Ft. Wayne-VA Medical concerns Substantiated, VAOIG Report 10-02810-139

"We substantiated that there were delays in notification of the patient’s test results and diagnosis of MG, with missed opportunities for follow-up care. We substantiated that a delay in diagnosis and treatment may have led to multiple ED visits and a subsequent hospital admission. We substantiated that a provider prescribed an antibiotic that exacerbated the patient’s MG."

Link to PRF full report at: Healthcare Inspection Quality of Care Issues VA Northern Indiana Health Care System, Ft. Wayne, Indiana

Report Number 10-02810-139, 3/31/2011 | Full Report (PDF)

The purpose of this review was to determine the validity of allegations regarding quality of care and delay in treatment of a patient at the VA Northern Indiana Health Care System, Fort Wayne, Indiana. A complainant alleged that there was a delay in notification of test results, diagnosis, and treatment, which may have led to multiple emergency department (ED) visits and a subsequent hospital admission. The complainant also alleged that his complaints of infection were ignored and that a medication was prescribed that exacerbated his Myasthenia Gravis (MG), a disease which affects the connection between muscles and nerves). Additional allegations included a breach in aseptic technique during intravenous therapy and delays in access to primary care. We substantiated that there were delays in notification of the patient’s test results and diagnosis of MG, with missed opportunities for follow-up care. We substantiated that a delay in diagnosis and treatment may have led to multiple ED visits and a subsequent hospital admission. We substantiated that a provider prescribed an antibiotic that exacerbated the patient’s MG. We did not substantiate that the patient’s complaints of infection were ignored. We could neither confirm nor refute that nurses did not use aseptic technique when connecting intravenous tubing or that there were significant delays in access to primary care.

We recommended that the system complete an external peer review for the appropriateness of care.

Eight Pittsbugh-VA Patients Transfered to New Hospital, Reason Not Given

Full article at: VA in Oakland transfers 8 patients to UPMC
Wednesday, March 30, 2011
By David Templeton, Pittsburgh Post-Gazette

"The VA Pittsburgh Healthcare System has removed eight patients from one unit at its University Drive facility in Oakland due to concerns about "effective, safe and first-rate care of veterans."."

"VA officials also would not say Tuesday why the eight patients had to be removed and whether improvements in care were being addressed."

Hampton-VA Emergency Room, Hospice Care Denied, VAOIG Report No. 10-04043-136

We substantiated the allegation that the Emergency Room (ER) provider did not perform a complete evaluation. We substantiated the allegation that staff did not provide the veteran with hospice care when requested.

Healthcare Inspection Emergency Room Discharge of a Hospice Patient Hampton VA Medical Center Hampton, Virginia

Report Number 10-04043-136, 3/30/2011 | Link to Full Report (PDF)

The VA Office of Inspector General Office of Healthcare Inspections evaluated the validity of four allegations made against the Hampton VA Medical Center, Hampton, VA. We substantiated the allegation that the Emergency Room (ER) provider did not perform a complete evaluation. We substantiated the allegation that staff did not provide the veteran with hospice care when requested. We did not substantiate the allegation that hospice beds were available on the day of the ER visit. We could not confirm or refute the allegation that staff treated the veteran and spouse poorly. We recommended that all ER staff receive training in hospice and palliative care, that active case finding for veterans in need of hospice and palliative care occurs, and that the facility conducts hospice and palliative care education activities for all clinical staff.

Single Judge Application, Buczyski v.Shinseki , Words Used Medical Report

Excerpt from decision below:
"However, the appellant's argument confuses the role of the medical examiner and the rating specialist. "The medical examiner provides a disability evaluation and the rating specialist interprets medical reports in order to match the rating
with the disability." Moore v. Nicholson, 21 Vet.App. 211, 218 (2007), rev'd on other grounds sub nom. Moore v. Shinseki, 555 F.3d 1369 (2009); see also 38 C.F.R. § 4.2 (2010) ("It is the responsibility of the rating specialist to interpret reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of present disability."). Hence, the Board is not bound by Dr.
Graeber's characterization of the appellant's CTS as "moderate" when it determines that the medical evidence and the claimant's overall disability picture does not support the doctor's characterization.
Additionally, the VA examinations do not lack all probative value merely because the examiners did not discuss the severity of the appellant's CTS in accordance with
classifications found in the DC. See Moore, supra; see also Buczynski v. Shinseki, __ Vet.App. __, __, 2011 WL 37846, at *5 (Jan. 6, 2011) ("When words are objective and have a precise medical meaning, then an examiner may be required to use those words to provide an adequate opinion. When words are subjective and do not have a precise medical meaning, then a medical opinion is adequate when the examiner provides sufficient detail so the rating specialist can interpret the report and make a subjective determination as to whether the condition meets the rating criteria."). Rather, medical examiners fulfill their role when they describe a claimant's symptoms "in sufficient detail so that the Board's '"evaluation of the claimed disability will be a fully informed one."'" Stefl, 21 Vet.App. at 123 (quoting Ardison, 6 Vet.App. at 407 (quoting Green, 1 Vet.App. at 124))."
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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 09-2612
ELIJAH J. RAWLS, JR., APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.

Before SCHOELEN, Judge.

MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.

SCHOELEN, Judge: The appellant, Elijah J. Rawls, Jr., through counsel,
appeals an April
22, 2009, Board of Veterans' Appeals (Board) decision in which the Board
denied his claims for
entitlement to service connection for erectile dysfunction (ED) and
hypertension, both to include as
secondaryto diabetes mellitus, Type II (DM), and an initial disability
rating in excess of 10% for left
upper extremity (LUE) carpal tunnel syndrome (CTS). Record of Proceedings (
R.) at 3-21. The
Board also denied claims for entitlement to service connection for an eye
disability, including
glaucoma, and the loss of taste and smell, to include as secondary to DM;
however, the appellant
raises no allegation of error with regard to those claims. Therefore, the
Court will consider the
matters to have been abandoned on appeal. See Ford v. Gober, 10 Vet.App.
531, 535 (1997)
(holding claims not argued on appeal are deemed abandoned); Bucklinger v.
Brown, 5 Vet.App. 435
(1993). This appeal is timely, and the Court has jurisdiction to review
the Board's decision pursuant
to 38 U.S.C. §§ 7252(a) and 7266(a). Single-judge disposition is
appropriate. See Frankel v.
Derwinski,1Vet.App.23,25-26(1990). Becausethe Secretaryprovided,and the
Board reliedupon,
a clearly inadequate medical examination to deny service connection for ED
and hypertension
secondary to DM, and the Board provided an inadequate statement of reasons
or bases to deny a


higher disability rating for LUE CTS, the Court will vacate the April 22,
2009, decision and remand
the matter for further proceedings consistent with this decision.
I. BACKGROUND
The appellant served on active duty in the U.S. Marine Corps from July
1963 to November
1967, including service in the Republic of Vietnam. R. at 4, 692. In May
2005, the appellant was
awarded service connection for DM. R. at 569-73. In 2006, the appellant
claimed entitlement to
service connection for ED, hypertension, and numbness in the left hand. R.
at 376. The appellant
underwent a VA compensation and pension examination in June 2006 to
evaluate his DM. R. at
502-04. TheVAexaminer noted that theappellant"has essentialhypertension[,]
whichisnot caused
by his [DM]." R. at 503. The VA examiner also reported that the appellant "
has incomplete [ED,]
which is more likely from longstanding hypertension, antihypertensive
medication[,] and [DM.]
[T]herefore, I am unable to resolve this ED issue without resor[t] to
speculation." R. at 503-04.
The appellant also underwent a VA compensation and pension examination in
September
2006 to evaluate upper extremity polyneuropathy. R. at 239. The examiner
noted "a significant
change in the subjective sensory findings in the last three months [and]
poor motor effort making
[him] suspicious of malingering." Id. The examiner opined that "[t]he
distribution of sensory loss
is inconsistent with polyneuropathy, and of to[o] rapid a progression to
be due to well[-]controlled
diabetes." Id.
In an October 25, 2006, rating decision, the regional office (RO) granted
entitlement to
service connection for LUE CTS, with a 10% disability rating, effective
from June 1, 2006, and
denied entitlement to service connection for ED and hypertension. R. at
364-74. The appellant
initiated a timely appeal disputing the assigned 10% disability rating for
LUE CTS and the denial
of his claims for ED and hypertension. R. at 158, 190, 203-29, 352. In
support of his request for a
higher disability rating for LUE CTS, the appellant submitted October 2006
and July 2008 medical
reports from Dr. Michael Graeber. R. at 44, 356.
The Board issued the decision currently on appeal on April 22, 2009. R. at
3-21. The Board
denied the appellant's ED and hypertension claims because it found the
appellant's lay statements
indicating an association between his condition and service outweighed by "
the negative service
2


treatment records, post[]service treatment records and the negative [June
2006] VA medical
opinion[] . . . (declining to connect ED [and] [hypertension] . . . to the
service-connected DM)." R.
at 13-14. The Board also denied a higher disability rating for LUE CTS
because it found that the
criteria for a disability rating in excess of 10% had not been met. R. at
6 (citing 38 C.F.R. §§ 4.20,
4.124a, Diagnostic Code (DC) 8515 (2008)). This appeal followed.
The appellant argues that the Board's determination that the evidence
preponderates against
the claim for service connection for ED as secondary to service-connected
DM is clearly erroneous
and must be reversed. Appellant's Brief (Br.) at 10-12. Alternatively, he
argues that the Board's
reliance on the 2006 VA medical opinion, without seeking clarification
from the examiner, was
prejudicial error warranting remand. Id. at 12-13. The appellant also
argues that his claim for
service connection for hypertension must be remanded because the 2006 VA
medical examiner did
not provide any rationale to support his opinion. Id. at 19-21. Finally,
the appellant argues that the
Board's finding that the evidence only established entitlement to a 10%
disability rating for LUE
CTS is clearly erroneous and should be reversed. Id. at 14-17.
Alternatively, he argues that the
matter should be remanded because the Board failed to explain adequately
why staged ratings were
not appropriate. Id. at 18-19.
The Secretary agrees that the Board erroneously characterized the June
2006 VA medical
examiner's opinion regardingED as a "negative opinion" and that the
examiner's opinion was clearly
inadequate to address the appellant's hypertension. Secretary's Br. at 9-
14. However, the Secretary
asserts that remand, not reversal, is the appropriate remedy. Id. at 9-11.
Finally, the Secretaryargues
that the Court should affirm the Board's denial of a higher disability
rating for LUE CTS. Id. at 5-9.
II. ANALYSIS
A. Service Connection for ED
Establishing service connection generally requires medical or, in certain
circumstances, lay
evidence of (1) a current disability; (2) incurrence or aggravation of a
disease or injury in service;
and (3) a nexus between the claimed in-service injury or disease and the
current disability. See
Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Hickson v.
West, 12 Vet.App. 247, 252
(1999); Caluza v. Brown, 7 Vet.App. 498, 506 (1995), aff'd per curiam, 78
F.3d 604 (Fed. Cir. 1996)
3


(table). Secondary service connection may be granted for any disability
that is "proximately due to
or the result of a service-connected disease or injury." 38 C.F.R. § 3.
310(a) (2010). See also Allen
v. Brown, 7 Vet.App. 439, 448 (1995) (en banc) (allowing secondary service
connection for
disability aggravated by service-connected condition).
Under 38 U.S.C. § 5103A(d), the Secretary's duty to assist includes, in
appropriate cases,
"providing a medical examination or obtaining a medical opinion when such
an examination or
opinion is necessary to make a decision on the claim." Although VA need
not provide a medical
examination in all cases, this Court has held that "once the
Secretaryundertakes the effort to provide
an examination when developing a service-connection claim, he must provide
an adequate one."
Barr v. Nicholson, 21 Vet.App. 303, 311 (2007). A medical examination is
considered adequate
"where it is based upon consideration of the veteran's prior medical
history and examinations and
also describes the disability, if any, in sufficient detail so that the
Board's '"evaluation of the claimed
disability will be a fully informed one."'" Stefl v. Nicholson, 21 Vet.App.
120, 123 (2007) (quoting
Ardison v. Brown, 6 Vet.App. 405, 407 (1994) (quoting Green v. Derwinski,
1 Vet.App. 121, 124
(1991))). "Whether a medical opinion is adequate is a finding of fact,
which this Court reviews
under the 'clearly erroneous' standard." D'Aries v. Peake, 22 Vet.App. 97,
104 (2008); see also
Gilbert v. Derwinski, 1 Vet.App. 49, 52 (1990).
The June 2006 VA medical examiner diagnosed the appellant with incomplete
ED, which
he attributed to "more likely . . . longstanding hypertension,
antihypertensive medication and DM."
R. at 503-04. He stated: "[T]herefore, I am unable to resolve this ED
issue without resort to
speculation." Id. at 504. The Board denied entitlement to service
connection for ED secondary to
DM because it viewed the examiner's statement as a "negative . . . medical
opinion." R. at 14. The
appellant argues that the only permissible view of the examiner's
statement is that "all three causes
have resulted in [ED]" and that "the only reason the VA examiner could
have concluded that he was
'unable to resolve this ED issue without resort to speculation' was that
he was under the false
impression that the [DM] needed to be the sole or predominate cause to
resolve the service[-]
connection issue." Appellant's Br. at 11. The appellant argues under
Mittleider v. West, 11 Vet.App.
181, 182 (1998) that "the Board was required to attribute the [ED]
completely to [his] service-
connected [DM] as opposed to the non-service-connected hypertension." Id.
at 12.
4


The Secretary asserts that remand, not reversal, is appropriate because
although the Board
improperly characterized the VA examiner's opinion as a "negative opinion,"
the opinion is subject
the more than one interpretation. Secretary's Br. at 10-11; see Fagan v.
Shinseki, 572 F.3d 1282,
1289 (Fed. Cir. 2009) ("The examiner's statement, which recites the
inability to come to an opinion,
provides neither positive nor negative support for service connection.").
The Secretary argues that
"it is just as likely that the examiner intended to convey that he was
unable to determine which one
of three potential causes was responsible for [the] [a]ppellant's ED."
Secretary's Br. at 11. In his
reply brief, the appellant argues that, under either interpretation, the
only plausible view of the
evidence preponderates in favor of the claim. Reply Br. at 2-6.
Recently the Court was called upon to address the adequacy of VA medical
examinations
when the examiners stated that they could not resolve the etiological
questions "without resort to
speculation." See Jones v. Shinseki, 23 Vet.App. 382, 385 (2010). The
Court held that
[a]n examiner's conclusion that a diagnosis or etiology opinion is not
possible
without resort to speculation is a medical conclusion just as much as a
firm diagnosis
or a conclusive opinion. However, a bald statement that it would be
speculative for
the examiner to render an opinion as to etiology or diagnosis is fraught
with
ambiguity. For example, it is not clear whether the examiner lacks the
expertise to
render such an opinion, or whether some additional testing or information
is needed,
and possibly available, that would permit such an opinion, either of which
would
render the opinion inadequate for resolving the claim. Thus, before the
Board can
rely on an examiner's conclusion that an etiology opinion would be
speculative, the
examiner must explain the basis for such an opinion or the basis must
otherwise be
apparent in the Board's review of the evidence.
Jones, 23 Vet.App. at 390 (citation omitted).
Here, as in Jones, the 2006 VA examiner baldlystated that he could not
resolve the ED issue
without resort to speculation. R. at 504. He did not explain whether his
speculative answer
"reflect[s] the limitations of knowledge in the medical community at large
. . . [or] those of [the]
particular examiner." Jones, 23 Vet.App. at 390. The ambiguity generated
by his bare statement is
compounded by the fact that the examiner did not provide any discussion or
analysis of the medical
evidence that lead to his conclusion that the appellant's ED was related
to any of the listed causes,
or in which way any one or all of them contributed to his ED. See
generally Nieves-Rodriguez v.
Peake, 22 Vet.App. 295, 304 (2008) ("It is the factually accurate, fully
articulated, sound reasoning
5


for the conclusion . . . that contributes probative value to a medical
opinion."). Although each of the
parties posits a plausible interpretation of the examiner's statement,
adoption of either interpretation
would require the Court to speculate as to why the examiner suggested that
than etiology opinion
regarding ED was not possible. Hence, where, as here, the medical examiner
failed to explain
adequately why he is unable to render an opinion without resort to
speculation, and it is not
otherwise clear from the examiner's report or the Board's discussion of
the evidence, the appropriate
remedy is to remand the matter for further clarification. See Jones, 23
Vet.App. at 390 ("[I]t must
be clear, from either the examiner's statements or the Board decision,
that the examiner has indeed
considered 'all procurable and assembled data,' by obtaining all tests and
records that might
reasonably illuminate the medical analysis."); see Barr, supra.
Although the appellant argues for reversal, and remand in the alternative,
remand is the
appropriate remedy "where the Board has incorrectly applied the law,
failed to provide an adequate
statement of reasons or bases for its determinations, or where the record
is otherwise inadequate."
Tucker v. West, 11 Vet.App. 369, 374 (1998); see also Hicks v. Brown, 8
Vet.App. 417, 422 (1995)
(where the record is incomplete, remand – not reversal – is the
appropriate remedy to allow the
Board to complete the record and readjudicate the matter). Moreover, when
an examination report
is inadequate, the Board should remand the case to the RO for further
development. Bowling v.
Principi, 15 Vet.App. 1, 12 (2001) (citing 38 C.F.R. § 19.9(a) (2000)
when holding that the Board
has a duty to remand a case "[i]f further evidence or clarification of the
evidence or correction of a
procedural defect is essential for a proper appellate decision"); see also
Green, 1 Vet.App. at 124
(holding that remand is appropriate where the Board relied on an
inadequate examination report).
Therefore, the Court will remand the matter to the Board to seek
clarification from the VA medical
examiner or to provide a new medical examination, if necessary, addressing
whether the appellant's
ED is related to his service-connected DM. See Tyrues v. Shinseki, 23 Vet.
App. 166, 182-83 (2009)
(holding that the Board committed prejudicial error by failing to seek
clarification from a VA
examiner or otherwise explaining why such clarification was unnecessary
where the Board rejected
the examiner's opinion as inconsistent), aff'd, 631 F.3d 1380 (Fed. Cir.
2011).
In pursuing his case on remand, the appellant is free to submit additional
evidence and
argument on the remanded matters, and the Board is required to consider
anysuch relevant evidence
6


and argument. See Kay v. Principi, 16 Vet.App. 529, 534 (2002) (stating
that, in considering a
matter on remand, the Board must consider additional evidence and argument
in assessing
entitlement to benefit sought); Kutscherousky v. West, 12 Vet.App. 369,
372-73 (1999) (per curiam
order). The Court has held that "[a] remand is meant to entail a critical
examination of the
justification for the decision." Fletcher v. Derwinski, 1 Vet.App. 394,
397 (1991). The Board must
proceed expeditiously, in accordance with 38 U.S.C. § 7112 (requiring
Secretary to provide for
"expeditious treatment" of claims remanded by the Court).
B. Service Connection for Hypertension
The Court agrees with the parties that the Board erred when it relied on
the 2006 VA medical
examiner's single conclusory statement that the appellant "has essential
hypertension which is not
caused by his [DM]." R. at 503; Appellant's Br. at 19-21; Secretary's Br.
at 11-13. The examiner
provided no analysis or rationale for his conclusion that the appellant's
DM did not cause his
hypertension. Under these circumstances, the opinion was not entitled to
any probative weight and
the Board's reliance on the report was clearly erroneous. See Nieves-
Rodriguez, 22 Vet.App. at 304
("Neither a VA examination report nor a private medical opinion is
entitled to any weight in a
service-connection or rating context if it contains only data and
conclusions."); Stefl, 21 Vet.App.
at 124 (a medical opinion must "support its conclusions with an analysis
that the Board can consider
and weigh against contrary opinions"); D'Aries, supra. Accordingly, the
appellant's claim for
entitlement to service connection for hypertension must also be remanded
for a further medical
examination. See Bowling and Green, both supra. As with his ED claim, the
appellant is free to
submit additional evidence and argument on the remanded matter, and the
Board is required to
consider any such relevant evidence and argument. See Kay and
Kutscherousky, both supra. The
Board must proceed expeditiously, in accordance with 38 U.S.C. § 7112 (
requiring Secretary to
provide for "expeditious treatment" of claims remanded by the Court).
C. Higher Disability Rating for LUE CTS
The Board's assignment of a disability rating is a finding of fact that
the Court reviews under
the "clearly erroneous" standard of review. See Johnston v. Brown, 10 Vet.
App. 80, 84 (1997). A
finding of material fact is clearly erroneous when the Court, after
reviewing the entire evidence, "is
left with the definite and firm conviction that a mistake has been
committed." United States v. U.S.
7


Gypsum Co., 333 U.S. 364, 395 (1948); see also Gilbert, 1 Vet.App. at 52.
This Court has held that
"separate ratings can be assigned for separate periods of time based on
the facts found – a practice
known as staged ratings." Hart v. Mansfield, 21 Vet.App. 505, 510 (2007) (
citing Fenderson v.
West, 12 Vet.App. 119, 126 (1999)). The Board's consideration of staged
ratings is triggered "when
the factual findings show distinct time periods where the service-
connected disability exhibits
symptoms that would warrant different ratings." Hart, 21 Vet.App. at 510.
In its decision, the Board found that the appellant's LUE CTS is properly
rated under
38 C.F.R. § 4.124a, DC 8515, which utilizes the terms "mild," "moderate,"
and "severe." R. at 17.
The Board correctly noted that none of those terms are defined in the VA
rating schedule. Id.
However, the Board stated the following:
The Board finds that the appellant's isolated complaints of pain and
difficulty with
his grip when performing such tasks as driving are most accurately
described as mild
in nature. There is no evidence of any significant limitation in function
or any other
symptoms whichwouldallowfortheassignmentofhigher ratings basedonmoderate
disability under Diagnostic Code 8515. While the Board notes Dr. G[raeber]
's
notation of "moderate" CTS, this conclusion is simply not supported by the
medical
evidence of record. There is no objective evidence of record which
suggests that
more significant disability is present. In fact, there is some question as
to whether
the appellant is malingering, as noted in the September 2006 VA
examination report.
R. at 19. Finally, with regard to the applicability of staged ratings, the
Board found that the
appellant's "service-connected LUE CTS has not changed appreciably since
the appellant filed his
claim" and that there is no medical evidence supporting the assignment of
a disability rating in
excess of 10% at any time during the course of the appeal. R. at 19-20.
The appellant argues that the Court should reverse the Board's finding and
award a 20%
disability rating for his LUE CTS because the evidence of record clearly
demonstrates a "moderate"
disability. Appellant's Br. at 14-17. First, the appellant argues that the
VA medical examinations
that diagnosed bilateral CTS are not probative as to the question of the
severity of his CTS because
the examiners did not opine as to whether the disability should be
characterized as "mild" or
"moderate." Id. at 15; see R. at 181-82, 239-40. He argues that the only
probative evidence of
record is Dr. Graeber's diagnosis of "moderate" CTS, which is supported by
a finding of "overt
sensory delay-dispersion with some sensory axon loss" and "moderate distal
motor delay without
motor axon loss." Appellant's Br. at 15; see R. at 44, 180. Consequently,
the appellant argues that
8


the Board's finding that Dr. Graeber's notation of moderate CTS is not
supported by the medical
evidence is clearly erroneous.
The Court disagrees. This Court has held that "reversal is the appropriate
remedy when the
only permissible view of the evidence is contrary to the Board's decision."
Gutierrez v. Principi,
19 Vet.App. 1, 10 (2004) (citing Johnson v. Brown, 9 Vet.App. 7, 10 (1996
)). The appellant relies
on Dr. Graeber's notation that the appellant's CTS is "moderate" to argue
that the evidence clearly
demonstrated entitlement to a 20% disability rating. R. at 180. However,
the appellant's argument
confuses the role of the medical examiner and the rating specialist. "The
medical examiner provides
a disability evaluation and the rating specialist interprets medical
reports in order to match the rating
with the disability." Moore v. Nicholson, 21 Vet.App. 211, 218 (2007),
rev'd on other grounds sub
nom. Moore v. Shinseki, 555 F.3d 1369 (2009); see also 38 C.F.R. § 4.2 (
2010) ("It is the
responsibility of the rating specialist to interpret reports of
examination in light of the whole
recorded history, reconciling the various reports into a consistent
picture so that the current rating
may accurately reflect the elements of present disability."). Hence, the
Board is not bound by Dr.
Graeber's characterization of the appellant's CTS as "moderate" when it
determines that the medical
evidence and the claimant's overall disability picture does not support
the doctor's characterization.
Additionally, the VA examinations do not lack all probative value
merelybecause the examiners did
not discuss the severity of the appellant's CTS in accordance with
classifications found in the DC.
See Moore, supra; see also BuczynskiNext Document v. Shinseki, __ Vet.App. __, __, 2011
WL 37846, at *5 (Jan.
6, 2011) ("When words are objective and have a precise medical meaning,
then an examiner may be
required to use those words to provide an adequate opinion. When words are
subjective and do not
have a precise medical meaning, then a medical opinion is adequate when
the examiner provides
sufficient detail so the rating specialist can interpret the report and
make a subjective determination
as to whether the condition meets the rating criteria."). Rather, medical
examiners fulfill their role
when theydescribe a claimant's symptoms "in sufficient detail so that the
Board's '"evaluation of the
claimed disability will be a fully informed one."'" Stefl, 21 Vet.App. at
123 (quoting Ardison,
6 Vet.App. at 407 (quoting Green, 1 Vet.App. at 124)).
In this case, the Board found that Dr. Graeber's notation of "moderate"
CTS was not
supported by the medical evidence of record. R. at 19. The Board
determined that the appellant's
9


complaints were more accurately described as mild and found "no evidence
of significant limitation
in function."
Id.
Indeed, Dr. Graeber's October 2006 treatment record noted "prominent
neurophysiologic changes across carpal tunnels bilaterally, though hand-
arm 'symptoms' reportedly
very mild and not really significant at present." Id. (emphasis added). As
a result, the Court cannot
say that the only permissible view of Dr. Graeber's report supports a 20%
disability rating.
Nevertheless, the Court agrees with the appellant insofar as he asserts
that the Board failed to
adequately explain why staged ratings were not appropriate in this case.
The appellant correctly
observes thattheBoard failed to address potentiallyfavorablemedical
evidence showinganincrease
in the severity of his disability when it summarily stated that the
appellant's LUE CTS "has not
changed appreciably since the appellant filed his claim." R. at 19;
Appellant's Br. at 18-19; Reply
Br. at 9-11. In particular, the appellant argues that the Board failed to
discuss Dr. Graeber's July
2008 statement that the appellant's "hand symptoms may be slightly worse"
as well as a February
2008 VA medical center treatment note documenting that the appellant was
issued bilateral wrist
splints and complained of experiencing hand numbness while driving and
sleeping that had become
worse over the last six months. R. at 44, 142-43. While the Board is not
required to discuss all the
evidence of record, it must explain its rejection of favorable evidence.
Dela Cruz v. Principi,
15 Vet.App. 143, 149 (2001); Thompson v. Gober, 14 Vet.App. 187, 188 (2000
) (Board must
provide an adequate statement of reasons or bases "for its rejection of
any material evidence
favorable to the claimant"); Abernathy v. Principi, 3 Vet.App. 461, 465 (
1992) (A mere listing of
the relevant evidence is not adequate to fulfill the Board's obligation to
provide a statement of
reasons or bases for its decision.). Because the Board failed to discuss
evidence showing that the
appellant's symptoms increased in severity during the pendency of his
claim, the Board's decision
is not supported by an adequate statement of reasons or bases and the
matter must be remanded for
the Board to consider the applicability of staged ratings. See Hart, supra.
Given this disposition, the Court will not at this time address the
remaining arguments and
issues raised by the appellant. See Best v. Principi, 15 Vet.App. 18, 20 (
2001) (per curiam order)
(holding that "[a] narrow decision preserves for the appellant an
opportunity to argue those claimed
errors before the Board at the readjudication, and, of course, before this
Court in an appeal, should
the Board rule against him"). While pursuing his case on remand, the
appellant is free to submit
10


additional evidence and argument on the remanded matter, and the Board is
required to consider any
such relevant evidence and argument. See Kay and Kutscherousky, both supra.
The Board must
proceed expeditiously, in accordance with 38 U.S.C. § 7112 (requiring
Secretary to provide for
"expeditious treatment" of claims remanded by the Court).
III. CONCLUSION
After consideration of the appellant's and the Secretary's pleadings, and
a review of the
record, the Board's April 22, 2009, decision is VACATED and the matter is
REMANDED to the
Board for further proceedings consistent with this decision.
DATED: March 25, 2011
Copies to:
Amy F. Fletcher, Esq.
VA General Counsel (027)
11

Single Judge Application, Revised CFR 3.304(f), Applicability to Pending Claim before Veterans Court

Excerpt from decision below:
"The Board determined that the appellant had a diagnosis of PTSD and did not have combat service. The Board denied the claim, finding that there was no credible supporting evidence corroborating an in-service stressor event. Given this Court's recent holding in Ervin v. Shinseki, __ Vet.App. __, No. 08-3287, 2011 WL 835470 at *7 (March 10, 2011)("[W]here, as here, the evidence includes a current diagnosis of PTSD but the Board denied the claim because there was no corroboration of the asserted stressor in service, a remand is warranted."), the Court will grant the appellant's motion and remand the appellant's claim for an acquired psychiatric disorder, to include PTSD, in order for the Board to have the opportunity to determine whether the factual basis for the appellant's PTSD claim falls
within the ambit of the revised § 3.304(f)."

========================================
Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 10-2028
WILLIAM D. FOUGHT, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before MOORMAN, Judge.
ORDER
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.

On June 15, 2010, the pro se appellant, William D. Fought, filed a Notice of Appeal of a July 20, 2009, Board of Veterans' Appeals ( Board) decision. On July 22, 2010, the appellant moved to remand the appeal because the Board failed to "adequately assist [him] in verifying [his] PTSD [(post-traumatic stress disorder)] stressors as required by" VA's June 13, 2010, change to 38 C.F.R. § 3.304(f). The Secretary opposed the appellant's motion and argued that the newly revised § 3.304(f) was not for application in this case because it "does not apply to cases that are currently on appeal" to the Court. On August 9, 2010, the Court ordered this case stayed pending further order of the Court.
Under 38 U.S.C. § 7252, the Court has exclusive jurisdiction to review final decisions of the Board. The July 20, 2009, Board decision denied service connection for an acquired psychiatric disorder, including PTSD. The Board determined that the appellant had a diagnosis of PTSD and did not have combat service. The Board denied the claim, finding that there was no credible supporting evidence corroborating an in-service stressor event. Given this Court's recent holding in Ervin v. Shinseki, __ Vet.App. __, No. 08-3287, 2011 WL 835470 at *7 (March 10, 2011)("[W]here, as here, the evidence includes a current diagnosis of PTSD but the Board denied the claim because there was no corroboration of the asserted stressor in service, a remand is warranted."), the Court will grant the appellant's motion and remand the appellant's claim for an acquired psychiatric disorder, to include PTSD, in order for the Board to have the opportunity to determine whether the factual basis for the appellant's PTSD claim falls within the ambit of the revised § 3.304(f). The Court does not make any decision as to whether any error existed in the Board's July 20, 2009, decision as that decision is now vacated.


Upon consideration of the foregoing, it is
ORDERED that the stay of proceedings is lifted. It is further
ORDERED that the appellant's motion to remand is granted and the Board's
July 20, 2009, decision is VACATED and REMANDED for further proceedings consistent with this order.
DATED: March 28, 2011
BY THE COURT:
WILLIAM A. MOORMAN
Judge
Copies to:
William D. Fought
VA General Counsel (027)
2

Single Judge Application, Savage v. Shinseki, No. 09-4406, Vague and Speculative Medical Opinion

Excerpt from decision below:

"After briefs were submitted in this case, this Court issued a decision in
Savage v. Shinseki, __ Vet.App. __, No. 09-4406 (Jan. 4, 2011), which held:
[W]hen VA concludes that a private medical examination report is unclear
or insufficient in some way, and it reasonably appears that a request for
clarification . . . could provide relevant information that is otherwise
not in the record and cannot be obtained in some other way, the Board must either seek clarification from the private examiner or the claimant or clearly and adequately explain why such clarification is unreasonable. __ Vet.App. at __, slip op. at 15. The Court made it clear, however, that the Board's duty to clarify private medical opinions is limited and will not arise in most instances. Id. at 16. The Court held that VA's duty only arises in "those instances in which the missing information is relevant, factual, and objective – that is, not a matter of opinion – and where the missing evidence bears greatly on the probative value of the private examination report." Id."

======================================================
"Given that this case was largely decided based on the Board's weighing of Dr. Torres-Hodges's opinion against the opinion of the July 2008 VA examiner, a clarification of her opinion is of key importance. The need for such a clarification fits squarely within the Court's limiting instruction under Savage, __ Vet.App. at __, slip op. at 16. A clarifying statement would be relevant, factual, and objective because it would explain what Dr. Torres-Hodges meant by "proximal joints" and whether her opinion was based on a known diagnosis of the appellant's knee condition, and it bears greatly on the probative value of the examination because the Board found the examination vague and speculative based on those points. The Court, therefore, finds that the Board's failure to seek clarification of Dr. Torres-Hodges's opinion or to include in its decision an explanation for why it need not do so renders its statement of reasons or bases for its decision inadequate. See 38 U.S.C. § 7104(d)(1); Allday; Caluza; and Gilbert, all supra.

=========================================
----------------------------------------------------

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 09-0939
BARBARAET E. REMBERT, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.

Before SCHOELEN, Judge.

MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.

SCHOELEN, Judge: The pro se appellant, Barbaraet E. Rembert, appeals a
March 4, 2009, Board of Veterans' Appeals (Board) decision that denied her entitlement to service connection for bilateral patellofemoral syndrome with tendonitis, claimed as secondary to her service-connected bilateral foot disabilities. Record of Proceedings (R.) at 3-8. This appeal is timely, and the Court has jurisdiction to review the Board's decision pursuant to 38 U.S.C. §§
7252(a) and 7266(a).
Single-judge disposition is appropriate. Frankel v. Derwinski, 1 Vet.App.
23, 25-26 (1990). For the following reasons, the Court will vacate the Board's decision and remand the matter for further proceedings consistent with this opinion.

I. BACKGROUND
A. Facts
The appellant served on active duty in the U.S. Army from May 1980 until July 1992. R. at 807. In October 1992, the appellant was awarded service connection for a hallux valgus deformity of both feet and granted a 10% disability rating. R. at 791. In August 2002, a VA examiner noted that the appellant was likely suffering from patellofemoral syndrome. R. at 280.

In a March 2003 statement, the appellant's private podiatrist, Dr. Grace
E. Torres-Hodges, described surgical repair performed on the appellant's feet. R. at 225. Concerning the appellant's complaints of pain in her knees, hips, and back, Dr. Torres-Hodges noted that "[a]lthough it is difficult to definitively link the etiology of these additional symptoms, it is likely that failure of the original [in-service] surgery resulted in a change in gait that translated to changes and pain in more proximal joints." Id. In May 2007, a VA regional office (RO) granted the appellant entitlement to service connection for pes planus with metatarsalgia and sesamoiditis and a 10% disability rating. R. at 87-90.
The appellant was provided with a VA examination in July 2008. R. at 20-21. The examiner diagnosed the appellant with "pain in both knees, etiology undetermined." Id. The examiner concluded:
It is my opinion that it is less likely than not that the patient's patellofemoral syndrome and patellar tend[o]nitis are approximately due to or the result of a service-connected bilateral feet disorders. It is further my opinion that it is less likely as not that the veteran's knee disorders have been aggravated by her feet disorders or that they caused her knee disorders to increase in severity. This opinion is based on the fact that the medical literature and my own 49-year experience in orthopedics do not support the knee disorders such as described above to be caused by or aggravated by a bilateral pes planus condition. They are totally independent and not co-related. R. at 21.
The Board, in its March 4, 2009, decision here on appeal, found that the
appellant is not entitled to service connection for bilateral patellofemoral syndrome with tendonitis. The Board dismissed Dr. Torres-Hodges's opinion, finding that her concluding statement "is unclear as to whether [she] was referring to the [appellant's] knees as the 'more proximal joints' and further whether she was aware of the [appellant's] specific diagnoses referable to the knees." R. at 7. Thus,
the Board found that her statement was "vague and speculative in nature." Id. The Board stated that, because of this conclusion, it ordered the July 2008 VA medical
examination. Id.
The Board noted that the July 2008 VA examiner "reviewed the [appellant's]
claims file, including her history referable to her feet and her knees." R. at 7. The Board, in discussing the probative value of the medical opinion, stated:
This opinion is found to be credible. It was offered by a competent
medical
2


professional, who reviewed the claims file, as evidenced by his accurate
rendering of the relevant facts in the exam report. He supported his conclusion with
sound reasoning. As such, this is highly probative of the issue at hand.
Id. The Board found that Dr. Torres-Hodges's opinion "lacks the specificity required to substantiate a claim for service connection benefits." R. at 8. "The VA opinion, on the other hand, demonstrated knowledge of the nature of the [appellant's] bilateral foot and knee disabilities specifically, and reached a negative conclusion based on the evidence." Id. The Board thus found the VA examiner's opinion more probative than Dr.Torres-Hodges's, and concluded that "the evidence does not support a causal relationship between the [appellant's] current knee disorders and her service-connected bilateral foot disorders." Id.

B. Arguments on Appeal
The appellant argues that her July 2008 VA examination was only a perfunctory five-minute evaluation and that the subsequent examination report was inadequate and
incorrect. Appellant's Brief (Br.) at 1-2. The appellant states that the problems with her knees began "before I even had surgery on [my] feet while on active duty." Id. at 2. The appellant contends that her foot surgeries have caused "a change in gait and limp" which has led to deterioration of her knees. Id. The appellant requests that the Court reverse the Board's decision, or in the alternative, that it remand the Board's decision so that VA may provide her an adequate medical
examination. Id. at 3.
The Secretary asserts that the July 2008 examination report was "based upon a review of [a]ppellant's claims file," among other materials. Secretary's Br. at 6. Thus, he argues, the examiner's opinion was "not a bare conclusion . . . but was supported by review of her file and the examiner provided a rationale for his opinion." Id. at 7. Therefore, the Secretary concludes, the Court should find the VA examination was adequate. Id.

II. ANALYSIS
Establishing service connection generally requires medical or, in certain
circumstances, lay evidence of (1) a current disability; (2) incurrence or aggravation of a disease or injury in service; and (3) a nexus between the claimed in-service injury or disease and the current disability. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Hickson v. West, 12 Vet.App. 247, 252
3


(1999); Caluza v. Brown, 7 Vet.App. 498, 506 (1995), aff'd per curiam, 78
F.3d 604 (Fed. Cir. 1996)(table). A finding of service connection is a finding of fact that the Court reviews under the "clearly erroneous" standard of review. See Dyment v. West, 13 Vet.App. 141, 144 (1999).
When deciding a matter, the Board must include in its decision a written
statement of the reasons or bases for its findings and conclusions, adequate to enable an appellant to understand the precise basis for the Board's decision as well as to facilitate review in this Court. See 38 U.S.C. § 7104(d)(1); Allday v. Brown, 7 Vet.App. 517, 527 (1995); Gilbert v. Derwinski, 1 Vet.App. 49, 56-57 (1990). To comply with this requirement, the Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Caluza supra; Gilbert, 1 Vet.App. at 57.

A. Dr. Torres-Hodges's Opinion
After briefs were submitted in this case, this Court issued a decision in
Savage v. Shinseki, __ Vet.App. __, No. 09-4406 (Jan. 4, 2011), which held:
[W]hen VA concludes that a private medical examination report is unclear
or insufficient in some way, and it reasonably appears that a request for
clarification . . . could provide relevant information that is otherwise
not in the record and cannot be obtained in some other way, the Board must either seek clarification from the private examiner or the claimant or clearly and adequately explain why such clarification is unreasonable. __ Vet.App. at __, slip op. at 15. The Court made it clear, however, that the Board's duty to clarify private medical opinions is limited and will not arise in most instances. Id. at 16. The Court held that VA's duty only arises in "those instances in which the missing information is relevant, factual, and objective – that is, not a matter of opinion – and where the missing evidence bears greatly on the probative value of the private examination report." Id.
The Court finds that the holding in Savage applies to the present case.
The Board dismissed Dr. Torres-Hodges's opinion because it found it "vague and speculative in nature." R. at 7. The Board found it vague and speculative because it was "unclear" whether she was referring to the appellant's knees whens he stated that the appellant's "proximal joints" might be impacted by her foot disorders and whether Dr. Torres-Hodges was aware of "specific diagnoses" made concerning the
4


appellant's knees. Id. Given that this case was largely decided based on
the Board's weighing of Dr. Torres-Hodges's opinion against the opinion of the July 2008 VA examiner, a clarification of her opinion is of key importance. The need for such a clarification fits squarely within the Court's limiting instruction under Savage, __ Vet.App. at __, slip op. at 16. A clarifying statement would be relevant, factual, and objective because it would explain what Dr. Torres-Hodges meant by "proximal joints" and whether her opinion was based on a known diagnosis of the appellant's knee condition, and it bears greatly on the probative value of the examination because the Board found the examination vague and speculative based on those points. The Court, therefore, finds that the Board's failure to seek clarification of Dr. Torres-Hodges's opinion or to include in its decision an explanation for why it need not do so renders its statement of reasons or bases for its decision inadequate. See 38 U.S.C. § 7104(d)(1); Allday; Caluza; and Gilbert, all supra.
This Court has held that "reversal is the appropriate remedy when the only
permissible view of the evidence is contraryto the Board's decision." Gutierrez v. Principi, 19 Vet.App. 1, 10 (2004). Remand is appropriate "where the Board has incorrectly applied the law, failed to provide an adequate statement of reasons or bases for its determinations, or where the record is otherwise inadequate." Tucker v. West, 11 Vet.App. 369, 374 (1998). Because the Board failed to obtain
clarification of an unclear private medical examination and thus failed to
provide an adequate statement of reasons or bases for its decision, the Court will remand the Board's decision. Id. On remand, the Board should explore whether requesting information clarifying Dr. Torres-Hodges's statement is appropriate and provide an adequate statement of reasons or bases concerning its efforts
to obtain a clarification or its decision not to do so.

B. Other Issues
At least three laystatements from the appellant are included in the record.
R. at 113, 177-78, 242. In one, the appellant links her knee pain to the disorders in her feet. R. at 177-78. In another, she states that the problems with her feet cause her pain and difficulty standing and walking. R. at 242. The Board did not discuss the appellant's lay statements. The Court reminds the Board that "[l]ay testimony is competent . . . to establish the presence of observable symptomatology and 'may provide sufficient support for a claim of service connection.'" Barr v. Nicholson, 21 Vet.App. 303, 307 (2007) (quoting Layno v. Brown, 6 Vet.App.
5


465, 469 (1994)); see also Charles v. Principi, 16 Vet.App. 370, 374 (
2002) (stating that a layperson is competentto offertestimonyregardingsymptoms capable of observation).
There is no categorical requirement of "'competent medical evidence . . . [when] the determinative issue involves either medical etiologyor a medical diagnosis.'" Davidson, 581 F.3d at 1316 (quoting Jandreau, 492 F.3d at 1377). On remand, the Board should reconsider its decision to exclude discussion of the appellant's lay statements from its statement of reasons or bases.
Given this disposition, the Court will not, at this time, address the appellant's
other arguments and issues concerning her claim, including whether the July 2008 VA
medical examination report was adequate. See Best v. Principi, 15 Vet.App. 18, 20 (2001). "A narrow decision preserves for the appellant an opportunity to argue those claimed errors before the Board at the readjudication, and, of course, before this Court in an appeal, should the Board rule against him." Id. In pursuing
her case on remand, the appellant is free to submit additional evidence and argument on the remanded matters, including whether the July 2008 VA medical examination was adequate, and the Board is required to consider any such relevant evidence and argument. See Kay v. Principi, 16 Vet.App. 529, 534 (2002) (stating that, on remand, the Board must consider additional evidence and argument in assessing entitlement to benefit sought); Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999) (per curiam order). The Court has held that "[a] remand is meant to entail a critical examination of the justification for the decision." Fletcher v. Derwinski, 1 Vet.App. 394, 397(1991). The Board must proceed expeditiously, in accordance with 38 U.S.C. § 7112 (requiring Secretary to provide for "expeditious treatment" of claims remanded by the Court).

III. CONCLUSION
After consideration of the appellant's and Secretary's pleadings, and a
review of the record,
the Board's March 4, 2009, decision is VACATED and the matter is REMANDED
to the Board for
further proceedings consistent with this decision.
DATED: March 21, 2011
Copies to:
Barbaraet E. Rembert
VA General Counsel (027)
6

VA Hospital Care Compared, Some VA Hospitals Far Better Than Others

Full article at: Data Spur Changes in VA Care
By THOMAS M. BURTON

"The U.S. Department of Veterans Affairs in November started posting online comparisons of the nation's 152 VA hospitals based on patient outcomes: essentially, how likely patients are to survive a visit without complications at one hospital compared with the rest."

"Still, after seeing that the Kansas City VA Medical Center's posted surgical-death rate was about 79% higher than expected for the severity of its patients' illnesses, a veteran might opt for the VA hospitals in St. Louis; Columbia, Mo.; or Wichita, Kan.; which posted relatively lower surgical-fatality rates."


Department of Veterans Affairs Hospital Compare
This site is for Veterans, family members and their caregivers to compare the performance of their VA hospitals to other VA hospitals. Using this tool, Veterans, family members, and caregivers can compare the hospital care provided to patients

VA Grants 33,193 Agent Orange Claims as of February 2011

See full break down at VA Agent Orange Report Card

Claims Granted Based on New Presumptive Agent Orange Conditions
Data Current through February 7, 2011

Claims Granted -------------------------- 33,193

Retroactive Compensation Paid ---------- $621,009,719

Average Award --------------------------- $18,709

Single Judge Application, CFR 3.159(c), Demonstrating Relevance of Records VA Failed to Obtain

Excerpt from decision below:
"Under 38 C.F.R. § 3.159(c)(2010), VA's dutyto assist includes assisting a
claimant to obtain evidence necessary to substantiate a claim. VA's duty to give such assistance extends to those attempting to reopen a finally decided claim. Id.
Here, the Secretary does not dispute the appellant's argument that VA made
no attempt to obtain his medical records. As § 3.159(c) clearly states that the duty to assist includes obtaining records for an appellant who seeks to reopen a claim, the Court concludes that VA failed to fulfill its duty to assist. As for whether this error was prejudicial, in his request for VA to obtain the records, the appellant denoted the conditions for which each record was relevant. R. at 219, 220, 222, 234. By making clear references that the records he seeks VA to obtain relate to his lymphoma and to his hepatitis C, the appellant meets his burden of demonstrating that these records are potentially relevant to his attempting to reopen his claim and he is prejudiced by the RO and Board not having these records to review to make its decision."

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

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

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 09-3136
JOHN R. BARBACCIA, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before LANCE, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
LANCE, Judge: The appellant, John R. Barbaccia, through counsel, appeals a
June 23,
2009, Board of Veterans' Appeals (Board) decision that found that new and
material evidence had
not been submitted to reopen claims for entitlement to service connection
for hepatitis C and non-
Hodgkin's lymphoma and that denied entitlement to service connection for a
disability manifested
byshortness of breath and fatigue. Record (R.) at 3-20. Single-judge
disposition is appropriate. See
Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). This appeal is timely,
and the Court has
jurisdiction over the case pursuant to 38 U.S.C. §§ 7252(a) and 7266.
For the reasons that follow,
the Court will vacate the June 23, 2009, decision and remand the matter
for further proceedings
consistent with this decision.
I. FACTS
The appellant served on active duty in the U.S. Army from April 1979 to
May 1982. R. at
345. The Board notes that the appellant also served in the ArmyNational
Guard from May1 to May
9, 1992, and from February 1 to July 29, 2003. R. at 4.
In April 2000, the appellant filed an application for compensation or
pension for non-
Hodgkin's lymphoma and hepatitis C. R. at 233-37. In February 2001, the
appellant submitted a


list of sources and records that he consented to VA obtaining to assist
with his claims. R. at 222-23.
On April 2, 2002, the Oakland, California, regional office (RO) denied his
claims for entitlement to
service connection for hepatitis C and non-Hodgkin's lymphoma. R. at 200-
04.
In March 2005, the appellant sought to reopen his claims for entitlement
to service
connection for hepatitis C and non-Hodgkin's lymphoma and filed a claim
seeking entitlement to
service connection for a disability manifested by shortness of breath and
fatigue. R. at 148-51. In
August 2005, the RO denied the appellant's claims. R. at 138-142. The
decision noted that service
medical records (SMRs) did not list any conditions associated with
shortness of breath and that VA
treatment records did not attribute mild shortness of breath or easy
fatigability to service. R. at 139.
The decision also stated that new and material evidence had not been
submitted to reopen the
appellant’s claims for service connection for hepatitis C and non-
Hodgkin’s lymphoma. R. at
140-141. In November 2005, the appellant filed a Notice of Disagreement (
NOD). R. at 77. In
August 2006, the RO issued a Statement of the Case (SOC). R. at 42-62. The
SOC stated that the
appellant’s claims to reopen were denied because he submitted only
evidence of diagnosis and
treatment for hepatitis C and non-Hodgkin’s lymphoma after discharge
from service. R. at 61.
Regarding the appellant’s claim for entitlement to service for fatigue
and shortness of breath, the
SOC stated that service connection was not warranted absent evidence
showing a chronic disability
or disease associated with shortness of breath and fatigue and absent
evidence linking this disability
to service. Id. The appellant filed an appeal in September 2006. R. at 37.
In the decision currently on appeal, the Board denied the appellant’s
claims for hepatitis C
and non-Hodgkin’s lymphoma because the evidence submitted since the 2002
denial was new but
not material and there was no evidence linking the diseases to service. R.
at 18-19. Regarding the
appellant’s claim for fatigue and shortness of breath, the Board found
no evidence to associate the
claimed symptoms to service. R. at 19.

II. ANALYSIS
A. Duty to Obtain Records
The appellant agues that VA failed to fulfill its duty to assist because "
VA made no attempt to secure records from anyof thenumerousprimary,treating,
privatephysiciansincluding those who first diagnosed the non-Hodgkins lymphoma and hepatitis C diseases, and who were therefore in the best position to provide opinions concerning etiology." R. at 3-4. The Secretary argues that the
appellant's written consent (R. at 220, 222) was submitted in February
2001, which is prior to the April 2002 rating decision that became final, and that the consent was not "new and material" under 38 C.F.R. 3.156(a) (2010), because it was previously of record. Secretary's Brief (Br.) at 8. The Secretary further asserts that the appellant "has not demonstrated any prejudice where these post-
service records were not obtained where his claims were denied due in part
to lack of evidence of in-service occurrence." Id., citing R. at 18-19.
Under 38 C.F.R. § 3.159(c)(2010), VA's dutyto assist includes assisting a
claimant to obtain evidence necessary to substantiate a claim. VA's duty to give such assistance extends to those attempting to reopen a finally decided claim. Id.
Here, the Secretary does not dispute the appellant's argument that VA made
no attempt to obtain his medical records. As § 3.159(c) clearly states that the duty to assist includes obtaining records for an appellant who seeks to reopen a claim, the Court concludes that VA failed to fulfill its duty to assist. As for whether this error was prejudicial, in his request for VA to obtain the records, the appellant denoted the conditions for which each record was relevant. R. at 219, 220, 222, 234. By making clear references that the records he seeks VA to obtain relate to his lymphoma and to his hepatitis C, the appellant meets his burden of demonstrating that these records are potentially relevant to his attempting to reopen his claim and he is prejudiced by the RO and Board not having these records to review to make its decision. The Court remands the appellant’s claims for hepatitis C and non-Hodgkin’s lymphoma so that VA can fulfill its duty to obtain the records referenced by the appellant.

B. Inadequate Reasons and Bases
The appellant argues that the Board provided inadequate reasons or bases
for its denial of
his claim for service connection for fatigue and shortness of breath.
Appellant's Br. at 7-10. The
Secretary defends the Board's decision by noting that these are recent
symptoms and there is no
evidence that they are related to any period of active military service.
Secretary's Br. at 9-10.
The Board is required to include in its decision a written statement of
the reasons or bases for its findings and conclusions on all material issues of fact and law presented on the record; 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); Gilbert v. Derwniski, 1 Vet. App. 49, 56-57 (1990).
While the appellant argues that the Board denied this claim on the basis
that he did not have a diagnosis for his disability (Appellant's Br. at 7-10), the Secretary notes that the Board based its denial on "the overarching matter that there is no evidence linking the symptoms to any period of service or any service-connected disability" (Secretary's Br. at 10). In its decision, the Board notes
that the appellant's conditions of fatigue and shortness of breath "
recurrently appear in clinical
records associated with [his cancer or hepatitis C] diagnoses and care
therefor since 1994." R. at
19. Given that the appellant's complaints of fatigue and shortness of
breath may or may not be symptoms of his other two claims that the Court has decided warranted remand, the Court will also remand these claims for the Board to readjudicate along with his claims to reopen once the appellant's medical records have been obtained. See Tyrues v.Shinseki,23 Vet.App. 166, 178 (2009) (en banc) (holding that "the Court retains its discretion to determine at the threshold that a claim or theory denied by the Board in any such decision or portion of a decision
on review is so inextricably intertwined with matters still pending before VA that it should be remanded to VA to await development or disposition of a claim or theorynot yet finally decided by VA") aff'd 631 F.3d 1380 (Fed. Cir. 2011).

C. Duty to Provide a Medical Examination
Finally, the appellant argues that VA failed to fulfill its duty to assist
by failing to obtain medical opinions concerning the etiology of his hepatitis C, non-Hodgkin's lymphoma, and his claims of fatigue and shortness of breath. Appellant's Br. at 10-13. As the Court is remanding these three claims, the Court concludes that this argument should be addressed by VA once it has attempted to gather the additional medical records. See Shade v. Shinseki, 24 Vet.App. 110, 117
(2010) (when evaluating the materiality of newly submitted evidence, the Board should not focus solely on whether the evidence remedies the principal reason for denial in the last prior decision, but rather should focus on whether the evidence, taken together, could at least trigger the duty to assist by providing a medical opinion).
On remand, the appellant is free to submit additional evidence and
argument, including the arguments raised in his briefs to this Court, in accordance with Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999) (per curiam order), and the Board must consider any such evidence or argument


submitted.
See Kay v. Principi, 16 Vet.App. 529, 534 (2002).
The Board shall proceed
expeditiously, in accordance with 38 U.S.C. §§ 5109B, 7112 (requiring
Secretary to provide for "expeditious treatment" of claims remanded by Board or Court).

III. CONCLUSION
After consideration of the appellant's and the Secretary's briefs, and a
review of the record, the Board's June 23, 2009, decision is VACATED and the matter is REMANDED to the Board for further proceedings consistent with this decision.
DATED: March 18, 2011
Copies to:
Robert Franklin Howell, Esq.
VA General Counsel (027)

Single Judge Application, Cogburn v. Shinseki, 24 Vet.App. Implicit Denial, Specificity of Adjudication, Relatedness of the Claims

Excerpt from decision below:
"First, the specificity of the August 1996 Board decision makes it unlikely that a claimant would anticipate that the Board was adjudicating a service connection claim for allergic rhinitis. See Cogburn v. Shinseki, 24 Vet.App. 205, 216 (2010) (noting that specificity of adjudication is a factor to consider in determining whether a claim has been implicitly denied). The August 1996 Board repeatedly referred to two conditions related to a respiratory disorder – asthma and sinusitis – and the decision discussed only evidence relating to these conditions. At no point did the Board refer to any respiratory disorder other than sinusitis and asthma. Second, the decision does not purport to deny any claim for a disability related to a respiratory disorder, and a reasonable claimant would not construe a grant of service connection for a respiratory disorder based on sinusitis and asthma conditions to be, in the same breadth, a denial of a claim for entitlement to service connection for allergic rhinitis.
This is particularly true because the conditions in question are so closely related. See id. at 215-16 (noting that the relatedness of the claims is a factor to consider in determining whether a claim has been implicitly denied)."
==============================================


Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 09-1849
PAUL J. SACIA, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before SCHOELEN, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
SCHOELEN, Judge: The appellant, Paul J. Sacia, through counsel, appeals a
May14, 2009,
Board of Veterans' Appeals (Board) decision in which the Board denied his
claims for entitlement
to an effective date earlier than October 18, 1996, for the grant of
service connection for allergic
rhinitis and for entitlement to an increased disability rating for service-
connected allergic rhinitis.
Record of Proceedings (R.) at 29. He does not challenge the Board's
findings pertaining to his
increased disability rating claim, and that claim is deemed abandoned. See
Ford v. Gober,
10 Vet.App. 531, 535 (1997) (holding that claims not argued on appeal are
deemed abandoned).
This appeal is timely, and the Court has jurisdiction to review the
Board's decision pursuant to
38 U.S.C. §§ 7252(a) and 7266(a). Both parties filed briefs, and the
appellant filed a reply brief.
Additionally, the appellant filed a citation of supplemental authority
under Rule 30(b) of the Court's
Rules of Practice and Procedure. Single-judge disposition is appropriate.
See Frankel v. Derwinski,
1 Vet.App. 23, 25-26 (1990). For the following reasons, the Court will
reverse the Board's decision
and remand the matter for further proceedings consistent with this
decision.


I. BACKGROUND
The Board found that the appellanthad active servicein the U.S. Armyfrom
January3, 1991,
to July 1, 1991, and from February 14, 1994, to July 21, 1994. R. at 4.
In a June 1995 rating decision, the regional office (RO) denied the
appellant's claim for
entitlement to service connection for "respiratory and/or pulmonary
impairment, including
asthma/bronchitis, sinusitis." R. at 1845. The rating codesheet attached
to the decision shows that
the appellant was found to be non-service connected for "
RESPIRATORY/PULMONARY
IMPAIRMENT; ASTHMAand/orBRONCHITIS, andSINUSITIS/RHINITIS." R. at 1848. In
July
1996, the appellant filed a VA Form 9, Appeal to Board of Veterans'
Appeals, expressing his desire
to appeal this decision. R. at 1748. He specifically listed rhinitis on
this form. Id. At a July 1996
Board hearing, the hearing officer indicated that the issue on appeal was "
entitlement to service
connection for an undiagnosed condition causing respiratory and pulmonary
impairment including
asthma, bronchitis, and sinusitis." R. at 1766.
In August 1996, the Board issued a decision granting the appellant's claim
for entitlement to
service connection "for a respiratory disorder, specifically, asthma and
sinusitis." R. at 1763. The
Board determined that, although asthma and sinusitis "clearly and
unmistakably preexisted the
appellant's period of active duty," those conditions "were shown to have
chronically increased in
severity during the appellant's period of active duty." R. at 1758. The
Board specifically noted that
the appellant had been treated for asthma and sinusitis in service. R. at
1760. The Board concluded
that "service connection for the respiratory disorders referred to in
service medical records,
specifically asthma and sinusitis, is warranted." Id. The Board's decision
did not expressly refer to
allergic rhinitis. See generally R. at 1756-63.
The appellant submitted a letter to the RO in October 1996 inquiring as to
why his rhinitis
claim was not part of the August 1996 Board decision. R. at 1440. He
pointed out that the previous
rating decision had included rhinitis. Id. He stated that "[i]n the [r]
ating [s]chedule [r]hinitis is a
distinct code that is indeed separate from both sinusitis and asthma.
Therefore [r]hinitis cannot be
commingled with sinusitis." Id. In an April 1999 rating decision, the RO
granted the appellant's
claim for entitlement to service connection for allergic rhinitis and
assigned a 10% disability rating,
effective June 30, 1997. R. at 1114. The RO stated that "[t]he previous
rating action granted service
2


connection for respiratoryallergyin conjunction with the
previouslyserviceconnected sinusitis" but
that "[t]he [appellant's] attorney has correctly noted that the rating
schedule provides for separate
evaluations for sinusitis and allergic rhinitis." Id. In August 2005, the
Board adjusted the assigned
effective date for service connection for allergic rhinitis to October 18,
1996. R. at 198.
In the May 2009 decision on appeal, the Board denied the appellant's claim
for an effective
date earlier than October 18, 1996, for the grant of service connection
for allergic rhinitis. R. at 29.
TheBoard,apparentlyconcedingthattheappellantfiledaclaimforentitlementto
serviceconnection
forallergicrhinitis priortoAugust 1996,determinedthattheAugust
1996Boarddecision"implicitly
denied" this claim. R. at 15 (citing Ingram v. Nicholson, 21 Vet.App. 232 (
2007)). The Board stated
that
[t]he [August 1996] Board's decision made note of the fact that the only
respiratory
disabilitieswhichwerepresent duringservicewere sinusitis and asthma. Inso
doing,
the Board effectively denied service connection for any and all
respiratory disorders
other than sinusitis and asthma, including allergic rhinitis. The August
1996 Board
decision put the [appellant], who was represented by an attorney, on
notice that his
allergic rhinitis claim was being considered and rejected. In short, the
denial of
service connection for any respiratory disorders aside from sinusitis and
asthma was
a denial of service connection [for] allergic rhinitis.
R. at 16. This appeal followed.
II. ANALYSIS
On appeal, the appellant contends that the implicit denial rule does not
apply to decisions of
the Board and therefore it was not appropriate for the Board, in the
decision on appeal, to determine
that his claim for entitlement to service connection for allergic rhinitis
was implicitly denied by the
August 1996 Board. Appellant's Brief (Br.) at 8-9. The Secretary argues
that this case is controlled
by a line of cases from both this Court and the U.S. Court of Appeals for
the Federal Circuit.
Secretary's Br. at 6-8 (citing Adams v. Shinseki, 568 F.3d 956 (Fed. Cir.
2009) and Jones v. Shinseki,
23 Vet.App. 122 (2009)). He argues that the claim was implicitly denied by
the RO in June 1995
(id. at 9-12) and that "[t]he August 1996 Board decision indicated that
all other respiratorydisorders,
other than asthma and sinusitis, were denied" (id. at 12). He contends
that "[t]his exclusion of all
other claims other than sinusitis and asthma should have put [the
appellant] on notice that something
3


was not right about his appeal." Id. In his reply brief, the appellant
attempts to distinguish the cases
that the Secretary cited and reasserts that the implicit denial rule does
not apply at the Board level.
Reply Br. at 3-5. He also argues that the August 1996 Board did not decide
the allergic rhinitis
claim. Id. at 5.
The determination of the effective date of an award is generally governed
by 38 U.S.C.
§ 5110(a), which states that, "[u]nless specifically provided otherwise
. . . , the effective date of an
award based on an original claim [or] a claim reopened after final
adjudication . . . shall be fixed in
accordance with the facts found, but shall not be earlier than the date of
receipt of application
therefor." 38 U.S.C. § 5110(a); see 38 C.F.R. § 3.400 (2010). A "pending
claim" is "[a]n
application, formal or informal, which has not been finally adjudicated."
38 C.F.R. § 3.160(c)
(2010). Consistent with this regulation, this Court has held that "[a]
reasonablyraised claim remains
pending until there is either a recognition of the substance of the claim
in an RO decision from which
a claimant could deduce that the claim was adjudicated or an explicit
adjudication of a subsequent
'claim' for the same disability." Ingram, 21 Vet.App. at 241. "[I]f the
appellant believes that the
Secretary has incorrectly determined the date when his claim began, he may
argue that the 'claim'
identified was merely additional correspondence on his previously pending
claim." Id. at 243.
The Board conceded that the appellant's "initial claim for VA benefits
included a claim for
service connection for allergic rhinitis." R. at 5. Moreover, the
Secretary does not dispute that the
June 1995 RO decision denied the appellant's claim for entitlement to
service connection for allergic
rhinitis. See Secretary's Br. at 9-12; see also R. at 1848 (rating
codesheet to June 1995 rating
decision
showing
that
the
appellant
was
non-service
connected
for
"RESPIRATORY/PULMONARY IMPAIRMENT; ASTHMA and/or BRONCHITIS, and
SINUSITIS/RHINITIS"). Finally, there does not appear to be a dispute as to
whether the allergic
rhinitis claim was properly before the Board in August 1996. The Court
notes that the appellant's
July 1996 Substantive Appeal to the Board specifically referred to
rhinitis. R. at 1748.
In the briefs filed with the Court, the parties debate whether the
implicit denial rule can apply
to decisions of the Board. However, the Court need not reach this
particular issue because, even
assuming the rule does apply to Board decisions, the Board's conclusion
that a reasonable claimant
would be able to deduce from the August 1996 Board decision that a claim
for entitlement to service
4


connection for allergic rhinitis had been denied is clearly erroneous.
See Previous DocumentLocklearNext Document v. Shinseki,
__ Vet.App. __, __, No. 09-2675, slip op. at 9, U.S. Vet. App. 291, at *18-
19 (Feb. 11, 2011)
(applying the "clearly erroneous" standard to review a Board's finding
that a total disability rating
based on individual unemployability was implicitly denied in earlier RO
and Board decisions); see
also Gilbert v. Derwinski, 1 Vet.App. 49, 52 (1991) ("'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))).
There are two reasons for the Court's conclusion. First, the specificity
of the August 1996
Board decision makes it unlikely that a claimant would anticipate that the
Board was adjudicating
a service connection claim for allergic rhinitis. See Cogburn v. Shinseki,
24 Vet.App. 205, 216
(2010) (noting that specificity of adjudication is a factor to consider in
determining whether a claim
has been implicitly denied). The August 1996 Board repeatedly referred to
two conditions related
to a respiratory disorder – asthma and sinusitis – and the decision
discussed only evidence relating
to these conditions. At no point did the Board refer to any respiratory
disorder other than sinusitis
and asthma. Second, the decision does not purport to deny any claim for a
disability related to a
respiratory disorder, and a reasonable claimant would not construe a grant
of service connection for
a respiratory disorder based on sinusitis and asthma conditions to be, in
the same breadth, a denial
of a claim for entitlement to service connection for allergic rhinitis.
This is particularly true because
the conditions in question are so closely related. See id. at 215-16 (
noting that the relatedness of the
claims is a factor to consider in determining whether a claim has been
implicitly denied). The Court
notes that the appellant had a specific diagnosis of allergic rhinitis in
June 1994. R. at 2007. It is
also worth pointing out that the appellant's subsequent action indicates
that he did not have actual
knowledge that his allergic rhinitis claim was adjudicated in the August
1996 Board decision as, in
October 1996, he mailed a letter to the RO inquiring into the status of
the claim. R. at 1440. In
short, contrary to the Board's conclusion, a reasonable claimant could not
have deduced from the
August 1996 decision that a claim to entitlement to service connection for
allergic rhinitis had been
denied.
5


Based on the foregoing analysis, the Board's finding that the August 1996
Board implicitly
denied the appellant's claim to entitlement to service connection is
clearly erroneous and will be
reversed. The Court will remand this matter to the Board for further
adjudication consistent with
this decision.
III. CONCLUSION
After consideration of the appellant's and the Secretary's pleadings, and
a review of the
record, the Board's May 14, 2009, decision is REVERSED and the matter is
REMANDED to the
Board for further proceedings consistent with this decision.
DATED: March 14, 2011
Copies to:
David Boelzner, Esq.
VA General Counsel (027)
6

Army Developing Standarized Care for TBI-Related Vision Problems

"In the past, Soldiers diagnosed with TBI have not been routinely examined for functional visual problems at Army Military Treatment Facilities."

"Under this new initiative, personnel with TBI-related vision problems will have the benefit of a coordinated program of diagnostic services and multidisciplinary rehabilitative care, standardized across the entire Army Medical Department.

The goal is to have a standardized TBI vision exam for all Army personnel with traumatic brain injury and to coordinate the care with other providers."


Army shines light on TBI vision problems

Mar 23, 2011

By Rob McIlvaine, ARNEWS

ARLINGTON, Va. (Army News Service, March 22, 2011) -- The U.S. Army, with the support of the Vision Center of Excellence, launched a new Army Traumatic Brain Injury Vision Rehabilitation Initiative in February.

While Traumatic Brain Injury, or TBI, is a significant injury of current military operations in Iraq and Afghanistan, this new initiative is designed to ensure Soldiers with TBI-associated eye problems are diagnosed and referred, if needed, for comprehensive, functional eye examinations and rehabilitative care.

"In addition to headaches or general problems with comprehension, attention, concentration or memory, TBI patients commonly suffer functional vision difficulties including focusing problems, double vision, difficulty reading, sensitivity to light, aching eyes, or loss of visual field," said Maj. Jinjong Chung, who is leading the project for the Rehabilitation and Reintegration Division of the Office of the Army Surgeon General.

After a deployment to Iraq, Chung returned to a position as a TBI staff officer.

"Though I have a pretty well-developed knowledge base in the optometric field, brain injury was a new field for me, as it is for many practitioners," said Chung who also earned a Master's in Health Administration from Army-Baylor University.

Later brought to work in the Army Office of the Surgeon General at R2D to help integrate vision care into TBI care, Chung developed a working group composed of optometrists who were working with TBI patients at larger centers in order to develop a strategic plan to spread to the rest of the Army.

The key component to this initiative, he said, is educating optometrists, patients and rehabilitation providers about different techniques.

"The Army is putting a lot of effort in the care of TBI patients, and the Army optometrist has to be prepared to recognize and manage these patients," Chung said.

In the past, Soldiers diagnosed with TBI have not been routinely examined for functional visual problems at Army Military Treatment Facilities.

"Even facilities that have a robust TBI program may not have systems in place to appropriately follow up with eye examinations or vision rehabilitative care," Chung said.

Under this new initiative, personnel with TBI-related vision problems will have the benefit of a coordinated program of diagnostic services and multidisciplinary rehabilitative care, standardized across the entire Army Medical Department.

The goal is to have a standardized TBI vision exam for all Army personnel with traumatic brain injury and to coordinate the care with other providers.

"Following exam protocols, Army optometrists will diagnose TBI-related vision conditions and then, as appropriate, provide a range of vision correction measures -- from lenses to prisms, and or to initiate a program of vision rehabilitation," Chung said.

Chung and his project working group are helping to strengthen already established rehabilitative programs for patients with TBI-related eye problems at Landstuhl Regional Medical Center and Walter Reed Army Medical Center, as well as in medical centers at Fort Bragg, N.C.; Fort Carson, Colo.; and Fort Campbell, Ky.

"It's great to have these services at larger centers where there is a large staff and specialized providers, but what about the practitioner at a smaller outpost? That practitioner is also seeing TBI-related vision problems and must be able to ensure proper care," Chung said.

Currently, a step-by-step vision rehab toolkit for providers who do not routinely provide functional eye exams is being prepared by Chung and Mitchell Scheiman, a professor and vision researcher at the Pennsylvania College of Optometry.
Ultimately, Chung hopes the Army Vision Rehabilitation Initiative will serve as a model for health-care systems outside the military.

"TBI is not limited to the military population. Health-care practitioners in most settings can expect to see a growing number of patients as TBI awareness grows. TBI-related vision problems must be addressed in these patients.

"That makes standardized, interdisciplinary programs of vision rehabilitation care for patients with TBI an immediate necessity for both the military and civilian sectors," Chung said.

Through the Army's TBI program efforts, Chung said many providers are getting smarter on TBI and working with these patients to take care of their symptoms.

Research, he said, suggests there are real problems such as focusing, eye tracking and eye movement, but it doesn't address the duration of those problems.

Soon, the Defense and Veterans Brain Injury Center will conduct a longitudinal study to follow TBI patients and he said perhaps this study will provide more information on the lasting effects of TBI.

"We continue to streamline our efforts to include identifying best practices, coordinating and standardizing services across the continuum of care to ensure each Soldier gets the right care at the right time," Chung said.

For more information, visit the Psychological Health and Traumatic Brain Injury Center at http://www.dcoe.health.mil/.

38% Female Veterans Dissatisfied with VA Care

THE AMERICAN LEGION - WOMEN VETERANS SURVEY 2011

Full Article at: Female Vets Dissatisfied with VA Medical Benefits

"The study also found:

- 25 percent of women veterans said they're dissatisfied with the competence of VA health providers compared to private doctors.

- Nearly 40 percent are dissatisfied with the screening process for military sexual trauma, which is required for all vets receiving VA care.

- 38 percent said they wouldn't use a VA doctor for a second opinion, even if it was free

Allegations Regarding Inadequate Veteran Care at Martinez Outpatient Clinic, Substantiated by VAOIG Report 10-02468-131

"We substantiated the allegations regarding inadequate care for two of the six patients reviewed. We also substantiated the allegation that the CLC lacked the infrastructure in which to provide quality care for observation patients."

Full report in PDF at: Report Summary, Healthcare Inspection Alleged Quality of Care Issues Martinez Outpatient Clinic and Center for Rehabilitation and Extended Care, Martinez, California

Report Number 10-02468-131, 3/23/2011

The VA Office of Inspector General Office of Healthcare Inspections conducted an inspection to determine the validity of allegations regarding quality of care issues at the Martinez Outpatient Clinic (OPC) and Center for Rehabilitation and Extended Care (CLC). The complainant alleged that six patients received inadequate care as observation patients, the CLC lacked the infrastructure for quality observation care, and the OPC placed surgical outpatients in a contracted community setting with no nursing care after their procedures. We substantiated the allegations regarding inadequate care for two of the six patients reviewed. We also substantiated the allegation that the CLC lacked the infrastructure in which to provide quality care for observation patients. We determined that system managers took appropriate actions. Therefore, we did not make any recommendations regarding these allegations. We did not substantiate the allegation that surgical outpatients were inappropriately placed in a contracted community setting without adequate care after their procedures. We concluded that policies need to be developed for the local temporary lodging or Hoptel Program, employees need to be educated about the program, and Gains and Losses sheets should document lodger check-ins and check-outs.

We recommended that the System Director ensure that local temporary lodging or Hoptel Program policies and procedures are developed, implemented, and monitored to ensure compliance with Veterans Health Administration policy.

Over Half of Iraq and Afghanistan Veterans Treated by VA, Treated for Mental Health Conditions

Full article at: Half the Afghanistan and Iraq veterans treated by VA receive mental health care

By Bob Brewin 03/22/2011

"Slightly more than half of all Afghanistan and Iraq war veterans treated by the Veterans Affairs Department received care for mental health problems, roughly four times the rate of the general population,"

"The data show that among the 625,834 Afghanistan and Iraq war veterans enrolled in the VA health care system as of December 2010, 313,670 were treated for mental health conditions."

57% Error Rate for Houston-RO, VAOIG Report No. 10-03770-125

"Overall, VARO staff did not accurately process 68 (57 percent) of the 120 disability claims reviewed."

Full report PDF, No. 10-03770-125 at: PDF, Inspection of the VA Regional Office Houston, Texas

Report Number , 3/21/2011 | Full Report (PDF)

The Benefits Inspection Division conducts onsite inspections at VA Regional Offices (VAROs) to review disability compensation claims processing and Veterans Service Center (VSC) operations. We found Houston VARO management ensured staff generally followed Veterans Benefits Administration (VBA) policy to correctly establish dates of claims in the electronic record and process incoming mail. VARO management lacked effective controls and accuracy in processing temporary 100 percent disability evaluations, and post-traumatic stress disorder, traumatic brain injury, and herbicide exposure-related claims. Overall, VARO staff did not accurately process 68 (57 percent) of the 120 disability claims reviewed. The VARO also was not timely in recording Notices of Disagreement for appealed claims, correcting errors identified by VBA’s Systematic Technical Accuracy Review program, and completing Systematic Analyses of Operations. Processing competency determinations, managing mail in the Triage Team, and safeguarding personally identifiable information also were not fully effective.

We recommended that Houston VARO management review all remaining temporary 100 percent disability evaluations identified during our inspection to determine if reevaluations are required and take appropriate actions. Management needs to implement controls to ensure the VSC staff establishes suspense diaries for temporary 100 percent disability reevaluations. In addition, we recommended management implement controls to improve accuracy and quality review of post-traumatic stress disorder claims. Further, management needs to provide refresher training and improve quality review of traumatic brain injury and herbicide exposure-related disability claims. We also recommended VARO management strengthen controls to ensure timely establishment of Notices of Disagreement in the Veterans Appeals Control and Locator System and timely completion of Systematic Analyses of Operations. Management also needs to implement plans to ensure oversight of mail handling, accurate processing of final competency determinations, and safeguarding of personally identifiable information. The Director of the Houston VARO concurred with all recommendations. Management’s planned actions are responsive and we will follow up as required on all actions.

Single Judge Application, Boggs v. Peake, 520 F.3d, PTSD, Depression, Anxiety, Each Separate Diagnosis and Separate Claims

In Boggs v. Peake, 520 F.3d 1330, 1335 (Fed. Cir. 2008), the U.S. Court of Appeals for the Federal Circuit held that "the 'factual basis' of a claim for purposes of 38 U.S.C. § 7104(b) is the veteran's disease or injury rather than the symptoms of the veteran's disease or injury," that "a properly diagnosed disease or injury cannot be considered the same factual basis as [another] distinctly diagnosed disease or injury," and that "[i]t follows that because § 7104(b) distinguishes claims according to their factual bases, claims based upon distinctly and properly diagnosed diseases or injuries cannot be considered the same claim." As a result, the appellant's claims for service connection for depression and anxiety are separate claims from his claim to reopen his denied claim for entitlement to service connection for PTSD, as his anxiety and depression are distinctly and properly diagnosed diseases. See id.; cf. Clemons v. Shinseki, 23 Vet.App.
1, 7-8 (2009).

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


Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 09-3210
JOHN A. MATICH, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.

Before LANCE, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.

LANCE, Judge: The appellant, John A. Matich, through counsel, appeals an August 11, 2009, Board of Veterans' Appeals (Board) decision that denied a reopening of his claim for entitlement to service connection for post-traumatic stress disorder (PTSD). Record (R.) at 3. The appellant does not present any argument concerning the actual denial of his request to have his PTSD claim reopened. Accordingly, that claim is deemed abandoned. See Ford v. Gober, 10 Vet.App. 531, 535 (1997). Single-judge disposition is appropriate. See Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). This appeal is timely; however, the Court does not have jurisdiction over the issues raised by the appellant pursuant to 38 U.S.C. §§ 7252(a) and 7266. Accordingly, for the reasons that follow, the Court will dismiss the appellant's appeal.

I. BACKGROUND
The appellant served on active duty in the U.S. Marine Corps from January
1966 until December 1967. R. at 562. In May 1994, VA issued a rating decision that "denied reconsideration of service-connection for [a] nervous condition now claimed as post-traumatic stress disorder." R. at 842-43. At the time, VA denied service connection because the appellant did not have a PTSD diagnosis. R. at 848-51.
The appellant failed to submit a timely Notice of Disagreement (NOD) and the rating decision became final. R. at 767, 826-28. The appellant later attempted to reopen his PTSD claim; however, the Huntington, West Virginia, regional office (RO) denied a reopening because it found that the
appellant had not submitted new and material evidence. R. at 1146-48. The RO reasoned in part
that the medical evidence submitted by the appellant still did not contain a PTSD diagnosis. Id. The
appellant submitted an NOD; however, it appears that he never submitted a Substantive Appeal as
to that decision. R. at 541-44, 549.
In December 2005, the appellant once again attempted to reopen his claim for entitlement to PTSD. R. at 396. The record developed in the course of the appellant's attempt to reopen his PTSD claim included medical records showing a diagnosis of a depressive condition and a possible diagnosis of an anxiety disorder. R. at 71, 225, 230, 235, 242, 268, 357.
The Cleveland, Ohio, RO found that the appellant had still not submitted new and material evidence.
R. at 260-64. The RO noted that the evidence submitted by the appellant did not contain a PTSD
diagnosis. R. at 261. The appellant filed a timely NOD and Substantive Appeal. R. at 246, 175. In
the Board decision on appeal, the Board denied a reopening of the appellant's PTSD claim,
finding that the appellant had not submitted new and material evidence and that the record still
contained no evidence of a PTSD diagnosis. 11-12.

II. ANALYSIS
In his brief, the appellant does not challenge any of the Board's findings concerning his claim for entitlement to a reopening of his service-connection claim for PTSD. Appellant's Brief (Br.) at
1-16. Instead, the appellant argues that the Board erred by: (1) ignoring favorable evidence that
establishes that he suffers from companion diagnosed depression and anxiety; (2) failing to remand the companion depression and anxiety conditions for appropriate development and adjudication; and (3) failing to provide an adequate statement of reasons or bases for not addressing the aforementioned diagnoses. Appellant's Br. at 7-12. The Secretary counters that the Court does not have jurisdiction over the issues raised by the appellant. Secretary's Br. at 7-11. After reviewing the pleadings and record in this case, the Court agrees that the appellant raises issues over which it cannot exercise jurisdiction.
2


In Boggs v. Peake, 520 F.3d 1330, 1335 (Fed. Cir. 2008), the U.S. Court of Appeals for the Federal Circuit held that "the 'factual basis' of a claim for purposes of 38 U.S.C. § 7104(b) is the veteran's disease or injury rather than the symptoms of the veteran's disease or injury," that "a properly diagnosed disease or injury cannot be considered the same factual basis as [another] distinctly diagnosed disease or injury," and that "[i]t follows that because § 7104(b) distinguishes claims according to their factual bases, claims based upon distinctly and properly diagnosed diseases or injuries cannot be considered the same claim." As a result, the appellant's claims for service connection for depression and anxiety are separate claims from his claim to reopen his denied claim for entitlement to service connection for PTSD, as his anxiety and depression are distinctly and properly diagnosed diseases. See id.; cf. Clemons v. Shinseki, 23 Vet.App.
1, 7-8 (2009). As there is no final Board decision concerning these new claims, the Court lacks
jurisdiction to consider them. See 38 U.S.C. §§ 7252(a), 7266(a); Jarrell v. Nicholson, 20 Vet.
App. 326, 330-32 (2006) (en_banc).
To be clear, the Court is not holding that these new claims have never been raised. In fact,
these claims may be pending below based upon the submissions of the appellant. However, Boggs
is factually on point and controlling in this case. Supra. The prior final decisions considering the
appellant's mental condition as PTSD must be considered as a separate claim from any new
diagnoses. Id. Accordingly, the Court lacks jurisdiction to consider such claims until presented with a properly appealed Board decision on those claims.1 See Jarrell, 20 Vet.App. at 330-32 (2006).
In this regard, the Court notes that the question of when such claims were
first raised may be considered when, and if, it ever becomes contested and appealed.
21_Vet.App. 232, 254 (2007). See Ingram v. Nicholson,

1. The Court notes that it cannot assume from the silence in the current
Board decision that a new claim under the alternative diagnoses has not been adjudicated. It is entirely possible that such a claim has been recognized by VA and may have been adjudicated in a separate proceeding. See Fagre v. Peake, 22 Vet.App. 188, 191 n. 4 (2008) (noting the Secretary is free to “issu[e] separate Board decisions with regard to each, some, or all disabilities claimed by a
veteran”).

3


III. CONCLUSION
After consideration of the appellant's and the Secretary's briefs, and a
review of the record, the appellant's case is DISMISSED for lack of jurisdiction.
DATED: March 16, 2011
Copies to:
John S. Berry, Esq.
VA General Counsel (027)
4