Honor Vet, New One Stop, Online Website for Veterans

This seems like a logical step, there truly needs to be a one stop resource for veterans. Our small group, here, looks primarily at disability issues, simply because we do not have enough people or resources to do more, not that we would not like to do more.

If all the veterans could unite under a single banner, then we could get some REALaction on issues. As it is we are members of various organizations which in turn dilutes our voices and our political impact.

We would like to see a method by which, for a small fee, everyone of the 1.3 million veterans with a pending claim could get a quality, competent attorney to handle that backlogged claim.


Honor Vet
"HonorVet.org is gearing up to become the next generation interactive-community (on-line + mobile) for the veterans, service members and their families. If you or your family are part of this deserving community, we’ll be here to provide transitional, educational, psychological and “virtual-community” support whenever you need it, wherever you are in the world."

Full Article at: Honor Vet: Winning the War at Home


By James Kleimann | November 11, 2010


There's no shortage of chatter from pundits, neighbors and friends about the U.S. combat withdrawal from Iraq. A divisive issue seemingly with far more questions than answers, you won't have trouble finding an opinion on what can be done to win the war abroad.

But there's another war. It's behind the curtains of U.S. homes, seen at businesses, unemployment lines, roadways, hospitals, VFWs and on your block. It's the war not seen and not heard.

It's the war returning servicemen and women face as they struggle to re-adjust to life in the states. Many are beset by depression, post-traumatic stress disorder (PTSD), substance abuse problems, lack of economic opportunity, anxiety, injuries and assorted family issues.

But Ridgewood's Jesse Canella, 24, a former Marine who left the service in summer of 2008 and was given disability status due to back injuries and hearing loss, believes this is a war that is imminently winnable, and he's spearheading a complex, comprehensive nonprofit, Honor Vet, to provide the services he feels are needed for returning veterans to readjust and thrive in a home environment that is oddly foreign.

Canella's seen the horrors of war, witnessed the death of friends and returned to find a home he could not find familiarity with. And he's not the only one.

"Right now there's a large gap between the the issue and the help," Canella said.

"I came home from the Marines after four years in Iraq. I lost some friends, and I came home and as happy as I was to be home with my family, I felt there was a void that I was missing. I couldn't quite find what it was," he said.

After growing depressed and having trouble adjusting to life or finding any sustained happiness, Canella said he realized just what that void was.

"I realized that the void was not being around like-minded people who had seen war, who had suffered loss–people I could relate to. I felt lost in myself and part of that was not being able to interact with people who had gone through what I was going through.

"Right now there is no one consolidated community where if you're a veteran you can talk to other vets going through the same issues, find a medical professional to give you some advice and answer direct questions, a place where you can learn how to craft a resume, a place where you can find all of the information you'd need on benefits or health options from the VA [Veterans Affairs]."

"It's not out there, but we're going to fill the void," Canella said.

"We want to be the next generation community for veterans."

Building Trust

To fill this void, Canella and his team have already begun compiling resources, are recruiting a network of professionals to provide advice and professional services for veterans, and are in the process of integrating innovative peer-to-peer technology so Honor Vet can become a digital forum to meet the challenges veterans are facing in the 21st century.

The first thing that needs to be done, said Canella, is to have a system in place where Honor Vet can verify that the veterans using the site are in fact veterans.

"We'll be having members fax us their DD214 (source documents verfying their status as servicemen and women) to make sure we can provide a safe and trusted environment," Canella said.

"Unless people feel comfortable that the person they're speaking to on the other end is actually a veteran, we can't do what we want to do. It's critical that we authenticate members. There needs to be a built-in trust."

Once that trust is established and veterans are signed onto the site (which is free to use), Canella says there are a few key core services Honor Vet will provide.

Professional Services

One of the pillars of Honor Vet's foundation is in their offering of professional services, Canella said. While returning veterans are often highly skilled, highly disciplined individuals, too many feel they don't have specific skills tailored to today's modern workforce.

But nothing could be further from the truth, Professor Mike Haynie of Syracuse University said. Haynie, head of the EBV program, an entrepreneurial business venture program for disabled veterans of the wars in Iraq and Afghanistan (a program Canella attended earlier this summer), believes the difficulty is in that employers often don't know how to translate military knowledge, skill and experiences to a civilian work role. Veterans, similarly, have difficulty communicating the skills they have to prospective employers.

"For example, they see that a veteran was a 'tank operator' in the military, and struggle with how that skill translates to a civilian role. The reality is, however, that if they were to dig deeper –or if we did a better job educating them–they'd understand that a modern-day tank driver actually has very advanced training and practical knowledge in hydraulics systems, radar systems and electronics—highly desirable skills in the modern workplace."

Canella said by reaching out to career coaches and individuals who can lead workshops, they can help with the joblessness rate.

"We're working right now with career coaches," he said.

"We're going to do things in phases. We're going to integrate them into the website. Eventually, career coaches can do video conferencing with veterans or a veteran can one-on-one chat with them," he said.

"We don't want to generalize answers. We want direct, personal answers. It should be catered to each individual as best we can. Obviously, as we grow we'll be able to do a better and better job of that."

'Warm Services'

Unquestionably, veterans have struggled to translate their practical, tangible skills into work, but many have the added difficulty of just generally adjusting to life back home, a life they hadn't seen for years, one where they're given almost too much freedom, where discipline they'd been so accustomed to vanishes. Not all can adjust, Canella said."

San Diego-VA Issues $8 Million in 730 Agent Orange Cases

Full Article at: MILITARY: Agent Orange claims flow in; some paid

By RICK ROGERS - For The North County Times North County Times - Californian | Posted: Friday, November 26, 2010 12:00 am

Just weeks after accepting claims from veterans filing for three new disabilities linked to Vietnam-era herbicide Agent Orange exposure, the Department of Veterans Affairs Regional Office in San Diego has issued $8 million in 730 cases.

Up to 200,000 Vietnam Veterans are potentially eligible to receive VA disability through this initiative designed to compensate veterans with B-cell leukemia, Parkinson’s disease or ischemic heart disease.

Veterans with these conditions who stepped foot in Vietnam between Jan. 9, 1962, and May 7, 1975, are presumed to have contracted them via exposure to Agent Orange and don't need to prove their military service caused their illnesses, according to the VA.

The recognition of the presumptive illness, especially ischemic heart disease, which is common in an aged population, could open the door to tens of thousands seeking compensation. Spouses who lost husbands or wives to these conditions are also in line for awards.

In late October, the VA finalized regulations for the three new disabilities. The VA regional benefit office in San Diego County is the central processing site and has received 5,000 Agent Orange claims from both San Diego County veterans and other regional VA offices."

Duenas v. Principi, Medical Exaination, 38 U.S.C. 5103A.

We noticed that there have been a number of searches for Duenas v. Principi lately so we have gotten that CAVC decision and placed it below:

From various Board Decisions:

"The U.S. Court of Appeals for Veterans Claims (Court) held in Duenas that where there is an in-service notation of a potentially relevant abnormality,
a medical opinion may be required to aid in substantiating the claim. Duenas v. Principi, 18 Vet. App. 512 (2004)."
======
"The record before VA need only (1) contain competent evidence that the
veteran has persistent or recurrent symptoms of current disability and (2) indicate that those symptoms may be associated with the veteran's active military service.
Duenas v. Principi, 18 Vet. App. 512 (2004)."
+++++++++++++++++++++++++++++++++++++++++++++++++++
Medical treatise, Timberlake v. Gober,

"The Secretary’s obligation under 38 U.S.C. 5103A(d) to provide the veteran with a medical examination or to obtain a medical opinion is triggered only if the evidence of record demonstrates “some causal connection between his disability and his military service.” Wells, 326 F.3d at 1384. This includes evidence
that links “persistent or recurrent symptoms of disability” to the
veteran’s service. Duenas v. Principi, 18 Vet.App. 512, 517 (2004) (
quoting 38 U.S.C. 5103A(d)(2) and 38 C.F.R. 3.159(c)(4)(i))."
+++++++++++++++++++++++++++++++

Skip navigation
U.S. Court of Appeals for Veterans Claims

Duenas.251.wpd
Search Terms: DUENAS This version includes the errata dated 15Feb05 - e

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS


No. 03-1251

Pedro P. Duenas, Appellant,

v.

Anthony J. Principi,
Secretary of Veterans Affairs, Appellee.


On Appeal from the Board of Veterans' Appeals



(Decided December 15, 2004 )



Pedro P. Duenas, pro se.

Tim S. McClain, General Counsel; R. Randall Campbell, Assistant
General Counsel; Kathy A. Banfield, Deputy Assistant General Counsel; and
Cathy A. Chase, all of Washington, D.C., were on the brief for the
appellee.

Before IVERS, Chief Judge, and GREENE and HAGEL, Judges.

The opinion of the Court is per curiam. HAGEL, Judge, filed a
concurring opinion.

PER CURIAM: Pedro P. Duenas, who is unrepresented, appeals a May 13,
2003, Board of Veterans' Appeals (Board) decision in which the Board
denied his claims for service connection for (1) a urinary tract infection
, (2) poor vision, (3) a hearing-loss disability, (4) a gastrointestinal
disorder, (5) asthma, (6) bronchitis, (7) emphysema, (8) heart disease,
and (9) hypertension. The Court has jurisdiction pursuant to 38 U.S.C.
7252(a) and 7266(a) to review the May 2003 Board decision. For the
following reasons, the Court will affirm the May 2003 decision with
respect to Mr. Duenas's claims for service connection for a urinary tract infection, poor vision, a hearing-loss disability, a
gastrointestinal disorder, asthma, bronchitis, emphysema, and hypertension. The Court will vacate the decision with respect to his claim for service connection for heart disease and will remand that matter for a more careful consideration of whether Mr. Duenas is entitled to a VA medical examination.

I. FACTS
Mr. Duenas had recognized Philippine guerilla service from March 1945
to February 1946, service in the Regular Philippine Army from February
1946 to March 1946, and active-duty service in the U. S. Army from July
1946 to March 1949. Record (R.) at 26-34, 41-44, 56-57. In September
1999, he filed with a VA regional office claims for service connection for
lung ailments, asthma, hypertension, heart disease, a urinary tract
infection, poor vision and hearing, and gastritis. R. at 16. Along with
his application, he submitted statements from Dr. Florante D. Iglesias,
who treated him from 1954 to 1963, and Dr. Reynaldo G. Patriarca, who has
treated him since 1964. R. at 21-23. (Although the Board stated that Dr.
Iglesias's statements indicate treatment from "1944," the Court observes
that the statements appear to indicate treatment from 1954. R. at 7, 22,
74-75. The Court also notes that the regional office interpreted these
statements as indicating treatment from 1954. R. at 88-89, 114.) Both
doctors stated that they had treated him for asthma and bronchitis. Id.
Dr. Patriarca also reported that Mr. Previous HitDuenasNext Hit's complaints of dyspnea, or
shortness of breath, and easy fatigability suggest emphysema and that Mr.
Previous HitDuenasNext Hit may be "prone to . . . hypertension." Id.
During the development of his claims, VA requested Mr. Previous HitDuenasNext Hit's
service medical records and other records related to him. R. at 38-39, 47-
48. In response to those requests, VA received the record of his February
1946 discharge examination. R. at 58. In that record, under the heading "
Record of Physical Examination," the examining U.S. Army Medical Corps
officer, in all but one instance, entered either "normal," "none," or "
complete" in the spaces provided for comments regarding certain disorders
and parts of the body. Id. The one exception was in the section for
comments regarding the "Cardiovascular System," in which the examining
medical officer entered the notation, "[t]achycardia." Id. Tachycardia
is defined as "excessive rapidity in the action of the heart." Dorland
's Illustrated Medical Dictionary 1655 (28th ed. 1994) [hereinafter
Dorland's]. The regional office also received an Affidavit for
Philippine Army Personnel, dated February 27, 1946, and signed by Mr.
Previous HitDuenasNext Hit, in which he attested that he had not incurred any wounds or
illness since December 1941. R. at 62.
In addition, VA requested further information from Drs. Iglesias and
Patriarca. R. at 68, 70- 71. In his response, Dr. Iglesias explained
that Mr. Previous HitDuenasNext Hit's treatment records were either lost or misplaced but
that he recalled treating Mr. Previous HitDuenasNext Hit "on and off" from 1954 to 1963 for
the illnesses mentioned in the doctor's previous statement. R. at 73-74.
Dr. Patriarca responded that his first statement was a sufficient account
of Mr. Previous HitDuenasNext Hit's diagnoses and notified VA that he could not give a
detailed description of his treatment since 1964 because all of Mr.
Previous HitDuenasNext Hit's records that were more than five years old had been deleted from
his file. R. at 77.
The regional office eventually denied Mr. Previous HitDuenasNext Hit's claims for
service connection, and he appealed its decision to the Board. R. at 85-
90. In his appeal to the Board, he made the following statement:
My ailments have been recurring since service, especially my heart
and lung problems. The symptoms have been consistent since I was
separated from service up to the present time . . . [and have]
consisted of . . . difficulty in breathing, easy fatigability, and
worse[,] my recurring rapid heartbeat.

R. at 117.
The Board, in the decision on appeal, determined that VA was not
required, under 38 U.S.C. 5103A(d), to provide Mr. Previous HitDuenasNext Hit with a medical
examination because "the evidence before the Secretary . . . [did not]
indicate that the disorders at issue may be associated with [Mr. Previous HitDuenasNext Hit
's] active military service." R. at 5. The Board also concluded that an
examination was not required because "there [was] no reasonable
possibility that an examination would aid in substantiating [Mr. Previous HitDuenasNext Hit
's] claim[s]." Id. With respect to the merits of his claims, the Board
concluded that his claimed disabilities "were not incurred in or
aggravated by service." R. at 3.
On appeal to this Court, Mr. Previous HitDuenasNext Hit raises three arguments. First,
he argues that VA did not fulfill its duty to assist him insofar as it
failed to provide him with medical examinations with respect to his
claims for service connection for heart disease, poor vision, and a
hearing-loss disability. Informal Brief (Br.) at 1-2. Second, Mr. Previous HitDuenasNext Hit
asserts that the Board should not have held his February 1946 affidavit
against him. Id. at 1. Third, he argues that the opinions of his doctors
should be given "credence" with respect to his claims for asthma,
bronchitis, and hypertension. Id. at 2.
The Secretary argues that VA was not required under section 5103A to
provide Mr. Previous HitDuenasNext Hit with a medical examination. Secretary's Br. at 11-14.
The Secretary reasons that an examination was not required with respect to
Mr. Previous HitDuenasNext Hit's claims of poor vision and a hearing-loss disability because
Mr. Previous HitDuenasNext Hit "[had] not submitted competent evidence of a current disability"
and because the record did not "contain competent evidence that [his]
claimed disabilities are associated with his service." Id. at 12-13.
Similarly, the Secretary contends that VA was not required to provide a
medical examination with respect to Mr. Previous HitDuenasNext Hit's claim of heart disease
because the record did not "contain medical evidence of a current heart
disability." Secretary's Br. at 14. Further, the Secretary argues that
the Board properly denied Mr. Previous HitDuenasNext Hit's claims for service connection
because his "claims for the most part are completely lacking in any kind
of supportive evidence." Id. at 6-7.

II. ANALYSIS
A. Duty to Provide a Medical Examination under 38 U.S.C. 5103A(d)
1. Applicable Laws and Regulations
Even prior to the enactment of the Veterans Claims Assistance Act of
2000, Pub. L. No. 106- 475, 114 Stat. 2096 (Nov. 9, 2000), VA had a duty
to assist claimants "in developing the facts pertinent to a claim" and
that duty to assist included, in certain situations, providing the
claimant with a medical examination. 38 U.S.C. 5107(a) (1999); see
Green v. Derwinski, 1 Vet.App. 121, 124 (1991). However, under a line of
cases decided prior to the enactment of the Veterans Claims Assistance Act
of 2000 and culminating in this Court's decision in Morton v. West, that
duty was not triggered unless a claimant first demonstrated, as a
threshold matter, that the claim at issue was well grounded. Morton, 12
Vet.App. 477, 486 (1999); Caluza v. Brown, 7 Vet.App. 498, 505-06 (1995),
aff'd, 78 F.3d 604 (Fed. Cir. 1996) (table). A claim was considered to be
well grounded if the claimant provided "competent evidence of current
disability (a medical diagnosis), . . . of incurrence or aggravation of
a disease or injury in service (lay or medical evidence), . . . and of a
nexus between the in-service injury or disease and the current disability (
medical evidence)." Caluza, 7 Vet.App. at 506. Whether the claimant
ultimately prevailed on the merits of the claim was a separate matter.
See id. at 507-13.
Displeased with the Morton decision, which the Committees on
Veterans' Affairs deemed a "significant barrier to veterans who need
assistance in obtaining information and evidence in order to receive
benefits from . . . VA," Congress eliminated the well-grounded-claim
requirement by enacting the Veterans Claims Assistance Act of 2000. See
146 Cong. Rec. H9913-14 (Oct. 17, 2000) (Explanatory Statement by the
House and Senate Committees on Veterans' Affairs); Luyster v. Gober, 14
Vet.App. 186, 186 (2000). The Committees also noted that under VA's "
claimant friendly" and "non-adversarial" adjudicative system, "VA must
provide a substantial amount of assistance to a [claimant] seeking
benefits." 146 Cong. Rec. at H9913 (citations omitted). Congress
highlighted the importance of providing medical examinations and opinions
as part of that assistance by establishing standards for determining when
VA is required to provide examinations and opinions. See 38 U.S.C.
5103A(d). Under the new legal framework, there is generally no
prerequisite to receiving VA assistance; VA is simply required to assist a
claimant at the time that claimant files a claim for benefits. See 38 U.S.
C. 5103A(a); 38 C.F.R. 3.159(c) (2003). Whether the claimant prevails
on the merits of the claim, however, remains a separate matter.
Under section 5103A(b), VA's duty to assist includes making "
reasonable efforts to obtain relevant records," such as service medical
records, records from VA health-care facilities, and private medical
records, so long as the claimant adequately identifies those records to
the Secretary and authorizes the Secretary to obtain them. Depending on
the record of evidence provided by the claimant, or after any such
development, VA's duty to assist may also include, under section 5103A(d),
providing a claimant with a medical examination:
(1) In the case of a claim for disability compensation, the
assistance provided by the Secretary under subsection (a) shall
include providing a medical examination or obtaining a medical
opinion when such an examination or opinion is necessary to make a
decision on the claim.
(2) The Secretary shall treat an examination or opinion as
being necessary to make a decision on a claim for purposes of
paragraph (1) if the evidence of record before the Secretary, taking
into consideration all information and lay or medical evidence (
including statements of the claimant)- (A) contains
competent evidence that the
claimant has a current
disability, or persistent
or recurrent symptoms of
disability; and
(B) indicates that the disability or symptoms may be
associated with the claimant's active military, naval, or air
service; but
(C) does not contain sufficient medical
evidence for the Secretary to make a decision on
the claim.

38 U.S.C. 5103A(d) (emphasis added); see Wells v. Principi, 326 F.3d
1381, 1384 (Fed. Cir. 2003) (holding that proof of current disability
alone is insufficient to trigger Secretary's obligation to provide medical
examination); Charles v. Principi, 16 Vet.App. 370, 374-75 (2002) (holding
that appellant's own lay testimony regarding symptoms is sufficient to
satisfy section 5103A(d)(2)(B) when symptoms are "capable of lay
observation").
The Secretary implemented section 5103A(d) in 38 C.F.R. 3.159(c)(
4)(i), which was made applicable to any claim for benefits pending before
the Department and "not decided by VA" as of November 9, 2000. 66 Fed.
Reg. 45,620, 45,629-31 (Aug. 29, 2001). Under the regulation, an
examination is necessary
if the information and evidence of record does not contain sufficient
competent medical evidence to decide the claim, but:
(A) Contains competent lay or medical evidence of a current
diagnosed disability or persistent or recurrent symptoms of
disability;
(B) Establishes that the veteran suffered an event, injury[,]
or disease in service . . . ; and
(C) Indicates that the claimed disability or symptoms may be
associated with the established event, injury, or disease in service
or with another service-connected disability.

38 C.F.R. 3.159(c)(4)(i) (emphasis added).
Although the regulation contains a requirement that is not present in
the statute, namely the requirement that the evidence of record "[e]
stablishes that the veteran suffered an event, injury, or disease in
service," the U.S. Court of Appeals for the Federal Circuit has held that
the regulation is not in conflict with the statute. Paralyzed Veterans of
Am. v. Sec'y of Veterans Affairs, 345 F.3d 1334, 1355-57 (Fed. Cir. 2003).
In this regard, the Court notes that under section 5103A(a)(2) of the
statute, the Secretary "is not required to provide assistance to a
claimant under this section if no reasonable possibility exists that such
assistance would aid in substantiating the claim." Because some evidence
of an in-service event, injury, or disease is required in order to
substantiate a claim for service connection and because a postservice
medical examination could not provide evidence of such past events, a
medical examination conducted in connection with claim development could
not aid in substantiating a claim when the record does not already
contain evidence of an in-service event, injury, or disease. See
Paralyzed Veterans of Am., 345 F.3d at 1355-57.
In addition, when deciding whether, under section 5103A(d) and 3.
159(c)(4), to provide a claimant with a medical examination, the Board is
required to provide a written statement of the reasons or bases for its
conclusion. 38 U.S.C. 7104(d)(1). That statement must be adequate to
enable a claimant to understand the precise basis for the Board's decision,
as well as to facilitate review in this Court. See Gilbert v. Derwinski,
1 Vet.App. 49, 57 (1990). To comply with this requirement, the Board must
analyze the credibility and probative value of the evidence, account for
the evidence that it finds to be persuasive or unpersuasive, and provide
the reasons for its rejection of any material evidence favorable to the
claimant. See Caluza, 7 Vet.App. at 506. In the absence of a finding of
nonprejudicial error, vacatur and remand is warranted where the Board has
failed to provide an adequate statement of its reasons or bases for its
determinations. See Tucker v. West, 11 Vet.App. 369, 374 (1998); Soyini
v. Derwinski, 1 Vet.App. 540, 546 (1991) (holding that failure to provide
adequate statement of reasons or bases does not necessitate remand "in the
face of overwhelming evidence in support of the [Board's] result in a
particular case").
2. Examination with respect to Mr. Previous HitDuenasNext Hit's Claim for Service
Connection for Heart Disease
Because Mr. Previous HitDuenasNext Hit's appeal was pending before the Board on
November 9, 2000, the Board was required to consider section 5103A and
3.159(c) when it adjudicated his claims. See 38 U.S.C. 5103A(a);
Charles, 16 Vet.App. at 371-72, 374-75; 38 C.F.R. 3.159(c). The
record before the Secretary contained Mr. Previous HitDuenasNext Hit's statement that he now
experiences "difficulty in breathing, easy fatigability, and [a] recurring
rapid heartbeat." R. at 117. Mr. Previous HitDuenasNext Hit further asserted that those
symptoms are the symptoms of his claimed disabilities and that he has
experienced them since his separation from service. Id. The record also
contained Mr. Previous HitDuenasNext Hit's discharge examination report that includes a
notation of an abnormality of his cardiovascular system-tachycardia. R.
at 58.
Although the Board concluded that a medical examination was not
required with respect to Mr. Previous HitDuenasNext Hit's claim for service connection for
heart disease, it did not support that conclusion with an adequate
statement of reasons or bases. See 38 U.S.C. 5103A(d), 7104(d)(1);
Allday v. Brown, 7 Vet.App. 517, 527 (1995); 38 C.F.R. 3.159(c)(4).
Specifically, although the Board determined
that "the evidence before the Secretary [did] not . . . indicate that the
disorders at issue may be associated with [Mr. Previous HitDuenasNext Hit's] active military
service," it did not consider that, under section 5103A(d) and 3.159(c)(
4), the record before the Secretary need only (1) contain competent
evidence that he has persistent or recurrent symptoms of heart disease and (
2) indicate that those symptoms may be associated with his active military
service. See R. at 1-12 (emphasis added).
To support its conclusion properly, the Board was required to address (
1) whether difficulty in breathing, easy fatigability, and a recurring
rapid heartbeat are symptoms of heart disease; (2) whether Mr. Previous HitDuenasNext Hit's
statement was competent evidence that he has experienced those symptoms
since his separation from service, see 38 U.S.C. 5103A(d)(2)(A); (3)
what tachycardia is and whether the symptoms that Mr. Previous HitDuenasNext Hit has
experienced since service may be associated with his in- service
tachycardia, see 38 U.S.C. 5103A(d)(2)(B); and (4) why "no reasonable
possibility" existed that an examination would aid in substantiating Mr.
Previous HitDuenasNext Hit's claim. See R. at 5. The Board failed to address any of these
issues. See R. at 1-12.
3. Examinations with respect to Mr. Previous HitDuenasNext Hit's Claims for Service
Connection
for Poor Vision and a Hearing-Loss Disability
The record before the Secretary contained Mr. Previous HitDuenasNext Hit's statement
that he now experiences the symptoms of his claimed disabilities, but his
statement does not include a discussion regarding symptoms of poor vision
or a hearing-loss disability. R. at 117. Further, although Mr. Previous HitDuenasNext Hit
asserted that he has experienced the symptoms of his claimed disabilities
since his separation from service, the record also contained Mr. Previous HitDuenasNext Hit
's discharge examination report that indicated that he had 20/20
uncorrected bilateral vision and 15/15 bilateral hearing. R. at 58, 117.
As in the Board's decision to deny an examination with respect to Mr.
Previous HitDuenasNext Hit's claim for service connection for heart disease, the Board here
discussed only whether the disorders of poor vision and hearing loss may
be associated with Mr. Previous HitDuenasNext Hit's service, not whether Mr. Previous HitDuenasNext Hit had
symptoms of those disorders and whether those symptoms may be so
associated. See 38 U.S.C. 5103A(d)(2)(A) and (B); R. at 1-12.
Therefore, the Board failed to provide an adequate statement of reasons or
bases to support its conclusion that a medical examination was not
required with respect to Mr. Previous HitDuenasNext Hit's claims for service connection for
poor vision and a hearing-loss disability. See 38 U.S.C. 5103A(d),
7104(d)(1); Allday, 7 Vet.App. at 527; 38 C.F.R. 3.159(c)(4).
Specifically, the Board did not explain (1) whether Mr. Previous HitDuenasNext Hit's
statement was competent evidence that he has the symptoms of poor vision
and a hearing-loss disability; (2) if it was competent evidence, why those
symptoms could not be associated with his service; and (3) why "no
reasonable possibility" existed that an examination would aid in
substantiating his claims. See R. at 1-12.
4. Application of 38 U.S.C. 7261(b)(2) regarding the Rule of
Prejudicial Error
Although the Board's conclusion with respect to Mr. Previous HitDuenasNext Hit's claims
for service connection for poor vision and a hearing-loss disability was
not supported by an adequate statement of reasons or bases, the Court
concludes that any such error was nonpredjudicial. See 38 U.S.C. 7261(
b); Conway v. Principi, 353 F.3d 1369, 1374-75 (Fed. Cir. 2004). In this
regard, even assuming that Mr. Previous HitDuenasNext Hit's statement constitutes "competent
lay . . . evidence of . . . persistent or recurrent symptoms" of poor
vision and a hearing-loss disability, it does not address, and there is no
other evidence in the record that reflects, that he "suffered an event,
injury[,] or disease in service" that may be associated with those
symptoms. See 38 C.F.R. 3.159(c)(4)(i). Therefore, no reasonable
possibility was suggested by the record that an examination would have
aided in substantiating Mr. Previous HitDuenasNext Hit's claims for service connection for
either of those two disabilities. See Paralyzed Veterans of Am., 345 F.3d
at 1356. With respect to an examination to evaluate Mr. Previous HitDuenasNext Hit's
claimed heart disease, however, the record does contain an in-service
notation of tachycardia, which the examining medical officer noted as an
abnormality of the cardiovascular system. R. at 58. Accordingly, the
Court cannot speculate that a medical examination would not aid in
substantiating Mr. Previous HitDuenasNext Hit's claim for service connection for heart
disease. See Allday, 7 Vet.App. at 527-28. A remand is therefore
required but only with respect to Mr. Previous HitDuenasNext Hit's claim for service
connection for heart disease.
B. Service Connection
Service connection for VA disability compensation purposes will be
awarded to a veteran when the record before the Secretary contains (1) a
medical diagnosis of a current disability, (2) medical evidence of
incurrence or aggravation of a disease or injury in service, and (3)
medical evidence of a nexus between the in-service injury or disease and
the current disability. See 38 U.S.C. 1110; Caluza, 7 Vet.App. at 505;
38 C.F.R. 3.303 (2003).
A finding of service connection generally involves findings of fact.
See Russo v. Brown, 9 Vet.App. 46, 50 (1996). The Court is required to
reverse "a finding of material fact . . . if the
finding is clearly erroneous." 38 U.S.C. 7261(a)(4). "[A] finding of
fact is clearly erroneous when although there is evidence to support it,
the reviewing court on the entire evidence is left with a definite and
firm conviction that a mistake has been committed." Hersey v. Derwinski,
2 Vet.App. 91, 94 (1992) (quoting United States v. U.S. Gypsum Co., 333 U.
S. 364, 395 (1948)). The Court may not substitute its judgment for the
factual determinations of the Board on issues of material fact merely
because the Court would have decided those issues differently in the first
instance. See id.
Here, because the Court will vacate the Board decision with respect
to Mr. Previous HitDuenasNext Hit's claim for service connection for heart disease and will
remand that matter for readjudication, the Court need only consider his
remaining claims. In this regard, the Court notes that the Board denied
those claims because it determined that the record before the Secretary
did not contain evidence of in- service incurrence or aggravation of a
urinary tract infection, poor vision, a hearing-loss disability, a
gastrointestinal disorder, asthma, bronchitis, emphysema, or hypertension.
R. at 3, 8-11. First, as the Board correctly noted, Mr. Previous HitDuenasNext Hit's 1946
discharge examination report reflects normal findings with respect to his
genitourinary system, abdominal viscera, and lungs; a negative chest x-ray;
20/20 uncorrected bilateral vision; 15/15 bilateral hearing; and a blood
pressure reading that is not indicative of hypertension. R. at 8-11, 58;
Dorland's at 801. Second, Mr. Previous HitDuenasNext Hit indicated in his February 1946
affidavit that he had not incurred any wounds or illness since December
1941. R. at 8-11, 62. Third, Mr. Previous HitDuenasNext Hit's doctors, in their statements,
do not relate any disabilities that Mr. Previous HitDuenasNext Hit may have to his period of
service. R. at 8-11, 21-23, 73-79. Finally, although the record contains
a statement by Mr. Previous HitDuenasNext Hit to the effect that his ailments have been
recurring since his service (R. at 117), the Court notes that expert med
ical evidence is necessary to establish the etiology of those
disabilities and that, because Mr. Previous HitDuenasNext Hit is not competent to provide such
medical evidence, his statements concerning the etiology of his alleged
disabilities are insufficient to demonstrate the in-service incurrence of
those disabilities. See Espiritu v. Derwinski, 2 Vet.App. 492, 494 (1992
). Given this evidence and considering the entire record before the Board
and the Secretary, the Court cannot conclude that the Board's
determination in this regard is clearly erroneous. See 38 U.S.C. 7261(
a)(4); Hersey, 2 Vet.App. at 94; Gilbert, 1 Vet.App. at 52.
With respect to Mr. Previous HitDuenasNext Hit's arguments that the Court should not
consider his February 1946 affidavit as evidence against his claim and
that the Court should give "credence" to his doctors'
statements regarding his claims for service connection for asthma,
bronchitis, and hypertension, the Court finds those arguments to be
unavailing. Specifically, the Court notes that whether or not it
considers the 1946 affidavit as evidence against Mr. Previous HitDuenasNext Hit's claims,
the record, as the Board correctly noted, does not contain any evidence of
incurrence or aggravation of a disease or injury in service. In addition,
the doctors' statements do not refer to the issue of whether Mr. Previous HitDuenasNext Hit
's claimed disabilities were incurred during, or aggravated by, his
service.

III. CONCLUSION
On consideration of the foregoing, the May 13, 2003, Board decision
is AFFIRMED to the extent that the Board denied Mr. Previous HitDuenasNext Hit's claims for service connection for a urinary tract infection, poor vision, a hearing-
loss disability, a gastrointestinal disorder, asthma, bronchitis,
emphysema, and hypertension. The decision is VACATED with respect to Mr.
Duena claim for service connection for heart disease, and that matter
is REMANDED for readjudication consistent with this decision. On remand,
Mr. Duenas is free to submit additional evidence and argument in
accordance with Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999) (per
curiam order). See Kay v. Principi, 16 Vet.App. 529, 534 (2002). The
Court reminds the Board 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). In addition, the Secretary shall proceed
expeditiously, in accordance with 38 U.S.C. 5109B, 7112 (expedited
treatment of remanded claims).

HAGEL, Judge, concurring: I write separately because I believe that
a matter of great significance is at issue in this case and wish to
elaborate further on the views already expressed. The focus of the
Veterans Claims Assistance Act of 2000 was to ensure that all information
necessary to making a determination on a claim is obtained and presented
to the adjudicator as early on in the decision-making process as possible.
One section of that act, now codified in 38 U.S.C. 5103A(d), was
devoted to clarifying VA's duty to assist veterans seeking disability
compensation in obtaining medical examinations. Whether or not a veteran
receives a VA medical examination can have a significant bearing on the
outcome of a veteran's claim for disability compensation. If provided
with an examination, a veteran, although certainly not entitled to
benefits automatically, is afforded an
opportunity to obtain the expert medical evidence that is often necessary
to support a claim for benefits. If denied an examination by VA, however,
a veteran may be ill suited to acquire that evidence on his or her own.
The veteran is faced with the somewhat-daunting task of obtaining and
likely paying for a specialized opinion from an expert who may be
unfamiliar with the contents of the service medical and other treatment
records and who is uninformed regarding the importance of certain
standards peculiar to the needs of the VA adjudication system. Under
section 5103A(d), the initial decision to provide a veteran seeking
disability compensation with an examination rests with VA, and because of
the critical impact of such an examination on the outcome of the
adjudication, it is crucial that VA take this section into careful
consideration when making its decision.
The Board failed to do so in this case. Particularly, the Board
completely ignored the language of section 5103A that provides that the
necessity of an examination may be triggered by evidence that a claimant
has "persistent or recurrent symptoms of disability" and that those "
symptoms may be associated with the claimant's active military . . .
service." 38 U.S.C. 5103A(d)(2)(A), (B) (emphasis added).
In its primary opinion, the Court enumerated a number of issues that
the Board is required to address on remand. Ante at 7-8. Although I am
fully cognizant of the principle that "[f]act finding in veterans cases
is to be done by the expert [Board], not by [this] Court," Elkins v.
Gober, 229 F.3d 1369, 1377 (Fed. Cir. 2000), I would like to make the
following observations with respect to the issues that this Court has
noted. First, difficulty in breathing, easy fatigability, and a recurring
rapid heartbeat are described in some texts as symptoms of heart disease.
See David Schechter, M.D. & Roger Manwaring, Heart Disease, in 7
Attorneys' Textbook of Medicine 30.31, .60, .62 (Roscoe N. Gray, M.D.,
et al. eds., 3d ed. 2003); 5A Lawyers' Medical Cyclopedia 34.29 (A), (
C), (G), (K) (Richard M. Patterson ed., 5th ed. 2003). Second, it is
unclear to me why those three symptoms would not be "capable of lay
observation," and therefore why Mr. Previous HitDuenasNext Hit would not be competent to
testify that he has experienced them.
At this point and in the absence of an explanation by the Board, I
cannot conclude that a recurring rapid heartbeat and other symptoms of
heart disease allegedly experienced by Mr. Previous HitDuenasNext Hit since his military
service could not potentially be associated with the tachycardia, or
excessive rapidity in the action of the heart, experienced by him during
service, as described on his discharge examination report. 38 U.S.C. 5103A(d)(2)(B); 38 C.F.R. 3.159(c)(4)(i)(C); R. at 58; Dorland's at 1655. Further, given these observations and the Board's incomplete discussion of the issues, I also
cannot conclude that there is no reasonable possibility that an
examination would aid in substantiating Mr. Previous HitDuenasNext Document's claim. See 38 U.S.C. 5103A(a)(2). Under the Court's opinion, the Board must discuss
thoroughly the issues raised by the Court and either order a VA
examination or explain clearly and comprehensively why, in light of
section 5103A(d)(2), no such examination is necessary.

Palo Alto-VA, Third Veteran Reaches Settlement for Vision Loss, $400,000.00

Full Article at: Veteran reaches settlement over Palo Alto VA care

Associated Press November 24, 2010 08:00 AM Copyright Associated Press. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

Wednesday, November 24, 2010

(11-24) 08:00 PST Palo Alto, Calif. (AP) --

A military veteran who suffered significant vision loss because of negligent treatment at a Northern California Veterans Administration hospital is receiving a $400,000 settlement.

The Palo Alto Daily News reports that 68-year-old LT Kennedy Jr. is the third veteran to reach a settlement with the federal government over treatment at the VA Palo Alto Health Care System.

His attorney, Kim David Staskus, said Tuesday his settlement — reached in September — is higher than at least one of the other veterans because he was still young enough to work when he experienced problems with his eyesight.

Kennedy was among eight veterans informed by the hospital in early 2009 that their glaucoma should have been evaluated by a medical doctor, not just an optometrist.

___

Information from: Palo Alto Daily News, www.paloaltodailynews.com

Is Aggravation a Medical Matter?

We are presenting this single judge decision because it address that very question, and at least in the case of asthma, he found it was not a medical matter.

We note the irregularity in the decision but that is the way the decision is presented on the CAVC website, this is a copy and paste of that presentation.


"However, symptomatology descriptive of an already diagnosed condition's
aggravation is not necessarily a medical matter, as evidenced by the observable symptoms noted under 38 C.F.R. § 4.97, Diagnostic Code (DC) 6602 (Bronchial asthma) (2010). Under DC 6602, bronchial asthma"

============
"Thus, the Court is left to guess why the Board determined that the standard for determining aggravation involved anabi"
grade the veteran's asthma as mild, moderate, severe, etc."(R. at 9), and that
the aggravation of asthma, as opposed to its diagnosis, requires special medical knowledge. See id. Thus, the Board failed to provide an adequate statement of reasons or bases for its decision. See 38 U.S.C. § 7104(d)(1); Allday v. Brown, 7 Vet.App. 517, 527 (1995); Gilbert, 1 Vet.App. at 57. On remand, the Board is directed to determine whether the appellant's family members' lay evidence that describe readily observable symptomatology is competent to be material evidence of the aggravation of asthma under current caselaw, and provide an adequate statement of reasons or bases for its decision to facilitate possible review in this Court. See, e.g., Davidson , Jandreau, and Buchanan, all supra; see also id."

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----------------------------------------------------


Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 08-3036
SAMMY L. MORRISON, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before MOORMAN, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
MOORMAN,Judge: Theappellant,SammyL.Morrison,appeals through counsel an
August
27, 2008, Board of Veterans' Appeals (Board) decision that denied a
request to reopen a claim for
service connection for asthma because new and material evidence had not
been received. Record
(R.) at 3, 11. Both parties filed briefs, and the appellant filed a reply
brief. This appeal is timely,
and the Court has jurisdiction pursuant to 38 U.S.C. §§ 7252(a) and 7266(
a). A single judge may
conduct this review because the outcome in this case is controlled by the
Court's precedents and "is
not reasonably debatable." Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (
1990). For the following
reasons, the Court will vacate the Board's August 2008 decision and remand
the matter for further
proceedings consistent with this opinion.
I. FACTS
A. Military, Medical, and Procedural History
Mr. Morrison served in the U.S. Air Force from May 1966 to February 1967,
when he was
medicallydischarged with a diagnosis of bronchial asthma, extrinsic,
multiple allergens. R. at 2550,
2587. A medical board determined his disability existed prior to service
and had not been
aggravated thereby. R. at 2550; see R. at 2548-49 (January1967 medical
examination report stating


the diagnosis as "recurrent since age 12"). In May 1973, Mr. Morrison
filed a VA application for
compensation or pension for asthma. R. at 2578-79, 2706. That year, Mr.
Morrison filed astatement
with VA:
Since the time that I received my medical discharge I have not been able
to properly
work and h[o]ld a job. I am now in the Colorado State Penitent[i]ary and I
am still
affected with asthma. For some time I was not bothered with this asthma
but for [a]
couple of months or so I have been bothered with it.
R. at 2583.
In June 1973, the regional office (RO) issued a decision denying service
connection for
bronchial asthma, explaining that the
[e]ntrance examination on May 25, 1966 was negative. In August, 1966, he
was
treated for bronchial asthma with subsequent treatment on approximately 15
occasions. The service records further show asthma since the age of 12
with
intermittent attacks every two or three months. . . .
The veteran began to receive treatment for asthma within three months of
entry into
active duty. The manifestations reported during service were seasonal
exacerbations
due to the inherent nature of the basic pre-service condition and do not
reflect an
increaseindisabilityto warranta finding ofaggravation.
Heispresentlyincarcerated
and there is no evidence of disability which would preclude substantially
gainful
employment.
R. at 2577. Mr. Morrison did not appeal this decision and it became final.
See R. at 4.
In 1979, Mr. Morrison filed another claim for VA compensation or pension,
explaining that
"I have had asthma since age 12 yrs." R. at 2570-73. VA interpreted this
claim as a request to
reopen, and sent a letter to Mr. Morrison on June 26, 1979, stating, in
part: "In the absence of any
new and material evidence, this [1973] decision remains final." R. at 2569.
In July 1980, Mr.
Morrison filed another VA application for compensation or pension,
explaining: "I contend that my
asthma condition became chronic only after I was assigned to Fairchild AFB
Washington, therefore
my service contributed to the worsening of the condition and I should be
service connected." R. at
2564-66. Laterthat month, VAsent Mr.Morrisona letterstating: "
Filingofanotherapplicationdoes
not serve to reopen your claim. . . . If you have any new and material
evidence to submit in support
of your claim, we shall be happy to consider it, otherwise, no further
action can be taken." R. at
2563.
2


In January 2002, Mr. Morrison requested his claim be reopened "due to the
worsening
condition thereof." R. at 2510. Mr. Morrison stated: "Although slightly
existing prior to my period
of service, my[asthmatic] condition was aggravated during myenlistment,
and continues to become
more disabling; the Air Force was aware of my asthma when I enlisted." Id.
In April 2002, Ms.
Joyce E. Guthrie, Mr. Morrison's sister, filed a statement in support of
claim, explaining that "[i]n
1967, after being discharged from the Air Force, Sammy came to live with
me. . . . He stayed with
us for approximately three (3) years because his asthmatic condition had
become so bad that he was
unable to work and maintain his own household." R. at 2506. In January
2003, VA received a
statement in support of claim from Mr. Morrison's first cousin, stating: "
As an asthmatic myself, I
am very familiar with its characteristics. . . . [I]mmediately upon his
discharge from the service
(1967) I observed his asthmatic condition to have worsened severely and he
required ongoing
medication." R. at 2505. That month, VA also received a statement in
support of claim from Bobby
Jean Wallace, stating that Mr. Morrison had informed him his asthma had
gotten worse in service
and "[d]uring his visit with me [in 1967] I did observe he was undergoing
so called asthma attacks."
R. at 2504. In March 2003, Mr. Morrison filed a statement in support of
claim, explaining: "At the
age of 12 I was once diagnosed with an acute asthma attack. I never again
experienced that [], until
I entered the military." R. at 2498.
In May 2003, a VA regional office (RO) continued the denial of service
connection for
bronchial asthma because the evidence submitted was not new and material.
R. at 2445-7. The RO
determined that the laytestimonyprovided was not based on medical fact
that Mr. Morrison's asthma
was aggravated by service "beyond normal progression of the preexisting
condition." R. at 2446.
In August 2003, Mr. Morrison filed a Notice of Disagreement (NOD). See R.
at 2442-3. In
September 2003, the RO issued a Statement of the Case (SOC). R. at 2425-41.
The RO explained:
"Lay testimony received does not provide evidence based on medical fact
that your asthma was in
fact aggravated by service beyond normal progression of the preexisting
condition." R. at 2441. In
February 2004, Mr. Morrison underwent a VA compensation and pension
examination. R. at 2385-
91. In August 2004, the RO issued a Supplemental Statement of the Case,
continuing to deny a
reopening of Mr. Morrison's claim. R. at 2366-79. A 2005 Board decision
was remanded after this
Court ordered that the parties' joint motion for remand be granted. R. at
2303-07; see R. at 2269.
3


In January 2008, Mr. Morrison filed his sworn affidavit stating, in part: "
The VA is trying
to say that I have been treated for asthma since the age of 12. That is
totally incorrect. I stated that
at the age of 12 years old I had some shortness of breath . . . ." R. at
2274. Mr. Morrison's legal
counsel sent an accompanying letter, explaining: "[T]he VA has contended
that the veteran had said
he had asthma prior to service. He denies he ever said such a thing." R.
at 2273.
On August 27, 2008, the Board issued the decision here on appeal. R. at 3-
11. The Board
determined that the veteran had not submitted new and material evidence,
and declined to reopen
his claim. R. at 11.
B. The Parties' Arguments
The appellant argues that he was prejudiced by the Board's failure to
adequately identify the
date of the last final denial of the claim; the appellant's burden in
reopening a denial based on a
preexisting condition is less than that required to reopen a denial based
on other factors; and that the
Board failed to recognize that new and material evidence had been
submitted as to the issues of
preexistence and Previous DocumentaggravationNext Hit. Appellant's (App.) Brief (Br.) at 8, 13, 18.
The appellant requests this
Court remand this matter. Id. at 23. The Secretary argues that the Court
should affirm the Board's
decision disputing the appellant's argument regarding the burden he bears
to support reopening and
that the appellant has failed to establish prejudicial error. Secretary's
Br. at 2.
II. ANALYSIS
A. Date of Last Final Decision
First, the appellant argues that he was prejudiced bythe Board's failure
to adequatelyidentify
the date of the last final denial of the claim. App. Br. at 8. The Board
stated that "[i]n a June 1973
decision, the RO denied service connection for asthma; this determination
was confirmed and
continued in July 1979 and July 1980 determinations." R. at 4. The
appellant appears to argue that
VA erred in handling the 1979 and 1980 requests to reopen, as such, the
only "final" decision is that
of 1973. App. Br. at 10-12. The appellant asserts that this is relevant
because the Board may not
have reviewed evidence associated with the claim between 1973 and 1980
once it stated that the
1980 request to reopen was final. App. Br. at 12. However, the Board did
discuss evidence of
record from prior to 1980:
4


At the time of those decisions [1973, 1979, and 1980], the service
entrance
examination was normal but service medical records [SMRs] revealed
treatment for
asthma which the service department found existed prior to service and was
not
aggravated byservice. The veteran had provided a detailed historyabout pre-
service
symptoms and treatment, and his asthma had cleared at the time of
treatment of [his]
last in-service bout in January 1967.
R. at 6. Further, the appellant admits that apart from additional claims
forms and denial letters, the
file contains no evidence of record from between 1973 and 2002. App. Br.
at 21. Thus, the Court
is not persuaded that the appellant's argument has any merit.1
See Hilkert v. West, 12 Vet.App. 145,
151 (1999) (en banc) ("An appellant bears the burden of persuasion on
appeals to this Court."), aff'd,
232 F.3d 908 (Fed. Cir. 2000); Berger v. Brown, 10 Vet.App. 166, 169 (1997
) ("[T]he appellant .
. . always bears the burden of persuasion on appeals to this Court."); see
also Newhouse v. Nicholson,
497 F.3d 1298, 1302 (Fed. Cir. 2007) ("There is a presumption that VA
considered all of the
evidence of record.").
B. Appellant's Burden To Provide Evidence To Reopen
Secondly, the appellant argues that his burden in reopening a prior denial
based on a
preexisting condition is less than that required to reopen a denial based
on other factors. App. Br.
at 13. The appellant appears to assert that "[i]n order to determine if
the evidence submitted by[the]
[a]ppellant here constituted new and material evidence, his new evidence
must be evaluated against
the [clear and unmistakable] standards" under 38 U.S.C. §§ 1111 and 1153.
App. Br. at 15. To the
extent this is the appellant's argument, he is incorrect. The correct
standard for determining whether
to reopen a claim is found under 38 C.F.R. § 3.156(a). Onlyafter a claim
is reopened would sections
1111 and 1153 apply. See 38 C.F.R. § 3.156(a) (2010) ("If new and
material evidence is presented
or secured with respect to a claim which has been disallowed, the
Secretary shall reopen the claim
and review the former disposition of the claim."). To the extent the
appellant argues that there is a
"qualitativelydifferentstandard"inreviewingwhether evidence is new
andmaterial inapreexisting-
To the extent the appellant argues that he was prejudiced by not being
informed of "VA's sympathetic system
of appellate rights" (R.at 22), the appellant fails to provide any support
for this contention. Thus, the Court will not
consider this argument. See Evans v. West, 12 Vet.App. 22, 31 (1998) (
stating the Court will give no consideration to
a "vague assertion" or "unsupported contention"); see also See Coker v.
Nicholson, 19 Vet.App. 439, 442 (2006) ("The
Court requires that an appellant plead with some particularity the
allegation of error so that the Court is able to review
and assess the validity of the appellant's arguments."), vacated on other
grounds sub nom. Coker v. Peake, 310 F. App'x
371 (Fed. Cir. 2008).
1
5


condition case as opposed to the standard used prior to reopening "an
adjudication based on a prior
denial of direct service connection," he provides no support apart from
the erroneous possible
assertion noted above. See Hilkert and Berger, both supra.
The appellant also argues that the Board's description of the new evidence
as not including
"anycompetent evidencethat cures the prior evidentiarydefect"(R. at 9)
indicates it applied a higher
evidentiary burden than required (App. Br. at 16). The Court concludes,
based on the Board's
analysis of evidentiary requirements under 38 C.F.R. § 3.156(a) (R. at 8),
that the Board's statement
is nothing more than poorly phrased and did not impact the overall
analysis. See McClain v.
Nicholson, 21 Vet.App. 319, 321 (2007) (stating that although clarity is
preferred, it cannot be
demanded in every instance or "finality would forever be delayed pending
perfection in
draftsmanship"); see also 38 U.S.C. § 7261(b).
C. New and Material Evidence
Next, the appellant argues that the Board failed to recognize that new and
material evidence
had been submitted as to the issues of preexistence and Previous HitaggravationNext Hit. App.
Br. at 18-23.2
"If new and
material evidence is presented or secured with respect to a claim which
has been disallowed, the
Secretary shall reopen the claim and review the former disposition of the
claim." 38 U.S.C. § 5108.
According to the amended version of 38 C.F.R. § 3.156(a), which applies
in the instant case because
the appellant's claim was filed after August 29, 2001, "new" evidence
means existing evidence not
previously submitted to Agency decisionmakers. 38 C.F.R. § 3.156(a). "
Material evidence means
existing evidence that, by itself or when considered with previous
evidence of record, relates to an
unestablished fact necessary to substantiate the claim." Id. "New and
material evidence can be
neither cumulative nor redundant of the evidence of record at the time of
the last prior final denial
of the claim sought to be reopened, and must raise a reasonable
possibility of substantiating the
claim." Id. The Court reviews whether an appellant has submitted new and
material evidence to
reopen a previously denied claim under the "clearly erroneous" standard of
review, where, as here,
the new-and-material-evidence determination is "'fact intensive' and . . .
requires 'the weighing of
To the extent the appellant argues that the RO misinterpreted the medical
records provided prior to its 1973
decision, that decision is final and not before the Court on a request to
reopen. See App. Br. at 18-20; cf. 38 C.F.R.
§ 3.156(a)
2
6


conflicting evidence and testimony.'" Suaviso v. Nicholson, 19 Vet.App.
532, 533 (2006) (quoting
Prillaman v. Principi, 346 F.3d 1362, 1367 (Fed. Cir. 2003)); see 38 U.S.C.
§ 7261(a)(4); Elkins v.
West, 12 Vet.App. 209, 217 (1999) (en banc) ("[W]e hold that new-and-
material-evidence
determinations willnow generallybereviewed under adeferential
standardandthat thestandardwill
ordinarily be the 'clearly erroneous' standard."); Gilbert v. Derwinski, 1
Vet.App. 49, 52 (1990).
i. Preexisting Condition
The appellant asserts that the Board incorrectly interpreted his 2008
affidavit, and the lay
statements from his family members. App. Br. at 22. In regard to his 2008
affidavit, the Board
stated: "The veteran's statements are duplicative of evidence already of
record." R. at 9. Given that
the appellant, prior to the 1973 RO decision, claimed that his asthma
started during service, the
Court agrees with the Board that these statements are duplicative of the
evidence already of record.
See R. at 2579. Thus, the Board did not commit clear error in determining
the appellant's lay
testimony was not new and material. See 38 C.F.R. § 3.156(a).
In regard to the laystatements from the appellant's family members, the
Court does not agree
with the Board's statement: "The lay persons are considered competent to
state observations, but not
to establish a diagnosis or etiology." R. at 9. The U.S. Court of Appeals
for the Federal Circuit has
consistently held that "'lay evidence can be competent and sufficient to
establish a diagnosis of a
condition when (1) a layperson is competent to identify the medical
condition, (2) the layperson is
reporting a contemporaneous medical diagnosis, or (3) lay testimony
describing symptoms at the
time supports a later diagnosis by a medical professional.'" Davidson v.
Shinseki, 581 F.3d 1313,
1316 (Fed. Cir. 2009) (quoting Jandreau v. Nicholson, 492 F.3d 1372, 1377 (
Fed. Cir. 2007)). The
Federal Circuit explicitly rejected the notion that competent medical
evidence is required when a
determinative issue involves medical etiology or diagnosis. Id. The
appellant argues that the lay
statements from the appellant's family members are relevant because they
describe his preservice
health. App. Reply Br. at 8. The appellant asserts that "lay observations
of his condition prior to
service should have been regarded as probative of his preservice condition
." App. Reply Br. at 8;
App. Br. at 17. However, none of the lay statements contradict the finding
that the appellant had
asthma prior to service. See R. at 2504-06. Rather, the lay statements
indicate that the appellant's
asthmaticsymptomsincreasedafterservice. Seeid. Thus,
althoughtheBoardincorrectlyinterpreted
7


the law in regard to reviewing lay testimony discussing medical diagnosis
or etiology, it was
nonprejudicial in light of the fact that none of the lay testimony
contradicts the finding that the
appellant's asthma preexisted service. See 38 U.S.C. § 7261(b)(2) (
providing that the Court shall
take due account of the rule of prejudicial error); Mayfield v. Nicholson,
19 Vet.App. 103, 116
(2005) (stating that the key to determining whether an error is
prejudicial is the effect of the error
on theessential fairnessoftheadjudication), rev'd on other grounds, 444 F.
3d 1328 (Fed. Cir. 2006);
R. at 6.
ii. Aggravation
Because there is no new competent evidence that the appellant's asthma was
not preexisting,
the determinative issue in this case does not involve a diagnosis or
etiology. 3
Neither the appellant
nor the Secretary dispute that the appellant had asthma in service. App.
Br. at 1, Secretary's Br.; see
R. at 6. Rather, the determinative issue is whether the appellant's asthma
was aggravated byservice,
and the family member's lay statements attest that there was an increase
in the appellant's
symptomatology. See R. at 2504-06. Therefore, this new layperson evidence
must be evaluated as
to whether it is material evidence in regard to establishing Previous HitaggravationNext Hit.
This evaluation involves
making findings of fact, which the Board is required to make in the first
instance. See Buchanan v.
Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006).
The Board stated: "[T]hey are not competent, as laypersons, to grade the
veteran's asthma as
mild, moderate, severe, etc., before, during, or after service, or to
indicate that service caused a
chronic increase in the severity of the veteran's asthma. Medical
expertise is required." R. at 9. The
Board cited Moray, to support its determination that the resolution of
whether there was Previous HitaggravationNext Hit
"turns on a medical matter." R. at 9-10 (citing Moray v. Brown, 5 Vet.App.
211, 214 (1993)).
However, symptomatology descriptive of an already diagnosed condition's
aggravation is not necessarily a medical matter, as evidenced by the observable symptoms noted under 38 C.F.R. § 4.97, Diagnostic Code (DC) 6602 (Bronchial asthma) (2010). Under DC 6602, bronchial asthma
3
The Court notes that although the appellant alternatively argues that he
never said he had asthma prior to
service (R. at 2273), apart from his own duplicative testimony, there is
no support for this contention in the record before
the Court. See R. at 2510 (letter from appellant stating that "[a]lthough
slightly existing prior to my period of service,
my [asthmatic] condition was aggravated during my enlistment"), 2537 (1966
medical notation that appellant had asthma
since age 12 with mild attacks every 2-3 months), 2571 (claim form signed
by appellant stating "I have had asthma since
age 12 yrs.").
8


is evaluated based on several observable factors, such as "intermittent
inhalational or oral bronchodilator therapy," and "dailyuse of systemic (oral or parenteral) high doses of corticosteroids or immuno-suppressive medications." 38 C.F.R. § 4.97, DC 6602. Thus, the Court is left to guess why the Board determined that the standard for determining aggravation involved anabi"
grade the veteran's asthma as mild, moderate, severe, etc."(R. at 9), and that
the aggravation of asthma, as opposed to its diagnosis, requires special medical knowledge. See id. Thus, the Board failed to provide an adequate statement of reasons or bases for its decision. See 38 U.S.C. § 7104(d)(1); Allday v. Brown, 7 Vet.App. 517, 527 (1995); Gilbert, 1 Vet.App. at 57. On remand, the Board is directed to determine whether the appellant's family members' lay evidence that describe readily observable symptomatology is competent to be material evidence of the aggravation of asthma under current caselaw, and provide an adequate statement of reasons or bases for its decision to facilitate possible review in this Court. See, e.g., Davidson , Jandreau, and Buchanan, all supra; see also id.
The appellant is free to submit additional evidence and raise his
arguments to the Board on remand; and the Board is required to consider them as it provides expeditious treatment of this matter. See 38 U.S.C. § 7112; see also Kay v. Principi, 16 Vet.App. 529, 534 (2002); Kutscherousky v. West, 12 Vet.App. 369, 372 (1999) (per curiam order).

III. CONCLUSION
After consideration of the appellant's and the Secretary's briefs, and a
review of the record,
the Board's August 27, 2008, decision is VACATED and the matter REMANDED
for proceedings
consistent with this opinion.
DATED: October 27, 2010
Copies to:
Theodore C. Jarvi, Esq.
General Counsel (027)
9

Entitlement to Referral for Consideration of an Extraschedular Rating

Entitlement to Referral for Consideration of an Extraschedular Rating

Although this is a single judge decision it put forth very nicely the three-step inquiry that the VA must undertake when considering an extraschedular rating

From the case below:

"The Court notes that the Board's analysis of whether Mr. Cooper was entitled to referral for consideration of an extraschedular rating (see R. at 15) appears to conflate the first and second steps of that analysis set forth by this Court in Thun v. Peake. 22 Vet.App. 111, 115-16 (2008). Thun holds that the determination of whether a claimant is entitled to an extraschedular rating is a three-step inquiry: First, the Board must determine whether the "evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected
disability are inadequate;" second, if so, the adjudicator must "determine whether the claimant's exceptional disability
picture exhibits other related factors," such as marked interference with employment or frequent periods of hospitalization; third, if the first two steps have been satisfied, the adjudicator must refer the claim to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for a determination of whether an extraschedular rating is warranted. However, Mr. Cooper, who is represented by counsel, asserts only that the question of referral for
extraschedular consideration is inextricably intertwined with the question of entitlement to a total disability based on individual unemployability; therefore, the Court will not further address
the Board's analysis of extraschedular consideration.

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

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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 07-2862
LORENZO D. COOPER, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before HAGEL, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
HAGEL, Judge: Lorenzo D. Cooper appeals through counsel a June 1, 2007,
Board of
Veterans' Appeals (Board) decision granting entitlement to an increased
disability rating of 60% for
dermatophytosis1
after August 30, 2002, but denying an increased rating prior to that date,
and
finding that new and material evidence had not been submitted to reopen a
previously disallowed
claim for a left ankle disorder. Record (R.) at 1-15. The Board remanded
the question of entitlement
to a total disability rating based on individual unemployability for
further development, including
a medical examination, and that matter is not before the Court at this
time. See 38 U.S.C. § 7266
(stating that the Court reviews only final decisions of the Board); Howard
v. Gober, 220 F.3d 1341,
1344 (Fed. Cir. 2000) (Board remand does not constitute a final decision
that may be appealed). In
his brief, Mr. Cooper argues only that the Board erred in not remanding
the question of entitlement
to an extraschedular rating, which he contends is inextricably intertwined
with the question of
entitlement to a total disability rating based on individual
unemployability. Accordingly, the Court
Dermatophytosis is "any superficial fungal infection caused by a
dermatophyte and involving the stratum
corneum of the skin, hair, and nails; this includes onychomycosis and
various forms of Previous DocumenttineaNext Hit." DORLAND'S ILLUSTRATED
MEDICAL DICTIONARY 505 (31st ed. 2007) [hereinafter DORLAND'S].
Onychomycosis is "Previous HittineaNext Hit involving the nails, often
from spread of Previous HittineaNext Hit Previous HitpedisNext Hit or Previous HittineaNext Document manuum, but occasionally from
infection with bacteria or other fungi." Id. at 1342,
1955-56.
1


deems all other arguments abandoned. See Grivois v. Brown, 6 Vet.App. 136,
138 (1994) (holding
that issues or claims not argued on appeal are considered abandoned). The
Court has jurisdiction
pursuant to 38 U.S.C. §§ 7252(a) and 7266(a) to review the June 2007
Board decision, and a single
judge may conduct that review. See Frankel v. Derwinski, 1 Vet.App. 23, 25-
26 (1990). Because
the Board's decision is not clearly erroneous, the Court will affirm June
1, 2007, Board decision.
I. FACTS
Mr. Cooper served on active duty in the U.S. Navy from June 1981 to June
1985. In March
1987, a VA regional office granted service connection for dermatophytosis
and awarded a
noncompensable disability rating. Mr. Cooper did not appeal that decision
and it became final.
In September 1994, Mr. Cooper requested that his claim for a skin
condition be reopened
because he felt that dermatophytosis was "not trulyrepresentative"
ofthecondition he suffered from.
R. at 252. He asserted that he suffered from "hypersensitivity to
chemicals commonly used in
aviation," and reported that he was unable to work around chemicals and
that exposure to chemicals
aggravated his condition. Id. In March 1995, after undergoing a VA
examination, Mr. Cooper's
request for an increased disability rating was denied by the regional
office. In September1996, a
hearing officer increased the disability rating for Mr. Cooper's skin
condition to 10%.
At a November 1997 regional office hearing, Mr. Cooper testified that he
had begun
receiving Social Security benefits in August of that year.
VA obtained Social Security
Administration records reflecting that Mr. Cooper became eligible for
disability benefits in May
1993 as a result of "chronic physical disorders of the skin" as well as "
chronic mental disorders
diagnosed as depression, and anxiety[-]related and personality disorders,
which are considered to be
'severe'." R. at 559.
In a January 1998 hearing officer decision, VA increased Mr. Cooper's
disability rating for
his "service[-]connected skin condition" to 30%, effective September 28,
1994, the date of his claim
for an increased disabilityrating. R. at 530-32. Mr. Cooper appealed that
decision, arguing that both
the disability rating and effective date assigned were incorrect and
seeking a 100% disability rating
effective December 1986, the date of his initial claim for benefits for a
skin condition. In November
2


1999, the regional office continued the 30% disability rating assigned
for Mr. Cooper's skin
condition. Mr. Cooper appealed that decision.
In March 1999, Mr. Cooper asserted entitlement to a total disability
rating based on
individual unemployability, stating that he had worked less than two years
out of the prior 14 years
and that he had last worked full-time in November 1987. In an April 1999
decision, the regional
office determined that Mr. Cooper was not entitled to a total disability
rating based on individual
unemployability. In November1999,Mr.
Coopersubmittedadditionalevidenceofunemployability,
which VA construed as a Notice of Disagreement with the regional office
decision.
In June 2001, after denying entitlement to an earlier effective date for
Mr. Cooper's skin
condition, the Board remanded the question of an increased disability
rating for that condition for
a new medical examination. The Board also remanded the question of
entitlement to a total
disability rating based on individual unemployability for the regional
office to issue a Statement of
the Case.
After several years of additional development, in June 2007 the Board
issued the decision
on appeal denying entitlement to an increased disability rating for a skin
condition prior to August
30, 2002; granting an increased disabilityrating of 60% for that condition
after August 30, 2002; and
remanding the question of entitlement to a total disability rating based
on individual
unemployability. Pertinent to the issue on appeal, after reviewing the
relevant criteria under former
and current rating schedules for skin disorders and determining that Mr.
Cooper was entitled to a
60% disability rating for his skin condition as of August 30, 2002 (the
effective date of the new
criteria), the Board turned to the question of consideration of an
extraschedular rating. The Board
determined that "the schedular evaluation in this case is not inadequate"
and that "[t]here is no
evidence of an exceptional disability picture as [Mr. Cooper] has not
required hospitalization due
to dermatophytosis." R. at 15. The Board therefore found that the regional
office "did not err by
failing to consider or failing to document its consideration" of
entitlement to an extraschedular
rating. Id. Regarding entitlement to a total disability rating based on
individual unemployability,
the Board determined that there was no medical opinion of record
documenting the effect of Mr.
Cooper's service-connected disabilities on his abilityto work, and the
Board thereforeremanded that
3


matter to the regional office with instructions to provide a medical
examination and readjudicate the
matter.
On appeal, Mr. Cooper argues only that the Board erred in finding that
referral for
extraschedular consideration was not warranted because that issue is
inextricably intertwined with
the question of entitlement to a total disability rating based on
individual unemployability.
Specifically, he contends that "[t]he issue of the impact of [his] service-
connected disabilities on his
employability for the purposes of adjudicating his [entitlement to a total
disability rating based on
individual unemployability] is essentially the same issue as whether those
disabilities markedly
interfere with his employment under [38 C.F.R.] § 3.321(b)(1)."2
Appellant's Br. at 7.
In response, the Secretary argues that Mr. Cooper's argument has been
directly addressed by
this Court in Gurley v. Nicholson, 20 Vet.App. 573, 575-76 (2007), which
held that remand of the
question of entitlement to a total disability rating based on individual
unemployability does not
render the adjudication of an increased rating claim by the Board or this
Court meaningless.
Therefore, the Secretary contends, Mr. Cooper's argument is without merit.
II. ANALYSIS
Mr. Cooper's only assertion of error, that the Board should have remanded
the question of
whetherextraschedularconsideration was warranted alongwith thequestion of
entitlement to a total
disability rating based on individual unemployability, has been directly
addressed by the Court. In
Kellar v. Brown, the Court held that "the effect of a service-connected
disability appears to be
2
That regulation provides:
Ratings shall be based as far as practicable, upon the average impairments
of earning capacity with
the additional proviso that the Secretary shall from time to time readjust
this schedule of ratings in
accordance with experience. To accord justice, therefore, to the
exceptional case where the schedular
evaluations are found to be inadequate, the Under Secretary for Benefits
or the Director,
Compensation and Pension Service, upon field station submission, is
authorized to approve on the
basis of the criteria set forth in this paragraph an extra-schedular
evaluation commensurate with the
average earning capacity impairment due exclusively to the service-
connected disability or disabilities.
The governing norm in these exceptional cases is: A finding that the case
presents such an exceptional
or unusual disability picture with such related factors as marked
interference with employment or
frequent periods of hospitalization as to render impractical the
application of the regular schedular
standards.
38 C.F.R. § 3.321(b)(1) (2008).
4


measured differentlyfor purposes of extraschedular consideration under 38
C.F.R. § 3.321(b)(1) . . .
and for purposes of [entitlement to a total disability rating based on
individual unemployability]
under 38 C.F.R. § 4.16." 6 Vet.App. 157, 162 (1994). That is,
extraschedular consideration for
disability rating purposes is warranted where there is "an exceptional or
unusual disability picture,
with such related factors as marked interference with employment or
frequent hospitalization,"while
extraschedular consideration for a total disability rating based on
individual unemployability is
warranted where a veteran is unemployable by reason of service-connected
disabilities that do not
meet certain percentage requirements and is "unable to secure and follow a
substantially gainful
occupation by reason" of those such service-connected disabilities. 38 C.F.
R. § 3.321(b)(1)
(emphasis added); 38 C.F.R. § 4.16(b) (2008). Consequently, the Court
found, the question of
entitlement to extraschedular consideration on appeal to the Court was not
inextricably intertwined
with the question of entitlement to a total disability rating based on
individual unemployability
remanded by the Board. Id.; see also Holland v. Brown, 6 Vet.App. 443, 446-
47 (1994). Because
Kellar is directly on point, the Court will affirm the Board's June 2007
decision.3
III. CONCLUSION
Upon consideration of the foregoing, that portion of the June 1, 2007,
Board decision
regarding a claim for an increased disability rating for a skin condition
is AFFIRMED.
DATED: June 1, 2009


The Court notes that the Board's analysis of whether Mr. Cooper was
entitled to referral for consideration of an extraschedular rating (see R. at 15) appears to conflate the first and second steps of that analysis set forth by this Court in Thun v. Peake. 22 Vet.App. 111, 115-16 (2008). Thun holds that the determination of whether a claimant is entitled to an extraschedular rating is a three-step inquiry: First, the Board must determine whether the "evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate;" second, if so, the adjudicator must "determine whether the claimant's exceptional disability picture exhibits other related factors," such as marked interference with employment or frequent periods of hospitalization; third, if the first two steps have been satisfied, the adjudicator must refer the claim to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for a determination of whether an extraschedular rating is warranted. However, Mr. Cooper, who is represented by counsel, asserts only that the question of referral for extraschedular consideration is inextricably intertwined with the question of entitlement to a total disability based on individual unemployability; therefore, the Court will not further address the Board's analysis of extraschedular consideration.
3
5


Copies to:
Allan T. Fenley, Esq.
VA General Counsel (027)
6

New Lung Airway Imaging Method Developed

Full Article at: Radiologists Develop Asthma Imaging Method

January 1, 2009 — Radiologists developed a new method for viewing the lungs of asthma sufferers. The method uses a polarized helium-3 gas--making it visible during an MRI. The patient inhales the helium-3 and undergoes an MRI, where doctors can see how far the atoms in the gas can travel in the lungs. This gives an image of what airways are blocked and what parts of the lungs ventilate. The black areas of the image indicate portions of the lung where air does not reach--areas where the helium-3 atoms could not travel."

"Asthma makes breathing difficult for more than 22 million Americans. There's no cure, but new research is looking at asthma patients in a whole new way."

"We get a better feel for what's going on within the lungs, something that is not really possible with other techniques at this point," said Eduard de Lange, M.D., a radiologist at the University of Virginia in Charlottesville, Va.

The new method combines MRI scans with a harmless gas called helium-3. It's not the helium found in balloons, but a special gas that is visible inside the lungs when inhaled during an MRI scan.

"We can see what parts of the lungs are blocked, [which] airways are blocked and which parts of the lungs ventilate," Dr. de Lange said.

The images show in the healthy lung how helium-3 atoms move and completely fill the lungs. In asthma patients, areas of the lungs are blocked so the atoms may not fill the lung at all.

Doctors hope the technique will help develop new ways to prevent, treat and cure asthma. Thanks to volunteers like Taylor, others may soon breathe easier."

VA Posting Online Clinical Performance Data

Full Article at: VA bares all
By Joseph Conn
Posted: November 22, 2010 - 11:15 am ET
Tags:

The Veterans Affairs Department launched a program of clinical performance transparency, exposing its own internal clinical quality dashboard to public view.

The public exposure of the two Web-based dashboards, the Linking Knowledge & Systems, or LinKS, which has been in internal use at the VA for about two years, and the recently developed Aspire system, are part of a pledge made by VA Secretary Eric Shinseki when he took office in 2009 to make the VA “as transparent as possible,” said Robert Petzel, the VA's undersecretary for health.

Petzel heads the Veterans Health Administration, the department's healthcare arm, which operates 153 VA hospitals and more than 700 clinics.

The goal, Petzel said, is to "create an atmosphere of trust" with veterans, members of Congress and others with interest in VA healthcare operations. "Being transparent about your performance data is one of the ways you build trust with those various groups."

Both sites are available to the general public at hospitalcompare.va.gov.

LinKS presents outcome measures in near real time for acute care, ICU, outpatient, safety and annual measures at national, regional and local hospital levels for outcomes and process measures. It gives patients and personnel at each of the medical centers an opportunity to look at their own performance as well as the performance of every other medical center in the VA system, Petzel said.

Aspire uses color schemes, directional arrows and drop boxes for detailed explanatory materials about the measures being collected and reported. It also breaks down the data for comparison at the national level, across the VA's 21 regions, and by 137 healthcare "systems," which in VA parlance are individual hospitals or groups of several hospitals with a shared leadership group.

Each system can be measured against a set of aspirational goals, which in turn are "benchmarked against the absolute best in the country in the private sector," said William Duncan, associate deputy undersecretary for health quality and safety, who oversees the Aspire project.

Data from those community-based outpatient clinics associated with a medical center are rolled up into that medical center in the reports.

The Aspire systems uses colors to provide veterans and other nonclinicians an easy-to-comprehend picture of where each hospital is in relation to the best-in-the-nation benchmarks and uses arrows to indicate whether each metric is trending up or down.

The goals afford the public, clinicians and VA leadership with "a high-level executive look at where we want to be in three to five years," Duncan said. "Our secretary and our undersecretary wanted both of those to be available publicly. So, we're hanging it out there."

"We'll be tracking each organization's progress toward these goals, and when we find people who are stalled, we'll address that," he said. "The secretary will be looking at this and that tends to get a lot of attention."

Duncan said Aspire remains a work in progress. "One of my goals is to have videos, so when you click on the video, it will explain what the metrics mean," Duncan said. "There will be iterations in the future to make this much, much more user-friendly and understandable."

Aspire groups its outcomes and process measures under the six domains of the Institute of Medicine's Crossing the Quality Chasm report—patient safety, clinical effectiveness, efficiency, timeliness, patient centeredness and equitable care.

"We tried to get metrics for each of those domains," Duncan said. "We don't have the data populated for each of those metrics this year. We're expecting in the next quarter to have some of that additional data analyzed."

The VA considered as an alternative to building its own site expanding its participation in HHS' public reporting initiative, Hospital Compare, Duncan said. The VA joined Hospital Compare in March, but the source for it is Medicare data and "we've never billed Medicare," Duncan said."

Phoenix-VA New National Progressive Tinnitus Management Program

While the idea of a National Center is welcomed, we suggest that every veteran read yesterdays post about the pinpointing of the cause of tinnitus to the brain and not the inner ear or hair cells as put forth in this article.

Full Article at: National clinic to assist vets coping with tinnitus
Hearing disorder one of biggest service-linked disabilities

November 19, 2010

BY PHILIP HALDIMAN

PHOENIX, Ariz. -- Tinnitus, commonly known as noise or ringing in the ears, is a major health issue for soldiers returning from combat in Afghanistan and Iraq, Veterans Administration hospital official say.

The condition was the most-claimed service-connected disability for veterans receiving compensation in fiscal year 2009-10, according to the Veterans Affairs Health Care System.

The disorder can be the result of extreme noise exposure, such as that experienced by combat veterans, and is associated with hearing loss, also is a common complaint from veterans.

Because of increased patient demand, the audiology clinic at the Phoenix veterans hospital extended its daily hours from five to six days open each week. It also added staff.

In January, the hospital will launch a national tinnitus program called Progressive Tinnitus Management to help veterans with the disorder.

Audiologists and mental-health professionals will work together to help veterans manage their reaction to tinnitus.

The VA has been developing the program for five years using research literature, textbooks and clinical experience.

Tinnitus happens when hairs in the inner ear move in relation to entering sound waves. Then an electrical signal is sent from the ear to the brain.

Dr. Cathy Kurth, an audiology specialist at the Audiology and Hearing Aid Center in Scottsdale, said the brain interprets these signals as sound. If the hairs inside the inner ear are bent or broken, this could cause tinnitus. It involves the sensation of hearing sound when no external sound is present.

Kurth said there isn't an effective surgery for tinnitus, so management is the best way to treat the condition. This can be done through aural rehabilitation and hearing aids."