Sunday, February 28, 2010

VR&E Claim Regulations, Wing v. West, No. 96-94,

Wing v. West is one of the best decision for VR&E claims.

38 C.F.R. § 19.7(a) (2006) BVA is required to review the entire record (a). Decisions of the Board are based on a review of the entire record.

38 C.F.R. § 19.7 (b) (2006) the BVA is required to issue a decision that includes “separately stated findings of fact and conclusions of law on all material issues of fact and law presented on the record, the reasons or bases for those findings and conclusions, and an order granting or denying the benefit of benefits sought on appeal or dismissing the appeal.”

38 C.F.R. § 20.800, "an appellant may submit additional evidence, or information as to the availability of additional evidence, after initiating an appeal."; EF v. Derwinski, 1 Vet.App. 324, 326 (1991); and Myers v. Derwinski, 1 Vet.App. 127, 129-30 (1991)

§ 21.50(e) the steps necessary to resume the initial evaluation

§ 21.59 right to administrative review. "the veteran or an accredited representative, on his or her behalf, may request administrative review by Central Office prior to filing an appeal to BVA."

§ 21.180-.198 what change in status had been made

§ 21.180(d), 21.420 what notification of any such change he had received. "(d) Informing the veteran. The veteran will be informed in writing of changes in case status by VA which affect his or her receipt of benefits and services under Chapter 31. The letter to the veteran will include the reason for the change of case status, and other information required under provisions of §21.420."

§ 21.198(b)(1), (7) the applicability of special review and any actions taken under that provision " (i) A case in applicant status; (ii) A case in evaluation and planning status; (vii) A case in interrupted status;"

§ 21.240(a) A Chapter 31 participant shall be furnished medical treatment, care and services

§ 21.240(b) Scope of services. The services which may be furnished under Chapter 31 include the treatment, care and services described in part 17 of this title.

§ 21.240(c) Eligibility. A veteran is eligible for the services described in paragraph (b) of this section during periods in which he or she is considered a Chapter 31 participant. These periods include: (1) Initial evaluation

§ 21.362(b) informed of his responsibility for satisfactory conduct and cooperation

§ 21.364(a) what reasonable counseling efforts have been made

§ 21.364(b) When the case manager determines that the veteran's conduct and/or cooperation are not in conformity with provisions of §21.362(c), the case manager will:
(3) Interrupt the program to allow for more intense efforts, ... due to Mitigating circumstances include:
(i) The effects of the veteran's service and nonservice-connected condition;
(ii) Family or financial problems which have led the veteran to unsatisfactory conduct or cooperation; or
(iii) Other circumstances beyond the veteran's control.

§ 21.420 requires that notice and opportunity for hearing be given to claimant before an adverse action is taken. "(d) Prior notification of adverse action. VA shall give the veteran a period of at least 30 days to indicate his or her disagreement with an adverse action ""if the veteran disagrees, he or she shall be given the opportunity, before appealing the adverse action as provided in §21.59 of this part, to:
(1) Meet informally with a representative of VA;
(2) Review the basis for VA decision, including any relevant written documents or material; and
(3) Submit to VA any material which he or she may have relevant to the decision."

§ 3.103(b)(2): Advance notice and opportunity for hearing. Except as otherwise provided in paragraph (b)(3) of this section, no award of
compensation . . . shall be terminated, reduced or otherwise adversely
affected unless the beneficiary has been notified of such adverse action
and has been provided a period of 60 days in which to submit evidence
for the purpose of showing that the adverse action should not be taken.

§ 3.103(f) "(f) Notification of decisions. The claimant or beneficiary and his or her representative will be notified in writing of decisions affecting the payment of benefits or granting relief. All notifications will advise the claimant of the reason for the decision; the date the decision will be effective; the right to a hearing subject to paragraph (c) of this section; the right to initiate an appeal by filing a Notice of Disagreement which will entitle the individual to a Statement of the Case for assistance in perfecting an appeal; and the periods in which an appeal must be initiated and perfected (See part 20 of this chapter, on appeals). Further, any notice that VA has denied a benefit sought will include a summary of the evidence considered."

§ 3.156(b) evidence received prior to the appellate decision if a timely appeal has been filed (including evidence received prior to an appellate decision and referred to the agency of original jurisdiction by the Board of Veterans Appeals without consideration in that decision in accordance with the provisions of §20.1304(b)(1) of this chapter), will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period."

§ 4.23 (1998), ("rating officers must not allow their personal feelings to intrude . . . [and f]airness and courtesy must at all times be shown to applicants").

§ 3104(a) (1994) Ratings decisions by the DVA are deemed "final and binding ... as to conclusions based on the evidence on file at the time the [DVA] issues written notification of the decision."


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UNITED STATES COURT OF VETERANS APPEALS
No. 96-94
Daniel M. Wing, Appellant,
v.
Togo D. West, Jr.,
Acting Secretary of Veterans Affairs, Appellee.
On Appeal from the Board of Veterans' Appeals
(Decided February 25, 1998 )
Daniel M. Wing, pro se.

Mary Lou Keener, General Counsel; Ron Garvin, Assistant General Counsel; and David W. Engel, Deputy Assistant General Counsel, were on the brief for the appellee.
Before NEBEKER, Chief Judge, and KRAMER and IVERS, Judges.
KRAMER, Judge: The appellant, Daniel M. Wing, appeals an October 12, 1995, decision of the Board of Veterans' Appeals (BVA or Board) denying entitlement to vocational rehabilitation training pursuant to chapter 31 of title 38, United States Code. Record (R.) at 4-17. This appeal is timely, and the Court has jurisdiction pursuant to 38 U.S.C. 7252(a). For the reasons that follow, the Court will vacate the decision of the BVA and remand the matter for further proceedings.

I. RELEVANT BACKGROUND
The appellant served on active duty as an officer in the U.S. Air Force from July 1979 to July 1987. R. at 22. In May 1989, a VA regional office (RO) granted service connection for a movement disorder with multiple somatic complaints. R. at 88-90. The RO assigned a 100% disability rating for the movement disorder, effective July 21, 1987. R. at 84. In July 1989, the appellant applied for vocational rehabilitation benefits to assist him "in obtaining a doctorate's degree in optometry, with a minor in pharmacy." R. at 92. In evaluating his claim, the VA counseling psychologist assigned to the appellant opined that because of the appellant's advanced degrees, experience, and basic skills, additional training was not necessary in order for the appellant to obtain suitable employment. R. at 108. In a December 1989 discussion, the appellant and his designated VA counseling psychologist discussed the appellant's ability to perform his then current job as a college and education programs counselor at Fort Drum. R. at 110 . During this discussion the appellant declined to travel to Syracuse, New York, for an additional medical evaluation of his disability; to submit a position description of his job; and to submit records to support his claim that he could not adequately perform his current job, on the grounds he had not been employed long enough for such records to have been developed; and declined assistance seeking new employment. R. at 110, 126- 27. The RO denied the appellant's claim in January 1990 (R. at 112), and the appellant filed a Notice of Disagreement (R. at 125). The appellant testified before the Board in September 1991. R. at 189. In November 1991, the Board remanded his claim for aptitude and psychological testing as well as a psychiatric examination. R. at 216. The Board's decision instructed that if the claim could not be granted following the completion of these developments, it should be returned to the BVA for further appellate consideration. Id.
Upon remand, the RO sent the appellant a one-page letter stating, The Board has determined that additional testing services be offered to you to evaluate your vocational situation. It was recommended that areas of consideration be a psychiatric evaluation, aptitude testing and psychological evaluations. Additional information concerning your current situation as well as a position description from your previous job at Fort Drum should be included.
R. at 219 (emphasis added). The letter gave the appellant the choice of checking one of these two statements: "I do wish to have additional evaluation procedures and provide the additional information requested" or " I do not wish to take part in the evaluations and request that my case be returned to the [BVA]." Id. Upon receipt of this letter, the appellant checked the line indicating that he wanted his claim returned to the BVA for further adjudication, and he returned the letter to the RO. R. at 256 . The RO then returned the case to the BVA. R. at 287. In an October 12, 1995, decision, the Board determined that the appellant had not met the criteria for chapter 31 vocational rehabilitation training and that VA was not required to provide the appellant with any further assistance because his failure to undergo the offered testing constituted lack of cooperation. R. at 5. The decision of the Board included the following statement:
The Board recognizes the veteran's argument that his counseling psychologist failed to provide detailed information regarding the requested examinations. However, it must be emphasized that in the Board's November 1991 remand, it was specifically indicated that aptitude tests and psychiatric examination were necessary for the purpose of determining the veteran's eligibility for Chapter 31 benefits, as well as the feasibility regarding completion of his vocational goals. The Board notes that the veteran has declined to cooperate, and thus further services were appropriately declined.
R. at 16.

II. ANALYSIS
A. Relevant Regulations
Three "basic requirements" for eligibility for chapter 31 vocational rehabilitation training are set out in 38 C.F.R. 21.1(b) (1997). The first requirement is that of a basic entitlement to services under 38 C.F. R. 21.40 (1997). Section 21.40 requires that the veteran have both a qualifying service-connected disability (38 C.F.R. 21.40(a)) and an employment handicap (38 C.F.R. 21.40(b)). Under 21.40(a), the qualifying service-connected disability requirement is satisfied by "a service-connected disability of 20 percent or more which is . . . compensable under 38 U.S.C. chapter 11." 38 C.F.R. 21.40(a)(1). An employment handicap is "an impairment of the veteran's ability to prepare for, obtain, or retain employment consistent with the veteran's abilities, aptitudes, and interests." 38 C.F.R. 21.51(b) (1997). "The veteran's service-connected disability need not be the sole or primary cause of the employment handicap but it must materially contribute to the impairment." 38 C.F.R. 21.51(c)(2). The second requirement under 21.1(b) is that the services necessary for training and rehabilitation must be identified by VA and the veteran. 38 C.F.R. 21.1(b)(2). The third requirement is that VA and the veteran must develop a written plan describing the veteran's employment goals and the program through which those goals will be achieved. 38 C.F.R. 21.1(b)(3).
A veteran seeking chapter 31 vocational rehabilitation training will be assigned a specific case status. See 38 C.F.R. 21.180(a) (1997). The initial case status is "applicant" status. Once the existence of a qualifying service connected disability is established under 21.40(a), an "initial evaluation" is scheduled. 38 C.F.R. 21.50(a) (1997). If the veteran attends the appointment for an initial evaluation the veteran progresses to "evaluation and planning status." See 38 C.F.R. 21.180(e)(1)-(4). During evaluation and planning status, it is determined whether the veteran has an employment handicap under 21.40(b) and whether achievement of a vocational goal is feasible. See 38 C.F.R. 21.184(a)( 1), 21.50 (1997). When a decision concerning achievement of a vocational goal cannot be made during the initial evaluation, 38 C.F.R. 21.57 (1997) provides for an extended evaluation, and the veteran's case may be assigned to "extended evaluation status." 38 C.F.R. 21.57(a), see 38 C. F.R. 21.188 (1997) (outlining the procedures for moving an applicant from "evaluation and planning" status to "extended evaluation" status). Both 21.50 and 21.57 are contained in part 21, subpart A, title 38, Code of Federal Regulations, under a subheading "Initial and Extended Evaluations."
Section 21.50(e) states:
The purpose of the initial evaluation and the steps in the process shall be explained to the veteran and his or her cooperation requested. If the veteran does not cooperate in the initiation or completion of the initial evaluation the counseling psychologist shall make a reasonable effort through counseling to secure the veteran's cooperation. If the veteran's cooperation cannot be secured, the counseling psychologist shall suspend the initial evaluation until such time as the veteran cooperates. The veteran will be informed of any suspension of the initial evaluation, the reasons for this action, and the steps necessary to resume the evaluation.
38 C.F.R. 21.50(e) (emphasis added). Additionally, 21.184(c)(2)(iii) allows for termination of evaluation and planning status if the veteran fails to cooperate. Although 21.57 does not contain a specific provision concerning the veteran's cooperation, 21.188(d)(i)-(iii) allows for termination of extended evaluation status in the event the veteran fails to participate in an extended evaluation.
A subheading of Part 21, subpart A, of 38 C.F.R. entitled "Conduct and Cooperation," includes two especially pertinent sections: 38 C.F.R. 21.362 (1997) states, "(b) VA responsibility. VA shall make a reasonable effort to inform the veteran and assure his understanding of . . . [t]he specific responsibilities of the veteran in the process of developing and implementing a program of rehabilitation services, especially the specific responsibility for satisfactory conduct and cooperation" (38 C.F.R. 21. 362(b), (b)(3)); and 38 C.F.R. 21.364 (1997) provides that "[i]f VA determines that a veteran has failed to maintain satisfactory conduct or cooperation, VA may, after determining that all reasonable counseling efforts have been made and are found not reasonably
likely to be effective, discontinue services and assistance to the veteran." (38 C.F.R. 21.364(a) (emphasis added)). See McRae v. Brown, 9 Vet.App. 229, 233-34 (1996).
If a veteran fails to comply with the "Conduct and Cooperation" provisions, the veteran may be moved from "evaluation and planning" status or "extended evaluation" status to, first, "interrupted" status with suspension of services, and then to "discontinued" status where services to the veteran may be terminated. See 38 C.F.R. 21.197-.198 (1997). This process also applies to decisions to suspend services under 21.50(e) supra. See 38 C.F.R. 21.197(b)(1). "The purpose of assignment to interrupted status is to assure that all appropriate actions have been taken to help the veteran continue in his or her program before discontinuing benefits and services." Id. (emphasis in original). If a veteran has a service-connected disability rated 50% or more disabling, then before the veteran can be placed on "discontinued" status, the vocational rehabilitation and counseling officer must conduct a "special review" of the proposed discontinuance action. 38 C.F.R. 21.198(b)(7). Finally, whenever a veteran's status is changed, the veteran must be fully informed of that fact by a letter that states the reasons for the change in status (38 C.F.R. 21.180(d)), and be afforded prior notification of any adverse action (38 C.F.R. 21.420(d) (1997)).

B. The Board's Decision
It is not contested that the appellant has a qualifying service- connected disability. R. at 7. It appears that the appellant was in the process of an initial evaluation to determine whether he fulfilled the remaining basic requirements when his cooperation first became an issue in December 1989. R. at 8. It is not clear whether the appellant had " evaluation and planning" or "extended evaluation" status at the time his cooperation was requested after the 1991 remand. The Board found, based on the information gathered prior to December 1989, that the appellant did not have an employment handicap because there was no showing that he was unable to "obtain employment consistent with the veteran's abilities, aptitudes, and interests" under 38 C.F.R. 21.51(b). R. at 16. It was also noted that the feasibility of the appellant's choice of optometry was questionable. R. at 15. Therefore, the BVA determined that the veteran did not qualify for vocational rehabilitation training. R. at 8. The Board further found that the appellant's conduct in declining the testing offered to him after the 1991 remand constituted lack of cooperation, and that further services were appropriately declined. R. at 16. The Board's 1995 decision cites to 38 C.F.R. 21.50, 21.362, and 21. 364 as the bases for discontinuing services to the veteran because of his lack of cooperation. R. at 8, 15. However, the Board may not apply regulations piecemeal. See Ridings v. Brown, 6 Vet.App. 544, 546 (1994) ( remanded for BVA failure "to discuss, or provide reasons or bases for not discussing, all of the elements to be considered . . . pursuant to 38 C.F. R. 1.965(a)"); Austin v. Brown, 6 Vet.App. 547, 552 (1994) (finding that where BVA failed to apply facially applicable regulations, or to give reasons or bases explaining why such regulations were not applicable, its decision on appeal must be set aside); Fugere v. Derwinski, 1 Vet.App. 103, 108 (1990) (BVA is not free to ignore VA's duly promulgated regulations). Furthermore, 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). In its statement of reasons and bases for its findings and conclusion in this case, the Board devotes only one sentence to addressing whether the provisions of 21.50, 21.362, and 2.364 regarding VA's duties to inform and counsel have been followed. That sentence suggests merely that a close reading of the 1991 BVA remand should have informed the appellant of the necessity of further testing. R. at 16.
Subsequent to its 1991 remand, the BVA failed to address the following: what explanation of the purpose of the initial evaluation was provided to the appellant and how the appellant was informed of any suspension of the initial evaluation, the reasons for the suspension, and the steps necessary to resume the initial evaluation (38 C.F.R. 21.50(e )); how the appellant was informed of his responsibility for satisfactory conduct and cooperation (38 C.F.R. 21.362(b)); what reasonable counseling efforts have been made (38 C.F.R. 21.364(a)); what change in status had been made (38 C.F.R. 21.180-.198); what notification of any such change he had received (38 C.F.R. 21.180(d), 21.420); and the applicability of special review and any actions taken under that provision ( 38 C.F.R. 21.198(b)(7)).
In light of the foregoing, the Board's decision that VA appropriately declined further services to the appellant was error. Cf. McRae, 9 Vet. App. at 234 (holding that discontinuation of services under chapter 31 was appropriate where veteran had been notified of need to cooperate and consequences of not cooperating, several personal contacts had been made, and veteran was given opportunities to participate in counseling designed to secure his cooperation).

III. CONCLUSION
The October 12, 1995, BVA decision is VACATED and the matter is REMANDED to the Board for further proceedings consistent with this opinion . On remand the Board should proceed expeditiously to make determinations with an adequate statement of reasons or bases as to what status the appellant's claim has been assigned under 21.180-.198 and whether VA has complied with all applicable regulations regarding status changes and declination of services. See Veterans' Benefits Improvements Act, Pub. L. No. 103-446, 302, 108 Stat. 4645, 4658 (1994) (found at 38 U.S.C. 5101 note) (requiring Secretary to provide for "expeditious treatment" for claims remanded by BVA or the Court); Allday, 7 Vet.App. at 533-34.

Saturday, February 27, 2010

Citizens for Responsibility and Ethics File Lawsuit Against VA, over Destroyed Documents

Full Article at: CREW Files Lawsuit, Alleges the VA Underreported Number of PTSD Cases

Friday 26 February 2010
by: Mary Susan Littlepage, t r u t h o u t | Report


"The Citizens for Responsibility and Ethics in Washington (CREW) filed a lawsuit against the Department of Veteran Affairs (VA) after the VA admitted to destroying documents responding to CREW's May 2008 Freedom of Information (FOIA) request. CREW's FOIA request called for documents related to the VA's policy of underdiagnosing post-traumatic stress disorder (PTSD).

CREW learned of the underdiagnosing of PTSD after learning of an email in which VA employee Norma Perez discussed the policy. According to CREW, the VA has resisted providing any documents; it stated that the VA claimed it had produced everything it had, even though it hasn't turned over the Perez email or any other records referring to the email.

Therefore, CREW has argued that the VA's search for documents has been inadequate, and the VA has argued that it destroyed in 2008 many emails and backup tapes, which included the Perez email. The VA has contended that it cannot produce any emails before December 9, 2008."

Friday, February 26, 2010

Vocational Rehabilitation Success Rate 18%, VAOIG

Voc Rehab:
"The VA claims it successfully rehabilitates 75 percent of the veterans admitted to the system."

"But by not counting the veterans, like Smith and Frazier, who apply but don't get into the program, the VA is overstating its success. Two years ago, the VA's Inspector General said if every veteran who applied was counted, that success rate could be as low as 18 percent."

GAO Report, PDF 48 pages

Full Article at: Wounded Veterans' New Fight: The VA

By Wyatt Andrews

(CBS) Former Army medic Jeremy Smith was wounded and paralyzed in Afghanistan. Clearly qualified for both medical and pension benefits, Smith was surprised when a Veteran's Affairs counselor told him he wasn't disabled enough for vocational benefits.

"How can I not be disabled enough? How much more disabled do I need to be," Smith asked. "Should I go throw myself under a bus real quick?"

Brandon Frazier has a similar story. A veteran of the 2004 Marine assault on Fallujah, Brandon suffered hearing loss and Post Traumatic Stress Disorder, PTSD.

But as CBS News correspondent Wyatt Andrews reports, a VA counselor wrongly told him the VA would not help disabled vets study pre-law.

"It didn't seem like he was in there to find a way to help me. He was there to tell me I couldn't," Frazier said.

"Looking for a way to turn you down," Andrews asked?

"Right," he replied.

Then there is Kenny Lyon. A Marine sergeant, whose miraculous battlefield rescue in Iraq - and 2 year fight to recover - was profiled on "60 Minutes."

60 Minutes: A Fighting Chance

Lyon had to fight the VA for five months - but after being finally told he would get vocational benefits to study at Gettysburg College, the VA called to say stop.

"I was on my way to classes and I got a phone call saying it was not approved," Lyon said.

"You weren't getting the tuition," Andrews asked.

"Yes," Lyon replied.

The VA benefits these veterans requested are from a program called Vocational Rehabilitation and Employment, or Voc Rehab benefits. Separate from the GI Bill, Voc Rehab helps disabled vets get whatever training they need to live on their own or get a job. When it works, which is most of the time, Voc Rehab services range from sign language lessons to technical classes to Harvard Law School.

But in a two-month investigation, CBS News found story after story of veterans who were wrongly denied benefits, veterans who even under the complex rules, should have qualified.

"It makes me question everything I've done," Smith said. "Was it right, was it worth it?"

Voc Rehab does serve more than 100,000 disabled veterans. But in the last two years, the number of new applicants soared - up 28 percent - to more than 78,000 last year alone. The VA claims it successfully rehabilitates 75 percent of the veterans admitted to the system.

"This is an excellent program," said Ruth Fanning, the program's director.

"Is 75 percent good enough," Andrews asked.

"Seventy-five percent is a good number for rehabilitation programs and it represents veterans who have completed the program," Fanning replied.

But by not counting the veterans, like Smith and Frazier, who apply but don't get into the program, the VA is overstating its success. Two years ago, the VA's Inspector General said if every veteran who applied was counted, that success rate could be as low as 18 percent."

VA to ReOpen Gulf War Vet's Claims

VA is promising "plans to review how regulations were written to ensure the veterans received the compensation they were entitled to under the law. The VA would then give veterans the opportunity to have a rejected claim reconsidered."

So veterans now is the time to start putting together your claims, I'd suggest that since you were previously denied that you ask if you are therefore able to retain an attorney from the start, if so, then definitely retain an attorney.

It will be interesting to see how they go about this, what the written guidelines are and more importantly how the RO's interpret and apply these guidelines. Remember the ROs consistently failed, according to their own admission, to correctly apply the VCAA two years after it was law.

Full Article at:
VA to reopen Gulf War vets' files


By KIMBERLY HEFLING, Associated Press Writer Kimberly Hefling, Associated Press

WASHINGTON – "The Veterans Affairs Department says it will take a second look at the disability claims of what could be thousands of Gulf War veterans suffering from illnesses they blame on their war service, the first step toward potentially compensating them nearly two decades after the war ended.

VA Secretary Eric Shinseki said the decision is part of a "fresh, bold look" his department is taking to help veterans who have what's commonly called "Gulf War illness" and have long felt the government did little to help them. The VA says it also plans to improve training for medical staff who work with Gulf War vets, to make sure they do not simply tell vets that their symptoms are imaginary — as has happened to many over the years.

"I'm hoping they'll be enthused by the fact that this ... challenges all the assumptions that have been there for 20 years," Shinseki told The Associated Press in an interview.

The changes reflect a significant shift in how the VA may ultimately care for some 700,000 veterans who served in the Gulf War. They also could improve the way the department handles war-related illnesses suffered by future veterans, because Shinseki said he wants standards put in place that don't leave veterans waiting decades for answers to what ails them.

Steve Robertson, legislative director of the American Legion and a Gulf War veteran who has struggled with his own health issues such as joint problems and chronic fatigue, said Friday the decision is welcome news.

"I can assure that there are Gulf War veterans who have been fighting this issue since 1991-92," Robertson said. "The ones I've talked to are very, very upset that they've had to fight this battle."

Robertson said many veterans couldn't work because of health problems, but couldn't get medical help from the government because they couldn't prove their illnesses stemmed from their war service.

"If you had an invisible wound it was kind of like come back when you have hard evidence that you got it in the theater of operation," Robertson said.

The decision comes four months after Shinseki opened the door for as many as 200,000 Vietnam veterans to receive service-related compensation for three illnesses stemming from exposure to the Agent Orange herbicide.

About 175,000 to 210,000 Gulf War veterans have come down with a pattern of symptoms that include rashes, joint and muscle pain, sleep issues and gastrointestinal problems, according to a 2008 congressionally mandated committee that based the estimate on earlier studies.

But what exactly caused the symptoms has long been unanswered. Independent scientists have pointed to pesticide and pyridostigmine bromide pills, given to protect troops from nerve agents, as probable culprits. The 2008 report noted that since 1994, $340 million has been spent on government research into the illness, but little has focused on treatments.

Last week, Shinseki and Sen. Jay Rockefeller, D-W.Va., a member of the Senate Veterans' Affairs committee, met privately in Charleston, W.Va., with several Gulf War veterans. In an interview after the meeting, Rockefeller told the AP that Shinseki's background as a former Army chief of staff made the changes possible. He said either the military has been reluctant over the years to release paperwork related to the war or kept poor records about exposures in the war zone, which made it harder for the veterans to prove they needed help.

"The paperwork isn't very accurate, but the pain is very real," Rockefeller said.

Shinseki has publicly wondered why today there are still so many unanswered questions about Gulf War illness, as stricken veterans' conditions have only worsened with age.

Last fall, he appointed a task force led by his chief of staff, John Gingrich, a retired Army colonel who commanded a field artillery battalion in the 1991 war, to review benefits and care for Gulf War veterans. The changes stem from the task force's work.

Gingrich said he feels a personal stake because some of his own men who were healthy during the war are dealing with these health problems. Gingrich said the VA isn't giving a new benefit to Gulf War veterans, just making sure the claims they submitted were done correctly.

"We're talking about a culture change, that we don't have a single clinician or benefits person saying 'you really don't have Gulf War illness, this is only imaginary' or 'you're really not sick,'" Gingrich said.

A law enacted in 1994 allows the VA to pay compensation to Gulf War veterans with certain chronic disabilities from illnesses the VA could not diagnosis. More than 3,400 Gulf War have qualified for benefits under this category, according to the VA.

The VA says it plans to review how regulations were written to ensure the veterans received the compensation they were entitled to under the law. The VA would then give veterans the opportunity to have a rejected claim reconsidered.

The VA doesn't have an estimate of the number of veterans who may be affected, but it could be in the thousands.

Of those who deployed in the Gulf War, 300,000 submitted claims, according to the VA. About 14 percent were rejected, while the rest received compensation for at least one condition."

Thursday, February 25, 2010

San Diego-VA Hospital Reports that 46% Returning Combat Veterans Coming Home Hurt

Full Article at: I-Team Investigates Rise In Military Drug Addiction
Lauren Reynolds
10News I-Team Reporter


SAN DIEGO -- "Roadside bombs, sniper fire and IEDs in Afghanistan and Iraq are sometimes deadly. Other times they are simply devastating.

Troops that survive those attacks are coming home missing limbs or have shrapnel stuck in their bodies. The numbers of injuries are high, according to the San Diego VA hospital, which reports that 46 percent of combat veterans are coming home from war hurt."

Wednesday, February 24, 2010

Misuse and Abuse at VA Central Office

VAOIG, Administrative Investigation Abuse of Authority, Misuse of Position and Resources, Acceptance of Gratuities, & Interference with an OIG Investigation National Programs & Special Events, Report Number 09-01492-83, 2/5/2010

The link is to a PDF file with the VAOIG website which is 45 pages.

Summary
We substantiated that Ms. Diane Hartmann, Director of National Programs & Special Events (NPSE), Office of Public and Intergovernmental Affairs (OPIA), misused official time and travel; failed to properly record compensatory time for her subordinates; and improperly used hundreds of hours of unauthorized compensatory leave herself. We also substantiated that Ms. Hartmann interfered with an Office of Inspector General (OIG) investigation when she destroyed evidence, allowed a subordinate to destroy evidence, made a false theft report, and allowed a subordinate to file an erroneous theft report. Further, we found that after OIG officially notified Ms. Hartmann of the investigation, she attempted to have a subordinate destroy emails, asked a second to withhold material information, and tried to coerce a third by threatening exposure of a personal indiscretion from many years earlier. We further substantiated that Ms. Hartmann accepted, and allowed a subordinate to accept, gratuities valued in excess of $20 from a prohibited source, and that she circumvented acquisition requirements by repetitively splitting a recurring contract for photography services.
In addition, we substantiated that , misused his official time and travel, interfered with an OIG investigation, made false statements to us while under oath, and misused his VA computer systems for improper activities; that , interfered with an OIG investigation and intentionally made false statements to us while under oath; and that destroyed evidence. We also substantiated that Mr. Daniel C. Devine, Special Assistant to the Acting Under Secretary for Health, formerly the Acting Assistant Secretary for Congressional and Legislative Affairs, interfered with an OIG investigation when he improperly informed Ms. Hartmann that she was under investigation and when he intentionally made false statements to us while under oath."

Time Limits for Appeals Injuries Against Gov., Jones v. U.S.

Time Limits for Filing Claims Against Government
"Jones alleges that the first two surgeries — which took place in January 2000 — were incompetently performed. Accordingly, the Government contends — as it did below — that Jones' limitations period began to run in January 2000. See Miller, 463 F.3d at 271 (limitations period begins to run when cause of action accrues). Although the Magistrate Judge appeared to agree, treating Jones as generously as she could, she ruled that March 9, 2001 — the date of the third surgery — was the latest date that the limitations period could have begun to run. Jones, 2008 U.S. Dist. LEXIS 94469 at *8. Thus she ruled that because Jones was obligated to present his negligence claim no later than March 9, 2003, the VA's receipt of the claim on June 2, 2003 was outside the limitations period. Id. at *13."
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Leagle, Inc.

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JONES v. U.S.

HELYN M. JONES,[ 1 ] Administrator of Estate of David E. Jones, Appellant,
v.
UNITED STATES OF AMERICA.

No. 08-4882.

United States Court of Appeals, Third Circuit.

Submitted Pursuant to Third Circuit LAR 34.1(a) January 29, 2010.

Filed: February 23, 2010.

Before: FUENTES and FISHER, Circuit Judges, and DIAMOND,[ 2 ] District Judge.
NOT PRECEDENTIAL
OPINION OF THE COURT

DIAMOND, District Judge.

David E. Jones appeals from the District Court's grant of summary judgment, dismissing as time-barred his negligence action against the United States. For the reasons that follow, we will affirm.
I.

Because we write primarily for the Parties, we will recite only those facts pertinent to our analysis.

Jones, a Korean War veteran, had outpatient surgery to repair a protruding umbilical hernia on January 11, 2000 at the Wilmington Veterans Administration Medical Center (VAMC). (App. 91.) He was admitted to the VAMC for observation after the surgery, and discharged the next day. (Id.) On January 13, 2000, Jones experienced severe complications. He was admitted to the VAMC emergency room and underwent exploratory abdominal surgery. (Id.) He remained in intensive care at the hospital until January 21, 2000. (Id.) After his discharge, Jones experienced additional post-operative complications. He underwent a third surgery at the VAMC in March 2001 to correct a ventral hernia. (Id.)

Jones contends that the VMAC perform ed the first two surgeries incompetently. He alleges that the procedures left him unable to perform his job as a truck driver, and that he experiences constant pain and has difficulty controlling his bowels.

Jones sought assistance from the Vietnam Veterans of America, a Congressionally-chartered organization that helps veterans prepare and file claims with the federal government. Pursuant to a power of attorney, Vietnam Veterans sent a letter to the Department of Veterans Affairs on March 13, 2000, stating that Jones "wishes to open a claim for service connected disability for complications from operation received at Wilmington VA Hospital for hernia operation, and scars." (App. 25.) The letter did not include any allegations of negligence. On March 15, 2000, the VA responded in a letter that it was "working on [Jones'] claim," but had not received Form 21-526, required from those seeking disability benefits. (App. 28.)

Vietnam Veterans returned a completed, but unsigned, Form 21-526 to the VA on December 18, 2000. On that part of the form asking the applicant to state the "nature of sickness, disease or injuries for which this claim is made and date each began," Jones wrote "s/c [service-connected] disability for complications from operation received at VAMC, Wilmington for hernia operation and scars." (App. 29.) In its January 16, 2001 letter, the VA acknowledged receiving Jones' disability claim. (App. 34.) Over the next year, the VA sent Jones a series of letters requesting more information, including the exact definition or nature of his disability, a signed Form 21-526, a list of physicians who treated him, and "evidence of current additional disability due to the [hernia] treatment." (App. 34, 37, 40, 41, 52.) Because Jones is illiterate, he was assisted by his daughter and the Vietnam Veterans. Because Jones failed to respond to many of the requests, the VA denied his application on March 22, 2002. (App. 72-74.) The decision became final on March 22, 2003 when Jones failed to appeal.

Jones testified that he learned of his right to file a lawsuit under the Federal Tort Claims Act when he consulted a lawyer in May 2003. See 28 U.S.C. § 1346. With the help of the Veterans Assistance Program at Widener Law School, Jones wrote to the VA that he was now alleging medical malpractice and enclosed the required SF-95 form and a claim for money damages in a sum certain. (App. 63.) The VA received the form on June 2, 2003. Jones v. United States, 2008 U.S. Dist. LEXIS 94469, at *5 (D. Del. Nov. 20, 2008).

Jones also continued to pursue disability benefits, moving to reopen his claim on August 19, 2003. (App. 82.) He appealed the VA's disability decision to the Board of Veterans' Appeals, which on October 26, 2006 remanded to the VA for reconsideration. (App. 138.) On September 24, 2007, the VA granted Jones' claim, assigned him a sixty percent disability rating, and awarded him benefits retroactive to August 19, 2003. (App. 158.)

On November 20, 2007, Jones brought the instant FTCA suit against the United States, alleging negligent medical practice, lack of informed consent, and battery. The Parties consented to have the case decided by a Magistrate Judge, who granted the Government's motion for summary judgment, ruling that Jones' action was time-barred. Jones, 2008 U.S. Dist. LEXIS 94469, at *19.
II.

The District Court had subject-matter jurisdiction under the FTCA, 28 U.S.C. § 1346(b), and we exercise jurisdiction under 28 U.S.C. § 1291.
III.

We exercise plenary review over a District Court's grant of summary judgment and apply the same test applied by the District Court. Saldana v. Kmart Corp., 260 F.3d 228, 231 (3d Cir. 2001). Summary judgment is appropriate when the "pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
IV.

An FTCA claim for negligence against the Government must be presented to the appropriate federal agency "within two years after such claim accrues." 28 U.S.C. § 2401. The claim accrues "when a plaintiff knows of both the existence and the cause of his injury." Miller v. Phila. Geriatric Center, 463 F.3d 266, 272 (3d Cir. 2006). The claim is "presented" (thus tolling the running of the limitations period) when an executed SF-95 and a claim for money damages in a sum certain are received by the government agency. 28 C.F.R. § 14.2.

Jones alleges that the first two surgeries — which took place in January 2000 — were incompetently performed. Accordingly, the Government contends — as it did below — that Jones' limitations period began to run in January 2000. See Miller, 463 F.3d at 271 (limitations period begins to run when cause of action accrues). Although the Magistrate Judge appeared to agree, treating Jones as generously as she could, she ruled that March 9, 2001 — the date of the third surgery — was the latest date that the limitations period could have begun to run. Jones, 2008 U.S. Dist. LEXIS 94469 at *8. Thus she ruled that because Jones was obligated to present his negligence claim no later than March 9, 2003, the VA's receipt of the claim on June 2, 2003 was outside the limitations period. Id. at *13.

Jones concedes that he brought his claim more than two years after it accrued. As he did below, he contends here that his claim was not time-barred, however, because the running of the limitations period was equitably tolled.

Equitable tolling may apply to claims brought against the Government. See Irwin v. Dep't of Veteran Affairs, 498 U.S. 89, 93-96 (1990) (because federal statutes of limitation are not jurisdictional, "the same rebuttable presumption of equitable tolling applicable to suits against private defendants should also apply to suits against the United States"). In Hughes v. United States, we first held that in appropriate circumstances, equitable tolling could apply to claims brought under the FTCA. 263 F.3d 272, 278 (3d Cir. 2001). We have recently re-affirmed that holding. Santos v. United States, 559 F.3d 189, 197 (3d Cir. 2009) ("[W]e think that our holding in Hughes that there can be equitable tolling in suits under the FTCA remains good law. . .").

As we cautioned in Santos, however, "a plaintiff will not receive the benefit of equitable tolling unless she exercised due diligence in pursuing and preserving her claim" because "[t]he principles of equitable tolling . . . do not extend to `garden-variety claims of excusable neglect.'" Santos, 559 F.3d at 197 (citing Irwin, 498 U.S. at 96). The "remedy of equitable tolling is extraordinary, and we will extend it only sparingly." Hedges v. United States, 404 F.3d 744, 751 (3d Cir. 2005). We further noted in Santos that "it is especially appropriate to be restrictive with respect to extension of equitable tolling in cases involving the waiver of the sovereign immunity of the United States." Santos, 559 F.3d at 197 (citing United States v. Kubrick, 444 U.S. 111, 117-19 (1979)).

Equitable tolling may apply to FTCA claims in three instances:

(1) where the defendant has actively misled the plaintiff respecting the plaintiff's cause of action; (2) where the plaintiff in some extraordinary way has been prevented from asserting his or her rights; or (3) where the plaintiff has timely asserted his or her rights mistakenly in the wrong forum."

Hedges, 404 F.3d at 751(internal citations omitted). Jones contends that he has met all three of these requirements. We do not agree.

In Jones' view, the VA actively misled him by failing to advise him that he could pursue both a negligence action and a disability claim. He believes that the paperwork the VA sent him while investigating his disability claim "would lull any claimant into believing that his claim was adequately and appropriately being addressed." (Appellant's Br. at 16.)

The VA did not actively mislead Jones. To the contrary, the paperwork he acknowledges receiving indicates only that the VA sought to process Jones' disability claim. Although the VA was obligated to "develop the facts pertinent to [Jones'] claim," it was not required to advise Jones with respect to other legal remedies that might be available. See 38 C.F.R. § 3.103. In Hedges, we explicitly refused to hold that a government agency "has an affirmative duty to inform litigants, including pro se litigants, that they have viable judicial, as well as administrative remedies." Hedges, 404 F.3d at 752. We explained that "we are unwilling to place such a responsibility on the Government which has inquiries from millions of individuals each year." Id. Accordingly, Jones is not entitled to equitable tolling on this ground See also Lake v. Arnold, 232 F.3d 360, 367 (3d Cir. 2000) (plaintiff's mental disability and illiteracy did not warrant equitable tolling).

Jones also argues that his case is similar to Santos, where we applied equitable tolling after finding that Mercy Santos — who was six years old when she was allegedly subjected to negligent care — had been prevented from asserting her rights in "some extraordinary way." Santos, 559 F.3d at 203-04. The defendant agency in Santos was the York Health Corporation's pediatric clinic. Id. at 190. Although Ms. Santos and her counsel pursued her negligence claim diligently, counsel — who researched publicly available clinic records — was unable to learn that because the clinic received federal funds, it was a federal entity for FTCA purposes. Id. at 200-01. Counsel thus erroneously believed that a longer limitations period applied to Ms. Santos' claim when he belatedly filed her negligence claim in state court. Id. at 191. We found that in light of Ms. Santos' tender years, and because information disclosing the clinic's federal status was "if not covert, . . . at least oblique," Ms. Santos had been prevented from asserting her rights in an extraordinary way, thus triggering equitable tolling. Id. at 202.

Jones' effort to analogize his case to that of Ms. Santos is misplaced. As Jones well knew, the VMAC is a federal facility. Moreover, Jones was not diligent in pursuing his negligence claim. Rather, he waited almost three and a half years after sustaining injury to consult a lawyer. See Kubrick, 444 U.S. at 124 n.10 (plaintiff did not exercise "all reasonable diligence" in pursuing his tort claim because "he sought no advice within two years [after his injury] as to whether he had been legally wronged"). The record does not show — and Jones does not suggest — that the VA prevented him from consulting with counsel sooner. See Hedges, 404 F.3d at 746, 752. Accordingly, his decision to wait until May 2003 to seek legal advice does not demonstrate the diligence necessary to make this an extraordinary case warranting the extension of equitable tolling.

Jones also appears to suggest that he mistakenly asserted his rights in the wrong forum. He contends (without any further explanation) that he "did everything he could to prosecute his claim for malpractice yet ended up in the wrong forum." (Appellant's Br. at 18.) This is a puzzling remark, given that Jones brought his claims in the correct fora: (1) he properly sought disability benefits from the VA; (2) he properly (albeit belatedly) filed his SF-95 with the VA and later brought suit in the District Court. Accordingly, Jones cannot show that he raised "the precise statutory claim in issue but has mistakenly done so in the wrong forum." School Dist. of City of Allentown v. Marshall, 657 F.2d 16, 20 (3d Cir. 1981). Rather, he brought his FTCA claim in the correct forum after the claim was time-barred. Accordingly, the "wrong forum" equitable tolling requirement has not been met.

In sum, regardless of whether Jones was obligated to initiate his negligence claim by January 2002 or March 2003, it is evident that he acted outside the two-year limitations period. In the circumstances presented, we are constrained to conclude that Jones has presented a "garden-variety claim[] of excusable neglect," not an extraordinary circumstance that warrants equitable tolling. Santos, 559 F.3d at 197 (citing Irwin, 498 U.S. at 96). Because Jones' claim is thus time-barred, the Magistrate Judge correctly determined that the United States was "entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c).
V.

For the reasons discussed above, we will affirm the decision of the Magistrate Judge.
* Honorable Paul S. Diamond, United States District Judge for the Eastern District of Pennsylvania, sitting by designation.
* (Pursuant to FRAP 43(a)).

70% of the Time, VA's Position is Substantially Unjustified

This is really telling:
70 percent of the time the government's position is substantially unjustified?

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Chief Justice ROBERTS: "Well that's really startling, isn't it? In litigating with veterans, the government more often than not takes a position that is substantially unjustified?"

ROBERTS: So whenever it really makes a difference, 70 percent of the time the government's position is substantially unjustified?

YANG: In cases in the VA context, the number's not quite that large, but is a substantial number of cases at the court of appeals --

ROBERTS: What number would you accept?

YANG: It was, I believe in the order of either 50 or maybe slightly more than 50 percent. It might be 60. But the number is substantial that you get a reversal, and in almost all of those cases EAJA --
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Full Article at: Chief Justice 'Startled' by Government Errors in Veterans Cases

Marcia Coyle

The National Law Journal

February 24, 2010

When he was in private practice at Hogan & Hartson, Chief Justice John Roberts Jr. did not handle veterans' benefits claims. So, he understandably found "startling" information with which lawyers for veterans are only too familiar: In litigating with veterans, the government more often than not takes a position that is substantially unjustified.

In oral arguments Monday in Astrue v. Ratliff, an attorney fee case under the Equal Access to Justice Act, James Leach of Rapid City, S.D., told the Court that 42 percent of Social Security cases result in an EAJA attorney fee award.

"If it's 42 percent, that's quite a high number of cases in which the government's position is found substantially -- not substantially justified as well as legally erroneous," Leach said. "In veterans cases, it's even worse."

The U.S. Court of Appeals for Veterans Claims, which reports the number of EAJA awards granted annually, reported that for 2008 and 2009, 70 percent resulted in fee awards, Leach told the justices.

When Assistant to the Solicitor General Anthony Yang got up for his rebuttal in the case, Roberts interrupted him and the exchange went like this:

ROBERTS: Counsel do you -- do you dispute your friend's statement that 42 percent of the time in Social Security cases the government's position is unjustified, and 70 percent of the time in veterans' cases?

YANG: Well, I think that reflects the stakes often, Your Honor. Oftentimes the government does not contest, for instance, the $2,000 EAJA award and because it's the government, has to --

ROBERTS: So whenever it really makes a difference, 70 percent of the time the government's position is substantially unjustified?

YANG: In cases in the VA context, the number's not quite that large, but is a substantial number of cases at the court of appeals --

ROBERTS: What number would you accept?

YANG: It was, I believe in the order of either 50 or maybe slightly more than 50 percent. It might be 60. But the number is substantial that you get a reversal, and in almost all of those cases EAJA --

ROBERTS: Well that's really startling, isn't it? In litigating with veterans, the government more often than not takes a position that is substantially unjustified?

YANG: It is an unfortunate number, Your Honor. And it is -- it's accurate.

Bart Stichman, co-executive director of the National Veterans Legal Services Program, said he thinks the percentage is greater than the government’s number.

"That means the quality of decision-making at the Board of Veterans Appeals is not very good," he said. "We’ve been saying that for years. The number means not only did they wrongly decide the case but their position wasn’t substantially justified. Not too good."

Tuesday, February 23, 2010

Lay Evidence, Board Must Analyze It , Not Just List It

This is a Memorandum Decision but ti presents a Lay evidence argument that might be of value:

Mr. Giusto argues that the Board did not address the competency of the lay evidence, instead simply listing evidence rather than analyzing it. Here again, Mr. Giusto is correct.
In its decision, the Board never determined whether the lay testimony regarding diabetes mellitus and onychomycosis was credible or probative. The Board never stated whether it placed greater weight on one piece of evidence over another. Instead, the Board simply listed the evidence in the record.
This method of analysis is improper in light of Abernathy v. Principi,
where the Court vacated a Board decision that "merely listed evidence that it had considered in deciding [the]claim under the EVIDENCE section in its decision without discussing most of that evidence." 3 Vet.App. 461, 465
2


(1992). The Board likewise violated the Court's instructions in Gilbert v.
Derwinski, where the Court required the Board to "identify those findings that it deems crucial to its decision and account for the evidence which it finds to be persuasive or unpersuasive. These decisions must contain clear analysis and succinct but complete explanations." 1 Vet.App. at 57. Because the Board merely listed the evidence, without analyzing it, the Board did not provide an adequate statement of reasons and bases.

===============================================================

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 08-1501
LOUIS C. GIUSTO, APPELLANT,
v.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before DAVIS, Judge.

MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent.


DAVIS, Judge: U.S. Navy veteran Louis C. Giusto appeals through counsel
from a July 24,
2007, Board of Veterans' Appeals (Board) decision that denied service
connection for diabetes
mellitus, type II; hypertension; onychomycosis of the left fingernails and
both feet; and peripheral
neuropathy of the left and right lower extremities, to include as
secondary to diabetes mellitus, type
II. This Court has jurisdiction to review the Board's decision pursuant to
38 U.S.C. §§ 7252(a) and
7266(a). Single-judge disposition is appropriate. See Frankel v. Derwinski,
1 Vet.App. 23, 25-26
(1990). For the following reasons, the Court will set aside the Board's
July 24, 2007, decision and
remand all matters for further development and readjudication consistent
with this decision.

I. ANALYSIS
A. Reasons and Bases
Mr. Giusto first argues that the Board's statement of reasons and bases
for its decisions regarding his claims for diabetes mellitus and onychomycosis is inadequate.
The Board's decision must include a written statement of the reasons and bases for its findings and conclusions on all material issues of fact and law presented on the record. That statement must be adequate to enable an appellant to understand the precise basis for the Board's decision, and to facilitate informed


review in this Court. See 38 U.S.C. § 7104(d)(1); Allday v. Brown, 7 Vet.
App. 517, 527 (1995); Gilbert v. Derwinski, 1 Vet.App. 49, 57 (1990). To comply with this requirement, the Board must analyze the credibility and probative value of the evidence, account for the evidence it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Caluza v. Brown, 7 Vet.App. 498, 506 (1995), aff'd per curiam,
78 F.3d 604 (Fed. Cir. 1996) (table).
Mr. Giusto argues that the Board dismissed lay evidence because no other
evidence in the record supported it. In its decision, the Board stated:
The veteran has asserted that he was diagnosed with out of control blood
sugars just prior to service discharge and also that a physician told him that he had nail fungus, but there is no supporting evidence of either in the record. Without any other evidence of continuity of [symptomatology], the record does not support a finding that diabetes mellitus and onychomycosis are related to service.
Record (R.) at 9-10. While this analysis by the Board is somewhat unclear,
it likely runs afoul of the U.S. Court of Appeals for the Federal Circuit's (Federal Circuit) holding in Buchanan v.
Nicholson, where thecourt stated that "the Board cannot determine that
lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence." 451 F.3d 1331, 1337(Fed. Cir. 2006). The Board can consider the lack of contemporaneous medical records and weigh
it against a veteran's lay evidence, but "the lack of such records does
not, in and of itself, render lay evidence not credible." Id. at 1336. It appears that the Board dismissed the lay evidence simply because it was not corroborated by contemporaneous medical evidence, which is violative of Buchanan.
Simliarly, Mr. Giusto argues that the Board did not address the competency
of the lay evidence, instead simply listing evidence rather than analyzing it. Here again, Mr. Giusto is correct.
In its decision, the Board never determined whether the lay testimony regarding diabetes mellitus and onychomycosis was credible or probative. The Board never stated whether it placed greater weight on one piece of evidence over another. Instead, the Board simply listed the evidence in the record.
This method of analysis is improper in light of Abernathy v. Principi,
where the Court vacated a Board decision that "merely listed evidence that it had considered in deciding [the]claim under the EVIDENCE section in its decision without discussing most of that evidence." 3 Vet.App. 461, 465
2


(1992). The Board likewise violated the Court's instructions in Gilbert v.
Derwinski, where the Court required the Board to "identify those findings that it deems crucial to its decision and account for the evidence which it finds to be persuasive or unpersuasive. These decisions must contain clear analysis and succinct but complete explanations." 1 Vet.App. at 57. Because the Board merely listed the evidence, without analyzing it, the Board did not provide an adequate statement of reasons and bases.

Mr. Giusto further argues that the Board failed to address the competency
of his lay evidence because it found that Mr. Giusto was addressing the etiology of his diabetes. Mr. Giusto argues, however, that he was simply relating information conveyed to him by his treating physicians in 1955.
In his May 24, 2006, hearing before the Board, Mr. Giusto made statements
including the following: I was supposed to get released. They sent me to (inaudible) station, naval station, to be released from service, and I again took a medical [test] and they called me in and they said we can't discharge you because your blood sugars are too high and [The doctor said] did you serve in the Pacific at any time? I said yes, I did. I was in Korea, I was in Japan for three months, you know, and (inaudible). I was all over the place. And because he said that he saw my teeth, he said you know, that's why I asked you because a lot of guys that come from the Pacific end up with
this they call this fungus, you know. . . . I remember him asking me that, you know.
(R. at 37, 43, respectively). In Jandreau v. Nicholson, 492 F.3d 1372,
1377 (Fed. Cir. 2007), the Federal Circuit held: "Lay evidence can be competent and sufficient to establish a diagnosis of a condition when . . . the layperson is reporting a contemporaneous medical diagnosis." Therefore the Board should have analyzed the credibility and probative value of Mr. Giusto's statements regarding
what treating physicians told him regarding diabetes mellitus and nail
fungus in 1955.
Mr. Giusto's final argument pertaining to reasons and bases is that the
Board did not consider that nail fungus may be capable of lay observation. In fact, the Board did not discuss lay observation at all. Lay testimony is competent to establish the presence of observable symptomatology. See Layno v. Brown, 6 Vet.App. 465, 469 (1994). If the information comes to the layperson through his or her senses, then the layperson has personal knowledge of the information. Id.
The Board did not determine whether nail fungus is a condition capable of
lay observation. See Layno, 6 Vet.App. at 469; see also Jandreau, 492 F.3d at 1377 (stating that "lay evidence may
3


be competent and sufficient to establish a diagnosis of a condition when
. . . lay testimony describing symptoms at the time supports a later diagnosis by a medical professional"). For this reason, as well as those discussed above, the Court determines that the Board failed to provide an adequate statement
of reasons and bases for its decisions regarding the claims for diabetes
mellitus and onychomycosis.
The Court will therefore remand the diabetes mellitus and nail fungus
issues for readjudication, to include a more adequate statement of reasons and bases and a determination as to whether nail fungus is capable of lay observation.
On remand, Mr. Giusto will be free to submit additional evidence and
argument in supportof his claims for service connection, and the Board is required to consider any such evidence and argument.1
See Kay v. Principi, 16 Vet.App. 529, 534 (2002). A final decision by the
Board following the remand herein ordered will constitute a new decision that,
if adverse, may be appealed to this Court upon the filing of a new Notice of Appeal with the Court not
later than 120 days after
the date on which notice of the Board's new final decision is mailed to Mr.
Giusto. See Marsh v.
West, 11 Vet.App. 468, 472 (1998).
B. Duty To Assist
Mr. Giusto next argues that the Board erred in determining that VA
fulfilled its duty to assist
him in developing his claims for diabetes mellitus and onychomycosis.
Specifically, Mr. Giusto
argues that VA should have made additional requests for service medical
records when blood tests
from his discharge examination were not included in the records the
National Personnel Records
Center (NPRC) sent to the regional office (RO). Mr. Giusto asserts that
the missing service medical
records can demonstrate that his blood sugar levels were high at his time
of discharge from the Navy.
The Secretary responds that Mr. Giusto has not shown the existence of
prejudicial error.
The Secretary is required to make reasonable efforts to assist a claimant
in obtaining the evidence and information necessary to substantiate the claim unless no reasonable possibility exists that such assistance would aid in substantiating the claim. See 38 U.S.C. § 5103A(a)(1)-(2). In a
The Court notes that it is unable to consider the June 2, 2006, doctor's
letter that Mr. Giusto attached to his
Notice of Appeal. The Court is precluded by statute from considering any
material that was not contained in the "record
of proceedings before the Secretary and the Board." 38 U.S.C. § 7252(b);
see also Velez v. West, 11 Vet.App. 148, 152
(1998); Brock v. Brown, 10 Vet.App. 155, 159 (1997). Because this newly
presented letter was not in the record before
the Board, the Board committed no error by failing to consider it. Caffrey
v. Brown, 6 Vet.App. 377, 383 (1994).
1
4


claim for compensation,such as ,
the assistance includes obtaining relevant records,including
service medical records. See 38 U.S.C. § 5103A(c)(1). The Secretary's
efforts to obtain federal
records must continue until they are obtained, or it is reasonably certain
that they do not exist, or
further efforts to obtain records would be futile. See 38 U.S.C. § 5103A(
b)(3). VA can conclude that
"no further efforts are required" in situations such as one where "the
Federal department or agency
advises VA that the requested records do not exist or the custodian does
not have them." 38 C.F.R.
§ 3.159(c)(2) (2009). VA must make "as many request as necessary to
obtain relevant records from
a Federal department or agency." 38 C.F.R. § 3.159(c)(2).
The blood test records in question were not included in the service
medical records the NPRC
provided to the RO. Mr. Giusto questioned their absence and asked that
they be requested again.
R. at 33, 51, 89. There is no indication that the RO did so or that the RO
took any additional steps
to determine whether the records exist. The Board concluded, "the [NPRC]
did not indicate that any
records were unavailable, and the NPRC is the proper repositoryfor those
records. Accordingly, VA
has met its duty to assist." R. at 6.
The Board erred in determining that VA had fulfilled its duty to assist.
There is no indication
that VA submitted more than one request for Mr. Giusto's service medical
records, despite his
repeated requests. Therefore the Board could not have determined that it
was reasonably certain that
the records did not exist or that further efforts to obtain records would
be futile. See 38 U.S.C.
§ 5103A(b)(3). It is true that NPRC is the proper repository for the
records, as the Board stated, but
there is no indication that NPRC determined that the records do not exist
or that NPRC does not have
them. See 38 C.F.R. § 3.159(c)(2). VA did not make "as many requests as
necessary to obtain [the]
relevant records," as required by 38 C.F.R. § 3.159(c)(2). It was
therefore error for the Board to
determine that VA had met its duty to assist. The Court will therefore
remand the duty to assist issue
for further requests of medical records or a statement of futility.
C. Intertwined Claims
Mr. Giusto asserts that a remand of the diabetes mellitus claim
necessitates a remand for the
claims for peripheral neuropathyand hypertension, both secondaryto
diabetes mellitus, as the claims
areinextricablyintertwined. Mr. Giusto argues that "peripheral
neuropathyandhypertensionarewell
known residuals of diabetes" (Appelleant's Brief at 12), and that a VA
medical examiner has
5


diagnosed his peripheral neuropathy as secondary to diabetes mellitus (R.
at 101). The Secretary has
not submitted any arguments with respect to this assertion.
Because the claims for peripheral neuropathy and hypertension are
secondary to the claim for
service connection for diabetes mellitus, which the Court is remanding,
judicial economy would be
served by remanding these claims as well. See Smith v. Gober, 236 F.3d
1370, 1372 (Fed. Cir. 2001)
(stating that "because the underlying facts of the two claims are so
intimatelyconnected, we conclude
that, in the interest of judicial economy and avoidance of piecemeal
litigation, they should be
appealed together").
II. CONCLUSION
Based on consideration of the foregoing, the Court SETS ASIDE the Board's
July 24, 2007,
decision and REMANDS all matters for further development and
readjudication consistent with this
decision.
DATED: November 30, 2009
Copies to:
Eric A. Gang, Esq.
VA General Counsel (027)
6

Saturday, February 20, 2010

VA Claim Backlog Will Continue to Grow in 2010-2011, VAOIG

VAOIG Report Number 09-01814-85

"VBA’s rating and non-rating claims inventory is expected to continue to grow in FYs 2010 and 2011. Also, because VBA does not collect data on how many overtime hours are worked or local regional office performance measures, it cannot accurately determine its workforce capacity and future workforce needs."

Concussion Cause Detectable Brain Pathology, Mild Brain Trauma Not So Mild

Full Article at: Mild Traumatic Brain Injury, Not So Mild After All

ScienceDaily (Feb. 19, 2010) — "Douglas Smith, MD, director of the Center for Brain Injury and Repair and professor of Neurosurgery at the University of Pennsylvania School of Medicine, presented findings on the molecular mechanism at play in mild traumatic brain injury (mTBI), commonly known as concussions, recently at the 2010 American Association for the Advancement of Science meeting in San Diego.

Although mTBI affects over 1 million people each year in the United States, it is generally ignored as a major health issue. However, this "mild" form of injury induces persisting neurological and cognitive problems in many of these patients, exacting an enormous emotional and financial toll on society.

Despite the prevalence and impact of mTBI, little is known about how mTBI affects nerve cells and connections in the brain, and therefore clinical outcomes after injury. Smith and colleagues have begun to amass data from human and animal studies on mTBI at 2-4 days after injury using advanced neuroimaging techniques. They have found distinct changes throughout the white matter in the brain. Also, protein markers of brain pathology were identified after mTBI in the blood of mTBI patients.

Smith and his team propose a potential molecular mechanism to explain their findings. Specifically, they found that the stretching and disconnecting of nerve-cell axons after mTBI induces problems in the sodium channels found on the surface of neurons.

"This is not inconsequential," says Smith. "Indeed, the observation that brain pathology can be detected after a concussion calls for much more extensive efforts to prevent, diagnose, and treat mild traumatic brain injury."

Wednesday, February 17, 2010

Cancer-causing Chemical Omitted from Tap Water Report at Camp Lejeune

Full Article at: Report on Marines' water omitted cancer chemical
By KEVIN MAURER, Associated Press Writer Kevin Maurer, Associated Press Writer – Wed Feb 17, 3:39 pm ET

"WILMINGTON, N.C. – An environmental contractor dramatically underreported the level of a cancer-causing chemical found in tap water at Camp Lejeune, then omitted it altogether as the Marine base prepared for a federal health review, an Associated Press review has found.

The Marine Corps had been warned nearly a decade earlier about the dangerously high levels of benzene, which was traced to massive leaks from fuel tanks at the base on the North Carolina coast, according to recently disclosed studies.

For years, Marines who served at Camp Lejeune have blamed their families' cancers and other ailments on tap water tainted by dry cleaning solvents, and many accuse the military of covering it up. The benzene was discovered as part of a broader, ongoing probe into that contamination.

When water was sampled in July 1984, scientists found benzene in a well near the base's Hadnot Point Fuel Farm at levels of 380 parts per billion, according to a water tests done by a contractor. A year later, in a report summarizing the 1984 sampling, the same contractor pointed out the benzene concentration "far exceeds" the safety limit set by federal regulators at 5 parts per billion.

The Marines were still studying the water contamination in 1991 when another contractor again warned the Navy of the health hazards posed by such levels of benzene.

By 1992, the federal Agency for Toxic Substances and Disease, an arm of the Department of Health and Human Services, showed up at the base to begin a health risk assessment. That's when a third contractor, the Michael Baker Corp., released a draft report on the feasibility of fixing the overall problem.

In it, the 1984 level on the well of 380 parts per billion had changed to 38 parts per billion. The company's final report on the well, issued in 1994, made no mention of the benzene.

Not only hasn't the benzene disappeared from the now-closed wells, it's gotten much worse over time. One sample from a series of tests conducted from June 2007 to August 2009 registered 3,490 parts per billion, according to a report from a fourth contractor."

Denver VA Hospital Leaves Surgical Clamps in Patient

Full Article at: Man sues over clamp surgeons at Denver VA hospital left in his body during heart surgery

By Associated Press

11:05 AM MST, February 17, 2010
DENVER (AP) — A man who had heart surgery at the Denver VA Medical Center is suing the U.S. Department of Veterans Affairs for $15 million after surgeons left a clamp in his body.

Richard Kellar had a triple coronary artery bypass in 2005.

Six months later, after an MRI for another medical problem, doctors found a 1.5-inch clamp still inside him, behind his heart.

The hospital offered to pay Kellar $100,000 for its mistake, but Kellar refused.

U.S. Attorney David Gaouette says the government agrees Kellar should be compensated but disagrees on the amount. He says the government's evidence will show no ill effects from the clamp, though Kellar disagrees.

A trial is set for March 10.

Tuesday, February 16, 2010

VA Wants to Track Docotr's Response to E-Alerts

Full Article at: VA wants to track docs’ reaction to e-alerts
By Mary Mosquera
Tuesday, February 16, 2010

"The Veterans Affairs Department wants to be able to track when and how its physicians respond to medical alerts sent to them via the agency’s computerized patient record system (CPRS).

Online Document here: https://www.fbo.gov/index?s=opportunity&mode=form&id=e3df008ae4b643a9aa9385673fac3918&tab=core&_cview=0

CPRS, a part of the Health Information Systems and Technology Architecture (VistA), currently can only monitor whether providers click to acknowledge receipt of an abnormal diagnostic test result alert.

However the system cannot report whether providers take follow-up actions based on that alert, and what those actions are.

VA now wants a vendor to update its CPRS interface and workflow to enable the tracking and reporting of critical diagnostic test alerts and actions taken by the physicians."

Iraq, Exposure to High Levels of Nuclear and Dioxin Contamination

Full Article at: Iraq littered with high levels of nuclear and dioxin contamination, study finds

"More than 40 sites across Iraq are contaminated with high levels or radiation and dioxins, with three decades of war and neglect having left environmental ruin in large parts of the country, an official Iraqi study has found.

Areas in and near Iraq's largest towns and cities, including Najaf, Basra and ­Falluja, account for around 25% of the contaminated sites, which appear to coincide with communities that have seen increased rates of cancer and birth defects over the past five years. The joint study by the environment, health and science ministries found that scrap metal yards in and around Baghdad and Basra contain high levels of ionising radiation, which is thought to be a legacy of depleted uranium used in munitions during the first Gulf war and since the 2003 invasion.

The environment minister, Narmin Othman, said high levels of dioxins on agricultural lands in southern Iraq, in particular, were increasingly thought to be a key factor in a general decline in the health of people living in the poorest parts of the country."

Shredding of Veterans Claims, and Records

Full Articles at: http://www.vawatchdog.org/10/nf10/nffeb10/nf021610-3.htm


1. VAOIG letters to Members of Congress about resources to inspect all VA Regional Offices on a 3-year cycle ... even though they should be inspected about every 3 months given the problems they have. Document available for viewing or download here.

2. VAOIG report on documents found in shredder bins at the Cleveland Regional Office (VARO). Document available for viewing or download here.

3. 13 pages of Contact Reports and sworn statements about shredding and document mishandling at the Columbia, SC VARO. Document available for viewing or download here.

4. A Contact Report about shredding drop mail at the New York VARO. Document available for viewing or download here.

5. Report of documents found in shredder bins at the St. Petersburg VARO. Document available for viewing or download here.

6. Follow-up analysis of a claim document found in a shredder bin at the St. Petersburg VARO. Document available for viewing or download here.

7. Report on mail handling at Winston-Salem VARO and dating of claims at the Albuquerque VARO. Document available for viewing or download here.

8. An Exit Conference about date changing at the Boston VARO. And, yes, they were changing dates on claims. Document available for viewing or download here.

Monday, February 15, 2010

VA Want Medical Incidents Reports Retracted

Full Article at: Veterans Administration requests retraction of 80 'medical events'


By Walter F. Roche Jr.
Walter F. Roche Jr. is a Pittsburgh Tribune-Review staff writer can be reached at 412-320-7894 or via e-mail.

PITTSBURGH TRIBUNE-REVIEW
Monday, February 15, 2010


"Veterans Affairs officials are asking the Nuclear Regulatory Commission to retract the VA's reporting of 80 "medical events" stemming from six years of treating veterans with improper radiation doses.

If approved by the NRC, the unprecedented request would eliminate the negative "medical event" categorization for 80 of 97 previously reported cases in which prostate cancer patients were given improper doses of radiation at the VA's Philadelphia facility. NRC officials say they do not recall ever getting a similar request.

Records released by the VA indicate that at least one of the 80 patients was from the Pittsburgh area.

According to the NRC Web site, a "medical event" indicates potential problems in a medical facility's use of radioactive materials. It does not necessarily result in harm to the patient."

Wednesday, February 10, 2010

Research Study Concludes Some Veterans Not Receiving Adequate PTSD Care

The study showed that there are groups of veterans that are less likely to receive adequate care than others, such as male veterans (compared to female veterans), veterans under twenty-five years old, veterans who received their PTSD diagnoses from primary care clinics (requiring referral to a mental health program), and veterans living in rural areas."

Full Article at: Many Veterans Not Getting Enough Treatment for PTSD

ScienceDaily (Feb. 10, 2010) —

"More than 230,000 Iraq and Afghanistan war veterans sought treatment for the first time at VA healthcare facilities nationwide between 2002 and 2008. More than 20 percent of these veterans, almost 50,000, received a new PTSD diagnosis. Treatments that have been shown to be effective for PTSD typically require 10-12 weekly sessions. VA follows these recommendations, however, fewer than ten percent of those Iraq and Afghanistan veterans with newly diagnosed PTSD complete this recommended "dose" of PTSD treatment. When the timeframe was expanded to a year rather than four months, fewer than thirty percent of the veterans completed the recommended course of treatment.

The study showed that there are groups of veterans that are less likely to receive adequate care than others, such as male veterans (compared to female veterans), veterans under twenty-five years old, veterans who received their PTSD diagnoses from primary care clinics (requiring referral to a mental health program), and veterans living in rural areas."

Rep. Sestak c alls Inspection Report on PittsburghVA-Medical Center "Completely Intolerable"

Full Article at: Report: VA center in Philadelphia had widespread problems


By Walter F. Roche Jr.
PITTSBURGH TRIBUNE-REVIEW
Wednesday, February 10, 2010

"The staff in a surgical unit at the Veterans Affairs Medical Center in Philadelphia was so inattentive that a patient who died in a toilet was not even discovered until his body had turned cold, according to an inspection report obtained by the Tribune-Review.

The report from the VA's Medical Inspector, obtained under the federal Freedom of Information Act, recounts the complaints from a surgical resident who told inspectors of the dead patient and another case in which a patient at the facility was allowed to sit in a bed of urine.

The report, dated Dec. 12, 2007, cites the poor care on the thoracic surgery unit as the reason that doctors routinely shifted major chest surgery cases to the nearby University of Pennsylvania/Presbyterian Medical Center.

"The general surgery resident physician voiced 'no confidence' in the care provided on the ward and went so far as to say that the surgical ward was 'not a nursing unit,' care was non-existent," the 10-page report states.

Dale Warman, spokesman for the Philadelphia center, said the problems cited in the report have been corrected.

"Many improvements have been made over the past three years for the well-being of our veterans, and this situation does not at all reflect the current state of patient care," he said in an e-mail.

U.S. Rep. Joseph Sestak, D-Delaware County, said some of the findings in the report were "completely intolerable and reflects a gross lack of accountability at many levels."

Competent Evidence versus Competent Medical Evidence, MCormick v. Principi, No. 98-48

However, Savage[v. Gober, 10 Vet. App. 488 (1997),] and 3.303(b) require only that a claimant submit competent evidence of a nexus between his present disability and his postservice symptomatology, 38 C.F.R. 3.303(b); Savage, supra.
To the extent that the Board required otherwise, i.e., "competent
medical evidence
associating his current eye symptomatology with
injury or disease during his active service", the Board misapplied
the continuity-of-symptomatology criteria from Savage, supra.Id. at 49-50 (first-sentence emphasis added).
============================================================

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS



No. 98-48


Mack A. McCormick, Appellant,


v.

Anthony J. Principi,

Secretary of Veterans Affairs, Appellee.


On Appellant's Application for Attorney Fees and Expenses


(Argued February 20, 2002 Decided October 17,
2002 )



Daniel G. Krasnegor, of Washington, D.C., with whom Peter J.
Meadows, of Miami Beach, Florida, was on the pleadings, for the appellant.

Ann G. Gawalt, with whom Tim S. McClain, General Counsel; and
Joan E. Moriarty, Acting Assistant General Counsel, all of Washington, D.C
., were on the pleadings, for the appellee.

Before KRAMER, Chief Judge, and IVERS and STEINBERG, Judges.

STEINBERG, Judge, filed the opinion of the Court. IVERS, Judge,
filed a dissenting opinion.

STEINBERG, Judge: The appellant, veteran Mack A. McCormick,
previously appealed through counsel a December 16, 1997, decision of the
Board of Veterans' Appeals (Board or BVA) that had denied as not well
grounded his claim for Department of Veterans Affairs (VA) service
connection for loss of vision. See McCormick v. Gober, 14 Vet.App. 39, 41 (
2000). On August 18, 2000, the Court vacated that Board decision and
remanded the matter for readjudication. Id. at 50. Currently pending
before the Court is the appellant's application, timely filed through
counsel, for attorney fees under the Equal Access to Justice Act, 28 U.S.C
. 2412(d) (EAJA). The Secretary has filed a response in opposition to
the application, and the appellant has filed a reply thereto. For the
reasons that follow, the Court will grant the EAJA application in part.


I. Relevant Background

The relevant background of this case on the merits is set out in full
in our prior opinion, McCormick, 14 Vet.App. at 41-43, and will not be
repeated here. In that opinion, the Court stated: "The appellant does
not, in essence, challenge the Board's negative determination on well
groundedness, and in view of the Court's holding [as to VA Veterans
Benefits Administration Letter 20-99-60 (the VBA Letter) (Aug. 30,
1999)], we need not review that determination." Id. at 43. Citing
Maggitt v. West, 202 F.3d 1370, 1377 (Fed. Cir. 2000), the Court went
on to vacate the Board decision and remand, for consideration by the Board
in the first instance, a matter not raised to or considered by the Board -
the applicability to the appellant's case of the fire-related-case
provisions of the VA Adjudication Procedure Manual M21-1 (Manual M21-1or
M21-1). In so doing, the Court set forth for Board consideration on
remand four questions about the applicability of and compliance with these
M21-1 fire-related provisions. McCormick, 14 Vet.App. at 44-45. The
Court went on to hold that the provisions of the VBA Letter, issued
subsequent to the December 1997 BVA decision, "were substantive in
nature and have the force of law", thus requiring that VA request service
medical records and VA medical center records in all cases, prior to
determining well groundedness. Id. at 49. The Court then remanded the
matter for compliance with the VBA Letter, citing, inter alia, Karnas
v. Derwinski, 1 Vet.App. 308, 313 (1991). McCormick, supra. Finally,
the Court noted, under an opinion part entitled "Miscellaneous Matter",
the following:
Finally, the Court notes that the Board, in its adjudication of
the instant claim, erred in its continuity-of-symptomatology
analysis. In order to avoid repetition of that error on remand, the
Court notes the following.

. . . In considering whether the veteran had submitted a well-
grounded claim pursuant to [38 C.F.R.] 3.303(b), the Board stated
the following:

[L]ay evidence submitted by the veteran . . . is probative
also to the extent that it suggests a continuity of
symptomatology from the veteran's military service. 38 C.F.R
. 3.303(b). However, . . . [i]t is not sufficient to show
that the veteran reported problems with his vision or even that
he wore corrective lenses. In this case, competent medical
evidence is needed to identify the reason for the symptoms
described . . . . The veteran must submit competent medical
evidence associating his current eye symptomatology with
injury or disease during his active service.

[Record] at 5 (emphasis added). However, Savage[v. Gober, 10 Vet.
App. 488 (1997),] and 3.303(b) require only that a claimant submit
competent evidence of a nexus between his present disability and his
postservice symptomatology, 38 C.F.R. 3.303(b); Savage, supra.
To the extent that the Board required otherwise, i.e., "competent
medical evidence associating his current eye symptomatology with
injury or disease during his active service", the Board misapplied
the continuity-of- symptomatology criteria from Savage, supra.

Id. at 49-50 (first-sentence emphasis added).
The Court concluded:
Upon consideration of the foregoing analysis, the [record on
appeal], and the submissions of the parties, the Court vacates the
December 16, 1997, BVA decision and remands the matter for
expeditious further proceedings and issuance of a readjudicated
decision supported by an adequate statement of reasons or bases, see
38 U.S.C. 1110, 5107, 7104(a), (d)(1); 38 C.F.R. 3.303(b);
VBA Letter; Fletcher v. Derwinski, 1 Vet.App. 394, 397 (1991), all
consistent with this opinion . . . .

Id. at 50 (emphasis added).
The appellant then filed his EAJA application on December 4, 2001,
seeking $19,816.02 in attorney fees and $333.76 in expenses. Application (
Appl.) at 9. He argues in the application that he was a prevailing party
because he received a remand and that the position of the Secretary was
not substantially justified at the administrative stage because (1) the
Board failed to address the M21-1 provisions and (2) the Board erred in
its continuity-of-symptomatology analysis. Appl. at 3-6. In his March
20, 2001, response, the Secretary concedes prevailing-party status (
Response (Resp.) at 7) but argues that his position was substantially
justified (Resp. at 8-13). The Secretary also argues (for reasons that
will be enumerated below) that, if the Court grants the appellant's
application, the attorney time for which the appellant seeks compensation
should be reduced by 38.1 hours. Resp. at 14-16. In his June 15, 2001,
reply to the Secretary's response, the appellant reiterates his argument
that the Board was not substantially justified and also opposes the
Secretary's request to reduce the number of hours. Reply at 5, 12.
The appellant then filed a July 18, 2001, motion to file a
supplemental application, with a supplemental application included seeking
an additional $2,801.03 in fees and expenses for the EAJA litigation
itself. On August 20, 2001, the Secretary filed a motion for
clarification and/or to stay response to the appellant's supplemental
application. On September 6, 2001, the appellant filed
an opposition to the Secretary's motion for a stay, along with a
further motion to supplement the initial application with another
supplemental application seeking (1) additional fees and expenses in
connection with the preparation of that opposition to the Secretary's stay
motion and (2) apparently, certain fees and expenses not included in the
July 2001 supplemental application. The appellant's supplemental
applications seek a total $3,506.23 in additional fees and expenses.
On February 11, 2002, the Secretary filed a notice of supplemental
authority (noting the issuance of Sachs v. Principi, 15 Vet.App. 414 (
2002)), an opposed motion for leave to file a supplemental response, and
his supplemental response. In that supplemental response, the Secretary
argues that the issuance of Buckhannon Board and Care Home, Inc. v. West
Virginia Department of Health and Human Resources, 532 U.S. 598 (2001),
Sumner v. Principi, 15 Vet.App. 256 (2001) (en banc), Vaughn v.
Principi, 15 Vet.App. 277 (2001) (per curiam order), and Sachs, supra,
has altered the prevailing-party landscape in such a way as to prevent the
appellant from establishing that he is a prevailing party based on the
remand he received in the case on the merits. Supplemental (Suppl.) Resp.
at 4-6. On February 13, 2002, the appellant filed a notice of
supplemental authority citing Cycholl v. Principi, 15 Vet.App. 355,
360 (2001), and stating that this opinion affects the discussion of
whether it was error for the Board not to apply the M21-1 provisions. The
appellant also filed, on February 15, 2002, (1) a notice of supplemental
authority citing Cole Energy Development Co. v. Ingersoll-Rand Co., 8 F.3d
607, 609 (7th Cir. 1993), and (2) an opposition to the Secretary's
February 11, 2002, motion for leave to file a supplemental response.

II. Analysis
A. Jurisdiction
The appellant's December 4, 2000, EAJA application was filed within
the 30-day EAJA application period set forth in 28 U.S.C. 2412(d)(1)(B
). In order to satisfy any applicable EAJA jurisdictional content
requirements, an application must contain the following: (1) A showing
that, by virtue of the Court's remand, the applicant is a prevailing party
within the meaning of the EAJA; (2) a showing that the applicant is a
party eligible for an award under the EAJA because his or her net worth
does not exceed $2,000,000; (3) an allegation that the position of the
Secretary was not substantially justified; and (4) an itemized fee
statement. See 28 U.S.C. 2412(d)(1)(A), (1)(B),
(2)(B); Cullens v. Gober, 14 Vet.App. 234, 237 (2001) (en banc). The
appellant's EAJA application was thus timely filed and satisfies any
EAJA jurisdictional content requirements. See ibid.
B. Prevailing-Party Status
In order to receive an EAJA award, an EAJA applicant must be a
prevailing party. See 28 U.S.C. 2412(d)(1)(A) ("court shall award to a
prevailing party . . . fees and other expenses"); Sumner, 15 Vet.App. at
260-61. Prevailing-party status is achieved by satisfaction of either of
two criteria: (1) "[The] ultimate receipt of a benefit that was sought in
bringing the litigation, i.e., the award of a benefit, or [(2)] . . . a
court remand predicated upon administrative error," Sumner, 15 Vet.App. at
264 (citing Buckhannon, 532 U.S. at 603). Because the Court did not
order the award of a benefit, this opinion will focus on the second Sumner
criterion for attaining prevailing-party status, "a court remand
predicated upon administrative error". Ibid. In Sumner, the Court held: "
Because . . . in remanding the matter, the Court did not recognize
administrative error, the remand was not predicated upon administrative
error." Sumner, 15 Vet.App. at 265. We note that this Court has held
that to demonstrate prevailing-party status where the Secretary has
conceded error, the Court must have predicated its remand on that
concession of administrative error. See, e.g., Briddell v. Principi,
16 Vet.App. 267, 271-74 (2002); Smith (Shannon) v. Principi, 16 Vet.App.
71, 73-74 (2002); Cycholl, 15 Vet.App. at 359.
The appellant argues that he is a prevailing party based on the
second Sumner criterion because of the Court's finding regarding the
Board's Savage error. The Secretary maintains that this was not a basis
for remand and that, even if it was, it is not the type of error that
should be sufficient to qualify one as a prevailing party. The second
Sumner criterion, "a court remand predicated upon administrative error" (
here by the Court "recogniz[ing] administrative error"), Sumner, 15 Vet.
App. at 264, has three elements: (1) A court remand; (2) a court
recognition of administrative error; and (3) the remand's being predicated
on that error.
As to the first element, there is no question that there was a Court
remand in this case. As to the second element, neither party contests
that the Court found error here. We stress that Sumner requires only a
court "recogni[tion of] administrative error". Sumner, 15 Vet.App. at
265. There is no mention in Sumner of an "acceptable" level of error, and,
indeed, such a test would quickly become unmanageable, involving extensive
relitigation of the merits at the EAJA stage. See
Cullens, supra (Kramer, C.J., concurring); Mahl v. Principi, 15 Vet.
App. 37, 43 (2001) (Steinberg, J., dissenting). Although here there
was no concession of error by the Secretary at the merits stage, as there
was in Briddell, Smith (Shannon), and Cycholl, all supra, the Court
unambiguously determined - even if such a determination was described by
the Court as a noting ("we note") rather than a holding - that, based on
Savage, supra, the Board had "erred in its continuity-of- symptomatology
analysis" under 3.303(b), McCormick, 14 Vet.App. at 49-50. The Court
need not, and in fact should not, investigate at the EAJA prevailing-
party stage the validity, type, or nature of the administrative error.
Nor should the Court revisit at the EAJA stage the logic of the merits
decision. The Sumner standard is an objective one. It is sufficient that
the Court recognized that there was administrative error. See Briddell,
16 Vet.App. at 272 ("[t]here is not the slightest hint in Sumner or in
any other opinion of this Court that prevailing-party status should be
determined based on something other than what the Court actually did on
the merits"). Accordingly, we hold that the Court "recognize[d]
administrative error" in its merits opinion and that the second element is
satisfied. Sumner, 15 Vet.App. at 265.
The third element of the second Sumner criterion relates to the
connection between the remand and the Court's recognition of the Board
error. See Briddell, supra. In determining whether a remand is "
predicated" on administrative error, the Court looks to the underlying
disposition on the merits. We note that in the Sumner case, the Court,
having found no "administrative error" (i.e., the second element), had no
need to address the third element and explain what constitutes a "remand
predicated upon such error". Sumner, 15 Vet.App. at 265. The issue is,
however, ripe in this case, and we, therefore, do so here. In arguing
that the Court's Savage finding was not a basis for remand, the Secretary
ignores the fact that in the instant case the Court's merits opinion (1)
stated that "[f]or the reasons that follow, the Court will deny the
Secretary's motion and vacate the BVA decision and remand the matter",
McCormick, 14 Vet.App. at 41 (emphasis added), and (2) expressly cited to
38 C.F.R. 3.303(b) in the "Conclusion", where the Court "remand[ed]
the matter for expeditious further proceedings and issuance of a
readjudicated decision supported by an adequate statement of reasons or
bases, see 38 U.S.C. 1110, 5107, 7104(a), (d)(1); 38 C.F.R. 3.303(b)
; VBA Letter . . . ." McCormick, 14 Vet.App. at 50 (emphasis added
). Hence, the Court remanded in part in light of its recognition of
the 3.303(b)/Savage error, and the remand was, therefore,
"predicated upon administrative error", Sumner, 15 Vet.App. at 265. The
third element of the second Sumner criterion for prevailing-party status
is satisfied.
Accordingly, because there is a Court determination of 3.303(b)/
Savage error here and because the Court's remand language also clearly
indicated that the remand was based on that 3.303(b) error, we hold that
the appellant has attained prevailing-party status due to a "remand
predicated upon administrative error". Sumner, 15 Vet.App. at 264; see
also Briddell, supra. In light of this holding, there is no need for
the Court to consider whether the appellant was a prevailing party as to
either of the other two grounds for remand here - the Manual M21-1 fire-
related provisions regarding acquisition of VA and service-department
records and the VBA Letter requirements for VA to obtain certain medical
records.
C. Substantial Justification
Under the EAJA, the Secretary has affirmative defenses to a fee
award, one of which is to demonstrate that his position at both the
administrative (BVA) and litigation (Court) stages was "substantially
justified". See 28 U.S.C. 2412(d)(1)(A) ("court shall award to a
prevailing party . . . fees and other expenses . . . unless the court
finds that the position of the United States was substantially justified" (
emphasis added)), (d)(1)(B); Cullens, 14 Vet.App. at 237-38; Lematta v.
Brown, 8 Vet.App. 504, 506-07 (1996); Doria v. Brown, 8 Vet.App. 157, 161 (
1995). (The other affirmative defense is to ask the Court to "determine[]
that 'special circumstances make an award unjust.'" Id. at 162.) Once
an appellant has alleged a lack of substantial justification, the burden
shifts to the Secretary to prove that VA was substantially justified in
its administrative and litigation positions. Cullens, 14 Vet.App. at
237; see also Locher v. Brown, 9 Vet.App. 535, 537 (1996); Stillwell v.
Brown, 6 Vet.App. 291, 302 (1994) (holding that substantial-justification
query is one of reasonableness "in law and fact").
This Court has established the following standard to determine
whether the position of the Secretary was substantially justified:
[T]he VA must demonstrate the reasonableness, in law and fact, of
the position of . . . VA in a matter before the Court, and of the
action or failure to act by . . . VA in a matter before . . . VA,
based upon the totality of the circumstances, including merits,
conduct, reasons given, and consistency with judicial precedent and
VA policy with respect to such position, and action or failure to act,
as reflected in the record on appeal and the filings of the parties
before the Court.

Stillwell, supra; see also Cullens, 14 Vet.App. at 238. The
Secretary argues as to substantial justification that the Court should not
consider arguments about the 3.303(b) Savage ground because it was not a
basis for remand and because "the Board's misstatement of Savage had no
affect [sic] on the Board's denial of [the a]ppellant's claim" (Resp. at
13). Resp. at 8-13. "[R]easonableness is determined by the
totality of circumstances, and not by any single-factor approach."
Stillwell, 6 Vet.App. at 302. The Secretary fails on these defenses
for essentially the same reasons that the Court held in Part II.B.,
above, that the appellant was a prevailing party. Considering that the
Court explicitly found (1) that "the Board, in its adjudication of the
instant claim, erred in its continuity-of-symptomatology analysis" and (
2) that "the Board misapplied the continuity-of-symptomatology criteria
from Savage" (an opinion issued more than one month before the BVA
decision here), it is clear that the Board did not act "consisten[t]
with judicial precedent", Stillwell, supra. We thus hold that the
position of the Secretary as to this issue at the administrative stage was
not substantially justified. Hence, we need not address the justification
for the Secretary's position at the litigation stage. See Cycholl, 15
Vet.App. at 361; see also Elcyzyn v. Brown, 7 Vet.App. 170, 176 (1996).
D. Reasonableness of Fees
"The Court has wide discretion in the award of attorney fees under
the EAJA." Chesser, 11 Vet.App. at 501 (citing Hensley v.
Eckerhart, 461 U.S. 424, 437 (1983); Chiu v. United States, 948 F.
2d 711, 713 (Fed. Cir. 1991); and Vidal v. Brown, 8 Vet.App. 488, 493 (
1996)). "[T]he 'product of reasonable hours times a reasonable rate'
normally provides a 'reasonable' attorney's fee." Blum v. Stenson,
465 U.S. 886, 897 (1984) (quoting Hensley, 461 U.S. at 434). "The [
Court] must determine not just the actual hours expended by counsel, but
which of those hours were reasonably expended in the litigation." Ramos
v. Lamm, 713 F.2d 546, 553 (10th Cir. 1983). In that regard, the
Court will consider whether the hours claimed were (1) unreasonable on
their face, (2) otherwise contraindicated by the factors for determining
reasonableness itemized in Hensley, 461 U.S. at 430 n.3, or
Ussery v. Brown, 10 Vet.App. 51, 53 (1997), or (3) persuasively opposed
by the Secretary. See Chesser, 11 Vet.App. at 502. This Court "may
consider a number of factors, including whether the work performed was
duplicative, if an attorney takes extra time due to inexperience, or if
an attorney performs tasks normally performed by paralegals, clerical
personnel, or other non-
attorneys", Ussery, 10 Vet.App. at 53, and "may properly reduce the
number of hours claimed for time spent in duplicative, unorganized, or
otherwise unproductive efforts", Vidal, 8 Vet.App. at 493.
The Secretary argues here for a reduction in fees of 38.1 hours,
because he asserts that (1) the appellant's counsel spent too much time (
33.2 hours) on a brief that consisted of six pages of argument and that
contained only two arguments, one that the Court did not address
substantively (the M21-1 argument), and the other that the Court did not
address at all (a reasons-or-bases argument), in a case in which the
record was "merely 106 pages long" (Resp. at 14); and (2) the appellant's
counsel spent too much time (63.1 hours) preparing for oral argument, and
that much of this time was due to the appellant's counsel's inexperience (
and, in an exercise of billing discretion, he should not have billed for
time spent on learning) (Resp. at 14-16). The appellant replies that the
brief dealt with complicated issues and that, therefore, the entire amount
of time was reasonable. Reply at 15-17. He argues further that the hours
spent in preparation for oral argument were reasonable because "after the [
a]ppellant filed his [b]rief, several significant cases, including
Maggitt[, supra], and Sims v. Apfel[,] 120 S.Ct. 2080 (2000)[,] were
issued that materially impacted the appeal before the Court", and because
such preparation was essential to his counsel's fulfilling "his ethical
duty to his client to provide diligent representation." Reply at 16.
Although arguments such as these might in certain cases be viewed as
nothing more than unsupported assertions that should not serve as a basis
to reduce the fees requested, that is not always the case. Under Chesser
, the Court may, sua sponte, reduce fees that appear unreasonable on
their face. In this case, the fees claimed by the appellant do appear to
be unreasonable, both as to the brief and as to the oral argument. In
this respect, the Secretary's arguments on these points are largely
persuasive, and the appellant has offered little in rebuttal. Therefore,
based on the Secretary's arguments and in light of the fact that the basis
of the remand here was one recognized by the Court sua sponte and was
not argued at all by the appellant, the Court will reduce the allowable
hours here. However, the Secretary's request to reduce the amount by 38.1
hours fails to take into account the following two factors: (1) The
appellant's counsel did, in the appellant's application, "in a good faith
effort to avoid any question as to time spent for arguably administrative
matters", reduce by five hours the total hours for which he sought
compensation (Appl. at 8); and (2) the appellant offered a rationale as to
at least some of the hours spent in preparation for oral argument, i.e.,
the need for
his counsel to review two new cases that had been issued after the
filing of his brief (Reply at 15). Accordingly, in the exercise of its
discretion, the Court will reduce by 30 hours the hours requested in the
application, from 149.60 to 119.60 hours.
E. Supplemental Application and Stay Motion
The appellant has filed two motions to supplement his EAJA
application to include attorney fees for the EAJA litigation. The
Secretary has filed an opposed motion for clarification or stay as to
these matters. The Secretary argues that "[a]ny assessment of the
reasonableness of [the] supplemental application is contingent on the
Court's ruling"; he further notes that "[n]o rule, express or otherwise,
governs this matter in either directing the time for filing of the
supplemental application or the Secretary's deadline to respond to the
application." August 2001 Motion at 2. On November 1, 2001, after the
filing of both motions to supplement and the Secretary's motion, the Court
adopted amendments to Rule 39 of its Rules of Practice and Procedure (
Rules), to add the following:
(b) Supplemental application. An appellant or petitioner whose
application described in subsection (a) of this rule has been granted
in whole or in part may, not later than 30 days after the Court
action granting such application, file a supplemental application for
attorney fees and other expenses in connection with the submission or
defense of such subsection (a) application. See Rule 25.

(c) Response. Within 30 days after the date on which an
application described in subsection (a) or a supplemental application
described in subsection (b) is filed, the Secretary shall file and
serve a response to the application or supplemental application,
stating which elements of the application or supplemental application
are not contested and explaining the Secretary's position on those
elements that are contested.

In re: Rules 39, 41, and 42 of the Rules of Practice and Procedure, 15 Vet.
App. CCCLX, CCCLXI (2001). In the comment to this Rule change, it is
noted: "Subsection (b) is added to provide specifically for the
submission, once an initial EAJA application is granted, of a
supplemental EAJA application". Ibid. (emphasis added). Given the
above-quoted amendment to Rule 39 and the comment thereto, the appellant's
supplemental applications (which deal exclusively with the defense of the
original application) would be considered premature, because they were
submitted prior to a ruling on the initial application, if they had been
filed after the adoption of the Rule 39
amendment. However, because the motions to supplement were filed
before that amendment to Rule 39 was adopted and the Court is here
granting in substantial part the appellant's initial EAJA application,
the Court will grant the appellant's motions to supplement his initial
EAJA application and will file as of the date of this opinion the
supplemental applications that were submitted with the motions. Cf.
Stillwell, 6 Vet.App. at 300 (holding that prematurely filed EAJA
application "was not untimely . . . because the appeal period had not run
"). Under Rule 39(c), the Secretary will hereafter have 30 days to file a
response to those supplemental applications. As to the Secretary's motion
for a stay, given that Rule 39(c) now provides the guidance that he
helpfully sought as to the timing of a response and in light of our
direction that the supplemental applications be filed on the date of the
issuance of this opinion, we will deny the Secretary's motion as moot.
See Fritz v. Principi, 16 Vet.App. 179, 180-82 (2002) (per curiam
order).

III. Conclusion
Upon consideration of the foregoing analysis and the pleadings of
the parties, the Court grants the appellant's EAJA application in the
reduced amount of $16,175.98. Pursuant to Rule 39(b), the Court grants
the appellant's motions to file supplemental applications; the Clerk of
the Court will file the appellant's supplemental applications as of the
date of this opinion. Under Rule 39(c), the Secretary will have 30 days
to file a response, and under Rule 39(d) the appellant will have 30 days
to file a reply to the Secretary's response. See U.S. Vet. App. R. 39(b
), (c), (d). The Court denies as moot the Secretary's motion for a stay
and clarification. In view of the foregoing disposition, there is no
need for the Court to act on either the Secretary's February 11, 2002,
motion, or the appellant's February 15, 2002, opposition motion.
APPLICATION GRANTED IN PART.

IVERS, Judge, dissenting: The majority manipulates the clear
language and intent of the underlying decision on the merits in this case
to conclude that the appellant was a prevailing party for purposes of
EAJA. The majority elevates what the Court called a "Miscellaneous
Matter," related to an issue that the Court expressly stated it did not
review, to a basis for remand. For the reasons stated herein, I find the
manipulation to be disingenuous, and I respectfully dissent.
The majority has determined that the appellant was an EAJA
prevailing party by declaring that the underlying remand was predicated
upon administrative error, recognized by the Court in its statement that
the Board erred in applying the continuity-of-symptomatology criteria.
McCormick v. Principi, __ Vet.App. __, __, No. 98-48, slip op. at 6-7 (
Oct. 17, 2002); see McCormick v. Gober, 14 Vet.App. 39, 49 (2000). In
stretching to reach this conclusion, the majority has the tail wagging the
dog.
In the decision on the merits in the underlying appeal in this case,
the Court stated the following: "In this case, the Board denied the [
appellant's] claim as not well grounded. . . . The appellant does not, in
essence, challenge the Board's negative determination on well
groundedness, and, in view of the Court's holding in part II.B., below,
we need not review that determination." McCormick, 14 Vet.App. at 43 (
emphasis added). In part II.B. the Court held (the dog) that the
provisions of a VBA letter were substantive in nature, having the force
of law, so as to require that VA request copies of service medical records
and VA medical records before making a determination as to whether a claim
is well grounded. Id. at 49. As noted by the majority here, the Court
remanded for compliance with the VBA letter. See McCormick, __ Vet.App.
at __, slip op. at 2.
At the end of the decision on the merits, as a preventive measure and
cautionary note entitled "Miscellaneous Matter," the Court "noted" (the
tail) that the Board, in its decision, had misapplied criteria for
determining continuity of symptomatology in finding that the appellant's
claim was not well grounded. Id. at 49-50. The Court had stated that it
was remanding for further development, and then advised the Board not to
misapply, as it had before, the criteria for determining continuity of
symptomatology during readjudication of the claim. The latter
instruction was advisory in nature because the Court had clearly stated
that it need not review the unchallenged determination on well
groundedness.
The majority in this EAJA matter now elevates what was non-
precedential and advisory to a basis for remand on the merits. The fact
that the Court, in the decision on the merits, stated that the Board's
determination on well groundedness was not under review is certainly
sufficient support for a conclusion that the Court's sua sponte
comments regarding a shortcoming in the Board's process of making that
determination were not a basis for the remand. In other words, contrary to
the far-
reaching conclusion arrived at by the majority, the remand effected by
the decision on the merits was not predicated upon the administrative
error recognized by the Court in its advisory note.
The majority's manipulation of the decision on the merits in this
case is analogous to a post hoc rationalization, which is firmly
prohibited in litigation. See Martin v. Occupational Safety & Health
Review Comm'n, 499 U.S. 144, 156 (1991) ("'Litigating positions' are not
entitled to deference when they are merely appellate counsel's 'post hoc
rationalizations' for agency action, advanced for the first time in the
reviewing court.") It is not unlike a post Previous HithocNext Document rationalization for the
majority now to take what it said in the decision on the merits in this
case and turn it upside down to serve a particular result.
It is my opinion that the appellant was not a prevailing party in the
litigation underlying this EAJA application, because the remand was not
predicated upon administrative error. The EAJA application should be
denied.