Friday, July 2, 2010

VA Employee Came Foward Last August About Improper Sterilization of Dental Instruments

Full Article at: Vets warned of safety lapse returned to John Cochran for tests

"Earlene Johnson, 53, of south St. Louis, came forward to say she had warned management at John Cochran of unsanitary cleaning practices she saw while working there. Johnson said she has 30 years of experience with sterilized instruments.

In an August 2009 e-mail to hospital supervisors, she outlined suggestions that included a "more effective" way of sterilizing instruments.

"There were procedures that needed to be in place," said Johnson, who said she spent nearly a year at the hospital assembling trays of instruments that had been through the cleaning process.

"The instruments were coming out bloody — not all of them, but some of them."

She said she was fired from John Cochran for "unprofessional conduct" and is legally contesting the dismissal.

"I tried to make improvements, but I got pushed away," she said.

Marcena Gunter, a Veteran Affairs spokeswoman in St. Louis, declined to respond to Johnson's remarks until she researched the matter further."

Board Can't Consider New Legal theories, Hickson v. Shinseki, No. 07-1311

Judge Lance's Dissent, Bryant v. Shinseki, No. 08-4080
the Court has recently held that the Secretary's regulations prevent the Board from considering new legal theories in the first instance. Hickson v. Shinseki, 23 Vet.App. 394, 400-03 (2010). Thus, even if the Board later determines that the RO decision overlooked an issue, the claimant must receive notice of the issue and the opportunity to have it remanded to the RO. Id.

===============================
=======================================
B. One Review on Appeal
Under 38 U.S.C. § 7104(a), all decisions bythe Secretary, including
claims to reopen, "shall
be subject to one review on appeal to the Secretary." 38 U.S.C. § 7104(a) ("All questions in a matter which . . . is subject to decision by the Secretary shall be subject to one review on appeal to the Secretary."); 38 C.F.R. § 20.101(a) (2009). By statute, final decisions on such appeals are made by the Board. 38 U.S.C. § 7104. In providing a thorough discussion of the administrative appellate process within VA, the Federal Circuit, in DAV, observed that the Board is "
primarily an appellate tribunal" within the VA appellate system, and as such, under section 7104
acts on behalf of the Secretary in making the ultimate decision on claims and provides "one
review on appeal to the Secretary" of a question subject to decision by the Secretary under 38 U.S.
C. § 511. 38 U.S.C. § 7104. Thus, the Federal Circuit held that a proposed amendment to VA regulation 38 C.F.R. § 19.9 that would allow the Board to consider additional evidence without having to remand the case to the RO for initial consideration and without having to obtain the appellant's waiver was invalid
6


and contrary to the section 7104 requirement that preserves and affords " one review on appeal." DAV, 327 F.3d at 1346.
1. Board's Consideration of New Evidence Not Considered by the RO
When the Board reopens a claim after the RO has denied reopening that same claim, the matter generally must be returned to the RO for consideration of the merits. This is because the RO should, in the first instance, consider that new evidence and decide the matter so as to preserve for that claimant the one review on appeal as provided by section 7104. The Board, however, may proceed to decide the merits of the claim if the Board first secures a
waiver from a claimant or the Board determines that the claimant would not be prejudiced by proceeding to a decision on the merits. Bernard, 4 Vet.App. at 390; see Barnett v. Brown, 83 F.3d 1380, 1384 (Fed. Cir. 1996) (stating that, in new and material evidence cases, the Board's jurisdiction does not vary "according to how the [RO] ruled").
=========================================

Mr. Hickson fails to assert that the Board erred in its determination that he was provided an adequate VA psychiatric examination in March 2004, which considered his contentions, nor does he suggest any errors in that examination. See Hilkert, supra.
========================================
38 C.F.R. § 20.903(b) ("No notice is required under this paragraph if . . . the appellant or the appellant's representative has advanced or otherwise argued the applicability of the law in question.").
=================================================
§ 20.903 states:
If . . . the Board intends to consider law not already considered by the [AOJ] and such consideration could result in denial of the appeal, the Board will notify the appellant and his or her representative, if any, of its intent to do so and that
such consideration in the first instance by the Board could result in denial of the appeal.
The notice from the Board will contain a copy or summary of the law to be considered. A
period of 60 days from the date the Board furnishes the notice will be allowed for
response, which may include the submission of relevant evidence or argument. The date the Board furnishes the notice will be presumed to be the same as the date of the letter that accompanies the notice for purposes of determining whether a response
was timely filed. No notice is required under this paragraph if the Board intends to grant the benefit being sought or if the appellant or the appellant's representative has advanced or otherwise argued the applicability of the law in question.
38 C.F.R. § 20.903(b) (2009).4
============================================


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


UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 07-1311
ARTHUR HICKSON, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
On Appeal from the Board of Veterans' Appeals
(Argued September 29, 2009
Decided March 31, 2010 )
Kenneth M. Carpenter, of Topeka, Kansas, for the appellant.
Gayle Strommen, with whom Will A. Gunn, General Counsel; and R. Randall Campbell, Assistant General Counsel, all of Washington, D.C., were on the brief for the appellee.
Before GREENE, Chief Judge, KASOLD and DAVIS, Judges.
GREENE, Chief Judge: Veteran Arthur Hickson appeals, through counsel, a February 5, 2007, Board of Veterans' Appeals (Board) decision that determined there was new and material evidence to reopen his previously denied Department of Veterans Affairs (VA) service-connection claim for an acquired psychiatric disorder and denied the claim on the merits. Record (R.) at 1-29.
Because prior to the Board decision a VA regional office (RO) de facto reopened Mr. Hickson's claim and denied it on the merits, and because Mr. Hickson has otherwise failed to demonstrate that the Board contravened 38 C.F.R. § 20.903(b), which provides that the
Board will notifyan appellant of its intent to consider law not already considered by the agency of original jurisdiction [AOJ] where such consideration could result in denial of the appeal, the
February2007 Board decision will be affirmed.

I. BACKGROUND


Mr. Hickson served in the U.S. Air Force from July 1968 to February 1969.
In May 1981, he claimed VA service-connection benefits for a nervous condition, which
was construed as a claim for benefits for a psychiatric disorder. The RO denied the claim in June
1981. Mr. Previous HitHicksonNext Hit appealed to the Board, and in September 1982, the Board denied his claim after finding that his service medical records showed that he had no evidence of a chronic psychiatric abnormality such as a psychosis or neurosis. The Board also found that his only postservice diagnosis was that of a personality disorder, which by VA regulation was a developmental defect and not a disability for which service connection could be granted. See 38 C.F.R. § 3.303(c) (2009) (A personality disorder is not considered a disease or injury for VA-benefits purposes). That decision became final.
In February 1999, Mr. Previous HitHicksonNext Hit sought to reopen his disallowed claim. In
August 1999, the RO determined that new and material evidence had not been submitted to
reopen that claim. R. at 423-28. Although not required to by law,1
Mr. Previous HitHicksonNext Hit was provided a March 2004 VA medical
examination and the claim otherwise was developed. R. at 884. In November
2004, the RO decided that the evidence submitted by Mr. Previous HitHicksonNext Hit and developed after the June 1981 denial of his claim did not warrant reopening his claim because none of it showed that Mr. Hickson had incurred a psychiatric disorder in service or developed a psychosis to a compensable degree within one year of his discharge from service. R. at 910. Mr. Hickson appealed. The matter was remanded by the Board in April 2006. R. at 962. In June 2006, Mr. Previous HitHicksonNext Hit submitted to the RO three affidavits one
signed by him, by his mother, and by his sister, that asserted that he had
difficulties during and immediately following his military service. Along with submitting the
affidavits, Mr. Hickson's counsel, who has represented Mr. Previous HitHicksonNext Hit since February 2001, requested remand for the RO to consider the affidavits and schedule another medical examination. R. at 935. In a July 2006 Supplemental Statement of the Case (SSOC), the RO found that these statements were contradicted by the medical evidence of record, that the affidavits were not credible, that there was no basis for providing Mr. Hickson with another VA medical examination, and that new and material evidence
1
The Court notes that in 1999, the Secretary had no duty to assist the
claimant until the claim was well grounded. See Epps v. Gober, 126 F.3d 1464, 1469 (Fed. Cir. 1997).
Although the Veterans Claims Assistance Act of 2000 eliminated the well-grounded claim requirement, see Bernklau v. Principi, 291 F.3d 795, 803 (Fed. Cir. 2002), the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) subsequently held that the Secretary does not have a duty to assist the claimant by providing a medical examination until the claim is reopened, see Paralyzed Veterans of Am. v. Sec'y of Veterans Affairs, 345 F.3d 1334, 1342-43 (Fed. Cir. 2003).
2


had not been submitted to reopen Mr. Hickson's previouslydisallowed claim
for service connection.
During his subsequent appeal to the Board, in September 2006, Mr. Previous HitHicksonNext Hit,
through the same counsel, submitted the following statement to the RO: "The veteran
waives any further time period and requests that the claims file be immediately transferred to the [
Board] for de novo review." R. at 996. He also attached additional arguments in support of
the appeal, including an argument that, pursuant to Shedden v. Principi, 381 F.3d 1163 (Fed. Cir.
2004),2
he was entitled to the presumption of service connection under 38 U.S.C. §§ 105(a) and 1112
and therefore he was entitled to a VA medical examination to demonstrate that his current
disability was related to the symptoms described in the affidavits he submitted in June 2006. R. at 1000.
In January 2007, Mr. Hickson, through that same counsel, who continues as his counsel before
the Court, submitted to the Board a statement that said: "I request that the Board proceed with review of [Mr. Hickson's] appeal based on all the evidence of record, and issue a favorable decision
granting benefits as soon as possible." R. at 1009.
On appeal, the Board determined that Mr. Hickson's evidence, the three June 2006 affidavits,
were new and material and reopened his claim. Upon reviewing the matter,
the Board observed:
The veteran himself and his counsel have not contended that de novo review
by the
RO is necessary in this case. Indeed, in his September 7, 2006[,]
submission to the
Board the veteran's attorneyurged the Board to grant the claim based upon
an alleged
"presumption of service connection" (emphasis as in original letter). It
is clear
from argument submitted bythe attorneythat the veteran expects the Board
to render
a decision on the merits. A September 7, 2006[,] letter from the veteran's
attorney
stated "The veteran . . . requests that the claims file be transferred to
the Board of
Veterans' Appeals for de novo review (emphasis added by the Board).
R. at 15-16. The Board considered Mr. Hickson's September 2006 statement
through counsel to be
an apparent waiver of consideration bythe RO of the merits of the claim.
The Board then found that
In Shedden, the Federal Circuit held that the term "service-connected" as
defined in 38 U.S.C. § 101(16) is
synonymous with the term "incurred in the line of duty," and therefore, "
that section 105(a) creates a presumption of
service connection, . . . that a disability first manifested or aggravated
during active duty is deemed to be service
connected, unless such injury or disease was a result of the person[']s
own willful misconduct or abuse of alcohol or
drugs." 381 F.3d at 1166. The presumption to which the Federal Circuit
refers is a presumption that an injury or disease
that was incurred in the line of duty constitutes an in-service incurrence
of an injury or disease for purposes of
establishing the second service-connection element (in-service incurrence
of an injury or disease). Id.; see Conley v.
Peake, 543 F.3d 1301 (Fed. Cir. 2008) (holding that the section 105(a)
presumption only satisfies the in-service
incurrence or aggravation of a disease or injury element for service
connection).
2
3


because (1) Mr. Hickson had been provided adequate notice concerning what
was required to substantiate his claim and an opportunity for a hearing, (2) there was no
indication that there were any outstanding records of medical treatment, and (3) Mr. Hickson had been provided an adequate medical examination, he had "presented allavailableexistingevidenceand
argument as to themerits of the claim, . . . [and he would] not be prejudiced by [the Board's]
consideration of this issue on its merits." R. at 16. With these findings, the Board determined that it would not be prejudicial to Mr. Hickson to proceed to adjudicate the merits of his reopened claim without first remanding the matter to the RO for initial consideration.
After adjudicating the claim, the Board found that Mr. Hickson's psychiatric disorder was not
service connected and denied the claim. The Board determined that Mr.
Hickson's previously
considered assertions of psychiatric symptoms within the year following
his service were not credible and thus did not establish that he had a psychosis in or
resulting from service. R. 20-26.
Consequently, the Board found that the additional affidavits by Mr.
Hickson's mother and sister, based on Mr. Hickson's own assertions that lacked credibility, were
incompetent and insufficient to establish in-service incurrence of a psychiatric disability, thereby
failing to demonstrate a medical nexus between Mr. Hickson's service and his currently diagnosed condition.
This appeal followed.
II. ARGUMENTS
Initially, Mr. Previous HitHicksonNext Hit argued that the Board lacked subject-matter
jurisdiction to adjudicate
his reopened service-connection claim on the merits. He maintained that
this Court's decision in Bernard v. Brown, 4 Vet.App. 384 (1993), was inconsistent with, and
consequently overruled by, Federal Circuit decisionin DisabledAm. Veterans (DAV)v. Sec’y of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). On August 24, 2009, Mr. Previous HitHicksonNext Hit moved to withdraw this original argument that he presented in his initial brief regarding the status of Bernard based on the Federal Circuit's decision in Sims v. Shinseki, 578 F.3d 1332 (Fed. Cir. 2009), and sought to rely solely on the supplemental argument he submitted in response to our March 2009 order for supplemental briefing
4


concerning 38 C.F.R. § 20.903.3
At oral argument he conceded that Sims addressed the validity of Bernard and that the Board has jurisdiction to reopen and then adjudicate a claim on the merits.
Acknowledging that this case does not present a jurisdictional issue, Mr. Hickson argues that
the Board nevertheless erred in proceeding to consider the merits of his claim when the RO had not done so. In support of his argument, he contends that, without giving him notice as required by
38 C.F.R. § 20.903, the Board considered law not already considered by the RO, and, alternatively,
that the Board should not have applied the law to the merits of his claim when the RO had not yet
done so.
The Secretary contends that, because the Board did not apply law not considered by the RO
and because Mr. Hickson specifically argued the merits of his claim before the Board, there was no
violation of § 20.903. The Secretaryfurther maintained that the sole purpose of § 20.903 is to ensure
that a claimant is not prejudiced when the Board intends to consider law that was not already
considered by the RO and that, because the Board specifically considered
and thoroughly analyzed any possible prejudice to Mr. Hickson's procedural rights, the purpose of §
20.903 was satisfied.
III. LAW AND ANALYSIS
A. Reopening a Claim
A claim that has been finally denied can be reopened if new and material
evidence is presented or secured. 38 U.S.C. § 5108. Reopening a claim will result in
a new decision on the matter. Id. "New and material evidence" is defined as the following:
New evidence means existing evidence not previously submitted to agency
decisionmakers. 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. 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.
3
In March 2009, this appeal was stayed pending the resolution of Treece v.
Shinseki, No. 07-0388, a case in
which this Court was considering the application of 38 C.F.R. § 20.903.
Treece , however, was resolved by joint motion for remand. Consequently, the parties in this case were ordered to address the application of § 20.903 to the facts of their case.
5


38 C.F.R. § 3.156(a) (2009); see Hodge v. West, 155 F.3d 1356, 1359 (Fed.
Cir. 1998). When deciding materiality, the Secretary "is precluded from considering the
credibility of the newly submitted evidence; strictly for the purpose of determining whether new
and material evidence has been presented, the Board must presume that the newly submitted evidence is credible." Duran v. Brown, 7 Vet.App. 216, 220 (1994) (citing Justus v. Principi, 3 Vet.App. 510, 513 (1992)).
However, the Secretary is not required "to consider the patently incredible to be credible." Id.; see
King v. Brown, 5 Vet.App. 19, 21 (1993) (citing Espiritu v. Derwinski, 2 Vet.App. 492 (1992))
(noting that Board must not assume credibility of evidence "when the evidentiary assertion is
inherently incredible or when the fact asserted is beyond the competence of the person making the
assertion"). Moreover, unless the claim is reopened, the Secretary is not required to provide a
medical examination or opinion. See Paralyzed Veterans of Am. v. Sec’y
of Veterans Affairs, 345 F.3d 1334, 1342-43 (Fed. Cir. 2003). Additionally, the Board must
include in its decision a written statement of the reasons orbases for its findings and conclusions
on all material issues of fact and law presented on the record; that statement must be adequate to enable an appellant to understand the precise basis for the Board's decision, as well as to
facilitate informed review in this Court. See 38 U.S.C. § 7104(d)(1); Allday v. Brown, 7 Vet.App. 517, 527 (1995).
B. One Review on Appeal
Under 38 U.S.C. § 7104(a), all decisions bythe Secretary, including
claims to reopen, "shall
be subject to one review on appeal to the Secretary." 38 U.S.C. § 7104(a
) ("All questions in a matter
which . . . is subject to decision by the Secretary shall be subject to
one review on appeal to the Secretary."); 38 C.F.R. § 20.101(a) (2009). By statute, final decisions
on such appeals are made by the Board. 38 U.S.C. § 7104. In providing a thorough discussion of the
administrative appellate process within VA, the Federal Circuit, in DAV, observed that the Board is "
primarily an appellate tribunal" within the VA appellate system, and as such, under section 7104
acts on behalf of the Secretary in making the ultimate decision on claims and provides "one
review on appeal to the Secretary" of a question subject to decision by the Secretary under 38 U.S.
C. § 511. 38 U.S.C. § 7104. Thus, the Federal Circuit held that a proposed amendment to VA
regulation 38 C.F.R. § 19.9 that would allow the Board to consider additional evidence without
having to remand the case to the RO for initial consideration and without having to obtain the
appellant's waiver was invalid
6


and contrary to the section 7104 requirement that preserves and affords " one review on appeal." DAV, 327 F.3d at 1346.
1. Board's Consideration of New Evidence Not Considered by the RO
When the Board reopens a claim after the RO has denied reopening that same
claim, the matter generally must be returned to the RO for consideration of the
merits. This is because the RO should, in the first instance, consider that new evidence and decide the matter so as to preserve for that claimant the one review on appeal as provided by section 7104. The Board, however, may proceed to decide the merits of the claim if the Board first secures a
waiver from a claimant or the Board determines that the claimant would not be prejudiced by proceeding to a decision on the merits. Bernard, 4 Vet.App. at 390; see Barnett v. Brown, 83 F.3d 1380, 1384 (Fed. Cir. 1996) (stating that, in new and material evidence cases, the Board's
jurisdiction does not vary "according to how the [RO] ruled").
2. Board's Consideration of Law Not Considered by the RO
After the Federal Circuit's decision in DAV, the Secretary revised § 19.9
as well as 38 C.F.R. § 20.903. See 68 Fed. Reg. 69,062 (Dec. 11, 2003); 69 Fed. Reg. 53,807 (
Sept. 4, 2004). Amended
§ 20.903 states:
If . . . the Board intends to consider law not already considered by the [AOJ] and such consideration could result in denial of the appeal, the Board will notify the appellant and his or her representative, if any, of its intent to do so and that such consideration in the first instance by the Board could result in denial of the appeal.
The notice from the Board will contain a copy or summary of the law to be considered. A
period of 60 days from the date the Board furnishes the notice will be allowed for
response, which may include the submission of relevant evidence or argument. The
date the Board furnishes the notice will be presumed to be the same as the date of
the letter that accompanies the notice for purposes of determining whether a response
was timely filed. No notice is required under this paragraph if the Board
intends to grant the benefit being sought or if the appellant or the appellant's
representative has advanced or otherwise argued the applicability of the law in question.
38 C.F.R. § 20.903(b) (2009).4
As previously noted, Mr. Hickson argues that the Board violated this regulation when it proceeded to decide his claim on the merits.
The amended § 20.903 took effect on October 4, 2004, was in effect at the time of Mr. Hickson's appeal to the Board, and remains unchanged.
4
7


The Secretary argues that this provision applies only to new statutes,
regulations, or caselaw that were not in effect at the time of the AOJ decision. Although the
Secretary may establish the meaning of a regulation by presenting independent authority for his
position or demonstrating that his position is an accepted interpretation and practice, see Martin v.
Occupational Safety and Health Review Comm'n, 499 U.S. 144, 151 (1991), he does not attempt to do so here.
Rather, he maintains that the plain language of the regulation necessitates that it must be
interpreted as only applying to law promulgated between the time of the AOJ decision and the Board
decision.
We review interpretations of VA regulations de novo. See38 U.S.C. § 7261 ( Court interprets statutory and regulatory provisions); Lane v. Principi, 339 F.3d 1331,1339 (
Fed. Cir. 2003) ("[I]nterpretation of a statute or regulation is a question of law
. . . ."); Butts v. Brown, 5 Vet.App. 532, 539 (1993) (en banc) (Court reviews "questions of law de novo without any deference to the Board's conclusions of law").
Litigation positions arenot entitled to judicial deference when they are merely counsel's "post hoc rationalizations" for agency action and are advanced for the first time on appeal. See Martin,
499 U.S. at 156. However, when" regulationsleavethepertinentinquiryunresolved, deference must
be afforded to the [Secretary's] interpretation as long as that
interpretation is not 'plainly erroneous or inconsistent with the regulations.'" Smith v. Nicholson, 451 F.3d 1344,1394 (Fed. Cir. 2006); see also Auer v. Robbins, 519 U.S. 452, 463 (1997). The Secretary, however, has not provided anything to the Court that demonstrates that this interpretation reflects VA's " fair and considered judgment on the matter in question." Id. at 462. Indeed, contrary to the Secretary's assertion, nothing in the plain language of the regulation, nor the documents published in conjunction with the notice and comment period after which the regulation was promulgated, supports the Secretary's narrow interpretation.
Furthermore, the language of the regulation itself contradicts such an interpretation. The regulation concerns situations where "the Board intends to consider law not already considered by the [AOJ]." 38 C.F.R. § 20.903(b) (emphasis added). The use of the phrase "not already considered" suggests that the law existed at the time the AOJ made its decision but was simply not considered. Accordingly, the Secretary's interpretation – that the Board could, in the first instance, and without giving notice to a claimant, consider applicable general law to deny a claim – amounts
8


to a rewrite of his regulation. He may wish to undertake such action, but
this is not the forum to do so. See Administrative Procedure Act, 5 U.S.C. § 553.

C. Application to Mr. Hickson's Case
Despite our conclusion that the Secretary's argument regarding a narrow
interpretation of § 20.903 is inconsistent with the plain wording of the regulation, Mr.
Hickson's argument that the Board considered law not already considered by the RO in violation of that regulation nevertheless is not supported by the record.
1. Law Not Already Considered by the RO Mr. Hickson argues that simply because the RO did not explicitly note a law in its decision, that law must not have been considered. We reject that argument. There is no requirement that the RO list every law it considered when rendering its decision. 38 U.S.C. § 5104(b) ("In any case where the Secretary denies a benefit sought, the notice required by subsection (a) shall also include (1) a statement of the reasons for the decision, and (2) a summary of the evidence considered by the Secretary."). Moreover, the RO is presumed to have considered all applicable law, absent some showing that it did not. See Jennings v. Mansfield, 509 F.3d 1362, 1367 (Fed. Cir. 2007) (holding that the Board can assume that the Secretary applied correct legal standards, absent clear evidence to the contrary); see also Dolan v. Brown, 9 Vet.App. 358, 362 (1996) ( concluding that VA has duty to consider any presumption that may be applicable to veteran's claim and, in absence of "clear evidence" to contrary, is presumed to have done so). Further, Mr. Hickson does not identify any law that we conclude the Board considered that had not been considered by the RO. See Hilkert v. West, 12 Vet.App. 145, 151 (1999) (en banc) (holding that appellant bears burden of demonstrating error on appeal).
Specifically, contrary to Mr. Hickson's assertion that the Board considered 38 U.S.C. §§ 1101, 1110, 1112, and 1113 and that the RO did not note these statutes as being considered, the RO explicitly noted them in its July 2006 SSOC. R. at 990. Similarly, contrary to Mr. Hickson's argument that the Board considered 38 C.F.R. §§ 3.303, 3.306, and 3.309, and the RO did not list these regulations as having been considered, the Board never cited 38 C.F.R. § 3.306, and the RO cited §§ 3.303, 3.309 in its SSOC. R. at 991. And, contrary to Mr. Hickson's assertion that the Board considered a list of cases that the RO did not, several of those cases were either (1) cited by
9


the RO in its SSOC, to wit: Suttmann v. Brown, 5 Vet.App. 127 (1993) (see R. at 980), Savage v. Gober, 10 Vet.App. 488 (1997) (see R. at 991), Gilbert v. Derwinski, 1 Vet. App. 49 (1990) (see R. at 992), Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997) (see R. at 992), or (2) submitted to the Board by Mr. Hickson's counsel, to wit, Cartright v. Derwinski, 2 Vet.App. 24 (1991) (see R. at 1014-15), and Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004) (see R. at 1015).
See 38 C.F.R. § 20.903(b) ("No notice is required under this paragraph if . . . the appellant or the appellant's representative has advanced or otherwise argued the applicability of the law in question.").
Mr. Hickson also lists a host of caselaw that he claims the Board cited
and relied upon that
was not considered by the RO. However, he fails to recognize that the
following legal principles
addressed in these cases were each addressed in the preparation of the SSOC, which is prepared before the matter is formally appealed to the Board, affirmatively evidencing consideration by the RO of the legal principles for which these cases stand. Compare R. at 984-93 (July 2006 SSOC) with Mayfield v. Nicholson, 20 Vet.App. 537 (2006) (the Secretary is not required to provide particularized notice regarding the evidence necessary to correct specific inadequacies in a claimant's file per 38 U.S.C. § 5103(a)); Locklear v. Nicholson, 20 Vet.App. 410,
416 (2006) (same); Alemany v. Brown, 9 Vet.App. 518, 519 (1996) (claimant must only
demonstrate that there is an approximate balance of positive and negative evidence in order to prevail); Winn v. Brown, 8 Vet.App. 510, 516 (1996) (personality disorders and mental retardation
are deemed to be congenital or developmental abnormalities and are not considered to be
disabilities for the purposes of service connection); Libertine v. Brown, 9 Vet.App. 521, 523 (1996) (
speculative, general, or inconclusivemedical opinions havelittleprobativevalue);Beausoleil v. Brown,
8Vet.App.459,463
(1996) (same); Cosman v. Principi, 3 Vet.App. 303, 305 (1992) (service
connection may be granted
for disability shown after service when the evidence showed it was
incurred in service); Espiritu v. Derwinski, 2 Vet.App. 492, 495 (1992) (laypersons are not
generally competent to opine on medical matters such as the date of onset of a claimed disability and the relationship of specific symptoms to a particular diagnosis); Gobber v. Derwinski, 2 Vet.App. 470, 472 (1992) (VA medical examinations are not required if there is already competent evidence in the file).
Similarly, Mr. Hickson contends that the Board relied upon other caselaw that had not been considered by the RO, to wit: Kowalski v. Nicholson, 19 Vet.App. 171, 179 (2005) (medical opinion
10


based on claimant's own statements may not be rejected out of hand); Wensch v. Principi, 15 Vet.App. 362, 367 (2001) (the Board may favor the opinion of one competent medical authority over another); LeShore v. Brown, 8 Vet.App. 406, 409 (1995) (evidence recorded by a medical examiner, unenhanced by any medical comment, does not constitute competent medical evidence); Owens v. Brown, 7 Vet.App. 429, 433 (1995) (cited for the same principle as that in Wensch, supra); Swann v. Brown, 5 Vet.App. 229, 233 (1993) (a medical opinion based upon an unsubstantiated account is of no probative value, and does not serve to verify the
occurrences described); Obert v. Brown, 5 Vet.App. 30 (1993) (adjudicator may not substitute its opinion for medical opinions in the record); Guerrieri v. Brown, 4 Vet.App. 467, 470-71 (1993) (probative value of medical opinion comes from medical expert's personal examination of the patient, the physician’s knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches). However, Mr. Hickson fails to observe that the legal principles addressed in these cases concern the weight and probative value to be assigned evidence, and that the RO, as discussed below, actually developed the claim and weighed the evidence, again evidencing its consideration of the law.
Additionally, Mr. Hickson asserts that the Board cited and relied upon Meyer v. Brown, 9 Vet.App. 425 (1996) (Board required to analyze evidence and provide reasons or bases for its decision); Eddy v. Brown, 9 Vet.App. 52 (1996) (same); Gabrielson v. Brown, 7 Vet.App. 36 (1994) (same); and Bernard, 4 Vet.App. at 394 (Board may, in some instances, decide matters that were not previously decided by the RO), and that the RO did not cite to them. But again, Mr. Hickson does not recognize that the legal principles addressed in these cases are that the Board is obligated under 38 U.S.C. § 7104(d) to provide an adequate statement of reasons or bases, and that the Board may, in some instances, decide matters that were not previously decided by the RO. It is self-evident that
§ 20.903(b) would not apply to situations in which the Board considers quintessential law applicable
to its own adjudication, and irrelevant to the RO's decision. To read § 20.903(b) as precluding
consideration by the Board of law applicable to its adjudication and not applicable to the RO's
adjudication would mean that the Secretary would have to give 60 days notice to the claimant in
every appeal that the Board would perform its duty in accordance with applicable law, unless the
Board granted the claim in full or the appellant waived such notice. If the Secretary desired this
11


result, he could have written his regulation to require such notice; but, he did not, and we see no
basis for requiring such an outcome.
In sum, Mr. Hickson's argument based on his litany of statutes, regulations, and case law that purportedly were not cited by the RO fails to demonstrate that the Board violated § 20.903(b) by improperlyconsidering law that the RO failed to consider without first notifying him and giving him an opportunity to respond. See Jennings, Dolan, and Hilkert, all supra.

2. Law Applied to the Merits
When informed at oral argument that 38 U.S.C. §§ 1101, 1110, 1112, and
1113, had been
cited to and relied upon by the RO in its 2006 SSOC, Mr. Previous HitHicksonNext Hit argued
that these statutes
nevertheless were considered by the Board in the context of a reopened
claim, which he argues
necessarilyviolates § 20.903(b). Aswepreviouslynoted,supraatIII(B)(1),
when the Board reopens
a claim after the RO has denied reopening, the Board generally should
remand the claim to the RO
to consider the evidence and render a new decision. This is because the RO
generallydoes not assess
the credibility of the evidence or determine the need for a medical
examination or opinion when
reopening is denied. See Justus and Paralyzed Veterans of Am., both supra.
Thus, if the Board
initially reopens a claim when the RO has not considered the need for a
medical examination or
opinion, or assessed the credibility of the evidence, the Board would be
considering law that the RO
had not already considered, possibly implicating § 20.903(b). And, in the
absence of waiver by the
claimant or a Board finding that the claimant would not be prejudiced by
the Board adjudicating the
matter in the first instance, by going forward, the Board would violate
the "one review on appeal,"
statutory requirement. DAV and Bernard, both supra.
In this instance, however, the RO developed the evidence over a seven-year
period between
the date Mr. Previous HitHicksonNext Hit filed his claim to reopen in 1998 and the date of the
SSOC that issued in 2006.
The Board also found that the duties to notify and assist had been
satisfied, including not only
obtaining records, which is part of every claim to reopen, but also
providing Mr. Previous HitHicksonNext Hit a medical
examination, which is not required until and unless a claim is reopened.
See Paralyzed Veterans of
Am., 345 F.3d at 1342-43. More significantly, all of the evidence in the
record before the Board
reveals that upon receipt of Mr. Hickson's new evidence, the RO in fact
considered that evidence,
assessed its credibility, and, after doing so, determined that not only
was the evidence not credible
12


but also that it did not trigger a need for any additional medical
examinations. These are
determinations that should be made only after a claim has been reopened.
Indeed, the RO weighed
the totality of the evidence before reaching a conclusion that Mr.
Hickson's claim would be denied.
Because the RO de facto reopened the claim, which thus means that, under
these circumstances, the
Board's application of the law to the merits was the second such
application, the Board's review of
the claim actually constituted the "one review on appeal." Paralyzed
Veterans of Am., supra. Based
on the record on appeal, we have the firm conviction that the Board's
conclusory statement that the
RO had not considered Mr. Hickson's claim is clearly erroneous. Gilbert, 1
Vet.App. at 52 ('"A
finding is "clearly erroneous" when although there is evidence to support
it, the reviewing court on
the entire evidence is left with the definite and firm conviction that a
mistake has been committed.'"
(quoting United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948))).
Under these circumstances,
the Board's application of the law to the merits was the second such
application, and the Board's
review of the claim actually constituted "one review on appeal." Id.
Accordingly, we hold that
38 C.F.R. § 20.903(b) was not violated in this instance.
D. Section 5103A Duty To Provide an Adequate Medical Examination
At oral argument, Mr. Previous HitHicksonNext Hit argued for the first time that once the
Board reopened his
claim, he was entitled to a VA medical examination. Under section 5103A,
the Secretary is
obligated, in appropriate cases, to conduct a thorough and contemporaneous
medical examination
or obtain a medical opinion. 38 U.S.C. § 5103A(d)(2); McLendon v.
Nicholson, 20 Vet.App.79, 81
(2006); Green v. Derwinski, 1 Vet.App.121, 124(1991). "[O]
ncetheSecretaryundertakestheeffort
to provide an examination when developing a service-connection claim, even
if not statutorily
obligated to do so, he must provide an adequate one." Barr v. Nicholson,
21 Vet.App. 303, 311
(2007).
Mr. Previous HitHicksonNext Hit argues only that, once his claim was reopened, he was entitled
to a new VA
medical examination so that a medical examiner could consider the
affidavits he submitted. Here,
the Board specifically found that the Secretary's section 5103A duty to
assist was fulfilled by a
"contemporaneous and thorough medical examination in March 2004," in a VA
psychiatric
examination. R. at 17-18. The Board also found that Mr. Hickson's
affidavits were "merely
reiterative of contentions made to the March 2004 VA examiner, which that
examiner took into
13


consideration in rendering his opinion." R. at 18. Mr. Hickson fails to assert that the Board erred in its determination that he was provided an adequate VA psychiatric examination in March 2004, which considered his contentions, nor does he suggest any errors in that examination. See Hilkert, supra.
Furthermore, the Board specifically determined that the statements Mr. Hickson submitted
were not credible. R. at 22. Again, Mr. Previous HitHicksonNext Hit does not challenge the
Board's conclusion.
Information that is not credible is not a basis for ordering another
medical examination. See Washington v. Nicholson, 19 Vet.App. 362, 367-68 (2005) (holding that the
Board has the duty to determine the credibility and probative weight of the evidence); Reonal v.
Brown, 5 Vet.App. 458, 461 (1993) (holding that a medical opinion based upon an inaccurate
factual premise has no probative value); Smith v. Derwinski, 1 Vet.App. 235, 237 (1991) ("
Credibility is determined by the fact finder."). The Board provided an adequate statement of reasons or bases for its conclusion that the statements were not credible and that determination is not clearly
erroneous. See Wood v. Derwinski, 1 Vet.App. 190, 193 (1991) (stating that Board's assessment of
credibility and weight to be given to evidence is finding of fact subject to "clearly erroneous"
standard of review).
Accordingly, because the statements submitted by Mr. Hickson were both redundant of his statements to the March 2004 VA examiner and those statements were found not to be credible, the Board did not err in not providing Mr. Hickson with an additional medical examination upon reopening his claim. See McLendon, supra.
E. Prejudice
Although we conclude that § 20.903 was not violated in this instance, we
feel compelled to address Mr. Hickson's contention at oral argument that he otherwise was
prejudiced by the Board deciding his claim on the merits because he would have obtained a private
medical examination had he known the Board would deny him another VA medical examination. This
argument is disingenuous at best. Mr. Previous HitHicksonNext Hit was provided a VA medical examination by the RO and denied an additional one. He was also offered an opportunity to submit his own medical evidence. He waived, through counsel, further review by the RO on this issue and argued before the Board that he should be provided another medical examination. Mr. Hickson may not agree with the Board's decision, but the record reflects that he was provided a meaningful opportunity to present his
14


argument. He thus fails to demonstrate any prejudice by the Board proceeding to address the duty to assist (and deny another VA medical examination) and deciding his claim on the merits. See Marciniak v. Brown, 10 Vet.App. 198, 201 (1997) (remand unnecessary "[i]n
the absence of demonstrated prejudice"); see also Mlechick v. Mansfield, 503 F.3d 1340,
1346 (Fed. Cir. 2007) (Court must review the record to take due account of the rule of
prejudicial error).
Moreover, before proceeding to decide the merits of Mr. Hickson's claim,
the Board considered Mr. Hickson's waiverof anyfurtherreview bythe RO and
ultimately determined that Mr. Hickson would not be prejudiced by the Board rendering its decision because,inter
alia, Mr. Hickson "had presented all available existing evidence and argument as to the
merits of the claim." R. at 16.
The Court reviews any Board finding of no prejudice de novo. Medrano v.
Nicholson, 21 Vet.App. 165, 171 (2007). Because the RO developed Mr. Hickson's claim, including
providing him an adequate VA medical examination and as sessing the credibility of the evidence,
we find no prejudice in the Board proceeding to decide the claim on the merits.
IV. CONCLUSION
Accordingly, upon consideration of the foregoing, the February 5, 2007, decision of the Board is AFFIRMED.
15

Duties of Hearing Officer, Bryant v. Shinseki, No. 08-4080

From Judge Lance's Dissent:
Board can't consider new legal theories!

"the Court has recently held that the Secretary's regulations prevent the Board from considering new legal theories in the first instance. Hickson v. Shinseki, 23 Vet.App. 394, 400-03 (2010). Thus, even if the Board later determines that the RO decision overlooked an issue, the claimant must receive notice of the issue and the opportunity to have it remanded to the RO. Id."
===============================================
===================================================================

What does "Prejudice" mean?
"Although it is not known whether the appellant can secure a favorable medical report, his prejudice arises from the failure of the hearing officer to assure the "clarity and completeness of the hearing record," Thomas, 423 F.3d at1285 , and the lost additional opportunity to try and submit such evidence before his claim finally was adjudicated, which is one of the prima facie purposes of the regulatory requirement that the Board hearing officer suggest the submission of material evidence that the appellant may have overlooked. 38 C.F.R. § 3.103(c)(2); see also Parker v. Brown, 9 Vet.App. 476, 481 (1996) (stating that "'[p]rejudice ... means injury to an interest that the statute, regulation, or rule in question was
14
designed to protect'" (quoting Intercargo Ins. Co. v. United States, 83 F.3d 391, 396 (Fed. Cir.1996))); cf. Shinseki, 129 S. Ct. at 1708 (indicating as a factor for determining notice-error prejudice, the identification of evidence that might have been obtained or sought if proper notification had been given); Wagner v. United States, 365 F.3d 1358, 1365 (Fed. Cir. 2004) (holding that "[w]here the effect of an error on the outcome of a proceeding is unquantifiable . . . , we will not speculate as to what the outcome might have been had the error not occurred").

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


UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 08-4080
WALTER A. BRYANT, APPELLANT,
v.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
On Appeal from the Board of Veterans' Appeals
(Argued March 10, 2010 Decided July 1, 2010)
Kenneth M. Carpenter, of Topeka, Kansas, with whom Peter J. Meadows, of Ft. Lauderdale,
Florida, was on the brief for the appellant.
Penny C. Kahn, with whom Will A. Gunn, General Counsel; R. Randall Campbell, Assistant
General Counsel; Edward V. Cassidy, Jr., Deputy Assistant General Counsel, were on the brief, all
of Washington, D.C., for the appellee.
Before KASOLD, LANCE, and DAVIS, Judges.
The opinion of the Court is per curiam.
LANCE, Judge, filed an opinion concurring in part and dissenting in part.
PER CURIAM: The appellant, Walter A. Bryant, through counsel, appeals an October 6,
2008, Board of Veterans' Appeals (Board) decision denying his claims for service connection for
bilateral hearing loss, tinnitus, squamous cell carcinoma, and frostbite residuals of both feet. Record
(R.) at 3-14. On December 9, 2009, the Court granted the appellant's motion for expedited
consideration of this appeal. This Court has jurisdiction to review the Board's decision pursuant to
38 U.S.C. §§ 7252(a) and 7266(a). See Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). For the
reasons discussed below, the Board's October 6, 2008, decision will be affirmed in part, and vacated
in part and the matters remanded for further proceedings consistent with this decision.
The hearing officer's duties are established in 38 C.F.R. 1 § 3.103(c)(2) and a hearing may be requested during
the initial adjudication of the claim or while the claim is on administrative appeal. See also 38 C.F.R. § 20.1304 (2009)
(procedures for obtaining a hearing at the Board). Although the duties at either hearing are established by § 3.103(c)(2),
this opinion generally addresses them in the context of a Board hearing.
2
I. FACTUAL BACKGROUND
The appellant served in the U.S. Army from May 1943 to April 1946, and from September
1950 to October 1951. R. at 387, 394.
In February 2005, he filed a formal application for compensation benefits. R. at 357-68.
During the development of his claim, the Secretary sent the appellant multiple letters explaining
what evidence might be required to prove his claims. R. at 146, 250, 334-47. In June 2005, the
Waco, Texas, regional office (RO) issued a rating decision denying the appellant's claims to
entitlement for bilateral hearing loss, for tinnitus, for squamous cell carcinoma, and for frostbite
residuals in both feet. R. at 243-49. As to the appellant's claims for bilateral hearing loss, for
tinnitus, and for frostbite, the RO concluded that the record failed to show medical diagnoses for
these conditions. R. at 246-47. As for the claim for service connection for squamous cell carcinoma,
the RO explained the medical evidence showed "several areas of treatment" for this condition, but
did not show this condition occurred in or was caused by service. R. at 244.
The appellant appealed this decision and a hearing was held before a Board member on
August 28, 2008. R. at 21-33. In the October 6, 2008, decision on appeal, the Board, relying on VA
medical opinions, issued a decision denying the appellant's claim for benefits for frostbite because
the appellant did not currently have this disability, and denying his claim for benefits for hearing loss
and tinnitus because these disabilities were not related to service. The Board also denied benefits
for squamous cell carcinoma because there was no evidence the appellant had this disability,
although there was no VA (or other) medical opinion to this effect. R. at 4.
The central question to be resolved in this case is the extent of the Board hearing officer's
duty under 38 C.F.R. § 3.103(c)(2)(2009), see also 38 C.F.R. § 20.1304 (2009) (procedures to obtain
a hearing at the Board), to explain fully the issues and suggest the submission of evidence that the
claimant may have overlooked.1
3
The Parties' Arguments
The appellant's main argument is that the Board hearing officer failed to explain to him that
additional medical evidence was needed to support his claims. He asserts that the hearing officer
did not fulfill the responsibilities ascribed to him under 38 C.F.R. § 3.103(c)(2) (2009). The
appellant argues that it was error for the Board hearing officer to fail to suggest that he submit
medical evidence, to include diagnoses for his claimed disorders as well as the etiology of such
conditions. At argument, appellant's counsel elaborated that he was arguing that the duty to fully
discuss the issues and suggest the submission of overlooked evidence was "broad and totally
encompassing" (Oral Argument at 11:35-43), so as to require the Board hearing officer to review the
entire claims file prior to a hearing and make a preliminary decision so that the Board hearing officer
can then explain at the hearing any deficiencies in the evidence that the appellant would need to
overcome to receive a favorable decision (Oral Argument at 12:18-43).
The Secretary argues in his brief to the Court that the regulation applies to overlooked
evidence, and "in light of the notification letters sent to Appellant . . . there simply was no
overlooked evidence." Secretary's Brief (Br.) at 16 (emphasis in original). At oral argument, the
Secretary detailed his argument, stating that "the Court has found that the hearing officer's section
3.103(c)(2) obligation arises in a narrow set of circumstances in which the hearing officer, having
been placed on notice of the existence of evidence that would help prove a claim, failed to suggest
the submission of such evidence." Oral Argument at 28:14-31.
The Secretary also argued that even if the hearing officer had a duty to inform the appellant
that medical evidence was needed to substantiate his claim, failure to meet this duty resulted in no
prejudice because the appellant had been so informed through the preadjudciatory notice he was
provided pursuant to 38 U.S.C. § 5103(a).
II. ANALYSIS
A. Hearing Officer's Duties Under 38 C.F.R. § 3.103(c)(2) (2009)
As the Court has observed, "a functioning system of laws must give primacy to the plain
language of authorities." Tropf v. Nicholson, 20 Vet.App. 317, 322 n.1 (2006). The language of the
regulation is the necessary starting point because "[w]ithout standard word meanings and rules of
Although 38 U.S.C. § 7107(d) provides the right to a hearing, 2 it does not prescribe the duties imposed on the
hearing officer discussed herein, which are imposed solely by regulation. No argument has been made that the duties
imposed by the Secretary exceed his authority or are otherwise inconsistent with statute, and we perceive no such
conflict. See Auer v. Robbins, 519 U.S. 452, 461 (1997) ("[The Secretary] is free to write the regulations as broadly as
he wishes, subject only to the limits imposed by the statute.").
4
construction, neither Congress nor the Secretary can know how to write authorities in a way that
conveys their intent and no practitioner or—more importantly—veteran can rely on a statute or
regulation to mean what it appears to say." Id.; see also Hickson v. Shinseki, 23 Vet.App. 394, 401
(2010) (concluding that Secretary's interpretation of the regulation at issue was in conflict with the
plain language used).
Section 3.103(c)(2) imposes, inter alia, two distinct duties on the hearing officer at issue in
this case: The duty to explain fully the issues and the duty to suggest the submission of evidence that
may have been overlooked. The regulation at issue reads:
The purpose of a hearing is to permit the claimant to introduce into the record, in
person, any available evidence which he or she considers material and any arguments
or contentions with respect to the facts and applicable law which he or she may
consider pertinent. All testimony will be under oath or affirmation. The claimant is
entitled to produce witnesses, but the claimant and witnesses are expected to be
present. The Veterans Benefits Administration will not normally schedule a hearing
for the sole purpose of receiving argument from a representative. It is the
responsibility of the employee or employees conducting the hearings to explain fully
the issues and suggest the submission of evidence which the claimant may have
overlooked and which would be of advantage to the claimant's position. To assure
clarity and completeness of the hearing record, questions which are directed to the
claimant and to witnesses are to be framed to explore fully the basis for claimed
entitlement rather than with an intent to refute evidence or to discredit testimony. In
cases in which the nature, origin, or degree of disability is in issue, the claimant may
request visual examination by a physician designated by VA and the physician's
observations will be read into the record.
38 C.F.R. § 3.103(c)(2) (emphasis added).
Although the hearing officer's duties to "explain fully the issues and suggest the submission
of evidence which the claimant may have overlooked" are not further detailed in the regulation,2 the
appellant's argument that these duties necessarily involve the preadjudication of his claim is not
supported by the language of the regulation, or its prior interpretation and application. Similarly, the
Secretary's view that his duties are limited to suggesting the submission of only that evidence that
5
is already in existence, and only when the possible existence of such evidence is triggered at the
hearing, has no basis in the plain language of the regulation, or its prior interpretation and
application.
1. Plain Language
a. Appellant's Call for Preadjudication
Nothing in § 3.103(c)(2) supports the appellant's contention that the regulation requires a
hearing officer to preadjudicate or otherwise weigh conflicting evidence prior to or at the hearing.
See Tropf, supra. Moreover, such preadjudication is not required to explain to the claimant that –
for a disability compensation claim – the issues are status as a veteran, injury or disease in service,
current disability, and nexus between the current disability and the injury or disease in service. See
Caluza v. Brown, 7 Vet.App. 498, 506 (1995) aff'd per curiam, 78 F.3d 604 (Fed. Cir.1996) (table)
(proving service connection requires (1) medical evidence of a current disability, (2) medical
evidence or, in certain circumstances, lay testimony of in-service incurrence or aggravation of an
injury or disease, and (3) medical evidence of a nexus between the current disability and the
in-service disease or injury).
Preadjudication or the weighing of conflicting evidence also is not required for a hearing
officer to determine that evidence is not in the record with regard to a particular, material element
of a claim. And, preadjudication or weighing evidence is not required in order to advise a claimant
of the need to submit evidence on a material issue for which there is no evidence in the record.
Moreover, the evidence does not have to be weighed or the claim adjudicated "to assure clarity and
completeness of the hearing record," which is one of the implicit duties imposed by § 3.103(c)(2).
See Thomas v. Nicholson, 423 F.3d 1279 (Fed. Cir. 2005) (discussed further, infra at 9); see also 38
U.S.C. §.7107(a) and (f)(1)-(2) (permitting "the screening of cases for purposes of determining the
adequacy of the record for decisional purposes; or the development, or attempted development, of
a record found to be inadequate for decisional purposes" even when a claim is not up for
consideration in the regular docket order). Accordingly, we find no basis for writing into the
Secretary's regulation a requirement that a hearing officer weigh the evidence in the record or
otherwise preadjudicate the claim prior to or at the hearing. See Martin v. Occupational Safety and
Health Review Comm'n, 499 U.S. 144, 150 (1991) ("it is well established that an agency's
6
interpretation of its own regulation is entitled to substantial deference").
b. Secretary's Limited View of Duty To Suggest the Submission of Evidence
Similarly, nothing in the regulation limits the Secretary's duties to advise the claimant to
submit evidence only to those situations when the existence of such evidence is raised at the hearing.
Given the duty to fully explain the issues, there is no dispute that a hearing officer necessarily must
review the record. Having done so, however, he cannot ignore a lack of evidence in the record on
a material issue and not suggest its submission, unless the record (or the claimant at hearing) clearly
shows that such evidence is not available. To do so would ignore the regulatory mandate to advise
the claimant to submit evidence that might have been overlooked. See Martin at 150-51 ("In
situations in which the meaning of [regulatory] language is not free from doubt, the reviewing court
should give effect to the agency's interpretation so long as it is reasonable, that is, so long as the
interpretation sensibly conforms to the purpose and wording of the regulations" (internal quotations
and citations omitted)). Moreover, applicable caselaw shows that such inaction is not permissible.
2. Applicable Caselaw
In considering the issue at hand, we look to several decisions of the Court and to a decision
of the U.S. Court of Appeals for the Federal Circuit. In Douglas v. Derwinski, 2 Vet.App. 103, 105
(1992), the appellant applied for service connection for skin cancer and testified extensively about
treatment he received to remove growths from his skin. Nonetheless, the record did "not contain any
medical records pertinent to these assertions." Id. The Court denied the Secretary's motion for
summary affirmance of the Board decision and concluded that the veteran's testimony raised the
issue of direct service connection for his cancer and that the Board member should have suggested
the submission of evidence "necessary to establish that claim." Id. at 110. The Secretary filed a
motion for reconsideration arguing that the Court's panel decision was incorrect because the
regulation did not apply to the Board. Douglas v. Derwinski, 2 Vet.App. 435, 437 (1992) (en banc).
The Court rejected the Secretary's argument and stated that the Board "was obliged to have fully
explained to the veteran that his exposure to the sun during service, his later development of
basal-cell carcinoma, and his physician's statement about his sun-damaged skin raised the issue of
direct service connection for his illness," as well as obligated "to have suggested to him the
submission of additional evidence he may have overlooked that would have helped his case." Id.
7
at 442.
In Proscelle v. Derwinski, 2 Vet.App. 629 (1992), the appellant applied for an increased
rating for his maxillary condition. Id. at 631. During the course of his hearing, the appellant asserted
that his disability had gotten worse since his last examination. The Court held that the hearing
officer should have suggested the submission of "medical evidence of the then-current level of his
service-connected disability." Id. at 633. The Court also determined that the Board's statement of
reasons or bases was inadequate because it failed to address the appellant's assertions during his
hearing that his maxillary condition had caused his "nervous condition," and, further, determined that
the Board member should have suggested at the hearing that the appellant "submit medical evidence
supporting his claim." Id.
In Cuevas v. Principi, 3 Vet.App. 542 (1992), a veteran whose service medical records had
been destroyed by fire testified at a hearing in 1990 that he had undergone a hearing test in 1985 or
1986 that confirmed his hearing loss. Noting that § 3.103(c)(2) requires the Secretary to fully
explain the issues and suggest the submission of overlooked evidence, the Court held that
VA's statutory duty to assist includes, in cases such as this, having the Hearing
Officer tell the veteran that, at a minimum, he should submit a doctor's report or
statement confirming the existence of current hearing loss, especially since the
veteran had testified that a hearing test in 1985 or 1986 had confirmed a hearing loss.
Id. at 548.
Although VA had sent Mr. Cuevas a notice letter informing him of the need to submit such
evidence, the Court held that the hearing officer was nonetheless required to reiterate this concept.
In Costantino v. West, 12 Vet.App. 517 (1999), a veteran's widow sought to obtain disability
and indemnity compensation. The widow argued that the veteran's service-connected mental
condition caused him to refuse medication for illnesses, and that this refusal resulted in his death.
At a hearing, the widow's representative contended that the veteran's service-connected mental
condition hastened his death. The Board noted that the record did not contain clinical documentation
of the veteran's final hospitalization or a medical opinion demonstrating a nexus to service. The
Court stated:
[The Board erred] in failing to find error in the hearing officer's failure to suggest to
the appellant that she submit medical evidence regarding any relationship between
the veteran's service-connected condition and his refusal of treatment and any
8
relationship between such refusal and his death, as well as any additional records
concerning the veteran's death.
Id. at 520.
In Sizemore v. Principi, 18 Vet.App. 264 (2004), a veteran seeking service connection for
post-traumatic stress disorder described at a hearing his experiences in Vietnam. Id. at 274. The
Court stated that the
appellant was not advised adequately by VA as to the types of information that may
help to verify his claimed in-service stressors. In particular, at the May 1996 hearing,
VA failed to advise the appellant that he could submit corroboration in the form of
"buddy statements" as to some of the occurrences that he alleged were in-service
stressors.
Id. Although the potential evidence was not yet in existence or obtained in Sizemore, the claimant's
testimony suggested that it might be obtained to corroborate the incident described.
In Prickett v. Nicholson, 20 Vet.App. 370 (2006), a widow of a veteran sought service
connection for the cause of her husband's death. The widow sought to establish that the cause of his
death – heart disease – was due to his service-connected psychosis. At the hearing, the decision
review officer "repeatedly informed Mrs. Prickett that medical evidence, in particular, a medical
opinion demonstrating a nexus between the veteran's service and the cause of death, was critical to
the disposition of her claim and asked her to submit such evidence." Id. at 373. Mrs. Prickett stated
that there was no medical evidence to submit at that time. The Court found that the hearing officer
did not violate his duties under § 3.103(c)(2) to fully explain the issues and suggest the submission
of overlooked evidence because he informed the widow that (1) the most probative information with
regard to determining her claim was "statements from medical types"; (2) she needed to have
medical evidence related to nexus; and (3) she should submit any evidence she possessed,
particularly medical evidence in support of her claim. Id. at 382.
In addition to the Court's caselaw, the U.S. Court of Appeals for the Federal Circuit (Federal
Circuit) also has issued an opinion addressing 38 C.F.R. § 3.103(c)(2). In Thomas v. Nicholson,
423 F.3d 1279 (Fed. Cir. 2005), the veteran was injured after he failed to respond to three orders
from a sergeant who instructed him to leave a barracks. The veteran filed a claim for service
connection for the injuries and testified at a hearing regarding the claim. His claim was denied, as
the Board determined that his injuries were due to alcohol consumption. The Board reconsidered
The RO's rating decision and Statement of the Case, which a hearing officer sho 3 uld have encountered in his
review of the record, will likely assist the hearing officer in identifying the outstanding issues.
9
and found his injuries were due to his disobedience of a lawful order. The veteran argued that the
hearing officer was required to ask him about the amount of time he had to respond to the sergeant's
orders, which could have shown that his actions were not willful. The Federal Circuit agreed with
this Court that Mr. Thomas failed to demonstrate that the hearing officer was required to question
the appellant on any particular theory in support of his claim. Specifically, the Federal Circuit held
that the question was not necessary because it was not needed "to assure clarity and completeness
of the hearing record" as required under § 3.103(c)(2). "Instead, we find the hearing officer fulfilled
his duty in evaluating the record and that the evidence in the record adequately established the nature
of Thomas's conduct." Id. at 1285.
3. Scope of Duties To Explain Issues Fully and Suggest Submission of Overlooked Evidence
As previously stated, the relevant caselaw provides no support for finding a duty that the
hearing officer preadjudicate the claim or that the hearing officer's duty to explain the issues and
suggest the submission of evidence is as limited as the Secretary suggests. Rather, the caselaw
amply supports a finding that the hearing officer has a duty to fully explain the issues still
outstanding that are relevant and material to substantiating the claim.3 See, e.g., Prickett, Cuevas,
and Proscelle, all supra. Thus, when an element of the claim is not an issue in an appellant's case,
there is no need for the hearing officer to discuss it. For example, when veteran status or current
disability is established, there is no reason for a hearing officer to discuss those issues. On the other
hand, when the RO has denied a disability claim because there is no current disability, no nexus to
service, or no incident in service, etc., then the Board hearing officer should explain that the claim
can be substantiated only when the claimed disability is shown to exist and shown to be caused by
an injury or disease in service, and the Board hearing officer's explanation and discussion should be
centered on these issues.
The caselaw also amply supports a finding that the hearing officer must suggest that a
claimant submit evidence on an issue material to substantiating the claim when the record is missing
any evidence on that issue or when the testimony at the hearing raises an issue for which there is no
evidence in the record. See, e.g., Procelle, Cuevas, and Sizemore, all supra. Because there is no
10
requirement to preadjudicate an issue or weigh the evidence, the hearing officer's review of the
record in preparation for the hearing is one that should focus on the issues that remain outstanding,
and whether evidence has been gathered as to those issues. If a claim has been denied for lack of
evidence of a current disability, and no medical examination has been provided by the Secretary or
medical evidence submitted by the appellant, then this lack of evidence gives rise to the duty of the
Board hearing officer to suggest submission of this evidence. The hearing officer therefore must not
only be familiar with the claims file but also be engaged in the hearing process. The hearing officer
also must suggest the submission of evidence when testimony during the hearing indicates that it
exists (or could be reduced to writing) but is not of record. Moreover, VA's issuance of a notice
letter that complies with 38 U.S.C. § 5103(a) has no bearing on the duty to suggest the submission
of evidence that may have been overlooked. See Cuevas, supra; see also Section C, infra.
To the extent the above scope of the duties to fully explain the issues and suggest the submission of evidence may not have been stated or held explicitly in prior cases, we so state and hold today.
B. Application of Law to the Present Case
1. Duty To Fully Explain the Issues
In this case, the Board member began the hearing by stating: "The issues I have for appeal today are four. They are (1) entitlement to service connection for bilateral hearing loss, (2) entitlement to service connection for tinnitus, (3) entitlement to service connection for squamous cell carcinoma, and (4) entitlement to service connection for frostbite of both feet." R. at 22. Although this statement explained the issues in terms of the scope of the claim for benefits, it did not "explain fully" the outstanding issues material to substantiating the claim, which in this instance were current
disability and medical nexus.
Even though the hearing officer made inquiries during the hearing regarding whether any doctor had ever related the appellant's claimed disabilities to service and the basis for asserting a disability (R. at 25-31), at no point did the Board member explain that these issues were material to substantiating the claim – i.e., that they were the reasons the appellant's
claims were denied by the RO. Accordingly, the Board member erred as to the first duty – to fully explain the issues – under § 3.103(c)(2).
The Board stated that there was no evidence of a current diagnosis 4 for squamous cell carcinoma. R. at 12.
However, a careful review of the appellant's VA medical records indicates that on October 16, 2003, the appellant underwent a biopsy of an "8mm erythematous papule mid upper back/neck area." R. at 302-03. A November 25, 2003, medical record states: "[P]athology came back as [B]owen's with incomplete margins." R. at 296; see also R. at 287. Bowen's Disease is a type of squamous cell carcinoma. See DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 536 (31st ed. 2007).
5 Our dissenting colleague's view that reviewing the record to identify the issues on appeal and assess whether
evidence may have been overlooked equates to an evaluation of the evidence, post at 1, fails to recognize that the issues
on appeal are readily identifiable in the RO's decision and the statement of the case, and further fails to recognize that
neither the identification of the issues nor the observation that there is no evidence on one of those issues (thus indicating
that its submission may have been overlooked) requires any weighing or evaluation of the evidence.
11
2. Duty To Suggest the Submission of Evidence Possibly Overlooked
As to the duty to suggest evidence that may have been overlooked, responses were elicited
from the appellant as to frostbite, hearing loss, and tinnitus, as well as his basis for believing these
claimed disabilities were related to service. At the time of the hearing, the record already contained
VA medical examination reports stating that the appellant currently did not have frostbite, and that,
although he had hearing loss and tinnitus, these disabilities were not caused by his service.
Moreover, the hearing discussion did not reveal any evidence that might be available that had not
been submitted. Under these circumstances, nothing gave rise to the possibility that evidence had
been overlooked with regard to the appellant's claim for benefits for frostbite, hearing loss, and
tinnitus.
With regard to squamous cell carcinoma, the appellant's representative at the hearing elicited
information from the appellant about this claimed disability, and the appellant did not reveal any
unsubmitted evidence that might be available. In contrast to the above circumstances, however, at
the time of the hearing, there was no VA or other examination report addressing nexus, although the
record on appeal contained VA treatment records for skin cancer and Bowen's Disease, a type of
squamous cell carcinoma.3 Under these circumstances, the lack of medical evidence in the record
addressing a nexus between the appellant's diagnosed squamous cell carcinoma and an in-service
event or injury gave rise to the possibility that evidence had been overlooked, and the Board hearing
officer should have suggested that the appellant secure and submit this evidence if he could; the
hearing officer's failure to do so was error.4 See Sizemore, Costantino, and Cuevas, all supra.
12
C. Prejudice
The Court must next consider whether the appellant was prejudiced by the Board's errors. See 38 U.S.C. § 7261(b)(2); Shinseki v. Sanders, 129 S. Ct. 1696, 1704 (2009). In his brief, the Secretary argues that the notice letters provided to the appellant under section 5103(a) eliminate any potential prejudice that might have been caused by the Board member's failure to explain the issues because they sufficiently explained the need for the appellant to submit medical evidence.
Secretary's Br. at 13-14. However, section 5103(a) serves a different purpose in the statutory scheme than § 3.103(c)(2). See Wilson, supra. Further, the Court already has held that a hearing officer has the duty to suggest the submission of evidence even when the claimant has been provided a letter notifying him of the need to submit such evidence. See Cuevas, supra. Not only is this precedential
opinion binding, see Bethea v. Derwinski, 2 Vet.App. 252, 254 (1992) (panel decisions constitute "binding precedent" unless overturned by en banc opinion of this Court or decision of the Federal Circuit or U.S. Supreme Court), to hold that the failure of a hearing officer to suggest the submission of evidence that might have been overlooked is rendered nonprejudicial simply because the claimant
had been provided preadjudicatory notice of what was needed to substantiate the claim essentially would eviscerate the duty imposed by the Secretary in § 3.103(c)(2). There is no basis for rendering such a holding. Rather, the assessment of prejudice generally is case specific, demonstrated by the appellant and based on the record. See Shinseki, supra (appellant generally bears burden of demonstrating prejudicial error on appeal); Marciniak v. Brown, 10 Vet.App. 198, 201 (1997)
(remand unnecessary "[i]n the absence of demonstrated prejudice"); see also Mlechick v. Mansfield, 503 F.3d 1340, 1346 (Fed. Cir. 2007) (Court must review the record to take due account of the rule of prejudicial error).
1. Frostbite, Hearing Loss, and Tinnitus
With regard to the appellant's claim for benefits for frostbite, hearing loss, and tinnitus, although the Board hearing officer did not explicitly lay out the material issues of medical nexus and current disability, the record reflects that they were developed by the Secretary – to include medical examination reports on each of these disabilities and any nexus to service – and there was no
indication that the represented appellant had any additional information to submit. Accordingly, the "clarity and completeness of the hearing record" was intact with respect to these disabilities and the
13
purpose of § 3.103(c)(2) was fulfilled. See Thomas and Marcinak, both supra; see also Caluza v. Brown, 7 Vet.App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (service connection generally requires, inter alia, medical nexus).
Our dissenting colleague's reliance on Moore v. Shinseki, 555 F.3d 1369, 1374-75 (Fed. Cir. 2009) for finding prejudice is misplaced. Moore confirmed and clarified the statutory duty of the Secretary to secure potentially relevant evidence when reasonably identified by a claimant, see 38 U.S.C. § 5103A, and is inapposite to the regulatory duties imposed on a hearing officer under § 3.103(c)(2); there is no suggestion that Mr. Bryant identified relevant evidence that was not obtained by the Secretary. Our colleague's focus on the fact that a purpose of the hearing is to permit a claimant to submit evidence also is misplaced; there is no suggestion that Mr. Bryant was denied an opportunity to submit evidence. Rather, the prejudice identified by our dissenting colleague arises from a duty not imposed by regulation or statute; i.e., a duty to weigh conflicting evidence or otherwise preadjudicate the claim and advise the claimant of those areas where the evidence weighs
against his claim. Congress or the Secretary might create such a duty, but as noted in our discussion above, they have not yet done so. Cf. Locklear, supra.
2. Squamous Cell Carcinoma
In contrast to the above, the failure to explicitly lay out the material issues with regard to squamous cell carcinoma was combined with a failure to suggest to the appellant that he should secure and submit medical evidence on the key issue of nexus to service – evidence that was lacking at the time of the hearing, and that remained lacking through final Board decision. Had the appellant been notified that evidence may have been overlooked on this issue, he could have requested such
an examination from the Secretary or secured one on his own. Although it is not known whether the appellant can secure a favorable medical report, his prejudice arises from the failure of the hearing officer to assure the "clarity and completeness of the hearing record," Thomas, 423 F.3d at1285 , and the lost additional opportunity to try and submit such evidence before his claim finally was adjudicated, which is one of the prima facie purposes of the regulatory requirement that the Board hearing officer suggest the submission of material evidence that the appellant may have overlooked. 38 C.F.R. § 3.103(c)(2); see also Parker v. Brown, 9 Vet.App. 476, 481 (1996) (stating that "'[p]rejudice ... means injury to an interest that the statute, regulation, or rule in question was
14
designed to protect'" (quoting Intercargo Ins. Co. v. United States, 83 F.3d 391, 396 (Fed. Cir.1996))); cf. Shinseki, 129 S. Ct. at 1708 (indicating as a factor for determining notice-error prejudice, the identification of evidence that might have been obtained or sought if proper notification had been given); Wagner v. United States, 365 F.3d 1358, 1365 (Fed. Cir. 2004) (holding that "[w]here the effect of an error on the outcome of a proceeding is unquantifiable . . . , we will not speculate as to what the outcome might have been had the error not occurred").

III. CONCLUSION
On consideration of the foregoing, that part of the Board's October 6, 2008, decision denying
benefits for frostbite, hearing loss, and tinnitus is AFFIRMED, and that part denying benefits for
squamous cell carcinoma is VACATED and the matter REMANDED for further adjudication
consistent with this opinion.
The opinion of the Court is per curiam. LANCE, Judge, filed an opinion concurring in part
and dissenting in part.

+++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
LANCE, Judge, concurring in part and dissenting in part: I believe that the majority does an excellent job in many respects in clarifying our previously disjointed caselaw on 38 C.F.R. § 3.103(c)(2) (2009). However, I think the opinion suffers from two serious problems.
First, I believe that the majority fails to sufficiently explain the distinction between its holding that the regulation does not require a preadjuication of the claim or weighing of the evidence
and its requirement that the hearing officer must review the entire record to fully explain the issues
on appeal. Reviewing the record to determine what issues it raises necessarily requires some
evaluation of the evidence and some judgment about which issues are reasonably in dispute.
Determining that there is no favorable evidence in the record will often require making a decision
about the nature or meaning of ambiguous documents or reports in the claims file. Hence, it is not
clear to me how these two conclusions coexist. More importantly, it is not clear how the Court
should review such issues in future cases except to entertain arguments from counsel that amount
to allegations that the Board should have preadjudicated the claim or weighed the evidence to
15
provide a full explanation of the issues.
In my view, a better standard would be one that is similar to the one used in Kent
v. Nicholson, 20 Vet.App. 1 (2006), to avoid requiring the preadjudication of claims. In Kent, the
Court concluded that proper 38 U.S.C. § 5103(a) notice as to an attempt to reopen a previously
denied claim requires the Secretary to look at the basis of the prior denial and tailor the notice to any
findings of fact that would affect the type of evidence that the claimant must submit. 20 Vet.App.
at 10. By analogy, 38 C.F.R. § 3.103(c)(2) should require the Board to look at the most recent RO
decision—which may be the most recent Supplemental Statement of the Case considering additional
evidence—and clearly explain to the appellant what element or elements of the claim were found
deficient by that decision and what types of evidence would help the appellant prevail as to those
issues. If the RO addressed multiple theories as to a claim, the Board would have to explain the issues related to each theory.
I believe that such a standard would be vastly easier for the Board to apply and for the Court to review. While there are certainly cases where the Board may ultimately spot an issue that was completely overlooked by the RO, the Court has recently held that the Secretary's regulations prevent the Board from considering new legal theories in the first instance. Hickson v. Shinseki, 23 Vet.App.
394, 400-03 (2010). Thus, even if the Board later determines that the RO decision overlooked an issue, the claimant must receive notice of the issue and the opportunity to have it remanded to the RO. Id. Accordingly, even if a bright-line, Kent-style rule does not perfectly capture every issue, claimants are still protected from being blindsided by a Board decision that raises a new issue.
My second—and more serious—concern is that the majority's prejudicial error analysis
effectively guts the requirement to fully explain the issues in many cases. In this case, the opinion concludes that the 38 C.F.R. § 3.103(c)(2) error was harmless because the negative medical evidence of record proves that the appellant was not prejudiced. To do so, the opinion mistakenly frames the
prejudicial error question as whether the error affected "the 'clarity and completeness of the hearing record.'" Ante at 12 (quoting 38 C.F.R. § 3.103(c)(2)). However, I believe that is the standard that should be used for the second prong of the regulation: the duty to suggest the submission of overlooked evidence. As to the first prong, the duty to fully explain the issues, the first sentence of
38 C.F.R. § 3.103(c)(2) explicitly states that the purpose of a hearing is to provide the claimant with
16
an opportunity to submit favorable evidence. The duty to fully explain the issues exists to make that opportunity meaningful by ensuring that the appellant understands what issues most likely require the submission of favorable evidence before there is a reasonable possibility of prevailing on the claim. Where there is substantial negative evidence in the record on an issue, it is even more
important that the Board member explain the need for favorable evidence in order for the claimant to have a realistic opportunity to prevail on the claim. See Moore v. Shinseki, 555 F.3d 1369, 1374-75 (Fed. Cir. 2009) (concluding that failure to obtain potentially favorable, circumstantial evidence was prejudicial even though the record contained copious direct evidence against the claim).
In this regard, the majority opinion expresses confusion about my positions and presents a flawed rebuttal by unnecessarily mixing my two concerns together. First, I do not believe that I can be any clearer that preadjudication of claims by the Board is not required. Instead, I believe that the scope of the duty to fully inform should be defined by the findings of the actual adjudication done
at the RO level prior to the Board hearing. Second, the opportunity to submit evidence is more than just a window of time in which new evidence will be received. When the issue in dispute requires expert evidence because it is beyond the common knowledge of lay persons, there is little reason to believe that such favorable evidence will actually be submitted unless the appellant understands the types of evidence needed to have a chance of prevailing. Indeed, my essential point is that the majority fails to acknowledge the possibility that the reason Mr. Bryant never identified any additional medical evidence in support of his claim was because he did not understand that he
needed to do so. The fact that he did not submit such evidence earlier tends to suggest that is the case. In my view, there does not appear to be any explanation for creating the duty "to explain fully the issues" except to neutralize the inference that the failure to submit evidence was the product of ignorance. Under the totality of the circumstances in this case, it appears that Mr. Bryant's failure to submit favorable medical evidence may be the product of ignorance and, therefore, he was potentially prejudiced by the violation of the duty directly targeted at avoiding such a situation.
I suppose there is some threshold where the negative evidence of record is so overwhelming or incontrovertible that denying a claimant the opportunity to rebut it would be harmless. However, in summary, I believe that the regulation exists to help claimants rebut negative evidence and, therefore, the existence of some negative evidence reinforces, rather than cures, the prejudice of not
17
explaining the issue. Accordingly, I would remand all of the appellant's claims based upon the Court's conclusion that the Board erred so that the appellant would have a meaningful opportunity to present rebuttal evidence on the key issues in his claims.

VAOIG Report No. 08-01392-144 June 25, 2009

Audit of VA Incomplete Compensation and Pension Medical Examinations
exams are to be scheduled within three days of receipt of the exam request. On February 25, the appointment was canceled by the VA HCF clinic because the provider was not available. A new appointment was rescheduled for March 24, 2008; however, VA HCF personnel stated they did not contact the veteran to negotiate a rescheduled appointment time, and we saw no evidence that the veteran was notified. The C&P exam request was later canceled because the veteran failed to report for the rescheduled appointment. VA HCF personnel agreed that the delay in scheduling the initial exam appointment and the failure to negotiate a rescheduled appointment when the clinic was canceled was contrary to local VA HCF practice and caused the exam request to be returned to the VARO as incomplete. Processing Errors by Personnel Caused Incomplete Exams We identified 21 C&P exam requests (from 8 different VA HCFs) that were inappropriately canceled by VA HCF personnel. These exam requests were canceled after VA HCF personnel sent appointment notices to the wrong address, scheduled the wrong person for an exam, failed to schedule an exam requested by the VARO, or inadvertently canceled the exam request. In seven of these cases, VA HCF personnel sent veterans’ C&P exam appointment notices to the address of record listed in VistA; however, VARO personnel had provided updated addresses in the exam request. When mailing the appointment notification letters to veterans, VA HCF personnel failed to notice or did not use the updated addresses provided by the VAROs. This resulted in these seven requests being canceled and returned to the VAROs. VA HCF officials indicated that these cancellations resulting from processing errors had multiple causes such as increased workload, lack of scheduling personnel, and the pressure to meet the 35-day time parameter to complete exam requests. Policies did not Reasonably Accommodate Veterans VSRs request more than one C&P exam, if necessary, when a veteran’s application contains multiple claimed conditions. However, VHA Procedure Guide 1601E.01 does not state how to handle a situation when a veteran fails to report for an initial C&P exam and has subsequent appointments scheduled under the same C&P exam request. We identified five C&P exam requests (from four different VA HCFs) that were canceled after the veterans did not attend their initial appointment. VA HCF personnel canceled their subsequent appointments, scheduled on the same exam request, without contacting the veteran to determine why he or she missed their initial appointment or whether he or she planned to attend the subsequent appointments. For example, one veteran failed to report for a C&P exam scheduled for November 26, 2007. The veteran had a different C&P exam appointment scheduled for December 3, 2007. Because the veteran did not show up for the November 26 appointment, the VA HCF canceled the December 3 appointment. The VA HCF has a local policy that when a veteran fails to report for one appointment, all other C&P exam appointments on the request are canceled. The VA HCF stated this policy is communicated to veterans in the
VA Office of Inspector General 6
Audit of VA Incomplete Compensation and Pension Medical Examinations
appointment notification letter. Local VA HCF policies such as this appear to place more emphasis on meeting timeliness standards than on meeting the needs of veterans. It is reasonable to expect that VA HCF personnel should not cancel all pending C&P exams without first contacting the veteran to determine why he or she missed the initial appointment or whether he or she plans to report for other scheduled C&P exams. Contacting the veteran, rather than canceling the appointments without direct communication would improve the service provided to veterans. VBA Needs to Ensure Complete and Accurate Exam Requests Submitted to VA HCFs. Exam Requests Submitted by VAROs Were Incomplete and Inaccurate VBA needs to improve the quality of the C&P exam requests they submit to VA HCFs. The Memorandum of Understanding between Veterans Benefits Administration and Veterans Health Administration for Processing Compensation and Pension Examination Requests requires that exam requests submitted by VAROs contain the veteran’s last known address, last known telephone number, and the specific exam(s) required. VA Manual M21-1MR also clearly instructs that VARO personnel need to identify veteran employees and prevent their exam requests from being sent to the wrong VA HCF. We identified 53 canceled C&P exam requests that were preventable and within the control of the VAROs. Most of these (47 of 53) were canceled because the exam requests were incomplete or inaccurate. Following are exam request deficiencies we identified during our case reviews. • Incorrect Jurisdictions. In 33 cases (from 14 different VAROs), exam requests were canceled because VARO personnel submitted the requests to the incorrect VA HCF. 􀂃 In 23 of these cases, VARO personnel sent the exam requests to VA HCFs that were not the correct facility based on the veterans’ residence. 􀂃 In six other cases, the exam requests did not include the correct addresses for the veteran even though the correct addresses were available; therefore, the requests were sent to the wrong VA HCFs based on incorrect addresses. 􀂃 Four cases involved exam requests for VA employees. Contrary to VA policy, VARO personnel incorrectly sent these exam requests to the VA HCF where the veterans were employed. VA HCF personnel realized that these veterans were employed at their facilities, canceled the exam requests, and sent them back to the VAROs for submission to other VA HCFs. Since veterans’ claims folders and CAPRI identify veterans who are VA employees, VSRs should ensure they do not send C&P exam requests to the VA HCF where the veterans are employed. • Insufficient Information. In seven cases (from six different VAROs), exam requests were canceled because the requests did not contain sufficient information for the VA HCFs to schedule and complete them. Examples of these cases follow.
VA Office of Inspector General 7
Audit of VA Incomplete Compensation and Pension Medical Examinations
􀂃 In one case, the exam request did not identify the claimed medical conditions related to the exams requested. 􀂃 In another case, the VARO did not send the veteran’s claims folder to the VA HCF even though it was needed to complete the exam. • Incorrect Exams Requested. In seven cases (from five different VAROs), exam requests were canceled because VARO personnel requested incorrect exams. Examples of these cases follow. 􀂃 In one case, a genitourinary exam was ordered when a general medical exam was needed to address the veteran’s claim. Consequently, VA HCF personnel canceled the exam request. 􀂃 In another case, an audiology exam was ordered when an ear disease exam was needed to address the veteran’s claim. Consequently, VA HCF personnel canceled the exam request. • Miscellaneous Reasons. Six exam requests (from five different VAROs) were canceled for miscellaneous reasons. Examples of these cases follow. 􀂃 In one case, a C&P exam request was canceled because VARO personnel requested an exam that had already been completed. VARO personnel did not examine prior claims or C&P exam requests that indicated an exam related to the claimed condition had already been completed. 􀂃 In another case, a C&P exam request was canceled because adequate medical evidence was already on record to grant the veteran claimed pension benefits. Outpatient treatment records contained in the veteran’s claims folder were sufficient to grant pension benefits and it was not necessary to request a C&P exam. VBA does not have a process in place to ensure that VARO personnel include complete and accurate information on the C&P exam requests they send to VA HCFs. Without this information, VA HCF personnel cannot schedule and conduct the C&P exam appointments required for veteran’s disability claims. Ultimately, the payment of benefits for those veterans who are found to be entitled is unnecessarily delayed. While we identified C&P exams requests that were incomplete or incorrect, there may be opportunities for more efficient processing of C&P exam requests if personnel at VA HCFs and VAROs improve their communication with each other. The January 2007 Memorandum of Understanding between Veterans Benefits Administration and Veterans Health Administration for Processing Compensation and Pension Examination Requests states that when a veteran submits a claim for compensation or pension, VHA and VBA have a shared responsibility to ensure the highest quality of service is delivered efficiently, compassionately, and with minimal inconvenience to the veteran. The respective roles of VHA and VBA in claims processing should be transparent to the veteran and the veteran’s experience will be that he or she is dealing with One VA.
VA Office of Inspector General 8
Audit of VA Incomplete Compensation and Pension Medical Examinations
While some VA HCF personnel indicated they did contact VARO personnel to resolve incomplete or incorrect C&P exam requests, some of the types of canceled C&P exam requests we identified may have been preventable with improved communication. For example, if a VARO sends a C&P exam request that does not request the correct exam, rather than canceling the request VA HCF personnel could contact VARO personnel to determine the correct exam. The Memorandum of Understanding states that in the best interest of the veteran, every effort should be made by VHA and VBA to avoid any unnecessary delays in processing a veteran’s request for examination. The receiving VA HCF should contact the requesting VARO to obtain any missing information or clarification. If this were done more consistently, the number of incomplete C&P exam requests could be reduced and service provided to veterans awaiting decisions on their claims could be improved. CPEP Quality Assurance Reviews Need to Include Review of Incomplete Exam Requests. VA’s quality assurance reviews of C&P exam requests do not include incomplete exam requests. The CPEP Office was established to improve and monitor the C&P exam process, and one goal of the office is to improve the quality of exam requests. CPEP personnel conduct quality assurance reviews of completed C&P exam requests; however, CPEP personnel have not extended their reviews to determine why some exam requests are canceled. Expanding quality assurance reviews to include incomplete C&P exam requests would allow CPEP to identify issues and causes that contribute to incomplete C&P exam requests and provide opportunities for continuous improvement. CPEP Quality Assurance Review Processes Are Not Addressing the Reasons C&P Exam Requests Are Canceled CPEP’s quality assurance reviews focus on the quality and timeliness of completed C&P exam requests. For their reviews, CPEP selects C&P exam requests that have been completed by VA HCFs and returned to the requesting VAROs. CPEP reports the results of these reviews to the applicable VAROs and VA HCFs for information purposes. However, CPEP does not review or capture data for those requests that were canceled. Thus, CPEP does not identify issues and causes that contribute to incomplete C&P exam requests. In order to be more effective, CPEP’s quality assurance reviews need to include incomplete C&P exam requests and recommend improvement actions to appropriate officials as needed. Conclusion C&P exams are necessary for VBA personnel to make decisions on veterans’ disability claims. VA’s ability to effectively complete C&P exams impacts whether or not veterans receive timely disability benefits and good customer service. In order to increase the number of completed C&P exams, VHA needs to improve their procedures for scheduling C&P exam appointments, and VBA needs to improve the quality of C&P exam requests submitted to VA HCFs. Additionally, CPEP needs to expand their quality
VA Office of Inspector General 9
Audit of VA Incomplete Compensation and Pension Medical Examinations
assurance review coverage to include incomplete C&P exam requests in order to identify issues and causes that contribute to incomplete C&P exam requests. If VA does not accomplish this, veterans will likely continue to experience delays in receiving their entitled disability benefits, and VA will miss opportunities to improve the service provided to veterans. Recommendations 1.



Report No. 08-01392-144 June 25, 2009
VA Office of Inspector General
Washington, DC 20420 Department of Veterans Affairs Office of Inspector General Audit of VA Incomplete Compensation and Pension Medical Examinations
To Report Suspected Wrongdoing in VA Programs and Operations Telephone: 1-800-488-8244 between 8:30 AM and 4 PM Eastern Time, Monday through Friday, excluding Federal Holidays E-Mail: vaoighotline@va.gov
Audit of VA Incomplete Compensation and Pension Medical Examinations
Contents Page Executive Summary....................................................................................................i-vi Introduction Purpose............................................................................................................................1 Background.....................................................................................................................1 Results and Conclusions Request and Scheduling Processes Need Improvement..................................................3 Appendixes A. Scope and Methodology...........................................................................................12 B. Sampling Methodology and Estimates.....................................................................14 C. Acting Under Secretary for Health Comments.........................................................17 D. Under Secretary for Benefits Comments..................................................................23 E. OIG Contact and Staff Acknowledgments................................................................25 F. Report Distribution....................................................................................................26 VA Office of Inspector General
Audit of VA Incomplete Compensation and Pension Medical Examinations
Executive Summary Results in Brief The Office of Inspector General (OIG) conducted an audit to identify opportunities for the Veterans Health Administration (VHA) and the Veterans Benefits Administration (VBA) to increase the number of completed compensation and pension (C&P) medical examinations (C&P exams). The audit also focused on identifying some of the causes of canceled C&P exams through a review of randomly sampled incomplete exam requests. When VHA or VBA personnel cancel a C&P exam request or a veteran does not attend their scheduled C&P exam appointment(s), it becomes an incomplete exam request. The percentage of incomplete C&P exam requests has remained steady over the past few years at around 17 percent. However, reducing the number of incomplete C&P exam requests will help ensure that claims decisions are handled more efficiently and veterans’ disability benefits payments are timelier. Incomplete C&P exam requests often result in additional and unnecessary work for VA personnel and can be indicative of poor customer service to veterans. To improve service provided to veterans filing disability claims, it is important for VA to take steps to reduce the number of incomplete exam requests. VHA had inconsistent practices related to the extent VA healthcare facilities (VA HCFs) contacted veterans by telephone to schedule their C&P exam appointments. The number of incomplete C&P exam requests could be reduced if VHA improved C&P exam scheduling procedures. For example, VHA guidance states that VA HCF personnel are to contact veterans to schedule their C&P exam appointments and mail an appointment notification letter to the veteran. However, personnel at various VA HCFs did not call veterans to schedule their appointments and only notified veterans of their C&P exam appointments by letter. This practice is not in compliance with VHA scheduling guidance and does not include veterans in the process of scheduling their C&P exam appointments. Personnel from 6 (29 percent) of the 21 VA HCFs included in our sample stated they did not always make telephone calls to schedule C&P exam appointments, and personnel from 4 (19 percent) of the VA HCFs stated they only sent notification letters and did not make telephone calls. Personnel from 11 (52 percent) of the VA HCFs stated they scheduled C&P exam appointments by telephone contact with the veteran. We could not verify these statements because the method used to schedule appointments was not documented. Without direct communications with veterans, VHA cannot ensure they are working effectively with veterans who need C&P exams before complete decisions can be made on their disability claims. VHA’s practices related to rescheduling veterans’ C&P exam appointments also differed across VA HCFs. VHA guidance states that C&P exams can be rescheduled on a one-time basis when a veteran requests that the exams be postponed for a valid reason. However, several C&P exams were inappropriately canceled because VA HCF personnel
VA Office of Inspector General i
Audit of VA Incomplete Compensation and Pension Medical Examinations
did not reschedule the exam appointments based on the veteran’s reasonable request for a different appointment time. Instead, the exam requests were canceled and returned incomplete to the requesting VA Regional Office (VARO). VARO personnel request more than one C&P exam, if necessary, when a veteran’s application contains multiple claimed conditions. VHA’s practices related to handling C&P exam requests with multiple exam appointments were not consistent across VA HCFs. VHA guidance does not address how to handle a situation when a veteran fails to report for an initial C&P exam and has subsequent appointments scheduled under the same request. Personnel at various VA HCFs canceled subsequent exam appointments and the C&P exam request after veterans did not attend their initial appointments without first contacting the veteran. The number of incomplete exam requests could also be further reduced if VARO personnel submitted complete and accurate C&P exam requests to VA HCFs. We identified cases where VARO personnel sent C&P exam requests to the incorrect VA HCF. In these instances, VARO personnel sent C&P exam requests to incorrect VA HCFs based on the veterans’ residence, sent the requests to VA HCFs based on incorrect veterans’ addresses, or sent the requests to VA HCFs where the veterans were employed, which is contrary to VA guidance. We also identified C&P exam requests where VARO personnel did not include sufficient information for the exams to be scheduled and conducted, or the exams requested did not correctly address the veterans’ claimed conditions. About 11 percent of the incomplete C&P exam requests we reviewed were canceled because the requests were incomplete or inaccurate. In a joint effort, VHA and VBA established the Compensation and Pension Examination Program (CPEP) Office in 2001 to improve and monitor the C&P exam process. CPEP personnel conduct quality assurance reviews of completed C&P exam requests; however, CPEP personnel have not extended their reviews to determine why some exam requests are canceled. Expanding quality assurance reviews to include incomplete C&P exam requests would allow CPEP to identify issues and causes that contribute to incomplete C&P exam requests and provide opportunities for continuous improvement. We estimated 24,000 incomplete C&P exam requests could have been prevented during FY 2008. Minimizing the number of canceled exams would enable VA to provide veterans C&P benefits more quickly, reduce unnecessary work for VA personnel, and provide veterans with better service. Background Veterans initiate claims for disability compensation or pension by filing an application online or at a VARO. Upon receipt of an application, VBA’s Veterans Service Representatives (VSRs) request a C&P exam to determine the current level of disability or to provide a medical opinion as to whether the current disability is related to the veteran’s military service.
VA Office of Inspector General ii
Audit of VA Incomplete Compensation and Pension Medical Examinations
Processing of C&P Exam Requests VSRs at VAROs determine the type of C&P exam(s) a veteran needs based on the available medical records and use the Compensation and Pension Record Interchange (CAPRI) system to order C&P exams from the VA HCF of jurisdiction. VA HCF personnel determine where and how to conduct the C&P exam and contact the veteran to schedule the exam. VHA guidance states that VA HCF personnel are to contact the veteran to schedule their C&P exam appointments and mail notification letters to the veteran. Finding Request and Scheduling Processes Need Improvement To reduce the number of incomplete C&P exams, VHA needs to improve exam scheduling procedures, VBA needs to improve the quality of C&P exam requests, and CPEP needs to improve quality assurance review procedures. Our review of 424 incomplete C&P exam requests showed that at least 97 (23 percent) could have been prevented. C&P exams were not completed because VHA personnel did not always contact veterans by telephone to schedule their C&P exam appointments in accordance with VHA guidance. In addition, VHA personnel did not consistently reschedule C&P exam appointments when veterans requested that the appointments be postponed for a valid reason. Further, VHA guidance does not state how to handle a situation when a veteran fails to report for an initial C&P exam and has subsequent appointments scheduled on the same exam request. We identified cases where C&P exam requests were canceled after veterans did not attend their initial appointments. VA HCF personnel canceled subsequent appointments, scheduled on the same exam request, without contacting the veteran to determine why he or she missed their initial appointment or whether he or she planned to attend the subsequent appointments. C&P exams were also not completed because VBA personnel did not always provide complete and accurate information on the C&P exam requests they sent to VA HCFs. We identified cases where VARO personnel sent the requests to the incorrect VA HCFs, did not include sufficient information for the exams to be scheduled, and requested incorrect exams. Of the other 327 (77 percent) cases that we reviewed, 162 (50 percent) C&P exam requests were incomplete because the veterans did not attend their scheduled appointments. The available records did not document why the veterans missed these appointments; therefore, we could not determine the causes of these incomplete C&P exam requests. We believe, however, that many of the 162 missed appointments could have been prevented had VHA personnel followed scheduling guidance and made direct communication with the veterans to schedule their C&P exam appointments. Based on our site visits and case reviews, we concluded proactive VA HCFs that telephoned veterans to schedule their C&P exam appointments were more likely to have
VA Office of Inspector General iii
Audit of VA Incomplete Compensation and Pension Medical Examinations
fewer incomplete exam requests. Three of the four VA HCFs we visited during our audit did not contact veterans directly to negotiate an appointment date and time before scheduling appointments. These three facilities had average incomplete exam rates ranging from 18.5 to 23.7 percent during the period reviewed. The other facility did attempt to contact veterans directly to negotiate an appointment time, and the incomplete exam rate for this facility was 4.3 percent. This comparison is a strong indicator that following VHA guidance and involving veterans in scheduling their appointments may be a valuable way to reduce the number of veterans who do not attend their C&P exams. In the remaining 165 (50 percent) cases, we determined that incomplete exam requests were canceled for reasons beyond VA’s control, such as cases where veterans canceled their appointments or withdrew their disability claims. VA’s quality assurance reviews of C&P exam requests are not adequate. While CPEP personnel conduct quality assurance reviews of completed C&P exam requests, they do not conduct reviews of incomplete exam requests. Therefore, CPEP is missing an opportunity to identify and address recurring or systemic causes for incomplete C&P exam requests. Conclusion C&P exams are necessary for VBA personnel to make decisions on veterans’ disability claims. VA’s ability to effectively complete C&P exams impacts whether or not veterans receive timely disability benefits and good customer service. In order to increase the number of completed C&P exams, VHA needs to improve their procedures for scheduling C&P exam appointments, and VBA needs to improve the quality of C&P exam requests submitted to VA HCFs. Additionally, CPEP needs to expand their quality assurance review coverage to include incomplete C&P exam requests in order to identify issues and causes that contribute to incomplete C&P exam requests. If VA does not accomplish this, veterans will likely continue to experience delays in receiving their entitled disability benefits, and VA will miss opportunities to improve the service provided to veterans. Recommendations 1. We recommended the Under Secretary for Health establish requirements for VA healthcare facility personnel to contact veterans by telephone to schedule their compensation and pension examination appointments and reschedule appointments when a veteran requests postponement for a valid reason. 2. We recommended the Under Secretary for Health provide guidance to ensure that VA healthcare facility personnel do not cancel subsequent appointments on the same request when a veteran does not attend their initial compensation and pension
VA Office of Inspector General iv
Audit of VA Incomplete Compensation and Pension Medical Examinations
examination appointment without contacting the veteran to determine why he or she did not attend their initial appointment. 3. We recommended the Under Secretary for Benefits establish a process at VA Regional Offices to ensure complete and accurate information is provided on compensation and pension examination requests. 4. We recommended the Under Secretary for Health and the Under Secretary for Benefits jointly require the Compensation and Pension Examination Program Office’s quality assurance reviews include a routine review of incomplete compensation and pension examination requests, report identified deficiencies, and recommend improvement actions as needed. Management Comments and OIG Response The Acting Under Secretary for Health and the Under Secretary for Benefits agreed with the findings and recommendations in the report and provided acceptable implementation plans. (See Appendix C for the full text of the Acting Under Secretary for Health’s comments, and Appendix D for the full text of the Under Secretary for Benefits’ comments.) VHA is addressing the issue of personal patient contact by facility personnel for all outpatient appointments, including those for C&P exams. A revised scheduling directive is in the final concurrence process and is expected to be published before the end of July 2009. The new directive provides guidance on the efforts that must be taken to establish contact with veterans throughout the scheduling process. In cases where telephone contact cannot be established, written correspondence must be sent requesting the veteran call within a specified time period to schedule an appointment. The directive will also require appropriate follow-up if a veteran fails to appear for a scheduled appointment. VHA has developed a training program for all personnel involved with scheduling, and the training will be initiated when the revised directive is released. One emphasis of the training will be to ensure schedulers do not cancel subsequent appointments without adequate justification when an initial appointment is missed. In addition, VHA is revising their C&P handbook and procedure guide to incorporate these changes. CPEP has revised their quality assurance review process to include a routine review of incomplete C&P exam requests. CPEP will assess the extent to which unclear, incorrect jurisdiction, or otherwise flawed exam requests submitted by VBA contribute to the number of incomplete C&P exam requests. VBA will develop an action plan to improve training of personnel who are responsible for ordering C&P exams, and establish workgroups involving both VBA and VHA personnel to help improve communication.
VA Office of Inspector General v
Audit of VA Incomplete Compensation and Pension Medical Examinations
VA Office of Inspector General vi
We consider these planned actions acceptable, and we will follow up on their implementation. We will close the recommendations when all proposed actions have been completed by VHA, VBA, and CPEP. (original signed by:) BELINDA J. FINN Assistant Inspector General for Auditing
Audit of VA Incomplete Compensation and Pension Medical Examinations
Introduction Purpose The Office of Inspector General (OIG) conducted an audit to identify opportunities for the Veterans Health Administration (VHA) and the Veterans Benefits Administration (VBA) to increase the number of completed compensation and pension (C&P) medical examinations (C&P exams). The audit also focused on identifying some of the causes of canceled C&P exams through a review of 424 randomly sampled incomplete exam requests. Background Veterans initiate claims for disability compensation or pension by filing an application online or at a VA Regional Office (VARO). Upon receipt of an application, VBA’s Veterans Service Representatives (VSRs) request a C&P exam to determine the current level of disability or to provide a medical opinion as to whether the current disability is related to the veteran’s military service. VSRs request more than one C&P exam, if necessary, when a veteran’s application contains multiple claimed conditions. When VA healthcare facility (VA HCF) or VARO personnel cancel a C&P exam request or a veteran does not attend their scheduled C&P exam appointment(s), it becomes an incomplete exam request. Public Law 108-183 authorized VBA to contract for C&P exams. However, the majority of C&P exam requests are submitted to VA HCFs rather than contractors. During the period reviewed, approximately 85 percent of C&P exam requests were submitted to VA HCFs. This audit focused only on those incomplete C&P exam requests that had been submitted to VA HCFs. Processing of C&P Exam Requests VSRs at VAROs determine the type of C&P exam(s) a veteran needs based on the available medical records and use one or more of 58 exam worksheets to describe the specific requirements for the medical examiner. VSRs use the Compensation and Pension Record Interchange (CAPRI) system to order C&P exams from the VA HCF of jurisdiction. VARO personnel need to submit complete and accurate exam requests to facilitate the scheduling and conducting of C&P exams by VA HCF personnel. Requests must include the following elements. • Veteran’s full name • Veteran’s verified social security number • Veteran’s last known address
VA Office of Inspector General 1
Audit of VA Incomplete Compensation and Pension Medical Examinations
• Veteran’s last known telephone number • Specific exam(s) required and specific condition(s) for each exam • Name and telephone number of VARO requestor VA HCF personnel determine where and how to conduct the C&P exam and contact the veteran to schedule it. C&P exam notification letters are generated through the Veterans Health Information Systems and Technology Architecture (VistA) and mailed to the veteran. VHA has established a timeliness standard of 35 calendar days to complete C&P exams. The 35-day standard is measured from the day an exam request is received by the VA HCF through the day when all exam components, including laboratory and ancillary test results, are provided to the VARO. Statistical Data on Incomplete C&P Exam Requests The VHA Chief Business Office’s (CBO) Performance and Operational Web-Enabled Reports include data on incomplete C&P exam requests. The data shows that the percentage of incomplete C&P exam requests has remained steady at about 17 percent since FY 2006 (see Table 1). Table 1. Incomplete C&P Exam Request Data Period Total No. of C&P Exam Requests Made to VA HCFs Total No. of Incomplete C&P Exam Requests Incomplete Percentage FY 2006 513,771 89,587 17.4% FY 2007 581,736 98,800 17.0% FY 2008 640,778 110,700 17.3% Compensation and Pension Examination Program Office In a joint effort, VHA and VBA established the Compensation and Pension Examination Program (CPEP) Office in 2001. The CPEP Office, which is located in Nashville, TN, was established to improve and monitor the C&P exam process to ensure improvements in the quality of C&P exams and veterans’ satisfaction. The major goals of CPEP are as follows. • Improve the quality of exam requests, • Improve the quality of exam reports, and • Contribute to improvements in the quality and timeliness of claims processing.
VA Office of Inspector General 2
Audit of VA Incomplete Compensation and Pension Medical Examinations
Results and Conclusions Request and Scheduling Processes Need Improvement To reduce the number of incomplete C&P exams, VHA needs to improve exam scheduling procedures, VBA needs to improve the quality of C&P exam requests, and CPEP needs to improve quality assurance review procedures. Some C&P exams were not completed because VHA personnel did not contact veterans by telephone to schedule their C&P exam appointments. Making direct communication with veterans to schedule their C&P exam appointments involves veterans in the process and increases the likelihood they will attend their appointments. In addition, VHA personnel did not consistently reschedule C&P exam appointments when veterans requested that the appointments be postponed for a valid reason. By not ensuring that veterans’ requests to reschedule C&P exam appointments are accommodated, VA is missing an opportunity to provide veterans with better customer service. C&P exams were also not completed because VBA personnel did not always provide complete and accurate information on the C&P exam requests they sent to VA HCFs. Without this information, VA HCF personnel cannot schedule and conduct C&P exams. Ultimately, reducing the number of incomplete C&P exam requests will help ensure that claims decisions are handled more efficiently and veterans’ disability benefits payments are timelier. Incomplete C&P exam requests cause additional and often unnecessary work for VA personnel and can be indicative of poor customer service to veterans. To improve service provided to veterans filing disability claims, it is important for VA to take steps to reduce the number of incomplete exam requests. Our review of 424 incomplete C&P exam requests showed that at least 97 (23 percent) could have been prevented. We projected that about 12,000 (23 percent) C&P exam requests canceled during the first half of FY 2008 could have been prevented. Based on this projection, we estimated 24,000 incomplete C&P exam requests could have been prevented during FY 2008. Minimizing the number of canceled exams would enable VA to provide veterans C&P benefits more quickly, reduce unnecessary work for VA personnel, and provide veterans with better service. Of the other 327 (77 percent) cases that we reviewed, 162 (50 percent) C&P exam requests were incomplete because the veterans did not attend their scheduled appointments. The available records did not document why the veterans missed these appointments; therefore, we could not determine the causes of these incomplete C&P exam requests. We believe, however, that many of the 162 missed appointments could have been prevented had VHA personnel followed scheduling guidance and made direct communication with the veterans to schedule their C&P exam appointments. Based on our site visits and case reviews, we concluded proactive VA HCFs that telephoned veterans to schedule their C&P exam appointments were more likely to have fewer incomplete exam requests. Three of the four VA HCFs we visited during our audit did
VA Office of Inspector General 3
Audit of VA Incomplete Compensation and Pension Medical Examinations
not contact veterans directly to negotiate an appointment date and time before scheduling appointments. These three facilities had average incomplete exam rates ranging from 18.5 to 23.7 percent during the period reviewed. The other facility did attempt to contact veterans directly to negotiate an appointment time, and the incomplete exam rate for this facility was 4.3 percent. This comparison is a strong indicator that following VHA guidance and involving veterans in scheduling their appointments may be a valuable way to reduce the number of veterans who do not attend their C&P exams. In the remaining 165 (50 percent) cases, we determined that incomplete exam requests were canceled for reasons beyond VA’s control, such as cases where veterans canceled their appointments or withdrew their disability claims. VA’s quality assurance reviews of C&P exam requests are not adequate. While CPEP personnel conduct quality assurance reviews of completed C&P exam requests, they do not conduct reviews of incomplete exam requests. Therefore, CPEP is missing an opportunity to identify and address recurring or systemic causes for incomplete C&P exam requests. Of the 97 preventable incomplete exam requests, 44 (45 percent) were within the control of VA HCFs and 53 (55 percent) were within the control of VBA’s regional offices. VHA Needs to Improve Controls for Scheduling C&P Exam Appointments. Scheduling Practices Inconsistent with VHA Guidance VHA’s procedures for scheduling C&P exam appointments need to be improved in order to better accommodate veterans. VHA Procedure Guide 1601E.01 states that VA HCF personnel are to contact the veteran to schedule their C&P exam and that exam notification letters are to be generated in VistA and mailed to the veteran. The procedure guide states that C&P exams can be rescheduled on a one-time basis when a veteran requests that the exams be postponed for a valid reason. The new appointments must be rescheduled within 30 days from the original appointment dates, unless the veteran specifies differently. The additional processing days to reschedule an appointment must be manually tracked and can be backed out of the total exam day count. In other words, the delay caused by rescheduling a veteran’s appointment(s) does not negatively impact the 35-day timeliness measure for completing C&P exam requests because VA HCF personnel can “stop the clock” if the veteran requests a new appointment date. VHA had inconsistent practices related to the extent VA HCFs contacted veterans by telephone to schedule their C&P exam appointments. For example, VA HCF personnel did not consistently contact veterans before scheduling their appointments. This practice is not in compliance with VHA scheduling guidance and does not include veterans in the process of scheduling their C&P exam appointments. Personnel from 6 (29 percent) of the 21 VA HCFs in our sample stated they did not always make telephone calls to schedule C&P exam appointments, and personnel from 4 (19 percent) of the VA HCFs stated they only sent notification letters. Personnel from 11 (52 percent) VA HCFs stated they scheduled C&P exam appointments by telephone contact with the veteran.
VA Office of Inspector General 4
Audit of VA Incomplete Compensation and Pension Medical Examinations
We could not verify these statements because the method used to schedule appointments was not documented. Without direct communication with veterans, VHA cannot ensure they are working effectively with veterans who need C&P exams before complete decisions can be made on their disability claims. More veterans attending their C&P exam appointments would ensure that claims are processed more efficiently and benefit entitlement decisions are made timelier. Following are scheduling practice deficiencies we identified during our case reviews. • Reasonable Rescheduling Requests. Eleven C&P exam requests (from seven different VA HCFs) with scheduled appointments were inappropriately canceled because VA HCF personnel did not reschedule the exam appointments based on the veteran’s reasonable request for a different appointment time. Instead, the exam requests were canceled and returned incomplete to the requesting VARO. For example, on December 13, 2007, VA HCF personnel scheduled a veteran for two C&P exam appointments on December 17 and 21, but did so without contacting the veteran. After the veteran received his appointment notification, he notified the VA HCF that he was not provided sufficient advance notice for the appointments, as he had to consider his needs relative to saving money for gas and allowing sufficient time to make the 3 hour drive. The veteran requested the appointments be rescheduled, but the VA HCF did not reschedule them. The VA HCF canceled the appointments and returned the incomplete C&P exam request to the VARO. VA HCF personnel stated they do not reschedule veterans’ C&P exam appointments if they cannot attend an appointment within 30 days. Instead, they cancel the request and return it to the requesting VARO. Upon receipt of the canceled C&P exam request, the VARO rated the veteran’s claim and did not award disability compensation. The veteran appealed the rating decision and the disability compensation claim was reopened. A new C&P exam request was issued and the C&P exams were completed in March 2008. Upon receipt of the completed C&P exams, the VARO rated the veteran’s claim and the veteran was evaluated 70 percent service-connected. Although the veteran received retroactive compensation benefits, the veteran did not receive payment until June 2008. The veteran likely would have received disability compensation benefits earlier had the VA HCF rescheduled rather than canceled the veteran’s initial C&P exams in December 2007. In addition, VA could have avoided the additional workload of an appealed rating decision and reopened compensation claim. • Procedural Issues. Seven C&P exam requests, from three different VA HCFs, were canceled due to various procedural issues. In these cases, VA HCF personnel took actions when scheduling appointments that were inconsistent with VHA guidance and/or locally established VA HCF procedures. For example, one VARO submitted a C&P exam request on January 28, 2008. Seventeen days later, on February 14, the VA HCF scheduled a C&P exam appointment for March 10. This action did not comply with VHA guidance that states
VA Office of Inspector General 5
Audit of VA Incomplete Compensation and Pension Medical Examinations
exams are to be scheduled within three days of receipt of the exam request. On February 25, the appointment was canceled by the VA HCF clinic because the provider was not available. A new appointment was rescheduled for March 24, 2008; however, VA HCF personnel stated they did not contact the veteran to negotiate a rescheduled appointment time, and we saw no evidence that the veteran was notified. The C&P exam request was later canceled because the veteran failed to report for the rescheduled appointment. VA HCF personnel agreed that the delay in scheduling the initial exam appointment and the failure to negotiate a rescheduled appointment when the clinic was canceled was contrary to local VA HCF practice and caused the exam request to be returned to the VARO as incomplete. Processing Errors by Personnel Caused Incomplete Exams We identified 21 C&P exam requests (from 8 different VA HCFs) that were inappropriately canceled by VA HCF personnel. These exam requests were canceled after VA HCF personnel sent appointment notices to the wrong address, scheduled the wrong person for an exam, failed to schedule an exam requested by the VARO, or inadvertently canceled the exam request. In seven of these cases, VA HCF personnel sent veterans’ C&P exam appointment notices to the address of record listed in VistA; however, VARO personnel had provided updated addresses in the exam request. When mailing the appointment notification letters to veterans, VA HCF personnel failed to notice or did not use the updated addresses provided by the VAROs. This resulted in these seven requests being canceled and returned to the VAROs. VA HCF officials indicated that these cancellations resulting from processing errors had multiple causes such as increased workload, lack of scheduling personnel, and the pressure to meet the 35-day time parameter to complete exam requests. Policies did not Reasonably Accommodate Veterans VSRs request more than one C&P exam, if necessary, when a veteran’s application contains multiple claimed conditions. However, VHA Procedure Guide 1601E.01 does not state how to handle a situation when a veteran fails to report for an initial C&P exam and has subsequent appointments scheduled under the same C&P exam request. We identified five C&P exam requests (from four different VA HCFs) that were canceled after the veterans did not attend their initial appointment. VA HCF personnel canceled their subsequent appointments, scheduled on the same exam request, without contacting the veteran to determine why he or she missed their initial appointment or whether he or she planned to attend the subsequent appointments. For example, one veteran failed to report for a C&P exam scheduled for November 26, 2007. The veteran had a different C&P exam appointment scheduled for December 3, 2007. Because the veteran did not show up for the November 26 appointment, the VA HCF canceled the December 3 appointment. The VA HCF has a local policy that when a veteran fails to report for one appointment, all other C&P exam appointments on the request are canceled. The VA HCF stated this policy is communicated to veterans in the
VA Office of Inspector General 6
Audit of VA Incomplete Compensation and Pension Medical Examinations
appointment notification letter. Local VA HCF policies such as this appear to place more emphasis on meeting timeliness standards than on meeting the needs of veterans. It is reasonable to expect that VA HCF personnel should not cancel all pending C&P exams without first contacting the veteran to determine why he or she missed the initial appointment or whether he or she plans to report for other scheduled C&P exams. Contacting the veteran, rather than canceling the appointments without direct communication would improve the service provided to veterans. VBA Needs to Ensure Complete and Accurate Exam Requests Submitted to VA HCFs. Exam Requests Submitted by VAROs Were Incomplete and Inaccurate VBA needs to improve the quality of the C&P exam requests they submit to VA HCFs. The Memorandum of Understanding between Veterans Benefits Administration and Veterans Health Administration for Processing Compensation and Pension Examination Requests requires that exam requests submitted by VAROs contain the veteran’s last known address, last known telephone number, and the specific exam(s) required. VA Manual M21-1MR also clearly instructs that VARO personnel need to identify veteran employees and prevent their exam requests from being sent to the wrong VA HCF. We identified 53 canceled C&P exam requests that were preventable and within the control of the VAROs. Most of these (47 of 53) were canceled because the exam requests were incomplete or inaccurate. Following are exam request deficiencies we identified during our case reviews. • Incorrect Jurisdictions. In 33 cases (from 14 different VAROs), exam requests were canceled because VARO personnel submitted the requests to the incorrect VA HCF. 􀂃 In 23 of these cases, VARO personnel sent the exam requests to VA HCFs that were not the correct facility based on the veterans’ residence. 􀂃 In six other cases, the exam requests did not include the correct addresses for the veteran even though the correct addresses were available; therefore, the requests were sent to the wrong VA HCFs based on incorrect addresses. 􀂃 Four cases involved exam requests for VA employees. Contrary to VA policy, VARO personnel incorrectly sent these exam requests to the VA HCF where the veterans were employed. VA HCF personnel realized that these veterans were employed at their facilities, canceled the exam requests, and sent them back to the VAROs for submission to other VA HCFs. Since veterans’ claims folders and CAPRI identify veterans who are VA employees, VSRs should ensure they do not send C&P exam requests to the VA HCF where the veterans are employed. • Insufficient Information. In seven cases (from six different VAROs), exam requests were canceled because the requests did not contain sufficient information for the VA HCFs to schedule and complete them. Examples of these cases follow.
VA Office of Inspector General 7
Audit of VA Incomplete Compensation and Pension Medical Examinations
􀂃 In one case, the exam request did not identify the claimed medical conditions related to the exams requested. 􀂃 In another case, the VARO did not send the veteran’s claims folder to the VA HCF even though it was needed to complete the exam. • Incorrect Exams Requested. In seven cases (from five different VAROs), exam requests were canceled because VARO personnel requested incorrect exams. Examples of these cases follow. 􀂃 In one case, a genitourinary exam was ordered when a general medical exam was needed to address the veteran’s claim. Consequently, VA HCF personnel canceled the exam request. 􀂃 In another case, an audiology exam was ordered when an ear disease exam was needed to address the veteran’s claim. Consequently, VA HCF personnel canceled the exam request. • Miscellaneous Reasons. Six exam requests (from five different VAROs) were canceled for miscellaneous reasons. Examples of these cases follow. 􀂃 In one case, a C&P exam request was canceled because VARO personnel requested an exam that had already been completed. VARO personnel did not examine prior claims or C&P exam requests that indicated an exam related to the claimed condition had already been completed. 􀂃 In another case, a C&P exam request was canceled because adequate medical evidence was already on record to grant the veteran claimed pension benefits. Outpatient treatment records contained in the veteran’s claims folder were sufficient to grant pension benefits and it was not necessary to request a C&P exam. VBA does not have a process in place to ensure that VARO personnel include complete and accurate information on the C&P exam requests they send to VA HCFs. Without this information, VA HCF personnel cannot schedule and conduct the C&P exam appointments required for veteran’s disability claims. Ultimately, the payment of benefits for those veterans who are found to be entitled is unnecessarily delayed. While we identified C&P exams requests that were incomplete or incorrect, there may be opportunities for more efficient processing of C&P exam requests if personnel at VA HCFs and VAROs improve their communication with each other. The January 2007 Memorandum of Understanding between Veterans Benefits Administration and Veterans Health Administration for Processing Compensation and Pension Examination Requests states that when a veteran submits a claim for compensation or pension, VHA and VBA have a shared responsibility to ensure the highest quality of service is delivered efficiently, compassionately, and with minimal inconvenience to the veteran. The respective roles of VHA and VBA in claims processing should be transparent to the veteran and the veteran’s experience will be that he or she is dealing with One VA.
VA Office of Inspector General 8
Audit of VA Incomplete Compensation and Pension Medical Examinations
While some VA HCF personnel indicated they did contact VARO personnel to resolve incomplete or incorrect C&P exam requests, some of the types of canceled C&P exam requests we identified may have been preventable with improved communication. For example, if a VARO sends a C&P exam request that does not request the correct exam, rather than canceling the request VA HCF personnel could contact VARO personnel to determine the correct exam. The Memorandum of Understanding states that in the best interest of the veteran, every effort should be made by VHA and VBA to avoid any unnecessary delays in processing a veteran’s request for examination. The receiving VA HCF should contact the requesting VARO to obtain any missing information or clarification. If this were done more consistently, the number of incomplete C&P exam requests could be reduced and service provided to veterans awaiting decisions on their claims could be improved. CPEP Quality Assurance Reviews Need to Include Review of Incomplete Exam Requests. VA’s quality assurance reviews of C&P exam requests do not include incomplete exam requests. The CPEP Office was established to improve and monitor the C&P exam process, and one goal of the office is to improve the quality of exam requests. CPEP personnel conduct quality assurance reviews of completed C&P exam requests; however, CPEP personnel have not extended their reviews to determine why some exam requests are canceled. Expanding quality assurance reviews to include incomplete C&P exam requests would allow CPEP to identify issues and causes that contribute to incomplete C&P exam requests and provide opportunities for continuous improvement. CPEP Quality Assurance Review Processes Are Not Addressing the Reasons C&P Exam Requests Are Canceled CPEP’s quality assurance reviews focus on the quality and timeliness of completed C&P exam requests. For their reviews, CPEP selects C&P exam requests that have been completed by VA HCFs and returned to the requesting VAROs. CPEP reports the results of these reviews to the applicable VAROs and VA HCFs for information purposes. However, CPEP does not review or capture data for those requests that were canceled. Thus, CPEP does not identify issues and causes that contribute to incomplete C&P exam requests. In order to be more effective, CPEP’s quality assurance reviews need to include incomplete C&P exam requests and recommend improvement actions to appropriate officials as needed. Conclusion C&P exams are necessary for VBA personnel to make decisions on veterans’ disability claims. VA’s ability to effectively complete C&P exams impacts whether or not veterans receive timely disability benefits and good customer service. In order to increase the number of completed C&P exams, VHA needs to improve their procedures for scheduling C&P exam appointments, and VBA needs to improve the quality of C&P exam requests submitted to VA HCFs. Additionally, CPEP needs to expand their quality
VA Office of Inspector General 9
Audit of VA Incomplete Compensation and Pension Medical Examinations
assurance review coverage to include incomplete C&P exam requests in order to identify issues and causes that contribute to incomplete C&P exam requests. If VA does not accomplish this, veterans will likely continue to experience delays in receiving their entitled disability benefits, and VA will miss opportunities to improve the service provided to veterans. Recommendations 1. We recommended the Under Secretary for Health establish requirements for VA healthcare facility personnel to contact veterans by telephone to schedule their compensation and pension examination appointments and reschedule appointments when a veteran requests postponement for a valid reason. 2. We recommended the Under Secretary for Health provide guidance to ensure that VA healthcare facility personnel do not cancel subsequent appointments on the same request when a veteran does not attend their initial compensation and pension examination appointment without contacting the veteran to determine why he or she did not attend their initial appointment. 3. We recommended the Under Secretary for Benefits establish a process at VA Regional Offices to ensure complete and accurate information is provided on compensation and pension examination requests. 4. We recommended the Under Secretary for Health and the Under Secretary for Benefits jointly require the Compensation and Pension Examination Program Office’s quality assurance reviews include a routine review of incomplete compensation and pension examination requests, report identified deficiencies, and recommend improvement actions as needed. Management Comments and OIG Response The Acting Under Secretary for Health and the Under Secretary for Benefits agreed with the findings and recommendations in the report and provided acceptable implementation plans. (See Appendix C for the full text of the Acting Under Secretary for Health’s comments, and Appendix D for the full text of the Under Secretary for Benefits’ comments.) VHA is addressing the issue of personal patient contact by facility personnel for all outpatient appointments, including those for C&P exams. A revised scheduling directive is in the final concurrence process and is expected to be published before the end of July 2009. The new directive provides guidance on the efforts that must be taken to establish contact with veterans throughout the scheduling process. In cases where telephone contact cannot be established, written correspondence must be sent requesting the veteran call within a specified time period to schedule an appointment. The directive will also require appropriate follow-up if a veteran fails to appear for a scheduled appointment. VHA has developed a training program for all personnel involved with scheduling, and
VA Office of Inspector General 10
Audit of VA Incomplete Compensation and Pension Medical Examinations
VA Office of Inspector General 11
the training will be initiated when the revised directive is released. One emphasis of the training will be to ensure schedulers do not cancel subsequent appointments without adequate justification when an initial appointment is missed. In addition, VHA is revising their C&P handbook and procedure guide to incorporate these changes. CPEP has revised their quality assurance review process to include a routine review of incomplete C&P exam requests. CPEP will assess the extent to which unclear, incorrect jurisdiction, or otherwise flawed exam requests submitted by VBA contribute to the number of incomplete C&P exam requests. VBA will develop an action plan to improve training of personnel who are responsible for ordering C&P exams, and establish workgroups involving both VBA and VHA personnel to help improve communication. We consider these planned actions acceptable, and we will follow up on their implementation. We will close the recommendations when all proposed actions have been completed by VHA, VBA, and CPEP.
Audit of VA Incomplete Compensation and Pension Medical Examinations
Appendix A
VA Office of Inspector General 12
Scope and Methodology This audit addressed C&P exam requests VARO personnel submitted to VA HCFs that were canceled between October 1, 2007, and March 31, 2008. Of 303,005 C&P exam requests submitted during this six-month period, 249,884 (82.5 percent) were completed and 53,121 (17.5 percent) were canceled. We conducted audit work from July 2008 to April 2009. To project the number and percentage of incomplete C&P exam requests that were preventable VA-wide, we developed a two-stage statistical sampling plan. (See Appendix B for additional details on the statistical sampling plan.) First, we randomly selected 21 VA HCFs (from a universe of 137 VA HCFs that conduct C&P exams). We then randomly selected 424 incomplete C&P exam requests from a total of 7,260 incomplete exam requests from the 21 facilities during the 6-month period of October 1, 2007, through March 31, 2008. We made onsite visits to four VHA locations-VA New Jersey Healthcare System (HCS) in East Orange, NJ; James A. Haley Veterans’ Hospital in Tampa, FL; VA Medical Center in Philadelphia, PA; and VA Salt Lake City HCS in Salt Lake City, UT. During our onsite reviews, we assessed the C&P exam request process and internal controls, and we conducted interviews with local C&P personnel at the VA HCFs. We also interviewed VBA personnel from the VAROs of jurisdiction for the four VA HCFs visited in Newark, NJ; St. Petersburg, FL; Philadelphia, PA; and Salt Lake City, UT. We reviewed related VA policies and procedures, including the January 2007 Memorandum of Understanding between Veterans Benefits Administration and Veterans Health Administration for Processing Compensation and Pension Examination Requests that was jointly signed by the Acting Under Secretary for Health and the Under Secretary for Benefits. For each incomplete C&P exam request in our sample, we attempted to determine the reason(s) why the request was canceled and whether VA could have prevented it. For cases where we needed clarification in order to assess whether a canceled exam request was preventable, we provided written questions to C&P personnel, either at the VA HCFs and/or the VAROs of jurisdiction, and received written responses. To obtain information on internal controls related to the C&P exam request process, we provided a questionnaire to C&P Program officials at the 21 VA HCFs and the 19 VAROs of jurisdiction. We also interviewed the Director of C&P Service concerning the C&P exam request process and the Acting Director of CPEP to assess CPEP’s involvement with and responsibilities for the C&P exam process. Our assessment of internal controls focused on those controls related to the audit objective. To achieve the audit objective, we relied on computer-processed data contained in VistA and CAPRI. We assessed the reliability of this data and found it to be adequate. We also obtained facility-level data from each of the 21 VA HCFs in our statistical sample. Each VA HCF provided an electronic report listing all incomplete C&P exam requests that were canceled between October 1, 2007, and March 31, 2008. To test data reliability for
Audit of VA Incomplete Compensation and Pension Medical Examinations
Appendix A VA Office of Inspector General 13
each incomplete exam request in our sample for the four site visits, we determined whether electronic data recorded in CAPRI and VistA matched hardcopy documentation maintained in veterans’ claims folders. Based on these tests and assessments, we concluded the data was sufficiently reliable to meet the audit objective. Public Law 108-183 authorized VBA to contract for C&P exams. Our review did not include C&P exams conducted by VBA contractors because data on exams conducted by VHA personnel and the VBA contractors is not contained in a single system. However, we noted that QTC Medical Services, Inc. (QTC) conducts C&P exams for 10 VAROs and MES Solutions (MES) performs C&P exams for 6 other VAROs. During the first half of FY 2008, VA sent a total of 55,779 C&P exam requests to QTC, of which about 3 percent were canceled. Also, during the 6-month period, about 10 percent of scheduled C&P exams were not completed because veterans failed to attend their appointments. MES did not conduct any C&P exams during the time period of the audit because the contract was not awarded until May 2, 2008. We conducted this performance audit in accordance with generally accepted government auditing standards. Those standards require that we plan and perform the audit to obtain sufficient, appropriate evidence to provide a reasonable basis for our findings and conclusions based on our audit objective. We believe that the evidence obtained provides a reasonable basis for our findings and conclusions based on our audit objective.
Audit of Incomplete Compensation and Pension Medical Examinations
Appendix B
VA Office of Inspector General 14
Sampling Methodology and Estimates Universe The audit universe consisted of 53,121 incomplete C&P exam requests canceled between October 1, 2007, and March 31, 2008. The universe was made up of all C&P exam requests canceled during this 6-month time period by the 137 VA HCFs that conduct C&P exams. The source of universe data was incomplete C&P exam request statistics reported on the VHA CBO’s Performance and Operational Web-Enabled Reports for each VA HCF. Sample Design We designed a two-stage statistical sampling plan to compute the error rate of incomplete C&P exam requests that were preventable by VA. In order to improve efficiency of our estimates, we divided the sampling universe of 21 VA HCFs into three strata of seven VA HCFs each based on volume (represented by the total number of exam requests per VA HCF). Total exam requests were calculated by adding the number of incomplete C&P exam requests and the number of completed C&P exam requests for the 6-month period. The results of our audit for all sampled strata were combined and projected to the universe to calculate weighted point estimates and associated margins of error at the 90 percent confidence level. In the first stage of sampling, we randomly selected 21 VA HCFs (7 from each strata) for review. For the second stage of the sample, we selected a simple random sample of 424 canceled C&P exam requests. See Tables 2 through 5 for more details. Table 2. Strata 1-High Volume VA HCFs Station Number Station Name Requests Completed Requests Incomplete Total Requests Incomplete Percentage Sample 436 Montana 2,313 255 2,568 9.9% 14 554 Denver 4,277 813 5,090 16.0% 45 561 New Jersey 2,638 620 3,258 19.0% 42 603 Louisville 2,374 484 2,858 16.9% 27 636 Central Plains 7,487 1,180 8,667 13.6% 65 642 Philadelphia 3,739 167 3,906 4.3% 11 673 Tampa 3,184 721 3,905 18.5% 50 Strata Totals 26,012 4,240 30,252 14.0% 254
Audit of Incomplete Compensation and Pension Medical Examinations
Appendix B
VA Office of Inspector General 15
Table 3. Strata 2-Medium Volume VA HCFs Station Number Station Name Requests Completed Requests Incomplete Total Requests Incomplete Percentage Sample 358 Manila 1,059 353 1,412 25.0% 19 463 Anchorage 1,118 363 1,481 24.5% 20 550 Danville 967 291 1,258 23.1% 16 621 Mountain Home 1,785 336 2,121 15.8% 18 629 New Orleans 1,550 427 1,977 21.6% 23 657A5 Marion 1,621 231 1,852 12.5% 13 660 Salt Lake City 1,091 339 1,430 23.7% 23 Strata Totals 9,191 2,340 11,531 20.3% 132 Table 4. Strata 3-Low Volume VA HCFs Station Number Station Name Requests Completed Requests Incomplete Total Requests Incomplete Percentage Sample 438 Sioux Falls 987 219 1,206 18.2% 12 590 Hampton 235 61 296 20.6% 3 600 Long Beach 69 60 129 46.5% 3 637 Asheville 28 11 39 28.2% 1 663 Puget Sound 230 140 370 37.8% 8 675GA Brevard 945 142 1,087 13.1% 8 687 Walla Walla 238 47 285 16.5% 3 Strata Totals 2,732 680 3,412 19.9% 38 Table 5. Sample Summary Data Requests Completed Requests Incomplete Total Requests Incomplete Percentage Sample Sample Totals 37,935 7,260 45,195 Avg. 16.1% 424 Universe Totals 249,884 53,121 303,005 Avg. 17.5% Sample Results We analyzed 424 incomplete C&P exam requests to determine if the canceled requests were preventable by VA. In total, we determined that 97 of 424 incomplete C&P exam requests could have been prevented by VA. We projected nationwide that about 12,000
Audit of Incomplete Compensation and Pension Medical Examinations
Appendix B VA Office of Inspector General 16
incomplete C&P exam requests canceled during the first half of FY 2008 could have been prevented by VA. Based on this projection, we estimated 24,000 incomplete C&P exam requests could have been prevented during FY 2008. Table 6. Summary of Projections for Incomplete C&P Exam Requests Preventable by VA Sample Projected Lower 90% Upper 90% Projected Percentage Margin of Error No 327 41,067 39,239 42,895 77.3% 3.4% Yes 97 12,054 10,226 13,882 22.7% 3.4% Total 424 53,121 53,121 53,121 100.0% We computed these projections from a sample of incomplete C&P exam requests. The margins of error in this report give the upper and lower bounds of a 90 percent confidence interval for each projection, as shown in Table 6. This means that 90 percent of the possible samples we could have selected of the same size and design would have resulted in an estimate within these bounds.
Audit of VA Incomplete Compensation and Pension Medical Examinations
Appendix C
Acting Under Secretary for Health Comments
Audit of VA Incomplete Compensation and Pension Medical Examinations
Appendix C
Acting Under Secretary for Health Comments
VA Office of Inspector General 18
Audit of VA Incomplete Compensation and Pension Medical Examinations
Appendix C

Audit of VA Incomplete Compensation and Pension Medical Examinations
Appendix C
Audit of VA Incomplete Compensation and Pension Medical Examinations Appendix C VA Office of Inspector General 22
Audit of VA Incomplete Compensation and Pension Medical Examinations
Appendix D
Under Secretary for Benefits Comments
Audit of VA Incomplete Compensation and Pension Medical Examinations Appendix D VA Office of Inspector General 24
Audit of VA Incomplete Compensation and Pension Medical Examinations
Appendix E
OIG Contact and Staff Acknowledgments OIG Contact Nick Dahl (781) 687-3120 Acknowledgments Maureen Barry Stephen Bracci Lee Giesbrecht David Orfalea Grace Terranova Joseph Vivolo VA Office of Inspector General 25
Audit of VA Incomplete Compensation and Pension Medical Examinations
Appendix F
Report Distribution VA Distribution Office of the Secretary Veterans Health Administration Veterans Benefits Administration National Cemetery Administration Assistant Secretaries Office of General Counsel Non-VA Distribution House Committee on Veterans’ Affairs House Appropriations Subcommittee on Military Construction, Veterans Affairs, and Related Agencies House Committee on Oversight and Government Reform Senate Committee on Veterans’ Affairs Senate Appropriations Subcommittee on Military Construction, Veterans Affairs, and Related Agencies Senate Committee on Homeland Security and Governmental Affairs National Veterans Service Organizations Government Accountability Office Office of Management and Budget This report will be on the VA OIG web site and remain on the OIG web site for at least two fiscal years after it is issued: http://www.va.gov/oig/publications/reports-list.asp. VA Office of Inspector General 26