Full Article at: Trial set for ex-VA nurse accused in patient's death
By Jennifer Hewlett - jhewlett@herald-leader.com
A trial date has been set for a former nurse at the Veterans Affairs Medical Center in Lexington who is charged with murder in the death of a patient at the hospital.
Maria Whitt, 32, of Mount Sterling is scheduled to go trial May 24 in federal court. The trial is expected to last about two weeks.
The trial date was set Friday during a status hearing. Whitt is accused of killing World War II veteran Jesse Lee Chain, 90, who died of a morphine overdose Sept. 3, 2006, at the VA hospital. Whitt has pleaded not guilty.
Meanwhile, defense and prosecuting attorneys agreed that the conditions of release for Whitt were too harsh. Whitt, who was let out of jail and released to her mother in October, several days after she was arrested, has been under 24-hour house arrest and electronic monitoring."
Friday, January 29, 2010
VAOIG Finds 29% Error Rate at Anchorage Regional Office
Full Article at: Federal review finds errors at Anchorage VA office
The Associated Press
Published: January 29th, 2010 08:17 AM
ANCHORAGE, Alaska - Federal inspectors gave the Anchorage Veterans Administration regional office a poor review for its handling of disability claims - a 29 percent error rate.
The Anchorage Daily News reports that has resulted in delays, underpayments and denials of services for some veterans.
Alaska had the highest number of veterans per capita of any state as of the last census, at nearly 18 percent of the population."
"In response to questions from the Daily News, Clark said the Anchorage office suffered from turnover in key positions during the past year, and its performance doesn't "currently compare favorably" to other regional offices."
"Tammy Schuyler, president of the AFGE Local 3028 union that represents Alaska VA workers, says significant problems have yet to been resolved."
The Associated Press
Published: January 29th, 2010 08:17 AM
ANCHORAGE, Alaska - Federal inspectors gave the Anchorage Veterans Administration regional office a poor review for its handling of disability claims - a 29 percent error rate.
The Anchorage Daily News reports that has resulted in delays, underpayments and denials of services for some veterans.
Alaska had the highest number of veterans per capita of any state as of the last census, at nearly 18 percent of the population."
"In response to questions from the Daily News, Clark said the Anchorage office suffered from turnover in key positions during the past year, and its performance doesn't "currently compare favorably" to other regional offices."
"Tammy Schuyler, president of the AFGE Local 3028 union that represents Alaska VA workers, says significant problems have yet to been resolved."
Thursday, January 28, 2010
Dissatisified Veteran Sue Lawyer Concerning Representation before the
Perhaps this will be of interest for anyone seeking to sue their lawyer.
But Davis' complaint lacks "competent proof" that he could prove damages for legal malpractice, breach of contract/fiduciary duty, and intentional infliction of emotional distress that would satisfy the jurisdictional threshold. See McMillian, 567 F.3d at 845.
Full Article at: DAVIS v. LeCLAIR RYAN, P.C.
ROBERT DAVIS, Plaintiff-Appellant,
v.
LeCLAIR RYAN, P.C., Defendant-Appellee.
No. 09-2311.
United States Court of Appeals, Seventh Circuit.
Submitted November 12, 2009.[ 1 ]
Decided January 27, 2010.
Before JOHN L. COFFEY, ANN CLAIRE WILLIAMS, JOHN DANIEL TINDER, Circuit Judges.
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1.
ORDER
Plaintiff Robert Davis, a Vietnam veteran, was denied a claim for service-connected disability benefits by the Department of Veterans Affairs and retained Attorney Daniel Krasengor from the law firm LeClair Ryan P.C. ("LeClair") (formerly Wright, Robinson, Osthimer & Tatum) to assist him in challenging the denial of his claim. Davis was dissatisfied with the lawyer's handling of his claim and filed suit against the law firm. The district court dismissed the complaint for lack of subject-matter jurisdiction and also ruled that Davis had failed to state a claim. We affirm.
Davis is a Vietnam veteran, as previously stated, who served in active military service from 1961 until 1965 when he was honorably discharged. In 1991 he was diagnosed with Post Traumatic Stress Disorder and applied for service-connected disability benefits two years later in 1993. From 1993 to 2002, Davis represented himself in a number of proceedings before the Department of Veteran Affairs ("DVA"), the Board of Veteran Appeals ("BVA"), and the U.S. Court of Appeals for Veterans Claims ("CAVC") where his claim was initially denied but thereafter was eventually remanded back to the DVA on appeal.
Davis retained Krasnegor in 2002 to represent him at the remanded hearing but his claim was again denied by the DVA in 2004 and also denied by the BVA in 2006. While the appeal before the CAVC was pending, Davis requested that Krasnegor file a waiver (order) to bar Judge Kennedy, a BVA judge who had twice previously denied his claim, from serving on any future panel that decided Davis's request for benefits if the CAVC remanded the case (which it did in 2007). Krasengor responded to this request by informing Davis that it was his legal opinion that he could not make such a request unless Judge Kennedy had committed some extreme impropriety. Following the CAVC remand, Davis and Krasnegor entered into a contingency fee agreement where Davis agreed to pay the law firm 20% of any benefits awarded less any fees paid to the firm under the Equal Access to Justice Act ("EAJA"), 28 U.S.C. § 2412. Shortly after signing the contingency fee agreement, Davis requested that Krasnegor file a waiver to prevent his claim from being remanded back to the DVA. No waiver was ever filed and on September 30, 2007, the case was again remanded to the DVA. Davis then terminated the contract with the law firm on October 1, 2007. Thereafter, on October 2, 2007, LeClair filed an attorney's lien for 20% of any future benefits if granted and informed Davis that it would refund him for any legal fees that had already been paid under the EAJA. Davis was finally granted benefits on August 7, 2008, with Judge Kennedy on the panel, and LeClair's lien on those benefits was $20,646. LeClair received $18,142 in EAJA fees but asserts that it has not received any amount from the awarded benefits or by Davis directly, and claims that it is still owed roughly $2,500.
When Davis filed this complaint in November 2008, he invoked diversity jurisdiction, 28 U.S.C. § 1332, claiming that LeClair had caused him "pecuniary and emotional damages" resulting from what he alleges to be legal malpractice, breach of contract/fiduciary duty, and intentional infliction of emotional distress when Krasegnor failed to file a request that Judge Kennedy be disqualified from serving on the panel that decided Davis' claim for benefits. The court granted LeClair's motion to dismiss for lack of subject matter jurisdiction concluding that Davis had failed to satisfy the $75,000 amount in controversy requirement for diversity jurisdiction. See 28 U.S.C. § 1332(a). On appeal, Davis argues that the trial court made a number of errors, both legal and factual.
When the defendant (LeClair) challenges the plaintiff's allegation of the amount in controversy, the plaintiff cannot merely rest on his complaint alone but must establish that he has satisfied the jurisdictional threshold by a preponderance of the evidence. McMillian v. Sheraton Chi. Hotel & Towers, 567 F.3d 839, 844-45 (7th Cir. 2009); Meridian Sec. Ins. Co. v. Sadowski, 441 F.3d 536, 543 (7th Cir. 2006). To satisfy the amount in controversy requirement, the plaintiff "must come forward with competent proof that [he has] satisfied the jurisdictional threshold and not simply point to the theoretical possibility of recovery for certain categories of damages." McMillian, 567 F.3d at 845.
In this case, LeClair contested the amount in controversy asserting that the dispute is limited to $2,500, the amount LeClair claims that Davis still owes above what the EAJA already has paid. Since LeClair contested the amount in controversy, Davis was required to establish how his claims fulfilled the jurisdictional threshold. On appeal Davis responds that LeClair wrongfully received the $18,142 in EAJA fees and repeats the same arguments he made in his complaint. But Davis' complaint lacks "competent proof" that he could prove damages for legal malpractice, breach of contract/fiduciary duty, and intentional infliction of emotional distress that would satisfy the jurisdictional threshold. See McMillian, 567 F.3d at 845. Without question Davis obtained benefits with LeClair's assistance but the plaintiff has failed to demonstrate how his benefits were either reduced or delayed by the law firm's faulty representation. Further, he has failed to provide evidence to substantiate his damages claim and relies upon only speculation that he can meet the jurisdictional threshold. Since Davis failed to offer evidence to satisfy the jurisdictional threshold, we are convinced that the district judge properly determined that it lacked subject-matter jurisdiction to address Davis's claims and because we have found that the district court lacked subject-matter jurisdiction, we need not address LeClair's alternative argument that Davis's complaint fails to state a claim.
AFFIRMED.
* After examining the briefs and the record, we have concluded that oral argument is unnecessary. Thus, the appeal is submitted on the briefs and the record. FED. R. APP. P. 34(a)(2).
This copy provided by Leagle, Inc
But Davis' complaint lacks "competent proof" that he could prove damages for legal malpractice, breach of contract/fiduciary duty, and intentional infliction of emotional distress that would satisfy the jurisdictional threshold. See McMillian, 567 F.3d at 845.
Full Article at: DAVIS v. LeCLAIR RYAN, P.C.
ROBERT DAVIS, Plaintiff-Appellant,
v.
LeCLAIR RYAN, P.C., Defendant-Appellee.
No. 09-2311.
United States Court of Appeals, Seventh Circuit.
Submitted November 12, 2009.[ 1 ]
Decided January 27, 2010.
Before JOHN L. COFFEY, ANN CLAIRE WILLIAMS, JOHN DANIEL TINDER, Circuit Judges.
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1.
ORDER
Plaintiff Robert Davis, a Vietnam veteran, was denied a claim for service-connected disability benefits by the Department of Veterans Affairs and retained Attorney Daniel Krasengor from the law firm LeClair Ryan P.C. ("LeClair") (formerly Wright, Robinson, Osthimer & Tatum) to assist him in challenging the denial of his claim. Davis was dissatisfied with the lawyer's handling of his claim and filed suit against the law firm. The district court dismissed the complaint for lack of subject-matter jurisdiction and also ruled that Davis had failed to state a claim. We affirm.
Davis is a Vietnam veteran, as previously stated, who served in active military service from 1961 until 1965 when he was honorably discharged. In 1991 he was diagnosed with Post Traumatic Stress Disorder and applied for service-connected disability benefits two years later in 1993. From 1993 to 2002, Davis represented himself in a number of proceedings before the Department of Veteran Affairs ("DVA"), the Board of Veteran Appeals ("BVA"), and the U.S. Court of Appeals for Veterans Claims ("CAVC") where his claim was initially denied but thereafter was eventually remanded back to the DVA on appeal.
Davis retained Krasnegor in 2002 to represent him at the remanded hearing but his claim was again denied by the DVA in 2004 and also denied by the BVA in 2006. While the appeal before the CAVC was pending, Davis requested that Krasnegor file a waiver (order) to bar Judge Kennedy, a BVA judge who had twice previously denied his claim, from serving on any future panel that decided Davis's request for benefits if the CAVC remanded the case (which it did in 2007). Krasengor responded to this request by informing Davis that it was his legal opinion that he could not make such a request unless Judge Kennedy had committed some extreme impropriety. Following the CAVC remand, Davis and Krasnegor entered into a contingency fee agreement where Davis agreed to pay the law firm 20% of any benefits awarded less any fees paid to the firm under the Equal Access to Justice Act ("EAJA"), 28 U.S.C. § 2412. Shortly after signing the contingency fee agreement, Davis requested that Krasnegor file a waiver to prevent his claim from being remanded back to the DVA. No waiver was ever filed and on September 30, 2007, the case was again remanded to the DVA. Davis then terminated the contract with the law firm on October 1, 2007. Thereafter, on October 2, 2007, LeClair filed an attorney's lien for 20% of any future benefits if granted and informed Davis that it would refund him for any legal fees that had already been paid under the EAJA. Davis was finally granted benefits on August 7, 2008, with Judge Kennedy on the panel, and LeClair's lien on those benefits was $20,646. LeClair received $18,142 in EAJA fees but asserts that it has not received any amount from the awarded benefits or by Davis directly, and claims that it is still owed roughly $2,500.
When Davis filed this complaint in November 2008, he invoked diversity jurisdiction, 28 U.S.C. § 1332, claiming that LeClair had caused him "pecuniary and emotional damages" resulting from what he alleges to be legal malpractice, breach of contract/fiduciary duty, and intentional infliction of emotional distress when Krasegnor failed to file a request that Judge Kennedy be disqualified from serving on the panel that decided Davis' claim for benefits. The court granted LeClair's motion to dismiss for lack of subject matter jurisdiction concluding that Davis had failed to satisfy the $75,000 amount in controversy requirement for diversity jurisdiction. See 28 U.S.C. § 1332(a). On appeal, Davis argues that the trial court made a number of errors, both legal and factual.
When the defendant (LeClair) challenges the plaintiff's allegation of the amount in controversy, the plaintiff cannot merely rest on his complaint alone but must establish that he has satisfied the jurisdictional threshold by a preponderance of the evidence. McMillian v. Sheraton Chi. Hotel & Towers, 567 F.3d 839, 844-45 (7th Cir. 2009); Meridian Sec. Ins. Co. v. Sadowski, 441 F.3d 536, 543 (7th Cir. 2006). To satisfy the amount in controversy requirement, the plaintiff "must come forward with competent proof that [he has] satisfied the jurisdictional threshold and not simply point to the theoretical possibility of recovery for certain categories of damages." McMillian, 567 F.3d at 845.
In this case, LeClair contested the amount in controversy asserting that the dispute is limited to $2,500, the amount LeClair claims that Davis still owes above what the EAJA already has paid. Since LeClair contested the amount in controversy, Davis was required to establish how his claims fulfilled the jurisdictional threshold. On appeal Davis responds that LeClair wrongfully received the $18,142 in EAJA fees and repeats the same arguments he made in his complaint. But Davis' complaint lacks "competent proof" that he could prove damages for legal malpractice, breach of contract/fiduciary duty, and intentional infliction of emotional distress that would satisfy the jurisdictional threshold. See McMillian, 567 F.3d at 845. Without question Davis obtained benefits with LeClair's assistance but the plaintiff has failed to demonstrate how his benefits were either reduced or delayed by the law firm's faulty representation. Further, he has failed to provide evidence to substantiate his damages claim and relies upon only speculation that he can meet the jurisdictional threshold. Since Davis failed to offer evidence to satisfy the jurisdictional threshold, we are convinced that the district judge properly determined that it lacked subject-matter jurisdiction to address Davis's claims and because we have found that the district court lacked subject-matter jurisdiction, we need not address LeClair's alternative argument that Davis's complaint fails to state a claim.
AFFIRMED.
* After examining the briefs and the record, we have concluded that oral argument is unnecessary. Thus, the appeal is submitted on the briefs and the record. FED. R. APP. P. 34(a)(2).
This copy provided by Leagle, Inc
Northeastern State University Offers Free Legal Clinic for Veterans
Full Article at: NSU to offer free veterans legal clinic
Northeastern State University’s Criminal Justice and Legal Studies Department will begin operation of a free legal clinic Feb. 1 for veterans on the Tahlequah and Broken Arrow campuses.
Office hours for Tahlequah are 1 p.m. to 2:30 p.m. Mondays in Seminary Hall, Room 337, and in Broken Arrow, 3 p.m. to 4:30 p.m. Wednesdays in Building G, Room 156.
Department chair Dr. Cari Keller and assistant professor Dr. David Madden will offer free legal advice on a range of issues for veterans at the locations. Students majoring in legal studies will assist the professors. This effort is the result of a Learning Services project submitted by Keller. Information: Keller, 444-3514; or Madden, 449-6545
Northeastern State University’s Criminal Justice and Legal Studies Department will begin operation of a free legal clinic Feb. 1 for veterans on the Tahlequah and Broken Arrow campuses.
Office hours for Tahlequah are 1 p.m. to 2:30 p.m. Mondays in Seminary Hall, Room 337, and in Broken Arrow, 3 p.m. to 4:30 p.m. Wednesdays in Building G, Room 156.
Department chair Dr. Cari Keller and assistant professor Dr. David Madden will offer free legal advice on a range of issues for veterans at the locations. Students majoring in legal studies will assist the professors. This effort is the result of a Learning Services project submitted by Keller. Information: Keller, 444-3514; or Madden, 449-6545
Wednesday, January 27, 2010
New Jersey Veterans Hospital Overradiates Patients
Full Article at: As Technology Surges, Radiation Safeguards Lag
By WALT BOGDANICH
Published: January 26, 2010
In New Jersey, 36 cancer patients at a veterans hospital in East Orange were overradiated — and 20 more received substandard treatment — by a medical team that lacked experience in using a machine that generated high-powered beams of radiation. The mistakes, which have not been publicly reported, continued for months because the hospital had no system in place to catch the errors.
In Louisiana, Landreaux A. Donaldson received 38 straight overdoses of radiation, each nearly twice the prescribed amount, while undergoing treatment for prostate cancer. He was treated with a machine so new that the hospital made a miscalculation even with training instructors still on site.
In Texas, George Garst now wears two external bags — one for urine and one for fecal matter — because of severe radiation injuries he suffered after a medical physicist who said he was overworked failed to detect a mistake. The overdose was never reported to the authorities because rules did not require it.
These mistakes and the failure of hospitals to quickly identify them offer a rare look into the vulnerability of patient safeguards at a time when increasingly complex, computer-controlled devices are fundamentally changing medical radiation, delivering higher doses in less time with greater precision than ever before."
By WALT BOGDANICH
Published: January 26, 2010
In New Jersey, 36 cancer patients at a veterans hospital in East Orange were overradiated — and 20 more received substandard treatment — by a medical team that lacked experience in using a machine that generated high-powered beams of radiation. The mistakes, which have not been publicly reported, continued for months because the hospital had no system in place to catch the errors.
In Louisiana, Landreaux A. Donaldson received 38 straight overdoses of radiation, each nearly twice the prescribed amount, while undergoing treatment for prostate cancer. He was treated with a machine so new that the hospital made a miscalculation even with training instructors still on site.
In Texas, George Garst now wears two external bags — one for urine and one for fecal matter — because of severe radiation injuries he suffered after a medical physicist who said he was overworked failed to detect a mistake. The overdose was never reported to the authorities because rules did not require it.
These mistakes and the failure of hospitals to quickly identify them offer a rare look into the vulnerability of patient safeguards at a time when increasingly complex, computer-controlled devices are fundamentally changing medical radiation, delivering higher doses in less time with greater precision than ever before."
Monday, January 25, 2010
Inspector General Finds Mismanaged Disability Claims, Roanoke-VA
Full Article at: Report claims Roanoke Veterans Affairs office mismanaged disability claims
By Scott Leamon | WSLS10 Reporter
A federal Office of Inspector General report claims employees with Roanoke’s regional office of veteran’s affairs mismanaged several disability claims.
Between August 25th to September 2nd of last year, the report reads several inspectors were at the office inside Roanoke’s Poff federal building.
The inspectors looked at everything from the contents of some employees’ desks to what was in their trash cans.
The report found the office did not meet 6 of 14 important operational areas.
It also found employees mismanaged the claims of several vets.
Inspectors looked at a sample of claims filed between January and March of 2009.
Of the 901 disability claims filed during that time frame, the sample studied 118 of them.
Inspectors found 29 of those 118 claims contained errors.
Cited examples include the story of one veteran diagnosed with coronary artery disease, a complication of diabetes after exposure to Agent Orange in Vietnam.
The report found claims agents denied the vet’s $21,857 claim incorrectly, finding bottom line the veteran’s claim should have been granted.
It also cited another example of a veteran with diabetes whom had a leg amputated.
The report claims the office granted the vet’s $14,103 claim despite his file clearly explaining the veteran did not meet the necessary criteria for benefits.
Inspectors found most of the problems were the result of bad bookkeeping. Others were due to outdated government forms. Still other mistakes were credited to poor employee training.
The report read that not all the mistakes were made at VA’s Roanoke regional office, but some other regional offices.
So far no one from the Roanoke regional office will comment on the report."
By Scott Leamon | WSLS10 Reporter
A federal Office of Inspector General report claims employees with Roanoke’s regional office of veteran’s affairs mismanaged several disability claims.
Between August 25th to September 2nd of last year, the report reads several inspectors were at the office inside Roanoke’s Poff federal building.
The inspectors looked at everything from the contents of some employees’ desks to what was in their trash cans.
The report found the office did not meet 6 of 14 important operational areas.
It also found employees mismanaged the claims of several vets.
Inspectors looked at a sample of claims filed between January and March of 2009.
Of the 901 disability claims filed during that time frame, the sample studied 118 of them.
Inspectors found 29 of those 118 claims contained errors.
Cited examples include the story of one veteran diagnosed with coronary artery disease, a complication of diabetes after exposure to Agent Orange in Vietnam.
The report found claims agents denied the vet’s $21,857 claim incorrectly, finding bottom line the veteran’s claim should have been granted.
It also cited another example of a veteran with diabetes whom had a leg amputated.
The report claims the office granted the vet’s $14,103 claim despite his file clearly explaining the veteran did not meet the necessary criteria for benefits.
Inspectors found most of the problems were the result of bad bookkeeping. Others were due to outdated government forms. Still other mistakes were credited to poor employee training.
The report read that not all the mistakes were made at VA’s Roanoke regional office, but some other regional offices.
So far no one from the Roanoke regional office will comment on the report."
New York VA Offers Course for Caregivers, Mentally Illl Veterans
Full Article at: VA offers course for relatives of mentally ill veterans
By James T. Mulder / The Post-Standard
January 25, 2010, 8:58AM
Syracuse, N.Y. -- The Syracuse VA Medical Center is offering a free 12-week course for family caregivers of veterans with mental illness.
The class runs from 6 p.m. to 8 p.m. beginning Tuesday.
The program is based on a course developed by the National Alliance on Mental Illness.
Trained family members guided by VA professional behavioral counselors will teach the course. The course offers information about schizophrenia, bipolar disorder, post-traumatic stress disorder, substance abuse and other illnesses. It also will focus on medications, side effects and strategies for medication adherence.
To enroll, call Ann Canastra at 425-4445, extension 51009, or e-mail her at Ann.Canastra@va.gov.
By James T. Mulder / The Post-Standard
January 25, 2010, 8:58AM
Syracuse, N.Y. -- The Syracuse VA Medical Center is offering a free 12-week course for family caregivers of veterans with mental illness.
The class runs from 6 p.m. to 8 p.m. beginning Tuesday.
The program is based on a course developed by the National Alliance on Mental Illness.
Trained family members guided by VA professional behavioral counselors will teach the course. The course offers information about schizophrenia, bipolar disorder, post-traumatic stress disorder, substance abuse and other illnesses. It also will focus on medications, side effects and strategies for medication adherence.
To enroll, call Ann Canastra at 425-4445, extension 51009, or e-mail her at Ann.Canastra@va.gov.
Pittsburgh Veteran Homes Care Abismal
This is more than an alarm, it appears to be disaster.
Full Article at: Health alarm raised about two state-operated veterans homes
By Walter F. Roche Jr.
PITTSBURGH TRIBUNE-REVIEW
Monday, January 25, 2010
After Pennsylvania health inspectors visited the 514-bed Hollidaysburg Veterans Home in February, they were clearly alarmed.
Inspectors saw patients screaming, biting and kicking as four attendants held them down for bathing or treatment. Often, the inspectors found, patients received improper doses of powerful psychotropic drugs to avert bedlam. And when a staff member reported concerns about physical abuse of a resident, inspectors determined no one investigated.
"The administrator and director of nursing were not fulfilling their essential job duties to ensure the safety and proper health care services for residents," the inspectors concluded in a 37-page report.
Experts the Tribune-Review interviewed say the use of drugs is not the first-line treatment for dementia patients with behavioral problems. What's more, state law mandates that hospital administrators investigate reports of suspected abuse.
Both the Hollidaysburg home and Gino J. Merli Veterans Center in Scranton show a series of serious deficiencies. The U.S. Department of Health and Human Services rated the facilities below average in meeting inspection requirements, giving them the lowest possible ranking: one star out of five."
Full Article at: Health alarm raised about two state-operated veterans homes
By Walter F. Roche Jr.
PITTSBURGH TRIBUNE-REVIEW
Monday, January 25, 2010
After Pennsylvania health inspectors visited the 514-bed Hollidaysburg Veterans Home in February, they were clearly alarmed.
Inspectors saw patients screaming, biting and kicking as four attendants held them down for bathing or treatment. Often, the inspectors found, patients received improper doses of powerful psychotropic drugs to avert bedlam. And when a staff member reported concerns about physical abuse of a resident, inspectors determined no one investigated.
"The administrator and director of nursing were not fulfilling their essential job duties to ensure the safety and proper health care services for residents," the inspectors concluded in a 37-page report.
Experts the Tribune-Review interviewed say the use of drugs is not the first-line treatment for dementia patients with behavioral problems. What's more, state law mandates that hospital administrators investigate reports of suspected abuse.
Both the Hollidaysburg home and Gino J. Merli Veterans Center in Scranton show a series of serious deficiencies. The U.S. Department of Health and Human Services rated the facilities below average in meeting inspection requirements, giving them the lowest possible ranking: one star out of five."
Vets Win in PTSD Class Action Case
A bit of good news. Yet, it is sad that it has taken a class action suit to get what these vets deserve.
Then again, if more Vets take this route then perhaps the system will start to full fill the original intent.
National Veterans Legal Services Program
Morgan Lewis & Bockius LLP law firm have coordinated about 100 volunteer lawyers to offer free counseling."
Full Article at:
Thousands of vets could get benefits upgrade
WASHINGTON – The military has agreed to expedite a review the records of thousands of Iraq and Afghanistan veterans discharged with post-traumatic stress disorder to determine whether they were improperly denied benefits.
The agreement stems from a judge's order in a class action lawsuit originally filed by seven combat veterans who alleged the military illegally denied benefits to those discharged because of the disorder during a six-year period that ended Oct. 14, 2008.
Legal notices are currently being mailed to about 4,300 veterans informing them that they can "opt-in" to the lawsuit until July 24 to participate in the expedited review. Attorneys for the veterans estimate that millions could be paid to veterans under the agreement, with some veterans receiving hundreds or more dollars in increased monthly benefits.
The National Veterans Legal Services Program was to discuss the suit at a press conference Monday.
"To help the affected veterans, the National Veterans Legal Services Program and Morgan Lewis & Bockius LLP law firm have coordinated about 100 volunteer lawyers to offer free counseling."
Then again, if more Vets take this route then perhaps the system will start to full fill the original intent.
National Veterans Legal Services Program
Morgan Lewis & Bockius LLP law firm have coordinated about 100 volunteer lawyers to offer free counseling."
Full Article at:
Thousands of vets could get benefits upgrade
WASHINGTON – The military has agreed to expedite a review the records of thousands of Iraq and Afghanistan veterans discharged with post-traumatic stress disorder to determine whether they were improperly denied benefits.
The agreement stems from a judge's order in a class action lawsuit originally filed by seven combat veterans who alleged the military illegally denied benefits to those discharged because of the disorder during a six-year period that ended Oct. 14, 2008.
Legal notices are currently being mailed to about 4,300 veterans informing them that they can "opt-in" to the lawsuit until July 24 to participate in the expedited review. Attorneys for the veterans estimate that millions could be paid to veterans under the agreement, with some veterans receiving hundreds or more dollars in increased monthly benefits.
The National Veterans Legal Services Program was to discuss the suit at a press conference Monday.
"To help the affected veterans, the National Veterans Legal Services Program and Morgan Lewis & Bockius LLP law firm have coordinated about 100 volunteer lawyers to offer free counseling."
Tuesday, January 19, 2010
Advocacy Tips, PVA "SOAR" Vol 13 No. 2
Here are the Advocacy Tips from the PVA SOAR Vol 13, No. 2
Claims Checklist
The Veterans Appeals Litigation Office (VALO) of Paralyzed Veterans of America is in the same building occupied by the Veterans Court and the VA’s Court litigation staff. This close proximity to the Court and VA litigation staff has many benefits. One benefit is that VALO staff can review and analyze Court opinions and orders as they are issued by the Court. The supervisor of VALO, Linda E. Blauhut,
PVA associate general counsel and her colleague, Jennifer Zajac, PVA assistant general counsel, have been able to identify some of the most frequent reasons the Court has given for remanding appeals to the VA for additional development and adjudication of veterans’ claims. By identifying the reasons why the Court remands cases to the VA, Blauhut and Zajac were able to create a claims checklist for use by PVA service officers as they file and develop claims by PVA members and other claimants for VA benefits.
Use of the checklist may help PVA representatives to ensure that the claims of members and other claimants are fully developed.
Has adequate VCAA notice been provided?
The Veterans Court has remanded many appeals to VA because VA did not provide notice to the claimant of information and evidence that is necessary to substantiate his or her claim.
Has VA provided incorrect notice?
The Veterans Court has remanded many cases because VA gave the veteran incorrect information.
Have all of the veteran’s service records been obtained?
A surprising number of veterans’ appeals are remanded by the Veterans Court because the agency did not obtain all
of the service medical and personnel records. PVA representatives should review each veteran’s claims file to
ensure that all service records are present in the claims file. If not, the representative should notify the VA and
request VA to obtain the missing records.
Have all of the veteran’s private medical records been obtained?
Many cases are remanded because the records before the Court indicated that the veteran had been receiving private medical care but the records of that care had not been obtained. PVA representatives should request that the veteran obtain a copy of these records and provide them to the representative for review before they are submitted to VA. When the records are obtained the representative should review them to decide whether they are relevant to resolution of the veteran’s claim.
Have all of the veteran’s VA treatment
records been obtained?
Many court-ordered remands are issued because all of a veteran’s VA treatment records were not obtained or reviewed
by VA adjudicators. PVA representatives should ensure that all VA treatment records have been obtained. If the
records are missing, the VA should be asked to obtain them for incorporation into the veteran’s claims folder.
Is the VA examination or VA medical
opinion adequate?
Many cases are remanded by the Court because of inadequate VA examinations or opinions.
PVA representatives should closely examine VA examination reports and medical opinions to ensure that they are
adequate and respond to the medical issues involved in each claim. If found inadequate, the representative should
inform the VA and request that the agency obtain a more accurate examination report or medical opinion. If it
appears to the veteran’s PVA representative that VA’s examination report or medical opinion does not support
the veteran’s claim, the representative should notify the veteran of this conclusion and should advise the veteran to obtain and submit a medical opinion that supports the claim to benefits.
Many claims for VA benefits require detailed and well-reasoned medical opinions or examination reports. When reviewing the quality of medical opinions or examination reports, try to ensure that they are complete and unambiguous. If they are incomplete, confusing, or ambiguous, request that VA obtain a more complete medical opinion or examination report. See 38 C.F.R. § 4.2 (2004) (requiring that, if examination report “does not contain sufficient detail, it is incumbent upon the [RO] rating board to return the report as inadequate for evaluation purposes”); see also Bowling v. Principi, 15 Vet.App. 1, 12 (2001) (emphasizing the BVA’s duty, under 38 C.F.R. § 19.9 (2000), to return inadequate examination report); Hicks v. Brown, Vet.App. 417, 422 (1995) (1995) (concluding that inadequate medical examination frustrates judicial review).
Did VA inform the veteran of the need to obtain and submit an expert medical opinion?
The Veterans Court frequently finds it necessary to remand
an appeal because VA did not inform the veteran that he or she should file
an expert medical opinion to support a claim. PVA representatives should
review a veteran’s records to determine whether to advise the veteran to obtain
and submit an expert medical opinion that supports the veteran’s claim.
Did VA provide the veteran with an adequate personal hearing?
Did the VA official conducting the veteran’s personal hearing inform the veteran of
all of the issues involved in the case?
Did the VA hearing official also suggest to the veteran that the veteran
should obtain and submit necessary information and evidence to help support
his or her claim to VA benefits?
During the hearing the veteran’s PVA representative should ask the VA hearing
official to state, on the record, what he or she believes the issues to be in the case. The veteran’s PVA representative should also ask the VA hearing official to state, on the record, whether the veteran needs to obtain and file additional evidence to support his or her claim.
Claims Checklist
The Veterans Appeals Litigation Office (VALO) of Paralyzed Veterans of America is in the same building occupied by the Veterans Court and the VA’s Court litigation staff. This close proximity to the Court and VA litigation staff has many benefits. One benefit is that VALO staff can review and analyze Court opinions and orders as they are issued by the Court. The supervisor of VALO, Linda E. Blauhut,
PVA associate general counsel and her colleague, Jennifer Zajac, PVA assistant general counsel, have been able to identify some of the most frequent reasons the Court has given for remanding appeals to the VA for additional development and adjudication of veterans’ claims. By identifying the reasons why the Court remands cases to the VA, Blauhut and Zajac were able to create a claims checklist for use by PVA service officers as they file and develop claims by PVA members and other claimants for VA benefits.
Use of the checklist may help PVA representatives to ensure that the claims of members and other claimants are fully developed.
Has adequate VCAA notice been provided?
The Veterans Court has remanded many appeals to VA because VA did not provide notice to the claimant of information and evidence that is necessary to substantiate his or her claim.
Has VA provided incorrect notice?
The Veterans Court has remanded many cases because VA gave the veteran incorrect information.
Have all of the veteran’s service records been obtained?
A surprising number of veterans’ appeals are remanded by the Veterans Court because the agency did not obtain all
of the service medical and personnel records. PVA representatives should review each veteran’s claims file to
ensure that all service records are present in the claims file. If not, the representative should notify the VA and
request VA to obtain the missing records.
Have all of the veteran’s private medical records been obtained?
Many cases are remanded because the records before the Court indicated that the veteran had been receiving private medical care but the records of that care had not been obtained. PVA representatives should request that the veteran obtain a copy of these records and provide them to the representative for review before they are submitted to VA. When the records are obtained the representative should review them to decide whether they are relevant to resolution of the veteran’s claim.
Have all of the veteran’s VA treatment
records been obtained?
Many court-ordered remands are issued because all of a veteran’s VA treatment records were not obtained or reviewed
by VA adjudicators. PVA representatives should ensure that all VA treatment records have been obtained. If the
records are missing, the VA should be asked to obtain them for incorporation into the veteran’s claims folder.
Is the VA examination or VA medical
opinion adequate?
Many cases are remanded by the Court because of inadequate VA examinations or opinions.
PVA representatives should closely examine VA examination reports and medical opinions to ensure that they are
adequate and respond to the medical issues involved in each claim. If found inadequate, the representative should
inform the VA and request that the agency obtain a more accurate examination report or medical opinion. If it
appears to the veteran’s PVA representative that VA’s examination report or medical opinion does not support
the veteran’s claim, the representative should notify the veteran of this conclusion and should advise the veteran to obtain and submit a medical opinion that supports the claim to benefits.
Many claims for VA benefits require detailed and well-reasoned medical opinions or examination reports. When reviewing the quality of medical opinions or examination reports, try to ensure that they are complete and unambiguous. If they are incomplete, confusing, or ambiguous, request that VA obtain a more complete medical opinion or examination report. See 38 C.F.R. § 4.2 (2004) (requiring that, if examination report “does not contain sufficient detail, it is incumbent upon the [RO] rating board to return the report as inadequate for evaluation purposes”); see also Bowling v. Principi, 15 Vet.App. 1, 12 (2001) (emphasizing the BVA’s duty, under 38 C.F.R. § 19.9 (2000), to return inadequate examination report); Hicks v. Brown, Vet.App. 417, 422 (1995) (1995) (concluding that inadequate medical examination frustrates judicial review).
Did VA inform the veteran of the need to obtain and submit an expert medical opinion?
The Veterans Court frequently finds it necessary to remand
an appeal because VA did not inform the veteran that he or she should file
an expert medical opinion to support a claim. PVA representatives should
review a veteran’s records to determine whether to advise the veteran to obtain
and submit an expert medical opinion that supports the veteran’s claim.
Did VA provide the veteran with an adequate personal hearing?
Did the VA official conducting the veteran’s personal hearing inform the veteran of
all of the issues involved in the case?
Did the VA hearing official also suggest to the veteran that the veteran
should obtain and submit necessary information and evidence to help support
his or her claim to VA benefits?
During the hearing the veteran’s PVA representative should ask the VA hearing
official to state, on the record, what he or she believes the issues to be in the case. The veteran’s PVA representative should also ask the VA hearing official to state, on the record, whether the veteran needs to obtain and file additional evidence to support his or her claim.
Friday, January 15, 2010
Veterans competent to testify about "persistent or recurrent symptoms", Jandeau v. Nicholson, 492 F. 3d 1372, 1377
We like the citation to Jandreau in this decision.
The appellant is competent to testify that he has experienced "persistent or recurrent symptoms of a disability." McLendon, supra; Jandreau v. Nicholson, 492 F.3d 1372, 1377 ( Fed. Cir. 2007).
U.S. Court of Appeals for Veterans Claims
----------------------------------------------------
Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 07-1681
PAUL W. KNIGHT, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before MOORMAN, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
MOORMAN, Judge: The appellant, Paul W. Knight, through counsel, seeks review of a June 7, 2007, decision of the Board of Veterans' Appeals (Board) denying entitlement to service connection for a right knee disability, residuals of a chest injury, and hypertension. Both parties filed briefs, and the appellant filed a reply brief. On November 21, 2008, in a single-judge memorandum decision, the Court affirmed, in part, and vacated in part, the June 7, 2007, Board
decision, and remanded certain matters. Knight v. Peake, No. 07-1681, 2008 WL 5095956 (Vet. App. Nov. 21, 2008).
On December 11, 2008, the appellant filed a timely motion for
reconsideration, or in the alternative, for a panel decision to the extent
that the Court had affirmed the Board's denial of entitlement to service connection for residuals of a chest injury. He contends that the Court did not address whether VA had failed to meet its duty to assist with respect to his chest claim. On November 2, 2009, the Secretary filed a response in opposition. The Court grants the appellant's motion for reconsideration, withdraws its November 21, 2008, decision, and issues this decision in its place.
This appeal is timely, and the Court has jurisdiction pursuant to 38 U.S.C. §§ 7252(a) and 7266(a). A single judge may conduct this review. See Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). For the reasons set forth below, the Court will vacate the Board's decision denying
entitlement to service connection for residuals of a chest injury, a
right knee disability, and hypertension and will remand those matters for further proceedings consistent with this decision.
I. FACTS
Mr. Knight served on active duty in the U.S. Army from July 1981 to July
1984. Record (R.) at 20. Service medical records (SMRs) reflect that he complained of chest pain with trouble breathing in February 1983, and was diagnosed with muscle strain. R. at 57- 58. Mr. Knight was
also treated in June 1983 for an injury he sustained when he hit a diving
board at a swimming pool.
R. at 62, 64-65. His treatment records showed that his sternum area was
red with scratches and
slight bleeding. Id. X-rays revealed no fractures. R. at 65. A followup
visit reflected a diagnosis
of "blunt chest trauma, resolved." R. at 67. In April 1984, Mr. Knight
reported chest pains after
running. R. at 85. Postservice medical records from July 1988 show a
diagnosis of musculoskeletal
chest pain. R. at 347. A September 2003 private medical report included Mr. Knight's statement that he experienced recurrent chest pain. R. at 407. Subsequent VA medical
records also reflected reports of chest pain, which were described as "musculoskeletal" and not " cardiac." R. at 483, 538,
659. Mr. Knight submitted a claim for service connection for residuals of
a chest injury in February 2003. R. at 361-63, 368. The VA regional office (RO) denied Mr. Knight's claim for service connection for a chest injury in June 2004. R. at 500.
Mr. Knight's SMRs also showed blood pressure readings of 140/80 in June 1982 (R. at 40), 143/57 in August 1982 (R. at 46), 136/88 in June 1983 (R. at 67), and 140/80 in May 1984 (R. at 86). Postservice medical records from December 2002 showed a diagnosis of
hypertension. R. at 415. The RO denied a claim for service connection for hypertension in December 2005. R. at 678.
In August 1983, Mr. Knight was seen for a strain of his left knee. R. at
72-73. Army Reserve
medical records dated August 1991 and April 1998 reflected a scar along the right superior medial knee. R. at 116, 138. In September 2002, Mr. Knight filed a claim for compensation or pension and
listed, among other things, a bilateral knee disability. R. at 170-74. In
a December 2002 rating decision, the RO denied the claim for service connection for a bilateral knee disability. R. at 355-59.
A postservice medical record dated December 2002 showed a diagnosis of tendonitis in the right knee. R. at 415. Mr. Knight appealed the decision denying service connection for his right knee disability in February 2003. R. at 361. In November 2003, service connection was granted for a left
2
knee injury, rated at less than 10% disabling. R. at 460. January 2004 VA medical records indicated
that Mr. Knight complained of bilateral knee pain. R. at 535. The examiner noted minimal effusion,
mild crepitus, and mildly decreased range of motion in the right knee, and diagnosed Mr. Knight as having degenerative joint disease of the knees. R. at 536. X-rays reflected "bilateral inferior patellar
bone spurs with irregular appearance of the lower portion of the articular
surfaces." R. at 528.
In the decision on appeal, the Board determined that there was no need to obtain a medical opinion or examination, and denied entitlement to service connection for residuals of a chest injury,
a right knee disability, and hypertension. R. at 1-12.
II. APPLICABLE LAW
Establishing service connection generally requires medical or, in certain
circumstances, lay
evidence of (1) a current disability; (2) an in-service incurrence or
aggravation of a disease or injury;
and (3) a nexus between the claimed in-service disease or injury and the present disability. See
Davidson v. Shinseki, 518 F.3d 1313 (Fed. Cir. 2009), Hickson v. West, 12 Vet.App. 247, 253 (1999); Caluza v. Brown, 7 Vet.App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996)
(table); see also Heuer v. Brown, 7 Vet.App. 379, 384 (1995). A finding of service connection, or no service connection, is a finding of fact reviewed under the "clearly erroneous" standard in 38 U.S.C. § 7261(a)(4). See Swann v. Brown, 5 Vet.App. 229, 232 (1993). "
A factual finding 'is clearly erroneous when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.'" Hersey
v. Derwinski, 2 Vet.App. 91, 94 (1992) (quoting United States v. United
States Gypsum Co., 333 U.S. 364 (1948)). The Court may not substitute its judgment for the factual determinations of the Board on issues of material fact merely because the Court would have
decided those issues differently in the first instance. See id.
Moreover, the Board is required to provide a written statement of the
reasons or bases for its findings and conclusions on all material issues of fact and law presented on the record; the statement must be adequate to enable a claimant to understand the precise basis for the Board's decision, as well as to facilitate review in this Court. See 38 U.S.C. § 7104(d)(1); Allday v. Brown, 7 Vet.App. 517, 527 (1995); Simon v. Derwinski, 2 Vet.App. 621, 622 (1992); Gilbert v. Derwinski,
1 Vet.App. 49, 57 (1990). To comply with this requirement, the Board must analyze the credibility
3
and probative value of the evidence, account for the evidence that it
finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Caluza, supra; Gabrielson v. Brown, 7 Vet.App. 36, 39-40 (1994).
III. APPLICATION OF THE LAW TO THE FACTS
A. Chest Injury Claim
The Board denied entitlement to service connection for a chest injury
because, other than
complaints of pain, the appellant did not currently have a disability as
contemplated by the law.
R. at 9-10; see Hickson, supra. The appellant argues this finding is
clearly erroneous "in light of
evidence documenting not only a current diagnosis of musculoskeletal chest pain, but [the
appellant's] own competent reports of on-going and current chest pain
symptomatology that have never been rejected by VA." Appellant's Brief (App. Br.) at 13. The appellant further argues that
the Secretary failed to satisfy his duty to assist because the appellant
was not afforded a medical examination. App. Br. at 8-9.
Pursuant to 38 U.S.C. § 5103A, the Secretary's duty to assist includes,
in appropriate cases, the duty to conduct a thorough and contemporaneous medical examination. See Green v. Derwinski,
1 Vet.App. 121, 124 (1991). The Secretary's duty to assist requires that
he provide a VA medical examination to a claimant when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) evidence establishing that an event, injury, or disease occurred in service or, for certain diseases, manifestation of the disease during an applicable presumptive period for which the claimant qualifies; and (3) an indication that the disability or
persistent or recurrent symptoms of the disability may be associated with the veteran's service or with another service-connected disability; but (4) insufficient competent medical evidence on file for the Secretary to make a decision on the claim. See 38 U.S.C. § 5103A(d); Paralyzed Veterans of Am. v. Sec'y of Veterans Affairs, 345 F.3d 1334, 1355-57 (Fed. Cir. 2003); Wells v. Principi, 326 F.3d 1381, 1384 (Fed. Cir. 2003); McLendon v. Nicholson, 20 Vet.App. 79, 81 (2006); 38 C.F.R.
§ 3.159(c)(4)(i)(2009).
In this case, rather than finding that the record already contained
sufficient medical evidence for the Secretary to reach a decision, the Board found that a VA medical opinion or examination was not required because there was "no evidence that the veteran has a current disability, or persistent
4
or recurrent symptoms of a disability." R. at 6. However, the appellant
has testified that he has experienced chest pain since the documented chest injury occurred in service, and the postservice medical evidence reflected recurrent chest pain. R. at 62, 186, 347, 407, 409, 483, 538, 659. The appellant is competent to testify that he has experienced "persistent or recurrent symptoms of a disability." McLendon, supra; Jandreau v. Nicholson, 492 F.3d 1372, 1377 ( Fed. Cir. 2007).
The Court notes that, in certain situations, lay evidence may be used to
diagnose a veteran's medical condition. See Jandreau, supra; Barr v. Nicholson, 21 Vet.App. 303, 307 (2007) (stating that "[l]ay testimony is competent . . . to establish the presence of observable symptomatology and 'may provide sufficient support for a claim of service connection'" (quoting Layno v. Brown, 6 Vet.App. 465, 469 (1994))); Washington v. Nicholson, 21 Vet.App. 191, 195 (2007) (holding that, "[a]s a layperson, an appellant is competent to provide information regarding visible, or otherwise observable, symptoms of disability"). Recently, the Federal Circuit provided further guidance concerning Jandreau. In Davidson, the Federal Circuit reemphasized the utility and appropriate consideration of lay evidence, even in the absence of competent medical evidence addressing medical etiology or medical diagnosis. See Davidson, 518 F.3d at 1316 ( rejecting the view that "competent medical evidence is required . . . [when] the determinative issue involves either medical etiology or a medical diagnosis." (citing Jandreau, 492 F.3d at 1376-77)); see also Jandreau, 492 F.3d at 1377 (cited in Robinson v. Shinseki, 312 Fed. App'x 336, 339, 2009 WL 524737, at *2-3 (Fed. Cir. Mar. 3, 2009) (nonprecedential) (remanding for the Board to determine whether a low back disability is the type of injury for which lay evidence is competent evidence)).
Accordingly, remand is required for the Board to provide an adequate
statement of reasons or bases on the issue whether the duty to assist requires VA to provide a medical examination.
B. Right Knee and Hypertension Claims
The Secretary concedes that the portion of the Board's decision regarding the appellant's right knee and hypertension claims contains errors. Secretary's (Sec.) Br. at 6.
Because the Secretary has conceded Board errors regarding those claims, and because, upon review, the Court agrees that errors were made, the only dispute is whether remand or reversal is the appropriate remedy.
Reversal is appropriate solely in cases where the only permissible view of the evidence is contrary to the Board's decision. See Gutierrez v. Principi, 19 Vet.App. 1, 10 (2004); Johnson v. Brown, 9 Vet.App. 7, 10 (1996). Where the Board has incorrectly applied the law, failed to provide an
5
adequate statement of reasons or bases for its determinations, or where the record is otherwise inadequate, remand is generally the appropriate remedy. See Gutierrez, 19 Vet.App. at 10; Tucker
v. West, 11 Vet.App. 369, 374 (1998).
In this case, the appellant argues that the Board's determination that VA
satisfied its duty to assist should be reversed. App. Br. at 10. However, a review of the Board's decision shows that remand is the appropriate remedy because the Board has provided an inadequate statement of the reasons or bases for finding that VA was not required to provide a medical opinion or examination with respect to the appellant's right knee and hypertension claims. In disability compensation claims, the Secretary must provide a VA medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies; and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability; but(4) insufficient competent medical evidence on file for the Secretary to make a decision on the claim. See 38 U.S.C. § 5103A(a)(1), (d)(1); 38 U.S.C. § 7261(a)(3)(A); McLendon, 20 Vet.App. at 81.
The Board acknowledged that there is competent evidence that the appellant has a current right knee disability and current hypertension. R. at 8, 11. Nonetheless, the Board found a medical opinion or examination was not required because "[t]here is no record of a
right knee injury or hypertension, or complaints relative to such, during service." R. at 5.
However, the appellant testified that his "right knee sprained a little bit" while he was in the military. R. at 427. The Board dismissed this testimony, finding that the appellant "is not competent to offer an opinion as to questions of medical diagnosis or causation." R. at 8. That may be true under certain circumstances, however, the appellant is competent to testify that he sustained a knee injury in service. See Jandreau, supra. Therefore, the Board should have considered this evidence when determining whether a medical examination was warranted. Similarly, the Board erred in not considering records showing that the appellant's blood pressure was elevated during his service. R. at 40, 46, 67, 86.
The Board disregarded these records because "hypertension was not
diagnosed on those occasions, and blood pressure readings were otherwise shown to be normal." R. at 10.
While such evidence may be insufficient to support a finding of service connection, the Board erred in failing to consider
6
whether it was sufficient to trigger VA's duty to provide a medical
examination. See McLendon, supra (stating that the evidence necessary to trigger the Secretary's duty to provide a medical examination "is a lowthreshold" requiring only an indication that a
disability may be associated with the claimant's service).
The Court cannot conclude from the evidence of record that the only "
permissible view" is a finding that the appellant is entitled to service connection for a right knee disability and hypertension. See Gutierrez, 19 Vet.App. at 10; Johnson, 9 Vet.App. at 10.
Rather, remand is the appropriate remedy in this case to provide the Board an opportunity to weigh and consider all evidence of record, particularly as it pertains to the need for further development in accordance with VA's duty to assist, and to make an appropriate determination based upon such development. On remand, the appellant is free to submit additional evidence and argument on the remanded matters,
which the Board must consider when readjudicating his claims. See Kay v. Principi, 16 Vet.App. 529, 534 (2002); Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999) (per curiam order). The Board and the RO must provide expeditious treatment of this matter on remand. See 38 U.S.C.§§ 5109B, 7112.
III. CONCLUSION
Based on the parties' pleadings, the foregoing analysis, and a review of
the record on appeal, the appellant's motion for reconsideration is granted, the Court's November 21, 2008, decision is WITHDRAWN and this decision is issued in its stead. The Board's June 7, 2007, decision denying entitlement to service connection for residuals of a chest injury, for a right knee disability, and hypertension is VACATED, and the matters are REMANDED for further proceedings consistent with this decision.
DATED: November 30, 2009
Copies to:
Daniel G. Krasnegor, Esq.
VA General Counsel (027)
7
The appellant is competent to testify that he has experienced "persistent or recurrent symptoms of a disability." McLendon, supra; Jandreau v. Nicholson, 492 F.3d 1372, 1377 ( Fed. Cir. 2007).
U.S. Court of Appeals for Veterans Claims
----------------------------------------------------
Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 07-1681
PAUL W. KNIGHT, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before MOORMAN, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
MOORMAN, Judge: The appellant, Paul W. Knight, through counsel, seeks review of a June 7, 2007, decision of the Board of Veterans' Appeals (Board) denying entitlement to service connection for a right knee disability, residuals of a chest injury, and hypertension. Both parties filed briefs, and the appellant filed a reply brief. On November 21, 2008, in a single-judge memorandum decision, the Court affirmed, in part, and vacated in part, the June 7, 2007, Board
decision, and remanded certain matters. Knight v. Peake, No. 07-1681, 2008 WL 5095956 (Vet. App. Nov. 21, 2008).
On December 11, 2008, the appellant filed a timely motion for
reconsideration, or in the alternative, for a panel decision to the extent
that the Court had affirmed the Board's denial of entitlement to service connection for residuals of a chest injury. He contends that the Court did not address whether VA had failed to meet its duty to assist with respect to his chest claim. On November 2, 2009, the Secretary filed a response in opposition. The Court grants the appellant's motion for reconsideration, withdraws its November 21, 2008, decision, and issues this decision in its place.
This appeal is timely, and the Court has jurisdiction pursuant to 38 U.S.C. §§ 7252(a) and 7266(a). A single judge may conduct this review. See Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). For the reasons set forth below, the Court will vacate the Board's decision denying
entitlement to service connection for residuals of a chest injury, a
right knee disability, and hypertension and will remand those matters for further proceedings consistent with this decision.
I. FACTS
Mr. Knight served on active duty in the U.S. Army from July 1981 to July
1984. Record (R.) at 20. Service medical records (SMRs) reflect that he complained of chest pain with trouble breathing in February 1983, and was diagnosed with muscle strain. R. at 57- 58. Mr. Knight was
also treated in June 1983 for an injury he sustained when he hit a diving
board at a swimming pool.
R. at 62, 64-65. His treatment records showed that his sternum area was
red with scratches and
slight bleeding. Id. X-rays revealed no fractures. R. at 65. A followup
visit reflected a diagnosis
of "blunt chest trauma, resolved." R. at 67. In April 1984, Mr. Knight
reported chest pains after
running. R. at 85. Postservice medical records from July 1988 show a
diagnosis of musculoskeletal
chest pain. R. at 347. A September 2003 private medical report included Mr. Knight's statement that he experienced recurrent chest pain. R. at 407. Subsequent VA medical
records also reflected reports of chest pain, which were described as "musculoskeletal" and not " cardiac." R. at 483, 538,
659. Mr. Knight submitted a claim for service connection for residuals of
a chest injury in February 2003. R. at 361-63, 368. The VA regional office (RO) denied Mr. Knight's claim for service connection for a chest injury in June 2004. R. at 500.
Mr. Knight's SMRs also showed blood pressure readings of 140/80 in June 1982 (R. at 40), 143/57 in August 1982 (R. at 46), 136/88 in June 1983 (R. at 67), and 140/80 in May 1984 (R. at 86). Postservice medical records from December 2002 showed a diagnosis of
hypertension. R. at 415. The RO denied a claim for service connection for hypertension in December 2005. R. at 678.
In August 1983, Mr. Knight was seen for a strain of his left knee. R. at
72-73. Army Reserve
medical records dated August 1991 and April 1998 reflected a scar along the right superior medial knee. R. at 116, 138. In September 2002, Mr. Knight filed a claim for compensation or pension and
listed, among other things, a bilateral knee disability. R. at 170-74. In
a December 2002 rating decision, the RO denied the claim for service connection for a bilateral knee disability. R. at 355-59.
A postservice medical record dated December 2002 showed a diagnosis of tendonitis in the right knee. R. at 415. Mr. Knight appealed the decision denying service connection for his right knee disability in February 2003. R. at 361. In November 2003, service connection was granted for a left
2
knee injury, rated at less than 10% disabling. R. at 460. January 2004 VA medical records indicated
that Mr. Knight complained of bilateral knee pain. R. at 535. The examiner noted minimal effusion,
mild crepitus, and mildly decreased range of motion in the right knee, and diagnosed Mr. Knight as having degenerative joint disease of the knees. R. at 536. X-rays reflected "bilateral inferior patellar
bone spurs with irregular appearance of the lower portion of the articular
surfaces." R. at 528.
In the decision on appeal, the Board determined that there was no need to obtain a medical opinion or examination, and denied entitlement to service connection for residuals of a chest injury,
a right knee disability, and hypertension. R. at 1-12.
II. APPLICABLE LAW
Establishing service connection generally requires medical or, in certain
circumstances, lay
evidence of (1) a current disability; (2) an in-service incurrence or
aggravation of a disease or injury;
and (3) a nexus between the claimed in-service disease or injury and the present disability. See
Davidson v. Shinseki, 518 F.3d 1313 (Fed. Cir. 2009), Hickson v. West, 12 Vet.App. 247, 253 (1999); Caluza v. Brown, 7 Vet.App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996)
(table); see also Heuer v. Brown, 7 Vet.App. 379, 384 (1995). A finding of service connection, or no service connection, is a finding of fact reviewed under the "clearly erroneous" standard in 38 U.S.C. § 7261(a)(4). See Swann v. Brown, 5 Vet.App. 229, 232 (1993). "
A factual finding 'is clearly erroneous when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.'" Hersey
v. Derwinski, 2 Vet.App. 91, 94 (1992) (quoting United States v. United
States Gypsum Co., 333 U.S. 364 (1948)). The Court may not substitute its judgment for the factual determinations of the Board on issues of material fact merely because the Court would have
decided those issues differently in the first instance. See id.
Moreover, the Board is required to provide a written statement of the
reasons or bases for its findings and conclusions on all material issues of fact and law presented on the record; the statement must be adequate to enable a claimant to understand the precise basis for the Board's decision, as well as to facilitate review in this Court. See 38 U.S.C. § 7104(d)(1); Allday v. Brown, 7 Vet.App. 517, 527 (1995); Simon v. Derwinski, 2 Vet.App. 621, 622 (1992); Gilbert v. Derwinski,
1 Vet.App. 49, 57 (1990). To comply with this requirement, the Board must analyze the credibility
3
and probative value of the evidence, account for the evidence that it
finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Caluza, supra; Gabrielson v. Brown, 7 Vet.App. 36, 39-40 (1994).
III. APPLICATION OF THE LAW TO THE FACTS
A. Chest Injury Claim
The Board denied entitlement to service connection for a chest injury
because, other than
complaints of pain, the appellant did not currently have a disability as
contemplated by the law.
R. at 9-10; see Hickson, supra. The appellant argues this finding is
clearly erroneous "in light of
evidence documenting not only a current diagnosis of musculoskeletal chest pain, but [the
appellant's] own competent reports of on-going and current chest pain
symptomatology that have never been rejected by VA." Appellant's Brief (App. Br.) at 13. The appellant further argues that
the Secretary failed to satisfy his duty to assist because the appellant
was not afforded a medical examination. App. Br. at 8-9.
Pursuant to 38 U.S.C. § 5103A, the Secretary's duty to assist includes,
in appropriate cases, the duty to conduct a thorough and contemporaneous medical examination. See Green v. Derwinski,
1 Vet.App. 121, 124 (1991). The Secretary's duty to assist requires that
he provide a VA medical examination to a claimant when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) evidence establishing that an event, injury, or disease occurred in service or, for certain diseases, manifestation of the disease during an applicable presumptive period for which the claimant qualifies; and (3) an indication that the disability or
persistent or recurrent symptoms of the disability may be associated with the veteran's service or with another service-connected disability; but (4) insufficient competent medical evidence on file for the Secretary to make a decision on the claim. See 38 U.S.C. § 5103A(d); Paralyzed Veterans of Am. v. Sec'y of Veterans Affairs, 345 F.3d 1334, 1355-57 (Fed. Cir. 2003); Wells v. Principi, 326 F.3d 1381, 1384 (Fed. Cir. 2003); McLendon v. Nicholson, 20 Vet.App. 79, 81 (2006); 38 C.F.R.
§ 3.159(c)(4)(i)(2009).
In this case, rather than finding that the record already contained
sufficient medical evidence for the Secretary to reach a decision, the Board found that a VA medical opinion or examination was not required because there was "no evidence that the veteran has a current disability, or persistent
4
or recurrent symptoms of a disability." R. at 6. However, the appellant
has testified that he has experienced chest pain since the documented chest injury occurred in service, and the postservice medical evidence reflected recurrent chest pain. R. at 62, 186, 347, 407, 409, 483, 538, 659. The appellant is competent to testify that he has experienced "persistent or recurrent symptoms of a disability." McLendon, supra; Jandreau v. Nicholson, 492 F.3d 1372, 1377 ( Fed. Cir. 2007).
The Court notes that, in certain situations, lay evidence may be used to
diagnose a veteran's medical condition. See Jandreau, supra; Barr v. Nicholson, 21 Vet.App. 303, 307 (2007) (stating that "[l]ay testimony is competent . . . to establish the presence of observable symptomatology and 'may provide sufficient support for a claim of service connection'" (quoting Layno v. Brown, 6 Vet.App. 465, 469 (1994))); Washington v. Nicholson, 21 Vet.App. 191, 195 (2007) (holding that, "[a]s a layperson, an appellant is competent to provide information regarding visible, or otherwise observable, symptoms of disability"). Recently, the Federal Circuit provided further guidance concerning Jandreau. In Davidson, the Federal Circuit reemphasized the utility and appropriate consideration of lay evidence, even in the absence of competent medical evidence addressing medical etiology or medical diagnosis. See Davidson, 518 F.3d at 1316 ( rejecting the view that "competent medical evidence is required . . . [when] the determinative issue involves either medical etiology or a medical diagnosis." (citing Jandreau, 492 F.3d at 1376-77)); see also Jandreau, 492 F.3d at 1377 (cited in Robinson v. Shinseki, 312 Fed. App'x 336, 339, 2009 WL 524737, at *2-3 (Fed. Cir. Mar. 3, 2009) (nonprecedential) (remanding for the Board to determine whether a low back disability is the type of injury for which lay evidence is competent evidence)).
Accordingly, remand is required for the Board to provide an adequate
statement of reasons or bases on the issue whether the duty to assist requires VA to provide a medical examination.
B. Right Knee and Hypertension Claims
The Secretary concedes that the portion of the Board's decision regarding the appellant's right knee and hypertension claims contains errors. Secretary's (Sec.) Br. at 6.
Because the Secretary has conceded Board errors regarding those claims, and because, upon review, the Court agrees that errors were made, the only dispute is whether remand or reversal is the appropriate remedy.
Reversal is appropriate solely in cases where the only permissible view of the evidence is contrary to the Board's decision. See Gutierrez v. Principi, 19 Vet.App. 1, 10 (2004); Johnson v. Brown, 9 Vet.App. 7, 10 (1996). Where the Board has incorrectly applied the law, failed to provide an
5
adequate statement of reasons or bases for its determinations, or where the record is otherwise inadequate, remand is generally the appropriate remedy. See Gutierrez, 19 Vet.App. at 10; Tucker
v. West, 11 Vet.App. 369, 374 (1998).
In this case, the appellant argues that the Board's determination that VA
satisfied its duty to assist should be reversed. App. Br. at 10. However, a review of the Board's decision shows that remand is the appropriate remedy because the Board has provided an inadequate statement of the reasons or bases for finding that VA was not required to provide a medical opinion or examination with respect to the appellant's right knee and hypertension claims. In disability compensation claims, the Secretary must provide a VA medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies; and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability; but(4) insufficient competent medical evidence on file for the Secretary to make a decision on the claim. See 38 U.S.C. § 5103A(a)(1), (d)(1); 38 U.S.C. § 7261(a)(3)(A); McLendon, 20 Vet.App. at 81.
The Board acknowledged that there is competent evidence that the appellant has a current right knee disability and current hypertension. R. at 8, 11. Nonetheless, the Board found a medical opinion or examination was not required because "[t]here is no record of a
right knee injury or hypertension, or complaints relative to such, during service." R. at 5.
However, the appellant testified that his "right knee sprained a little bit" while he was in the military. R. at 427. The Board dismissed this testimony, finding that the appellant "is not competent to offer an opinion as to questions of medical diagnosis or causation." R. at 8. That may be true under certain circumstances, however, the appellant is competent to testify that he sustained a knee injury in service. See Jandreau, supra. Therefore, the Board should have considered this evidence when determining whether a medical examination was warranted. Similarly, the Board erred in not considering records showing that the appellant's blood pressure was elevated during his service. R. at 40, 46, 67, 86.
The Board disregarded these records because "hypertension was not
diagnosed on those occasions, and blood pressure readings were otherwise shown to be normal." R. at 10.
While such evidence may be insufficient to support a finding of service connection, the Board erred in failing to consider
6
whether it was sufficient to trigger VA's duty to provide a medical
examination. See McLendon, supra (stating that the evidence necessary to trigger the Secretary's duty to provide a medical examination "is a lowthreshold" requiring only an indication that a
disability may be associated with the claimant's service).
The Court cannot conclude from the evidence of record that the only "
permissible view" is a finding that the appellant is entitled to service connection for a right knee disability and hypertension. See Gutierrez, 19 Vet.App. at 10; Johnson, 9 Vet.App. at 10.
Rather, remand is the appropriate remedy in this case to provide the Board an opportunity to weigh and consider all evidence of record, particularly as it pertains to the need for further development in accordance with VA's duty to assist, and to make an appropriate determination based upon such development. On remand, the appellant is free to submit additional evidence and argument on the remanded matters,
which the Board must consider when readjudicating his claims. See Kay v. Principi, 16 Vet.App. 529, 534 (2002); Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999) (per curiam order). The Board and the RO must provide expeditious treatment of this matter on remand. See 38 U.S.C.§§ 5109B, 7112.
III. CONCLUSION
Based on the parties' pleadings, the foregoing analysis, and a review of
the record on appeal, the appellant's motion for reconsideration is granted, the Court's November 21, 2008, decision is WITHDRAWN and this decision is issued in its stead. The Board's June 7, 2007, decision denying entitlement to service connection for residuals of a chest injury, for a right knee disability, and hypertension is VACATED, and the matters are REMANDED for further proceedings consistent with this decision.
DATED: November 30, 2009
Copies to:
Daniel G. Krasnegor, Esq.
VA General Counsel (027)
7
Meaning "Disability Rating", Sharp v. Shinseki, No. 07-2481
Sharp v. Shinseki, No. 07-2481
The plain meaning of a term or phrase "begins with its 'ordinary, contemporary, common meaning.'" McGee, 511 F.3d at 1356 (quoting Williams, 529 U.S. at 431). As this Court recently iterated, "[i]t is commonplace to consult dictionaries to ascertain a term's ordinary meaning." Nielson v. Shinseki, 23 Vet.App. 56, 59 (2009); see also United States v. Rodgers, 466 U.S. 475, 479
8
(1984). "Disability rating" is a phrase common in veteran's parlance. In most basic terms, "disability rating" is the percentage "evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service." 38 C.F.R. § 4.1 (2009). The indefinite article "a," is "[u]sed before nouns and noun phrases that denote a single, but unspecified, person or thing." WEBSTER'S II NEW COLLEGE DICTIONARY 1 (2001) [hereinafter "WEBSTER'S"] (definition 1) (emphasis added). "A" is also defined as "[a]ny." WEBSTER'S at 1 (definition 4).
Thus, the ordinary, contemporary, common meaning–or plain meaning–of "a disability rating" is any single decision rating a veteran's disability.
=============================
Sharp v. Shinseki, No. 07-2481 (Argued July 23, 2009 Decided October 15, 2009 )
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 07-2481
A PAMEL J. SHARP, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
On Appeal from the Board of Veterans' Appeals
(Argued July 23, 2009 Decided October 15, 2009 )
Sandra E. Booth, of Columbus, Ohio, for the appellant.
Tracy K. Alsup, with whom Paul J. Hutter, General Counsel; R. Randall Campbell, Assistant General Counsel; and David L. Quinn, Deputy Assistant General Counsel, all of Washington, D.C., were on the brief for the appellee.
Before MOORMAN, LANCE, and DAVIS, Judges.
DAVIS, Judge: Pamela J. Sharp, surviving spouse of veteran James O. Sharp, appeals from an April 26, 2007, Board of Veterans' Appeals (Board) decision that denied her entitlement to accrued benefits pursuant to 38 U.S.C. § 5121. Ms. Sharp's appeal is premised on her husband's claim for an earlier effective date for additional compensation for dependents that was pending at the time of his death.
This appeal is timely, and the Court has jurisdiction pursuant to 38 U.S.C. §§ 7252(a) and 7266(a) to review the April 2007 Board decision. For the reasons below, the Court will reverse the Board's finding that no law entitled the veteran to an earlier effective date for additional compensation for dependents.The Court will set aside the April 2007 decision and remand the matter for the Board to calculate and award the appropriate accrued benefits consistent with this decision.
2
I. BACKGROUND
On August 24, 1995, the Board granted Mr. Sharp's service-connection claim "for a hip disorder characterized as avascular necrosis with biltateral hip replacement." Record (R.) at 687-702. The Cleveland, Ohio, VA regional office (RO), charged with implementing the August 1995 Board decision, issued a letter on December 1, 1995, setting out Mr. Sharp's past-due benefits. The letter also informed Mr. Sharp that [y]ou may be entitled to additional compensation for your dependents. Before we can pay this, however, you will need to complete and return the enclosed VA Form 21-686c showing complete information concerning your present marriage and all prior marriages for you and your wife, and showing who has custody of your children. You will also need to submit your children's Social Security numbers.
We currently have in your file a copy of your marriage certificate for your marriage to Pamela, and birth certificates for Catherine, Christine, and James. If you are currently married to someone other than Pamela, and/or have additional children you wish to claim as dependents, you will need to send us a copy of your marriage certificate and the birth certificates and Social Security numbers for any additional
children.
If Catherine and/or James were in school after their 18th birthdays, additional benefits may be payable for their schooling. If they were in school after age 18, complete and return the enclosed VA Form(s) 21-674[.]
If we do not receive this within one year of the date of this letter, we will not be able to pay additional benefits for your dependents any earlier than the date we do receive it. R. at 794-95.
VA did not receive the requested information until December 9, 1996, more than one year after the date of the letter. See R. at 879-89. On December 17, 1996, the RO notified Mr. Sharp of his increased benefits effective January 1, 1997–the first day of the month following submission of the evidence requested because the evidence was not received until more than one year after VA's request. See R. at 899. The RO also notified Mr. Sharp's attorney of the latest award and discussed the reasoning for the effective date assigned. See R. at 902. Mr. Sharp did not appeal that decision. See Appellant's Brief at 3.
3
In November 1998, the RO determined that Mr. Sharp was unemployable as a result of his service-connected disabilities and awarded him a 100% disability rating based on total disability for individual unemployability (TDIU), effective December 1, 1988. See R. at 1250. Shortly thereafter, Mr. Sharp submitted a Notice of Disagreement with the TDIU award because it did not include additional compensation for dependents retroactive to 1988. See R. at 1266-68. In a Statement of the Case (SOC), the RO determined that additional compensation for dependents was previously established and that the later grant of TDIU "was not a new basis to establish dependent[ status] from an earlier date." R. at 1297. Mr. Sharp sought Board review in May 1999 (see R. at 1299), but he died on December 18, 1999, while that appeal was still pending (see R. at 1304).
Ms. Sharp filed her original claim for dependency and indemnity compensation, including
accrued benefits, in January 2000. See R. at 1311-14. The RO first denied her accrued benefits claim because it determined that accrued benefits could not be awarded beyond the two years immediately preceding death. See R. at 1323. The Board and this Court subsequently affirmed that decision. See R. at 1384-93; Sharp v. Principi, 17 Vet.App. 431 (2004) (accrued benefits limited to two years immediately preceding death). The U.S. Court of Appeals for the Federal Circuit (Federal Circuit), however, vacated that part of the Court's decision limiting accrued benefits
payments to the two years immediately preceding death based on its opinion in Terry v. Principi, 367 F.3d 1291 (Fed. Cir. 2004) (accrued benefits can be awarded for any two-year period) and remanded the accrued benefits issue to this Court. See Sharp v. Nicholson, 403 F.3d 1324 (Fed. Cir. 2005).
The Court then remanded the matter to the Board, see Sharp v. Nicholson, 20 Vet.App. 227 (2005) (table), which remanded the matter to the RO on August 14, 2006.
In a November 7, 2006, decision, the RO denied Ms. Sharp accrued benefits in the form of
additional compensation for dependents. The RO reasoned that the initial decision dated December 17, 1996, granting additional compensation for dependents effective January 1, 1997, became final and that there is no provision in the statutes or regulations providing a second opportunity to establish entitlement and an earlier effective date. See R. at 1477-83. The Board agreed with the RO that "there is no provision in the law to award an earlier effective date" after entitlement to
On appeal, Ms. Sharp acknowledges that the version of 38 U.S 1 .C. § 5121 in effect in 1999, when the veteran
died, limited the survivor's recovery to two years' worth of accrued benefits. She concedes that her accrued benefits
claim is subject to this two-year limit. Appellant's Brief at 8 n.1.
4
additional compensation for dependents had already been established. R. at 6. This appeal ensued.1
II. ARGUMENTS ON APPEAL
Ms. Sharp argues that she is entitled to accrued benefits because when her husband died, he had a pending appeal regarding additional compensation for dependents. In his pending appeal, Mr. Sharp sought an effective date of December 1, 1988, for additional compensation for dependents under 38 U.S.C. §§ 1115 (additional compensation for dependents) and 5110(f) (effective dates).
In appealing the denial of accrued benefits based on her husband's claim, Ms. Sharp asserts now that VA's grant of TDIU, effective December 1, 1988, was a qualifying disability rating entitling her husband to a new consideration of additional compensation for dependents, effective December 1, 1988. She contends that 38 U.S.C. § 1115 is clear and unambiguous as it mandates that a "veteran . . . shall be entitled to additional compensation for dependents" when certain disability percentages are met. 38 U.S.C. § 1115. She further reasons that 38 U.S.C. § 5110(f) supports her argument because the statute's language does not limit the effective date to a particular rating decision, but
rather applies to any rating decision meeting the percentage requirements of section 1115.
The Secretary argues that Mr. Sharp was, at the time of filing his claim, already receiving
additional compensation for dependents, and that no authority supports the position that he could seek an earlier effective date for that compensation based on the TDIU award. The Secretary further contends that section 5110(f) is clear and unambiguous in its restriction of an effective date when proof of dependents is not received within one year of the Secretary's request for such information.
The Secretary perceives Ms. Sharp's current argument to be a "free standing collateral attack upon the final December 1996 RO decision which is not permitted by law." Secretary's Brief at 8.
III. ANALYSIS
The ultimate question before the Court rests on whether a proper interpretation of relevant
statutory provisions, 38 U.S.C. §§ 1115, 5110(f), requires that entitlement to additional
5
compensation for dependents be premised on (1) only the first rating decision meeting statutory criteria or (2) any rating decision meeting the statutory criteria. The Court reviews statutory and regulatory interpretation de novo. 38 U.S.C. § 7261(a)(1); Majeed v. Nicholson, 19 Vet.App. 525, 531 (2006).
A. Statutory Interpretation
"When a statute is at issue, we begin with the statutory language." McGee v. Peake, 511 F.3d 1352, 1356 (Fed. Cir. 2008); see also Williams v. Taylor, 529 U.S. 420, 431 (2000); Myore v. Nicholson, 489 F.3d 1207, 1211 (Fed. Cir. 2007). "The statute's plain meaning is derived from its text and its structure." McGee, 511 F.3d at 1356; see Gardner v. Derwinski, 1 Vet.App. 584, 586 (1991) ("Determining a statute's plain meaning requires examining the specific language at issue and the overall structure of the statute." (citing Bethesda Hosp. Ass'n v. Bowen, 485 U.S. 399, 403-05 (1988))), aff'd sub nom. Gardner v. Brown, 5 F.3d 1456 (Fed. Cir. 1993), aff'd, 513 U.S. 115 (1994).
If "the plain meaning of a statute is discernable, that 'plain meaning must be given effect,'"
Johnson v. Brown, 9 Vet.App. 369, 371 (1996) (quoting Tallman v. Brown, 7 Vet.App. 453, 460 (1995)), unless a "'literal application of [the] statute will produce a result demonstrably at odds with the intention of its drafters,'" Gardner, 1 Vet.App. at 586-87 (quoting Griffin v. Oceanic Contractors, Inc., 458 U.S. 564 (1982)); see also Roper v. Nicholson, 20 Vet.App. 173, 180 (2006).
The first question in statutory interpretation is always "whether Congress has directly spoken to the precise question at issue." Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842-43 (1984). "If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress." Id. "If, however, the court determines Congress has not directly addressed the precise question at issue, the court does not simply impose its own construction of the statute, as would be necessary in the absence of an administrative interpretation. Rather, if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency's answer is based on a
permissible construction of the statute." Id.; see also Nat'l Ass'n of Home Builders v. Defenders of Wildlife, 551 U.S. 644, 665 (2007).
1. 38 U.S.C. § 1115
The language of section 1115 clearly and succinctly addresses when a veteran is entitled to
6
additional compensation for dependents:
Any veteran entitled to compensation at the rates provided in section 1114 of this
title, and whose disability is rated not less than 30[%], shall be entitled to additional
compensation for dependents . . . .
38 U.S.C. § 1115. The Court cannot envision how Congress could have created a more direct mandate. The statute unambiguously requires the veteran to establish two facts: (1) That he or she is entitled to section 1114 compensation, and (2) that his or her disability is rated not less than 30%.
The statute dictates that once the veteran establishes these two facts, he or she shall be entitled to additional compensation for dependents. The purpose of the statute is also clear: "to defray the costs of supporting the veteran's . . . dependents" when a service-connected disability is of a certain level hindering the veteran's employment abilities. S. REP. NO. 95-1054, at 19 (1978).
The statute, however, does not define for the veteran how to acquire this additional
compensation–that is, whether the "additional compensation" is a freestanding claim or part of every claim for VA compensation benefits that resulted in a rating decision that awarded or increased the veteran's disability rating above 30%. Section 1115 is also silent on the issue of how the effective date for such entitlement is determined. The statute simply states what factors must exist for a
veteran to qualify for additional compensation for dependents–nothing more, nothing less.
The limited legislative history enlightens the Court as to the purpose of providing additional compensation for dependents, but such history does not assist the Court in determining whether Congress intended additional compensation for dependents under section 1115 to be on (1) only the first rating decision meeting statutory criteria of section 1115 or (2) any rating decision meeting the statutory criteria. See Chevron, supra.
Thus, based on the plain language of the statute, the Court is not persuaded by the Secretary's argument that section 1115 requires a freestanding claim for benefits. The Court concludes that entitlement to section 1115 compensation does not require a separate claim. The straightforward language of section 1115 merely means that the veteran has met certain requirements necessary for additional compensation. See Rice v. Shinseki, 22 Vet.App. 447, 452 (2009) (entitlement to TDIU "merely means that the veteran has met certain qualifications" necessary for a total rating).
Entitlement to additional compensation for dependents under section 1115 is implicitly raised
7
whenever a veteran has a disability rating of at least 30% and submits evidence of dependents. Cf. Comer v. Peake, 552 F.3d 1362, 1367 (Fed. Cir. 2009). This view is supported by the plain language of section 1115: once VA determined Mr. Sharp was "entitled to compensation at the rates provided in section 1114" and had a disability rating "not less than 30[%]," VA immediately notified him that he was "entitled to additional compensation for dependents" and Mr. Sharp only needed to submit updated information about his dependents to receive it. 38 U.S.C. § 1115.
2. 38 U.S.C. § 5110(f)
Section 5110(f) is the "[e]ffective date of awards" statute pertaining to additional
compensation for dependents and provides:
An award of additional compensation on account of dependents based on the
establishment of a disability rating in the percentage evaluation specified by law for
the purpose shall be payable from the effective date of such rating; but only if proof
of dependents is received within one year from the date of notification of such rating
action.
38 U.S.C. § 5110(f). The statute instructs that an award of additional compensation is "based on the
establishment of a disability rating" meeting the section 1115 requirements. See 38 U.S.C. § 5110(f) (emphasis added). This phrase is critical to the outcome of this case, with both parties arguing a different meaning. The Secretary posits that "the establishment of a disability rating" means only the first disability rating meeting the section 1115 requirements for additional compensation for dependents. Whereas Ms. Sharp contends that the phrase means any and all disability rating decisions that meet the statutory requirements of section 1115. The ultimate conclusion here is that the effective date statute does not answer the precise question at issue–whether entitlement to additional compensation for dependents is premised on (1) only the first rating decision meeting statutory criteria or (2) any rating decision meeting the statutory criteria.
Given the contrasting interpretations of the parties, the Court first turns to the plain meaning of the statute. The plain meaning of a term or phrase "begins with its 'ordinary, contemporary, common meaning.'" McGee, 511 F.3d at 1356 (quoting Williams, 529 U.S. at 431). As this Court recently iterated, "[i]t is commonplace to consult dictionaries to ascertain a term's ordinary meaning." Nielson v. Shinseki, 23 Vet.App. 56, 59 (2009); see also United States v. Rodgers, 466 U.S. 475, 479
8
(1984). "Disability rating" is a phrase common in veteran's parlance. In most basic terms, "disability rating" is the percentage "evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service." 38 C.F.R. § 4.1 (2009). The indefinite article "a," is "[u]sed before nouns and noun phrases that denote a single, but unspecified, person or thing." WEBSTER'S II NEW COLLEGE DICTIONARY 1 (2001) [hereinafter "WEBSTER'S"] (definition 1) (emphasis added). "A" is also defined as "[a]ny." WEBSTER'S at 1 (definition 4).
Thus, the ordinary, contemporary, common meaning–or plain meaning–of "a disability rating" is any single decision rating a veteran's disability. Further interpretation is muddied, however, based on the overall statutory framework. The effective date of additional compensation for dependents is based on "the establishment of a disability rating." 38 U.S.C. § 5110(f). Whether a disability rating can be established more than once is unclear. As stated above, the Secretary believes only one rating decision, and namely the first rating decision meeting section 1115 requirements, establishes entitlement to additional compensation for dependents. Contrastingly, Ms. Sharp argues that all rating decisions adhering to the section 1115 elements establish entitlement to additional compensation for dependents.
The Court also looks to the overall structure of section 5110 for guidance. Generally,
effective dates of compensation awards are attached to the date of receipt of the application for
benefits, and no earlier. See 38 U.S.C. § 5110(a). In the subsections (b)(1), (b)(2), (c), and (d),
effective dates can be earlier than the date of application, but only if the application is received
within one year of a specified date. See 38 U.S.C. § 5110(b)(1) (date of discharge or release if
application received within one year of that date); (b)(2) (earliest date of ascertainable increase if
application received within one year of that date); (c) (date of injury or aggravation if application
received within one year of that date); (d) (first day of month in which death occurred if application
received within one year of that date). Significantly, each of these originating dates is a date certain:
generally, there is only one discharge date; there is only one date an increase is ascertainable; there
is only one date of death. Under section 5110(f), however, the effective date is based "on the
establishment of a disability rating" meeting certain requirements. 38 U.S.C. § 5110(f). Because more than one disability rating can meet the specific requirements of section 5110(f), subsection f does not prescribe a date certain as the other subparts do. The Court cannot conclude from a review
9
of the statutory structure that Congress intended to restrict section 5110(f) to only one date certain, which it could have accomplished by using different language. Nothing in the legislative history supports such a limitation.
The Court therefore concludes that neither statute on its face nor legislative history provides
any guidance in answering the precise question at issue. The plain language and statutory framework
leaves a gap that must be filled. Whether entitlement to additional compensation for dependents is
premised on (1) only the first rating decision meeting statutory criteria or (2) any rating decision
meeting the statutory criteria is not answered by the statute. The Court will next address whether
the Secretary has promulgated regulations that provide a reasonable interpretation of the statutes.
See Chevron, 467 U.S. at 842-43; see also Nat'l Ass'n of Home Builders, supra.
B. Regulatory Language
1. 38 C.F.R. § 3.4(b)(2)
Section 3.4(b)(2) of title 38, Code of Federal Regulations, promulgated pursuant to 38 U.S.C.
§ 1115, provides:
An additional amount of compensation may be payable for a spouse, child, and/or
dependent parent where a veteran is entitled to compensation based on disability
evaluated as 30[%] or more disabling.
38 C.F.R. § 3.4(b)(2) (2009). This regulation does not assist in the interpretation of section 1115
because it merely parrots the statutory language. Indeed, the regulation contains no language in
addition to that already found in the statute. Having no interpretive value, the Agency's regulation
does not provide a reasonable interpretation of the statute. See Chevron and NLRB, both supra.
2. 38 C.F.R. § 3.401(b)
Section 3.401(b) of title 38, Code of Federal Regulations, promulgated pursuant to 38 U.S.C.
§ 5110(f), provides:
Awards of pension or compensation payable to or for a veteran will be effective
as follows:
. . . .
(b) Dependent, additional compensation or pension for. Latest of the
following dates:
10
. . . .
(3) Effective date of the qualifying disability rating provided evidence of
dependency is received within 1 year of notification of such rating action.
38 C.F.R. § 3.401(b) (2009). This regulation similarly does not aid in discerning whether the
Secretary considers there to be only one qualifying rating, as opposed to every rating meeting the
statutory requirements to be a qualifying rating. The Court observes that, in an effort to outline the
selection criteria for an effective date for the award of additional compensation for dependents, part
of the regulation states: "[e]ffective date of the qualifying disability rating provided evidence of
dependency is received within 1 year of notification of such rating action." 38 C.F.R. § 3.401(b)(3)
(emphasis added).
The Court is not persuaded by the Secretary's argument that this language supports his
interpretation that only the first qualifying disability rating qualifies for additional compensation.
One fair view of the matter is that this regulation narrows the statutory language by introducing the
definite article "the" in its phrase "the qualifying rating decision." See Chevron, supra. In addition,
the regulation's use of "the," rather than the statute's "a," in reference to the qualifying disability
rating simply changes the article, does nothing to resolve the issue, and does not reflect a deliberate
effort to interpret the statute's meaning. See Sursely v. Peake, 551 F.3d 1351, 1355 (Fed. Cir. 2009)
(concluding that the Secretary's regulation using the word "the" rather than the statute's "a" in
reference to the term "clothing allowance"did not reflect a deliberate effort to interpret the statute's
meaning). We conclude that the regulation essentially mirrors the statute, section 5110(f). The
regulation, including the phrase "the qualifying disability rating," does not clarify the question of
whether entitlement to additional compensation for dependents is premised on (1) only the first
rating decision meeting statutory criteria or (2) any rating decision meeting the statutory criteria. The
question remains.
Deference to the regulation that offers no additional clarity to the interpretive issue would
be inappropriate. See Nat'l Ass'n of Home Builders, supra. Because the regulations mirror the
statutes, the question presented is one of statutory interpretation. See Sursely, 551 F.3d at 1355; see
also Gonzales v. Oregon, 546 U.S. 243, 257 (2006) ("[T]he existence of a parroting regulation does
not change the fact that the question here is not the meaning of the regulation but the meaning of the
11
statute."). Under such circumstances, the Secretary's interpretation of the statute is not subject to
Chevron deference, see Chervon, supra, but his interpretation is entitled to respect to the extent it
has the "power to persuade." Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944); Haas v. Shinseki,
525 F.3d 1168, 1186 (Fed. Cir. 2008) ("[The] rule [of Chevron deference] does not apply if a
particular regulation merely 'parrots' statutory language, because if it did, an agency could bypass
meaningful rule-making procedures by simply adopting an informal 'interpretation' of regulatory
language taken directly from the statute in question."). As discussed below, we do not find the
Secretary's interpretation persuasive.
C. Interpretation of Section 5110(f)
With no guidance from the statutes or regulations, the Court considers the Secretary's
interpretation of the statute. The Secretary argues that section 5110(f) limits the retroactive award
for an effective date to the first rating decision that qualifies a veteran for additional dependency
compensation, that is, only the first rating decision entitling a veteran to additional compensation for
dependents. That interpretation is not entitled to deference, and the Secretary has offered no support
for his interpretation.
In the face of statutory ambiguity and the lack of a persuasive interpretation of the statute
from the Secretary, the Court applies the rule that "interpretative doubt is to be resolved in the
veteran's favor." Brown v. Gardner, 513 U.S. 115, 118 (1994). It is more favorable to veterans if
the effective date for additional dependency compensation is premised on any rating decision
meeting the statutory criteria of section 1115, rather than on only the first rating decision meeting
statutory criteria. Thus, even if the Secretary's interpretation of section 5110(f) is plausible, it would
be appropriate under Brown v. Gardner only if the statutory language unambiguously permitted only
the first or initial disability rating decision that awarded a rating above the minimum allowed for
additional dependency compensation (i.e., 30%). Because section 5110(f) permits the reading
whereby any rating decision meeting the statutory criteria of section 1115 can be the basis of an
effective date for the award of additional compensation for dependents, it is ambiguous and the rule
in Brown v. Gardner therefore requires the expansive reading of the statute. See Sursely, 551 F.3d
at 1357.
The Court is mindful of the role of finality in decisions regarding additional compensation
The Court notes that, under the Secretary's proposed i 2 nterpretation, the order in which a veteran's claims are
adjudicated by the RO may control the effective date for dependents benefits in instances in which a veteran files multiple
claims near in time. For instance, a more complicated claim may take longer to adjudicate—particularly if it is
appealed—but yield a substantially earlier effective date than another less complicated claim filed at or near the same
time. If we were to adopt the Secretary's position, thereby tying dependents benefits to the first qualifying rating granted,
then veterans could be arbitrarily disadvantaged based purely on delays in adjudication that are beyond their control.
12
for dependents. But the Court notes that the status of dependents can be ever changing. A
determination of additional compensation for dependents that is well-settled for several years could
require alteration in situations where a new child is born, the veteran and spouse divorce, or a
dependent ages out or dies. Each of these events requires a recalculation not only of the amount of
benefits being awarded, but also of the effective dates assigned. Moreover, even if the status of
dependents remains unchanged, the veteran's level of disability can increase or decrease several
times, also requiring a recalculation of the amount of the additional compensation awarded and the
respective effective dates. See 38 U.S.C. § 1115(2) (requiring percentage of additional compensation
to be comparable to the level of disability assigned). Section 5110(f) (effective dates) and its
corresponding regulation, 38 C.F.R. § 3.401(b), appear to be unique in that they prescribe fluid
effective dates based on dependents' changing circumstances and that they are ultimately linked to
the underlying rating decisions meeting section 1115 requirements.2
In sum, the statutes are silent as to the ultimate issue, the Brown v. Gardner rule is
applicable, and the interpretation provided by the appellant is consistent with the statute's plain
language. See also Nat'l Ass'n of Home Builders, 551 U.S. at 665. Thus, consistent with the plain
language of section 1115 statute and regulations, the Court holds that entitlement to additional
compensation for dependents is premised on any rating decision establishing compensation under
section 1114 and rating the disability not less than 30%. Interpreting section 5110(f), the Court holds
that the effective date for additional compensation for dependents shall be the same as the date of
the rating decision giving rise to such entitlement, irrespective of any previous grant of section 1115
benefits, if proof of dependents is submitted within one year of notice of the rating action. We hold
that there can be multiple rating decisions that establish entitlement to additional dependency
compensation. This conclusion construes the statutes in the light most favorable to the veteran. See
Brown v. Gardner and Sursely, both supra. This holding applies to the specific facts and
circumstance of the case before us. Because section 5110(f) did not answer the question whether
13
additional dependents compensation is premised on only the first rating decision meeting the
statutory criteria of section 1115, the Court notes that had the Secretary, rather than parrot the statute,
chosen to fill in the gaps of section 5110(f) in his regulation, the Secretary's interpretation of the
statute would have been eligible for Chevron deference. See Chevron, 467 U.S. at 844-45. If the
Secretary believes that this matter warrants an interpretation of the statute that is different from the
reading given by the Court today, which is based on a reading that resolves interpretative doubt in
the veteran's favor, the appropriate procedure would be for the Secretary to exercise his authority and
promulgate a regulation to that effect. See 38 U.S.C. § 501.
Here, the November 1998 rating decision awarding TDIU, effective December 1, 1988, was a rating decision that established additional compensation, and VA received the requisite information regarding dependents within one year of the 1998 decision. Ms. Sharp is therefore entitled to dependents compensation at the TDIU rate from the effective date of her husband's TDIU rating:
December 1, 1988. As discussed above, however, her accrued benefits claim is limited to two-years before the veteran's death, based on the version of 38 U.S.C. § 5121 in effect in 1999, when the veteran died.
III. CONCLUSION
Upon consideration of the forgoing, the Court REVERSES the Board's April 26, 2007,
findings that no provision in the law entitles the veteran to an earlier effective date for additional compensation for dependents, and that Ms. Sharp is not entitled to accrued benefits. The Court SETS ASIDE the Board's April 26, 2007, decision and REMANDS the matter for implementation of this opinion.
The plain meaning of a term or phrase "begins with its 'ordinary, contemporary, common meaning.'" McGee, 511 F.3d at 1356 (quoting Williams, 529 U.S. at 431). As this Court recently iterated, "[i]t is commonplace to consult dictionaries to ascertain a term's ordinary meaning." Nielson v. Shinseki, 23 Vet.App. 56, 59 (2009); see also United States v. Rodgers, 466 U.S. 475, 479
8
(1984). "Disability rating" is a phrase common in veteran's parlance. In most basic terms, "disability rating" is the percentage "evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service." 38 C.F.R. § 4.1 (2009). The indefinite article "a," is "[u]sed before nouns and noun phrases that denote a single, but unspecified, person or thing." WEBSTER'S II NEW COLLEGE DICTIONARY 1 (2001) [hereinafter "WEBSTER'S"] (definition 1) (emphasis added). "A" is also defined as "[a]ny." WEBSTER'S at 1 (definition 4).
Thus, the ordinary, contemporary, common meaning–or plain meaning–of "a disability rating" is any single decision rating a veteran's disability.
=============================
Sharp v. Shinseki, No. 07-2481 (Argued July 23, 2009 Decided October 15, 2009 )
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 07-2481
A PAMEL J. SHARP, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
On Appeal from the Board of Veterans' Appeals
(Argued July 23, 2009 Decided October 15, 2009 )
Sandra E. Booth, of Columbus, Ohio, for the appellant.
Tracy K. Alsup, with whom Paul J. Hutter, General Counsel; R. Randall Campbell, Assistant General Counsel; and David L. Quinn, Deputy Assistant General Counsel, all of Washington, D.C., were on the brief for the appellee.
Before MOORMAN, LANCE, and DAVIS, Judges.
DAVIS, Judge: Pamela J. Sharp, surviving spouse of veteran James O. Sharp, appeals from an April 26, 2007, Board of Veterans' Appeals (Board) decision that denied her entitlement to accrued benefits pursuant to 38 U.S.C. § 5121. Ms. Sharp's appeal is premised on her husband's claim for an earlier effective date for additional compensation for dependents that was pending at the time of his death.
This appeal is timely, and the Court has jurisdiction pursuant to 38 U.S.C. §§ 7252(a) and 7266(a) to review the April 2007 Board decision. For the reasons below, the Court will reverse the Board's finding that no law entitled the veteran to an earlier effective date for additional compensation for dependents.The Court will set aside the April 2007 decision and remand the matter for the Board to calculate and award the appropriate accrued benefits consistent with this decision.
2
I. BACKGROUND
On August 24, 1995, the Board granted Mr. Sharp's service-connection claim "for a hip disorder characterized as avascular necrosis with biltateral hip replacement." Record (R.) at 687-702. The Cleveland, Ohio, VA regional office (RO), charged with implementing the August 1995 Board decision, issued a letter on December 1, 1995, setting out Mr. Sharp's past-due benefits. The letter also informed Mr. Sharp that [y]ou may be entitled to additional compensation for your dependents. Before we can pay this, however, you will need to complete and return the enclosed VA Form 21-686c showing complete information concerning your present marriage and all prior marriages for you and your wife, and showing who has custody of your children. You will also need to submit your children's Social Security numbers.
We currently have in your file a copy of your marriage certificate for your marriage to Pamela, and birth certificates for Catherine, Christine, and James. If you are currently married to someone other than Pamela, and/or have additional children you wish to claim as dependents, you will need to send us a copy of your marriage certificate and the birth certificates and Social Security numbers for any additional
children.
If Catherine and/or James were in school after their 18th birthdays, additional benefits may be payable for their schooling. If they were in school after age 18, complete and return the enclosed VA Form(s) 21-674[.]
If we do not receive this within one year of the date of this letter, we will not be able to pay additional benefits for your dependents any earlier than the date we do receive it. R. at 794-95.
VA did not receive the requested information until December 9, 1996, more than one year after the date of the letter. See R. at 879-89. On December 17, 1996, the RO notified Mr. Sharp of his increased benefits effective January 1, 1997–the first day of the month following submission of the evidence requested because the evidence was not received until more than one year after VA's request. See R. at 899. The RO also notified Mr. Sharp's attorney of the latest award and discussed the reasoning for the effective date assigned. See R. at 902. Mr. Sharp did not appeal that decision. See Appellant's Brief at 3.
3
In November 1998, the RO determined that Mr. Sharp was unemployable as a result of his service-connected disabilities and awarded him a 100% disability rating based on total disability for individual unemployability (TDIU), effective December 1, 1988. See R. at 1250. Shortly thereafter, Mr. Sharp submitted a Notice of Disagreement with the TDIU award because it did not include additional compensation for dependents retroactive to 1988. See R. at 1266-68. In a Statement of the Case (SOC), the RO determined that additional compensation for dependents was previously established and that the later grant of TDIU "was not a new basis to establish dependent[ status] from an earlier date." R. at 1297. Mr. Sharp sought Board review in May 1999 (see R. at 1299), but he died on December 18, 1999, while that appeal was still pending (see R. at 1304).
Ms. Sharp filed her original claim for dependency and indemnity compensation, including
accrued benefits, in January 2000. See R. at 1311-14. The RO first denied her accrued benefits claim because it determined that accrued benefits could not be awarded beyond the two years immediately preceding death. See R. at 1323. The Board and this Court subsequently affirmed that decision. See R. at 1384-93; Sharp v. Principi, 17 Vet.App. 431 (2004) (accrued benefits limited to two years immediately preceding death). The U.S. Court of Appeals for the Federal Circuit (Federal Circuit), however, vacated that part of the Court's decision limiting accrued benefits
payments to the two years immediately preceding death based on its opinion in Terry v. Principi, 367 F.3d 1291 (Fed. Cir. 2004) (accrued benefits can be awarded for any two-year period) and remanded the accrued benefits issue to this Court. See Sharp v. Nicholson, 403 F.3d 1324 (Fed. Cir. 2005).
The Court then remanded the matter to the Board, see Sharp v. Nicholson, 20 Vet.App. 227 (2005) (table), which remanded the matter to the RO on August 14, 2006.
In a November 7, 2006, decision, the RO denied Ms. Sharp accrued benefits in the form of
additional compensation for dependents. The RO reasoned that the initial decision dated December 17, 1996, granting additional compensation for dependents effective January 1, 1997, became final and that there is no provision in the statutes or regulations providing a second opportunity to establish entitlement and an earlier effective date. See R. at 1477-83. The Board agreed with the RO that "there is no provision in the law to award an earlier effective date" after entitlement to
On appeal, Ms. Sharp acknowledges that the version of 38 U.S 1 .C. § 5121 in effect in 1999, when the veteran
died, limited the survivor's recovery to two years' worth of accrued benefits. She concedes that her accrued benefits
claim is subject to this two-year limit. Appellant's Brief at 8 n.1.
4
additional compensation for dependents had already been established. R. at 6. This appeal ensued.1
II. ARGUMENTS ON APPEAL
Ms. Sharp argues that she is entitled to accrued benefits because when her husband died, he had a pending appeal regarding additional compensation for dependents. In his pending appeal, Mr. Sharp sought an effective date of December 1, 1988, for additional compensation for dependents under 38 U.S.C. §§ 1115 (additional compensation for dependents) and 5110(f) (effective dates).
In appealing the denial of accrued benefits based on her husband's claim, Ms. Sharp asserts now that VA's grant of TDIU, effective December 1, 1988, was a qualifying disability rating entitling her husband to a new consideration of additional compensation for dependents, effective December 1, 1988. She contends that 38 U.S.C. § 1115 is clear and unambiguous as it mandates that a "veteran . . . shall be entitled to additional compensation for dependents" when certain disability percentages are met. 38 U.S.C. § 1115. She further reasons that 38 U.S.C. § 5110(f) supports her argument because the statute's language does not limit the effective date to a particular rating decision, but
rather applies to any rating decision meeting the percentage requirements of section 1115.
The Secretary argues that Mr. Sharp was, at the time of filing his claim, already receiving
additional compensation for dependents, and that no authority supports the position that he could seek an earlier effective date for that compensation based on the TDIU award. The Secretary further contends that section 5110(f) is clear and unambiguous in its restriction of an effective date when proof of dependents is not received within one year of the Secretary's request for such information.
The Secretary perceives Ms. Sharp's current argument to be a "free standing collateral attack upon the final December 1996 RO decision which is not permitted by law." Secretary's Brief at 8.
III. ANALYSIS
The ultimate question before the Court rests on whether a proper interpretation of relevant
statutory provisions, 38 U.S.C. §§ 1115, 5110(f), requires that entitlement to additional
5
compensation for dependents be premised on (1) only the first rating decision meeting statutory criteria or (2) any rating decision meeting the statutory criteria. The Court reviews statutory and regulatory interpretation de novo. 38 U.S.C. § 7261(a)(1); Majeed v. Nicholson, 19 Vet.App. 525, 531 (2006).
A. Statutory Interpretation
"When a statute is at issue, we begin with the statutory language." McGee v. Peake, 511 F.3d 1352, 1356 (Fed. Cir. 2008); see also Williams v. Taylor, 529 U.S. 420, 431 (2000); Myore v. Nicholson, 489 F.3d 1207, 1211 (Fed. Cir. 2007). "The statute's plain meaning is derived from its text and its structure." McGee, 511 F.3d at 1356; see Gardner v. Derwinski, 1 Vet.App. 584, 586 (1991) ("Determining a statute's plain meaning requires examining the specific language at issue and the overall structure of the statute." (citing Bethesda Hosp. Ass'n v. Bowen, 485 U.S. 399, 403-05 (1988))), aff'd sub nom. Gardner v. Brown, 5 F.3d 1456 (Fed. Cir. 1993), aff'd, 513 U.S. 115 (1994).
If "the plain meaning of a statute is discernable, that 'plain meaning must be given effect,'"
Johnson v. Brown, 9 Vet.App. 369, 371 (1996) (quoting Tallman v. Brown, 7 Vet.App. 453, 460 (1995)), unless a "'literal application of [the] statute will produce a result demonstrably at odds with the intention of its drafters,'" Gardner, 1 Vet.App. at 586-87 (quoting Griffin v. Oceanic Contractors, Inc., 458 U.S. 564 (1982)); see also Roper v. Nicholson, 20 Vet.App. 173, 180 (2006).
The first question in statutory interpretation is always "whether Congress has directly spoken to the precise question at issue." Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842-43 (1984). "If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress." Id. "If, however, the court determines Congress has not directly addressed the precise question at issue, the court does not simply impose its own construction of the statute, as would be necessary in the absence of an administrative interpretation. Rather, if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency's answer is based on a
permissible construction of the statute." Id.; see also Nat'l Ass'n of Home Builders v. Defenders of Wildlife, 551 U.S. 644, 665 (2007).
1. 38 U.S.C. § 1115
The language of section 1115 clearly and succinctly addresses when a veteran is entitled to
6
additional compensation for dependents:
Any veteran entitled to compensation at the rates provided in section 1114 of this
title, and whose disability is rated not less than 30[%], shall be entitled to additional
compensation for dependents . . . .
38 U.S.C. § 1115. The Court cannot envision how Congress could have created a more direct mandate. The statute unambiguously requires the veteran to establish two facts: (1) That he or she is entitled to section 1114 compensation, and (2) that his or her disability is rated not less than 30%.
The statute dictates that once the veteran establishes these two facts, he or she shall be entitled to additional compensation for dependents. The purpose of the statute is also clear: "to defray the costs of supporting the veteran's . . . dependents" when a service-connected disability is of a certain level hindering the veteran's employment abilities. S. REP. NO. 95-1054, at 19 (1978).
The statute, however, does not define for the veteran how to acquire this additional
compensation–that is, whether the "additional compensation" is a freestanding claim or part of every claim for VA compensation benefits that resulted in a rating decision that awarded or increased the veteran's disability rating above 30%. Section 1115 is also silent on the issue of how the effective date for such entitlement is determined. The statute simply states what factors must exist for a
veteran to qualify for additional compensation for dependents–nothing more, nothing less.
The limited legislative history enlightens the Court as to the purpose of providing additional compensation for dependents, but such history does not assist the Court in determining whether Congress intended additional compensation for dependents under section 1115 to be on (1) only the first rating decision meeting statutory criteria of section 1115 or (2) any rating decision meeting the statutory criteria. See Chevron, supra.
Thus, based on the plain language of the statute, the Court is not persuaded by the Secretary's argument that section 1115 requires a freestanding claim for benefits. The Court concludes that entitlement to section 1115 compensation does not require a separate claim. The straightforward language of section 1115 merely means that the veteran has met certain requirements necessary for additional compensation. See Rice v. Shinseki, 22 Vet.App. 447, 452 (2009) (entitlement to TDIU "merely means that the veteran has met certain qualifications" necessary for a total rating).
Entitlement to additional compensation for dependents under section 1115 is implicitly raised
7
whenever a veteran has a disability rating of at least 30% and submits evidence of dependents. Cf. Comer v. Peake, 552 F.3d 1362, 1367 (Fed. Cir. 2009). This view is supported by the plain language of section 1115: once VA determined Mr. Sharp was "entitled to compensation at the rates provided in section 1114" and had a disability rating "not less than 30[%]," VA immediately notified him that he was "entitled to additional compensation for dependents" and Mr. Sharp only needed to submit updated information about his dependents to receive it. 38 U.S.C. § 1115.
2. 38 U.S.C. § 5110(f)
Section 5110(f) is the "[e]ffective date of awards" statute pertaining to additional
compensation for dependents and provides:
An award of additional compensation on account of dependents based on the
establishment of a disability rating in the percentage evaluation specified by law for
the purpose shall be payable from the effective date of such rating; but only if proof
of dependents is received within one year from the date of notification of such rating
action.
38 U.S.C. § 5110(f). The statute instructs that an award of additional compensation is "based on the
establishment of a disability rating" meeting the section 1115 requirements. See 38 U.S.C. § 5110(f) (emphasis added). This phrase is critical to the outcome of this case, with both parties arguing a different meaning. The Secretary posits that "the establishment of a disability rating" means only the first disability rating meeting the section 1115 requirements for additional compensation for dependents. Whereas Ms. Sharp contends that the phrase means any and all disability rating decisions that meet the statutory requirements of section 1115. The ultimate conclusion here is that the effective date statute does not answer the precise question at issue–whether entitlement to additional compensation for dependents is premised on (1) only the first rating decision meeting statutory criteria or (2) any rating decision meeting the statutory criteria.
Given the contrasting interpretations of the parties, the Court first turns to the plain meaning of the statute. The plain meaning of a term or phrase "begins with its 'ordinary, contemporary, common meaning.'" McGee, 511 F.3d at 1356 (quoting Williams, 529 U.S. at 431). As this Court recently iterated, "[i]t is commonplace to consult dictionaries to ascertain a term's ordinary meaning." Nielson v. Shinseki, 23 Vet.App. 56, 59 (2009); see also United States v. Rodgers, 466 U.S. 475, 479
8
(1984). "Disability rating" is a phrase common in veteran's parlance. In most basic terms, "disability rating" is the percentage "evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service." 38 C.F.R. § 4.1 (2009). The indefinite article "a," is "[u]sed before nouns and noun phrases that denote a single, but unspecified, person or thing." WEBSTER'S II NEW COLLEGE DICTIONARY 1 (2001) [hereinafter "WEBSTER'S"] (definition 1) (emphasis added). "A" is also defined as "[a]ny." WEBSTER'S at 1 (definition 4).
Thus, the ordinary, contemporary, common meaning–or plain meaning–of "a disability rating" is any single decision rating a veteran's disability. Further interpretation is muddied, however, based on the overall statutory framework. The effective date of additional compensation for dependents is based on "the establishment of a disability rating." 38 U.S.C. § 5110(f). Whether a disability rating can be established more than once is unclear. As stated above, the Secretary believes only one rating decision, and namely the first rating decision meeting section 1115 requirements, establishes entitlement to additional compensation for dependents. Contrastingly, Ms. Sharp argues that all rating decisions adhering to the section 1115 elements establish entitlement to additional compensation for dependents.
The Court also looks to the overall structure of section 5110 for guidance. Generally,
effective dates of compensation awards are attached to the date of receipt of the application for
benefits, and no earlier. See 38 U.S.C. § 5110(a). In the subsections (b)(1), (b)(2), (c), and (d),
effective dates can be earlier than the date of application, but only if the application is received
within one year of a specified date. See 38 U.S.C. § 5110(b)(1) (date of discharge or release if
application received within one year of that date); (b)(2) (earliest date of ascertainable increase if
application received within one year of that date); (c) (date of injury or aggravation if application
received within one year of that date); (d) (first day of month in which death occurred if application
received within one year of that date). Significantly, each of these originating dates is a date certain:
generally, there is only one discharge date; there is only one date an increase is ascertainable; there
is only one date of death. Under section 5110(f), however, the effective date is based "on the
establishment of a disability rating" meeting certain requirements. 38 U.S.C. § 5110(f). Because more than one disability rating can meet the specific requirements of section 5110(f), subsection f does not prescribe a date certain as the other subparts do. The Court cannot conclude from a review
9
of the statutory structure that Congress intended to restrict section 5110(f) to only one date certain, which it could have accomplished by using different language. Nothing in the legislative history supports such a limitation.
The Court therefore concludes that neither statute on its face nor legislative history provides
any guidance in answering the precise question at issue. The plain language and statutory framework
leaves a gap that must be filled. Whether entitlement to additional compensation for dependents is
premised on (1) only the first rating decision meeting statutory criteria or (2) any rating decision
meeting the statutory criteria is not answered by the statute. The Court will next address whether
the Secretary has promulgated regulations that provide a reasonable interpretation of the statutes.
See Chevron, 467 U.S. at 842-43; see also Nat'l Ass'n of Home Builders, supra.
B. Regulatory Language
1. 38 C.F.R. § 3.4(b)(2)
Section 3.4(b)(2) of title 38, Code of Federal Regulations, promulgated pursuant to 38 U.S.C.
§ 1115, provides:
An additional amount of compensation may be payable for a spouse, child, and/or
dependent parent where a veteran is entitled to compensation based on disability
evaluated as 30[%] or more disabling.
38 C.F.R. § 3.4(b)(2) (2009). This regulation does not assist in the interpretation of section 1115
because it merely parrots the statutory language. Indeed, the regulation contains no language in
addition to that already found in the statute. Having no interpretive value, the Agency's regulation
does not provide a reasonable interpretation of the statute. See Chevron and NLRB, both supra.
2. 38 C.F.R. § 3.401(b)
Section 3.401(b) of title 38, Code of Federal Regulations, promulgated pursuant to 38 U.S.C.
§ 5110(f), provides:
Awards of pension or compensation payable to or for a veteran will be effective
as follows:
. . . .
(b) Dependent, additional compensation or pension for. Latest of the
following dates:
10
. . . .
(3) Effective date of the qualifying disability rating provided evidence of
dependency is received within 1 year of notification of such rating action.
38 C.F.R. § 3.401(b) (2009). This regulation similarly does not aid in discerning whether the
Secretary considers there to be only one qualifying rating, as opposed to every rating meeting the
statutory requirements to be a qualifying rating. The Court observes that, in an effort to outline the
selection criteria for an effective date for the award of additional compensation for dependents, part
of the regulation states: "[e]ffective date of the qualifying disability rating provided evidence of
dependency is received within 1 year of notification of such rating action." 38 C.F.R. § 3.401(b)(3)
(emphasis added).
The Court is not persuaded by the Secretary's argument that this language supports his
interpretation that only the first qualifying disability rating qualifies for additional compensation.
One fair view of the matter is that this regulation narrows the statutory language by introducing the
definite article "the" in its phrase "the qualifying rating decision." See Chevron, supra. In addition,
the regulation's use of "the," rather than the statute's "a," in reference to the qualifying disability
rating simply changes the article, does nothing to resolve the issue, and does not reflect a deliberate
effort to interpret the statute's meaning. See Sursely v. Peake, 551 F.3d 1351, 1355 (Fed. Cir. 2009)
(concluding that the Secretary's regulation using the word "the" rather than the statute's "a" in
reference to the term "clothing allowance"did not reflect a deliberate effort to interpret the statute's
meaning). We conclude that the regulation essentially mirrors the statute, section 5110(f). The
regulation, including the phrase "the qualifying disability rating," does not clarify the question of
whether entitlement to additional compensation for dependents is premised on (1) only the first
rating decision meeting statutory criteria or (2) any rating decision meeting the statutory criteria. The
question remains.
Deference to the regulation that offers no additional clarity to the interpretive issue would
be inappropriate. See Nat'l Ass'n of Home Builders, supra. Because the regulations mirror the
statutes, the question presented is one of statutory interpretation. See Sursely, 551 F.3d at 1355; see
also Gonzales v. Oregon, 546 U.S. 243, 257 (2006) ("[T]he existence of a parroting regulation does
not change the fact that the question here is not the meaning of the regulation but the meaning of the
11
statute."). Under such circumstances, the Secretary's interpretation of the statute is not subject to
Chevron deference, see Chervon, supra, but his interpretation is entitled to respect to the extent it
has the "power to persuade." Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944); Haas v. Shinseki,
525 F.3d 1168, 1186 (Fed. Cir. 2008) ("[The] rule [of Chevron deference] does not apply if a
particular regulation merely 'parrots' statutory language, because if it did, an agency could bypass
meaningful rule-making procedures by simply adopting an informal 'interpretation' of regulatory
language taken directly from the statute in question."). As discussed below, we do not find the
Secretary's interpretation persuasive.
C. Interpretation of Section 5110(f)
With no guidance from the statutes or regulations, the Court considers the Secretary's
interpretation of the statute. The Secretary argues that section 5110(f) limits the retroactive award
for an effective date to the first rating decision that qualifies a veteran for additional dependency
compensation, that is, only the first rating decision entitling a veteran to additional compensation for
dependents. That interpretation is not entitled to deference, and the Secretary has offered no support
for his interpretation.
In the face of statutory ambiguity and the lack of a persuasive interpretation of the statute
from the Secretary, the Court applies the rule that "interpretative doubt is to be resolved in the
veteran's favor." Brown v. Gardner, 513 U.S. 115, 118 (1994). It is more favorable to veterans if
the effective date for additional dependency compensation is premised on any rating decision
meeting the statutory criteria of section 1115, rather than on only the first rating decision meeting
statutory criteria. Thus, even if the Secretary's interpretation of section 5110(f) is plausible, it would
be appropriate under Brown v. Gardner only if the statutory language unambiguously permitted only
the first or initial disability rating decision that awarded a rating above the minimum allowed for
additional dependency compensation (i.e., 30%). Because section 5110(f) permits the reading
whereby any rating decision meeting the statutory criteria of section 1115 can be the basis of an
effective date for the award of additional compensation for dependents, it is ambiguous and the rule
in Brown v. Gardner therefore requires the expansive reading of the statute. See Sursely, 551 F.3d
at 1357.
The Court is mindful of the role of finality in decisions regarding additional compensation
The Court notes that, under the Secretary's proposed i 2 nterpretation, the order in which a veteran's claims are
adjudicated by the RO may control the effective date for dependents benefits in instances in which a veteran files multiple
claims near in time. For instance, a more complicated claim may take longer to adjudicate—particularly if it is
appealed—but yield a substantially earlier effective date than another less complicated claim filed at or near the same
time. If we were to adopt the Secretary's position, thereby tying dependents benefits to the first qualifying rating granted,
then veterans could be arbitrarily disadvantaged based purely on delays in adjudication that are beyond their control.
12
for dependents. But the Court notes that the status of dependents can be ever changing. A
determination of additional compensation for dependents that is well-settled for several years could
require alteration in situations where a new child is born, the veteran and spouse divorce, or a
dependent ages out or dies. Each of these events requires a recalculation not only of the amount of
benefits being awarded, but also of the effective dates assigned. Moreover, even if the status of
dependents remains unchanged, the veteran's level of disability can increase or decrease several
times, also requiring a recalculation of the amount of the additional compensation awarded and the
respective effective dates. See 38 U.S.C. § 1115(2) (requiring percentage of additional compensation
to be comparable to the level of disability assigned). Section 5110(f) (effective dates) and its
corresponding regulation, 38 C.F.R. § 3.401(b), appear to be unique in that they prescribe fluid
effective dates based on dependents' changing circumstances and that they are ultimately linked to
the underlying rating decisions meeting section 1115 requirements.2
In sum, the statutes are silent as to the ultimate issue, the Brown v. Gardner rule is
applicable, and the interpretation provided by the appellant is consistent with the statute's plain
language. See also Nat'l Ass'n of Home Builders, 551 U.S. at 665. Thus, consistent with the plain
language of section 1115 statute and regulations, the Court holds that entitlement to additional
compensation for dependents is premised on any rating decision establishing compensation under
section 1114 and rating the disability not less than 30%. Interpreting section 5110(f), the Court holds
that the effective date for additional compensation for dependents shall be the same as the date of
the rating decision giving rise to such entitlement, irrespective of any previous grant of section 1115
benefits, if proof of dependents is submitted within one year of notice of the rating action. We hold
that there can be multiple rating decisions that establish entitlement to additional dependency
compensation. This conclusion construes the statutes in the light most favorable to the veteran. See
Brown v. Gardner and Sursely, both supra. This holding applies to the specific facts and
circumstance of the case before us. Because section 5110(f) did not answer the question whether
13
additional dependents compensation is premised on only the first rating decision meeting the
statutory criteria of section 1115, the Court notes that had the Secretary, rather than parrot the statute,
chosen to fill in the gaps of section 5110(f) in his regulation, the Secretary's interpretation of the
statute would have been eligible for Chevron deference. See Chevron, 467 U.S. at 844-45. If the
Secretary believes that this matter warrants an interpretation of the statute that is different from the
reading given by the Court today, which is based on a reading that resolves interpretative doubt in
the veteran's favor, the appropriate procedure would be for the Secretary to exercise his authority and
promulgate a regulation to that effect. See 38 U.S.C. § 501.
Here, the November 1998 rating decision awarding TDIU, effective December 1, 1988, was a rating decision that established additional compensation, and VA received the requisite information regarding dependents within one year of the 1998 decision. Ms. Sharp is therefore entitled to dependents compensation at the TDIU rate from the effective date of her husband's TDIU rating:
December 1, 1988. As discussed above, however, her accrued benefits claim is limited to two-years before the veteran's death, based on the version of 38 U.S.C. § 5121 in effect in 1999, when the veteran died.
III. CONCLUSION
Upon consideration of the forgoing, the Court REVERSES the Board's April 26, 2007,
findings that no provision in the law entitles the veteran to an earlier effective date for additional compensation for dependents, and that Ms. Sharp is not entitled to accrued benefits. The Court SETS ASIDE the Board's April 26, 2007, decision and REMANDS the matter for implementation of this opinion.
Monday, January 11, 2010
Many PTSD Diagnosed Veterans Receive Minimially Adequate Treatment
Full article at: One-third of veterans diagnosed with PTSD receive minimally adequate services
07 January, 2010 10:29:00
Kathlyn Stone
"About 33 percent of U.S. military veterans diagnosed with post-traumatic stress disorder (PTSD) receive minimally adequate treatment, according to a study published in the January issue of Psychiatric Services."
Treatment Receipt by Veterans After a PTSD Diagnosis in PTSD, Mental Health, or General Medical Clinics
Michele R. Spoont, Ph.D., Maureen Murdoch, M.D., M.P.H., James Hodges, Ph.D., M.A. and Sean Nugent, B.A.
Investigators at the Department of Veterans Affairs in Minneapolis, Minn., and the University of Minnesota analyzed records of 20,284 U.S. military veterans who had received a diagnosis of PTSD at Veterans Affairs facilities.
Approximately two-thirds of those diagnosed with PTSD, all of whom were out-patients, initiated treatment within the first six months after diagnosis. Fifty percent received a psychotropic medication, 39 percent received some counseling, and 64 percent received either medication or counseling. About half (54 percent) of those given medication received at least a four-month supply, and 24 percent of those given counseling had at least eight sessions.
Further, patients who sought treatment at a PTSD specialty program or a mental health clinic received somewhat better therapy than those who received treatment at a general medical clinic.
The study concluded that greater availability of mental health specialty services, particularly PTSD services, may be needed to ensure that veterans receive minimally adequate treatment after a PTSD diagnosis.
Source:
Psychiatr Serv. 2010 Jan;61(1):58-63.
Treatment Receipt by Veterans After a PTSD Diagnosis in PTSD, Mental Health, or General Medical Clinics.
07 January, 2010 10:29:00
Kathlyn Stone
"About 33 percent of U.S. military veterans diagnosed with post-traumatic stress disorder (PTSD) receive minimally adequate treatment, according to a study published in the January issue of Psychiatric Services."
Treatment Receipt by Veterans After a PTSD Diagnosis in PTSD, Mental Health, or General Medical Clinics
Michele R. Spoont, Ph.D., Maureen Murdoch, M.D., M.P.H., James Hodges, Ph.D., M.A. and Sean Nugent, B.A.
Investigators at the Department of Veterans Affairs in Minneapolis, Minn., and the University of Minnesota analyzed records of 20,284 U.S. military veterans who had received a diagnosis of PTSD at Veterans Affairs facilities.
Approximately two-thirds of those diagnosed with PTSD, all of whom were out-patients, initiated treatment within the first six months after diagnosis. Fifty percent received a psychotropic medication, 39 percent received some counseling, and 64 percent received either medication or counseling. About half (54 percent) of those given medication received at least a four-month supply, and 24 percent of those given counseling had at least eight sessions.
Further, patients who sought treatment at a PTSD specialty program or a mental health clinic received somewhat better therapy than those who received treatment at a general medical clinic.
The study concluded that greater availability of mental health specialty services, particularly PTSD services, may be needed to ensure that veterans receive minimally adequate treatment after a PTSD diagnosis.
Source:
Psychiatr Serv. 2010 Jan;61(1):58-63.
Treatment Receipt by Veterans After a PTSD Diagnosis in PTSD, Mental Health, or General Medical Clinics.
Sunday, January 10, 2010
Touro College Veterans Advocacy Clinic Receive $100,000.00
Schumer Announces Mobil Clinic
Senator Charles E. Schumer announced final Congressional passage of a $100,000 grant that would create a Long Island legal advocacy clinic for veterans. Touro College Jacob D. Fuchsberg LawCenter will use the funds to create a legal advocacy clinic for veterans to help with a myriad of legal issues and obstacles to obtaining benefits to which veterans are entitled, including insurance, housing, education, family issues, and jobs. The bill now goes to President Obama for his signature.
Senator Charles E. Schumer announced final Congressional passage of a $100,000 grant that would create a Long Island legal advocacy clinic for veterans. Touro College Jacob D. Fuchsberg LawCenter will use the funds to create a legal advocacy clinic for veterans to help with a myriad of legal issues and obstacles to obtaining benefits to which veterans are entitled, including insurance, housing, education, family issues, and jobs. The bill now goes to President Obama for his signature.
Friday, January 8, 2010
Appeal Federal Circuit, No Judicial Hook, Factual Determination, Validity of Statute or Regulation, Warren v. Shinseki
This is a multi-part posting, the second part is to present cases where the FedCir has stated that it lacks jurisdiciton to hear an appeal where it has determined that the veteran claim is "a challenge to a factual determination", or "a challenge to a law or regulation as applied to the facts of a particular case.”
Warren v. Shinseki, [full case below] the court stated:
"This court’s jurisdiction to review decisions by the Veterans Court is limited. We “have exclusive jurisdiction to review and decide any challenge to the validity of any statute or regulation or any interpretation thereof [by the Veterans Court] . . . , and to interpret constitutional and statutory provisions, to the extent presented and necessary to a decision.” 38 U.S.C. § 7292(c). We lack the jurisdiction to review “(A) a challenge to a factual determination, or (B) a challenge to a law or regulation as applied to the facts of a particular case.” Id. § 7292(d)(2).
+++++++++++++++++++++++++++++++++++++
NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2009-7126
GERALD F. WARREN,
Claimant-Appellant,
v.
ERIC K. SHINSEKI, Secretary of Veterans Affairs,
Respondent-Appellee.
Gerald F. Warren, of The Dalles, Oregon, pro se.
David S. Silverbrand, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, for respondent-appellee. With him on the brief were Tony West, Assistant Attorney General, Jeanne E. Davidson, Director, and Kirk T. Manhardt, Assistant Director. Of counsel on the brief were Michael J. Timinski, Deputy Assistant General Counsel, and Amanda R. Blackmon, Attorney, Office of the General Counsel, United States Department of Veterans Affairs, of Washington, DC.
Appealed from: United States Court of Appeals for Veterans Claims
Chief Judge William P. Greene, Jr.
NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2009-7126
GERALD F. WARREN,
Claimant-Appellant,
v.
ERIC K. SHINSEKI, Secretary of Veterans Affairs,
Respondent-Appellee.
Appeal from the United States Court of Appeals for Veterans Claims in 06-3514, Chief Judge William P. Greene, Jr.
___________________________
DECIDED: January 7, 2010
___________________________
Before MICHEL, Chief Judge, BRYSON, and DYK, Circuit Judges.
PER CURIAM.
Gerald F. Warren (“Warren”) appeals the decision of the United States Court of Appeals for Veterans Claims (“Veterans Court”) affirming a decision of the Board of Veterans’ Appeals (“Board”). The Board denied an earlier effective date for the award of a 100% disability rating for post-traumatic stress disorder (“PTSD”). See Warren v. Shinseki, No. 06-3514, 2009 WL 1363087 (Vet. App. May 18, 2009). Warren presents no issues of statutory or constitutional interpretation that would confer jurisdiction on this court. Accordingly, the appeal must be dismissed.
BACKGROUND
Warren served in the United States Army from March 1969 to December 1970, including service in Vietnam. On August 29, 1985, Warren submitted his first claim before the Department of Veterans Affairs (“VA”) for service connection for PTSD. In December 1985, the VA regional office (“RO”) awarded him service connection for the PTSD and assigned him a 50% disability rating effective August 29, 1985, the date of his claim. Warren did not appeal this decision, and it became final. In August and December 1987, the RO decided to continue the previously assigned disability rating of 50% due to PTSD, and these decisions also became final after Warren did not appeal.
On May 23, 1990, the VA administered Warren a psychiatric examination and again found that it was appropriate to maintain the 50% rating. Warren submitted additional medical evidence, but in October 1991, the RO sustained the previously assigned rating. Warren appealed the RO’s decision, and in January 1997, after extensive procedural development, the VA increased his PTSD rating to 100%, effective May 23, 1990. Claiming that he was entitled to an April 1985 effective date for the 100% rating, Warren appealed to the Board.
The Board found that there was no legal basis for assigning an effective date for the 100% rating prior to May 23, 1990. Under 38 U.S.C. § 5110(a), the effective date of an award of increased disability compensation “shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor.” Thus, the Board found that because Warren did not appeal the 1985 and 1987 RO decisions establishing and maintaining his 50% disability rating, his eventual 100% rating could not be traced to those claims, and the effective date for an increased rating
2009-7126 2
could only be established by a later claim. The Board then determined that May 23, 1990, was the earliest date that could be construed as the date of the filing of an informal claim leading to the 100% rating, and upheld the RO’s decision. The Veterans Court affirmed the Board, concluding that its findings were not clearly erroneous. Warren now appeals from that decision.
DISCUSSION
This court’s jurisdiction to review decisions by the Veterans Court is limited. We “have exclusive jurisdiction to review and decide any challenge to the validity of any statute or regulation or any interpretation thereof [by the Veterans Court] . . . , and to interpret constitutional and statutory provisions, to the extent presented and necessary to a decision.” 38 U.S.C. § 7292(c). We lack the jurisdiction to review “(A) a challenge to a factual determination, or (B) a challenge to a law or regulation as applied to the facts of a particular case.” Id. § 7292(d)(2).
All of Warren’s arguments are ultimately directed to his claim that he is entitled to an earlier effective date for his 100% disability rating due to PTSD. A failure to appeal a VA determination bars a claim to an earlier effective date based on that unappealed determination. See Charles v. Shinseki, No. 2009-7024, 2009 WL 4257067, at *2-3 (Fed. Cir. Dec. 1, 2009). Alternatively, Warren claims that another submission (which was not the subject of the earlier VA decisions) constituted an informal claim. The Veterans Court evidently disagreed. The determination of whether a particular document satisfied the requirements for an informal claim is a question of fact. We lack jurisdiction to review such a determination. See Moody v. Principi, 360 F.3d 1306, 1310 (Fed. Cir. 2004). Warren also asserts that the VA failed to provide him with the
2009-7126 3 2009-7126 4
congressionally mandated “benefit of the doubt” under 38 U.S.C. § 5107(b) by not awarding him an earlier effective date. The Veterans Court found that under the circumstances of the case, the “approximate balance of positive and negative evidence” required to invoke the statute did not exist. See Warren, 2009 WL 1363087, at *3 (quoting 38 U.S.C. § 5107(b)). This too is a factual issue. Finally, Warren argues that the VA failed to follow through on its duty to assist him in developing his claim under 38 U.S.C. § 5103A(a)(1). The Veterans Court concluded that any alleged failure of the VA to comply with its duty to assist would not have resulted in an earlier effective date for the 100% rating. Warren, 2009 WL 1363087, at *4. This is also a factual determination.
Warren presents additional arguments on appeal, alleging constitutional violations resulting from alleged VA wrongdoing. These arguments are not sufficiently colorable to grant this court jurisdiction. See Helfer v. West, 174 F.3d 1332, 1335 (Fed. Cir. 1999).
Because none of Warren’s claims falls within our jurisdiction, we dismiss the appeal for lack of jurisdiction.
COSTS
Warren v. Shinseki, [full case below] the court stated:
"This court’s jurisdiction to review decisions by the Veterans Court is limited. We “have exclusive jurisdiction to review and decide any challenge to the validity of any statute or regulation or any interpretation thereof [by the Veterans Court] . . . , and to interpret constitutional and statutory provisions, to the extent presented and necessary to a decision.” 38 U.S.C. § 7292(c). We lack the jurisdiction to review “(A) a challenge to a factual determination, or (B) a challenge to a law or regulation as applied to the facts of a particular case.” Id. § 7292(d)(2).
+++++++++++++++++++++++++++++++++++++
NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2009-7126
GERALD F. WARREN,
Claimant-Appellant,
v.
ERIC K. SHINSEKI, Secretary of Veterans Affairs,
Respondent-Appellee.
Gerald F. Warren, of The Dalles, Oregon, pro se.
David S. Silverbrand, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, for respondent-appellee. With him on the brief were Tony West, Assistant Attorney General, Jeanne E. Davidson, Director, and Kirk T. Manhardt, Assistant Director. Of counsel on the brief were Michael J. Timinski, Deputy Assistant General Counsel, and Amanda R. Blackmon, Attorney, Office of the General Counsel, United States Department of Veterans Affairs, of Washington, DC.
Appealed from: United States Court of Appeals for Veterans Claims
Chief Judge William P. Greene, Jr.
NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2009-7126
GERALD F. WARREN,
Claimant-Appellant,
v.
ERIC K. SHINSEKI, Secretary of Veterans Affairs,
Respondent-Appellee.
Appeal from the United States Court of Appeals for Veterans Claims in 06-3514, Chief Judge William P. Greene, Jr.
___________________________
DECIDED: January 7, 2010
___________________________
Before MICHEL, Chief Judge, BRYSON, and DYK, Circuit Judges.
PER CURIAM.
Gerald F. Warren (“Warren”) appeals the decision of the United States Court of Appeals for Veterans Claims (“Veterans Court”) affirming a decision of the Board of Veterans’ Appeals (“Board”). The Board denied an earlier effective date for the award of a 100% disability rating for post-traumatic stress disorder (“PTSD”). See Warren v. Shinseki, No. 06-3514, 2009 WL 1363087 (Vet. App. May 18, 2009). Warren presents no issues of statutory or constitutional interpretation that would confer jurisdiction on this court. Accordingly, the appeal must be dismissed.
BACKGROUND
Warren served in the United States Army from March 1969 to December 1970, including service in Vietnam. On August 29, 1985, Warren submitted his first claim before the Department of Veterans Affairs (“VA”) for service connection for PTSD. In December 1985, the VA regional office (“RO”) awarded him service connection for the PTSD and assigned him a 50% disability rating effective August 29, 1985, the date of his claim. Warren did not appeal this decision, and it became final. In August and December 1987, the RO decided to continue the previously assigned disability rating of 50% due to PTSD, and these decisions also became final after Warren did not appeal.
On May 23, 1990, the VA administered Warren a psychiatric examination and again found that it was appropriate to maintain the 50% rating. Warren submitted additional medical evidence, but in October 1991, the RO sustained the previously assigned rating. Warren appealed the RO’s decision, and in January 1997, after extensive procedural development, the VA increased his PTSD rating to 100%, effective May 23, 1990. Claiming that he was entitled to an April 1985 effective date for the 100% rating, Warren appealed to the Board.
The Board found that there was no legal basis for assigning an effective date for the 100% rating prior to May 23, 1990. Under 38 U.S.C. § 5110(a), the effective date of an award of increased disability compensation “shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor.” Thus, the Board found that because Warren did not appeal the 1985 and 1987 RO decisions establishing and maintaining his 50% disability rating, his eventual 100% rating could not be traced to those claims, and the effective date for an increased rating
2009-7126 2
could only be established by a later claim. The Board then determined that May 23, 1990, was the earliest date that could be construed as the date of the filing of an informal claim leading to the 100% rating, and upheld the RO’s decision. The Veterans Court affirmed the Board, concluding that its findings were not clearly erroneous. Warren now appeals from that decision.
DISCUSSION
This court’s jurisdiction to review decisions by the Veterans Court is limited. We “have exclusive jurisdiction to review and decide any challenge to the validity of any statute or regulation or any interpretation thereof [by the Veterans Court] . . . , and to interpret constitutional and statutory provisions, to the extent presented and necessary to a decision.” 38 U.S.C. § 7292(c). We lack the jurisdiction to review “(A) a challenge to a factual determination, or (B) a challenge to a law or regulation as applied to the facts of a particular case.” Id. § 7292(d)(2).
All of Warren’s arguments are ultimately directed to his claim that he is entitled to an earlier effective date for his 100% disability rating due to PTSD. A failure to appeal a VA determination bars a claim to an earlier effective date based on that unappealed determination. See Charles v. Shinseki, No. 2009-7024, 2009 WL 4257067, at *2-3 (Fed. Cir. Dec. 1, 2009). Alternatively, Warren claims that another submission (which was not the subject of the earlier VA decisions) constituted an informal claim. The Veterans Court evidently disagreed. The determination of whether a particular document satisfied the requirements for an informal claim is a question of fact. We lack jurisdiction to review such a determination. See Moody v. Principi, 360 F.3d 1306, 1310 (Fed. Cir. 2004). Warren also asserts that the VA failed to provide him with the
2009-7126 3 2009-7126 4
congressionally mandated “benefit of the doubt” under 38 U.S.C. § 5107(b) by not awarding him an earlier effective date. The Veterans Court found that under the circumstances of the case, the “approximate balance of positive and negative evidence” required to invoke the statute did not exist. See Warren, 2009 WL 1363087, at *3 (quoting 38 U.S.C. § 5107(b)). This too is a factual issue. Finally, Warren argues that the VA failed to follow through on its duty to assist him in developing his claim under 38 U.S.C. § 5103A(a)(1). The Veterans Court concluded that any alleged failure of the VA to comply with its duty to assist would not have resulted in an earlier effective date for the 100% rating. Warren, 2009 WL 1363087, at *4. This is also a factual determination.
Warren presents additional arguments on appeal, alleging constitutional violations resulting from alleged VA wrongdoing. These arguments are not sufficiently colorable to grant this court jurisdiction. See Helfer v. West, 174 F.3d 1332, 1335 (Fed. Cir. 1999).
Because none of Warren’s claims falls within our jurisdiction, we dismiss the appeal for lack of jurisdiction.
COSTS
Appealing Federal Circuit, Judicial Hook, Constitutional Issue, Jackson v. Shinseki, Helfer v. West
Appealing to the Federal Circuit and the "judicial hook" or what is need in order for the Federal Circuit to exercise jurisdiction over your appeal.
Appeal to the Federal Circuit is conditional, that means that you have to satisfy the conditions over which the Federal Circuit has jurisdiction, establish the "judicial hook".
This is a multi-part posting, the first part is to present cases where the FedCir has refused to hear an appeal where the veteran was found to just proclaim Constitutional violations.
One of the most misunderstood concepts is perhaps the notion that by simply proclaiming a Constitutional violation, that somehow that bare statement provides the "judicial hook"[jurisdiction] the FedCir needs to hear your claim. Merely proclaiming that your Constitutional Rights have been violated without supporting arguments and facts does not establish a duty upon the court to consider and/or address that argument.
Jackson v. Shinseki, [full case below] where it stated:
"Turning to Mr. Jackson's Fifth and Eighth Amendment claims, we have also made it clear in the past that he cannot "attempt to raise a constitutional issue simply by placing a constitutional label on his assertions." Jackson, 303 F. App'x at 883; see Helfer v. West, 174 F.3d 1332, 1335 (Fed. Cir. 1999) ("To the extent that he has simply put a 'due process' label on his contention that he should have prevailed . . . his claim is constitutional in name only. . . . [the veteran's] characterization of that question as constitutional in nature does not confer upon us jurisdiction that we otherwise lack.")."
Warrren v. Shinseki, [full case below] where it stated:
"Warren presents additional arguments on appeal, alleging constitutional violations resulting from alleged VA wrongdoing. These arguments are not sufficiently colorable to grant this court jurisdiction. See Helfer v. West, 174 F.3d 1332, 1335 (Fed. Cir. 1999).
Helfer v. West, where the Court stated:
" 10 * Mr. Helfer's constitutional argument is that by ruling against him as it did, the Court of Veterans Appeals deprived him of a property interest without due process of law. Much of his argument on this point hints that because the court was mistaken in ruling against him, he was deprived of property (attorneys fees and expenses) to which he was entitled (because he should have been awarded them), without due process of law (i.e., without a correct adjudication of his rights). To the extent that he has simply put a "due process" label on his contention that he should have prevailed on his EAJA claim, his claim is constitutional in name only. Thus, when Mr. Helfer contends that the Court of Veterans Appeals violated his constitutional rights by "ignor[ing] mandatory authority that compelled a finding that the Secretary's position was not justified," he is really arguing the merits of his EAJA claim, not raising a separate constitutional contention. We do not have jurisdiction to consider whether the Court of Veterans Appeals was mistaken when it concluded that the Secretary's position before that court was substantially justified, and Mr. Helfer's characterization of that question as constitutional in nature does not confer upon us jurisdiction that we otherwise lack.
11
To the extent that Mr. Helfer raises a constitutional argument separate from his contention that the court erred in denying his EAJA claim, that argument is within the scope of our jurisdiction. Under 38 U.S.C. § 7292(a), a party to a case before the Court of Appeals for Veterans Claims may obtain a review of the court's decision "with respect to the validity of any statute or regulation ... or any interpretation thereof ... that was relied on by the Court in making the decision." Consistent with subsection (a) of the statute, subsection (c) gives us "exclusive jurisdiction to review and decide any challenge to the validity of any statute or regulation or any interpretation thereof brought under this section, and to interpret constitutional and statutory provisions, to the extent presented and necessary to a decision." 38 U.S.C. § 7292(c)."
++++++++++++++++++++++++++++++++++++++++++++++++++
United States Court of Appeals for the Federal Circuit
May 7, 2009
MARK C. JACKSON, CLAIMANT-APPELLANT,
v.
ERIC K. SHINSEKI, SECRETARY OF VETERANS AFFAIRS, RESPONDENT-APPELLEE.
Appeal from the United States Court of Appeals for Veterans Claims in 07-0817, Chief Judge William P. Greene, Jr.
Mark C. Jackson, of Starke, Florida, pro se.
Russell A. Shultis, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, Dc, for respondent-appellee. With him on the brief were Jeanne E. Davidson, Director, and Brian M. Simkin, Assistant Director.
Per curiam.
NOTE: This disposition is nonprecedential.
Before RADER, LINN, and PROST, Circuit Judges.
Mark C. Jackson appeals a decision of the United States Court of Appeals for Veterans Claims ("Veterans Court") affirming the Board of Veterans' Appeals' ("Board's") decision to deny service connection for Mr. Jackson's hip and knee disabilities and an increased disability evaluation for a finger fracture. See Jackson v. Peake, No. 07-0817, 2008 WL 4453370 (Vet. App. Sept. 30, 2008). For the reasons that follow, we dismiss the appeal for lack of jurisdiction.
BACKGROUND
Mr. Jackson was active in the military from July 1989 to July 1993. After he left the service, he alleged that he suffered a number of service-connected injuries and requested vocational rehabilitation and employment benefits. His case has been back and forth between the Board and his regional office ("RO") a number of times. The Board's most recent action took place on October 6, 2006, when the Board issued two related decisions: one addressing Mr. Jackson's vocational rehabilitation claims, and one addressing Mr. Jackson's service connection and increased rating claims.*fn1
We first trace the history of Mr. Jackson's vocational rehabilitation claims. Before the Board, Mr. Jackson argued that he was entitled to reimbursement for a computer he had allegedly purchased for his vocational training. He also requested a determination of feasibility of a vocational goal. The Board found that Mr. Jackson did not receive the requisite notice, and noted that certain documents appeared to be missing from the record. The Board remanded the entire case back to the RO because "in addition to the confusion regarding the [vocational rehabilitation] appeal issues there [was] a substantial due process deficiency."*fn2
Mr. Jackson appealed the Board's 2006 vocational rehabilitation decision to the Veterans Court. Jackson v. Peake, No. 07-2703, 2008 WL 624713 (Vet. App. Jan. 4, 2008). In that opinion, the Veterans Court noted that the Board had in fact remanded Mr. Jackson's claims. Because a remand is not a "final" Board decision, and because the Veterans Court only has jurisdiction over final decisions, the court dismissed the appeal. We summarily affirmed that decision. Jackson v. Peake, No. 2008-7103, 2008 WL 5690032 (Fed. Cir. July 18, 2008).
Mr. Jackson also petitioned the Veterans Court for two writs of mandamus, both relating to his vocational rehabilitation claims. In the first, Mr. Jackson alleged that the Department of Veterans Affairs deprived him of his liberty by interfering with his ability to acquire "useful knowledge." He requested that the court order the Department of Veterans Affairs ("VA") to pay for all past and future benefits, and asked for punitive damages and lost wages in the amount of $7,800,000. Jackson v. Peake, No. 08-0662, 2008 WL 2572708, at *1 (Vet. App. June 23, 2008). The Veterans Court denied the petition, and Mr. Jackson appealed. Before we could issue an opinion, however, Mr. Jackson filed another petition based largely on the same facts and requesting similar relief. The court denied that petition as well. Jackson v. Peake, No. 08-3082, 2008 WL 5082120 (Vet. App. Nov. 21, 2008). We then affirmed the court's June 2008 decision to deny Mr. Jackson's petition for a writ of mandamus in Jackson, 303 F. App'x 881.
As we mentioned, the second portion of the Board's October 2006 decision dealt with Mr. Jackson's service connection and increased rating claims. In that opinion, the Board found that the VA had satisfied its duty to provide notice to and assist Mr. Jackson. The Board denied Mr. Jackson a service connection for a bilateral hip and knee disability, and held that Mr. Jackson failed to show he was entitled to an increased disability evaluation for residuals of a fracture in his left third finger. The Board also remanded on a number of issues, including Mr. Jackson's entitlement to service connection for a broken back and various foot problems. Finally, the Board deferred a determination of Mr. Jackson's total disability based upon individual unemployability ("TDIU").*fn3
Mr. Jackson appealed to the Veterans Court, challenging "that part of the October 6, 2008 Board decision that denied (1) secondary service connection for a bilateral hip disability, (2) secondary service connection for a bilateral knee disability and (3) increased (compensable) disability evaluation for residuals of a fracture left index finger." Despite this statement, Mr. Jackson's appellate brief was dedicated to two issues: whether the VA failed in its duty to assist Mr. Jackson in obtaining certain Social Security and medical records, and whether the VA failed to obtain certain vocational rehabilitation documents and associate those records with his file. He requested a remand "to obtain the Veteran's SSA disability records and VA Vocational Rehabilitation records." The Veterans Court found that Mr. Jackson did not show that he had ever notified the VA of any potentially relevant Social Security documents other than those already in the record. See Jackson, 2008 WL 4453370, at *1. The court also found that more than 200 pages of vocational rehabilitation documents existed, and Mr. Jackson failed to indicate with specificity which documents were missing. Id. at *2. The Veterans Court therefore affirmed the Board's October 2006 decision. Id.
Mr. Jackson has now filed an appeal on this matter with us. While Mr. Jackson admits that the Veterans Court decision did not involve the validity or interpretation of a statute or regulation, he argues (among other things) that two of his constitutional rights have been violated. First, he claims that the VA deprived him of liberty without due process of law because the VA has prevented him "from acquiring useful knowledge." Second, he claims he has been cruelly and unusually punished by the VA's malicious postponement of his academic career. He asks us to award him $10,400,000 in punitive damages for these constitutional violations.
DISCUSSION
Under 38 U.S.C. § 7292, this court has extremely limited authority to review the Veterans Court's decisions. This court decides "all relevant questions of law, including interpreting constitutional and statutory provisions." 38 U.S.C. § 7292(d)(1). However, unless the appeal presents a constitutional issue, we may not review challenges to factual determinations or "to a law or regulation as applied to the facts of a particular case." Id. § 7292(d)(2).
Mr. Jackson's informal brief focuses almost entirely on the facts and the application of law to those facts. For instance, in addition to his constitutional claims Mr. Jackson argues that (1) the Veterans Court failed to remand his case as requested by counsel, (2) the record erroneously shows an injury to Mr. Jackson's index finger, not his third metacarpal, (3) the VA failed to obtain his Social Security records, (4) he was not permitted to view or add to the record on appeal, (5) his disability rating should be increased to 80%, (6) he qualifies for Social Security disability, convalescence time, and TDIU, and (7) he should be reimbursed for the computer.*fn4 We simply do not have jurisdiction over these issues-they are either pure questions of fact or questions involving the application of law to the facts.
Further, many of the issues are still on remand to the Board and are not properly before either this court or the Veterans Court. Both courts have repeatedly made it clear to Mr. Jackson that he must wait to receive final judgment before he can appeal his claims. See Jackson, 303 F. App'x at 884 (the Board's October 2006 decision "was not a final decision that can be appealed to the Veterans Court. . . . Once the Board reaches a final decision, he will have the opportunity to appeal . . . ."); Jackson, 2008 WL 5690032, at *1 (because "there was no final Board decision," the Veterans Court "was clearly correct in dismissing Jackson's appeal"); Jackson, 2008 WL 5082120, at *2 ("[T]o the extent the petitioner is attempting to appeal the October 2006 decisions, they are not final adverse decisions of the Board over which the Court would have jurisdiction.").
Turning to Mr. Jackson's Fifth and Eighth Amendment claims, we have also made it clear in the past that he cannot "attempt to raise a constitutional issue simply by placing a constitutional label on his assertions." Jackson, 303 F. App'x at 883; see Helfer v. West, 174 F.3d 1332, 1335 (Fed. Cir. 1999) ("To the extent that he has simply put a 'due process' label on his contention that he should have prevailed . . . his claim is constitutional in name only. . . . [the veteran's] characterization of that question as constitutional in nature does not confer upon us jurisdiction that we otherwise lack."). This is just as true now as it was then-Mr. Jackson is in effect arguing that he should prevail on the merits of his vocational rehabilitation claims. That question is outside of our jurisdiction. Mr. Jackson will have to wait for the Board's final decision on the merits, and if he does not like the result he may then appeal the Board's decision to the Veterans Court. To the extent that Mr. Jackson makes other arguments, we find them to be without merit.
CONCLUSION
For the reasons stated above, we dismiss Mr. Jackson's action for lack of jurisdiction.
Opinion Footnotes *fn1 While the Board usually addresses all issues in a single decision, the Board has an exception for issues "dependent on completely different law and facts," such as vocational rehabilitation and service connection.
*fn2 On remand, the RO denied Mr. Jackson's claims and notified him via a Supplemental Statement of the Case ("SSOC"). Jackson v. Peake, 303 F. App'x 881, 883--84 (Fed. Cir. 2008). The SSOC informed Mr. Jackson that he had sixty days in which to respond to the action, and that if he did not respond the case would be turned over to the Board for appellate review.
*fn3 To the best of our knowledge, the claims that were remanded in that decision are still on remand and have not been returned to the Board. See Jackson, 2008 WL 5082120, at *1.
*fn4 Mr. Jackson also refers to a claim that was adjudicated by the United States Court of Federal Claims. There, he alleged that he was entitled to Social Security disability and veterans benefits and that the VA breached an implied-in-fact contract arising out of Mr. Jackson's rehabilitation plan. Jackson v. United States, 80 Fed. Cl. 560 (2008). The court dismissed the case for lack of jurisdiction. Id. at 565-- 68. We affirmed. Jackson v. United States, No. 2008-5060, 2008 WL 5648486 (Fed. Cir. June 26, 2008).
20090507
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NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2009-7126
GERALD F. WARREN,
Claimant-Appellant,
v.
ERIC K. SHINSEKI, Secretary of Veterans Affairs,
Respondent-Appellee.
Gerald F. Warren, of The Dalles, Oregon, pro se.
David S. Silverbrand, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, for respondent-appellee. With him on the brief were Tony West, Assistant Attorney General, Jeanne E. Davidson, Director, and Kirk T. Manhardt, Assistant Director. Of counsel on the brief were Michael J. Timinski, Deputy Assistant General Counsel, and Amanda R. Blackmon, Attorney, Office of the General Counsel, United States Department of Veterans Affairs, of Washington, DC.
Appealed from: United States Court of Appeals for Veterans Claims
Chief Judge William P. Greene, Jr.
NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2009-7126
GERALD F. WARREN,
Claimant-Appellant,
v.
ERIC K. SHINSEKI, Secretary of Veterans Affairs,
Respondent-Appellee.
Appeal from the United States Court of Appeals for Veterans Claims in 06-3514, Chief Judge William P. Greene, Jr.
___________________________
DECIDED: January 7, 2010
___________________________
Before MICHEL, Chief Judge, BRYSON, and DYK, Circuit Judges.
PER CURIAM.
Gerald F. Warren (“Warren”) appeals the decision of the United States Court of Appeals for Veterans Claims (“Veterans Court”) affirming a decision of the Board of Veterans’ Appeals (“Board”). The Board denied an earlier effective date for the award of a 100% disability rating for post-traumatic stress disorder (“PTSD”). See Warren v. Shinseki, No. 06-3514, 2009 WL 1363087 (Vet. App. May 18, 2009). Warren presents no issues of statutory or constitutional interpretation that would confer jurisdiction on this court. Accordingly, the appeal must be dismissed.
BACKGROUND
Warren served in the United States Army from March 1969 to December 1970, including service in Vietnam. On August 29, 1985, Warren submitted his first claim before the Department of Veterans Affairs (“VA”) for service connection for PTSD. In December 1985, the VA regional office (“RO”) awarded him service connection for the PTSD and assigned him a 50% disability rating effective August 29, 1985, the date of his claim. Warren did not appeal this decision, and it became final. In August and December 1987, the RO decided to continue the previously assigned disability rating of 50% due to PTSD, and these decisions also became final after Warren did not appeal.
On May 23, 1990, the VA administered Warren a psychiatric examination and again found that it was appropriate to maintain the 50% rating. Warren submitted additional medical evidence, but in October 1991, the RO sustained the previously assigned rating. Warren appealed the RO’s decision, and in January 1997, after extensive procedural development, the VA increased his PTSD rating to 100%, effective May 23, 1990. Claiming that he was entitled to an April 1985 effective date for the 100% rating, Warren appealed to the Board.
The Board found that there was no legal basis for assigning an effective date for the 100% rating prior to May 23, 1990. Under 38 U.S.C. § 5110(a), the effective date of an award of increased disability compensation “shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor.” Thus, the Board found that because Warren did not appeal the 1985 and 1987 RO decisions establishing and maintaining his 50% disability rating, his eventual 100% rating could not be traced to those claims, and the effective date for an increased rating
2009-7126 2
could only be established by a later claim. The Board then determined that May 23, 1990, was the earliest date that could be construed as the date of the filing of an informal claim leading to the 100% rating, and upheld the RO’s decision. The Veterans Court affirmed the Board, concluding that its findings were not clearly erroneous. Warren now appeals from that decision.
DISCUSSION
This court’s jurisdiction to review decisions by the Veterans Court is limited. We “have exclusive jurisdiction to review and decide any challenge to the validity of any statute or regulation or any interpretation thereof [by the Veterans Court] . . . , and to interpret constitutional and statutory provisions, to the extent presented and necessary to a decision.” 38 U.S.C. § 7292(c). We lack the jurisdiction to review “(A) a challenge to a factual determination, or (B) a challenge to a law or regulation as applied to the facts of a particular case.” Id. § 7292(d)(2).
All of Warren’s arguments are ultimately directed to his claim that he is entitled to an earlier effective date for his 100% disability rating due to PTSD. A failure to appeal a VA determination bars a claim to an earlier effective date based on that unappealed determination. See Charles v. Shinseki, No. 2009-7024, 2009 WL 4257067, at *2-3 (Fed. Cir. Dec. 1, 2009). Alternatively, Warren claims that another submission (which was not the subject of the earlier VA decisions) constituted an informal claim. The Veterans Court evidently disagreed. The determination of whether a particular document satisfied the requirements for an informal claim is a question of fact. We lack jurisdiction to review such a determination. See Moody v. Principi, 360 F.3d 1306, 1310 (Fed. Cir. 2004). Warren also asserts that the VA failed to provide him with the
2009-7126 3 2009-7126 4
congressionally mandated “benefit of the doubt” under 38 U.S.C. § 5107(b) by not awarding him an earlier effective date. The Veterans Court found that under the circumstances of the case, the “approximate balance of positive and negative evidence” required to invoke the statute did not exist. See Warren, 2009 WL 1363087, at *3 (quoting 38 U.S.C. § 5107(b)). This too is a factual issue. Finally, Warren argues that the VA failed to follow through on its duty to assist him in developing his claim under 38 U.S.C. § 5103A(a)(1). The Veterans Court concluded that any alleged failure of the VA to comply with its duty to assist would not have resulted in an earlier effective date for the 100% rating. Warren, 2009 WL 1363087, at *4. This is also a factual determination.
Warren presents additional arguments on appeal, alleging constitutional violations resulting from alleged VA wrongdoing. These arguments are not sufficiently colorable to grant this court jurisdiction. See Helfer v. West, 174 F.3d 1332, 1335 (Fed. Cir. 1999).
Because none of Warren’s claims falls within our jurisdiction, we dismiss the appeal for lack of jurisdiction.
COSTS
+++++++++++++++++++++++++++++++++++++++++++++++++
Appeal to the Federal Circuit is conditional, that means that you have to satisfy the conditions over which the Federal Circuit has jurisdiction, establish the "judicial hook".
This is a multi-part posting, the first part is to present cases where the FedCir has refused to hear an appeal where the veteran was found to just proclaim Constitutional violations.
One of the most misunderstood concepts is perhaps the notion that by simply proclaiming a Constitutional violation, that somehow that bare statement provides the "judicial hook"[jurisdiction] the FedCir needs to hear your claim. Merely proclaiming that your Constitutional Rights have been violated without supporting arguments and facts does not establish a duty upon the court to consider and/or address that argument.
Jackson v. Shinseki, [full case below] where it stated:
"Turning to Mr. Jackson's Fifth and Eighth Amendment claims, we have also made it clear in the past that he cannot "attempt to raise a constitutional issue simply by placing a constitutional label on his assertions." Jackson, 303 F. App'x at 883; see Helfer v. West, 174 F.3d 1332, 1335 (Fed. Cir. 1999) ("To the extent that he has simply put a 'due process' label on his contention that he should have prevailed . . . his claim is constitutional in name only. . . . [the veteran's] characterization of that question as constitutional in nature does not confer upon us jurisdiction that we otherwise lack.")."
Warrren v. Shinseki, [full case below] where it stated:
"Warren presents additional arguments on appeal, alleging constitutional violations resulting from alleged VA wrongdoing. These arguments are not sufficiently colorable to grant this court jurisdiction. See Helfer v. West, 174 F.3d 1332, 1335 (Fed. Cir. 1999).
Helfer v. West, where the Court stated:
" 10 * Mr. Helfer's constitutional argument is that by ruling against him as it did, the Court of Veterans Appeals deprived him of a property interest without due process of law. Much of his argument on this point hints that because the court was mistaken in ruling against him, he was deprived of property (attorneys fees and expenses) to which he was entitled (because he should have been awarded them), without due process of law (i.e., without a correct adjudication of his rights). To the extent that he has simply put a "due process" label on his contention that he should have prevailed on his EAJA claim, his claim is constitutional in name only. Thus, when Mr. Helfer contends that the Court of Veterans Appeals violated his constitutional rights by "ignor[ing] mandatory authority that compelled a finding that the Secretary's position was not justified," he is really arguing the merits of his EAJA claim, not raising a separate constitutional contention. We do not have jurisdiction to consider whether the Court of Veterans Appeals was mistaken when it concluded that the Secretary's position before that court was substantially justified, and Mr. Helfer's characterization of that question as constitutional in nature does not confer upon us jurisdiction that we otherwise lack.
11
To the extent that Mr. Helfer raises a constitutional argument separate from his contention that the court erred in denying his EAJA claim, that argument is within the scope of our jurisdiction. Under 38 U.S.C. § 7292(a), a party to a case before the Court of Appeals for Veterans Claims may obtain a review of the court's decision "with respect to the validity of any statute or regulation ... or any interpretation thereof ... that was relied on by the Court in making the decision." Consistent with subsection (a) of the statute, subsection (c) gives us "exclusive jurisdiction to review and decide any challenge to the validity of any statute or regulation or any interpretation thereof brought under this section, and to interpret constitutional and statutory provisions, to the extent presented and necessary to a decision." 38 U.S.C. § 7292(c)."
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United States Court of Appeals for the Federal Circuit
May 7, 2009
MARK C. JACKSON, CLAIMANT-APPELLANT,
v.
ERIC K. SHINSEKI, SECRETARY OF VETERANS AFFAIRS, RESPONDENT-APPELLEE.
Appeal from the United States Court of Appeals for Veterans Claims in 07-0817, Chief Judge William P. Greene, Jr.
Mark C. Jackson, of Starke, Florida, pro se.
Russell A. Shultis, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, Dc, for respondent-appellee. With him on the brief were Jeanne E. Davidson, Director, and Brian M. Simkin, Assistant Director.
Per curiam.
NOTE: This disposition is nonprecedential.
Before RADER, LINN, and PROST, Circuit Judges.
Mark C. Jackson appeals a decision of the United States Court of Appeals for Veterans Claims ("Veterans Court") affirming the Board of Veterans' Appeals' ("Board's") decision to deny service connection for Mr. Jackson's hip and knee disabilities and an increased disability evaluation for a finger fracture. See Jackson v. Peake, No. 07-0817, 2008 WL 4453370 (Vet. App. Sept. 30, 2008). For the reasons that follow, we dismiss the appeal for lack of jurisdiction.
BACKGROUND
Mr. Jackson was active in the military from July 1989 to July 1993. After he left the service, he alleged that he suffered a number of service-connected injuries and requested vocational rehabilitation and employment benefits. His case has been back and forth between the Board and his regional office ("RO") a number of times. The Board's most recent action took place on October 6, 2006, when the Board issued two related decisions: one addressing Mr. Jackson's vocational rehabilitation claims, and one addressing Mr. Jackson's service connection and increased rating claims.*fn1
We first trace the history of Mr. Jackson's vocational rehabilitation claims. Before the Board, Mr. Jackson argued that he was entitled to reimbursement for a computer he had allegedly purchased for his vocational training. He also requested a determination of feasibility of a vocational goal. The Board found that Mr. Jackson did not receive the requisite notice, and noted that certain documents appeared to be missing from the record. The Board remanded the entire case back to the RO because "in addition to the confusion regarding the [vocational rehabilitation] appeal issues there [was] a substantial due process deficiency."*fn2
Mr. Jackson appealed the Board's 2006 vocational rehabilitation decision to the Veterans Court. Jackson v. Peake, No. 07-2703, 2008 WL 624713 (Vet. App. Jan. 4, 2008). In that opinion, the Veterans Court noted that the Board had in fact remanded Mr. Jackson's claims. Because a remand is not a "final" Board decision, and because the Veterans Court only has jurisdiction over final decisions, the court dismissed the appeal. We summarily affirmed that decision. Jackson v. Peake, No. 2008-7103, 2008 WL 5690032 (Fed. Cir. July 18, 2008).
Mr. Jackson also petitioned the Veterans Court for two writs of mandamus, both relating to his vocational rehabilitation claims. In the first, Mr. Jackson alleged that the Department of Veterans Affairs deprived him of his liberty by interfering with his ability to acquire "useful knowledge." He requested that the court order the Department of Veterans Affairs ("VA") to pay for all past and future benefits, and asked for punitive damages and lost wages in the amount of $7,800,000. Jackson v. Peake, No. 08-0662, 2008 WL 2572708, at *1 (Vet. App. June 23, 2008). The Veterans Court denied the petition, and Mr. Jackson appealed. Before we could issue an opinion, however, Mr. Jackson filed another petition based largely on the same facts and requesting similar relief. The court denied that petition as well. Jackson v. Peake, No. 08-3082, 2008 WL 5082120 (Vet. App. Nov. 21, 2008). We then affirmed the court's June 2008 decision to deny Mr. Jackson's petition for a writ of mandamus in Jackson, 303 F. App'x 881.
As we mentioned, the second portion of the Board's October 2006 decision dealt with Mr. Jackson's service connection and increased rating claims. In that opinion, the Board found that the VA had satisfied its duty to provide notice to and assist Mr. Jackson. The Board denied Mr. Jackson a service connection for a bilateral hip and knee disability, and held that Mr. Jackson failed to show he was entitled to an increased disability evaluation for residuals of a fracture in his left third finger. The Board also remanded on a number of issues, including Mr. Jackson's entitlement to service connection for a broken back and various foot problems. Finally, the Board deferred a determination of Mr. Jackson's total disability based upon individual unemployability ("TDIU").*fn3
Mr. Jackson appealed to the Veterans Court, challenging "that part of the October 6, 2008 Board decision that denied (1) secondary service connection for a bilateral hip disability, (2) secondary service connection for a bilateral knee disability and (3) increased (compensable) disability evaluation for residuals of a fracture left index finger." Despite this statement, Mr. Jackson's appellate brief was dedicated to two issues: whether the VA failed in its duty to assist Mr. Jackson in obtaining certain Social Security and medical records, and whether the VA failed to obtain certain vocational rehabilitation documents and associate those records with his file. He requested a remand "to obtain the Veteran's SSA disability records and VA Vocational Rehabilitation records." The Veterans Court found that Mr. Jackson did not show that he had ever notified the VA of any potentially relevant Social Security documents other than those already in the record. See Jackson, 2008 WL 4453370, at *1. The court also found that more than 200 pages of vocational rehabilitation documents existed, and Mr. Jackson failed to indicate with specificity which documents were missing. Id. at *2. The Veterans Court therefore affirmed the Board's October 2006 decision. Id.
Mr. Jackson has now filed an appeal on this matter with us. While Mr. Jackson admits that the Veterans Court decision did not involve the validity or interpretation of a statute or regulation, he argues (among other things) that two of his constitutional rights have been violated. First, he claims that the VA deprived him of liberty without due process of law because the VA has prevented him "from acquiring useful knowledge." Second, he claims he has been cruelly and unusually punished by the VA's malicious postponement of his academic career. He asks us to award him $10,400,000 in punitive damages for these constitutional violations.
DISCUSSION
Under 38 U.S.C. § 7292, this court has extremely limited authority to review the Veterans Court's decisions. This court decides "all relevant questions of law, including interpreting constitutional and statutory provisions." 38 U.S.C. § 7292(d)(1). However, unless the appeal presents a constitutional issue, we may not review challenges to factual determinations or "to a law or regulation as applied to the facts of a particular case." Id. § 7292(d)(2).
Mr. Jackson's informal brief focuses almost entirely on the facts and the application of law to those facts. For instance, in addition to his constitutional claims Mr. Jackson argues that (1) the Veterans Court failed to remand his case as requested by counsel, (2) the record erroneously shows an injury to Mr. Jackson's index finger, not his third metacarpal, (3) the VA failed to obtain his Social Security records, (4) he was not permitted to view or add to the record on appeal, (5) his disability rating should be increased to 80%, (6) he qualifies for Social Security disability, convalescence time, and TDIU, and (7) he should be reimbursed for the computer.*fn4 We simply do not have jurisdiction over these issues-they are either pure questions of fact or questions involving the application of law to the facts.
Further, many of the issues are still on remand to the Board and are not properly before either this court or the Veterans Court. Both courts have repeatedly made it clear to Mr. Jackson that he must wait to receive final judgment before he can appeal his claims. See Jackson, 303 F. App'x at 884 (the Board's October 2006 decision "was not a final decision that can be appealed to the Veterans Court. . . . Once the Board reaches a final decision, he will have the opportunity to appeal . . . ."); Jackson, 2008 WL 5690032, at *1 (because "there was no final Board decision," the Veterans Court "was clearly correct in dismissing Jackson's appeal"); Jackson, 2008 WL 5082120, at *2 ("[T]o the extent the petitioner is attempting to appeal the October 2006 decisions, they are not final adverse decisions of the Board over which the Court would have jurisdiction.").
Turning to Mr. Jackson's Fifth and Eighth Amendment claims, we have also made it clear in the past that he cannot "attempt to raise a constitutional issue simply by placing a constitutional label on his assertions." Jackson, 303 F. App'x at 883; see Helfer v. West, 174 F.3d 1332, 1335 (Fed. Cir. 1999) ("To the extent that he has simply put a 'due process' label on his contention that he should have prevailed . . . his claim is constitutional in name only. . . . [the veteran's] characterization of that question as constitutional in nature does not confer upon us jurisdiction that we otherwise lack."). This is just as true now as it was then-Mr. Jackson is in effect arguing that he should prevail on the merits of his vocational rehabilitation claims. That question is outside of our jurisdiction. Mr. Jackson will have to wait for the Board's final decision on the merits, and if he does not like the result he may then appeal the Board's decision to the Veterans Court. To the extent that Mr. Jackson makes other arguments, we find them to be without merit.
CONCLUSION
For the reasons stated above, we dismiss Mr. Jackson's action for lack of jurisdiction.
Opinion Footnotes *fn1 While the Board usually addresses all issues in a single decision, the Board has an exception for issues "dependent on completely different law and facts," such as vocational rehabilitation and service connection.
*fn2 On remand, the RO denied Mr. Jackson's claims and notified him via a Supplemental Statement of the Case ("SSOC"). Jackson v. Peake, 303 F. App'x 881, 883--84 (Fed. Cir. 2008). The SSOC informed Mr. Jackson that he had sixty days in which to respond to the action, and that if he did not respond the case would be turned over to the Board for appellate review.
*fn3 To the best of our knowledge, the claims that were remanded in that decision are still on remand and have not been returned to the Board. See Jackson, 2008 WL 5082120, at *1.
*fn4 Mr. Jackson also refers to a claim that was adjudicated by the United States Court of Federal Claims. There, he alleged that he was entitled to Social Security disability and veterans benefits and that the VA breached an implied-in-fact contract arising out of Mr. Jackson's rehabilitation plan. Jackson v. United States, 80 Fed. Cl. 560 (2008). The court dismissed the case for lack of jurisdiction. Id. at 565-- 68. We affirmed. Jackson v. United States, No. 2008-5060, 2008 WL 5648486 (Fed. Cir. June 26, 2008).
20090507
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NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2009-7126
GERALD F. WARREN,
Claimant-Appellant,
v.
ERIC K. SHINSEKI, Secretary of Veterans Affairs,
Respondent-Appellee.
Gerald F. Warren, of The Dalles, Oregon, pro se.
David S. Silverbrand, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, for respondent-appellee. With him on the brief were Tony West, Assistant Attorney General, Jeanne E. Davidson, Director, and Kirk T. Manhardt, Assistant Director. Of counsel on the brief were Michael J. Timinski, Deputy Assistant General Counsel, and Amanda R. Blackmon, Attorney, Office of the General Counsel, United States Department of Veterans Affairs, of Washington, DC.
Appealed from: United States Court of Appeals for Veterans Claims
Chief Judge William P. Greene, Jr.
NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2009-7126
GERALD F. WARREN,
Claimant-Appellant,
v.
ERIC K. SHINSEKI, Secretary of Veterans Affairs,
Respondent-Appellee.
Appeal from the United States Court of Appeals for Veterans Claims in 06-3514, Chief Judge William P. Greene, Jr.
___________________________
DECIDED: January 7, 2010
___________________________
Before MICHEL, Chief Judge, BRYSON, and DYK, Circuit Judges.
PER CURIAM.
Gerald F. Warren (“Warren”) appeals the decision of the United States Court of Appeals for Veterans Claims (“Veterans Court”) affirming a decision of the Board of Veterans’ Appeals (“Board”). The Board denied an earlier effective date for the award of a 100% disability rating for post-traumatic stress disorder (“PTSD”). See Warren v. Shinseki, No. 06-3514, 2009 WL 1363087 (Vet. App. May 18, 2009). Warren presents no issues of statutory or constitutional interpretation that would confer jurisdiction on this court. Accordingly, the appeal must be dismissed.
BACKGROUND
Warren served in the United States Army from March 1969 to December 1970, including service in Vietnam. On August 29, 1985, Warren submitted his first claim before the Department of Veterans Affairs (“VA”) for service connection for PTSD. In December 1985, the VA regional office (“RO”) awarded him service connection for the PTSD and assigned him a 50% disability rating effective August 29, 1985, the date of his claim. Warren did not appeal this decision, and it became final. In August and December 1987, the RO decided to continue the previously assigned disability rating of 50% due to PTSD, and these decisions also became final after Warren did not appeal.
On May 23, 1990, the VA administered Warren a psychiatric examination and again found that it was appropriate to maintain the 50% rating. Warren submitted additional medical evidence, but in October 1991, the RO sustained the previously assigned rating. Warren appealed the RO’s decision, and in January 1997, after extensive procedural development, the VA increased his PTSD rating to 100%, effective May 23, 1990. Claiming that he was entitled to an April 1985 effective date for the 100% rating, Warren appealed to the Board.
The Board found that there was no legal basis for assigning an effective date for the 100% rating prior to May 23, 1990. Under 38 U.S.C. § 5110(a), the effective date of an award of increased disability compensation “shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor.” Thus, the Board found that because Warren did not appeal the 1985 and 1987 RO decisions establishing and maintaining his 50% disability rating, his eventual 100% rating could not be traced to those claims, and the effective date for an increased rating
2009-7126 2
could only be established by a later claim. The Board then determined that May 23, 1990, was the earliest date that could be construed as the date of the filing of an informal claim leading to the 100% rating, and upheld the RO’s decision. The Veterans Court affirmed the Board, concluding that its findings were not clearly erroneous. Warren now appeals from that decision.
DISCUSSION
This court’s jurisdiction to review decisions by the Veterans Court is limited. We “have exclusive jurisdiction to review and decide any challenge to the validity of any statute or regulation or any interpretation thereof [by the Veterans Court] . . . , and to interpret constitutional and statutory provisions, to the extent presented and necessary to a decision.” 38 U.S.C. § 7292(c). We lack the jurisdiction to review “(A) a challenge to a factual determination, or (B) a challenge to a law or regulation as applied to the facts of a particular case.” Id. § 7292(d)(2).
All of Warren’s arguments are ultimately directed to his claim that he is entitled to an earlier effective date for his 100% disability rating due to PTSD. A failure to appeal a VA determination bars a claim to an earlier effective date based on that unappealed determination. See Charles v. Shinseki, No. 2009-7024, 2009 WL 4257067, at *2-3 (Fed. Cir. Dec. 1, 2009). Alternatively, Warren claims that another submission (which was not the subject of the earlier VA decisions) constituted an informal claim. The Veterans Court evidently disagreed. The determination of whether a particular document satisfied the requirements for an informal claim is a question of fact. We lack jurisdiction to review such a determination. See Moody v. Principi, 360 F.3d 1306, 1310 (Fed. Cir. 2004). Warren also asserts that the VA failed to provide him with the
2009-7126 3 2009-7126 4
congressionally mandated “benefit of the doubt” under 38 U.S.C. § 5107(b) by not awarding him an earlier effective date. The Veterans Court found that under the circumstances of the case, the “approximate balance of positive and negative evidence” required to invoke the statute did not exist. See Warren, 2009 WL 1363087, at *3 (quoting 38 U.S.C. § 5107(b)). This too is a factual issue. Finally, Warren argues that the VA failed to follow through on its duty to assist him in developing his claim under 38 U.S.C. § 5103A(a)(1). The Veterans Court concluded that any alleged failure of the VA to comply with its duty to assist would not have resulted in an earlier effective date for the 100% rating. Warren, 2009 WL 1363087, at *4. This is also a factual determination.
Warren presents additional arguments on appeal, alleging constitutional violations resulting from alleged VA wrongdoing. These arguments are not sufficiently colorable to grant this court jurisdiction. See Helfer v. West, 174 F.3d 1332, 1335 (Fed. Cir. 1999).
Because none of Warren’s claims falls within our jurisdiction, we dismiss the appeal for lack of jurisdiction.
COSTS
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