Faulty Dental Sterilization St. Louis-VA Exposes 2,000 Veterans HIV, Hepatitis

Full Article at: UPDATE: Faulty dental sterilization reported at veterans hospital in St. Louis
Wednesday, June 30, 2010
BY JIM SALTER/The Associated Press

ST. LOUIS — "A St. Louis VA Medical Center has urged nearly 2,000 veterans to return for blood tests because inadequately sterilized equipment may have exposed them to viral infections such as hepatitis C and HIV during dental procedures.

The Department of Veterans Affairs sent out letters Monday to 1,812 people who had dental procedures at the John Cochran VA facility from Feb. 1, 2009, through March 11 of this year. The VA said quality reviews determined that some sterilization steps involved in preparing dental instruments were not in compliance with standards, creating a low risk of infection."

Former VA Lawyer Accused of Stealing from Mentally Incompetent Veterans

Full Article at: Lawyer, wife accused of stealing from vets

By BRIAN ROGERS

"A Houston lawyer and his wife appeared in federal court Tuesday, accused of stealing more than $2 million from military veterans.

Joe Phillips, 71, and Dorothy Phillips, 70, who managed her husband's small law office, appeared before U.S. Magistrate Judge Nancy Johnson, charged with conspiracy, misappropriation by a fiduciary, making materially false statements to a federal agency and tax fraud, according to federal officials.

Phillips, a former employee of the U.S. Department of Veterans Affairs in Houston, is accused of stealing from mentally incompetent veterans.

Major Reason for VA Clinicians Not Admitting Errors?

I must say that this little snippet is eye opening!

Full Article at: If You Have to Be Wrong, How Can You Admit It More Easily?
By FREAKONOMICS

"As James Bagian, head of the Veterans Administration’s National Center for Patient Safety, told me, “You don’t change the culture [of denial and blame around error] by saying, ‘Let’s change the culture.’ You change the culture by giving people new tools that actually work.”

Such tools exist. Bagian’s own field, medicine, has lately started trying to arm its practitioners with the means and skills to face up to their mistakes. When the VA learned that the major reason clinicians didn’t report errors wasn’t fear of legal action but a feeling of humiliation, they circulated a definition of “blameworthy” harm to a patient that limited such cases to those involving assault, the use of illegal substances, or intentionally attempting obviously dangerous procedures. The result? Error reporting shot up 30-fold. That’s good news for patients: better error reporting translates to fewer errors, since you can’t prevent problems when you don’t know they’re happening. As a result, these kinds of cultural tools turn out to be at least as important for reducing medical error as improvements in technology or information."

Agent Orange Linked to Auto-Immune Disease, Graves' Disease

It's important to note this linkage of Agent Orange to an AutoImmune Disease.

Full Article at: Agent Orange Exposure Linked to Graves' Disease in Vietnam Veterans, UB Study Finds

Contact
Lois Baker
Release Date: June 28, 2010

BUFFALO, N.Y. -- Vietnam War-era veterans exposed to Agent Orange appear to have significantly more Graves' disease, a thyroid disorder, than veterans with no exposure, a new study by endocrinologists at the University at Buffalo has shown.

Ajay Varanasi, MD, an endocrinology fellow in the UB Department of Medicine stated: "Our findings show that Vietnam veterans who came in contact with Agent Orange are more likely to develop Graves' disease than those who avoided exposure," says Varanasi.

"The autoimmune disorder was three times more prevalent among veterans who encountered the dioxin-containing chemical. We also looked at other thyroid diagnoses, but we didn't find any significant differences in thyroid cancer or nodules."

Pentagon Orders Tracking of Soldiers and Blast Events, TBI

Now if this information will be available to these injured soldiers and they will be able to make sure that the information is correct, then this will be useful.

Full Article at: Pentagon orders system to track soldiers for brain injuries

By Bob Brewin 06/25/2010

"Deputy Secretary of Defense William Lynn III issued a memo on Monday calling for the Defense Department to develop systems that would track soldiers who experience concussions on the battlefield and match them to specific events in combat in an effort to better treat them, a shortcoming that the department had been sharply criticized for not resolving.

Lynn's memo, which was posted on Defense's secret Internet website and provided to Nextgov, said it is now department policy to "identify, track and ensure the appropriate protection of service members exposed to concussive events, including blast events, to the maximum extent possible."

Brain injuries, many of which are difficult to diagnose because they are caused by a concussive event such as a blast from an improvised electronic device, are one of the most common battlefield wounds in Iraq and Afghanistan. Lt. Gen. Eric Schoomaker, Army surgeon general, repeatedly has described blasts from improvised bombs as the signature weapon of the wars in Afghanistan and Iraq.

Air Force Col. Michael Jaffee, director of the Defense and Veterans Brain Injury Center, said in April that Defense planned to create a single database that would merge information about specific operations on the battlefield with medical data. By matching the data, physicians could better identify soldiers who might be suffering from brain injuries, a diagnosis that has not always been properly made, critics say. The memo is the first indication that Defense is trying to better identify soldiers with brain injuries and immediately treat them.

The memo, "Policy Guidance for Management of Concussive/Mild Traumatic Brain Injury in a Deployed Setting," calls on the Defense Centers of Excellence for Psychological Health and Traumatic Brain Injury to conduct "comprehensive, retrospective analyses of relevant event-triggered data" and to develop summaries of specific monitoring of blast events.

TBI reporting in Afghanistan is managed primarily on paper."

Deasy v. US, 99 F. 3d 354 - Court of Appeals, 10th Circuit 1996

Deasy v. US, 99 F. 3d 354 - Court of Appeals, 10th Circuit 1996
99 F.3d 354 (1996)
John F. DEASY, Jr., Plaintiff-Appellee,
v.
UNITED STATES of America, Denver Veterans Administration Medical Center (the "Denver VAMC") Baltimore Veterans Administration Medical Center (the Baltimore VAMC) and Perry Point Veterans Administration Medical Center (Perry Point VAMC), Defendant-Appellant.
No. 95-1276.

United States Court of Appeals, Tenth Circuit.
October 28, 1996.

355*355 William G. Cole (Robert S. Greenspan, with him on the briefs), Appellate Staff Civil Division, Department of Justice, Washington, DC, for Defendants-Appellants.

Joseph J. Mellon, Denver, CO, for Plaintiff-Appellee.

Before HENRY, LOGAN and BRISCOE, Circuit Judges.

LOGAN, Circuit Judge.

The United States appeals from the district court's judgment in favor of plaintiff John F. Deasy, Jr. in his Federal Tort Claims Act (FTCA) suit for medical malpractice. Plaintiff asserted that psychiatrists at Veterans Administration (VA) hospitals committed malpractice when they provided him only psychiatric treatment and failed to refer him for medical treatment of severe edema. He further claimed that as a result of the malpractice he suffers from post traumatic stress disorder (PTSD), which prevents him from being able to receive the care at VA facilities to which he is entitled. The district court heard the case without a jury and found that the VA committed malpractice in Maryland and Colorado. The district court awarded plaintiff $3,993,971, to be placed in a reversionary trust to provide for his future 356*356 medical needs outside the VA hospital system, with any balance at plaintiff's death reverting to the United States. The court also awarded plaintiff $600,000 damages for pain and suffering — $350,000 for the Maryland occurrence and $250,000 for the Colorado occurrence, the maximum permitted under those states' tort laws.

On appeal, the United States argues that (1) the district court judge erroneously found that the psychiatrists committed malpractice; (2) the $4 million trust for plaintiff's medical treatment outside the VA system was not compensatory for his injuries suffered and therefore was improper; and (3) the district court's award of $600,000 for noneconomic damages was excessive.

I

The district court made detailed findings of fact and conclusions of law that we summarize here. Plaintiff is a service-connected, totally and permanently disabled veteran entitled to lifetime hospital and medical services from the VA. He has suffered for almost forty years from idiopathic retroperitoneal fibrosis, or Ormond's disease.[1] Over the years he has required repeated hospitalization for treatment related to his Ormond's disease, and also for psychiatric care.

In a prior FTCA case, plaintiff asserted malpractice for treatment at the VA from December 1976 through July 1980. The district court in that case found that the VA system failed to provide adequate medical care to plaintiff and awarded him $474,000 in damages. See Deasy v. United States, No. 83-M-899 (D.Colo. Dec. 27, 1985); II Supp. App. 383-405. Plaintiff then investigated obtaining private insurance coverage as an alternative to VA services but found he could not obtain coverage for his preexisting condition.

Plaintiff then met with Larry Seidl, M.D., an internist who was chief of staff at the Denver VA hospital, who agreed to become his primary treating physician. When plaintiff was hospitalized in 1987 for a kidney and urinary tract infection, he again became concerned with the quality of his treatment at the Denver VA hospital. Dr. Seidl ultimately drafted a document titled "Important Notice to All Physicians Treating John Deasy" (Dr. Seidl's notice). II Supp.App. 367. The notice contained information about plaintiff's medical history, including his primary diagnosis of idiopathic retroperitoneal fibrosis, and briefly outlining the physical and psychiatric treatments he had received. The notice stated that "[w]hat Mr. Deasy justifiably seeks is to obtain the optimum treatment available for his unusual medical condition and to avoid improper and ineffective or harmful treatment — which he has experienced in the past — based on review of his medical records, which include diagnoses, both medical and psychiatric, that are highly suspect, in my opinion." Id. The notice explained that the psychiatric diagnoses in plaintiff's history are highly suspect because

they have occurred either during a period when his Ormond's disease has been active with secondary renal function impairment and its resulting toxicity; or they have occurred during periods when he was receiving multiple medications including corticosteroids to control the Ormond's disease which became active undiagnosed — to be detected only later when it interfered with other organ functions. From December 1976 through August 1980, his psychiatric diagnoses included chronic schizophrenia, manic-depressive psychosis and organic brain syndrome. It is more than highly probable in my opinion that his mental symptoms resulted from the adverse effects of multiple medications including corticosteroids. During this period, he experienced an active phase of the Ormond's disease initially undetected, which caused common bile duct obstruction and the removal of an acalculus gall bladder. Subsequently the inferior vena cava syndrome developed secondary to the fibrosis. It should be noted here that during 357*357 periods when the Ormond's disease is active, Mr. Deasy may be highly sensitive to drugs and drug therapy of any kind should be conservative and closely monitored. ... The toxic side-effects of his underlying disease and its treatment should always receive primary consideration in evaluating Mr. Deasy's mental and emotional symptoms during treatment in the Veterans Administration Department of Medicine and Surgery.

Id. The notice included instructions that it be displayed as the top sheet in each volume of plaintiff's medical records. The notice was signed by Dr. Seidl; however, it did not reflect the signature or concurrence of a psychiatrist.

In December 1989, plaintiff was staying at the Fort George Meade military base near Baltimore, Maryland, when he developed peripheral edema related to Ormond's disease and the inferior vena cava syndrome. Despite plaintiff's use of a diuretic the edema continued to worsen. On December 19, plaintiff decided to leave Fort Meade. Because of the edema, his feet were too swollen to wear his shoes. He decided to load his belongings into his van by taking them out a window so that he could avoid walking in the snow in his bare feet. Military police officers came upon plaintiff as he was using a hunting knife to pry the screen off a window. The military police decided that plaintiff needed medical or psychiatric care and took him to the Fort Meade infirmary. Plaintiff became agitated and uncooperative and was transferred to the Baltimore VA medical center.

Upon arrival at the Baltimore VA, plaintiff was evaluated by psychiatrists and became enraged when despite his requests he was not treated for his edema. During his brief stay at the Baltimore VA, psychiatrist David Barrett, M.D., diagnosed him with bipolar disorder manic psychosis, and prescribed thorazine. Although plaintiff's friend and former treating psychologist, Dr. Thomas Holman, gave Dr. Barrett the notice signed by Dr. Seidl, Dr. Barrett analyzed an electrolyte test and decided that plaintiff's physical condition was not causing the psychiatric disturbance. Dr. Barrett did not prescribe any medication or other treatment for the edema, although he noted that plaintiff's legs were edematous. After a few hours Dr. Barrett decided to transfer plaintiff to the Perry Point VA medical facility, which is primarily a psychiatric facility. As part of the transfer procedure, another psychiatrist, Robert Fiscella, M.D., also examined plaintiff and diagnosed him as acutely manic.

When plaintiff was admitted at Perry Point, yet another psychiatrist, Eapen Abraham, M.D., noted that both of plaintiff's legs and feet were edematous. As with Dr. Barrett, Dr. Abraham read Dr. Seidl's notice but found normal electrolyte levels and concluded plaintiff's physical condition was not causing his psychiatric problems. Plaintiff did not receive a medical consultation until December 22, but even though that examining physician noted plaintiff's edema required attention, he prescribed no medication. Finally on December 28 plaintiff received a one-time dose of Lasix, a diuretic. The next day plaintiff fled Perry Point because he was afraid he would have life-threatening renal failure if he did not receive proper medical care.

Plaintiff returned to Denver, and was admitted in two private psychiatric hospitals. On January 29 he transferred to the Denver VA. Jay Griffith, M.D., a psychiatry resident, examined him. Dr. Griffith read but disagreed with the contents of Dr. Seidl's notice; he diagnosed plaintiff as suffering from "bipolar disorder manic phase." App. 188. Dr. Griffith continued plaintiff on Lasix, and set up a medical consultation for him. Plaintiff, however, left the Denver VA the next day because he wanted to get treatment for the edema, which had caused marked abdominal distension.

On January 30, plaintiff's friends arranged an appointment with Russell Simpson, M.D., a private internist, who testified that plaintiff had "one of the worse cases of edema that [he'd] seen." II Supp.App. 308. Dr. Simpson treated the edema with intravenous diuresis in the hospital; after three days plaintiff was discharged in stable physical and psychiatric condition.

In May 1990, plaintiff sought psychiatric treatment from Richard Rewey, M.D., a psychiatrist who had evaluated him in 1984. Dr. 358*358 Rewey testified at trial that plaintiff suffered PTSD as a result of VA treatment that was the subject of plaintiff's first FTCA suit. Dr. Rewey testified that the VA's treatment of plaintiff in December 1989 and January 1990 caused a flare-up of his PTSD in December 1990, requiring psychiatric treatment.

The district court noted that doctors who had treated plaintiff for more than a few days agreed that his psychiatric problems were at least partly caused by organic abnormalities, while doctors who had only briefly examined him or his records diagnosed him with bipolar disorder. It noted that even with this diagnosis, medications for bipolar patients were not prescribed for plaintiff. The district court then found that plaintiff suffered PTSD in reaction to improper treatment in the VA hospitals. The court determined that because plaintiff's "well-founded fear of maltreatment in the V.A. system actually causes or precipitates serious psychiatric problems ... provision must be made for [plaintiff] to receive medical and psychiatric treatment outside the V.A. system." App. 63.

II

The United States contends the district court's finding that the VA doctors committed malpractice was clearly erroneous. Because this is an FTCA case we apply the law of both Maryland and Colorado where the alleged malpractice occurred. Under Maryland law a prima facie case of medical malpractice consists of "(1) determining the applicable standard of care, (2) demonstrating that this standard has been breached, [and] (3) developing a causal relationship between the violation and injury." Muenstermann v. United States, 787 F.Supp. 499, 520 (D.Md.1992). In Colorado, "[t]o establish a prima facie case, the plaintiff must establish that the defendant failed to conform to the standard of care ordinarily possessed and exercised by members of the same school of medicine practiced by the defendant." Melville v. Southward, 791 P.2d 383, 387 (Colo.1990).

The United States asserts that the district court finding of malpractice rested on a determination that the VA hospitals failed to properly treat plaintiff's edema, which contributed to his psychosis and PTSD and ultimately rendered him incapable of utilizing the VA hospitals. The United States asserts that "this theory, which is itself suspect, can support a damages award only if the VA's treatment of Mr. Deasy's edema, the sole malpractice alleged, fell below the level of care required of physicians who treat edemas." Brief for Appellant at 13 (citing Armbruster v. Edgar, 731 P.2d 757, 759-60 (Colo. App.1986), and Muenstermann, 787 F.Supp. at 520-21).

The United States then argues that its witness, Stuart Linas, M.D., a board certified internist and nephrologist who testified that the VA hospitals treated plaintiff properly for edema, was the only expert qualified to testify on the standard of care for treating edema. The United States asserts that plaintiff's psychiatrists were not qualified to offer an expert opinion on the standard of care for edema because that condition lies outside their specialty, see Greene v. Thomas, 662 P.2d 491, 493-94 (Colo.App.1982) ("expert witness must have acquired, through experience or study, more than just a casual familiarity with the standards of care of the defendant's specialty"); Smith v. Pearre, 96 Md.App. 376, 625 A.2d 349, 359 (physicians testifying outside of own specialties must "have sufficient knowledge, skill, and experience to make a well-informed opinion"), cert. denied, 332 Md. 454, 632 A.2d 151 (1993), and that the record does not support a finding that the VA hospitals' treatment of plaintiff's edema constituted malpractice. We disagree.

Psychiatric experts asserted that the VA psychiatrists' failure to provide medical treatment for plaintiff's edema, or to refer him to specialists for such treatment, fell below the standard of care for psychiatrists. See I Supp.App. 188-89, 192 (Dr. Rewey); see also II Supp.App. 278-85 (William McCaw, M.D.) (giving opinion that if edema was treated plaintiff's psychotic episode would perhaps be reduced); id. at 347-56 (John L. Wiberg, M.D.) (stating that plaintiff's edema would affect his brain, resulting in psychotic behavior; and that "immediate medical consultation" should be sought by 359*359 treating psychiatrist). Of course, under both Maryland and Colorado law a psychiatrist can testify to the standard of care for psychiatry. Plaintiff relied upon psychiatric experts' testimony that it was a breach of the psychiatric standard of care to fail to refer plaintiff to an internist or nephrologist for further evaluation of his edema, and that the failure to do so increased his psychiatric symptoms. This evidence supports the district court's malpractice finding. The failure to treat or refer plaintiff while he was in the Maryland VA continued for over a week. The failure to treat plaintiff's edema upon his admission to the Colorado VA appears less egregious because he was scheduled to be seen the next day by a specialist. Nonetheless, plaintiff's experts testified that the Denver VA psychiatrists should have evaluated and treated plaintiff's edema immediately. This conclusion is supported by testimony by Dr. Simpson, an internist, that immediately after leaving the Denver VA, plaintiff had one of the worst cases of edema that he had seen, requiring hospitalization. Although the United States presented evidence that the VA did not breach its duty of care, the district court's finding to the contrary is supported by the record.[2]

III

The United States asserts that the district court erred in awarding plaintiff damages in the form of lifetime free medical and psychiatric care. Furr v. AT & T Technologies, Inc., 824 F.2d 1537, 1548 (10th Cir. 1987). The amount of damages is a finding of fact that we uphold unless clearly erroneous. See Fed.R.Civ.P. 52(a). The United States points out that although the plaintiff "is entitled to be compensated for losses attributable to the injury inflicted ... it is only the damage flowing legally from the defendant's misdeeds which counts." Brief for Appellant at 22 (quoting Westric Battery Co. v. Standard Elec. Co., 482 F.2d 1307, 1318 (10th Cir.1973)). It argues that lifetime medical care is not compensation for injuries caused by failure to coordinate plaintiff's care or any delay in treating plaintiff's edema; also that if the district court based its award on a finding that plaintiff would continue to receive improper care from the VA in the future, the ruling is too speculative to support a damage award.

The district court, however, specifically found that the VA's malpractice caused plaintiff to suffer from a recurrence of PTSD. This finding is supported by the record. See, e.g., I Supp.App. 170-94 (psychiatrist testified that the VA's treatment of plaintiff in December 1989 to January 1990 caused flare-up of PTSD). The district court found that the PTSD itself arose out of his years of improper treatment.

[It] has evolved to the point where his reaction to medical maltreatment has become a separate and distinct psychiatric problem — namely post-traumatic stress disorder. Once triggered, this disorder exacerbates whatever psychosis may be presenting at the same time. If not treated for his Ormond's disease and its resulting problems, Mr. Deasy becomes so distrustful, anxious, and enraged that he literally is unable to cooperate with treatment being offered.

App. 51. The basis of the district court's decision to award a sum of money to permit plaintiff to receive the future care he would need outside the VA system was that "the medical testimony establishes that after decades of substantial treatment, [plaintiff's] well-founded fear of maltreatment in the V.A. system actually causes or precipitates serious psychiatric problems." Id. at 63. We cannot find this conclusion clearly erroneous.

The award here is very substantial. But plaintiff was entitled to lifetime free care in government hospitals; he has extremely serious physical and mental illnesses. Both Maryland and Colorado recognize the "thin skull" rule: "a tortfeasor must accept his or her victim as the victim is found." Schafer v. Hoffman, 831 P.2d 897, 900 (Colo.1992). Compensation for loss of medical services would not, of course, be appropriate merely because a plaintiff disliked the care provided by the VA; however, this is a rare case in which plaintiff produced expert testimony 360*360 supporting a finding that, due to the VA's own negligence, further treatment in a VA hospital would result in recurrence of his PTSD. The district court's award of damages thus serves to make plaintiff whole. See Ballow v. PHICO Ins. Co., 878 P.2d 672, 677 (Colo.1994) ("[c]ompensatory damages are awarded in order to make the injured party whole").

The United States did not object in the district court to awarding damages in the form of a trust, with any sums remaining at plaintiff's death reverting to the government. This ensures that plaintiff does not receive a windfall. We have approved reversionary trusts in FTCA cases involving large awards for future medical needs. See Hill v. United States, 81 F.3d 118 (10th Cir.), cert. denied, ___ U.S. ___, 117 S.Ct. 56, 136 L.Ed.2d 19 (1996); Hull v. United States, 971 F.2d 1499 (10th Cir.1992), cert. denied, 507 U.S. 1030, 113 S.Ct. 1844, 123 L.Ed.2d 469 (1993). We perceive no error in this aspect of the district court's award.

IV

Finally, the United States argues that the $600,000 noneconomic damages awarded by the district court were excessive. We review the award of noneconomic damages for clear error, to determine whether "the award shocks the judicial conscience." Miller v. United States ex rel. Dep't of the Army, 901 F.2d 894, 897 (10th Cir.1990). Based on the extent of plaintiff's physical and emotional injuries he sustained as a result of the VA's malpractice, we cannot conclude that these noneconomic damage awards were excessive.

AFFIRMED.

[1] Ormond's disease causes scar tissue in the peritoneal cavity which can encase tubular organs or structures between organs, including veins and arteries. It is a cyclical disease which tends to have alternating periods of activity and remission. It is apparently difficult to diagnose; in fact, plaintiff was originally diagnosed with Ormond's disease and Hodgkins disease and was treated for both for some period of time.

[2] The district court also noted that although some of defense experts asserted that plaintiff should have received medication for his bipolar disorder, he did not. App. 55-56.

Veteran Wins $600K in VA Hospital Malpractice, VA Failed to Refer

Full Article at: Veteran Awarded $600,000 for VA’s Failure to Refer him for Medical Treatment

June 23, 2010 by Terry Richards

All Veterans who currently receive or formerly received VA Medical Care should read this story to see if this same type of VA Malpractice happened to them. If it did, then they may have a Legal Cause of Action for a Federal Tort Claim. Even if the Statute of Limitations has expired you can still file a SECTION 1151 CLAIM for Service-Connected Disability which has NO TIME LIMIT. At the end of this story there will be a Link with further information about SECTION 1151 CLAIMS and suing the VA for Medical Malpractice in a Federal Tort Claim, among other things.


VA Hospital Malpractice; Failure To Refer Patient
Deasy v. US., 99 F.3d 354 (1996)

Under Colorado and Maryland law, the evidence supported a district court’s finding that Veterans Administration (VA) psychiatrists committed malpractice by failing to refer a patient for medical treatment for his edema, held the U.S. 10th Circuit Court of Appeals. This was so even though the government claimed the plaintiff’s psychiatrists were not qualified to offer expert opinion on the standard of care required of physicians who treat edema, since the relevant issues in the case were whether it was a breach of the psychiatric standard of care to fail to refer the patient and whether failure to do so increased the patient’s psychiatric symptoms, on which the psychiatrists were qualified to give expert opinions, said the court.

The court also found that the district court’s award of damages to the patient in the form of a reversionary trust for lifetime medical and psychiatric care outside the VA system was not clearly erroneous, as the patient was entitled to a lifetime of free care in government hospitals, but, due to the VA’s malpractice, further treatment in a VA hospital would result in a recurrence of the patient’s serious psychiatric problems.

In addition, the court held that an award of $600,000 to the patient for pain and suffering was not excessive. Failure to treat the patient’s severe case of edema resulted in post-traumatic stress disorder (PTSD).

In this case, a patient brought a Federal Tort Claims Act (FTCA) suit for medical malpractice against the U.S. and VA hospitals. The district court entered judgment for the patient, and the appeals court affirmed."

Leader of Pentagon's Premiere TBI Treatment Program Unexpectedly Resigns

One has to wonder what is going on when you have such a sudden stepping down by a high profile, Brig. Gen., leader of the "Pentagon's premiere program for treatment and research into brain injury and post traumatic stress disorders".


Full Article at: Leader of Military’s Program to Treat Brain Injuries Steps Down Abruptly
by T. Christian Miller, ProPublica, and Daniel Zwerdling, NPR - June 23, 2010

WASHINGTON, D.C.--The leader of the Pentagon's premiere program for treatment and research into brain injury and post traumatic stress disorders has unexpectedly stepped down from her post, according to senior medical and congressional officials.

Brig. Gen. Loree Sutton told staff members at the Defense Centers of Excellence [1], or DCOE, on Monday that she was giving up her position as director. Sutton, who launched the center in November 2007, had been expected to retire next year, officials with knowledge of the situation said. The center has not publicly announced her leaving.

Sutton's departure follows criticism in Congress [2] over the performance of the center and in recent reports [3] by NPR and ProPublica that the military is failing to diagnose and treat soldiers suffering from so-called mild traumatic brain injuries, also called concussions.

It comes just as the Pentagon prepares to open a new, multimillion-dollar showcase treatment facility outside Washington, D.C., for troops with brain injuries [4] and post traumatic stress disorder, often referred to as the signature wounds of the wars in Iraq and Afghanistan.

Late Wednesday, in a sign of disarray within the program, Sutton cancelled a scheduled appearance at the opening of the National Intrepid Center of Excellence [5], a gleaming new facility of waving glass and futuristic virtual reality treatment rooms in Bethesda."

Camp Lejeune Veteran,Thomas McLaughlin, Received 30%, Kidney Cancer

Full Article at: Another Lejeune vet gets VA disability related to contaminated water
June 22, 2010
HOPE HODGE

"A Marine veteran from Hampden, Mass., is the latest in a series of former Camp Lejeune residents to get full or partial disability benefits from the Department of Veterans Affairs related to exposure to contaminated water aboard the base.

Thomas McLaughlin, 68, received a 30-percent disability grant in April for kidney cancer that more likely than not resulted from his residence aboard Lejeune’s Camp Geiger in 1962, according to the VA. He was honorably discharged from the Corps as a staff sergeant in 1969, and was diagnosed with cancer in 2007.

McLaughlin attributes his successful claim to the work of his late wife, Sally, who hired law firm Nixon-Peabody, made contact with doctors and lobbied various Washington, D.C. offices on behalf of her husband and all veterans affected by the volatile organic solvents and benzene that polluted base residential drinking water between the 1950s and 1980s. Sally McLaughlin died suddenly in January of stomach cancer; McLaughlin said he does not know whether or not her illness was water-related as well.

Gregory Deschenes, the lawyer who assisted with McLaughlin’s claim after it was first denied by the VA last year, said strong medical support and a doctor’s opinion helped his client join the handful of water contamination victims to receive related VA benefits."

Informal Camp Lejeune Meeting, Veterans and Dependents

Full Article at: Camp Lejeune Informational Meetings

June 18, 2010 posted by Robert O'Dowd

Veterans and dependents are holding a series of informational meetings to spread the word to others on Camp Lejeune’s water well contamination. The Marine base’s water system was contaminated with organic solvents. Exposure to organic solvents has been linked to cancer and other serious diseases.

(CAMP LEJEUNE, NC) – Veterans and dependents affiliated with “The Few The Proud The Forgotten” (see http://www.tftptf.com/), a Camp Lejeune website, have held two informational meetings in Virginia and Florida to provide critical information to veterans and dependents on the water well contamination at Camp Lejeune. Additional meetings are planned in July and August in Roanoke, Virginia Beach, Charlotte, Syracuse, and Pittsburgh.

The Bell Legal Group sponsored two informational meetings for Camp Lejeune. Jerry Ensminger, a retired Marine Master Sergeant, spoke at the first meeting in NC and Mike Partain, a former Camp Lejeune dependent and male breast cancer survivor, spoke at second meeting here in Florida.

According to Mike Partain, they were not really sure what to expect with these meetings or who would show. Based on their experiences at the two meetings, it is quite apparent that our Camp Lejeune community is in the dark as to what happened at the base. Partain and Ensminger plan to hold future meetings to spread the word to others."

Abstract: Functional Impairment at 3 and 12 Months Post-Combat

Vol. 67 No. 6, June 2010


Abstract: Prevalence of Mental Health Problems and Functional Impairment Among Active Component and National Guard Soldiers 3 and 12 Months Following Combat in Iraq

Jeffrey L. Thomas, PhD; Joshua E. Wilk, PhD; Lyndon A. Riviere, PhD; Dennis McGurk, PhD; Carl A. Castro, PhD; Charles W. Hoge, MD

Arch Gen Psychiatry. 2010;67(6):614-623.

Context A growing body of literature has demonstrated the association of combat in Iraq and Afghanistan with postdeployment mental health problems, particularly posttraumatic stress disorder (PTSD) and depression. However, studies have shown varying prevalence rates of these disorders based on different case definitions and have not assessed functional impairment, alcohol misuse, or aggressive behavior as comorbid factors occurring with PTSD and depression.

Objectives To (1) examine the prevalence rates of depression and PTSD using several case definitions including functional impairment, (2) determine the comorbidity of alcohol misuse or aggressive behaviors with depression or PTSD, and (3) compare rates between Active Component and National Guard soldiers at the 3- and 12-month time points following their deployment to Iraq.

Design Population-based, cross-sectional study.

Setting United States Army posts and National Guard armories.

Participants A total of 18 305 US Army soldiers from 4 Active Component and 2 National Guard infantry brigade combat teams.

Interventions Between 2004 and 2007, anonymous mental health surveys were collected at 3 and 12 months following deployment.

Main Outcome Measures Current PTSD, depression, functional impairment, alcohol misuse, and aggressive behavior.

Results Prevalence rates for PTSD or depression with serious functional impairment ranged between 8.5% and 14.0%, with some impairment between 23.2% and 31.1%. Alcohol misuse or aggressive behavior comorbidity was present in approximately half of the cases. Rates remained stable for the Active Component soldiers but increased across all case definitions from the 3- to 12-month time point for National Guard soldiers.

Conclusions The prevalence rates of PTSD and depression after returning from combat ranged from 9% to 31% depending on the level of functional impairment reported. The high comorbidity with alcohol misuse and aggression highlights the need for comprehensive postdeployment screening. Persistent or increased prevalence rates at 12 months compared with 3 months postdeployment illustrate the persistent effects of war zone service and provide important data to guide postdeployment care.


Author Affiliations: Division of Psychiatry and Neuroscience, Walter Reed Army Institute of Research, US Army Medical Research and Materiel Command, Silver Spring, Maryland (Drs Thomas, Wilk, Riviere, and Hoge); US Army Medical Research Unit-Europe, Walter Reed Army Institute of Research, US Army Medical Research and Materiel Command, Heidelberg, Germany (Dr McGurk); Military Operational Medicine Research Program, US Army Medical Research and Materiel Command, Fort Detrick, Maryland (Dr Castro).

PTSD, Study Finds High Rates of Severe Functional Impairment in Returning Soldiers

Full Article at: High Rates of Severe Functional Impairment Found in Returning Soldiers Due to PTSD, Depression

Caroline Cassels

"June 15, 2010 — Approximately 10% of US Army soldiers returning from Iraq have severe functional impairment attributed to posttraumatic stress disorder (PTSD) or depression, new research shows.

A population-based, cross-sectional study conducted by investigators at the Walter Reed Army Institute of Research, Silver Spring, Maryland, found prevalence rates for serious functional impairment ranged from 8.5% to 14%. Furthermore, those with some impairment ranged from 23.2% to 31.1%.

Led by Jeffrey L. Thomas, PhD, the study is published in the June issue of Archives of General Psychiatry.

According to the study, a growing body of literature shows PTSD and depression are highly prevalent among military service members serving in Iraq and Afghanistan. However, investigators note, previous studies have shown "varying prevalence rates of these disorders based on different case definitions and have not assessed functional impairment, alcohol misuse, or aggressive behavior as comorbid factors occurring with PTSD and depression."

PTSD Association with Violent Behavior Related to Loss of Sleep, Hyperarousal

Full Article at: Study: Specific PTSD symptoms related to anger and aggressiveness among Iraq/Afghanistan veterans

"Eric Elbogen, PhD, [lead author of the study, an assistant professor of psychiatry in the UNC School of Medicine and a staff psychologist at the VA Medical Center in Durham, N.C.], "found that post-deployment anger and hostility were associated with PTSD hyperarousal symptoms: sleep problems, being 'on guard,' jumpiness, irritability, and difficulty concentrating."
"The data showed that PTSD symptoms such as flashbacks or avoiding reminders of a trauma were not consistently connected to aggressiveness".

Veterans who said they had difficulty controlling violent behavior were more likely to report witnessing pre-military family violence, firing a weapon during deployment, being deployed more than 1 year, and experiencing current hyperarousal symptoms. There was an association with a history of traumatic brain injury, but it was not as robust as the relationship to hyperarousal symptoms. Elbogen said, "Our data suggest the effects of traumatic brain injury on anger and hostility are not straightforward."

Veterans with aggressive urges were more likely than others to report hyperarousal symptoms, childhood abuse, a family history of mental illness, and reexperiencing a traumatic event. Difficulty managing anger was associated with being married, having a parent with a criminal history, and avoiding reminders of the trauma, as well as hyperarousal symptoms.

"As we learn more about risk factors and how to manage them, we'll be helping not only the veterans but their families and society at large. Veterans with these adjustment problems should seek help through the VA so we can best serve those who have served our country" Elbogen said.

Veterans Court Application of Fed.Cir. Golz v. Shinseki, record obtainment

The Golz Fed.Cir. decision was published in January 2010, here are some of the first applications of that decision on VA's duty to obtain records, as explained and cited by these Veteran Court Judges. These are long excerpts and we suggest that you review the complete decision to fully understand what is going on here.

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 07-2995
LESTER C. TURNER, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before MOORMAN, Judge.
MEMORANDUM DECISION
"VA's duty to assist includes making "reasonable efforts to assist a
claimant in obtaining evidence necessary to substantiate the claimant's claim for a benefit." 38 U.S.C. § 5103A(a)(1), (b); see Loving v. Nicholson, 19 Vet.App. 96, 102-03 (2005) (discussing requirement that the records be adequately identified). The duty to assist "is not boundless in its scope" and "not all medical records . . . must be sought – only those that are relevant to the veteran's claim." Golz v. Shinseki,590 F.3d 1317, 1320-21 (Fed. Cir. 2010). "Relevant records for the purpose of § 5103A are those that relate to the injury for which the claimant is seeking benefits and have a reasonable possibility of helping to substantiate the veteran's claim."). Id. at 1321; see, e.g., Moore v. Shinseki, 555 F.3d
1369, 1374 (Fed. Cir. 2009) (stating that "VA is statutorily required to
obtain all of the veteran's relevant service medical records, not simply those which it can most conveniently locate"). "As long as a reasonable possibility exists that the records are relevant to the veteran's claim, VA is required to assist the veteran in obtaining the identified records." Golz, 590 F.3d at 1323 (emphasis added); see McGee, 511 F.3d at 1357 (discussing VA's obligation, in fulfilling its duty to assist, to "fully and
sympathetically develop the veteran's claim to its optimum before deciding
it on the merits").
As noted by the appellant in his brief, he informed VA that (1) he was
treated at the Greek Army Hospital on the Island of Crete after the gas exposure in September or October 1954 (R. at 149, 228, 307-09), and that (2) he received treatment for blisters and hives at the Salem VAMC in
1955, while he was on active duty (R. at 228). As to these latter records,
the record reflects an
7


interoffice VA memo to file dated on March 28, 2006, stating that these
records were "unavailable for review" because on May 30, 2002, the Salem VAMC responded to an RO request for records "that there were no records at that facility." R. at 790. However, a notation to the DRO from a rating specialist on a deferred rating decision dated March 27, 2006, stated that there was some confusion by the clerk at the Salem VAMC who was searching for the records. The notation stated: E-mail from VAMC Salem on 5/30/02 appears that they don't have these records, although a clerk at VAMC Salem was somewhat confused about which vet she was looking for. Also, Salem should state that records are destroyed/location unknown (if this is the case.) Although this would be getting somewhat technical for a routine case, the likelihood of egregious error noncompliance with VCAA remand is very high, under these particular facts and circumstances. (VLJs know where retired records are [and] who makes memo determinations.) R. at 788. Thus, the appellant asserts that the duty to assist has not been adequately met."
========================================

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 08-0468
WAYLAND T. WHITLEY, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before SCHOELEN, Judge.
MEMORANDUM DECISION
"On appeal, the appellant asserts that his mental hygiene records from
service are pertinent to his claim because they would help establish that his PTSD symptoms began while he was in service. Appellant's Br. at 15. However, wholly absent from the appellant's argument is any indication that the records are relevant to establishing an earlier effective date for the award of his increased disability rating. Although the appellant cites Moore v. Shinseki, 555 F.3d 1369 (Fed. Cir. 2009), for the general proposition that his prior medical records cannot be deemed irrelevant merely because they predate the period in which benefits may be awarded (Reply Br. at 8-9), the U.S. Court of Appeal for the Federal Circuit recently explained that VA's "duty to assist is not boundless" and does not blindly require VA to obtain all medical records. See Golz v. Shinseki, 590 F.3d 1317, 1320-21 (Fed. Cir. 2010). The medical records must be "relevant." Id. "
Relevant records . . . are those records that relate to the injury for which the claimant is seeking benefits and have a reasonable possibility of helping to substantiate the veteran's claim." Id. at 1321 (emphasis added).
Thus, in the absence of any specific assertion as to how the appellant's
records dating back over 20 years could assist the Board in determining whether it was factually ascertainable that an increase in the appellant's disability actually occurred in the one year prior to his May 2003 claim for an
increased rating, the Court finds that the appellant has not demonstrated
prejudicial error. See Golz and Moore, both supra; see also Hart v. Mansfield, 21 Vet.App. 505, 509 (2007) ("When a claim for increased rating is granted, the effective date assigned may be up to one year prior to the date the application for increase was received if it is factually ascertainable that an increase in disability had occurred within that time frame.")."
======================================


UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 08-0698
JAMES D. HORTON, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before MOORMAN, Judge.
"II. ANALYSIS
A. Social Security Records
The appellant argues that VA failed in its duty to assist by not acquiring
SSA records associated with his claim. App. Br. at 7. Specifically, the appellant
states that he is receiving Social Security benefits awarded in 1993 and that "VA never sought to obtain these records." App. Br. at 7.
The Secretary states that VA did, in fact, obtain SSA records and that
those records were included in the record before the Agency. Sec'y Br. at 6, R. at 32-80. Further, the Secretary argues that the appellant failed to adequately identify what records VA had failed to obtain from SSA.
VA's duty to assist includes making "reasonable efforts to assist a claimant in obtaining evidence necessaryto substantiate the claimant's claim for a benefit." 38 U.S.C. § 5103A(a)(1), (b); see Loving v. Nicholson, 19 Vet.App. 96, 102-03 (2005) (discussing requirement that the records be adequately identified). VA is not required to assist a claimant in obtaining identified records "if no reasonable possibility exists that such assistance would aid in substantiating the claim." 38 U.S.C. § 5103A(a)(2); see Golz v. Shinseki, 590 F.3d 1317, 1320 (Fed. Cir. 2010).
The duty to assist "is not boundless in its scope" and "not all medical records or all SSA disability records must be sought –only those that are relevant to the veteran's claim." Golz, 590 F.3d at 1320-21 (emphasis added).
"Relevant records for the purpose of § 5103A are those that relate to the
injury for which the claimant is seeking benefits and have a reasonable possibilityof helping to substantiate the veteran's claim." Id.; see, e.g., Moore v. Shinseki, 555 F.3d 1369, 1374 (Fed. Cir. 2009) (stating that "VA is statutorily required to obtain all of the veteran's relevant service medical records, not simply those which it can most conveniently locate"); McGee v. Peake, 511 F.3d 1352, 1355, 1358 (Fed. Cir. 2008) (finding that the veteran's service personnel records at issue " would likely contain documentary evidence that may show whether McGee filed a claim for benefits prior to discharge" after the Board denied entitlement to an earlier effective date because the record did not contain any evidence of a previously filed claim); see also Quartuccio v. Principi, 16 Vet.App. 183, 187-88
3

(2002); Clarkson v. Brown, 4 Vet.App. 565, 567-68 (1993); Murincsak v.
Derwinski, 2 Vet.App. 363, 366, 370 (1992).
In both of the decisions here on appeal, the Board found that all relevant
evidence had been obtained. R. at 2; Suppl. R. at 2. The record on appeal contains 51 pages of SSA records. R. at 29-80. The appellant's brief does not discuss these documents but instead asserts that "VA never sought to obtain those [SSA] records." App. Br. at 7. The existence of these documents in the record contradicts the appellant's argument. Further, even assuming, arguendo, other SSA documents exist that VA did not obtain, appellant's brief makes no argument pertaining to the relevance of such SSA documents to the appellant's claims on appeal. Relevance, or at least the existence of a possibility of relevance, must be demonstrated in order to trigger a VA duty to obtain SSA records. See Golz, supra."

Filing Express Claims for Disability

This is an interesting concept, but we urge you to check with your attorney before filing this way.

Full Form in PDF at: Gov. EXEC.

Page 1
FULLY DEVELOPED CLAIM
(EXPRESS CLAIM NOTICE)
(Notice to Claimants of Information and Evidence Necessary to Substantiate a
Claim for VA Disability Live Compensation)
VA Form
FEB 2010 21-526EZ
WHAT THE EVIDENCE MUST SHOW TO SUPPORT YOUR CLAIM
Generally, veterans are eligible to receive compensation for disabilities related to military service.
To support a claim for service connection, the evidence must show:
1. You had an injury in military service, or a disease that began in or was made permanently worse
during military service, or there was an event in service that caused an injury or disease; AND
2. You have a current physical or mental disability. This may be shown by medical evidence or by lay
evidence of persistent and recurrent symptoms of disability that are visible or observable; AND
3. A relationship exists between your current disability and an injury, disease, symptoms, or event in
military service. Medical records or medical opinions are generally required to establish this relationship.
However, under certain circumstances, VA may presume that certain current disabilities were caused
by service, even if there is no specific evidence proving this in your particular claim. The cause of a
disability is presumed for the following veterans who have certain diseases:
Former prisoners of war;
● Veterans who have certain chronic or tropical diseases that become evident within a specific
period of time after discharge from service;
● Veterans who were exposed to ionizing radiation, mustard gas, or Lewisite while in service;
● Veterans who were exposed to certain herbicides, such as by serving in Vietnam; or
● Veterans who served in the Southwest Asia theater of operations during the Gulf War.
Thank you for participating in the Department of Veterans Affairs (VA) Express Claim Program. VA established the Express
Claim Program to expeditiously process claims certified by the claimant or his/her representative as meeting the Express
Claim criteria.
Express Claim Criteria:
1. For the purposes of this notice, your claim must be a rating-related claim for live compensation
(original, secondary, and increased disability service connection claims only) submitted on VA
Form 21-526EZ, Express Compensation Claim.
2. You must submit, with your claim, the Express Claim Certification signed and dated by you or
your authorized representative.
3. You must submit with the Express Claim Certification:
● All, if any, relevant, private medical treatment records for the disabilities you are claiming
and an identification of any treatment records from a Federal treatment facility such as a VA
medical center.
● For Guard and Reserve members, any and all Service Treatment and Personnel Records in the
custody of your Unit.
● If claiming dependents, a completed VA Form 21-686c, Declaration of Status of Dependents.
4. You must report for any VA medical examination VA determines are necessary to decide your claim.
Note: VA forms are available at www.va.gov/vaforms
This notice is applicable to any and all conditions claimed for service connection with your Express Claim. Upon
receipt of the Express Claim Certification, we will expedite your claim under the Express Claim Program. If it is determined
that your claim does not meet the Express Claim criteria we will process your claim through our
standard claim process.
Page 1
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To support a claim for compensation based upon an additional disability that was caused or aggravated by a service-
connected disability, the evidence must show:
● You currently have a physical or mental disability shown by medical evidence, in addition to your
service-connected disability; AND
●
Your service-connected disability either caused or aggravated your additional disability. Medical
records or medical opinions are required to establish this relationship. However, VA may presume
service-connection for cardiovascular disease developing in a claimant with a certain service-connected
amputation(s) of one or both lower extremities.
If VA previously granted service connection for your disability and you are seeking an increased evaluation of your
service-connected disability, we need medical or lay evidence to show a worsening or increase in severity and the effect that
worsening or increase has on your employment and daily life.
To support a claim for service connection based upon a period of active duty for training, the evidence must show:
● You were disabled during active duty for training due to disease or injury incurred or aggravated
in the line of duty; AND
●
You have a current physical or mental disability. This may be shown by medical evidence or by lay
evidence of persistent and recurrent symptoms of disability that are visible or observable; AND
● There is a relationship between your current disability and the disease or injury incurred or aggravated
during active duty for training. Medical records or medical opinions are generally required to establish
this relationship.
To support a claim for service connection based upon a period of inactive duty training, the evidence must show:
● You were disabled due to an injury incurred or aggravated during inactive duty training or suffered
an acute myocardial infarction, cardiac arrest, or cerebrovascular accident during inactive duty
training; AND
● You have a current physical or mental disability. This may be shown by medical evidence or by lay
evidence of persistent and recurrent symptoms of disability that are visible or observable; AND
● There is a relationship between your current disability and your inactive duty training. Medical records or
medical opinions are generally required to establish this relationship.
HOW VA DETERMINES THE DISABILITY RATING
When we find disabilities to be service connected, we assign a disability rating. That rating can be changed if there
are changes in your condition. Depending on the disability involved, we will assign a rating from 0 percent to as
much as 100 percent. VA uses a schedule for evaluating disabilities that is published as title 38, Code of Federal
Regulations, Part 4. In rare cases, we can assign a disability level other than the levels found in the schedule for a specific
condition if your impairment is not adequately covered by the schedule.
We consider evidence of the following in determining disability rating:
● Nature and symptoms of the condition;
● Severity and duration of the symptoms; and
●
Impact of the condition and symptoms on employment.
Examples of evidence that you should tell us about or give to us that may affect how we assign a disability evaluation include
the following:
● Information about on-going treatment records, including VA or other Federal treatment
records, you have not previously told us about;
● Social Security determinations;
● Statements from employers as to job performance, lost time, or other information regarding
how your condition(s) affect your ability to work; or
● Statements discussing your disability symptoms from people who have witnessed how the
symptoms affect you.
Page 2
Page 3
Page 3
HOW VA WILL HELP YOU OBTAIN EVIDENCE FOR YOUR CLAIM
Express Claim Process
In order for you to participate in the Express Claim Program, you must obtain records and provide them to VA. VA
will provide a medical examination for you, or get a medical opinion, if we determine it is necessary to decide your claim. For
this program, VA will only obtain service treatment records and treatment records from VA medical centers. If you serve or
previously served in the Guard or Reserves, you must contact your unit to find out if they still maintain custody of your service
records (including your medical records). If your unit currently has custody of your service records (including your medical
records), you must get a complete copy of these records and provide them to VA.
If it is determined that other records exist, and VA needs the records to decide your claim, or if you do not provide us with
your National Guard or Reserve records as described above, then your claim will not be processed as an Express Claim.
Your claim will be processed in our standard claim process.
Standard Claim Process
VA is responsible for getting relevant records from any Federal agency that you adequately identify and authorize VA to
obtain. These may include records from the military, VA medical centers (including private facilities where VA authorized
treatment), or the Social Security Administration. VA will provide a medical examination for you, or get a medical opinion, if
we determine it is necessary to decide your claim.
VA will make every reasonable effort to obtain relevant records not held by a Federal agency that you adequately identify and
authorize VA to obtain. These may include records from State or local governments, and privately held evidence and
information you tell us about (such as private doctor or hospital records), or current or former employers.
WHAT YOU NEED TO DO
You must submit all relevant evidence in your possession and provide VA information sufficient to enable VA to obtain all
relevant evidence not in your possession.
Express Claim Process
If you provide VA information sufficient to enable VA to obtain relevant service treatment records and VA treatment records,
if any, and you give VA all other records relevant to your claim, the claim may be decided under the Express Claim Process.
This means that, if you are aware of relevant records that are not in your possession, you should obtain them and provide
them to VA in order to participate in the Express Claim Process.
Standard Claim Process
If you know of evidence not in your possession and want VA to try to get it for you, you must give VA enough information
about the evidence so that we can request it from the person or agency that has it. If the holder of the evidence declines to
give it to VA, asks for a fee to provide it, or otherwise cannot get the evidence, VA will notify you and provide you with an
opportunity to submit the information or evidence. It is your responsibility to make sure we receive all requested
records that are not in the possession of a Federal department or agency.
If your claim involves a disability that you had before entering service and that was made worse by service, please provide
any information or evidence in your possession regarding the health condition that existed before your entry into service.
WHEN YOU SHOULD SEND WHAT WE NEED
Express Claim Process
Send the information and evidence with the Express Claim Certification. For this program, you must obtain and submit any
and all Service Treatment and Personnel Records in the custody of your Guard or Reserve Unit. If we decide your claim
before one year from the date we receive this claim, you will still have the remainder of the one-year period to submit
additional information or evidence necessary to support your claim.
Standard Claim Process
We strongly encourage you to send any information or evidence as soon as you can. If we do not hear from you, we may
make a decision on your claim after 30 days. However, you have up to one year from the date we receive this claim to
submit the information and evidence necessary to support your claim. If we decide your claim before one year from the date
we receive this claim, you will still have the remainder of the one-year period to submit additional information or evidence
necessary to support your claim.
Page 4
VA FORM
FEB 2010
21-526EZ
4. SEX
12E. PLACE OF SEPARATION
FEMALE
3. DATE OF BIRTH
MALE
2. SOCIAL SECURITY NUMBER
FULLY DEVELOPED CLAIM
(EXPRESS COMPENSATION CLAIM)
OMB Control No. 2900-xxxx
Respondent Burden: 25 minutes
VA DATE STAMP
(DO NOT WRITE IN THIS SPACE)
IMPORTANT: Please read the Privacy Act and Respondent Burden on the back before completing the form.
This claim must be submitted along with the attached, "Express Claim Certification."
SECTION I: TO BE COMPLETED BY VETERAN
7A. CURRENT ADDRESS
5. HAVE YOU EVER FILED A CLAIM WITH VA?
(If "Yes," provide your file number
in Item 6)
City
Street address, rural route, or P.O. Box
Cell phone
Evening
7B. TELEPHONE NUMBERS (Include Area Code)
Daytime
8A. PREFERRED E-MAIL ADDRESS (If applicable)
NO
YES
6. VA FILE NUMBER
10. LIST VA MEDICAL CENTERS WHERE YOU RECEIVED TREATMENT FOR YOUR CLAIMED DISABILITY(IES) AND PROVIDE TREATMENT DATES
8B. ALTERNATE E-MAIL ADDRESS (If applicable)
YES
NO
11A. DID YOU SERVE UNDER ANOTHER NAME?
11B. PLEASE LIST OTHER NAME(S) YOU SERVED UNDER
mo
(If "No," go to Item 12A)
(If "Yes," go to Item 11B)
12A. I ENTERED MY MOST RECENT PERIOD OF
ACTIVE SERVICE ON
YES
NO
13A. ARE YOU CURRENTLY ACTIVATED TO FEDERAL ACTIVE DUTY UNDER THE
AUTHORITY OF TITLE 10, U.S.C. (National Guard)?
14B. WHAT IS THE TELEPHONE
NUMBER OF YOUR CURRENT
UNIT? (Include Area Code)
(If "Yes," provide date of activation in Item 13B)
13B. DATE OF ACTIVATION
14A. WHAT IS THE NAME AND ADDRESS OF YOUR RESERVE/NATIONAL GUARD UNIT?
12C. RELEASE DATE OR ANTICIPATED DATE
OF RELEASE FROM ACTIVE DUTY
12B. BRANCH OF SERVICE
SECTION II: SERVICE INFORMATION
12D. DID YOU SERVE IN A COMBAT ZONE SINCE 9-11-2001?
NO
YES
1. VETERAN'S NAME (Last, first, middle)
15B. I PREVIOUSLY ENTERED ACTIVE SERVICE ON
YES
NO
15A. DO YOU HAVE ADDITIONAL PERIODS OF ACTIVE SERVICE?
(If "No," go to Item 16A)
(If "Yes," go to Item 15B)
Page 4
9. WHAT DISABILITIES ARE YOU CLAIMING?
B. DATE(S) OF TREATMENT
A. NAME AND LOCATION OF VA MEDICAL CENTER
Apt. number
State
ZIP Code
Country
day
yr
mo
day
yr
mo
day
yr
Page 5
I certify and authorize the release of information. I certify that the statements in this document are true and complete to the best of my knowledge. I
authorize any person or entity, including but not limited to any organization, service provider, employer, or government agency, to give the Department of
Veterans Affairs any information about me except protected health information, and I waive any privilege which makes the information confidential.
24B. PRINTED NAME AND ADDRESS OF WITNESS
PRIVACY ACT NOTICE: The form will be used to determine allowance to compensation benefits (38 U.S.C. 5101). The responses you submit are considered
confidential (38 U.S.C. 5701). VA may disclose the information that you provide, including Social Security numbers, outside VA if the disclosure is authorized under
the Privacy Act, including the routine uses identified in the VA system of records, 58VA21/22/28, Compensation, Pension, Education, and Vocational Rehabilitation
and Employment Records - VA, published in the Federal Register. The requested information is considered relevant and necessary to determine maximum benefits
under the law. Information submitted is subject to verification through computer matching programs with other agencies. VA may make a "routine use" disclosure for:
civil or criminal law enforcement, congressional communications, epidemiological or research studies, the collection of money owed to the United States, litigation in
which the United States is a party or has an interest, the administration of VA programs and delivery of VA benefits, verification of identity and status, and personnel
administration. Your obligation to respond is required in order to obtain or retain benefits. Information that you furnish may be utilized in computer matching programs
with other Federal or state agencies for the purpose of determining your eligibility to receive VA benefits, as well as to collect any amount owed to the United States by
virtue of your participation in any benefit program administered by the Department of Veterans Affairs. Social Security information: You are required to provide the
Social Security number requested under 38 U.S.C. 5101(c)(1). VA may disclose Social Security numbers as authorized under the Privacy Act, and, specifically may
disclose them for purposes stated above.
SECTION VI: WITNESSES TO SIGNATURE
SECTION V: CERTIFICATIONS AND SIGNATURE
23A. SIGNATURE OF WITNESS (If claimant signed above using an "X")
24A. SIGNATURE OF WITNESS (If claimant signed above using an "X")
22B. DATE SIGNED
23B. PRINTED NAME AND ADDRESS OF WITNESS
22A. YOUR SIGNATURE (Do NOT print)
VA FORM 21-526EZ, FEB 2010
RESPONDENT BURDEN: We need this information to determine your eligibility for compensation. Title 38, United States Code, allows us to ask for this
information. We estimate that you will need an average of 25 minutes to review the instructions, find the information, and complete this form. VA cannot conduct or
sponsor a collection of information unless a valid OMB control number is displayed. You are not required to respond to a collection of information if this number is not
displayed. Valid OMB control numbers can be located on the OMB Internet Page at www.whitehouse.gov/omb/library/OMBINV.VA.EPA.html#VA. If desired, you
can call 1-800-827-1000 to get information on where to send comments or suggestions about this form.
18.
SECTION IV: DIRECT DEPOSIT INFORMATION
19. ACCOUNT NUMBER (Please check the appropriate box and provide the account number, if applicable)
Generally, all Federal payments are required to be made by electronic funds transfer (EFT), also called Direct Deposit. Please attach a voided personal
check or deposit slip or provide the information requested below in Items 19, 20 and 21 to enroll in Direct Deposit. If you do not have a bank account, we
will give you a waiver from Direct Deposit, just check the box below in Item 19. The Treasury Department is working to make bank accounts available in
such situations. Once these accounts are available, you will be able to decide whether you wish to sign-up for one of the accounts or continue to receive
a paper check. You can also request a waiver if you have other circumstances that you feel would cause a hardship if you enrolled in Direct Deposit.
You can write to: Department of Veterans Affairs, 125 S. Main Street, Suite B, Muskogee, OK 74401-7004, and give us a brief description of why you do
not wish to participate in Direct Deposit.
SECTION III: MILITARY PAY
If you receive both military retired pay and VA compensation, some of the amount you get may be recouped by VA, or, in the case of Voluntary
Separation Incentive (VSI), by the Department of Defense.
21. ROUTING OR TRANSIT NUMBER (The first nine numbers located at
the bottom left of your check)
CHECKING
SAVINGS
20. NAME OF FINANCIAL INSTITUTION (Please provide the name of the bank
where you want your direct deposit)
IMPORTANT: Unless you check the box in Item 18 below, you are telling us that you are choosing to receive VA compensation instead of military
retired pay, if it is determined you are entitled to both benefits. If you are awarded military retired pay prior to compensation, we will reduce your
retired pay by that amount. VA will notify the Military Retired Pay Center of all benefit changes.
No, I do not want VA compensation in lieu of military retired pay.
YES
16A. DO YOU RECEIVE RETIRED PAY?
NO
17A. DID YOU RECEIVE ANY TYPE OF SEPARATION/SEVERANCE PAY?
YES
NO
(If "Yes," complete Item 16B)
(If "Yes," complete Items 17B and 17C)
16B. TYPE OF RETIRED PAY?
17B. LIST AMOUNT (If known)
LONGEVITY
TDRL
DISABILITY
17C. LIST TYPE (If known)
I CERTIFY THAT I DO NOT HAVE AN ACCOUNT
WITH A FINANCIAL INSTITUTION OR CERTIFIED
PAYMENT AGENT
Page 5
Page 6
Your signature on this response will not affect:
● Whether or not you are entitled to VA benefits;
●
The amount of benefits to which you may be entitled;
● The assistance VA will provide you in obtaining evidence to support your claim; or
● The date any benefits will begin if your claim is granted.
I have enclosed all the information or evidence that will support my claim to include identifying records from Federal treating
facilities, or I have no information or evidence to give VA to support my claim. Please decide my claim as soon as possible.
Page 6
EXPRESS CLAIM CERTIFICATION
VA FORM 21-526EZ, FEB 2010
Date
Claim Number
Name
Social Security Number
Claimant/Representative's Signature
Date

New TBI Assessment Tool, Cognitive Stability Index

Full Article at: Study raises questions about military's brain injury assessment tool
By Katherine McIntire Peters kpeters@govexec.com May 24, 2010

Senior Defense Department officials have stressed repeatedly in public they are doing everything they can to provide the best care possible to U.S. troops injured in Iraq and Afghanistan. But that might not be the case for the tens of thousands of troops who have experienced some form of brain injury.

Four years ago, a group of Air Force doctors treating wounded soldiers at field hospitals in Iraq sought a better way to evaluate the impact of blast injuries on soldiers' brains when there were no visible head wounds -- a condition known as mild traumatic brain injury. Mild TBI can be deceptive, because it often occurs without any outward signs of trauma. A soldier can recover completely from mild TBI, but left undiagnosed and untreated, it can lead to serious impairment over time, especially if the individual is exposed to additional blasts later on.

Lacking an adequate tool to help determine when it was safe to send soldiers back to combat, Air Force doctors in 2006 began using an off-the-shelf, Web-enabled assessment tool called the Cognitive Stability Index, developed by a small, New York-based company called Headminder. At least one of the Air Force doctors had used it before, liked it, and believed it could work well in the field.

The CSI was developed in 1999 by David Erlanger, a neuropsychologist, to measure deterioration, improvement or stability in people whose brain function has been compromised, either through illness, disease or injury. It has been used in a number of drug research studies and clinical settings and has a good track record, doctors unaffiliated with Headminder told Government Executive.

The Air Force doctors in Iraq were impressed enough with the CSI's clinical performance in the field that they sought and received approval from a military institutional review board to conduct a scientific study comparing the CSI to two other tools the military uses: a computer-based tool the Army developed in 1984, called the Automated Neuropsychological Assessment Metrics; and a basic screening tool developed by military medical personnel in 2006 called the Military Acute Concussion Evaluation. The study compared all three instruments to a paper-and-pencil tool called the Repeatable Battery for Assessment of Neuropsychological Status, and was conducted from late 2006 through August 2007 on troops who had lost consciousness at least briefly, because that was the only way in battlefield conditions to know if a soldier had in fact sustained a concussion. RBANS served as the standard against which the others were measured, because it is used widely in the Veterans Affairs Department and private institutions and is considered a reliable measure of cognitive ability.

This was the first combat study of its kind approved by an institutional review board, a panel of experts charged with ensuring that biomedical research involving human subjects meets federal regulations."

Informal Claim, Judge Hagel Dissent

What we find of interest in this case is Judge Hagel's dissent and comments on "informal claims".

HAGEL, Judge, dissenting: I write separately to express my disagreement with the majority's conclusion that the Board did not err in finding that Mr. King did not submit an informal claim for benefits. The Court should vacate the Board's finding that Mr. King did not communicate an intention to reopen his claim and remand the matter to the Board to provide adequate reasons or bases for its conclusions. The majority employs the incorrect standard of review, and it should have
found that the Board provided inadequate reasons or bases for reaching its conclusion.
A. Reasons or Bases
The Board in this case simply concluded that "[t]he record does not indicate any
communication from the veteran or his representative received prior to May 15, 2000, that may reasonably be construed as an indication he was seeking to reopen his claim for service connection." R. at 4. This declaration, void of any explanation, constitutes the totality of the Board's consideration of whether Mr. King submitted an informal claim.
The Court's jurisprudence is perfectly clear that, in making a finding on any material issue of fact or law, the Board is required to provide a statement of its reasons or bases for the conclusions it reaches. See 38 U.S.C. § 7104(d)(1). In so doing, the Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the
claimant. See Caluza v. Brown, 7 Vet.App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table).
Here, the Board stated that the dispositive question was whether the record contained any communications from Mr. King that could be construed as demonstrating an intent to reopen his previously denied claim for benefits. Because Mr. King's intent to reopen was the central question, the Board was required to discuss whether a notation in a June 1997 treatment record indicating that
12
Mr. King "wants to file a claim for service connected disability" demonstrates an intent to obtain benefits. R. at 74. At the very least, that note is material evidence that should have been discussed before the Board made its finding that Mr. King never communicated a desire to reopen his claim. Because the Board did not explain why Mr. King's June 1997 statement did not demonstrate an intent to file a claim for benefits, I cannot comprehend how the majority could find that there was a Board decision capable of review or one that Mr. King could understand. See Gilbert v. Derwinski, 1 Vet.App. 49, 57 (1990). Consequently, I would find that the Board provided inadequate reasons or bases for finding that he lacked an intent to apply for benefits. See Caluza, 7 Vet.App. at 506.
Accordingly, I dissent from the majority's opinion because I believe that the Court should have considered whether the Board provided an adequate statement of reasons or bases for its finding.
B. Intent to Make an Informal Claim
Mr. King intended to make an informal claim for benefits. The June 1997 medical record repeating Mr. King's statement to a VA official that he "wants to file a claim for service connected disability" constitutes an informal claim. R. at 74.
As the majority notes, there are three requirements that must be satisfied if the Board is to find that an informal claim has been filed. There must be (1) a communication in writing that (2) expresses an intent to apply for benefits, and (3) identifies the benefits sought. See Brokowski, 23 Vet.App. at 84; 38 C.F.R. § 3.155(a). All three requirements were satisfied here. Consequently, the June 1997 treatment note qualifies as an informal claim for benefits.
The first requirement is that an informal claim must be written. The purpose of requiring a writing is not to create a technical hurdle for claimants, but to allow for some precision in determining when an informal claim was made and establishing its general contents. See Rodriguez v. West, 189 F.3d 1351, 1354 (Fed. Cir. 1999). The U.S. Court of Appeals for the Federal Circuit stated that an informal claim must be written because "[t]o permit an oral statement to constitute the filing of an informal claim would create serious problems in the operation of the veterans benefits programs." Id. Thus, the informal claim must be written to prove that it was, in
fact, submitted.
13
In accomplishing this purpose, it is of no consequence by whom an informal claim is written, so long as it is written. The date of the informal claim in this case can be affixed with certainty, as the VA clinical specialist transferred Mr. King's intentions in June 1997. The fact that the writing was done by a VA clinician and not the claimant is irrelevant where the claimant directly communicates this information to the VA official Nor does § 3.155(a) provide a limitation in its definition of an informal claim as "[a]ny communication or action" from the claimant, a representative, a member of Congress, or a claimant's next friend. Although the communication must originate with the claimant, that does not mean that the writing must be made by any of the listed individuals. Here, there is no question that Mr. King himself made the communication to VA
when he stated that he wanted to make a claim for benefits and a VA employee simultaneously recorded that communication in an official VA document that is now contained in the claims file.
Thus, the first element of an informal claim, a writing, has been satisfied here.
The second requirement for an informal claim is that a claimant must express an intent to apply for benefits. In looking for intent, the Board is required to "interpret the appellant's submissions, broadly," although the claimant must have "asserted the claim expressly or impliedly." Brannon, 12 Vet.App. at 35.
The statement in the June 1997 VA medical record demonstrates a clear intent to apply for benefits. The VA clinical specialist wrote that Mr King "wants to file a claim for service connected disability." R. at 74. It is clear from this statement that Mr. King told a VA representative that he wanted VA benefits. Given the Board's obligation to interpret such statement's broadly, it is difficult
to envision how this statement fails to show an intent to obtain disability benefits.
The majority holds that this statement is insufficient to establish an intent to seek disability benefits because the clinical specialist then told Mr. King that he should apply for benefits. This holding misses the point; the standard is not whether the veteran had a reasonable intention to apply for benefits or took reasonable steps to act on that intention, but simply whether there was any
intention to obtain benefits. The fact that the VA representative told Mr. King to make the claim
elsewhere is of no relevance in evaluating Mr. King's intentions.
The underlying assumption seems to be that Mr. King could not have had an intention to seek
benefits because he made the request to the wrong part of VA. If Mr. King had made the same
14
statement to a Board member or decision review officer at a hearing or to anyone at a VA regional
office (i.e., "I want to file a claim for service-connected disability"), there can be no doubt that this
statement would have been seen as sufficient intent to seek disability benefits. Then why should the claimant's intent in seeking benefits be determined by the title of the VA representative to whom the statement is made? Certainly the regulation makes no such distinction, and veterans are not expected to be experts in VA's organizational structure. See Landicho, 7 Vet.App. at 50 (holding that informal claim requirements were satisfied by serving documents on the Secretary's litigation representatives).
Moreover, although it may well be within the Secretary's authority, VA has not promulgated a regulation establishing which of its employees may receive a formal or informal claim. Because I see no basis for concluding that a medical specialist at a VA medical center cannot receive an informal claim, and because Mr. King stated that he wanted to file a claim for disability benefits, I would find that, reading the claim sympathetically, Mr. King displayed sufficient intent that he was applying for benefits. See Brokowski, 23 Vet.App. at 84.
The third and final requirement for finding that an informal claim has been filed is that the claimant must identify the benefit sought. A "claimant's identification of the benefit sought does not require any technical precision." Id. Again, the Board must interpret a claimant's submission broadly and sympathetically. Id.
Here, I would find that Mr. King identified the benefit sought, as he described complaints relating to schizophrenia to a VA clinical specialist before stating that he wanted a "service connected disability." R. at 74. Mr. King was not required to specifically name the condition for which he wanted benefits, as long as he identified the symptoms. See Ingram v. Nicholson, 21 Vet.App. 232, 256-57 (2007) (holding that the Secretary, not the claimant, must evaluate whether there is potential to assign benefits for described symptoms). Thus, Mr. King sufficiently identified the benefit sought.
Because Mr. King displayed an intent to seek disability benefits for schizophrenia, and because that intention is memorialized in a writing by a VA official and has since that time been in an official VA record, I would find that Mr. King made an informal claim to reopen his previously denied schizophrenia claim in June 1997. See Browkowski, 23 Vet.App. at 84. Because all of the requirements for an informal claim were satisfied, I would find that the Board's finding that there
15
was no indication that Mr. King made an informal claim was arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law. 38 U.S.C. § 7261(a)(3)(A).
For these reasons, I respectfully dissent from the majority's decision.
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++

Chief Judge Greene replaced Judge Farley, who issued the December 1 17, 2008, decision, but whose period
of recall service expired. See 38 U.S.C. § 7257(b)(2) (providing for period of service for recall-eligible retired judges).
THIS VERSION OF THE OPINION INCLUDES THE JUNE 4, 2010, ERRATA
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO . 07-1214
EARLEE KING, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
On Motion for Reconsideration
(Decided May 28, 2010)
John F. Cameron, of Montgomery, Alabama, was on the brief for the appellant.
Robert Schneider, with whom Richard Mayerick, Deputy Assistant General Counsel,
R. Randall Campbell, Assistant General Counsel, and Paul J. Hutter, General Counsel, all of
Washington, D.C., were on the brief for the appellee.
Before GREENE, Chief Judge,1 and HAGEL and DAVIS, Judges.
GREENE, Chief Judge, filed the opinion of the Court. HAGEL, Judge, filed a dissenting
opinion.
GREENE, Chief Judge: Veteran Earlee King appeals, through counsel, a January 8, 2007,
Board of Veterans' Appeals (Board) decision that denied him an effective date prior to May 15, 2000,
for his award of VA service connection for schizophrenia. Mr. King argues that the Board erred by
(1) assigning him a May 15, 2000, effective date, (2) not providing an adequate statement of reasons
or bases for its decision, and (3) assigning his appeal an incorrect docket number. In a December 17,
2008, single-judge decision, the Court affirmed the 2007 Board decision. Mr. King timely filed a
motion for reconsideration or in the alternative for panel consideration. Mr. King's motion for panel
2
consideration will be granted, the Court will withdraw its December 2008 decision, and this panel
opinion will be issued in its stead. Because we hold that (1) a September 1993 VA consultation
report noting that a claimant has not appeared for a scheduled examination is not new evidence under
38 C.F.R. § 3.156, and (2) Mr. King's statements to VA health professionals expressing a wish or
desire to be service connected that are recorded in medical reports by VA physicians prepared after
the examinations do not constitute new and material evidence or informal requests to reopen a
claimant’s previously disallowed claim for service connection, the Board’s January 8, 2007, Board
decision will be affirmed.
I. BACKGROUND
Mr. King served honorably in the U.S. Army from February 1980 to October 1983. Record
(R.) at 11, 22. In February 1992, he submitted to a VA regional office (RO) a claim for VA benefits
for schizophrenia. R. at 11-14. In May 1992, the RO found that there was no evidence that Mr. King
had schizophrenia either during service or at the time he requested service connection and denied
his claim. R. at 25. He appealed and, in August 1994, the Board also denied his claim on the basis
that there was no evidence that Mr. King was diagnosed with schizophrenia within one year of his
service or that he had a current psychiatric disability that was connected to or incurred by service.
R. at 47-53. Mr. King did not appeal and that decision became final.
On May 15, 2000, Mr. King sought to reopen his claim for service connection (R. at 60) by
presenting VA medical records dated September 1993, March 1995, and June 1997 demonstrating
that he had been seen by VA health professionals during that time period (R. at 70, 74, 186). In
June 2000, after considering this evidence, the RO found that although some of the evidence
submitted was new, none was material evidence sufficient to reopen Mr. King's claim. R. at 114-15.
Mr. King appealed to the Board and presented testimony by his mother that he had suffered from
schizophrenia-like symptoms since his separation from service. R. at 136-58. On appeal, the Board
found that new and material evidence had been submitted since the August 1994 Board decision and
reopened the claim. R. at 303-11. Accordingly, the matter was remanded to the RO for additional
development.
3
In August 2004, Mr. King was granted service connection for schizophrenia with a 100%
disability rating, effective May 15, 2000, the date VA had received Mr. King's claim to reopen. R. at
428-32. He appealed the assigned effective date and, in January 2007, the Board denied him an
earlier effective date after finding that there was no "evidence or statement dated prior to the May 15,
2000, application to reopen the claim for service connection for a psychiatric disorder that can be
construed as an earlier application to reopen." R. at 4. This appeal followed.
II. ANALYSIS
A. New and Material Evidence Submitted within Appeal Period
Mr. King first argues that the findings contained in the September 1993 VA consultation
report entitle him to an earlier effective date for his schizophrenia rating. The September 1993 VA
consultation report recorded that Mr. King had missed three appointments for testing for a possible
diagnosis of schizophrenia. R. at 70. Mr. King argues that the Board erred in failing to recognize
that this evidence constituted new and material evidence that was filed with VA during the period
he was appealing the May 1992 RO denial of his claim.
Although the effective date of an award based on a claim reopened is generally the date of
receipt of the application, if new and material evidence is received within one year after the date of
mailing of an RO decision, it may be "considered as having been filed in connection with the claim
which was pending at the beginning of the appeal period" that prevents an initial determination from
becoming final. 38 C.F.R. § 3.156(b) (2009); see Young v. Shinseki, 22 Vet.App. 461, 466 (2009);
see also Muehl v. West, 13 Vet.App. 159, 161 (1999) (holding that records constituting new and
material evidence received within one year after RO decision rendered RO decision nonfinal);
38 C.F.R. § 3.400(q) (2009) (providing that, as to new and material evidence received within appeal
period, "effective date will be as though the former decision had not been rendered"). Thus, if such
new and material evidence had been submitted and had not been acted upon, Mr. King’s claim could
still be pending until a decision had been made on that evidence. See 38 C.F.R. § 3.160(c) (2009)
("pending claim" is "[a]n application, formal or informal, which has not been finally adjudicated");
see also Ingram v. Nicholson, 21 Vet.App. 232, 240 (2007) ("[A] claim remains pending–even for
years–if the Secretary fails to act on a claim before him.").
To the extent that Mr. King asserts that 2 the 1994 Board decision ignored the September 1993 medical
treatment report, this is an argument that may constitute the basis for a motion asserting clear and unmistakable error
(CUE); that argument has no bearing on his appeal of the January 2007 Board decision. See 38 U.S.C. § 5109 (CUE
is collateral attack on final decision by RO or Board). The Court has jurisdiction only over those CUE arguments that
have been finally adjudicated by VA, and no such adjudication has been done in this case. See Vanerson v. West,
12 Vet.App. 254, 262 (1999) (“This Court does not have jurisdiction to review claims of [CUE] in the first instance.”);
see also Andre v. Principi, 301 F.3d 1354, 1361 (Fed. Cir. 2002) (holding that “each ‘specific’ assertion of CUE
constitutes a claim that must be the subject of a decision by the [Board] before the Veterans Court can exercise
jurisdiction over it”).
4
That, however, is not the case. New and material evidence is defined as new evidence that
either by itself, or when considered with previous evidence of record, relates to an unestablished fact
necessary to substantiate the claim. 38 C.F.R. § 3.156(a). The Board's determination of whether a
claimant has submitted new and material evidence is generally reviewed under the "clearly
erroneous" standard of review set forth in 38 U.S.C. § 7261(a)(4). See Suaviso v. Nicholson,
19 Vet.App. 532, 533-34 (2006); Elkins v. West, 12 Vet.App. 209, 217 (1999) (en banc).
Here, Mr. King has not established that the Board erred in failing to recognize the
September 1993 VA consultation report as new and material evidence. His argument that the
September 1993 VA examiner diagnosed him as having schizophrenia is not supported by the
evidence. A complete reading of the consultation report, which was before the Board, reveals that
Mr. King did not appear for his examination and that no testing of his psychiatric condition was
accomplished. Thus, no diagnosis of his condition could be provided.
Moreover, Mr. King's argument that evidence contained in the September 1993 VA
consultation report entitles him to an earlier effective date merely because it was "received" by VA
prior to the August 1994 Board decision is self defeating. Indeed, to the extent that this evidence
was received within the appeal period prior to the August 1994 Board decision as Mr. King argues,
it is presumed to have been considered in the Board's denial of his original schizophrenia claim.2
See 38 C.F.R. § 20.800 (2009) (appellant may submit additional evidence in connection with claim
after appeal to Board has been initiated). Accordingly, any failure by the Board to recognize the
September 1993 report as new and material evidence was not erroneous.
B. Reopening Previously Disallowed Claim
Mr. King next asserts that the documents that he submitted to VA concurrent with his
May 2000 application to reopen show prior communications to VA in which he made informal
5
requests to reopen his disallowed schizophrenia claim. He thus asserts that the Board erred in
determining that "the record does not include any communication from the veteran or his
representative received prior to May 15, 2000, that may reasonably be construed as an indication he
was seeking to reopen his claim for service connection." R. at 4. The Board's determination that a
formal or informal claim had not been filed prior to May 15, 2000, will be set aside if it is "arbitrary,
capricious, an abuse of discretion, or otherwise not in accordance with law." Westberry v. West,
12 Vet.App. 510, 513 (1999); see 38 U.S.C. § 7261(a)(3)(A).
Under 38 U.S.C. § 7104(b), the Board has no jurisdiction to consider a claim based on the
same factual basis as a previously disallowed claim. See DiCarlo v. Nicholson, 20 Vet.App. 52, 55
(2006) (holding that res judicata generally applies to VA decisions). However, the finality of a
previously disallowed claim can be overcome by the submission of new and material evidence. See
38 U.S.C. § 5108 ("If new and material evidence is presented or secured with respect to a claim
which has been disallowed, the Secretary shall reopen the claim and review the former disposition
of the claim."); Cook v. Principi, 318 F.3d 1334, 1339 (Fed. Cir. 2002) (en banc); see also
Andrews v. Nicholson, 421 F.3d 1278, 1281 (Fed. Cir. 2005). A claimant may submit an application
or claim to reopen a disallowed claim, at which point the Secretary, by regulation, must provide
some limited assistance. See Paralyzed Veterans of America v. Secretary of Veterans Affairs,
345 F.3d 1334, 1341 (Fed. Cir. 2003) (VA will perform document gathering assistance even before
claim is reopened); see 38 C.F.R. § 3.159(c)(1)-(3) (2009).
Congress has granted the Secretary the authority to prescribe the acceptable forms of
applications for benefits by claimants. See 38 U.S.C. § 501(a)(2). The Secretary's regulations
provide that a claim or application is "a formal or informal written communication requesting a
determination of entitlement or evidencing a belief in entitlement, to a benefit." 38 C.F.R. § 3.1(p)
(2009). The Secretary has defined an informal claim as a communication or action from the
claimant, the claimant's representative, a member of Congress, or the claimant's next friend
indicating an intent to apply for a VA benefit. 38 C.F.R. § 3.155(a) (2009). Additionally, the
Secretary has specifically prescribed that when a formal claim for benefits has already been filed,
"an informal request for increase or reopening will be accepted as a claim." 38 C.F.R. § 3.155(c).
And, quite notably, the Secretary by regulation has specifically limited the use of medical
6
examination reports as informal claims to circumstances where a "formal claim for pension or
compensation has been allowed or a formal claim for compensation disallowed for the reason that
the service-connected disability is not compensable in degree." 38 C.F.R. § 3.157(b).
Mr. King asserts that he presented informal requests to reopen his schizophrenia claim
through statements he made to VA medical professionals documented in VA medical records in
March 1995 and June 1997. He concedes, however, that, because he was not service connected for
schizophrenia until August 2004, the September 1993, March 1995, and June 1997 VA medical
records cannot form the basis for an earlier effective date pursuant to 38 C.F.R. § 3.157(b) in their
capacity as VA examination reports alone. See MacPhee v. Nicholson, 459 F.3d 1323, 1326 (Fed.
Cir. 2006); see also Norris v. West, 12 Vet.App. 413, 421 (1999) (discussing and explaining
interplay between §§ 3.157 and 3.155(c)); 52 Fed. Reg. 27339 (explaining that § 3.155(c) has been
cross-referenced to § 3.157 "for instructions regarding circumstances under which a report of
examination or hospitalization may be accepted as an informal claim"). For the following reasons,
we hold that the March 1995 and June 1997 statements cannot constitute informal requests to reopen
pursuant to 38 C.F.R. § 3.155(c) because they fail to demonstrate an intent to reopen a disallowed
claim.
Although § 3.155(c) does not define what manner of communication must be considered a
"request" for reopening a disallowed claim, our caselaw instructs that it is nearly synonymous to an
informal claim for compensation under § 3.155(a). See Norris, 12 Vet.App. at 421 ("the only real
benefit to a claimant that paragraph (c) provides is that the claimant need not file another formal
application for benefits as called for in 38 C.F.R. § 3.155(a)"); see also 38 C.F.R. § 3.155(a)
(requiring claimants to file formal application after informal claim is accepted and proper form is
provided). Further, we have held that an informal claim must be (1) a communication in writing that
(2) expresses an intent to apply for benefits, and (3) identifies the benefits sought. See Brokowski v.
Shinseki, 23 Vet.App. 79, 84 (2009); 38 C.F.R. § 3.155(a); see also MacPhee, 459 F.3d at 1325
(holding that VA regulations require claimant to identify benefit sought and indicate intent to apply
for benefits); Rodriguez v. West, 189 F.3d 1351, 1353 (Fed. Cir. 1999) (informal claim must be in
writing); Brannon v. West, 12 Vet.App. 32, 35 (1998) (holding that before VA can adjudicate
7
original claim for benefits, "the claimant must submit a written document identifying the benefit and
expressing some intent to seek it").
On March 8, 1995, Mr. King presented for treatment at a VA medical center requesting to
see a psychiatrist. R. at 186. After his examination, the examiner prepared a VA progress note
recommending that Mr. King undergo psychological testing in order to rule out, inter alia,
schizophrenia and recorded that he was "n[ot] s[ervice] c[onnected,] but is trying." Id. On June 27,
1997, Mr. King was examined by a VA psychiatrist. R. at 74. The report from that consultation
noted that Mr. King "wants to file a claim for service[-]connected disability," and that "he filed a
claim one time but doesn't know what they did with it. He thinks they said he didn't get t[]reatment
in service." Id. The VA psychiatrist opined that Mr. King had schizophrenia and mild retardation
and suggested that Mr. King apply for service connection but counseled him that he would have to
show that during military service he had been treated for schizophrenia. Id.
These notations by VA medical professionals in March 1995 and June 1997 that Mr. King
was "trying" to obtain service connection and "wanted to file" for service connection especially at
that time, without the presentation of any evidence, failed to manifest the requisite intent to reopen
a previously denied schizophrenia service-connection claim. Compare R. at 74, 186 with
Sagainza v. Derwinski, 1 Vet.App. 575, 577-79 (1991) (holding that veteran's sister's request to VA
to reopen a claim accompanied by evidence of recent treatment for relevant condition constituted
informal request to reopen under § 3.155(c)) and Vda De Landicho v. Brown, 7 Vet.App. 42, 50
(1994) (holding that specific pleading by appellant's survivor of both notification of appellant's death
and motion to substitute, served on the Secretary through Court's pleading process, provides
"sufficient indication of [an] intention to claim accrued benefits based on the [deceased] veteran's
underlying disability.").
Moreover, the VA examiner's suggestion to Mr. King in December 1997 that he file a
service-connection claim reveals that neither party had reason to believe that any claim had been
presented or would result merely by recording Mr. King's statements in the written examination
report. See Ellington v. Nicholson, 22 Vet.App. 141, 146 (2007) (holding that no informal claim was
filed because veteran lacked intent when there was no reason to believe that application for benefits
was being filed by completing medical questionnaire), aff'd 541 F.3d 1364 (Fed. Cir. 2008). Further,
Although we do not reach the issue in this appeal, we note that nothing in 3 the regulations contemplates filing
such a claim with a VA medical professional. Indeed, VA regulations provide little guidance to a claimant as to what
entities within the VA framework are available to receive disability compensation claims and the instructions on a VA
form 21-256 (formal application for benefits) state only that a claimant should mail the application to the closest VA
office. See VA Form 21-526, pg. 5; but see 38 C.F.R. § 3.108 (2009) (officers of U.S. State Department are authorized
to act as agents of VA in foreign countries and may receive formal and informal claims). Some guidance may be gleaned,
however, from VA's structure, which is comprised of various departments within the agency. These departments include
the Veterans Health Administration, which oversees veterans' medical care, and the Veterans Benefits Administration,
which administers veterans' benefits. 38 U.S.C. §§ 301, 7301, 7701. VA physicians generally fall under the Veterans
Health Administration whose primary function is "to provide a complete medical and hospital service for the medical
care and treatment of veterans." 38 U.S.C. § 7301. The primary function of the Veterans Benefits Administration is "the
8
Mr. King's statements to the VA examiner indicate that he knew that he had previously filed a formal
application for service connection for schizophrenia and that he was uncertain whether his claim was
ever finally adjudicated. After such an acknowledgment, it would be incongruent to infer an intent
on Mr. King's part to reopen a previously denied claim for the consideration of new and material
evidence, especially since, at the time of the statements, the psychiatrist had yet to opine as to Mr.
King's psychiatric condition.
We disagree with Mr. King's argument that requiring a level of specificity for an informal
request to reopen a claim is too sophisticated a standard for a pro-claimant veterans benefits system.
The theory behind creating requirements for recognizing a document as an informal claim is that
there must be a reasonable expectation for VA to act in the manner that the claimant intended. See
Ellington, 22 Vet.App. at 146 ("VA must have some means of distinguishing between legitimate
claims and ordinary medical paperwork."); see also Kluttz v. Brown, 7 Vet.App. 304 (1994)
(informal request to reopen particular claim must be more specific than a general request for a
benefit). Indeed, VA has never been obligated to read a claimant's mind but must consider only
claims that may be "reasonably encompassed by several factors including: the claimant's description
of the claim; the symptoms the claimant describes; and the information the claimant submits or that
the Secretary obtains in support of the claim." Clemons v. Shinseki, 23 Vet.App. 1, 5 (2009); see
Sondel v. Brown, 6 Vet.App. 218, 220 (1994) (when issue is not reasonably raised, Board is not
required to "conduct an exercise in prognostication").
In Mr. King's case, there is no reasonable expectation that VA would investigate whether new
and material evidence existed to reopen Mr. King's finally denied claim based merely on his
comments to VA examining physicians expressing a wish or desire for VA benefits.3 The record
administration of nonmedical benefits programs of [VA] which provide assistance to veterans and their dependents and
survivors." 38 U.S.C. § 7701 (emphasis added).
9
demonstrates that Mr. King was clearly aware that the RO adjudicates applications for VA benefits
as he had previously filed a claim for service connection with the RO and subsequently filed a claim
to reopen with the RO in May 2000. Mr. King did not communicate with the RO concerning this
matter in 1995 or 1997, and thus did not manifest to the RO his intent to reopen his serviceconnection
claim until May 2000. Moreover, contrary to our dissenting colleague's view that it is
of no consequence by whom an informal claim is written, VA regulations specifically define those
persons who may communicate a claimant's intent to reopen a claim on behalf of the claimant. This
list does not include VA medical professionals. See 38 C.F.R. § 3.155(a) (listing claimant's
representative, members of Congress, and claimant's next friend as persons other than claimant who
may file informal claim).
Accordingly, for the above reasons, we hold that Mr. King's statements expressing a wish or
desire to obtain service connection recorded in medical reports by VA physicians during the
March 1995 and June 1997 VA medical examinations do not constitute new and material evidence
or informal requests to reopen his previously disallowed schizophrenia claim. See Rodriguez and
Brokowski, both supra; 38 C.F.R. § 3.155(a). Therefore, Mr. King has not established that the
Board's finding that there was no evidence in the record that can be construed as an informal claim
to reopen prior to his May 15, 2000, application to reopen was an "arbitrary and capricious"
application of law to the facts of this case. See Westberry, supra. Moreover, because we have held
that the Board correctly found that Mr. King's application to reopen was submitted in May 2000, as
a matter of law Mr. King has not established that the Board erred in finding that he was not entitled
to an effective date for his schizophrenia award prior to May 15, 2000, the date he filed his claim to
reopen. See 38 U.S.C. § 5110(a) ("[T]he effective date of an award based on . . . a claim reopened
after final adjudication . . . shall be fixed in accordance with the facts found, but shall not be earlier
than the date of receipt of application therefor."); 38 C.F.R. § 3.400 (2009) (implementing
regulation); see Leonard v. Nicholson, 405 F.3d 1333, 1337 (Fed. Cir. 2005) ("[A]bsent a showing
of [clear and unmistakable error (CUE), the appellant] cannot receive disability payments for a time
frame earlier than the application date of his claim to reopen, even with new evidence supporting an
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earlier disability date."); see also Bingham v. Principi, 18 Vet.App. 470, 475 (2004) ("[I]t is well
established that the effective date for an award based on a claim to reopen is generally the date of
the claim to reopen.").
C. Reasons or Bases
Mr. King also argues that the Board failed to provide an adequate statement of reasons and
bases for its finding that the evidence of record did not raise any informal claim for service
connection. The Board must 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); Gilbert v. Derwinski, 1 Vet.App. 49, 57 (1990). Mr. King maintains that the Board failed
to address whether Social Security records and medical records (R. at 202, 206, 288-89, 334, 738-39)
and other correspondence of record (R. at 136, 279) could be construed as a claim to reopen.
However, Mr. King has not shown how these documents, some of which postdate his assigned
effective date, are relevant to the assignment of his May 15, 2000, schizophrenia effective date. See
Dela Cruz v. Principi, 15 Vet.App. 143, 149 (2001) (Board not required to discuss all evidence if
its discussion of the relevant evidence supports its decision); see also Hilkert v. West, 12 Vet.App.
145, 151 (1999) (en banc) (appellant bears burden of demonstrating error on appeal).
Additionally, although the Board did not specifically address whether the VA medical records
from September 1993, March 1995, and June 1997 entitle Mr. King to an earlier effective date,
because, as held above, these arguments fail as a matter of law, a remand for the Board to discuss
these documents is not appropriate. See Soyini v. Principi, 1 Vet.App. 540, 546 (1991) (strict
adherence to reasons or bases requirement is improper basis for remand where it "would result in this
Court's unnecessarily imposing additional burdens on the [Board] with no benefit flowing to the
veteran").
D. Docket Number Assignment
Mr. King also argues that the Board erred in assigning his claim a 2003 docket number after
it was returned to the Board pursuant to a 2001 remand. He requests that, should there be a remand,
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his claim be docketed in a manner designed to achieve the swiftest resolution. In light of the
disposition of this matter, however, Mr. King's contention is moot.
III. CONCLUSION
Upon consideration of the foregoing analysis, the record on appeal, and the parties' pleadings,
the Board's January 8, 2007, decision is AFFIRMED.
HAGEL, Judge, dissenting: I write separately to express my disagreement with the majority's
conclusion that the Board did not err in finding that Mr. King did not submit an informal claim for
benefits. The Court should vacate the Board's finding that Mr. King did not communicate an
intention to reopen his claim and remand the matter to the Board to provide adequate reasons or
bases for its conclusions. The majority employs the incorrect standard of review, and it should have
found that the Board provided inadequate reasons or bases for reaching its conclusion.
A. Reasons or Bases
The Board in this case simply concluded that "[t]he record does not indicate any
communication from the veteran or his representative received prior to May 15, 2000, that may
reasonably be construed as an indication he was seeking to reopen his claim for service connection."
R. at 4. This declaration, void of any explanation, constitutes the totality of the Board's consideration
of whether Mr. King submitted an informal claim.
The Court's jurisprudence is perfectly clear that, in making a finding on any material issue
of fact or law, the Board is required to provide a statement of its reasons or bases for the conclusions
it reaches. See 38 U.S.C. § 7104(d)(1). In so doing, the Board must analyze the credibility and
probative value of the evidence, account for the evidence that it finds to be persuasive or
unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the
claimant. See Caluza v. Brown, 7 Vet.App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir.
1996) (table).
Here, the Board stated that the dispositive question was whether the record contained any
communications from Mr. King that could be construed as demonstrating an intent to reopen his
previously denied claim for benefits. Because Mr. King's intent to reopen was the central question,
the Board was required to discuss whether a notation in a June 1997 treatment record indicating that
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Mr. King "wants to file a claim for service connected disability" demonstrates an intent to obtain
benefits. R. at 74. At the very least, that note is material evidence that should have been discussed
before the Board made its finding that Mr. King never communicated a desire to reopen his claim.
Because the Board did not explain why Mr. King's June 1997 statement did not demonstrate an intent
to file a claim for benefits, I cannot comprehend how the majority could find that there was a Board
decision capable of review or one that Mr. King could understand. See Gilbert v. Derwinski,
1 Vet.App. 49, 57 (1990). Consequently, I would find that the Board provided inadequate reasons
or bases for finding that he lacked an intent to apply for benefits. See Caluza, 7 Vet.App. at 506.
Accordingly, I dissent from the majority's opinion because I believe that the Court should
have considered whether the Board provided an adequate statement of reasons or bases for its
finding.
B. Intent to Make an Informal Claim
Mr. King intended to make an informal claim for benefits. The June 1997 medical record
repeating Mr. King's statement to a VA official that he "wants to file a claim for service connected
disability" constitutes an informal claim. R. at 74.
As the majority notes, there are three requirements that must be satisfied if the Board is to
find that an informal claim has been filed. There must be (1) a communication in writing that
(2) expresses an intent to apply for benefits, and (3) identifies the benefits sought. See Brokowski,
23 Vet.App. at 84; 38 C.F.R. § 3.155(a). All three requirements were satisfied here. Consequently,
the June 1997 treatment note qualifies as an informal claim for benefits.
The first requirement is that an informal claim must be written. The purpose of requiring a
writing is not to create a technical hurdle for claimants, but to allow for some precision in
determining when an informal claim was made and establishing its general contents. See
Rodriguez v. West, 189 F.3d 1351, 1354 (Fed. Cir. 1999). The U.S. Court of Appeals for the Federal
Circuit stated that an informal claim must be written because "[t]o permit an oral statement to
constitute the filing of an informal claim would create serious problems in the operation of the
veterans benefits programs." Id. Thus, the informal claim must be written to prove that it was, in
fact, submitted.
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In accomplishing this purpose, it is of no consequence by whom an informal claim is written,
so long as it is written. The date of the informal claim in this case can be affixed with certainty, as
the VA clinical specialist transferred Mr. King's intentions in June 1997. The fact that the writing
was done by a VA clinician and not the claimant is irrelevant where the claimant directly
communicates this information to the VA official. Nor does § 3.155(a) provide a limitation in its
definition of an informal claim as "[a]ny communication or action" from the claimant, a
representative, a member of Congress, or a claimant's next friend. Although the communication
must originate with the claimant, that does not mean that the writing must be made by any of the
listed individuals. Here, there is no question that Mr. King himself made the communication to VA
when he stated that he wanted to make a claim for benefits and a VA employee simultaneously
recorded that communication in an official VA document that is now contained in the claims file.
Thus, the first element of an informal claim, a writing, has been satisfied here.
The second requirement for an informal claim is that a claimant must express an intent to
apply for benefits. In looking for intent, the Board is required to "interpret the appellant's
submissions, broadly," although the claimant must have "asserted the claim expressly or impliedly."
Brannon, 12 Vet.App. at 35.
The statement in the June 1997 VA medical record demonstrates a clear intent to apply for
benefits. The VA clinical specialist wrote that Mr King "wants to file a claim for service connected
disability." R. at 74. It is clear from this statement that Mr. King told a VA representative that he
wanted VA benefits. Given the Board's obligation to interpret such statement's broadly, it is difficult
to envision how this statement fails to show an intent to obtain disability benefits.
The majority holds that this statement is insufficient to establish an intent to seek disability
benefits because the clinical specialist then told Mr. King that he should apply for benefits. This
holding misses the point; the standard is not whether the veteran had a reasonable intention to apply
for benefits or took reasonable steps to act on that intention, but simply whether there was any
intention to obtain benefits. The fact that the VA representative told Mr. King to make the claim
elsewhere is of no relevance in evaluating Mr. King's intentions.
The underlying assumption seems to be that Mr. King could not have had an intention to seek
benefits because he made the request to the wrong part of VA. If Mr. King had made the same
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statement to a Board member or decision review officer at a hearing or to anyone at a VA regional
office (i.e., "I want to file a claim for service-connected disability"), there can be no doubt that this
statement would have been seen as sufficient intent to seek disability benefits. Then why should the
claimant's intent in seeking benefits be determined by the title of the VA representative to whom the
statement is made? Certainly the regulation makes no such distinction, and veterans are not expected
to be experts in VA's organizational structure. See Landicho, 7 Vet.App. at 50 (holding that informal
claim requirements were satisfied by serving documents on the Secretary's litigation representatives).
Moreover, although it may well be within the Secretary's authority, VA has not promulgated a
regulation establishing which of its employees may receive a formal or informal claim. Because I
see no basis for concluding that a medical specialist at a VA medical center cannot receive an
informal claim, and because Mr. King stated that he wanted to file a claim for disability benefits, I
would find that, reading the claim sympathetically, Mr. King displayed sufficient intent that he was
applying for benefits. See Brokowski, 23 Vet.App. at 84.
The third and final requirement for finding that an informal claim has been filed is that the
claimant must identify the benefit sought. A "claimant's identification of the benefit sought does not
require any technical precision." Id. Again, the Board must interpret a claimant's submission
broadly and sympathetically. Id.
Here, I would find that Mr. King identified the benefit sought, as he described complaints
relating to schizophrenia to a VA clinical specialist before stating that he wanted a "service
connected disability." R. at 74. Mr. King was not required to specifically name the condition for
which he wanted benefits, as long as he identified the symptoms. See Ingram v. Nicholson,
21 Vet.App. 232, 256-57 (2007) (holding that the Secretary, not the claimant, must evaluate whether
there is potential to assign benefits for described symptoms). Thus, Mr. King sufficiently identified
the benefit sought.
Because Mr. King displayed an intent to seek disability benefits for schizophrenia, and
because that intention is memorialized in a writing by a VA official and has since that time been in
an official VA record, I would find that Mr. King made an informal claim to reopen his previously
denied schizophrenia claim in June 1997. See Browkowski, 23 Vet.App. at 84. Because all of the
requirements for an informal claim were satisfied, I would find that the Board's finding that there
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was no indication that Mr. King made an informal claim was arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with the law. 38 U.S.C. § 7261(a)(3)(A).
For these reasons, I respectfully dissent from the majority's decision.