Tuesday, January 25, 2011

Harvey v. Shinseki, No. 10-1284; Expeditious, Sanctions

This is the first sanction action that we are aware of that the Veterans Court has taken against the Secretary, however, we wish that the Court had set forth a firmer precedent regarding the meaning of "expeditious manner" of remands.

Excerpts from Decision below:

"In this case, the Secretary's processing of the petitioner's remanded claim cannot be characterized as expeditious. An expeditious manner is characterized by promptness and is synonymous with swift, speedy, fast, and rapid. RANDOM HOUSE DICTIONARY OF THE ENGLISH LANGUAGE 680 (2d ed. 1987). Here, it took the Secretary 666 days to comply with the Court's June 2008 remand order. The Court recognizes that the determination of whether the Secretary has expeditiously complied with a remand order cannot be made in a vacuum and therefore is not attempting to establish a bright-line rule.

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UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 10-1284
CLEVELAND D. HARVEY, PETITIONER,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, RESPONDENT.
On Petition for Extraordinary Relief
Before HAGEL, LANCE, and SCHOELEN, Judges.
(Argued September 9, 2010 Decided January 25, 2011)
O R D E R
The matter currently before the Court has its genesis in the Secretary's failure to
expeditiously handle a remand order as required by 38 U.S.C. §§ 5109B and 7112. In June 2008, the Court issued a decision concerning the petitioner's appeal of a February 8, 2006, Board of Veterans' Appeals (Board) decision that denied him an effective date earlier than April 1, 2000, for the payment of compensation benefits in lieu of military retirement pay. Harvey v. Peake, No. 06-0631, 2008 WL 2367190 (Vet. App. June 10, 2008). During that case, the Secretary conceded that the petitioner's election of compensation in lieu of military retirement pay should have been effective on September 17, 1998. Id. at *4. As a result, the Court reversed the Board decision and assigned an effective date of September 17, 1998. Id. at *5. The Court then ordered that the case be remanded for the limited purpose of calculating the appellant's compensation benefits. Id.
On September 16, 2008, mandate in the case issued and it was returned to the Secretary and his jurisdiction for expeditious processing. Unfortunately for the petitioner, what followed was aparade of administrative miseries that unnecessarily delayed the execution of the specific award and easily accomplished Court order and ultimately resulted in the petitioner not receiving a final answer on his remand until two years after the issuance of this Court's decision. These miseries included a failure by VA to recognize that the petitioner had withdrawn his power of attorney from the Texas Veterans Commission; an unexplained four-month delay between mandate and the Board's request for the petitioner's claims file; multiple transfers of the petitioner's claims file; direction of the petitioner's claims file to the San Diego, California, regional office instead of to the Los Angeles, California, regional office (LARO) that had proper jurisdiction; erroneous entries into VA's software for tracking claims (VACOLS); requests for duplicate information; failure on the part of multiple VA personnel to note a critical August 10, 2000, letter in the petitioner's claims file that apparently contained most, if not all, of the information needed to answer the Court's remand order; and, finally,
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failure of the attorneys representing the Secretary to ensure that the Court's order was carried out. These ongoing errors, however, were a mystery to the petitioner. He was only aware that he had received a favorable ruling from this Court, but that well over a year later he had yet to receive an answer from VA concerning the calculation of his compensation benefits. Consequently, on March 9, 2010, the petitioner filed a petition for extraordinary relief with the Court. His initial petition was unclear and the Court required the petitioner to file a supplement informing it of the
alleged wrongs committed by the Secretary and the relief that the petitioner was seeking. The petitioner provided this information within three days. In his supplement, he alleged that the Secretary had intentionally delayed the processing of his claim for payment of compensation benefits in lieu of military retirement pay and had yet to provide him with an answer. He requested that the Court order VA to finalize his claim and that the Court sanction VA employees for the delayed processing of his claim.
Following the submission of the petitioner's supplement, the Court ordered two responses from the Secretary. Additionally, the Court formed a panel to consider the ongoing delay in VA's compliance with the Court's June 2008 remand order. The Court also requested the input of an amicus curiae and required the Secretary to provide a detailed chronology of the events that followed the September 16, 2008, mandate in Harvey v. Peake. Oral argument was held on September 9, 2010.
During the course of oral argument, the Secretary argued that the petitioner's request for a writ was moot as the LARO had issued a letter on July 14, 2010, that complied with the Court's remand order. In that letter, the LARO informed the petitioner that it had completed its calculation of the monies he was owed as a result of the Court's remand order and that it had determined that the petitioner had been fully compensated by a $14,074.00 retroactive payment made on August 16, 2000. The amicus curiae and counsel for the petitioner initially argued in their pleadings that this
July 14 disposition letter was called into question by a conflicting July 26, 2010, notice letter, but during oral argument both admitted that, between clarification from the Secretary and the July 14 letter, the petitioner had received the relief he was entitled to under the Court's remand order.
However, both argued that the Court should impose sanctions on the Secretary in light of the considerable delay involved in the processing of the petitioner's claim and in fully implementing the Court's June 10, 2008, remand order. Additionally, the amicus curiae and counsel for the petitioner expressed confusion over how it was that Mr. Harvey had been correctly paid, to the penny, the
exact amount he was owed eight years prior to the award of his earlier effective date by this Court and how, despite requesting numerous additional calculations from the Defense Financing and Accounting Service, VA was still unable to clearly explain how it made this determination.

I. ENTITLEMENT TO A WRIT
This Court has adopted the case-or-controversy jurisdictional requirements imposed by Article III of the U.S. Constitution. Aronson v. Brown, 7 Vet.App. 153, 155 (1994). Where the relief sought by a petition for extraordinary relief has been afforded, the petition is moot. See Chandler v. Brown, 10 Vet.App. 175, 177 (1997) (per curiam order); Thomas v. Brown, 9 Vet.App.
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269, 270 (1996) (per curiam order). Here, the Court's June 2008 decision in Harvey v. Peake remanded the petitioner's case "for the limited purpose of calculating the appellant's compensation benefits based on his September 17, 1998, election." 2008 WL 2367190 at *5. On July 14, 2010, the LARO provided the petitioner with a letter indicating that officials there had finished calculating his benefits based on the September 1998 election date. Secretary's July 15, 2010, Answer, Exhibit
A. Furthermore, the Secretary confirmed during oral argument that he views this letter as final and that the determination may be appealed if the petitioner disagrees with the LARO's conclusion.
Accordingly, the petitioner has received the relief he is entitled to and his petition must be dismissed as moot. See Chandler, supra.

II. CONTEMPT
Just as other Federal courts, "this Court possesses the inherent as well as the statutory authority to impose sanctions." Pousson v. Shinseki, 22 Vet.App. 432, 436 (2009). Key to this authority is the contempt sanction, "which [] judge[s] must have and exercise in protecting the due and orderly administration of justice, and in maintaining the authority and dignity of the court." Cooke v. United States., 267 U.S. 517, 539 (1925) (emphasis added). Therefore, as a matter of law,
the Court may impose a "fine" or "imprisonment" where a party is in contempt of its authority as a result of "disobedience or resistance to its lawful writ, process, order, rule, decree, or command." 38 U.S.C. § 7265.
In light of the above, the Court has established that it may hold a party in civil contempt where there exists: 1) a rule or order that is clear and unambiguous; 2) clear and convincing proof of noncompliance with that rule or order; and 3) a showing that the contemnor has not been reasonably diligent and energetic in attempting to accomplish his duty under the rule or order. Pousson, 22 Vet.App. at 437. Furthermore, although the Court must determine that the conduct at issue meets the above elements, bad faith or willfulness is not required. Id. Rather, a party can be found in civil contempt where his failure to fully comply with a Court rule or order is the result of "gross negligence and a gross lack of diligence." Id. In this case, the Secretary's failure to expeditiously handle the Court's June 10, 2008, remand order as required by 38 U.S.C. §§ 5109B and 7112 meets all three elements necessary for him to be held in civil contempt.

A. Clear and Unambiguous Rule or Order
In regard to the first element, the Court remanded the petitioner's claim with unambiguous instructions that the Board was to calculate his compensation benefits based on his awarded September 1998 election date. Harvey, 2008 WL 2367190 at *5. Additionally, the law clearly requires the Secretary to "take such actions as may be necessary to provide for expeditious treatment" of claims that are remanded by this Court. 38 U.S.C. §§ 5109B, 7112. As a result, there is a rule or order that is clear and unambiguous as required by the first element. See Pousson, supra.
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B. Clear and Convincing Proof of Noncompliance
In regard to the second element, the Court first acknowledges the Secretary's argument that this element cannot be met because the July 14, 2010, letter from the LARO accomplished the task set by the Court's June 2008 remand. Secretary's Response to the Court's September 10, 2010, Order at 4. However, this argument fails to take into account the Secretary's statutory obligation to expeditiously process remands from this Court. Thus, not only must the Secretary ensure that he
completes the Court-ordered task, he must do so in an expeditious manner. 38 U.S.C. §§ 5109B, 7112. As stated earlier, the Court's contempt power is meant to maintain the Court's authority and dignity. See Cooke, supra. Such authority and dignity cannot be maintained where the Secretary flagrantly fails, by either inattention or design, to comply with an order from this Court and further fails in his responsibility to expedite the processing of a Court-ordered remand. Excessive delays in the processing of remands ordered by the Court cannot help but sap public confidence and impugn the Court's dignity, as from the outside it invariably appears that VA is ignoring the valid mandates of an institution that has express authority over it in matters related to veterans benefits. See Erspamer v. Derwinski, 1 Vet.App. 10 (1990) (discussing delay in administrative action and public confidence).
Furthermore, the Secretary's obligation to process Court remands expeditiously is integral to this Court's jurisdictional authority to remedy unreasonable delays in the processing of veterans' claims. See Vietnam Veterans of America v. Shinseki, 599 F.3d 654, 659-660 (D.C. Cir. 2010)(suggesting that the U.S. Court of Appeals for Veterans Claims may have exclusive jurisdiction over claims concerning unreasonable delays in processing); see also Ribaudo v. Nicholson, 20 Vet.App.
550, 557 (2007) ("With respect to matters relating to veterans-benefits claims, however, Congress adopted a very different approach to judicial review. A decision of the Board can only be appealed to a single venue–this Court." (citing 38 U.S.C. § 7252(a))). As a result, this Court's dignity requires that the Secretary's duty to expedite not be viewed simply as one more procedural requirement levied by Congress, but rather, as an inherent part of this Court's remand power, meriting suitable urgency and attention from the Secretary. Therefore, the Court holds that failure by the Secretary to comply with his obligation to process Court remands expeditiously, under unique circumstances similar to those of this case, is the same as noncompliance with the remand order itself, even if the Secretary
eventually complies with the substance of the order.
In this case, the Secretary's processing of the petitioner's remanded claim cannot be characterized as expeditious. An expeditious manner is characterized by promptness and is synonymous with swift, speedy, fast, and rapid. RANDOM HOUSE DICTIONARY OF THE ENGLISH LANGUAGE 680 (2d ed. 1987). Here, it took the Secretary 666 days to comply with the Court's June 2008 remand order. The Court recognizes that the determination of whether the Secretary has expeditiously complied with a remand order cannot be made in a vacuum and therefore is not attempting to establish a bright-line rule. Rather, the Court appreciates that compensation claims are not monolithic and some cases, because of their complexity, may require greater efforts by the Secretary. Thus it must be clearly understood by those representing claimants (as well as claimants themselves) that the Court will not blindly issue writs or sanctions where delay is the result of an overburdened system, rather than a disregard for the importance of compliance with a Court order.
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It should also be noted that the Court will carefully consider whether action must be taken under Rule 38 of the Court's Rules of Practice and Procedure, should it determine that petitions are routinely filed as a means of encouraging VA to place claims at the front of the line. See Costanza v. West, 12 Vet.App. 133, 134 (1999) (per curiam order); U.S. VET.APP. R. 38 ("If the Court determines that an appeal, petition, motion, or other filing is frivolous, it may enter such order as
it deems appropriate."); see also Edwards v. Nicholson, 21 Vet.App. 265 (2007) (holding that a veteran's repeated filing of frivolous pleadings warranted the sanction of precluding veteran from filing any further pleading with the Court except for certain limited circumstances).
The record in this case, however, clearly demonstrates that the delay in the processing of the petitioner's remanded claim was not the result of an overburdened system. The Court's June 2008 remand order is simple, clear, and direct. It did not call for any additional development or evidence collection. Rather, under the order, VA was only required to calculate the appellant's compensation based on the newly assigned election date. Harvey, 2008 WL 2367190 at *5. Had the Secretary's
staff diligently reviewed the claims file, they would have discovered that the file contained the August 2000 letter, which disposed of the petitioner's compensation claim nearly eight years prior to the Court's remand order. Thus, given that the Secretary already possessed all of the information necessary to calculate the appropriate rate of compensation in August 2000, when the petitioner received a $14,074.00 retroactive payment, there is simply no defensible reason that the Court’s order, requiring a simple calculation that had already been determined, required 666 days to process.
More importantly, putting aside the actual number of days it took for the Secretary to comply with the Court's order, the manner in which the petitioner's remand was handled does not demonstrate an expedited process. From the point of mandate until the issuance of the July 14, 2010, LARO determination, more than twelve of the Secretary's personnel handled the processing of the petitioner's remand. Yet, out of that number, only four individuals were actually involved in calculating the compensation rate sought by the Court's remand order. The remainder of the
Secretary's staff transferred the petitioner's claims file back and forth between different units within VA, consuming months of time without getting the petitioner's remand any closer to resolution and compliance with this Court's June 2008 order.
Finally, the Court finds it quite significant that the Secretary's counsel felt compelled to remind the LARO staff that they had an obligation to process remands expeditiously, but only after the Court ordered an answer concerning the petition in this case. Secretary's June 11, 2010, Answer at 8. While the Court appreciates the Secretary's sentiment of regret over the delay caused by his actions in this case, the Court is not persuaded by his reliance on "human error" as a reason not to
impose sanctions. To the contrary, where a party's conduct rises to the level of gross negligence and the evidence demonstrates a lack of reasonable diligence and energetic effort amounting to noncompliance with a Court order or rule, sanctions may be imposed and the Court would be remiss not to exercise its lawful authority. Moreover, the fact that the Secretary ultimately exercised the degree of diligence and effort necessary to calculate the petitioner's award, after the Court intervened by way of this proceeding, does not excuse his gross mishandling of the petitioner's claim or his eleventh-hour response. In light of this evidence, the Court finds that there is clear and

1 Not only has the Secretary's lack of diligence resulted in an unnecessary expenditure of judicial and administrative resources in this proceeding, it is now equally apparent that the information was readily available during
the petitioner's 2006 appeal. See generally Abbs v. Principi, 237 F.3d 1342, 1351 (Fed. Cir. 2001) (ordering that sanctions be imposed on counsel for making arguments that resulted in an abuse of the judicial process and waste of
taxpayer funds). It is astounding that the petitioner's appeal for an earlier effective date for compensation benefits in lieu of retirement pay could consume over ten years of the parties' resources without the discovery of this crucial document in the claims file.
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convincing proof that the Secretary failed to process the Court's June 2008 remand order in an expeditious manner as required by the Court’s order and 38 U.S.C. §§ 5109B and 7112. See Pousson, supra.

C. Lack of Reasonable Diligence
The third element is met because the evidence in this case illustrates that, rather than being reasonably diligent and energetic in attempting to comply with the Court's remand order expeditiously, the Secretary was grossly negligent and lacking in diligence while processing the petitioner's remand. As stated earlier, the processing of the petitioner's remand after the issuance of mandate was a parade of administrative errors. These errors include the Board's unexplained
four-month delay between mandate and its request for the petitioner's claims file; the petitioner's claims file spending five months at the incorrect RO; the Secretary's staff inputting inaccurate information into VACOLS; the failure of the Secretary's staff to notice the August 2000 letter that disposed of the petitioner's compensation claim a full eight years prior to the Court's remand order; duplicate and unnecessary requests to the Defense Finance and Accounting Service, which resulted in the transmittal of inaccurate information that further delayed the Secretary's calculation of the petitioner's compensation benefits; and, finally, the LARO's provision of a July 26, 2010, notice letter that conflicted with the July 14, 2010, disposition letter. These errors amount to an unacceptable effort in the handling of the petitioner's remand, have resulted in extensive and
unwarranted delay, and needlessly consumed a considerable amount of judicial resources.1
It is possible that the Secretary has a system that ensures expeditious treatment of remanded claims, but if there is such a system it is not evidenced by the record in this case. Accordingly, the Court finds that the Secretary failed to act in a reasonably diligent or energetic manner in attempting to comply with the Court's June 2008 remand order. See Pousson, supra. Therefore, with all three elements met, the Court finds the Secretary in contempt. Id.

III. SANCTIONS
A. Appropriate Action
Under this Court's contempt authority, it has "power to punish by fine or imprisonment" those who are found to be in contempt. 38 U.S.C. § 7265(a). Here, the Secretary's lack of proper diligence and respect for the Court's June 2008 remand order is the direct cause of more than a year's delay in the processing of the petitioner's remanded claim. Furthermore, it is directly responsible
2 The inflation adjusted rate of EAJA compensation is obtained by first dividing the Consumer Price Index for All Urban Consumers (CPI-U) in San Diego, California, for the first half of 2010 by the CPI-U in San Diego, California, for the second half of 1996, and then by multiplying the resulting number by the current statutory EAJA rate of $125.00/hr. See Mannino v. West, 12 Vet.App. 242, 243 (1999); Elcyzyn v. Brown, 7 Vet.App. 170, 181 (1994);
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for the enormous amount of time and resources consumed by counsel, the amicus curiae, and the Court to address a matter that was technically resolved more than ten years ago. Therefore, as a sanction designed to ensure reasonable and energetic efforts to comply with the law and orders from this Court, and to provide a remedy for the unnecessary effort expended to address the Secretary's lack of diligence, the Secretary will be directed to pay the reasonable attorney fees and costs
associated with the adjudication of this petition, as approved by the Court. See Pousson, 22 Vet.App. at 438-39.
The Court acknowledges the suggestion of counsel for the petitioner that the Secretary should be fined an additional $1,000.00 for the past seven years of litigation (based on the Board's initial July 2003 remand of the compensation in lieu of military retirement pay issue). However, the Court finds that another monetary fine in addition to attorney fees is not warranted. Although the
Secretary's lack of reasonable diligence and energetic effort interfered seriously with the proper and expeditious processing of the petitioner's remand, the Secretary, especially the Secretary's counsel, ultimately demonstrated the degree of diligence and effort required by the Court's June 2008 remand.
The Court's remand has been complied with by the LARO's July 14, 2010, letter and the Secretary has taken the necessary steps to ensure that the petitioner understands the status of his claim. Thus, if the petitioner disagrees with the Secretary's conclusion, he may now file a Notice of Disagreement for up to one year after the date of the July 14, 2010, letter. 38 U.S.C. § 7105(a),(b). Thus, under
these circumstances, a monetary fine, payable to either the Court or the petitioner, is not deemed appropriate or necessary to secure the Secretary's diligent compliance with future remands from this Court. Pousson, 22 Vet.App. at 439.

B. Reasonable Attorney Fees
In response to this Court's request for a statement of costs and reasonable attorney fees, the petitioner and amicus curiae submitted statements for $17,855.28 and $23,114.31 respectively. The Court does not take issue with the number of hours or the effort invested by counsel and the amicus curiae; however, it does find that both are billing at rates that are unreasonable for proceedings before this Court. See Perry v. West, 11 Vet.App. 319, 327 (1998) (discussing that the Court must
determine what amount constitutes reasonable attorney fees). Generally, the monetary limits provided under the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412(d), are applied in determining reasonable rates for attorney compensation, absent any significantly cogent reason presented by the parties to do otherwise. Jones v. Derwinski, 1 Vet.App. 596, 608 (1991); see also Pub.L.No. 102-572, § 506 (1992) (amending EAJA to clarify that it applies to this Court). Here, neither the petitioner nor the amicus curiae present a compelling reason why they should be
compensated at rates higher than what are common for proceedings before this Court. Accordingly, their hourly rates of compensation will be reduced from $300.00 per hour and $400.00 per hour respectively, to $188.572 per hour for the petitioner and $125.003 per hour for the amicus curiae. Veterans Benefits Manual 18.7.7.2 (2008).
3 The inflation adjusted rate of EAJA compensation is obtained by first dividing the CPI-U for the South, Urban,
Size B/C - 50,000 to 1,500,000, on September 2010 by the CPI-U for the South, Urban Size B/C, on March 1996, and statutory EAJA rate of $125.00/hr. Id. The Court notes that using the CPI-U for the amicus curiae's region actually results in an hourly compensation rate that is less than the statutory minimum. Accordingly, the Court will use the statutory minimum. 28 U.S.C. § 2412(2)(A).
4 ($188.57/hr × 55.1 hrs) + $1,325.28 in costs. See Petitioner's Response to the Court's September 10, 2010,
Order (petitioner's statement of hours and costs).
5 ($125.00/hr × 55.4 hrs) + $954.31 in costs. See Amicus Curiae's Response to the Court's September 10, 2010,
Order (amicus curiae's statement of hours and costs).
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See 28 U.S.C. § 2412(d)(2)(A); Perry, supra. Accordingly, the Court will order that the Secretary pay to the petitioner $11,715.494 in costs and attorney fees and to the amicus curiae $7,879.315 in costs and attorney fees. Id.

IV. CONCLUSION
Upon consideration of the foregoing, it is
ORDERED that the petition for extraordinary relief is DISMISSED as moot; it is further

ORDERED that as a sanction, the Secretary shall pay $11,715.49 to the petitioner in costs and attorney fees; it is further

ORDERED that as a sanction, the Secretary shall pay $7,879.31 to the amicus curiae in costs
and attorney fees.
PER CURIAM

St. Paul-RO Errored in 15% of Disability Claims Processed, VAOIG No. 10-03604-75

VAOIG; Overall, VARO staff did not accurately process 17 (15 percent) of the 110 disability claims that we reviewed.

Inspection of the VA Regional Office St. Paul, MN

Report Number 10-03604-75, 1/25/2011 | Full Report (PDF)

The Benefits Inspection Division conducts onsite inspections at VA Regional Offices (VAROs) to review disability compensation claims processing and Veterans Service Center operations. The St. Paul VARO correctly processed herbicide exposure-related and traumatic brain injury disability claims. VARO management ensured Systematic Analyses of Operations were timely and complete. Generally, VARO staff correctly processed post-traumatic stress disorder disability claims and ensured timely processing of Notices of Disagreements for appealed claims. Additionally, VARO staff corrected errors identified by the Veterans Benefits Administration’s Systematic Technical Accuracy Review program and established correct dates of claim in the electronic record. VARO staff should emphasize the need to improve the control and accuracy of temporary 100 percent disability evaluations processing. Overall, VARO staff did not accurately process 17 (15 percent) of the 110 disability claims that we reviewed. Controls over mail handling as well as final competency determinations processing also needed strengthening. We recommended that St. Paul VARO management review all temporary 100 percent disability evaluations to determine if reevaluations are required and take appropriate actions. We recommended VARO management implement controls to ensure staff enter reminder notifications for temporary 100 percent disability reevaluations. We further recommended VARO management strengthen controls over mail handling procedures as well as improve the timeliness of final competency determinations processing. The Director of the St. Paul VARO concurred with all recommendations. Management’s planned actions are responsive and we will follow up as required on all actions.

100% Disability Evaluations Under Fire, VAOIG No. 09-03359-71

VAOIG: We found the staff at the VA Regional Offices (VARO) are not correctly evaluating and monitoring 100 percent disability evaluations.


Audit of VBA's 100 Percent Disability Evaluations

Report Number 09-03359-71, 1/24/2011 | Full Report (PDF)

The OIG conducted an audit to determine whether Veterans Benefits Administration (VBA) correctly assigned 100 percent disability evaluations as either permanent or temporary and effectively monitored and adjusted temporary 100 percent disability evaluations. We found the staff at the VA Regional Offices (VARO) are not correctly evaluating and monitoring 100 percent disability evaluations. We identified approximately 239,000 veterans who had at least one service-connected condition rated 100 percent disabling as of September 2009. We eliminated from our review approximately 58,000 veterans with conditions that indicated no likelihood of improvement, such as double amputees. We projected that of the remaining 181,000 veterans, VARO staff did not correctly process evaluations for about 27,500 (15 percent). We further projected that since January 1993, VBA paid veterans a net amount of about $943 million without adequate medical evidence. If VBA does not take timely corrective action, it will overpay veterans a projected $1.1 billion over the next 5 years. We recommended the Acting Under Secretary for Benefits increase oversight by ensuring future exam dates are included in the electronic records and providing VARO staff the necessary training. VBA also needs to ensure claims folders with temporary evaluations are kept at the VARO and each temporary evaluation has a future exam date entered in the electronic record. The Acting Under Secretary for Benefits did not agree with the findings, particularly as they relate to the projected overpayment amounts, but agreed to implement the recommendations and provided responsive implementation plans. We maintain that the primary message in our report is VBA paid veterans without adequate medical evidence. We believe our projection is a reasonable and conservative estimate of overpayments based upon our review of compensation records available.

Research Tip: Highlighting Search Terms in Result Pages

Wading through court decisions looking for a specific citation or term can be daunting, to say the least. One way to get to the information you want faster is to use the "Cached link" displayed after the url in The search engine results. This takes you to the same information as the main link, but now the search terms are highlighted, each term with it's own color.

Example:
Vet Claim Research: Tinnitus is Number 1 Service-connected ...
Dec 22, 2009 ... Vet Claim Research. This Blog is about helping disabled veterans find useful ..... "Tinnitus is the No. 1 service-connected disability among ...
veteranclaimresearch.blogspot.com/.../tinnitus-is-number-1-service-connected.html -Cached

Insufficient Reasons and Bases, Conclusory Statement by Board

Excerpt from Decision below:
"Mr. Carrio argues that the Board did not provide an adequate statement of
reasons or bases for its finding that he was not entitled to an effective date prior to May 25, 2000, for his service-connected tinnitus. The Court agrees. The Board's finding that Mr. Carrio is not entitled to an earlier effective date consists of three very short paragraphs (only five sentences, total) that contain
no analysis whatsoever. The Board merely makes the conclusory statement that
"[t]here is of record no communication from the appellant prior to May 25, 2000, which could serve as a claim of service connection for tinnitus." R. at 16. The Board does not explain this statement or why none of the communications of record could not serve as a claim for VA benefits.
Accordingly, the Court concludes that the Board's conclusory analysis frustrates judicial review.
Based on the foregoing, the Court concludes that the Board's statement of reasons or bases for its decision finding that Mr. Carrio was not entitled to an earlier effective date prior to May 25, 2000, is inadequate. See Gilbert, 1 Vet.App. at 57.



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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 09-0042
NORMAN CARRIO, 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: Norman Carrio appeals through counsel an October 22, 2008,
Board of
Veterans' Appeals (Board) decision that denied entitlement to VA benefits
for degenerative arthritis
of the lumbar spine, shoulders, knees, and ankles; and entitlement to an
effective date prior to May
25, 2000, for the award of VA benefits for Previous DocumenttinnitusNext Hit.1
The Court has jurisdiction pursuant to
38 U.S.C. §§ 7252(a) and 7266(a) to review the October 2008 Board
decision. Because the Board
did not provide an adequate statement of reasons or bases for its finding
that Mr. Carrio was not
entitled to VA benefits for degenerative arthritis of the spine or its
finding that he was not entitled
to an earlier effective date for his service-connected Previous HittinnitusNext Hit, the Court
will vacate those portions of
The October 2008 Board decision also remanded Mr. Carrio's claims for
entitlement to VA benefits for vision
loss and entitlement to increased staged ratings for post-traumatic stress
disorder. Therefore, these issues are not before
the Court at this time. See 38 U.S.C. § 7266(a); 38 C.F.R. § 20.1100(b) (
2010) ("A remand is in the nature of a
preliminary order and does not constitute a final decision of the Board);
see also Breeden v. Principi, 17 Vet.App. 475,
478 (2004) (holding that a Board remand "does not represent a final
decision over which this Court has jurisdiction.").
The October 2008 Board decision also denied Mr. Carrio's claims for
entitlement to effective date prior to December
1, 1998, for the award of VA benefits for post-traumatic stress disorder;
an effective date prior to December 1, 1998,
for the award of VA benefits for hearing loss in the right ear; an
effective date prior to October 29, 2001, for the award
of VA benefits for diabetes mellitus; and an effective date prior to
October 29, 2001, for the award of VA benefits for
peripheral neuropathy of all four extremities. Mr. Carrio does not make
any arguments contesting these assigned
effective dates; accordingly, the Court deems any arguments pertaining to
these issues to be abandoned. See Grivois v.
Brown, 6 Vet.app. 136, 138 (1994) (issues or claims not argued on appeal
are considered abandoned).
1


the October 2008 Board decision and remand the matters for readjudication
consistent with this
decision. Because the Board relied on an adequate VA medical examination,
the Court will affirm
the remainder of the October 2008 Board decision.
I. FACTS
Mr. Carrio served on active duty in the U.S. Army from May 1965 to May
1968, including
service in Viet Nam, where he was awarded the Bronze Star Medal for
heroism.
In May1984, Mr. Carrio filed a claim for VA benefits, stating "Iwould like
to get myhearing
connected." Record (R.) at 2644. In October 1984, Mr. Carrio underwent a
VA audiological
examination. The examiner reported that Mr. Carrio had a history of
Previous HittinnitusNext Hit and hearing loss since
being exposed to loud noise during service. In a November 1984 rating
decision, a VA regional
office denied entitlement to VA benefits for hearing loss.
In May 2000, Mr. Carrio filed a claim for VA benefits for hearing loss,
Previous HittinnitusNext Hit, and
degenerative arthritis of the spine, knees, ankles, and shoulders, stating
that he suffered physical
trauma and noise exposure during combat in Viet Nam. Mr. Carrio was
afforded a VA audiological
examination in August 2001. The examiner diagnosed Mr. Carrio with
Previous HittinnitusNext Hit and opined that it
was caused by noise exposure during service. In a September 2002 rating
decision, the regional
office awarded Mr. Carrio VA benefits for Previous HittinnitusNext Hit, effective May 25, 2000,
the date his claim was
received.
The September 2002 rating decision also denied entitlement to VA benefits
for
degenerative arthritis of the spine, knees, ankles, and shoulders because
there was no evidence of an
injury in service and no evidence relating Mr. Carrio's current
disabilities to service. Mr. Carrio
appealed the effective date assigned for his service-connected Previous HittinnitusNext Hit
and the denial of entitlement
to benefits for degenerative arthritis of the spine, knees, ankles, and
shoulders.
In August 2005, Dr. Thomas B. Horvath, chief of staff at the Houston,
Texas, VA medical
center, submitted a letter stating that Mr. Carrio "has . . . spinal
osteoarthritis very likely associated
with blast injuries he recieved during the intense shelling of his base in
Viet[ N]am." R. at 1187.
In December 2007, Mr. Carrio was afforded a VA joints examination. The
examiner
indicated that he reviewed Mr. Carrio's service medical records and claims
file. The examiner noted
Mr. Cario's statements that the onset of these conditions was in the
service, that he self-medicated
2


because he was the medic, and that he subsequently treated his conditions
with over-the-counter
medications until finally seeking medical treatment many years later. The
examiner performed a
physical examination of Mr. Carrio's spine, knees, ankles, and shoulders.
The examiner then opined
that Mr. Carrio's degenerative arthritis was less likely as not caused by
or a result of the effects of
the explosions noted in his records while serving in Viet Nam. The
examiner explained that Mr.
Carrio's current conditions were more likely related to the aging process
and genetic predisposition
because there was no evidence of onset of chronic joint pain or a spinal
condition immediately
following military service. The examiner noted that documentation of such
injuries did not take
place until the 1990's and that Mr. Carrio reported that he had been in
several car accidents after
service, but that there was no documentation available to show what types
of injuries he suffered.
In September 2008, Mr. Carrio submitted a letter from Dr. Horvath dated
September 2000.
In the letter, Dr. Horvath states that "[s]tarting in the early 1990's Mr.
Carrio also adds degenerative
spinal arthritis and problems with his knees and ankles to the list he
attributes to service . . .
However[,] x-rays in 1990 of his knees and ankles were normal." R. at 41.
In the October 2008 Board decision currently on appeal, the Board found
that degenerative
joint disease of the spine, knees, ankles, and shoulders did not begin
during service or within one
yearof separation from service. The Board explained that there were no
indications of spinal or joint
problems on Mr. Carrio's separation examination and that, when he reported
such problems many
years later at a 1984 VA examination, he indicated that the pain was of
recent origin. The Board
acknowledged Mr. Carrio's contention that these conditions are related to
his combat in Viet Nam
and that he has reported continuous symptoms, but ultimately found that
the evidence of record did
not support a finding of entitlement to VA benefits. The Board also found
that "the only notations
by VA treating physicians merely refer to [Mr. Carrio]'s statements that
these conditions had their
onset during service." R. at 13. As to Mr. Carrio's argument that he was
entitled to an effective date
prior to May 25, 2000, for the award of VA benefits for Previous HittinnitusNext Hit, the
Board found that there was no
record of any communication from Mr. Carrio prior to that date which could
be construed as a claim
for VA benefits.
On appeal, Mr. Carrio makes three arguments. First, he contends that the
Board failed to
provide an adequate statement of reasons or bases for its determination
that he was not entitled to
3


VA benefits for degenerative arthritis of the spine because it did not
specifically discuss Dr.
Horvath's opinions. Second, he argues that the December 2007 VA medical
opinion is inadequate
because the opinion relied on an inaccurate factual premise. Finally, he
asserts that the Board failed
to provide adequate reasons or bases for its determination that no
communication prior to May2000
could serve as a claim for tinnitus. Mr. Carrio reiterated these
contentions in his reply brief, and also
argued that the Court should consider Clemons v. Shinseki, 23 Vet.App. 1 (
2009), in evaluating his
1984 claim for a hearing disability.
In response, the Secretary argues that the Board provided adequate reasons
or bases for all
of its findings and that these findings were not clearly erroneous.
II. ANALYSIS
A. Adequacy of VA Medical Examination
The Secretary "shall make reasonable efforts to assist a claimant in
obtaining evidence
necessary to substantiate the claimant's claim for a benefit under a law
administered by the
Secretary." 38 U.S.C. § 5103A(a)(1). The Secretary's duty to assist a
claimant includes, among
other things, "providing a medical examination or obtaining a medical
opinion when such an
examination or opinion is necessaryto make a decision on the claim." 38 U.
S.C. § 5103A(d)(1); see
38 C.F.R. § 3.159(c) (2010).
The medical examination provided must be "thorough and
contemporaneous" and consider prior medical examinations and treatment.
Green v. Derwinski,
1 Vet.App. 121, 124 (1991). A medical examination "is adequate where it is
based upon
considerationoftheveteran's priormedical historyand examinations and
alsodescribesthedisability
. . . in sufficient detail so that the Board's 'evaluation of the claimed
disability will be a fully
informed one.'" Stefl v. Nicholson, 21 Vet.App. 120, 123 (2007) (quoting
Ardison v. Brown, 6
Vet.App. 405, 407 (1994)). Further, 38 C.F.R. § 4.2 requires that if an
examination report does not
contain sufficient detail, "it is incumbent upon the rating board to
return the report as inadequate for
evaluation purposes." 38 C.F.R. § 4.2 (2010); see Bowling v. Principi, 15
Vet.App. 1, 12 (2001)
(emphasizing Board's duty to return inadequate examination report). The
Board may commit error
requiring remand when it relies on an inadequate medical examination. See
Ardison, 6 Vet.App. at
407 (holding that an inadequate medical examination frustrates judicial
review).
4


Whether a medical opinion is adequate is a finding of fact, which the
Court reviews under
the "clearlyerroneous" standard. See 38 U.S.C. § 7261(a)(4); D'Aries v.
Peake, 22 Vet.App. 97, 103
(2008); Gilbert v. Derwinski, 1 Vet.App. 49, 52 (1990). "A factual 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.'"
Hersey v. Derwinski,
2 Vet.App. 91, 94 (1992) (quoting United States v. U.S. Gypsum Co., 333 U.
S. 364, 395 (1948)).
Here, Mr. Carrio argues that the December 2007 VA examination was
inadequate because
it was based on an inaccurate factual premise, namely that the examiner
stated, "earliest joint
complaint was in 1999 for the left knee." R. at 252. The Court disagrees.
In reviewing the
examination report, the examiner indicated that he reviewed Mr. Carrio's
claims file and medical
records. In noting Mr. Carrio's medical history, the examiner recorded Mr.
Carrio's statements that
he treated his joint pain with over-the-counter medication before seeking
treatment in the 1990's.
Further, although there are some notations of earlier treatment for joint
pain in Mr. Carrio's medical
records, a VA medical examiner, unlike a VA adjudicator, is not required
to discuss all potentially
favorable evidence. See Moore v. Nicholson, 21 Vet.App. 211, 218 (2007) ("
The medical examiner
provides a disability evaluation and the rating specialist interprets
medical reports in order to match
the rating with the disability."). Therefore, the medical examiner's
failure to discuss all of the
treatment records in Mr. Carrio's claims file did not render the
examination inadequate. See Stefl,
21 Vet.App. at 123; Ardison, 6 Vet.App. at 407. Based on the foregoing,
the Court concludes that
the Board's reliance on the December 2007 VA examination was not
clearlyerroneous. See D'Aries,
22 Vet.App. at 103.
B. Reasons or Bases
In rendering its decision, the Board is required to provide a written
statement of the reasons
or bases for its "findings and conclusions[] on all material issues of
fact and law presented on the
record." 38 U.S.C. § 7104(d)(1). The statement must be adequate to enable
a claimant to understand
the precise basis for the Board's decision, as well as to facilitate
review in this Court. See Gilbert,
1 Vet.App. at 57. To comply with this requirement, the Board must analyze
the credibility and
probative value of the evidence, account for the evidence that it finds to
be persuasive or
unpersuasive, and provide the reasons for its rejection of any material
evidence favorable to the
5


claimant. See Caluza v. Brown, 7 Vet.App. 498, 506 (1995), aff'd per
curiam, 78 F.3d 604 (Fed. Cir.
1996) (table). The Board may commit error requiring remand when it fails
to provide an adequate
statement of its reasons or bases. See Gilbert, 1 Vet.App. at 57.
1. Degenerative Arthritis of the Spine
Mr. Carrio argues that the Board provided inadequate reasons or bases for
its finding that he
was not entitled to VA benefits for degenerative arthritis of the spine
because it did not specifically
mention the opinions of Dr. Horvath. The Court agrees. In an August 2005
letter, Dr. Horvath
stated that it was "very likely" that Mr. Carrio's degenerative arthritis
of the spine was "associated
with blast injuries he received during the intense shelling of his base in
Viet[ Nam]." R. at 1187.
Although the Board alluded to the October 2000 letter from Dr. Horvath,
which stated that,
"[s]tarting in the early 90's he also adds degenerative spinal arthritis
. . . to the list he attributes to
service," the Board makes no reference to the August 2005 letter. R. at 41.
This is evident by the
fact that the Board found that "the only notations by VA treating
physicians merely refer to [Mr.
Carrio]'s statements that these conditions had their onset in service." R.
at 13. Although this
statement clearly applies to the statement in the October 2000 letter, it
does not apply to the August
2005 letter, in which Dr. Horvath clearlystates his opinion and does not
attribute that opinion to Mr.
Carrio's statements. Moreover, by not mentioning the August 2005 letter,
the Board failed to weigh
the favorable evidence of record, which it is required to do. See Burger v.
Brown, 5 Vet.App. 340,
342 (1993) ("The [Board], as factfinder, is required to weigh and analyze
the evidence of record.").
Although the Secretary argues that the favorable evidence in the record
warranted little probative value, it is the Board, not the Secretary, who must not
only weigh the evidence but explain why favorable evidence in the record is assigned less probative value. See 38 U.S.C. § 7104(d); see also Thompson v. Gober, 14 Vet.App. 187, 188 (2000) (the Board must provide an adequate statement of reasons or bases "for its rejection of any material evidence favorable to the claimant").
Accordingly, based on the foregoing, the Court concludes that the Board's
statement of reasons or bases for its decision denying VA benefits for degenerative arthritis of the spine is inadequate. See Gilbert, 1 Vet.App. at 57. The Court, therefore, vacates that portion of the October 2008 Board
decision and remands the matter to the Board for readjudication consistent
with this decision.
6


2. Earlier Effective Date for Tinnitus
Mr. Carrio argues that the Board did not provide an adequate statement of
reasons or bases for its finding that he was not entitled to an effective date prior to May 25, 2000, for his service-connected tinnitus. The Court agrees. The Board's finding that Mr. Carrio is not entitled to an earlier effective date consists of three very short paragraphs (only five sentences, total) that contain
no analysis whatsoever. The Board merely makes the conclusory statement that
"[t]here is of record no communication from the appellant prior to May 25, 2000, which could serve as a claim of service connection for tinnitus." R. at 16. The Board does not explain this statement or why none of the communications of record could not serve as a claim for VA benefits.
Accordingly, the Court concludes that the Board's conclusory analysis frustrates judicial review.
Based on the foregoing, the Court concludes that the Board's statement of reasons or bases for its decision finding that Mr. Carrio was not entitled to an earlier effective date prior to May 25, 2000, is inadequate. See Gilbert, 1 Vet.App. at 57.
The Court, therefore, vacates that portion of the October 2008 Board decision and remands to the Board for readjudication consistent with this decision.
On remand, Mr. Carrio is free to submit additional evidence and argument
on both remanded claims in accordance with Kutcherousky v. West,12Vet.App.369,372-73(1999)(per curiam order). See Kay v. Principi, 16 Vet.App. 529, 534 (2002). The Court reminds the Board that "[a] remand is meant to entail a critical examination of the justification for the decision." Fletcher v. Derwinski,
1 Vet.App. 394, 397 (1991). In addition, the Board shall proceed expeditiously, in accordance with 38 U.S.C. § 7112 (expedited treatment of remanded claims).

III. CONCLUSION
Upon consideration of the foregoing, those portions of the October 22,
2008, Board decision that denied entitlement to VA benefits for degenerative arthritis of the spine and entitlement to an effective date prior to May 25, 2000, for service-connected tinnitus are VACATED and the matters
are REMANDED for readjudication consistent with this decision. The
remainder of the October 22, 2008, Board decision is AFFIRMED.
DATED: January 12, 2011
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Copies to:
Glenn R. Bergmann, Esq.
VA General Counsel (027)
8