse events are needed to minimize the need to rely on human nature, which "we would all agree . . . is rather imperfect," he cautioned."
This work was supported by the Department of Veterans Affairs.
Primary source: Archives of Surgery
Source reference:
Neily J, et al "Incorrect surgical procedures within and outside of the operating room" Arch Surg 2009; 144: 1028-34.
I think the quote about accuracy in reporting these errors is one that needs to be taken into account.
"The concern about the nonreporting of adverse surgical events was echoed in an accompanying editorial by George C. Velmahos, MD, PhD, of Massachusetts General Hospital in Boston."
Full Article at: Surgical Mistakes Continue Despite VA Initiative
By Nancy Walsh,
Published: November 16, 2009
Reviewed by Dori F. Zaleznik, MD; Associate Clinical Professor of Medicine, Harvard Medical School, Boston.
"Despite a concerted effort to reduce them, surgical mistakes, particularly errors in communication, continue to occur in the operating room and elsewhere in hospitals, a Veterans Health Administration study found.
A total of 342 events were reported to a national database between January 2001 and June 2006, 212 of which were actual adverse events and 130 of which were close calls, according to Julia Neily, RN, of the Department of Veterans Affairs in White River Junction, Vt.
A total of 108 (50.9%) of the adverse events occurred in the operating room and 104 (49.1%) occurred in other locations such as procedure rooms and radiology suites, the researchers reported in the November Archives of Surgery.
"Incorrect surgical procedures can be devastating," and an estimated five to ten of these occur daily in the U.S., the researchers wrote.
In January 2003 the Veterans Health Administration began implementing protocols to ensure correct surgical procedures in its 153 major centers. It focused first on operating room errors and then expanded the effort to nonoperating room events in 2004 in a directive known as the Universal Protocol for Preventing Wrong Site, Wrong Procedure, and Wrong Person Surgery.
To evaluate the initiative, Neily and colleagues searched the administration's patient safety database for events that occurred during a 5.5 year period, and found that ophthalmology and invasive radiology had the most reports, with 45 each (21.2%).
The most common type of event involved a communication error (21%), such as mistakes in informed consent or in the dissemination of important information among staff.
Another common type of event related to "time-out" errors (17.6%), which occur when the surgical team is supposed to verify the correct patient, procedure, site, and implants (if applicable) before proceeding with the operation.
The researchers also calculated adverse event rates, reporting that there were 1.8 adverse events per 10,000 cases in ophthalmology and 1.2 per 10,000 cases in orthopedics. In both specialties the most common error was placement of the wrong implant (48.9% and 46.2%, respectively)."
"The researchers emphasized the need for communicating more clearly and earlier when preparing for surgical and invasive procedures, and suggested incorporating the patient into the preoperative briefing to aid in communication.
"We need to work proactively to prevent incorrect surgical procedures; waiting until moments before "take-off" (such as during the final time-out) may, at times, be too late to correct the problem," they wrote."
"The concern about the nonreporting of adverse surgical events was echoed in an accompanying editorial by George C. Velmahos, MD, PhD, of Massachusetts General Hospital in Boston.
"We . . . rely in great part on honesty and personal values for the candid reporting of many adverse events," he wrote.
"It is hard to imagine that errors never occur in some specialties and routinely happen in others. It is possible that honesty is exposed and penalized; an attitude of convenient forgetfulness is not," Velmahos wrote.
For example, the frequency of reported events in ophthalmology in this study may reflect a quality assurance-attentive department head.
Standardized systems that can reliably capture all adverse events are needed to minimize the need to rely on human nature, which "we would all agree . . . is rather imperfect," he cautioned."
This work was supported by the Department of Veterans Affairs.
Primary source: Archives of Surgery
Source reference:
Neily J, et al "Incorrect surgical procedures within and outside of the operating room" Arch Surg 2009; 144: 1028-34.
Saturday, November 14, 2009
Suicide Rate Among Marines at All Time High
Full Article at: Marine Corps suicide rate nears record level
November 14, 1:45 PMLA Military Headlines ExaminerMark Nero
"The suicide rate in the U.S. Marine Corps is nearing an all-time record, but still remains below the per-person rates in the Army and civilian populations, USMC data shows.
There have been 42 confirmed or suspected suicides in the USMC through Oct. 31 of this year, the same number as there was in all of 2008, according to the Corps' Personnel and Readiness Division.
The Marine Corps has about 208,000 troops, which makes 2008's suicide rate 16.8 per 100,000 troops. In comparison, among the Army's 1.1 million troops, the 2008 suicide rate was 20.2 per 100,000 troops. The civilian population' suicide rate was 19.5 per 100,000 people.
But the Marine Corps suicide level has inched up each year the past few years: in in addition to the 42 Marines who killed themselves in 2008, 33 Marines committed suicide in 2007 and 25 in 2006, according to Corps data."
November 14, 1:45 PMLA Military Headlines ExaminerMark Nero
"The suicide rate in the U.S. Marine Corps is nearing an all-time record, but still remains below the per-person rates in the Army and civilian populations, USMC data shows.
There have been 42 confirmed or suspected suicides in the USMC through Oct. 31 of this year, the same number as there was in all of 2008, according to the Corps' Personnel and Readiness Division.
The Marine Corps has about 208,000 troops, which makes 2008's suicide rate 16.8 per 100,000 troops. In comparison, among the Army's 1.1 million troops, the 2008 suicide rate was 20.2 per 100,000 troops. The civilian population' suicide rate was 19.5 per 100,000 people.
But the Marine Corps suicide level has inched up each year the past few years: in in addition to the 42 Marines who killed themselves in 2008, 33 Marines committed suicide in 2007 and 25 in 2006, according to Corps data."
When VA Does Not Cite to Medical Evicence, Colvin v. Derwinski
We came across this older posting on the "“Top 10” Court Cases for Advocates", it makes a good point when they point out that VA and BVA may often make a determination that an in-service injury was “acute, without chronic residual disability.” I've seen this phrase used a lot.
This is similar to what was pointed out in our negative evidence posting, a conclusion which may or may not be referenced to any medical evidence. If there is not cited medical evidence, even if they do cite to evidence, make sure that it is correctly cited/quoted and not their [VA's] own unsubstantiated medical conclusion.
See the excerpt below citing to Colvin v. Derwinski
Full Article at:
THE VETERANS ADVOCATE PDF file
A Veterans Law and Advocacy Journal
VOL. 19, NO. 1-6
January - June 2008
"VA Can’t Base Denial on its Own Medical Judgment
Colvin v. Derwinski, 1 Vet. App. 171 (1991)
Colvin stands for a now deeply embedded and fundamental principle of veterans law-the VA may use only independent medical evidence to support its benefits decisions. The VA may not use the medical opinion or judgment of the VA rater or BVA Veterans Law Judge to support a decision.
For many years prior to Colvin, VA decisions were based on the findings of VA physicians who were part of the decision-making process. A doctor employed by VA would not only provide the medical opinion that would be used to decide the claim, he or she would participate in deciding whether to grant or deny benefits.
This practice of having VA doctors play a decisionmaking role was ended by Colvin.
The Court held that:
If the medical evidence of record is insufficient, or, in
the opinion of the BVA, of doubtful weight or credibility,
the BVA is always free to supplement the
record by seeking an advisory opinion, ordering
a medical examination or citing recognized medical
treatises in its decisions that clearly support its
ultimate conclusions . . . . This procedure ensures
that all medical evidence contrary to the veteran’s
claim will be made known to him and be part of
the record before this Court.
Colvin, 1 Vet.App. at 175.
But advocates must watch out . . . even though the formal procedure of having a VA doctor play a decisionmaking role stopped after Colvin, VA raters and BVA Veterans Law Judges persist in relying on their own medical judgments to decide claims. For example, the VA and BVA may often make a determination that an in-service injury was “acute, without chronic residual disability.” However, the degree of injury and whether any disabilities resulted from the injury are medical assessments that the VA and the Board are not competent to make unless there is independent medical evidence to support that conclusion. This means that in many cases the VA’s determination that an in-service injury was acute and did not result in chronic disability may violate Colvin.
Another common problem is that the VA may dismiss favorable medical evidence of record without citing to medical evidence in the record or medical literature to support its rejection. A good rule of thumb based on Colvin is that if there is a VA-made medical conclusion-not directly based on a medical examination report, advisory opinion, or medical literature- the conclusion may be erroneous because the VA has no independent medical support for its findings.
Decisions containing unsupported medical conclusions should be appealed."
This is similar to what was pointed out in our negative evidence posting, a conclusion which may or may not be referenced to any medical evidence. If there is not cited medical evidence, even if they do cite to evidence, make sure that it is correctly cited/quoted and not their [VA's] own unsubstantiated medical conclusion.
See the excerpt below citing to Colvin v. Derwinski
Full Article at:
THE VETERANS ADVOCATE PDF file
A Veterans Law and Advocacy Journal
VOL. 19, NO. 1-6
January - June 2008
"VA Can’t Base Denial on its Own Medical Judgment
Colvin v. Derwinski, 1 Vet. App. 171 (1991)
Colvin stands for a now deeply embedded and fundamental principle of veterans law-the VA may use only independent medical evidence to support its benefits decisions. The VA may not use the medical opinion or judgment of the VA rater or BVA Veterans Law Judge to support a decision.
For many years prior to Colvin, VA decisions were based on the findings of VA physicians who were part of the decision-making process. A doctor employed by VA would not only provide the medical opinion that would be used to decide the claim, he or she would participate in deciding whether to grant or deny benefits.
This practice of having VA doctors play a decisionmaking role was ended by Colvin.
The Court held that:
If the medical evidence of record is insufficient, or, in
the opinion of the BVA, of doubtful weight or credibility,
the BVA is always free to supplement the
record by seeking an advisory opinion, ordering
a medical examination or citing recognized medical
treatises in its decisions that clearly support its
ultimate conclusions . . . . This procedure ensures
that all medical evidence contrary to the veteran’s
claim will be made known to him and be part of
the record before this Court.
Colvin, 1 Vet.App. at 175.
But advocates must watch out . . . even though the formal procedure of having a VA doctor play a decisionmaking role stopped after Colvin, VA raters and BVA Veterans Law Judges persist in relying on their own medical judgments to decide claims. For example, the VA and BVA may often make a determination that an in-service injury was “acute, without chronic residual disability.” However, the degree of injury and whether any disabilities resulted from the injury are medical assessments that the VA and the Board are not competent to make unless there is independent medical evidence to support that conclusion. This means that in many cases the VA’s determination that an in-service injury was acute and did not result in chronic disability may violate Colvin.
Another common problem is that the VA may dismiss favorable medical evidence of record without citing to medical evidence in the record or medical literature to support its rejection. A good rule of thumb based on Colvin is that if there is a VA-made medical conclusion-not directly based on a medical examination report, advisory opinion, or medical literature- the conclusion may be erroneous because the VA has no independent medical support for its findings.
Decisions containing unsupported medical conclusions should be appealed."
Friday, November 13, 2009
Govt. Ends Liability for Hepatitis Infections by Paying out $44K
Full Article at: Government hepatitis liability ends with $44 K payout to veteran
About the writer
Walter F. Roche Jr. can be reached via e-mail or at 412-320-7894.
Subscribe
By Walter F. Roche Jr.
TRIBUNE-REVIEW
Friday, November 13, 2009
Last updated: 10:32 am
"The federal government is paying $44,000 to end its liability in the case of Army nurse anesthetist Jon Dale Jones, who infected 16 patients in a Texas military hospital with hepatitis, a potentially fatal liver disease.
Court records in Texas show the government has agreed to pay the money to veteran Daniel Henry of El Paso.
Seven other victims will receive nothing from the federal government, but will share an estimated $1 million from an insurance policy covering Jones. Each of the seven is expected to get about $72,000 after expenses and legal fees are paid.
The eight remaining unidentified victims, who never sued, apparently will receive nothing.
All 16 victims are veterans, active-duty soldiers or members of their immediate families.
One victim, Steven Damron of Missoula, Mont., said he still suffers side effects from hepatitis treatments. And he is not pleased with the insurance settlement.
"I'm very upset about it," he said in a telephone interview. "I have a disease that will affect me for the rest of my life. I can't get rid of it. It's changed my whole life. I can't be a medic anymore."
He said he was told that if he didn't agree to the settlement, "I could lose everything."
Damron said he came under Jones' care when he underwent back surgery in 2004 at Beaumont Army Medical Center. Later, when Damron was reactivated and about to head for Iraq, blood tests showed he had hepatitis. Subsequent tests led to the conclusion that Damron was infected by Jones.
Jones pleaded guilty to reduced criminal charges of infecting one of the patients. He is scheduled to be sentenced next month.
Records in the criminal case show that Jones was stealing anesthesia intended for patients by injecting it into a hidden vial. The vial, however, became infected from a patient with hepatitis. Jones contracted the disease himself, then passed it on to 15 patients.
Legal experts say the federal government's civil liability is limited in such cases, in part because of the Feres Doctrine — which stems from a 1950 Supreme Court ruling that bars malpractice and other tort claims by active members of the military.
Henry, a veteran, was not active military when he was infected.
Texas attorney Dean Swartz, who has a pending federal case involving military medical malpractice, said the Feres Doctrine was a likely factor in the limited number of cases filed — despite Jones' guilty plea.
"The Feres Doctrine is a huge hurdle to overcome," Swartz said.
Attorneys involved in the civil cases either refused to return calls or declined comment pending the filing of final settlement papers. Details of the insurance coverage were revealed in a separate suit, in which the insurance company sought to limit or eliminate its responsibility.
Because of the 1950 court ruling, the federal government was a named defendant in only one civil case — that of retired veteran Henry, who was awarded $112,000. The federal government will pay $44,000, while Jones, as an individual, will pay a little less than $40,000.
The company that hired Jones — Columbia Healthcare-Arora Joint Venture — has agreed to pay about $29,000, court records show."
About the writer
Walter F. Roche Jr. can be reached via e-mail or at 412-320-7894.
Subscribe
By Walter F. Roche Jr.
TRIBUNE-REVIEW
Friday, November 13, 2009
Last updated: 10:32 am
"The federal government is paying $44,000 to end its liability in the case of Army nurse anesthetist Jon Dale Jones, who infected 16 patients in a Texas military hospital with hepatitis, a potentially fatal liver disease.
Court records in Texas show the government has agreed to pay the money to veteran Daniel Henry of El Paso.
Seven other victims will receive nothing from the federal government, but will share an estimated $1 million from an insurance policy covering Jones. Each of the seven is expected to get about $72,000 after expenses and legal fees are paid.
The eight remaining unidentified victims, who never sued, apparently will receive nothing.
All 16 victims are veterans, active-duty soldiers or members of their immediate families.
One victim, Steven Damron of Missoula, Mont., said he still suffers side effects from hepatitis treatments. And he is not pleased with the insurance settlement.
"I'm very upset about it," he said in a telephone interview. "I have a disease that will affect me for the rest of my life. I can't get rid of it. It's changed my whole life. I can't be a medic anymore."
He said he was told that if he didn't agree to the settlement, "I could lose everything."
Damron said he came under Jones' care when he underwent back surgery in 2004 at Beaumont Army Medical Center. Later, when Damron was reactivated and about to head for Iraq, blood tests showed he had hepatitis. Subsequent tests led to the conclusion that Damron was infected by Jones.
Jones pleaded guilty to reduced criminal charges of infecting one of the patients. He is scheduled to be sentenced next month.
Records in the criminal case show that Jones was stealing anesthesia intended for patients by injecting it into a hidden vial. The vial, however, became infected from a patient with hepatitis. Jones contracted the disease himself, then passed it on to 15 patients.
Legal experts say the federal government's civil liability is limited in such cases, in part because of the Feres Doctrine — which stems from a 1950 Supreme Court ruling that bars malpractice and other tort claims by active members of the military.
Henry, a veteran, was not active military when he was infected.
Texas attorney Dean Swartz, who has a pending federal case involving military medical malpractice, said the Feres Doctrine was a likely factor in the limited number of cases filed — despite Jones' guilty plea.
"The Feres Doctrine is a huge hurdle to overcome," Swartz said.
Attorneys involved in the civil cases either refused to return calls or declined comment pending the filing of final settlement papers. Details of the insurance coverage were revealed in a separate suit, in which the insurance company sought to limit or eliminate its responsibility.
Because of the 1950 court ruling, the federal government was a named defendant in only one civil case — that of retired veteran Henry, who was awarded $112,000. The federal government will pay $44,000, while Jones, as an individual, will pay a little less than $40,000.
The company that hired Jones — Columbia Healthcare-Arora Joint Venture — has agreed to pay about $29,000, court records show."
Former VA Psychiatriat Voices Concern over Treatment of Ft. Hood Shooter's Patients
We voiced a concern about the former patients of the alleged Ft. Hood Shooter and wondered what was being done for them.
A retired psychiatrist shares our concerns stating: ""To potentially save some lives that might be lost to suicide among his former patients, the crucial thing is for the clinical leadership to [find other mental health care providers] who also knew the patients that Hasan had and to take the time to talk to the people who knew these patients and if possible, to work through them to take a reading on how [the patients] were digesting these terrible events," Shay said."
Full article at: Alleged Army gunman's former patients need follow-up care, observers say
By Katherine McIntire Peters kpeters@govexec.com November 12, 2009
"If your doctor went on a killing spree, you might question the kind of care he provided, especially if he was ministering to your mental health. Thus, after law enforcement officials took Army psychiatrist Maj. Nidal Malik Hasan into custody at Fort Hood, Texas, last Thursday after he allegedly shot dozens of fellow soldiers and civilians, killing 13, service medical personnel should have started contacting patients formerly treated by the doctor, experts say.
"First, I'd get a list of all the patients he'd ever treated and get in contact with them," said Dr. Thomas P. Lowry, a psychiatrist who served two years as a doctor in the Air Force and then held the top psychiatry positions at four hospitals before retiring in 1999. It's important to know how the doctor's former patients perceived him and understand the care they received, he said.
Dr. Jonathan Shay, who spent 20 years as a Veterans Affairs Department psychiatrist specializing in the treatment of combat trauma before retiring last year, said some of Hasan's former patients might worry that the stories they shared in therapy sessions could have contributed to the doctor's state of mind, or even feel some responsibility for the killings.
"To potentially save some lives that might be lost to suicide among his former patients, the crucial thing is for the clinical leadership to [find other mental health care providers] who also knew the patients that Hasan had and to take the time to talk to the people who knew these patients and if possible, to work through them to take a reading on how [the patients] were digesting these terrible events," Shay said.
It's not clear if that is happening. When asked what steps the service is taking to ensure proper medical care of the patients under Hasan's care at Walter Reed Army Medical Center in Washington and Darnall Army Medical Center at Fort Hood, Army spokeswoman Col. Catherine Abbott said she could not provide that information.
"All these issues will be looked at as part of the Army's examination of itself," Abbott said. Officials at Walter Reed and Darnell also declined to comment on the issue or provide any information about what kind of care the former patients are receiving.
"You cannot be sure that it's even happening," Shay said.
Army officials declined to say how many patients Hasan saw in his duties. Psychiatrists typically treat the most vulnerable soldiers who have suffered devastating losses, physically and emotionally."
A retired psychiatrist shares our concerns stating: ""To potentially save some lives that might be lost to suicide among his former patients, the crucial thing is for the clinical leadership to [find other mental health care providers] who also knew the patients that Hasan had and to take the time to talk to the people who knew these patients and if possible, to work through them to take a reading on how [the patients] were digesting these terrible events," Shay said."
Full article at: Alleged Army gunman's former patients need follow-up care, observers say
By Katherine McIntire Peters kpeters@govexec.com November 12, 2009
"If your doctor went on a killing spree, you might question the kind of care he provided, especially if he was ministering to your mental health. Thus, after law enforcement officials took Army psychiatrist Maj. Nidal Malik Hasan into custody at Fort Hood, Texas, last Thursday after he allegedly shot dozens of fellow soldiers and civilians, killing 13, service medical personnel should have started contacting patients formerly treated by the doctor, experts say.
"First, I'd get a list of all the patients he'd ever treated and get in contact with them," said Dr. Thomas P. Lowry, a psychiatrist who served two years as a doctor in the Air Force and then held the top psychiatry positions at four hospitals before retiring in 1999. It's important to know how the doctor's former patients perceived him and understand the care they received, he said.
Dr. Jonathan Shay, who spent 20 years as a Veterans Affairs Department psychiatrist specializing in the treatment of combat trauma before retiring last year, said some of Hasan's former patients might worry that the stories they shared in therapy sessions could have contributed to the doctor's state of mind, or even feel some responsibility for the killings.
"To potentially save some lives that might be lost to suicide among his former patients, the crucial thing is for the clinical leadership to [find other mental health care providers] who also knew the patients that Hasan had and to take the time to talk to the people who knew these patients and if possible, to work through them to take a reading on how [the patients] were digesting these terrible events," Shay said.
It's not clear if that is happening. When asked what steps the service is taking to ensure proper medical care of the patients under Hasan's care at Walter Reed Army Medical Center in Washington and Darnall Army Medical Center at Fort Hood, Army spokeswoman Col. Catherine Abbott said she could not provide that information.
"All these issues will be looked at as part of the Army's examination of itself," Abbott said. Officials at Walter Reed and Darnell also declined to comment on the issue or provide any information about what kind of care the former patients are receiving.
"You cannot be sure that it's even happening," Shay said.
Army officials declined to say how many patients Hasan saw in his duties. Psychiatrists typically treat the most vulnerable soldiers who have suffered devastating losses, physically and emotionally."
Delayed Texas Veterans Claims Cost the State $37 Million a Month
Is this the push that will finally reform the VA claim system, we hope so, especially if all the other States get behind a similar program.
Full Article at: Texas veterans face extraordinary claim delays
Thu Nov 12, 2009 6:18pm EST
NEW YORK (Reuters) - "Texas veterans must wait "extraordinary amounts of time" to get the federal benefits they earned, which costs them and the state economy $37 million a month, Republican Governor Rick Perry said on Thursday.
Saying his office will pay for a dozen new counselors at the Texas Veterans Commission to help clear the backlog of 39,000 disability or health claims, Perry in a statement said:
"The backlog of claims at the Veterans Administration is a national crisis and it is especially bad for Texas.""
Full Article at: Texas veterans face extraordinary claim delays
Thu Nov 12, 2009 6:18pm EST
NEW YORK (Reuters) - "Texas veterans must wait "extraordinary amounts of time" to get the federal benefits they earned, which costs them and the state economy $37 million a month, Republican Governor Rick Perry said on Thursday.
Saying his office will pay for a dozen new counselors at the Texas Veterans Commission to help clear the backlog of 39,000 disability or health claims, Perry in a statement said:
"The backlog of claims at the Veterans Administration is a national crisis and it is especially bad for Texas.""
Wednesday, November 11, 2009
Board's "Fallacious Conclusion", Reversal at Veterans Court
This is a single Judge decision, but it is presented because of the "reversal" that is ordered, rather than a remand.
Also, of note is the attorney for the veterans in this case. If you want a favorable decision you need to present to the Judge with the arguments, reasons, and information he needs to give you that favorable decision. If you do a search you will find this attorney associated with a number of favorable decisions.
While only two items have been highlighted, the entire case should be read to fully understand what is going on here.
==================================================
This is not a case, however, in which the Board's reasoning is unclear or where the Board failed to discuss significant evidence of record. The Board's reasoning in rejecting the lay evidence and medical opinions in this case is eminently clear-it is simply erroneous in fact and fallacious in conclusion.
-----------------------------------------------------------------------------------
Further, the Court notes the Board's willingness to find Mr. Coppock's statements about an injury at work in August 1995 to be of such great probative value when there is no objective evidence of such an injury, and yet his statements of an in-service injury are not given the same deference because there is no objective evidence.
------------------------------------------------------------------------------------
Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 08-1500
SAMMY T. COPPOCK, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before HAGEL, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
HAGEL, Judge: Sammy T. Coppock appeals through counsel an April 14, 2008,
Board of
Veterans' Appeals (Board) decision that denied entitlement to VA benefits
for the residuals of a back
injury and postoperative residuals of an L5-S1 hemilaminectomy1
and diskectomy2
with L5-S1
transverse process fusion.3
The Court has jurisdiction pursuant to 38 U.S.C. §§ 7252(a) and 7266(a)
to review that decision, and a single judge may conduct that review. See
Frankel v. Derwinski, 1
Vet.App. 23, 25-26 (1990). Because the Board's determination that Mr.
Coppock is not entitled to
VA benefits for the residuals of a back injury is clearly erroneous, the
Court will reverse the April
14, 2008, Board decision and remand the matter to the Board with
instructions to grant Mr. Coppock
entitlement to VA benefits.
A hemilaminectomy is the excision of one side of the vertebral lamina.
DORLAND'S ILLUSTRATED MEDICAL
DICTIONARY 847 (31st
ed. 2007) [hereinafter DORLAND'S]. Lamina is a "layer: a thin flat plate
or stratum of a
composite structure. The term often is used alone to mean the lamina arcus
vertebrae." Id. at 1014.
2
1
A diskectomy is the excision of an intervertebral disk; also called a
discectomy. DORLAND'S at 553.
Transverse process [spinal] fusion is a process on either side of a
vertebra, projecting laterally from the
junction between the lamina and the pedicle. DORLAND'S at 1543.
3
I. FACTS
Mr. Coppock served on active duty in the U.S. Army from July 1977 to
December 1977 and
in the Army National Guard from April 1977 to April 1983 and from April
1986 to April 1999. He
contends that he injured his back while digging a ditch in Egypt during a
period of active duty for
training in June 1995. Record (R.) at 556. His service medical records for
that period of time were
determined to be unavailable. R. at 427. Mr. Coppock submitted a Military
Leave and Earnings
Statement showing that he was on active duty for training from June to
July 1995. R. at 562.
In August 1995, Mr. Coppock began seeking treatment for his back injury. R.
at 631. In July
1999, he filed a claim for VA benefits for this injury. In December 1999,
Mr. Coppock underwent
a VA spine examination. At that examination, he reported that when he was
with the National
Guard, he worked unloading trucks and lifting heavy equipment, that he
noticed low back pain in
August 1995, and that he was told he had a herniated disc. R. at 789. He
also underwent a VA
peripheral nerves examination in July 1999. R. at 787. Neither VA examiner
provided an opinion
as to whether Mr. Coppock's current back disorder is etiologically related
to his reported injury
during service in June 1995. In October 2001, a VA regional office denied
Mr. Coppock entitlement
to VA benefits for a back injury. R. at 595.
In April 2002, Mr. Coppock sought to reopen his claim. He submitted a
statement as well
as two lay statements from colleagues in the National Guard. The first
statement, from Anita
Yvonne Vinson-Britmon, noted that Mr. Coppock was assigned to her platoon
during the June 1995
annual training period in Egypt and that he later mentioned to her that
his back had been hurting
during that time. R. at 573. The second statement, from James Watson,
stated that he worked
overseas with Mr. Coppock in June 1995 and that Mr. Coppock complained of
experiencing lower
back and leg pain while they were working together on a project. R. at 576.
In an August 2002
decision, the regional office reopened Mr. Coppock's claim but denied it
on the merits. R. at 566.
Subsequently, Mr. Coppock submitted a private medical opinion by Dr.
Cedric E. Porter
dated September 2002. Dr. Porter stated that he was Mr. Coppock's
primarycare physician and had
been treatinghim since 1989. He continued that Mr. Coppock presented to
his officein August 1995
with substantial low back pain. Dr. Porter stated that in his opinion,
based on Mr. Coppock's
presentation and his history, the precipitating cause of Mr. Coppock's
back disease occurred prior
2
to August 1995, because Mr. Coppock had had back pain several weeks
before he came to his office.
Dr. Porter opined that Mr. Coppock's back injury was sustained prior to
August 1995 and that, based
on Mr. Coppock's history, the injury "would suitably correlate with the
heavy lifting and exertion he
had to do while on active duty overseas." R. at 559. Dr. Porter concluded
that this was a service-
connected injury that dated back to the summer of 1995. R. at 558-59.
InanOctober2002 decision,theregionalofficeagaindeniedMr.Coppock'sclaim.R.
at552-
53. Later that month, Mr. Coppock submitted an additional private medical
opinion from Dr. James
G. Lindley. Dr. Lindley stated that he had read the sworn statement by Ms.
Vinson-Britmon noting
that Mr. Coppock injured his back in Egypt and that he had a second injury
in August 1995,
apparently an aggravation of the first injury. R. at 548. In a December
2002 decision, the regional
office again denied Mr. Coppock's claim. R. at 543. Mr. Coppock then
appealed that decision to
the Board. R. at 538, 425, 413-15.
InFebruary2006,theBoardremandedMr.Coppock'sclaimtoaffordhimaVAexamination.
R. at 391. Mr. Coppock underwent that examination in September 2006. Mr.
Coppock reported to
the examiner that while in Egypt in June 1995, he was digging a trench
when he suddenly felt pain
in his lower back with associated tingling in his left leg. Mr. Coppock
continued that when he
returned home a few weeks later, his back continued to bother him and he
began to seek treatment.
After physically examining Mr. Coppock, to include x-rays and a computed
tomography scan, the
examiner opined that Mr. Coppock's current back pain was at least as
likely as not caused by or a
result of back pain or injury from June 1995. He stated that Mr.
Cooppock's injury correlated with
the time he sought treatment when he returned from deployment. R. at 94.
In an October 2006
addendum, the examiner stated that after reviewing Mr. Coppock's claims
file, there was no change
in his initial opinion. He reiterated that Mr. Coppock's current back pain
was at least as likely as not
caused by or a result of back pain or injury from June 1995. R. at 59.
After several years of additional development, the Board issued the
decision currently on
appeal in April 2008. In that decision, the Board again denied entitlement
to VA benefits for a back
injury. The Board found that the competent medical evidence of record did
not demonstrate that Mr.
Coppock's current back disability was related to his service. R. at 4. The
Board explained that Mr.
Coppock's service personnel records did not show service in Egypt or that
he sustained a back injury
3
in June 1995. R. at 9. The Board also noted that in Mr. Coppock's Social
Security Administration
records he reported the onset of back pain in August 1995. R. at 12. With
regard to the three
medical opinions of record, the Board found that the Dr. Porter's
September 2002 opinion had low
probative value because it was not based on a review of the claims file,
was not supported by a well-
reasoned rationale, and was based mostly on Mr. Coppock's history of a
June 1995 back injury in
service, which was not corroborated by any objective evidence of record. R.
at 14. Turning to Dr.
Lindley's October 2002 opinion, the Board found that this opinion was too
tenuous to warrant
entitlement to VA benefits and appeared to be based solely on Mr.
Coppock's personally reported
history. R. at 15. As to the September 2006 VA examination, the Board
found that even though the
examiner indicated that the claims file was reviewed, it was unclear if
the examiner considered the
August 1995 incident and that the opinion was not supported by any
rationale. R. at 16. The Board
continued that although Mr. Coppock claimed that he hurt his back in June
1995 in service, various
treatment records show a history of work-related back pain in August 1995.
Further, the Board
stated that while it had considered the lay statements of Ms. Vinson-
Britmon and Mr. Watson, these
statements were of little probative value because they were not made
contemporaneous with the
incident and were general in nature. R. at 16-17.
On appeal, Mr. Coppock argues that the Board's conclusion that a back
disorder is unrelated
to service is clearly erroneous and should therefore be reversed.
Appellant's Brief (Br.) at 10. He
also contends that, in the alternative, the Board provided an inadequate
statement of reasons and
bases for its determination that his back disorder is unrelated to service.
Appellant's Br. at 15.
In response, the Secretary concedes that the case should be remanded
because the Board's
statement of reasons and bases is inadequate because the Board did not
adequately address the
competency and credibility of Mr. Coppock's lay testimony and that of his
colleagues. Secretary's
Br. at 10. The Secretary also contends that the case should be remanded
because the Board failed
to afford appropriate weight to the medical opinions of record.
Secretary's Br. at 16.
II. ANALYSIS
Service connection for VA disability compensation purposes will be awarded
to a veteran
when the record before the Secretary contains (1) a medical diagnosis of a
current disability, (2)
4
medical evidence of incurrence or aggravation of a disease or injury in
service, and (3) medical
evidence of a nexus between the in-service injuryor diseaseand the current
disability. See 38 U.S.C.
§ 1110; Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); 38
C.F.R. § 3.303 (2009).
A finding of service connection generally involves findings of fact. See
Russo v. Brown, 9
Vet.App. 46, 50 (1996). The Court is required to reverse "a finding of
material fact . . . if the finding
is clearly erroneous." 38 U.S.C. § 7261(a)(4). "A factual finding 'is "
clearly erroneous" when
although there is evidence to support it, the reviewing court on the
entire evidence is left with the
definite and firm conviction that a mistake has been committed.'" Hersey v.
Derwinski, 2 Vet.App.
91, 94 (1992) (quoting United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (
1948)). The Court
may not substitute its judgment for the factual determinations of the
Board on issues of material fact
merely because the Court would have decided those issues differently in
the first instance. See id.
Vacatur and remand may be warranted where the Board has failed to provide
an adequate statement
of reasons or bases for its determinations or where the record is
inadequate. See Tucker v. West, 11
Vet.App. 369, 374 (1998).
In this case, with respect to the issue of whether Mr. Coppock's back
disability is related to
his service, the Court is left with the "definite and firm conviction that
a mistake has been
committed" in the April 2008 Board decision when it found that "[t]he
competent medical evidence
does not demonstrate that [Mr. Coppock's] current back disability is
related to his service." Hersey,
2 Vet.App. at 94; R. at 4. To the contrary, there are three competent
medical opinions of record in
this case indicating that Mr. Coppock's back disorder was, in fact,
incurred during service. R. at 88,
548, and 558. Therefore, the Court finds that there is no plausible basis
in the record for the Board's
conclusion that "[t]he competent medical evidence does not demonstrate
that [Mr. Coppock's]
current back disability is related to his service." R. at 4.
Because it is undisputed that Mr. Coppock has a current back disorder, the
ultimate
determinationofserviceconnectioninthiscaseturnsonwhetherMr.
Coppockincurredanin-service
back injury, and if so, whether there is a nexus between that in-service
injury and the currently
diagnosed back disorder. Withregardto whether therewas an in-serviceinjury,
Mr.Coppock asserts
that he hurt his back during a period of active duty for training in Egypt
in June 1995. However, as
noted above, Mr. Coppock's complete service medical records for this
period are unavailable. As
5
alternative evidence of an in-service injury, Mr. Coppock submitted a
Leave and Earnings statement
showing that he was on active duty for training in June 1995. R. at 562.
Although the Board noted
that "the statement does not show that [Mr. Coppock] served in Egypt, or
that he sustained a back
injury in June 1995" (R. at 9), the Court finds that because this
statement verifies that Mr. Coppock
was on active duty for training at that time, where he was located is not
relevant to the issue of
whether he hurt his back in-service.
In addition to his own assertions, Mr. Coppock also submitted two lay
statements in support
of his claim that he injured his back while on active duty for training in
June 1995, one that was
sworn and from his supervising officer, second lieutenant Anita Yvonne
Vinson-Britman. This
Court's case law provides that lay testimony is competent to establish
what the witness actually
observed and is in the realm of his personal knowledge. See Layno v. Brown,
6 Vet.App. 465, 469-
70 (1994). Thus, the lay statements in this case are competent evidence to
the extent that Mr.
Coppock subsequently reported suffering from back pain while on active
duty for training. With
regard to Mr. Coppock's own statements that he hurt his back during
service, he is competent to
testify to symptoms he experienced during service, as they are within his
personal knowledge and
observation. See Washington v. Nicholson, 19 Vet.App. 362, 368 (2005) (
holdingthat a veteran may
testify to matters about which he has first-hand knowledge); see also
Previous DocumentJandreauNext Document v. Nicholson, 492
F.3d 1372, 1376-77 (Fed. Cir. 2007).
Turning to the issue of whether there is a nexus between Mr. Coppock's in-
service
symptomatologyandhiscurrentbackdisorder,
theBoardrejectedthethreefavorablenexusopinions
of record, stating that each was of little probative value because they
were based largely on Mr.
Coppock's reported history and were unsupported by sufficient rationale.
The Board found that
several statements made by Mr. Coppock that he injured his back at work in
August 1995 were of
greater probative value than these three medical opinions. However, the
record simply does not
support the Board's assessment. Although the Board has full authority to
determine which evidence
or medical opinions are more probative than others, this Court "has long
cautioned the [Board]
against relying on its own unsubstantiated medical opinion rather than
basing its conclusions on
medical evidence of record." Sacks v. West, 11 Vet.App. 314, 317 (1998).
In this case, the medical
opinions of Dr. Porter and the VA examiner clearly indicate a nexus
between an in-service injury
6
and a current disability, and there are no contrary medical opinions of
record. Further, although the
opinions of Dr. Porter and the VA examiner may be more probative than the
opinion of Dr. Lindley,
which is less detailed, all three opinions are competent medical opinions.
The September 2006 VA
examiner reviewed Mr. Coppock's claims file and based his opinion on this
information as well as
his physical examination of Mr. Coppock. Although, as the Board notes, Dr.
Porter and Dr. Lindley
did not review Mr. Coppock's claims file, the Board maynot reject a
medical opinion solelybecause
the examiner did not review the claims file. Nieves-Rodriguez v. Peake, 22
Vet.App. 295, 303
(2008). In addition, although these opinions were based in part on Mr.
Coppock's self-reported
history, the Board may not reject a medical opinion solely because that
opinion was based on a
history given bythe veteran in the absence of a finding that the
historygiven is inaccurate. Kowalski
v. Nicholson, 19 Vet.App. 171, 179 (2005). In this case, there is evidence
of record which
corroborates Mr. Coppock's statements, namely the lay statements from his
National Guard
colleagues. Where as here, an uncontradicted medical opinion supported by
evidence opines that
a disability began in service, the veteran is entitled to service
connection. See Hanson v. Derwinski,
1 Vet.App. 512, 516-17 (1991).
In essence, the Board found that the only evidence of record that carries any probative value is several statements by Mr. Coppock in his medical records that he injured his back at work in August 1995. In such a scenario, the Board might well have requested more elaboration from either Dr. Porter or Dr. Lindley, or ordered an additional VA examination. See Shoffner v. Principi, 16 Vet.App. 208, 213 (2002) (holding that the Secretary has discretion over how much development
is necessary to decide a service-connection claim); but see Mariano v.
Principi, 17 Vet.App. 305, 312 (2003) ("[I]t would not be permissible for VA to undertake such additional development if a purpose was to obtain evidence against the appellant's case . . . .").
However, the Board did not order any additional development despite having the opportunity to do so. See R. at 34-39 (September
2007 Joint Motion for Remand). On this record, the three medical opinions stand as competent and uncontroverted evidence of a medical nexus. Further, the Court notes the Board's willingness to find Mr. Coppock's statements about an injuryat work in August 1995 to be of such great probative value when there is no objective evidence of such an injury, and yet his statements of an in-service injury are not given the same deference because there is no objective evidence.
7
Because there is no evidence contrary to the three medical opinions that
Mr. Coppock's back
disability is at least as likely as not related to his service, the Court
finds that the Board clearly erred
in denying Mr. Coppock entitlement to VA benefits for a back disability.
See 38 U.S.C. § 7261;
Hersey, 2 Vet.App. at 94. The Secretary argues vacatur, rather than
reversal, is appropriate so that
the Board can provide an adequate statement of reasons and bases regarding the competency of the lay evidence presented and to afford appropriate weight to the medical opinions of record. This is not a case, however, in which the Board's reasoning is unclear or where the Board failed to discuss significant evidence of record. The Board's reasoning in rejecting the lay evidence and medical opinions in this case is eminently clear–it is simply erroneous in fact and fallacious in conclusion.
See Rose v. West, 11 Vet.App. 169, 172 (1998) (reversing Board decision and remanding for Board to award serviceconnection where no evidence rebutting medical evidence of nexus existed); see also
Traut v. Brown, 6Vet.App. 495, 500 (1994) (wheremedical evidence of record addresses all elements of service connection, is uncontradicted bycompetent evidence, and definitively supports appellant's position, reversal rather than remand is appropriate); Johnson v. Brown, 9
Vet.App. 7, 10 (1996) (holding that reversal is appropriate where the only permissible view of the evidence is contrary to the Board's decision). Accordingly, the Court will reverse the Board's finding that "[t]he competent medical evidence does not demonstrate that [Mr. Coppock's] current back disability is related to his service" and remand the matter with instructions for the Board to determine an appropriate disability rating and effective date. R. at 4.
Finally, the Court notes that, pursuant to 38 U.S.C. § 7104(a), "[d]ecisions of the Board shall be based on the entire record in the proceeding and upon consideration of all evidence and material
of record and applicable provisions of law and regulation." The Court
thanks the Secretary for candidly reviewing the record and conceding the Board's errors in this regard.
III. CONCLUSION
Upon consideration of the foregoing, the April 14, 2008 Board decision is REVERSED
and the matter is REMANDED to the Board for adjudication consistent with this decision.
DATED: November 6, 2009
8
Copies to:
Kathy A. Lieberman, Esq.
VA General Counsel (027)
9
Also, of note is the attorney for the veterans in this case. If you want a favorable decision you need to present to the Judge with the arguments, reasons, and information he needs to give you that favorable decision. If you do a search you will find this attorney associated with a number of favorable decisions.
While only two items have been highlighted, the entire case should be read to fully understand what is going on here.
==================================================
This is not a case, however, in which the Board's reasoning is unclear or where the Board failed to discuss significant evidence of record. The Board's reasoning in rejecting the lay evidence and medical opinions in this case is eminently clear-it is simply erroneous in fact and fallacious in conclusion.
-----------------------------------------------------------------------------------
Further, the Court notes the Board's willingness to find Mr. Coppock's statements about an injury at work in August 1995 to be of such great probative value when there is no objective evidence of such an injury, and yet his statements of an in-service injury are not given the same deference because there is no objective evidence.
------------------------------------------------------------------------------------
Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 08-1500
SAMMY T. COPPOCK, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before HAGEL, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
HAGEL, Judge: Sammy T. Coppock appeals through counsel an April 14, 2008,
Board of
Veterans' Appeals (Board) decision that denied entitlement to VA benefits
for the residuals of a back
injury and postoperative residuals of an L5-S1 hemilaminectomy1
and diskectomy2
with L5-S1
transverse process fusion.3
The Court has jurisdiction pursuant to 38 U.S.C. §§ 7252(a) and 7266(a)
to review that decision, and a single judge may conduct that review. See
Frankel v. Derwinski, 1
Vet.App. 23, 25-26 (1990). Because the Board's determination that Mr.
Coppock is not entitled to
VA benefits for the residuals of a back injury is clearly erroneous, the
Court will reverse the April
14, 2008, Board decision and remand the matter to the Board with
instructions to grant Mr. Coppock
entitlement to VA benefits.
A hemilaminectomy is the excision of one side of the vertebral lamina.
DORLAND'S ILLUSTRATED MEDICAL
DICTIONARY 847 (31st
ed. 2007) [hereinafter DORLAND'S]. Lamina is a "layer: a thin flat plate
or stratum of a
composite structure. The term often is used alone to mean the lamina arcus
vertebrae." Id. at 1014.
2
1
A diskectomy is the excision of an intervertebral disk; also called a
discectomy. DORLAND'S at 553.
Transverse process [spinal] fusion is a process on either side of a
vertebra, projecting laterally from the
junction between the lamina and the pedicle. DORLAND'S at 1543.
3
I. FACTS
Mr. Coppock served on active duty in the U.S. Army from July 1977 to
December 1977 and
in the Army National Guard from April 1977 to April 1983 and from April
1986 to April 1999. He
contends that he injured his back while digging a ditch in Egypt during a
period of active duty for
training in June 1995. Record (R.) at 556. His service medical records for
that period of time were
determined to be unavailable. R. at 427. Mr. Coppock submitted a Military
Leave and Earnings
Statement showing that he was on active duty for training from June to
July 1995. R. at 562.
In August 1995, Mr. Coppock began seeking treatment for his back injury. R.
at 631. In July
1999, he filed a claim for VA benefits for this injury. In December 1999,
Mr. Coppock underwent
a VA spine examination. At that examination, he reported that when he was
with the National
Guard, he worked unloading trucks and lifting heavy equipment, that he
noticed low back pain in
August 1995, and that he was told he had a herniated disc. R. at 789. He
also underwent a VA
peripheral nerves examination in July 1999. R. at 787. Neither VA examiner
provided an opinion
as to whether Mr. Coppock's current back disorder is etiologically related
to his reported injury
during service in June 1995. In October 2001, a VA regional office denied
Mr. Coppock entitlement
to VA benefits for a back injury. R. at 595.
In April 2002, Mr. Coppock sought to reopen his claim. He submitted a
statement as well
as two lay statements from colleagues in the National Guard. The first
statement, from Anita
Yvonne Vinson-Britmon, noted that Mr. Coppock was assigned to her platoon
during the June 1995
annual training period in Egypt and that he later mentioned to her that
his back had been hurting
during that time. R. at 573. The second statement, from James Watson,
stated that he worked
overseas with Mr. Coppock in June 1995 and that Mr. Coppock complained of
experiencing lower
back and leg pain while they were working together on a project. R. at 576.
In an August 2002
decision, the regional office reopened Mr. Coppock's claim but denied it
on the merits. R. at 566.
Subsequently, Mr. Coppock submitted a private medical opinion by Dr.
Cedric E. Porter
dated September 2002. Dr. Porter stated that he was Mr. Coppock's
primarycare physician and had
been treatinghim since 1989. He continued that Mr. Coppock presented to
his officein August 1995
with substantial low back pain. Dr. Porter stated that in his opinion,
based on Mr. Coppock's
presentation and his history, the precipitating cause of Mr. Coppock's
back disease occurred prior
2
to August 1995, because Mr. Coppock had had back pain several weeks
before he came to his office.
Dr. Porter opined that Mr. Coppock's back injury was sustained prior to
August 1995 and that, based
on Mr. Coppock's history, the injury "would suitably correlate with the
heavy lifting and exertion he
had to do while on active duty overseas." R. at 559. Dr. Porter concluded
that this was a service-
connected injury that dated back to the summer of 1995. R. at 558-59.
InanOctober2002 decision,theregionalofficeagaindeniedMr.Coppock'sclaim.R.
at552-
53. Later that month, Mr. Coppock submitted an additional private medical
opinion from Dr. James
G. Lindley. Dr. Lindley stated that he had read the sworn statement by Ms.
Vinson-Britmon noting
that Mr. Coppock injured his back in Egypt and that he had a second injury
in August 1995,
apparently an aggravation of the first injury. R. at 548. In a December
2002 decision, the regional
office again denied Mr. Coppock's claim. R. at 543. Mr. Coppock then
appealed that decision to
the Board. R. at 538, 425, 413-15.
InFebruary2006,theBoardremandedMr.Coppock'sclaimtoaffordhimaVAexamination.
R. at 391. Mr. Coppock underwent that examination in September 2006. Mr.
Coppock reported to
the examiner that while in Egypt in June 1995, he was digging a trench
when he suddenly felt pain
in his lower back with associated tingling in his left leg. Mr. Coppock
continued that when he
returned home a few weeks later, his back continued to bother him and he
began to seek treatment.
After physically examining Mr. Coppock, to include x-rays and a computed
tomography scan, the
examiner opined that Mr. Coppock's current back pain was at least as
likely as not caused by or a
result of back pain or injury from June 1995. He stated that Mr.
Cooppock's injury correlated with
the time he sought treatment when he returned from deployment. R. at 94.
In an October 2006
addendum, the examiner stated that after reviewing Mr. Coppock's claims
file, there was no change
in his initial opinion. He reiterated that Mr. Coppock's current back pain
was at least as likely as not
caused by or a result of back pain or injury from June 1995. R. at 59.
After several years of additional development, the Board issued the
decision currently on
appeal in April 2008. In that decision, the Board again denied entitlement
to VA benefits for a back
injury. The Board found that the competent medical evidence of record did
not demonstrate that Mr.
Coppock's current back disability was related to his service. R. at 4. The
Board explained that Mr.
Coppock's service personnel records did not show service in Egypt or that
he sustained a back injury
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in June 1995. R. at 9. The Board also noted that in Mr. Coppock's Social
Security Administration
records he reported the onset of back pain in August 1995. R. at 12. With
regard to the three
medical opinions of record, the Board found that the Dr. Porter's
September 2002 opinion had low
probative value because it was not based on a review of the claims file,
was not supported by a well-
reasoned rationale, and was based mostly on Mr. Coppock's history of a
June 1995 back injury in
service, which was not corroborated by any objective evidence of record. R.
at 14. Turning to Dr.
Lindley's October 2002 opinion, the Board found that this opinion was too
tenuous to warrant
entitlement to VA benefits and appeared to be based solely on Mr.
Coppock's personally reported
history. R. at 15. As to the September 2006 VA examination, the Board
found that even though the
examiner indicated that the claims file was reviewed, it was unclear if
the examiner considered the
August 1995 incident and that the opinion was not supported by any
rationale. R. at 16. The Board
continued that although Mr. Coppock claimed that he hurt his back in June
1995 in service, various
treatment records show a history of work-related back pain in August 1995.
Further, the Board
stated that while it had considered the lay statements of Ms. Vinson-
Britmon and Mr. Watson, these
statements were of little probative value because they were not made
contemporaneous with the
incident and were general in nature. R. at 16-17.
On appeal, Mr. Coppock argues that the Board's conclusion that a back
disorder is unrelated
to service is clearly erroneous and should therefore be reversed.
Appellant's Brief (Br.) at 10. He
also contends that, in the alternative, the Board provided an inadequate
statement of reasons and
bases for its determination that his back disorder is unrelated to service.
Appellant's Br. at 15.
In response, the Secretary concedes that the case should be remanded
because the Board's
statement of reasons and bases is inadequate because the Board did not
adequately address the
competency and credibility of Mr. Coppock's lay testimony and that of his
colleagues. Secretary's
Br. at 10. The Secretary also contends that the case should be remanded
because the Board failed
to afford appropriate weight to the medical opinions of record.
Secretary's Br. at 16.
II. ANALYSIS
Service connection for VA disability compensation purposes will be awarded
to a veteran
when the record before the Secretary contains (1) a medical diagnosis of a
current disability, (2)
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medical evidence of incurrence or aggravation of a disease or injury in
service, and (3) medical
evidence of a nexus between the in-service injuryor diseaseand the current
disability. See 38 U.S.C.
§ 1110; Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); 38
C.F.R. § 3.303 (2009).
A finding of service connection generally involves findings of fact. See
Russo v. Brown, 9
Vet.App. 46, 50 (1996). The Court is required to reverse "a finding of
material fact . . . if the finding
is clearly erroneous." 38 U.S.C. § 7261(a)(4). "A factual finding 'is "
clearly erroneous" when
although there is evidence to support it, the reviewing court on the
entire evidence is left with the
definite and firm conviction that a mistake has been committed.'" Hersey v.
Derwinski, 2 Vet.App.
91, 94 (1992) (quoting United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (
1948)). The Court
may not substitute its judgment for the factual determinations of the
Board on issues of material fact
merely because the Court would have decided those issues differently in
the first instance. See id.
Vacatur and remand may be warranted where the Board has failed to provide
an adequate statement
of reasons or bases for its determinations or where the record is
inadequate. See Tucker v. West, 11
Vet.App. 369, 374 (1998).
In this case, with respect to the issue of whether Mr. Coppock's back
disability is related to
his service, the Court is left with the "definite and firm conviction that
a mistake has been
committed" in the April 2008 Board decision when it found that "[t]he
competent medical evidence
does not demonstrate that [Mr. Coppock's] current back disability is
related to his service." Hersey,
2 Vet.App. at 94; R. at 4. To the contrary, there are three competent
medical opinions of record in
this case indicating that Mr. Coppock's back disorder was, in fact,
incurred during service. R. at 88,
548, and 558. Therefore, the Court finds that there is no plausible basis
in the record for the Board's
conclusion that "[t]he competent medical evidence does not demonstrate
that [Mr. Coppock's]
current back disability is related to his service." R. at 4.
Because it is undisputed that Mr. Coppock has a current back disorder, the
ultimate
determinationofserviceconnectioninthiscaseturnsonwhetherMr.
Coppockincurredanin-service
back injury, and if so, whether there is a nexus between that in-service
injury and the currently
diagnosed back disorder. Withregardto whether therewas an in-serviceinjury,
Mr.Coppock asserts
that he hurt his back during a period of active duty for training in Egypt
in June 1995. However, as
noted above, Mr. Coppock's complete service medical records for this
period are unavailable. As
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alternative evidence of an in-service injury, Mr. Coppock submitted a
Leave and Earnings statement
showing that he was on active duty for training in June 1995. R. at 562.
Although the Board noted
that "the statement does not show that [Mr. Coppock] served in Egypt, or
that he sustained a back
injury in June 1995" (R. at 9), the Court finds that because this
statement verifies that Mr. Coppock
was on active duty for training at that time, where he was located is not
relevant to the issue of
whether he hurt his back in-service.
In addition to his own assertions, Mr. Coppock also submitted two lay
statements in support
of his claim that he injured his back while on active duty for training in
June 1995, one that was
sworn and from his supervising officer, second lieutenant Anita Yvonne
Vinson-Britman. This
Court's case law provides that lay testimony is competent to establish
what the witness actually
observed and is in the realm of his personal knowledge. See Layno v. Brown,
6 Vet.App. 465, 469-
70 (1994). Thus, the lay statements in this case are competent evidence to
the extent that Mr.
Coppock subsequently reported suffering from back pain while on active
duty for training. With
regard to Mr. Coppock's own statements that he hurt his back during
service, he is competent to
testify to symptoms he experienced during service, as they are within his
personal knowledge and
observation. See Washington v. Nicholson, 19 Vet.App. 362, 368 (2005) (
holdingthat a veteran may
testify to matters about which he has first-hand knowledge); see also
Previous DocumentJandreauNext Document v. Nicholson, 492
F.3d 1372, 1376-77 (Fed. Cir. 2007).
Turning to the issue of whether there is a nexus between Mr. Coppock's in-
service
symptomatologyandhiscurrentbackdisorder,
theBoardrejectedthethreefavorablenexusopinions
of record, stating that each was of little probative value because they
were based largely on Mr.
Coppock's reported history and were unsupported by sufficient rationale.
The Board found that
several statements made by Mr. Coppock that he injured his back at work in
August 1995 were of
greater probative value than these three medical opinions. However, the
record simply does not
support the Board's assessment. Although the Board has full authority to
determine which evidence
or medical opinions are more probative than others, this Court "has long
cautioned the [Board]
against relying on its own unsubstantiated medical opinion rather than
basing its conclusions on
medical evidence of record." Sacks v. West, 11 Vet.App. 314, 317 (1998).
In this case, the medical
opinions of Dr. Porter and the VA examiner clearly indicate a nexus
between an in-service injury
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and a current disability, and there are no contrary medical opinions of
record. Further, although the
opinions of Dr. Porter and the VA examiner may be more probative than the
opinion of Dr. Lindley,
which is less detailed, all three opinions are competent medical opinions.
The September 2006 VA
examiner reviewed Mr. Coppock's claims file and based his opinion on this
information as well as
his physical examination of Mr. Coppock. Although, as the Board notes, Dr.
Porter and Dr. Lindley
did not review Mr. Coppock's claims file, the Board maynot reject a
medical opinion solelybecause
the examiner did not review the claims file. Nieves-Rodriguez v. Peake, 22
Vet.App. 295, 303
(2008). In addition, although these opinions were based in part on Mr.
Coppock's self-reported
history, the Board may not reject a medical opinion solely because that
opinion was based on a
history given bythe veteran in the absence of a finding that the
historygiven is inaccurate. Kowalski
v. Nicholson, 19 Vet.App. 171, 179 (2005). In this case, there is evidence
of record which
corroborates Mr. Coppock's statements, namely the lay statements from his
National Guard
colleagues. Where as here, an uncontradicted medical opinion supported by
evidence opines that
a disability began in service, the veteran is entitled to service
connection. See Hanson v. Derwinski,
1 Vet.App. 512, 516-17 (1991).
In essence, the Board found that the only evidence of record that carries any probative value is several statements by Mr. Coppock in his medical records that he injured his back at work in August 1995. In such a scenario, the Board might well have requested more elaboration from either Dr. Porter or Dr. Lindley, or ordered an additional VA examination. See Shoffner v. Principi, 16 Vet.App. 208, 213 (2002) (holding that the Secretary has discretion over how much development
is necessary to decide a service-connection claim); but see Mariano v.
Principi, 17 Vet.App. 305, 312 (2003) ("[I]t would not be permissible for VA to undertake such additional development if a purpose was to obtain evidence against the appellant's case . . . .").
However, the Board did not order any additional development despite having the opportunity to do so. See R. at 34-39 (September
2007 Joint Motion for Remand). On this record, the three medical opinions stand as competent and uncontroverted evidence of a medical nexus. Further, the Court notes the Board's willingness to find Mr. Coppock's statements about an injuryat work in August 1995 to be of such great probative value when there is no objective evidence of such an injury, and yet his statements of an in-service injury are not given the same deference because there is no objective evidence.
7
Because there is no evidence contrary to the three medical opinions that
Mr. Coppock's back
disability is at least as likely as not related to his service, the Court
finds that the Board clearly erred
in denying Mr. Coppock entitlement to VA benefits for a back disability.
See 38 U.S.C. § 7261;
Hersey, 2 Vet.App. at 94. The Secretary argues vacatur, rather than
reversal, is appropriate so that
the Board can provide an adequate statement of reasons and bases regarding the competency of the lay evidence presented and to afford appropriate weight to the medical opinions of record. This is not a case, however, in which the Board's reasoning is unclear or where the Board failed to discuss significant evidence of record. The Board's reasoning in rejecting the lay evidence and medical opinions in this case is eminently clear–it is simply erroneous in fact and fallacious in conclusion.
See Rose v. West, 11 Vet.App. 169, 172 (1998) (reversing Board decision and remanding for Board to award serviceconnection where no evidence rebutting medical evidence of nexus existed); see also
Traut v. Brown, 6Vet.App. 495, 500 (1994) (wheremedical evidence of record addresses all elements of service connection, is uncontradicted bycompetent evidence, and definitively supports appellant's position, reversal rather than remand is appropriate); Johnson v. Brown, 9
Vet.App. 7, 10 (1996) (holding that reversal is appropriate where the only permissible view of the evidence is contrary to the Board's decision). Accordingly, the Court will reverse the Board's finding that "[t]he competent medical evidence does not demonstrate that [Mr. Coppock's] current back disability is related to his service" and remand the matter with instructions for the Board to determine an appropriate disability rating and effective date. R. at 4.
Finally, the Court notes that, pursuant to 38 U.S.C. § 7104(a), "[d]ecisions of the Board shall be based on the entire record in the proceeding and upon consideration of all evidence and material
of record and applicable provisions of law and regulation." The Court
thanks the Secretary for candidly reviewing the record and conceding the Board's errors in this regard.
III. CONCLUSION
Upon consideration of the foregoing, the April 14, 2008 Board decision is REVERSED
and the matter is REMANDED to the Board for adjudication consistent with this decision.
DATED: November 6, 2009
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Copies to:
Kathy A. Lieberman, Esq.
VA General Counsel (027)
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