Single Judge Application, Acevedo v. Shinseki, 25 Vet.App. 286, 293 (2012); Adequate Medical Report

Excerpt from decision below:

“Fourth, Mr. Krizek asserts that the February 2009 examiner failed to
discuss the effects of Mr. Krizek’s hearing loss on his employment and dailylife, as required by
38 C.F.R. § 3.344 (2012).
On the contrary, the record reflects that the February2009 examiner found
that “[w]ith amplification and reasonable accommodations as specified in the Americans with Disabilities Act,
this hearing loss alone should not significantly affect vocational potential or limit
participation in most work activities.” R. at 330.
In sum, Mr. Krizek fails to demonstrate that the February 2009 examination
report was inadequate or that the Board clearly erred in its assignment of probative
weight. See Acevedo v. Shinseki, 25 Vet.App. 286, 293 (2012) (“[A]n adequate medical report must
rest on correct facts and reasoned medical judgment so as to inform the Board on a medical question
. . . .” (citing D’ Aries v. Peake, 22 Vet.App. 97, 104 (2008))); Washington v. Nicholson, 19 Vet.
App. 362, 367-68 (2005) (noting Board’s duty to determine the probative weight of the evidence,
and holding that such determinations are reviewed under the “clearly erroneous” standard);
Hilkert, supra.”

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

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 11-3077
MURLIN L. KRIZEK, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before KASOLD, Chief Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
KASOLD, Chief Judge: Veteran Murlin L. Krizek appeals through counsel that
part of an
August 3, 2011, decision of the Board of Veterans’ Appeals (Board) that
affirmed the propriety of
a November 2009 disability rating reduction. Mr. Krizek argues that the
Board erred by (1) failing
to recognize the Secretary’s violation of the duty to assist, (2) relying
on an inadequate VA medical
report, and (3) relying on its own unsupported medical conclusions.1
The Secretary disputes these
arguments. Single-judge disposition is appropriate. Frankel v. Derwinski,
1 Vet.App. 23, 25-26
(1990). For the reasons stated below, that part of the Board decision on
appeal will be affirmed.
In support of his first argument, Mr. Krizek asserts that the Board should
have remanded the
matter to obtain Social Security Administration (SSA) records. However,
there is no per se
requirement that SSA records be obtained, see Golz v. Shinseki, 590 F.3d
1317, 1322 (Fed. Cir.
2010), and the Board found that the SSA records lacked potential relevance
because it appeared that
Mr. Krizek was receiving retirement benefits as opposed to disability
benefits. Mr. Krizek does not
dispute the Board’s understanding that he was in receipt of retirement
benefits and not disability
To the extent Mr. Krizek presents additional arguments regarding his
request for a total disability rating
based on individual unemployability, that issue was remanded by the Board
and is not before the Court.
1

benefits. Also in support of his first argument, Mr. Krizek contends that
the record before the Board
did not contain a February2008 audiologynote or the audiometric findings
of a December 26, 2007,
examination. However, the record of proceedings contains a February2008
audiologynote (Record
(R.) at 368), and reflects that no audiometric examination was
administered on December 26, 2007.
Succinctlystated, Mr. Krizek fails to demonstrate the possible relevance
of SSA retirement-benefits
records and otherwise fails to demonstrate that the Board relied on an
inadequate record. See Hilkert
v. West, 12 Vet.App. 145, 151 (1999) (en banc) (appellant bears burden of
demonstrating error on
appeal).
In support of his second argument, Mr. Krizek contends that a February
2009 VA medical
report relied on by the Board was inadequate for four reasons. First,
although he acknowledges that
the February 2009 examiner stated that “the reason for [his slight
improvement in hearing acuity
since February 2008] could be that the ear wax noted (which was removed
AFTER the [February
2008] test) had a slight effect on his hearing,” he contends that a
December 2007 report did not note
ear wax or its removal. R. at 330. However, he fails to demonstrate the
relevance of the December
2007 report to the adequacy of the February 2009 report. See Hilkert,
supra. Moreover, the record
reflects that the referenced February 2008 report mentions cerumen2
and removal, as stated in the
February 2009 report. Second, Mr. Krizek notes that the February 2009
report states that hearing
improvement since the December 2007 test results could be due to
nonorganic overlay or possible
exaggeration of hearing loss, but he contends that the December 2007
examiner did not render any
finding of nonorganic overlay or exaggeration. Regardless, the February
2009 report reflects the
examiner’s view of the possible reasons for the recorded hearing
improvement, not a
misrepresentation of the December 2007 report.
Third, Mr. Krizek asserts that the February2009 examiner provided
insufficient rationale for
her opinion. See R. at 331 (“RATIONALE . . . Clinical experience and
expertise as a licensed
audiologist.”). To the extent he believes that the examiner provided
insufficient rationale for her
opinion that his hearing had improved since the last test, that opinion
clearlywas based on the results
of the audiological examination, pure-tone air and bone conduction
measures, word recognition
“Cerumen” is “the waxlike secretion found within the external meatus of
the ear.” DORLAND’S
ILLUSTRATED MEDICAL DICTIONARY 333 (32d ed. 2012).
2
2

testing, and recorded immitancemeasures. SeeLendenmannv.Principi,3Vet.App.
345,349(1992)
(disability ratings for hearing loss are derived from a mechanical
application of the rating schedule
to the numeric designations resulting from audiometric testing). To the
extent Mr. Krizek believes
that the examiner provided insufficient rationale for her opinion that ear
wax, nonorganic overlay,
or exaggeration may have affected Mr. Krizek’s previous hearing tests, the
examiner reviewed the
medical historyand is presumed competent to understand potential causes
ofchangesin hearing, and
Mr. Krizek identifies no record evidence reflectingincompetence or a
contrarymedicalopinion. See
Rizzo v. Shinseki, 580 F.3d 1288, 1291 (Fed. Cir. 2009) (VA medical
examiners are presumed
competent in the absence of clear evidence to the contrary); Hilkert,
supra.
Fourth, Mr. Krizek asserts that the February 2009 examiner failed to
discuss the effects of
Mr. Krizek’s hearing loss on his employment and dailylife, as required by
38 C.F.R. § 3.344 (2012).
On the contrary, the record reflects that the February2009 examiner found
that “[w]ith amplification and reasonable accommodations as specified in the Americans with Disabilities Act,
this hearing loss alone should not significantly affect vocational potential or limit
participation in most work activities.” R. at 330.
In sum, Mr. Krizek fails to demonstrate that the February 2009 examination
report was inadequate or that the Board clearly erred in its assignment of probative
weight. See Acevedo v. Shinseki, 25 Vet.App. 286, 293 (2012) (“[A]n adequate medical report must
rest on correct facts and reasoned medical judgment so as to inform the Board on a medical question
. . . .” (citing D’ Aries v. Peake, 22 Vet.App. 97, 104 (2008))); Washington v. Nicholson, 19 Vet.
App. 362, 367-68 (2005) (noting Board’s duty to determine the probative weight of the evidence,
and holding that such determinations are reviewed under the “clearly erroneous” standard);
Hilkert, supra.
Mr. Krizek provides no specific arguments in support of his contention
that the Board relied on its own unsupported medical conclusions. As such, he fails to
demonstrate error. Hilkert, supra.
Accordingly, that part of the August 3, 2011, Board decision affirming the
propriety of a
November 2009 disability rating reduction is AFFIRMED.
DATED: August 31, 2012
3

Copies to:
Calvin Hansen, Esq.
VA General Counsel (027)
4

Neely v. Shinseki, No. 07-1570, Simple Medical Conditions, Tonsillitis

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

This Court applied that explanation in Barr, ruling that <b>lay claimants are competent to self-diagnose varicose veins because that condition is relatively simple.</b> 21 Vet.App. at 309. <b>The Court agrees with the

7

appellant that, like varicose veins, tonsillitis is a relatively simple
condition, and that a lay person is capable of self-diagnosing that condition.</b> The Board, instead, appeared to assert a blanket rule that lay claimants are never able to self-diagnose their disabilities, or, alternatively, it discounted the appellant’s lay statements without explaining why it was doing so.

+++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 07-1570
JAMES E. NEELY, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before SCHOELEN, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
SCHOELEN, Judge: The appellant, veteran James E. Neely, appealed through
counsel a
February 26, 2007, Board of Veterans’ Appeals (Board or BVA) decision in
which the Board
denied his claims for service connection for a dental disability and for
chronic Previous DocumenttonsillitisNext Hit. Record
(R.) at 1-10. This appeal is timely, and the Court has jurisdiction under
38 U.S.C. §§ 7252(a)
and 7266(a). Single-judge disposition is appropriate. See Frankel v.
Derwinski, 1 Vet.App. 23,
25-26 (1990). For the reasons that follow, the Court will affirm the
Board’s decision in part,
vacate it in part, and will remand the dental disability matter for
further proceedings consistent
with this decision.
I. BACKGROUND
The appellant served honorably in the U.S. Air Force from September 1962
to June 1966.
R. at 267. His service entrance examination, dated July 1962, noted that
he was missing a tooth,
that several of his teeth had been restored, and that he suffered from
slight calculus. R. at 21. In
December 1962, he complained of a sore throat with discharge from the
tonsils. R. at 22. The

initial diagnosis was Previous HittonsillitisNext Hit, however, upon review, Air Force
medical personnel changed his
diagnosis to pharyngitis. Id. In October 1965, the appellant was diagnosed
with moderate to
severe periodontitis, which had resulted in some “hopeless teeth.” R. at
42.
In March 2003, the appellant submitted a claim for service connection for,
among other
things, “bleeding from the mouth,” “teeth falling out,” and “tonsil
infections.” R. at 47-61. In the
appellant’s application for benefits, he stated that his teeth had been
treated by Drs. Wade
Breeland and Joe Moses, and provided the city, state, and Zip Code number
in which those
doctors practiced. R. at 53. In connection with the dental claim, VA
obtained medical records
from Dr. Dannie G. Benjamin, who diagnosed the appellant with severe
periodontitis, which was
causing the appellant’s teeth to fall out. R. at 441-46. Those records
also indicated that the
appellant’s teeth had, in the past, been treated by Drs. Michael Borchardt
and G. Stephen Buck.
R. at 444-45. The record does not indicate that VA ever attempted to
obtain records from Drs.
Breeland, Moses, Borchardt, or Buck. In August 2003, the RO denied the
appellant’s claims (R.
at 706-16), and the appellant perfected his appeal. R. at 718-19, 760.
In March 2006, after some procedural development, the appellant was given
a Travel
Board hearing. R. at 1266-80.
He testified that the bleeding in his mouth had begun during
service, and that his teeth had begun falling out shortly after service. R.
at 1270. He also had the
following conversation with his representative:
Q. And, to the best of your knowledge no dentist has ever come up with a
reason
or said what the cause could have been for the loss of teeth, other than
possible
periodontal disease?
A. Yes sir.
Q. That’s pretty much it, then?
A. That’s all it was.
R. at 1271. With respect to his tonsil infections, he testified: “[T]oday
I still take, the VA’s
furnishing it, steroids, twice a day in the nostrils . . . and it’s just
been a, that’s basically it.” R. at
1275. His representative elaborated:
Q. Okay. So, the medication you’re getting from the VA…
2

A. It does a good job.
Q. …has it under control at this time?
A. Yes, sir, right.
R. at 1275-76. The Board member conducting the hearing then asked: “And, [
the steroid has]
resolved the infections?” to which the appellant replied: “It’s done a
pretty good job, yes, ma’am.”
R. at 1278.
On February 26, 2007, the Board issued a decision that continued to deny
the appellant’s
claims for service connection for a dental disability and for Previous HittonsillitisNext Hit.
R. at 1-10. The appellant
timely filed an appeal to this Court.
II. ANALYSIS
A. Dental Disability
VA, by statute and regulation, allows different benefits for different
types of dental
disabilities. See generally Woodson v. Brown, 8 Vet.App. 352 (1995). All
dental disabilities
may be considered service connected for treatment purposes; however, only
those dental
disabilities that involve actual loss of part of the structure of the jaw
will be compensable under
VA’s schedule of disability ratings. See 38 U.S.C. § 1712; 38 C.F.R. § 4.
150 (2008). Under
38 C.F.R. § 3.381 (2008), “[t]reatable carious teeth, replaceable missing
teeth, dental or alveolar
abscesses, and periodontal disease will be considered service-connected
solely for the purpose of
establishing eligibility for outpatient dental treatment.” Thus, veterans
may receive compensation
for tooth loss when it is “due to loss of substance of body of maxilla or
mandible,” and when that
“bone loss is through trauma or disease, and not to the loss of the
alveolar process as a result of
periodontal disease, since such loss is not considered disabling.” 38 C.F.
R. § 4.150, Diagnostic
Code (DC) 9913 and note. Veterans with a compensable dental disability may
obtain treatment
“as reasonably necessary to maintain oral health and masticatory function.
There is no time
limitation for making application for treatment.” 38 C.F.R. § 17.161(a) (
2008). Nor do either
the statute or the applicable regulations prescribe a time limit for
applying for compensable
service connection for a dental disability. In contrast, veterans who have
noncompensable dental
3

disabilities may only be service-connected for treatment purposes if the
veteran applies for
treatment within 180 days of the veteran’s discharge or release from
service.
§ 1712(a)(1)(B)(iii); 38 C.F.R. § 17.161(b)(1)(i)(B).
In its decision, the Board stated that the medical evidence of record
showed the
appellant’s tooth loss to have been caused by periodontal disease. R. at 2.
Because service
connection for periodontal disease is available only for treatment
purposes, and because the
appellant had not applied for treatment within the requisite time period,
the Board denied his
claim for service connection. R. at 8. The Board also determined that,
because the appellant
could not, as a matter of law, obtain service connection, any failure by
VA to comply with the
duty to assist was nonprejudicial. R. at 4. The appellant now argues that
there is medical
evidence not currently in the record that might establish that his tooth
loss is caused by
something other than periodontal disease and that he might therefore be
entitled to compensation
for his tooth loss, that he adequately identified this evidence to the
Secretary, and that the
Secretary nevertheless did not try to obtain it, in violation of the duty
to assist. Appellant’s Brief
(Br.) at 5-10; see 38 U.S.C. § 5103A. The Secretary responds that,
because the appellant could
only obtain treatment for periodontal disease, and because he did not
timely file an application
for treatment, “any failure of the VA to comply with the duty to assist is
harmless error, in that
Appellant would not receive a benefit from a remand.” Secretary’s Brief (
Br.) at 14. The
Secretary also argues that the appellant did not adequately identify the
medical evidence he now
asserts VA should have obtained. R. at 12.
VA has a duty to assist claimants in developing their claims. 38 U.S.C. §
5103A. As part
of the duty to assist, “the Secretary shall make reasonable efforts to
obtain relevant records
(including private records) that the claimant adequately identifies to the
Secretary and authorizes
the Secretary to obtain.” 38 U.S.C. § 5103A(b)(1).
The level of specificity required to identify adequately such records
sufficient to
give rise to a duty to undertake reasonable efforts to secure them is not
prescribed
in statute or regulation, other than by the implicit factors that such
identification
must be sufficient to indicate the relevance of the records and to permit
the
Secretary to undertake reasonable efforts to secure . . . them.
38 U.S.C.
4

Hyatt v. Nicholson, 21 Vet.App. 390, 394 (2007). If the Secretary, after
making reasonable
efforts to obtain adequately identified records, “is unable to obtain all
of the relevant records
sought, the Secretary shall notify the claimant that the Secretary is
unable to obtain records with
respect to the claim.” 38 U.S.C. § 5103A(b)(2).
When the Board determines that VA has complied with the duty to assist,
the Court
reviews that determination under the “clearly erroneous” standard. See
Prickett v. Nicholson,
20 Vet.App. 370, 376 (2006). A finding of material fact is clearly
erroneous when the Court,
after reviewing the entire evidence, “is left with the definite and firm
conviction that a mistake
has been committed.” United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (
1948); see also
Gilbert v. Derwinski, 1 Vet.App. 49, 52 (1990). When applying this
standard, if, after reviewing
the record in its entirety, the Board’s finding of fact is supported by a
plausible basis, “the [Court]
may not reverse it even though convinced that had it been sitting as trier
of fact, it would have
weighed the evidence differently.” Gilbert, 1 Vet.App. at 52 (quoting
Anderson v. City of
Bessemer City, 470 U.S. 564, 573-74 (1985)). The Board must also provide a
statement of the
reasons or bases for its determination, adequate to enable an appellant to
understand the precise
basis for the Board’s decision as well as to facilitate review in this
Court.
38 U.S.C.
§ 7104(d)(1); see Allday v. Brown, 7 Vet.App. 517, 527 (1995); Gilbert, 1
Vet.App. at 56-57. To
comply with this requirement, the Board must analyze the credibility and
probative value of the
evidence, account for the evidence that it finds to be persuasive or
unpersuasive, and provide the
reasons for its rejection of any material evidence favorable to the
claimant. See Caluza v. Brown,
7 Vet.App. 498, 506 (1995).
First, contrary to the Secretary’s assertion that the appellant did not
adequately identify the
medical records of Drs. Breeland and Wade,
when a veteran claims compensation for a current condition and lists on
his
application the names of private physicians that provided treatment for
that
condition, that is sufficient to establish the relevance of the treatment
he received
and to adequately identify the medical records of those physicians. The
Secretary
then has the obligation to seek other identifying information needed to
secure the
records.
5

Hyatt, 21 Vet.App. at 397. The result is the same with respect to medical
records “explicitly
mentioned” in records that the Secretary actually has obtained, as was the
case here with Drs.
Buck and Borchardt. See id. at 397 n.2. Nor has the Secretary convinced
the Court that VA’s
failure to obtain those records could not be prejudicial. It is true, as
noted above, that the
appellant has testified that, “to the best of [his] knowledge,” he has
never been diagnosed with
anything other than periodontitis. However, those records might contain a
diagnosis of some
dental condition other than periodontitis, in which case the appellant’s
failure to file a claim for
service connection within one year of his discharge from service would not
necessarily be fatal to
his claim.
The Court therefore holds that VA failed to comply with the duty to assist,
and that the
Board clearly erred in finding that failure nonprejudicial. See Prickett,
supra. The Court will
therefore vacate that part of the Board’s decision denying service
connection for a dental
disability and will remand the matter. The Board should then remand the
matter to the RO to
allow the Secretary to comply with the duty to assist. On remand, the
appellant is free to submit
additional evidence and argument on the remanded matter, which the Board
must consider when
readjudicating his claim. See Kay v. Principi, 16 Vet.App. 529, 534 (2002);
Kutscherousky v.
West, 12 Vet.App. 369, 372-73 (1999) (per curiam order). The Board and the
RO must provide
expeditious treatment of this matter on remand. See 38 U.S.C. §§ 5109B,
7712.
B. Tonsillitis
Establishing service connection for most disabilities generally requires (
1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Hickson v. West, 12 Vet.App. 247, 253 (1999). A finding of service connection, or no service connection, is a finding of fact reviewed under the “clearly erroneous” standard in 38 U.S.
C. § 7261(a)(4). See
Swann v. Brown, 5 Vet.App. 229, 232 (1993). And, as above, the Board must
provide an
adequate statement of the reasons or bases for such a finding. See Gilbert,
supra.
In its decision, the Board found that the appellant had “not presented any
competent evidence showing treatment or a diagnosis of a chronic infection or any
problems with tonsillitis
6

since his discharge from service.” R. at 9. The Board also found that,
because the appellant “testified that he has not had any problems with his tonsils since he was started on medications by VA in 2002,” and because the record “does not show that any of the medications were prescribed for . . . any problems associated with tonsil infections,” there was “no competent evidence that the [appellant] has a disorder at present manifested by chronic tonsil infections.”
R. at 9-10.
The appellant argues that tonsillitis is a relatively simple condition,
that lay testimony is thus sufficient to establish a diagnosis of tonsillitis, and that the Board erroneously determined that his lay testimony was incompetent to establish a current diagnosis of tonsillitis. Appellant’s Br. at 11-13 (citing Jandreau v. Nicholson, 492 F.3d 1372, 1377 (2007), and Barr v. Nicholson, 21 Vet.App. 303, 308-10 (2007)).
He further argues that, because his tonsillitis might be asymptomatic, though still present, the Board failed to give an adequate statement of its reasons
or bases for determining that he has not suffered from tonsillitis since
he started taking medications in 2002. Appellant’s Br. at 14-19. He also argues that this finding amounts to the Board’s inappropriate exercise of its own medical judgment. Appellant’s Br. at 19-20 (citing Colvin v. Derwinski, 1 Vet.App. 171, 175 (1991)).
In response, the Secretary argues that the Board’s finding that there was
no current diagnosis of tonsillitis was plausible in light of the fact that the
appellant’s in-service diagnosis of tonsillitis was later changed to pharyngitis, that none of the appellant’s current medications were prescribed for tonsillitis, and that the appellant had testified that his tonsillitis had been “resolved.” Secretary’s Br. at 18.
The Secretary also asserts that, because tonsillitis and pharyngitis share very similar symptoms, medical evidence is required to distinguish between the
two and to firmly diagnose one rather than the other, and, thus, that the
appellant was incompetent to self-diagnose tonsillitis. Id. at 20.
In Jandreau, the U.S. Court of Appeals for the Federal Circuit explained
that sometimes a
lay person “will be competent to identify [a] condition where the
condition is simple, for example
a broken leg, and sometimes not, for example, a form of cancer.” 492 F.3d
1372 n.4. <b>This Court applied that explanation in Barr, ruling that lay claimants are competent to self-diagnose varicose veins because that condition is relatively simple. 21 Vet.App. at 309. The Court agrees with the
7

appellant that, like varicose veins, tonsillitis is a relatively simple
condition, and that a lay person is capable of self-diagnosing that condition. The Board, instead, appeared to assert a blanket rule that lay claimants are never able to self-diagnose their disabilities, or, alternatively, it discounted the appellant’s lay statements without explaining why it was doing so.</b> See
R. at 9 (“[H]e has not
presented any competent evidence showing . . . any problems associated
with Previous HittonsillitisNext Hit since his
discharge from service.”); see also Caluza, supra. The Court therefore
holds that the Board
failed to provide an adequate statement of the reasons or bases for its
decision.
That is not the end of the matter, as the Court is required to “take due
account of the rule
of prejudicial error.” 38 U.S.C. § 7261(b)(2). The Board also found in
its decision that the
appellant “testified that he has not had any problems with his tonsils
since he was started on
medications by VA in 2002.” R. at 9. Even if the Board is incorrect that
the appellant has never
presented competent evidence of a diagnosis of Previous HittonsillitisNext Hit, the above
finding may provide an
independent basis for the Board’s ultimate conclusion that there is no
current disability. The
appellant now argues that his testimony was incompetent to establish that
he no longer had
Previous HittonsillitisNext Hit, and that he may still have that disability, though it be
asymptomatic. The Court finds
this argument unpersuasive.
First, it seems paradoxical for the appellant to argue that he is
simultaneously competent
to self-diagnose Previous HittonsillitisNext Hit, rather than competent only to report
symptoms of a condition that
would still require medical expertise to firmly diagnose, but incompetent
to indicate that he no
longer suffers from that condition. Second, the appellant has not cited,
and the Court has not
been able to find, any evidence, either in the record or elsewhere, that
would indicate that
Previous HittonsillitisNext Hit may be present but asymptomatic.
The Board evidently reached a similar conclusion, which the Court does not
view as an
impermissible exercise of the Board’s own medical judgment, but rather a
commonsense analysis
of the appellant’s own testimony and the other evidence of record. Thus,
although the Board
committed a reasons-or-bases error in failing to recognize that the
appellant was competent to
self-diagnose Previous HittonsillitisNext Hit, the Court holds that the Board’s ultimate
conclusion that the appellant
has not established a current diagnosis of Previous HittonsillitisNext Hit has a plausible
basis in the record as a whole
and is not, therefore, clearly erroneous. See Gilbert, supra. The Court
thus holds that the
8

Board’s reasons or bases error was nonprejudicial. See Soyini v.
Derwinski, 1 Vet.App. 540, 546
(1991) (explaining that vacatur and remand is inappropriate where they ”
would result in this
Court’s unnecessarily imposing additional burdens on the BVA and [VA] with
no benefit flowing
to the veteran”).
III. CONCLUSION
Based on the foregoing analysis and a review of the record on appeal, that
part of the
Board’s February 26, 2007, decision denying service connection for a
dental disability is
VACATED, and the matter is REMANDED for further proceedings consistent
with this
decision.
That part of the Board’s decision denying service connection for
tonsillitis is
AFFIRMED.
DATED: May 11, 2009
Copies to:
Daniel G. Krasnegor, Esq.
VA General Counsel (027)
9

FedCir, Adams v. Shinseki, No. 2008-7162(June 15, 2009)

United States Court of Appeals for the Federal Circuit
2008-7162
LEE P. ADAMS,
Claimant-Appellant,
v.
ERIC K. SHINSEKI, Secretary of Veterans Affairs,
Respondent-Appellee.
Marshall O. Potter, Jr., of Vienna, Virginia, argued for claimant-appellant.
Meredyth Cohen Havasy, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, argued for respondent-appellee. With her on the brief were Jeanne E. Davidson, Director, and Martin F. Hockey, Jr., Assistant Director. Of counsel on the brief were David J. Barrans, Deputy Assistant General Counsel, and Amanda R. Blackmon, Attorney, United States Department of Veterans Affairs, of Washington, DC.
Appealed from: United States Court of Appeals for Veterans Claims
Judge Mary J. Schoelen
United States Court of Appeals for the Federal Circuit
2008-7162
LEE P. ADAMS,
Claimant-Appellant,
v.
ERIC K. SHINSEKI, Secretary of Veterans Affairs,
Respondent-Appellee.
Appeal from the United States Court of Appeals for Veterans Claims
in 06-0095, Judge Mary J. Schoelen
___________________________
DECIDED: June 15, 2009
___________________________
Before NEWMAN, SCHALL, and BRYSON, Circuit Judges.
BRYSON, Circuit Judge.
When a veteran files a claim for disability compensation, that claim is regarded as pending until it is acted upon by the Department of Veterans Affairs (“DVA”). In some instances in which a veteran files several claims, or in which the veteran’s claim is treated as constituting several separate claims, the DVA does not expressly act upon each of the claims. In that setting, it is necessary to decide whether the unaddressed claim is still pending or has been implicitly denied. The answer to that question is important because it can affect the effective date of the veteran’s claim and the
2008-7162 2
standard to be applied if the veteran seeks, at some later time, to reassert the claim that was not expressly resolved.
In this case, the Court of Appeals for Veterans Claims (“the Veterans Court”) held that a claim filed by the veteran, Lee P. Adams, was implicitly denied by a Veterans Administration regional office in 1951 and by the Board of Veterans’ Appeals in 1952. The court rejected Mr. Adams’s contention that the claim was never denied and therefore was still pending when Mr. Adams sought to reopen it in 1989. Mr. Adams now argues that the Veterans Court applied an incorrect legal standard in deciding that the Veterans Administration implicitly denied his claim in 1951 and 1952. We hold that the Veterans Court applied the correct standard, and we therefore affirm.
I
Mr. Adams served on active duty in the U.S. Air Force for approximately one month, from January 15, 1951, to February 16, 1951. A medical examination conducted when he entered the service did not disclose any heart abnormalities. Eleven days later, however, Mr. Adams was admitted to an Air Force hospital for evaluation of a heart murmur that was detected during a physical examination performed upon his arrival at an Air Force base in San Antonio, Texas. Mr. Adams was hospitalized for about two weeks and diagnosed with inactive rheumatic valvulitis with deformity in the aortic valve. He was also suffering from a respiratory infection at the time.
After Mr. Adams was released from the hospital, a military medical board determined that he had rheumatic heart disease that preexisted and was not aggravated by service. As a result of his heart condition, Mr. Adams was honorably discharged from the Air Force.
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On April 23, 1951, Mr. Adams filed an application with the Veterans Administration seeking disability compensation for what he termed “rheumatic heart.” In support of that claim, Mr. Adams submitted a medical report prepared by a private physician whom Mr. Adams consulted when he became ill again shortly after his discharge. The physician diagnosed Mr. Adams with “rheumatic valvular heart disease, aortic insufficiency, and mitral insufficiency,” as well as a fresh respiratory infection. In a June 1951 decision, a Veterans Administration regional office denied Mr. Adams’s claim for benefits on the ground that he had no active symptoms of “rheumatic valvulitis or associated disease” during his service.
Mr. Adams continued to complain of severe chills and fever, and on his physician’s recommendation he was hospitalized in a Veterans Administration facility from May to August 1951. A hospital report dated August 1951 listed two diagnoses: (1) “Rheumatic heart disease, active, aortic insufficiency, cardiac enlargement, myocardial disease, myocardial insufficiency,” and (2) “Subacute bacterial endocarditis, due to streptococcus mitis, secondary to [his rheumatic heart disease].” The regional office reviewed the hospital report but concluded that it did not contain any new and material evidence as to the issue of service connection for Mr. Adams’s heart condition. The regional office therefore again denied his claim for disability compensation.
On October 11, 1951, Mr. Adams submitted an affidavit to the regional office in which he referred to the hospital report and the diagnoses of rheumatic heart disease and subacute bacterial endocarditis listed in the report. The regional office reconsidered his claim for disability compensation based on the affidavit but again determined that no change in the previous disallowance decision was warranted.
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Mr. Adams appealed from the regional office’s decisions, contending that he was entitled to service connection for a “heart condition.” The Board of Veterans’ Appeals denied the appeal on March 4, 1952. The Board noted that it had considered the entire record, including the August 1951 hospital report and the October 1951 affidavit. The Board concluded that the “medical records do not disclose active rheumatic fever or other active cardiac pathology during service” and that Mr. Adams’s “rheumatic valvulitis” was incurred prior to and not aggravated during his military service.
Nearly 40 years later, on February 2, 1989, Mr. Adams submitted a request to reopen his claim for disability compensation based on additional medical evidence. The Board conducted a hearing and determined that the issue for consideration was more appropriately characterized as a claim for “entitlement to service connection for endocarditis residuals.” After further proceedings before the regional office, the Board on February 7, 1997, awarded Mr. Adams service connection for “heart disease, claimed as residuals of endocarditis, including heart valve damage.” Specifically, the Board found that Mr. Adams had congenital heart disease with a bicuspid aortic valve when he entered the service. That preexisting condition predisposed him to bacterial endocarditis, which the Board found he incurred while in the service and which resulted in additional heart valve damage. The regional office ultimately assigned an effective date for the grant of service connection of January 19, 1989, the date on which Mr. Adams was admitted to a veterans hospital for treatment of a heart condition. See 38 C.F.R. § 3.157(b)(1).
Dissatisfied with the effective date that was assigned to his award of benefits, Mr. Adams asked the Board to assign him an earlier effective date. The linchpin of Mr.
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Adams’s argument was that his 1951 claim for endocarditis remained pending until the Board’s 1997 decision that awarded him service connection for heart disease; for that reason, Mr. Adams contended, he was entitled to an effective date of February 17, 1951, the day after his separation from service. See 38 U.S.C. § 5110(a), (b)(1). The Board rejected that argument, concluding that there was no pending claim for service connection for heart disease after the Board’s 1952 decision.
Mr. Adams took an appeal to the Veterans Court, which accepted Mr. Adams’s argument that he had filed two distinct claims for service connection in 1951: a formal claim for rheumatic heart disease and an informal claim for endocarditis. Nonetheless, the court concluded that the regional office’s 1951 decision regarding Mr. Adams’s formal claim for rheumatic heart condition had implicitly denied Mr. Adams’s informal claim for service connection for endocarditis. The court therefore affirmed the Board’s denial of an effective date earlier than January 19, 1989, on the ground that Mr. Adams had no pending claim for service connection prior to that date. Mr. Adams appeals.
II
The rules for determining the effective date of a veteran’s claim for benefits are not in dispute. Generally, the effective date for an original claim is the date that the DVA receives the claim or the date that the entitlement to the benefit arose, whichever is later. 38 U.S.C. § 5110(a). If a veteran files a claim within one year after separation from service, the effective date of the claim is the day after the veteran’s discharge. Id. § 5110(b)(1). For an award based on a claim reopened after final adjudication, however, the effective date is typically the date that the DVA receives the request to reopen the claim (as opposed to the date of receipt of the original claim) or the date that
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the entitlement to benefits arose, whichever is later. Id. § 5110(a); 38 C.F.R. § 3.400(q)(2), (r); see generally Livesay v. Principi, 15 Vet. App. 165, 171-72 (2001).
A claim for benefits, whether formal or informal, remains pending until it is finally adjudicated. 38 C.F.R. § 3.160(c); see Richardson v. Nicholson, 20 Vet. App. 64, 72 n.8 (2006). A claim will also be considered to be pending if the DVA has failed to notify the claimant of the denial of his claim or of his right to appeal an adverse decision. Cook v. Principi, 318 F.3d 1334, 1340 (Fed. Cir. 2002) (en banc). If a claim is left pending, it can be addressed when a subsequent claim for the same disability is adjudicated by the DVA, in which case the effective date for any award of benefits will be the effective date applicable to the original claim. See Myers v. Principi, 16 Vet. App. 228, 236 (2002).
The dispute in this case turns on whether Mr. Adams’s informal claim for service connection for endocarditis was denied by the regional office in October 1951. If the regional office considered and denied the endocarditis claim in 1951, that claim became final after the Board’s 1952 affirmance, and Mr. Adams is not entitled to an effective date of 1951 for his endocarditis claim. However, if the regional office did not adjudicate the endocarditis claim in 1951, that claim remained pending when Mr. Adams filed the renewed claim in 1987 that ultimately led to the award of benefits. In the latter case, Mr. Adams would be entitled to an effective date of 1951, the year in which he was discharged from service and in which he made his original claim for benefits.
Applying our decision in Deshotel v. Nicholson, 457 F.3d 1258 (Fed. Cir. 2006), and its own decision in Ingram v. Nicholson, 21 Vet. App. 232 (2007), the Veterans Court found that the 1951 endocarditis claim was implicitly denied as part of the action
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the Veterans Administration took on his related claim for rheumatic heart disease. For that reason, the Veterans Court concluded that Mr. Adams was not entitled to a 1951 effective date for his claim. Because, with the exception of constitutional issues, we cannot review decisions of the Veterans Court with respect to factual issues or the application of law to fact, 38 U.S.C. § 7292(d)(2), the principal question before us is whether the Veterans Court applied the correct legal standard when it determined that the Veterans Administration implicitly denied the 1951 endocarditis claim.
A
The “implicit denial” rule provides that, in certain circumstances, a claim for benefits will be deemed to have been denied, and thus finally adjudicated, even if the DVA did not expressly address that claim in its decision. One such circumstance is illustrated by our decision in Deshotel. Mr. Deshotel filed a claim in 1984 for disability compensation for the residuals of a head injury. The regional office issued a decision in 1985 granting service connection for head trauma. Although the regional office did not explicitly decide Mr. Deshotel’s claim for compensation based on a psychiatric disability, it noted that Mr. Deshotel’s physical examination showed no evidence of a psychiatric condition. In 1999, Mr. Deshotel sought disability compensation for a psychiatric condition secondary to his head trauma. The regional office treated that application as a request to reopen based on new and material evidence, and it awarded service connection for the psychiatric condition with an effective date of 1999.
Mr. Deshotel appealed, seeking to have the date on which he filed his 1984 application declared the effective date for his compensation benefits. He argued that the DVA was required to treat his initial application as including an informal claim for a
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psychiatric condition and that his psychiatric claim remained open because the regional office did not explicitly address that claim in its 1985 decision. We rejected that argument and ruled that the 1985 decision constituted a final adjudication of the psychiatric claim under the implicit denial rule. We explained: “Where the veteran files more than one claim with the RO at the same time, and the RO’s decision acts (favorably or unfavorably) on one of the claims but fails to specifically address the other claim, the second claim is deemed denied, and the appeal period begins to run.” 457 F.3d at 1261.
In Ingram v. Nicholson, the Veterans Court elaborated on the test set forth in Deshotel for determining when a claim not expressly addressed by the DVA will be deemed to have been denied. Mr. Ingram filed a claim in 1986 for non-service-connected pension benefits after his lung was removed at a veterans hospital. The regional office denied that claim because it concluded that Mr. Ingram’s condition was not shown to be permanent. In 1992, Mr. Ingram filed a claim for benefits under 38 U.S.C. § 1151, which provides benefits to veterans injured by DVA hospital, medical, or surgical care. He asserted that he had developed an esophageal leak as a result of the lung-removal surgery. The Board awarded him compensation under section 1151, but it denied his request for an effective date earlier than 1992 because it concluded that his 1986 application for pension benefits did not also include a claim for benefits under section 1151.
On appeal, the Veterans Court characterized the issue as whether the regional office implicitly denied any claim under section 1151 when it adjudicated his claim for pension benefits but did not explicitly address section 1151. Ingram, 21 Vet. App. at
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243. Citing Deshotel, the Secretary argued that whenever multiple claims are filed at the same time an adjudication of one claim without mention of the other necessarily results in an adjudication of the second claim, regardless of the nature of the claims made or the type of benefits sought. The Veterans Court rejected that interpretation of Deshotel as overly broad and held that the regional office’s decision granting Mr. Ingram’s claim for pension benefits did not implicitly deny his section 1151 claim.
The court held that, unlike the claims at issue in Deshotel, Mr. Ingram’s section 1151 claim was “in no way related to” his claim for non-service-connected pension; instead, each of his claims was “separately statutorily based and defined.” Ingram, 21 Vet. App. at 247. Moreover, while the regional office’s original decision denied Mr. Ingram’s claim for pension benefits because he did not establish that he was permanently disabled, an award of disability compensation under section 1151 does not require that a disability be permanent. Thus, the regional office’s explanation of its rejection of Mr. Ingram’s non-service-connection claim for pension benefits did not give Mr. Ingram reasonable notice that it was also rejecting his claim for disability compensation under section 1151. Consequently, the Veterans Court held that the regional office’s 1986 decision did not constitute an implicit denial of any pending section 1151 claim. Id. at 247-48, 255.
B
Mr. Adams does not take issue with the implicit denial rule applied in Deshotel and Ingram. Rather, he asserts that the Veterans Court misinterpreted those decisions and therefore used an incorrect legal standard when it applied the implied denial rule in this case. We disagree. Nothing in the Veterans Court’s decision in this case suggests
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that it departed from the rationale of the implicit denial rule or that it failed to focus on the proper considerations bearing on the application of that rule in settings such as the one in this case.
Mr. Adams contends that Deshotel stands for the proposition that “claims must have been made at the same time in order for one to be ‘deemed denied’ when the other was acted on.” Because the formal and informal claims in this case were not filed simultaneously, he argues that under Deshotel the informal claim, as a matter of law, cannot have been implicitly denied when the formal claim was denied.
That argument is based on a basic flaw in reasoning. The veteran in Deshotel was considered to have filed more than one claim at the same time. In that setting, the court held that when the regional office acted on one of the claims, the second claim was deemed denied and the appeal period began to run. 457 F.3d at 1261. But in this instance, as in many others, the inverse of a true proposition is not necessarily true. See Capitol Records, Inc. v. Naxos of Am., Inc., 372 F.3d 471, 480 (2d Cir. 2004). Thus, the fact that the claims were not filed at the same time does not mean that the implicit denial rule does not apply.
Based on its prior decision in Ingram, the Veterans Court held that when a regional office decision “discusses a claim in terms sufficient to put the claimant on notice that it was being considered and rejected, then it constitutes a denial of that claim even if the formal adjudicative language does not ‘specifically’ deny that claim.” Adams v. Peake, No. 06-0095, slip op. at 5 (Vet. App. Feb. 20, 2008), quoting from Ingram, 21 Vet. App. at 255. That principle is consistent with the decision in Deshotel, and when applied to cases in which the DVA’s decision is clear but not expressed, it reflects an
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appropriate balance between the interest in finality and the need to provide notice to veterans when their claims have been decided.
In applying the implicit denial rule, the Veterans Court properly looked first to the language of the Veterans Administration’s 1951 and 1952 decisions to determine whether they provided sufficient information for a reasonable claimant to know that he would not be awarded benefits for his asserted disability. The court pointed out that the October 1951 decision denying Mr. Adams’s application for benefits specifically stated that the regional office had considered his affidavit, which expressly referred to both rheumatic heart disease and subacute bacterial endocarditis. Thus, although the 1951 decision expressly addressed only Mr. Adams’s formal claim for rheumatic heart disease, the court held that the decision alluded to the underlying claims in a manner that put Mr. Adams on notice that his informal claim for bacterial endocarditis based on the referenced affidavit was also denied. Moreover, as the court further explained, Mr. Adams’s appeal to the Board referred to his “heart condition,” a general characterization that encompassed both his rheumatic heart disease and bacterial endocarditis claims. And in its decision, the Board explicitly noted that it had reviewed Mr. Adams’s hospital reports and his affidavit, but found that those records “do not disclose active rheumatic fever or other active cardiac pathology during service” (emphasis added). Applying the Ingram standard, the court held that in those circumstances the regional office’s decisions in 1951 and the Board’s decision in 1952 “reasonably informed the appellant that a claim for any heart condition, including endocarditis, was denied.” Adams, slip op. at 6.
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The facts of Deshotel are similar in this regard. In Deshotel, the regional office noted, when it granted service connection for a head injury, that the claimant’s medical examination showed no evidence of psychiatric symptomatology. Under those circumstances, a reasonable veteran would have known that his claim for disability compensation for a psychiatric condition was denied.
Another factor bearing on whether an adjudication that specifically addresses one claim implicitly denies another is the relatedness of the claims. The conditions for which Mr. Adams sought service connection in 1951 are closely related. Rheumatic heart disease and bacterial endocarditis both affect heart valves, and bacterial endocarditis is frequently associated with rheumatic heart disease because the damage to heart valves caused by rheumatic valvulitis predisposes them to infection. Furthermore, the hospital report considered by the regional office and the Board explicitly referred to Mr. Adams’s bacterial endocarditis as “secondary” to his rheumatic heart disease.
Once again, the facts of Deshotel are similar. The claimant sought service connection for two conditions that were closely related: a head injury, and a psychiatric disability resulting from that head injury. By contrast, the court in Ingram noted that the claimant’s section 1151 service connection claim was unrelated to his claim for non-service-connected pension benefits.
The timing of the claims is also highly significant. As noted, in Deshotel we applied the implicit denial rule in a situation in which the veteran was deemed to have filed more than one claim at the same time and the regional office’s decision specifically adjudicated one claim but failed to address the other. 457 F.3d at 1261. In this case,
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although Mr. Adams’s informal claim for bacterial endocarditis was filed roughly six months after he filed his initial claim for service connection for rheumatic heart, the two claims were closely associated both in time and in the manner in which they were presented to the Veterans Administration.
When we addressed the specific case of claims filed at the same time in Deshotel, we did not suggest that the implicit denial rule is limited to situations in which the veteran files multiple claims in a single application. As the Veterans Court noted in Ingram, veterans benefits litigation typically proceeds in a piecemeal fashion. 21 Vet. App. at 253. The regional office attaches a single file number to all claims filed by a claimant, even if those claims are filed at different times. And claimants typically do not submit information in a single document, but “submit a continuous stream of evidence and correspondence” that may be pertinent to one or more claims. Id. at 254. That is particularly true in the case of informal claims for benefits, which can be based upon “any communication or action” indicating an intent to apply for benefits, even correspondence that does not come from the claimant himself. See 38 C.F.R. § 3.155(a); see also Moody v. Principi, 360 F.3d 1306, 1310 (Fed. Cir. 2004) (discussing the DVA’s duty to determine all potential claims raised by the evidence).
Any interpretation of the implicit denial rule that rests on a requirement that the veteran’s claims be filed simultaneously in a single document ignores the fact that veterans can submit information pertaining to a single claim at different times, and that the regional office often adjudicates distinct claims that were filed at different times in a single decision. As the Veterans Court noted in Ingram and in this case, the key question in the implicit denial inquiry is whether it would be clear to a reasonable person
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that the DVA’s action that expressly refers to one claim is intended to dispose of others as well.
Mr. Adams contends that his case is distinguishable from Deshotel because in that case the veteran failed to appeal a decision by the regional office to the Board, whereas in this case, he timely appealed the regional office’s denial of his claim. As the Veterans Court explained, however, that distinction is meaningless. The implicit denial rule is not limited to cases in which the veteran failed to appeal a decision to the Board. Rather, the implicit denial rule applies where a regional office’s decision provides a veteran with reasonable notice that his claim for benefits was denied. Whether or not the regional office’s decision was appealed has no bearing on the reasonableness of the notice afforded by that decision. In sum, we reject Mr. Adams’s contention that the Veterans Court’s decision in this case departed from the proper standard for applying the implicit denial rule, as set forth and applied in Deshotel and Ingram.
III
Mr. Adams further contends that the Veterans Court’s application of the implicit denial rule violated his due process right to receive fair notice of the regional office’s decision denying his claim for benefits. We reject that argument. As discussed above, the implicit denial rule is, at bottom, a notice provision. In this case, the regional office’s decision put Mr. Adams on notice that his claim for service connection for bacterial endocarditis was denied. Because Mr. Adams received adequate notice of, and an opportunity to respond to, the regional office’s decision, he was not deprived of any due process rights that he asserts were implicated by his application for benefits.
Each party shall bear its own costs for this appeal.
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AFFIRMED.

Shinseki v. Sanders, No. 07-1209

1
(Slip Opinion) OCTOBER TERM, 2008
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as isbeing done in connection with this case, at the time the opinion is issued.The syllabus constitutes no part of the opinion of the Court but has beenprepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
SHINSEKI, SECRETARY OF VETERANS AFFAIRS v.
SANDERS
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT
No. 07–1209. Argued December 8, 2008—Decided April 21, 2009*
As part of the Department of Veterans Affairs’ (VA) statutory duty to help a veteran develop a benefits claim, the Secretary of Veterans Affairs (Secretary) must notify an applicant of any information or evidence that is necessary to substantiate the claim. 38 U. S. C. §5103(a). VA regulations require the notice to specify (1) what further information is necessary, (2) what portions of that informationthe VA will obtain, and (3) what portions the claimant must obtain.These requirements are referred to as Type One, Type Two, and Type Three, respectively.The Court of Appeals for Veterans Claims (Veterans Court), which hears initial appeals from VA claims decisions, has a statutory dutyto “take due account of the rule of prejudicial error.” §7261(b)(2). It has developed a system for dealing with notice errors, whereby a claimant arguing that the VA failed to give proper notice must explain precisely how the notice was defective. The reviewing judgewill then decide what “type” of notice error the VA committed. Under the Veterans Court’s approach, a Type One error has the “natural effect” of harming the claimant, but Types Two and Three errors do not. In the latter instances, the claimant must show harm, e.g., bydescribing what evidence he would have provided (or asked the Secretary to provide) had the notice not been defective, and explainingjust how the lack of that notice and evidence affected the adjudication’s essential fairness.
The Federal Circuit, which reviews Veterans Court decisions, re—————— *Together with Shinseki, Secretary of Veterans Affairs v. Simmons, also on certiorari to the same court (see this Court’s Rule 12.4).
2 SHINSEKI v. SANDERS
Syllabus
jected the Veterans Court’s approach and set forth its own framework for determining whether a notice error is harmless. When the VA provides a claimant with a notice that is deficient in any respect, the framework requires the Veterans Court to presume that the error is prejudicial and requires reversal unless the VA can demonstrate (1) that the defect was cured by the claimant’s actual knowledge or (2) that benefits could not have been awarded as a matter of law. The Federal Circuit applied its framework in both of the present cases.
In respondent Sanders’ case, the VA denied disability benefits onthe ground that Sanders’ disability, blindness in his right eye, wasnot related to his military service. Sanders argued to the VeteransCourt that the VA had made notice errors Type Two and Type Three when it informed him what further information was necessary, but failed to tell him which portions of that information the Secretary would provide and which portions he would have to provide. The Veterans Court held these notice errors harmless, but the Federal Circuit reversed, ruling that the VA had not made the necessary claimant-knowledge or benefits-ineligibilty showing required by the Federal Circuit’s framework.
The VA also denied benefits in respondent Simmons’ case after finding that her left-ear hearing loss, while service connected, wasnot severe enough to warrant compensation. Simmons argued to the Veterans Court, inter alia, that the VA had made a Type One noticeerror by failing to notify her of the information necessary to show worsening of her hearing. The court agreed, finding the error prejudicial. Noting that a Type One notice error has the “natural effect” of producing prejudice, the Veterans Court added that its review of the record convinced it that Simmons did not have actual knowledge ofwhat evidence was necessary to substantiate her claim and, had theVA told her more specifically what additional information was needed, she might have obtained that evidence. The Federal Circuit affirmed.
Held:
1. The Federal Circuit’s harmless-error framework conflicts with §7261(b)(2)’s requirement that the Veterans Court take “due account of the rule of prejudicial error.” Pp. 8–15.
(a)
That §7261(b)(2) requires the same sort of “harmless-error”rule as is ordinarily applied in civil cases is shown by the statutorywords “take due account” and “prejudicial error.” Congress used the same words in the Administrative Procedure Act (APA), 5 U. S. C. §706, which is an “ ‘administrative law . . . harmless error rule,’ ” National Assn. of Home Builders v. Defenders of Wildlife, 551 U. S. 644, ___. Legislative history confirms that Congress intended §7261(b)(2)to incorporate the APA’s approach. Pp. 8–9.
Cite as: 556 U. S. ____ (2009) 3
Syllabus
(b)
Three related features, taken together, demonstrate that the Federal Circuit’s framework mandates an approach to harmless error that differs significantly from the one normally taken in civil cases.First, the framework is too complex and rigid: In every case involving any type of notice error, the Veterans Court must find the error harmful unless the VA demonstrates the claimant’s actual knowledge curing the defect or his ineligibility for benefits as a matter of law.An error’s harmlessness should not be determined through the use of mandatory presumptions and rigid rules, but through the casespecific application of judgment, based upon examination of the record. See Kotteakos v. United States, 328 U. S. 750, 760. Second, the framework imposes an unreasonable evidentiary burden on the VA,requiring the Secretary to demonstrate, e.g., a claimant’s state of mind about what he knew or the nonexistence of evidence that might significantly help the claimant. Third, the framework requires theVA, not the claimant, to explain why the error is harmless. The burden of showing harmfulness is normally on the party attacking anagency’s determination. See, e.g., Palmer v. Hoffman, 318 U. S. 109,
116. This Court has placed the burden on the Government only whenthe underlying matter was criminal. See, e.g., Kotteakos, supra, at
760. The good reasons for this rule do not apply in the ordinary civil case. Pp. 9–13.
(c) The foregoing analysis is subject to two important qualifications. First, the Court need not, and does not, decide the lawfulness of the Veterans Court’s reliance on the “natural effects” of certain kinds of notice errors. Second, although Congress’ special solicitude for veterans might lead a reviewing court to consider harmful in a veteran’s case error that it might consider harmless in other cases,that is not at issue, and need not be decided here. Pp. 13–15.
2. In Sanders’ case, a review of the record demonstrates that the Veterans Court lawfully found the notice errors harmless. The VA’s Types Two and Three notice errors did not matter, given that Sanders has pursued his claim for many years and should be aware of whyhe has been unable to show that his disability is service connected. Sanders has not told the reviewing courts what additional evidenceproper notice would have led him to obtain or seek and has not explained how the notice errors could have made any difference.
In Simmons’ case, some features of the record suggest that the VA’sType One error was harmless, e.g., that she has long sought benefits and has a long history of medical examinations. But other features, e.g., that her left-ear hearing loss was concededly service connectedand has continuously deteriorated over time, suggest the opposite.Given the uncertainties, the Veterans Court should decide whether reconsideration is necessary. Pp. 15–17.
4 SHINSEKI v. SANDERS
Syllabus
487 F. 3d 881, reversed and remanded; 487 F. 3d 892, vacated and remanded.
BREYER, J., delivered the opinion of the Court, in which ROBERTS,
C. J., and SCALIA, KENNEDY, THOMAS, and ALITO, JJ., joined. SOUTER, J., filed a dissenting opinion, in which STEVENS and GINSBURG, JJ., joined.
_________________
_________________
Cite as: 556 U. S. ____ (2009) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in thepreliminary print of the United States Reports. Readers are requested tonotify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in orderthat corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
No. 07–1209
ERIC K. SHINSEKI, SECRETARY OF VETERANS
AFFAIRS, PETITIONER v. WOODROW F. SANDERS
ERIC K. SHINSEKI, SECRETARY OF VETERANS
AFFAIRS, PETITIONER v. PATRICIA D. SIMMONS
ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT
[April 21, 2009]
JUSTICE BREYER delivered the opinion of the Court.
In these two civil cases, the Department of VeteransAffairs (VA) denied veterans’ claims for disability benefits. In both cases the VA erroneously failed to provide the veteran with a certain kind of statutorily required notice.See 38 U. S. C. §5103(a). In both cases the VA argued that the error was harmless. And in both cases the Court of Appeals for the Federal Circuit, after setting forth a framework for determining whether a notice error is harmless, rejected the VA’s argument.
In our view, the Federal Circuit’s “harmless-error” framework is too complex and rigid, its presumptions impose unreasonable evidentiary burdens upon the VA,and it is too likely too often to require the Court of Appeals for Veterans Claims (Veterans Court) to treat as harmful errors that in fact are harmless. We conclude that the framework conflicts with established law. See §7261(b)(2) (Veterans Court must “take due account of the rule of prejudicial error”).
2 SHINSEKI v. SANDERS
Opinion of the Court
I
A
The law entitles veterans who have served on active duty in the United States military to receive benefits for disabilities caused or aggravated by their military service. The Veterans Claims Assistance Act of 2000 requires the VA to help a veteran develop his or her benefits claim. §5103A. In doing so, the Secretary of Veterans Affairs (Secretary), upon “receipt of” an “application” for benefits, must “notify the claimant . . . of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim.” As “part of” the required “notice,” the Secretary must also “indicate which portion of” the required “information and evidence . . . is to be provided by the claimant and which portion . . . the Secretary . . . will attempt to obtain.” §5103(a).
Repeating these statutory requirements in its regulations, the VA has said it will provide a claimant with a letter that tells the claimant (1) what further information is necessary to substantiate his or her claim; (2) what portions of that information the VA will obtain for the claimant; and (3) what portions the claimant must obtain. 38 CFR §3.159(b) (2008). At the time of the decisions below, the regulations also required the VA to tell the claimant (4) that he may submit any other relevant information that he has available. §3.159(b)(1). (The VA refers to these notice requirements as Type One, Type Two, Type Three, and Type Four, respectively.)
B The VA’s regional offices decide most claims. A claimant may appeal an adverse regional office decision to the VA’s Board of Veterans’ Appeals, an administrative board with the power to consider certain types of new evidence.
Cite as: 556 U. S. ____ (2009) 3
Opinion of the Court
38 U. S. C. §§7107(b), 7109(a); 38 CFR §20.1304(c). The claimant may seek review of an adverse Board decision inthe Veterans Court, an Article I court. And the claimant (or the Government) may appeal an adverse decision of the Veterans Court to the Court of Appeals for the Federal Circuit—but only in respect to certain legal matters,namely, “the validity . . . of any statute or regulation . . . orany interpretation thereof . . . that was relied on” by theVeterans Court in making its decision. 38 U. S. C. §7292.
A specific statute requires the Veterans Court to “takedue account of the rule of prejudicial error.” §7261(b)(2).In applying this statutory provision, the Veterans Court has developed its own special framework for notice errors. Under this framework, a claimant who argues that the VAfailed to give proper notice must explain precisely how the notice was defective. Then the reviewing judge will decidewhat “type” of notice error the VA committed. The Veterans Court has gone on to say that a Type One error (i.e., a failure to explain what further information is needed) hasthe “natural effect” of harming the claimant; but errors of Types Two, Three, or Four (i.e., a failure to explain justwho, claimant or agency, must provide the needed material or to tell the veteran that he may submit any other evidence available) do not have the “natural effect” ofharming the claimant. In these latter instances, the claimant must show how the error caused harm, for example, by stating in particular just “what evidence” he would have provided (or asked the Secretary to provide)had the notice not been defective, and explaining just “how the lack of that notice and evidence affected the essential fairness of the adjudication.” Mayfield v. Nicholson, 19 Vet. App. 103, 121 (2005).
C In the first case, Woodrow Sanders, a veteran of World War II, claimed that a bazooka exploded near his face in
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1944, causing later blindness in his right eye. His wartime medical records, however, did not indicate any eyeproblems. Indeed, his 1945 discharge examination showednear-perfect vision. But a 1948 eye examination revealedan inflammation of the right-eye retina and surrounding tissues—a condition that eventually left him nearly blind in that eye. Soon after the examination Sanders filed a claim for disability benefits. But in 1949 the VA denied benefits on the ground that Sanders had failed to show a connection between his eye condition and his earlier military service.
Forty-two years later, Sanders asked the VA to reopenhis benefits claim. He argued that the 1944 bazookaexplosion had hurt his eye, and added that that he had begun to experience symptoms—blurred vision, swelling, and loss of sight—in 1946. He included a report from aVA doctor, Dr. Joseph Ruda, who said that “[i]t is notinconceivable that” the condition “could have occurred secondary to trauma, as stated by” Sanders. A privateophthalmologist, Dr. Gregory Strainer, confirming thatSanders’ right retina was scarred, added that this “[t]ype of . . . injury . . . can certainly be concussive in character.” App. C to Pet. for Cert. 26a–27a.
In 1992, the VA reopened Sanders’ claim. Id., at 29a. After obtaining Sanders’ military medical records, the VA arranged for a further medical examination, this time byVA eye specialist Dr. Sheila Anderson. After examining Sanders’ medical history (including records of the examinations made at the time of Sanders’ enlistment and discharge), Anderson agreed with the medical diagnosisbut concluded that Sanders’ condition was not service related. Since Sanders’ right-eye “visual acuity” was“20/20” upon enlistment and “20/25” upon discharge, andhe had “reported decreased vision only 6 months prior” to his 1948 doctor’s “visit,” and since “there are no other signs of ocular trauma,” Anderson thought that Sanders’
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condition “is most likely infectious in nature, although the etiology at this point is impossible to determine.” “Based on the documented records,” she concluded, “the patientdid not lose vision while on active duty.” The VA regional office denied Sanders’ claim. Ibid.
Sanders sought Board review, and in the meantime he obtained the opinion of another VA doctor, Dr. Duane Nii, who said that the “etiology of the patient’s” eye condition “is . . . difficult to ascertain.” He thought that “it is possible that” the condition “could be related to” a bazooka explosion, though the “possibility of” an infection “as the etiology . . . could also be entertained.” Id., at 30a. The Board concluded that Sanders had failed to show that the eye injury was service connected. The Board said that it had relied most heavily upon Anderson’s report because, unlike other reports, it took account of Sanders’ military medical records documenting his eyesight at the time of his enlistment and discharge. And the Board consequently affirmed the regional office’s denial of Sanders’ claim.
Sanders then appealed to the Veterans Court. There he argued, among other things, that the VA had made anotice error. Sanders conceded that the VA had sent him a letter telling him (1) what further information wasnecessary to substantiate his claim. But, he said, the VA letter did not tell him (2) which portions of the information the Secretary would provide or (3) which portions he would have to provide. That is to say, he complained about notice errors Type Two and Type Three.
The Veterans Court held that these notice errors were harmless. It said that Sanders had not explained how he would have acted differently, say, by identifying whatdifferent evidence he would have produced or asked theSecretary to obtain for him, had he received proper notice. Finding no other error, the Veterans Court affirmed theBoard’s decision.
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D The Court of Appeals for the Federal Circuit reviewedthe Veterans Court’s decision and held that the Veterans Court was wrong to find the notice error harmless. The Federal Circuit wrote that when the VA provides a claimant with a notice letter that is deficient in any respect (tothe point where a “reasonable person” would not have readit as providing the necessary information), the VeteransCourt “should . . . presum[e]” that the notice error is “prejudicial, requiring reversal unless the VA can show that the error did not affect the essential fairness of the adjudication.” Sanders v. Nicholson, 487 F. 3d 881, 889 (2007). To make this latter showing, the court added, the VA must “demonstrate” (1) that the “defect was cured byactual knowledge on the” claimant’s “part,” or (2) “that a benefit could not have been awarded as a matter of law.” Ibid. Because the VA had not made such a showing, theFederal Circuit reversed the Veterans Court’s decision.
E In the second case before us, the claimant, Patricia Simmons, served on active military duty from December 1978 to April 1980. While on duty she worked in a noisy environment close to aircraft; after three months she began to lose hearing in her left ear; and by the time she was discharged, her left-ear hearing had become worse.Soon after her discharge, Simmons applied for disability benefits. The VA regional office found her hearing losswas service connected; but it also found the loss insufficiently severe to warrant compensation. In November 1980, it denied her claim. In 1998, Simmons asked the VA to reopen her claim.She provided medical examination records showing further loss of hearing in her left ear along with (what she considered related) loss of hearing in her right ear. The VA arranged for hearing examinations by VA doctors in
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1999, 2001, and 2002. The doctors measured her left-ear hearing loss, ranking it as moderate to severe; they alsomeasured her right-ear hearing loss, ranking it as mild to moderate. After comparing the results of the examinations with a VA hearing-loss compensation schedule, the regional office concluded that Simmons’ left-ear hearing loss, while service connected, was not severe enough towarrant compensation. At the same time, the regional office concluded that her right-ear hearing loss was neither service connected nor sufficiently severe. Simmons appealed the decision to the Board, which affirmed theregional office’s determination.
In 2003, Simmons appealed to the Veterans Court.Among other things, she said that she had not received anotice about (and she consequently failed to attend) afurther right-ear medical examination that the VA latertold her it had arranged. She added that, in respect to herclaim for benefits for loss of hearing in her left ear, the VA had made a Type One notice error (i.e., it had failed to tell her what further information was needed to substantiate her claim). Simmons conceded that she had received aletter from the VA. But the letter told her only what, ingeneral, a person had to do to show that a hearing injury was service connected. It did not tell her anything about her specific problem, namely, what further informationshe must provide to show a worsening of hearing in her left ear, to the point where she could receive benefits.
The Veterans Court agreed with Simmons, and it found both errors prejudicial. In respect to Simmons’ left-earhearing loss (the matter at issue here), it pointed out that it had earlier said (in Mayfield, 19 Vet. App., at 120–124)that a Type One notice error has the “natural effect of producing prejudice.” The court added that its “revie[w] [of] the record in its entirety” convinced it that Simmons did not have “actual knowledge of what evidence wasnecessary to substantiate her claim” and, had the VA told
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Simmons more specifically about what additional medical information it needed, Simmons might have “obtained” afurther “private” medical “examination substantiating her claim.” App. G to Pet. for Cert. 81a. The Veterans Court consequently remanded the case to the Board.
The Government appealed the Veterans Court’s determination to the Court of Appeals for the Federal Circuit. And that court affirmed the Veterans Court’s decision on the basis of its decision in Sanders. Simmons v. Nicholson, 487 F. 3d 892 (2007).
F We granted certiorari in both Sanders’ and Simmons’ cases in order to determine the lawfulness of the Federal Circuit’s “harmless-error” holdings.
II The Federal Circuit’s holdings flow directly from its useof the “harmless-error” framework that we have described. Supra, at 6. Thus we must decide whether that framework is consistent with a particular statutory requirement, namely, the requirement that the Veterans Court“take due account of the rule of prejudicial error,”38 U. S. C. §7261(b)(2). See supra, at 3. We conclude that the framework is not consistent with the statutory demand.
A We believe that the statute, in stating that the VeteransCourt must “take due account of the rule of prejudicial error,” requires the Veterans Court to apply the same kindof “harmless-error” rule that courts ordinarily apply incivil cases. The statutory words “take due account” and“prejudicial error” make clear that is so. Congress usedthe same words in the Administrative Procedure Act (APA). 5 U. S. C. §706 (“[A] court shall review the whole record . . . and due account shall be taken of the rule of
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prejudicial error”). The Attorney General’s Manual on the Administrative Procedure Act explained that the APA’sreference to “prejudicial error” is intended to “su[m] up in succinct fashion the ‘harmless error’ rule applied by the courts in the review of lower court decisions as well as of administrative bodies.” Dept. of Justice, Attorney General’s Manual on the Administrative Procedure Act 110 (1947) (emphasis added). And we have previously described §706 as an “‘administrative law . . . harmless error rule.’” National Assn. of Home Builders v. Defenders of Wildlife, 551 U. S. 644, ___ (2007) (slip op., at 12) (quoting PDK Labs. Inc. v. United States Drug Enforcement Admin., 362 F. 3d 786, 799 (CADC 2004)). Legislativehistory confirms that Congress intended the VeteransCourt “prejudicial error” statute to “incorporate a reference” to the APA’s approach. S. Rep. No. 100–418, p. 61 (1988). We have no indication of any relevant distinction between the manner in which reviewing courts treat civil and administrative cases. Consequently, we assess the lawfulness of the Federal Circuit’s approach in light of our general case law governing application of the harmlesserror standard.
B Three related features of the Federal Circuit’s framework, taken together, convince us that it mandates anapproach to harmless error that differs significantly fromthe approach courts normally take in ordinary civil cases. First, the framework is complex, rigid, and mandatory. In every case involving a notice error (of no matter whichkind) the Veterans Court must find the error harmful unless the VA “demonstrate[s]” (1) that the claimant’s “actual knowledge” cured the defect or (2) that the claimant could not have received a benefit as a matter of law. Suppose the notice error, as in Sanders’ case, consisted ofa failure to describe what additional information, if any,
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the VA would provide. It might be obvious from the record in the particular case that the error made no difference.But under the Federal Circuit’s rule, the Veterans Court would have to remand the case for new proceedingsregardless.
We have previously warned against courts’ determining whether an error is harmless through the use of mandatory presumptions and rigid rules rather than case-specific application of judgment, based upon examination of therecord. See Kotteakos v. United States, 328 U. S. 750, 760 (1946). The federal “harmless-error” statute, now codified at 28 U. S. C. §2111, tells courts to review cases for errors of law “without regard to errors” that do not affect the parties’ “substantial rights.” That language seeks toprevent appellate courts from becoming “‘impregnablecitadels of technicality, ’” Kotteakos, 328 U. S., at 759. And we have read it as expressing a congressional preferencefor determining “harmless error” without the use of presumptions insofar as those presumptions may lead courtsto find an error harmful, when, in fact, in the particularcase before the court, it is not. See id., at 760; O’Neal v. McAninch, 513 U. S. 432, 436–437 (1995); see also R. Traynor, The Riddle of Harmless Error 26 (1970) (hereinafter Traynor) (reviewing court normally should “determine whether the error affected the judgment . . . withoutbenefit of such aids as presumptions . . . that expedite factfinding at trial”).
The Federal Circuit’s presumptions exhibit the verycharacteristics that Congress sought to discourage. In the cases before us, they would prevent the reviewing court from directly asking the harmless-error question. Theywould prevent that court from resting its conclusion on the facts and circumstances of the particular case. And theywould require the reviewing court to find the notice errorprejudicial even if that court, having read the entire record, conscientiously concludes the contrary.
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Second, the Federal Circuit’s framework imposes anunreasonable evidentiary burden upon the VA. How is the Secretary to demonstrate, in Sanders’ case for example,that Sanders knew that he, not the VA, would have to produce more convincing evidence that the bazooka accident caused his eye injury? How could the Secretary demonstrate that there is no evidence anywhere thatwould entitle Sanders to benefits? To show a claimant’s state of mind about such a matter will often prove difficult, perhaps impossible. And even if the VA (as in Sanders’ case) searches the military records and comes up emptyhanded, it may still prove difficult, or impossible, to prove the nonexistence of evidence lying somewhere about that might significantly help the claimant.
We have previously pointed out that setting an evidentiary “barrier so high that it could never be surmounted would justify the very criticism that spawned the harmless-error doctrine,” namely, reversing for error “‘regardless of its effect on the judgment.’” Neder v. United States, 527 U. S. 1, 18 (1999) (quoting Traynor 50). The Federal Circuit’s evidentiary rules increase the likelihood of reversal in cases where, in fact, the error is harmless. And, as we pointed out in Neder, that likelihood encourages abuse of the judicial process and diminishes the public’s confidence in the fair and effective operation of the judicial system. 527 U. S., at 18.
Third, the Federal Circuit’s framework requires the VA,not the claimant, to explain why the error is harmless.This Court has said that the party that “seeks to have a judgment set aside because of an erroneous ruling carries the burden of showing that prejudice resulted.” Palmer v. Hoffman, 318 U. S. 109, 116 (1943); see also Tipton v. Socony Mobil Oil Co., 375 U. S. 34, 36 (1963) (per curiam); United States v. Borden Co., 347 U. S. 514, 516–517 (1954); cf. McDonough Power Equipment, Inc. v. Greenwood, 464 U. S. 548, 553 (1984); Market Street R. Co. v.
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Railroad Comm’n of Cal., 324 U. S. 548, 562 (1945) (finding error harmless “in the absence of any showing of . . . prejudice”).
Lower court cases make clear that courts have correlated review of ordinary administrative proceedings to appellate review of civil cases in this respect. Consequently, the burden of showing that an error is harmful normally falls upon the party attacking the agency’s determination. See, e.g., American Airlines, Inc. v. Department of Transp., 202 F. 3d 788, 797 (CA5 2000) (declining to remand where appellant failed to show that error in administrative proceeding was harmful); Air Canada v. Department of Transp., 148 F. 3d 1142, 1156–1157 (CADC 1998) (same); Nelson v. Apfel, 131 F. 3d 1228, 1236 (CA7 1997) (same); Bar MK Ranches v. Yuetter, 994 F. 2d 735, 740 (CA10 1993) (same); Camden v. Department of Labor, 831 F. 2d 449, 451 (CA3 1987) (same); Panhandle Co-op Assn. v. EPA, 771 F. 2d 1149, 1153 (CA8 1985) (same); Frankfort v. FERC, 678 F. 2d 699, 708 (CA7 1982) (same); NLRB v. Seine & Line Fishermen, 374 F. 2d 974, 981 (CA9 1967) (same).
To say that the claimant has the “burden” of showing that an error was harmful is not to impose a complexsystem of “burden shifting” rules or a particularly onerous requirement. In ordinary civil appeals, for example, the appellant will point to rulings by the trial judge that theappellant claims are erroneous, say, a ruling excluding favorable evidence. Often the circumstances of the case will make clear to the appellate judge that the ruling, if erroneous, was harmful and nothing further need be said. But, if not, then the party seeking reversal normally mustexplain why the erroneous ruling caused harm. If, for example, the party seeking an affirmance makes a strongargument that the evidence on the point was overwhelming regardless, it normally makes sense to ask the partyseeking reversal to provide an explanation, say, by mar
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shaling the facts and evidence showing the contrary. The party seeking to reverse the result of a civil proceedingwill likely be in a position at least as good as, and often better than, the opposing party to explain how he has been hurt by an error. Cf. United States v. Fior D’Italia, Inc., 536 U. S. 238, 256, n. 4 (2002) (SOUTER, J., dissenting).
Respondents urge the creation of a special rule for this context, placing upon the agency the burden of proving that a notice error did not cause harm. But we have placed such a burden on the appellee only when the matter underlying review was criminal. See, e.g., Kotteakos, 328 U. S., at 760. In criminal cases the Government seeks to deprive an individual of his liberty, thereby providing a good reason to require the Government to explain why anerror should not upset the trial court’s determination.And the fact that the Government must prove its case beyond a reasonable doubt justifies a rule that makes itmore difficult for the reviewing court to find that an errordid not affect the outcome of a case. See United States v. Olano, 507 U. S. 725, 741 (1993) (stating that the Government bears the “burden of showing the absence of prejudice”). But in the ordinary civil case that is not so.See Palmer, supra, at 116.
C Our discussion above is subject to two important qualifications. First, we need not, and we do not, decide the lawfulness of the use by the Veterans Court of what it called the “natural effects” of certain kinds of notice errors. We have previously made clear that courts may sometimes make empirically based generalizations aboutwhat kinds of errors are likely, as a factual matter, toprove harmful. See Kotteakos, supra, at 760–761 (reviewing courts may learn over time that the “‘natural effect’” of certain errors is “‘to prejudice a litigant’s substantial rights’” (quoting H. R. Rep. No. 913, 65th Cong., 3d Sess.,
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p. 1 (1919))). And by drawing upon “experience” thatreveals some such “‘natural effect,’” a court might properly influence, though not control, future determinations.See Kotteakos, supra, at 760–761. We consider here, however, only the Federal Circuit’s harmless-error framework. That framework, as we have said, is mandatory.And its presumptions are not based upon an effort todetermine “natural effects.”
Indeed, the Federal Circuit is the wrong court to makesuch determinations. Statutes limit the Federal Circuit’s review to certain kinds of Veterans Court errors, namely,those that concern “the validity of . . . any statute or regulation . . . or any interpretation thereof.” 38 U. S. C. §7292. But the factors that inform a reviewing court’s“harmless-error” determination are various, potentiallyinvolving, among other case-specific factors, an estimationof the likelihood that the result would have been different, an awareness of what body (jury, lower court, administrative agency) has the authority to reach that result, a consideration of the error’s likely effects on the perceivedfairness, integrity, or public reputation of judicial proceedings, and a hesitancy to generalize too broadly about particular kinds of errors when the specific factual circumstances in which the error arises may well make allthe difference. See Neder, 527 U. S., at 18–19; Kotteakos, supra, at 761–763; Traynor 33–37.
It is the Veterans Court, not the Federal Circuit, that sees sufficient case-specific raw material in veterans’ cases to enable it to make empirically based, nonbinding generalizations about “natural effects.” And the Veterans Court, which has exclusive jurisdiction over these cases, is likely better able than is the Federal Circuit to exercise aninformed judgment as to how often veterans are harmed by which kinds of notice errors. Cf. United States v. Haggar Apparel Co., 526 U. S. 380, 394 (1999) (Article I court’sspecial “expertise . . . guides it in making complex deter
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minations in a specialized area of the law”).
Second, we recognize that Congress has expressed special solicitude for the veterans’ cause. See post, at 2 (SOUTER, J., dissenting). A veteran, after all, has performed an especially important service for the Nation,often at the risk of his or her own life. And Congress hasmade clear that the VA is not an ordinary agency. Rather, the VA has a statutory duty to help the veteran develop his or her benefits claim. See Veterans Claims Assistance Act of 2000, 38 U. S. C. §5103A. Moreover, the adjudicatory process is not truly adversarial, and the veteran is often unrepresented during the claims proceedings. See Walters v. National Assn. of Radiation Survivors, 473
U. S. 305, 311 (1985). These facts might lead a reviewing court to consider harmful in a veteran’s case error that it might consider harmless in other circumstances. But that is not the question before us. And we need not here decide whether, or to what extent, that may be so.
III We have considered the two cases before us in light of the principles discussed. In Sanders’ case, the Veterans Court found the notice error harmless. And after reviewing the record, we conclude that finding is lawful. The VA told Sanders what further evidence would be needed to substantiate his claim. It failed to specify what portion of any additional evidence the Secretary would provide (weimagine none) and what portion Sanders would have toprovide (we imagine all). How could the VA’s failure to specify this (or any other)division of labor have mattered? Sanders has pursued hisclaim for over six decades; he has had numerous medical examinations; and he should be aware of the respect inwhich his benefits claim is deficient (namely, his inability to show that his disability is connected to his World War II service). See supra, at 5. Sanders has not told the Veter
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ans Court, the Federal Circuit, or this Court, what specificadditional evidence proper notice would have led him to obtain or seek. He has not explained to the VeteransCourt, to the Federal Circuit, or to us, how the notice error to which he points could have made any difference. The Veterans Court did not consider the harmlessness issue a borderline question. Nor do we. We consequently reversethe Federal Circuit’s judgment and remand the case sothat the court can reinstate the judgment of the VeteransCourt.
Simmons’ case is more difficult. The Veterans Court found that the VA had committed a Type One error, i.e., a failure to tell Simmons what information or evidence she must provide to substantiate her claim. The VA sent Simmons a letter that provided her only with general information about how to prove a claim while telling her nothing at all about how to proceed further in her owncase, a case in which the question was whether a concededly service-connected left-ear hearing problem had deteriorated to the point where it was compensable. And the VA did so in the context of having arranged for a further right-ear medical examination, which (because of lack of notice) Simmons failed to attend. The Veterans Court took the “natural effect” of a Type One error into accountwhile also reviewing the record as a whole.
Some features of the record suggest the error was harmless, for example, the fact that Simmons has long soughtbenefits and has a long history of medical examinations.But other features—e.g., the fact that her left-ear hearing loss was concededly service connected and has continuously deteriorated over time, and the fact that the VA hadscheduled a further examination of her right ear that (hadnotice been given) might have revealed further left-ear hearing loss—suggest the opposite. Given the uncertainties, we believe it is appropriate to remand this case so that the Veterans Court can decide whether re
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consideration is necessary.
* * * We conclude that the Federal Circuit’s harmless-error framework is inconsistent with the statutory requirementthat the Veterans Court take “due account of the rule of prejudicial error.” 38 U. S. C. §7261(b)(2). We reverse the Federal Circuit’s judgment in Sanders’ case, and we vacate its judgment in Simmons’ case. We remand both cases for further proceedings consistent with this opinion.
It is so ordered.
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SOUTER, J., dissenting
SUPREME COURT OF THE UNITED STATES
No. 07–1209
ERIC K. SHINSEKI, SECRETARY OF VETERANS
AFFAIRS, PETITIONER v. WOODROW F. SANDERS
ERIC K. SHINSEKI, SECRETARY OF VETERANS
AFFAIRS, PETITIONER v. PATRICIA D. SIMMONS
ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT
[April 21, 2009]
JUSTICE SOUTER, with whom JUSTICE STEVENS and JUSTICE GINSBURG join, dissenting.
Federal law requires the Court of Appeals for VeteransClaims to “take due account of the rule of prejudicial error.” 38 U. S. C. §7261(b)(2). Under this provision,when the Department of Veterans Affairs (VA) fails tonotify a veteran of the information needed to support hisbenefit claim, as required by 38 U. S. C. §5103(a), must the veteran prove the error harmful, or must the VA prove its error harmless? The Federal Circuit held that the VA should bear the burden. Sanders v. Nicholson, 487 F. 3d 881 (2007). The Court reverses because the Federal Circuit’s approach is “complex, rigid, and mandatory,” ante, at 9, “imposes an unreasonable evidentiary burden uponthe VA,” ante, at 10–11, and contradicts the rule in other civil and administrative cases by “requir[ing] the VA, notthe claimant, to explain why the error is harmless,” ante, at 11. I respectfully disagree.
Taking the last point first, the Court assumes that thereis a standard allocation of the burden of proving harmlessness that Congress meant to adopt in directing the Veterans Court to “take due account of the rule of prejudi
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SOUTER, J., dissenting
cial error.” 38 U. S. C. §7261(b)(2). But as both the majority and the Government concede, “[t]here are no hard-andfast standards governing the allocation of the burden of proof in every situation,” Keyes v. School Dist. No. 1, Denver, 413 U. S. 189, 209 (1973), and courts impose theburden of dealing with harmlessness differently in different circumstances. As the Court says, the burden is on the Government in criminal cases, ante, at 13, and even in civil and administrative appeals courts sometimes require the party getting the benefit of the error to show its harmlessness, depending on the statutory setting or specific sort of mistake made, see, e.g., McLouth Steel Prods. Corp.
v. Thomas, 838 F. 2d 1317, 1324 (CADC 1988) (declaring that imposing the burden of proving harm “on the challenger is normally inappropriate where the agency hascompletely failed to comply with” notice and commentprocedures).
Thus, the question is whether placing the burden of persuasion on the veteran is in order under the statutory scheme governing the VA. I believe it is not. The VA differs from virtually every other agency in being itself obliged to help the claimant develop his claim, see, e.g., 38
U. S. C. §5103A, and a number of other provisions and practices of the VA’s administrative and judicial review process reflect a congressional policy to favor the veteran, see, e.g., §5107(b) (“[T]he Secretary shall give the benefitof the doubt to the claimant” whenever “there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter”); §7252(a) (allowing the veteran, but not the Secretary, to appeal an adverse decision to the Veterans Court). Given Congress’s understandable decision to place a thumb on the scale in the veteran’s favor in the course of administrative and judicial review of VA decisions, I would not remove a comparable benefit in the Veteran’s Court based on the ambiguous directive of §7261(b)(2).
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And even if there were a question in my mind, I wouldcome out the same way under our longstanding “rule thatinterpretive doubt is to be resolved in the veteran’s favor.” Brown v. Gardner, 513 U. S. 115, 118 (1994).
The majority’s other arguments are open to judgment, but I do not see that placing the burden of showing harm on the VA goes so far as to create a “complex, rigid, andmandatory” scheme, ante, at 9, or to impose “an unreasonable evidentiary burden upon the VA,” ante, at 10–11. Under the Federal Circuit’s rule, the VA simply “mustpersuade the reviewing court that the purpose of the notice was not frustrated, e.g., by demonstrating: (1) thatany defect was cured by actual knowledge on the part ofthe claimant, (2) that a reasonable person could be expected to understand from the notice what was needed, or
(3) that a benefit could not have been awarded as a matter of law.” Sanders, supra, at 889. This gives the VA severalways to show that an error was harmless, and the VA has been able to shoulder the burden in a number of cases. See, e.g., Holmes v. Peake, No. 06–0852, 2008 WL 974728, *2 (Vet. App., Apr. 3, 2008) (Table) (finding notice error harmless because the claimant had “actual knowledge of what was required to substantiate” his claim); Clark v. Peake, No. 05–2422, 2008 WL 852588, *4 (Vet. App., Mar. 24, 2008) (Table) (same).
The Federal Circuit’s rule thus strikes me as workable and in keeping with the statutory scheme governing veterans’ benefits. It has the added virtue of giving the VA a strong incentive to comply with its notice obligations, obligations “that g[o] to the very essence of the nonadversarial, pro-claimant nature of the VA adjudication system. . . by affording a claimant a meaningful opportunity toparticipate effectively in the processing of his or herclaim.” Mayfield v. Nicholson, 19 Vet. App. 103, 120–121 (2005).
I would affirm the Federal Circuit and respectfullydissent.

Jandreau v. Shinseki, No. 08-10052

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 08-10052; 04-1254(E)
ALVA JANDREAU, APPELLANT,
V.
E RIC K. SHINSEKI,
S ECRETARY OF VETERANS AFFAIRS, APPELLEE.
On Appellant’s Application for Attorney Fees and Expenses
(Decided April 8, 2009)
Ronald L. Smith, of Washington, D.C., for the appellant.
Richard Mayerick, Deputy Assistant General Counsel, with Paul J. Hutter, Acting General
Counsel; R. Randall Campbell, Assistant General Counsel, all of Washington, D.C., for the appellee.
Before GREENE, Chief Judge, HAGEL and DAVIS, Judges.
GREENE, Chief Judge, filed the opinion of the Court. DAVIS, Judge, filed a dissenting
opinion.
GREENE, Chief Judge: Before the Court is Alva Jandreau’s January 14, 2008, application
for an award of $20,372.59 in attorney fees and expenses under the Equal Access to Justice Act
(EAJA), 28 U.S.C. § 2412(d). The Secretary argues only that his position was substantially justified,
and therefore, the application should be denied. For the reasons that follow, the EAJA application
will be denied.
I. PROCEDURAL BACKGROUND
In an August 2006 single-judge order, the Court affirmed a May 2004 Board of Veterans’
Appeals (Board) decision denying VA service connection for residuals of a right-shoulder
dislocation. The Court held that the Board did not err in ruling that Mr. Jandreau had not presented
competent evidence that his current condition was the result of a shoulder dislocation during service
2
and that, as a lay person, Mr. Jandreau could not opine as to the etiology of his current disability.
Jandreau v. Nicholson, No. 04-1254, 2006 WL 2805545 (Vet. App. Aug. 24, 2006). Mr. Jandreau
appealed to the United States Court of Appeals for the Federal Circuit (Federal Circuit), and the
Secretary contested that appeal on the basis that this Court had ruled that medical evidence was
required for establishing an in-service diagnosis of a dislocated shoulder. The Federal Circuit
reversed this Court’s decision after holding that medical evidence was not necessarily required to
diagnose Mr. Jandreau’s in-service condition as a dislocated shoulder. Jandreau v. Nicholson,
492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Accordingly, the Court remanded Mr. Jandreau’s claim
to the Board for further adjudication. Jandreau v. Mansfield, No. 04-1254, 2007 WL 3021653
(Vet. App. Oct. 16, 2007). This EAJA application followed.
II. EAJA LAW
This Court has jurisdiction to award reasonable attorney fees and expenses pursuant to
28 U.S.C. § 2412(d)(2)(F). Mr. Jandreau’s EAJA application was filed within the 30-day application
period set forth in 28 U.S.C. § 2412(d)(1)(B) and satisfies the requirements that the application
contain (1) an allegation that, by virtue of the Court’s remand, Mr. Jandreau is a prevailing party
within the meaning of EAJA; (2) a showing that he is a party eligible for an EAJA award because
his net worth does not exceed $2,000,000; (3) an allegation that the position of the Secretary was not
substantially justified; and (4) an itemized fee statement. 28 U.S.C. § 2412(d)(1)(A), (1)(B), and
(2)(B); Scarborough v. Nicholson, 19 Vet.App. 253 (2005); Cullens v. Gober, 14 Vet.App. 234, 237
(2001) (en banc).
There is no dispute that Mr. Jandreau is a prevailing party; the only issue in contention is
whether the Secretary’s litigation position was substantially justified. Mr. Jandreau maintains that
the Secretary’s litigation position before the Federal Circuit failed to account for the Federal Circuit’s
holding in Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006), that “competent lay
evidence can be sufficient in and of itself” to establish entitlement to a benefit. The Secretary
maintains that his position during the litigation stage was substantially justified because a matter of
evolving caselaw was at issue, and that it was reasonable for him to have relied upon this Court’s
ruling, which was issued after the Federal Circuit’s Buchanan decision.
3
Once an allegation of lack of substantial justification is made, the burden is on the Secretary
to demonstrate that VA was substantially justified in its positions. See Cullens, supra; Locher v.
Brown, 9 Vet.App. 535, 537 (1996). The Secretary’s position is substantially justified “‘if a
reasonable person could think it correct, that is, if it has a reasonable basis in law and fact.'” Stillwell
v. Brown, 6 Vet.App. 291, 302 (1994) (quoting Pierce v. Underwood, 487 U.S. 552, 566 n.2 (1988)).
That determination is based not on any single factor, but on the totality of the circumstances and
includes consideration of, “among other things, ‘merits, conduct, reasons given, and consistency with
judicial precedent and VA policy with respect to such position, and action or failure to act, as
reflected in the record on appeal and the filings of the parties'” before the Court. White v. Nicholson,
412 F.3d 1314, 1317 (Fed. Cir. 2005) (quoting Johnson v. Principi, 17 Vet.App. 436, 442 (2004));
see also Stillwell, supra. Additionally, the evolution of law that has often resulted in new, different,
or more stringent requirements for adjudication is one factor for the Court to consider. Stillwell,
supra; see Bowey v. West, 218 F.3d 1373, 1376-77 (Fed. Cir. 2000) (holding that substantial
justification shall be determined on basis of law that was in existence at time Government adopted
its position). Arguments presented in a case of first impression are more likely to be considered
substantially justified than those where the Court determines that the Secretary ignored existing law.
See Johnson, supra. However, “‘[a] lack of judicial precedent adverse to the government’s position
does not preclude a fee under the EAJA.'” Felton v. Brown, 7 Vet.App. 276, 281 (1994) (quoting
Ramon-Sepulveda v. INS, 863 F.2d 1458, 1459 (9th Cir. 1988)).
III. ANALYSIS
The question before us is whether the Secretary has met his burden of demonstrating that
the government’s litigation position before the Federal Circuit in this case had a reasonable basis in
law and fact. The Secretary argues that Jandreau was a case of first impression and that reasonable
minds could differ concerning the role of lay evidence in determining medical matters even after the
Federal Circuit’s holding in Buchanan. To answer this question, we first must briefly review the use
of lay evidence in claims for veterans benefits and the role the Federal Circuit’s holdings in
Buchanan and Jandreau have played in shaping this area of veterans benefits law.
4
A. Lay Evidence in Veterans Law
Veterans may receive compensation when it is established that they have current disabilities
resulting from an injury or disease incurred in or aggravated by active service. See 38 U.S.C.
§§ 1110, 1131. When adjudicating a claim for veterans benefits, “[t]he Secretary shall consider all
information and lay and medical evidence of record.” 38 U.S.C. § 5107(b). Service connection may
be established directly or through a statutory or regulatory presumption. For direct service
connection for a disability, a veteran must show (1) medical evidence of a current disability;
(2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a
disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or
injury and the present disability. See Hickson v. West, 12 Vet.App. 247, 253 (1999); Caluza v.
Brown, 7 Vet.App. 498, 506 (1995), aff’d per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table).
Alternatively, if certain chronic diseases are diagnosed in service or within the applicable
presumptive period, then subsequent manifestations of those same chronic disease at any later date
generally will be service connected on a presumptive basis even without any medical evidence of
a nexus between the in-service disease and the present condition–the third element required for direct
service connection. See 38 U.S.C. § 1112; Groves v. Peake, 524 F.3d 1306, 1310 (Fed. Cir. 2008);
38 C.F.R. §§ 3.303(b), 3.307(a), 3.309(a) (2008); see also Savage v. Gober, 10 Vet.App. 488, 494-95
(1997). Our caselaw further instructs that lay testimony is competent to establish the presence of
observable symptomatology but is not competent to prove that which would require specialized
knowledge or training. See Layno v. Brown, 6 Vet.App. 465, 470 (1994). Prior to the Federal
Circuit’s decision in Jandreau, issues that required medical knowledge to render a competent opinion
included a medical diagnosis and the etiology of a disability. See Moray v. Brown, 5 Vet.App. 211,
214 (1993); Espiritu v. Derwinski, 2 Vet.App. 492, 494-95 (1992).
B. Buchanan v. Nicholson
In Buchanan, a veteran sought to establish an in-service incurrence of a disability–element
two of service connection–by submitting lay evidence recalling his medical condition during service.
Alternatively, the veteran sought a presumption of service connection based on lay testimony
concerning the onset of his chronic disease. The Board found that the veteran’s recollections of
medical problems some 20 years after his separation from service lacked credibility absent
5
confirmatory clinical records establishing an in-service incurrence of his disease and, that even if his
disability began within one year of discharge, there was insufficient medical evidence to determine
whether it was disabling to a compensable degree during that time as required for presumptive
service connection. See 38 C.F.R. § 3.307(a) (2008) (certain chronic diseases are presumed to be
service connected if they are manifested to compensable degree within one year of discharge). On
appeal, this Court held that the Board acted within its province in determining that the veteran’s lay
evidence concerning the onset of his disability lacked credibility. See Buchanan v. Nicholson,
No. 02-1524, 2005 WL 896458 (Vet. App. Feb. 16, 2005). The Federal Circuit reversed that
decision after holding that the Board “cannot determine that lay evidence lacks credibility merely
because it is unaccompanied by contemporaneous medical evidence.” Buchanan, 451 F.3d at 1337.
The Federal Circuit pointed out that the Board had not made any determination regarding whether
the veteran was competent to provide evidence of the onset of his disability, but had erred in
determining that the veteran was not credible. Id. at 1336 (“The Board’s decision . . . does not reflect
a determination on the competency of the lay statements.”). With regard to presumptive service
connection for a chronic condition, the Federal Circuit stated that § 3.307(b) does not require both
medical and competent lay evidence to establish the existence of a chronic disease, and thus,
“competent lay evidence can be sufficient in and of itself” to establish entitlement to a benefit.
Buchanan, 451 F.3d at 1335 (citing 38 C.F.R. § 3.307(b) (in claiming chronic disease, “factual basis
may be established by medical evidence, competent lay evidence[,] or both.”)).
Upon review, we find the Federal Circuit’s Buchanan decision harmonious with this Court’s
previous precedent and existing VA regulations that provide that, in certain cases, lay evidence may
establish element two for direct service connection of a current disability. See Hickson, Caluza, and
Layno, all supra; 38 C.F.R. § 3.303. Similarly, Buchanan is in line with the previous legal
framework that lay evidence may be competent to prove the existence of a chronic disease that can
be diagnosed or demonstrated without medical expertise in presumptive service-connection claims.
See Savage, 10 Vet.App. at 495 (for certain chronic diseases, lay evidence may be competent to
identify in-service existence of chronic disease and whether current condition is subsequent
manifestation of that same chronic disease); 38 C.F.R. §§ 3.303(b), 3.307(a), 3.309(a). The
distinction between the use of lay evidence in direct service-connection claims and presumptive
Our dissenting colleague is mistaken that this Court or the Board summarily 1 dismissed the competency of Mr.
Jandreau’s lay evidence. To the contrary, this Court held that Mr. Jandreau had presented competent lay testimony to
VA regarding an in-service injury to his shoulder, but could not provide the medical diagnosis that was required to
establish the etiology of his current disability. Jandreau, 2006 WL 2805545 at *3 (holding that Mr. Jandreau is
competent to testify as to his shoulder pain and limitation of motion, but whether he experienced dislocation of his
shoulder requires medical diagnosis).
6
service-connection claims for chronic diseases exists because in the latter case the lay evidence is
not being used to establish a medical causation or etiology but rather to establish, by evidence of
observable symptomatology, that the currently diagnosed chronic disease is the same condition that
was present during service or during the presumptive period of § 3.307(a). Thus, although Buchanan
provided new requirements for determining the credibility of lay evidence, we find nothing in the
Buchanan holding that broke new ground concerning the competency of lay evidence to establish
service connection either on a direct basis or through the presumption afforded to certain chronic
diseases.
C. Jandreau v. Nicholson
In the case underlying this EAJA application, Mr. Jandreau sought direct service connection
for residuals of a right-shoulder dislocation. He presented the Board with medical evidence showing
that he had been diagnosed with joint arthritis and rotator cuff impingement of the right shoulder that
was most likely the result of a right-shoulder dislocation and lay evidence, in the form of his own
testimony and a statement from a fellow serviceman, that he had dislocated his right shoulder during
his Army basic training in 1957. VA found that his service medical records were presumed to have
been destroyed in a fire at the National Personnel Records Center. The Board denied his claim after
finding that Mr. Jandreau was competent to present evidence that he had an injury during service but
not competent to establish that the injury he experienced in 1957 was the etiology of his current
disability. On appeal, the Court affirmed the Board’s decision that a diagnosis of Mr. Jandreau’s
shoulder injury during basic training required medical evidence. Jandreau, 2006 WL 2805545 at *3.
The Court determined that because no such medical diagnosis had been presented, either in service
or after service, the Board was correct in finding that there was no competent evidence linking Mr.
Jandreau’s current disabilities to the 1957 in-service shoulder injury, and thus, service connection
was not warranted1. Id.
The Federal Circuit, however, seemingly recognized that there 2 were other possibilities for addressing this
problem in their next paragraph by acknowledging and agreeing with this Court’s holding that a diagnosis of an in-service
condition may be established by a medical professional who uses lay testimony describing symptoms at the time to make
a retrospective diagnosis. Jandreau, 492 F.3d at 1377; see Caluza, 7 Vet.App. at 505 (service connection may be
established even if condition was not diagnosed until after service when evidence demonstrates in-service incurrence).
7
In reversing this Court’s decision, the Federal Circuit held that to require a medical diagnosis
of Mr. Jandreau’s in-service injury was inconsistent with the holding of Buchanan. See Jandreau,
492 F.3d at 1376-77. Specifically, the Jandreau decision relied upon what it found to be the rule
announced in Buchanan–that “‘competent lay evidence can be sufficient in and of itself.'” Id. at 1376
(quoting Buchanan, 451 F.3d at 1335). The Federal Circuit found that this rule was of heightened
importance given that Mr. Jandreau’s service medical records were presumed to have been destroyed,
stating that without accepting his lay diagnosis, it would be virtually impossible to establish service
connection.2 Accordingly, the Federal Circuit determined that, under Buchanan, this Court’s holding
in Jandreau that only competent medical evidence could establish the missing medical etiology or
medical diagnosis “was too broad.” Jandreau, 492 F.3d at 1377.
In Jandreau, the Federal Circuit identified two instances in which lay evidence, even without
supporting medical evidence, may be competent and sufficient to establish the diagnosis of a
condition: (1) Where the lay person is competent to identify the medical condition and (2) where the
lay person is recalling an unavailable contemporaneous medical diagnosis. Jandreau, 492 F.3d at
1377. In a footnote, the decision instructed merely that a layperson is competent to “identify” the
condition “where the condition is simple, for example a broken leg.” Id. at n. 4. The Federal Circuit
declined to consider whether a lay person is competent to diagnosis a shoulder dislocation, finding
that this was a factual determination to be made by VA in the first instance. Id. at 1377.
D. Substantial Justification
The Federal Circuit’s holding in Jandreau constituted an evolution of VA benefits law in a
case of first impression. See Stillwell, supra. The Secretary correctly points out that the Federal
Circuit provided no citation of law for its discussion in Jandreau of the circumstances where lay
evidence may be competent to diagnosis certain medical conditions. Mr. Jandreau’s contention that
it was unreasonable for the Secretary not to attempt to distinguish Buchanan in the briefing before
8
the Federal Circuit is diminished by the fact that Mr. Jandreau cited to Buchanan only once, in a
string cite and with no parenthetical.
Our dissenting colleague argues that the Federal Circuit’s language in Buchanan that
competent lay evidence can be sufficient in and of itself “unequivocally rejected” this Court’s
precedential caselaw that a lay person, such as Mr. Jandreau, is, per se, not competent to diagnose
an injury that requires medical knowledge. However, we see this as a bridge too far. The statement
quoted by the dissent from Buchanan was in reference to a veteran attempting to establish
presumptive service connection for a chronic disease, and thus, has little relevance to a lay person
attempting to provide a medical etiology opinion for a current shoulder condition. While Buchanan
established that lay evidence can, in certain circumstances, be credible even without supporting
medical evidence, Jandreau represents a furtherance of the previous legal framework regarding the
competency of lay evidence to provide a retrospective medical diagnosis, and thus, evidence of a
nexus between a claimed in-service injury and a present disability. Compare Jandreau with Moray
and Espiritu, both supra.
We hold that the Secretary’s litigation position before the Federal Circuit–that a medical
diagnosis was required to establish that Mr. Jandreau’s reported in-service symptoms were, in fact,
a dislocated shoulder to link his service with his currently diagnosed residuals of a dislocated
shoulder–was not contrary to established law at the time. At the very least, reasonable minds could
differ as to whether the Buchanan holding regarding the competency of lay evidence to recognize
a chronic disease absent supporting medical evidence extended to the competency of lay evidence
to diagnose a 40-year-old injury as a dislocated shoulder that has resulted in a current disability.
Accordingly, the Secretary has met his burden of establishing that his litigation position in the appeal
of this case before the Federal Circuit was reasonable, and thus, substantially justified. See Cullens,
supra; Stillwell, 6 Vet.App. at 303; see also Carpenter v. West, 12 Vet.App. 316, 321 (1999)
(‘”EAJA redresses governmental abuse, it was never intended to chill the government’s right to
litigate or to subject the public fisc to added risk of loss when the government chooses to litigate
reasonably substantiated positions, whether or not the position later turns out to be wrong.'”) (quoting
Roanoke River Basin Ass’n v. Hudson, 991 F.2d 132, 139 (4th Cir. 1993)).
9
IV. CONCLUSION
Upon consideration of the pleadings filed for this appeal, and for the reasons stated herein,
the EAJA application is DENIED.
DAVIS, Judge, dissenting: Because the Secretary’s position was not substantially justified,
and specifically, it was contrary to judicial precedent, I must respectfully dissent. See White v.
Nicholson, 412 F.3d 1314, 1317 (Fed. Cir. 2005) (evaluating “substantial justification” by, among
other things, “consistency with judicial precedent . . . and action or failure to act, as reflected in the
record on appeal and the filings of the parties”).
The Secretary adopted the following position before the Federal Circuit: “It is well
established [ ] that lay witnesses are not competent to offer opinion testimony on matters requiring
specialized skill or training, such as matters of medical diagnosis or etiology.” Secretary’s Brief at
14. In other words, the Secretary supported the proposition that a lay person is per se not competent
to provide diagnosis or etiology of any condition, and thus, this evidence alone could not establish
service connection.
That position was unequivocally rejected nearly eight months prior in Buchanan v.
Nicholson, 451 F.3d 1331 (Fed. Cir. 2006), a case that was noticeably absent from the Secretary’s
brief (the appellant’s brief did at least cite this controlling case). In Buchanan, the Federal Circuit
held:
[T]he Board’s statement, that the lay statements lack credibility absent confirmatory
clinical records to substantiate such recollections . . . reflects a legally untenable
interpretation of the above enumerated statutory and regulatory provisions: that
absent confirmatory medical evidence, lay evidence lacks credibility. While the lack
of contemporaneous medical records may be a fact that the Board can consider and
weigh against a veteran’s lay evidence, the lack of such records does not, in and of
itself, render lay evidence not credible. Such an interpretation is unreasonable
because it would render portions of the statutes and regulations meaningless as it
would read out the option of establishing service connection based on competent lay
evidence.
Id. at 1336. Significantly, the Federal Circuit held that the statutory and regulatory provisions “make
clear that competent lay evidence can be sufficient in and of itself.” Id. at 1335. Thus, even an
exceedingly narrow interpretation of Buchanan’s holding would tend to put a reasonable person on
10
notice that lay evidence should not be summarily dismissed. See Jandreau v. Nicholson, 492 F.3d
1372, 1376-77 (Fed. Cir. 2007) (noting that under Buchanan, the determination that “‘competent
medical evidence is required . . . [when] the determinative issue involves either medical etiology or
a medical diagnosis’ is too broad”). In the same sense, Buchanan made clear that the Secretary
cannot continue to reject lay evidence as a matter of law when it pertains to medical diagnosis or
etiology; rather, such evidence must be weighed by the fact finder to determine its import. See
Buchanan, 451 F.3d at 1337 (noting that it is the Board’s obligation to determine “whether lay
evidence is credible in and of itself”); see also Jandreau, 492 F.3d at 1377 (“Whether lay evidence
is competent and sufficient in a particular case is a fact issue to be addressed by the Board rather than
a legal issue to be addressed by the Veterans’ Court.”). Perhaps most damaging to the Secretary’s
position is that the Secretary neither acknowledged nor distinguished Buchanan in support of his
view; he simply ignored it. The majority decision now attempts to do this on his behalf and apply
its post hoc rationalization to the Secretary’s filings before the Federal Circuit. This is not the role
of the Court.
In sum, contrary to the majority, Jandreau did not break new ground. The Federal Circuit
had already concluded in Buchanan that competent lay evidence can be sufficient in and of itself for
proving the existence of a chronic disease, and Jandreau simply reiterated the point that lay evidence
must be weighed by the fact finder to determine its competence. Because the Secretary ignored thenexisting
law before the Federal Circuit, I would not find the Secretary’s position substantially
justified and would award attorney fees to the appellant.

FedCir. Gardner v. Brown, No. 92-7025

5 F.3d 1456

62 USLW 2197

Fred P. GARDNER, Claimant-Appellee,
v.
Jesse BROWN, Secretary of Veterans Affairs, Respondent-Appellant.

No. 92-7025.

United States Court of Appeals,
Federal Circuit.

Sept. 13, 1993.

Joseph M. Hannon, Jr., Thompson, O’Donnell, Markham, Norton & Hannon, Washington, DC, argued for claimant-appellee.

Julie A. Shubin, Atty., Commercial Litigation Branch, Dept. of Justice, Washington, DC, argued for respondent-appellant. With her on the brief were Stuart M. Gerson, Asst. Atty. Gen., David M. Cohen, Director and Mary Mitchelson, Deputy Director. Also on the brief were Donald E. Zeglin and Tresa Schlecht, Dept. of Veterans Affairs, Washington, DC, of counsel.

Before ARCHER, MICHEL, and LOURIE, Circuit Judges.

ARCHER, Circuit Judge.
1

The Secretary of Veterans Affairs appeals from a judgment of the United States Court of Veterans Appeals (Veterans Court), No. 90-120 (entered Jan. 13, 1992). The Veterans Court reversed the decision of the Board of Veterans’ Appeals holding that Gardner is not entitled to disability compensation, and remanded the case for further proceedings. 1 Vet.App. 584. We affirm.

I.
2

Fred P. Gardner, a veteran of the Korean conflict, underwent back surgery at a Department of Veterans Affairs (VA)1 medical facility for a non-service-connected back condition. He asserts that as the result of the surgery he developed severe nerve damage in his left leg, resulting in pain, atrophy, and weakness, and that since the surgery his left ankle is severely impaired requiring him to wear a leg brace. Accordingly, Gardner filed a claim for disability compensation with the VA Regional Office in Waco, Texas.
3

The VA Regional Office denied Gardner’s claim, and he sought review by the Board of Veterans’ Appeals (BVA). The BVA held that in order for a veteran to receive disability compensation for an injury resulting from VA medical treatment under 38 U.S.C. Sec. 1151 (Supp. III 1991) (formerly Sec. 3512) and 38 C.F.R. Sec. 3.358 (1992),3
4

at least two elements must be present. First, there must be some demonstration in the record that the treatment rendered resulted in some untoward result or that the treatment was negligent or showed error in judgment, lack of proper medical skill or some other instance of indicated fault. Second, it must be shown that, as a result of the aforementioned accident, negligence, etcetera there was additional disability.
5

The BVA concluded that Gardner was not entitled to disability compensation, finding that he did not prove that he suffered injury as the result of negligent treatment or an accident occurring during his treatment. Gardner appealed the decision of the BVA to the Court of Veterans Appeals.
6

The Veterans Court held that 38 C.F.R. Sec. 3.358(c)(3) impermissibly imposed a fault or accident requirement in addition to the prerequisites for relief set out in 38 U.S.C. Sec. 1151. The court reasoned that the plain language of the statute lacked a fault or accident element, that the legislative history was ambiguous as to fault or accident, that Congressional reenactment of the statute while the regulation was in force was not Congressional ratification of a fault or accident element, and that no deference was owed the VA’s interpretation. The Veterans Court struck down 38 C.F.R. Sec. 3.358(c)(3) as contrary to 38 U.S.C. Sec. 1151 and beyond the authority of the VA.4 The Veterans Court therefore reversed the BVA’s decision denying Gardner compensation and remanded for a redetermination of eligibility.
7

The Secretary appeals from this decision.

II.
8

The sole issue presented in this appeal is whether the regulation, 38 C.F.R. Sec. 3.358(c)(3), which requires a veteran to prove that he suffered disability as the result of negligent treatment or an accident occurring during treatment, is an invalid implementation of 38 U.S.C. Sec. 1151.5 The resolution of this question depends on the construction of 38 U.S.C. Sec. 1151, which is a matter of law that we review de novo. 38 U.S.C. Sec. 7292(d)(1) (Supp. III 1991); Prenzler v. Derwinski, 928 F.2d 392, 393 (Fed.Cir.1991).

A.
9

“The starting point in interpreting a statute is its language, for ‘if the intent of Congress is clear, that is the end of the matter.’ ” Good Samaritan Hosp. v. Shalala, — U.S. —-, —-, 113 S.Ct. 2151, 2157, 124 L.Ed.2d 368 (1993) (alteration omitted) (quoting Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842, 104 S.Ct. 2778, 2781, 81 L.Ed.2d 694 (1984)).
10

The statute at issue in this case, 38 U.S.C. Sec. 1151, provides for compensation to veterans who are disabled by VA medical treatment or examination or vocational training. It states in pertinent part:
11

Where any veteran shall have suffered an injury, or an aggravation of an injury, as the result of hospitalization, medical or surgical treatment, or the pursuit of a course of vocational rehabilitation …, awarded under any of the laws administered by the Secretary, or as a result of having submitted to an examination under any such law, and not the result of such veteran’s own willful misconduct, and such injury or aggravation results in additional disability to or the death of such veteran, disability or death compensation under this chapter … shall be awarded in the same manner as if such disability, aggravation, or death were service-connected.
12

38 U.S.C. Sec. 1151.
13

The interpretation of the statute asserted by the VA appears at 38 C.F.R. Sec. 3.358 (1992). The regulation provides that a veteran must prove he suffered a disability, disease, or injury, or aggravation thereof, as the result of a specified VA service, and not merely coincidental with it. 38 C.F.R. Sec. 3.358(c)(1). Furthermore, the VA will not pay compensation for “the continuance or natural progress” of a disease or injury treated by the VA. Id. Sec. 3.358(b)(2). But the provision of the regulation at issue in this appeal and struck down by the Veterans Court requires the veteran to prove additionally that the VA treatment was faulty or that an accident occurred during treatment:
14

Compensation is not payable for either the contemplated or foreseeable after results of approved medical or surgical care properly administered, no matter how remote, in the absence of a showing that additional disability or death proximately resulted through carelessness, negligence, lack of proper skill, error in judgment, or similar instances of indicated fault on the part of the Department of Veterans Affairs. However, compensation is payable in the event of the occurrence of an “accident” (an unforeseen, untoward event), causing additional disability or death proximately resulting from Department of Veterans Affairs hospitalization or medical or surgical care.
15

38 C.F.R. Sec. 3.358(c)(3).
16

Unlike the regulation, the statute does not on its face include an element of VA fault or accident as a condition to compensation. Pursuant to 38 U.S.C. Sec. 1151, the VA “shall” award service-connected compensation where a veteran shows he has suffered an “injury, or an aggravation of an injury” and that this injury or aggravation is the result of one of four VA services: (1) hospitalization; (2) medical or surgical treatment; (3) vocational rehabilitation; or (4) an examination.
17

The statute has two limitations to the mandatory grant of disability compensation to a veteran undergoing one of the four services listed above. First, the injury or aggravation of injury must be “the result of” one of the services. Second, the injury or aggravation of injury must not be “the result of” the veteran’s own willful misconduct. The statute does not expressly require the veteran to prove the poor nature or lack of quality of the treatment received, or the occurrence of some mishap during treatment. Rather, compensation must be paid where the veteran proves only that he suffered an injury as the result of a specified treatment and not as the result of his own willful misconduct.
18

The Secretary argues that the statutory language “as the result of” is ambiguous because the statute “fails to define or explain, in any manner, what is meant by the words ‘as the result of.’ ” From this the Secretary reasons, it is likely that “Congress, as evidenced by the legislative history of the statute, intended that the VA limit compensation payments to those veterans with disabilities proximately caused by VA fault or through accidents.”
19

We reject, however, the Secretary’s premise–that the statutory language must be deemed ambiguous because the statute does not contain an express definition of the words at issue. To be sure, Congress may define terms in a statute. E.g., 38 U.S.C. Sec. 1101 (Supp. III 1991). But Congress is not required to define each and every word in a piece of legislation in order to express clearly its will. A phrase appearing in the context of a statute may be unambiguous where it “has a clearly accepted meaning in both legislative and judicial practice,” West Virginia Univ. Hosps., Inc. v. Casey, 499 U.S. 83, 98, 111 S.Ct. 1138, 1147, 113 L.Ed.2d 68 (1991), even though it is not explicitly defined by the statutory text. Indeed, terms are defined in statutes often for the very reason that such terms would be ambiguous without a statutory definition. That a term is not defined in a statute does not mean that the term is per se ambiguous.
20

We are convinced that “as the result of” as used in 38 U.S.C. Sec. 1151 mandates only a causation requirement. See Webster’s Third New Int’l Dictionary 1937 (1971) (defining “result” as “a consequence, effect, issue, or conclusion”). Under section 1151 the specified treatment must cause the injury or the aggravation of injury. And willful misconduct of the veteran may not be a cause of the injury or aggravation.
21

The Secretary tenuously argues that causation in this instance may be defined as fault. Causation and fault however are fundamental, distinct concepts in the law. See generally William L. Prosser, Handbook of the Law of Torts Secs. 30, 37, 45, 46, 48 (1941). Congress knows how to legislate expressly liability for fault and negligence. E.g., Act of Apr. 22, 1908, ch. 149, 35 Stat. 65 (liability of common carriers by railroad in cases of negligence) (codified as amended at 45 U.S.C. Sec. 51 (1988)). Congress also knows how to legislate liability without fault. E.g., Longshoremen’s and Harbor Workers’ Compensation Act, ch. 509, 44 Stat. 1424 (1927) (codified as amended at 33 U.S.C. Secs. 901-950 (1988)). Moreover, section 1151 itself includes one culpability element: the injury or aggravation must not be the result of the willful misconduct of the veteran. Under this language the veteran’s own negligence will not preclude him from receiving compensation. When section 1151 is read in its entirety it becomes evident that Congress’s failure in section 1151 to require expressly the veteran to prove fault or accident occurring during treatment was both informed and intentional.
22

Finally, the VA’s argument that causation incorporates fault or accident is belied by the facts that the BVA in its decision below could and did cleanly distinguish “two elements” for compensation–causation and fault or accident–and that the VA regulation 38 C.F.R. Sec. 3.358 has causation considerations separate from the fault or accident requirement.
23

We therefore conclude that the Veterans Court correctly held that 38 U.S.C. Sec. 1151 unambiguously does not require the veteran to prove that the VA treatment was faulty or that an accident occurred during the treatment.

B.
24

As noted above, the Secretary argues that from the legislative history it is likely that Congress intended a fault or accident element. Although “[r]ecourse to the legislative history of [section 1151] is unnecessary in light of the plain meaning of the statutory text,” Darby v. Cisneros, — U.S. —-, —-, 113 S.Ct. 2539, 2545, 125 L.Ed.2d 113 (1993), we may look to the legislative history ” ‘to determine whether there is a clearly expressed legislative intention contrary to the statutory language,’ ” Glaxo Operations UK Ltd. v. Quigg, 894 F.2d 392, 395 (Fed.Cir.1990) (quoting Madison Galleries, Ltd. v. United States, 870 F.2d 627, 629 (Fed.Cir.1989)). We emphasize that because the statutory language is clear, “we do not analyze th[e] history from a neutral viewpoint.” Id. at 396. The Secretary must make an extraordinarily strong showing of clear legislative intent in order to convince us that Congress meant other than what it ultimately said. Seeid.
25

38 U.S.C. Sec. 1151 has a long history. It was born in section 213 of the World War Veterans’ Act, 1924, ch. 320, 43 Stat. 607, 623 (1924) (“1924 Act”).6 Prior to the 1924 Act, veterans could not be compensated for injuries sustained as a result of VA medical treatment because such treatment was not service-connected.
26

The legislation was proposed by General Frank T. Hines, then-director of the United States Veterans’ Bureau, as an amendment to the “war risk insurance act.” See World War Veterans’ Legislation: Hearings on H.R. 7320 Before the House Committee on World War Veterans’ Legislation, 68th Cong., 1st Sess. 113 (1924) (hereinafter “House Hearings”). Each party cites in support of its respective construction of the 1924 Act the House committee hearings on House Bill 7320, which was enacted as section 213. These hearings have been cited often by the VA in its administration of the Act. In introducing the proposal, General Hines stated:
27

[I]n cases of hospitalization for compensable diseases or injuries, where without fault of the patient, as the result of accident or negligence of treatment or unskillfulness–things that must sometimes happen–the patient is further injured or disabled, there is at present no provision for compensating him to the extent thereof. The Government having undertaken to bestow a benefit, has, in fact, inflicted a loss.
28

House Hearings, supra, at 113 (emphasis added).
29

General Hines and Members of Congress then attempted to flesh out situations in which compensation would be payable:
30

General HINES…. In the hospital, at the patient’s consent, he may undergo a certain surgical operation, with the hope, on the best advice available, that it will overcome some disability, but instead of doing that it goes in the other direction. Now, he may have a considerable minor disability due to his service, but at the same time he finds himself totally disabled, and the bureau under the existing law has no way of compensating him.
31

The CHAIRMAN. It might come from a spinal puncture done at his request?
32

General HINES. That is true.
33

The CHAIRMAN. Or an operation which was not successful?
34

General HINES. That has occurred from a spinal puncture that I know of, and it seems to me manifestly unjust, that in good faith the man undergoes an operation, the doctor does the best he can and without neglect–
35

The CHAIRMAN. And with the best medical advice.
36

General HINES. With the best medical advice, and still at the end of a certain period we find the man has a greater disability than he originally started with, and we have no way of correcting in any measure that condition.
37

The CHAIRMAN. In a certain number of cases from some operations lesions will occur which will incapacitate the patient also?
38

General HINES. And it may result–as we all know, operations are never certain–in death.
39

….
40

Mr. RANKIN. Would the disability that they are being treated for have to rise to the dignity of being convincable? [sic] For instance, a great many fellows go to these hospitals to get examined and stay there a while until their case can be thoroughly examined. Suppose it was determined that they had no disability due to the service when they went there, but that they were injured in this process in some way, would this apply to them?
41

General HINES. If they were injured, for instance, in determining whether a man has or has not syphilis, by a spinal puncture–when they make the spinal puncture and get the results, they all seem to be satisfied whatever the result is–if that results, as it might, that they would paralyze a man under that operation, under those circumstances that man would be entitled to compensation.
42

House Hearings, supra, at 114 (emphasis added).
43

The record of House hearings also contains a letter from General Hines to the House committee, in which General Hines wrote:
44

I concur in the principle that authority should exist for compensating the cases of disability due to the hazards of training upon the general theory and principle of the workmen’s compensation act [no-fault liability]. I would extend the principle beyond this particular proposal to include also ratable disabilities incurred without fault and due to the hazards of medical and surgical treatment.
45

House Hearings, supra, at 122 (emphasis added).
46

Finally, General Hines reiterated before the Senate what he had said before the House:
47

[A] man submitted to a spinal puncture in one of our hospitals, to determine whether his [service-connected] disability was due to misconduct or not, and as the result of the spinal puncture he was injured for a period, paralyzed practically, on one side, and he is claiming now that he is greatly disabled. There is no way for the bureau, even though that mistake was made by them, to in any way compensate him.
48

Veterans’ Bureau Codification Act: Hearings on S. 2257 Before the Subcommittee of the Senate Committee on Finance, 68th Cong., 1st Sess. 102-03 (1924) (emphasis added).
49

Until 1926, the VA did not impose any fault or accident showing as a condition to compensation. In 1926, the VA promulgated Regulation No. 137 under the direction of General Hines. That regulation provided that “[c]ompensation … will not be paid for the ordinary residuals of disease or injury following accepted medical treatment nor for the continuation of the original disability where improvement can not be effected by approved medical or surgical treatment.” VA Regulation No. 137, sec. 7701 (1926) (emphasis added), reprinted in United States Veterans’ Bureau, Regulations and Procedure: Active and Obsolete Issues as of December 31, 1928, at 174 (1930) (hereinafter “Obsolete Issues”). In 1927, the regulation was revised to exclude “[t]he usual after results of approved medical care and treatment properly administered.” VA Regulation No. 167, sec. 7701.B(4) (1927) (emphasis added), reprinted in Obsolete Issues, supra, at 194.
50

Although the regulations used such language as “approved” and “properly administered” medical care, it does not appear that the VA actually excluded disability claims where the veteran could not prove fault or accident. For example, the Attorney General advised the VA that the phrase “as the result of” required a straightforward causal connection with no element of fault or accident on the part of VA personnel. See 35 Op. Att’y Gen. 76 (1926); 36 Op. Att’y Gen. 61, 63 (1929) (“It is probably impossible to state a general rule for determining whether such a causal connection is present in any given case.”). In 1930, the Comptroller General considered the question whether a veteran who had suffered dermatitis as the result of X-ray treatment for service-connected tuberculosis could receive compensation. The Comptroller advised the Director of the Veterans’ Bureau that such disability would be compensable; there was no discussion of the nature or quality of the specific X-ray treatments given. Comptroller General Decision No. A-31895, 9 Comp.Gen. 515 (1930). Nevertheless, in language broader than necessary, the Comptroller General stated that “[t]he plain intent of section 213 … was to afford veterans some measure of compensation in those cases in which the disability arises through accident, carelessness, negligence, lack of proper skill, error in judgment, etc., on the part of any person charged with a duty respecting the hospitalization, or medical or surgical treatment….” Id. at 516.
51

In 1933, Congress repealed the World War Veterans’ Act. See Economy Act, ch. 3, Sec. 17, 48 Stat. 8, 11 (1933). Thereafter, in March 1934, Congress substantially reenacted the provisions of the repealed law. Act of Mar. 28, 1934, ch. 102, Sec. 31, 48 Stat. 509, 526 (“1934 Act”).7 The Congressional discussion preceding the enactment of the 1934 Act expressed the same commitment to compensation as that present in the discussion preceding the enactment of the 1924 Act:
52

Mr. STEIWER. The first proposal is that where, in a veterans’ hospital, a veteran is disabled by reason of mistreatment on the part of a Government agent, as in a case of malpractice by a Government surgeon, that disability shall be treated just the same as a war disability, and the veteran shall be compensated in the same way.
53

Mr. BORAH. Are we undertaking to cover cases of malpractice upon the part of physicians?
54

Mr. STEIWER. Incidentally, we would. Of course, what we are trying to do is to protect the men who suffer from malpractice at the hands of Veterans’ Administration physicians. That was in the old law; it was repealed by the Economy Act; and the effort at this time is to restore it.
55

….
56

Mr. BORAH…. I am curious to know how it is provided that we shall determine that there has been a case of malpractice.
57

Mr. STEIWER. Mr. President, I do not know that the Veterans’ Administration can determine that there has been a case of malpractice, but they do determine that the veteran is suffering from disability, and in some cases they have determined that the disability was caused by or aggravated by some mistreatment upon the part of the veterans’ agencies. I do not think there has ever been a trial of a [VA] doctor to determine malpractice….
58

78 Cong. Rec. 3289-90 (Feb. 27, 1934).
59

For the first time, in August 1934, the Administrator of the VA took the position that compensation was payable under the 1934 Act only where the disability arose through an accident or negligence. Department of Veterans Affairs, Precedential Op. Off. General Counsel 99-90, at 7 (1990). The Administrator based his interpretation of the 1934 Act on the fact that it was a reenactment of the 1924 Act, and that in 1930 the Comptroller General had stated that the 1924 Act was intended to compensate fault and accident. Id. From about 1934 to the present the VA has promulgated various regulations requiring fault or accident, culminating in the regulation at issue today. See id. at 7-8.8
60

The legislative history convincingly demonstrates that Congress’s paramount concern was to compensate veterans injured by VA medical treatment. The Congressional discussion preceding enactment includes at times the words fault and accident, and at other times speaks of no-fault liability. The resulting statute omits fault and accident from its language. Congress recognized that injuries would likely occur where the treatment was negligent or where an accident occurred during treatment, but there is no indication whatsoever in the legislative history or in the resulting legislative enactment that Congress intended to place on the veteran the complex and difficult burden of proving that negligence or an accident actually occurred during treatment as a condition to compensation. The World War Veterans’ Act was remedial legislation and as such should be construed broadly to the benefit of the veteran. SeeTcherepnin v. Knight, 389 U.S. 332, 336, 88 S.Ct. 548, 553, 19 L.Ed.2d 564 (1967). This is all consistent with Congress’s enactment of a statute that plainly requires injury and causation but plainly does not require proof of fault or accident.
61

The critical inquiry for compensation under 38 U.S.C. Sec. 1151 therefore is, assuming no willful misconduct by the veteran, whether the veteran was injured by the treatment. If he was, then as the statute and legislative history make clear, regardless of VA fault or accident, the veteran is to be compensated because the VA “having undertaken to bestow a benefit, has, in fact, inflicted a loss.” Because the legislative history does not reveal a clearly expressed legislative intent to require a veteran in order to receive compensation to show that he suffered an injury as the result of faulty medical treatment or an accident occurring during treatment, the Secretary has not made the ” ‘extraordinary showing of … intentions’ ” necessary to warrant departure from the plain meaning of the text. Glaxo Operations, 894 F.2d at 396 (emphasis in original) (quoting Garcia v. United States, 469 U.S. 70, 75, 105 S.Ct. 479, 482, 83 L.Ed.2d 472 (1984)).

C.
62

The Secretary argues that this court must defer to the VA’s long-standing regulations purporting to interpret the statute as requiring fault or accident. For several reasons we will not defer. As discussed above, Congress has spoken clearly on the issue of fault or accident, and unambiguously has not required it. Congress has not left any gap in the statutory language that might give the Secretary discretion to require fault or accident. Therefore we owe no deference to the VA’s interpretation. Glaxo Operations, 894 F.2d at 398.
63

In addition, the VA’s interpretation of the statute was not contemporaneous with the statute’s enactment. Rather, the VA first absolutely required fault or accident some 10 years after the enactment of the original statutory provision, and 5 months after reenactment of the statute which the VA has always maintained was the same in scope as the original enactment. In such circumstances the force of the regulation is substantially weakened. Seeid. at 398-99.
64

Finally, we reject the Secretary’s urging for deference based on the fact that the regulation or its equivalent is long-standing. SeeHorner v. Andrzjewski, 811 F.2d 571, 574 (Fed.Cir.1987). Although the regulation has existed for nearly 60 years, it was not expressly made judicially reviewable until 1988. In that year, Congress established under Article I of the Constitution the Court of Veterans Appeals to provide for the first time judicial review of decisions of the VA. See Veterans’ Judicial Review Act, Pub.L. No. 100-687, Sec. 301, 102 Stat. 4105 (1988). Jurisdiction for appeals from the Court of Veterans Appeals lies exclusively in this court. Id. Until 1988, as stated by Congress, the VA stood “in ‘splendid isolation as the single federal administrative agency whose major functions [we]re explicitly insulated from judicial review.’ ” H.R.Rep. No. 100-963, 100th Cong., 2d Sess. 10, reprinted in 1988 U.S.C.C.A.N. 5782, 5791. Many VA regulations have aged nicely simply because Congress took so long to provide for judicial review. The length of such regulations’ unscrutinized and unscrutinizable existence, however, does not in itself form a basis for us to presume they are valid and therefore defer to them. If anything, Congress’s lengthy deliberation and carefully crafted scheme for judicial review of VA regulations counsels for vigorous review.
65

We also reject the Secretary’s argument that Congress ratified the fault or accident element in 1934 when it reenacted the 1924 Act. Even if, as the Secretary argues, in this case Congress could be presumed to be aware of the VA’s regulatory interpretations of the statute, seeMerrill Lynch, Pierce, Fenner & Smith, Inc. v. Curran, 456 U.S. 353, 382 n. 66, 102 S.Ct. 1825, 1841 n. 66, 72 L.Ed.2d 182 (1982), there has been no showing that the VA definitively interpreted the statute as requiring proof of fault or accident prior to the time Congress reenacted the statute. Reenactment occurred on March 28, 1934, while the Administrator’s definitive, restrictive stance was taken later in August of that year. Nor does the Congressional discussion preceding reenactment cited by the parties even refer to the VA regulation. As the discussion above indicates, Congress initially enacted a broad statute that would encompass instances of fault and accident leading to injury, but was not limited to them. That the VA deemed fault or accident important at the time of reenactment does not show that Congress intended to so limit the statute. Consequently, “[i]n such circumstances we consider the [1934] reenactment to be without significance.” United States v. Calamaro, 354 U.S. 351, 359, 77 S.Ct. 1138, 1144, 1 L.Ed.2d 1394 (1957); seePierce v. Underwood, 487 U.S. 552, 566-68, 108 S.Ct. 2541, 2550-51, 101 L.Ed.2d 490 (1988).
66

The VA required Gardner to prove that as the result of his medical treatment he suffered an injury or an aggravation of an injury, and either that the particular treatment was performed with negligence or that during the treatment an accident occurred. Congress, however, did not require the veteran to discover and prove precisely what happened during his treatment (e.g., that the VA personnel acted negligently or that a mishap occurred), a time when perhaps the veteran was not even conscious. To impose on the veteran the obligation to prove an element of accident or fault is to curtail drastically the statutory right conferred on him by 38 U.S.C. Sec. 1151. The Secretary tells us not surprisingly that a no-fault scheme is more expensive than a fault-based scheme. That however would be Congress’s concern. The VA’s desire to pay less compensation than Congress mandated could not authorize the extra-statutory legislation embodied in 38 C.F.R. Sec. 3.358(c)(3). “The only authority conferred, or which could be conferred, by the statute is to make regulations to carry out the purposes of the act–not to amend it.” Miller v. United States, 294 U.S. 435, 440, 55 S.Ct. 440, 442, 79 L.Ed. 977 (1935). We hold that 38 C.F.R. Sec. 3.358(c)(3) is therefore invalid.
67

AFFIRMED.
1

For simplicity, we refer to the Department of Veterans Affairs and its precursors, the Veterans’ Administration and the Veterans’ Bureau, as the “VA.”
2

The Department of Veterans Affairs Health-Care Personnel Act of 1991, Pub.L. No. 102-40, Sec. 402(b)(1), 105 Stat. 187, 238, and the Department of Veterans Affairs Codification Act, Pub.L. No. 102-83, Sec. 5, 105 Stat. 378, 406 (1991), redesignated most of the sections of Title 38, United States Code, so that the first two digits of the section number correspond to the section’s respective chapter number. To avoid confusion we cite the current sections
3

The BVA is bound by the regulations of the VA. 38 U.S.C. Sec. 7104(c) (Supp. III 1991)
4

38 U.S.C. Sec. 7261(a)(3)(C) (Supp. III 1991) requires the Court of Veterans Appeals to “hold unlawful and set aside … regulations issued or adopted by the Secretary … found to be … in excess of statutory … authority, … or in violation of a statutory right.”
5

In the appeal to this court, no challenge can be made to the factual determinations that Gardner did not show that the VA treatment was negligent or that an accident occurred during treatment so as to satisfy the VA’s regulation. 38 U.S.C. Sec. 7292(d)(2) (Supp. III 1991)
6

That section provided:

That where any beneficiary of this bureau suffers or has suffered an injury or an aggravation of an existing injury as the result of training, hospitalization, or medical or surgical treatment, awarded to him by the director and not the result of his misconduct, and such injury or aggravation of an existing injury results in additional disability to or the death of such beneficiary, the benefits of this title shall be awarded in the same manner as though such disability, aggravation, or the death was the result of military service during the World War.

World War Veterans’ Act, 1924, ch. 320, Sec. 213, 43 Stat. 607, 623 (1924).
7

That section stated:

Where any veteran suffers or has suffered an injury, or an aggravation of any existing injury, as the result of training, hospitalization, or medical or surgical treatment, awarded him under any of the laws granting monetary or other benefits to World War veterans, or as the result of having submitted to examination under authority of the War Risk Insurance Act or the World War Veterans’ Act, 1924, as amended, and not the result of his misconduct, and such injury or aggravation results in additional disability to or the death of such veteran, … benefits … shall be awarded in the same manner as if such disability, aggravation, or death were service connected within the meaning of such laws….

Act of Mar. 28, 1934, ch. 102, Sec. 31, 48 Stat. 509, 526.
8

The 1934 Act was amended several times, resulting in the present enactment, 38 U.S.C. Sec. 1151; statutory language relevant to this appeal, however, was not changed. See Act of Oct. 17, 1940, ch. 893, Sec. 12, 54 Stat. 1193, 1197 (adding compensation for examinations); Act of Mar. 24, 1943, ch. 22, Sec. 3, 57 Stat. 43, 44 (adding compensation for vocational rehabilitation); Act of Sept. 2, 1958, Pub.L. No. 85-857, 72 Stat. 1105, 1124 (codifying the law at 38 U.S.C. Sec. 351); Act of Oct. 15, 1962, Pub.L. No. 87-825, Sec. 3, 76 Stat. 948, 950 (providing offset for recovery under Federal Tort Claims Act); Veterans Disability Compensation and Survivor Benefits Act of 1976, Pub.L. No. 94-433, Sec. 404, 90 Stat. 1374, 1379; Veterans’ Compensation and Program Improvements Amendments of 1984, Pub.L. No. 98-223, Sec. 213, 98 Stat. 37, 46; Department of Veterans Affairs Codification Act, Pub.L. No. 102-83, Sec. 5, 105 Stat. 378, 406 (1991)

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FedCir. Eady v. Shinseki, No. 2008-7121

NOTE: This disposition is nonprecedential.

United States Court of Appeals for the Federal Circuit
2008-7121
LORENZA EADY,
Claimant-Appellant,
v.
ERIC K. SHINSEKI, Secretary of Veterans Affairs,
Respondent-Appellee.
Francis M. Jackson, Jackson & MacNichol, of Portland, Maine, for claimant-appellant.
Phyllis Jo Baunach, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, for respondent-appellee. With her on the brief were Jeanne E. Davidson, Director, and Martin F. Hockey, Jr., Assistant Director. Of counsel on the brief were Michael J. Timinski, Deputy Assistant General Counsel, and Martin J. Sendek, Attorney, Office of the General Counsel, United States Department of Veterans Affairs, of Washington, DC.
Appealed from: United States Court of Appeals for Veterans Claims
Judge Mary J. Schoelen
NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2008-7121
LORENZA EADY,
Claimant-Appellant,
v.
ERIC K. SHINSEKI, Secretary of Veterans Affairs,
Respondent-Appellee.
Appeal from the United States Court of Appeals for Veterans Claims
in 05-0024, Judge Mary J. Schoelen.
___________________________
DECIDED: April 13, 2009
___________________________
Before BRYSON, MOORE, Circuit Judges, and CUDAHY, Senior Circuit Judge. ∗
PER CURIAM.
DECISION
Lorenza Eady appeals from a decision of the Court of Appeals for Veterans Claims denying his request for attorney fees on the ground that he failed to establish that he was a prevailing party under the Equal Access to Justice Act. We affirm.
∗ The Honorable Richard D. Cudahy, Senior Circuit Judge, United States Court of Appeals for the Seventh Circuit, sitting by designation.
BACKGROUND
Mr. Eady served on active duty in the U.S. Army from September 1964 to October 1975. In November 1975, Mr. Eady filed a claim with the Department of Veterans Affairs (“DVA”) seeking disability compensation for a psychiatric condition. The DVA regional office granted Mr. Eady service connection for anxiety neurosis and assigned him a disability rating of 30%. Mr. Eady challenged that rating on the ground that he was “not employable” and was therefore entitled to a 100% disability rating. In April 1982, the Board of Veterans’ Appeals increased Mr. Eady’s disability rating to 50%, but it did not address the question whether Mr. Eady was entitled to total disability based on individual unemployability (“TDIU”). In February 1993, the regional office awarded Mr. Eady a 100% disability rating for post-traumatic stress disorder, effective as of January 27, 1989.
In May 1993, Mr. Eady filed a Notice of Disagreement alleging clear and unmistakable error (“CUE”) in the February 1993 decision that awarded him a 100% disability rating as of January 27, 1989. Mr. Eady contended that he had been 100% disabled since 1975 and that the 100% rating should have been made retroactive to that date.
The Board of Veterans’ Appeals ruled that there was no CUE in the February 1993 rating, and the Court of Appeals for Veterans Claims (“the Veterans Court”) affirmed. Mr. Eady appealed to this court, but we dismissed the appeal after the parties entered into a settlement agreement. The settlement agreement required the DVA to adjudicate whether Mr. Eady was entitled to TDIU based on any formal or informal claim filed for any period prior to January 27, 1989. In May 2004, the regional office denied
2008-7121 2
Mr. Eady’s claim for an earlier effective TDIU date on the ground that the Board had considered, but rejected, Mr. Eady’s assertion of unemployability in a July 1988 decision denying him an increased disability rating.
Mr. Eady then filed two separate actions with the Board: (1) a Notice of Disagreement with the May 2004 decision by the regional office, in which Mr. Eady contended that neither the Board nor the regional office had previously addressed his informal claims for TDIU, and (2) a motion for revision of the Board’s April 1982 decision that awarded Mr. Eady a disability rating of 50%, on the ground that the decision was the product of CUE because the Board had improperly applied 38 C.F.R. § 4.16, the DVA regulation pertaining to TDIU. The Board issued a decision that addressed both actions on September 23, 2004. With respect to the CUE claim, the Board determined that there was no CUE in the Board’s April 1982 decision. As for Mr. Eady’s notice of disagreement with the regional office’s May 2004 decision, the Board found that the regional office had not issued a statement of the case on the issue of whether Mr. Eady was entitled to an earlier effective date for a grant of TDIU. The Board therefore remanded for a statement of the case on that issue.
Mr. Eady took an appeal to the Veterans Court. On June 27, 2007, the Veterans Court vacated the Board’s decision denying Mr. Eady’s CUE claim because it found that the two claims that were before the Board were “inextricably intertwined”:
If the appellant prevails on either claim, he is entitled to an earlier effective date for the award of an increased rating for his service-connected anxiety condition. . . . [The] CUE claim relates to the same issues currently pending before [the DVA] in the non-CUE proceeding resulting from the settlement agreement, and . . . decisions in the non-CUE proceedings may render the claim of CUE moot. 2008-7121 3
The Veterans Court therefore concluded that it was “erroneous” for the Board to have issued a final decision on Mr. Eady’s CUE claim while remanding the TDIU claim. Accordingly, the court remanded the case to the Board to reconcile the inextricably intertwined proceedings. Eady v. Nicholson, No. 05-0024 (Vet. App. June 27, 2007).
Shortly after the remand order, Mr. Eady filed an application with the Veterans Court for attorney fees and expenses pursuant to the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412(d)(1)(A). The Veterans Court concluded that Mr. Eady was not a “prevailing party” under EAJA, and therefore denied his application for fees and other expenses. Eady v. Peake, No. 05-0024(E) (Vet. App. May 19, 2008). Mr. Eady then petitioned for review by this court.
DISCUSSION
With certain exceptions, EAJA provides that a “prevailing party” in a civil action brought by or against the United States is entitled to recover attorney fees and costs unless the government’s position was substantially justified. 28 U.S.C. § 2412(d)(1)(A). A party is considered to be a “prevailing party” if he received “at least some relief on the merits of his claim,” resulting in a “material alteration of the legal relationship of the parties.” Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep’t of Health & Human Res., 532 U.S. 598, 603, 604 (2001); see Brickwood Contractors, Inc. v. United States, 288 F.3d 1371, 1379 (Fed. Cir. 2002) (applying Buckhannon to EAJA).
Although remands by a court of appeals to a district court typically do not confer prevailing party status, remands from a federal court to an administrative agency can, in some circumstances, constitute the requisite relief on the merits. “[W]here the plaintiff secures a remand requiring further agency proceedings because of alleged error by the
2008-7121 4
agency, the plaintiff qualifies as a prevailing party . . . without regard to the outcome of the agency proceedings where there has been no retention of jurisdiction by the court.” Former Employees of Motorola Ceramic Prods. v. United States, 336 F.3d 1360, 1366 (Fed. Cir. 2003). Not every court-to-agency remand, however, confers prevailing party status. In order for the party to be considered “prevailing,” the remand order must have been “either explicitly or implicitly predicated on administrative error.” Davis v. Nicholson, 475 F.3d 1360, 1364 (Fed. Cir. 2007). The question in this case is therefore whether the Veterans Court’s remand order on June 27, 2007, was predicated on agency error.
We addressed that question in Gurley v. Peake, 528 F.3d 1322 (Fed. Cir. 2008). In that case, Mr. Gurley, a veteran, appealed to the Board seeking an increase in his disability rating for a knee injury. Mr. Gurley also claimed entitlement to service connection for a psychiatric disorder stemming from that injury, as well as entitlement to a disability rating based on TDIU. The Board issued a decision increasing the veteran’s disability rating for his knee injury but remanded both the psychiatric disorder claim and the TDIU claim to the regional office. Mr. Gurley filed an appeal in which he argued that the Board should not have separately addressed the knee injury claim while remanding the other related matters. The parties then filed a joint motion for remand, which the Veterans Court granted and incorporated by reference. The motion stated:
The parties agree that remand is warranted to comply with the Court’s holding in Harris v. Derwinski, 1 Vet. App. 180 (1991). Where the facts underlying separate claims are “intimately connected”, the interests of judicial economy and avoidance of piecemeal litigation require that the claims be adjudicated together. Smith v. Gober, 236 F.3d 1370, 1373 (Fed. Cir. 2001). The Court has held that where a decision on one issue would have a “significant impact” upon another, and that impact in turn “could render any review by this Court of the decision [on the other claim]
2008-7121 5
meaningless and a waste of judicial resources,” the two claims are inextricably intertwined. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991).
Gurley, 528 F.3d at 1325. Following the remand order, Mr. Gurley filed an EAJA application for attorney fees, costs, and expenses. The Veterans Court concluded that Mr. Gurley was not a prevailing party entitled to fees under EAJA because the remand order was not predicated on agency error. We affirmed, explaining that the “‘sole basis’ for the remand was judicial economy rather than administrative error.” Id. at 1328.
Mr. Eady’s case is controlled by the Gurley decision. The Veterans Court based its remand order on its conclusion that the CUE and TDIU claims, like the claims at issue in Gurley, were “inextricably intertwined” so that a decision on one claim could render a decision on the other claim moot. Furthermore, the Veterans Court expressly cited the Gurley case for the proposition that a remand would “serve[] the interest of judicial economy,” and it explained that it took no position on the merits of Mr. Eady’s CUE arguments or the substance of the Board’s decision. We therefore agree with the Veterans Court that the sole basis for the underlying remand order was judicial economy, and not agency error.
Mr. Eady contends that because the Veterans Court characterized the Board’s decision as “erroneous,” the court’s remand order was necessarily predicated on the recognition of agency error. The use of the word “error,” however, is not talismanic. The basis for the Veterans Court’s remand order was its finding that the two claims before the Board were inextricably intertwined and that addressing the two matters separately would frustrate the interest of judicial economy. That is precisely the rationale that was held not to constitute a finding of administrative error in Gurley, and it would be incongruous to reach a contrary conclusion in this case. Gurley stands for the
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proposition that a remand order based on the interest of judicial economy is not a remand predicated on agency error, and that proposition applies here, notwithstanding the Veterans Court’s use of the word “erroneous.”
Mr. Eady attempts to distinguish Gurley on the ground that in Gurley, the DVA agreed to a joint remand, whereas in this case, the DVA opposed remand. It is true that a defendant’s voluntary change in conduct is insufficient to confer prevailing party status on a plaintiff. See Buckhannon, 532 U.S. at 601. However, our conclusion in Gurley was not based on the fact that the parties had agreed to a joint remand, but rather flowed from the fact that the remand was intended to promote judicial economy by ensuring that related claims would be adjudicated together. The remand in this case was predicated on that same interest in judicial economy; for that reason, Mr. Eady does not enjoy prevailing party status. The fact that the DVA did not support the remand order does not alter that conclusion.
In support of his contention that the Veterans Court’s remand order was predicated on agency error, Mr. Eady cites our decision in Kelly v. Nicholson, 463 F.3d 1349 (Fed. Cir. 2006). In that case, the veteran filed a claim for service connection. Although medical records contained two diagnoses, olivopontocerebellar atrophy (“OPCA”) and ataxia, the Board considered only the OPCA diagnosis, and on the basis of that diagnosis alone concluded that his claim was not well grounded. The Veterans Court remanded the case for consideration of his ataxia-based theory. The veteran then filed a request for attorney fees. Although the Veterans Court denied the request, we reversed, holding that the remand order was predicated on agency error because
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the Board had “fail[ed] to consider all evidence and material of record before deciding a material issue on the merits.” Id. at 1354 n.***; see also id. at 1353.
In this case, the Veterans Court did not find that the Board erroneously rejected Mr. Eady’s claims on the merits, either by ignoring pertinent evidence or committing other legal error. Rather, the court ruled that, in order to serve the interest of judicial efficiency, the Board should have addressed both of Mr. Eady’s claims at the same time because a decision on one claim could render the other claim moot. The court stated that it “takes no position on the merits of the appellant’s CUE arguments, [or] the substance of the Board decision.”
To be sure, after concluding that a remand was appropriate to address both of the related claims in the same proceeding, the Veterans Court commented on what it saw as the “unfortunate” procedural history of Mr. Eady’s case:
When the RO undertook the review pursuant to the settlement agreement, it concluded that it was powerless to address the merits of the appellant’s argument because granting the relief sought would entail overturning a decision of the Board based upon the same facts that were before the Board. However, in the decision on appeal, the Board found that, assuming that the appellant raised a TDIU claim prior to its April 1982 decision, such a claim would not have been before the Board, but would have remained pending before the RO. The two seemingly contrary decisions leave the appellant without a forum for [the DVA] to address his TDIU arguments. Such a result cannot be correct. . . . On remand, the Board and the Secretary should do everything in their power to straighten out the procedural quagmire that this case has become so that the Court’s next review of this case, if necessary, can be on the merits of the appellant’s arguments.
Those comments did not reflect disagreement with the merits of the Board’s ruling on the CUE claim. Rather, the problem that the Veterans Court characterized as a “quagmire” was the procedural problem that prevented Mr. Eady’s TDIU claim from being heard in the first instance.
2008-7121 8
2008-7121 9
As in Gurley, the court’s remand order was predicated solely on an interest in judicial economy. Its remand order was not based on the “unfortunate” procedural circumstances that led to Mr. Eady’s appeal. The court addressed those circumstances in order to clarify that the DVA should take steps to ensure that Mr. Eady gets a chance to be heard on the merits of his TDIU claim. But the sole issue that was before the Veterans Court on appeal was Mr. Eady’s CUE claim, and the court remanded the case because it concluded that, for reasons of efficiency, the Board should not have ruled on that CUE claim separately from Mr. Eady’s related TDIU claim.
Finally, Mr. Eady asserts that under EAJA, the DVA must be correct as to both its administrative and litigation positions, and he contends that the DVA took an incorrect litigation position in this case by opposing Mr. Eady’s motion to stay the proceedings before the Veterans Court and by asking the court to dismiss the case. EAJA, however, requires a party to prevail in order to receive attorney fees, and the validity of the government’s position is irrelevant to the question whether a party has prevailed. In the case that Mr. Eady cites to support his “litigation position” argument, Scarborough v. Nicholson, 19 Vet. App. 253 (2005), the question whether the DVA’s position was substantially justified was relevant only because it was undisputed that the remand was predicated on administrative error and thus that the plaintiff had prevailed, id. at 260. We agree with the Veterans Court that Mr. Eady was not a prevailing party entitled to attorney fees and costs under EAJA, because the remand order was not predicated on agency error.

FedCir. Jandreau v. Nicholson, No. 2007-7029

This is the html version of the file http://www.ll.georgetown.edu/federal/judicial/fed/opinions/07opinions/07-7029.pdf.
Google automatically generates html versions of documents as we crawl the web.
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United States Court of Appeals for the Federal Circuit
2007-7029
ALVA JANDREAU,
Claimant-Appellant,
v.
R. JAMES NICHOLSON, Secretary of Veterans Affairs,
Respondent-Appellee.
Ronald L. Smith, Disabled American Veterans, of Washington, DC, argued for
claimant-appellant. With him on brief was Zachary M. Stolz.
Leslie Cayer Ohta, Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, of Washington, DC, argued for respondent-appellee.
With her on the brief were Peter D. Keisler, Assistant Attorney General; Jeanne E.
Davidson, Director; and Mark A. Melnick, Assistant Director. Of counsel on the brief were
Michael J. Timinski, Deputy Assistant General Counsel; and Y. Ken Lee, Attorney, United
States Department of Veterans Affairs, of Washington, DC.
Appealed from: United States Court of Appeals for Veterans Claims
Chief Judge William P. Greene, Jr.
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United States Court of Appeals for the Federal Circuit
2007-7029
ALVA JANDREAU,
Claimant-Appellant,
v.
R. JAMES NICHOLSON, Secretary of Veterans Affairs,
Respondent-Appellee.
___________________________
DECIDED: July 3, 2007
___________________________
Before MICHEL, Chief Judge, and BRYSON and DYK, Circuit Judges.
DYK, Circuit Judge.
Alva Jandreau (“Jandreau”) appeals the judgment of the United States Court of
Appeals for Veterans Claims (“Veterans’ Court”). That court affirmed an earlier decision
of the Board of Veterans’ Appeals (“Board”) that denied service connection for residuals
of a right-shoulder dislocation. We reject appellant’s argument that the evidentiary
standard should be relaxed, but hold that the Veterans’ Court improperly held that lay
evidence cannot be used to establish a medical diagnosis. We remand for further
proceedings consistent with this opinion.
BACKGROUND
Jandreau served honorably in the U.S. Army from May 1957 to May 1959. In
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May 1997, Jandreau filed a claim with the Veterans Administration (“VA”) for residuals
of a right shoulder injury. He asserted that the injury to his shoulder had occurred
during basic training at Fort Dix, when he had dislocated his shoulder and had been
treated for his injury on the base. The VA attempted to obtain Jandreau’s service
medical records, but was unable to do so because those records had been destroyed in
a 1973 fire at the National Personnel Records Center in St. Louis.
In an effort to provide the necessary evidence as support for his claim of service
connection despite the destruction of the records, Jandreau submitted a number of
documents to the VA. He submitted a statement from a fellow serviceman, Frederick
Burnham, averring: “I remember Alva [Jandreau] being in great pain after dislocating his
shoulder while in training.”
1
J.A. at 35. Jandreau also submitted multiple medical
reports, detailing medical examinations conducted in 2000. Those reports stated that
Jandreau suffered pain, arthritis and rotator cuff impingement in his right shoulder. In
particular, one report by Dr. Timothy Snell, M.D., assesses Jandreau’s condition as
“[r]ight shoulder pain, most likely sequelae of his dislocation of the shoulder.” Id. at 7.
Jandreau also submitted a radiology report indicating a history of right-shoulder
dislocation and pain and documents indicating treatment for that condition.
The VA denied service connection because “no medical evidence was received
showing continuity of treatment for the right shoulder since discharge from military
service.” J.A. at 78. Jandreau appealed to the Board, which issued its decision on May
1
The VA specifically allows veterans to introduce into evidence statements
of fellow service members when records were destroyed in the 1973 fire.
See
Veterans Benefits Administration Adjudication Procedures Manual M21-1MR, part III,
subpart iii, ch. 2, § E.27.b (2005), available at http://www.warms.vba.va.gov/admin21/
m21_1/mr/part3/subptiii/ch02/ch02_sece.doc, page 2-E-5.
2007-7029
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27, 2004. The Board denied service connection for Jandreau’s injury, reasoning that
Dr. Snell’s report merely recorded Jandreau’s assertion that he had suffered a
dislocation but did not diagnose a dislocation when it occurred. The Board stated that
“the Board is not required to accept evidence that is simply information recorded by a
medical examiner, unenhanced by medical opinion.” J.A. at 13. It further concluded
that “[m]edical diagnosis and causation involve questions that are beyond the range of
common experience and common knowledge, and require the special knowledge and
experience of a trained physician.” Id. The Board rejected the testimony of both
Jandreau and his fellow serviceman, because “[w]hile the veteran and his buddy are
arguably competent to present evidence concerning the occurrence of an injury, they
are not competent to present evidence to establish the etiology of a current disability.”
Id. The Board thus found that “there is no competent evidence on file linking the
veteran’s current right shoulder disabilities to service or to any incident therein.” Id.
Jandreau appealed to the Veterans’ Court, which affirmed the Board’s decision.
The court concluded that the Board did not err in rejecting lay evidence that Jandreau
suffered a dislocation during service and “did not err in discounting Dr. Snell’s medical
opinion because it was premised on a fact that Mr. Jandreau was not competent to
establish—that he had dislocated his shoulder during service.” Jandreau v. Nicholson,
No. 04-1254, slip op. at *3 (Vet. App. Aug. 24, 2006). The court held that “[w]here the
determinative issue involves either medical etiology or a medical diagnosis, competent
medical evidence is required; however, lay assertions of symptomatology or injury may
suffice where the determinative issue is not medical in nature.” Id. Thus the court held
that “whether [Jandreau] experienced a dislocation of his shoulder requires a medical
2007-7029
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diagnosis.” Id.
Jandreau timely appealed the decision of the Veterans’ Court to this court. We
have jurisdiction pursuant to 38 U.S.C. § 7292(a). Cromer v. Nicholson, 455 F.3d 1346,
134-49 (Fed. Cir. 2006).
DISCUSSION
I
On appeal Jandreau first argues that the destruction of records while in the
government’s custody should result in a relaxed evidentiary standard for veterans. We
reject this argument.
The statute provides that “a claimant has the responsibility to present and
support a claim for [VA] benefits.” 38 U.S.C. § 5107(a). In our decision in Cromer, 455
F.3d 1346, we considered and rejected the argument that service connection should be
presumed when a veteran’s medical records are destroyed while in the government’s
custody. 455 F.3d at 1350-51. In Cromer, the medical records were destroyed in the
same 1973 fire at the National Personnel Records Center that resulted in the presumed
destruction of Jandreau’s records. See id. at 1347. We reasoned that the veteran has
the evidentiary burden of establishing his claim in veterans’ benefits cases and that
Congress and the VA have specifically shifted that burden in particular cases, but have
not done so here. Id. at 1350-51. We further noted that the VA has eased the
evidentiary burden on veterans whose records were lost in the 1973 fire, but has not
provided for an adverse presumption of service connection. Id. at 1351.
2
2
See Veterans Benefits Administration Adjudication Procedures Manual
M21-1MR, part III, subpart iii,
ch. 2, § E.27.b (2005), available at
http://www.warms.vba.va.gov/admin21/m21_1/mr/part3/subptiii/ch02/ch02_sece.doc,
2007-7029
4
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Jandreau on appeal does not deny that our decision in Cromer is controlling on
the issue of burden shifting, but asserts that his claim is different because he asserts
only that his burden of proof should be “somewhat relaxed.” Reply Br. at 1. To the
extent Jandreau seeks a modification of his burden of proof, we see no material
difference between his argument and the argument we rejected in Cromer. To the
extent that Jandreau seeks to invoke traditional evidentiary adverse inference rules, we
find those rules to be inapplicable, even if we were to agree that they apply in the
context of VA proceedings. The general rules of evidence law create an adverse
inference when evidence has been destroyed and “(1) . . . the party having control over
the evidence had an obligation to preserve it at the time it was destroyed; (2) . . . the
records were destroyed with a culpable state of mind; and (3) . . . the destroyed
evidence was relevant to the party’s claim or defense such that a reasonable trier of fact
could find that it would support that claim or defense.” Residential Funding Corp. v.
DeGeorge Fin. Corp., 306 F.3d 99, 107 (2d Cir. 2002) (internal citation and quotation
marks omitted); see also 31A C.J.S. Evidence § 168 (2007); 2 Kenneth S. Brown,
McCormick On Evidence § 264 (6th ed. 2006). The burden is on the party seeking to
use the evidence to show the existence of each criterion. Residential Funding, 306
F.3d at 107. There is no claim here that the records were willfully or recklessly
destroyed. While some circuits have held that a showing that a party was negligent in
page 2-E-5 (listing alternate documents, such as statements from service medical
personnel, statements of fellow service members, letters, photographs or prescription
records, state or local accident and police reports, that the veteran can provide to
substitute for documents destroyed in the 1973 fire).
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the destruction of records creates an adverse inference,
3
we need not decide whether
that is the correct rule because Jandreau conceded at oral argument that there was no
evidence of government negligence leading to the destruction of the records.
II
Jandreau’s second argument on appeal is that the Veterans’ Court erred in
holding that that lay evidence is insufficient “where the determinative issue involves
either medical etiology or a medical diagnosis,” and that accordingly, “whether
[Jandreau] experienced a dislocation of his shoulder requires a medical diagnosis.”
Jandreau, No. 04-1254, slip op. at *3. We agree. The holding of the Veterans’ Court is
inconsistent with our decision in Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir.
2006), which was decided shortly before the decision of the Veterans’ Court in this
case.
Buchanan involved a situation where the veteran claimed service connection
resulting from schizophrenia that allegedly began during his service. The veteran
sought to establish service connection by submitting affidavits of relatives and his
commanding officer testifying that his symptoms of paranoid schizophrenia first
manifested themselves during service, as well as a medical opinion from 2001, almost
twenty years after the conclusion of his service, that stated that his symptoms first
3
See Residential Funding, 306 F.3d at 108; Rogers v. T.J. Samson Cmty.
Hosp., 276 F.3d 228, 232 (6th Cir. 2002). Other circuits have held mere negligence
insufficient to apply an adverse presumption. See, e.g., Aramburu v. The Boeing Co.,
112 F.3d 1398, 1407 (10th Cir. 1997); Bashir v. Amtrak, 119 F.3d 929, 931 (11th Cir.
1997); Brewer v. Quaker State Oil Ref. Corp., 72 F.3d 326, 334 (3d Cir. 1995); Vick v.
Texas Employment Comm’n, 514 F.2d 734, 737 (5th Cir. 1975); see also Med. Lab.
Mgmt. Consultants v. Am. Broad. Co., 306 F.3d 806, 824 (9th Cir. 2002); Jackson v.
Harvard University, 900 F.2d 464, 469 (1st Cir. 1990).
2007-7029
6
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appeared during service. Id. at 1333. The Board determined that lay evidence without
confirmatory documentary evidence cannot be credible, and the Veterans’ Court
affirmed. Id. at 1337. We reversed, holding that numerous veterans’ statutes and
regulations require consideration of lay evidence. Id. at 1334-35; see also 38 U.S.C.
§§ 1154(a), 5107(b); 38 C.F.R. §§ 3.303(a), 3.307(b). In other words we found that the
statute makes clear that, in the veterans’ context, traditional requirements for
admissibility have been relaxed. See 38 U.S.C. § 5107(b) (“The Secretary shall
consider all . . . lay and medical evidence of record in a case . . . with respect to
benefits.”). We concluded that “lay evidence is one type of evidence that must be
considered” and that “competent lay evidence can be sufficient in and of itself.”
Buchanan, 451 F.3d at 1335. We noted that the Board retains discretion to make
credibility determinations and otherwise weigh the evidence submitted, including lay
evidence. Id. at 1336-37. The rule announced in Buchanan is particularly important
when veterans’ service medical records have been destroyed. Unless lay evidence
were allowed, it would be virtually impossible for a veteran to establish his claim to
service connection in light of the destruction of the service medical records.
Under Buchanan the conclusion of the Veterans’ Court that “competent medical
evidence is required . . . [when] the determinative issue involves either medical etiology
or a medical diagnosis” is too broad. Jandreau, No. 04-1254, slip op. at *3. Lay
evidence can be competent and sufficient to establish a diagnosis of a condition when
(1) a layperson is competent to identify the medical condition,
4
(2) the layperson is
4
Sometimes the layperson will be competent to identify the condition where
the condition is simple, for example a broken leg, and sometimes not, for example, a
form of cancer.
2007-7029
7
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2007-7029
8
reporting a contemporaneous medical diagnosis, or (3) lay testimony describing
symptoms at the time supports a later diagnosis by a medical professional. Contrary to
the Veterans’ Court, the relevance of lay evidence is not limited to the third situation, but
extends to the first two as well. Whether lay evidence is competent and sufficient in a
particular case is a fact issue to be addressed by the Board rather than a legal issue to
be addressed by the Veterans’ Court. We do not reach the question whether in the
present case the lay evidence is competent and sufficient to establish shoulder
dislocation, a matter beyond our jurisdiction. We remand to the Veterans’ Court so that
it may remand to the Board for further consideration under the correct legal standard.
CONCLUSION
For the foregoing reasons, the decision below is
REVERSED AND REMANDED
COSTS
No costs.

Delays, Ebert v. Brown, No. 92-1402, sanctions

The Veterans Court decision in Ebert v. Brown, No. 92-1402, is one of the most cited decisions were delays are invovled. As the VA states here: “the Court has indicated that a replication of the delays encountered in Ebert may result in sanctions now that the Department is on notice of its opinion.

“In order to avoid this kind of difficulty in the future, procedural changes should be considered for adjudicating claims when an unrelated appeal has been certified to the BVA or is before the Court. In order to determine whether or not a new claim may be unrelated, regional offices will need to know what issues were appealed (refer to M21-1, Part IV, 8.34(a)(2) and 8.37(a)) and whether or not the new claim is clearly unrelated (see para 8.20(c)).

Sometimes the regional office may need to telephone General Counsel staff to determine jurisdiction over some aspect of a new claim, such as entitlement to benefits under 38 CFR 4.29 when the Court is considering a denial of increased benefits for the same disability. In other cases, it will be clear that there is a new issue which is unrelated to matters on appeal, such as entitlement to benefits under 38 CFR 4,29 for a different disability.

When it is determined that the regional office has jurisdiction over a new claim, the folder should be obtained from BVA or General Counsel (ordinarily, a temporary transfer will be authorized unless the file is under active consideration by a BVA panel or appellate attorney). If transfer must be delayed, either a folder extract or future pending issue control may be appropriate depending on the issues involved and expected folder availability.”

INDEX

Court of Veterans Appeals Cases

Docket Number Name Page

92-1402 Ebert
DECISION ASSESSMENT DOCUMENT

DOCKET NUMBER: 92-1402 ACTIVITY: Authorization, Rating

NAME: Ebert v. Brown

ISSUE: Sanctions, writ of mandamus

ACTION BY COURT: Denied Date: 3/29/93

Held: That petitioner failed to show clear entitlement to the writ, and that bad faith was not demonstrated in this case for the purpose of imposing sanctions against the Secretary.

Facts:

The veteran submitted a claim for compensation in October 1990. Before it was developed, the claims folder was transferred to a different regional office in conjunction with certification of a loan guarantee waiver issue to the Board of Veterans’ Appeals. The BVA rendered its decision in June 1991, and returned the claims folder to the originating office. The file was kept in COVA files subsequently until September 1991, at which point it was returned to the regional office of jurisdiction to develop the pending claim. While development was undertaken, a VA examination request was lost following transmission to the hospital (which was itself in another state). A notice of appeal was filed with the Court of Veterans Appeals in October 1991, and the file was transferred to the Office of General Counsel in November. It was returned to the regional office in September 1992, and a VA examination was finally conducted in December. [The claim was ultimately adjudicated in March 1993.]

In the meantime, the veteran had obtained a copy of his claims file [from General Counsel], and filed motions for sanctions and a writ of mandamus because of the delay in scheduling an examination. He noted that the VA could have copied his file and addressed his compensation claim earlier even though the claims folder was required by the BVA and General Counsel on an unrelated matter.

Court Analysis:

The Court noted that it may issue extraordinary writs and compel action which is unreasonably delayed. In this case, however, the Secretary had conducted the examination at issue and the petition for a writ was considered moot.

Separately, the Court observed that it has statutory authority to punish contempt for its authority based on misbehavior, disobedience or resistance, and has an inherent power to sanction those who abuse the judicial process. In each case, the Court must determine that the conduct at issue actually abused the judicial process. In addition, a finding that the conduct constituted bad faith is a precondition to imposing sanctions under the Court’s inherent power.
Although the Court found the two-year delay inexcusable, there had been no instance of misbehavior, disobedience, or resistance. In addition, the Court found that the Secretary’s conduct in this case had not involved bad faith. Finally, the Court admonished that:

Nevertheless, the Secretary is now on notice as to the inexcusability of such conduct. In the future, the Court may deem that inexcusable delays, in appropriate cases, meet the prerequisite of bad faith necessary to the Court’s imposition of sanctions under its inherent authority.

Service Analysis:

The Court’s inherent power and express statutory authority to impose sanctions and punish contempt, individually or institutionally, was addressed in Jones v. Derwinski, 1 Vet. App. 596, 605-608 (1991). While the Court was mindful of the need to exercise restraint in Jones, the limit of its patience had been reached in that particular case. Similarly, the Court has indicated that a replication of the delays encountered in Ebert may result in sanctions now that the Department is on notice of its opinion.

In order to avoid this kind of difficulty in the future, procedural changes should be considered for adjudicating claims when an unrelated appeal has been certified to the BVA or is before the Court. In order to determine whether or not a new claim may be unrelated, regional offices will need to know what issues were appealed (refer to M21-1, Part IV, 8.34(a)(2) and 8.37(a)) and whether or not the new claim is clearly unrelated (see para 8.20(c)).

Sometimes the regional office may need to telephone General Counsel staff to determine jurisdiction over some aspect of a new claim, such as entitlement to benefits under 38 CFR 4.29 when the Court is considering a denial of increased benefits for the same disability. In other cases, it will be clear that there is a new issue which is unrelated to matters on appeal, such as entitlement to benefits under 38 CFR 4,29 for a different disability.

When it is determined that the regional office has jurisdiction over a new claim, the folder should be obtained from BVA or General Counsel (ordinarily, a temporary transfer will be authorized unless the file is under active consideration by a BVA panel or appellate attorney). If transfer must be delayed, either a folder extract or future pending issue control may be appropriate depending on the issues involved and expected folder availability.

Considering that sanctions may be ordered if a claim is unduly delayed, regional office controls will be needed to ensure that issues within its jurisdiction are addressed in a timely fashion. In addition, copies of claims and transmittals should be retained when correspondence or evidence is referred to General Counsel or BVA for review.

RECOMMENDED VBA ACTION:

Revise M21-1, Parts II (consider para. 3.25(g), 4.16, 4.18(c)), III (consider Chapter 2), and IV (consider para 8.37, 38.02,) as required, so that new claims will be controlled and adjudicated when an appeal is pending at BVA or before the Court of Veterans Appeals. Procedures should be coordinated with BVA and General Counsel for requesting temporary transfer of claims folders when necessary, and for documenting referral of correspondence or evidence when regional office jurisdiction over new issues is unclear.

ACTION BY DIRECTOR:

Approved?

X /S/ 4/28/93
Yes No J. Gary Hickman Date

How to deny claims, conference call, Collier, 1992

This judicial review conference call is of the type where the VA instructs their personnel on the way in which to deny claims, as in this statement: “Second, in the way of administrative details I would like to strongly recommend that rating specialists read the case of Collier v. Derwinski, U.S. Vet. App. No. 90-882, and that is docket no. (90-882). We anticipate it will be published in the May volume of the Veterans Appeals Reporter, but is currently available on WESTLAW if you have access to that system. The decision provides an excellent discussion of how the facts in that case were sufficient to justify a finding of sustained improvement necessary for reduction of an evaluation.

JUDICIAL REVIEW CONFERENCE CALL
April 2, 1992

Good Morning. I am Gary Hickman, Director of the Compensation and Pension Service. This is the first in a series of conference calls dealing with the Court of Veterans Appeals and the impact their decisions are having on the adjudication process at the regional office.

A schedule of future calls will accompany the transcript of this one. In general the COVA conference calls will be on the first Thursday of each month. Starting times will vary so be alert. We will continue to have our monthly management calls on the 3rd Thursday of each month.

After today, our plan is to discuss primarily those cases handed down over the previous 30 day period. For example, the next COVA call is scheduled on May 7. We will E-mail assessment documents on the significant cases in April to you on April 30. These cases, your questions on them as well as other COVA/BVA/GC issues will represent the agenda for the May 7 call.

With me this morning is Jack Thompson and Norm Cooper of the General Counsel’s Office and Rich Frank of the Board of Veterans Appeals. Also in attendance are members of the Compensation and Pension Service.

As of February 20, 1992, 4,250 appeals had been placed on the docket with the Court. The court affirmed 286; remanded 364; reversed 46 and dismissed 1,206. There were 2,348 cases awaiting to be decided.

It is our assessment that our decision makers (rating specialists and hearing officers) do not always receive guidance in a timely manner or if they do there is a lack of understanding of this guidance.

Remember, the courts decisions are precedent and effective on the date they are issued. In some respects, they are like the public laws passed by Congress and must, therefore, be adhered to in a timely and responsible manner.

In my mind, there are two basic goals to achieve from these calls: The What! and the How!

1. THE WHAT! What do these cases represent and
2. THE HOW! How do we implement them.

With that as the introduction, I will now turn the microphone over to Bob White, Chief of the Judicial Review Staff of the Compensation and Pension Service. Bob.
BOB WHITE

Thank you Gary and good morning everyone and welcome to the first Judicial Review Hotline conducted by the Compensation and Pension Service. As Gary indicated, for the foreseeable future we expect this Hotline to be a monthly event, generally to be held at 11:00 am on the first Thursday of each month. Advance notice will be provided if there are schedule variations. Field station attendance at these Hotlines is not limited in any way but should include, at a minimum, the Adjudication Officers, the Rating Boards and the Hearing Officers since most of the significant court cases to date have dealt with compensation and pension issues. The General Counsel has also encouraged District Counsels to attend.

For District Counsels and others who may wish to dial in to this Hotline from locations other than Regional Office Conference Rooms, they may do so by dialing 9-1-800-767-1950. They should dial in 5 minutes before the scheduled start of the Hotline and should keep background noise to a minimum to avoid network disruptions.

I would like to mention two other administrative details before we get started. First, it has come to our attention from a variety of sources that there still exist within the Department isolated stocks of obsolete forms and form letters which contain outdated, erroneous and in some cases legally objectionable language. The forms and form letters range from old appellate notice forms to old cover letters for Supplemental Statements of Case which should, by the way, currently be identified with the designation “April 1991 (RS)”. The Nagler/Jones and Jones/Snyder cases should have made it abundantly clear that sanctions, not against the Agency, but against individuals for release of legally objectionable material are a real possibility. I have heard anecdotally that a manager recently conducted a desk audit and was absolutely amazed at what he found in the way of obsolete forms that could be inadvertently released. Given the current judicial climate with respect to this issue, all managers may wish to consider such desk audit procedures.

Second, in the way of administrative details I would like to strongly recommend that rating specialists read the case of Collier v. Derwinski, U.S. Vet. App. No. 90-882, and that is docket no. (90-882). We anticipate it will be published in the May volume of the Veterans Appeals Reporter, but is currently available on WESTLAW if you have access to that system. The decision provides an excellent discussion of how the facts in that case were sufficient to justify a finding of sustained improvement necessary for reduction of an evaluation. By the way, if any office is having difficulty with their subscription to the Veterans Appeals Reporter, please let me know and we will contact West Publishing for you.

The purpose of this Hotline is to disseminate, directly to the decision makers at the Regional Offices, the policy and procedural changes mandated by decisions of the Court of Veterans Appeals. Decisions of the Court are effective immediately upon issuance of the opinions, but of course, Regional Offices cannot implement those decisions unless and until they have notice of them. It is our job to provide you with the essence of Court decisions and their meaning with respect to any necessary changes in the claims adjudication process, just as quickly as possible. To that end we will continue to issue Interim Instruction letters by electronic mail on fast breaking major policy issues, and we will continue to periodically provide you with copies of our decision assessment documents, the Court of Veterans Appeals Notes from the General Counsel and the BVA Chairman’s Memoranda on issues affecting the appellate review of claims. Future Judicial Review Hotlines will reinforce the policies and issues presented in the mailings of the previous month and will address specific questions about those and other issues which participants may wish to raise. In that regard, please get your questions to me as early in the month as possible, and please include any general topics you think would be of interest for a more in-depth treatment on future Hotlines.

The format for today’s Hotline will be slightly different from that of future Hotlines. The Judicial Review Staff will make brief presentations on some of the more significant issues raised by Court decisions since the Court began operations in 1989. This will be followed by a discussion of some more recent Court decisions and a General Counsel Opinion that affect claims processing. After that we will provide answers to some of the questions you E-mailed to us last week, and finally we will throw the floor open to questions from the field as time permits.

With regard to the question and answer session, we do not intend to make policy “on the fly”. If we know the answer to a question, you will have an immediate response. If there is some question as to the appropriate response, we will develop an answer and provide it to you, either with the transcript of the Hotline or verbally at the next Hotline. When you ask questions, please identify yourself by name and Regional Office so that everyone will know where the question is coming from and please hold your questions until the presentations are over and questions are invited.
Lastly, I have to say, unfortunately, that everything said here today is subject to change. We are trying to implement Court decisions as reasonably and as quickly as possible, but we are not the last word on what a Court decision means. The Court is. We are operating in an ever-changing environment, and we must be prepared to react to change as change occurs. With that, I would now like to begin the substantive part of this Hotline with a brief presentation by Judy Veres on the issues of “duty to assist” and “new and material evidence”.
Judy.

JUDY VERES

Thank you Bob. Good Morning.

DUTY TO ASSIST

On Duty to Assist the Court has issued a multitude of decisions which deal with VA’s “duty to assist” a claimant in developing for evidence that has a bearing on the claim. Before you can deny a claim for benefits, you must be sure that our “duty to assist” has been met. You must thoroughly review the claims folder to determine that all evidence has been either obtained or that an attempt has been made to obtain all evidence pertinent to the pending issues. In chronological order of the decisions, the following cases outline specific requirements for meeting our obligations. The first case was

Jolley v. Derwinski, l Vet. App. 37 (l990), decided on October 3, 1990. In that case the Court said that we have a statutory duty to assist a claimant in developing facts pertinent to his claim which includes searching for all records in VA’s possession.

On November 8, 1990, the Court issued Murphy v. Derwinski, l Vet. App. 78 (l990), which held that we must develop all relevant facts pertinent to the claim, not just those for or against the claim.

The Littke v. Derwinski, l Vet. App. 90 (l990), case issued on December 6, 1990, requires the VA to develop pertinent facts from all sources and conduct a thorough medical examination when there is evidence of a significant change in the claimant’s condition. VA examinations must meet the requirements of the Physician’s Guide and, if they don’t, must be returned as inadequate.

On January 11, 1991 in Akles v. Derwinski, l Vet. App. 90 (l99l), it was held that our duty to assist extends to all benefits a veteran may be entitled to under the law, even if not specifically claimed.

In Craft v. Derwinski, U.S. Vet. App. No. 90-508, decided on July 30, 1991, the Court stated that decisions in denial of pension claims which do not establish an evaluation for each diagnosed disability are deficient. If medical evidence is not sufficient to establish an evaluation for any one disability, then we have failed our “duty to assist” by not obtaining additional medical evidence before a final decision is made.

The Sokowski v. Derwinski, U.S. Vet. App. No. 89-82, case, issued the next day on July 31, 1991, stated that at a minimum, a VA physical examination or an independent medical examination for the purpose of evaluating the relationship between the veteran’s current condition and the circumstances of his military service is required.

In the Schafrath v. Derwinski, l Vet. App. 589 (l99l), case released on November 26, 1991, the Court held that all VA records cited by the claimant as well as those not specifically cited but known to exist must be obtained. VA must attempt to obtain all nonVA records cited by the claimant.

The most recent case dealing with our “duty to assist” was Cashwell v. Derwinski, U.S. Vet. App. No. 90-967, issued on February 12, 1992. The Court held that our duty to assist includes an obligation to obtain the “record” of the Social Security Administration’s adjudication awarding the veteran disability benefits. When the Vocational Rehabilitation Service has determined that rehabilitation is medically infeasible, rating boards have an obligation to obtain those records and weigh the findings when making a decision on individual unemployability. The duty to obtain and consider vocational rehabilitation records in code 18 cases was also pointed out in the Cherepanik v. Derwinski, U.S. Vet. App. No. 90-l5l9, decision issued on January 9, 1992.

In summary, we have a “duty to assist” a claimant to develop facts pertinent to his/her claim. If there has been any reference made to additional evidence that the claimant believes will enhance his chances for a favorable decision, you must obtain all cited VA records and must attempt to obtain all cited nonVA records. You must also obtain all VA records that may be pertinent to the claim that you know about. For example, there is a report that the veteran was treated at a VAOPC and the issue involves either service connection for a disability or evaluation of a disability. Since the records may be pertinent to the claim, you must obtain them before a final decision is made. You must order VA examinations when appropriate and must return inadequate VA examinations before making a final determination. Once our records have been assembled then a final decision on an initial claim may be made. Or, a decision as to whether the evidence is “new and material” on a reopened claim can be made. Of course, a favorable decision on an issue may be made at any time during the processing of a claim.

The second topic I want to deal briefly with is New and Material Evidence.

NEW AND MATERIAL EVIDENCE

In order to determine if a claimant has submitted a reopened claim involving a previously denied issue, the Court has held that we must perform a two-step analysis of the evidence. This two-step process was outlined in Manio v. Derwinski, l Vet. App. l40 (l99l), issued on February 15, 1991.

Step 1 – You must determine if the evidence is “new and material. If the answer is yes, then the case is reopened.

Step 2 – If the case is reopened you must evaluate the merits of the claim in light of all of the evidence, both new and old. In other words, a de novo review of the record.

We have provided all regional offices with copies of the memoranda that have been issued by the Chairman of the Board of Veterans Appeals. His memorandum numbered 1-91-20 dated June 21, 1991 details how BVA members are to approach the issue of “new and material” evidence.

There has been one other important Court case in this area, Colvin v. Derwinski, l Vet. App. l7l (l99l), issued on March 8, 1991. That case defines evidence as “new” if it is not merely cumulative of other evidence on the record. Evidence is considered “material” if it is relevant and probative of the issue at hand. A third criteria that needs to be met before a claim is considered reopened is that there must also be a reasonable possibility that the new evidence, when viewed in the context of all the evidence, both new and old, would change the outcome of the previous decision.

BOB WHITE

Thank you Judy. Now we have Pat Carrington to briefly discuss a couple of cases dealing with Adequacy of Exams and Opinions from medical examiners. Pat.

PAT CARRINGTON

Thank you Bob.

ADEQUACY OF MEDICAL EXAMINATIONS & MEDICAL OPINION OF EXAMINERS

I will summarize briefly the facts and holdings in several cases which pertain to my subject. Adequacy of Medical Examinations and Medical Opinion of Examiners.

The first is Schafrath v. Derwinski, l Vet. App. 589 (l99l). In this case, the veteran had a service connected bone spur of the elbow, which had been evaluated as 10 percent disabling for 11 years. The evaluation was reduced from 10 percent to zero percent because the examination showed no limitation of motion. However, the physician noted that the olecranon tip was sensitive to pressure. On his Notice of Disagreement, the veteran repeatedly asserted that the pain in his elbow prevented him from working. These complaints were not considered in the BVA’s decision which upheld the regional office reduction. Heretofore, we may have considered the complaints of pain as subjective and/or self-serving. But the Court held that:

(1) Where a claimant asserts to the BVA facts which would support a rating of compensable functional disability due to pain, 38 CFR 4.40 must be applied. The Court stated that functional loss due to pain is to be rated at the same level as the functional loss where flexion is impeded.

(2) The court also held that to provide an adequate basis for fair adjudication, the examining physician’s report must furnish in addition to the etiological, anatomical, pathological, laboratory and prognostic data required for ordinary medical classification, a full description of the effects of disability upon the person’s ordinary activity.
(38 CFR 4.10)

The second case is Colvin v. Derwinski, l Vet. App. l7l (l99l), and concerns medical opinion of examiner. The history of this case is as follows:

In 1986, the BVA upheld the RO denial of service connection for multiple sclerosis. The veteran later submitted a statement from a private doctor, an eminent specialist in the field, whose opinion was that multiple sclerosis should be service connected. The RO again denied the claim and the BVA stated that the doctor’s statement was new but not material. In doing this the BVA was refuting the expert medical conclusions in the record with its own unsubstantiated medical conclusions.

The Court held that:

(1) The statement was new and material;

(2) The BVA may not rely on the medical credentials of the physician member to support a medical conclusion or to refute positive expert medical evidence in support of a claim. If the BVA is of the opinion that the medical evidence of record is insufficient, or of doubtful weight or credibility, the BVA is always free to supplement the record by seeking an advisory opinion, ordering a medical examination or citing recognized medical treatises in its decisions that clearly support its ultimate conclusions. This procedure ensures that all medical evidence contrary to the veteran’s claim will be made known to him and be a part of the record before the Court.

The Court also held that:

(3) The BVA must rely on independent medical evidence in reaching a decision.

In Tucker v. Derwinski, U.S. Vet. No. 90-672, the Court stated that the rating board chose to substitute its own opinion for that of the VA examining doctor instead of insisting on correction of the deficiency or an adequate examination. A medical opinion by an RO rating board or hearing officer is not independent medical evidence as defined in Colvin above, and thus cannot be relied on by a BVA panel to support its opinion. The Court stressed that much time and effort would be saved if the ratings boards insisted on adequate examination results initially rather than leaving the Board panels to do so.

In Fallo v. Derwinski, 1 Vet. App. l75 (l99l), the veteran sought SC for a duodenal ulcer as secondary to SC PTSD. The rating board reviewed private medical reports submitted by the veteran and denied the claim. The veteran reopened his claim which was again denied. With his NOD, he furnished statements of his psychiatrist and GI specialist. The psychiatrist stated that a duodenal ulcer could be exacerbated by stress and anxiety. The GI specialist stated that the veteran’s various upper GI symptoms could be due to or related to stress. The case went to the BVA where the Board upheld the RO denial using as its basis for denial that sound medical principles showed no causal relationship.

The Court held that:

(1) A medical opinion proffered by a BVA physician requires a statement of reasons and bases for the opinion and should include citations to relevant medical treatises, journals or other information relied upon.

The phrase, sound medical principles, can no longer be relied upon as a conclusory finding without adequate reasons and bases.

In Futch v. Derwinski, U.S. Vet. App. No. 9l-376, the Court stated that a medical opinion of a VARO rating board or BVA is of no evidential value.

BOB WHITE

Thank you Pat. we now have John Dun to give us a discussion of the Evaluation of Evidence and Continuity of Disability. John.

JOHN DUN

Thank you Bob. Good Morning everybody. I am going to address two issues today. The first concerns evaluation of evidence based on the statutory benefit-of-the-doubt rule, as interpreted by the Court in the Gilbert case. The second concerns two court decisions affecting the continuity, which I will discuss briefly.

BENEFIT OF THE DOUBT DETERMINATIONS

I. The Statute

Benefit-of-the-doubt determinations are now a matter of law.

38 USC 5107 (formerly 3007) describes the initial burden of proof a claimant must meet, the Department’s obligation to help such a claimant develop pertinent facts, and the standard by which the Department will ultimately resolve each issue raised.

It is important to note, from the outset, that application of this standard presupposes, as a matter of law, that the claim is “well-grounded”, or plausible, that the Department has assisted the claimant develop all the facts pertinent to the claim, and that the Department has further completed its preliminary consideration of all the evidence and material of record. At that point, the statute provides that when there is an approximate balance of positive and negative evidence regarding the merits of an issue, the benefit of the doubt in resolving each issue shall be given to the claimant.

II. Gilbert v. Derwinski, 1 Vet. App. 49 (l990)

The Gilbert v. Derwinski, l Vet. App. 49 (l990), decision, of October 1990, was the first major Court of Veterans Appeals precedent to impact the Department, in terms of fundamental decision-making guidelines.

The Court addressed the history of the “benefit-of-the-doubt” rule at some length. In addition to points already mentioned, the Court noted that determinations will be of qualitative character. The Court indicated it expects judgments to be made, but that these must be explained, to facilitate Court review.

III. Evaluation of Evidence

Prior to making a determination about entitlement, then, it is first necessary to determine which of the evidence is favorable, and which is unfavorable. In addition, the credibility and probative value of each item of evidence must be assessed with regard to the relative weight each should be accorded.

At this point, a decision can be made concerning whether or not the favorable evidence clearly outweighs the unfavorable evidence, or vice-versa. If the weight of the evidence dictates a favorable conclusion, there is no statutory requirement to explain the ensuing decision. In the case of an unfavorable determination, however, the law mandates reasoning adequate to provide sufficient notice, and both the BVA and Court will further require evidence that proper decision-making standards were actually applied. This means reducing the reasoning to writing, in such a way that both the claimant and the BVA can understand just how the evidence was evaluated and weighed.

If a claim is decided based on a fair preponderance of the evidence, it would not usually be necessary to discuss application of reasonable doubt. However, there will be occasions when VA has a “heightened obligation” to consider potential application of this rule, such as in fire-related cases (O’Hare v. Derwinski, l Vet. App. 365 (l99l)), or POW claims. In those instances, it will be necessary to explain why the rule was found inapplicable, if benefits are denied.
IV. Review of Terminology

When evaluating “evidence”, it is essential to have a clear background understanding of some associated terms.

Evidence has “probative value” to the extent it tends to prove an issue, by furnishing, establishing, or contributing toward such proof.

“Credible evidence”, or testimony, refers to evidence which is inherently believable, and which has been received from a worthy source.

A “credible person” is one who is trustworthy and of good repute. Credence is also accorded, or withheld, based on judgments involving the individual’s intelligence, expertise, knowledge of specific circumstances, and disinterested relationship to the matter in question.

Only credible evidence is weighed in reaching the ultimate decision.

I would like to turn lastly to two decisions concerning Continuity.

Court Decisions Concerning Continuity

I. Cartwright v. Derwinski, 2 Vet. App. 24 (1992)

(“Contentions” as Testimony)

In the Cartwright.v. Derwinski, case, the appellant had reported continuity of treatment during the years following service, and had provided lay evidence of continuity, along with medical evidence of treatment many years after service. The case was denied due to insufficient medical evidence of continuity to support the claim.

The Court held that there is no regulatory requirement for medical evidence of continuity, and that the appellant’s sworn testimony cannot be treated as only a part of his contentions. The case was accordingly remanded for consideration of the credibility of testimony, and for reasons or bases for rejecting the evidence in terms of the benefit-of-the-doubt rule.

The last case I would to discuss is Wilson v. Derwinski, 2 Vet. App. 16 (1992). Apart from defects of the BVA analysis and explanation, the court found that the claim is well grounded and according warranted in current examinations based on duty to assist obligations. The court indicated that a medical opinion would be required in any relationship between past and present back problems which was an issue in this case based on prior court precedents.

Thank you Bob.

Thank you John.

BOB WHITE

Before we get to answering questions we received this week, I would like to briefly mention two recent cases in a General Counsel precedent opinion. The first case I would like to mention is the Sabol Case.

Sabol v. Derwinski, U.S. Vet. App. No. 90-1123

On February 3, 1988, VA changed its rating criteria for psychiatric disorders to provide consistency in the adjectives used to describe the various levels of impairment, regardless of what the diagnosis actually was. As stated in the Federal Register at that time, the intended effect was NOT to automatically increase or decrease anyone’s evaluation.

Mr. Sabol claimed he was entitled to an automatic increase in compensation because disability had been found by a rating board, prior to 1988, to be “severe” and therefore 50% disabling, whereas under the new criteria “severe” was worth 70%. Without obtaining new medical evidence to ascertain the veteran’s current level of disability, BVA upheld the Regional Office’s confirmed 50% rating, stating that it now viewed the old examination reports as productive of only considerable impairment and therefore 50% disabling. In its decision the Court remanded the case to BVA for a better justification of the finding of considerable impairment in the face of a record which contained no new evidence subsequent to the previous finding of severe impairment. In a recent precedent opinion 9-92 the General Counsel held that BVA was perfectly free to make such a reassessment of the old evidence but it must fully justify its reasons for doing so.

The Sabol case does NOT stand for automatic increased ratings for certain psychiatric disabilities. When a claim for increase is received in a psychiatric case, especially if the issue of changed rating criteria is raised. Rating Boards must order current VA examinations and/or obtain all other available current medical evidence and apply the current rating criteria to that current_evidence. If that procedure is followed it should prevent the issue of “automatic” increases from being raised in the future.

CASHWELL v. Derwinski, U.S. Vet. App. No. 90-967

This case has been mentioned previously by Judy with regard to the duty to assist in developing claims. The Cashwell case together with its companion, Masors v. Derwinski, U.S. Vet. App. (90-540), requires that we obtain training feasibility determinations from our Vocational Rehabilitation counselors and the records on which disability Social Security was awarded whenever such records are noted to exist in connection with an individual unemployability or pension.

The point being made by these cases is NOT that our decisions are in any way controlled by the outcome of a Social Security or Vocational Rehabilitation decision. The point is that we cannot dismiss such evidence out of hand without seeing it. If it bears on the issue being considered, we have a duty to obtain the evidence, appropriately weigh it, and include those findings in our overall decision.

Lastly, I would like to mention the Office of General Counsel precedent opinion 7-92.

O.G.C. PRECEDENT 7-92

This opinion held that the provisions in M21-1 that create a presumption of adequate stressors to support a diagnosis of PTSD in certain circumstances actually constitute substantive rules that were never published for notice and comment in the Federal Register as required by the Administrative Procedures Act. In addition, since it was outside the Chief Benefits Director’s authority to publish such rules in a procedural manual, they are not binding on either the Board of Veterans Appeals or the Veterans Benefits Administration.

You should know that we plan to take two courses of action in response to this decision. In the short term, we intend to publish rules that will provide the necessary regulatory support for the offending language presently contained in the manual. In the meantime, the “automaticness” of the stressor presumption may not be cited in support of a grant of service connection for PTSD. This will not prevent you, however, from arriving at a favorable conclusion about the existence of a sufficient stressor based on the facts in an individual case.
For the long term, there is some concern that other provisions of the manual may also be viewed as substantive rules that have no regulatory authority for support. To alleviate that concern we will shortly undertake a review of the manual in an attempt to identify any such rules and decide whether we should provide the regulatory authority or formally withdraw the rules.

At this point we would like to provide brief answers, if we can, to the questions that were E-mailed to us earlier in the week. We have staffed out the questions and I am just going to have the consultants provide the answers in order. Judy is first.

JUDY VERES

Good morning again. The first question that I have is actually several questions that we have received over the past month or so in the C&P Service concerning the concept of “Sustained Improvement” including its impact on diseases such as osteomyelitis. This answer is a little more than brief but we felt it was necessary because of the importance of the question.

Q-1: Questions have been raised concerning the concept of “sustained improvement” including its impact on diseases such as osteomyelitis.

A: There have been several Court cases involving the reduction of an evaluation for a service connected disability. In these cases, the Court has been critical of our reducing an evaluation without evidence of “sustained improvement”. The first two cases that looked at the provisions of 38 CFR 3.344(c) were Karnas v. Derwinski, l Vet. App. 308 (l99l), decided on June 11, 1991 and Lehman v. Derwinski, l Vet. App. 399 (l99l), issued on July 1, 1991. Both of these cases involved reductions in evaluations of psychiatric conditions. The third important case was Schafrath v. Derwinski, l Vet. App. 589 (l99l), issued November 26, 1991 which involved a reduction of an evaluation for a service-connected elbow problem. In these cases, the Court found that the medical evidence did not support a finding that there was “sustained improvement” in a disability and therefore a reduction in evaluation was clearly erroneous. It appeared to the Court that the reductions were based solely on one VA examination without consideration as to whether the improvement had been “sustained” over a reasonable period of time. The Court’s decisions are clear that the medical evidence
must support a finding that improvement in a disability has been sustained for a reasonable period of time. Medical evidence to support a finding of “sustained improvement” can be from several different sources. For example, a VA examination together with outpatient treatment records covering a period of time could be adequate to support such a finding. Testimony from the claimant, either oral or written, together with current medical evidence may be adequate to support a reduction in an evaluation. What will not work, is a case in which a current examination is essentially the same as the previous examination which resulted in a confirmed and continued evaluation without any indication that the rating board found “improvement”. When appropriate, it is essential that specialists clearly state in a C&C rating, that improvement has been noted and that additional medical evidence will be obtained in the future to determine if the improvement is sustained. This requirement for “sustained improvement” before reduction in an evaluation of a service connected disability does not apply to disabilities such as osteomyelitis and TB for which the rating schedule specifically sets out criteria for reductions in evaluations.

In Peel v. Derwinski, U.S. Vet App. No. 90-359, issued February 18, 1992, the Court stated that failure to consider the provision of 3.344 before reducing a disability rating makes the reduction void ab initio. When that happens, the remedy is to restore the benefit retroactively.

Before I leave this topic, I would like to point out a recent decision, Collier v. Derwinski, U.S. Vet. App. No. 90-882, issued on March 12, 1992. The Court’s analysis of this case found that the medical evidence clearly established a period of “sustained improvement” and the reduction from a 100% to 70% evaluation for a psychiatric disorder was upheld. We anticipate that the Collier case will be in the May issue of “West’s Veterans Appeals Reporter”.

I have three additional questions I plan to cover briefly.

Q-2: M21-1, paragraph 55.03f, allows for examination by a Physician’s Assistant as long as the supervising physician furnishes the diagnosis and signs the report. Please comment on the impact of this, if any, in light of BVA remands for specialist examinations.

A: Soon to be released M21-1, Part VI, paragraph 1.03 expands the criteria for determining whether or not a VA examination is adequate as currently set out in M21-1 55.03. The examination should meet the clinical requirements of the Physicians Guide. A VA examination not meeting those requirements is inadequate. Paragraph 1.03f continues the allowance for a Physician’s Assistant provided the supervising physician furnishes the diagnosis and signs the examination report. When you request a specialist examination, the medical facility should have scheduled it with a physician who is a specialist in that area. If that specialist has a Physician’s Assistant who conducts a portion of the examination which is subsequently signed by the doctor and you deem the examination to be adequate as provided for in the Physician’s Guide, then the examination would in our opinion, be acceptable. Of course, if the examination was not scheduled to be conducted by a specialist in the requested area, but was accomplished by a Physician’s Assistant and signed by a nonspecialist, the examination would not be acceptable. It is ultimately the rating specialist’s decision as to whether or not an examination is adequate for making a final decision on the issue under consideration.

BOB WHITE

Thank you Judy. I am going to have to break in here, we have been advised that the hot line will be terminated at about 11:50 AM and I want to save some time to have the Regional Offices ask some questions from the floor. We have got some answers to other questions that were asked. We will send those out with the transcript of this hot line. At this time I will open the floor to questions from the field. Please state your name and where you are from.

RON HENKE

This is Ron Henke from Lincoln.

BOB WHITE

Yes Ron.

RON HENKE

A lot of this material has to deal with examinations and physicians and what not. Is VHA getting a similar hotline?

GARY HICKMAN

Ron, this is Gary. Their Director for Ambulatory Care will be starting a conference call similar to this in the very near future. That is Dr. Elwood Headley. So they are concerned and will be looking into it.

SKIP HILLS

Skip Hills from the Regional Office in St. Paul. I have a question pertaining 646’s. At least one service organization is citing COVA decisions on the 646. How do you want us to address this.

BOB WHITE

That is answered in one of the answers that will be provided with the transcript. So I encourage you to read that. Briefly, the naked citation of the court case without any discussion of how it applies to facts in the individual case should be developed with the Service Officer. He should be asked to provide his reasons or bases and why that decision applies. If the rating board does decide that the citation goes to the merits of the issue, then the rating board must make a decision and if the case is still denied provide a Supplemental Statement of the Case. If the Board decides that the case does not have any bearing on the issue under consideration, the case citation can be acknowledged on the rating on appeal and the case can be certified to BVA. Any other questions?

PAT COURTNEY

This is Pat Courtney in St. Louis. I am curious if the Board of Veterans Appeals is still using their staff to furnish medical opinions to the Board?

BOB WHITE

The answer to that is that their doctors are being used as medical advisors to the Board. Not as participants in the decision.

RICH FRANK (BVA)

As of this time we have a total of l3 physicians who are members of the board and who act as board members in every capacity as a attorney would. In addition to those l3, we have an additional group of physicians who are now not board members but are now medical advisors to the Board. They are used in two basic capacities. One as a quality reviewer of BVA decisions before they are dispatched and secondly, to act as regular medical expertise in response to any questions. But if they provide a response, it is in writing and a copy of that must be provided to both the veteran and to the representative and made formally a part of the record and, of course, opportunity for response has to be provided to the party.

Thank you Rich. I believe we have time for one more question.

TOM VERRILL

Tom Verrill from San Francisco. Concerning going to Social Security to get medical records. Historically they have not answered our request for medical records. And if you get the records back and they say that the person is unemployable under Social Security rules, would we be in a bind with respect to our own determinations?

BOB WHITE

I don’t believe you will be in a bind, you will have to weigh the decision and the evidence provided by Social Security and arrive at your own conclusion. As far as a procedure for requesting those records, we are going to get to work on that and see if we can develop a standardized procedure for getting those records available to you.

I think that’s just about it for this first hotline. Thank you all for tuning in and we will see you again on May 7th. Thank you.

ADDENDUM TO APRIL 2, 1992 JUDICIAL REVIEW HOTLINE

Q-3: NOD’s, and other forms of communication, are being received from National Service Officers’ listing COVA cases without legal citations, or any explanations or arguments as to how they are relevant to the instant case. Are we duty-bound to research the case, and make an assumption as to the relevance, or may we request the claimant/NSO to provide us with more details?

A: If the National Service Officer has raised a COVA case as part of the appellate process, he/she should be providing an explanation or argument as to how the case is relevant to the issue under appeal. Rating specialists may request the Service Officer/claimant to provide additional information before further action is taken on the appeal. This same rationale also applies to claims in which COVA cases have been raised by the NSO/claimant before a final decision is made.

Q-4: Can we discuss the cited cases on the Rating on Appeal form when we certify the case to BVA?

A: If the NSO provides an explanation or argument that goes to the merits of the issue, then the rating board must make a decision as to its applicability. If the issue is not granted, then a SSOC must be prepared to explain the board’s reasons or bases continuation of the previous decision. If the cited COVA decision has no bearing on the issue under consideration, then case citation can be acknowledged on the Rating on Appeal form as additional argument when the case is certified to BVA.

Q-5: Is it contemplated that the RO use the criteria that a claim is not “well-grounded” in denying such claim? In what instances would this be our posture? Is there any plan to create a separate regulation devoted exclusively to this concept?

A: We can use the criteria that a claim is not well-grounded when the claim is clearly and unmistakably implausible, not capable of substantiation. In Murphy v. Derwinski, l Vet. App. 78 l990), the Court states that the definition of a well grounded claim being neither defined by the statute nor the legislative history, must be given a common sense construction. The court stated that a well grounded claim is a plausible one, one which is meritorious on its own or capable of substantiation. Such a claim need not be conclusive but only possible to satisfy the initial burden of 38 CFR 5107. The regulations staff reports that there are no plans currently to create a separate regulation for the well grounded claim concept.

Q-6: When will a circular be issued pertaining to the payment of attorney fees under Public Law 100-687?

A: As of April 1992 the Projects Staff has written a draft of the revised circular for BVA’s review. BVA, and Finance, will have to concur, and then it will have to go back through Admin. It has been placed on an expedited track.

Q-7: What aspects of specific COVA decisions will be passed down to the RO for implementation as opposed to the Board of Veterans Appeals? Must an RO decision adhere to the same requirement under Colvin as that of the BVA?

A. The Judicial Review staff reviews each COVA decision. A decision assessment document is done on those decisions which do and may require a change in policy or approach or change in the way in which we have been interpreting the statutes and regulations. For all intents and purposes we are expected to adhere to the same requirements as the BVA. As stated earlier, in Futch and Tucker, the court stated that a medical opinion by a rating board/or hearing officer is of no evidential value.

Q-8: Are the BVA Chairman Memos informational or directive in nature?

A: The Chairman’s Memos are informational in character for the regional office.

Q-9: The next question involves what should be done prior to certification in order to avoid remands. By way of example, a “current” examination on appeal may become stale, and prompt BVA remand for another “current” examination.

A: Individuals certifying appeals should develop expertise in Court-related issues and references, such as the BVA Chairman’s memoranda, and be aware of BVA reasoning with respect to cases remanded locally. BVA requires full articulation of the reasons for remand in BVA decisions, and circulation of copies of representative remands may one way to disseminate information about any station trends requiring particular attention.

Memoranda of interest to those certifying appeals include the following:

01-91-12 Use of 38 C.F.R. 4.16(c) in Rating Psychiatric Disorders

01-91-20 Finality, New and Material Evidence, and Reopened Claims

01-91-25 Revised Review Process and Decision Format

01-91-27 Multiple Noncompensable Disabilities in Cases for Increased Ratings

01-91-30 Percentage Disability Ratings in Pension Cases

01-91-39 Remands to Agencies of Original Jurisdiction

01-92-03 Appeals involving Increased Ratings

Current” examinations are required for substantive reasons, including those associated with VA duty-to-assist obligations, as interpreted by the Court. Regional Office personnel are accordingly obliged to request “current” examinations, if otherwise in order, without regard to whether or not BVA, or the Court, may ultimately remand the case for another examination.

While exams need not be ordered merely to stay “current” on appeal, new evidence – including testimony of worsening of symptoms – may trigger new duty-to-assist obligations, requiring re-examination.

Q-10: The next question involves the extent of “reasons or bases” required in rating decisions, from the standpoint of subsequent appellate review.

A: For the sake of clarity, it is useful to note that there is no statutory requirement for “reasons or bases” in a rating decision. 38 USC 7104(d)(1) rather provides that BVA decisions will include a written statement of the Board’s findings and conclusions, and “the reasons or bases for those findings or conclusions”.

Separately, 38 USC 5104(b) mandates “a statement of the reasons for the decision”, along with a summary of the evidence considered, in any case where the Secretary denies a benefit sought. Strictly speaking, this law governs the notice of a decision, and not the decision itself. Rating Boards and Hearing Officers have been tasked with providing suitable explanations administratively, pursuant to Circular 21-90-1 (Paragraphs 5(a)(5) and (6)).

While the Court has observed, in GILBERT (89-53), that these statutory requirements are “similar”, its precedential interpretations have directly addressed only the obligations of BVA under 38 USC 7104(d)(1), thus far.

Circular 21-91-18 “PRINCIPLES OF ADJUDICATION” (Paragraph 5), dated 11/6/91, contains the current procedural guidelines for explaining reasons and bases in ratings, and other Regional Office decisions. The Circular essentially applies certain Court guidelines to ratings, with particular emphasis on evaluation of all the evidence, adequacy of rationale, and requirements for independent medical evidence. The purpose is to reduce remands through application of Court principles earlier in the claims process.

A recent General Counsel Precedent Opinion (6-92) in the CARTER case, issued 3/6/92, addresses potential voidance of a rating decision for failure to cite 38 CFR 3.343(a), which governs reduction of total ratings. This opinion notes that specific citation of regulations is not necessarily required, either by law or regulation. The author’s description of what such a rating must contain, if it is to be upheld on appeal, is perhaps directly responsive to the question posed:

“Ideally, the rating decision would state in clear terms the legal and factual basis for it.”

“What controls, whatever form the rating decision takes, is whether the record in its entirety” supports a conclusion that section 3.343(a) has been applied by the rating board. (In this connection, the entire record, includes both the Regional Office notice and Statement of the Case.)

It should be observed that the revised manual now requires citation of 38 CFR 3.343(a).

Based on the foregoing considerations, the question posed actually involves validity of rating rationale, either explicit or implicit, in terms of proper application of relevant standards, rather than the extent of reasoning which may be required in order to respond to some future Notice of Disagreement. In addition, the rating discussion forms the basis for Authorization notifications, when claims are adversely decided, and largely shoulders the burden for adequacy in that regard as well.

The relationship between the nature of discussion needed to sustain a rating and provide adequate notice, and additional requirements for reasons for decision in a Statement of the Case, will be separately addressed in a future hotline. While these areas are closely connected, there are distinct considerations for cases which have been appealed.

For claims decided adversely, the minimum requirements for rating discussion, in terms of adequacy of rationale and subsequent notice, may be summarized as follows:

Regional Offices have a statutory obligation under 38 USC 5104(b) to advise beneficiaries of the evidence considered and reasoning, whenever a benefit sought is denied. The reasoning should be so worded as to explain the denial to the claimant, and to demonstrate that relevant statutory and regulatory standards were properly applied. In this connection, all of the evidence must be addressed, evaluated, and weighed, so that conclusions are supported by objective analysis, rather than personal opinion.

While the wording need not follow any specific format, in order to be sustained on appeal, the Service administratively requires citation of regulations in some instances.

The discussion should address any specific Court Decisions or General Counsel Precedent Opinions mentioned by the claimant or representative, in order to respond to particular arguments raised. Otherwise, rating discussion should focus on proper application of relevant principles, in language which will permit appropriate explanation to the beneficiary, and serve as implicit evidence that relevant precedential interpretations governed disposition of the case.

Q-11: Does 38 CFR 4.16(a) create a “presumption” of disability (for purposes of 38 CFR 4.17), does it shift the burden of proof, and what evidentiary standard applies?

A: The only “presumption” contained in 38 CFR 4.17 was a conclusive presumption of permanent and total disability at age 65, which was removed from the schedule effective 12/16/91.

38 CFR 4.15 describes certain impairments which are taken to involve permanent and total disability by regulation, such as permanent loss or loss of use of both hands. These create conclusive presumptions for purposes of pension, without resort to 38 CFR 4.17.

38 CFR 4.16(a) establishes the minimum schedular evaluations required for assignment of a total rating based on unemployability. 38 CFR 4.17 provides that permanence of the percentage requirements described in 38 CFR 4.16(a) is “requisite” for a permanent and total nonservice-connected disability rating.

The percentage standards are a threshold consideration for allowance of nonservice-connected benefits by rating boards, when the veteran is found to be “unable to secure and follow substantially gainful employment by reason of such disability”. For veterans who fail to meet the threshold percentage criteria, but are deemed unemployable, an extra-schedular allowance is for consideration under 38 CFR 4.17(b) and 38 CFR 3.321(b)(2).

A “well-grounded claim” is one which is plausible, or capable of substantiation. Under 38 USC 5107(a), the VA has duty-to-assist obligations after the claimant submits evidence of a well-grounded claim. A veteran who is unemployed due to disability, not due to misconduct, would have plausible entitlement to nonservice-connected pension, based on schedular or extra-schedular criteria, irrespective of percentage requirements.

A well-grounded claim for pension is one in which there is evidence, including that shown on the application, that the veteran may be unemployable as a result of disability, and meets other basic criteria for this benefit. Once such a claim has been filed, the burden of proof shifts to the Department, to assist the veteran develop all the evidence pertinent to the claim. There are no presumptions as to the ultimate outcome of a well-grounded claim, except that it will be developed and considered under governing rules.

The standard of proof for any claim is the “benefit-of-the-doubt” rule, which means that the claim will be denied only if disproved.

Q-12: The last question addresses whether or not a favorable SSA decision reopens a nonservice-connected pension claim, when percentage requirements are not met, and BVA has recently upheld a denial.

A: The evidence from Social Security is new and material evidence, which makes it plausible that the veteran is unemployable, either on a schedular or extra-schedular basis. Since the claim is well-grounded, VA has duty-to-assist obligations to reconsider entitlement. An examination would be required to sustain continued denial, and the rationale would need to address the favorable SSA disposition specifically, in terms of any differing VA criteria and rationale.
ADDRESS FOR THE COURT OF VETERANS APPEALS:

625 Indiana Ave. NW
Washington, DC 20004
DATES AND TIMES OF JUDICIAL REVIEW CONFERENCE CALLS

DATE TIME

May 7, 1992 11:00 – 12:20

June 4, 1992 11:00 – 12:20

July 6, 1992 11:00 – 12:20

August 6, 1992 11:00 – 12:20

September 3, 1992 12:00 – 12:50

October 1, 1992 11:00 – 12:20

November 2, 1992 11:00 – 12:20

December 3, 1992 11:00 – 12:20