Full Article at: Congress approves Veterans Benefits Act
By Leo Shane III
Published: September 30, 2010
"In one of their last moves before heading into the pre-election recess, House lawmakers last night passed the Veterans Benefits Act of 2010, which includes a host of changes to VA programs and updates concerning the rights of deployed active duty troops. The White House is expected to sing the measure into law in coming days.
The bill is a compromise measure between the House and Senate which encompasses a number of smaller, stand-alone veterans benefits bills. It includes improvements to employment programs, homeless outreach efforts, disabled veterans assistance and research into future medical needs of returning troops. Here's a look at some of the highlights:
-- Prohibits early termination fees for certain contracts (like cell phone service and residential leases) after troops receive orders to relocate to and area that "does not support the contract."
-- Reauthorizes a recently expired VA work-study program, and expand the type of work available for participating veterans. Officials said the change allows for veteran students to complete work study in congressional offices, state veteran agencies, and similar opportunities.
-- Requires the VA to verify to operate a database of veteran-owned small businesses and service-connected veteran-owned small businesses, "in an effort to end contracting with businesses that fraudulently claim to be owned by a veteran."
-- Authorizes $10 million more to provide dedicated services for homeless women veterans and homeless veterans with children.
-- Allows 100 percent disabled veterans to receive free Servicemembers' Group Life Insurance coverage for two years following separation from active or reserve duty.
-- Increases the automobile allowance for disabled veterans from $11,000 to $18,900.
-- Allows parents whose child died while on active duty to be buried in a national cemetery with that child (provided the veteran has no living spouse or children).
-- Instructs the Institute of Medicine to carry out a comprehensive review of best treatment practices for chronic multi-symptom illness in Gulf War veterans.
Thursday, September 30, 2010
New Jersey-RO has 29% Error Rate, VAOIG Reports
VARO staff did not accurately process 35 (29 percent) of the 120 disability claims reviewed.
Inspection of the VA Regional Office Newark, NJ
Report Number 10-03055-259, 9/29/2010
The Benefits Inspection Division conducts onsite inspections at VA Regional Offices (VAROs) to review disability compensation claims processing and Veterans Service Center operations. The Newark VARO correctly processed herbicide exposure and post-traumatic stress disorder disability claims. Management ensured staff followed the Veterans Benefits Administration policy to establish correct dates of claims in the electronic record. Further, staff were generally compliant in correcting errors that VBA’s Systematic Technical Accuracy Review program identified. VARO management needs to improve the control and accuracy of processing of temporary 100 percent evaluations and traumatic brain injury (TBI) claims. Overall, VARO staff did not accurately process 35 (29 percent) of the 120 disability claims reviewed. Management also needs to strengthen controls over the recording of Notice of Disagreements for appealed claims, Systematic Analyses of Operations (SAOs), incoming mail upon receipt, and final competency determination processing. We recommended that Newark VARO management review all temporary 100 percent evaluations to determine if reevaluations are required and take appropriate actions. Management needs to implement controls to ensure diaries for temporary 100 percent disability evaluations are established. We recommended management provide refresher training on the proper procedures for processing TBI claims. We also recommended that Newark VARO management strengthen controls to ensure timely establishment of NODs in the Veterans Appeals Control and Locator System, accurate and timely preparation of SAOs, and implementation of a plan for ensuring accurate and timely processing of incoming mail. The Director of the Newark VARO concurred with all recommendations. Management’s planned actions are responsive and we will follow up as required on all actions.
Inspection of the VA Regional Office Newark, NJ
Report Number 10-03055-259, 9/29/2010
The Benefits Inspection Division conducts onsite inspections at VA Regional Offices (VAROs) to review disability compensation claims processing and Veterans Service Center operations. The Newark VARO correctly processed herbicide exposure and post-traumatic stress disorder disability claims. Management ensured staff followed the Veterans Benefits Administration policy to establish correct dates of claims in the electronic record. Further, staff were generally compliant in correcting errors that VBA’s Systematic Technical Accuracy Review program identified. VARO management needs to improve the control and accuracy of processing of temporary 100 percent evaluations and traumatic brain injury (TBI) claims. Overall, VARO staff did not accurately process 35 (29 percent) of the 120 disability claims reviewed. Management also needs to strengthen controls over the recording of Notice of Disagreements for appealed claims, Systematic Analyses of Operations (SAOs), incoming mail upon receipt, and final competency determination processing. We recommended that Newark VARO management review all temporary 100 percent evaluations to determine if reevaluations are required and take appropriate actions. Management needs to implement controls to ensure diaries for temporary 100 percent disability evaluations are established. We recommended management provide refresher training on the proper procedures for processing TBI claims. We also recommended that Newark VARO management strengthen controls to ensure timely establishment of NODs in the Veterans Appeals Control and Locator System, accurate and timely preparation of SAOs, and implementation of a plan for ensuring accurate and timely processing of incoming mail. The Director of the Newark VARO concurred with all recommendations. Management’s planned actions are responsive and we will follow up as required on all actions.
Wednesday, September 29, 2010
Gulf War Veterans, VA Publishes Presumptions for 9 Diseases
Full Article at:
VA Extends Coverage for Gulf War Veterans
By Donna Miles
American Forces Press Service
WASHINGTON, Sept. 29, 2010 – "Veterans of the first Gulf War as well as current operations in Iraq and Afghanistan now have a smoother path toward receiving health-care benefits and disability compensation for nine diseases associated with their military service, Secretary of Veterans Affairs Eric K. Shinseki announced today.
A final regulation published in today’s Federal Register relieves veterans of the burden of proving these diseases are service-related: Brucellosis, Campylobacter jejuni, Coxiella Burnetii (Q fever), Malaria, Mycobacterium tuberculosis, Nontyphoid Salmonella, Shigella, Visceral leishmaniasis and West Nile virus.
Shinseki added the new presumptions after reviewing a 2006 National Academy of Sciences Institute of Medicine report on the long-term health effects of certain diseases suffered among Gulf War veterans.
He also extended the presumptions to veterans of Afghanistan, based on NAS findings that the nine diseases are prevalent there as well.
The new presumptions apply to veterans who served in Southwest Asia beginning on or after the start of Operation Desert Shield on Aug. 2, 1990, through Operation Desert Storm to the present, including the current conflict in Iraq. Veterans who served in Afghanistan on or after Sept. 19, 2001, also qualify.
For Shinseki, who pledged to honor the 20th anniversary of the Gulf War by improving health-care access and benefits for its 697,000 veterans, the new presumptions represent a long-overdue step in addressing the medical challenges many face.
“This is part of historic changes in how VA considers Gulf War veterans’ illnesses,” he said. “By setting up scientifically based presumptions of service connection, we give these deserving veterans a simple way to obtain the benefits they earned in service to our country.”
The new presumptions initially are expected to affect just under 2,000 veterans who have been diagnosed with the nine specified diseases, John Gingrich, VA’s chief of staff, told American Forces Press Service. He acknowledged that the numbers are likely to climb as more cases are identified.
With the final rule, a veteran needs only to show service in Southwest Asia or Afghanistan during the specified time periods to receive disability compensation, subject to certain time limits based on incubation periods for seven of the diseases."
VA Extends Coverage for Gulf War Veterans
By Donna Miles
American Forces Press Service
WASHINGTON, Sept. 29, 2010 – "Veterans of the first Gulf War as well as current operations in Iraq and Afghanistan now have a smoother path toward receiving health-care benefits and disability compensation for nine diseases associated with their military service, Secretary of Veterans Affairs Eric K. Shinseki announced today.
A final regulation published in today’s Federal Register relieves veterans of the burden of proving these diseases are service-related: Brucellosis, Campylobacter jejuni, Coxiella Burnetii (Q fever), Malaria, Mycobacterium tuberculosis, Nontyphoid Salmonella, Shigella, Visceral leishmaniasis and West Nile virus.
Shinseki added the new presumptions after reviewing a 2006 National Academy of Sciences Institute of Medicine report on the long-term health effects of certain diseases suffered among Gulf War veterans.
He also extended the presumptions to veterans of Afghanistan, based on NAS findings that the nine diseases are prevalent there as well.
The new presumptions apply to veterans who served in Southwest Asia beginning on or after the start of Operation Desert Shield on Aug. 2, 1990, through Operation Desert Storm to the present, including the current conflict in Iraq. Veterans who served in Afghanistan on or after Sept. 19, 2001, also qualify.
For Shinseki, who pledged to honor the 20th anniversary of the Gulf War by improving health-care access and benefits for its 697,000 veterans, the new presumptions represent a long-overdue step in addressing the medical challenges many face.
“This is part of historic changes in how VA considers Gulf War veterans’ illnesses,” he said. “By setting up scientifically based presumptions of service connection, we give these deserving veterans a simple way to obtain the benefits they earned in service to our country.”
The new presumptions initially are expected to affect just under 2,000 veterans who have been diagnosed with the nine specified diseases, John Gingrich, VA’s chief of staff, told American Forces Press Service. He acknowledged that the numbers are likely to climb as more cases are identified.
With the final rule, a veteran needs only to show service in Southwest Asia or Afghanistan during the specified time periods to receive disability compensation, subject to certain time limits based on incubation periods for seven of the diseases."
Tuesday, September 28, 2010
Former Mountain HomeTennessee-VA Nurse Guilty of Diverting Patients Drugs
Full Article at: Former VA Nurse Pleads Guilty to Diverting Drugs
By Rebecca Pepin
September 28, 2010
GREENEVILLE, Tenn. -- "Today 58-year-old Bruce R. Clendenin, of Greeneville, Tennessee, pleaded guilty to obtaining controlled substances by misrepresentation, fraud, deception and subterfuge.
Clendenin appeared in United States District Court for the Eastern District of Tennessee at Greeneville. He was released on bond pending his sentencing hearing set for February 28. He faces a term of up to four years in prison and a fine of up to $250,000.
A statement of facts filed in support of Clendenin’s guilty plea states that he has been licensed as a registered nurse in Tennessee since 2006, having previously been licensed in Florida, and was hired in August 2007, as a registered nurse by the James H. Quillen Department of Veterans Affairs Medical Center (DVAMC), Mountain Home, Tennessee.
In early June 2009, DVAMC staff learned that Clendenin was possibly diverting controlled substances. Clendenin consented to a search of his person which revealed seven patient identification armbands with bar codes as well as nine glass medication vials containing small amounts of controlled substances (hydromorphone (Dilaudid) and morphine). A review of hospital records for three months revealed 24 instances where Clendenin had removed controlled substances, including morphine, hydromorphone, hydrocodone, oxycodone, and diazepam, but did not scan in the medications as being administered to the respective patients.
In addition, there were 57 other instances where Clendenin removed controlled substances and reported that they were wasted (disposed of) but did not enter any supporting information to document that the drugs were actually wasted.
There were also 125 other instances discovered where Clendenin claimed that controlled substances were given to patients but in the wrong dose, and he documented that the wrong dose amounts were wasted, documented that the drugs were given by another nurse, documented that the drugs were destroyed late, or other related discrepancies."
By Rebecca Pepin
September 28, 2010
GREENEVILLE, Tenn. -- "Today 58-year-old Bruce R. Clendenin, of Greeneville, Tennessee, pleaded guilty to obtaining controlled substances by misrepresentation, fraud, deception and subterfuge.
Clendenin appeared in United States District Court for the Eastern District of Tennessee at Greeneville. He was released on bond pending his sentencing hearing set for February 28. He faces a term of up to four years in prison and a fine of up to $250,000.
A statement of facts filed in support of Clendenin’s guilty plea states that he has been licensed as a registered nurse in Tennessee since 2006, having previously been licensed in Florida, and was hired in August 2007, as a registered nurse by the James H. Quillen Department of Veterans Affairs Medical Center (DVAMC), Mountain Home, Tennessee.
In early June 2009, DVAMC staff learned that Clendenin was possibly diverting controlled substances. Clendenin consented to a search of his person which revealed seven patient identification armbands with bar codes as well as nine glass medication vials containing small amounts of controlled substances (hydromorphone (Dilaudid) and morphine). A review of hospital records for three months revealed 24 instances where Clendenin had removed controlled substances, including morphine, hydromorphone, hydrocodone, oxycodone, and diazepam, but did not scan in the medications as being administered to the respective patients.
In addition, there were 57 other instances where Clendenin removed controlled substances and reported that they were wasted (disposed of) but did not enter any supporting information to document that the drugs were actually wasted.
There were also 125 other instances discovered where Clendenin claimed that controlled substances were given to patients but in the wrong dose, and he documented that the wrong dose amounts were wasted, documented that the drugs were given by another nurse, documented that the drugs were destroyed late, or other related discrepancies."
Monday, September 27, 2010
Naval Psychological and TBI Injury Team Treats, PTSD, TBI and Substance Abuse all at the Same Time
This may be one of those little known but highly successful units that will be a godsend to some of the veterans out there suffering from multiple medical problems but for which there has not been a single source ready to deal with those multiple problems all within one unit
National Naval Medical Center’s psychological health and traumatic brain injury team
"The problem, she said, was that no program within the military, the VA or the civilian community treated all three of Barnes’ afflictions -- TBI, PTSD and substance abuse – simultaneously. “There was no place I could find capable of treating all three of these issues,” she said. “But I truly believed that they were all correlated and needed to be treated together.”
Full Article at:
Program Offers Hope for Treating Brain Injuries
By Donna Miles
American Forces Press Service
BETHESDA, Md., Sept. 27, 2010 – Valerie Wallace was at her wits’ end when she first heard about a novel traumatic brain injury treatment program under way here at the National Naval Medical Center.
Click photo for screen-resolution image
Valerie Wallace, right, calls the psychological health and traumatic brain injury team at the National Naval Medical Center in Bethesda, Md., a godsend in helping wounded warriors like her son, Army Sgt. John Barnes, left, deal with the unseen scars of war. Courtesy photo
(Click photo for screen-resolution image);high-resolution image available.
Her 22-year-old son, Army Sgt. John Barnes, was wounded in southwestern Iraq in 2006 during a mortar attack while he was deployed with the 101st Infantry Division.
He had slipped into a coma for 12 days, remembering nothing of the attack when he regained consciousness with a severe traumatic brain injury. He recognized his family members’ faces, but had lost much of his verbal and motor skills as well as his short-term memory.
After two months at Walter Reed Army Medical Center in Washington, followed by treatment at the Department of Veteran Affairs’ Tampa Polytrauma Rehabilitation Center, in Tampa, Fla., Barnes seemed on the road to recovery, his mother recalled.
But a fluid buildup within his brain stopped that progress cold, requiring an emergency craniectomy to relieve swelling. From there, as Barnes began his rehabilitation almost from square one, he fluctuated between extremes. At one point, his recovery was so successful that he’d started living independently and enrolled in college, but at other times, his condition was so dire that his mother feared he was spiraling out of control.
“Then the [post-traumatic stress disorder] set in and he began self medicating with whatever he could get his hands on,” his mother recalled. “It was just a disaster.”
The problem, she said, was that no program within the military, the VA or the civilian community treated all three of Barnes’ afflictions -- TBI, PTSD and substance abuse – simultaneously. “There was no place I could find capable of treating all three of these issues,” she said. “But I truly believed that they were all correlated and needed to be treated together.”
NNMC Practices Innovative TBI Approach
Story Number: NNS100812-04 Release Date: 8/12/2010 1:31:00
By Mass Communication Specialist 3rd Class Timothy Wilson, National Naval Medical Center Public Affairs
BETHESDA, Md. (NNS) -- "National Naval Medical Center behavioral health providers have using an innovative approach to meet the needs of service members who face a long road to recovery.
Traumatic brain injury (TBI) patients often have multiple problems, including a wide array of physical wounds coupled with mental health issues, that need to be addressed simultaneously.
"Our mission is to screen every incoming casualty for the presence of TBI and other psychological or psychiatric complications of combat," said Dr. David Williamson, NNMC Inpatient Psychological Health/Trau-matic Brain Injury (PH/TBI) program medical director.
Williamson said when a patient arrives to NNMC with a head injury; they first receive lifesaving care to stabilize their condition. In addition, every patient meets with a psychiatrist upon their arrival, regardless of injury type. The PH/TBI team practices a revolutionary policy of not waiting until people have trouble.
"We want behavioral health providers involved the minute the patient arrives at Bethesda," said Williamson. "Alongside the trauma surgeons, our team is going in to evaluate the injuries and we are trying to predict and plan ahead what types of problems the patient will have from their brain injuries, so we can put services in place ahead of time."
This approach has evolved after many years of developing the best practices to help the patients on their road to recovery. The inpatient unit officially began using this method of having an open line of communication between the behavioral health providers and medical doctors in April 2009.
"We will take a look at your pain, your wound, all the physical medicine rehab and psychological [aspects] all at the same time," said Williamson. "You need balance and having everyone working together is the model that really has made the difference."
The team also opens and maintains lines of communication with the patient's family, teaching them how to adjust to life after injury.
"Sometimes family members need some special treatment or a referral for some special support," said Williamson. "We do education, teaching about TBI and the other psychological health [issues] that we treat."
Williamson said this is important because TBI symptoms may not be obvious for years. More than 50 percent of the patients the PH/TBI treats are outpatients years after their initial injury.
Brain injuries can create difficult medical problems to solve, said Williamson. The repercussions resulting from a TBI may include difficulties with balance and coordination, hearing and understanding speech, limb movement difficulties and loss of vision.
"[Post Traumatic Stress Disorder] PTSD isn't the only psychological consequence of combat," said Williamson. "We are interested in the higher brain functions as well [such as] memory, the ability to organize and multi-task, what controls personality and emotional regulation."
Different areas of the brain control different functions of the body. The location of the injury will determine how the body is affected. This immediate evaluation will allow the behavioral health doctors to determine the best treatment options, he added.
"We are looking at what does the brain injury mean for this person, what things are affected, [and] what do we need to do to help them succeed in their rehabilitation," said Williamson.
Brain injuries are a life-long condition because the brain tissue cannot regenerate, unlike a broken fracture or a skin wound, said Williamson.
"It's not that we fix the injuries so the patient can perform the way they did before the injury, we change people's expectations," said Williamson. "Changing their ways of thinking can make a huge difference for the [patient] and their families."
The PH/TBI staff consists of more than 80 specialists and support staff. At least twice a week, they will meet with a patient's medical doctors to assess the status of the patient. This is to ensure that one treatment plan or medication from one doctor will not interfere with that of another.
"This multidisciplinary model of treatment with psychiatrists and psychologists in the same team as surgeons and rehab doctors is new and not practiced anywhere else in the world," said Williamson.
This approach has drawn national media attention to the PH/TBI clinic at NNMC due to the success of the program.
For more news from National Naval Medical Center, visit www.navy.mil/local/nnmc/."
National Naval Medical Center’s psychological health and traumatic brain injury team
"The problem, she said, was that no program within the military, the VA or the civilian community treated all three of Barnes’ afflictions -- TBI, PTSD and substance abuse – simultaneously. “There was no place I could find capable of treating all three of these issues,” she said. “But I truly believed that they were all correlated and needed to be treated together.”
Full Article at:
Program Offers Hope for Treating Brain Injuries
By Donna Miles
American Forces Press Service
BETHESDA, Md., Sept. 27, 2010 – Valerie Wallace was at her wits’ end when she first heard about a novel traumatic brain injury treatment program under way here at the National Naval Medical Center.
Click photo for screen-resolution image
Valerie Wallace, right, calls the psychological health and traumatic brain injury team at the National Naval Medical Center in Bethesda, Md., a godsend in helping wounded warriors like her son, Army Sgt. John Barnes, left, deal with the unseen scars of war. Courtesy photo
(Click photo for screen-resolution image);high-resolution image available.
Her 22-year-old son, Army Sgt. John Barnes, was wounded in southwestern Iraq in 2006 during a mortar attack while he was deployed with the 101st Infantry Division.
He had slipped into a coma for 12 days, remembering nothing of the attack when he regained consciousness with a severe traumatic brain injury. He recognized his family members’ faces, but had lost much of his verbal and motor skills as well as his short-term memory.
After two months at Walter Reed Army Medical Center in Washington, followed by treatment at the Department of Veteran Affairs’ Tampa Polytrauma Rehabilitation Center, in Tampa, Fla., Barnes seemed on the road to recovery, his mother recalled.
But a fluid buildup within his brain stopped that progress cold, requiring an emergency craniectomy to relieve swelling. From there, as Barnes began his rehabilitation almost from square one, he fluctuated between extremes. At one point, his recovery was so successful that he’d started living independently and enrolled in college, but at other times, his condition was so dire that his mother feared he was spiraling out of control.
“Then the [post-traumatic stress disorder] set in and he began self medicating with whatever he could get his hands on,” his mother recalled. “It was just a disaster.”
The problem, she said, was that no program within the military, the VA or the civilian community treated all three of Barnes’ afflictions -- TBI, PTSD and substance abuse – simultaneously. “There was no place I could find capable of treating all three of these issues,” she said. “But I truly believed that they were all correlated and needed to be treated together.”
NNMC Practices Innovative TBI Approach
Story Number: NNS100812-04 Release Date: 8/12/2010 1:31:00
By Mass Communication Specialist 3rd Class Timothy Wilson, National Naval Medical Center Public Affairs
BETHESDA, Md. (NNS) -- "National Naval Medical Center behavioral health providers have using an innovative approach to meet the needs of service members who face a long road to recovery.
Traumatic brain injury (TBI) patients often have multiple problems, including a wide array of physical wounds coupled with mental health issues, that need to be addressed simultaneously.
"Our mission is to screen every incoming casualty for the presence of TBI and other psychological or psychiatric complications of combat," said Dr. David Williamson, NNMC Inpatient Psychological Health/Trau-matic Brain Injury (PH/TBI) program medical director.
Williamson said when a patient arrives to NNMC with a head injury; they first receive lifesaving care to stabilize their condition. In addition, every patient meets with a psychiatrist upon their arrival, regardless of injury type. The PH/TBI team practices a revolutionary policy of not waiting until people have trouble.
"We want behavioral health providers involved the minute the patient arrives at Bethesda," said Williamson. "Alongside the trauma surgeons, our team is going in to evaluate the injuries and we are trying to predict and plan ahead what types of problems the patient will have from their brain injuries, so we can put services in place ahead of time."
This approach has evolved after many years of developing the best practices to help the patients on their road to recovery. The inpatient unit officially began using this method of having an open line of communication between the behavioral health providers and medical doctors in April 2009.
"We will take a look at your pain, your wound, all the physical medicine rehab and psychological [aspects] all at the same time," said Williamson. "You need balance and having everyone working together is the model that really has made the difference."
The team also opens and maintains lines of communication with the patient's family, teaching them how to adjust to life after injury.
"Sometimes family members need some special treatment or a referral for some special support," said Williamson. "We do education, teaching about TBI and the other psychological health [issues] that we treat."
Williamson said this is important because TBI symptoms may not be obvious for years. More than 50 percent of the patients the PH/TBI treats are outpatients years after their initial injury.
Brain injuries can create difficult medical problems to solve, said Williamson. The repercussions resulting from a TBI may include difficulties with balance and coordination, hearing and understanding speech, limb movement difficulties and loss of vision.
"[Post Traumatic Stress Disorder] PTSD isn't the only psychological consequence of combat," said Williamson. "We are interested in the higher brain functions as well [such as] memory, the ability to organize and multi-task, what controls personality and emotional regulation."
Different areas of the brain control different functions of the body. The location of the injury will determine how the body is affected. This immediate evaluation will allow the behavioral health doctors to determine the best treatment options, he added.
"We are looking at what does the brain injury mean for this person, what things are affected, [and] what do we need to do to help them succeed in their rehabilitation," said Williamson.
Brain injuries are a life-long condition because the brain tissue cannot regenerate, unlike a broken fracture or a skin wound, said Williamson.
"It's not that we fix the injuries so the patient can perform the way they did before the injury, we change people's expectations," said Williamson. "Changing their ways of thinking can make a huge difference for the [patient] and their families."
The PH/TBI staff consists of more than 80 specialists and support staff. At least twice a week, they will meet with a patient's medical doctors to assess the status of the patient. This is to ensure that one treatment plan or medication from one doctor will not interfere with that of another.
"This multidisciplinary model of treatment with psychiatrists and psychologists in the same team as surgeons and rehab doctors is new and not practiced anywhere else in the world," said Williamson.
This approach has drawn national media attention to the PH/TBI clinic at NNMC due to the success of the program.
For more news from National Naval Medical Center, visit www.navy.mil/local/nnmc/."
Virginia Tech Research Finds 25% Veterans Suffer TBI and 66% Suffer Depression
Full Article at: Exclusive: Virginia veteran report shows high depression rate
By Nick Carey and Murray Waas
CHICAGO/WASHINGTON | Mon Sep 27, 2010 1:35am EDT
CHICAGO/WASHINGTON (Reuters) - "More than one in four U.S. veterans of the Iraq and Afghan wars in the state of Virginia say they have suffered a service-related head injury and two thirds reported depression, according to a report by Virginia Tech to be released on Tuesday.
The real numbers may be much higher, according to Mary Beth Dunkenberger, senior program director at the Institute for Policy and Governance at Virginia Tech and author of the report.
In focus groups many veterans of Iraq and Afghanistan said they were afraid to admit to suffering from post traumatic stress disorder (PTSD) during demobilization because it would keep them from their families and hurt their careers, she told Reuters."
"The report was compiled for the Virginia Wounded Warrior Program, which is operated by the Virginia Department of Veterans Services, and was provided in advance to Reuters. It found that 66 percent of veterans of these two wars reported suffering from some form of depression, second only to Vietnam veterans. Ten percent cited a high level of depression."
By Nick Carey and Murray Waas
CHICAGO/WASHINGTON | Mon Sep 27, 2010 1:35am EDT
CHICAGO/WASHINGTON (Reuters) - "More than one in four U.S. veterans of the Iraq and Afghan wars in the state of Virginia say they have suffered a service-related head injury and two thirds reported depression, according to a report by Virginia Tech to be released on Tuesday.
The real numbers may be much higher, according to Mary Beth Dunkenberger, senior program director at the Institute for Policy and Governance at Virginia Tech and author of the report.
In focus groups many veterans of Iraq and Afghanistan said they were afraid to admit to suffering from post traumatic stress disorder (PTSD) during demobilization because it would keep them from their families and hurt their careers, she told Reuters."
"The report was compiled for the Virginia Wounded Warrior Program, which is operated by the Virginia Department of Veterans Services, and was provided in advance to Reuters. It found that 66 percent of veterans of these two wars reported suffering from some form of depression, second only to Vietnam veterans. Ten percent cited a high level of depression."
Friday, September 24, 2010
Women Caring for Disabled Veterans, Support Group
Full Article at: Women Caring for Disabled Vets Holds First Support Group
Photojournalist: Sally Delta Goin
Lynchburg, VA - "Wives and caretakers of Vietnam veterans came together Thursday for a first ever support group session.
The meeting was held at the Lynchburg Marine Corp. League.
Many women stood up and shared their struggles caring for their disabled veteran.
Issues like filing disability claims to the state, and coping through post traumatic stress disorder.
They say it's the only opportunity in the area for women to talk about the struggles they face.
Women are very powerful and when you put us together in a small medium or large group we know we can accomplish what we need to accomplish," said Judy Doering, the coordinator of the group.
The group uses these meetings as a teaching opportunity so women understand how to file the paperwork correctly.
The next meeting is scheduled for October 21st"
Photojournalist: Sally Delta Goin
Lynchburg, VA - "Wives and caretakers of Vietnam veterans came together Thursday for a first ever support group session.
The meeting was held at the Lynchburg Marine Corp. League.
Many women stood up and shared their struggles caring for their disabled veteran.
Issues like filing disability claims to the state, and coping through post traumatic stress disorder.
They say it's the only opportunity in the area for women to talk about the struggles they face.
Women are very powerful and when you put us together in a small medium or large group we know we can accomplish what we need to accomplish," said Judy Doering, the coordinator of the group.
The group uses these meetings as a teaching opportunity so women understand how to file the paperwork correctly.
The next meeting is scheduled for October 21st"
Veterans Supporting Evidence Lacked Cogent Explanations for Ultimate Conclusion, Stefl and Nieves-Rodriguez
This memorandum decision puts forth a note able example of how the Board is now dismissing Veterans supporting evidence by citing that they "lack[ed] cogent explanations for its ultimate conclusions."
================================
The Court has consistently held that the Board may not rely on an
examiner's conclusory statements if they lack supporting analysis. Stefl v. Nicholson, 21 Vet.App. 120, 124-25 (2007)(stating that the Board may not assess the probative value of "a mere conclusion by a medical doctor"); see also Nieves-Rodriguez, 22 Vet.App. at 301 (noting that "a medical examination report must contain not only clear conclusions with supporting data, but also a reasoned explanation connecting the two"). Although Mr. Cody's conclusions may have been based on his knowledge of job requirements and the availability of jobs (see Appellant's Br. at 10), his report fails to include any supporting analysis for the Board to weigh and consider. Therefore, the Court is not convinced that the Board clearly erred when it rejected Mr. Cody's report because it "lack[ed] cogent explanations for its ultimate conclusions." See Owens v. Brown, 7 Vet.App. 429, 433 (1995)..."
==============================
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UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 08-2941
PHILLIP A. MOORE, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before SCHOELEN, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
SCHOELEN, Judge: The appellant, Phillip A. Moore, through counsel, appeals
a July 1, 2008,Board of Veterans'Appeals(Board) decision that denied entitlement to an effective date earlier than May 18, 2004, for the award of a total disability rating based upon individual unemployability (TDIU) due to his service-connected disabilities. Record of Proceedings (R.) at 3-15. Single-judge
disposition is appropriate. See Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (
1990). This appeal is
timely, and the Court has jurisdiction over the case pursuant to 38 U.S.C.
§§ 7252(a) and 7266(a).
Because the Board applied an incorrect legal standard and provided an
inadequate statement of
reason or bases for its decision, the Court will vacate the July 1, 2008,
decision and remand the
matter for further proceedings consistent with this decision.
I. FACTS
The appellant served on active duty in the U.S. Air Force from June 1955
to January 1968.
R. at 5, 1271. The record demonstrates that the appellant is service
connected for the following
conditions: (1) Residuals, plantar warts and calluses, left foot, rated 30%
disabling from August 23,
1999; (2) residuals, plantar warts and calluses, right foot, rated 10%
from November 20, 1986, and
30% from May 18, 2004; (3) left ankle condition, rated 10% from August 23,
1999; (4) right knee
with degenerative osteoarthritis, rated 10% from February 20, 2001; (5)
residuals, fracture, second
left toe, rated 0% from November 20, 1986; (6) hearing loss, rated 0% from
January 25, 1999; and
(7) tinnitus, rated 10% from June 13, 2003. R. at 686-93.
The appellant filed his claim for entitlement to Previous HitTDIUNext Hit in January 1999. R.
at 1545-47. His
claim was denied by the VA regional office (RO) in July 1999 (R. at 1422-
28), and has remained in
appellate status (R. at 11, 702-08, 800-07, 1117-28, 1170-76, 1334-53,
1376-79).
Following a March 2005 Board remand for additional development, the
appellant submitted
a vocational assessment report byWilliam T. Cody, a diplomat of the
American Board of Vocational
Experts. R. at 696-98. Mr. Cody indicated that his assessment was based
upon his review of a
September 2004 medical report and the appellant's initial application for
Previous HitTDIUNext Hit, which includes a
description of his educational and vocational histories. R. at 696; see
also R. at 855-56, 1315-16.
Based on the September 2004 medical report, Mr. Cody noted that the
appellant "'has
significant difficulty to [sic] stand or walk'" and that "[t]his
limitation restricts consideration to
sedentarywork." R. at 697. Mr. Codyfurther indicated that because the
appellant's prior experience
was limited to physical work, and because the appellant had no skills or
experience that could be
transferred to sedentary work, only "unskilled sedentary work can be
considered as appropriate for
him." Id. With regard to the appellant's hearing loss, Mr. Cody noted that
the September 2004
medical report established "'mild to severe sensorineural hearing loss'
. . . on both sides, but [that]
speech discrimination in either ear 'is good in . . . qui[et].'" Id. Mr.
Cody opined that "[t]his
additional limitation precludes the unskilled sedentary work that could
otherwise be considered
appropriate for him as there can be no guarantee of a 'qui[et]' work
environment." Id. Mr. Cody
concluded, "based on the appellant's age, education, work history, and
primarily the physical
limitations that he has as a result of his service[-]related disability,"
that the appellant is
"permanently and totally occupationally disabled. That is, there are no
jobs in the local or national
economies that he is able to perform." R. at 698. Finally, Mr. Cody stated
that "this appears to have
been the situation since 1994." Id.
In March 2006, the RO granted entitlement to Previous HitTDIUNext Hit. R. at 657-62. The RO
assigned a May
18, 2004, effective date based on the date the appellant's service-
connected disabilities met the
schedular requirements for Previous HitTDIUNext Hit pursuant to 38 C.F.R. § 4.16(a) (2005). R.
at 658-59. The
2
appellant filed a Notice of Disagreement asserting that a January 1999
effective date should have
been assigned. R. at 631. The RO issued a Statement of the Case (R. at 96-
106) and the appellant
perfected his appeal to the Board (R. at 70-71).
On July 1, 2008, the Board issued the decision here on appeal. R. at 3-15.
The Board noted
that there was no contention in this case that the appellant met the
schedular requirements for Previous HitTDIUNext Hit
prior to May 2004. R. at 10. Instead, the appellant, relying on the
vocational assessment report
prepared by Mr. Cody, asserted that the evidence demonstrated entitlement
to Previous HitTDIUNext Hit on an
extraschedular basis since 1999. Id. at 10-11. Nonetheless, the Board
found that Mr. Cody's report
was of "virtuallyno probative value" because Mr. Cody(1) did not examine
or interview the veteran,
(2) did not review the appellant's VA medical records, and (3) only
reviewed a medical report that
postdated the appellant's Previous HitTDIUNext Hit award. R. at 12. The Board further found
that Mr. Cody's reasoning
was "flawed" because of his "utterly unsupported assumption that work
would not be available in
a quiet environment" and his failure to provide any support for his
ultimate conclusion that the
appellant has been unemployable since 1994. R. at 13. The Board stated
that Mr. Cody's report
amounts to "rank speculation" and rejected his assessment because it "
lacks cogent explanations for
its ultimate conclusions." Id.
The Board then noted that the medical evidence from 1998 through 2004
established that the
appellant's service-connected disabilities amounted to a "significant left
foot disability with some
lower extremity problems, which resulted in his walking with a limp and
using a cane; and some
hearing loss." The Board stated:
Such limitations, in the opinion of the Board, do not result in marked
interference
with employment, over and above that which is contemplated in the
schedular
ratings. . . . While employment was undoubtedly made more difficult . . . ,
these
disabilities did not present such an exceptional or unusual disability
picture and are
not reflective of any factor which takes the veteran outside of the norm.
R. at 14. Accordingly, the Board concluded that referral for
extraschedular consideration under
38 C.F.R. § 4.16(b) was unwarranted. R. at 15.
On appeal, the appellant argues that the Board erred when it rejected the
private vocational
expert's opinion that he is permanently and totally occupationally
disabled as a result of his service-
connected bilateral foot conditions and hearing loss. Appellant's Brief (
Br.) at 7-11. The appellant
3
argues that the Board improperly substituted its own independent medical
opinion in violation of
Colvin v. Derwinski, 1 Vet.App. 171, 175 (1991); failed to provide an
adequate statement of reasons
or bases; and applied an incorrect legal standard under 38 C.F.R. § 4.16(
b) (2010). Id. at 11-13. The
appellant also argues that because the Board failed to provide an adequate
rationale for rejecting the
vocational expert's opinion, the Court should remand the case for
readjudication and direct that the
matter be referred for extraschedular consideration pursuant to § 4.16(b).
Id. at 15-16. The
Secretary refutes each of these contentions and argues that the Board's
decision should be affirmed.
Secretary's Br. at 10-15.
II. ANALYSIS
Previous HitTDIUNext Hit may be assigned to a veteran who meets certain disability percentage
standards and
is "unable to secure or follow a substantially gainful occupation as a
result of service-connected
disabilities." 38 C.F.R. § 4.16(a) (2010). Alternatively, if a claimant
is found to be unemployable
because of service-connected disabilities, but does not meet the
percentage standards set forth in
§ 4.16(a), the rating board should refer the matter to the director of
Compensation and Pension
Service for extraschedular consideration. 38 C.F.R. § 4.16(b). The Board
must provide a statement
of the reasons or bases for its determination, adequate to enable an
appellant to understand the
precise basis for the Board's decision as well as to facilitate review in
this Court. 38 U.S.C.
§ 7104(d)(1); see Allday v. Brown, 7 Vet.App. 517, 527 (1995); Gilbert v.
Derwinski, 1 Vet.App.
49, 56-57 (1990). To comply with this requirement, the Board must analyze
the credibility and
probative value of the evidence, account for the evidence it finds
persuasive or unpersuasive, and
provide the reasons for its rejection of any material evidence favorable
to the claimant. Caluza v.
Brown, 7 Vet.App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir.
1996) (table).
1. Rejection of Vocational Expert's Opinion
The appellant argues that the Board's rejection of Mr. Cody's opinion –
because he did not
examine the veteran or review the claims file – places form over
substance, particularly since the
Board ultimately agreed that the expert's factual premises were accurate.
Appellant's Br. at 7-8
(citing Nieves-Rodriguez v. Peake, 22 Vet.App. 295, 304 (2008)). The
appellant's argument,
although persuasive, is unavailing because the Board did not reject Mr.
Cody's opinion on the basis
4
of the above factors alone. Rather, the Board found that Mr. Cody's
reasoning was "flawed" because
(1) his conclusion was based on the "utterly unsupported assumption that
work would not be
available in a quiet environment," and (2) there was "absolutely no
support contained in his report"
for his conclusion that the veteran's unemployability"appears to have been
the situation since 1994."
R. at 13.
The Court has consistently held that the Board may not rely on an
examiner's conclusory
statements if they lack supporting analysis. Stefl v. Nicholson, 21 Vet.
App. 120, 124-25 (2007)
(stating that the Board may not assess the probative value of "a mere
conclusion by a medical
doctor"); see also Nieves-Rodriguez, 22 Vet.App. at 301 (noting that "a
medical examination report
must contain not only clear conclusions with supporting data, but also a
reasoned explanation
connecting the two"). Although Mr. Cody's conclusions may have been based
on his knowledge of
job requirements and the availabilityof jobs (see Appellant's Br. at 10),
his report fails to include any
supporting analysis for the Board to weigh and consider. Therefore, the
Court is not convinced that
the Board clearly erred when it rejected Mr. Cody's report because it "
lack[ed] cogent explanations
for its ultimate conclusions." See Owens v. Brown, 7 Vet.App. 429, 433 (
1995) (it is the Board, not
the Court, that is responsible for assessing the credibility and weight to
be given to evidence and the
Court may overturn the Board's assessments only if they are clearly
erroneous); see also United
States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948) (a finding of fact is
clearly erroneous when the
Court, afterreviewingtheentireevidence, "is left with the definite and
firm conviction that a mistake
has been committed"); Gilbert, 1 Vet.App. at 52.
2. Board's Statement of Reasons or Bases
The appellant also argues that the Board's conclusion that the evidence
did not warrant
referral for extraschedular consideration under§ 4.16(b) must be set
aside because the Board applied
an incorrect legal standard, failed to support its decision with an
adequate statement of reasons, and
failed to account for his education and employment history. Appellant's Br.
at 11-13. The Court
agrees.
A review of the Board's decision reveals that the Board's analysis of
whether the appellant
is entitled to referral under 38 C.F.R. § 4.16(b) is inadequate because
it conflates the criteria in
38 C.F.R. § 3.321(b) with the criteria for Previous HitTDIUNext Hit in § 4.16(b). This Court
has recognized that "the
5
effect of a service-connected disability appears to be measured
differently for purposes of
extraschedular consideration under 38 C.F.R. § 3.321(b)(1) . . . and for
purposes of a Previous HitTDIUNext Document claim
under 38 C.F.R. § 4.16." Kellar v. Brown, 6 Vet.App. 157, 162 (1994).
While the former requires
marked interference with employment, the latter requires evidence of
unemployability. Id.
In this case, the Board concluded that referral under § 4.16(b) was not
warranted because it
foundthat theevidence failed toestablishmarked interference withemployment
orotherwisepresent
anexceptionalorunusualdisabilitypicture–criterianecessaryforconsideratio
rating under § 3.321(b)(1). R. at 14-15. The Board did not address
whether the evidence establishes
that the appellant is "unable to secure and follow substantially gainful
occupation by reason of his
service-connected disabilities." 38 C.F.R. § 4.16(b). Nor does a review
of the Board's decision
reveal any consideration of the appellant's educational and occupational
history. See Cathell v.
Brown, 8 Vet.App. 539, 544 (1996) (when determining whether a veteran is
unemployable, the
Board must do more than "'merely allude to [the appellant's] educational
and occupational history'"
– it must "'relate these factors to the disabilities of the appellant"
and provide an adequate statement
of reasons or bases for its decision (citing Gleicher v. Derwinski, 2 Vet.
App. 26, 28 (1991)).
Accordingly, because the Board applied an incorrect legal standard and
failed to provide an
adequate statement of reasons or bases for its decision, the Court will
vacate the July 1, 2008, Board
decision and remand the matter for readjudication consistent with this
decision. See Tucker v. West,
11 Vet.App. 369, 374 (1998) (holding that a remand is the appropriate
remedy "where the Board has
incorrectly applied the law, failed to provide an adequate statement of
reasons or bases for its
determinations, or where the record is otherwise inadequate"). On remand,
the Board should assess
and discuss the appellant's education and occupational history and explain
how these factors are
related to his employability. See Cathell and Gleicher, both supra.
Given this disposition, the Court will not at this time address the
remaining arguments and
issues raised by the appellant. See Best v. Principi, 15 Vet.App. 18, 20 (
2001). "A narrow decision
preserves for the appellant an opportunity to argue those claimed errors
before the Board at the
readjudication, and, of course, before this Court in an appeal, should the
Board rule against him."
Id. On remand, the appellant is free to submit additional evidence and
argument on the remanded
matters, and the Board is required to consider any such relevant evidence
and argument. See Kay
6
v.Principi,16Vet.App.529,534(2002)(statingthat,onremand,
theBoardmustconsideradditional
evidence and argument in assessing entitlement to benefit sought);
Kutscherousky v. West,
12 Vet.App. 369, 372-73 (1999) (per curiam order). The Court has held that
"[a] remand is meant
to entail a critical examination of the justification for the decision."
Fletcher v. Derwinski,
1 Vet.App. 394, 397 (1991). The Board must proceed expeditiously, in
accordance with 38 U.S.C.
§ 7112 (requiring Secretaryto providefor "expeditious treatment"
ofclaimsremandedbytheCourt).
III. CONCLUSION
After consideration of the appellant's and the Secretary's briefs, and a
review of the record,
the Board's July 1, 2008, decision is VACATED and the matter is REMANDED
to the Board for
further proceedings consistent with this decision.
DATED: August 31, 2010
Copies to:
Barbara J. Cook, Esq.
VA General Counsel (027)
7
================================
The Court has consistently held that the Board may not rely on an
examiner's conclusory statements if they lack supporting analysis. Stefl v. Nicholson, 21 Vet.App. 120, 124-25 (2007)(stating that the Board may not assess the probative value of "a mere conclusion by a medical doctor"); see also Nieves-Rodriguez, 22 Vet.App. at 301 (noting that "a medical examination report must contain not only clear conclusions with supporting data, but also a reasoned explanation connecting the two"). Although Mr. Cody's conclusions may have been based on his knowledge of job requirements and the availability of jobs (see Appellant's Br. at 10), his report fails to include any supporting analysis for the Board to weigh and consider. Therefore, the Court is not convinced that the Board clearly erred when it rejected Mr. Cody's report because it "lack[ed] cogent explanations for its ultimate conclusions." See Owens v. Brown, 7 Vet.App. 429, 433 (1995)..."
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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 08-2941
PHILLIP A. MOORE, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before SCHOELEN, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
SCHOELEN, Judge: The appellant, Phillip A. Moore, through counsel, appeals
a July 1, 2008,Board of Veterans'Appeals(Board) decision that denied entitlement to an effective date earlier than May 18, 2004, for the award of a total disability rating based upon individual unemployability (TDIU) due to his service-connected disabilities. Record of Proceedings (R.) at 3-15. Single-judge
disposition is appropriate. See Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (
1990). This appeal is
timely, and the Court has jurisdiction over the case pursuant to 38 U.S.C.
§§ 7252(a) and 7266(a).
Because the Board applied an incorrect legal standard and provided an
inadequate statement of
reason or bases for its decision, the Court will vacate the July 1, 2008,
decision and remand the
matter for further proceedings consistent with this decision.
I. FACTS
The appellant served on active duty in the U.S. Air Force from June 1955
to January 1968.
R. at 5, 1271. The record demonstrates that the appellant is service
connected for the following
conditions: (1) Residuals, plantar warts and calluses, left foot, rated 30%
disabling from August 23,
1999; (2) residuals, plantar warts and calluses, right foot, rated 10%
from November 20, 1986, and
30% from May 18, 2004; (3) left ankle condition, rated 10% from August 23,
1999; (4) right knee
with degenerative osteoarthritis, rated 10% from February 20, 2001; (5)
residuals, fracture, second
left toe, rated 0% from November 20, 1986; (6) hearing loss, rated 0% from
January 25, 1999; and
(7) tinnitus, rated 10% from June 13, 2003. R. at 686-93.
The appellant filed his claim for entitlement to Previous HitTDIUNext Hit in January 1999. R.
at 1545-47. His
claim was denied by the VA regional office (RO) in July 1999 (R. at 1422-
28), and has remained in
appellate status (R. at 11, 702-08, 800-07, 1117-28, 1170-76, 1334-53,
1376-79).
Following a March 2005 Board remand for additional development, the
appellant submitted
a vocational assessment report byWilliam T. Cody, a diplomat of the
American Board of Vocational
Experts. R. at 696-98. Mr. Cody indicated that his assessment was based
upon his review of a
September 2004 medical report and the appellant's initial application for
Previous HitTDIUNext Hit, which includes a
description of his educational and vocational histories. R. at 696; see
also R. at 855-56, 1315-16.
Based on the September 2004 medical report, Mr. Cody noted that the
appellant "'has
significant difficulty to [sic] stand or walk'" and that "[t]his
limitation restricts consideration to
sedentarywork." R. at 697. Mr. Codyfurther indicated that because the
appellant's prior experience
was limited to physical work, and because the appellant had no skills or
experience that could be
transferred to sedentary work, only "unskilled sedentary work can be
considered as appropriate for
him." Id. With regard to the appellant's hearing loss, Mr. Cody noted that
the September 2004
medical report established "'mild to severe sensorineural hearing loss'
. . . on both sides, but [that]
speech discrimination in either ear 'is good in . . . qui[et].'" Id. Mr.
Cody opined that "[t]his
additional limitation precludes the unskilled sedentary work that could
otherwise be considered
appropriate for him as there can be no guarantee of a 'qui[et]' work
environment." Id. Mr. Cody
concluded, "based on the appellant's age, education, work history, and
primarily the physical
limitations that he has as a result of his service[-]related disability,"
that the appellant is
"permanently and totally occupationally disabled. That is, there are no
jobs in the local or national
economies that he is able to perform." R. at 698. Finally, Mr. Cody stated
that "this appears to have
been the situation since 1994." Id.
In March 2006, the RO granted entitlement to Previous HitTDIUNext Hit. R. at 657-62. The RO
assigned a May
18, 2004, effective date based on the date the appellant's service-
connected disabilities met the
schedular requirements for Previous HitTDIUNext Hit pursuant to 38 C.F.R. § 4.16(a) (2005). R.
at 658-59. The
2
appellant filed a Notice of Disagreement asserting that a January 1999
effective date should have
been assigned. R. at 631. The RO issued a Statement of the Case (R. at 96-
106) and the appellant
perfected his appeal to the Board (R. at 70-71).
On July 1, 2008, the Board issued the decision here on appeal. R. at 3-15.
The Board noted
that there was no contention in this case that the appellant met the
schedular requirements for Previous HitTDIUNext Hit
prior to May 2004. R. at 10. Instead, the appellant, relying on the
vocational assessment report
prepared by Mr. Cody, asserted that the evidence demonstrated entitlement
to Previous HitTDIUNext Hit on an
extraschedular basis since 1999. Id. at 10-11. Nonetheless, the Board
found that Mr. Cody's report
was of "virtuallyno probative value" because Mr. Cody(1) did not examine
or interview the veteran,
(2) did not review the appellant's VA medical records, and (3) only
reviewed a medical report that
postdated the appellant's Previous HitTDIUNext Hit award. R. at 12. The Board further found
that Mr. Cody's reasoning
was "flawed" because of his "utterly unsupported assumption that work
would not be available in
a quiet environment" and his failure to provide any support for his
ultimate conclusion that the
appellant has been unemployable since 1994. R. at 13. The Board stated
that Mr. Cody's report
amounts to "rank speculation" and rejected his assessment because it "
lacks cogent explanations for
its ultimate conclusions." Id.
The Board then noted that the medical evidence from 1998 through 2004
established that the
appellant's service-connected disabilities amounted to a "significant left
foot disability with some
lower extremity problems, which resulted in his walking with a limp and
using a cane; and some
hearing loss." The Board stated:
Such limitations, in the opinion of the Board, do not result in marked
interference
with employment, over and above that which is contemplated in the
schedular
ratings. . . . While employment was undoubtedly made more difficult . . . ,
these
disabilities did not present such an exceptional or unusual disability
picture and are
not reflective of any factor which takes the veteran outside of the norm.
R. at 14. Accordingly, the Board concluded that referral for
extraschedular consideration under
38 C.F.R. § 4.16(b) was unwarranted. R. at 15.
On appeal, the appellant argues that the Board erred when it rejected the
private vocational
expert's opinion that he is permanently and totally occupationally
disabled as a result of his service-
connected bilateral foot conditions and hearing loss. Appellant's Brief (
Br.) at 7-11. The appellant
3
argues that the Board improperly substituted its own independent medical
opinion in violation of
Colvin v. Derwinski, 1 Vet.App. 171, 175 (1991); failed to provide an
adequate statement of reasons
or bases; and applied an incorrect legal standard under 38 C.F.R. § 4.16(
b) (2010). Id. at 11-13. The
appellant also argues that because the Board failed to provide an adequate
rationale for rejecting the
vocational expert's opinion, the Court should remand the case for
readjudication and direct that the
matter be referred for extraschedular consideration pursuant to § 4.16(b).
Id. at 15-16. The
Secretary refutes each of these contentions and argues that the Board's
decision should be affirmed.
Secretary's Br. at 10-15.
II. ANALYSIS
Previous HitTDIUNext Hit may be assigned to a veteran who meets certain disability percentage
standards and
is "unable to secure or follow a substantially gainful occupation as a
result of service-connected
disabilities." 38 C.F.R. § 4.16(a) (2010). Alternatively, if a claimant
is found to be unemployable
because of service-connected disabilities, but does not meet the
percentage standards set forth in
§ 4.16(a), the rating board should refer the matter to the director of
Compensation and Pension
Service for extraschedular consideration. 38 C.F.R. § 4.16(b). The Board
must provide a statement
of the reasons or bases for its determination, adequate to enable an
appellant to understand the
precise basis for the Board's decision as well as to facilitate review in
this Court. 38 U.S.C.
§ 7104(d)(1); see Allday v. Brown, 7 Vet.App. 517, 527 (1995); Gilbert v.
Derwinski, 1 Vet.App.
49, 56-57 (1990). To comply with this requirement, the Board must analyze
the credibility and
probative value of the evidence, account for the evidence it finds
persuasive or unpersuasive, and
provide the reasons for its rejection of any material evidence favorable
to the claimant. Caluza v.
Brown, 7 Vet.App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir.
1996) (table).
1. Rejection of Vocational Expert's Opinion
The appellant argues that the Board's rejection of Mr. Cody's opinion –
because he did not
examine the veteran or review the claims file – places form over
substance, particularly since the
Board ultimately agreed that the expert's factual premises were accurate.
Appellant's Br. at 7-8
(citing Nieves-Rodriguez v. Peake, 22 Vet.App. 295, 304 (2008)). The
appellant's argument,
although persuasive, is unavailing because the Board did not reject Mr.
Cody's opinion on the basis
4
of the above factors alone. Rather, the Board found that Mr. Cody's
reasoning was "flawed" because
(1) his conclusion was based on the "utterly unsupported assumption that
work would not be
available in a quiet environment," and (2) there was "absolutely no
support contained in his report"
for his conclusion that the veteran's unemployability"appears to have been
the situation since 1994."
R. at 13.
The Court has consistently held that the Board may not rely on an
examiner's conclusory
statements if they lack supporting analysis. Stefl v. Nicholson, 21 Vet.
App. 120, 124-25 (2007)
(stating that the Board may not assess the probative value of "a mere
conclusion by a medical
doctor"); see also Nieves-Rodriguez, 22 Vet.App. at 301 (noting that "a
medical examination report
must contain not only clear conclusions with supporting data, but also a
reasoned explanation
connecting the two"). Although Mr. Cody's conclusions may have been based
on his knowledge of
job requirements and the availabilityof jobs (see Appellant's Br. at 10),
his report fails to include any
supporting analysis for the Board to weigh and consider. Therefore, the
Court is not convinced that
the Board clearly erred when it rejected Mr. Cody's report because it "
lack[ed] cogent explanations
for its ultimate conclusions." See Owens v. Brown, 7 Vet.App. 429, 433 (
1995) (it is the Board, not
the Court, that is responsible for assessing the credibility and weight to
be given to evidence and the
Court may overturn the Board's assessments only if they are clearly
erroneous); see also United
States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948) (a finding of fact is
clearly erroneous when the
Court, afterreviewingtheentireevidence, "is left with the definite and
firm conviction that a mistake
has been committed"); Gilbert, 1 Vet.App. at 52.
2. Board's Statement of Reasons or Bases
The appellant also argues that the Board's conclusion that the evidence
did not warrant
referral for extraschedular consideration under§ 4.16(b) must be set
aside because the Board applied
an incorrect legal standard, failed to support its decision with an
adequate statement of reasons, and
failed to account for his education and employment history. Appellant's Br.
at 11-13. The Court
agrees.
A review of the Board's decision reveals that the Board's analysis of
whether the appellant
is entitled to referral under 38 C.F.R. § 4.16(b) is inadequate because
it conflates the criteria in
38 C.F.R. § 3.321(b) with the criteria for Previous HitTDIUNext Hit in § 4.16(b). This Court
has recognized that "the
5
effect of a service-connected disability appears to be measured
differently for purposes of
extraschedular consideration under 38 C.F.R. § 3.321(b)(1) . . . and for
purposes of a Previous HitTDIUNext Document claim
under 38 C.F.R. § 4.16." Kellar v. Brown, 6 Vet.App. 157, 162 (1994).
While the former requires
marked interference with employment, the latter requires evidence of
unemployability. Id.
In this case, the Board concluded that referral under § 4.16(b) was not
warranted because it
foundthat theevidence failed toestablishmarked interference withemployment
orotherwisepresent
anexceptionalorunusualdisabilitypicture–criterianecessaryforconsideratio
rating under § 3.321(b)(1). R. at 14-15. The Board did not address
whether the evidence establishes
that the appellant is "unable to secure and follow substantially gainful
occupation by reason of his
service-connected disabilities." 38 C.F.R. § 4.16(b). Nor does a review
of the Board's decision
reveal any consideration of the appellant's educational and occupational
history. See Cathell v.
Brown, 8 Vet.App. 539, 544 (1996) (when determining whether a veteran is
unemployable, the
Board must do more than "'merely allude to [the appellant's] educational
and occupational history'"
– it must "'relate these factors to the disabilities of the appellant"
and provide an adequate statement
of reasons or bases for its decision (citing Gleicher v. Derwinski, 2 Vet.
App. 26, 28 (1991)).
Accordingly, because the Board applied an incorrect legal standard and
failed to provide an
adequate statement of reasons or bases for its decision, the Court will
vacate the July 1, 2008, Board
decision and remand the matter for readjudication consistent with this
decision. See Tucker v. West,
11 Vet.App. 369, 374 (1998) (holding that a remand is the appropriate
remedy "where the Board has
incorrectly applied the law, failed to provide an adequate statement of
reasons or bases for its
determinations, or where the record is otherwise inadequate"). On remand,
the Board should assess
and discuss the appellant's education and occupational history and explain
how these factors are
related to his employability. See Cathell and Gleicher, both supra.
Given this disposition, the Court will not at this time address the
remaining arguments and
issues raised by the appellant. See Best v. Principi, 15 Vet.App. 18, 20 (
2001). "A narrow decision
preserves for the appellant an opportunity to argue those claimed errors
before the Board at the
readjudication, and, of course, before this Court in an appeal, should the
Board rule against him."
Id. On remand, the appellant is free to submit additional evidence and
argument on the remanded
matters, and the Board is required to consider any such relevant evidence
and argument. See Kay
6
v.Principi,16Vet.App.529,534(2002)(statingthat,onremand,
theBoardmustconsideradditional
evidence and argument in assessing entitlement to benefit sought);
Kutscherousky v. West,
12 Vet.App. 369, 372-73 (1999) (per curiam order). The Court has held that
"[a] remand is meant
to entail a critical examination of the justification for the decision."
Fletcher v. Derwinski,
1 Vet.App. 394, 397 (1991). The Board must proceed expeditiously, in
accordance with 38 U.S.C.
§ 7112 (requiring Secretaryto providefor "expeditious treatment"
ofclaimsremandedbytheCourt).
III. CONCLUSION
After consideration of the appellant's and the Secretary's briefs, and a
review of the record,
the Board's July 1, 2008, decision is VACATED and the matter is REMANDED
to the Board for
further proceedings consistent with this decision.
DATED: August 31, 2010
Copies to:
Barbara J. Cook, Esq.
VA General Counsel (027)
7
Veterans Treatment Court, San Diego County
Veterans need and deserve such Courts, hopefully this addition will provide insights upon which other counties can draw in creation of their own Veteran Court system.
Full Article at: Details emerge on Veterans Treatment Court
By Rick Rogers - For The North County Times North County Times - Californian | Posted: Friday, September 24, 2010 12:00 am
"The Veterans Treatment Court will be open to both active-duty troops and former service members charged with crimes, according to emerging details of the first judicial venue of its kind in San Diego County.
Tentatively set to start in March with San Diego Superior Court Judge Roger Krauel at the helm, the court's goal is to reintegrate those struggling with the psychological baggage of their military service back into society, instead of sending them to jail for their offenses.
It appears Krauel is the right person for the right job. A Vietnam combat veteran and former Army Green Beret and Ranger, Krauel served 35 years in uniform after being drafted in 1967. He spent most of his duty days as reserve officer, with significant time assigned to the counter-terrorism field.
Former Gov. Pete Wilson appointed Krauel, 66, to the bench in 1999. He has sat on a number of courts that should serve him well on the pending court.
"As a judge, I have presided over domestic violence court, drug court, homeless court, stand-down court and mental health court," Krauel said. "In each of these focused courts, I gained experience with issues that will be addressed in VTC."
"My military experience assists me in creating rapport with persons who have military ties and appear in court," Krauel said.
In early October, Krauel and a legal team from San Diego County will travel to Buffalo, N.Y., to observe how the oldest veterans court in the country does business.
"Each court has its own culture, so a solution in one jurisdiction might not work in another," Krauel said. "But sharing the different approaches will help San Diego fashion a program that will work for us."
Buffalo Judge Robert Russell started the country's first veterans court in January 2008. A hybrid of existing specialty courts ---- such as domestic violence court, mental health court and drug court ---- veterans court has been a success.
A story on the Buffalo court earlier this year found that of 120 veterans enrolled in that program, 90 percent successfully completed the program and the recidivism rate was zero.
Below are pertinent facts edited from an interview with the judge.
-- A defendant will be assigned to the San Diego Veterans Treatment Court based on the mutual recommendation of the prosecutor and defense lawyer, and supporting information from the probation department and agencies providing assessment and treatment. In accordance with the protocols to be established, the judge will accept the placement of a defendant into the VTC.
-- According to the Veterans Administration, San Diego County has the highest concentration in the nation of veterans of the Iraq and Afghanistan conflicts who are seeking treatment. California is adopting a new law that expressly authorizes counties to create VTCs. San Diego is planning a pilot project ... (that) will test the assumption that by consolidating the managing of criminal sanctions and treatment programs, the VTC will reduce criminal recidivism in defendants who are veterans who suffer a service-connected mental disorder.
-- All of the programs of the San Diego Court are open to defendants who are on active duty, with accommodations considered concerning the demands of the military. The San Diego VTC will be similarly open. As to military charges, in certain circumstances military procedures allow for military sanctions to be imposed in addition to whatever a civilian court does. Where there is military jurisdiction over the crime, it is up to the prosecutor whether there also is a case filed in state court.
-- The VTC will have the power to review cases already adjudicated. To do this, attorneys would make a joint referral recommendation to the criminal court judge conducting the probation hearing and sentencing of the defendant; or to the judge reviewing, post-sentence, the performance of probation."
Full Article at: Details emerge on Veterans Treatment Court
By Rick Rogers - For The North County Times North County Times - Californian | Posted: Friday, September 24, 2010 12:00 am
"The Veterans Treatment Court will be open to both active-duty troops and former service members charged with crimes, according to emerging details of the first judicial venue of its kind in San Diego County.
Tentatively set to start in March with San Diego Superior Court Judge Roger Krauel at the helm, the court's goal is to reintegrate those struggling with the psychological baggage of their military service back into society, instead of sending them to jail for their offenses.
It appears Krauel is the right person for the right job. A Vietnam combat veteran and former Army Green Beret and Ranger, Krauel served 35 years in uniform after being drafted in 1967. He spent most of his duty days as reserve officer, with significant time assigned to the counter-terrorism field.
Former Gov. Pete Wilson appointed Krauel, 66, to the bench in 1999. He has sat on a number of courts that should serve him well on the pending court.
"As a judge, I have presided over domestic violence court, drug court, homeless court, stand-down court and mental health court," Krauel said. "In each of these focused courts, I gained experience with issues that will be addressed in VTC."
"My military experience assists me in creating rapport with persons who have military ties and appear in court," Krauel said.
In early October, Krauel and a legal team from San Diego County will travel to Buffalo, N.Y., to observe how the oldest veterans court in the country does business.
"Each court has its own culture, so a solution in one jurisdiction might not work in another," Krauel said. "But sharing the different approaches will help San Diego fashion a program that will work for us."
Buffalo Judge Robert Russell started the country's first veterans court in January 2008. A hybrid of existing specialty courts ---- such as domestic violence court, mental health court and drug court ---- veterans court has been a success.
A story on the Buffalo court earlier this year found that of 120 veterans enrolled in that program, 90 percent successfully completed the program and the recidivism rate was zero.
Below are pertinent facts edited from an interview with the judge.
-- A defendant will be assigned to the San Diego Veterans Treatment Court based on the mutual recommendation of the prosecutor and defense lawyer, and supporting information from the probation department and agencies providing assessment and treatment. In accordance with the protocols to be established, the judge will accept the placement of a defendant into the VTC.
-- According to the Veterans Administration, San Diego County has the highest concentration in the nation of veterans of the Iraq and Afghanistan conflicts who are seeking treatment. California is adopting a new law that expressly authorizes counties to create VTCs. San Diego is planning a pilot project ... (that) will test the assumption that by consolidating the managing of criminal sanctions and treatment programs, the VTC will reduce criminal recidivism in defendants who are veterans who suffer a service-connected mental disorder.
-- All of the programs of the San Diego Court are open to defendants who are on active duty, with accommodations considered concerning the demands of the military. The San Diego VTC will be similarly open. As to military charges, in certain circumstances military procedures allow for military sanctions to be imposed in addition to whatever a civilian court does. Where there is military jurisdiction over the crime, it is up to the prosecutor whether there also is a case filed in state court.
-- The VTC will have the power to review cases already adjudicated. To do this, attorneys would make a joint referral recommendation to the criminal court judge conducting the probation hearing and sentencing of the defendant; or to the judge reviewing, post-sentence, the performance of probation."
Thursday, September 23, 2010
GAO Assigns Failing Marks to VA Hospitals, Promises Further Investigation
Full Article at: VA contracting problems disclosed; Cochran next stop for investigators
BY BILL LAMBRECHT>blambrecht@post-dispatch.com>202-298-6880 | Posted: Thursday, September 23, 2010 3:00 pm |
WASHINGTON -- Investigators from the Government Accountability Office plan to arrive at the John A. Cochran Medical Center in St. Louis in early October in another inquiry spurred by the recent scandal over improperly sterilized dental equipment.
GAO officials announced their intentions today at a House subcommittee hearing examining how the Veterans Administration makes its purchases and oversees some $9 billion of its spending.
In the GAO's preliminary assssment after visits to five other VA hospitals, the veterans' agency received some failing marks.
Investigators found contracting shortcomings in all five government-run hospitals, in some cases creating "potential risks to veterans' safety."
Among the problems at an unidentified hospital was the incorrect purchase of supplies used in dialysis, risking veterans to exposure to HIV and other infections, the GAO reported.
The GAO, Congress's nonpartisan investigative arm, examined VA hospitals in Detroit, Cheyenne, Albany, Miami and Palo Alto.
The VA's Inspector General's office also delivered a withering report on VA contracting. In 60 of 65 contracts examined, involving $83 million, investigators found oversight lacking.
Procedures to better control and oversee contracting could save taxpayers $130 million over five years, Belinda Finn, the VA's assistant inspector general, said.
Responding to questions from Rep. Russ Carnahan, D-St. Louis, Debra Draper, the GAO's director for health care, said investigators from her office had added Cochran to the list of hospitals to be examined.
Draper said in an interview that at Cochran, the GAO would be looking at safety issues "related to the purchase and tracking of expendable supplies and reusable medical equipment."
BY BILL LAMBRECHT>blambrecht@post-dispatch.com>202-298-6880 | Posted: Thursday, September 23, 2010 3:00 pm |
WASHINGTON -- Investigators from the Government Accountability Office plan to arrive at the John A. Cochran Medical Center in St. Louis in early October in another inquiry spurred by the recent scandal over improperly sterilized dental equipment.
GAO officials announced their intentions today at a House subcommittee hearing examining how the Veterans Administration makes its purchases and oversees some $9 billion of its spending.
In the GAO's preliminary assssment after visits to five other VA hospitals, the veterans' agency received some failing marks.
Investigators found contracting shortcomings in all five government-run hospitals, in some cases creating "potential risks to veterans' safety."
Among the problems at an unidentified hospital was the incorrect purchase of supplies used in dialysis, risking veterans to exposure to HIV and other infections, the GAO reported.
The GAO, Congress's nonpartisan investigative arm, examined VA hospitals in Detroit, Cheyenne, Albany, Miami and Palo Alto.
The VA's Inspector General's office also delivered a withering report on VA contracting. In 60 of 65 contracts examined, involving $83 million, investigators found oversight lacking.
Procedures to better control and oversee contracting could save taxpayers $130 million over five years, Belinda Finn, the VA's assistant inspector general, said.
Responding to questions from Rep. Russ Carnahan, D-St. Louis, Debra Draper, the GAO's director for health care, said investigators from her office had added Cochran to the list of hospitals to be examined.
Draper said in an interview that at Cochran, the GAO would be looking at safety issues "related to the purchase and tracking of expendable supplies and reusable medical equipment."
Director of Defense Centers of Excellence for Psychological Health and Traumatic Brain Injury being Replaced
Full Article at: DOD says brain injury office chief is reassigned
By ANNE FLAHERTY and RICHARD LARDNER (AP) – 2 hours ago
WASHINGTON — "The Army officer in charge of overseeing treatment for troops suffering from brain injuries and psychological trauma has been reassigned until an internal investigation into his management of the office is completed, a senior Pentagon official said Thursday.
Col. Robert Saum is being replaced as acting director of the Defense Centers of Excellence for Psychological Health and Traumatic Brain Injury, the official said. The Associated Press reported Wednesday that Saum has been accused by an office employee of unwanted sexual advances and creating a hostile workplace. The Pentagon inspector general is investigating.
In a brief statement, Dr. George Peach Taylor, director of the military's health care program, said Saum will report to Taylor's deputy, Rear Adm. Christine Hunter. Taylor did not address the allegations against Saum and did not say what Saum's duties would be in his new assignment.
Saum is a highly decorated officer with a doctorate in cognitive studies, according to his official military biography, which has been removed from the Defense Centers of Excellence website. Saum was traveling and could not be reached for comment.
Saum had been acting director of the Defense Centers of Excellence since late June. He replaced Army Brig. Gen. Loree Sutton, who abruptly resigned amid heavy criticism on Capitol Hill that the office had not moved quickly enough to improve care for troops."
By ANNE FLAHERTY and RICHARD LARDNER (AP) – 2 hours ago
WASHINGTON — "The Army officer in charge of overseeing treatment for troops suffering from brain injuries and psychological trauma has been reassigned until an internal investigation into his management of the office is completed, a senior Pentagon official said Thursday.
Col. Robert Saum is being replaced as acting director of the Defense Centers of Excellence for Psychological Health and Traumatic Brain Injury, the official said. The Associated Press reported Wednesday that Saum has been accused by an office employee of unwanted sexual advances and creating a hostile workplace. The Pentagon inspector general is investigating.
In a brief statement, Dr. George Peach Taylor, director of the military's health care program, said Saum will report to Taylor's deputy, Rear Adm. Christine Hunter. Taylor did not address the allegations against Saum and did not say what Saum's duties would be in his new assignment.
Saum is a highly decorated officer with a doctorate in cognitive studies, according to his official military biography, which has been removed from the Defense Centers of Excellence website. Saum was traveling and could not be reached for comment.
Saum had been acting director of the Defense Centers of Excellence since late June. He replaced Army Brig. Gen. Loree Sutton, who abruptly resigned amid heavy criticism on Capitol Hill that the office had not moved quickly enough to improve care for troops."
VA Secretary Defends Link between Agent Orange and Heart Disease
Full Article at: VA defends Agent Orange, heart disease links
By BEN EVANS (AP) – 1 hour ago
WASHINGTON — "Veterans Affairs Secretary Eric Shinseki is defending an expensive proposal to extend automatic disability compensation to Vietnam veterans who develop heart disease, saying studies have shown a link between the ailment and the toxic defoliant Agent Orange.
Responding to concerns about costs, Shinseki told a Senate committee Thursday that a 1991 law compelling the agency to cover diseases linked to Agent Orange doesn't allow consideration of expense or other external factors, such as the common occurrence of heart disease from other causes."
By BEN EVANS (AP) – 1 hour ago
WASHINGTON — "Veterans Affairs Secretary Eric Shinseki is defending an expensive proposal to extend automatic disability compensation to Vietnam veterans who develop heart disease, saying studies have shown a link between the ailment and the toxic defoliant Agent Orange.
Responding to concerns about costs, Shinseki told a Senate committee Thursday that a 1991 law compelling the agency to cover diseases linked to Agent Orange doesn't allow consideration of expense or other external factors, such as the common occurrence of heart disease from other causes."
Wednesday, September 22, 2010
Psychological Center of Excellence Director under Investigation
Is this why Army Brig. Gen. Loree Sutton abruptly resigned this post in June?
Full Article at: Pentagon investigating director of psychological centers of excellence
By Bob Brewin 09/22/2010
"The director of the recently established centers to research and treat the signature wounds of the Iraq and Afghanistan wars - post-traumatic stress disorder and brain injuries -- is under investigation after a personnel complaint was filed, a Pentagon spokeswoman confirmed to Nextgov on Wednesday.
Army Col. Robert Saum, a psychologist with a doctorate in cognitive studies from the University of San Francisco and Canterbury University in the United Kingdom, remains in command of the Defense Centers of Excellence for Psychological Health and Traumatic Brain Injury. But he serves as acting director while the Pentagon conducts a search for a new permanent director, said spokeswoman Cynthia Smith. She declined to elaborate on the nature of the complaint.
Saum took over as head of the centers in June after Army Brig. Gen. Loree Sutton, who served as director since the organization began operations in November 2007, abruptly departed with no public announcement. She now works in an unspecified capacity for Lt. Gen. Eric Schoomaker, the Army's surgeon general.
Informed sources who declined to be identified because of the sensitive nature of the complaint said the investigation is another example of how management at the centers is in disarray. The organization was created to treat what has become known as "the invisible wounds of war," PTSD and traumatic brain injuries primarily caused by roadside bombs and other improvised explosives. The organization has a significant annual budget, totaling about $1.2 billion."
Full Article at: Pentagon investigating director of psychological centers of excellence
By Bob Brewin 09/22/2010
"The director of the recently established centers to research and treat the signature wounds of the Iraq and Afghanistan wars - post-traumatic stress disorder and brain injuries -- is under investigation after a personnel complaint was filed, a Pentagon spokeswoman confirmed to Nextgov on Wednesday.
Army Col. Robert Saum, a psychologist with a doctorate in cognitive studies from the University of San Francisco and Canterbury University in the United Kingdom, remains in command of the Defense Centers of Excellence for Psychological Health and Traumatic Brain Injury. But he serves as acting director while the Pentagon conducts a search for a new permanent director, said spokeswoman Cynthia Smith. She declined to elaborate on the nature of the complaint.
Saum took over as head of the centers in June after Army Brig. Gen. Loree Sutton, who served as director since the organization began operations in November 2007, abruptly departed with no public announcement. She now works in an unspecified capacity for Lt. Gen. Eric Schoomaker, the Army's surgeon general.
Informed sources who declined to be identified because of the sensitive nature of the complaint said the investigation is another example of how management at the centers is in disarray. The organization was created to treat what has become known as "the invisible wounds of war," PTSD and traumatic brain injuries primarily caused by roadside bombs and other improvised explosives. The organization has a significant annual budget, totaling about $1.2 billion."
Simultaneously Contested Claims, Thurber v. Brown, No. 92-172
"The VA regional office (RO) must provide notice of the right to appeal in regular and in simultaneously contested claims. 38 C.F.R. ùù 19.25, 19.100 (1992). (In simultaneously contested claims, the VARO must provide notice of appeal to other contesting parties. 38 C.F.R. ù 19.102 (1992).) It must provide notification of the filing of an administrative appeal. 38 C.F.R. ù 19.52 (1992). It must furnish a Statement of the Case (SOC) to a claimant, 38 C.F.R. ù 19.30 (1992), which "must be complete enough to allow . . . appellant to present written and/or oral arguments before the [BVA]," 38 C.F.R. ù 19.29 (1992). (In simultaneously contested claims, each interested party must be furnished with an SOC. 38 U.S.C.A. ù 7105A (West 1991); 38 C.F.R. ù 19.101 (1992).)"
=======================================================================
THURBER.172
Search Terms: SIMULTANEOUSLY CONTESTED CLAIMS UNITED STATES COURT OF VETERANS APPEALS
No. 92-172
Leslie N. Thurber, Appellant,
v.
Jesse Brown,
Secretary of Veterans Affairs, Appellee.
On Appeal from the Board of Veterans' Appeals
(Decided May 14, 1993 )
Leslie N. Thurber, pro se.
Robert E. Coy, Acting General Counsel, Norman G. Cooper, Acting
Assistant General Counsel, R. Randall Campbell, Deputy Assistant General
Counsel, and Peter M. Donawick were on the brief for appellee.
Before KRAMER, HOLDAWAY, and STEINBERG, Associate Judges.
KRAMER, Associate Judge: Appellant, Leslie N. Thurber, appeals a
September 27, 1991, decision of the Board of Veterans' Appeals (Board or
BVA) denying entitlement to service connection for ankylosing spondylitis (
a form of rheumatoid arthritis that affects the spine, Dorland's
Illustrated Medical Dictionary 1566 (27th ed. 1988)) on the basis that
this condition was not incurred in or aggravated by service. We vacate
the BVA decision and remand the matter.
I. Procedural Background
The BVA, in support of its decision, referenced certain pages of a
medical treatise,
"Daniel J. McCarty, Arthritis and Allied Conditions 819-38 (10th ed. 1985
)" (treatise). R. at 7. See Colvin v. Derwinski, 1 Vet.App. 171, 175 (
1991). (At the time of the issuance of the BVA decision, Hatlestad v.
Derwinski, 3 Vet.App. 213 (1992), which required that the BVA
prospectively quote from, in addition to citing, a medical treatise upon
which it relied, had not yet been issued by the Court.) A timely appeal
to the Court followed.
After the parties designated and counter designated the record, appellant
filed a supplemental counter designation of the record, see U.S. Vet. App.
R. 10, 11, requesting that the Secretary of Veterans Affairs (Secretary)
make available to the Court "the complete medical text" of the treatise.
The Secretary filed a motion to exclude, inter alia, the medical text on
the basis that it was not a part of the record of proceedings or a part of
the claims folder. See Rogozinski v. Derwinski, 1 Vet.App. 19 (1990).
Appellant filed a response to this motion, stating, in pertinent part, "
This medical text was [referenced] by BVA in [its decision], and thus
became a part of the record before the Board." Mot. of Appellant at 4.
The Court ordered that copies of the pages of the textbook cited by the
BVA (pages 819-38) be included in the record on appeal. In the order, the
Court also gave appellant an opportunity to show cause why any additional
pages of the textbook should be included in the record on appeal.
Appellant responded to this order, implying that the following pages were
relevant to an understanding of the textbook in the context of his case
and stating as follows:
Pages 15-17 Arthritis syndromes related to HLA B27,
ankylosing spondylitis
Pages 40-52 Differential diagnosis of arthritis, analysis
of signs and symptoms
Page 54 Synovial fluid
Pages 108-110 Radiology of rheumatic diseases,
ankylosing spondylitis, synoviocytes
Page 257 Structure and function of synoviocytes
Page 287 Immune system function
Page 291 Trauma
Page 1089 Trauma and occupation
Pages 1206-1209 Role of trauma
Pages 1249-1250 Spinal injuries
Mot. of Appellant at 1-2.
II. Issue Presented
While the issue presented by the parties is whether the
supplementarily designated text pages should be included in the record on
appeal, the Court views the underlying issue to be whether a claimant is
entitled to notice and an opportunity to respond before the BVA uses a
medical treatise to support its decision.
III. Evidence Obtained by the BVA
A. Medical Opinions
Both the statutory and regulatory schemes contemplate the BVA's
obtaining expert medical opinions to assist in the adjudication of claims.
Section 7109 of title 38, United States Code Annotated, states:
(a) When, in the judgment of the Board, expert medical opinion,
in addition to that available within the Department [of
Veterans Affairs (VA)], is warranted by the medical complexity
or controversy involved in an appeal case, the Board may secure
an advisory medical opinion from one or more independent
medical experts who are not employees of the Department.
(b) The Secretary shall make necessary arrangements with
recognized medical schools, universities, or clinics to furnish
such advisory medical opinions at the request of the Chairman
of the Board. Any such arrangement shall provide that the
actual selection of the expert or experts to give the advisory
opinion in an individual case shall be made by an appropriate
official of such institution.
(c) The Board shall furnish a claimant with notice that an
advisory medical opinion has been requested under this section
with respect to a claimant's case and shall furnish the
claimant with a copy of such opinion when it is received by the
Board.
38 U.S.C.A. ù 7109 (West 1991); see also 38 U.S.C.A. ù 5109 (West 1991) (
similar statutory provision authorizing the Secretary, rather than the
Board, to obtain an independent medical opinion). Subsection (a) of
section 7109, title 38, United States Code Annotated, contemplates the
obtaining of an independent medical opinion by the BVA. Subsection (c)
of section 7109 contemplates furnishing the obtained opinion to the
claimant, thus affording more than notice of an intent to obtain, but not
specifically addressing the right of a
claimant to respond to the obtained opinion (see discussion of 38 C.F.R.
ù 20.903 (1992), infra).
In addition, the Secretary has issued regulations that pertain to the
BVA's obtaining medical opinions. Section 20.901 of title 38, Code of
Federal Regulations, provides:
(a) Opinion of the Chief Medical Director. The Board may
obtain a medical opinion from the Chief Medical Director of the
Veterans Health Administration of the Department of Veterans
Affairs on medical questions involved in the consideration of
an appeal when, in its judgment, such medical expertise is
needed for equitable disposition of an appeal.
(Authority: 38 U.S.C. ù 5107(a))
(b) Armed Forces Institute of Pathology opinions. The Board
may refer pathologic material to the Armed Forces Institute of
Pathology and request an opinion based on that material.
(Authority: 38 U.S.C. ù 7109(a))
. . . .
(d) Independent medical expert opinions. When, in the judgment
of the Board, additional medical opinion is warranted by the
medical complexity or controversy involved in an appeal, the
Board may obtain an advisory medical opinion from one or more
medical experts who are not employees of the Department of
Veterans Affairs. Opinions will be secured, as requested by
the Chairman of the Board, from recognized medical schools,
universities, clinics, or medical institutions with which
arrangements for such opinions have been made by the Secretary
of Veterans Affairs. . . .
(Authority: 38 U.S.C. ù 7109)
38 C.F.R. ù 20.901(a), (b), (d) (1992) (Rule 901). These regulations,
promulgated, as stated in the regulations, under the authority of both 38
U.S.C.A. ù 7109 and 38 U.S.C.A. ù 5107(a) (West 1991) ("The Secretary
shall assist a claimant [who submits a well-grounded claim] in developing
the facts pertinent to the claim"), contemplate obtaining both VA and non-
VA opinions. Although perhaps broader in scope than ù 7109 standing
alone because of the non-independent, VA opinion provision (assumed but
not specifically authorized by ù 7109)
in section 20.901(a), Rule 901(a) is certainly a valid promulgation in
view of the Secretary's reliance on ù 5107(a). Moreover, authority for
the VA opinion provision is provided under the unreferenced authority of
38 U.S.C.A. ù 501(a) (West 1991) ("The Secretary has the authority to
prescribe all rules and regulations which are necessary or appropriate to
carry out the laws administered by the [VA] and are consistent with those
laws, including . . . regulations with respect to the nature and extent
of proof and evidence . . .; the methods of making . . . medical
examinations; and . . . the manner and form of adjudications . . .").
Furthermore, 38 C.F.R. ù 20.903 (1992) (Rule 903) provides for both
notice of and an opportunity to respond to an opinion obtained by the BVA
pursuant to Rule 901:
When an opinion is requested by the Board pursuant to Rule 901 (
ù 20.901 of this part), the Board will notify the appellant
and his or her representative, if any. When the opinion is
received by the Board, a copy of the opinion will be furnished
to the appellant's representative or[,] subject to the
limitations provided in [38 U.S.C.A. ù 5701(b)(1), not
pertinent here], to the appellant if there is no representative
. A period of 60 days from the date of mailing of a copy will
be allowed for a response. . . .
(Authority: 38 U.S.C. ù 7109(c)).
Rule 903 applies to both independent and VA opinions, but cites only to
the authority of ù 7109(c) for its promulgation, which, in turn, as
indicated, supra, perhaps specifically applies only to independent
opinions. Unquestionably, however, the VA has ample additional authority
to include VA opinions within the scope of Rule 903. See discussion of
38 U.S.C.A. ù 5107(a), part III.C.ii., infra, and ù 501(a), supra.
B. Medical Treatises
Unlike the BVA's obtaining of medical opinions, part III.A., supra,
neither the statutory nor regulatory schemes specifically authorize the
BVA's use of medical treatises. However, the Court, in Colvin, 1 Vet.App.
at 175, held, as relevant to this issue, that
BVA panels may consider only independent medical evidence to
support their findings. If the medical evidence of record is
insufficient, or, in the opinion of the BVA, of doubtful weight
or credibility, the BVA is always free to supplement the record
by . . . citing recognized medical treatises in its decisions
that
clearly support its ultimate conclusions. See [38 U.S.C.A.
ù 7109 (West 1991)]; Murphy v. Derwinski, 1 Vet.App. 78, 81 (
1990).
(Emphasis added.) Subsequent to the Court's decision in Colvin and the
issuance of the BVA's decision here on appeal, as indicated in part I.,
supra, the Court held that, prospectively, if the BVA relies on a portion
of a medical treatise in arriving at its decision, the BVA must quote the
relevant portions upon which it relies, and that "such quotations should
be of sufficient length so that their context (both within the treatise in
question and within the body of relevant literature) is able to be
determined." Hatlestad, 3 Vet.App. at 217. Under present law, however,
if the BVA so relies on a treatise, it is not required, prior to issuing
its decision, to provide appellant either a copy of the part of the
treatise relied upon or an opportunity to respond. Although Colvin and
Hatlestad, supra, may have anticipated that such procedural rights would
be afforded a claimant when medical treatise evidence was directly or
indirectly made a part of the record before the Board, such issues were
not specifically presented and thus those opinions did not address these
process questions directly.
IV. Rights to Notice and Opportunity to be Heard
A. Constitutional Considerations
While it is true that the case on appeal involves a claim for a
benefit rather than a termination of a benefit, certain due process
principles relating to the latter are worth noting. The due process
clause of the Fifth Amendment of the United States Constitution requires
that when an individual is to be deprived of a property interest as a
result of federal government action, the aggrieved party must be provided
with notice and an opportunity to be heard. See Mathews v. Eldridge, 424
U.S. 319, 333 (1976); Fugere v. Derwinski, 1 Vet.App. 103, 108 (1990).
Opportunity to be heard must be accorded "'at a meaningful time and in a
meaningful manner.'" Mathews 424 U.S. at 333 (citations omitted). The
termination of a veteran's benefit is an example of such a property
interest:
It is now well recognized that "the interest of an individual
in continued receipt of [Social Security disability] benefits
is a statutorily created 'property' interest protected by the
Fifth Amendment." Mathews v. Eldridge, 424 U.S. 319, 332 (
1976).
. . . The Supreme Court has noted that veterans benefits,
entitlement to which is established by service to country at
great personal risk, are "akin to Social Security benefits."
Walters v. National Assoc. of Radiation Survivors, 473 U.S.
305, 333 (1985). . . .
Fugere, 1 Vet.App. at 108; see Devine v. Cleland, 616 F.2d 1080 (9th Cir.
1980) (VA educational assistance allowance constitutes a property right
protected by the Fifth Amendment due process clause); Plato v. Roudebush,
397 F.Supp. 1295 (D. Md. 1975) (veteran's widow's benefits constitute a
property right protected by the Fifth Amendment due process clause).
Although the Supreme Court has not yet ruled on the extent to which
applicants for, rather than recipients of, government benefits have
property rights in their expectations, see Lyng v. Payne, 476 U.S. 926,
942 (1986); Walters v. Nat'l Assoc. of Radiation Survivors, 473 U.S. at
312, some lower federal courts have accorded due process rights to
applicants. See, e.g., Ressler v. Pierce, 692 F.2d 1212, 1214-16 (9th
Cir. 1982) (applicant for federal rent subsidies); Kelly v. R.R.
Retirement Bd., 625 F.2d 486, 489-90 (3d Cir. 1980) (applicant for
disabled child's annuity under Railroad Retirement Act); Butland v. Bowen,
673 F.Supp. 638 (D.Mass. 1987) (applicant for social security disability
benefits); Dealy v. Heckler, 616 F.Supp. 880, 884-86 (W.D.Mo. 1984) (
applicant for social security disability benefits); but see, e.g., Lozano
v. Derwinski, 1 Vet.App. 184, 186 (1990); Hill v. Group Three Housing
Development Corp., 799 F.2d 385, 391 (8th Cir. 1986); Eidson v. Pierce,
745 F.2d 453, 460 (7th Cir. 1984); Overton v. John Knox Retirement Tower,
Inc., 720 F.Supp. 934 (M.D.Ala. 1989).
Because of the silence of the applicable statute and regulations
regarding notice and opportunity to be heard, Gonzales v. United States,
348 U.S. 407 (1955), is worthy of note. In Gonzales, the petitioner
appealed his conviction for refusing to submit to induction into the armed
forces. He argued that his classification was invalid because he had not
been provided a copy of, and accorded an opportunity to reply to, the
recommendation of the Department of Justice (DOJ) denying conscientious
objector classification which DOJ had submitted to the Selective Service
Appeal Board. The Supreme Court, noting that the applicable statute and
regulations were silent on the matter, held that it was implicit in them
"-- viewed against our underlying concepts of procedural regularity and
basic fair play -- that a copy of the recommendation . . . be furnished
the registrant at the time it is forwarded to the Appeal Board, and that
he be afforded an opportunity to reply." Id. at 411-12.
Finally, in the criminal setting, the government has a constitutional
obligation to disclose material evidence favorable to the defendant. See
United States v. Bagley, 473 U.S. 667 (1985); see also Brady v. Maryland,
373 U.S. 83 (1963); United States v. Agurs, 427 U.S. 97 (1976).
B. VA Claims Adjudication Overview
The entire thrust of the VA's nonadversarial claims system is
predicated upon a structure which provides for notice and an opportunity
to be heard at virtually every step in the process. The Secretary shall
provide notice of a decision regarding a claim for benefits and "an
explanation as to the procedure for obtaining review of that decision."
38 U.S.C.A. ù 5104(a) (West 1991); see Rosler v. Derwinski, 1 Vet.App.
241, 249 (1991). "Each appellant will be accorded hearing and
representation rights pursuant to the provisions of [38 U.S.C.A. Chapter
71 (West 1991)] and regulations of the Secretary." 38 U.S.C.A. ù 7105(a) (
West 1991). The VA regional office (RO) must provide notice of the right
to appeal in regular and in simultaneously contested claimsNext Hit. 38 C.F.R.
ùù 19.25, 19.100 (1992). (In Previous Hitsimultaneously contested claimsNext Hit, the VARO
must provide notice of appeal to other contesting parties. 38 C.F.R. ù
19.102 (1992).) It must provide notification of the filing of an
administrative appeal. 38 C.F.R. ù 19.52 (1992). It must furnish a
Statement of the Case (SOC) to a claimant, 38 C.F.R. ù 19.30 (1992),
which "must be complete enough to allow . . . appellant to present written
and/or oral arguments before the [BVA]," 38 C.F.R. ù 19.29 (1992). (In
Previous Hitsimultaneously contested claimsNext Document, each interested party must be furnished
with an SOC. 38 U.S.C.A. ù 7105A (West 1991); 38 C.F.R. ù 19.101 (1992
).) A Supplemental SOC (SSOC) is required when an appellant submits
additional evidence to the VARO prior to the transfer of appellant's
records to the BVA, 38 C.F.R. ù 19.37(a) (1992), and when a BVA remand of
a case to the VARO results in additional evidentiary or procedural
development and continuation of the denial of benefits, 38 C.F.R. ù 19.
38 (1992); see generally 38 C.F.R. ù 19.31 (1992); "a period of 60 days
. . . will be
allowed for response," 38 C.F.R. ù 20.302(c) (1992) (but only 30 days,
in the case of a simultaneously contested claim, 38 C.F.R. ù 20.501(c) (
1992)). If the BVA questions the adequacy of appellant's substantive
appeal, appellant is provided "notice . . . and a period of 60 days . . .
to present written argument or to request a hearing to present oral
argument." 38 C.F.R. ù 20.203 (1992). The Board shall decide an appeal "
only after affording the claimant an opportunity for a hearing." 38 U.S.C.
A. ù 7104(a) (West 1991). In connection with the right to a hearing, a
claimant has the right to present evidence, testimony, and argument in
support of a claim. 38 C.F.R. ù 20.700 (1992). A claimant has the right
to notification of the time and place of the hearing on appeal. 38 C.F.R.
ù 20.702(b) (1992). A claimant has the right to notification of the
certification of appeal and transfer of the appellate record to the BVA.
38 C.F.R. ù 19.36 (1992). If a "Travel Board" hearing is held, a
claimant must be notified of its time and place. 38 C.F.R. ù 19.76 (1992
). When a "Travel Board" hearing is requested, a claimant must be
furnished with an SOC if not previously furnished. 38 C.F.R. ù 19.77 (
1992). "After reaching a decision in a case, the Board shall promptly
mail a copy of its written decision to the claimant. . . ." 38 U.S.C.A.
ù 7104(e) (West 1991). A claimant is entitled to a hearing if a motion
for reconsideration of a final BVA decision is granted. 38 C.F.R. ù 20.
1003 (1992). The BVA may vacate an appellate decision which denies "due
process of law" upon the request of appellant, or on the BVA's own motion.
38 C.F.R. ù 20.904 (1992).
C. Special Provisions
i. 38 C.F.R. ù 3.103 (1992)
Subsection (d) of 38 C.F.R. ù 3.103, which is entitled "Procedural
due process and appellate rights," states:
(d) Submission of evidence. Any evidence whether documentary,
testimonial, or in other form, offered by the claimant in
support of a claim and any issue a claimant may raise and any
contention or argument a claimant may offer with respect
thereto are to be included in the records.
This subsection requires that all evidence, issues, contentions, and
arguments advanced by a claimant must be "included in the records." Id.
For the provision to have meaningful
effect necessitates that there must be reasonable notice of the right to
advance, and a reasonable opportunity to so advance, such evidence, issues,
contentions, and arguments.
ii. Duty to Assist
As indicated in part III.A., supra, once a claimant has submitted a
well-grounded claim, the Secretary has a duty to "assist such claimant in
developing the facts pertinent to the claim." 38 U.S.C.A. ù 5107(a);
see 38 C.F.R. ù 3.159 (1992); Moore v. Derwinski, 1 Vet.App. 401, 405-06 (
1991) (duty to assist includes the providing of complete and thorough
medical examinations that address a claimant's complaints); EF v.
Derwinski, 1 Vet.App. 324, 326 (1991) (duty to assist extends to requiring
that "the BVA must review all issues which are reasonably raised from a
liberal reading of" all documents or oral testimony submitted prior to a
BVA decision); Murphy v. Derwinski, 1 Vet.App. at 82 (duty to assist
extends to the securing of any relevant military, VA, or other government
records or, with appellant's cooperation, private medical, hospital,
employment, or other civilian records).
D. The Administrative Procedure Act
The history of the applicability of the rulemaking provisions of the
Administrative Procedure Act (APA) to the VA is well stated in the
Court's decision in Fugere, 1 Vet.App. at 107-08:
By regulation in effect since 1972 the VA, as a matter of
policy, has voluntarily embraced the provisions of the APA:
It is the policy of the Department of Veterans Affairs to
afford the public general notice, published in the
Federal Register, of proposed regulatory development, and
an opportunity to participate in the regulatory
development in accordance with the provisions of the [APA
]. All written comments received will be available for
public inspection . . . .
38 C.F.R. ù 1.12. . . .
. . . .
[T]he types of VA materials that must conform to this
procedure . . . . [are] agency issuances that confer a
right, privilege, or benefit, or impose a duty or
obligation on VA beneficiaries or other members of the
public. Where VA issuances fail to meet the applicable
notice and comment requirement, the issuance may be
invalid, even though fully within the authority of the [
Secretary].
Op. G. C. Mem. (VA July 1, 1987).
The Court in Fugere went on to point out that the VA's adoption of the
APA's notice and comment requirement was codified, effective September 1,
1989, as part of the Veterans' Judicial Review Act (VJRA) ù 102(a), at 38
U.S.C.A. ù 501(c), (d) (West 1992). The Court has not addressed the
issue of the applicability of the APA to the VA adjudication process, and
we express no opinion in this decision. See 5 U.S.C.A. ùù 554, 556(d), (
e) (West 1990 & Supp. 1993); but see United States Lines v. Federal
Maritime Comm'n, 584 F.2d 519, 536 (D.C. Cir. 1978) (adjudication
provisions "do not apply unless Congress has clearly indicated that the
'hearing' required by statute must be a trial-type hearing on the record
"); Barefield v. Byrd 320 F.2d 455, 457 (5th Cir. 1963) (VA Administrator (
now Secretary) is not bound to conform to APA provisions since title 38 of
the United States Code does not require adjudications "to be determined on
the record after opportunity for an agency hearing"). The Court notes,
however, that the legislative history of the VJRA indicates that, while
the Senate bill would have provided additional statutory rights with
respect to notice and an opportunity to be heard, the compromise agreement
adopted the Senate position only with respect to hearings before traveling
sections of the BVA, preferring, in general, to rely on existing "informal
procedures" and "fundamental . . . due process rights," and specifically
stating "that the title 5 procedures relating to adjudications continue to
be inapplicable." See Explanatory Statement, 100th Cong., 2d Sess. (1988
), reprinted in 1988 U.S.C.C.A.N. 5842-44. Nevertheless, the Court
believes that 5 U.S.C.A. ù 556 is worthy of at least mention:
(d) . . . A party is entitled to present his case . . ., to
submit rebuttal evidence . . . .
(e) . . . When an agency decision rests on official notice of a
material fact not appearing in the evidence in the record, a
party is entitled, on timely request, to an opportunity to show
the contrary.
With respect to social security adjudications, it is clear that,
where evidence is relied on which is not of record, and notice and an
opportunity for rebuttal have not been provided, subsection (e) has been
violated. See Wallace v. Bowen, 869 F.2d 187 (3d Cir. 1988); Gullo v.
Califano, 609 F.2d 649 (2d Cir. 1979); Lonzollo v. Weinberger, 534 F.2d
712 (7th Cir. 1976); Colwell v. Gardner, 386 F.2d 56 (6th Cir. 1967);
Ross v. Gardner, 365 F.2d 554 (6th Cir. 1966); McDaniel v. Celebrezze,
331 F.2d 426 (4th Cir. 1964). It is also clear that the same principle
applies in non-social security adjudications where section 556(e) is
applicable. See McLeod v. INS, 802 F.2d 89 (3d Cir. 1986); Air Products &
Chemicals, Inc. v. FERC, 650 F.2d 687 (5th Cir. 1981); Marathon Oil v.
EPA, 564 F.2d 1253 (9th Cir. 1977); NLRB v. Johnson, 310 F.2d 550 (6th
Cir. 1962).
E. Federal Rules of Evidence
Rules 106 and 201(e) of the Federal Rules of Evidence are also of
interest in completing the discussion of the right of a party in a federal
proceeding to notice and opportunity to be heard. Under Rule 106, when a
party introduces any writing or recorded statement into evidence, an
adverse party has the right to require the contemporaneous introduction of
any other written or recorded material which fairness requires to be
considered. The notes of the Advisory Committee indicate that the rule is
based on the need for completeness and that one of two considerations for
promulgating the rule was to preclude "the misleading impression created
by taking matters out of context." 56 F.R.D. 183, 201.
Where judicial notice of adjudicative facts is taken, Rule 201(e)
provides:
(e) Opportunity to be heard. A party is entitled upon
timely request to an opportunity to be heard as to the
propriety of taking judicial notice and the tenor of the matter
noticed. In the absence of prior notification, the request may
be made after judicial notice has been taken.
The Advisory Committee's notes, in turn, state:
Basic considerations of procedural fairness demand an
opportunity to be heard on the propriety of taking judicial
notice and the tenor of the matter noticed. The rule requires
the granting of that opportunity upon request. . . . An
adversely affected party may learn in advance that judicial
notice is in contemplation . . . [o]r he may have no advance
notice at all. . . . [I]n the absence of advance notice, a
request made after the fact could not in fairness be considered
untimely.
56 F.R.D. at 206.
V. Conclusion
Based on the Court's discussion in part IV, the Court holds that
before the BVA relies, in rendering a decision on a claim, on any evidence
developed or obtained by it subsequent to the issuance of the most recent
SOC or SSOC with respect to such claim, the BVA must provide a claimant
with reasonable notice of such evidence and of the reliance proposed to be
placed on it, and a reasonable opportunity for the claimant to respond to
it. If, in the course of developing or obtaining or attempting to so
develop or obtain such evidence, the BVA becomes aware of any evidence
favorable to the claimant, it shall provide the claimant with reasonable
notice of and a reasonable opportunity to respond to the favorable
evidence, and shall in its decision provide reasons or bases for its
findings with respect to that evidence. These requirements are implicit
in Colvin and Hatlestad. In Hatlestad, we stated:
The procedure that the Court called for in Colvin . . .
was designed to ensure "that all medical evidence contrary to
the veteran's claim will be made known to [the veteran] and be
a part of the record before this Court." . . .
. . . [Q]uotations from medical treatises . . . should be
of sufficient length so that their context (both within the
treatise in question and within the body of relevant medical
literature) is able to be determined.
Hatlestad, 3 Vet.App. at 217 (quoting Colvin, 1 Vet.App. at 175) (
emphasis added). Certainly, to be in proper context, quotations should
include known material from literature that is both unfavorable and
favorable to the claimant. The requirements we announce
today apply only to the BVA. We express no view as to their
applicability with respect to any other VA adjudications.
The decision of the BVA is VACATED, and the matter is REMANDED for
proceedings consistent with this opinion.
=======================================================================
THURBER.172
Search Terms: SIMULTANEOUSLY CONTESTED CLAIMS UNITED STATES COURT OF VETERANS APPEALS
No. 92-172
Leslie N. Thurber, Appellant,
v.
Jesse Brown,
Secretary of Veterans Affairs, Appellee.
On Appeal from the Board of Veterans' Appeals
(Decided May 14, 1993 )
Leslie N. Thurber, pro se.
Robert E. Coy, Acting General Counsel, Norman G. Cooper, Acting
Assistant General Counsel, R. Randall Campbell, Deputy Assistant General
Counsel, and Peter M. Donawick were on the brief for appellee.
Before KRAMER, HOLDAWAY, and STEINBERG, Associate Judges.
KRAMER, Associate Judge: Appellant, Leslie N. Thurber, appeals a
September 27, 1991, decision of the Board of Veterans' Appeals (Board or
BVA) denying entitlement to service connection for ankylosing spondylitis (
a form of rheumatoid arthritis that affects the spine, Dorland's
Illustrated Medical Dictionary 1566 (27th ed. 1988)) on the basis that
this condition was not incurred in or aggravated by service. We vacate
the BVA decision and remand the matter.
I. Procedural Background
The BVA, in support of its decision, referenced certain pages of a
medical treatise,
"Daniel J. McCarty, Arthritis and Allied Conditions 819-38 (10th ed. 1985
)" (treatise). R. at 7. See Colvin v. Derwinski, 1 Vet.App. 171, 175 (
1991). (At the time of the issuance of the BVA decision, Hatlestad v.
Derwinski, 3 Vet.App. 213 (1992), which required that the BVA
prospectively quote from, in addition to citing, a medical treatise upon
which it relied, had not yet been issued by the Court.) A timely appeal
to the Court followed.
After the parties designated and counter designated the record, appellant
filed a supplemental counter designation of the record, see U.S. Vet. App.
R. 10, 11, requesting that the Secretary of Veterans Affairs (Secretary)
make available to the Court "the complete medical text" of the treatise.
The Secretary filed a motion to exclude, inter alia, the medical text on
the basis that it was not a part of the record of proceedings or a part of
the claims folder. See Rogozinski v. Derwinski, 1 Vet.App. 19 (1990).
Appellant filed a response to this motion, stating, in pertinent part, "
This medical text was [referenced] by BVA in [its decision], and thus
became a part of the record before the Board." Mot. of Appellant at 4.
The Court ordered that copies of the pages of the textbook cited by the
BVA (pages 819-38) be included in the record on appeal. In the order, the
Court also gave appellant an opportunity to show cause why any additional
pages of the textbook should be included in the record on appeal.
Appellant responded to this order, implying that the following pages were
relevant to an understanding of the textbook in the context of his case
and stating as follows:
Pages 15-17 Arthritis syndromes related to HLA B27,
ankylosing spondylitis
Pages 40-52 Differential diagnosis of arthritis, analysis
of signs and symptoms
Page 54 Synovial fluid
Pages 108-110 Radiology of rheumatic diseases,
ankylosing spondylitis, synoviocytes
Page 257 Structure and function of synoviocytes
Page 287 Immune system function
Page 291 Trauma
Page 1089 Trauma and occupation
Pages 1206-1209 Role of trauma
Pages 1249-1250 Spinal injuries
Mot. of Appellant at 1-2.
II. Issue Presented
While the issue presented by the parties is whether the
supplementarily designated text pages should be included in the record on
appeal, the Court views the underlying issue to be whether a claimant is
entitled to notice and an opportunity to respond before the BVA uses a
medical treatise to support its decision.
III. Evidence Obtained by the BVA
A. Medical Opinions
Both the statutory and regulatory schemes contemplate the BVA's
obtaining expert medical opinions to assist in the adjudication of claims.
Section 7109 of title 38, United States Code Annotated, states:
(a) When, in the judgment of the Board, expert medical opinion,
in addition to that available within the Department [of
Veterans Affairs (VA)], is warranted by the medical complexity
or controversy involved in an appeal case, the Board may secure
an advisory medical opinion from one or more independent
medical experts who are not employees of the Department.
(b) The Secretary shall make necessary arrangements with
recognized medical schools, universities, or clinics to furnish
such advisory medical opinions at the request of the Chairman
of the Board. Any such arrangement shall provide that the
actual selection of the expert or experts to give the advisory
opinion in an individual case shall be made by an appropriate
official of such institution.
(c) The Board shall furnish a claimant with notice that an
advisory medical opinion has been requested under this section
with respect to a claimant's case and shall furnish the
claimant with a copy of such opinion when it is received by the
Board.
38 U.S.C.A. ù 7109 (West 1991); see also 38 U.S.C.A. ù 5109 (West 1991) (
similar statutory provision authorizing the Secretary, rather than the
Board, to obtain an independent medical opinion). Subsection (a) of
section 7109, title 38, United States Code Annotated, contemplates the
obtaining of an independent medical opinion by the BVA. Subsection (c)
of section 7109 contemplates furnishing the obtained opinion to the
claimant, thus affording more than notice of an intent to obtain, but not
specifically addressing the right of a
claimant to respond to the obtained opinion (see discussion of 38 C.F.R.
ù 20.903 (1992), infra).
In addition, the Secretary has issued regulations that pertain to the
BVA's obtaining medical opinions. Section 20.901 of title 38, Code of
Federal Regulations, provides:
(a) Opinion of the Chief Medical Director. The Board may
obtain a medical opinion from the Chief Medical Director of the
Veterans Health Administration of the Department of Veterans
Affairs on medical questions involved in the consideration of
an appeal when, in its judgment, such medical expertise is
needed for equitable disposition of an appeal.
(Authority: 38 U.S.C. ù 5107(a))
(b) Armed Forces Institute of Pathology opinions. The Board
may refer pathologic material to the Armed Forces Institute of
Pathology and request an opinion based on that material.
(Authority: 38 U.S.C. ù 7109(a))
. . . .
(d) Independent medical expert opinions. When, in the judgment
of the Board, additional medical opinion is warranted by the
medical complexity or controversy involved in an appeal, the
Board may obtain an advisory medical opinion from one or more
medical experts who are not employees of the Department of
Veterans Affairs. Opinions will be secured, as requested by
the Chairman of the Board, from recognized medical schools,
universities, clinics, or medical institutions with which
arrangements for such opinions have been made by the Secretary
of Veterans Affairs. . . .
(Authority: 38 U.S.C. ù 7109)
38 C.F.R. ù 20.901(a), (b), (d) (1992) (Rule 901). These regulations,
promulgated, as stated in the regulations, under the authority of both 38
U.S.C.A. ù 7109 and 38 U.S.C.A. ù 5107(a) (West 1991) ("The Secretary
shall assist a claimant [who submits a well-grounded claim] in developing
the facts pertinent to the claim"), contemplate obtaining both VA and non-
VA opinions. Although perhaps broader in scope than ù 7109 standing
alone because of the non-independent, VA opinion provision (assumed but
not specifically authorized by ù 7109)
in section 20.901(a), Rule 901(a) is certainly a valid promulgation in
view of the Secretary's reliance on ù 5107(a). Moreover, authority for
the VA opinion provision is provided under the unreferenced authority of
38 U.S.C.A. ù 501(a) (West 1991) ("The Secretary has the authority to
prescribe all rules and regulations which are necessary or appropriate to
carry out the laws administered by the [VA] and are consistent with those
laws, including . . . regulations with respect to the nature and extent
of proof and evidence . . .; the methods of making . . . medical
examinations; and . . . the manner and form of adjudications . . .").
Furthermore, 38 C.F.R. ù 20.903 (1992) (Rule 903) provides for both
notice of and an opportunity to respond to an opinion obtained by the BVA
pursuant to Rule 901:
When an opinion is requested by the Board pursuant to Rule 901 (
ù 20.901 of this part), the Board will notify the appellant
and his or her representative, if any. When the opinion is
received by the Board, a copy of the opinion will be furnished
to the appellant's representative or[,] subject to the
limitations provided in [38 U.S.C.A. ù 5701(b)(1), not
pertinent here], to the appellant if there is no representative
. A period of 60 days from the date of mailing of a copy will
be allowed for a response. . . .
(Authority: 38 U.S.C. ù 7109(c)).
Rule 903 applies to both independent and VA opinions, but cites only to
the authority of ù 7109(c) for its promulgation, which, in turn, as
indicated, supra, perhaps specifically applies only to independent
opinions. Unquestionably, however, the VA has ample additional authority
to include VA opinions within the scope of Rule 903. See discussion of
38 U.S.C.A. ù 5107(a), part III.C.ii., infra, and ù 501(a), supra.
B. Medical Treatises
Unlike the BVA's obtaining of medical opinions, part III.A., supra,
neither the statutory nor regulatory schemes specifically authorize the
BVA's use of medical treatises. However, the Court, in Colvin, 1 Vet.App.
at 175, held, as relevant to this issue, that
BVA panels may consider only independent medical evidence to
support their findings. If the medical evidence of record is
insufficient, or, in the opinion of the BVA, of doubtful weight
or credibility, the BVA is always free to supplement the record
by . . . citing recognized medical treatises in its decisions
that
clearly support its ultimate conclusions. See [38 U.S.C.A.
ù 7109 (West 1991)]; Murphy v. Derwinski, 1 Vet.App. 78, 81 (
1990).
(Emphasis added.) Subsequent to the Court's decision in Colvin and the
issuance of the BVA's decision here on appeal, as indicated in part I.,
supra, the Court held that, prospectively, if the BVA relies on a portion
of a medical treatise in arriving at its decision, the BVA must quote the
relevant portions upon which it relies, and that "such quotations should
be of sufficient length so that their context (both within the treatise in
question and within the body of relevant literature) is able to be
determined." Hatlestad, 3 Vet.App. at 217. Under present law, however,
if the BVA so relies on a treatise, it is not required, prior to issuing
its decision, to provide appellant either a copy of the part of the
treatise relied upon or an opportunity to respond. Although Colvin and
Hatlestad, supra, may have anticipated that such procedural rights would
be afforded a claimant when medical treatise evidence was directly or
indirectly made a part of the record before the Board, such issues were
not specifically presented and thus those opinions did not address these
process questions directly.
IV. Rights to Notice and Opportunity to be Heard
A. Constitutional Considerations
While it is true that the case on appeal involves a claim for a
benefit rather than a termination of a benefit, certain due process
principles relating to the latter are worth noting. The due process
clause of the Fifth Amendment of the United States Constitution requires
that when an individual is to be deprived of a property interest as a
result of federal government action, the aggrieved party must be provided
with notice and an opportunity to be heard. See Mathews v. Eldridge, 424
U.S. 319, 333 (1976); Fugere v. Derwinski, 1 Vet.App. 103, 108 (1990).
Opportunity to be heard must be accorded "'at a meaningful time and in a
meaningful manner.'" Mathews 424 U.S. at 333 (citations omitted). The
termination of a veteran's benefit is an example of such a property
interest:
It is now well recognized that "the interest of an individual
in continued receipt of [Social Security disability] benefits
is a statutorily created 'property' interest protected by the
Fifth Amendment." Mathews v. Eldridge, 424 U.S. 319, 332 (
1976).
. . . The Supreme Court has noted that veterans benefits,
entitlement to which is established by service to country at
great personal risk, are "akin to Social Security benefits."
Walters v. National Assoc. of Radiation Survivors, 473 U.S.
305, 333 (1985). . . .
Fugere, 1 Vet.App. at 108; see Devine v. Cleland, 616 F.2d 1080 (9th Cir.
1980) (VA educational assistance allowance constitutes a property right
protected by the Fifth Amendment due process clause); Plato v. Roudebush,
397 F.Supp. 1295 (D. Md. 1975) (veteran's widow's benefits constitute a
property right protected by the Fifth Amendment due process clause).
Although the Supreme Court has not yet ruled on the extent to which
applicants for, rather than recipients of, government benefits have
property rights in their expectations, see Lyng v. Payne, 476 U.S. 926,
942 (1986); Walters v. Nat'l Assoc. of Radiation Survivors, 473 U.S. at
312, some lower federal courts have accorded due process rights to
applicants. See, e.g., Ressler v. Pierce, 692 F.2d 1212, 1214-16 (9th
Cir. 1982) (applicant for federal rent subsidies); Kelly v. R.R.
Retirement Bd., 625 F.2d 486, 489-90 (3d Cir. 1980) (applicant for
disabled child's annuity under Railroad Retirement Act); Butland v. Bowen,
673 F.Supp. 638 (D.Mass. 1987) (applicant for social security disability
benefits); Dealy v. Heckler, 616 F.Supp. 880, 884-86 (W.D.Mo. 1984) (
applicant for social security disability benefits); but see, e.g., Lozano
v. Derwinski, 1 Vet.App. 184, 186 (1990); Hill v. Group Three Housing
Development Corp., 799 F.2d 385, 391 (8th Cir. 1986); Eidson v. Pierce,
745 F.2d 453, 460 (7th Cir. 1984); Overton v. John Knox Retirement Tower,
Inc., 720 F.Supp. 934 (M.D.Ala. 1989).
Because of the silence of the applicable statute and regulations
regarding notice and opportunity to be heard, Gonzales v. United States,
348 U.S. 407 (1955), is worthy of note. In Gonzales, the petitioner
appealed his conviction for refusing to submit to induction into the armed
forces. He argued that his classification was invalid because he had not
been provided a copy of, and accorded an opportunity to reply to, the
recommendation of the Department of Justice (DOJ) denying conscientious
objector classification which DOJ had submitted to the Selective Service
Appeal Board. The Supreme Court, noting that the applicable statute and
regulations were silent on the matter, held that it was implicit in them
"-- viewed against our underlying concepts of procedural regularity and
basic fair play -- that a copy of the recommendation . . . be furnished
the registrant at the time it is forwarded to the Appeal Board, and that
he be afforded an opportunity to reply." Id. at 411-12.
Finally, in the criminal setting, the government has a constitutional
obligation to disclose material evidence favorable to the defendant. See
United States v. Bagley, 473 U.S. 667 (1985); see also Brady v. Maryland,
373 U.S. 83 (1963); United States v. Agurs, 427 U.S. 97 (1976).
B. VA Claims Adjudication Overview
The entire thrust of the VA's nonadversarial claims system is
predicated upon a structure which provides for notice and an opportunity
to be heard at virtually every step in the process. The Secretary shall
provide notice of a decision regarding a claim for benefits and "an
explanation as to the procedure for obtaining review of that decision."
38 U.S.C.A. ù 5104(a) (West 1991); see Rosler v. Derwinski, 1 Vet.App.
241, 249 (1991). "Each appellant will be accorded hearing and
representation rights pursuant to the provisions of [38 U.S.C.A. Chapter
71 (West 1991)] and regulations of the Secretary." 38 U.S.C.A. ù 7105(a) (
West 1991). The VA regional office (RO) must provide notice of the right
to appeal in regular and in simultaneously contested claimsNext Hit. 38 C.F.R.
ùù 19.25, 19.100 (1992). (In Previous Hitsimultaneously contested claimsNext Hit, the VARO
must provide notice of appeal to other contesting parties. 38 C.F.R. ù
19.102 (1992).) It must provide notification of the filing of an
administrative appeal. 38 C.F.R. ù 19.52 (1992). It must furnish a
Statement of the Case (SOC) to a claimant, 38 C.F.R. ù 19.30 (1992),
which "must be complete enough to allow . . . appellant to present written
and/or oral arguments before the [BVA]," 38 C.F.R. ù 19.29 (1992). (In
Previous Hitsimultaneously contested claimsNext Document, each interested party must be furnished
with an SOC. 38 U.S.C.A. ù 7105A (West 1991); 38 C.F.R. ù 19.101 (1992
).) A Supplemental SOC (SSOC) is required when an appellant submits
additional evidence to the VARO prior to the transfer of appellant's
records to the BVA, 38 C.F.R. ù 19.37(a) (1992), and when a BVA remand of
a case to the VARO results in additional evidentiary or procedural
development and continuation of the denial of benefits, 38 C.F.R. ù 19.
38 (1992); see generally 38 C.F.R. ù 19.31 (1992); "a period of 60 days
. . . will be
allowed for response," 38 C.F.R. ù 20.302(c) (1992) (but only 30 days,
in the case of a simultaneously contested claim, 38 C.F.R. ù 20.501(c) (
1992)). If the BVA questions the adequacy of appellant's substantive
appeal, appellant is provided "notice . . . and a period of 60 days . . .
to present written argument or to request a hearing to present oral
argument." 38 C.F.R. ù 20.203 (1992). The Board shall decide an appeal "
only after affording the claimant an opportunity for a hearing." 38 U.S.C.
A. ù 7104(a) (West 1991). In connection with the right to a hearing, a
claimant has the right to present evidence, testimony, and argument in
support of a claim. 38 C.F.R. ù 20.700 (1992). A claimant has the right
to notification of the time and place of the hearing on appeal. 38 C.F.R.
ù 20.702(b) (1992). A claimant has the right to notification of the
certification of appeal and transfer of the appellate record to the BVA.
38 C.F.R. ù 19.36 (1992). If a "Travel Board" hearing is held, a
claimant must be notified of its time and place. 38 C.F.R. ù 19.76 (1992
). When a "Travel Board" hearing is requested, a claimant must be
furnished with an SOC if not previously furnished. 38 C.F.R. ù 19.77 (
1992). "After reaching a decision in a case, the Board shall promptly
mail a copy of its written decision to the claimant. . . ." 38 U.S.C.A.
ù 7104(e) (West 1991). A claimant is entitled to a hearing if a motion
for reconsideration of a final BVA decision is granted. 38 C.F.R. ù 20.
1003 (1992). The BVA may vacate an appellate decision which denies "due
process of law" upon the request of appellant, or on the BVA's own motion.
38 C.F.R. ù 20.904 (1992).
C. Special Provisions
i. 38 C.F.R. ù 3.103 (1992)
Subsection (d) of 38 C.F.R. ù 3.103, which is entitled "Procedural
due process and appellate rights," states:
(d) Submission of evidence. Any evidence whether documentary,
testimonial, or in other form, offered by the claimant in
support of a claim and any issue a claimant may raise and any
contention or argument a claimant may offer with respect
thereto are to be included in the records.
This subsection requires that all evidence, issues, contentions, and
arguments advanced by a claimant must be "included in the records." Id.
For the provision to have meaningful
effect necessitates that there must be reasonable notice of the right to
advance, and a reasonable opportunity to so advance, such evidence, issues,
contentions, and arguments.
ii. Duty to Assist
As indicated in part III.A., supra, once a claimant has submitted a
well-grounded claim, the Secretary has a duty to "assist such claimant in
developing the facts pertinent to the claim." 38 U.S.C.A. ù 5107(a);
see 38 C.F.R. ù 3.159 (1992); Moore v. Derwinski, 1 Vet.App. 401, 405-06 (
1991) (duty to assist includes the providing of complete and thorough
medical examinations that address a claimant's complaints); EF v.
Derwinski, 1 Vet.App. 324, 326 (1991) (duty to assist extends to requiring
that "the BVA must review all issues which are reasonably raised from a
liberal reading of" all documents or oral testimony submitted prior to a
BVA decision); Murphy v. Derwinski, 1 Vet.App. at 82 (duty to assist
extends to the securing of any relevant military, VA, or other government
records or, with appellant's cooperation, private medical, hospital,
employment, or other civilian records).
D. The Administrative Procedure Act
The history of the applicability of the rulemaking provisions of the
Administrative Procedure Act (APA) to the VA is well stated in the
Court's decision in Fugere, 1 Vet.App. at 107-08:
By regulation in effect since 1972 the VA, as a matter of
policy, has voluntarily embraced the provisions of the APA:
It is the policy of the Department of Veterans Affairs to
afford the public general notice, published in the
Federal Register, of proposed regulatory development, and
an opportunity to participate in the regulatory
development in accordance with the provisions of the [APA
]. All written comments received will be available for
public inspection . . . .
38 C.F.R. ù 1.12. . . .
. . . .
[T]he types of VA materials that must conform to this
procedure . . . . [are] agency issuances that confer a
right, privilege, or benefit, or impose a duty or
obligation on VA beneficiaries or other members of the
public. Where VA issuances fail to meet the applicable
notice and comment requirement, the issuance may be
invalid, even though fully within the authority of the [
Secretary].
Op. G. C. Mem. (VA July 1, 1987).
The Court in Fugere went on to point out that the VA's adoption of the
APA's notice and comment requirement was codified, effective September 1,
1989, as part of the Veterans' Judicial Review Act (VJRA) ù 102(a), at 38
U.S.C.A. ù 501(c), (d) (West 1992). The Court has not addressed the
issue of the applicability of the APA to the VA adjudication process, and
we express no opinion in this decision. See 5 U.S.C.A. ùù 554, 556(d), (
e) (West 1990 & Supp. 1993); but see United States Lines v. Federal
Maritime Comm'n, 584 F.2d 519, 536 (D.C. Cir. 1978) (adjudication
provisions "do not apply unless Congress has clearly indicated that the
'hearing' required by statute must be a trial-type hearing on the record
"); Barefield v. Byrd 320 F.2d 455, 457 (5th Cir. 1963) (VA Administrator (
now Secretary) is not bound to conform to APA provisions since title 38 of
the United States Code does not require adjudications "to be determined on
the record after opportunity for an agency hearing"). The Court notes,
however, that the legislative history of the VJRA indicates that, while
the Senate bill would have provided additional statutory rights with
respect to notice and an opportunity to be heard, the compromise agreement
adopted the Senate position only with respect to hearings before traveling
sections of the BVA, preferring, in general, to rely on existing "informal
procedures" and "fundamental . . . due process rights," and specifically
stating "that the title 5 procedures relating to adjudications continue to
be inapplicable." See Explanatory Statement, 100th Cong., 2d Sess. (1988
), reprinted in 1988 U.S.C.C.A.N. 5842-44. Nevertheless, the Court
believes that 5 U.S.C.A. ù 556 is worthy of at least mention:
(d) . . . A party is entitled to present his case . . ., to
submit rebuttal evidence . . . .
(e) . . . When an agency decision rests on official notice of a
material fact not appearing in the evidence in the record, a
party is entitled, on timely request, to an opportunity to show
the contrary.
With respect to social security adjudications, it is clear that,
where evidence is relied on which is not of record, and notice and an
opportunity for rebuttal have not been provided, subsection (e) has been
violated. See Wallace v. Bowen, 869 F.2d 187 (3d Cir. 1988); Gullo v.
Califano, 609 F.2d 649 (2d Cir. 1979); Lonzollo v. Weinberger, 534 F.2d
712 (7th Cir. 1976); Colwell v. Gardner, 386 F.2d 56 (6th Cir. 1967);
Ross v. Gardner, 365 F.2d 554 (6th Cir. 1966); McDaniel v. Celebrezze,
331 F.2d 426 (4th Cir. 1964). It is also clear that the same principle
applies in non-social security adjudications where section 556(e) is
applicable. See McLeod v. INS, 802 F.2d 89 (3d Cir. 1986); Air Products &
Chemicals, Inc. v. FERC, 650 F.2d 687 (5th Cir. 1981); Marathon Oil v.
EPA, 564 F.2d 1253 (9th Cir. 1977); NLRB v. Johnson, 310 F.2d 550 (6th
Cir. 1962).
E. Federal Rules of Evidence
Rules 106 and 201(e) of the Federal Rules of Evidence are also of
interest in completing the discussion of the right of a party in a federal
proceeding to notice and opportunity to be heard. Under Rule 106, when a
party introduces any writing or recorded statement into evidence, an
adverse party has the right to require the contemporaneous introduction of
any other written or recorded material which fairness requires to be
considered. The notes of the Advisory Committee indicate that the rule is
based on the need for completeness and that one of two considerations for
promulgating the rule was to preclude "the misleading impression created
by taking matters out of context." 56 F.R.D. 183, 201.
Where judicial notice of adjudicative facts is taken, Rule 201(e)
provides:
(e) Opportunity to be heard. A party is entitled upon
timely request to an opportunity to be heard as to the
propriety of taking judicial notice and the tenor of the matter
noticed. In the absence of prior notification, the request may
be made after judicial notice has been taken.
The Advisory Committee's notes, in turn, state:
Basic considerations of procedural fairness demand an
opportunity to be heard on the propriety of taking judicial
notice and the tenor of the matter noticed. The rule requires
the granting of that opportunity upon request. . . . An
adversely affected party may learn in advance that judicial
notice is in contemplation . . . [o]r he may have no advance
notice at all. . . . [I]n the absence of advance notice, a
request made after the fact could not in fairness be considered
untimely.
56 F.R.D. at 206.
V. Conclusion
Based on the Court's discussion in part IV, the Court holds that
before the BVA relies, in rendering a decision on a claim, on any evidence
developed or obtained by it subsequent to the issuance of the most recent
SOC or SSOC with respect to such claim, the BVA must provide a claimant
with reasonable notice of such evidence and of the reliance proposed to be
placed on it, and a reasonable opportunity for the claimant to respond to
it. If, in the course of developing or obtaining or attempting to so
develop or obtain such evidence, the BVA becomes aware of any evidence
favorable to the claimant, it shall provide the claimant with reasonable
notice of and a reasonable opportunity to respond to the favorable
evidence, and shall in its decision provide reasons or bases for its
findings with respect to that evidence. These requirements are implicit
in Colvin and Hatlestad. In Hatlestad, we stated:
The procedure that the Court called for in Colvin . . .
was designed to ensure "that all medical evidence contrary to
the veteran's claim will be made known to [the veteran] and be
a part of the record before this Court." . . .
. . . [Q]uotations from medical treatises . . . should be
of sufficient length so that their context (both within the
treatise in question and within the body of relevant medical
literature) is able to be determined.
Hatlestad, 3 Vet.App. at 217 (quoting Colvin, 1 Vet.App. at 175) (
emphasis added). Certainly, to be in proper context, quotations should
include known material from literature that is both unfavorable and
favorable to the claimant. The requirements we announce
today apply only to the BVA. We express no view as to their
applicability with respect to any other VA adjudications.
The decision of the BVA is VACATED, and the matter is REMANDED for
proceedings consistent with this opinion.
Tuesday, September 21, 2010
Gabrielson v. Brown, 7 Vet. App. (1994), Reasons and Bases for Rejection of Evidence
"Accordingly, the BVA decision here contained "neither an analysis of the credibility or probative value of the evidence submitted by and on behalf of appellant in support of [her] claim nor a statement of the reasons or bases for the implicit rejection of this evidence by the Board." Gilbert, 1 Vet.App. at 59. Therefore, the case should be remanded."
=======================================
An IME opinion is only that, an opinion. In an adversarial
proceeding, such an opinion would have been subject to cross-examination
on its factual underpinnings and its expert conclusions. The VA claims
adjudication process is not adversarial, but the Board's statutory
obligation under 38 U.S.C. ù 7104(d)(1) to state "the reasons or bases
for [its] findings and conclusions" serves a function similar to that of
cross-examination in adversarial litigation. The BVA cannot evade this
statutory responsibility merely by adopting an IME opinion as its own,
where, as here, the IME opinion fails to discuss all the evidence which
appears to support appellant's position,."
=======================================
Search Terms: GABRIELSON
UNITED STATES COURT OF VETERANS APPEALS
No. 93-532
Mary F. Gabrielson, Appellant,
v.
Jesse Brown,
Secretary of Veterans Affairs, Appellee.
On Appeal from the Board of Veterans' Appeals
(Decided September 20, 1994 )
Louis N. Hiken was on the brief for appellant.
Mary Lou Keener, General Counsel, Norman G. Cooper, Assistant General
Counsel, Adrienne Koerber, Deputy Assistant General Counsel, and John C.
Winkfield were on the brief for appellee.
Before FARLEY, HOLDAWAY, and STEINBERG, Judges.
FARLEY, Judge, filed the opinion of the Court. HOLDAWAY, Judge,
filed a concurring opinion.
FARLEY, Judge: Appellant, the widow of veteran Dale E. Previous HitGabrielsonNext Document [
hereinafter the veteran], appeals from a May 3, 1993, decision of the
Board of Veterans' Appeals (BVA or Board) which denied her claim for
dependency and indemnity compensation (DIC) benefits after concluding that
the cause of the veteran's death was not service connected. The Court has
jurisdiction pursuant to 38 U.S.C. ù 7252(a). On consideration of the
record on appeal and the briefs filed by the parties, the Court will
vacate the decision of the Board and remand the matter for further
proceedings consistent with this opinion.
I.
The veteran was a career Naval officer, serving from June 25, 1965,
until he retired on July 1, 1985. Record (R.) at 124. In the "Report of
Medical History," dated June 3,
1985, he reported that his health was excellent, and that he used no
medications. R. at 105. Dr. Bothwell, the Navy doctor who examined the
veteran on that day, noted a fine hand tremor. R. at 103-04. She also
recorded the veteran's statement that he drank five to six ounces of
alcohol a day, and that he denied any past history of alcohol problems,
driving while intoxicated, or "loss of work time" due to alcohol use. R.
at 106. There is no reference in the veteran's service medical records (
SMRs) to alcohol abuse or liver diseases. R. at 47-102, 108-18. At the
age of 46 and less than three years after his retirement, the veteran died
on May 30, 1988. R. at 121. The records of the private hospital where he
died reported that the veteran "stated that he was drinking three-quarters
of a quart of bourbon every day for the past 30 years." R. at 153. The
death certificate listed the immediate cause of death as bacterial sepsis "
due to, or as a consequence of," liver failure, which, in turn, was "due
to, or as a consequence of," the "underlying cause," which was alcoholism
of 30 years' duration. R. at 121. At appellant's request, the death
certificate was amended on September 2, 1988, to show that, prior to his
death, the veteran had suffered from alcoholism for 15 years, rather than
30 years. R. at 122. Appellant explained that the attending physician
had misunderstood the veteran's response when he asked how long the
veteran had been drinking; instead of stating that he had been drinking
since the age of 16 to 18, the veteran had said that he had been drinking
for 16 to 18 years. R. at 204-05.
Appellant, on June 1, 1989, applied for DIC benefits for herself and
two children, claiming that her husband's death was service connected. R.
at 127-28. In an attachment to the application, appellant claimed that
the veteran's alcoholism problem "began while in service" and was "related
to stress, [and] pressure while on active duty." R. at 130, 133. She
also asserted that the alcoholism "did not interfere [with his] job," that
it became worse after his 1985 retirement, and that "his disability had to
have begun while he was in the service" because "[a] liver is not
destroyed in the three years between discharge and death." R. at 130. In
a rating decision on August 25, 1989, service connection for the cause of
death was denied for the reason that the SMRs "do not show any treatment
for liver disease" and his alcoholism was "considered to be the result of
willful misconduct." R. at 139. The rating decision further noted that
the "liver failure is an organic condition that
resulted from his alcoholism. There is no indication that the veteran
was treated for a liver condition in service. There is no indication that
the veteran developed cirrhosis of the liver within the one year
presumptive period following his discharge from service." Id.
Appellant filed a Notice of Disagreement on April 25, 1990, again
contending that three years would not have been a sufficient period of
time for alcohol to have destroyed the functioning of her husband's liver
and kidneys. R. at 142. She further alleged that the hand tremor noted
at his retirement physical supported her claim that her husband had
visible signs of alcoholism at that time. Id. Her substantive appeal (VA
Form 1-9), dated October 22, 1990, reasserted that the hand tremors were
alcohol related and that it was her belief that the veteran "was at least
10% disabled from cirrhosis during the presumptive one year period." R.
at 184.
At a personal hearing on December 19, 1990, appellant testified that
the veteran's service assignments were stressful, particularly his service
as an admiral's aide, which placed him in constant demand day and night,
and which required that he attend all the admiral's parties, where a great
deal of social drinking transpired. R. at 189-90. She further testified
that, although he never drank during the day while he was working, she
estimated that he consumed as much as one-half bottle of liquor nightly "
toward the end of his career" and that his daily intake for the three
years following his retirement in 1985 until his death "accelerated" to
three-quarters of a bottle. R. at 190, 195, 196. Appellant also
commented that during the last six years of the veteran's life, she
noticed he had visible hand tremors, particularly in the morning. R. at
193-94. At the conclusion of the personal hearing, the hearing officer
confirmed the prior denial of service connection for the cause of the
veteran's death. R. at 208-09.
In April 1992 a Board medical adviser, Dr. Jack Rheingold, reviewed
the evidence of record and stated "that it was quite conceivable" that the
liver damage secondary to alcohol might have begun during service or
within the applicable presumption period. R. at 218. The Board then
referred the matter to Dr. Geoffrey Block for an independent medical
expert (IME) opinion, advising him of Dr. Rheingold's report. R. at 223-
24. The Board asked Dr. Block, a specialist in hepatology, to review the
record and furnish the Board with his opinion as to whether there was
objective medical evidence that cirrhosis was present
during service or within one year thereafter. R. at 224. On November 12,
1992, Dr. Block advised the Board that there was no physical or laboratory
evidence in the record to show that the veteran had any type of liver
disease before his May 1988 admission to the private hospital where he
died. R. at 227. Dr. Block opined that there was evidence to support a
diagnosis of alcoholism and alcohol abuse at the beginning of the
veteran's terminal hospitalization in May 1988, particularly the widow's
report of "significantly increased ethanol use following discharge." R.
at 228, 230. However, Dr. Block concluded that the veteran's
service record, as well as relevant spousal testimony, did not
otherwise indicate any evidence of interference with routine
duties, personal relationships, or ability to perform the usual
social, professional or personal activities of daily living
. . . . The [veteran's] accounting of ethanol use at the time
of discharge [5-6 ounces of alcoholic beverages per day] did
not meet standard criteria for making a diagnosis of ethanol
abuse, nor was the reported amount of ethanol use sufficient to
reasonably expect to find significant liver injury in the
absence of overt physical findings.
R. at 228-30. In a January 20, 1993, letter transmitted to the Board with
a letter from her representative, appellant responded to Dr. Block's
opinion by asserting that there were instances prior to the veteran's
discharge from service where his alcohol consumption interfered with his
daily living and his personal and social relationships, and that his
liquor consumption during service was actually "1/2 quart of brandy . . .
a day with the amount greatly accelerated after his retirement [to] nearly
a quart a day by the last two years . . . ." R. at 234; see also R at
232-33.
In its May 3, 1993, decision here on appeal, the Board principally
relied on Dr. Block's IME opinion to deny service connection for the cause
of the veteran's death. In addition, the Board found that "[t]he evidence
summarized by the IME is consistent with that of record" and concluded:
[T]he appellant contends that the cause of the veteran's liver
disease was alcoholism, which she claims began during his
period of service. However, the fact that the veteran used
alcohol in service does not, in itself, establish a basis for
the grant of service connection or a basis for a finding that
alcoholism was present in service. There is no diagnosis of
alcoholism in the service medical records and, as noted by the
IME, the medical evidence does not support a diagnosis of
alcoholism. In any case, if in service the veteran did use
alcohol to enjoy its intoxicating effects, and if such alcohol
use had resulted proximately and immediately in disability,
that disability would have been a result of willful misconduct,
and therefore, not one for which service connection could have
been granted. 38 C.F.R. ù 3.301 (1992).
R. at 8-9.
Appellant seeks reversal of the Board's decision, contending
primarily that it was based on the "clearly erroneous" factual finding
that neither alcoholism nor cirrhosis was present during the veteran's
service. The alcoholism finding, in particular, is challenged by
appellant because the Board relied on an IME opinion, which in turn
allegedly relied on incomplete information. See Appellant's Br. at 12.
Appellant also argues that the Board improperly extended the willful
misconduct bar to cirrhosis, a secondary, organic disease. See id. at 22.
II.
A.
Under 38 U.S.C. ù 1310, the surviving spouse of a veteran whose
service-connected disabilities were the principal or contributory cause of
his death, and whose death occurred after December 31, 1956, may be
eligible for DIC. See 38 C.F.R. ù 3.312(a) (1993). For the purpose of
determining DIC eligibility under 38 U.S.C. ù 1310, whether a disability
is service connected is established by applying chapter 11 of title 38 of
the United States Code, which provides, inter alia, that "no compensation
shall be paid if the disability is a result of the veteran's own willful
misconduct . . . ." 38 U.S.C. ù 1110; see also 38 U.S.C. ù 1310(a) (
requiring that service connection be established under chapter 11 for DIC
purposes); 38 U.S.C. ù 105(a) (describing line of duty and willful
misconduct); 38 C.F.R. ù 3.301(a) (1993) ("Direct service connection may
be granted only when [the] cause of death was incurred or aggravated in
the line of duty, and not the result of the veteran's own willful
misconduct."). A service-connected disability is the principal cause of
death when
that disability, "singly or jointly with some other condition, was the
immediate or underlying cause of death or was etiologically related
thereto." 38 C.F.R. ù 3.312(b) (1993). A contributory cause of death
must be causally connected to the death and must have "contributed
substantially or materially" to death, "combined to cause death," or "
aided or lent assistance to the production of death." 38 C.F.R. ù 3.312(
c)(1) (1993). In deciding whether a veteran's death is service connected,
the Board makes a finding of fact which the Court reviews under a "clearly
erroneous" standard of review. 38 U.S.C. ù 7261(a)(4); Gilbert v.
Derwinski, 1 Vet.App. 49, 53 (1990).
Moreover, the Board is required, by statute, to base its decisions on "
all evidence and material of record" and to provide a "written statement
of [its] findings and conclusions, and the reasons or bases for those
findings and conclusions, on all material issues of fact or law presented
on the record." 38 U.S.C. ùù 7104(a), (d)(1). In Gilbert, this Court
noted:
In view of the mandate of [ù 7104(d)] that the BVA
articulate with reasonable clarity its "reasons or bases" for
decisions, and in order to facilitate effective judicial review,
the Board must identify those findings it deems crucial to its
decision and account for the evidence which it finds to be
persuasive or unpersuasive. These decisions must contain clear
analysis and succinct but complete explanations. A bare
conclusory statement, without both supporting analysis and
explanation, is neither helpful to the veteran, nor "clear
enough to permit effective judicial review", nor in compliance
with statutory requirements.
Gilbert, 1 Vet.App. at 57. Fulfillment of the reasons or bases mandate
requires the BVA to set forth the precise basis for its decision, to
analyze the credibility and probative value of all material evidence
submitted by and on behalf of a claimant in support of the claim, and to
provide a statement of its reasons or bases for rejecting any such
evidence. See, e.g., Peyton v. Derwinski, 1 Vet.App. 282, 285 (1991);
Smith v. Derwinski, 1 Vet.App. 235, 237-38 (1991); Hatlestad v. Derwinski,
1 Vet.App. 164, 169-70 (1991); Ohland v. Derwinski, 1 Vet.App. 147, 149-
50 (1991); Willis v. Derwinski, 1 Vet.App. 66, 70 (1991); Gilbert, 1 Vet.
App. at 59.
B.
The IME report reaches a two-fold conclusion: neither a diagnosis of
alcoholism nor a diagnosis of liver impairment could be supported at the
time of the veteran's retirement from service. It is clear from a reading
of his opinion that the IME based his conclusions primarily upon the
statement made by the veteran and documented on the report of his
discharge physical (R. at 106) that he had been drinking five to six
ounces of alcohol per day. See R. at 228 (IME indicates that "drinking 5-
6 ounces of alcoholic beverages per day (duration not recorded) . . .
would [not] indicate alcohol abuse"); R. at 229-30 (IME statement that the
veteran's "accounting of ethanol use at the time of discharge did not meet
standard criteria for making a diagnosis of ethanol abuse"). Neither the
IME opinion nor the Board's decision references appellant's testimony that
the veteran's actual liquor consumption was 16 to 24 ounces a day lasting
over a period of either 15 or 30 years. R. at 190, 195-96. Similarly,
the Board decision fails to discuss the letters of January 1993 from
appellant and her representative, in response to the IME opinion, which
assert that the veteran's use of alcohol interfered with his daily living
and provide motives for why the veteran would have understated the amount
of his alcohol consumption at the time of discharge. See R. at 232-34.
Under these circumstances, the IME opinion here raises more questions than
it purports to answer and indeed provides a weak foundation upon which to
base a decision.
An IME opinion is only that, an opinion. In an adversarial
proceeding, such an opinion would have been subject to cross-examination
on its factual underpinnings and its expert conclusions. The VA claims
adjudication process is not adversarial, but the Board's statutory
obligation under 38 U.S.C. ù 7104(d)(1) to state "the reasons or bases
for [its] findings and conclusions" serves a function similar to that of
cross-examination in adversarial litigation. The BVA cannot evade this
statutory responsibility merely by adopting an IME opinion as its own,
where, as here, the IME opinion fails to discuss all the evidence which
appears to support appellant's position,. Accordingly, the BVA decision
here contained "neither an analysis of the credibility or probative value
of the evidence submitted by and on behalf of appellant in support of [her]
claim nor a statement of the reasons or bases for the implicit rejection
of this evidence by the Board." Gilbert, 1 Vet.App. at 59. Therefore,
the case should be remanded. See Ledford v. Derwinski,
3 Vet.App. 87, 89-90 (1992) ("A remand is required where the BVA fails to
provide an adequate statement of the 'reasons or bases' for its findings
and conclusions, with respect to both the merits and the application of
the 'benefit of the doubt' under 38 U.S.C. ù 5107(b)"). On remand, the
Secretary will be given the opportunity to review the evidence of record,
including all of the evidence pertaining to the amount of alcohol consumed
by the veteran during service, to readjudicate appellant's claim, and to
provide sufficient reasons or bases for its credibility and factual
findings and conclusions, including its consideration of the benefit-of-
the-doubt doctrine. See Fletcher v. Derwinski, 1 Vet.App. 394, 397 (1991
); see also 38 U.S.C. ù 5107(b) (requiring the Board to resolve all
doubt in a claimant's favor when a balance of positive and negative
evidence exists); Williams v. Brown, 4 Vet.App. 270, 273-74 (1993) (Board
must consider and discuss the benefit-of-the-doubt doctrine where "
significant evidence" supports a claim).
III.
In the penultimate paragraph of its decision, the Board gave three
reasons for rejecting appellant's claim that her husband's alcoholism
began in service: (1) the veteran's use of alcohol did not establish a
diagnosis of alcoholism; (2) no such diagnosis appears in the veteran's
SMRs; and (3) its adopted IME opinion that the medical evidence did not
support a diagnosis of alcoholism, but see Part II. B, infra (discussing
the IME opinion). The Board, apparently assuming for the sake of argument
that a diagnosis of alcoholism existed in service, then stated:
In any case, if in service the veteran did use alcohol to enjoy
its intoxicating effects, and if such alcohol use had resulted
proximately and immediately in disability, that disability
would have been a result of willful misconduct, and therefore,
not one for which service connection could have been granted.
38 C.F.R. ù 3.301 (1992).
R. at 9 (emphasis added). As appellant here correctly contends, that
statement of the law is incorrect when applied to the facts of this case,
and to the extent that it affected the Board's determination, a remand is
also required because the Board erred as a matter of law.
Alcohol dependence is deemed by statute to be the result of willful
misconduct and cannot itself be service connected. See 38 U.S.C. ùù
105(a), 1110. However, prior to November 1990, disabilities secondary to
alcoholism were not covered by the "willful misconduct" bar. The VA
regulation at that time stated that "[o]rganic diseases and disabilities
which are a secondary result of the chronic use of alcohol as a beverage,
whether out of compulsion or otherwise, will not be considered of willful
misconduct origin." 38 C.F.R. ù 3.301(c)(2) (1990). It was for the
express purpose of "preclud[ing] payment of compensation for certain
secondary effects arising from willful misconduct," including "injuries or
disease incurred during service as the result of . . . the abuse of
alcohol," that 38 U.S.C. ù 1110 was amended by the Omnibus Budget and
Reconciliation Act of 1990, Pub. L. No. 101-508, ù 8052, 104 Stat. 1388-
1, 1388-351 (1990) (OBRA). See H.R. Conf. Rep. No. 964, 101st Cong., 2d
Sess. 997 (1990), reprinted in 1990 U.S.C.C.A.N. 2374, 2702. As amended,
38 U.S.C. ù 1110 now provides that "no compensation shall be paid if the
disability is a result of the veteran's own willful misconduct or abuse of
alcohol or drugs." (Emphasis added.) However, the statutory amendment
applied only to claims filed after October 31, 1990. See OBRA, ù 8052(b
). As of this writing, the Secretary has yet to reflect the statutory
change in the corresponding regulation, 38 C.F.R. ù 3.301(c)(2), but the
VA Adjudication Procedure Manual, M21-1 [hereinafter M21-1] now provides
that "[f]or claims filed after October 31, 1990, the law prohibits
granting service connection for primary and secondary disabilities
resulting from abuse of alcohol or drugs. DIC can no longer be paid for
death resulting from similar etiology." M21-1, Part IV, para. 11.04 e.(1)(
a) (emphasis added).
As the Secretary concedes, the willful misconduct bar would extend to
cirrhotic liver failure found to be a secondary organic disease only if
the DIC claim had been filed after October 31, 1990. See Secretary's Br.
at 27. Here, however, appellant's DIC claim was filed on June 1, 1989,
sixteen months prior to the "after October 31, 1990," effective date of
the amendment to 38 U.S.C. ù 1110. The misstatement of the proper legal
standard by the Board was error, but the error was harmless because it did
not, as of yet, result in prejudice to appellant. See 38 U.S.C. ù 7261(
b); Soyini v. Derwinski, 1 Vet.App. 540, 546 (1991). However, if on
remand the Board's "[i]n any case" scenario comes to pass and the
Board determines that there is a factual predicate for a diagnosis of
alcoholism during the veteran's military service, then the Secretary must
apply the correct legal standard.
IV.
There is pending before the Court a motion by the Secretary to strike
the extra-record material attached to appellant's brief. The provisions
of 38 U.S.C. ù 7252(b) require that review in this Court "shall be on the
record of proceedings before the Secretary and the Board." See Moore v.
Derwinski, 1 Vet.App. 401, 406 (1991). The Court has held that it is "
precluded by statute from considering any material which was not contained
in the 'record of proceedings before the [Secretary] and the Board.'"
Rogozinski v. Derwinski, 1 Vet.App. 19, 20 (1990) (citing 38 U.S.C. ù
4052(b) currently found at 38 U.S.C. ù 7252(b)); see also Obert v. Brown,
5 Vet.App. 30, 32 (1993); cf. Bell v. Derwinski, 2 Vet.App. 611, 612-13 (
1992) (per curiam) (holding that VA records predating the Board decision
on appeal are deemed to have been constructively "before the Secretary and
the Board"). Since the materials appended to appellant's brief were not a
part of the "record of proceedings before the Secretary and the Board,"
they were not considered by the Court in reaching its decision. See
Obert, 5 Vet.App. at 32 (Court refused to consider appendix to appellant's
brief containing material not before the Secretary and the Board). In
view of the disposition of this appeal, the Secretary's motion will be
denied as moot. Of course, appellant is free to submit additional
material and argument to the Board on remand. See Quarles v. Derwinski,
3 Vet.App. 129, 141 (1992).
V.
It is therefore decided, upon consideration of the foregoing, the
record on appeal, and the parties' briefs, that the Board decision of May
3, 1993, is VACATED, and the matter is REMANDED for further proceedings
consistent with this opinion. Upon consideration of the Secretary's
motion to strike the extra-record material and appellant's motion in
opposition thereto, both motions are DENIED as moot.
HOLDAWAY, Judge, concurring: I concur with both the result and,
based on our precedential case law, the analysis in Judge Farley's
excellent opinion. I do feel compelled to point out, however, that the
evidence that was "inadequately" discussed in the reasons or bases part of
the BVA decision was contradictory and that the contradictions were those
of the appellant and her deceased husband. The husband gave a quite
different account of his service drinking habits at the time of his
retirement than he did later on. Moreover, his wife, the appellant,
testified that the heavy drinking began only toward the end of his career.
We now ask the Board, through the guise of the judicially enhanced reasons
or bases statutory provision, to decide which version of this evidence was
truthful and then, somehow, explain why they selected the version they did
. I wish them well in this endeavor. The Court has engrafted
requirements on the statutory reasons or bases provision that are simply
not contained in the statute. It is now our precedent and I accept it.
However, it is one cat that I would like to walk backwards, at least a
little bit.
=======================================
An IME opinion is only that, an opinion. In an adversarial
proceeding, such an opinion would have been subject to cross-examination
on its factual underpinnings and its expert conclusions. The VA claims
adjudication process is not adversarial, but the Board's statutory
obligation under 38 U.S.C. ù 7104(d)(1) to state "the reasons or bases
for [its] findings and conclusions" serves a function similar to that of
cross-examination in adversarial litigation. The BVA cannot evade this
statutory responsibility merely by adopting an IME opinion as its own,
where, as here, the IME opinion fails to discuss all the evidence which
appears to support appellant's position,."
=======================================
Search Terms: GABRIELSON
UNITED STATES COURT OF VETERANS APPEALS
No. 93-532
Mary F. Gabrielson, Appellant,
v.
Jesse Brown,
Secretary of Veterans Affairs, Appellee.
On Appeal from the Board of Veterans' Appeals
(Decided September 20, 1994 )
Louis N. Hiken was on the brief for appellant.
Mary Lou Keener, General Counsel, Norman G. Cooper, Assistant General
Counsel, Adrienne Koerber, Deputy Assistant General Counsel, and John C.
Winkfield were on the brief for appellee.
Before FARLEY, HOLDAWAY, and STEINBERG, Judges.
FARLEY, Judge, filed the opinion of the Court. HOLDAWAY, Judge,
filed a concurring opinion.
FARLEY, Judge: Appellant, the widow of veteran Dale E. Previous HitGabrielsonNext Document [
hereinafter the veteran], appeals from a May 3, 1993, decision of the
Board of Veterans' Appeals (BVA or Board) which denied her claim for
dependency and indemnity compensation (DIC) benefits after concluding that
the cause of the veteran's death was not service connected. The Court has
jurisdiction pursuant to 38 U.S.C. ù 7252(a). On consideration of the
record on appeal and the briefs filed by the parties, the Court will
vacate the decision of the Board and remand the matter for further
proceedings consistent with this opinion.
I.
The veteran was a career Naval officer, serving from June 25, 1965,
until he retired on July 1, 1985. Record (R.) at 124. In the "Report of
Medical History," dated June 3,
1985, he reported that his health was excellent, and that he used no
medications. R. at 105. Dr. Bothwell, the Navy doctor who examined the
veteran on that day, noted a fine hand tremor. R. at 103-04. She also
recorded the veteran's statement that he drank five to six ounces of
alcohol a day, and that he denied any past history of alcohol problems,
driving while intoxicated, or "loss of work time" due to alcohol use. R.
at 106. There is no reference in the veteran's service medical records (
SMRs) to alcohol abuse or liver diseases. R. at 47-102, 108-18. At the
age of 46 and less than three years after his retirement, the veteran died
on May 30, 1988. R. at 121. The records of the private hospital where he
died reported that the veteran "stated that he was drinking three-quarters
of a quart of bourbon every day for the past 30 years." R. at 153. The
death certificate listed the immediate cause of death as bacterial sepsis "
due to, or as a consequence of," liver failure, which, in turn, was "due
to, or as a consequence of," the "underlying cause," which was alcoholism
of 30 years' duration. R. at 121. At appellant's request, the death
certificate was amended on September 2, 1988, to show that, prior to his
death, the veteran had suffered from alcoholism for 15 years, rather than
30 years. R. at 122. Appellant explained that the attending physician
had misunderstood the veteran's response when he asked how long the
veteran had been drinking; instead of stating that he had been drinking
since the age of 16 to 18, the veteran had said that he had been drinking
for 16 to 18 years. R. at 204-05.
Appellant, on June 1, 1989, applied for DIC benefits for herself and
two children, claiming that her husband's death was service connected. R.
at 127-28. In an attachment to the application, appellant claimed that
the veteran's alcoholism problem "began while in service" and was "related
to stress, [and] pressure while on active duty." R. at 130, 133. She
also asserted that the alcoholism "did not interfere [with his] job," that
it became worse after his 1985 retirement, and that "his disability had to
have begun while he was in the service" because "[a] liver is not
destroyed in the three years between discharge and death." R. at 130. In
a rating decision on August 25, 1989, service connection for the cause of
death was denied for the reason that the SMRs "do not show any treatment
for liver disease" and his alcoholism was "considered to be the result of
willful misconduct." R. at 139. The rating decision further noted that
the "liver failure is an organic condition that
resulted from his alcoholism. There is no indication that the veteran
was treated for a liver condition in service. There is no indication that
the veteran developed cirrhosis of the liver within the one year
presumptive period following his discharge from service." Id.
Appellant filed a Notice of Disagreement on April 25, 1990, again
contending that three years would not have been a sufficient period of
time for alcohol to have destroyed the functioning of her husband's liver
and kidneys. R. at 142. She further alleged that the hand tremor noted
at his retirement physical supported her claim that her husband had
visible signs of alcoholism at that time. Id. Her substantive appeal (VA
Form 1-9), dated October 22, 1990, reasserted that the hand tremors were
alcohol related and that it was her belief that the veteran "was at least
10% disabled from cirrhosis during the presumptive one year period." R.
at 184.
At a personal hearing on December 19, 1990, appellant testified that
the veteran's service assignments were stressful, particularly his service
as an admiral's aide, which placed him in constant demand day and night,
and which required that he attend all the admiral's parties, where a great
deal of social drinking transpired. R. at 189-90. She further testified
that, although he never drank during the day while he was working, she
estimated that he consumed as much as one-half bottle of liquor nightly "
toward the end of his career" and that his daily intake for the three
years following his retirement in 1985 until his death "accelerated" to
three-quarters of a bottle. R. at 190, 195, 196. Appellant also
commented that during the last six years of the veteran's life, she
noticed he had visible hand tremors, particularly in the morning. R. at
193-94. At the conclusion of the personal hearing, the hearing officer
confirmed the prior denial of service connection for the cause of the
veteran's death. R. at 208-09.
In April 1992 a Board medical adviser, Dr. Jack Rheingold, reviewed
the evidence of record and stated "that it was quite conceivable" that the
liver damage secondary to alcohol might have begun during service or
within the applicable presumption period. R. at 218. The Board then
referred the matter to Dr. Geoffrey Block for an independent medical
expert (IME) opinion, advising him of Dr. Rheingold's report. R. at 223-
24. The Board asked Dr. Block, a specialist in hepatology, to review the
record and furnish the Board with his opinion as to whether there was
objective medical evidence that cirrhosis was present
during service or within one year thereafter. R. at 224. On November 12,
1992, Dr. Block advised the Board that there was no physical or laboratory
evidence in the record to show that the veteran had any type of liver
disease before his May 1988 admission to the private hospital where he
died. R. at 227. Dr. Block opined that there was evidence to support a
diagnosis of alcoholism and alcohol abuse at the beginning of the
veteran's terminal hospitalization in May 1988, particularly the widow's
report of "significantly increased ethanol use following discharge." R.
at 228, 230. However, Dr. Block concluded that the veteran's
service record, as well as relevant spousal testimony, did not
otherwise indicate any evidence of interference with routine
duties, personal relationships, or ability to perform the usual
social, professional or personal activities of daily living
. . . . The [veteran's] accounting of ethanol use at the time
of discharge [5-6 ounces of alcoholic beverages per day] did
not meet standard criteria for making a diagnosis of ethanol
abuse, nor was the reported amount of ethanol use sufficient to
reasonably expect to find significant liver injury in the
absence of overt physical findings.
R. at 228-30. In a January 20, 1993, letter transmitted to the Board with
a letter from her representative, appellant responded to Dr. Block's
opinion by asserting that there were instances prior to the veteran's
discharge from service where his alcohol consumption interfered with his
daily living and his personal and social relationships, and that his
liquor consumption during service was actually "1/2 quart of brandy . . .
a day with the amount greatly accelerated after his retirement [to] nearly
a quart a day by the last two years . . . ." R. at 234; see also R at
232-33.
In its May 3, 1993, decision here on appeal, the Board principally
relied on Dr. Block's IME opinion to deny service connection for the cause
of the veteran's death. In addition, the Board found that "[t]he evidence
summarized by the IME is consistent with that of record" and concluded:
[T]he appellant contends that the cause of the veteran's liver
disease was alcoholism, which she claims began during his
period of service. However, the fact that the veteran used
alcohol in service does not, in itself, establish a basis for
the grant of service connection or a basis for a finding that
alcoholism was present in service. There is no diagnosis of
alcoholism in the service medical records and, as noted by the
IME, the medical evidence does not support a diagnosis of
alcoholism. In any case, if in service the veteran did use
alcohol to enjoy its intoxicating effects, and if such alcohol
use had resulted proximately and immediately in disability,
that disability would have been a result of willful misconduct,
and therefore, not one for which service connection could have
been granted. 38 C.F.R. ù 3.301 (1992).
R. at 8-9.
Appellant seeks reversal of the Board's decision, contending
primarily that it was based on the "clearly erroneous" factual finding
that neither alcoholism nor cirrhosis was present during the veteran's
service. The alcoholism finding, in particular, is challenged by
appellant because the Board relied on an IME opinion, which in turn
allegedly relied on incomplete information. See Appellant's Br. at 12.
Appellant also argues that the Board improperly extended the willful
misconduct bar to cirrhosis, a secondary, organic disease. See id. at 22.
II.
A.
Under 38 U.S.C. ù 1310, the surviving spouse of a veteran whose
service-connected disabilities were the principal or contributory cause of
his death, and whose death occurred after December 31, 1956, may be
eligible for DIC. See 38 C.F.R. ù 3.312(a) (1993). For the purpose of
determining DIC eligibility under 38 U.S.C. ù 1310, whether a disability
is service connected is established by applying chapter 11 of title 38 of
the United States Code, which provides, inter alia, that "no compensation
shall be paid if the disability is a result of the veteran's own willful
misconduct . . . ." 38 U.S.C. ù 1110; see also 38 U.S.C. ù 1310(a) (
requiring that service connection be established under chapter 11 for DIC
purposes); 38 U.S.C. ù 105(a) (describing line of duty and willful
misconduct); 38 C.F.R. ù 3.301(a) (1993) ("Direct service connection may
be granted only when [the] cause of death was incurred or aggravated in
the line of duty, and not the result of the veteran's own willful
misconduct."). A service-connected disability is the principal cause of
death when
that disability, "singly or jointly with some other condition, was the
immediate or underlying cause of death or was etiologically related
thereto." 38 C.F.R. ù 3.312(b) (1993). A contributory cause of death
must be causally connected to the death and must have "contributed
substantially or materially" to death, "combined to cause death," or "
aided or lent assistance to the production of death." 38 C.F.R. ù 3.312(
c)(1) (1993). In deciding whether a veteran's death is service connected,
the Board makes a finding of fact which the Court reviews under a "clearly
erroneous" standard of review. 38 U.S.C. ù 7261(a)(4); Gilbert v.
Derwinski, 1 Vet.App. 49, 53 (1990).
Moreover, the Board is required, by statute, to base its decisions on "
all evidence and material of record" and to provide a "written statement
of [its] findings and conclusions, and the reasons or bases for those
findings and conclusions, on all material issues of fact or law presented
on the record." 38 U.S.C. ùù 7104(a), (d)(1). In Gilbert, this Court
noted:
In view of the mandate of [ù 7104(d)] that the BVA
articulate with reasonable clarity its "reasons or bases" for
decisions, and in order to facilitate effective judicial review,
the Board must identify those findings it deems crucial to its
decision and account for the evidence which it finds to be
persuasive or unpersuasive. These decisions must contain clear
analysis and succinct but complete explanations. A bare
conclusory statement, without both supporting analysis and
explanation, is neither helpful to the veteran, nor "clear
enough to permit effective judicial review", nor in compliance
with statutory requirements.
Gilbert, 1 Vet.App. at 57. Fulfillment of the reasons or bases mandate
requires the BVA to set forth the precise basis for its decision, to
analyze the credibility and probative value of all material evidence
submitted by and on behalf of a claimant in support of the claim, and to
provide a statement of its reasons or bases for rejecting any such
evidence. See, e.g., Peyton v. Derwinski, 1 Vet.App. 282, 285 (1991);
Smith v. Derwinski, 1 Vet.App. 235, 237-38 (1991); Hatlestad v. Derwinski,
1 Vet.App. 164, 169-70 (1991); Ohland v. Derwinski, 1 Vet.App. 147, 149-
50 (1991); Willis v. Derwinski, 1 Vet.App. 66, 70 (1991); Gilbert, 1 Vet.
App. at 59.
B.
The IME report reaches a two-fold conclusion: neither a diagnosis of
alcoholism nor a diagnosis of liver impairment could be supported at the
time of the veteran's retirement from service. It is clear from a reading
of his opinion that the IME based his conclusions primarily upon the
statement made by the veteran and documented on the report of his
discharge physical (R. at 106) that he had been drinking five to six
ounces of alcohol per day. See R. at 228 (IME indicates that "drinking 5-
6 ounces of alcoholic beverages per day (duration not recorded) . . .
would [not] indicate alcohol abuse"); R. at 229-30 (IME statement that the
veteran's "accounting of ethanol use at the time of discharge did not meet
standard criteria for making a diagnosis of ethanol abuse"). Neither the
IME opinion nor the Board's decision references appellant's testimony that
the veteran's actual liquor consumption was 16 to 24 ounces a day lasting
over a period of either 15 or 30 years. R. at 190, 195-96. Similarly,
the Board decision fails to discuss the letters of January 1993 from
appellant and her representative, in response to the IME opinion, which
assert that the veteran's use of alcohol interfered with his daily living
and provide motives for why the veteran would have understated the amount
of his alcohol consumption at the time of discharge. See R. at 232-34.
Under these circumstances, the IME opinion here raises more questions than
it purports to answer and indeed provides a weak foundation upon which to
base a decision.
An IME opinion is only that, an opinion. In an adversarial
proceeding, such an opinion would have been subject to cross-examination
on its factual underpinnings and its expert conclusions. The VA claims
adjudication process is not adversarial, but the Board's statutory
obligation under 38 U.S.C. ù 7104(d)(1) to state "the reasons or bases
for [its] findings and conclusions" serves a function similar to that of
cross-examination in adversarial litigation. The BVA cannot evade this
statutory responsibility merely by adopting an IME opinion as its own,
where, as here, the IME opinion fails to discuss all the evidence which
appears to support appellant's position,. Accordingly, the BVA decision
here contained "neither an analysis of the credibility or probative value
of the evidence submitted by and on behalf of appellant in support of [her]
claim nor a statement of the reasons or bases for the implicit rejection
of this evidence by the Board." Gilbert, 1 Vet.App. at 59. Therefore,
the case should be remanded. See Ledford v. Derwinski,
3 Vet.App. 87, 89-90 (1992) ("A remand is required where the BVA fails to
provide an adequate statement of the 'reasons or bases' for its findings
and conclusions, with respect to both the merits and the application of
the 'benefit of the doubt' under 38 U.S.C. ù 5107(b)"). On remand, the
Secretary will be given the opportunity to review the evidence of record,
including all of the evidence pertaining to the amount of alcohol consumed
by the veteran during service, to readjudicate appellant's claim, and to
provide sufficient reasons or bases for its credibility and factual
findings and conclusions, including its consideration of the benefit-of-
the-doubt doctrine. See Fletcher v. Derwinski, 1 Vet.App. 394, 397 (1991
); see also 38 U.S.C. ù 5107(b) (requiring the Board to resolve all
doubt in a claimant's favor when a balance of positive and negative
evidence exists); Williams v. Brown, 4 Vet.App. 270, 273-74 (1993) (Board
must consider and discuss the benefit-of-the-doubt doctrine where "
significant evidence" supports a claim).
III.
In the penultimate paragraph of its decision, the Board gave three
reasons for rejecting appellant's claim that her husband's alcoholism
began in service: (1) the veteran's use of alcohol did not establish a
diagnosis of alcoholism; (2) no such diagnosis appears in the veteran's
SMRs; and (3) its adopted IME opinion that the medical evidence did not
support a diagnosis of alcoholism, but see Part II. B, infra (discussing
the IME opinion). The Board, apparently assuming for the sake of argument
that a diagnosis of alcoholism existed in service, then stated:
In any case, if in service the veteran did use alcohol to enjoy
its intoxicating effects, and if such alcohol use had resulted
proximately and immediately in disability, that disability
would have been a result of willful misconduct, and therefore,
not one for which service connection could have been granted.
38 C.F.R. ù 3.301 (1992).
R. at 9 (emphasis added). As appellant here correctly contends, that
statement of the law is incorrect when applied to the facts of this case,
and to the extent that it affected the Board's determination, a remand is
also required because the Board erred as a matter of law.
Alcohol dependence is deemed by statute to be the result of willful
misconduct and cannot itself be service connected. See 38 U.S.C. ùù
105(a), 1110. However, prior to November 1990, disabilities secondary to
alcoholism were not covered by the "willful misconduct" bar. The VA
regulation at that time stated that "[o]rganic diseases and disabilities
which are a secondary result of the chronic use of alcohol as a beverage,
whether out of compulsion or otherwise, will not be considered of willful
misconduct origin." 38 C.F.R. ù 3.301(c)(2) (1990). It was for the
express purpose of "preclud[ing] payment of compensation for certain
secondary effects arising from willful misconduct," including "injuries or
disease incurred during service as the result of . . . the abuse of
alcohol," that 38 U.S.C. ù 1110 was amended by the Omnibus Budget and
Reconciliation Act of 1990, Pub. L. No. 101-508, ù 8052, 104 Stat. 1388-
1, 1388-351 (1990) (OBRA). See H.R. Conf. Rep. No. 964, 101st Cong., 2d
Sess. 997 (1990), reprinted in 1990 U.S.C.C.A.N. 2374, 2702. As amended,
38 U.S.C. ù 1110 now provides that "no compensation shall be paid if the
disability is a result of the veteran's own willful misconduct or abuse of
alcohol or drugs." (Emphasis added.) However, the statutory amendment
applied only to claims filed after October 31, 1990. See OBRA, ù 8052(b
). As of this writing, the Secretary has yet to reflect the statutory
change in the corresponding regulation, 38 C.F.R. ù 3.301(c)(2), but the
VA Adjudication Procedure Manual, M21-1 [hereinafter M21-1] now provides
that "[f]or claims filed after October 31, 1990, the law prohibits
granting service connection for primary and secondary disabilities
resulting from abuse of alcohol or drugs. DIC can no longer be paid for
death resulting from similar etiology." M21-1, Part IV, para. 11.04 e.(1)(
a) (emphasis added).
As the Secretary concedes, the willful misconduct bar would extend to
cirrhotic liver failure found to be a secondary organic disease only if
the DIC claim had been filed after October 31, 1990. See Secretary's Br.
at 27. Here, however, appellant's DIC claim was filed on June 1, 1989,
sixteen months prior to the "after October 31, 1990," effective date of
the amendment to 38 U.S.C. ù 1110. The misstatement of the proper legal
standard by the Board was error, but the error was harmless because it did
not, as of yet, result in prejudice to appellant. See 38 U.S.C. ù 7261(
b); Soyini v. Derwinski, 1 Vet.App. 540, 546 (1991). However, if on
remand the Board's "[i]n any case" scenario comes to pass and the
Board determines that there is a factual predicate for a diagnosis of
alcoholism during the veteran's military service, then the Secretary must
apply the correct legal standard.
IV.
There is pending before the Court a motion by the Secretary to strike
the extra-record material attached to appellant's brief. The provisions
of 38 U.S.C. ù 7252(b) require that review in this Court "shall be on the
record of proceedings before the Secretary and the Board." See Moore v.
Derwinski, 1 Vet.App. 401, 406 (1991). The Court has held that it is "
precluded by statute from considering any material which was not contained
in the 'record of proceedings before the [Secretary] and the Board.'"
Rogozinski v. Derwinski, 1 Vet.App. 19, 20 (1990) (citing 38 U.S.C. ù
4052(b) currently found at 38 U.S.C. ù 7252(b)); see also Obert v. Brown,
5 Vet.App. 30, 32 (1993); cf. Bell v. Derwinski, 2 Vet.App. 611, 612-13 (
1992) (per curiam) (holding that VA records predating the Board decision
on appeal are deemed to have been constructively "before the Secretary and
the Board"). Since the materials appended to appellant's brief were not a
part of the "record of proceedings before the Secretary and the Board,"
they were not considered by the Court in reaching its decision. See
Obert, 5 Vet.App. at 32 (Court refused to consider appendix to appellant's
brief containing material not before the Secretary and the Board). In
view of the disposition of this appeal, the Secretary's motion will be
denied as moot. Of course, appellant is free to submit additional
material and argument to the Board on remand. See Quarles v. Derwinski,
3 Vet.App. 129, 141 (1992).
V.
It is therefore decided, upon consideration of the foregoing, the
record on appeal, and the parties' briefs, that the Board decision of May
3, 1993, is VACATED, and the matter is REMANDED for further proceedings
consistent with this opinion. Upon consideration of the Secretary's
motion to strike the extra-record material and appellant's motion in
opposition thereto, both motions are DENIED as moot.
HOLDAWAY, Judge, concurring: I concur with both the result and,
based on our precedential case law, the analysis in Judge Farley's
excellent opinion. I do feel compelled to point out, however, that the
evidence that was "inadequately" discussed in the reasons or bases part of
the BVA decision was contradictory and that the contradictions were those
of the appellant and her deceased husband. The husband gave a quite
different account of his service drinking habits at the time of his
retirement than he did later on. Moreover, his wife, the appellant,
testified that the heavy drinking began only toward the end of his career.
We now ask the Board, through the guise of the judicially enhanced reasons
or bases statutory provision, to decide which version of this evidence was
truthful and then, somehow, explain why they selected the version they did
. I wish them well in this endeavor. The Court has engrafted
requirements on the statutory reasons or bases provision that are simply
not contained in the statute. It is now our precedent and I accept it.
However, it is one cat that I would like to walk backwards, at least a
little bit.
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