New Army Guidelines Purple Heart, Concussion

DOD Issues Purple Heart Standards for Brain Injury

By Jim Garamone
American Forces Press Service

WASHINGTON, April 28, 2011 – "U.S. service members have long been eligible to receive the Purple Heart Medal for the signature wounds of the current wars -– mild traumatic brain injuries and concussions -– but now there is more clarity on how medical criteria for the award are applied, Defense Department officials said yesterday.

The criteria for the Purple Heart award state that the injury must have been caused by enemy action or in action against the enemy and has to be of a degree requiring treatment by a medical officer.

But it may be difficult to determine when a mild traumatic brain injury or a concussive injury that does not result in a loss of consciousness is severe enough to require treatment by a medical officer. “This is why we created this baseline standard,” DOD spokeswoman Eileen Lainez said.

DOD allows the award of the Purple Heart even if a service member was not treated by a medical officer, as long as a medical officer certifies that the injury would have required treatment by a medical officer had one been available.

DOD officials said that as the science of traumatic brain injuries becomes better understood, guidance for award of the medal will evolve.

“The services are not able to speculate as to how many service members may have received a mild TBI or concussion but did not seek or receive medical treatment,” Lainez said. “Therefore, each military department will establish its retroactive review procedures in the near future to ensure deserving service members are appropriately recognized.” Retroactive reviews would cover injuries suffered since Sept. 11, 2001, she added.

The Marine Corps has issued clarifying guidance to ensure commanders in the field understand when the Purple Heart is appropriate for concussions."

Human Resources Command website
Army clarifies guidance for Purple Heart award for concussion injuries

"The Army is clarifying its guidance for awarding the Purple Heart for concussion injuries. This is a clarification. This does not change the criteria or standard for the award of the Purple Heart. The clarifying guidance is designed to help the Chain of Command, Soldiers and Veterans understand the specific requirements for consideration and reconsideration retroactive to Sept. 11, 2001."

The Army published a PDF document link [https://www.hrc.army.mil/site/media/releases/042911PHTBIRelease.pdf] which lists the information and documents needed for filing a Purple Heart request.

Army veterans should resubmit to the U.S. Army Human Resources Command at: Commander, USA HRC, ATTN: Awards and Decorations Branch (AHRC-PDP-A), 1600 Spearhead Division Ave., Fort Knox, KY 40122. Vets also can call 1-888-276-9472 or email hrc.tagd.awards@conus.army.mil.

Veterans Short Changed on Medical Care Mileage Reimburshment

Full article at: Veteran's Benefits Association not giving veterans proper benefits; refuses to correct mistake

Veterans not being reimbursed at the 41.5-cent rate Congress mandated in 2008. Still using outdated 'Medical Expense Report' form (VA Form, 21-8416) which instructs to only pay 28.5 cents per mile.

VA Medical Malpractice Claims, 1989-2008

Spreadsheet Link is in original article at: FOIA Friday: Database of Thousands of Medical Malpractice Claims Against the Veterans Health Administration

By Nick Schwellenbach

"A spreadsheet[see link to original article above] of claims filed against the Department of Veterans Affairs, many of which relate to medical malpractice."


"The data provided has details on over 12,000 claims against the VA from 1989 to November 2008, although the data appears largely incomplete for the first several years. Not all of the claims are medical malpractice-related, but several thousand are. There are fields for the VA facility involved, the date the claim was received, the date of the last tort status (where the claim is in the administrative process), the date of that status, alleged negligence descriptions (none exist for non-medical malpractice tort cases), and amount paid out, if any. The spreadsheet is over two years old, so the latest tort status field may be out-of-date for many of these claims."

Federal Circuit, Guerra v. Shinseki, No. 2010-7080, TDIU, Subsection 1114(s), Special Monthly Compensation

Excerpts from decision below:
"In addition to having a schedular rating of 100%, a veteran can also be rated as totally disabled, and thus entitled to benefits at the statutory level for total disability, if the veteran is unable to maintain gainful employment as a result of service-connected disability. In that case, even if the veteran does not qualify for a schedular rating of 100%, the Secretary can rate the veteran as “totally disabled based on individual unemployability,” a rating referred to as TDIU. 38 C.F.R. § 4.16(b). If the veteran’s claim for a total disability rating predicated on TDIU is based on “one . . . disability,” that disability must be ratable at 60% or more under the rating schedule. For the purpose of TDIU, “one disability” includes multiple disabilities resulting from a single accident and multiple disabilities affecting a single bodily system. Id. § 4.16(a)."
========================================
"The Veterans Court held that Mr. Guerra did not meet the threshold requirement for special monthly compensation under subsection 1114(s) because none of his disabilities is independently rated as total. In construing the statute, the court followed its earlier decision in Bradley v. Peake, 22 Vet. App. 280, 289-90 (2008), in which the court held that a veteran with a schedular

GUERRA v. DVA 5

rating of total disability must have a single disability rated at 100% in order to qualify for benefits under subsection 1114(s).1 The court rejected the argument that a veteran is entitled to benefits under subsection 1114(s) if the veteran suffers from several disabilities, no one of which is rated at 100%, even if the veteran’s combined disability rating is 100%."
===========================
DVA’s Adjudication Procedure Manual M21-1 (“Manual”)

"The version of the Manual that was in effect between 1965 and 1995 directed the reader to the rules pertaining to TDIU for a definition of the term “single disability” for purposes of subsection 1114(s). The pertinent TDIU rule provided (as it still does) that, for purposes of TDIU determinations, “one disability” includes multiple disabilities resulting from a single accident and multiple disabilities affecting a single bodily system. 38 C.F.R. § 4.16(a). In 1995, however, before Mr. Guerra filed his claim for subsection 1114(s) benefits, the DVA deleted the reference to the TDIU rules from the portion of the Man-ual dealing with subsection 1114(s).

GUERRA v. DVA 9
============================================================


United States Court of Appeals for the Federal Circuit
__________________________
LIONEL GUERRA,
Claimant-Appellant,
v.
ERIC K. SHINSEKI, SECRETARY OF VETERANS AFFAIRS,
Respondent-Appellee.
__________________________
2010-7080
__________________________
Appeal from the United States Court of Appeals for Veterans Claims in Case No. 08-223, Judge William A. Moorman.
___________________________
Decided: April 29, 2011
___________________________
ZACHARY M. STOLZ, Chisholm, Chisholm & Kilpatrick, of Washington, DC, argued for claimant-appellant.
LAUREN A. WEEMAN, Trial Attorney, Commercial Liti-gation Branch, Civil Division, United States Department of Justice, of Washington, DC, argued for respondent-appellee. With her on the brief were TONY WEST, Assis-tant Attorney General, JEANNE E. DAVIDSON, Director, and MARTIN F. HOCKEY, JR., Assistant Director. Of coun-

GUERRA v. DVA 2
sel on the brief was MICHAEL J. TIMINSKI, Deputy Assis-tant General Counsel, and RACHAEL T. SHENKMAN, Attor-ney, United States Department of Veterans Affairs, of Washington, DC.
__________________________
Before BRYSON, GAJARSA, and MOORE, Circuit Judges.
Opinion for the court filed by Circuit Judge BRYSON. Dissenting opinion filed by Circuit Judge GAJARSA.
BRYSON, Circuit Judge.
This case requires us to construe one of the statutes providing benefits for disabled veterans. The issue on appeal is whether the Court of Appeals for Veterans Claims (“the Veterans Court”) correctly interpreted a statute that provides additional monthly compensation to certain severely disabled veterans. We hold that it did, and we affirm.
Pursuant to congressional direction, the Department of Veterans Affairs (“DVA”) has promulgated a “disability ratings schedule” that it uses to determine the level of a veteran’s disability and thus the amount of the veteran’s monthly disability benefits. The ratings in the table are based on the agency’s assessment of the reduction in the average veteran’s earning capacity that results from various service-connected injuries, diseases, or conditions. 38 U.S.C. § 1155; 38 C.F.R. § 4.1; see Guillory v. Shinseki, 603 F.3d 981, 983 (Fed. Cir. 2010). A particular disability can be rated in ten percent increments from 0% to 100% (total disability). The rating assigned to a particular disability under the ratings table is referred to as the schedular rating. The veteran’s schedular rating governs the veteran’s entitlement to compensation at the statu-tory levels provided in subsections 1114(a)-(j). A veteran

GUERRA v. DVA 3
rated at 10% has, on average, 90% of the earning capacity of a nondisabled individual and receives compensation at the rate established in subsection 1114(a). A veteran who is rated at 100% is deemed to be totally disabled and receives compensation at the rate established in subsection 1114(j).
Some disabled veterans have multiple service-connected disabilities. To determine the veteran’s overall disability rating in such cases, the DVA rates each disabling condition individually (unless otherwise provided in the ratings schedule). 38 C.F.R. § 4.25; see Amberman v. Shinseki, 570 F.3d 1377, 1380 (Fed. Cir. 2009). The DVA then combines all the individual ratings, as directed by the “combined ratings table,” 38 C.F.R. § 4.25, to calculate the veteran’s combined disability rating. Compensation for the combined rating is then calculated according to the statutory schedule in section 1114.
In addition to having a schedular rating of 100%, a veteran can also be rated as totally disabled, and thus entitled to benefits at the statutory level for total disability, if the veteran is unable to maintain gainful employment as a result of service-connected disability. In that case, even if the veteran does not qualify for a schedular rating of 100%, the Secretary can rate the veteran as “totally disabled based on individual unemployability,” a rating referred to as TDIU. 38 C.F.R. § 4.16(b). If the veteran’s claim for a total disability rating predicated on TDIU is based on “one . . . disability,” that disability must be ratable at 60% or more under the rating schedule. For the purpose of TDIU, “one disability” includes multiple disabilities resulting from a single accident and multiple disabilities affecting a single bodily system. Id. § 4.16(a).

GUERRA v. DVA 4
Some exceptionally disabled veterans who are rated as totally disabled are entitled to extra monthly compensation over and above the “total” rate provided in 38 U.S.C. § 1114(j). This case requires us to construe one of those special monthly compensation provisions, 38 U.S.C. § 1114(s). That statute provides $320 in additional monthly compensation above the rate for total disability to a veteran with “a service-connected disability rated as total” if the veteran either has another independently rated disability or combination of disabilities rated at 60%, or is permanently housebound by reason of service-connected disability.
I
Appellant Lionel Guerra served on active duty in the United States Marine Corps from 1966 to 1968 and suffered service-connected injuries. Most of his injuries resulted from a single combat incident. The regional office awarded Mr. Guerra a 70% rating for an upper-extremity gunshot wound, a 70% rating for post-traumatic stress disorder, a 40% rating for injuries to his left leg and thigh, a 40% rating for injuries to his right leg and thigh, and a 30% rating for neuropathy. None of his disabilities is individually rated at 100%, but his individually rated disabilities combine to a rating of 100%, i.e., total disability. His rating of total disability is not based on TDIU, however.
The Veterans Court held that Mr. Guerra did not meet the threshold requirement for special monthly compensation under subsection 1114(s) because none of his disabilities is independently rated as total. In construing the statute, the court followed its earlier decision in Bradley v. Peake, 22 Vet. App. 280, 289-90 (2008), in which the court held that a veteran with a schedular

GUERRA v. DVA 5
rating of total disability must have a single disability rated at 100% in order to qualify for benefits under subsection 1114(s).1 The court rejected the argument that a veteran is entitled to benefits under subsection 1114(s) if the veteran suffers from several disabilities, no one of which is rated at 100%, even if the veteran’s combined disability rating is 100%.
Mr. Guerra appeals, contending that benefits under subsection 1114(s) should be available to veterans who are rated as totally disabled, regardless of whether the veteran has a single disability rated at 100% or a combined rating of 100% based on multiple disabilities, no one of which is rated at 100%.
II
The relevant portion of subsection 1114(s) states that a veteran is to receive special monthly compensation under the following conditions:
If the veteran has a service-connected disabil-ity rated as total, and
(1) has additional service-connected disability or disabilities independently ratable at 60 percent or more, or,
1 The Veterans Court in Bradley held that a veteran with a TDIU rating could qualify for compensation at the subsection 1114(s) rate, but only if the TDIU rating was based on a single disability. 22 Vet. App. at 293. Because Mr. Guerra’s disability rating is not based on TDIU, we do not address whether and in what circumstances the benefits of subsection 1114(s) are available to a veteran with a TDIU rating.

GUERRA v. DVA 6
(2) by reason of such veteran’s service-connected disability or disabilities, is permanently housebound[.]
The statute requires “a service-connected disability rated as total.” The use of the term “a service-connected disability” suggests, as the Veterans Court held, that the veteran must have at least one disability that is rated at 100%. While the use of the singular is not by itself dispo-sitive, the language of subsection 1114(s) and the other statutory compensation provisions supports the interpretation adopted by the Veterans Court.
Among the seven special monthly compensation pro-visions in section 1114, the use of the singular indefinite article in referring to a disability (“a service-connected disability”) is unique to subsection (s). The first of the special monthly compensation provisions, subsection 1114(k), states that a veteran is entitled to compensation “if the veteran, as the result of service-connected disabil-ity,” has suffered the loss of one or more paired organs or has suffered any of several other listed conditions. The next four subsections, (l)-(o), contain the same introduc-tory language, “as the result of service-connected disability.” Subsection (p) provides heightened compensation when “the veteran’s service-connected disabilities exceed the requirements for any of the rates prescribed in this section.”
Even within subsection (s), the statute distinguishes between a single “disability” and multiple “disabilities.” To receive benefits at the subsection (s) rate, in addition to having “a service-connected disability rated as total,” the veteran must either be housebound by reason of the veteran’s service-connected disability or have “additional service-connected disability or disabilities independently

GUERRA v. DVA 7
ratable at 60 percent or more.” Thus, the same sentence of the statute draws a distinction between a single disability and multiple disabilities. That distinction is a strong indication that Congress’s use of the singular and plural terms was purposeful and that the reference to “a service-connected disability rated as total” was meant to refer to a single disability with a 100% rating. Accord-ingly, the statutory text evidences Congress’s intent to limit the payment of special monthly compensation under subsection 1114(s) to a veteran who has at least one condition that has been rated as totally disabling.
While the language of subsection 1114(s) is not entirely free from ambiguity, we are compelled to defer to the DVA’s interpretation of subsection 1114(s), and we uphold the decision of the Veterans Court on that ground. By regulation, the DVA has interpreted subsection 1114(s) to provide that in order to qualify for benefits under that statute, the veteran must have a single disability rated at 100%. That interpretation is entitled to deference under the principles of Chevron U.S.A. Inc. v. Natural Resource Defense Council, Inc., 467 U.S. 837, 842-43 (1984). As applied in this setting, the rule of Chevron provides that when an agency “has statutory authority to issue regulations [and] invokes its authority to issue regulations, which then interpret ambiguous statutory terms, the courts defer to its reasonable interpretations.” Fed. Express Corp. v. Holowecki, 552 U.S. 389, 395 (2008); see Haas v. Peake, 525 F.3d 1168, 1195 (Fed. Cir. 2008).
The DVA’s regulation corresponding to subsection 1114(s) was promulgated under the Secretary’s authority “to prescribe all rules and regulations which are necessary or appropriate to carry out the laws administered by the Department,” 38 U.S.C. § 501(a). It provides as follows: “The special monthly compensation provided by

GUERRA v. DVA 8
38 U.S.C. 1114(s) is payable where the veteran has a single service-connected disability rated as 100 percent . . . .” 38 C.F.R. § 3.350(i). That portion of the regulation has been in effect since 1962. Special Monthly Compen-sation Ratings, 27 Fed. Reg. 4739 (May 18, 1962). The regulation’s reference to a “single service-connected disability rated as 100 percent” resolves any latent ambiguity in the statutory language and makes it clear that subsection 1114(s) benefits are available only if the veteran has a single disability that is rated at 100%. Thus, under the regulation, subsection 1114(s) benefits are not available to a veteran such as Mr. Guerra, whose 100% disability rating is based on multiple disabilities, no one of which is rated at 100%.
Mr. Guerra argues that the DVA has interpreted its own regulation to allow certain combined ratings to satisfy the definition of “single” and thus the statutory “total” standard. In making that argument, he relies on a reference to the TDIU rules that was previously contained in the DVA’s Adjudication Procedure Manual M21-1 (“Manual”) but was removed more than 15 years ago. The version of the Manual that was in effect between 1965 and 1995 directed the reader to the rules pertaining to TDIU for a definition of the term “single disability” for purposes of subsection 1114(s). The pertinent TDIU rule provided (as it still does) that, for purposes of TDIU determinations, “one disability” includes multiple disabilities resulting from a single accident and multiple disabilities affecting a single bodily system. 38 C.F.R. § 4.16(a). In 1995, however, before Mr. Guerra filed his claim for subsection 1114(s) benefits, the DVA deleted the reference to the TDIU rules from the portion of the Man-ual dealing with subsection 1114(s).

GUERRA v. DVA 9
While acknowledging that the current version of the Manual does not support his position, Mr. Guerra argues that the deletion of the reference to the TDIU rules in 1995 constituted a “substantive rule” and that the agency was required to comply with the notice-and-comment rulemaking procedures of the Administrative Procedure Act (“APA”) before making that change in the Manual. Because the DVA did not follow those procedures, Mr. Guerra argues that the change in the Manual is inoperative and that we must defer to the agency’s pre-1995 construction of the term “single” in the statute and the corresponding regulation.
There is no force to Mr. Guerra’s contention, for two reasons. To begin with, the premise of Mr. Guerra’s argument-that the pre-1995 version of the Manual demonstrates that the DVA interpreted the phrase “a service-connected disability rated as total” as he does-is contrary to a more formal and explicit statement of the agency’s position in the form of a precedential opinion of the agency’s general counsel issued in 1991. In that opinion, the agency interpreted the statute and its own regulation to provide that the “threshold requirement for entitlement under 38 U.S.C. § 1114(s) is ‘a’ disability rated as total. If a veteran does not have a single service-connected disability rated as total (100 percent), he cannot be eligible for compensation at the 38 U.S.C. § 1114(s) rate.” VA Op. Gen. Counsel Prec. 66-91 (Aug. 15, 1991). That formal expression of the agency’s position, see 38 U.S.C. § 7104(c), clearly takes precedence over an infer-ence drawn from a cross-reference found in a publication that the DVA has described as “an internal manual used to convey guidance to VA adjudicators [and] not intended to establish substantive rules beyond those contained in statutes and regulations.” 72 Fed. Reg. 66,218, 66,210 (Nov. 27, 2007).

GUERRA v. DVA 10

Moreover, neither the 1995 modification of the Man-ual nor the general counsel opinion that preceded it constituted or contained a substantive rule that was subject to the notice-and-comment requirements of the APA. A substantive rule represents an agency’s exercise of the power delegated to it by Congress to “effect a change in existing law or policy or . . . affect individual rights and obligations.” Haas, 525 F.3d at 1195. By contrast, an interpretive rule is one that is “issued by an agency to advise the public of the agency’s construction of the statutes and rules which it administers.” Shalala v. Guernsey Mem’l Hosp., 514 U.S. 87, 99 (1995), quoting Chrysler Corp. v. Brown, 441 U.S. 281, 302 n.31 (1979). An interpretive rule thus “represents the agency’s reading of statutes and rules rather than an attempt to make new law or modify existing law.” Haas, 525 F.3d at 1195-96 (internal quotations omitted). If the rule in question “is an interpretation of a statute rather than an extra-statutory imposition of rights, duties or obligations, it remains interpretive even if the rule embodies the Secre-tary’s changed interpretation of the statute.” White v. Shalala, 7 F.3d 296, 304 (2d Cir. 1993), cited with ap-proval in Nat’l Org. of Veterans’ Advocates v. Sec’y of Veterans Affairs, 260 F.3d 1365, 1376 (Fed. Cir. 2001). The 1991 general counsel opinion explains that the stat-ute and the agency’s regulation require that a veteran have a single service-connected disability rated as total. As such, the general counsel opinion “represents the agency’s reading of statutes and rules rather than an attempt to make new law or modify existing law.” Splane v. West, 216 F.3d 1058, 1063 (Fed. Cir. 2000). Likewise, the 1995 modification of the Manual simply conforms the guidance given to VA adjudicators to accord with the agency’s position set forth in its regulation, as interpreted in the 1991 general counsel opinion. Thus, neither is

GUERRA v. DVA 11
2 Of course, the question whether a particular pro-vision is substantive or interpretive for purposes of the APA is not resolved simply by the title of the document in which the provision is found. If an agency announces new substantive rules, those rules are subject to the proce-dural requirements of 5 U.S.C. § 553 even if they are not formally published as agency regulations. The Veterans Court has in the past found that certain provisions of the Manual constituted substantive rules for purposes of the APA. See, e.g., Earle v. Brown, 6 Vet. App. 558, 562 (1994); Hayes v. Brown, 5 Vet. App. 60, 67 (1993); Fugere v. Derwinski, 1 Vet. App. 103 (1990), aff’d, 972 F.2d 331 (Fed. Cir. 1992). That was plainly not the case here, however, as the 1995 change in the Manual did not effect a substantive change in the agency’s position as to the scope of entitlement to subsection 1114(s) benefits. See Fournier v. Shinseki, 23 Vet. App. 480, 487-88 (2010) (Manual provision is not a substantive rule if it does not “establish or alter the criteria for benefits”).
invalid for failure to comply with the APA’s notice-and-comment rulemaking requirements.2
The dissent suggests that any ambiguity in subsection 1114(s) should be resolved in favor of the veteran instead of by reference to the DVA’s interpretation of a statute that it has been entrusted to administer. In Sears v. Principi, however, we rejected the argument that the pro-veteran canon of construction overrides the deference due to the DVA’s reasonable interpretation of an ambiguous statute. 349 F.3d 1326, 1331-32 (Fed. Cir. 2003) (“Where, as here, a statute is ambiguous and the administering agency has issued a reasonable gap-filling or ambiguity-resolving regulation, we must uphold that regulation.”); see also Haas, 544 F.3d at 1308; Terry v. Principi, 340 F.3d 1378, 1384 (Fed. Cir. 2003).
In sum, we conclude that subsection 1114(s) requires that a disabled veteran whose disability level is deter-

GUERRA v. DVA 12
mined by the ratings schedule must have at least one disability that is rated at 100% in order to qualify for the special monthly compensation provided by that statute. Because no one of Mr. Guerra’s disabilities carries a disability rating of 100%, he is not eligible for that statu-tory benefit. We therefore affirm the decision of the Veterans Court.
No costs.
AFFIRMED


United States Court of Appeals for the Federal Circuit
__________________________
LIONEL GUERRA,
Claimant-Appellant,
v.
ERIC K. SHINSEKI, SECRETARY OF VETERANS AFFAIRS,
Respondent-Appellee.
__________________________
2010-7080
__________________________
Appeal from the United States Court of Appeals for Veterans Claims in case no. 08-223, Judge William A. Moorman.
__________________________
GAJARSA, Circuit Judge, dissenting
The majority makes two errors in its analysis of 38 U.S.C. § 1114(s), and therefore, I must respectfully dissent. First, it fails to read § 1114(s) in the context of the entire statute, as opposed to selected, segmented, individ-ual portions. Majority Op. at 6-7. Second, the majority improperly perceives ambiguity in § 1114(s) and thus resorts to 38 C.F.R. § 3.350(i)-the regulation related to § 1114(s)-to support its conclusion that a veteran must have a single disability rated at 100 percent in order to qualify for compensation under that section. Id. at 7-8. In so doing, the majority also ignores the canon of statu-

GUERRA v. DVA 2
tory construction that requires ambiguities, if any, in veterans’ statutes to be resolved in favor of the veteran. See Brown v. Gardner, 513 U.S. 115, 117-18 (1994). In my view, the plain language of the statute and the intent of Congress establishes that a veteran must simply have a total disability rating pursuant to § 1114(j) to qualify for special monthly compensation under § 1114(s).
Section 1114(s) states, in relevant part, that “[i]f the veteran has a service-connected disability rated as total, and (1) has additional service-connected disability or disabilities independently ratable at 60 percent or more, or, (2) by reason of such veteran's service-connected disability or disabilities, is permanently housebound, then the monthly compensation shall be $2,993.” (Emphasis added). In its limited analysis of the plain language, the majority asserts that the singular indefinite article “a” before “service connected disability” and the use of both the singular “disability” and the plural “disabilities” demonstrates that § 1114(s) requires that a single disabil-ity be rated as total. Majority Op. at 6.
A review of § 1114 in its entirety, however, mandates a different result. Compensation awarded under Section 1114 is either regular compensation, (a)-(j), or special monthly compensation, (k)-(p) and (r)-(s). Sections 1114(a)-(j) provide the amount of monthly compensation “if and while the disability is rated” at a certain percentage, which is provided in increments of ten. (Emphasis added). Specifically, § 1114(j) provides the monthly compensation rate “if and while the disability is rated as total.” (Emphasis added). Although §§ 1114(a)-(j) refer to “the disability” in the singular, a veteran’s multiple service-connected disabilities can be combined to give the veteran a singular rating for compensation under those sections. See 38 C.F.R. § 4.25. A veteran who qualifies

GUERRA v. DVA 3
for compensation under § 1114(j) can obtain a total rating based on the combination of multiple disabilities.
The key language in § 1114(s) that says “a service connected disability rated as total” tracks almost identically to the language in 38 U.S.C. § 1114(j) that says “if and while the disability is rated as total.” Because the language in these provisions is nearly identical, it should be construed to have the same meaning. See IBP, Inc. v. Alvarez, 546 U.S. 21, 34 (2005) (noting “the normal rule of statutory interpretation that identical words used in different parts of the same statute are generally pre-sumed to have the same meaning.” (citation omitted)). Veterans entitled to monthly compensation under § 1114(j) can obtain a total rating by combining their disabilities into a single rating pursuant to 38 C.F.R. § 4.25. Having a total rating is a prerequisite to obtaining special monthly compensation under § 1114(s). See Guillory v. Shinseki, 603 F.3d 981, 983 (Fed. Cir. 2010) (explaining that “[e]xtraordinarily disabled veterans already receiving a 100% disability rating under section 1114(j) (‘total disability’) may also be eligible to receive an additional award for ‘special monthly compensation’ . . ., over and above the monthly amount for total disability.” (citation omitted)). The language of § 1114(s) does not preclude a veteran from relying on a combined disability rating total to form the basis of his claim for compensation under that section.
Furthermore, the legislative history of section 1114(s) demonstrates that the very purpose of the section was to provide additional benefits to those veterans who were totally disabled under section 1114(j) but had additional, severe disabilities. It states that “[t]he current total disability rating [under subsection (j)] is $225 monthly” and “[t]his new rate [in subsection (s)] is an intermediate rate and applies to a veteran who is totally disabled . . . .”

GUERRA v. DVA 4
See Special Compensation Rate for Housebound Service-Connected Disabled Veterans, H.R. Rep. No. 86-723 at 1 (1959); see also Special Compensation Rate for House-bound Service-Connected Disabled Veterans, H.R. Rep. No. 86-723 at 2 (1959) (noting that although “a wartime totally disabled veteran is entitled to basic compensation of $225 per month[, t]here is no intermediate rate . . . for the veteran who is totally disabled . . . and whose activi-ties are greatly restricted, but who is not permanently bedridden . . . .”); see also 86 Cong. Rec. 11,931 (1960) (statement of Rep. Rogers); id. at 15,434 (statement of Sen. Johnson). Thus, the legislative history supports the plain language of the statute: for a veteran to be entitled to compensation under § 1114(s), the veteran must qualify for total disability under § 1114(j). Section 1114(s) was an “intermediate” benefit for those veterans who were more seriously injured than those having only a total disability but not requiring constant care. See H.R. Rep. No. 86-723 at 1.
The majority also claims that §§ 1114(k)-(p) support its reading of the statute. Sections 1114(k)-(o) provide special monthly compensation for veterans who, “as the result of service-connected disability,” have suffered certain other injuries. (Emphasis added). Section 1114(p) provides that “in the event the veteran’s service-connected disabilities exceed the requirements for any of the rates provided in this section,” the Secretary may award additional compensation. (Emphasis added). The majority relies on the lack of “a” before service-connected disability in these sections to support its contention that the use of the word “a” in § 1114(s) means that the veteran must have a single disability rated as total to qualify for com-pensation under that section. Majority Op. at 6.

GUERRA v. DVA 5
Contrary to the majority’s view, § 1114(k) does not require that a veteran suffer multiple disabilities to receive compensation. Section 1114(k) states:
if the veteran, as the result of service-connected disability, has suffered the anatomical loss or loss of use of one or more creative organs, or one foot, or one hand, or both buttocks, or blindness of one eye, having only light perception, has suffered complete organic aphonia with constant inability to communicate by speech, or deafness of both ears, having absence of air and bone conduction, or, in the case of a woman veteran, has suffered the anatomical loss of 25 percent or more of tissue from a single breast or both breasts in combination (including loss by mastectomy or partial mastectomy) or has received radiation treatment of breast tissue, the rate of compensation therefor shall be $96 per month for each such loss or loss of use independent of any other compensation provided in subsections (a) through (j) or subsection (s) of this section . . . .
38 U.S.C. § 1114(k) (emphases added). Section 1114(k) clearly provides compensation in the event a veteran has a single disability, such as the loss of one foot or one hand, without the use of the article “a”. The lack of the article “a” does not mean that any compensation awarded under § 1114(k) must be for multiple disabilities. Indeed, the only limitation on the number of disabilities a veteran must have to qualify for compensation appears in § 1114(p), which uses the plural “disabilities.” Clearly, to obtain compensation under that section, a veteran must have two or more “disabilities.” The other sections in § 1114 do not have such a limitation.

GUERRA v. DVA 6
The majority also claims that the distinction in § 1114(s) between “an additional service connected disability or disabilities” demonstrates that the use of the singular disability in the beginning of § 1114(s) means that one of the veteran’s disabilities must be rated as total. The use of the singular and plural of disability does not have the meaning that the majority ascribes to it. The most natural reading of this language is that a veteran may have one or more disabilities that are each independently ratable at 70 percent to qualify for compensation under § 1114(s). The inclusion of “disabilities” demonstrates that a veteran having two disabilities, each independently rated at 70 percent, is not excluded from special monthly compensation under this section simply because he has more than one severe injury.
Therefore, based on the plain language of the statute, for a veteran to qualify for SMC under section 1114(s), the veteran must have a total disability rating pursuant to section 1114(j). Because, in my view, the language of § 1114(s) is clear, it is unnecessary to rely on the related regulation. See Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 842-43 (1984) (“If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress.” (footnote omitted)). To the extent that any ambiguity does exist in § 1114(s)-as the majority suggests-it should be resolved in favor of the veteran. Gardner, 513 U.S. at 117-18 (explaining that “interpretive doubt is to be resolved in the veteran’s favor”); see also King v. St. Vincent's Hosp., 502 U.S. 215, 221 (1991) (“[P]rovisions for benefits to members of the Armed Services are to be construed in the beneficiaries' favor.” (citing Fishgold v. Sullivan Drydock & Repair Corp., 328 U.S. 275, 285 (1946))).

GUERRA v. DVA 7

In this case, the Board determined that Mr. Guerra “has a combined 100 percent disability evaluation,” and he thus would qualify as having “a service-connected disability rated as total” for purposes of section 1114(s). The Board’s finding, however, did not specify whether Mr. Guerra would be entitled to this rating if his 70 percent rating for PTSD were counted separately. I would remand this case to determine whether Mr. Guerra would have a combined 100 percent disability rating excluding the 70 percent rating for PTSD. Because the majority has not so resolved this case, I dissent.

Federal Circuit, Wagner v. Shinseki, No. 2010-7113, Fees on Fees

Excerpt from decision below:
"As the Supreme Court made clear in Jean, “[t]he EAJA applies to a wide range of awards in which the cost of litigating fee disputes would equal or exceed the cost of litigating the merits of the claim.” 496 U.S. at 163-64 (footnote omitted). Thus, regardless of whether Wagner could recoup, through his supplemental fee

WAGNER v. DVA 12
application, an amount that is nearly equal to the amount that he was denied on his original fee application, he is entitled to be compensated for all hours reasonably ex-pended successfully defending his original fee request. See id. at 164-65 (“The Government’s general interest in protecting the federal fisc is subordinate to the specific statutory goals of encouraging private parties to vindicate their rights and curbing excessive regulation and the unreasonable exercise of Government authority.” (foot-notes omitted) (citations and internal quotation marks omitted))."
==========================
United States Court of Appeals for the Federal Circuit
__________________________
PHILLIP E. WAGNER,
Claimant-Appellant,
v.
ERIC K. SHINSEKI, SECRETARY OF VETERANS AFFAIRS,
Respondent-Appellee.
__________________________
2010-7113
__________________________
Appeal from the United States Court of Appeals for Veterans Claims in case no. 08-1702, Judge Alan G. Lance, Sr.
______________________
Decided: April 29, 2011
_______________________
KENNETH M. CARPENTER, Carpenter Chartered, of Topeka, Kansas, argued for claimant-appellant. On the brief was THEODORE C. JARVI, Law Offices of Theodore C. Jarvi, of Tempe, Arizona.
DANIEL RABINOWITZ, Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, argued for respondent-appellee. With him on the brief were TONY WEST, Assis-tant Attorney General, JEANNE E. DAVIDSON, Director,

WAGNER v. DVA 2

and BRIAN M. SIMKIN, Assistant Director. Of counsel on the brief were MICHAEL J. TIMINSKI, Deputy Assistant General Counsel, and KRISTIANA BRUGGER, Attorney, United States Department of Veterans Affairs, of Wash-ington, DC.
__________________________
Before BRYSON, MAYER, and DYK, Circuit Judges.
MAYER, Circuit Judge.
Phillip E. Wagner appeals from a final judgment of the United States Court of Appeals for Veterans Claims (“Veterans Court”) denying his application for supplemen-tal attorney fees incurred in the defense of his initial application for attorney fees under the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412. See Wagner v. Shinseki, No. 08-1702, 2010 U.S. App. Vet. Claims LEXIS 713 (Vet. App. Apr. 21, 2010). We reverse and remand.
BACKGROUND
Wagner served in the United States Navy from July 1962 to July 1979 and from March 1982 to March 1988. He appealed to the Veterans Court after the Board of Veterans’ Appeals (“board”) denied his claim for service-connected benefits for a thyroid disorder. Pursuant to a joint motion of the parties, the Veterans Court vacated the board’s decision and remanded the case to the De-partment of Veterans Affairs for reconsideration.
Wagner subsequently filed an application for attorney fees under the EAJA, arguing that the remand made him a “prevailing party” for purposes of establishing entitle-ment to an EAJA award. He sought fees of $11,710.57 for 70.3 hours of attorney work. The Secretary of Veterans Affairs conceded that Wagner was a prevailing party for purposes of the EAJA, but challenged the amount of the

WAGNER v. DVA 3
fee request based on “the reasonableness of the requested fees.” See Wagner v. Shinseki, No. 08-1702, 2009 U.S. App. Vet. Claims LEXIS 1791, at *1 (Vet. App. Oct. 14, 2009) (citations and internal quotation marks omitted). Specifically, the Secretary argued that (1) the fee for legal research should be reduced by 14.6 hours because Theodore C. Jarvi, Wagner’s attorney, was an experienced veterans’ law attorney, and should not have needed to conduct extensive research, (2) the fee for review of Wag-ner’s claim file should be reduced by 8.8 hours because Jarvi had already spent 7.7 hours reviewing the file, and (3) the fee for scanning the claims file and instructing staff on how to combine the files of the record before the agency (“RBA”) should be reduced by 4.0 hours since these tasks were purely clerical. Id. at *2-3. Wagner thereafter filed a response, defending his original fee application and requesting additional fees of $4,134.00 for time spent defending the fees that had been challenged by the Secretary.
On October 14, 2009, the Veterans Court granted Wagner an EAJA award of $8,601.80, which was an approximately 26.5 percent reduction from the $11,710.57 he had requested. Id. at *1-4. The court reduced Wag-ner’s requested fees for legal research by 8.5 hours, the fees sought for review of the claims file by 8.8 hours, and the fees sought for scanning the claims file and instruct-ing staff on how to combine files from the RBA by 1.5 hours. Of the 27.4 hours that had been challenged by the Secretary, the Veterans Court disallowed 18.8 hours. Id.
On October 26, 2009, Wagner filed a revised fee appli-cation, seeking $2,458.90 in supplemental fees for time expended defending his original EAJA fee request. Wag-ner did not seek compensation for time spent on argu-ments that were rejected by the Veterans Court when it made its original award. He argued, however, that he

WAGNER v. DVA 4
was partially successful in defending his original fee application, and that he should be compensated for the 10.87 hours he spent successfully responding to the Secretary’s challenges to his application as well as for the 4.0 hours he spent reviewing the Veterans Court’s decision and drafting the supplemental fee request.
On February 17, 2010, the Veterans Court, in a single judge decision, denied the application for supplemental fees. The court stated that it would “not reward [Wagner] for his efforts to defend his earlier application” since the court had “substantially reduced [Wagner’s] original EAJA application after concluding that much of the requested fees were unreasonable.” See Wagner v. Shin-seki, No. 08-1702, 2010 U.S. App. Vet. Claims LEXIS 197, at *3 (Vet. App. Feb. 17, 2010) (“Supplemental Fees Deci-sion”). The court asserted that “[i]t would be anomalous to reduce an [initial EAJA] award by some $3,000 and then award nearly that amount to the losing party simply for putting up a fight.” Id.
Wagner thereafter filed a motion seeking panel review of the decision denying him supplemental fees, but the Veterans Court denied this motion on April 21, 2010. Wagner then appealed to this court.
DISCUSSION
We have jurisdiction over appeals from the Veterans Court under 38 U.S.C. § 7292. Interpretation of the EAJA is a question of law, subject to de novo review.1 Kelly v. Nicholson, 463 F.3d 1349, 1352 (Fed. Cir. 2006).
1 In relevant part, the EAJA provides:
Except as otherwise specifically provided by stat-ute, a court shall award to a prevailing party other than the United States fees and other ex-

WAGNER v. DVA 5
penses, in addition to any costs awarded pursu-ant to subsection (a), incurred by that party in any civil action (other than cases sounding in tort), including proceedings for judicial review of agency action, brought by or against the United States in any court having jurisdiction of that ac-tion, unless the court finds that the position of the United States was substantially justified or that special circumstances make an award unjust.
28 U.S.C. § 2412(d)(1)(A).
The primary purpose of the EAJA is to ensure that litigants “will not be deterred from seeking review of, or defending against, unjustified governmental action be-cause of the expense involved.” Scarborough v. Principi, 541 U.S. 401, 407 (2004) (citations and internal quotation marks omitted). The statute plays a particularly impor-tant role in the veterans’ adjudicatory system:
Removing [deterrents to seeking judicial review] is imperative in the veterans benefits context, which is intended to be uniquely pro-claimant, and in which veterans generally are not repre-sented by counsel before the [regional office] and the board. [The] EAJA is a vital complement to this system designed to aid veterans, because it helps to ensure that they will seek an appeal when the VA has failed in its duty to aid them or has otherwise erroneously denied them the bene-fits that they have earned.
Kelly, 463 F.3d at 1353 (citations and internal quotation marks omitted).
“[A]n award of fees incurred in every stage of litiga-tion is consistent with the legislative purpose of the EAJA

WAGNER v. DVA 6
. . . .” Fritz v. Principi, 264 F.3d 1372, 1377 (Fed. Cir. 2001). Thus, a prevailing party in a veterans case is entitled to an award of fees not only for hours devoted to the underlying merits litigation, but also for attorney time reasonably expended defending an initial EAJA applica-tion. Comm’r, Immigration & Naturalization Serv. v. Jean, 496 U.S. 154, 161-62 (1990) (“Jean”); Fritz, 264 F.3d at 1377. Fees awarded for the defense of an initial fee application are commonly referred to as “supplemental fees” or “fees on fees.”
Wagner contends that the Veterans Court misinter-preted 28 U.S.C. § 2412(d)(1)(A) when it denied, in full, his petition seeking supplemental fees. He notes that he was partially successful in defending against the Secretary’s challenge to his initial EAJA application, and argues that he should be awarded supplemental fees commensurate with the degree of success he achieved.
We agree. In Jean, the Supreme Court expressly rejected the argument that a claimant could be awarded supplemental fees only if the government’s challenge to an initial EAJA application was not substantially justi-fied. 496 U.S. at 158-62. The Court explained that “[a]ny given civil action can have numerous phases,” but that “the EAJA-like other fee-shifting statutes-favors treating a case as an inclusive whole, rather than as atomized line-items.” Id. at 161-62. Recognizing that “requiring courts to make a separate finding of ‘substan-tial justification’ regarding the Government’s opposition to fee requests would multiply litigation,” id. at 163, the Court concluded that only one “threshold” determination that the government’s position in the underlying merits litigation was not substantially justified is required, id. at 160. Accordingly, “a party who prevails in fee litigation under [the] EAJA may recover fees for legal services rendered during the fee litigation even if some of the

WAGNER v. DVA 7
2 The Court explained:
Because [Hensley v. Eckerhart, 461 U.S. 424, 437 (1983)] requires the district court to consider the relationship between the amount of the fee awarded and the results obtained, fees for fee litigation should be excluded to the extent that the applicant ultimately fails to prevail in such litigation. For example, if the Government’s challenge to a requested rate for paralegal time resulted in the court’s recalculating and reducing the award for paralegal time from the requested time, then the applicant should not receive fees for the time spent defending the higher rate.
Jean, 496 U.S. at 163 n.10.
Government’s positions regarding the proper fee were ‘substantially justified,’ i.e., the district court need not make a second finding of no substantial justification before awarding fees for the fee contest itself.” Scarbor-ough, 541 U.S. at 419 n.6 (citing Jean, 496 U.S. at 160-62).
When calculating a supplemental fee award, a court is required to consider “the relationship between the amount of the fee awarded and the results obtained” through the initial EAJA application.2 Jean, 496 U.S. at 163 n.10. Thus, supplemental fees should be denied “to the extent” that a claimant’s defense of his original fee application proves unsuccessful. Id. Conversely, however, supplemental fees should be granted to the extent that a claimant successfully defends his original fee application. See Fritz, 264 F.3d at 1377 (emphasizing that a veteran is “entitled to attorney fees incurred throughout the litigation, including those incurred in preparation and defense of the fee application to the extent those fees are defensible” (footnote omitted)). To

WAGNER v. DVA 8
3 Although Hensley involved the award of fees un-der the Civil Rights Attorney’s Fees Act of 1976, 42 U.S.C. § 1988, the standards set forth for awarding attorney fees “are generally applicable in all cases in which Congress has authorized an award of fees to a ‘prevailing party.’” Hensley, 461 U.S. at 433 n.7. Furthermore, although Hensley involved an initial fee application, the fee guide-lines it provides are applicable to supplemental fee appli-cations as well. Jean, 496 U.S. at 161-63.
deny a litigant all supplemental fees simply because the defense of his original fee application was not wholly successful unjustifiably dilutes the value of the original EAJA fee award and is contrary to the fundamental objectives of the EAJA. See Orange Blossom Ltd. P’ship v. S. Cal. Sunbelt Developers, Inc., 608 F.3d 456, 463 (9th Cir. 2010) (explaining that “it would be inconsistent [with the purpose of fee-shifting statutes] to dilute a fees award by refusing to compensate attorneys for the time they reasonably spent in establishing their rightful claim to the fee” (citations and internal quotation marks omitted)); Prandini v. Nat’l Tea Co., 585 F.2d 47, 53 (3d Cir. 1978) (“If an attorney is required to expend time litigating his fee claim, yet may not be compensated for that time, the attorney’s effective rate for all the hours expended on the case will be correspondingly decreased.”); see also Norman v. Hous. Auth. of Montgomery, 836 F.2d 1292, 1305 (11th Cir. 1988) (“To paraphrase the acute observation of base-ball great Yogi Berra, a case ain’t over till it’s over. This means that . . . counsel are entitled to compensation until all benefits obtained by the litigation are in hand.”).
Courts should look to the framework established in Hensley, 461 U.S. at 435-39, when calculating an appro-priate supplemental fee award.3 See Jean, 496 U.S. at 161-63. In setting the fee, “the most critical factor is the degree of success obtained.” Hensley, 461 U.S. at 436.

WAGNER v. DVA 9

Thus, where a claimant “has achieved only partial or limited success,” a court “may attempt to identify specific hours that should be eliminated, or it may simply reduce the award to account for the limited success.” Id. at 436-37. Because Hensley requires a court to calibrate the amount of attorney fees to the degree of success a claimant has achieved, it is generally appropriate to make an award of supplemental fees that is commensurate with the degree of success obtained on the original fee applica-tion. See, e.g., Schwarz v. Sec’y of Health & Human Servs., 73 F.3d 895, 909 (9th Cir. 1995) (affirming an award of 50 percent of the supplemental fees sought by a claimant where she obtained approximately 50 percent of the fees claimed in her initial fee application); Spellan v. Bd. of Educ., 69 F.3d 828, 829 (7th Cir. 1995) (emphasiz-ing that a claimant’s success on his original fee application “is a material consideration in adjudicating the amount of fees recoverable in litigating an attorneys’ fee award”); Thompson v. Gomez, 45 F.3d 1365, 1367-69 (9th Cir. 1995) (concluding that a district court properly awarded 87 percent of the supplemental fees requested where claimants received 87 percent of the fees sought in their original fee application); In re Burlington N., Inc. Emp’t Practices Litig., 832 F.2d 430, 433-36 (7th Cir. 1987) (concluding that the district court properly reduced a fees on fees award based upon the degree of success obtained in the original fee litigation); Harris v. McCarthy, 790 F.2d 753, 758-59 (9th Cir. 1986) (affirming a district court’s decision to award claimants 11.5 percent of their supplemental fee request since they had obtained only 11.5 percent of the fees requested in their original fee application); Institutionalized Juveniles v. Sec’y of Pub. Welfare, 758 F.2d 897, 924-25 (3d Cir. 1985) (concluding that the district court properly reduced fees on fees by 12.5 percent where claimants did not obtain complete success on their original fee application); Mercer v. Duke

WAGNER v. DVA 10
4 The Secretary challenged 27.4 of the hours claimed in Wagner’s initial EAJA application, and the Veterans Court disallowed 18.8, or approximately 68.6 percent, of the challenged hours. Wagner asserts that when he submitted his application for supplemental fees, he reduced the hours claimed proportionately to his degree of success in defending his original fee application. On remand, the Veterans Court will have the opportunity to consider whether the supplemental fees sought by Wagner accurately reflect attorney hours reasonably devoted to the successful defense of the original fee application. We think it inappropriate to establish a blanket rule regarding whether the recovery of supplemental fees should be in proportion to the success obtained on the original EAJA application or the success in defending the contested fees. The considerations discussed in this opinion, however, should be taken into account on re-mand.
Univ., 301 F. Supp. 2d 454, 469 (M.D.N.C. 2004) (reducing a request for supplemental fees by 20 percent because the initial fee request was reduced by 20 percent), aff’d, 401 F.3d 199 (4th Cir. 2005).
Here, Wagner was partially successful in defending against the government’s challenge to his initial fee application, and he is entitled to supplemental fees com-mensurate with the degree of success he achieved.4 While “the relative degree of success in litigating for merits fees should bear upon the size of the fees-on-fees award,” Thompson, 45 F.3d at 1368, there is no justification for denying a supplemental fee request in its entirety simply because the claimant’s initial fee application was not wholly successful.
To be sure, a court has broad discretion in awarding attorney fees, see Hensley, 461 U.S. at 437, and is not bound, in all cases, to make an award of supplemental fees that is proportionate to the degree of success obtained on the original EAJA application. A litigant is only

WAGNER v. DVA 11
entitled to “reasonable” attorney fees, 28 U.S.C. § 2412(d)(2)(A), and in fashioning a reasonable supple-mental fee award a court may properly discount any “[e]xorbitant” or “unfounded” fee applications. Jean, 496 U.S. at 163; see also Fritz, 264 F.3d at 1377 (emphasizing that a supplemental fee award can be reduced “to the extent that the applicant ultimately fails to prove justifi-cation for each item of fee claimed” or if the fee applica-tion is “procedurally defective”). On remand, the Veterans Court will have the opportunity to consider whether such factors warrant a reduction in Wagner’s supplemental fee award. If the court decides to discount Wagner’s supplemental fee request, however, it needs to provide a reasoned explanation as to why particular attorney hours should be excluded. See Hensley, 461 U.S. at 437 (explaining that a court must “provide a concise but clear explanation of its reasons for the fee award”); United States v. Eleven Vehicles, Their Equip. & Accesso-ries, 200 F.3d 203, 213 (3d Cir. 2000) (emphasizing that a trial court cannot deny supplemental fees without provid-ing an adequate explanation as to why such fees are “excessive, redundant [or] otherwise unnecessary” (cita-tions and internal quotation marks omitted)).
In denying Wagner’s application for supplemental fees, the Veterans Court stated that “[i]t would be anoma-lous to reduce an [initial EAJA] award by some $3,000 and then award nearly that amount to the losing party simply for putting up a fight.” Supplemental Fees Deci-sion, 2010 U.S. App. Vet. Claims LEXIS 197, at *3. We disagree. As the Supreme Court made clear in Jean, “[t]he EAJA applies to a wide range of awards in which the cost of litigating fee disputes would equal or exceed the cost of litigating the merits of the claim.” 496 U.S. at 163-64 (footnote omitted). Thus, regardless of whether Wagner could recoup, through his supplemental fee

WAGNER v. DVA 12
application, an amount that is nearly equal to the amount that he was denied on his original fee application, he is entitled to be compensated for all hours reasonably expended successfully defending his original fee request. See id. at 164-65 (“The Government’s general interest in protecting the federal fisc is subordinate to the specific statutory goals of encouraging private parties to vindicate their rights and curbing excessive regulation and the unreasonable exercise of Government authority.” (foot-notes omitted) (citations and internal quotation marks omitted)).
CONCLUSION
Accordingly, the judgment of the United States Court of Appeals for Veterans Claims is reversed and the case is remanded for further proceedings consistent with this opinion.
COSTS
Wagner shall have his costs.
REVERSED AND REMANDED

Single Judge Application, Locklear v. Shinseki, No. 09-2675, Implicit Denial

Excerpt from decision below:
"Next, with respect to the Secretary's implicit denial argument, a letter
from VA informing Mr. Strother that his Notice of Disagreement was untimely is not an adjudication and, therefore, cannot operate as an implicit denial. See Adams v. Shinseki, 568 F.3d 956, 960 (Fed. Cir. 2009)(explaining that a claim for VA benefits, whether formal or informal, remains pending until it is finally adjudicated); Ingram v. Nicholson, 21 Vet.App. 232, 243 (2007) ("[A] reasonably raised claim remains pending until there is either a recognition of the substance
of the claim in a [regional office] decision from which a claimant could deduce that the claim was adjudicated or an explicit adjudication of a subsequent 'claim' for the same disability."). Moreover, as noted above, VA mischaracterized Mr. Strother's untimely Notice of Disagreement as a request to reopen, instead of
as a claim for an increased disability rating, and, therefore, he was not
put on notice that the January 1996 letter was a denial of his claim for an increased disability rating.
Adams, 568 F.3d at 965("[T]he implicit denial rule is, at bottom, a notice provision.");Locklear v. Shinseki, __ Vet.App. __, __, No. 09-2675, slip. op. at 6, 2011 WL 474693 at *4 (Feb. 11, 2011) (stating that a claim is
10

implicitly denied "when a reasonable person would understand from a decision that his request for benefits not explicitly addressed in the decision nevertheless implicitly was adjudicated and denied by that decision"). Accordingly, the Court concludes that the Secretary's implicit denial and abandonment arguments are without merit."
=============================================
----------------------------------------------------


Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 09-2289
WILLIE J. STROTHER, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before HAGEL, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
HAGEL, Judge: Willie J. Strother appeals through counsel an April 17, 2009,
Board of
Veterans' Appeals (Board) decision denying entitlement to an earlier
effective date for a total
disability rating based on individual unemployability. Record (R.) at 3-16.
The Court has
jurisdiction pursuant to 38 U.S.C. §§ 7252(a) and 7266(a) to review the
April 2009 Board decision.
Because the Board's determination that neither Mr. Strother nor the record
raised the issue of
entitlement to a total disabilityrating based on individual
unemployability between September 1994
and April 2002 is not clearly erroneous and is supported by an adequate
statement of reasons or
bases, the Court will affirm the April 17, 2009, Board decision.
I. FACTS
Mr. Strother served on active duty in the U.S. Army from February 1981 to
February 1984
and in the U.S. Marine Corps from January 1986 to April 1989.


As of November 1992, Mr. Strother had been awarded a 30% disability
rating for Crohn's
disease,1
a 20% disability rating for status post-resection of his bladder, and a
noncompensable
disability rating for anemia.
In May 1993, Mr. Strother filed informal claims for increased disability
ratings for his
service-connected disabilities and indicated that he could not "get a job
or do anywork at all at [that]
time." R. at 487. A month later, he filed an application for increased
compensation based on
unemployability, asserting that his Crohn's disease prevented him from
securing or following
substantiallygainfulemployment. InMarch1994,theregionalofficedeniedhis
claims forincreased
disability ratings for his service-connected disabilities and denied
entitlement to a total disability
rating based on individual unemployability.
Later that month, Mr. Strother attended a VA medical examination. The VA
examiner's
report of Mr. Strother's medical historystated, in pertinent part, that, "[
a]fter discharge [in 1989] and
up to the present time, [Mr. Strother] has tried to work, but due to
diarrhea and abscesses of his
rectum and anus, [he] has been unable to keep a job and has become
unemployable." R. at 436.
Afterconductingageneralphysicalexamination, theexaminerdiagnosedMr.
Strotherwith "Crohn's
disease, postoperative" and noted that Mr. Strother had "large abscesses
and carbuncles[2
]
surrounding the rectum extending to the perineum" that caused "frequent
bleeding from his rectum"
that was "more active on any type of movement." R. at 438. In April 1994,
another VA examiner
confirmed this diagnosis. In September 1994, the regional office again
denied Mr. Strother's claims
for increased disabilityratings for his service-connected disabilities and
denied entitlement to a total
disability rating based on individual unemployability.
In December 1995, more than one year after the September 1994 regional
office decision,
Mr. Strother filed a Notice of Disagreement "with [the] decision to deny[
the] request for an increase
in [the disability] rating for Crohn's disease." R. at 398. Mr. Strother
did not make mention of any
Crohn's disease is "one of the principal forms of inflammatory bowel
disease, a chronic granulomatous disease
of the gastrointestinal tract of unknown etiology. . . . Characteristics
include scarring and thickening of the bowel wall
that frequently leads to intestinal obstruction, abscesses, and fistula
formation." DORLAND'S ILLUSTRATED MEDICAL
DICTIONARY 539 (31st ed. 2007) [hereinafter DORLAND'S].
Carbuncles are "a necrotizing infection of skin and subcutaneous tissue
composed of a cluster of boils . . . with
multiple formed or incipient drainage sinuses." DORLAND'S at 294.
2
1
2


of his other service-connected disabilities or the regional office's
denial of entitlement to a total
disabilityratingbased on individual unemployability. In January1996, VA
sent Mr. Strother a letter
explaining that his Notice of Disagreement was untimely and took no
further action with regard to
this submission.
In the meantime, in April 1995, Mr. Strother informed VA that he was "re[]
applying for
vocational rehabilitation." R. at 402. Specifically, he stated that he was "
now well enough to resume
[his] training" and submitted "medical proof that [he was]
medicallycapable to resume [] vocational
rehabilitation," id., including a letter from a VA physician stating that
he was "approved to restart
employment without restriction," R. at 403, and a pay stub indicating that
he had been employed
part-time since January 1995, R. at 404.
Over the next 7 years, Mr. Strother continued to receive treatment for his
service-connected
disabilities, including a 3-day hospitalization in July 2001. In June 2002,
Mr. Strother filed a claim
for an increased disability rating for Crohn's disease. In July 2002, he
was awarded a 60% disability
rating for Crohn's disease effective April 4, 2002, which increased his
combined disability rating to
70%, also effective April 4, 2002.
In September 2002, Mr. Strother submitted an application for increased
compensation based
on unemployability, asserting that he ceased working full-time in November
2001. In December
2002, a VA medical examiner opined that "at this time, [Mr. Strother]'s
Crohn's disease is active and
would interfere with his ability to be employed." R. at 316. Based on this
medical opinion, the
regional office awarded Mr. Strother a total disability rating based on
individual unemployability
effective April 4, 2002, the date that he was entitled to a 60% disability
rating for Crohn's disease.
Mr. Strother submitted a timely Notice of Disagreement with this decision
and subsequently
perfected his appeal with regard to the effective date assigned for his
total disability rating based on
individual unemployability.
Afterfurtherdevelopment, including a July2008 remand from this Court
premised on a joint
motion for remand, the Board in April 2009 issued the decision currently
on appeal, which denied
entitlement to an earlier effective date for a total disability rating
based on individual
unemployability. Specifically, the Board stated that:
3


[T]he record does not show that the [Mr. Strother]'s service-connected
disabilities
had worsened or that he had become unemployable due to his service-
connected
disabilities on a factually ascertainable date prior to April 4, 2002. In
addition, the
Board finds that none of [Mr. Strother]'s communications following the
September
1994 rating decision that denied him a [total disability rating based on
individual
unemployability] and prior to either April 4, 2002[,] or July 2002
constituted an
informal or formal claim for a [total disability rating based on
individual
unemployability].
R. at 10. The Board also determined that, "even if [] the December 1995
notice of disagreement had
been adjudicated as an increased rating claim, there was no medical
evidence at that time that
showed that any of [Mr. Strother]'s service-connected disabilities had
worsened or that he was
unemployable due to those disabilities." R. at 11 (emphasis added).
II. ANALYSIS
A. Issues on Appeal
As an initial matter, the Court notes that Mr. Strother only appealed that
portion of the
December 2002 regional office decision that assigned an effective date of
April 4, 2002, for his total
disability rating based on individual unemployability. See R. at 176-77 (
VA Form 9 indicating that
Mr. Strother was "only appealing the[] issue" of the effective date
assigned for his total disability
rating based on individual unemployability), 277 (December 2003 Notice of
Disagreement stating
that "it is [Mr. Strother's] contention that the effective date of [his]
rating for unemployabilityshould
be [January 1, 2002]"). Therefore, the December 2002 regional office
decision is final with regard
to Mr. Strother's claim for benefits for Crohn's disease. Moreover, the
April 2009 Board decision
currently on appeal was the result of a July 2008 joint motion for remand,
granted by this Court, that
stated:
[T]he parties agree that the Board should review the evidence of record
prior to [Mr.
Strother]'s July 2002 claim and make a determination whether there was any
communication that could be construed as an informal claim for [a total
disability
rating based on individual unemployability]. The Board should also offer
further
analysis and an adequate explanation as to whether or not [his] claim for [
a total
disability rating based on individual unemployability] should have been
referred for
extraschedular consideration in light of all of the pertinent evidence of
record.
4


R. at 42. Based on these instructions, drafted and agreed to
byrepresented parties, the Board limited
its April 2009 decision to consideration of whether Mr. Strother was
entitled to an effective date
prior to April 4, 2002, for the award of a total disability rating based
on individual unemployability.
Accordingly, this is the only issue presently before the Court on appeal.
See U.S.C. § 7252(a);
Ledford v. West, 136 F.3d 776, 779 (Fed. Cir. 1998) (holding that the
jurisdiction of this Court "is
premised on and defined bythe Board's decision concerning the
matterbeingappealed"). Therefore,
to the extent that any of Mr. Strother's arguments address entitlement to
an earlier effective date for
Crohn's disease, the Court lacks jurisdiction to address them. Id. However,
Mr. Strother is free to
submit those arguments to his local regional office in the form of a
motion for revision of a final
decision based on clear and unmistakable error. See Leonard v. Nicholson,
405 F.3d 1333, 1337
(Fed.Cir. 2005) ("[A]bsent a showingof [clear and unmistakable error, the
appellant]cannotreceive
disability payments for a time frame earlier than the application date of
his claim to reopen, even
with new evidence supporting an earlier disability date.").
B. Merits Adjudication
Mr. Strother argues that the Board committed error when it determined that
his untimely
December 1995 Notice of Disagreement did not constitute an informal claim
for an increased
disability rating, including entitlement to a total disability rating
based on individual
unemployability, which would entitle him to an earlier effective date for
the award of a total
disability rating based on individual unemployability.
Specifically, he contends that this
determination was based on a "debunked legal fiction that [a total
disability rating based on
individual unemployability] is a distinct and separate claim from a claim
for increased
compensation." Appellant's Brief (Br.) at 9. Mr. Strother also asserts
that the Board's finding that,
between December 1994 and April 2002, there was no evidence that his
Crohn's disease increased
in severityor renderedhim unemployableis clearlyerroneousbecauseit is "
factuallyinaccurate" and
because "the Board fail[ed] to appreciate that [he] is entitled to VA's
assistance to the retrospective
development of his increased rating claim." Id. at 11-12. In the
alternative, Mr. Strother argues that
the Board's decision is not supported by an adequate statement of reasons
or bases. The Secretary
disputes these contentions and additionally argues that "any increased
rating claim initiated by [Mr.
Strother]'s untimely December 1995 [Notice of Disagreement] was
adjudicated, either explicitly or
5


impliedly, by the [regional office]'s January 1996 response, or . . . was
abandoned because [he] did
not respond." Secretary's Br. at 14.
With respect to his first argument, Mr. Strother is correct that there is
no such thing as a
freestanding claim for a total disability rating based on individual
unemployability. As the Court
explained in Rice v. Shinseki, "a request for [a total disability rating
based on individual
unemployability] . . . is not a separate claim for benefits, but rather
involves an attempt to obtain an
appropriate rating for a disability or disabilities, either as part of the
initial adjudication of a claim
or . . . as part of a claim for increased compensation." 22 Vet.App. 447,
453-54 (2009). Therefore,
for the purposeof determining whetherMr. Strother is entitled to an
earlier effective date for his total
disability rating based on individual unemployability, the Court will
assume without deciding that
the untimely Notice of Disagreement that he filed in December 1995 was an
informal claim for an
increased disability rating for Crohn's disease, an issue not on appeal at
this time.3
Even assuming that the untimely Notice of Disagreement constituted an
informal claim for
an increased disability rating for Crohn's disease, the informal claim
would not necessarily raise the
issue of entitlement to a total disability rating based on individual
unemployability. As the U.S.
Court of Appeals for the Federal Circuit (Federal Circuit) explained in
Roberson v. Principi, VA
must only consider entitlement to a total disability rating based on
individual unemployability
"[o]nce a veteran submits evidence of a medical disability and makes a
claim for the highest rating
possible, and additionally submits evidence of unemployability." 251 F.3d
1378, 1384 (Fed. Cir.
2001) (emphasis added). Contrary to Mr. Strother's contentions, the
requirement that a veteran
submit evidence of unemployability to raise the issue of entitlement to a
total disability rating based
onindividual unemployabilityhassubsequentlybeenconfirmedbythe Federal
Circuit. See Jackson
Consistent with the discussion in Part II.A, above, the Board made no
explicit finding as to whether the
untimely Notice of Disagreement filed by Mr. Strother in December 1995
constituted an informal claim for an increased
disability rating for Crohn's disease. The Court notes that the untimely
Notice of Disagreement appears, on its face, to
satisfy the requirements for an informal claim for an increased disability
rating for Crohn's disease because Mr. Strother
had an intent to apply for an increased disability rating that he
explicitly identified in a communication to VA in writing.
See R. at 398; see also Brokowski v. Shinseki, 23 Vet.App. 79, 84 (2009) (
explaining that the essential requirements for
a claim, whether formal or informal, are (1) an intent to apply for
benefits, (2) an identification of the benefit sought, and
(3) a communication in writing); 38 C.F.R. § 3.155(c) ("When a claim has
been filed which meets the requirements of
[a claim for disability compensation or death benefits], an informal
request for increase or reopening will be accepted
as a claim.").
3
6


v. Shinseki, 587 F.3d 1106, 1109 (Fed. Cir. 2009) ("To [implicitly] raise [
the issue of entitlement to
a total disability rating based on individual unemployability], a veteran
must make a claim for the
highest rating possible, submit evidence of medical disability, and submit
evidence of
unemployability."); Comer v. Peake, 552 F.3d 1362, 1367 (Fed. Cir. 2009) (
stating that the issue of
entitlement to a total disability rating based on individual
unemployability "is implicitly raised
whenever a pro se veteran, who presents cogent evidence of unemployability,
seeks to obtain a
higher disability rating"). Although Mr. Strother attempts to distinguish
his appeal from Jackson on
the basis that the Federal Circuit made the statement above in the context
of a dispute over attorney's
fees, this is a distinction without a difference in the instant case.
Accordingly, to raise the issue of
entitlement to a total disability rating based on individual
unemployability, a veteran must (1) make
a claim for the highest disability rating possible, (2) submit evidence of
medical disability, and
(3) submit evidence of unemployability. Jackson, 587 F.3d at 1109; Comer,
552 F.3d at 1367;
Roberson, 251 F.3d at 1384.
The parties do not dispute that the first two elements are satisfied
because (1) a claimant is
presumed to be seeking the highest disability rating possible when the
claimant files a claim for an
increased disability rating, AB v. Brown, 6 Vet.App. 35, 38 (1993), and (2)
there was evidence of
record at that time that Mr. Strother had a current diagnosis of Crohn's
disease. Therefore, the
determination of whetherMr. Strother raised the issue of entitlement to a
total disabilityratingbased
onindividual
unemployabilitybyfilinganuntimelyNoticeofDisagreementinDecember1995turns
on whether he submitted evidence of unemployability.
To this end, the Court notes that Mr. Strother did not submit any evidence
along with his
untimelyNotice of Disagreement. In addition, anyevidence of
unemployability in the record before
the September 1994 regional office decision was considered and evaluated
by the regional office in
September 1994 and found insufficient to support the award of a total
disability rating based on
individual unemployability. The only evidence of record between the
September 1994 regional
office decision and the December 1995 untimely Notice of Disagreement is
an April 1995 statement
from Mr. Strother that he was "re[]applying for vocational rehabilitation"
because he was "now well
enough to resume [his] training" and that he had "medical proof that [he
was] medically capable to
resume [] vocational rehabilitation" (R. at 402); a letter from a VA
physician stating that Mr.
7


Strother was "approved to restart employment without restriction" (R. at
403); and a pay stub
indicating that he had been employed part-time since January 1995 (R. at
404). Mr. Strother
inexplicablycites these documents as evidence that he was unemployable in
December 1995 despite
the fact that they seem to indicate the contrary. In any event, the Board
reviewed these documents
and determined that they did not demonstrate that Mr. Strother was
unemployable at the time he
submitted his untimely Notice of Disagreement in December 1995, a finding
that the Court
concludes is not clearly erroneous. See 38 U.S.C. § 7261(a)(4); Owens v.
Brown, 7 Vet.App. 429,
433 (1995) (explaining that the Board's findings of fact are subject to
the "clearly erroneous"
standard of review). To the extent that Mr. Strother argues that a July
2001 hospitalization report
and other treatment records from July 2001 demonstrate that he was
unemployable at the time he
filed the untimely Notice of Disagreement, this evidence postdates that
filing by nearly six years.
Therefore, it cannot be the evidence of unemployability necessary to raise
the issue of entitlement
to a total disability rating based on individual unemployability in
December 1995.
Moreover, to the extent that Mr. Strother argues that the submission of
medical records from
July 2001 raised the issue of entitlement to a total disability rating
based on individual
unemployability in July2001, the Board reviewed these documents and
determined that theydid not
demonstrate unemployability. Mr. Strother does not present any argument as
to why this finding is
clearly erroneous and, therefore, the Court concludes that he has failed
to carry his burden of
demonstrating error in that regard. See Hilkert v. West, 12 Vet.App. 145,
151 (1999).
Based on the foregoing, the Court concludes that the Board's determination
that "no
communication prior to April 2002 or July 2002," including the untimely
December 1995 Notice of
Disagreement, raised the issue of entitlement to a total disability rating
based on individual
unemployability was not clearly erroneous.4
R. at 13.
Both parties argue that the Court should review the Board's determination
of whether an informal claim has
been filed under the "arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law" standard of
review. 38 U.S.C. § 7261(a)(3)(A); Appellant's Br. at 8 (citing Westberry
v. West, 12 Vet.App. 510, 513 (1999));
Secretary's Br. at 5 (citing Criswell v. Nicholson, 20 Vet.App. 501, 504 (
2006)). The Court acknowledges that the cases
cited by the parties invoke this standard of review; however, the Court
has held that "[t]he determination of whether an
informal claim has been filed is a substantially factual determination
that the Court reviews under the 'clearly erroneous'
standard of review." Brokowski, 23 Vet.App. at 85. This holding is
consistent with precedential decisions issued by the
U.S. Court of Appeals for the Federal Circuit and previous holdings of
this Court. See Comer, 552 F.3d at 1372
("Whether a veteran has raised a particular claim is a factual
determination."); Moody v. Principi, 360 F.3d 1306, 1310
4
8


With respect to Mr. Strother's argument that a retrospective medical
examination is required
in this caseto
determinewhetherhebecameunemployablebetweenSeptember1994andApril2002,
the Court notes that Mr. Strother abandoned this argument in his reply
brief. See Appellant's Reply
Br. at 2 n.1 (conceding that the issue of whether Mr. Strother is entitled
to a retroactive medical
examination "is technically, not ripe; it would only be ripe upon remand,
where the Board would
need to address this issue in the first instance"). Moreover, in Chotta v.
Peake, the Court explained
thatentitlementto aretroactivemedicalexamination "isnot automatic,"but
rather"appliesonlyonce
the evidence has met the minimal threshold of indicating the existence of
a medical question."
22 Vet.App. 80, 85 (2008); see also Gobber v. Derwinski, 2 Vet.App. 470,
472 (1992) ("In short, the
'duty to assist' is not a license for a 'fishing expedition' to determine
if there might be some
unspecified information which could possibly support a claim."). In this
case, the Board reviewed
the evidence of record between September 1994 and April 2002, including
the evidence cited byMr.
Strother in his brief, and determined that it was insufficient to
demonstrate unemployability.
Because this determination is not clearly erroneous, the Court concludes
that Mr. Strother has not
carried his burden of demonstrating that he was entitled to a retroactive
medical examination for his
total disability rating based on individual unemployability. See Hilkert,
12 Vet.App. at 151.
Finally, Mr. Strother argues in the alternative that the Board's statement
of reasons or bases
for its decision is inadequate. The Court disagrees. Here, the Board
recited the relevant law and
regulations applicable to the issue on appeal, reviewed the evidence of
record between September
1994 and April 2002, and concluded that this evidence, even when viewed in
the light most
favorable to Mr. Strother, did not raise the issue of entitlement to a
total disability rating based on
individual unemployability prior to April 2002. Because the Board analyzed
the credibility and
probative value of the evidence, accounted for the evidence that it found
to be persuasive or
unpersuasive, and provided the reasons for its rejection of any material
evidence favorable to Mr.
Strother, the Court concludes that the Board provided an adequate
statement of reasons or bases for
(Fed. Cir. 2004) (explaining that the interpretation of filings to
determine if an informal claim has been filed is
"essentially a factual inquiry"); Ellington v. Nicholson, 22 Vet.App. 141,
144 (2007); Beverly v. Nicholson, 19 Vet.App.
394, 405 (2005).
9


its decision. See Caluza v. Brown, 7 Vet.App. 498, 506 (1995), aff'd per
curiam, 78 F.3d 604 (Fed.
Cir. 1996) (table); see also 38 U.S.C. § 7104(d)(1); Gilbert v. Derwinski,
1 Vet.App. 49, 57 (1990).
C. The Secretary's Implicit Denial and Abandonment Arguments
Although the Court is affirming the Board decision, the Court feels
compelled to briefly
address the Secretary's implicit denial and abandonment arguments.
Specifically, the Secretary
arguesthat"anyincreased ratingclaim initiated by[Mr. Strother]
'suntimelyDecember1995[Notice
of Disagreement] was adjudicated, either explicitly or impliedly, by the [
regional office]'s January
1996 response, or that it was abandoned because [he] did not respond to
the January 1996 . . .
response." Secretary's Br. at 14.
With respect to the Secretary's abandonment argument, the Court notes that
the January1996
letter from VA erroneously instructed Mr. Strother to provide new and
material evidence to reopen
his claim for benefits for Crohn's disease before VA would "take any
action on [his] appeal." R. at
396. However, there is no requirement that a claimant produce new and
material evidence to make
a claim for an increased disability rating and, therefore, Mr. Strother's
failure to produce such
evidence cannot be deemed to be an abandonment of any informal claim for
an increased disability
rating that might have arisen from his untimely filing of the Notice of
Disagreement.
Next, with respect to the Secretary's implicit denial argument, a letter
from VA informing
Mr. Strother that his Notice of Disagreement was untimely is not an
adjudication and, therefore,
cannot operate as an implicit denial. See Adams v. Shinseki, 568 F.3d 956,
960 (Fed. Cir. 2009)
(explaining that a claim for VA benefits, whether formal or informal,
remains pending until it is
finally adjudicated); Ingram v. Nicholson, 21 Vet.App. 232, 243 (2007) ("[
A] reasonably raised
claim remains pending until there is either a recognition of the substance
of the claim in a [regional
office] decision from which a claimant could deduce that the claim was
adjudicated or an explicit
adjudication of a subsequent 'claim' for the same disability."). Moreover,
as noted above, VA
mischaracterized Mr. Strother's untimely Notice of Disagreement as a
request to reopen, instead of
as a claim for an increased disability rating, and, therefore, he was not
put on notice that the January
1996 letter was a denial of his claim for an increased disability rating.
Adams, 568 F.3d at 965 ("[T]he implicit denial rule is, at bottom, a notice provision."); Locklear v. Shinseki, __ Vet.App. __, __, No. 09-2675, slip. op. at 6, 2011 WL 474693 at *4 (Feb. 11, 2011) (
stating that a claim is
10


implicitly denied "when a reasonable person would understand from a
decision that his request for benefits not explicitly addressed in the decision nevertheless implicitly was adjudicated and denied by that decision"). Accordingly, the Court concludes that the Secretary's implicit denial and abandonment arguments are without merit.

III. CONCLUSION
Upon consideration of the foregoing, the April 17, 2009, Board decision is
AFFIRMED.
DATED: April 18, 2011
Copies to:
Sean A. Ravin, Esq.
VA General Counsel (027)
11

Single Judge Application, Frederick v. Shinseki, No. 09-433, Restoration of DIC

Excerpt from decision below:
"Mrs. Plouffe's claim was denied because she filed for restoration of her
DIC benefits after December 16, 2004. Pursuant to Frederick, this is an improper basis for denying restoration of DIC benefits. See Frederick, 2011 WL 922279, at *4 (December 16, 2004 is "an end date for submission of an initial application as opposed to a window in which a second or additional application must be submitted")."

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

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

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 09-2324
VIRGINIA PLOUFFE, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before KASOLD, Chief Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
KASOLD, Chief Judge: Virginia Plouffe, surviving spouse of veteran Ellis
Riggs, appeals through counsel a February19, 2009, decision of the Board of
Veterans'Appeals (Board) that denied restoration of dependency and indemnity compensation (DIC) benefits because she did not file for restoration by December 16, 2004. On January 12, 2011, this matter was stayed pending the disposition of the appeal in Frederick v. Shinseki, U.S. Vet. App. No. 09- 433 (argued Nov. 23, 2010). Frederick has been decided; thus, the stay is lifted. See Frederick v. Shinseki, No. 09-433, 2011 WL 922279 (Vet. App. Mar. 11, 2011). Single-judge disposition is appropriate. Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). For the reasons stated below, the Board's decision will be set aside and the matter remanded for further adjudication.
Mrs. Plouffe's claim was denied because she filed for restoration of her
DIC benefits after December 16, 2004. Pursuant to Frederick, this is an improper basis for denying restoration of DIC benefits. See Frederick, 2011 WL 922279, at *4 (December 16, 2004 is "an end date for submission of an initial application as opposed to a window in which a second or additional application must be submitted"). Accordingly, remand is appropriate. See Tucker v. West, 11 Vet.App. 369, 374 (1998) (holding that 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"). On remand, Mrs. Plouffe may present, and the Board must consider, any additional evidence and argument in support of the matter remanded. See Kay v. Principi, 16 Vet.App. 529, 534 (2002). These matters are to be provided expeditious treatment on remand. See 38 U.S.C. § 7112.

For the reasons stated above, the February 19, 2009, decision of the Board
is SET ASIDE
and the matter REMANDED for further adjudication.
DATED:
April 14, 2011
Copies to:
Daniel G. Krasnegor, Esq.
VA General Counsel (027)
2

Parrish v. Shinseki, No. 09-0757, Argued January 27, 2011 Decided April 22, 2011

DAVIS, Judge, filed an opinion concurring in the result.

“Just as Judge Hagel was not willing to extend the presumption of regularity in Johnson, I am not willing to extend the presumption of regularity to such a point in this case.”
“In Johnson (L.E.) v. Shinseki, 23 Vet.App. 344 (2010), Judge Hagel wrote a concurring opinion addressing a similar conundrum, where, in order to rebut the presumption of regularity, the veteran needed evidence that “remain[ed] exclusively in VA’s control.” 23 Vet.App. at 350 (Hagel, J., concurring). Judge Hagel wrote that this created “an unduly onerous path for a veteran to rebut the presumption of regularity.” Id. He continued: “In practice, requiring a veteran to navigate the VA administrative system to which he has no access to find out whether [ documents were transmitted in a regular manner according to procedure] would transform the rebuttable presumption of regularity into an essentially irrebuttable presumption.” Id.”

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

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 09-0757
JAMES L. PARRISH, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE. On Appeal from the Board of Veterans’ Appeals (Argued January 27, 2011 Decided April 22, 2011)
Glenn R. Bergmann, with whom Daniel D. Wedemeyer was on the brief, both of Bethesda, Maryland, for the appellant.
Lavinia A. Derr, with whom Will A. Gunn, General Counsel; R. Randall Campbell, Assistant General Counsel; and Richard Mayerick, Deputy Assistant General Counsel, were on the brief, all of Washington, D.C., for the appellee.

Before KASOLD, Chief Judge, and MOORMAN and DAVIS, Judges. KASOLD, Chief Judge, filed the opinion of the Court. DAVIS, Judge, filed an opinion concurring in the result.

KASOLD, Chief Judge: Veteran James L. Parrish appeals through counsel that
part of a February 9, 2009, decision of the Board of Veterans’ Appeals (Board) that
denied disability compensation for chronic obstructive pulmonary disease (COPD) and
pulmonary fibrosis,1 both claimed to be a result of in-service radiation exposure, because the disabilities are not service connected. Mr. Parrish’s initial argument to the Court focused on the adequacy of the Board’s statement of reasons or bases for its decision with regard to its reliance on the procedure employed and decisions obtained by the Secretary in accordance with 38 C.F.R. § 3. 311(c), a regulation “COPD” is any disorder characterized by persistent or recurring obstruction of bronchial air flow, such as chronic bronchitis, asthma, or pulmonary emphysema. DORLAND’S ILLUSTRATED MEDICAL DICTIONARY 538 (31st ed.2007) [hereinafter DORLAND’S]. “Pulmonary fibrosis” is the formation of fibrous tissue in the lungs. Id. at 712 and 1575.
1
1. pertaining to the Secretary’s radiation exposure claim adjudication process. On November 16, 2010, the Court affirmed the Board’s decision.
Mr. Parrish timely sought reconsideration, specifically contending that 38 C.F.R. § 3.100 does not permit the Under Secretary for Benefits (USB) to delegate obligations that expressly are placed upon him by § 3.311©. Although this specific argument was not raised in his initial brief, it is sufficiently related to his initial argument to grant reconsideration, and the November 16 decision was withdrawn. Because this specific issue has not previously been decided by the Court, it was referred for decision by a panel of the Court. Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990).
For the reasons set forth below, the Court holds that (1) the express designation of responsibility to the USB stated in § 3.311© does not limit the USB’s authority under § 3.100 to designate the Compensation and Pension (C&P) Service Director (C&P Director) to render the opinion required by § 3.311(c), and (2) Mr. Parrish otherwise fails to demonstrate error in the Board’s decision. Therefore, the Board’s decision will be affirmed.

I. FACTS
Mr. Parrish served on active duty from January 1957 to December 1959. In August 1999, he submitted a disability compensation claim for, inter alia, COPD and pulmonary fibrosis from exposure to in-service radiation. With his claim, Mr. Parrish submitted an August 1999 letter from his private physician who opined that his conditions “certainly could have been caused by his exposure to radiation.” Record (R.) at 504. Responding to a request from the St. Petersburg, Florida, regional office (RO), the Defense Threat Reduction Agency (DTRA) confirmed that Mr. Parrish was present at Operation PLUMBBOB, a U.S. atmospheric nuclear test series conducted in Nevada in 1957, but that he had not been exposed to measurable radiation.
The RO denied the claim in a November 2001 rating decision. In July 2002, Mr. Parrish submitted a Notice of Disagreement and an article discussing possible health problems of veterans who participated in nuclear weapons testing. The RO continued its denial of the claim in a January 2004 Statement of the Case. With his appeal to the Board, Mr. Parrish submitted another letter from his private physician dated February23, 2004. The matter was forwarded to the RO for more development and an additional dose estimate
from DTRA was
2

obtained. According to a November 2007 letter from DTRA, DTRA began a new policy to provide worst-case radiation dose estimates to give the maximum benefit of the doubt to veterans and to ensure that reported doses are not less than actual doses. Although Mr. Parrish originally was found to have nonmeasurable exposure to radiation, under the new policy, DTRA estimated that Mr. Parrish could not have been exposed to more than 16 rem external gamma dose, 1 rem external neutron dose, 1 rem internal committed dose to his lung (alpha), and 3 rem internal committed dose to his lung (beta + gamma).
In December 2007, the RO requested from the C&P Service a decision regarding the issue of service connection for COPD and pulmonary fibrosis secondary to ionizing radiation exposure.
The request included “information as required by the manual,” to wit: (a)
Pertinent service information; (b) the circumstances, including the dates of exposure; (c)
description of disease claimed; (d) age at time of exposure, (e) dosage estimate; (f) time lapse between exposure and onset of disease; (g) gender, pertinent family history and employment history; (h) history of exposure to known carcinogens or radiation, including smoking; and (i) other relevant information. R.at230-31.The C&P Director subsequently forwarded this information to the Under Secretary for Health. The subject line of the memorandum reads: “Radiation Review - 38 C.F.R. § 3. 311.” R. at 222.
In July 2008, the chief public health and environmental hazards officer (CPHEHO)
responded to the C&P Director’s request.2

2. In sum, the CPHEHO noted that Mr. Parrish’s dose estimates of 16, 1, 1 and 3 rem were the worst-case assumptions, and that although the Interactive Radioepidemiological Program is used to estimate the likelihood that radiation exposure is related to malignant neoplastic disease,3 the program did not cover non-neoplastic disease such as COPD
and pulmonary fibrosis. The CPHEHO noted the following research findings: (
1) There were no peer-reviewed studies documenting a statistically significant association between pulmo or COPD and a dose response to radiation exposure; (2) some research showed a significant dose-

3. The parties do not take issue with the apparent delegation of authority in this instance. Because the matter was not addressed by the Board or argued by the parties, the Court will not further address it. See Carbino v. West, 168 F.3d 32, 35 (Fed. Cir. 1999) (noting that the Court properly declined to consider contentions that were not raised by the appellant). “Neoplastic” means pertaining to “neoplasm,” which is any new and abnormal growth; specifically a new growth of tissue that is uncontrolled and progressive. See DORLAND’S at 1258.
3

response relationship for respiratory disease and other non-neoplastic diseases, but smoking also affects noncancer mortality; (3) additional research confirmed these findings but noted that it was not possible to rule out a model with a threshold as high as 50 rem for other non-neoplastic diseases;4 (4) lifetime noncancer risks for people exposed as adults to 100 rem were similar to those for solid cancer, and for people exposed as children, the risks were about half as great. Noting that Mr. Parrish was a former smoker, the CPHEHO concluded in light of the stated research that it was unlikely that Mr. Parrish’s COPD and pulmonary fibrosis can be attributed to in-service ionizing radiation exposure. R. at 219.
Subsequently, the C&P Director conducted radiation review5 and noted, inter alia, the CPHEHO’s medical opinion, the worst-case dosage estimates from DTRA, that Mr. Parrish’s conditions were diagnosed 40 years after exposure to ionizing radiation, and that Mr. Parrish reported having been a smoker for 29 years. The C&P Director opined that there was no reasonable possibility that Mr. Parrish’s COPD and pulmonaryfibrosis are the result of his exposure to ionizing radiation in service. Thereafter, the RO issued a Supplemental Statement of the Case continuing the denial of the claim. On appeal, the Board explained that the matter hinged on knowledge of the amount of radiation exposure endured by Mr. Parrish. The Board denied disability compensation because, inter alia, the CPHEHO’s and C&P Director’s opinions were based on complete historical data with regard to Mr. Parrish’s radiation exposure while Mr. Parrish’s private physician’s opinion was not. Mr. Parrish timely appealed.

4. The CPHEHO opinion discusses dose estimates in terms of the “sievert” (sv),
which is the unit of radiation absorbed dose equivalent, defined as that producing the same biologic effect in a specified tissue as 1 gray of high-energy x-rays; 1 sievert equals 100 rem. See DORLAND’S at 1733.
5. Although the C&P Director’s opinion is dated June 23, 2008, we presume that the date is an error because the text of the C&P Director’s opinion expressly refers to the “July 10, 2008, memorandum from the [CPHEHO], writing for the under Secretary.” R. at 220. Neither Mr. Parrish nor the Secretary raised, nor does the Court discern, any prejudicial error here.
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II. ANALYSIS
A. The Parties’ Arguments
1. Primary Issue
Mr. Parrish argues that 38 C.F.R. § 3.311© designates the USB as the sole authorityto make the radiation determination required by § 3.311, and that 38 C.F.R. § 3. 100 does not permit him to delegate the authority to make this determination. Mr. Parrish further argues that, assuming delegation is permitted, no such delegation has been made. The Secretary argues that the USB complied with § 3.311© because he reviewed the matter through his agent, the C&P Director, who reports directly to the USB, and that the USB has the authority to designate supervisory personnel such as the C&P Director to make findings under applicable law and regulation in accordance with 38 C.F.R. §§ 2.6(b) and 3.100. The Secretary further contends that the issue of delegation was settled in Hilkert v. West, 12 Vet.App. 145 (1999)(en banc). At oral argument, the Secretary asserted that the USB properly designated the C&P Director to make decisions on his behalf in accordance with the Veterans Benefits Administration Adjudication Procedures Manual (M21-1MR). See M21-MR, pt. IV, subpt. ii, ch. 1, sec. C.
This issue is discussed in subsection B, below.

2. Additional Issues
Mr. Parrish also argues that the Board provided an inadequate statement of reasons or bases for its decision with regard to three additional issues. First, he argues that the C&P Director inadequately explained his decision such that the Board erred when it did not seek another decision in contravention of Stone v. Gober, 14 Vet.App. 116 (2000). Second, he argues that the Board inadequately explained how the C&P Director’s decision and the CPHEHO’s opinion are more probative than his private physician’s opinion. Finally, he argues that the Board’s statement is inadequate because there is no evidence of record that the C&P Director has medical expertise or training.
The Secretary contends that the Board’s decision is explained adequately and is not clearly erroneous. He reasons that the Board explained that the CPHEHO and the C&P Director provided detailed reports based upon correct regulatory criteria, and the Board did not rely on the C&P Director’s decision as medical evidence.
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These issues are discussed in subsection C, below.

B. Decision Process Under 38 C.F.R. § 3.311
Veterans are awarded disability compensation for disabilities resulting from injuries or diseases that are incurred in or aggravated by service. 38 U.S.C. §§ 1110 and 1310. For disability compensation claims based upon in-service radiation exposure, the Secretary has established a special adjudication process. See 38 C.F.R. § 3.311 (2010); see also Stone, 14 Vet.App. at 119; Hilkert, supra.

Succinctly stated, radiation exposure claims must be referred to the USB for consideration when a claimant, at a minimum, was exposed to ionizing radiation as a result of participation in the atmospheric testing of nuclear weapons, 38 C.F.R. § 3.311(b)(1)(i), subsequently developed a radiogenic disease, 38 C.F.R. § 3.311(b)(1)(ii), and, the radiogenic disease became manifest within the period specified in 38 C.F.R. § 3.311(b)(5). If a condition is not recognized by regulation as a “radiogenic disease,” the claim nevertheless must be referred to the USB when a claimant “has cited or submitted competent scientific or medical evidence that the claimed condition is a radiogenic disease.” 38 C.F.R. § 3.311(b)(4). Mr. Parrish’s claim was forwarded to the USB pursuant to subsection (b)(4).
Once forwarded, § 3.311(c) dictates the process. Pursuant thereto, the USB is required to evaluate the claim with reference to specific criteria laid out in § 3.311(e). As noted in Hilkert, 12 Vet.App. at 149, because the USB’s consideration of the claim “relies heavily on medical and scientific findings and analysis, the [USB] may request an advisory opinion from the Under Secretary for Health.” The USB then forwards his decision, with supporting rationale, to the RO for adjudication of the claim. 38 C.F.R. § 3.311© and (d). The C&P Director is not mentioned in the regulation as having a role in this process, which forms the basis of Mr. Parrish’s primary argument.

1. Hilkert is not Controlling
Contrary to the Secretary’s contention, Hilkert, supra, is not binding or settled authority on whether the USB maydelegate, or has delegated, authority to the C&P Director to render the review and determination called for in § 3.311©. Although Hilkert includes a statement that the RO “properly referred the claim to the Director of Compensation and Pension for review who acted on behalf of the USB,” 12 Vet.App. at 149, the authority to delegate was not an issue in the case.
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Indeed, the issue was not argued or developed, and its resolution was not necessary to the outcome of the case. See id. at 158 n.15 (Steinberg, J., dissenting) (noting that the appellant expressly declined to challenge the issue of delegation of authority to the C&P Director and that the issue was not addressed by the Court’s decision). The passing mention of a proper referral, therefore, is dicta that does not settle the issue. Jama v. Immigration and Customs Enforcement, 543 U.S. 335, 352 n.12 (2005) (“Dictum settles nothing, even in the court that utters it.”); BLACK’S LAW DICTIONARY 1101 (7th ed. 1999) (defining “obiter dictum” as “[a] judicial comment made during the course of delivering a judicial opinion, but one that is unnecessary to the decision in the case and therefore not precedential).

2. Authority to Designate
Congress has vested the Secretary with broad authority to delegate and to authorize successive redelegation with regard to all laws administered by the VA.
Section 512 of title 38 provides in pertinent part:
(a) Except as otherwise provided by law, the Secretary may assign functions and duties, and delegate, or authorize successive redelegation of, authority to act and to render decisions, with respect to all laws administered by the Department, to such officers and employees as the Secretary may find necessary. See 38 U.S.C. § 512(a) (emphasis added).
By regulation, the Secretary has vested the USB with “authority to act on all matters assigned to the Veterans Benefits Administration except as provided in § 1.771[6 ] . . . and to authorize supervisory or adjudicative personnel within his/her jurisdiction to perform such functions as may be assigned.” 38 C.F.R. § 2.6(b)(1) (2010). The authority to act on those matters within the realm of the USB’s authority is further delegated to supervisory or adjudicative personnel designated by the USB, to wit:
(a) Authority is delegated to the Under Secretary for Benefits and to supervisory or adjudicative personnel within the jurisdiction of the Veterans Benefits Administration designated by the Under Secretary, to make findings and decisions under the applicable laws, regulations, precedents, and instructions, as to entitlement of claimants to benefits under all laws administered by the Department of Veterans 6
There currently is no provision of VA regulation at §1.771.
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Affairs governing the payment of monetary benefits to veterans and their dependents, within the jurisdiction of the Compensation and Pension Service. See 38 C.F.R. § 3.100(a) (2010) (emphasis added).Mr. Parrish does not dispute that the Secretary has broad statutory authority to delegate and redelegate authority to act with respect to all laws administered by VA, and that he has delegated authority to the USB to designate others under his control to make findings and render decisions with regard to entitlement to VA benefits. Rather, Mr. Parrish argues that (1) the Secretary has restricted the authority to make the radiation determination required by § 3.311 solely to the USB, and (2) the regulatory history for § 3.311©impliedlyprohibits delegation. In support of his first argument, Mr. Parrish notes that § 3.311© cites only the USB as the officer to make the radiation determination required by § 3.311, which he argues reflects the Secretary’s decision that authority to make the radiation determination may not be further delegated. In further support of this argument, Mr. Parrish notes that 38 C.F.R. § 3.321(b), a provision addressing extraschedular rating determinations, vests decision making in either the USB or the C&P Director, reflecting that the Secretary knows how to vest authority to act in more than one official when he so chooses.
Mr. Parrish’s observations in support of his first argument ignore at least two facts that demonstrate the Secretary did not restrict the broad authority of the USB granted in § 3.100(a) to designate the C&P Director (or other supervisory or adjudicative personnel
within the jurisdiction of the Veterans Benefits Administration) to make the radiation determination required in § 3.311(c).First, there has been a longstanding practice of the C&P Director making decisions under 38 C.F.R. § 3.311 (c), as reflected in our caselaw over at least the past 19 years. See Davis v. Brown, 10 Vet.App. 209, 210 (1997) (noting that in April 1992, the RO referred the claim to the C&P Director); see also Hilkert, 12 Vet.App. at 149 (noting that the RO forwarded the matter to the C&P Director for review, who acted on behalf of the USB). The Secretary’s awareness that the C&P Director has been making the radiation determination, as demonstrated by cases the Secretary has litigated before the Court, and his inaction, demonstrate’s the Secretary’s approval of the process, including the delegation of authority. Cf. Bob Jones Univ. v. United States, 461 U.S. 574, 600-01 (1983) (noting that Congress’s awareness of an administrative agency’s regulatory interpretation for 12 years and Congress’s failure to act on bills proposed on the subject the regulations interpreted provides support
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that Congress acquiesced, and therefore agreed, with the agency’s regulatory interpretation). Further, although Hilkert is not controlling in this case as discussed above, the Court notes that Hilkert is cited as authority for the promulgation of § 3.311. Thus, the procedures employed for a radiation claim under § 3.311 in Hilkert are informative of VA’s common practice in adjudicating these claims.
Second, Veterans Benefits Administration’s M21-MR establishes the procedure for adjudicating claims under 38 C.F.R. § 3.311. The manual states that the RO should forward claims to the C&P Service when the three requirements of 38 C.F.R. § 3.311(b)(1) are met. It also states that the C&P Service is responsible for providing the RO with an opinion recommending either that the claim be granted or denied. See M21-MR, pt. IV, subpt. ii, ch. 1, sec. C, 23-24; see also Brannon v. Derwinski, 1 Vet.App. 314, 316 (1991) (“’[C]ourts may take judicial notice of facts of universal notoriety, which need not be proved, and of whatever is generally known within their jurisdictions.’”(quoting B.V.D. Licensing Corp. V. Body Action Deisgn, Inc ., 846 F.2d, 727, 728 (Fed. Cir. 1988))). As head of the C&P Service, the C&P Director is an appropriate official to provide such an opinion. And, as noted above, the Secretary’s inaction with regard to directing any change to the M21-MR reflects his acceptance of the procedures contained therein. Cf. Bob Jones Univ., supra.
Contrary to Mr. Parrish’s second argument, the regulatory history for § 3.311(c) does not
impliedly prohibit delegation. Mr. Parrish correctly notes that the first proposed version of § 3.311(c)vested decision making in the then-titled chief medical director,
but in response to comments that referral to the chief medical director appeared to
transfer rating jurisdiction from the then-named Department of Veterans Benefits to the Department of Medicine and Surgery, the provision was amended to clarify that the final decision rested with the then-titled chief benefits director and that he could request an advisory opinion from the chief medical director. See 50 Fed. Reg. 34,452, 34,456 (Aug. 26, 1985).7

7. Although this is an accurate statement of the history of § 3.311(c), it fails “Chief benefits director” and “chief medical director” are former titles for the “under secretary for benefits” and “under secretary for health,” respectively. The titles were changed to their current form only to match the correct statutory titles. See 60 Fed. Reg. 9627 (Feb. 21, 1995). Moreover, the “ Department of Veterans Benefits” and the “Department of Medicine and Surgery” are former titles for the “Veterans Benefits Administration” and “Veterans Health Administration,” respectively.
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to show any intent on the part of the Secretary to prohibit designation
of responsibility to officers who are within the Department of Veterans Benefits today, such as the C&P Director. Rather, the history indicates only that the Secretary intended to clarify that jurisdiction to decide veterans-benefits matters remained with the appropriate administration.

3. Designation of C&P Director
Mr. Parrish contends that even if the USB had the authority to delegate
authority to the C&P Director to make the radiation determination required by § 3.311©, the USB never did so. At oral argument, Mr. Parrish noted that VA directives entitled “Delegations of Authority” establish VA policy that authority may be delegated only through written delegation memoranda, if not otherwise delegated by statute or VA regulation. See, e.g., VA Directive 0000 (2009), available at action.cfm?dType=1. He further noted that
there is no evidence in the record on appeal that a corresponding delegation memorandum has been executed that delegates authority to the C&P Director. Mr. Parrish therefore argued that the C&P Director’s radiation determination was ultra vires. Initially we note that Mr. Parrish cites to nothing in the record indicating he raised this issue below, or that it reasonably was raised by the record; thus it was not error for the Board to not develop or address this issue. See Pond v. West, 112 Vet.App. 341 (1999) ( Board is required to develop all issues reasonably raised below); Talbert v. Brown, 7 Vet.App. 352, 356 (1995) (noting that the Board must address reasonably raised issues and is not obligated to “conduct an exercise in prognostication”). Accordingly, it also is not surprising that a delegation memorandum is not in the record on appeal as it was not an issue below, and the simple fact that such a memorandum is not in the record fails to overcome the presumption that government officials generally discharge their duties in accordance with the law and governing regulations. Rizzo v. Shinseki, 580 F.3d 1288, 1292 (2009) (“’[T]he doctrine . . . allows courts to presume that what appears
regular is regular, the burden shifting to the attacker to show the contrary,’” and stating that “nothing in this Court’s precedent limits the presumption to procedural matters”) (quoting Butler v. Principi, 244 F.3d 1337, 1340 (2001))); Borg-Warner Corp. v. Comm’r, 660 F.2d 324, 330 (7th Cir. 1981) (Under the presumption of regularity and in the absence of any indication to the contrary, it is presumed that authority has been delegated properly. (citing United States v. Ahrens, 530 F.2d 781, 786 (8th Cir. 1976) and
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Lesser v. U.S., 368 F.2d 306, 309 (2d Cir. 1966))); United States v.
Masusock, 1 U.S.C.M.A. 32, 36-37 (1951) (same); see also Fugere v. Derwinski, 1 Vet.App. 103, 105 (1990) (“Advancing different arguments at successive stages of the appellate process does not serve the interests of the parties or the Court. Such a practice hinders the decision-making process and raises the undesirable specter of piecemeal litigation.”).
Moreover, Mr. Parrish essentially ignores the broad authority to act on matters within the jurisdiction of the Veterans Benefits Administration that has been delegated in regulation by the Secretary to the USB and any persons designated by the USB. See 38 C.F.R. § 3.100(a). In this context, the specific requirements of VA Directive 0000 (2009) are inapposite, as it addresses delegation, as opposed to designation. Although the M21-MR does not specifically designate the C&P Director to render the radiation determination, it clearly places responsibility for the radiation determination with the C&P Service, which implicitly designates the C&P Director to exercise the authority delegated in § 3.100(a). In sum, we find a proper delegation of authority in § 3.100(a), and, in the M21-MR, a proper designation of the C&P Director to exercise that delegation of authority.
Accordingly, Mr. Parrish’s contention that the C&P Director’s decision is ultra vires is without merit.

C. Remaining Issues on Appeal
The record does not support Mr. Parrish’s other argument that the Board provided an inadequate statement of reasons or bases. In support of his argument, Mr. Parrish asserts that the Board (1) relied on an inadequately explained decision of the C&P Director under 38 C.F.R.§ 3.311(c)(1), contravening Stone, supra, and (2) inadequately explained
how the C&P Director’s decision and the CPHEHO’s opinion aremore probative than his private physician’s opinion because
(a) both opinions are, themselves, explained inadequately and (b) there is no evidence of record that the C&P Director has medical expertise or training.
1. The Board’s Duty To Provide Adequate Rationale and the Court’s Standard
of Review Decisions of the Board shall be based on all applicable provisions of law and regulation, and the Board shall provide a written statement of reasons or bases for its conclusions. See 38 U.S.C. § 7104(a), (d)(1). The Board is not required to discuss all of the evidence of record, see Dela Cruz v. Principi, 15 Vet.App. 143, 149 (2001), but it should not reject evidence favorable to the claimant without discussing that evidence, see Meyer v. Brown, 9 Vet.App. 425, 433 (1996), and its overall
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statement “must be adequate to enable a claimant to understand the precise basis for the Board’s decision, as well as to facilitate review in this Court.” Allday v. Brown, 7 Vet.App. 517, 527 (1995).
Moreover, the Board may find an unfavorable medical opinion more probative than a favorable one as long as it articulates understandable and valid reasons for doing so.
Nieves-Rodriguez v. Peake, 22 Vet.App. 295, 300 (2008); see also Stefl v. Nicholson, 21 Vet.App. 120, 124 (2007).
The Board’s findings regarding the probative value of medical opinions, as well as its ultimate finding whether a disability is service connected, is subject to the “clearly erroneous” standard of review. See Owens v. Brown, 7 Vet.App. 429, 433 (1995) ( Board’s assignment of greater probative weight to one medical opinion than to another is subject to the “clearly erroneous” standard of review); see also Russo v. Brown, 9 Vet. App. 46, 50 (1996) (noting that a finding of service connection, or lack thereof, is a finding of fact reviewed under the “clearly erroneous” standard of review). 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.’” Gilbert v. Derwinski, 1 Vet. App. 49, 52 (1990) (quoting United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948)); see also Padgett v. Nicholson, 19 Vet. App. 133, 147-48 (2005).
2. Substantive Requirements for Decisions Under 38 C.F.R. § 3.311
Section 3.311(c)(1) also requires a certain degree of detail in decisions made there under. It provides in pertinent part:
(1) [T]he Under Secretary for Benefits shall consider the claim with
reference to the factors specified in paragraph (e) of this section and may request an advisory medical opinion from the Under Secretary for Health.
(i) If after such consideration the Under Secretary for Benefits is convinced sound scientific and medical evidence supports the conclusion it is at least as likely as not the veteran’s disease resulted from exposure to radiation in service, the Under Secretary for Benefits shall so inform the regional office of jurisdiction in writing.
The Under Secretary for Benefits shall set forth the rationale for this conclusion, including an evaluation of the claim under the applicable factors specified in paragraph (e) of this section.
(ii) If the Under Secretary for Benefits determines there is no reasonable possibility that the veteran’s disease resulted from radiation exposure in service, the Under Secretary for Benefits shall so inform the regional office of jurisdiction
in writing, setting forth the rationale for this conclusion.
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See 38 C.F.R. § 3.311(c)(1). Applicable factors under subsection (e) are the following:
(1) The probable dose, in terms of dose type, rate and duration as a factor in inducing the disease, taking into account any known limitations in the dosimetry devices employed in its measurement or the methodologies employed in its estimation;
(2) The relative sensitivity of the involved tissue to induction, by ionizing radiation, of the specific pathology;
(3) The veteran’s gender and pertinent family history;
(4) The veteran’s age at time of exposure;
(5) The time-lapse between exposure and onset of the disease; and (6)The extent to which exposure to radiation, or other carcinogens, outside of service may have contributed to development of the disease. 38 C.F.R. § 3.311(e). If the USB ultimately recommends that there “is no reasonable possibility that the veteran’s disease resulted from radiation exposure in service,” see 38 C.F.R. § 3.311©(1)(ii), the USB is not required to discuss in his decision each of the subsection (e) factors. Hilkert, 12 Vet. App. at 149. Rather, the factors should be considered and consulted as a point of reference. Id. at 149-50.
3. The Board’s Decision is Adequately Explained and is Not Clearly
Erroneous
Mr. Parrish relies on Stone, supra, for the proposition that the C&P Director’s decision here lacked sufficient explanation as to why there is no reasonable possibility that Mr. Parrish’s conditions resulted from radiation exposure in service. In Stone, the radiation decision provided by the USB was cursory and lacked discussion of any of the § 3.311(e) factors.
Specifically, the USB stated:
“We have received a medical opinion from the Under Secretary [for Health], with which we agree, that advises it is unlikely that the veteran’s carcinoma of the rectum and anal area resulted from his exposure to ionizing radiation in service.” Stone, 14 Vet. App. at 120. The Court further noted that “[t]here is no articulation of the Board’s reasons for finding the [USB’s] opinion convincing, but rather a mere restatement of [the USH’s medical] opinion in conjunction with the denial of presumptive service connection.” Id.
In contrast to the circumstances in Stone, the Board here noted the C&P Director’s discussion of (1) Mr. Parrish’s in-service radiation exposure history, including dose rem data, (2) race, sex, age, and personal data, (3) family history of cancer, postemployment history, and 29-year history of smoking, (4) the CPHEHO’s report, which found no statistically significant association between Mr. Parrish’s conditions and dose response to radiation exposure, and (5) the fact that COPD and
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pulmonary fibrosis were diagnosed 40 years after in-service ionizing radiation exposure. Thus, the C&P Director’s decision was neither cursory nor lacking in discussion, and the Board did not err in relying on it. Mr. Parrish also fails to otherwise point to any evidence that the C&P Director’s decision failed to substantively comply with § 3.311©(1) or our holding in Hilkert, supra.
Although Mr. Parrish asserts that the stated information still fails to explain adequately the C&P Director’s ultimate decision, he ignores the commonsense meaning of each stated fact, and that the C&P Director’s conclusion flows naturally from the sum of those meanings. For instance, the C&P Director noted that (1) the CPHEHO report found no statistically significant association between Mr. Parrish’s conditions, (2) smoking is a factor, and (3) Mr. Parrish admitted that he smoked for 29 years and Mr. Parrish also was not diagnosed with his lung conditions until 40 years after in-service exposure. The C&P Director, concluded, then, that there is no reasonable possibility that Mr. Parrish’s conditions resulted from exposure to in-service radiation. Although not stated with the highest degree of precision, the C&P Director’s decision is understandable and the Board did not commit error when it relied on it. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (noting that although clarity certainly is preferred, it “is not and cannot be demanded in every instance or finality would forever be delayed pending perfection in draftsmanship”); see also Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (recognizing that lengthy periods of time without symptoms or treatment can weigh against a claim); Polovic v. Shinseki, 23 Vet. App. 48, 54 (2009) (noting that the Board may not award benefits when the award would be based upon pure speculation). This is particularly so because it is the Board that ultimately is required by statute to explain its decision making. 38 U.S.C. § 7104(d)( 1); see, e.g., Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994) (discussing that it is the Board, not medical examiners, that has the duty to discuss favorable evidence in a statement of reasons or bases). Similarly, we find unsupported Mr. Parrish’s assertions that the Board inadequately explained why both the CPHEHO’s opinion and the C&P Director’s decision outweighed his private physician’s report. As we explained in Nieves-Rodriguez, and as was noted by the Board below, the foundation and rationale of a medical opinion are crucial when the Board compares medical opinions and assesses the weight to be provided thereto. Id. It is axiomatic that a medical examiner must be informed of the “relevant facts” in order to render a probative opinion. Id. at 303.
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The Board here noted that Mr. Parrish’s private physician essentially opined that Mr. Parrish’s conditions were caused by several factors including radiation exposure and smoking, and stated that he was not aware of Mr. Parrish’s actual radiation exposure count. In contrast, the Board explained that the CPHEHO’s opinion was based upon the worst-case estimate of in-service radiation exposure and that the CPHEHO found it unlikely that Mr. Parrish’s lung conditions were caused by in-service radiation exposure. Although Mr. Parrish argues that the Board did not explain why knowledge of the amount of radiation is particularly important, it is commonly understood that the degree of radiation exposure is a factor for consideration when assessing the relationship of disease to radiation exposure. Moreover, VA regulations require radiation exposure dose estimates, see 38 C.F.R. § 3.311(a), and Mr. Parrish’s private physician essentially said that he could not render an accurate opinion without such information.
Mr. Parrish’s final argument is that the Board did not explain why it found the C&P Director’s decision was more probative than his private physician’s opinion when the record contains no evidence that the C&P Director is a qualified medical professional. As noted by the Secretary, the C&P Director’s decision is not medical evidence per se. Rather, it is a decision that is based upon the factors in § 3.311(e), as well as an advisory medical opinion. Hilkert, 12 Vet.App at 149 (recognizing that, because the decision under § 3.311(c) is to be based on sound scientific evidence, an advisory medical opinion may be requested). The Board explained that the C&P Director based his decision on the CPHEHO’s medical opinion, which was found to be more probative than the medical opinion provided by Mr. Parrish’s private physician. Accordingly, the Board’s weighing of the medical evidence is understandable and facilitative of judicial review. See Allday, supra. And, based on the record on appeal, the Board’s findings are plausible and not clearly erroneous. See Russo and Owens, both supra; see also Gilbert, supra.

III. CONCLUSION
Upon consideration of the foregoing, the Board’s February9, 2009, decision is AFFIRMED.

DAVIS, Judge, concurring: While I concur with the judgment of the
Majority opinion, I write separately to express my disagreement with the majority’s analysis and resolution of Mr. Parrish’s
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argument that, even if the USB had the authority to make a delegation to the C&P Director to conduct the radiation determination required by 38 C.F.R. § 3.311©, he never did so. Mr. Parrish argues that there is no evidence in the record that a delegation memorandum designating the C&P Director was executed, as required by VA policy. See II.B.3, ante. The majority states: “it is ... not surprising that a delegation memorandum is not in the record on appeal . . . and the simple fact that such a memorandum is not in the record fails to overcome the presumption that government officials generally discharge their duties in accordance with the law and governing regulations.” Ante at 10.
“There is a presumption of regularity under which it is presumed that government officials ‘have properly discharged their official duties.’” Ashley v. Derwinski, 2 Vet. App. 307, 308 (1992) (quoting United States v. Chem. Found., Inc., 47 S. Ct. 1 (1926)). “
However, ‘[t]he presumption of regularity is not absolute; it may be rebutted by the submission of clear evidence to the contrary.’” Jones (Raymond) v.West,12 Vet. App. 98, 100 (1998)(quoting Ashley, 2 Vet. App. At 309)(alteration in original).
My problem with the majority’s analysis is the leap the majority takes in applying the presumption of regularity to the delegation area-an area that is a bit more involved than simply performing a procedural or ministerial act. Significantly, in previous decisions, this Court has applied the presumption of regularity to issues primarily involving the delivery or receipt of mail, which are procedural and ministerial acts. In March v. Nicholson, the Court recounted that it had applied the presumption of regularity to processes and procedures throughout the VA administrative process. See, e.g., Crain v. Principi, 17 Vet. App. 182, 186 ( 2003)(applying the presumption of regularity to RO’s mailing of a Statement of the Case to a veteran); Redding v. West, 13 Vet. App. 512, 515 (2000) (applying the presumption of regularity as to whether RO received the veteran’s power of attorney); Baldwin v. West, 13 Vet. App. 1, 5-6 (1999) (applying the presumption of regularity as to whether RO examined and considered service medical records); Schoolman v. West, 12 Vet. App. 307, 310 (1999) (applying the presumption of regularity as to whether RO sent to claimant the application form for dependency and indemnity compensation); Davis [v. Brown], 7 Vet. App. [298,] 300 [(1994)] (applying the presumption of regularity to the Board’s mailing of a copy of a Board decision to a veteran); Mindenhall [v. Brown], 7 Vet. App. [271,] 274 [(1994)] (applying the presumption of regularity to a RO’s mailing of a VA decision to a veteran). 19 Vet. App. 381, 385 (2005). More recently, the Court has applied the presumption of regularity to issues involving mailings or filings in Kyhn v. Shinseki, 24 Vet. App. 228 (2011); Fithian v.
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Shinski, 24 Vet. App. 146 (2010); Posey v. Shinseki, 23 Vet.App. 406 (2010); Irwin v. Shinseki, 23 Vet. App. 128 (2009); and Clarke v. Nicholson, 21 Vet. App. 130 (2007). Here, the majority seeks to extend the presumption of regularity in a manner that would require Mr. Parrish to (1) realize that a document he did not know existed actually did exist, (2) search files maintained by VA for that document, and (3) obtain the document. Moreover, the document at issue here, a delegation of authority, is a document that VA would both initiate and have total control over creating, not Mr. Parrish. For the majority to imply that Mr. Parrish somehow failed to produce a delegation document shifts the burden from the Secretary, who is in the best position toproduceevidence of the existence of a delegation, to the appellant-the person in the worst position to produce such a delegation document.
In Johnson (L.E.) v. Shinseki, 23 Vet.App. 344 (2010), Judge Hagel wrote a concurring opinion addressing a similar conundrum, where, in order to rebut the presumption of regularity, the veteran needed evidence that “remain[ed] exclusively in VA’s control.” 23 Vet.App. at 350 (Hagel, J., concurring). Judge Hagel wrote that this created “an unduly onerous path for a veteran to rebut the presumption of regularity.” Id. He continued: “In practice, requiring a veteran to navigate the VA administrative system to which he has no access to find out whether [ documents were transmitted in a regular manner according to procedure] would transform the rebuttable presumption of regularity into an essentially irrebuttable presumption.” Id. Just as Judge Hagel was not willing to extend the presumption of regularity in Johnson, I am not willing to extend the presumption of regularity to such a point in this case.
Alternatively, in order to comply with the majority’s stance, Mr. Parrish could have (1) recognized that a delegation of authority could have allowed the USB to comply with the statute and that a designation was not contained in the record and (2) called this deficiency to the Court’s and the Secretary’s attention in his initial brief. The Secretary could have then searched VA’s files and provided the delegation memorandum or responded in his brief that a designation had been made from the USB to the C&P Director in a format other than a delegation memorandum.
In his initial brief, Mr. Parrish specifically argued that “[n]othing in [§] 3.311 provides that the USB may delegate this responsibility to the C&P Director” (Appellant’s
Brief at 7) and that “the Secretary cites nothing in the record indicating that the USB delegated his responsibility under
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section 3.311(c) to the C&P Director in this case” (Appellant’s Reply Brief at 4) (emphasis in original).
Yet the Secretary, in his response, merely cited to 38 C.F.R. § 3.100 and stated that the USB “has the general authority to designate supervisory personnel of [VA] to make findings under applicable law and regulations,” and that the C&P Director reports directly to the USB. Secretary’s Brief at 6. The Secretary’s brief would have been the appropriate time to point the Court’s and Mr. Parrish’s attention to the applicable provision of the M21-MR, which effectively designates the C&P Director to exercise the authority delegated in § 3.100(a). It would have also been appropriate and in compliance with Rule 30 of the Court’s Rules of Practice and Procedure for the Secretary to file a letter of supplemental authority with the Court citing this pertinent and significant authority if it were newly discovered after his briefs were filed. (However, if VA’s procedure truly has been so clear cut and the delegation so long standing, surely the Secretary should have presented the argument to the Court at the first possible opportunity, rather than the last.) Yet the Court notes that it was only at oral argument that the Secretary argued that the M21-MR provision constitutes a delegation of the USB’s authority in accordance with § 3.100(a). For the majority to conclude that Mr. Parrish should have obtained the document in order to rebut the presumption of authority-when the Secretary could not be bothered to provide it to the Court until oral argument-is truly placing an undue burden on the appellant.
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