Thursday, October 28, 2010

Hillyard v. Shinseki, Oral Arguments, Definition of Issue in CUE at the Board

The Veterans Court just heard oral arguments in Hillyard v. Shinseki, in which there was clear confusion regarding what the definition is regarding the term "issue". So much so that time was extended and a Bench Order was issued that each party was to submit a one sentence definition with 10 citations by 1PM this day.

This case may become pivotal in regard to CUE motions with Board decisions, as it will determine the scope and breath of CUE's that can be brought by the veteran following Board decisions.

We did our own quick research and found the Federal Circuit's definition of "issue" in Hamilton, we will be watching to see how the CAVC rules in this case and if it uses Hamilton.

Hamilton, 39 F.3d at 1586, 1584
"this Court in Hamilton, in specifically adopting certain definitions of "claim" and "issue" (from a VA regulation and a proposed VA regulation), defined the term "claim" as an application for VA benefits with respect to a specific "issue", and defined the term "issue" as including "whether service connection should be granted for a particular disability", which was the particular benefit sought in the underlying appeal to the BVA in the instant case. Hamilton, 4 Vet.App. at 536.


"defined the term "issue" as including "whether service connection should be granted for a particular disability", with respect to a specific "issue", as the term is used in the proposed, pending VA regulations. . . . 57 Fed. Reg. 4088, 4134 (1992 ) (proposing new 38 C.F.R. รน 20.3(k) to define "issue" generally as " the ultimate question to be decided in determining whether or not a particular benefit sought on appeal will be granted . . . and stating that "whether service connection should be granted for a particular disability" is an example of an "issue").)"
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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 08-1733
JOSEPH C. HILLYARD,
V.
APPELLANT,
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS,
APPELLEE.
Before GREENE, Chief Judge, and HAGEL, and SCHOELEN, Judges.
ORDER
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.

Joseph C. Hillyard appeals through counsel a February 8, 2008, Board of
Veterans' Appeals (Board)decision that dismissed with prejudice his motion to revise or reverse a February 1987 Board decision that denied entitlement to VA benefits for an acquired psychiatric disorder on the grounds of clear and unmistakable error. On appeal, Mr. Hillyard argues that the Board failed to properly
apply Andrews v. Nicholson, 421 F.3d 1278 (Fed. Cir. 2005).
On April 16, 2010, this Court referred Mr. Hillyard's appeal for a panel
decision without oral argument. The panel has since determined that oral argument and supplemental briefing are both necessary to resolve the matter before the Court.
The Court requires further briefing on the following questions:
(1) What is a "final decision" of the Board for purposes of when the Court
reviews motions to revise a prior decision of the Board?
(2) In the context of a clear and unmistakable error motion, what is the
definition of the terms "issue," "matter," "claim," "element of a claim," and "theory"? See, e.g., 38 C.F.R. § 20.1401 and § 3.105 (2010).
(3) When an appellant files a motion to revise either a Board or regional
office decision on the grounds of clear and unmistakable error, is there any limitation on the number of motions that can be filed? If so, what are those limitations? If not, why are there no limitations?
(4) If an appellant files a motion for revision of a Board decision based
on clear and unmistakable error with regard to any of the terms listed for definition in paragraph (1)


above, may the appellant submit an unlimited number of motions to revise
based on clear and unmistakable error, if each motion is based on a different theory?
(5) Is there a difference regarding the number of motions to revise a
decision based on clear
and unmistakable error that may be filed with respect to a regional office
decision, pursuant to 38 U.S.C. § 5109A and 38 C.F.R. § 3.105(a) (2010), and a Board
decision, pursuant to 38 U.S.C. § 7111 and 38 C.F.R. § 20.1400 (2010)?
(6) If the number of motions to revise is or can be limited, how does the
requirement that the Court provide a sympathetic reading to motions to revise based on clear and unmistakable error apply? Is there a difference in the application of this principle when the claimant is represented as opposed to self-represented?
(7)Assume the Secretary's interpretation is correct,
if a claimant submits a motion containing
two allegations of clear and unmistakable error in a final Board decision,
and the Board
denies one of those allegations on the merits but determines that the
other allegation was not
pleaded with the necessary specificity, would the claimant be able to file
a new motion for
clear and unmistakable error or perfect the unclear motion?
In addition, the Court welcomes any interested AMICUS CURIAE to file a
brief not later
than 30 days after the date of this order. See U.S. VET.APP. R. 29.
Upon consideration of the foregoing, it is
ORDERED that the Clerk of the Court schedule oral argument as the business
of the Court
permits, but not prior to 30 days after the date of this order. It is
further
ORDERED that the parties each submit a memorandum of law addressing these
issues; that
such memorandum include a table of cases and, delineate, in separate
sections, answers to the above
questions; and that the memoranda should be as succinct as possible and
cannot exceed 30 pages,
not including the table of cases. It is further
ORDERED that the parties' memoranda be filed within 30 days of the date of
this order.
DATED: July 19, 2010
Copies to:
Kenneth Carpenter, Esq.
PER CURIAM
Veterans Pro Bono Consortium, Director of Case Evaluation and Placement
VA General Counsel (027)
2

DOD Releases Mood Tracker App., Possible Multitude of Uses, PTSD, TBI, Suicide Prevention

Could this be adapted for use by veterans with PTSD, TBI and as an aid in tracking mood as to be helpful in early intervention so as to prevent suicide? It sure seems worth a try.

Full Article at: Military releases Android mental health app

By Dana Blankenhorn | October 28, 2010, 8:51am PDT

Summary

By using the application each day, soldiers can give the people who are conducting treatment for them a better handle on their patterns of feelings and act accordingly.


"The Department of Defense has released an Android app called the T2 Mood Tracker, which lets users track their moods over time.

Mood is a big research concern in the military. With so many of our warriors and heroes coming back from traumatic brain injuries, or Post Traumatic Stress Disorder, it is imperative we find better ways to monitor symptoms so tomorrow’s veterans are all they can be.

The National Center for Telehealth and Technology (called T2) developed the app.

In a DoD press release psychologist Perry Bosmajian emphasized the fit-for-mission nature of the new app.

Each issue, like brain injury or PTSD, has 10 “affective anchors,” descriptors which service members monitor and report on daily using slide bars. There’s also room for text additions.

Anchors include things like measures of whether you’re feeling worthless or valuable, tired or energetic and lonely or involved.

By using the application each day, soldiers can give the people who are conducting treatment for them a better handle on their patterns of feelings and act accordingly.

It’s a free app, available at the Android store near you, and assuming it’s open source (like Android) it could be of general use."

Univ. Minnestota Researchers, PTSD Diagnosis via Magnetoencephalography [MEG]

If this research is backed up by other researchers, then this may be indeed be the first step toward establishing a baseline upon which serious treatment protocol can be built

Full Article at: U of M researchers identify possible key to treating, understanding post-traumatic stress disorder
Contact: Nick Hanson
hans2853@umn.edu
612-624-2449
University of Minnesota


MINNEAPOLIS / ST. PAUL Minn. (October 28, 2010) – "University of Minnesota Medical School and Minneapolis Veterans Affair Medical Center researchers have discovered a correlation between increased circuit activity in the right side of the brain and the debilitating, involuntary flashbacks triggered by post traumatic stress disorder (PTSD).

The ability to objectively diagnose PTSD through concrete evidence of neural activity, its impact and its manifestation is the first step towards effectively helping those afflicted with this severe anxiety disorder.

PTSD often stems from war, but also can be a result of exposure to any psychologically traumatic event. The disorder can manifest itself in flashbacks, recurring nightmares, anger or hyper-vigilance.

Using a technique called Magnetoencephalography (MEG), a non-invasive measurement of magnetic fields in the brain, researchers found differences between signals in the temporal and parieto-occipital right hemispheric areas of the brain among those with PTSD. The temporal cortex, in accordance with earlier findings on the effects of its electrical stimulation during brain surgery, is thought to be responsible for the re-living of past experiences.

The research – led by Apostolos Georgopoulos, M.D., Ph.D., and Brian Engdahl., Ph.D., both members of the Brain Sciences Center at the Minneapolis VA Medical Center and University of Minnesota — is published today in the Journal of Neural Engineering.

It's a major scientific and medical discovery, Georgopoulos said, because the MEG tests reveal a clear difference in activity among the circuitry in the brains of PTSD sufferers in comparison to those without the condition. The findings are something conventional brain scans such as an X-ray, CT, or MRI have failed to demonstrate.

Besides diagnosing those with PTSD, the researchers also are able to judge the severity of a patient's suffering, which means the MEG may be able to be used to gauge the how badly patients are impacted by other brain disorders.

"Having a diagnostic exam capable of confirming post-traumatic stress disorder is critical in treating these patients properly," Georgopoulos said.

Also of particular interest to the scientists: during the study, the brains of PTSD sufferers were in the hyperactive state despite the lack of any immediate external stimulation, evidence found through trial subjects being purposefully put into a "task-free state." This finding is significant because it confirms that PTSD sufferers can relive terrifying memories at any moment regardless of what they are doing.

"Remarkably, the differences we found between the PTSD and the control groups were documented in a task-free state. Without evoking traumatic experiences, and therefore, reflects the status of steady-state neuronal interactions," Georgopoulos said."