Wednesday, April 27, 2011

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.”

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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.
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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
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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.
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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
13

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.
14

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
15

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.
16

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
17

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.
18

Single Judge Application, Ervin v. Shinseki, Bryant v. Shinseki, 23 Vet.App.

Excerpts from decision below:

"[T]he assessment of prejudice generally is case specific, demonstrated by
the appellant and based on the record." Bryant, 23 Vet.App. at 498.
As to whether the hearing officer fulfilled his duty to suggest the submission of overlooked evidence, the answer depends on what evidence was needed to
substantiate each issue. Id.at 496-97.
In the case at hand, two questions determine whether the hearing officer should have suggested the submission of evidence: (1) did the testimony indicate that evidence of a diagnosis of PTSD related to his in-service stressor existed (or could be reduced to writing) but was not of record; and (2) did

3. The appellant does not argue that the hearing officer failed in his duty
to explain the issues fully. See Grivois v. Brown, 6 Vet.App. 136, 138 (1994) (explaining that issues or claims not argued by counsel on appeal are considered
abandoned); App. Br. at 8-9; see also U.S. VET. APP. R. 28(a)(5).


4

the testimony indicate that buddy statements existed (or could be reduced to writing) but were not of record? See id. In regard to the first question, the appellant unequivocally testified that a PTSD diagnosis relating to his in-service stressor did not exist. See R. at 262 (explaining that no psychiatrist has ever rendered an opinion that his PTSD or substance abuse was due to his time in
service because "they kept basing it on being in Vietnam"). Thus, the hearing officer did not commit any error by not suggesting that a medical nexus opinion be submitted. See Bryant, 23 Vet.App. at 493-94. In regard to the second question, the hearing officer did not suggest that the appellant might seek out supporting evidence in the form of buddy statements. See R. at 257-74. However, the appellant's testimony failed to specify any of the individuals involved in the circumstances surrounding his averred in-service stressor and, thus, did not indicate any evidence had been overlooked that might be obtained to corroborate the incident described. Compare R. at 11 (indicating service records do not indicate the appellant was on a ship in the area where the averred stressor occurred), 260 (appellant's testimony that "[t]he chief on my boat" asked him to retrieve a body with "the other guy"), 267 (appellant's testimony that he did not know the dead petty officer); with Garlejo v. Derwinski, 2 Vet.App. 619, 620 (1992) (determining that after the veteran asserted that soldiers in his company could support his assertions of a shrapnel wound to the shoulder, VA failed by not informing him that he should seek out supporting evidence in the form of lay evidence from these soldiers); see also Bryant, 23 Vet.App. at 495 (explaining that in Sizemore v. Principi, 18 Vet.App. 517(1999),the claimant's testimony suggested that buddy statements might be obtained to corroborate the incident he described). Thus, the Court is not persuaded that the hearing officer committed error under 38 C.F.R. § 3.103(c)(2). See Hilkert and Berger, both supra.
Based on a thorough review of the record, the Court cannot conclude that
the Board clearly erred in finding that the duty to assist had been met. See Gilbert, supra; R. at 6-8.


=============================================
"However, the appellant's testimony failed to specify any of the individuals involved in the circumstances surrounding his averred in-service stressor and, thus, did not indicate any evidence had been overlooked that might be obtained to corroborate the incident described. Compare R. at 11 (indicating service records do not indicate the appellant was on a ship in the area where the averred stressor occurred), 260 (appellant's testimony that "[t]he chief on my boat" asked him to retrieve a body with "the other guy"), 267 (appellant's testimony that he did not know the dead petty officer); with Garlejo v. Derwinski, 2 Vet.App. 619, 620 (1992) (determining that after the veteran asserted that soldiers in his company could support his assertions of a shrapnel wound to the shoulder, VA failed by not informing him that he should seek out supporting evidence in the form of lay evidence from these soldiers); see also Bryant, 23 Vet.App. at 495 (explaining that in Sizemore v. Principi, 18 Vet.App. 517(1999),the claimant's testimony suggested that buddy statements might be obtained to corroborate the incident he described). Thus, the Court is not
persuaded that the hearing officer committed error under 38 C.F.R. § 3.103(c)(2). See Hilkert and Berger, both supra."

=========================================
"Thus, in this case, there is no current diagnosis of PTSD linked to the appellant's averred in-service stressor. As such,
5


remand on the basis of this Court's recent holding in Ervin, __ Vet. App.
at ___, 2011 WL 835470 at *7
("[W]here, as here, the evidence includes a current diagnosis of PTSD but the Board denied the claim because there was no corroboration of the asserted stressor in service, a remand is warranted."), is inapplicable.4

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


Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 09-1696
JAMES N. ELLIOTT, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before MOORMAN, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
MOORMAN, Judge: The appellant, James N. Elliott, appeals through counsel
an April 23,
2009, Board of Veterans' Appeals (Board) decision that denied entitlement
to service connection for
post-traumatic stress disorder (PTSD). Record (R.) at 3-12. Both parties
filed briefs.1
This appeal
is timely, and the Court has jurisdiction pursuant to 38 U.S.C. §§ 7252(
a) and 7266(a). A single
judge may conduct this review because the outcome in this case is
controlled by the Court's
precedents and "is not reasonably debatable." Frankel v. Derwinski, 1 Vet.
App. 23, 25-26 (1990).
For the following reasons, the Court will affirm the Board's April 2009
decision.
I. FACTS
Mr. Elliott served in the U.S. Coast Guard from May 1954 until March 1955,
when he was
discharged due to his inaptitude. R. at 60, 102; see R. at 26. In February
1999, a VA regional office
(RO) denied, in relevant part, Mr. Elliott's claim to entitlement to
service connection for PTSD. R.
On February 1, 2011, this Court sua sponte ordered this appeal stayed
pending the disposition of the appeal
in Ervin v. Shinseki, U.S. Vet. App. No. 08-3287 (argued Dec. 8, 2010).
Ervin has been decided; thus, the Court will
lift its stay and address this appeal. See Ervin v. Shinseki, __ Vet.App. __
, No. 08-3287, 2011 WL 835470 (March 9,
2011).
1


at 1049-51. In May 2005, after further filings and procedures, the
appellant testified before the
Board. R. at 257-74. He explained that his in-service stressor was
recovering the decomposingbody
of a petty officer who had jumped from a Bay Bridge while attempting to
rescue a daughter. R. at
259-60. In response to the hearing officer's question as to whether a
psychiatrist ever rendered an
opinion that his PTSD or substance abuse was due to his time in service,
the appellant replied: "No,
they kept basing it on being in Vietnam [with the Merchant Marines]." R.
at 262. On September
29, 2005, the Board remanded the appellant's PTSD claim for further
development, to include
obtaining any and all service personnel records and contacting the U.S.
Coast Guard along with the
U.S. Armed Services Center for Research for Unit Records to request
anyavailable information that
might corroborate the appellant's averred in-service stressor. R. at 238-
74. The RO requested the
records and, thereafter, continued to deny the claim. See R. at 196-97,
234-37. On April 23, 2009,
theBoarddeniedtheappellant'sclaim after
findingthattherewasnocredibleevidencecorroborating
his alleged non-combat in-service stressors and concluding that he does
not have PTSD that was
incurred in or aggravated by service. R. at 3-12.
The appellant argues that the Board decision should be vacated and
remanded because the
Board provided an inadequate statement of reasons or bases and VA failed
in its duty to assist.
Appellant's (App.)Brief(Br.) at 3. The Secretaryargues that the Board's
decision shouldbeaffirmed
because the appellant does not demonstrate error and there is a plausible
basis in the record for the
Board's findings and its decision is supported by an adequate statement of
reasons or bases.
Secretary's Br. at 4.
II. ANALYSIS
A. Adequate Statement of Reasons or Bases
The appellant argues that the Board provided an inadequate statement of
reasons or bases because it did not make a credibility determination regarding his
testimony. App. Br. at 5-8.
However, as the Secretary correctly points out, 38 C.F.R. § 3.304(f) (2010) requires "credible supporting evidence that the claimed in-service stressor occurred." The appellant's own testimony does not constitute supporting evidence. See Moreau v. Brown, 9 Vet.App. 389, 395-96 (1996).
Thus, the Board did not fail to properly apply 38 C.F.R. § 3.304 merely
because it did not make a
2


credibility determination regarding the appellant's testimony. To the
extent that the Board should
have made any credibility determination, any such error was nonprejudicial
to the appellant in light of the fact that there is no supporting evidence—credible or not—that his claimed in-service stressor occurred. See 38 U.S.C. § 7261(b)(2) (providing that the Court shall take due account of the rule of prejudicial error); 38 C.F.R. 3.304(f) (requiring for service connection of PTSD "a link,
established by medical evidence, between current symptoms and an in-service
stressor; and credible supporting evidence that the claimed in-service stressor occurred"); R. at 11 (service records do not indicate that the appellant was on a ship in the area where the alleged stressor took place).

B. Duty to Assist
The appellant also argues that VA failed in its duty to assist by not
requesting California public records and because the Board hearing officer did not advise the appellant to submit a medical nexus opinion or letters from fellow service members in support of his claimed stressor. See App. Br. at 8-9.
First, the appellant does not suggest, much less provide anyevidence, that
he ever adequately identified to VA any relevant California public records. See App. Br. at 2,7
.2
Although VA's duty to assist includes making "reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claimant's claim for a benefit"(38 U.S.C. § 5103A(a)(1), (b)), the duty to assist "is
not boundless in its scope" and VA is only required to obtain relevant
records (including private records) that the claimant adequately identifies and authorizes the Secretary to obtain. Golz v. Shinseki, 590 F.3d 1317, 1320-21 (Fed. Cir. 2010); see Loving v. Nicholson, 19 Vet.App. 96, 102-03 (2005) (discussing requirement that the records be adequately identified if the claimant wishes the
Secretary to obtain them). Given the appellant's failure to provide any
evidence that he adequately identified all relevant public records to VA, the Court is not persuaded that the Board committed any clear error in regard to assisting the appellant in obtaining records. See Hilkert v. West, 12 Vet.App.
145, 151 (1999) ("An appellant bears the burden of persuasion on appeals
to this Court."); Berger

The Court notes that the "Factual Background" section in the appellant's
brief, incorporating the Board's statement of the facts by reference, is noncompliant with Rule 28 of this Court's Rules of Practice and Procedure. See
U.S. VET. APP. R. 28(a)(4) (must contain "the facts relevant to the issues,
with appropriate page references to the Record Before the Agency"). The Court, in its discretion, will accept the appellant's counsel's brief in this instance in order to expedite the judicial process, but appellant's counsel is advised to avoid
incorporating facts "by reference" in the future.
2
3


v. Brown, 10 Vet.App. 166, 169 (1997) ("[T]he appellant . . . always
bears the burden of persuasion on appeals to this Court."); see also Gilbert v. Derwinski, 1 Vet.App. 49, 52 (1990) ("in order for a finding of material fact made by the [Board] to be set aside, this Court must conclude that the finding
is 'clearly erroneous'").
Second, the appellant argues that the March 2005 hearing officer failed to
advise him to submit evidence, such as letters from fellow service members. App. Br. at 8-9.3
Under 38 C.F.R. § 3.103 (c)(2) (2010), "It is the responsibility of the employee or
employees conducting the [Board] hearings to explain fully the issues and suggest the submission of evidence which the claimant may have overlooked and which would be of advantage to the claimant's position." In order to follow this
regulatory mandate, a hearing officer "cannot ignore a lack of evidence in
the record on a material issue and not suggest its submission, unless the record (or the claimant at hearing) clearly shows that such evidence is not available." Bryant v. Shinseki, 23 Vet.App. 488, 493-94 (2010) (per curiam).
The hearing officer "must suggest the submission of evidence when
testimony during the hearing indicates that it exists (or could be reduced to writing) but is not of record." Id. at 496-97. If the hearing officer failed to fulfill his duties, the Court must determine whether any resulting error was
prejudicial to the appellant. Id. at 497-98; see 38 U.S.C. § 7261(b)(2) (providing that the Court shall take due account of the rule of prejudicial error); Mayfield v. Nicholson, 19 Vet.App. 103, 116 (2005) (stating that the key to determining whether an error is prejudicial is the effect of the error on the essential fairness of the adjudication),rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006).
"[T]he assessment of prejudice generally is case specific, demonstrated by
the appellant and based on the record." Bryant, 23 Vet.App. at 498.
As to whether the hearing officer fulfilled his duty to suggest the submission of overlooked evidence, the answer depends on what evidence was needed to
substantiate each issue. Id.at 496-97.
In the case at hand, two questions determine whether the hearing officer
should have suggested the submission of evidence: (1) did the testimony indicate that evidence of a diagnosis of PTSD related to his in-service stressor existed (or could be reduced to writing) but was not of record; and (2) did

The appellant does not argue that the hearing officer failed in his duty
to explain the issues fully. See Grivois v. Brown, 6 Vet.App. 136, 138 (1994) (explaining that issues or claims not argued by counsel on appeal are considered
abandoned); App. Br. at 8-9; see also U.S. VET. APP. R. 28(a)(5).

3
4


the testimony indicate that buddy statements existed (or could be reduced
to writing) but were not of record? See id. In regard to the first question, the appellant unequivocally testified that a PTSD diagnosis relating to his in-service stressor did not exist. See R. at 262 (explaining that no psychiatrist has ever rendered an opinion that his PTSD or substance abuse was due to his time in
service because "theykept basing it on being in Vietnam"). Thus, the
hearing officer did not commit any error by not suggesting that a medical nexus opinion be submitted. See Bryant, 23 Vet.App. at 493-94. In regard to the second question, the hearing officer did not suggest that the appellant might
seek out supporting evidence in the form of buddy statements. See R. at
257-74. However, the appellant's testimony failed to specify any of the individuals involved in the circumstances surrounding his averred in-service stressor and, thus, did not indicate any evidence had been overlooked that might be obtained to corroborate the incident described.
Compare R. at 11 (indicating service records do not indicate the appellant was on a ship in the area where the averred stressor occurred), 260 (appellant's testimony that "[t]he chief on my boat" asked him to retrieve a body with "the other guy"), 267 (appellant's testimony that he did not know the dead petty officer); with Garlejo v. Derwinski, 2 Vet.App. 619, 620 (1992) (determining that after the veteran asserted that soldiers in his company could support his assertions of a shrapnel wound to the shoulder, VA failed by not informing him that he should seek out supporting evidence in the form of lay evidence from these soldiers); see also Bryant, 23 Vet.App. at 495 (explaining that in Sizemore v. Principi, 18 Vet.App. 517(1999),the claimant's testimony suggested that buddy statements might be obtained to corroborate the incident he described). Thus, the Court is not
persuaded that the hearing officer committed error under 38 C.F.R. § 3.103(c)(2). See Hilkert and Berger, both supra.
Based on a thorough review of the record, the Court cannot conclude that
the Board clearly erred in finding that the duty to assist had been met. See Gilbert, supra; R. at 6-8.


C. Ervin v. Shinseki
The Board also noted that "while the Veteran has been diagnosed with PTSD,
this diagnosis
is based upon his description of events which occurred while he was in the
Merchant Marines . . .
." and that "the diagnosis of PTSD based upon his statements concerning
his experience in the
Merchant Marines does not provide a basis for service connection." R. at 7,
9. Thus, in this case, there is no current diagnosis of PTSD linked to the appellant's averred in-service stressor. As such,
5


remand on the basis of this Court's recent holding in Ervin, __ Vet. App.
at ___, 2011 WL 835470 at *7 ("[W]here, as here, the evidence includes a current diagnosis of PTSD but the Board denied the claim because there was no corroboration of the asserted stressor in service, a remand is warranted."), is inapplicable.4


III. CONCLUSION
After consideration of the appellant's and the Secretary's briefs, and a
review of the record,
the Board's April 23, 2009, decision is AFFIRMED.
DATED: April 19, 2011
Copies to:
Peter J. Meadows, Esq.
General Counsel (027)
4
The appellant's counsel has not presented to the Court any argument that
the change VA made on June 13, 2010, to 38 C.F.R. § 3.304(f) affected his client's PTSD claim. See 38 C. F.R. § 3.304 (f)(3) (recently altered provision
regarding a claimed stressor which is related "to the veteran's fear of
hostile military or terrorist activity"); App. Br. at
1-11.
6

Freeman v. Shinseki, No. 10-1462, Appointment of a Fiduciary, 38 U.S.C. § 511(a), Bates v. Nicholson, 398 F.3d 1355 (Fed. Cir 2005)

Excerpt from decision below:
"In reaching this conclusion, the Court observes that the Federal Circuit's decision in Bates helped clarify the breadth of the Board's jurisdiction. Specifically, any provision contemplated by section 511(a) is subject to one review on appeal by the Secretary and that Secretarial review is explicitly delegated to the Board. As all parties agree that the statutory framework authorizing the Secretary to appoint a fiduciary to handle VA benefits for an incompetent veteran falls within the purview of section 511(a), the Court concludes that the petitioner is clearly and indisputably entitled to appeal to the Board the decision of the VSCM to appoint a paid federal fiduciary.9"
=======================================================

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 10-1462
WILLIAM E. FREEMAN, PETITIONER,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, RESPONDENT.

Before HAGEL, MOORMAN, and LANCE, Judges.
O R D E R

On April 30, 2010, the petitioner filed with the Court a petition for extraordinary relief in the
nature of a writ of mandamus. That petition requested that the Court issue a writ directing the
Secretary to accept the petitioner's Notice of Disagreement (NOD) with the appointment of a federal fiduciary instead of the petitioner's sister, Debora C. Allen, as fiduciary to manage the petitioner's VA benefits. The Secretary opposes the petition on the grounds that the determination of whom to appoint as fiduciary to manage the petitioner's VA benefits is a matter within the sole discretion of the Secretary and outside the jurisdiction of this Court or any Court. For the reasons that follow, the Court grants the petitioner's request for extraordinary relief and will issue a writ of mandamus.

I. FACTS
The petitioner served in the U.S. Army from February 4, 1972, to February 5, 1975, and from
February 6, 1975, to May 6, 1976. In a rating decision issued by the Waco, Texas, VA regional office (RO) on December 22, 2009, the petitioner was granted service connection for paranoid schizophrenia and awarded a 100% disability rating with an effective date of December 22, 2008. He was also granted entitlement to special monthly compensation based on aid and attendance. That same decision found the petitioner to be incompetent to handle the disbursement of funds due to him as a result of this award, based on a VA medical examination that had found the petitioner to be incompetent for purposes of handling his funds received by VA and on a lay statement from the petitioner's sister that also indicated that the petitioner was incompetent for that purpose. On February 8, 2010, the RO sent a letter to the petitioner indicating that it had appointed Shelia Horace as a paid fiduciary to exercise control over his VA benefits. On February 19, 2010, the petitioner filed an NOD with both the RO's December 2009 rating decision and with the February 8, 2010, determination to appoint Ms. Horace as fiduciary.1 On February 23, 2010, the RO sent a letter to the petitioner indicating that it was not possible for him to file an NOD regarding the selection of his fiduciary. On February 26, 2010, the petitioner, through his sister, renewed his objection to the appointment of Ms. Horace.
After a subsequent exchange of correspondence regarding issues not presently before the
Court, the petitioner filed his petition for extraordinary relief with this Court on April 20, 2010. On September 3, 2010, this Court ordered the Secretary to respond to the petition, and the Secretary's response was received on September 17, 2010. The Court then determined that it would hear oral argument in this case as well as receive additional briefing from the parties. Subsequent to that order, amicus curiae, the National Organization of Veterans' Advocates, was granted leave to file a brief and be heard at oral argument. On February 16 and 18, 2011, amicus and the petitioner filed opposed motions for leave to file supplemental information. The Court heard oral argument on the merits of the petition and the outstanding motions to supplement on February 23, 2011. On March 7, 2011, the petitioner filed an additional motion for leave to file supplemental information, which was again opposed by the Secretary.

II. PRELIMINARY MATTERS
As a preliminary matter, the Court will address the outstanding motions for leave to file
supplemental information. The February 16 and 18, 2011, motions to supplement seek leave to
include in the record documents—a pleading filed by the Secretary in the U.S. District Court for the Northern District of Texas and correspondence sent to the petitioner by VA in February and March 2010—that the petitioner and amicus argue demonstrate inconsistent positions asserted by the Secretary, both in this matter and in other litigation, with regard to the issue presented by the instant

1The petitioner's initial NOD, in addition to his request to change his fiduciary, requested an earlier effective
date. The NOD concerning the effective date was subsequently accepted by the Secretary and is therefore not at issue
in this petition.
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petition. The Court will grant these motions and consider the exhibits attached to them.
As noted above, the petitioner filed another motion to supplement on March 7, 2011.
However, on February 18, 2011, the Court ordered that additional filings in this matter were to be electronically filed no later than 5:00 p.m. on February 21, 2011. Accordingly, the Court will deny the petitioner's March 7, 2011, motion to supplement.

III. PARTIES' CONTENTIONS
A. Petitioner's Argument
The petitioner asserts that the plain language of the statutes in question is determinative of
the jurisdictional question before the Court. Specifically, the petitioner argues that 38 U.S.C. § 5502 indicates that the appointment of a fiduciary is a matter that "affects the provision of benefits" and is thus covered by 38 U.S.C. § 511(a). Section 7104 of title 38 of the U.S. Code provides that any
decision of the Secretary that is covered by section 511(a) is entitled to one review on appeal to the
Secretary. The Board is the final agency authority on any such appeals. Therefore, the Board can
review the appointment of a fiduciary, and the Court may review any such decision by the Board.
38 U.S.C. § 7252(a).
The petitioner asserts that there are sufficient statutory and regulatory standards to permit
effective judicial review of the Secretary's determination of an appropriate fiduciary. The petitioner
points to 38 U.S.C. §§ 5502 and 5507 for statutory support and to 38 C.F.R. §13.55 for regulatory
guidance. The petitioner asserts that these provisions provide a clearly delineated process for the
Secretary to follow when appointing a fiduciary and that the Secretary's execution of the process may
be reviewed by the Board and this Court.2
While the petitioner acknowledges that the Secretary has some discretion in the appointment
of a fiduciary, he asserts that the exercise of that discretionary authority does not preclude judicial review. Citing both Abbott Labs v. Gardner, 387 U.S. 136, 140 (1967), and Heckler v. Chaney,
The petitioner also advances an argument that the Secretary's refusal to allow a challenge 2 to the appointment
of the fiduciary amounts to a due process violation. We do not reach that issue here because, as discussed below, the
statutes and caselaw are dispositive in this case. See Bucklinger v. Brown, 5 Vet.App. 435, 441 (1993) ("It is ' [a]
fundamental and long-standing principle of judicial restraint . . . that courts avoid reaching constitutional questions in
advance of the necessity of deciding them.'" quoting Lyng v. Northwest Indian Cemetery Protective Association, 485 U.S. 439, 445 (1998).).
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470 U.S. 821, 830 (1985), the petitioner asserts that judicial review is favored unless there is clear statutory language precluding it. The petitioner acknowledges that, in some rare instances, the statutory discretion granted to the Secretary may be so broad that there will be no standard by which to review his decisions, thereby prohibiting judicial review. However, as noted above, he contends that sections 5502 and 5507, as well as the regulations that implement those statutes, provide law that can be applied by the Court in reviewing the Secretary's decision to appoint a particular fiduciary.

B. Amicus's Arguments
The amicus argues that the Secretary is estopped from arguing that this Court does not have
jurisdiction over this matter because the Secretary, in contesting the jurisdiction of other courts to review decisions affecting the appointment of veterans' fiduciaries, has asserted that the U.S. Court of Appeals for Veterans Claims has jurisdiction to review the Secretary's actions in appointing a fiduciary. In support of this argument the amicus cites to several federal district court cases where, it asserts, the Secretary has advanced an argument in direct conflict with his position in the petition now before this Court. See Judkins v. Veterans Administration, 415 F. Supp. 2d 613, 617-18 (E.D.N.C. 2005); Whitmere v. U.S. Veterans Administration 661 F. Supp. 720 (W.D. Wash. 1986); Carney v. G.I. Jane, 2005 WL 2277490 (S.D. Tex. Sept. 16, 2005). In addition, the supplemental information filed by amicus and the petitioner was submitted in furtherance of this argument.
However, we observe that, as the matter before us is a question of this Court's jurisdiction,
an assertion made by a party in another court that exclusive jurisdiction is reposed in this Court, even if expressly made, may not confer jurisdiction upon this Court. This Court derives its jurisdiction from statute. Thus, the amicus's argument regarding the Secretary's litigating position, while perhaps enlightening or even troubling, cannot impact the outcome of the question of our own jurisdiction. See Heath v. West, 11 Vet.App. 400, 402 (1998) (holding that the Court always has a right and an obligation to examine its own jurisdiction).
In response to the Court's questions in its November 23, 2010, order, the amicus substantially
agrees with the positions taken by the petitioner. It asserts that the appointment of a federal fiduciary is a matter that affects the provision of benefits under section 511(a) and is therefore subject to review at the Board and, consequently, to appeal to this Court.
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C. Secretary's Arguments
The Secretary makes two primary arguments. First, he contends that this case is controlled
by Willis v. Brown, 6 Vet.App. 433 (1994). He asserts that the Willis decision has been applied by a long line of cases standing for the proposition that this Court is without jurisdiction to review the Secretary's appointment of a fiduciary for an incompetent veteran-beneficiary. He further asserts that Willis was not affected by the U.S. Court of Appeals for the Federal Circuit's (Federal Circuit) decision in Bates v. Nicholson, 398 F.3d 1355 (Fed. Cir 2005). Second, the Secretary asserts that even if judicial review is not precluded, there can be no review if the statute in question has no meaningful standard against which to judge the agency's exercise of discretion, citing Chaney, supra.
The Secretary concedes that section 5502 does not specifically prohibit judicial review and does affect the provision of benefits as described in section 511(a).

IV. ANALYSIS
As an initial matter, the Court notes that VA's competency determination is not at issue. A
VA fiduciary will be appointed if a beneficiary is determined to be incompetent to handle VA
benefits to which he is entitled. In the instant case, the petitioner does not contest VA's
determination that he is incompetent to handle VA funds. Petitioner's Memorandum of Law at 6.
The Court observes that VA's competency determination only extends to a veteran's ability to handle VA benefits to which he is entitled. 38 C.F.R. § 3.353(b)(1) (stating that the rating agency has authority to determine competency for purposes of insurance and disbursement of benefits). The competency determination does not extend to the petitioner's ability to act on his own behalf in this Court nor in administrative proceedings before VA. As the petitioner does not challenge VA's competency determination and that determination has no impact on his standing in this Court, the propriety of VA's competency determination is not before this Court and does not warrant further discussion.

A. Standard for the Issuance of the Writ
This Court has authority to issue extraordinary writs in aid of its jurisdiction, or potential
jurisdiction, pursuant to the All Writs Act, 28 U.S.C. § 1651(a). See Cox v. West, 149 F.3d 1360, 1363 (Fed. Cir. 1998). However, "[t]he remedy of mandamus is a drastic one, to be invoked only
5
in extraordinary situations." Kerr v. U.S. Dist. Court, 426 U.S. 394, 402 (1976); see also Lamb v. Principi, 284 F.3d 1378, 1384 (Fed. Cir. 2002) ("'[E]xtraordinary writs cannot be used as substitutes for appeals, even though hardship may result from delay and perhaps unnecessary trial.'" (quoting Bankers Life & Cas. Co. v. Holland, 346 U.S. 379, 383 (1953))). Before the Court may issue a writ, three conditions must be satisfied: (1) The petitioner must demonstrate that he lacks adequate alternative means to obtain the desired relief, thus ensuring that the writ is not used as a substitute for the appeals process; (2) the petitioner must demonstrate a clear and indisputable right to the writ; and (3) the Court must be convinced, given the circumstances, that the issuance of the writ is warranted. See Cheney v. U.S. Dist. Court, 542 U.S. 367, 380-81 (2004). The propriety of a writ of mandamus here turns on the question of whether we would have jurisdiction to review the Secretary's decision to appoint a particular individual as a fiduciary to receive and apply VA benefits
on behalf of a veteran-beneficiary.

B. Statutory and Regulatory Framework for Appointment of a Fiduciary
The Secretary derives his authority to appoint fiduciaries from 38 U.S.C. § 5502.
Where it appears to the Secretary that the interest of the beneficiary would be served
thereby, payment of benefits under any law administered by the Secretary may be
made directly to the beneficiary or to a relative or some other fiduciary for the use
and benefit of the beneficiary, regardless of any legal disability on the part of the
beneficiary. Where, in the opinion of the Secretary, any fiduciary receiving funds on
behalf of a Department beneficiary is acting in such a number of cases as to make it
impracticable to conserve properly the estates or to supervise the persons of the
beneficiaries, the Secretary may refuse to make future payments in such cases as the
Secretary may deem proper. 38 U.S.C. §5502(a)(1). The statute authorizes the Secretary to appoint a fiduciary when "it appears to the Secretary that the interest of the beneficiary would be served [by the appointment of a fiduciary]." Id. The Secretary is thus authorized to make the determination as to whether a fiduciary is necessary and, if he so determines, to act upon that determination. While section 5502 is a basic grant of authority allowing the Secretary to appoint fiduciaries, other statutes and regulations determine the individuals or entities qualified to act as fiduciaries and outline the process the Secretary must follow when appointing a fiduciary.
Section 5507 contains standards for the Secretary to follow when certifying an individual as
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a qualified fiduciary:
(a) Any certification of a person for payment of benefits of a beneficiary to that
person as such beneficiary's fiduciary under section 5502 of this title shall be made
on the basis of--
(1) an inquiry or investigation by the Secretary of the fitness of that person
to serve as fiduciary for that beneficiary, such inquiry or investigation--
(A) to be conducted in advance of such certification;
(B) to the extent practicable, to include a face-to-face interview with
such person; and
(C) to the extent practicable, to include a copy of a credit report for
such person issued within one year of the date of the proposed
appointment;
(2) adequate evidence that certification of that person as fiduciary for that
beneficiary is in the interest of such beneficiary (as determined by the
Secretary under regulations); and
(3) the furnishing of any bond that may be required by the Secretary.
(b) As part of any inquiry or investigation of any person under subsection (a), the
Secretary shall request information concerning whether that person has been
convicted of any offense under Federal or State law which resulted in imprisonment
for more than one year. If that person has been convicted of such an offense, the
Secretary may certify the person as a fiduciary only if the Secretary finds that the
person is an appropriate person to act as fiduciary for the beneficiary concerned under
the circumstances.
38 U.S.C. § 5507 (a)-(b). Specifically, the Secretary is required to perform an inquiry or
investigation into the fitness of an individual before that individual may be certified to serve as a
fiduciary. "[T]o the extent practicable," the Secretary is required to hold a face-to-face interview with
the potential fiduciary, and to perform a credit check on the potential fiduciary. 38 U.S.C. § 5507 (a)(1)(B), (C). In all instances, the Secretary is required to conduct a criminal background inquiry
on the potential fiduciary. Also, the statute requires that adequate evidence be presented which
shows that the certification of a particular individual as a particular beneficiary's fiduciary is in the interest of that beneficiary.
Thus, the statute acknowledges that a showing must be made that certification of a certain
individual to handle the beneficiary's funds is "in the interest" of the beneficiary. Further, section
5507 allows the Secretary to expedite the process of certifying a fiduciary in certain identified cases, including where the individual under consideration for fiduciary certification is the parent of a minor beneficiary, the spouse or parent of an incompetent beneficiary, or a person who has been appointed
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an incompetent beneficiary's fiduciary by a court of competent jurisdiction. 38 U.S.C. § 5507(c).
These exceptions show that the Secretary is not only required to take the beneficiary's interests into account, but that there is also an expedited process or a preference for certain individuals with a close relationship to the beneficiary. While section 5507 states these specific requirements, it also specifies that the Secretary may promulgate further requirements in regulation. 38 U.S.C. 5507(a)(2).
The Secretary has promulgated 38 C.F.R. §§ 13.55 and 13.58, inter alia, to guide his own
decision-making process in this area. Pursuant § 13.55, the Secretary has delegated his authority to appoint fiduciaries to the Veterans Service Center Manager (VSCM) at each regional office; § 13.55 also provides a list of persons who are eligible to serve as fiduciaries. Under § 13.55 the VSCM can make determinations as to the person who will be appointed legal custodian of a beneficiary to
receive and apply VA benefit payments "for the best interests of the beneficiary." 38 C.F.R.
§ 13.58(b)(2)(i). This regulation specifically states that, "[i]n absence of special circumstances, the person or legal entity to be appointed legal custodian will be the person or legal entity caring for and/or having custody of the beneficiary or the beneficiary's estate." 38 C.F.R. § 13.58(a).3
The Secretary's adjudication manual provides further guidance for his personnel in the field
as to which individual or entity to appoint as a fiduciary. The M21-1MR contains 22 pages
specifically describing the process to be followed when appointing a fiduciary. M21-1MR, Part XI, Chapter 2, Section E, 1-23. This section of the manual includes a list of standards to be adhered to when making the determination (2-E-12), and also contains a specific statement that paid fiduciaries should only be appointed when there is no qualified fiduciary willing to serve without compensation (2-E-20). The extant statutory and regulatory framework provides authority and guidance for the Secretary in the appointment of a fiduciary. On the record before the Court, the only documentation concerning the process VA used to select Ms. Horace as the paid fiduciary for Mr. Freeman is a single e-mail and a VA report dated February 8, 2010.4 A 3% commission, to be paid out of the

3While not necessary to the Court's decision concerning this petition, there is some evidence that the veteran
has been cared for and supported by his father and his sister for all or portions of the last 30 years.
4On April 5, 2010, VA e-mailed its response to Congressman Sam Johnson's office after he inquired into this
matter at the request of the veteran. The text of the e-mail stated:
Why sister [sic] not appointed fiduciary:
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petitioner's benefits, was authorized for Ms. Horace's services.5 The report concluded that "[t]he veteran has no family or friends who are able to serve as payee in this case." Petitioner's December 20, 2011, Memorandum of Law Exhibit B.

C. Reviewability
The Secretary asserts that his execution of the obligation to select a fiduciary is not
reviewable by this Court, or by any court. Secretary's January 19, 2011, Memorandum of Law at 10-11. We disagree.
1. Willis Not Controlling
In support of his position, the Secretary makes the assertion that our opinion in Willis is
controlling in this matter. However, Willis was not a case that dealt with the Secretary's appointment of a fiduciary. The appellant in Willis was one of the veteran's daughters who had been appointed conservator for her father, the veteran, by a state court during the last years of his life. More than a year before the state court appointed her conservator, the Secretary had named another person to act as fiduciary for the veteran for purposes of ensuring that VA disability compensation payments to which he was entitled were used for lawful purposes and for his benefit. 6 Vet.App. at 434. After
• The VA Field Examiner made the decision based on the fact of the large retroactive payment
• Shelia Horace is a bonded fiduciary and will be able to garner the necessary estate protection
• Sister - at the time of the field exam was unemployed and none of the other family members
could offer the necessary estate protection to qualify as fiduciary.
• Shelia Horace is a paid fiduciary
Petitioner's December 20, 2011, Memorandum of Law Exhibit L. The petitioner also attached a VA report dated
February 8, 2010, labeled Exhibit B, to his Memorandum of Law. This report stated that the petitioner's sister was
currently unemployed, his father disabled, and his brother-in-law had limited income and protection will be required due
to the size of the veteran's assets. The report further stated: "Appointing a Paid Federal Fiduciary as legal custodian
appears to be the most logical choice and least restrictive method available." No further statement was made as to why
any of these individuals were not fit to serve as the petitioner's fiduciary. As to Shelia Horace, the report stated that she is "a recognized Paid Federal Fiduciary and has served in this capacity for several years in a satisfactory manner." The report noted that no character witnesses were obtained and no credit report was obtained, both based on her "prior
dealings with VARO Waco."
5 The Court notes that, although the record does not reveal the amount of disability compensation payments that
the petitioner currently receives each month, the most recent rate tables published by VA indicate that a veteran without dependents who is deemed to be 100% disabled is entitled to monthly compensation in the amount of $2,673. Veterans Compensation Benefits Rate Tables (effective Dec. 1, 2009), http://www.vba.va.gov/bln/21/Rates/comp01.htm#FNB (last visited Mar. 22, 2011). Thus, assuming this is the current amount of monthly compensation received by the petitioner, he is entitled to $32,076 per year, and Ms. Horace's commission for her services would be $962.28 annually.
Further, the petitioner was awarded a large retroactive payment when he was granted benefits. The Court has not been
provided with any information as to whether Ms. Horace would receive a 3% commission from that award.
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the veteran's death, the conservator (the veteran's daughter) sought fees from the deceased veteran's VA benefits in order to cover costs she had incurred in her role as the state-designated conservator.
Accordingly, the appellant was not seeking to be named fiduciary or challenging the earlier VA
appointment of a fiduciary, but rather sought payment of funds to cover expenses previously incurred in her role as state-appointed conservator for her father, the veteran.
After filing a claim with VA seeking such funds from the deceased veteran's benefit account,
which was denied by the RO, the conservator appealed to the Board. The Board rendered a decision denying the conservator's claim, and the conservator appealed to the Court. The Court affirmed the Board's decision that divided the veteran's remaining benefits equally between the conservatordaughter and the veteran's other surviving daughter. The Court noted that "the sole issue on appeal is whether the [conservator-daughter] is entitled to conservatorship fees." Id. at 435. The Court observed that the conservator's claim raised "the concurrent issue of whether particular VA appointments of fiduciaries are reviewable by this Court . . . ." Id. The Court then discussed the Secretary's equitable powers under 38 U.S.C. § 503 as an example of discretion not subject to judicial review, citing Darrow v. Derwinski, 2 Vet.App. 303 (1992), and then, somewhat ambiguously, added "or, as here, the appointment of a fiduciary." Willis, 6 Vet.App. at 436. The panel in Willis then went on to note that, in the case before it, (1) the Secretary appointed the VA fiduciary five years before the veteran's death, (2) since the claim for compensation brought by the conservator-daughter for her services as a court-appointed conservator arose only after the veteran's
death, the fiduciary appointment decision by the Secretary was not a matter for redetermination at the RO level or at the Board, and, thus, (3) the Court had no jurisdiction to review the appointment "as that question was not for Board decision." Id.
On review today, it is not clear to the Court whether the Willis panel was observing that the
VA decision to name a fiduciary was categorically beyond the jurisdiction of the Court or, in the
alternative, that on the facts therein, the time to contest the selection of the VA fiduciary had long passed without objection or NOD. What is clear, however, is that to the extent that the panel commented on the Court's jurisdiction to review the appointment of a VA fiduciary, its discussion was dicta because it was not necessary to the Court's decision to affirm the Board's denial of conservatorship fees.
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In Darrow, which was cited in Willis, this Court distinguished its power to review decisions
of the Secretary based upon equitable relief from those involving his authority to award benefits
based upon a statutory scheme composed of specific elements. Darrow, 2 Vet.App. at 304. That case dealt specifically with matters under the Secretary's equitable powers, codified in section 503(a).
In Darrow, the Secretary had granted equitable relief to the appellant in the amount of a 70%
disability rating. The appellant disagreed with that rating and sought to have the rating increased to 100%. The Court held that the grant of benefits under the Secretary's equitable authority was distinct
from a grant of benefits based upon statutory entitlement. The Secretary is authorized to exercise his discretion to award benefits if he believes that such benefits were improperly withheld due to administrative error. 38 U.S.C. § 503(a). The Court noted that the authority to grant benefits on the basis of equity was given to the Secretary personally and had not been delegated. Darrow, 2 Vet.App. at 305. The Court noted that section 7104(a), which defines the jurisdiction of the Board, confined review "to '[a]ll questions in a matter . . . under section 511(a).'" Id. (quoting 38 U.S.C. § 7104(a)). Thus, the Court in Darrow acknowledged that the authority to grant equitable relief had been given to the Secretary and it was not possible for the Court to review the Secretary's determination of whether or not to exercise that authority.
The Court further notes that Willis distinguished itself from Darrow. While Willis noted that
Darrow placed the Secretary's equitable powers outside its jurisdiction, the Court's short, concluding discussion delineates a distinction between Willis and Darrow. Willis, 6 Vet.App at 436. In Darrow, the matter of the Secretary's exercise of his equitable powers was the primary issue. The appellant filed an NOD with the Secretary's decisions, a Statement of the Case was issued, the matter was appealed to the Board, and the Board decision was then appealed to this Court. Conversely, in Willis, the Court noted both that the matter of selection of a VA fiduciary was never raised and that the time to file an NOD with the fiduciary determination had long since passed. Thus, the fiduciary determination was never considered for redetermination at the RO or the Board. Id. In this manner, Willis acknowledged that it did not reach the question of whether the selection of a fiduciary was subject to Board review if it was timely appealed. Consequently, Willis cannot be considered
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precedential authority on this issue.6
2. Bates Provides Precedential Guidance
While our decision in Willis is not dispositive of the matter at hand, the Federal Circuit's
discussion in Bates v. Nicholson, 398 F.3d 1355 (Fed. Cir. 2005), does provide precedential
guidance. The Federal Circuit's analysis in Bates, concerning the Veterans Act of 1936, ch. 867, 49 Stat. 2031, supports our conclusion that administrative actions undertaken pursuant to section 5502 are subject to this Court's jurisdiction through application of 38 U.S.C. §§ 511(a) and 7104. In Bates, the Federal Circuit held that a determination of whether or not to terminate the certification of an attorney to practice before VA was a matter that arose "under a law that affects the provision of benefits." 398 F.3d at 1361. The Federal Circuit determined that the word "law" in section 511(a) refers to any "single statutory enactment that bears a Public Law number in the Statutes at Large." Id. In the case before us, section 5502, as conceded by the Secretary, is a matter affecting benefits under section 511(a).7 Bates did not expand this Court's jurisdiction, but rather the Federal Circuit reiterated the reach of the Board's jurisdiction over any matters that affect the provision of benefits.
Thus, the Court is compelled by Bates and its broad definition of the word "law" to exercise
jurisdiction over any matter decided by the Board that falls within the purview of section 511(a).
Further, under the holding of Bates, the Secretary is compelled to recognize an NOD concerning a VSCM selection of a VA fiduciary.
All parties acknowledge that section 5502 is the operative statute that grants the Secretary
the authority to appoint fiduciaries. Secretary's Response to the Petition at 4; Petitioner's
Memorandum of Law at 17. Further, all parties acknowledge that section 5502 is a law that affects the provision of benefits. Secretary's Memorandum of Law at 10; Petitioner's Memorandum of Law at 17. As the Court concurs in this assessment, we also acknowledge that Bates affirms that any law
6We recognize that non-precedential decisions of this Court may have relied on Willis as precedent concerning
review of the Secretary's exercise of discretion to appoint fiduciaries. However, as those decisions do not form binding
precedent of this Court and Willis does not control this issue, we write for the first time with precedential authority on
this issue. As a result of this circumstance, it is best said that we write not on a clean slate, but on a new one, attempting
to erase some of the non-precedential clutter that had accumulated with age.
7The Court notes that the concurrence in Bates favored a narrower definition of the word "law." Bates, 398 F.3d
at 1366 (Bryson, J., concurring in the result). We observe that the matter before the Court would also fit into the
concurrence's more narrow definition.
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that affects the provision of benefits is contemplated by section 511(a), even in the face of the
Secretary's argument that a matter is committed to his discretion. Section 7104 states that any matter that under section 511(a) is subject to a decision of the Secretary is subject to one review on appeal to the Secretary. 38 U.S.C. § 7104(a); see Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). Thus, section 5502 cannot be interpreted as precluding a veteran from challenging the appointment of a fiduciary. Accordingly, if the veteran disagrees with the Secretary's manner of selecting a fiduciary, the veteran may appeal that decision to the Board. Section 7252 grants this Court exclusive jurisdiction to review decisions of the Board. 38 U.S.C. § 7252. Thus, the statutory framework confirms this Court's ultimate jurisdiction over a decision made by the Secretary pursuant to section 5502.
3. No Applicable Exception to Presumption of Judicial Review
While the statutory framework gives the Board, and thus this Court, jurisdiction to review
matters decided pursuant to section 5502, the Secretary contends that this Court lacks jurisdiction because the statutes related to the appointment of fiduciaries commit such decisions to the sole discretion of the Secretary and provide no judicially reviewable standards. As outlined above and further discussed below, the Court disagrees and concludes that the statutory framework concerning appointment of VA fiduciaries presents no such impediment to our jurisdiction.
a. No Exclusive Grant of Jurisdiction
The Supreme Court has made clear that there is a strong presumption of judicial review over
agency determinations. In the matter of Kucana v. Holder, the Supreme Court noted once again that there is "the 'presumption favoring interpretations of statutes [to] allow judicial review of administrative action.'" 130 S.Ct. 827, 831 (2010) (quoting Reno v. Catholic School Services, Inc., 509 U.S. 43, 63-64 (1993)). At issue in Kucana was the ability of the courts to review a decision made by the Attorney General when the decision in question had been placed within the Attorney General's discretion by statute. The Supreme Court found that the matter was subject to judicial review. In support of this finding, the Supreme Court specifically stated that if Congress wished to erect a bar to judicial review, then it could easily do so with specific language to that effect. Id. at 837. Further, the Supreme Court determined that if a statute's bar to judicial review was subject to
reasonably divergent interpretation, the statute should be read to favor the "'traditional
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understandings and basic principle[]: that executive determinations generally are subject to judicial
review.'" Id. at 839 (quoting Gutierrez de Martinez v. Lamagno, 515 U.S. 417, 434 (1995).
The Supreme Court also articulated this presumption in favor of judicial review in its
decision in Park 'N Fly, Inc. v. Dollar Park and Fly, Inc. 469 U.S. 189 (1985). In that decision, the
Court stated:
No matter how dedicated and how competent administrators may be, the possibility
of error is always present, especially in nonadversary proceedings. For that reason
the Court normally assumes that Congress intended agency action to be subject to
judicial review unless the contrary intent is expressed in clear and unambiguous
language.
Id. at 212. Thus, the Supreme Court has made clear that, unless Congress explicitly prohibits it, there
is a strong presumption in favor of judicial review. This point is perhaps particularly pertinent in
the context of appeals to this Court, given that the driving principle that led Congress to create the
Court was a desire to ensure fairness in the adjudication of veterans benefits claims by providing the
additional safeguard of judicial review of agency decision-making. See generally American Legion
v. Nicholson, 21 Vet.App. 1, 5 (2007) (summarizing statements of Senator Alan Cranston in support
of the Veterans' Judicial Review Act, Pub. L. No. 100-687, 102 Stat. 4105 (1988), which created the
Court). With this in mind, we turn to examine the Secretary's statutory grant of authority to appoint
fiduciaries.
As discussed above, the Secretary's grant of authority to appoint fiduciaries over veterans'
funds derives from section 5502(a). That provision does not contain an explicit bar to judicial
review. Other provisions of section 5502 contain language that indicates that the Secretary has
"discretion" over acts involving suspected improper acts by a fiduciary; however, Congress did not
use the word "discretion" when describing the Secretary's authority to appoint a fiduciary under
section 5502(a). The Court adopts the Supreme Court's observation from Kucana, that, had
Congress wished to bar this Court's jurisdiction, it could have easily done so. See, e.g., 38 U.S.C.
§ 7252(b)("The Court may not review the schedule of ratings for disabilities . . . ."). As Congress
chose not to specifically bar this Court's jurisdiction, and established a statutory framework that
includes the appointment of fiduciaries within the Board's and, thus, this Court's statutory grant of
jurisdiction (see Section C.1 supra), we hold that the use of permissive words such as "may" and
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"appears to the Secretary" do not constitute language precluding the Secretary's determination
regarding the appointment of a fiduciary from being appealed to the Board and ultimately to this
Court.
Further, Congress had ample opportunity to exclude section 5502 from this Court's
jurisdiction. Section 511 was previously codified as 38 U.S.C. § 211. See Pub.L 102-83, 105 Stat.
388 (recodifying section 211 as section 511 without any substantive changes). Prior to the passage
of the Veterans Judicial Review Act of 1988 (VJRA), PL 100-687, 102 Stat. 4105, section 211 gave
the Secretary broad discretionary powers that were unreviewable by any court. Passage of the VJRA
not only created this Court, but also provided a number of exceptions to the Secretary's exclusive
authority. See 38 U.S.C. § 511(b).
Rather than completely rewriting section 211, Congress chose to retain the broad language
barring review of Secretarial decisions but added significant exceptions in section 511(b). There, it added an exception for judicial review by the Federal Circuit of the Secretary's use of his rulemaking authority. It also specifically provided for review of matters under 38 U.S.C. §§ 1975 and 1984, matters governed by chapter 37 of title 38, and matters covered by chapter 72 of title 38, which established this Court.8 Section 7104 subjected decisions of the Secretary made pursuant to
section 511(a) to review by the Board and subsequently this Court. The intricate construction of this statutory structure illustrates the congressional intent to exclude certain decisions from judicial review but include others. Congress gave the Board broad authority to review "[a]ll questions in a matter . . . under section 511(a) . . . subject to decision by the Secretary." 38 U.S.C. § 7104. Section
5502 is a matter governed by 511(a), as conceded by the Secretary, and not excluded from judicial review. We therefore conclude that section 5502 falls within the congressional grant of jurisdiction given to the Board and to this Court in the VJRA.
b. Existence of Judicially Reviewable Standards
Nevertheless, the Secretary has argued that there are no standards for the appointment of a
fiduciary that are capable of judicial review. While the Secretary cites to Chaney to support this
8A further example of a Congressional determination to specifically exempt certain matters from this Court's
jurisdiction can be found in 38 U.S.C. §7252(b), which clearly states that the Court may not review schedular ratings
under § 1155.
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position, his reliance on that case is misplaced. In Chaney, a group of prison inmates brought suit
against the Secretary of Health and Human Services (HHS) seeking to compel the Food and Drug
Administration (FDA) to take enforcement action with respect to the drugs administered for lethal injections. The Supreme Court ruled in favor of the HHS Secretary, stating that "even where Congress has not affirmatively precluded review, review is not to be had if the statute is drawn so that a court would have no meaningful standard against which to judge the agency's exercise of discretion." Chaney, 470 U.S. at 830.
However, in Chaney, the agency had made a determination not to take action. The Supreme
Court's opinion indicated that there were no judicially reviewable standards that would allow a court to determine whether the agency was required to take action. The Supreme Court's decision indicates that when an agency has been given discretionary authority, it cannot be compelled to exercise that authority unless there are sufficient standards to govern when the authority must be exercised. Thus, Chaney is distinguishable from the issue presented here. Unlike the situation addressed in Chaney, here the Secretary did exercise his authority to appoint a fiduciary.
In further discussion of the action vs. inaction distinction, the Supreme Court cited to Dunlop
v. Bachowski, 421 U.S. 560 (1975). In Dunlop, the Court determined that an agency could be compelled to take action when its statutory grant of authority explicitly compelled the agency to take
action in a specific set of circumstances. The Court in Chaney distinguished the facts of that case from those in Dunlop on the basis of the clarity of the standards that determined whether or not an agency was required to take action. Similarly, we distinguish the present matter from Chaney on the basis that Chaney involved an effort to compel an agency to act and the present matter involves review of an agency's action, once undertaken. See also Smith v. Derwinski, 1 Vet.App. 267, 278-79 (1991) (holding that a Board determination as to whether a veteran is entitled, in "equity and good conscience," to waiver of indebtedness under 38 U.S.C. § 5302, is a discretionary one but that review of such waiver decisions by this Court is still possible to determine whether the Board abused such discretion.).
In the case before us, the Secretary determined that a fiduciary was necessary. In the course
of the appointment of a fiduciary, the Secretary's delegated authority was exercised to appoint an individual other than the petitioner's sister to handle the petitioner's VA benefits. As discussed
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above, statutory and regulatory provisions exist that govern the process the Secretary must follow when appointing a fiduciary. See Section IV.B. supra. As Congress did not place that statutory framework beyond either the Board's or this Court's jurisdiction, a beneficiary may challenge whether or not the Secretary properly exercised his authority in this area. Such a beneficiary would be entitled to one review on appeal within VA and, subsequently, an appeal to this Court.

V. CONCLUSION
The Court concludes that all conditions that must be met prior to the issuance of a writ have
been satisfied. In reaching this conclusion, the Court observes that the Federal Circuit's decision in Bates helped clarify the breadth of the Board's jurisdiction. Specifically, any provision contemplated by section 511(a) is subject to one review on appeal by the Secretary and that Secretarial review is explicitly delegated to the Board. As all parties agree that the statutory framework authorizing the Secretary to appoint a fiduciary to handle VA benefits for an incompetent veteran falls within the purview of section 511(a), the Court concludes that the petitioner is clearly and indisputably entitled to appeal to the Board the decision of the VSCM to appoint a paid federal fiduciary.9
As the petitioner has shown, and the Secretary has conceded, that without the Court's
intervention in the form of extraordinary relief, the petitioner will not be allowed to pursue his claim to the Board, the Court is left with the clear understanding that the issuance of a writ of mandamus is necessary to protect its potential jurisdiction over this matter. If the petitioner does ultimately

9The Court notes that the named fiduciary was authorized by the VSCM to compensation in the amount of 3%
of the veteran's entitled benefits. Petitioner's December 20, 2010, Memorandum of Law Exhibit B. There is no assertion
that the veteran's sister seeks compensation for service as a fiduciary. See 38 C.F.R. § 13.64( c)("Commissions may not
be authorized to . . . close relatives acting in fiduciary capacity on behalf of the beneficiary, except under extraordinary
circumstances."). While not necessary to our decision at this juncture, a property right of the veteran is clearly potentially affected by any payment from his benefits to a fiduciary.
The potential breadth of the impact of VA's federal fiduciary program on this property right is expansive. On
March 17, 2011, Michael Walcoff, Acting Under Secretary for Benefits, testified before the House Veterans' Affairs
Subcommittee on Disability Assistance and Memorial Affairs and stated that VA's fiduciary program manages the estates of 110,000 veterans with a total net worth of $3.2 billion. See Statement of Michael Wolcoff, March 17, 2011, available at http://veterans.house.gov/hearings/Testimony.aspx?TID=4423&Newsid=2291&Name= Michael Wolcoff (last visited April 26, 2011). If all of these veterans had paid fiduciaries authorized to collect 3% of their benefits, as in the present case, this would amount to $96 million in fiduciary fees. In fact, the Court notes that the maximum commission VA is authorized to award a paid federal fiduciary is 4% of the yearly benefits to which the veteran is entitled. 38 U.S.C. § 5502(a)(2).
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perfect an appeal to the Board, he will be entitled to a full explanation, in light of the statutory and regulatory provisions outlined in this order, of the reasons or bases for the Board's decision.
38 U.S.C. § 7104(d)(1).
To further clarify, because the Court concludes that the provisions of sections 5502 and 5507,
as well as the regulations that implement those statutes, provide legally meaningful standards by
which to evaluate the appointment of a fiduciary, the petitioner would then be entitled to further
appeal any final adverse Board decision on this matter to the Court.

Accordingly, upon consideration of the foregoing, it is hereby
ORDERED that the February 16 and 18, 2011, motions to supplement filed by amicus and
the petitioner are granted. It is further
ORDERED that the March 7, 2011, motion to supplement filed by the petitioner is denied.
It is further
ORDERED that the Secretary issue a Statement of the Case based upon the petitioner's
December 22, 2009, Notice of Disagreement concerning the appointment of a federal fiduciary.
Upon perfection of the petitioner's appeal, the Secretary will certify the petitioner's appeal to the
Board.
DATED: April 26, 2011 PER CURIAM.

LANCE, Judge, concurring: While I fully agree with the opinion in this case, I write
separately simply to note that the majority of VA regulations concerning fiduciary appointments are from 1975 and the Secretary may wish to update these regulations to provide better guidance to regional offices and to the Board on review of their decisions. While this case does not present the ideal fact pattern, it is important to note that VA regulations do not cover the situation where a durable power of attorney–one that is statutorily authorized under state law and signed when the veteran is competent–is in place. The regulations also fail to address the circumstance where a court having jurisdiction in the veteran's domicile has established a conservatorship for the veteran, an incapacitated person. These court proceedings are comprehensive and all interested parties have a right to be represented and heard during the proceedings. Many jurisdictions require an annual
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accounting by the conservator and may require a bond. It would seem that in the circumstance where such a sophisticated structure is employed and a conservatorship established, it would be
unnecessary for VA to use its resources to involve itself in a separate agency action. It should be the welfare of the veteran and conservation of his/her assets that controls, not the source of the veteran's income or payments. VA benefits may well be a minor portion of an overall estate. In such a case, it seems unnecessarily burdensome to establish a separate "trusteeship" and charge the veteran up to 4% of his/her benefits for a trustee that may not be desired, wanted, or needed.
While the regulations, 38 C.F.R. §§ 13.55 and 13.58, were drafted after the Uniform Probate
Code (UPC) was enacted in 1969, they were drafted before the UPC was widely adopted and these regulations have not been amended since they were adopted in 1975. Article V, Part 5, of the UPC concerns durable powers of attorney. The UPC is now widely adopted and many states, if not most, now recognize statutory durable powers of attorney wherein the authority granted survives the incompetence of the grantor. The Durable Power of Attorney Act has also been adopted by most states. Under a durable power of attorney, the grantor (veteran) would have selected his or her attorney-in-fact to act on his or her behalf. That desire should, in my opinion, be given deference in the absence of fraud, proven misfeasance, or malfeasance or the death or incompetence of the attorney-in-fact.
By way of comparison, I would highlight the more sophisticated structure for the appointment
of a fiduciary that is in place within the Social Security Administration (SSA). SSA, unlike VA, has an order of preference in selecting a payee, 20 C.F.R. § 404.2021 (2010), and a list of considerations to be taken into account when selecting a payee, 20 C.F.R. § 404.2020 (2010). In its order of preferences, SSA lists the "legal guardian . . . who has custody of the beneficiary" as its first preference. 20 C.F.R. § 404.2021 (a)(1). Two of the considerations to be taken into account are "[a]ny legal authority the person, agency, organization, or institution has to act on behalf of the beneficiary," 20 C.F.R. § 404.2020(c), and "[w]hether the potential payee has custody of the beneficiary," 20 C.F.R. § 404.2020(d). The SSA recognizes legal relationships in its regulations and the more detailed structure that is in place within the SSA regulations helps to ensure that the beneficiary's best interests are actually served.
Regardless of what the Secretary decides to do, it would benefit the system for VA to
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explicitly address the relationships that are recognized elsewhere, thereby saving the veteran up to 4% of his or her benefits that is customarily charged by the VA-appointed fiduciary. In general, veterans will be better served if their funds– regardless of the source– are managed by a single individual who can manage them intelligently based upon a real familiarity with the veteran's situation and needs.
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