http://www.answers.com/topic/abuse-of-discretion
Law Encyclopedia:
Abuse of Discretion
A failure to take into proper consideration the facts and law relating to a particular matter; an arbitrary or unreasonable departure from precedents and settled judicial custom.
Where a trial court must exercise discretion in deciding a question, it must do so in a way that is not clearly against logic and the evidence. An improvident exercise of discretion is an error of law and grounds for reversing a decision on appeal. It does not, however, necessarily amount to bad faith, intentional wrong, or misconduct by the trial judge.
+++++++++++++++++++++++++++++++++++++++
http://www.lectlaw.com/def/a004.htm
ABUSE OF DISCRETION - When a court does not apply the correct law or if it rests its decision on a clearly erroneous finding of a material fact. U.S. v. Rahm, 993 F.2d 1405, 1410 (9th Cir.'93). A court may also abuse its discretion when the record contains no evidence to support its decision. MGIC v. Moore, 952 F.2d 1120, 1122 (9th Cir.'91)
When judges make decisions on various questions, they must, of course, follow the standards set out by law. These standards, though, often allow judges a lot of leeway (which is called discretion). Judges are given this discretion so they can make decisions that are fair in a particular case, instead of being locked into a formula that may not suit every situation.
The exercise of judicial discretion is difficult to attack on appeal, because the decision, by law, was left to the judge in the first place. Nevertheless, judicial discretion must be exercised fairly and impartially, and a showing to the contrary may result in the ruling being reversed as an abuse of discretion.
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Wednesday, March 25, 2009
Time required to rate a claim, testimony before Congress
House Committee on Veterans' Affairs
November 19, 2008, at 10 a.m.
Roundtable Discussion on Issues Concerning Our VeteransStatement of Marjie Shahani, M.D. Senior Vice President, Operations QTC Management, Inc., Diamond Bar, CA
Testimony before Congress on claims processing. QTC interviewed experienced claims examiners and asked them to break down the process and allocate time for each step in the rating process, assuming 7 claimed conditions.
The four steps of the rating process and allotted times were:
1. Initial review of the c-file: 20 minutes.
2. Linking the evidence in the file to the claimed conditions: 85 minutes.
3. Determining the severity of the condition and if each is service connected: 40 minutes.
4. Writing the rating decision: 65 minutes.
The total time to examine a veteran’s claim is 210 minutes or 3.5 hours.
++++++++++++++++++++++++++++++++++++++++++++++++++++
http://veterans.house.gov/hearings/Testimony.aspx?TID=30555&Newsid=179&Name=%20Marjie%20%20Shahani,%20M.D.
House Committee on Veterans' Affairs
« Return to home page
Go directly to site content »
Large-Print Version | Default Text Size
Search this site
Search THOMAS for Legislation
Webcast link
November 19, 2008, at 10 a.m.
Roundtable Discussion on Issues Concerning Our Veterans
Hearings » The Use of Artificial Intelligence to Improve the U.S. Department of Veterans Affairs' Claims Processing System
Statement of Marjie Shahani, M.D.
Senior Vice President, Operations
QTC Management, Inc., Diamond Bar, CA
Mr. Chairman, Members of the Subcommittee, thank you for the opportunity to testify before you today on this important topic of claims processing. QTC is a nationwide, private provider of medical examination and medical record services to the medical and disability communities, including federal, state and local government agencies; property and casualty insurance carriers; third-party administrators; employers - and the claimants they serve. With 580 highly-trained employees located at five strategically-placed regional administrative offices, 35 owned and operated medical facilities in seven states, and more than 12,000 pre-screened medical professionals, QTC has produced more than 2.5 million quality medical exams and reports over the past ten years and pioneered software and technology to ensure quality, timely, customer-focused and cost effective services for our clients throughout our 25 years of experience.
QTC Experience with VBA C&P Process
QTC has been a provider of C&P examinations to the Veterans Benefits Administration (VBA) since 1998. QTC provides medical examinations to veterans and active duty service members seeking compensation from the VBA in 12 VA Regional Offices (VAROs) and 40 Department of Defense (DOD) Benefits Discharge Determination (BDD) sites around the country. After completing the medical exam, QTC provides a detailed narrative report according to the guidelines of the VA’s Automated Medical Information Exchange (AMIE) worksheets. VA’s rating specialists then use this information along with the veteran’s claim file, or c-file, to adjudicate the veteran’s claims. Supporting the VBA for the past nine years has provided QTC with an in-depth understanding of the complexity of the activities, nuances and uniqueness of the VA medical disability examination process, as well as its challenges.
QTC Developed Software Applications to Support the C&P Process
QTC has applied its experience and expertise in developing knowledge-based tools and technology, not as the company’s primary purpose, but to facilitate and streamline the work of QTC’s medical professionals and support staff.
Specifically for veterans’ C&P medical examinations, QTC has developed:
* A Client Portal - an Internet-based application specifically designed and written for VA Central Office, VAROs, and DOD. This application provides VA and DOD with online access to the status of each case and appointment details along with the exam results, including the narrative report and diagnostic test results, and provides the ability to review the progress of any case, review management reports, case summaries and perform a batch report download from a secured Internet connection.
* A Protocol Engine - A medical exam protocol engine, or software, that synthesizes multiple VA required AMIE worksheets with portions of the VA rating schedule (38 CFR, Part 4) into one veteran specific medical examination form, thereby providing examiners with a single head-to-toe examination. It organizes the VA requirements into a form that assures the physician will address each and every medically claimed condition for each veteran. This software generates a specific exam protocol based on VA AMIE worksheets and the veteran’s claimed conditions, and it allows for immediate updating to conform to VA statutory, regulatory and medical changes and quick dissemination to all providers nationwide.
A Logical Next Step - Organize the Evidence
Secondary to our nine years of experience working with VA, we acknowledge the complex challenges of the VA medical disability process - it is like no other disability program we have worked with previously. In an attempt to provide value-added services, QTC applied its knowledge and experience to the next step in the C&P process- specifically simplifying and streamlining the information gathering process for the rating specialists so that they are able to rate the veteran’s claim in a quality, timely, customer-focused and cost-effective manner.
QTC developed an Evidence Organizer (patent-pending) - a working prototype that is an automated rating tool designed to assist the VA rating specialist and significantly reduce the time to determine a rating decision. The Evidence Organizer has great potential to help rating specialists search and find relevant information needed to determine and rate claims and thus help the VBA facilitate the process of adjudicating each claim.
Current Rating Process Productivity and Challenges
The rating process begins when a veteran files a claim. The VA Triage Team identifies the type of disability claim. Then the VA Pre-Determination Team determines the need for additional information, such as a medical examination, and gathers the additional records. Once all the evidence is gathered, the Rating Team reviews the entire contents of the c-file and rates the veteran’s claim, determining entitlement to benefits and the degree of disability. The Evidence Organizer was designed to assist the rating specialist in their process of reviewing the entire contents of the c-file and to assist them in making that final decision.
Currently, the VA goal for each rating specialist is to rate an average of 3-4 cases per day. In 2006, QTC interviewed experienced claims examiners and asked them to break down the process and allocate time for each step in the rating process, assuming 7 claimed conditions. The four steps of the rating process and allotted times were:
1. Initial review of the c-file: 20 minutes.
2. Linking the evidence in the file to the claimed conditions: 85 minutes.
3. Determining the severity of the condition and if each is service connected: 40 minutes.
4. Writing the rating decision: 65 minutes.
The total time to examine a veteran’s claim is 210 minutes or 3.5 hours. It becomes evident that a rating specialist cannot meet a target of 3-4 cases per day in one 8-hour workday. In fact, the actual average number of cases a rating specialist can process in one day is 2-3 cases.
In 2007, based on QTC’s data, the average number of conditions claimed per veteran was 4 for C&P cases and 8 for BDD cases. Examples of multiple-claimed conditions include left knee pain, asthma, low back strain, foot fungus, hearing loss, and depression. Additionally, reopened claims now account for 54% of all open cases, and cases are being reopened with additional unclaimed secondary conditions, such as hypertension, headaches, or scars.[1]
The biggest challenge the rating specialist faces is finding the medical evidence in the veteran’s paper files supporting the claimed conditions and linking the evidence to the appropriate rating code as listed in the 38 CFR, Part 4. QTC’s Evidence Organizer would eliminate this challenge, allowing the rating specialist to more efficiently make the rating determinations. The Evidence Organizer accomplishes this by creating an organized electronic c-file, providing the rating specialist the ability to quickly search and review all available evidence at the click of a mouse. The rating specialist no longer needs to review the entire c-file over and over again for each claim they are rating as the Evidence Organizer has organized all the available evidence for them.
stack of papers arrow screenshot of an electronic medical record
Potential Impact
The Evidence Organizer decreases the decision time to rate veterans claims from 3.5 hours to 2.2 hours, a time savings of 37% per decision, increasing the number of veterans’ cases rated from 2 per day to 3 per day. On an annual basis this would increase the number of claims decisions per rating specialist to 711 from the current 533, an increase of 178 decisions per rating specialist or a 33% increase.
Evidence Organizer Process
The Evidence Organizer can be applied to all four steps in the rating process, decreasing time spent per case file by organizing and highlighting all medically related information. The Evidence Organizer works by converting the cumbersome paper-based claim file (c-file) to create an electronic record or file (e-file). This document management process begins with a Technician scanning in the c-file and other hand written documents through the use of Optical Character Recognition. The software transforms each record into a text searchable digital record. As additional records become available they are also integrated into the e-file. At the heart of this process is QTC’s core knowledge database, which is built upon our extensive disability examination experience supporting the VBA C&P examinations.
The knowledge database identifies, highlights and electronically indexes all keywords and claimed conditions, for example: diabetes, asthma, arthritis, as well as any potential claimable conditions throughout each record, thereby providing the rating specialist with all possible claimable conditions. Once the e-file has been established, each record is reviewed to validate the software’s indexing, creating an initial table of contents for the e-file.
The next step involves a Reviewer validating the highlighted records and linking the referenced medical evidence to the VA rating requirements in 38 CFR, Part 4. PDF scanned records not compatible with electronic screening methods (handwritten records) are reviewed page-by-page by the Reviewer and relevant information is highlighted, extracted, and digitally-indexed and linked to the rating criteria appropriate for the claimed condition or potentially claimable condition. Once all the records have been reviewed the software creates a full and complete e-file with a table of contents listing all claimed conditions.
Finally, the complete annotated e-file is electronically available for the VA rating specialist to review and assist in their rating decision process. The software suite allows the VA rating specialist to:
* Review and search each and every document at the click of a mouse.
* Review all tagged, annotated and associated data.
* Add the rating specialist’s determination of relevance with rationale electronically.
* Identify, tag and index additional information as desired.
* Document the rating decision made with the referenced evidence.
* Review any additional potentially claimable conditions
Summary
By applying new technologies such as the Evidence Organizer, the VBA could:
* Organize medical evidence.
* Reduce routine and repetitive tasks.
* Increase accuracy by facilitating cross-referencing.
* Link the rating criteria with the clinical annotation.
* Scan, index and review all medical records.
Also, The Evidence Organizer will potentially complement RBA-200 or other existing VBA software and serve as a training tool. With the current challenges the VBA is experiencing in claims processing, the application of this technology is essential to improving performance and efficiently providing veterans with accurate ratings.
[1] Statement of Mr. Ronald R. Aument before the House Committee of Veterans’ Affairs, March 13, 2007.
Subcommittees
* Disability Assistance and Memorial Affairs
* Economic Opportunity
* Health
* Oversight and Investigations
House Committee on Veterans' Affairs
335 Cannon House Office Building
Washington, D.C. 20515
(202) 225-9756
Privacy Policy | Site Map
return to top
November 19, 2008, at 10 a.m.
Roundtable Discussion on Issues Concerning Our VeteransStatement of Marjie Shahani, M.D. Senior Vice President, Operations QTC Management, Inc., Diamond Bar, CA
Testimony before Congress on claims processing. QTC interviewed experienced claims examiners and asked them to break down the process and allocate time for each step in the rating process, assuming 7 claimed conditions.
The four steps of the rating process and allotted times were:
1. Initial review of the c-file: 20 minutes.
2. Linking the evidence in the file to the claimed conditions: 85 minutes.
3. Determining the severity of the condition and if each is service connected: 40 minutes.
4. Writing the rating decision: 65 minutes.
The total time to examine a veteran’s claim is 210 minutes or 3.5 hours.
++++++++++++++++++++++++++++++++++++++++++++++++++++
http://veterans.house.gov/hearings/Testimony.aspx?TID=30555&Newsid=179&Name=%20Marjie%20%20Shahani,%20M.D.
House Committee on Veterans' Affairs
« Return to home page
Go directly to site content »
Large-Print Version | Default Text Size
Search this site
Search THOMAS for Legislation
Webcast link
November 19, 2008, at 10 a.m.
Roundtable Discussion on Issues Concerning Our Veterans
Hearings » The Use of Artificial Intelligence to Improve the U.S. Department of Veterans Affairs' Claims Processing System
Statement of Marjie Shahani, M.D.
Senior Vice President, Operations
QTC Management, Inc., Diamond Bar, CA
Mr. Chairman, Members of the Subcommittee, thank you for the opportunity to testify before you today on this important topic of claims processing. QTC is a nationwide, private provider of medical examination and medical record services to the medical and disability communities, including federal, state and local government agencies; property and casualty insurance carriers; third-party administrators; employers - and the claimants they serve. With 580 highly-trained employees located at five strategically-placed regional administrative offices, 35 owned and operated medical facilities in seven states, and more than 12,000 pre-screened medical professionals, QTC has produced more than 2.5 million quality medical exams and reports over the past ten years and pioneered software and technology to ensure quality, timely, customer-focused and cost effective services for our clients throughout our 25 years of experience.
QTC Experience with VBA C&P Process
QTC has been a provider of C&P examinations to the Veterans Benefits Administration (VBA) since 1998. QTC provides medical examinations to veterans and active duty service members seeking compensation from the VBA in 12 VA Regional Offices (VAROs) and 40 Department of Defense (DOD) Benefits Discharge Determination (BDD) sites around the country. After completing the medical exam, QTC provides a detailed narrative report according to the guidelines of the VA’s Automated Medical Information Exchange (AMIE) worksheets. VA’s rating specialists then use this information along with the veteran’s claim file, or c-file, to adjudicate the veteran’s claims. Supporting the VBA for the past nine years has provided QTC with an in-depth understanding of the complexity of the activities, nuances and uniqueness of the VA medical disability examination process, as well as its challenges.
QTC Developed Software Applications to Support the C&P Process
QTC has applied its experience and expertise in developing knowledge-based tools and technology, not as the company’s primary purpose, but to facilitate and streamline the work of QTC’s medical professionals and support staff.
Specifically for veterans’ C&P medical examinations, QTC has developed:
* A Client Portal - an Internet-based application specifically designed and written for VA Central Office, VAROs, and DOD. This application provides VA and DOD with online access to the status of each case and appointment details along with the exam results, including the narrative report and diagnostic test results, and provides the ability to review the progress of any case, review management reports, case summaries and perform a batch report download from a secured Internet connection.
* A Protocol Engine - A medical exam protocol engine, or software, that synthesizes multiple VA required AMIE worksheets with portions of the VA rating schedule (38 CFR, Part 4) into one veteran specific medical examination form, thereby providing examiners with a single head-to-toe examination. It organizes the VA requirements into a form that assures the physician will address each and every medically claimed condition for each veteran. This software generates a specific exam protocol based on VA AMIE worksheets and the veteran’s claimed conditions, and it allows for immediate updating to conform to VA statutory, regulatory and medical changes and quick dissemination to all providers nationwide.
A Logical Next Step - Organize the Evidence
Secondary to our nine years of experience working with VA, we acknowledge the complex challenges of the VA medical disability process - it is like no other disability program we have worked with previously. In an attempt to provide value-added services, QTC applied its knowledge and experience to the next step in the C&P process- specifically simplifying and streamlining the information gathering process for the rating specialists so that they are able to rate the veteran’s claim in a quality, timely, customer-focused and cost-effective manner.
QTC developed an Evidence Organizer (patent-pending) - a working prototype that is an automated rating tool designed to assist the VA rating specialist and significantly reduce the time to determine a rating decision. The Evidence Organizer has great potential to help rating specialists search and find relevant information needed to determine and rate claims and thus help the VBA facilitate the process of adjudicating each claim.
Current Rating Process Productivity and Challenges
The rating process begins when a veteran files a claim. The VA Triage Team identifies the type of disability claim. Then the VA Pre-Determination Team determines the need for additional information, such as a medical examination, and gathers the additional records. Once all the evidence is gathered, the Rating Team reviews the entire contents of the c-file and rates the veteran’s claim, determining entitlement to benefits and the degree of disability. The Evidence Organizer was designed to assist the rating specialist in their process of reviewing the entire contents of the c-file and to assist them in making that final decision.
Currently, the VA goal for each rating specialist is to rate an average of 3-4 cases per day. In 2006, QTC interviewed experienced claims examiners and asked them to break down the process and allocate time for each step in the rating process, assuming 7 claimed conditions. The four steps of the rating process and allotted times were:
1. Initial review of the c-file: 20 minutes.
2. Linking the evidence in the file to the claimed conditions: 85 minutes.
3. Determining the severity of the condition and if each is service connected: 40 minutes.
4. Writing the rating decision: 65 minutes.
The total time to examine a veteran’s claim is 210 minutes or 3.5 hours. It becomes evident that a rating specialist cannot meet a target of 3-4 cases per day in one 8-hour workday. In fact, the actual average number of cases a rating specialist can process in one day is 2-3 cases.
In 2007, based on QTC’s data, the average number of conditions claimed per veteran was 4 for C&P cases and 8 for BDD cases. Examples of multiple-claimed conditions include left knee pain, asthma, low back strain, foot fungus, hearing loss, and depression. Additionally, reopened claims now account for 54% of all open cases, and cases are being reopened with additional unclaimed secondary conditions, such as hypertension, headaches, or scars.[1]
The biggest challenge the rating specialist faces is finding the medical evidence in the veteran’s paper files supporting the claimed conditions and linking the evidence to the appropriate rating code as listed in the 38 CFR, Part 4. QTC’s Evidence Organizer would eliminate this challenge, allowing the rating specialist to more efficiently make the rating determinations. The Evidence Organizer accomplishes this by creating an organized electronic c-file, providing the rating specialist the ability to quickly search and review all available evidence at the click of a mouse. The rating specialist no longer needs to review the entire c-file over and over again for each claim they are rating as the Evidence Organizer has organized all the available evidence for them.
stack of papers arrow screenshot of an electronic medical record
Potential Impact
The Evidence Organizer decreases the decision time to rate veterans claims from 3.5 hours to 2.2 hours, a time savings of 37% per decision, increasing the number of veterans’ cases rated from 2 per day to 3 per day. On an annual basis this would increase the number of claims decisions per rating specialist to 711 from the current 533, an increase of 178 decisions per rating specialist or a 33% increase.
Evidence Organizer Process
The Evidence Organizer can be applied to all four steps in the rating process, decreasing time spent per case file by organizing and highlighting all medically related information. The Evidence Organizer works by converting the cumbersome paper-based claim file (c-file) to create an electronic record or file (e-file). This document management process begins with a Technician scanning in the c-file and other hand written documents through the use of Optical Character Recognition. The software transforms each record into a text searchable digital record. As additional records become available they are also integrated into the e-file. At the heart of this process is QTC’s core knowledge database, which is built upon our extensive disability examination experience supporting the VBA C&P examinations.
The knowledge database identifies, highlights and electronically indexes all keywords and claimed conditions, for example: diabetes, asthma, arthritis, as well as any potential claimable conditions throughout each record, thereby providing the rating specialist with all possible claimable conditions. Once the e-file has been established, each record is reviewed to validate the software’s indexing, creating an initial table of contents for the e-file.
The next step involves a Reviewer validating the highlighted records and linking the referenced medical evidence to the VA rating requirements in 38 CFR, Part 4. PDF scanned records not compatible with electronic screening methods (handwritten records) are reviewed page-by-page by the Reviewer and relevant information is highlighted, extracted, and digitally-indexed and linked to the rating criteria appropriate for the claimed condition or potentially claimable condition. Once all the records have been reviewed the software creates a full and complete e-file with a table of contents listing all claimed conditions.
Finally, the complete annotated e-file is electronically available for the VA rating specialist to review and assist in their rating decision process. The software suite allows the VA rating specialist to:
* Review and search each and every document at the click of a mouse.
* Review all tagged, annotated and associated data.
* Add the rating specialist’s determination of relevance with rationale electronically.
* Identify, tag and index additional information as desired.
* Document the rating decision made with the referenced evidence.
* Review any additional potentially claimable conditions
Summary
By applying new technologies such as the Evidence Organizer, the VBA could:
* Organize medical evidence.
* Reduce routine and repetitive tasks.
* Increase accuracy by facilitating cross-referencing.
* Link the rating criteria with the clinical annotation.
* Scan, index and review all medical records.
Also, The Evidence Organizer will potentially complement RBA-200 or other existing VBA software and serve as a training tool. With the current challenges the VBA is experiencing in claims processing, the application of this technology is essential to improving performance and efficiently providing veterans with accurate ratings.
[1] Statement of Mr. Ronald R. Aument before the House Committee of Veterans’ Affairs, March 13, 2007.
Subcommittees
* Disability Assistance and Memorial Affairs
* Economic Opportunity
* Health
* Oversight and Investigations
House Committee on Veterans' Affairs
335 Cannon House Office Building
Washington, D.C. 20515
(202) 225-9756
Privacy Policy | Site Map
return to top
Tracking Claim Folders, COVERS, VA Form 3025, File Charge Card
use the Control of Veterans Records System (COVERS) or VA Form 3025, File Charge Card to track the movement of each claims folder
M21-1MR, Part III, Subpart ii, Chapter 4, Section A
6. Control of Records, Continued
f. Maintaining Control of Records
Follow the steps in the table below to maintain control of records charged out of storage.
Step Action
1 Use either
+ COVERS, or
+ VA Form 3025.
2 Fill out the charge card to show the
+ mail routing symbol of the organizational element to where the folder was charged
+ type of mail or form number that caused the pulling of the folder
+ date the folder was charged out of the file bank, and
+ initials of the person who made the charge.
g. Requisitioning Individual Folders
To requisition individual folders, use either
* COVERS, or
* VA Form 70-3770, Requisition for Numbered Folder.
One of the traditional paper-based methods of keeping track of appeals at the Board was use of the Briefface folder. These Briefface folders traditionally reflected the status of the appeal as it traveled through the Board until an appeal was decided. Thereafter, the Briefface was removed from the claims folder before the folder was returned to the VA Regional Office
(VARO). The Briefface remained at BVA as a document in system 44VA01 until disposed of in accordance with procedures approved by the Archivist of the United States. However, since all the information contained in the Briefface is now tracked electronically, the Briefface
is obsolete. Therefore, the Board is discontinuing this method of collecting data. Brieffaces in use as of March 31, 2002, will be maintained in an offsite storage facility once the Board has
decided an appeal. They will be disposed of by shredding or burning after 18 months according to the timeline and procedural requirements of General Records Schedule 16, Item 7. The Representatives’ Fee Agreement Records System—VA , identified as 81VA01, was established in 1991 to allow the Board to monitor fee agreements between attorneys-at-law or accredited agents and claimants being represented before VA according to the provisions of 38 U.S.C. 5904. The information contained in this system includes paper copies of fee agreements and correspondence related to fee agreements and electronic information with regard to names and addresses of both parties to the agreements and VA identification numbers or social security
numbers. Since most of this information is already contained in VACOLS (44VA01), we believe that merging the two systems will obviate the need to retain 81VA01 and will eliminate
redundant data entry.
In addition, providing the information through VACOLS allows a VARO to
locate any existing fee agreement that requires withholding of a portion of the payment of past due benefits to a beneficiary. As of April 1, 2003, fee agreements and powers of attorney
received by the Board have been scanned and electronically available in VACOLS. Thus, VARO personnel no longer need to contact the Board in every instance where the question of fee
agreements arises and the Board need not create paper file folders to hold duplicate copies of fee agreements. The original fee agreement remains in the claimant’s file folder and the
electronically attached copy along with other pertinent data, becomes part of VACOLS.
The System Location notice has been updated to reflect the locations of the computer servers that house the system as well as VA sites where non-electronic records (e.g., tapes of hearings) are housed, as well as the address of the Board’s contractor
M21-1MR, Part III, Subpart ii, Chapter 4, Section A
6. Control of Records, Continued
f. Maintaining Control of Records
Follow the steps in the table below to maintain control of records charged out of storage.
Step Action
1 Use either
+ COVERS, or
+ VA Form 3025.
2 Fill out the charge card to show the
+ mail routing symbol of the organizational element to where the folder was charged
+ type of mail or form number that caused the pulling of the folder
+ date the folder was charged out of the file bank, and
+ initials of the person who made the charge.
g. Requisitioning Individual Folders
To requisition individual folders, use either
* COVERS, or
* VA Form 70-3770, Requisition for Numbered Folder.
One of the traditional paper-based methods of keeping track of appeals at the Board was use of the Briefface folder. These Briefface folders traditionally reflected the status of the appeal as it traveled through the Board until an appeal was decided. Thereafter, the Briefface was removed from the claims folder before the folder was returned to the VA Regional Office
(VARO). The Briefface remained at BVA as a document in system 44VA01 until disposed of in accordance with procedures approved by the Archivist of the United States. However, since all the information contained in the Briefface is now tracked electronically, the Briefface
is obsolete. Therefore, the Board is discontinuing this method of collecting data. Brieffaces in use as of March 31, 2002, will be maintained in an offsite storage facility once the Board has
decided an appeal. They will be disposed of by shredding or burning after 18 months according to the timeline and procedural requirements of General Records Schedule 16, Item 7. The Representatives’ Fee Agreement Records System—VA , identified as 81VA01, was established in 1991 to allow the Board to monitor fee agreements between attorneys-at-law or accredited agents and claimants being represented before VA according to the provisions of 38 U.S.C. 5904. The information contained in this system includes paper copies of fee agreements and correspondence related to fee agreements and electronic information with regard to names and addresses of both parties to the agreements and VA identification numbers or social security
numbers. Since most of this information is already contained in VACOLS (44VA01), we believe that merging the two systems will obviate the need to retain 81VA01 and will eliminate
redundant data entry.
In addition, providing the information through VACOLS allows a VARO to
locate any existing fee agreement that requires withholding of a portion of the payment of past due benefits to a beneficiary. As of April 1, 2003, fee agreements and powers of attorney
received by the Board have been scanned and electronically available in VACOLS. Thus, VARO personnel no longer need to contact the Board in every instance where the question of fee
agreements arises and the Board need not create paper file folders to hold duplicate copies of fee agreements. The original fee agreement remains in the claimant’s file folder and the
electronically attached copy along with other pertinent data, becomes part of VACOLS.
The System Location notice has been updated to reflect the locations of the computer servers that house the system as well as VA sites where non-electronic records (e.g., tapes of hearings) are housed, as well as the address of the Board’s contractor
FedCir., discussing the term "medical judgement", Emenaker v. Peake, No. 2008-7051
The FedCir touches on a number of important issues in Emenaker v. Peake, but we found their definition of what constitutes a medical judgment of interest.
Section 3.304(b)(1) of the DVA regulation does not make clear exactly what is contemplated by the term “medical judgment.” However, section 3.304(b)(2) explains that in determining whether the section 1111 presumption has been overcome, the DVA is free to consider “[h]istory conforming to accepted medical principles,” “basic clinical data,” “accepted medical and evidentiary principles,” “accepted medical evidence relating to incurrence, symptoms and course of the injury or disease,” “official and other records made prior to, during or subsequent to service,” and “all other lay and medical evidence concerning the inception, development and manifestations of the particular condition.” 38 C.F.R. § 3.304(b)(2).
EMENAKER v. PEAKE, No. 2008-7051 (DECIDED: December 31, 2008)
As we noted in Carbino v. West, 168 F.3d 32, 34-35 (Fed. Cir. 1999), the Veterans Court is not required to consider an appellant’s argument that is made for the first time in a reply brief in that court.
+++++++++++++++++++++++++++++++++++++++++++++++++++
statutory presumption that a veteran was in sound condition when enrolled for service, which can be overcome only by clear and unmistakable evidence that the veteran’s disability was both pre-existing and not aggravated by service. 38 U.S.C. § 1111; see Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004).
+++++++++++++++++++++++++++++++++++++++++++++++++++++++
Mr. Emenaker argues that Congress intentionally removed language stating that the soundness presumption may be rebutted by “evidence, or medical judgment” from section 1111 while retaining that language in section 1132. The purpose of creating that difference between the two statutes, according to Mr. Emenaker, was to ensure that for veterans covered by section 1111, medical judgment alone could not serve to rebut the soundness presumption. In addition, Mr. Emenaker relies on the regulation that implements section 1111, which states in pertinent part that determinations as to whether the presumption of soundness has been rebutted “should not be based on medical judgment alone as distinguished from accepted medical principles . . . .” 38 C.F.R. § 3.304(b)(1). +++++++++++++++++++++++++++++++++++++++++++++++++++++
Section 3.304(b)(1) of the DVA regulation does not make clear exactly what is contemplated by the term “medical judgment.” However, section 3.304(b)(2) explains that in determining whether the section 1111 presumption has been overcome, the DVA is free to consider “[h]istory conforming to accepted medical principles,” “basic clinical data,” “accepted medical and evidentiary principles,” “accepted medical evidence relating to incurrence, symptoms and course of the injury or disease,” “official and other records made prior to, during or subsequent to service,” and “all other lay and medical evidence concerning the inception, development and manifestations of the particular condition.” 38 C.F.R. § 3.304(b)(2).
++++++++++++++++++++++++++++++++++++++++++++++++++++
In order to present a legal issue in a veteran’s appeal, the appellant ordinarily must raise the issue properly before the Veterans Court; with limited exceptions, appellate courts do not consider issues that were not raised in the tribunal from which the appeal is taken, and we have held that those general principles of appellate practice apply in the context of appeals from the Veterans Court. See Forshey v. Principi, 284 F.3d 1335, 1355 (Fed. Cir. 2002) (en banc). While the requirement that an issue be preserved for appeal “does not demand the incantation of particular words, it requires that the lower court be fairly put on notice as to the substance of the issue.” Nelson v. Adams USA, Inc., 529 U.S. 460, 469 (2000).
++++++++++++++++++++++++++++++++++++++++++++++
United States Court of Appeals for the Federal Circuit
2008-7051
GREGORY J. EMENAKER,
Claimant-Appellant,
v.
JAMES B. PEAKE, M.D., Secretary of Veterans Affairs,
Respondent-Appellee.
J. Michael Jakes, Finnegan, Henderson, Farabow, Garrett & Dunner, L.L.P., of Washington, DC, argued for claimant-appellant. With him on the brief was Ronald L. Smith. Of counsel was Harold M. Shaw, King & Spalding LLP, of Washington, DC.
Elizabeth A. Holt, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, argued for respondent-appellee. With her on the brief were Gregory G. Katsas, Assistant Attorney General, Jeanne E. Davidson, Director, and Martin F. Hockey, Jr., Assistant Director. Of counsel was Brian T. Edmunds, Trial Attorney. Of counsel on the brief were Ethan Kalett, Supervisory Attorney, and Michael G. Daugherty, 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 William A. Moorman
United States Court of Appeals for the Federal Circuit
2008-7051
GREGORY J. EMENAKER,
Claimant-Appellant,
v.
JAMES B. PEAKE, M.D., Secretary of Veterans Affairs,
Respondent-Appellee.
Appeal from the United States Court of Appeals for Veterans Claims in 05-3169,
Judge William A. Moorman.
___________________________
DECIDED: December 31, 2008
___________________________
Before SCHALL, FRIEDMAN, and BRYSON, Circuit Judges.
BRYSON, Circuit Judge.
Gregory J. Emenaker, a veteran, appeals from a decision of the United States Court of Appeals for Veterans Claims (“the Veterans Court”), which denied his request for benefits attributable to a service connected disability stemming from a neurological disorder. Mr. Emenaker argues that the Veterans Court misinterpreted the statutory presumption of sound condition accorded to veterans, 38 U.S.C. § 1111, and the regulation that implements that presumption, 38 C.F.R. § 3.304(b). Because we hold that the argument Mr. Emenaker presents to us has not been properly preserved for appeal, we affirm. 2008-7051 2
I
Mr. Emenaker served on active duty in the United States Navy from October 1974 to October 1994. In-service medical records reflected that he suffered from slight weakness on the left side of his body. CT imaging conducted during his service revealed subtle changes in the right hemisphere of his brain, which led the examining physician to conclude that Mr. Emenaker suffered from brain atrophy and weakness of the left upper and lower extremities secondary to a traumatic brain injury that he experienced as a child.
In December 1994, after his retirement, Mr. Emenaker filed a claim for service connection for several conditions, including atrophy of the right cerebral hemisphere and a resulting weakness on the left side of his body. A regional office of the Department of Veterans Affairs (“DVA”) granted Mr. Emenaker’s claim of service connection for an in-service fracture of his left shoulder, but denied service connection for his brain injury and left side weakness on the ground that the condition originated prior to service and had not been aggravated during service. On appeal, the Board of Veterans’ Appeals determined that the regional office had improperly relied on its own assessment of the medical evidence and that there had been “no professional medical opinion regarding whether the veteran’s disorder was aggravated by service.” The Board remanded the case to the regional office in April 1999 to determine, among other things, “whether there is evidence of aggravation in service beyond natural progress pursuant to 38 C.F.R. §§ 3.304(b), 3.306.” The regional office arranged for an independent medical examination of Mr. Emenaker, which was conducted by Dr. Patrick Kilhenny in July 2000. 2008-7051 3
Following that examination, Dr. Kilhenny prepared a report in which he noted that Mr. Emenaker’s left-side weakness had previously been traced to a motor vehicle accident that occurred when Mr. Emenaker was five years old. Mr. Emenaker reported that the accident left him in a coma for some time and required speech therapy thereafter. Dr. Kilhenny concluded that Mr. Emenaker “has had a gradual increasing weakness on the left side of his body for approximately ten years time,” and that although he “does not have a primary motor neuron disease,” he had “an old encephalomalacia [softening of the brain tissue] seen on his MRI with resultant left hemiparesis [weakening of the left side of the body] which I would describe as mild.” Dr. Kilhenny further concluded that Mr. Emenaker’s symptoms “are secondary to his childhood accident and do not represent evidence of a new neurologic entity.” He added that “[o]ccasionally, head injured patients can have a slight worsening of their symptoms with age and this is due to the normal dying off phenomenon of neurons which can bring out a weakness later in life.” Based on that report, the regional office issued a Supplemental Statement of the Case, again denying Mr. Emenaker’s application for benefits. Subsequently, and at the request of the regional office, Dr. Kilhenny provided an addendum to his report, in which he stated:
It is my professional opinion, that it is at least as likely as not,
a) that this veteran’s disorder pre-existed entrance into the military service.
b) the veteran underwent a normal progression, during service; age related changes.
c) The increase was normal, age related loss; not job related.
The regional office then prepared another Supplemental Statement of the Case, again denying Mr. Emenaker’s claim. The Board of Veterans’ Appeals affirmed that decision in January 2002. The Board found that “while the evidence does establish that 2008-7051 4
there was a permanent increase in severity of the veteran’s preexisting disability during service, the evidence also clearly and unmistakably establishes that this increase was due to the natural progress of that disability.” Accordingly, the Board concluded that Mr. Emenaker’s preexisting disability was not aggravated as a result of his military service.
The Veterans Court vacated that decision in April 2005. The court focused on the “at least as likely as not” language in Dr. Kilhenny’s supplemental statement and ruled that the Board had failed to explain adequately how that statement could satisfy the requirement of clear and unmistakable evidence needed to rebut the presumption of aggravation under 38 U.S.C. § 1111 and 38 C.F.R. § 3.304. The court stated that the Board “must fully and adequately explain whether the opinion rises to the level of clear-and-unmistakable evidence despite the use of the seemingly equivocal phrase ‘at least as likely as not.’”
On remand, the Board in a 2005 opinion explained that Dr. Kilhenny’s statement was responding to questions set forth in the Board’s 1999 opinion, in which the Board had specifically directed him “to provide an opinion as to whether it is at least as likely as not that: a) the disorder pre-existed entrance into military service; b) if so, did it undergo an increase in severity during service; c) if so, was any such increase beyond the natural progress of the disease.” The Board in its 2005 opinion then added:
We recognize that the rubric “at least as likely as not” is not, taken alone, strictly equivalent to “clear and unmistakable evidence.” However, the neurological examiner’s addendum followed up on his detailed and comprehensive examination report, which described the veteran’s pre-service and in-service history, and his present condition. Based upon a careful reading of the examiner’s initial report and subsequent addendum, the Board believes the opinion is unequivocal in concluding that the increase in the veteran’s symptomatology in service represented an expected and normal progression due to the aging process. 2008-7051 5
Based on that assessment, the Board concluded that the record contained clear and unmistakable evidence that the increase in severity of Mr. Emenaker’s symptoms was due to the natural progression of a preservice condition. Accordingly, the Board denied his claim. Mr. Emenaker appealed that decision to the Veterans Court. After assessing the Board’s explanation of Dr. Kilhenny’s statement, the court concluded that the language he used “is not fatal to his opinion.” The court then affirmed the Board’s decision denying service connection for Mr. Emenaker’s condition, and Mr. Emenaker appealed to this court.
II
Mr. Emenaker’s legal argument on appeal relates to the statutory presumption that a veteran was in sound condition when enrolled for service, which can be overcome only by clear and unmistakable evidence that the veteran’s disability was both pre-existing and not aggravated by service. 38 U.S.C. § 1111; see Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). Mr. Emenaker concedes that his condition originated prior to his entry into military service. As a result, his challenge focuses on whether his condition was aggravated by service. As to that issue, he contends that the statutory presumption of aggravation, which applies whenever a pre-service disability increases in severity during service, cannot be rebutted by medical judgment alone, and that the presumption should not have been held to be rebutted in his case by a single medical professional’s opinion.
Mr. Emenaker relies on the statute that sets forth the presumption of soundness, as well as the statute’s implementing regulation. Mr. Emenaker’s statutory argument depends on a comparison between 38 U.S.C. § 1111, which creates the soundness
2008-7051 6
presumption applicable to veterans (such as Mr. Emenaker) who served during wartime, and 38 U.S.C. § 1132, which creates an analogous presumption applicable to veterans of peacetime service.1 Pointing to the difference in language between the two statutes, Mr. Emenaker argues that Congress intentionally removed language stating that the soundness presumption may be rebutted by “evidence, or medical judgment” from section 1111 while retaining that language in section 1132. The purpose of creating that difference between the two statutes, according to Mr. Emenaker, was to ensure that for veterans covered by section 1111, medical judgment alone could not serve to rebut the soundness presumption. In addition, Mr. Emenaker relies on the regulation that implements section 1111, which states in pertinent part that determinations as to whether the presumption of soundness has been rebutted “should not be based on medical judgment alone as distinguished from accepted medical principles . . . .” 38 C.F.R. § 3.304(b)(1). Mr. Emenaker concludes that the government improperly made the dispositive finding in his case-that his brain atrophy was not aggravated by a service connection-by relying solely on Dr. Kilhenny’s medical judgment, and that doing so constituted legal error.
The government agrees with Mr. Emenaker that in light of the regulation, medical judgment alone cannot overcome the presumption of soundness in 38 U.S.C. § 1111. However, the government contends that the DVA may rely on “medical opinion or medical evidence,” which is not reliance on “medical judgment alone,” and that the DVA properly did so in this case.
1 Although the two statutes purport to create different rules for the two classes of veterans, the DVA’s regulations effectively apply the wartime standard to nearly all veterans, including all “peacetime” veterans whose service postdates 1946.
2008-7051 7
Section 3.304(b)(1) of the DVA regulation does not make clear exactly what is contemplated by the term “medical judgment.” However, section 3.304(b)(2) explains that in determining whether the section 1111 presumption has been overcome, the DVA is free to consider “[h]istory conforming to accepted medical principles,” “basic clinical data,” “accepted medical and evidentiary principles,” “accepted medical evidence relating to incurrence, symptoms and course of the injury or disease,” “official and other records made prior to, during or subsequent to service,” and “all other lay and medical evidence concerning the inception, development and manifestations of the particular condition.” 38 C.F.R. § 3.304(b)(2).
In Harris v. West, 203 F.3d 1347 (Fed. Cir. 2000), we emphasized the breadth of that regulatory provision. The veteran in that case challenged the denial of service connection based on the legal argument that the presumption of soundness may be rebutted only by contemporaneous evidence, as opposed to a medical professional’s after-the-fact assessment. We held that there is no such requirement. To the contrary, we stated that the statute “says nothing about the kind of evidence that can be used to rebut the presumption.” Id. at 1349. We added that the regulation provides that “[h]istory conforming to accepted medical principles should be given due consideration, in conjunction with basic clinical data, and be accorded probative value consistent with accepted medical and evidentiary principles . . . .” Id. at 1350 (quoting from 38 C.F.R. § 3.304(b)(2)). We interpreted that direction to mean that “the finder of fact should consider all medically accepted evidence bearing on whether the service member was suffering from the disease or injury in question prior to induction.” Id. Although we emphasized that the regulation provides broad authorization as to the kinds of evidence
2008-7051 8
that the DVA may consider in determining whether the presumption of soundness has been overcome, we had no occasion to address the meaning of the regulatory prohibition against the use of “medical judgment alone as distinguished from accepted medical principles.” 38 C.F.R. § 3.304(b)(1). That issue, which Mr. Emenaker seeks to raise here, was thus not addressed or resolved in Harris.
Mr. Emenaker argues that there is a meaningful difference between medical principles and medical judgment. He argues that a case “in which a physician concludes that accepted medical principles compel the conclusion that an injury or disease preexisted service is fundamentally different from one in which the physician offers only his personal opinion. The former is not, while the latter is, mere medical judgment.” Mr. Emenaker contends that “a private physician’s opinion is no more than medical judgment alone.” For the reasons explained below, however, we conclude that Mr. Emenaker did not raise that argument in a way that preserved the issue for review here. We therefore do not reach the merits of his claim that the DVA improperly relied on “medical judgment alone” in finding that the presumption of soundness was rebutted.
III
In order to present a legal issue in a veteran’s appeal, the appellant ordinarily must raise the issue properly before the Veterans Court; with limited exceptions, appellate courts do not consider issues that were not raised in the tribunal from which the appeal is taken, and we have held that those general principles of appellate practice apply in the context of appeals from the Veterans Court. See Forshey v. Principi, 284 F.3d 1335, 1355 (Fed. Cir. 2002) (en banc). While the requirement that an issue be preserved for appeal “does not demand the incantation of particular words, it requires
2008-7051 9
that the lower court be fairly put on notice as to the substance of the issue.” Nelson v. Adams USA, Inc., 529 U.S. 460, 469 (2000).
As noted, Mr. Emenaker argues in this court that a physician’s opinion alone is insufficient to rebut the presumption of soundness in 38 U.S.C. §1111. In his brief before the Veterans Court, however, Mr. Emenaker made a different argument. He argued that Dr. Kilhenny’s opinion was insufficient to rebut the presumption of soundness because Dr. Kilhenny expressed his opinion by using the expression “at least as likely as not.” Those two arguments plainly do not embody the same concept.
It is not surprising that Mr. Emenaker focused on the question whether the “at least as likely as not” language in Dr. Kilhenny’s opinion could rise to the level of clear and unmistakable evidence required to rebut a presumption of aggravation, as that had been the issue on which the Veterans Court had previously remanded the case to the Board. When the Veterans Court first dealt with the case, that court had specifically determined that the Board “also failed to explain how the ‘at least as likely as not’ language in Dr. Kilhenny’s report could rise to the level of clear-and-unmistakable evidence,” and it had directed that “if the Board again relies on Dr. Kilhenny’s opinion, it must fully and adequately explain whether the opinion rises to the level of clear-and-unmistakable evidence despite the use of the seemingly equivocal phrase ‘at least as likely as not.’” When the Board reconsidered that issue, it responded to the Veterans Court’s concern that Dr. Kilhenny’s use of the “at least as likely as not” language was indicative of something less than clear and unmistakable evidence by stating, “We recognize that the rubric ‘at least as likely as not’ is not, taken alone, strictly equivalent to ‘clear and unmistakable evidence.’” It is therefore not surprising that when Mr.
2008-7051 10
Emenaker chose to again appeal to the Veterans Court, he elected to focus on that very issue.
Mr. Emenaker’s brief before the Veterans Court represented that he was raising only a single issue: “The Board’s decision fails to explain how Dr. Kilhenny’s opinion can be deemed undebatable in light of his use of ‘at least as likely as not.’” Mr. Emenaker then succinctly explained his position as follows: “The Board’s finding is founded on Dr. Kilhenny’s opinion. That opinion fails to satisfy the onerous clear and unmistakable evidence standard because it is expressed in terms of ‘at least as likely as not.’” Mr. Emenaker now asks that we look to a single, broadly worded expression of his argument to conclude that he had in fact been challenging Dr. Kilhenny’s opinion as a “medical judgment” that was barred from consideration by the Board. In his brief, Mr. Emenaker stated, “Dr. Kilhenny’s opinion is insufficient as a matter of law to satisfy the clear and unmistakable evidence standard.” It is clear, however, that when he made that statement in his opening brief before the Veterans Court, Mr. Emenaker was attacking the sufficiency of the medical evidence, not because it consisted of a medical judgment but because the language of Dr. Kilhenny’s medical opinion appeared to be equivocal. Later in the brief, Mr. Emenaker spelled out that point with more specificity:
Had Dr. Kilhenny’s opinion been clear and unmistakable, i.e., undebatable, then he would have simply omitted the “it is at least as likely as not” language and the report would have read: It is my professional opinion that the veteran underwent a normal progression, during service; age related changes. Rather than express his opinion in such an unequivocal manner, Dr. Kilhenny included the qualifying phrase “at least as likely as not.”
2008-7051 11
A reasonable inference from that argument is that if Dr. Kilhenny had expressed his opinion without the purportedly offending language, Mr. Emenaker would have had no cause to complain.
It was not until his reply brief before the Veterans Court that Mr. Emenaker contended for the first time that Dr. Kilhenny’s opinion was insufficient to rebut the presumption of soundness because it was a “medical judgment,” the argument that he now makes before this court. As he stated in his reply brief, “medical judgment evidence standing alone is legally insufficient to rebut the § 1111 presumption of soundness.”
It is clear that Mr. Emenaker’s later argument is not the same as his prior one. While Mr. Emenaker’s argument in his opening brief raised a question of whether Dr. Kilhenny’s medical opinion was sufficiently unqualified to satisfy the “clear and unequivocal evidence” standard, the argument in his reply brief was that no medical opinion can be sufficient to overcome the presumption of aggravation, which is a distinctly different claim. The different character of the two arguments is underscored by the fact that we would have jurisdiction over the second claim, but not the first. While the claim Mr. Emenaker now presents to this court is purely legal, the claim he presented to the Veterans Court in his opening brief would be beyond our jurisdictional reach on appeal as “a challenge to a factual determination” or “a challenge to a law or regulation as applied to the facts of a particular case.” 38 U.S.C. § 7292(d)(2).
As we noted in Carbino v. West, 168 F.3d 32, 34-35 (Fed. Cir. 1999), the Veterans Court is not required to consider an appellant’s argument that is made for the first time in a reply brief in that court. In this case, the Veterans Court did not address
2008-7051 12
2 This court’s predecessor addressed similar regulatory language in an Army regulation dealing with disability retirement, see Reese v. United States, 180 Ct. Cl. 932 (1967); Siegel v. United States, 148 Ct. Cl. 420 (1960), and a judge of the Veterans Court has addressed the argument raised by Mr. Emenaker in a separate opinion, see Jordan v. Principi, 17 Vet. App. 261 (2003) (Steinberg, J., separate views). Those cases may provide some guidance in any future consideration of the regulatory language by the Veterans Court.
the “medical judgment” argument made by Mr. Emenaker for the first time in his reply brief, and for those reasons, we consider that argument waived.
In light of the somewhat confusing language used in the regulation, the issue that Mr. Emenaker seeks to present to us is a potentially significant one; it appears, moreover, to be one that neither the Veterans Court nor this court has squarely addressed.2 It certainly was not addressed by the Veterans Court in this case, for the reasons we have explained. And because it would be imprudent for us to address the issue without the benefit of its having been properly presented to, and decided by, the Veterans Court, we decline to address the issue in the first instance.
No costs.
AFFIRMED.
Section 3.304(b)(1) of the DVA regulation does not make clear exactly what is contemplated by the term “medical judgment.” However, section 3.304(b)(2) explains that in determining whether the section 1111 presumption has been overcome, the DVA is free to consider “[h]istory conforming to accepted medical principles,” “basic clinical data,” “accepted medical and evidentiary principles,” “accepted medical evidence relating to incurrence, symptoms and course of the injury or disease,” “official and other records made prior to, during or subsequent to service,” and “all other lay and medical evidence concerning the inception, development and manifestations of the particular condition.” 38 C.F.R. § 3.304(b)(2).
EMENAKER v. PEAKE, No. 2008-7051 (DECIDED: December 31, 2008)
As we noted in Carbino v. West, 168 F.3d 32, 34-35 (Fed. Cir. 1999), the Veterans Court is not required to consider an appellant’s argument that is made for the first time in a reply brief in that court.
+++++++++++++++++++++++++++++++++++++++++++++++++++
statutory presumption that a veteran was in sound condition when enrolled for service, which can be overcome only by clear and unmistakable evidence that the veteran’s disability was both pre-existing and not aggravated by service. 38 U.S.C. § 1111; see Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004).
+++++++++++++++++++++++++++++++++++++++++++++++++++++++
Mr. Emenaker argues that Congress intentionally removed language stating that the soundness presumption may be rebutted by “evidence, or medical judgment” from section 1111 while retaining that language in section 1132. The purpose of creating that difference between the two statutes, according to Mr. Emenaker, was to ensure that for veterans covered by section 1111, medical judgment alone could not serve to rebut the soundness presumption. In addition, Mr. Emenaker relies on the regulation that implements section 1111, which states in pertinent part that determinations as to whether the presumption of soundness has been rebutted “should not be based on medical judgment alone as distinguished from accepted medical principles . . . .” 38 C.F.R. § 3.304(b)(1). +++++++++++++++++++++++++++++++++++++++++++++++++++++
Section 3.304(b)(1) of the DVA regulation does not make clear exactly what is contemplated by the term “medical judgment.” However, section 3.304(b)(2) explains that in determining whether the section 1111 presumption has been overcome, the DVA is free to consider “[h]istory conforming to accepted medical principles,” “basic clinical data,” “accepted medical and evidentiary principles,” “accepted medical evidence relating to incurrence, symptoms and course of the injury or disease,” “official and other records made prior to, during or subsequent to service,” and “all other lay and medical evidence concerning the inception, development and manifestations of the particular condition.” 38 C.F.R. § 3.304(b)(2).
++++++++++++++++++++++++++++++++++++++++++++++++++++
In order to present a legal issue in a veteran’s appeal, the appellant ordinarily must raise the issue properly before the Veterans Court; with limited exceptions, appellate courts do not consider issues that were not raised in the tribunal from which the appeal is taken, and we have held that those general principles of appellate practice apply in the context of appeals from the Veterans Court. See Forshey v. Principi, 284 F.3d 1335, 1355 (Fed. Cir. 2002) (en banc). While the requirement that an issue be preserved for appeal “does not demand the incantation of particular words, it requires that the lower court be fairly put on notice as to the substance of the issue.” Nelson v. Adams USA, Inc., 529 U.S. 460, 469 (2000).
++++++++++++++++++++++++++++++++++++++++++++++
United States Court of Appeals for the Federal Circuit
2008-7051
GREGORY J. EMENAKER,
Claimant-Appellant,
v.
JAMES B. PEAKE, M.D., Secretary of Veterans Affairs,
Respondent-Appellee.
J. Michael Jakes, Finnegan, Henderson, Farabow, Garrett & Dunner, L.L.P., of Washington, DC, argued for claimant-appellant. With him on the brief was Ronald L. Smith. Of counsel was Harold M. Shaw, King & Spalding LLP, of Washington, DC.
Elizabeth A. Holt, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, argued for respondent-appellee. With her on the brief were Gregory G. Katsas, Assistant Attorney General, Jeanne E. Davidson, Director, and Martin F. Hockey, Jr., Assistant Director. Of counsel was Brian T. Edmunds, Trial Attorney. Of counsel on the brief were Ethan Kalett, Supervisory Attorney, and Michael G. Daugherty, 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 William A. Moorman
United States Court of Appeals for the Federal Circuit
2008-7051
GREGORY J. EMENAKER,
Claimant-Appellant,
v.
JAMES B. PEAKE, M.D., Secretary of Veterans Affairs,
Respondent-Appellee.
Appeal from the United States Court of Appeals for Veterans Claims in 05-3169,
Judge William A. Moorman.
___________________________
DECIDED: December 31, 2008
___________________________
Before SCHALL, FRIEDMAN, and BRYSON, Circuit Judges.
BRYSON, Circuit Judge.
Gregory J. Emenaker, a veteran, appeals from a decision of the United States Court of Appeals for Veterans Claims (“the Veterans Court”), which denied his request for benefits attributable to a service connected disability stemming from a neurological disorder. Mr. Emenaker argues that the Veterans Court misinterpreted the statutory presumption of sound condition accorded to veterans, 38 U.S.C. § 1111, and the regulation that implements that presumption, 38 C.F.R. § 3.304(b). Because we hold that the argument Mr. Emenaker presents to us has not been properly preserved for appeal, we affirm. 2008-7051 2
I
Mr. Emenaker served on active duty in the United States Navy from October 1974 to October 1994. In-service medical records reflected that he suffered from slight weakness on the left side of his body. CT imaging conducted during his service revealed subtle changes in the right hemisphere of his brain, which led the examining physician to conclude that Mr. Emenaker suffered from brain atrophy and weakness of the left upper and lower extremities secondary to a traumatic brain injury that he experienced as a child.
In December 1994, after his retirement, Mr. Emenaker filed a claim for service connection for several conditions, including atrophy of the right cerebral hemisphere and a resulting weakness on the left side of his body. A regional office of the Department of Veterans Affairs (“DVA”) granted Mr. Emenaker’s claim of service connection for an in-service fracture of his left shoulder, but denied service connection for his brain injury and left side weakness on the ground that the condition originated prior to service and had not been aggravated during service. On appeal, the Board of Veterans’ Appeals determined that the regional office had improperly relied on its own assessment of the medical evidence and that there had been “no professional medical opinion regarding whether the veteran’s disorder was aggravated by service.” The Board remanded the case to the regional office in April 1999 to determine, among other things, “whether there is evidence of aggravation in service beyond natural progress pursuant to 38 C.F.R. §§ 3.304(b), 3.306.” The regional office arranged for an independent medical examination of Mr. Emenaker, which was conducted by Dr. Patrick Kilhenny in July 2000. 2008-7051 3
Following that examination, Dr. Kilhenny prepared a report in which he noted that Mr. Emenaker’s left-side weakness had previously been traced to a motor vehicle accident that occurred when Mr. Emenaker was five years old. Mr. Emenaker reported that the accident left him in a coma for some time and required speech therapy thereafter. Dr. Kilhenny concluded that Mr. Emenaker “has had a gradual increasing weakness on the left side of his body for approximately ten years time,” and that although he “does not have a primary motor neuron disease,” he had “an old encephalomalacia [softening of the brain tissue] seen on his MRI with resultant left hemiparesis [weakening of the left side of the body] which I would describe as mild.” Dr. Kilhenny further concluded that Mr. Emenaker’s symptoms “are secondary to his childhood accident and do not represent evidence of a new neurologic entity.” He added that “[o]ccasionally, head injured patients can have a slight worsening of their symptoms with age and this is due to the normal dying off phenomenon of neurons which can bring out a weakness later in life.” Based on that report, the regional office issued a Supplemental Statement of the Case, again denying Mr. Emenaker’s application for benefits. Subsequently, and at the request of the regional office, Dr. Kilhenny provided an addendum to his report, in which he stated:
It is my professional opinion, that it is at least as likely as not,
a) that this veteran’s disorder pre-existed entrance into the military service.
b) the veteran underwent a normal progression, during service; age related changes.
c) The increase was normal, age related loss; not job related.
The regional office then prepared another Supplemental Statement of the Case, again denying Mr. Emenaker’s claim. The Board of Veterans’ Appeals affirmed that decision in January 2002. The Board found that “while the evidence does establish that 2008-7051 4
there was a permanent increase in severity of the veteran’s preexisting disability during service, the evidence also clearly and unmistakably establishes that this increase was due to the natural progress of that disability.” Accordingly, the Board concluded that Mr. Emenaker’s preexisting disability was not aggravated as a result of his military service.
The Veterans Court vacated that decision in April 2005. The court focused on the “at least as likely as not” language in Dr. Kilhenny’s supplemental statement and ruled that the Board had failed to explain adequately how that statement could satisfy the requirement of clear and unmistakable evidence needed to rebut the presumption of aggravation under 38 U.S.C. § 1111 and 38 C.F.R. § 3.304. The court stated that the Board “must fully and adequately explain whether the opinion rises to the level of clear-and-unmistakable evidence despite the use of the seemingly equivocal phrase ‘at least as likely as not.’”
On remand, the Board in a 2005 opinion explained that Dr. Kilhenny’s statement was responding to questions set forth in the Board’s 1999 opinion, in which the Board had specifically directed him “to provide an opinion as to whether it is at least as likely as not that: a) the disorder pre-existed entrance into military service; b) if so, did it undergo an increase in severity during service; c) if so, was any such increase beyond the natural progress of the disease.” The Board in its 2005 opinion then added:
We recognize that the rubric “at least as likely as not” is not, taken alone, strictly equivalent to “clear and unmistakable evidence.” However, the neurological examiner’s addendum followed up on his detailed and comprehensive examination report, which described the veteran’s pre-service and in-service history, and his present condition. Based upon a careful reading of the examiner’s initial report and subsequent addendum, the Board believes the opinion is unequivocal in concluding that the increase in the veteran’s symptomatology in service represented an expected and normal progression due to the aging process. 2008-7051 5
Based on that assessment, the Board concluded that the record contained clear and unmistakable evidence that the increase in severity of Mr. Emenaker’s symptoms was due to the natural progression of a preservice condition. Accordingly, the Board denied his claim. Mr. Emenaker appealed that decision to the Veterans Court. After assessing the Board’s explanation of Dr. Kilhenny’s statement, the court concluded that the language he used “is not fatal to his opinion.” The court then affirmed the Board’s decision denying service connection for Mr. Emenaker’s condition, and Mr. Emenaker appealed to this court.
II
Mr. Emenaker’s legal argument on appeal relates to the statutory presumption that a veteran was in sound condition when enrolled for service, which can be overcome only by clear and unmistakable evidence that the veteran’s disability was both pre-existing and not aggravated by service. 38 U.S.C. § 1111; see Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). Mr. Emenaker concedes that his condition originated prior to his entry into military service. As a result, his challenge focuses on whether his condition was aggravated by service. As to that issue, he contends that the statutory presumption of aggravation, which applies whenever a pre-service disability increases in severity during service, cannot be rebutted by medical judgment alone, and that the presumption should not have been held to be rebutted in his case by a single medical professional’s opinion.
Mr. Emenaker relies on the statute that sets forth the presumption of soundness, as well as the statute’s implementing regulation. Mr. Emenaker’s statutory argument depends on a comparison between 38 U.S.C. § 1111, which creates the soundness
2008-7051 6
presumption applicable to veterans (such as Mr. Emenaker) who served during wartime, and 38 U.S.C. § 1132, which creates an analogous presumption applicable to veterans of peacetime service.1 Pointing to the difference in language between the two statutes, Mr. Emenaker argues that Congress intentionally removed language stating that the soundness presumption may be rebutted by “evidence, or medical judgment” from section 1111 while retaining that language in section 1132. The purpose of creating that difference between the two statutes, according to Mr. Emenaker, was to ensure that for veterans covered by section 1111, medical judgment alone could not serve to rebut the soundness presumption. In addition, Mr. Emenaker relies on the regulation that implements section 1111, which states in pertinent part that determinations as to whether the presumption of soundness has been rebutted “should not be based on medical judgment alone as distinguished from accepted medical principles . . . .” 38 C.F.R. § 3.304(b)(1). Mr. Emenaker concludes that the government improperly made the dispositive finding in his case-that his brain atrophy was not aggravated by a service connection-by relying solely on Dr. Kilhenny’s medical judgment, and that doing so constituted legal error.
The government agrees with Mr. Emenaker that in light of the regulation, medical judgment alone cannot overcome the presumption of soundness in 38 U.S.C. § 1111. However, the government contends that the DVA may rely on “medical opinion or medical evidence,” which is not reliance on “medical judgment alone,” and that the DVA properly did so in this case.
1 Although the two statutes purport to create different rules for the two classes of veterans, the DVA’s regulations effectively apply the wartime standard to nearly all veterans, including all “peacetime” veterans whose service postdates 1946.
2008-7051 7
Section 3.304(b)(1) of the DVA regulation does not make clear exactly what is contemplated by the term “medical judgment.” However, section 3.304(b)(2) explains that in determining whether the section 1111 presumption has been overcome, the DVA is free to consider “[h]istory conforming to accepted medical principles,” “basic clinical data,” “accepted medical and evidentiary principles,” “accepted medical evidence relating to incurrence, symptoms and course of the injury or disease,” “official and other records made prior to, during or subsequent to service,” and “all other lay and medical evidence concerning the inception, development and manifestations of the particular condition.” 38 C.F.R. § 3.304(b)(2).
In Harris v. West, 203 F.3d 1347 (Fed. Cir. 2000), we emphasized the breadth of that regulatory provision. The veteran in that case challenged the denial of service connection based on the legal argument that the presumption of soundness may be rebutted only by contemporaneous evidence, as opposed to a medical professional’s after-the-fact assessment. We held that there is no such requirement. To the contrary, we stated that the statute “says nothing about the kind of evidence that can be used to rebut the presumption.” Id. at 1349. We added that the regulation provides that “[h]istory conforming to accepted medical principles should be given due consideration, in conjunction with basic clinical data, and be accorded probative value consistent with accepted medical and evidentiary principles . . . .” Id. at 1350 (quoting from 38 C.F.R. § 3.304(b)(2)). We interpreted that direction to mean that “the finder of fact should consider all medically accepted evidence bearing on whether the service member was suffering from the disease or injury in question prior to induction.” Id. Although we emphasized that the regulation provides broad authorization as to the kinds of evidence
2008-7051 8
that the DVA may consider in determining whether the presumption of soundness has been overcome, we had no occasion to address the meaning of the regulatory prohibition against the use of “medical judgment alone as distinguished from accepted medical principles.” 38 C.F.R. § 3.304(b)(1). That issue, which Mr. Emenaker seeks to raise here, was thus not addressed or resolved in Harris.
Mr. Emenaker argues that there is a meaningful difference between medical principles and medical judgment. He argues that a case “in which a physician concludes that accepted medical principles compel the conclusion that an injury or disease preexisted service is fundamentally different from one in which the physician offers only his personal opinion. The former is not, while the latter is, mere medical judgment.” Mr. Emenaker contends that “a private physician’s opinion is no more than medical judgment alone.” For the reasons explained below, however, we conclude that Mr. Emenaker did not raise that argument in a way that preserved the issue for review here. We therefore do not reach the merits of his claim that the DVA improperly relied on “medical judgment alone” in finding that the presumption of soundness was rebutted.
III
In order to present a legal issue in a veteran’s appeal, the appellant ordinarily must raise the issue properly before the Veterans Court; with limited exceptions, appellate courts do not consider issues that were not raised in the tribunal from which the appeal is taken, and we have held that those general principles of appellate practice apply in the context of appeals from the Veterans Court. See Forshey v. Principi, 284 F.3d 1335, 1355 (Fed. Cir. 2002) (en banc). While the requirement that an issue be preserved for appeal “does not demand the incantation of particular words, it requires
2008-7051 9
that the lower court be fairly put on notice as to the substance of the issue.” Nelson v. Adams USA, Inc., 529 U.S. 460, 469 (2000).
As noted, Mr. Emenaker argues in this court that a physician’s opinion alone is insufficient to rebut the presumption of soundness in 38 U.S.C. §1111. In his brief before the Veterans Court, however, Mr. Emenaker made a different argument. He argued that Dr. Kilhenny’s opinion was insufficient to rebut the presumption of soundness because Dr. Kilhenny expressed his opinion by using the expression “at least as likely as not.” Those two arguments plainly do not embody the same concept.
It is not surprising that Mr. Emenaker focused on the question whether the “at least as likely as not” language in Dr. Kilhenny’s opinion could rise to the level of clear and unmistakable evidence required to rebut a presumption of aggravation, as that had been the issue on which the Veterans Court had previously remanded the case to the Board. When the Veterans Court first dealt with the case, that court had specifically determined that the Board “also failed to explain how the ‘at least as likely as not’ language in Dr. Kilhenny’s report could rise to the level of clear-and-unmistakable evidence,” and it had directed that “if the Board again relies on Dr. Kilhenny’s opinion, it must fully and adequately explain whether the opinion rises to the level of clear-and-unmistakable evidence despite the use of the seemingly equivocal phrase ‘at least as likely as not.’” When the Board reconsidered that issue, it responded to the Veterans Court’s concern that Dr. Kilhenny’s use of the “at least as likely as not” language was indicative of something less than clear and unmistakable evidence by stating, “We recognize that the rubric ‘at least as likely as not’ is not, taken alone, strictly equivalent to ‘clear and unmistakable evidence.’” It is therefore not surprising that when Mr.
2008-7051 10
Emenaker chose to again appeal to the Veterans Court, he elected to focus on that very issue.
Mr. Emenaker’s brief before the Veterans Court represented that he was raising only a single issue: “The Board’s decision fails to explain how Dr. Kilhenny’s opinion can be deemed undebatable in light of his use of ‘at least as likely as not.’” Mr. Emenaker then succinctly explained his position as follows: “The Board’s finding is founded on Dr. Kilhenny’s opinion. That opinion fails to satisfy the onerous clear and unmistakable evidence standard because it is expressed in terms of ‘at least as likely as not.’” Mr. Emenaker now asks that we look to a single, broadly worded expression of his argument to conclude that he had in fact been challenging Dr. Kilhenny’s opinion as a “medical judgment” that was barred from consideration by the Board. In his brief, Mr. Emenaker stated, “Dr. Kilhenny’s opinion is insufficient as a matter of law to satisfy the clear and unmistakable evidence standard.” It is clear, however, that when he made that statement in his opening brief before the Veterans Court, Mr. Emenaker was attacking the sufficiency of the medical evidence, not because it consisted of a medical judgment but because the language of Dr. Kilhenny’s medical opinion appeared to be equivocal. Later in the brief, Mr. Emenaker spelled out that point with more specificity:
Had Dr. Kilhenny’s opinion been clear and unmistakable, i.e., undebatable, then he would have simply omitted the “it is at least as likely as not” language and the report would have read: It is my professional opinion that the veteran underwent a normal progression, during service; age related changes. Rather than express his opinion in such an unequivocal manner, Dr. Kilhenny included the qualifying phrase “at least as likely as not.”
2008-7051 11
A reasonable inference from that argument is that if Dr. Kilhenny had expressed his opinion without the purportedly offending language, Mr. Emenaker would have had no cause to complain.
It was not until his reply brief before the Veterans Court that Mr. Emenaker contended for the first time that Dr. Kilhenny’s opinion was insufficient to rebut the presumption of soundness because it was a “medical judgment,” the argument that he now makes before this court. As he stated in his reply brief, “medical judgment evidence standing alone is legally insufficient to rebut the § 1111 presumption of soundness.”
It is clear that Mr. Emenaker’s later argument is not the same as his prior one. While Mr. Emenaker’s argument in his opening brief raised a question of whether Dr. Kilhenny’s medical opinion was sufficiently unqualified to satisfy the “clear and unequivocal evidence” standard, the argument in his reply brief was that no medical opinion can be sufficient to overcome the presumption of aggravation, which is a distinctly different claim. The different character of the two arguments is underscored by the fact that we would have jurisdiction over the second claim, but not the first. While the claim Mr. Emenaker now presents to this court is purely legal, the claim he presented to the Veterans Court in his opening brief would be beyond our jurisdictional reach on appeal as “a challenge to a factual determination” or “a challenge to a law or regulation as applied to the facts of a particular case.” 38 U.S.C. § 7292(d)(2).
As we noted in Carbino v. West, 168 F.3d 32, 34-35 (Fed. Cir. 1999), the Veterans Court is not required to consider an appellant’s argument that is made for the first time in a reply brief in that court. In this case, the Veterans Court did not address
2008-7051 12
2 This court’s predecessor addressed similar regulatory language in an Army regulation dealing with disability retirement, see Reese v. United States, 180 Ct. Cl. 932 (1967); Siegel v. United States, 148 Ct. Cl. 420 (1960), and a judge of the Veterans Court has addressed the argument raised by Mr. Emenaker in a separate opinion, see Jordan v. Principi, 17 Vet. App. 261 (2003) (Steinberg, J., separate views). Those cases may provide some guidance in any future consideration of the regulatory language by the Veterans Court.
the “medical judgment” argument made by Mr. Emenaker for the first time in his reply brief, and for those reasons, we consider that argument waived.
In light of the somewhat confusing language used in the regulation, the issue that Mr. Emenaker seeks to present to us is a potentially significant one; it appears, moreover, to be one that neither the Veterans Court nor this court has squarely addressed.2 It certainly was not addressed by the Veterans Court in this case, for the reasons we have explained. And because it would be imprudent for us to address the issue without the benefit of its having been properly presented to, and decided by, the Veterans Court, we decline to address the issue in the first instance.
No costs.
AFFIRMED.
VA record locating systems, BIRLS
BIRLS Beneficiary Identification and Records Locator Subsystem-is the Veterans Administration's primary computerized index and locator system for veteran and beneficiary records.
FedCir. obtaining review of a factual matter, Willey v. Peake, No. 2007-7095
Anyone seeking to appeal to the FedCir. may find this opinion of interest as it addresses "case jurisdiction". The expansion to consider “case” jurisdiction or “rule of law” jurisdiction means that a veteran ”may obtain a review of the decision with respect to the validity of a decision of the Court on a rule of law or of any statute or regulation . . . or any interpretation thereof (other than a determination as to a factual matter) that was relied on by the Court in making the decision.
Take NOTE, you can not obtain a review of a determination as to a factual matter , See full quote ”It is our view that the Court has “rule of law” jurisdiction, as provided by 38 U.S.C. § 7292(a),2 over Willsey’s claim that the Veterans Court failed, in its review of Willsey’s case, to apply the test for establishing a CUE. Section 7292(a) states, in relevant part:
After a decision of the United States Court of Appeals for Veterans Claims
is entered in a case, any party to the case may obtain a review of the
decision with respect to the validity of a decision of the Court on a rule of
law or of any statute or regulation . . . or any interpretation thereof (other
than a determination as to a factual matter) that was relied on by the Court in making the decision. 38 U.S.C. § 7292(a) (2000) amended by 38 U.S.C. § 7292(a) (Supp. II 2002).”
+++++
See also “In Morgan v. Principi, 327 F.3d 1357 (Fed. Cir. 2003) we held that the changes made by Congress to 38 U.S.C. § 7292(a) in 2002 had the effect of giving this Court jurisdiction over “a decision of the [Veterans Court] on a rule of law as a separate jurisdictional basis” and that this gave the court a new form of “case” jurisdiction. Morgan at 1361 (“[T]he amendment enacted by Congress has the effect of making the review of ‘a decision of the Court [of Appeals for Veterans Claims] on a rule of law’ a separate jurisdictional basis . . . . In short, Congress responded to this court's entreaty by enacting a form of ‘case’ jurisdiction.”). See also Forshey v. Principi, 382 F.3d 1335, 1347-48 (Fed. Cir. 2002) (explaining the difference between “issue” jurisdiction and broader “case” jurisdiction). As explained in Morgan, a “rule of law” may include a court-made rule of the sort stated by the Veterans Court in Russell. Morgan, 327 F.3d at 1361.”
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United States Court of Appeals for the Federal Circuit
2007-7095
WILLIAM B. WILLSEY,
Claimant-Appellant,
v.
JAMES B. PEAKE, M.D., Secretary of Veterans Affairs,
Respondent-Appellee.
Kenneth M. Carpenter, Carpenter, Chartered, of Topeka, Kansas argued for claimant-appellant.
Steven J. Gillingham, Assistant Director, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC argued for respondent-appellee. With him on the brief were Jeanne E. Davidson, Director, and Richard P. Schroeder, Trial Attorney.
Appealed from: United States Court of Appeals for Veterans Claims
Judge William A. Moorman
United States Court of Appeals for the Federal Circuit
2007-7095
WILLIAM B. WILLSEY,
Claimant-Appellant,
v.
JAMES B. PEAKE, M.D., Secretary of Veterans Affairs,
Respondent-Appellee.
Appeal from the United States Court of Appeals for Veterans Claims in 04-0054, Judge William A. Moorman.
__________________________
DECIDED: August 11, 2008
__________________________
Before NEWMAN, Circuit Judge, BRYSON, Circuit Judge, and POGUE,∗ Judge.
POGUE, Judge.
This case raises the question of whether a 1983 denial of disability benefits for Post Traumatic Stress Disorder (“PTSD”) was free of Clear and Unmistakable Error (“CUE”). Although the government challenges our jurisdiction to consider the issue, we conclude that the question raised is a legal one subject to our review. Because there was no CUE in the denial, however, we affirm the decision below.
∗ Honorable Donald Pogue, Judge, United States Court of International Trade, sitting by designation.
Background
The record indicates that Claimant/Appellant William Willsey (“Willsey”) -- who served in the U.S. Army in Vietnam from February 1969 until February 1971-- is disabled by PTSD. What is at issue, however, is the effective date of that disability. The Department of Veterans Affairs (“VA”) Regional Office (“RO”) recognized Mr. Willsey’s disability in 1999, with a 30% rating, and, in 2001, raised his rating to 100%, effective from October 1998. Mr. Willsey, however, seeks an earlier effective date, based on his claim that an earlier 1983 decision denying his claim constituted CUE.
Mr. Willsey’s VA records reveal the context of the 1983 denial. The records show that in July of 1982, Mr. Willsey was treated for PTSD in a VA hospital in Danville Illinois; he was also treated as an out-patient by a VA hospital in Peoria Illinois in August 1982. In April 1983, Willsey filed a claim for benefits with the VA. A special psychiatric examination was performed at the VA medical center in Chicago the following June. In the report of that examination, the psychiatric examiner determined that Mr. Willsey was not suffering from PTSD, but noted that the examiner had not seen the records from Willsey’s earlier treatments for PTSD and recommended that the VA adjudicator obtain these earlier records. It appears that the VA’s records do not definitively resolve the narrow issue of whether the earlier records were obtained by the VA adjudicator. Willsey’s claim, however, was denied by the RO in September 1983.1 Mr. Willsey did not, in 1983, appeal that initial decision.
Instead, in 1996, Willsey applied to have his case re-opened. When the RO denied Willsey’s 1996 application, Willsey again did not appeal the decision. However,
1 The VA made this determination on September 8, 1983. 2007-7095 2
in October of 1998, Willsey again filed an application to reopen his claim. In response, and as noted above, the RO granted a 30% disability, in June of 1999, but also held that the 1983 decision did not contain CUE. The following July, Willsey filed a notice of disagreement with his initial disability rating and with the denial of his request for revision of his prior VA decisions. The VA provided Mr. Willsey with a “statement of the case” but did not immediately change his rating. Willsey filed another appeal in May 2000. His rating was subsequently raised to 70% and, in April of 2001, the RO increased Willsey’s disability rating to 100%, effective from October, 1998, the filing date of his first successful claim. Accordingly, the 2001 decision left open only the question of an earlier effective date. In response, Willsey requested a revision of the 1983 decision, contending again that it was the result of error. In December, 2003 the Board of Veterans Affairs (“BVA” or “Board”) denied the request for revision and denied the earlier effective date. The Board also found no CUE in either the 1983 or the 1996 decisions. Willsey appealed the Board’s decision to the Court of Appeals for Veterans Claims (“Veterans Court”), but the Veterans Court upheld the Board’s ruling. Willsey now appeals the Veterans Court’s ruling to this court.
Jurisdiction
It is our view that the Court has “rule of law” jurisdiction, as provided by 38 U.S.C. § 7292(a),2 over Willsey’s claim that the Veterans Court failed, in its review of Willsey’s case, to apply the test for establishing a CUE. Section 7292(a) states, in relevant part:
After a decision of the United States Court of Appeals for Veterans Claims is entered in a case, any party to the case may obtain a review of the decision with respect to the validity of a decision of the Court on a rule of law or of any statute or regulation . . . or any interpretation thereof (other
2 38 U.S.C. § 7292(a) (2000), amended by 38 U.S.C. § 7292(a) (Supp. II 2002) 2007-7095 3
than a determination as to a factual matter) that was relied on by the Court in making the decision.
38 U.S.C. § 7292(a) (2000) amended by 38 U.S.C. § 7292(a) (Supp. II 2002). The rule of law for determining if CUE is present is stated in a decision of the Veterans Court, Russell v. Principi, 3 Vet. App. 310 (1992). Russell established a three-prong test for establishing CUE, i.e., that, in order to revise a final VA decision, it must be the case that:
1)
Either the correct facts, as they were known at the time, were not before the adjudicator or the statutory or regulatory provisions extant at the time were incorrectly applied,
2)
The error must be “undebatable” and the sort “which, had it not been made, would have manifestly changed the outcome at the time it was made,” and
3)
A determination that there was CUE must be based on the record and the law that existed at the time of the prior adjudication in question.
Russell, 3 Vet. App. At 313-14. That test was subsequently adopted in substance in this court’s decision in Cook v. Principi, 318 F.3d 1334, 1344 (Fed. Cir. 2002) (en banc).
Willsey contends that the Veterans Court did not apply the rule of law as set out in Russell for determining CUE, and that this failure to apply the rule from Russell gives this Court jurisdiction to hear his appeal. The VA counters that, at most, Willsey is alleging that the Veterans Court improperly applied the rule of law to the facts of his case and that, therefore, this Court lacks jurisdiction to hear Willsey’s appeal.
In Morgan v. Principi, 327 F.3d 1357 (Fed. Cir. 2003) we held that the changes made by Congress to 38 U.S.C. § 7292(a) in 2002 had the effect of giving this Court jurisdiction over “a decision of the [Veterans Court] on a rule of law as a separate jurisdictional basis” and that this gave the court a new form of “case” jurisdiction. 2007-7095 4
Morgan at 1361 (“[T]he amendment enacted by Congress has the effect of making the review of ‘a decision of the Court [of Appeals for Veterans Claims] on a rule of law’ a separate jurisdictional basis . . . . In short, Congress responded to this court's entreaty by enacting a form of ‘case’ jurisdiction.”). See also Forshey v. Principi, 382 F.3d 1335, 1347-48 (Fed. Cir. 2002) (explaining the difference between “issue” jurisdiction and broader “case” jurisdiction). As explained in Morgan, a “rule of law” may include a court-made rule of the sort stated by the Veterans Court in Russell. Morgan, 327 F.3d at 1361.
The VA contends that Russell does not establish the rule for CUE, but rather that the rule is established by 38 U.S.C. § 5109A(a) (“A decision by the Secretary under this chapter is subject to revision on the grounds of clear and unmistakable error. If evidence establishes the error, the prior decision shall be reversed or revised.”). The VA’s position, however, is incorrect. Although 38 U.S.C. § 5109A does provide that a RO decision is subject to revision based upon CUE, § 5109A does not set out the test for when CUE is present. That is set out by the Veterans Court in Russell and by this court in Cook, which is why these decisions provide the “rule of law” here.
As noted, Willsey alleges that the Veterans Court did not, in the case below, apply the rule for determining CUE set out in Russell. The Veterans Court’s short, unpublished decision mentions Russell but makes no attempt to show how Willsey’s claim failed to meet its test. Rather, the Veterans Court decision simply concludes that there was no CUE in the RO decision. Willsey’s contention, then, that the Veterans Court did not apply the rule in Russell is a prima facie legal claim and provides grounds for this Court to take jurisdiction over this case under our “case jurisdiction” standard.
2007-7095 5
Accordingly, this Court may decide all relevant questions of law in this appeal from a decision by the Veterans Court, 38 U.S.C. § 7292(d)(1), and legal determinations of the Veterans Court are reviewed de novo. Prenzler v. Derwinski, 928 F.2d 392, 393 (Fed. Cir. 1991). We may “affirm or, if the decision of the Veterans’ Court is not in accordance with law, . . . modify or reverse the decision of the [Veterans Court] or . . . remand the matter, as appropriate.” 38 U.S.C. § 7292(e)(1) (2000).3
Discussion
In light of the statutory prohibition against our review of factual determinations or the application of law to the facts of a particular case, 38 U.S.C. § 7292(d)(2), the issue before this court is whether the Veterans Court applied its decision in Russell to the question of whether there was CUE in the 1983 VA Regional Office decision denying Willsey’s application for service connection, not whether the application of that rule to the particular facts of this case was correct. Nonetheless, in order to assess Willsey’s contention that the court did not apply the Russell rule at all, it is necessary to address the facts of the case, and the court’s analysis of those facts, in some detail. Accordingly, we will consider, in turn, each prong of the Russell test.
Willsey first contends that the VA adjudicator who ruled on his application in 1983 did not have before him “the correct facts, as they were known at the time” because, Willsey claims, the VA examiner who determined that Willsey was not suffering from PTSD had not reviewed the medical reports from his earlier examinations. Willsey claims that these earlier reports found him to suffer from PTSD. Thus Willsey’s argument here seems to be that if the VA examiner did not review the earlier records
3 Except in constitutional challenges, not an issue in this case, we may not review factual determinations. 38 U.S.C. § 7292(d)(2). 2007-7095 6
and amend his or her report to the adjudicator, the adjudicator’s decision would not be based on the “correct facts, as they were known at the time.”
Willsey next contends that, because the examiner had not seen the earlier medical reports and had the opportunity to revise his diagnosis based on these reports, the VA adjudicator’s decision is based on an “undebatable error” of the sort “which, if it had not been made, would have manifestly changed the outcome at the time it was made.”
Finally, Willsey contends that the record and law at the time, including the diagnosis of PTSD by two VA physicians, required an award of disability compensation. If each of these contentions were to be correct, Willsey would have met all of the prongs of the Russell test for CUE.
The record before us, however, does not require reversal of the Veterans Court’s conclusion that there was no CUE in this case. With regard to the first prong of the Russell test, on the basis of the record, there is some ambiguity as to whether the earlier medical reports were or were not before the adjudicator. It is clear, however, that the adjudicator knew of the medical records and their basic content, even if he did not have them directly in front of him. (JA41, 85). The Board held, and the Veterans Court affirmed, that evidence supported the claim that the VA adjudicator did consider the medical records from Willsey’s earlier examinations. Additionally, the Board held that, at most, any error here, assuming it was error, was a breach of the “duty to assist”. (JA 41). However, a breach of the “duty to assist” alone does not constitute CUE. Cook v. Principi, 318 F.3d 1334, 1341 (Fed. Cir. 2002). We cannot conclude that more is required by the first prong of the Russell test.
2007-7095 7
We also cannot conclude that the decision of the RO contained an “undebatable” error. The RO made its decision on the basis of PTSD being “not found on exam” by the VA examiner. (JA 41). The RO at the least knew of the other medical records. For us to hold that the decision of the RO in this case was based on an “undebatable” error, we would have to hold that no reasonable adjudicator could weigh the evidence in the way that the adjudicator did. This legal determination would, on the record before us, be unfounded. A reasonable adjudicator could, after reviewing the reports from the VA examiner and Willsey’s other records, determine that greater weight should be given to the VA examiner’s report, particularly because that report was conducted especially for the purpose of determining service connection and was the last in time. Even were we to disagree with the adjudicator’s decision, we would not be free to re-weigh the evidence to conclude that this decision, even if it were at least arguably not the best one, was so unreasonable as to result in an undebatable error.
Finally, the record and the law as they existed at the time of the determination do not compel a finding of CUE in the 1983 determination. Willsey seems to contend that, because he had two prior diagnoses of PTSD, the adjudicator was required to find that he was disabled and there was service connection in his case. But, Willsey was also later diagnosed as not having PTSD by a VA examiner, after the two earlier examinations. Willsey does not point to any rule or regulation that states that earlier examinations, if they are greater in number, outweigh later examinations and that the adjudicator therefore ought to have granted him disability. Without such a rule it again seems that Willsey is asking us to re-weigh the evidence, something we are not free to do.
2007-7095 8
2007-7095 9
Conclusion
The Court recognizes the very real difficulties facing Mr. Willsey in seeking both recognition and treatment for PTSD. We recognize as well that the VA’s case processing at issue here was arguably less than perfect in all of the various steps of its evaluation and treatment of Mr. Willsey’s condition. None of these miscues, however, rise to the level of a clear, unmistakable error. Therefore, the decision of the Veterans Court denying an earlier effective date to Willsey is affirmed.
Affirmed
Take NOTE, you can not obtain a review of
After a decision of the United States Court of Appeals for Veterans Claims
is entered in a case, any party to the case may obtain a review of the
decision with respect to the validity of a decision of the Court on a rule of
law or of any statute or regulation . . . or any interpretation thereof (other
than a determination as to a factual matter) that was relied on by the Court in making the decision. 38 U.S.C. § 7292(a) (2000) amended by 38 U.S.C. § 7292(a) (Supp. II 2002).”
+++++
See also “In Morgan v. Principi, 327 F.3d 1357 (Fed. Cir. 2003) we held that the changes made by Congress to 38 U.S.C. § 7292(a) in 2002 had the effect of giving this Court jurisdiction over “a decision of the [Veterans Court] on a rule of law as a separate jurisdictional basis” and that this gave the court a new form of “case” jurisdiction. Morgan at 1361 (“[T]he amendment enacted by Congress has the effect of making the review of ‘a decision of the Court [of Appeals for Veterans Claims] on a rule of law’ a separate jurisdictional basis . . . . In short, Congress responded to this court's entreaty by enacting a form of ‘case’ jurisdiction.”). See also Forshey v. Principi, 382 F.3d 1335, 1347-48 (Fed. Cir. 2002) (explaining the difference between “issue” jurisdiction and broader “case” jurisdiction). As explained in Morgan, a “rule of law” may include a court-made rule of the sort stated by the Veterans Court in Russell. Morgan, 327 F.3d at 1361.”
++++++++++++++++++++++++++++++++++++++++++++++
United States Court of Appeals for the Federal Circuit
2007-7095
WILLIAM B. WILLSEY,
Claimant-Appellant,
v.
JAMES B. PEAKE, M.D., Secretary of Veterans Affairs,
Respondent-Appellee.
Kenneth M. Carpenter, Carpenter, Chartered, of Topeka, Kansas argued for claimant-appellant.
Steven J. Gillingham, Assistant Director, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC argued for respondent-appellee. With him on the brief were Jeanne E. Davidson, Director, and Richard P. Schroeder, Trial Attorney.
Appealed from: United States Court of Appeals for Veterans Claims
Judge William A. Moorman
United States Court of Appeals for the Federal Circuit
2007-7095
WILLIAM B. WILLSEY,
Claimant-Appellant,
v.
JAMES B. PEAKE, M.D., Secretary of Veterans Affairs,
Respondent-Appellee.
Appeal from the United States Court of Appeals for Veterans Claims in 04-0054, Judge William A. Moorman.
__________________________
DECIDED: August 11, 2008
__________________________
Before NEWMAN, Circuit Judge, BRYSON, Circuit Judge, and POGUE,∗ Judge.
POGUE, Judge.
This case raises the question of whether a 1983 denial of disability benefits for Post Traumatic Stress Disorder (“PTSD”) was free of Clear and Unmistakable Error (“CUE”). Although the government challenges our jurisdiction to consider the issue, we conclude that the question raised is a legal one subject to our review. Because there was no CUE in the denial, however, we affirm the decision below.
∗ Honorable Donald Pogue, Judge, United States Court of International Trade, sitting by designation.
Background
The record indicates that Claimant/Appellant William Willsey (“Willsey”) -- who served in the U.S. Army in Vietnam from February 1969 until February 1971-- is disabled by PTSD. What is at issue, however, is the effective date of that disability. The Department of Veterans Affairs (“VA”) Regional Office (“RO”) recognized Mr. Willsey’s disability in 1999, with a 30% rating, and, in 2001, raised his rating to 100%, effective from October 1998. Mr. Willsey, however, seeks an earlier effective date, based on his claim that an earlier 1983 decision denying his claim constituted CUE.
Mr. Willsey’s VA records reveal the context of the 1983 denial. The records show that in July of 1982, Mr. Willsey was treated for PTSD in a VA hospital in Danville Illinois; he was also treated as an out-patient by a VA hospital in Peoria Illinois in August 1982. In April 1983, Willsey filed a claim for benefits with the VA. A special psychiatric examination was performed at the VA medical center in Chicago the following June. In the report of that examination, the psychiatric examiner determined that Mr. Willsey was not suffering from PTSD, but noted that the examiner had not seen the records from Willsey’s earlier treatments for PTSD and recommended that the VA adjudicator obtain these earlier records. It appears that the VA’s records do not definitively resolve the narrow issue of whether the earlier records were obtained by the VA adjudicator. Willsey’s claim, however, was denied by the RO in September 1983.1 Mr. Willsey did not, in 1983, appeal that initial decision.
Instead, in 1996, Willsey applied to have his case re-opened. When the RO denied Willsey’s 1996 application, Willsey again did not appeal the decision. However,
1 The VA made this determination on September 8, 1983. 2007-7095 2
in October of 1998, Willsey again filed an application to reopen his claim. In response, and as noted above, the RO granted a 30% disability, in June of 1999, but also held that the 1983 decision did not contain CUE. The following July, Willsey filed a notice of disagreement with his initial disability rating and with the denial of his request for revision of his prior VA decisions. The VA provided Mr. Willsey with a “statement of the case” but did not immediately change his rating. Willsey filed another appeal in May 2000. His rating was subsequently raised to 70% and, in April of 2001, the RO increased Willsey’s disability rating to 100%, effective from October, 1998, the filing date of his first successful claim. Accordingly, the 2001 decision left open only the question of an earlier effective date. In response, Willsey requested a revision of the 1983 decision, contending again that it was the result of error. In December, 2003 the Board of Veterans Affairs (“BVA” or “Board”) denied the request for revision and denied the earlier effective date. The Board also found no CUE in either the 1983 or the 1996 decisions. Willsey appealed the Board’s decision to the Court of Appeals for Veterans Claims (“Veterans Court”), but the Veterans Court upheld the Board’s ruling. Willsey now appeals the Veterans Court’s ruling to this court.
Jurisdiction
It is our view that the Court has “rule of law” jurisdiction, as provided by 38 U.S.C. § 7292(a),2 over Willsey’s claim that the Veterans Court failed, in its review of Willsey’s case, to apply the test for establishing a CUE. Section 7292(a) states, in relevant part:
After a decision of the United States Court of Appeals for Veterans Claims is entered in a case, any party to the case may obtain a review of the decision with respect to the validity of a decision of the Court on a rule of law or of any statute or regulation . . . or any interpretation thereof (other
2 38 U.S.C. § 7292(a) (2000), amended by 38 U.S.C. § 7292(a) (Supp. II 2002) 2007-7095 3
than a determination as to a factual matter) that was relied on by the Court in making the decision.
38 U.S.C. § 7292(a) (2000) amended by 38 U.S.C. § 7292(a) (Supp. II 2002). The rule of law for determining if CUE is present is stated in a decision of the Veterans Court, Russell v. Principi, 3 Vet. App. 310 (1992). Russell established a three-prong test for establishing CUE, i.e., that, in order to revise a final VA decision, it must be the case that:
1)
Either the correct facts, as they were known at the time, were not before the adjudicator or the statutory or regulatory provisions extant at the time were incorrectly applied,
2)
The error must be “undebatable” and the sort “which, had it not been made, would have manifestly changed the outcome at the time it was made,” and
3)
A determination that there was CUE must be based on the record and the law that existed at the time of the prior adjudication in question.
Russell, 3 Vet. App. At 313-14. That test was subsequently adopted in substance in this court’s decision in Cook v. Principi, 318 F.3d 1334, 1344 (Fed. Cir. 2002) (en banc).
Willsey contends that the Veterans Court did not apply the rule of law as set out in Russell for determining CUE, and that this failure to apply the rule from Russell gives this Court jurisdiction to hear his appeal. The VA counters that, at most, Willsey is alleging that the Veterans Court improperly applied the rule of law to the facts of his case and that, therefore, this Court lacks jurisdiction to hear Willsey’s appeal.
In Morgan v. Principi, 327 F.3d 1357 (Fed. Cir. 2003) we held that the changes made by Congress to 38 U.S.C. § 7292(a) in 2002 had the effect of giving this Court jurisdiction over “a decision of the [Veterans Court] on a rule of law as a separate jurisdictional basis” and that this gave the court a new form of “case” jurisdiction. 2007-7095 4
Morgan at 1361 (“[T]he amendment enacted by Congress has the effect of making the review of ‘a decision of the Court [of Appeals for Veterans Claims] on a rule of law’ a separate jurisdictional basis . . . . In short, Congress responded to this court's entreaty by enacting a form of ‘case’ jurisdiction.”). See also Forshey v. Principi, 382 F.3d 1335, 1347-48 (Fed. Cir. 2002) (explaining the difference between “issue” jurisdiction and broader “case” jurisdiction). As explained in Morgan, a “rule of law” may include a court-made rule of the sort stated by the Veterans Court in Russell. Morgan, 327 F.3d at 1361.
The VA contends that Russell does not establish the rule for CUE, but rather that the rule is established by 38 U.S.C. § 5109A(a) (“A decision by the Secretary under this chapter is subject to revision on the grounds of clear and unmistakable error. If evidence establishes the error, the prior decision shall be reversed or revised.”). The VA’s position, however, is incorrect. Although 38 U.S.C. § 5109A does provide that a RO decision is subject to revision based upon CUE, § 5109A does not set out the test for when CUE is present. That is set out by the Veterans Court in Russell and by this court in Cook, which is why these decisions provide the “rule of law” here.
As noted, Willsey alleges that the Veterans Court did not, in the case below, apply the rule for determining CUE set out in Russell. The Veterans Court’s short, unpublished decision mentions Russell but makes no attempt to show how Willsey’s claim failed to meet its test. Rather, the Veterans Court decision simply concludes that there was no CUE in the RO decision. Willsey’s contention, then, that the Veterans Court did not apply the rule in Russell is a prima facie legal claim and provides grounds for this Court to take jurisdiction over this case under our “case jurisdiction” standard.
2007-7095 5
Accordingly, this Court may decide all relevant questions of law in this appeal from a decision by the Veterans Court, 38 U.S.C. § 7292(d)(1), and legal determinations of the Veterans Court are reviewed de novo. Prenzler v. Derwinski, 928 F.2d 392, 393 (Fed. Cir. 1991). We may “affirm or, if the decision of the Veterans’ Court is not in accordance with law, . . . modify or reverse the decision of the [Veterans Court] or . . . remand the matter, as appropriate.” 38 U.S.C. § 7292(e)(1) (2000).3
Discussion
In light of the statutory prohibition against our review of factual determinations or the application of law to the facts of a particular case, 38 U.S.C. § 7292(d)(2), the issue before this court is whether the Veterans Court applied its decision in Russell to the question of whether there was CUE in the 1983 VA Regional Office decision denying Willsey’s application for service connection, not whether the application of that rule to the particular facts of this case was correct. Nonetheless, in order to assess Willsey’s contention that the court did not apply the Russell rule at all, it is necessary to address the facts of the case, and the court’s analysis of those facts, in some detail. Accordingly, we will consider, in turn, each prong of the Russell test.
Willsey first contends that the VA adjudicator who ruled on his application in 1983 did not have before him “the correct facts, as they were known at the time” because, Willsey claims, the VA examiner who determined that Willsey was not suffering from PTSD had not reviewed the medical reports from his earlier examinations. Willsey claims that these earlier reports found him to suffer from PTSD. Thus Willsey’s argument here seems to be that if the VA examiner did not review the earlier records
3 Except in constitutional challenges, not an issue in this case, we may not review factual determinations. 38 U.S.C. § 7292(d)(2). 2007-7095 6
and amend his or her report to the adjudicator, the adjudicator’s decision would not be based on the “correct facts, as they were known at the time.”
Willsey next contends that, because the examiner had not seen the earlier medical reports and had the opportunity to revise his diagnosis based on these reports, the VA adjudicator’s decision is based on an “undebatable error” of the sort “which, if it had not been made, would have manifestly changed the outcome at the time it was made.”
Finally, Willsey contends that the record and law at the time, including the diagnosis of PTSD by two VA physicians, required an award of disability compensation. If each of these contentions were to be correct, Willsey would have met all of the prongs of the Russell test for CUE.
The record before us, however, does not require reversal of the Veterans Court’s conclusion that there was no CUE in this case. With regard to the first prong of the Russell test, on the basis of the record, there is some ambiguity as to whether the earlier medical reports were or were not before the adjudicator. It is clear, however, that the adjudicator knew of the medical records and their basic content, even if he did not have them directly in front of him. (JA41, 85). The Board held, and the Veterans Court affirmed, that evidence supported the claim that the VA adjudicator did consider the medical records from Willsey’s earlier examinations. Additionally, the Board held that, at most, any error here, assuming it was error, was a breach of the “duty to assist”. (JA 41). However, a breach of the “duty to assist” alone does not constitute CUE. Cook v. Principi, 318 F.3d 1334, 1341 (Fed. Cir. 2002). We cannot conclude that more is required by the first prong of the Russell test.
2007-7095 7
We also cannot conclude that the decision of the RO contained an “undebatable” error. The RO made its decision on the basis of PTSD being “not found on exam” by the VA examiner. (JA 41). The RO at the least knew of the other medical records. For us to hold that the decision of the RO in this case was based on an “undebatable” error, we would have to hold that no reasonable adjudicator could weigh the evidence in the way that the adjudicator did. This legal determination would, on the record before us, be unfounded. A reasonable adjudicator could, after reviewing the reports from the VA examiner and Willsey’s other records, determine that greater weight should be given to the VA examiner’s report, particularly because that report was conducted especially for the purpose of determining service connection and was the last in time. Even were we to disagree with the adjudicator’s decision, we would not be free to re-weigh the evidence to conclude that this decision, even if it were at least arguably not the best one, was so unreasonable as to result in an undebatable error.
Finally, the record and the law as they existed at the time of the determination do not compel a finding of CUE in the 1983 determination. Willsey seems to contend that, because he had two prior diagnoses of PTSD, the adjudicator was required to find that he was disabled and there was service connection in his case. But, Willsey was also later diagnosed as not having PTSD by a VA examiner, after the two earlier examinations. Willsey does not point to any rule or regulation that states that earlier examinations, if they are greater in number, outweigh later examinations and that the adjudicator therefore ought to have granted him disability. Without such a rule it again seems that Willsey is asking us to re-weigh the evidence, something we are not free to do.
2007-7095 8
2007-7095 9
Conclusion
The Court recognizes the very real difficulties facing Mr. Willsey in seeking both recognition and treatment for PTSD. We recognize as well that the VA’s case processing at issue here was arguably less than perfect in all of the various steps of its evaluation and treatment of Mr. Willsey’s condition. None of these miscues, however, rise to the level of a clear, unmistakable error. Therefore, the decision of the Veterans Court denying an earlier effective date to Willsey is affirmed.
Affirmed
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