VETERANS RESOURCES NETWORK


Certain Veterans May Be Eligible for Copayment Refunds

WASHINGTON The Department of Veterans Affairs (VA), the Hartford Life
Insurance Company and the USAA Life Insurance Company jointly announced
today that certain veterans may receive a refund of copayments made to VA.

The settlement was reached between VA, Hartford and USAA earlier this year,
as a result of several years of litigation. The settlement involved
payments for care provided by VA to insured veterans with Medicare or
Tricare supplemental coverage from Jan. 1, 1995 through Dec. 31, 2001.

Veterans insured by Hartford or USAA who paid VA copayments for VA medical
care they received from Jan. 1, 1995 through Dec. 31, 2001 may apply to VA
for a refund of their copayments on a first-come, first-served basis. All
requests for refunds must be postmarked by April 1, 2004.

Veterans who may be eligible for refunds will receive a claims form by mail
from the VA and the insurance companies. Other veterans who believe they
may be eligible for a refund may obtain a claims form by either calling a
special toll-free number (1-866-258-2772) between 8 a.m. and 8 p.m., EST ,
Monday Friday, or by downloading the form, at the VA website at

Reviewed/Updated: April 2, 2003
http://www.va.gov/OPA/pressrel/PressArtInternet.cfm?id=583

##### END ####


Signed:
Veterans Resources Network
Ray B Davis Jr, Editor
Box 68
East Flat Rock, NC 28726
http://www.veteransresources.net
http://groups.yahoo.com/group/raybdavisjr/
http://groups.yahoo.com/group/sound-off-veterans/

VETERANS RESOURCES NETWORK

Dear Members,

The VA Veterans Benefits Administration (VBA) has a CD-ROM of Veterans
Legal material.  You may remember last year we offered that if enough
veterans wanted the CD-ROM? and were willing to help pay for the cost of
the CD? then we would purchase it.

If you want the CD-ROM of veterans legal information and agree to
contribute $10.00 for the purchase, then I will order it.  You need Windows
OS (operating system). SEND NO MONEY NOW.  Only state that you want it,
send your complete name and mailing address, and when it arrives I will
mail it. After receiving the CD you can send your contribution.  I will
allow several days to see how many want it? and if we get 10 members, then
I will purchase it.
I estimate it will cost 10 dollars per veteran; 5 dollars for the CD (5x 10
members), and 5 dollars for the disk, envelope, and postage to get it to you.

CD-ROM contents:
http://www.warms.vba.va.gov/armscd.htm

Or you can purchase direct from the VBA.  cost of the CD is $50.00.

For most people the contents of our website will provide all you need, but
for some, this may be what you need.

Just respond and state you want one CD for $10.00, and I will contact when,
and if? we get the other members who want it.

Also on a different matter, if you have a copy of the Adobe Acrobat program
(full copy, not just free pdf reader) and no longer need it? For example;
you have updated, but have an older version?  or have the teachers/student
version? then let me know if you want to trade it (I have omega zip 100
disk's, and perhaps other programs you might want in exchange?).

Your Editor,
Ray B Davis, Jr.



Signed:
Veterans Resources Network
Ray B Davis Jr, Editor
Box 68
East Flat Rock, NC 28726
http://www.veteransresources.net
http://groups.yahoo.com/group/raybdavisjr/
http://groups.yahoo.com/group/sound-off-veterans/

VETERANS RESOURCES NETWORK

Iraq War Spurs Depression Among Veterans

By JILL BARTON
The Associated Press
Thursday, March 27, 2003; 5:33 PM


Images from the war in Iraq are stirring up bad memories for veterans who
served in the jungles of Vietnam, the foxholes of World War II and the
sandy deserts of the first Gulf War.

For Ivan Suarez, it was the story of Iraqis pretending to surrender before
ambushing and killing Americans last weekend.

"It was as if I was in Vietnam for a split second. They turned on us and
started firing on us," the 55-year-old former Marine recalled.

For Jim Bono, the bad memories came back when he learned a U.S. soldier
from his old unit was suspected of killing two other servicemen by throwing
a grenade into a tent.

"It would happen in Vietnam. After they've been in combat so long, they
snap," said Bono, 58, who served with the 101st Airborne.

Since the war began last week, officials at Veterans Affairs centers across
the nation are reporting a spike in veterans with underlying symptoms of
post traumatic stress, including flashbacks, nightmares, panic attacks,
anger, emotional withdrawal and depression.

At the Fort Lauderdale Vet Center, where Suarez and Bono attend group
counseling sessions, three counselors who were seeing about seven veterans
individually each day have started seeing up to a dozen in the last few
weeks, said Bobby White, the center's director.

The center also has doubled the number of weekly group sessions. At VA
hospitals, more veterans are being admitted for psychiatric treatment.

The relapses have intensified with the first signs of combat, casualties
and prisoners of war, counselors say.

"The veterans have been talking about this for two months. They've been
seeing it coming, and it certainly stirs them up in their memories, and
gets a lot of the anxieties going," said Terry Russell, a counselor at the
Vet Center in Fort Collins, Colo. "People who have been there in combat
don't want to see anybody else have to face that."

Some veterans are canceling cable or unplugging their television sets to
avoid the constant scenes from the war. Others can't turn away, even to sleep.

For most, the memories put them back in combat, and they feel the same
rage, guilt and fear that filled their minds then, said Dr. Hemant Thakur,
a specialist in post-traumatic stress disorder at the Veterans Affairs
Hospital in Kansas City, Mo.

Thakur said some of the images that would trigger the memories are obvious
- pictures of fighting and bombings, of injured soldiers or dead civilians.
But many veterans can be affected by subtle similarities - smelling the
same diesel fuel used by tanks or the fire from a back-yard barbecue. Some
can become anxious even sitting with their back to the door of a crowded
restaurant.

Many flashbacks come because so many of the same tragedies happen in every
war, said Tom Giorgianni, a former Army air observer whose helicopter was
shot down in Vietnam.

Now at the Vet Center here, Giorgianni noted that two pilots in a
helicopter that crashed Monday in Iraq have apparently been taken prisoner.

"I know what those two guys must be going through," he said during a recent
group therapy session that have allowed veterans to vent their frustrations
about the war, protests, media coverage - or anything else.

"There's still the anxiety, the anger and the fear," Giorgianni told eight
other veterans and his counselor. "I feel like I'm walking on pins and
needles, trying to stay focused."

Counselors say virtually all combat veterans have some degree of post
traumatic stress, which wasn't understood until 1980 and took several more
years to gain legitimacy. Veterans can feel angry, helpless, depressed, or
guilty. They can turn to substance abuse and isolate themselves from family
and friends because they fear being in a group, or around others who don't
understand where they've been.

"The vet gets his first dose, then it spills over to the family, and the
community and the country," White said.

Tuning out news coverage and therapy, whether one-on-one or in groups, are
among the best ways to deal with the added stress brought on by war,
according to experts.

At the Fort Lauderdale center, veterans say they turn to counselors and
each other when feeling anxious. One group recently made drums, and the
slow beating of the music circle soothes them. Here, they feel safe to
share the feelings that some kept inside for decades.

One veteran said now that the war has begun, he understands what his
parents, neighbors and community went through when he was deployed, "the
anguish, the heartache, the suffering."

"There is such a price we have to pay," another veteran said. "It's too bad
it can't be one bullet, one man, but it's not that way."

---

On the Net:

Counseling centers: http://www.va.gov/rcs/VetCenterDirectory.htm

© 2003 The Associated Press

http://www.washingtonpost.com/wp-dyn/articles/A38539-2003Mar27.html

##### END ######

Signed:
Veterans Resources Network
Ray B Davis Jr, Editor
Box 68
East Flat Rock, NC 28726
http://www.veteransresources.net
http://groups.yahoo.com/group/raybdavisjr/
http://groups.yahoo.com/group/sound-off-veterans/

VETERANS RESOURCES NETWORK

Dear Readers,

The Federal Benefits for Veterans and Dependents 2003 edition is
out.  We have added it to our website in html format, or you can
download the pdf file from the VA.  Make sure you have the adobe pdf
reader.  We also have it in a zip file in html format.

--SEE DOWNLOAD LINKS BELOW--

Also on another subject; our website is back online, it had been
offline since about 3 pm Wednesday.  Also I lost any email sent to
my address since that time.  But my email system looks like it is
also back online now.  Please resend any letters you may have sent
during that time we were offline, if you need an answer?

LINKS:

html page at our website about 300 kb allow to load into your
browser completely:
http://www.veteransresources.net/fedben03.html

Zip file of the html page about 100 kb:
http://www.veteransresources.net/fedben03.zip

And the VA website for downloading the pdf version about 1.6 mb:
http://www.va.gov/pubaff/fedben/Fedben.pdf

Your Editor,
Ray B Davis, Jr.

Signed:
Veterans Resources Network
Ray B Davis Jr, Editor
Box 68
East Flat Rock, NC 28726
http://www.veteransresources.net
http://groups.yahoo.com/group/raybdavisjr/
http://groups.yahoo.com/group/sound-off-veterans/

VETERANS RESOURCES NETWORK
VA FL News

AGENT ORANGE OUTSIDE OF VIET NAM

VA has received a listing from the Defense Department of locations
outside of Viet Nam where Agent Orange was used or tested over a
number of years. The information gives periods of time, locations
and chemicals used. It does not contain units involved or individual
identifying information.
The listings are almost exclusively Army records although there are
an extremely limited number of Navy and Air Force records. These
listings relate only to chemical efficacy testing and/or operational
testing. The records do not refer to the use of Agent Orange or
other chemicals in routine base maintenance activities such as
spraying along railroad tracks, weed control on rifle ranges, etc.
Information on such use does not exist. VA will develop for proof of
exposure for claims for disabilities resulting from Agent Orange
exposure outside of Viet Nam.
VA does have significant information regarding Agent Orange use in
Korea along the DMZ. DoD has confirmed that Agent Orange was used
from April 1968 up through July 1969 along the DMZ. DoD defoliated
the fields of fire between the front line defensive positions and
the south barrier fence. The size of the treated area was a strip of
lane 151 miles long and up to 350 yards wide from the fence to north
of the "civilian control line." There is no indication that
herbicide was sprayed in the DMZ itself.

Herbicides were applied through hand spraying and by hand
distribution of pelletized herbicides. Although restrictions were
put in place to limit potential for spray drift, run-off, and damage
to food crops, records indicate that effects of spraying were
sometimes observed as far as 200 meters down wind.

Units in the area during the period of use of herbicide were as
follows: The four combat brigades of the 2nd Infantry Division. This
includes the following units: a) 1-38 Infantry b) 2-38 Infantry c) 1-
23 Infantry d) 2-23 Infantry e) 3-23 Infantry f) 3-32 Infantry g)
109th Infantry h) 209th Infantry i) 1-72 Armor j) 2-72 Armor k) 4-
7th Cavalry. 3rd Brigade of the 7th. Infantry Division. This
includes the following units: a) 1-17th Infantry b) 2-17th Infantry
c) 1-73 Armor d) 2-10th Cavalry. Field Artillery, Signal and
Engineer troops were supplied as support personnel as required. The
estimated number of exposed personnel is 12,056.
Unlike Viet Nam, exposure to Agent Orange is not presumed for
veterans who served in Korea. Claims for compensation for
disabilities resulting from Agent Orange exposure from veterans who
served in Korea during this period will be developed for evidence of
exposure. If the veteran was exposed the presumptive conditions
found for Agent Orange exposure apply.

http://www.vba.va.gov/ro/south/spete/news/notes/0304/2.htm

##### END #####

Signed:
Veterans Resources Network
Ray B Davis Jr, Editor
Box 68
East Flat Rock, NC 28726
http://www.veteransresources.net
http://groups.yahoo.com/group/raybdavisjr/
http://groups.yahoo.com/group/sound-off-veterans/

VETERANS RESOURCES NETWORK
VA Press Release

VA Prepares for Post-Deployment Era

          WASHINGTON (March 19, 2003) - When troops now committed to the
Middle East return home, they will benefit from a wide array of programs and
services not available to veterans during previous conflicts, according to
Secretary of Veterans Affairs Anthony J. Principi.

          "Bullets and shrapnel are not the only hazards of the modern
battlefield," Principi said. "We have learned from the bitter lessons of the
wars of the 20th century.  For any armed conflict in the Middle East, we
will be on the alert for environmental exposures and other unforeseen risks
to the health of our service personnel."

          Principi noted that since 1998 the Department of Veterans Affairs
(VA) has had the authority to provide free medical care for veterans newly
returned from a combat zone, even without a service-connected disability.
That eligibility lasts for two years after a veteran leaves active duty,
although anyone with medical problems related to military service can
qualify for life-long VA health care.

          "VA's on-going partnership with the Department of Defense (DoD) will
greatly reduce problems experienced by previous generations of veterans,"
Principi said.
          Specifically, he cited the development by VA and DoD of standardized
guidelines for physicians examining military personnel after deployment and
the establishment by VA of War-Related Illness Centers in Washington and
East Orange, N.J., to provide research and professional education about
deployment-related health issues.

          "VA applauds the efforts of the Department of Defense to prevent
health problems among deployed troops," Principi said. "Today's high-tech
equipment and preventative medicine programs demonstrate DoD's commitment to
the health of the troops."

          "Under President Bush's leadership, VA and DoD have developed robust
processes to address potential health consequences of deployment and to
provide high quality health care and disability assistance to active duty
personnel and veterans.  We are better prepared to do this than at any other
time in history," Principi said.

         To view and download VA news releases, please visit the following
Internet address:
                          <http://www.va.gov/opa/pressrel>

###### END ######
          Principi acknowledged that many efforts taken on behalf of recently
deployed troops are an outgrowth of lessons learned from the health problems
that many Gulf War veterans experienced after returning home.

          "We look forward to working collaboratively with DoD to address
force health protection and veterans' issues now and in the future,"
Principi said.

          Besides working with DoD on deployment issues, Principi noted that
VA's health care system serves as a back-up to the military's hospitals
during wars or other national emergencies.

          For more than a year, the senior health care leaders of both
departments have met regularly in the new VA-DoD Health Executive Council to
coordinate efforts.  Collaboration between VA and DoD range from sharing
medical facilities in Albuquerque, Las Vegas, Honolulu, Anchorage, Key West
and other locations to allowing some military members and their families to
refill their prescription drugs at a VA mail-out pharmacy.

          "In addition to the range of new programs specifically designed for
the newest generation of combat veterans, VA is also prepared to provide the
benefits that veterans have expected since World War II - GI Bill home loan
guarantees, educational assistance, plus disability compensation and health
care for service-disabled veterans," Principi said.




Signed:
Veterans Resources Network
Ray B Davis Jr, Editor
Box 68
East Flat Rock, NC 28726
http://www.veteransresources.net
http://groups.yahoo.com/group/raybdavisjr/
http://groups.yahoo.com/group/sound-off-veterans/

VETERANS RESOURCES NETWORK
One Press Release from American Legion

Legion to Fight Veterans-Benefit Cuts

WASHINGTON (March 14, 2003) – "We'll fight it with all our might," said Ame=
rican Legion National Commander Ronald F. Conley in response to the House Bu=
dget Committee's plan to slash more than $470 billion from veterans benefits=
, among other mandatory-spending programs, over the next decade.

"This budget defies common sense. Veterans' pensions and disability compens=
ation are parts of the costs of defending freedom. Our nation cannot, in goo=
d conscience, commit men and women to battle, and reduce the meager, yet wel=
l-deserved, compensation for those who are wounded. Of all the citizens who =
benefit from mandatory federal funding, none are worthier than those who are=
  disabled today because they risked all of their tomorrows fighting for free=
dom.

"There are few options available for those who would cut veterans' benefits=
. Congress could eliminate cost-of-living adjustments, curtail the awarding =
of disability compensation, roll back the disability ratings or a combinatio=
n thereof. None of those moves are justified. In fact, any of those cuts wou=
ld be the highest form of ingratitude this government could inflict, and wou=
ld give moral ammunition to those who would discourage young people from und=
ertaking military service.

"There must be a better way to provide tax relief to the American people th=
an to balance the budget on the backs of disabled veterans. There has to be =
a better way to promote good morale in the armed forces than to slight those=
  in whose shoes today's troops might someday be. There certainly is a better=
  way to reduce the Department of Veterans Affairs' backlogs of disability cl=
aims and veterans waiting up to two years for doctors appointments at VA hos=
pitals. We will fight the House Budget Committee's proposal to the bitter en=
d."

The 2.8-million member American Legion is the nation's largest veterans org=
anization.


- 30 -
Media Contact: Steve Thomas, 202/263-2982; Pager 800/759-8888, #115-8679; L=
ee Harris, 317/630-1243; Pager 317/330-3351

http://www.legion.org/pub_relations/2003_releases/pr_nr_031403_cuts.htm

###### END #######

  Signed:
Veterans Resources Network
Ray B Davis Jr, Editor
Box 68
East Flat Rock, NC 28726
http://www.veteransresources.net
http://groups.yahoo.com/group/raybdavisjr/
http://groups.yahoo.com/group/sound-off-veterans/

VETERANS RESOURCES NETWORK
DAV PRESS RELEASE

FOR IMMEDIATE RELEASE
March 12, 2003

VETERANS GROUP OUTRAGED OVER BUDGET CUTS

WASHINGTON, March 12?

The Disabled American Veterans (DAV) has labeled as "indefensible and callous;"
a plan by the House
Budget Committee to slash $470 billion from domestic spending, including health
care for sick and disabled
veterans. The draft budget resolution would leave the $1.6 trillion Bush tax cut
plan intact and allow huge
spending increases on defense and homeland security.

DAV National Commander Edward R. Heath, Sr. expressed the organization's outrage
at the spending cuts
proposed in a March 12 House Budget Committee hearing. "You are asking veterans
to swallow a bitter pill to
remedy an illness of your own making," National Commander Heath said in a letter
to Committee Chairman Jim
Nussle (R-Iowa). "Cutting already under funded veterans' programs to offset the
costs of tax cuts is
indefensible and callous."

National Commander Heath cited a Congressional Budget Office report that the
President's tax cut plan would
cause a $1.8 trillion budget deficit over the next 10 years.

"You will be cutting benefits and services for disabled veterans at a time when
we have thousands of our
servicemembers in harm's way fighting terrorism around the world and when we are
sending thousands more
of our sons and daughters to fight a war against Iraq," Commander Heath wrote.

The nearly 1.3 million-member Disabled American Veterans, a non-profit
organization founded in 1920 and
chartered by the U.S. Congress in 1932, represents this nation's disabled
veterans. It is dedicated to a single
purpose: building better lives for our nation's disabled veterans and their
families. For more information, visit the
organization's Web site www.dav.org.

##### end #####

Signed:
Veterans Resources Network
Ray B Davis Jr, Editor
Box 68
East Flat Rock, NC 28726
http://www.veteransresources.net
http://groups.yahoo.com/group/raybdavisjr/
http://groups.yahoo.com/group/sound-off-veterans/

VETERANS RESOURCES NETWORK

Dear Readers,

Below is an article which shows how Congress  wants to cut the Veterans Programs
by more than 15 BILLION,
in the next 10 years.

- Quote from article below  --
The Ways and Means Committee would be the biggest lifter, required to find about
$262 billion in savings over
10 years. The Energy and Commerce panel would be forced to save about $110
billion, followed by
Government Reform at $39.5 billion, Agriculture at $19.1 billion, Veterans'
Affairs at $15.1 billion and
Education and the Workforce at $9.7 billion.
- End Quote -

In order to pay for the Bush Tax cuts: Veterans Compensation, pensions, and
health care will be cut.
I am out the door to reserve my place in line at the local Soup Kitchen, see you
there, veterans.

Your Editor,
Ray B Davis, Jr.

###### START ####

March 12, 2003

House budget chair calls for deep cuts in non-defense spending

By Bill Ghent, CongressDaily

Calling for controversial reductions in mandatory spending and putting a squeeze
on nondefense-related
discretionary programs, House Budget Committee Chairman Jim Nussle, R-Iowa,
revealed the details of his
fiscal 2004 budget resolution Wednesday.

Nussle's resolution differs substantially from President Bush's 2004 budget
submission in several respects,
calling for nearly an $11 billion cut below the president's discretionary total,
as well as steep cuts in mandatory
programs. And while the budget still makes room for a $726 billion economic
stimulus/tax cut plan, the
resolution would not accommodate the entire Bush tax cut proposal over 10 years.

"I don't like deficits. I don't want deficits, and I won't pretend that deficits
don't matter," said Nussle. "We can't
get back on track" without tough choices.

Altogether, Nussle's budget would reach a unified balance in fiscal 2010,
although the deficit over the 10-year
period would still total nearly $760 billion, or $3.327 trillion not counting
Social Security surpluses.

As for discretionary spending, the resolution would set a 2004 level of $775.4
billion in budget authority, which
is $9.6 billion higher than the 2003 enacted level, but about $11.2 billion
below the president's $786.6 billion
2004 proposal as scored by the Congressional Budget Office.

Of the specific budget functions, defense is one of the few that would get an
increase over 2003, moving from
$392.1 billion to a bit more than $400 billion. International affairs also would
receive about a $2.4 billion
increase over last year, while education would see about a $2.3 billion
increase. But other government services
would see actual cuts below the 2003 levels, including natural resources and
environment spending (about
$2.2 billion) and health (about $1.4 billion).

Appropriators are not the only ones pained by the Nussle resolution. Breaking
from budgets of recent years, it
also would order under reconciliation nearly $470 billion in mandatory savings
from various committees. The
resolution does not specify where the committees should find such cuts, but it
would force a reconciliation
savings package to come together by July 18.

The Ways and Means Committee would be the biggest lifter, required to find about
$262 billion in savings over
10 years. The Energy and Commerce panel would be forced to save about $110
billion, followed by
Government Reform at $39.5 billion, Agriculture at $19.1 billion, Veterans'
Affairs at $15.1 billion and
Education and the Workforce at $9.7 billion.

In addition, the resolution orders a tax reconciliation package of about $725
billion, as the president requested,
to be completed by April 11. The plan makes room for $1.403 trillion in tax
cuts, which is below the $1.57 trillion
tax cut plan proposed by the administration. GOP staff said the resolution fully
accommodates the growth
package and makes the 2001 tax cut permanent, but that lower-priority items
would not be allowed.

Also, the resolution includes a reserve fund for a $400 billion Medicare
prescription drug proposal, as well as
reserve funds for a $9 billion Medicaid modernization plan and a $3.4 billion
plan to reduce biomedical threats.

##### END ######

Signed:
Veterans Resources Network
Ray B Davis Jr, Editor
Box 68
East Flat Rock, NC 28726
http://www.veteransresources.net
http://groups.yahoo.com/group/raybdavisjr/
http://groups.yahoo.com/group/sound-off-veterans/

VETERANS RESOURCES NETWORK

Dear Readers,

Below find a short Disabled Veterans of America item stating that
veterans benefits are in line for cuts.

Sincerely,
Ray B Davis, Jr., Editor VRN

###### Start DAV #####

DAV Press Release:

To pay for the Bush Administration's $1.7 trillion tax reduction plan,
the majority leadership and Budget Committee Chairman in the United
States House of Representatives are pushing a fiscal year 2004 budget
resolution that would drastically slash veterans and other Federal
programs. This budget resolution would require reductions in spending
on discretionary programs such as veterans' medical care and would
also require the Veterans' Affairs Committees to report legislation to
eliminate or cut mandatory programs such as disability compensation.

Contact your House member today to express your strong objections to
this outrageous action. Ask your representative for a commitment to
oppose and vote against any budget resolution that cuts veterans'
programs. We recommend that you contact your representative by
telephone if possible, but you may send the prepared e-mail by
entering your zip code in the box above.

http://capwiz.com/dav/home/

###### END #####

--
Signed:
Veterans Resources Network
Ray B Davis Jr, Editor
Box 68
East Flat Rock, NC 28726
http://www.veteransresources.net
http://groups.yahoo.com/group/raybdavisjr/
http://groups.yahoo.com/group/sound-off-veterans/

VETERANS RESOURCES NETWORK
One article from AP

Study Finds Autoimmune Diseases in Vets

By MATT CRENSON
The Associated Press
Saturday, March 8, 2003; 2:23 PM

Vietnam veterans who suffer post-traumatic stress disorder are also
more likely to have autoimmune diseases such as arthritis, psoriasis
and hypothyroidism, a study has found.

The analysis of more than 4,000 Vietnam veterans is the first to show
that such stress can damage the immune system enough to cause disease.

"When you are exposed to an extremely traumatic event it affects both
your mind and your body," said Rachel Yehuda, director of the Post-
Traumatic Stress Disorder program at the Bronx Veterans Medical
Center in New York. She was not connected with the study.

Joseph A. Boscarino, a senior scientist at the New York Academy of
Medicine, used health data on Vietnam veterans that was collected by
the Centers for Disease Control and Prevention 20 years after the men
were discharged from military service. He found no increase in
autoimmune disease among 2,490 Vietnam veterans compared with 1,972
others who served elsewhere during the same period.

But when Boscarino pulled out the 124 Vietnam veterans who had
exhibited symptoms of post-traumatic stress disorder in the six
months before they were studied, he found a dramatic increase. Those
men were three times more likely to have an autoimmune illness than
veterans not experiencing post-traumatic stress disorder.

"This is an interesting finding," Boscarino said. "It should apply to
other post-traumatic stress disorder victims regardless of the
conflict or the situation."

Boscarino will present his research Saturday at a meeting of the
American Psychosomatic Society in Phoenix, Ariz.

Researchers have known for decades that stress causes the body to
secrete hormones that can harm the immune system. In a 1999 study,
Boscarino showed that Vietnam veterans with post-traumatic stress
disorder were more likely to have abnormally high T-cell counts and
white blood cell counts, both signs of a highly active immune system.

Boscarino has also shown that Vietnam veterans with post-traumatic
stress disorder are more likely to suffer from coronary artery
disease.

His research does not mean that people with post-traumatic stress
disorder are bound to develop heart disease or an autoimmune illness,
Boscarino said. But it does demonstrate that preventing and treating
the mental problems associated with trauma may help patients avoid
physical diseases later on.

"The lesson here is that when someone has been exposed to extreme
trauma they're in the spotlight for a couple of days," Yehuda
said. "But we don't brace ourselves for the long haul at all."
© 2003 The Associated Press
http://www.washingtonpost.com/wp-dyn/articles/A61922-2003Mar8.html

## END ##
--
Signed:
Veterans Resources Network
Ray B Davis Jr, Editor
Box 68
East Flat Rock, NC 28726
http://www.veteransresources.net
http://groups.yahoo.com/group/raybdavisjr/
http://groups.yahoo.com/group/sound-off-veterans/

VETERANS RESOURCES NETWORK
3 Letters to the Editor (letters 1 and 2 on veterans must sacrifice)

### Letter One ###

Dear Editor,

Thank you for this article - it is always our veterans who must sacrifice to
give tax cuts to the wealthy. Incredible!
Keep up the good work.

H.

### Letter Two ###

Dear Editor,

I would like to propose that before we take a cut in services that "ALL" and
I do mean "ALL" Congressman and others in the leadership role of this
country, including state officials take a 25% pay cut, as they are the
leaders and as leaders they should lead by example (don't you think so).

Semper Fi
K.



### Letter Three ###

(In response to the American Legion article on VA health care )

Dear Editor,

I just recently read an article about how long the wait was at the VA
hospitals and that the care was poor.
Maybe someone should go down to the VA Hospital in Tucson Arizona or the
Clinic in Yuma Arizona and check things out.
I have been a patient in the VA at Tucson and of ALL the hospitals I
have ever been in which includes a lot of civilian, Naval and Army
hospitals I have never had the excellent care anywhere that I got at the
VA Hospital in Tucson.  When I call for an appointment it is fairly fast
as well as going to the clinic in Yuma.

H.F.


### END Letters ###

--
Signed:
Veterans Resources Network
Ray B Davis Jr, Editor
Box 68
East Flat Rock, NC 28726
http://www.veteransresources.net
http://groups.yahoo.com/group/raybdavisjr/
http://groups.yahoo.com/group/sound-off-veterans/

VETERANS RESOURCES NETWORK

One article from AP wherein VA Secretary Principi says:
"If they don't care for my policy changes then the choices are clear,
either appropriate additional funding or I will have to cut back
further on who I provide care to,".

And, Senator Bill Frist says: Veterans May Have to Sacrifice

Veterans May Have to Sacrifice
By SUZANNE GAMBOA
The Associated Press
Tuesday, March 4, 2003; 4:24 PM

Senate Majority Leader Bill Frist pledged Tuesday to support veterans
concerned about President Bush's health care proposals, but also said
veterans and others will have to make sacrifices should the nation go
to war with Iraq.

The Tennessee Republican told the American Legion that as a physician
who served in veterans' hospitals, he had a richer understanding of
the importance of their health care issues.

But he later told reporters that the costs of the Iraq war would mean
"we all have to sacrifice in various ways as we likely engage in
military conflict, which we could not have anticipated a year ago,
which is not fully budgeted and which ultimately will have to compete
with what many of us want.

"It applies to me in terms of domestic priorities and it applies to
groups like the veterans today as they lobby," Frist said.

Frist was among a line of congressional members that spoke at the
American Legion's annual legislative conference in Washington. This
year the veterans' top priority is to defeat proposals in Bush's 2004
budget request for Veterans Affairs.

Bush proposed a 7.7 percent increase, to $27.5 billion, for veterans'
medical care in the fiscal year starting Oct. 1. But the budget
request also proposed fee increases and limits on access, which are
unpopular with veterans and have been rejected by the House Veterans
Affairs Committee.

Bush's budget also proposed charging veterans who earn about $24,000 a
year or more an annual enrollment fee of $250. And it proposed
increasing copayments for higher-income patients, from $15 to $20 for
outpatient primary care and $7 to $15 for prescription drugs.

Korean War veteran John Curran of Plymouth, Mass., told reporters that
veterans should not be asked to make more sacrifices.

"They already did, when they gave up their families and left their
families and went overseas whether they were in support or behind the
lines," Curran said.

Senate Minority Leader Tom Daschle, D-S.D., suggested Bush's proposed
tax cuts were the reason for the curtailments in veterans' health care.

"Most of us support certain tax cuts, but not if they come at the
expense of everyone and everything else that matters. Not if they bury
our children and grandchildren in debt and not if they force us to
break our promise to the men and women who served this nation in
uniform," Daschle said.

He said the amount of money spent on veterans care should be tied to
the size of enrollment.

The House Veterans Affairs Committee last month rejected the Bush
budget proposals and recommended Congress spend $29.7 billion for
veterans' medical care. The measures also were heavily criticized in a
Senate Veterans Affairs Committee hearing.

Veterans Affairs Secretary Anthony Principi said an increase in the
veterans health care budget in the amount proposed by the House
committee would help meet costs that would have been covered with the
fee increases and enrollment fee.

"Congress has to make some decisions. If they don't care for my policy
changes then the choices are clear, either appropriate additional
funding or I will have to cut back further on who I provide care to,"
Principi said.

http://www.washingtonpost.com/wp-dyn/articles/A41061-2003Mar4.html

---

On the Net: American Legion: http://www.legion.org/

Veterans Affairs: http://www.va.gov/
© 2003 The Associated Press

--
Signed:
Veterans Resources Network
Ray B Davis Jr, Editor
Box 68
East Flat Rock, NC 28726
http://www.veteransresources.net
http://groups.yahoo.com/group/raybdavisjr/
http://groups.yahoo.com/group/sound-off-veterans/

VETERANS RESOURCES NETWORK
(one AP article)

Surveys: Vets Have Long Health Care Wait
By LARRY MARGASAK
The Associated Press
Monday, March 3, 2003; 7:40 PM

Patients in the veterans health care system wait an average of seven
months to see a primary care doctor, the American Legion reported after
questioning its members.

A second Persian Gulf War would increase the number of future patients
and make the backlog worse, the legion's national commander said.

This was the first time the national veterans group surveyed its
members across the country on waiting times. The Legion did not
attempt to
take a scientific sample but rather sought anecdotal evidence between
last November and Feb. 21 to bolster a lobbying campaign for more
veterans health dollars.

The results from more than 3,100 respondents, obtained Monday by The
Associated Press, were to be released Tuesday. Some 1,500 leaders
of the Legion and affiliated organizations are meeting in Washington
and fanning out throughout the Capitol complex to lobby lawmakers for
higher appropriations.

The Legion's national commander, Ronald Conley of Pittsburgh, said the
survey also found:

-The average wait to see a doctor after arriving at a Veterans Affairs
clinic is 1.6 hours.

-About 58 percent of respondents had an appointment rescheduled by the
VA, triggering an average wait of 2.6 months for the new
appointment.

-About 11 percent of respondents said they were denied long-term care.
That result was based on 2,800 responses.

However, some veterans who did get medical care gave high marks to
their doctors and facilities.

Dr. Robert Roswell, the VA's undersecretary for health, said, "There's
no question that waiting times are a significant problem, but we're
trying
to resolve them."

In July 2002, a VA survey found close to 318,000 veterans who were
likely to wait more than half a year to see a doctor. That number dropped
to around 236,000 by December and 202,000 last month. In more than
half the cases, veterans could not be given an appointment date, but
were placed on a waiting list for longer than six months.

Roswell said the agency is taking a number of steps to improve the
waiting times, including ensuring that all primary care doctors carry
full loads
of 1,200 patients; home care visits by health professionals;
interactive web sites to allow patients to chat with doctors; home
monitoring
equipment connected to VA facilities; and group appointments for
patients with similar ailments, such as diabetes.

If budget requests are met, the VA wants to hire 1,000 additional
physicians and improve salary scales.

Conley said some veterans are in worse situations than the survey
indicated, because "a lot of clinics can't handle more patients so
they refuse
to sign veterans up."

He said President Bush is likely to fall into the same trap as past
presidents, who failed to account for a new war's increase in veterans
who will
later use the VA health system.

Conley, who has been visiting facilities across the country, said that
in Cheyenne, Wyo., veterans who signed up for a primary care appointment
in September received appointments for this June.

In Minneapolis, he found that 11,000 veterans waited a year to see a
primary care doctor. At the Togas, Maine, VA Medical Center, 1,800
veterans waited up to two years; in Bay Pines, Fla., about 16,000
waited a year.

Demands on veterans health care facilities have risen dramatically in
recent years, growing by 54 percent since a 1996 law made all veterans
eligible to receive medical care. The secretary of Veterans Affairs,
Anthony Principi, said last month the system is expected to serve 4.8
million
patients in the fiscal year beginning in October.

President Bush's 2004 budget includes $27.5 billion for veterans
medical care, a 7.7 percent increase over the current fiscal year.

Principi has proposed to increase out-of-pocket costs for veterans
with higher incomes, including an annual enrollment fee of $250 for
medical
conditions not connected to active duty; an increase in copayments for
primary care visits from the current $15 to $20; and a boost in the
pharmacy copayment from the current $7 to $15. For lower-income
veterans, however, the pharmacy copayment would be eliminated.

http://www.washingtonpost.com/wp-dyn/articles/A36809-2003Mar3.html

---

On the Net: American Legion: http://www.legion.org/

Department of Veterans Affairs: http://www.va.gov/

#### END ####

Signed:
Veterans Resources Network
Ray B Davis Jr, Editor
Box 68
East Flat Rock, NC 28726
http://www.veteransresources.net
http://groups.yahoo.com/group/raybdavisjr/
http://groups.yahoo.com/group/sound-off-veterans/

VETERANS RESOURCES NETWORK/
American Legion Press Release

Legion Commander Recommends Improvements to VA Budget


WASHINGTON (Feb. 4, 2003) - The Bush administration's 2004 budget for the
Department of Veterans Affairs has a strong bottom line but a few
disturbing proposals, according to American Legion National Commander
Ronald F. Conley.
"I'll give the administration credit for seeking $25.4 billion in VA health
care funding, not counting the $2.1 billion VA expects to collect from
third-party insurance providers," Conley said. "This is a substantial
request and a good sign from the administration.
"Having said that, The American Legion cannot support a couple of proposals
that would affect veterans in VA's lower health-care priority groups.
Charging a $250 enrollment fee to all veterans in Priority Group 8 and to
non-service connected veterans in Priority Group 7 is utterly ridiculous.
Congress should reject that proposal, just as it did the administration's
plan last year to charge Priority Group 7 veterans a $1,500 deductible.
Additionally, although eliminating the pharmacy co-payment for certain
veterans in the second through fifth priority groups is laudable, raising
it from $7 to $15 for the bottom two priority groups should be avoided.
"Having toured 18 VA hospitals in 16 states, since I was elected National
Commander in September, I've seen firsthand the effects of under-funding VA
health care. It makes hundreds of thousands of veterans wait months for an
appointment at a VA medical facility, and it forces dedicated VA
professionals to work with inadequate resources. The short-term answer is
to provide adequate discretionary funding to VA without forcing those who
sacrificed for freedom to make enormous financial sacrifices to receive the
health care they should expect from a grateful nation. The long-term
answers are to fund VA the way Medicare and Social Security are funded - on
a mandatory basis - and to allow veterans on Medicare to use their benefits
to pay for treatment at VA the same way they can use Medicare at a for-
profit facility that conceivably would charge the American taxpayers more
money than VA would."

http://www.legion.org/pub_relations/2003_releases/pr_nr_0203403_budget.htm

- 30 -

Media Contact: Steve Thomas, 202/263-2982; Pager 800/759-8888, #115-8679;
Joe March, (317) 630-1253; Pag
--
Signed:
Veterans Resources Network
Ray B Davis Jr, Editor
Box 68
East Flat Rock, NC 28726
http://www.veteransresources.net
http://groups.yahoo.com/group/raybdavisjr/
http://groups.yahoo.com/group/sound-off-veterans/

VETERANS RESOURCES NETWORK

QUESTIONS AND ANSWERS - AGENT ORANGE AND CHRONIC LYMPHOCYTIC LEUKEMIA (From
VA Fl.)

What is chronic lymphocytic leukemia (CLL)? How many Vietnam veterans are
affected, and what is the evidence they are at risk? One of four major
types of leukemia, CLL is a disease that progresses slowly with increasing
production of excessive numbers of white blood cells. As the disease
worsens, the person first may experience such symptoms as fatigue,
shortness of breath, weight loss, or frequent infections. Veterans who have
experienced such symptoms do not necessarily have the disease and should
discuss any concerns with a physician. The chance of recovery from CLL
largely depends on the stage of the disease as well as the patient's age
and general health. The treatment plan also often depends on these factors.
Although the evidence as a whole indicated persons exposed to herbicides
similar to Agent Orange or some of its components have a heightened risk of
CLL, VA is not able to estimate a firm number of CLL cases that would be
expected in Vietnam veterans because the findings from these studies cannot
be generalized.
When will Vietnam veterans with CLL be able to receive compensation? VA
must undertake formal regulation development to implement Secretary of
Veterans Affairs Anthony J. Principi's decision Jan. 23 to grant service-
connection to Vietnam veterans with CLL. Usually a proposed rule is
published in the Federal Register, public comment is accepted and a final
rule follows based on the input received. This process involves
coordination with the Office of Management and Budget, but VA will make
every effort to make the regulation effective as soon as possible.
Does VA know of Vietnam veterans with CLL from its health care records? How
will VA be contacting those Vietnam veterans to let them know of the
possibility of new disability compensation benefits? VA has not at this
time established a mechanism to identify individual veterans. However, VA
attempts to keep all of the 314,000 veterans who have signed up for the
Agent Orange Registry health examination program informed about benefits
changes through newsletters and will highlight the Secretary’s
determination in future mailings to the group. Additional outreach measures
may be considered.

http://www.vba.va.gov/ro/south/spete/news/notes/0302/2.htm

##### END ######

--
Signed:
Veterans Resources Network
Ray B Davis Jr, Editor
Box 68
East Flat Rock, NC 28726
http://www.veteransresources.net
http://groups.yahoo.com/group/raybdavisjr/
http://groups.yahoo.com/group/sound-off-veterans/

VETERANS RESOURCES NETWORK

--- START ------

Veterans Affairs Wants Nerve Gas Review

By Suzanne Gamboa
Associated Press Writer
Friday, January 24, 2003; 4:50 PM

WASHINGTON –– The head of the Veterans Affairs Department said he will
ask researchers to investigate possible links between sarin gas and
symptoms seen in Persian Gulf War veterans after a study found the nerve
gas affected behavior and organ functions in laboratory mice.

VA Secretary Anthony Principi said he will ask the Institute of Medicine
to provide him with a report of whether findings in the study "hold true
for humans in the Persian Gulf" who might have been exposed to sarin.

"I understand how it can be so frustrating for service members who feel
their service in the gulf might have caused their illnesses," Principi
said Thursday.

Veterans of the 1991 Gulf War have suffered from illnesses they believe
linked to their service in Gulf. Among reported symptoms are chronic
fatigue, diarrhea, migraines, dizziness, memory problems, loss of muscle
control and loss of balance.

For years, many scientists have blamed stress. Veterans and some
researchers, however, attribute the health problems to toxic substances
the veterans encountered in the Gulf, including sarin. Others suggest it
may be a combination of factors.

The Institute of Medicine has been reviewing research of substances
considered possible culprits in illnesses suffered by Gulf War veterans.
Thus far it has reported that not enough scientific information exists
to determine whether exposure to low levels of sarin nerve gas had
long-term health effects in people.

Sarin nerve gas is a deadly toxin that quickly kills its victims at high
levels, but little is known about its effects when people are exposed to
nonlethal doses or doses that have no immediate effects.

The Associated Press reported in December that an Army-sponsored study
done by Lovelace Respiratory Research Institute in Albuquerque, N.M.,
suggested that low-level exposure has some effect over time in lab mice,
including causing changes to structures of the brain critical for memory
and cognition.

The Pentagon says about 130,000 Persian Gulf War veterans were exposed
to sarin nerve gas when U.S. troops destroyed an Iraqi weapons depot in
Khamisiyah in 1991. Some of the weapons contained sarin gas, and some
veterans believe other exposures occurred as well.

Dr. Robert Haley, an epidemiologist with the University of Texas
Southwestern Medical Center at Dallas, has published almost two dozen
studies suggesting that some Gulf War veterans' illnesses are linked to
brain damage resulting from exposure to toxins such as sarin.

Haley said Principi's request for a review of the study is the right
move. "He is doing everything he can to short-circuit the red tape and
bring relief to the many sick Gulf War veterans as quickly as the
science allows," Haley said.

–––

On the Net: Department of Veterans Affairs: http://www.va.gov

Institute of Medicine: http://www.iom.edu

© 2003 The Associated Press

####### END ######

--
Signed:
Veterans Resources Network
Ray B Davis Jr, Editor
Box 68
East Flat Rock, NC 28726
http://www.veteransresources.net
http://groups.yahoo.com/group/raybdavisjr/
http://groups.yahoo.com/group/sound-off-veterans/

VETERANS RESOURCES NETWORK

##### VA Employee steals checks meant for Homeless Veterans:#######

January 15, 2003
FOR IMMEDIATE RELEASE
(310) 268-4269

Four Individuals Indicted for Conspiracy and Bank Fraud

Douglas J. Carver, Special Agent in Charge, U.S. Department of Veterans Affairs
(VA), Office of Inspector General (OIG), Criminal
Investigations Division (CID), Western Field Office, Los Angeles, CA, announced
today that Nathaniel Carter, Gary Graham, Donald Boyd, and
Aundra Nichols of Los Angeles, CA were each indicted on one count of Conspiracy
and eight counts of Bank Fraud.

Carver stated that the joint investigation between the VAOIG-CID, VA Police
Department, and the U.S. Secret Service, determined that
Nathaniel Carter, a Supervisor in the VA Mail Room, stole U.S. Treasury checks
payable to homeless veterans through the VA mail system,
and provided those checks to Gary Graham for negotiation to several California
banks. Further investigation revealed that Graham used
Donald Boyd and Aundra Nichols to facilitate the negotiation of the checks. The
investigation also disclosed that Graham provided monetary
compensation to Carter, Boyd, and Nichols upon negotiation of the stolen checks.
The total loss to the VA is approximately $90,264.00.

The case is being prosecuted by the U.S. Attorney?s Office, Los Angeles,
California.
http://www.va.gov/oig/51/press2003/pr-Carter_1-15-03.htm

###### Costa Mesa Woman Indicted for Defrauding VA #######

January 15, 2003
FOR IMMEDIATE RELEASE
(310) 268-4269

Costa Mesa Woman Indicted for Defrauding VA

Douglas J. Carver, Special Agent-In-Charge, Department of Veterans Affairs (VA),
Office of Inspector General (OIG), Western Field Office,
Criminal Investigations Division, Los Angeles, CA, announced today that Laurie
A. Breneman of Costa Mesa, CA, was indicted in U.S. District
Court, Central District of California, Santa Ana, CA, on one count of forging
U.S. Treasury Checks.

The indictment charges that from approximately February 1999 through December
1999, Breneman forged the intended Dependency and
Indemnity Compensation beneficiary?s signature on eleven U.S. Treasury checks
and converted to her own use $9,471.00 in VA Dependency
and Indemnity Compensation benefit payments issued in her mother in law's name
after her mother in law's death.

Assistant United States Attorney Rob Atkins of the U.S. Attorney's Office in
Santa Ana is prosecuting the case.
http://www.va.gov/oig/51/press2003/pr-Breneman_1-15-03.htm

####### END #####

Signed:
Veterans Resources Network
Ray B Davis Jr, Editor
Box 68
East Flat Rock, NC 28726
http://www.veteransresources.net
http://groups.yahoo.com/group/raybdavisjr/
http://groups.yahoo.com/group/sound-off-veterans/

VETERANS RESOURCES NETWORK

Dear Readers,

VA Secretary Principi has added one more condition to the list of
presumed conditions caused by exposure to Agent Orange: chronic
lymphocytic leukemia (CLL).  See the VA press release below.

Your Editor,
Ray B Davis, Jr.

##### Start #####

          Recent VA News Releases


          To view and download VA news releases, please visit the following
Internet address:
                          <http://www.va.gov/opa/pressrel>


          VA To Grant Benefits To More Vietnam Veterans

          WASHINGTON (Jan. 23, 2003) - Based upon a recently released review
of scientific studies, Secretary of Veterans Affairs Anthony J. Principi has
decided to extend benefits to Vietnam veterans with chronic lymphocytic
leukemia (CLL).

          "Compelling evidence has emerged within the scientific community
that exposure to herbicides such as Agent Orange is associated with CLL,"
Principi said. "I'm exercising my legal authority to ensure the full range
of VA benefits is available to Vietnam veterans with CLL."

          The ruling means that veterans with CLL who served in Vietnam
during
the Vietnam War don't have to prove that illness is related to their
military service to qualify for Department of Veterans Affairs disability
compensation.  Additionally, for more than 20 years, VA has offered special
access to medical care to Vietnam veterans with any health problems that may
have resulted from Agent Orange exposure, and this decision will ensure
higher-priority access to care in the future.

          The decision to provide compensation was based upon a recent report
by the Institute of Medicine (IOM) that found among scientific studies
"sufficient evidence of an association" between exposure to herbicides
during the Vietnam War and CLL.

          The IOM review, conducted at VA's request, was the latest in a
series spanning the period since 1993 when the independent, non-governmental
agency first published a report for VA that examined thousands of relevant
scientific studies on the health effects of various substances to which
American servicemembers may have been exposed in Vietnam.

          "On the modern battlefield, not all injuries are caused by shrapnel
and bullets," Principi said.  "This latest IOM study and my decision to act
upon it are the latest examples of VA's continuing efforts to care for the
needs of our combat veterans."

          VA requested the IOM panel of experts to focus on CLL in their
report because of veterans' concerns that CLL shares some similarities with
non-Hodgkin's lymphoma, which the IOM had previously connected to Agent
Orange exposure.

          Principi ordered the development of regulations to enable VA to
begin paying compensation benefits once a final rule takes effect.
Publication of that regulation is expected in the near future.  VA will
publish further details, when available, on its Web site at
http://www.vba.va.gov/bln/21/benefits/herbicide/.

          In the meantime, veterans with questions about health-care,
compensation and survivor benefits may call a toll-free help line at
1-800-749-8387 for information.  VA also encourages Vietnam veterans who
have not done so to request a subscription to Agent Orange Review, VA's free
newsletter that will keep them abreast of developments on this issue and
other policies and scientific findings in the future.

          Newsletter subscription information is available from the help line
number above.  Back issues and additional information about Agent Orange are
available at another VA Web site at http://www.va.gov/agentorange/.


          To "unsubscribe" from this list, or to update your name or e-mail
address, please visit the following Internet address:
                  <http://www.va.gov/opa/pressrel/opalist_listserv.cfm>

##### END ######

--
Signed:
Veterans Resources Network
Ray B Davis Jr, Editor
Box 68
East Flat Rock, NC 28726
http://www.veteransresources.net
http://groups.yahoo.com/group/raybdavisjr/
http://groups.yahoo.com/group/sound-off-veterans/

VETERANS RESOURCES NETWORK

Dear Readers,

We have published last year the VA General Counsel Precedent Opinion
4-2002, which held;
--QUOTE:
HELD:
If evidence establishes that an individual suffers from a disabling
condition as a result of administration of an anthrax vaccination during
inactive duty training, the individual may be considered disabled by an
“injury” incurred during such training as the term is used in 38 U.S.C.
§ 101 (24), which defines “active military, naval, or air service” to
include any period of inactive duty training during which the individual
was disabled or died from an injury incurred or aggravated in line of
duty.
Consequently, such an individual may be found to have incurred
disability in active military, naval, or air service for purposes of
disability compensation under 38 U.S.C. § 1110 or 1131.
--UNQUOTE. See complete text at:
http://www.veteransresources.net/OGC/Ogc2002/4-2002.htm

Below is the text of the VA's Assessment Document of what Opinion 4-2002
means.

Your Editor,
Ray B Davis, Jr.

##### Start Assessment of VAOGC 4-2002 ######

GENERAL COUNSEL PRECEDENT OPINION ASSESSMENT
VAOPGCPREC 4-2002

What did this opinion hold?

If evidence establishes that an individual suffers from a disabling
condition as a result of administration of an anthrax vaccination during
inactive duty training, the individual may be considered disabled by an
“injury’ incurred during such training as the term is used in 38 U.S.C.
§ 101 (24), which defines “active military, naval, or air service’ to
include any period of inactive duty training during which the individual
was disabled or died from an injury incurred or aggravated in line of
duty.  Consequently, such an individual may be found to have incurred
disability in active military, naval, or air service for purposes of
disability compensation under 38 U.S.C. § 1110 or 1131.

How does this affect VBA?

This opinion affects VBA procedures - consideration should be given to
updating M21-1.  The provisions of this precedent opinion can be applied
to any vaccination against disease.

What is a brief summary of the background and analysis?

In this opinion, the General Counsel held that an anthrax inoculation
given to a veteran during inactive duty training may be considered an
“injury’ for purposes of determining if a disability should be service
connected.  This General Counsel opinion did not describe the type of
evidence, however, that should be used to establish service connection
for a disability that is claimed to be the result of the vaccine.  As
explained in a notice published by VA in the Federal Register on July 6,
2001, studies reviewed by the National Academy of  Sciences (NAS) have
not reported significant long-term adverse effects of the vaccine.
Federal Register, Vol. 66, page 35702, July 6, 2001.  As a result, no
presumption has been established at this point for a disability that is
caused by an anthrax vaccination.

Of course, a claimant may attempt to establish by direct proof that a
non presumptive condition was actually caused by an anthrax vaccination.
    If we deny a claim for service connection for a disability claimed to
be caused by an anthrax vaccination, we should explain to the claimant
as part of our duty to notify that competent scientific or medical
evidence which establishes that the vaccination actually caused the
disability is required.

 REVIEWERS/DATE:
Name Signature Date

First Reviewer Jean York 12-19-2002

Secondary Reviewer ___________________________ _______


211 CONCURRENCES: Signature Date

211B ________________________________ ___________

211A ________________________________ ___________

211 ________________________________ ___________

CONCURRENCES:
Staff Signature Date

212 ________________________________   ___________

213 ________________________________   ___________

214 ________________________________   ___________

215 _____(Not Required)_______________ ___________

216 _____(Not Required)_______________ ___________

DEPUTY DIRECTOR´S CONCURRENCE:

210 ________________________________ __________

ACTION BY DIRECTOR, C&P SERVICE:

Approved?

___   ___ ________________________________ ___________
Yes    No Ronald J. Henke Date

ACTION ELEMENT_______________________________

DUE DATE____________________________________

ADDITIONAL INSTRUCTIONS:

Link at:
http://www.veteransresources.net/OGC/Ogc2002/assess-prec4-2002.htm

##### END ######

--
Signed:
Veterans Resources Network
Ray B Davis Jr, Editor
Box 68
East Flat Rock, NC 28726
http://www.veteransresources.net
http://groups.yahoo.com/group/raybdavisjr/
http://groups.yahoo.com/group/sound-off-veterans/

VETERANS RESOURCES NETWORK

Dear Readers,

Below are articles from the American Legion, Washington Post, New York
Times, and the Associated Press which detail how VA health care
enrollment suspension will affect veterans.

Those making over $30,000.00, no insurance, and not currently enrolled, you will
have to wait for another enrollment opportunity in years to come.

The Bush administration can give-away the bank with tax rebates, and
reductions; spend billions on a war with Iraq, but gives a death
sentence to America's veterans.

Your Editor,
Ray B Davis, Jr.

##### ASSOCIATED PRESS ######

Moratorium on a Benefit
By THE ASSOCIATED PRESS

WASHINGTON, Jan. 16 (AP) — The Veterans Affairs Department will suspend
enrollment on Friday for higher-income veterans who are seeking health
care for ailments like heart disease and diabetes that are not related
to their military service. The suspension, which is scheduled to last
through 2003, is expected to affect about 164,000 veterans.

http://www.nytimes.com/2003/01/17/national/17VETS.html

####### Associated Press #######

Jan.17 2003
VA Stops Enrolling Higher Income Vets
By THE ASSOCIATED PRESS

Filed at 7:31 a.m. ET

WASHINGTON (AP) -- A Veterans Affairs Department decision to suspend
health care enrollment for some higher income vets demonstrates the need
for better funding for the department, lawmakers said.

The agency is suspending enrollment as of Friday for veterans with
higher incomes who don't have military service-related ailments or
injuries and use the VA for health care ranging from routine visits to
heart disease.
Advertisement

The enrollment suspension, scheduled to last through 2003, goes against
VA policy set in 1996 when Congress ordered the agency to open health
care to nearly all veterans. The change is expected to affect about
164,000 veterans.

The chairman of the House Veterans Affairs Committee, Rep. Chris Smith,
R-N.J., said the decision was disappointing, but ``underscores the need
to develop long-term solutions to VA's health care funding problems.''

A spokesman for Senate Minority Leader Tom Daschle, D-S.D., accused the
Bush administration of choosing tax cuts for the wealthy over veterans'
care.

``If we are going to spend a trillion dollars on a tax cut, we should be
able to find money for all those who served,'' Daschle spokesman Jay
Carson said.

In an interview, VA Secretary Anthony Principi said the agency has been
struggling to provide adequate health care to a rapidly rising number of
veterans. The VA's patient population ballooned from 2.9 million in 1996
to 6.8 million today, Principi said.

``People might say, 'Well, Mr. Secretary, what kind of message does this
send to people who may deploy to the Persian Gulf?''' Principi said.

``I have a son in the Gulf who may deploy to Iraq, who may fight a war
if the president chooses. I think it sends a positive message that the
VA is there for those who are disabled (while) in uniform,'' he said,
adding that a VA priority also is to provide health care for recent
combat veterans.

Ronald Conley, American Legion national commander, agreed with Principi
that Congress has not provided the agency enough money to fulfill its
mandate to provide care to nearly all veterans.

``The Congress of the United States has to properly fund it and this is
the bottom line. And the president has to go to Congress and tell them
they have to fund it,'' Conley said.

Principi said he expects President Bush to propose a 7.7 percent
increase in the VA's health care budget for 2004, but he said it would
not be enough.

The enrollment suspension applies to those considered the lowest
priority for benefits. They are veterans with the highest incomes and no
military service-related health problems, known as Category 8 veterans.

Just what level of income constitutes Category 8 status depends on where
the veteran lives and the size of the veterans' household. For instance,
unmarried veterans making more than $38,100 in Atlanta or more than
$23,050 in Abilene, Texas, would be considered Category 8 veterans.

The 6.8 million veterans already enrolled in the VA, including 1.4
million Category 8 veterans, would not be affected by Principi's
decision. The VA estimates that about 164,000 Category 8 veterans would
have enrolled this year.

About 18.2 million U.S. veterans do not use VA health care.

Principi, who is required by law to review enrollments every year, had
warned Congress last session that he might be forced to limit
enrollments if lawmakers did not approve a proposed $1,500 deductible
for higher-income vets.

Congress balked at the proposal, which was heavily criticized by some
veterans groups.

Principi said the VA needs the enrollment ``time out'' to get a handle
on its current workload and reduce waiting times that can be as long as
six months.

Meanwhile, Principi said he and Health and Human Services Secretary
Tommy Thompson would try to work through regulations to allow the VA to
be reimbursed for services provided to Medicare-eligible veterans,
generally those over 65 years old.

Principi said he hopes the enrollment limit and Medicare changes will
help meet an end-of-the-year goal for veterans to wait no longer than 30
days to see a primary care physician and slightly longer for a specialist.

http://www.nytimes.com/aponline/national/AP-Veterans-Health.html

^------

On the Net:

Veterans Affairs Department site: http://www.va.gov/


###### WASHINGTON POST ######

VA Cuts Some Veterans' Access to Health Care
Huge Backlog, Long Waits Prompt Decision


By Edward Walsh
Washington Post Staff Writer
Friday, January 17, 2003; Page A21

The Department of Veterans Affairs announced yesterday that it is
immediately cutting off access to its health care system to some
higher-income veterans, a move the agency estimated will affect about
164,000 veterans who were expected to enroll in the system during the
current fiscal year.

Veterans Affairs Secretary Anthony J. Principi said he decided to
restrict access to the VA health care system because of a growing
backlog of about 200,000 veterans who have to wait an average of six
months before receiving their first treatment at a VA health care facility.

The growth in the number of veterans enrolling in the VA system "is
eating up all of our marginal capacity," Principi said in an interview.
"Our clinics, our medical facilities are full."

The restrictions, which take effect today, apply to what the agency
calls Category 8 veterans, the lowest priority in health care. These are
veterans with relatively high incomes who do not suffer from military
service-related disabilities or health problems. Category 8 income
levels vary depending on geographic location, but Principi said
generally the restrictions will apply to veterans with annual incomes of
$30,000 to $35,000 or higher.

The restrictions will apply only to new enrollees and will not affect
the 1.4 million Category 8 veterans who currently receive health care
from the VA, he said.

Principi is required by law to set eligibility rules for the VA health
care system every year, and the restrictions apply only to this fiscal
year, which ends Sept. 30. But in the interview, he indicated that
unless there is a reduction in the patient backlog, the restrictions
will remain in place longer. "I would like to reopen enrollment if I
can, but not at the expense of meeting our obligations to the
highest-priority veterans," he said.

Principi informed leaders of veterans groups of his decision yesterday
morning. Spokesmen for the groups said they understood why the
restrictions were being imposed, but they lashed out at Congress for
what they called inadequate funding of VA health care. "Without proper
funding, the secretary is never going to get [the backlog] down, so what
he has done is to make the tough business decision," said Bob Wallace,
executive director of the Veterans of Foreign Wars. "If they can't take
care of them, it's unconscionable to let them continue to enroll. The
real bad guys in this is the Congress because they haven't fully funded
the VA. I don't want to see anybody excluded from care, but we can't
allow these false expectations and these lines to get longer and longer."

Historically, the VA's health care mission has been to treat veterans
with service-related health problems and low incomes, and those needing
special services. But that changed when Congress enacted legislation in
1996 opening the system to all veterans. That year, the VA health care
system treated 2.9 million veterans. Last year, the number of patients
had swelled to 4.2 million.

The largest segment of those entering the system are relatively
high-income veterans who fall into Category 8. Principi said more than
half of the 830,000 veterans who enrolled last year were classified as
Category 8.

In an attempt to soften the effects of the restrictions, Principi also
announced that under an agreement with the Health and Human Services
Department, veterans who are eligible for Medicare and have been denied
access to the VA health care system can still be treated at VA
facilities, with Medicare reimbursing the department. He said he expects
the program to begin operating later this year.

Principi also said President Bush will ask Congress to increase VA
health care spending by $1.9 billion, to $27.5 billion, for the next
fiscal year.

http://www.washingtonpost.com/wp-dyn/articles/A4064-2003Jan16.html

© 2003 The Washington Post Company

##### AMERICAN LEGION #####

Legion Commander: VA Enrollment Cutbacks Avoidable


WASHINGTON (Jan. 17, 2003) - Denying veterans access to health care from
the Department of Veterans Affairs, particularly while young men and
women fight the war on terrorism and prepare to do battle in Iraq, is
unacceptable to the 2.8-million member American Legion, the nation’s
largest veterans organization.

VA Secretary Anthony J. Principi announced that enrollment for VA health
care will be suspended, effective today, for so-called higher-income
veterans who seek treatment for conditions that are not
service-connected, Priority Group 8 veterans. VA estimates 164,000
veterans will be affected.

“This is a raw deal for veterans, no matter how you cut it,” American
Legion National Commander Ronald F. Conley said. “By denying a certain
Priority Group, the administration is sending the message that these
veterans are not a priority at all, even if they have health insurance
that VA can bill for the cost of their medical treatment; VA health care
is not free to all veterans. Additionally, the income threshold that
determines whether someone belongs in Priority Group 8 is so low that no
one can say, with a straight face, that all these veterans are well-off.

“Here’s a better idea: Instead of squeezing the system to meet the
budget, why not make the budget fit the rising demand for VA health
care? That way, citizen-soldiers - who endured family separation and the
inherent hazards of preserving our freedom - are not forgotten. With
adequate funding, VA can trim the backlog of about 300,000 veterans who
have been waiting months for primary-care appointments. Of course,
veterans with any form of service-connected disability must remain the
highest priority.

“I sincerely hope some valuable lessons have been learned. For instance,
if Congress ever again approves a supplemental spending bill containing
funding for VA, the president would do well not to veto it, as he did
last year. The administration also should not ask Congress for less than
VA needs, then tell veterans: ‘Sorry. We didn’t budget for you.’ Imagine
the message that sends to someone either wearing the uniform today or
considering an offer from a military recruiter.

“In the meantime, The American Legion will work with members of
Congress, on both sides of the aisle, to pass long-term funding
solutions. We will continue to fight for Medicare-reimbursement
legislation that will allow Medicare to pay VA for the cost of health
care it provides to Medicare-eligible veterans. Further, we will
continue to press for mandatory-funding legislation that will have a
formula built into it that will ensure VA receives adequate funding to
meet its statutory requirement to treat all veterans who enroll for
health care there.”

http://www.legion.org/pub_relations/pr_nr_011703_legionreacts.htm

-- 30 --
--
Signed:
Veterans Resources Network
Ray B Davis Jr, Editor
Box 68
East Flat Rock, NC 28726
http://www.veteransresources.net
http://groups.yahoo.com/group/raybdavisjr/
http://groups.yahoo.com/group/sound-off-veterans/

VETERANS RESOURCES NETWORK

Download the latest program which contains the January 2003 edition of
title 38 Code of Federal Regulations, 2000-2002 court decisions and
DADs, and more. About 5.16 mb.
Go to:
http://www.veteransresources.net/update/

If the site is busy? come back later to download the file VA-2003.  Let
me know if you do so, and if it is helpful?

Feel free to write asking for directions to any reference material about
veterans claims and benefits at our site.

Your Editor,
Ray B Davis, Jr.

--
Signed:
Veterans Resources Network
Ray B Davis Jr, Editor
Box 68
East Flat Rock, NC 28726
http://www.veteransresources.net
http://groups.yahoo.com/group/raybdavisjr/
http://groups.yahoo.com/group/sound-off-veterans/

VETERANS RESOURCES NETWORK

Dear Readers,

VA Health Care enrollment for category 8 veterans is now suspended by
order of VA Secretary Principi, and the Bush administration.  See the VA
press release below.

While they are trying to put a good face on the issue; the truth is that
if you are not currently enrolled, call your local undertaker, as the VA
will only be providing you with a BURIAL FLAG AND A PLOT OF GROUND TO
BURY YOU.

Your Editor,
Ray B Davis, Jr.

###### START ######

          Recent VA News Releases


          To view and download VA news releases, please visit the following
Internet address:
                          <http://www.va.gov/opa/pressrel>


          VA Announces Record Budget, Health Care Changes

          WASHINGTON (January 17, 2003) - Secretary of Veterans Affairs
Anthony J. Principi today announced a record increase in the budget for
Department of Veterans Affairs (VA) medical care, the annual decision
required by law (PL 104-262) on health care enrollment and a new plan
between VA and the Department of Health and Human Services for a program
that will allow eligible veterans to use their Medicare benefits for VA
care.

          The President's FY 2004 Budget includes a total of $63.6
billion for
VA -- $30.2 billion in discretionary funding (mostly for health care) and
$33.4 billion for VA-administered entitlement programs (mostly disability
compensation and pensions).  The budget includes $225 million in new
construction funding for VA's nationwide infrastructure initiative (CARES)
to ensure that VA can put services where veterans live.

          "VA is maintaining its focus on the health care needs of its core
group of veterans - those with service-connected disabilities, the indigent
and those with special health care needs," Principi said.

          "We're able to do so because of the generous budget proposed by
President Bush for fiscal year 2004, beginning Oct. 1, 2003.  It will be 7.7
percent more for health care than the expected FY 2003 budget.  This would
be the largest requested increase in VA history,'' he said.

          In order to ensure VA has capacity to care for veterans for
whom our
Nation has the greatest obligation - military-related disabilities,
lower-income veterans or those needing specialized care like veterans who
are blind or have spinal cord injuries -- Principi has suspended additional
enrollments for veterans with the lowest statutory priority.  This category
includes veterans who are not being compensated for a military-related
disability and who have higher incomes.

          The suspension of enrollment affects only veterans in Priority
Group
8, the lowest group in VA's eight-level system for setting health care
priorities, who have not enrolled in VA's health care system by January 17.
Priority Group 8 veterans already enrolled will be "grandfathered" and
allowed to continue in VA's health care system.

          Work is underway with the Department of Health and Human
Services to
determine how to give Priority Group 8 veterans aged 65 or older who cannot
enroll in VA's health care system access to the "VA+Choice Medicare" plan.
The plan calls for VA to participate as a Medicare+Choice provider.
Eligible veterans would be able to use their Medicare benefits to obtain
care from VA.

          In return, VA would receive payments from a private health plan
contracting with Medicare that would cover costs.  The "VA+Choice Medicare"
plan would become effective later this year as details are finalized between
VA and the Department of Health and Human Services.

          "HHS is happy to join the Department of Veterans Affairs in
developing this new option for veterans who might otherwise be unable to
obtain health care through the VA," said HHS Secretary Tommy G. Thompson.
"This is a creative marriage of our federal health programs to serve our
veterans efficiently and effectively."

          VA has been unable to provide all enrolled veterans with timely
access to health care services because of the tremendous growth in the
number of veterans seeking VA health care.  More than half of all new
enrollees have been in Priority Group 8.  This demand for VA health care is
expected to continue in the future.

          Between October 2001 and September 2002, VA enrolled 830,000
additional veterans.  Since 1996, VA enrollment has increased from 2.9
million to 6.8 million today.  Non-service disabled, higher income veterans
accounted for the majority of the rapid enrollment growth, hindering the
ability of VA to care for the service-disabled, the indigent and those with
special needs.  Even with the suspension of new enrollments for Priority
Group 8 veterans, another 380,000 veterans in Priority Groups 1 through 7
are projected to enroll by the end of FY 2003.

          "Last year, VA treated 1.4 million more veterans with 20,000 fewer
employees than in 1996," said Principi.  "Nonetheless, VA leads the nation
in many important areas like patient safety, computerized patient records,
telemedicine, rehabilitation and research.  I not only want to see this
standard continue, I intend to see it get even better."

          Congress mandated in 1996 that VA establish an enrollment system to
manage hospital and outpatient care within budgetary limits and to provide
quality care to those enrolled.  By law, the VA secretary must decide
annually whether to maintain enrollment for all veterans.

          "With this record budget increase, I expect access to medical
facilities for severely disabled veterans to improve, along with a reduction
in waiting times for all veterans,'' Principi said.


          To "unsubscribe" from this list, or to update your name or e-mail
address, please visit the following Internet address:
                  <http://www.va.gov/opa/pressrel/opalist_listserv.cfm>

###### END ######


--
Signed:
Veterans Resources Network
Ray B Davis Jr, Editor
Box 68
East Flat Rock, NC 28726
http://www.veteransresources.net
http://groups.yahoo.com/group/raybdavisjr/
http://groups.yahoo.com/group/sound-off-veterans/

VETERANS RESOURCES NETWORK

Dear Readers,

We have deleted most messages in our archive as most of them are
out-dated.  In the future we will keep messages for no longer than
6-12 months.   Also some messages which are out-dated will be deleted
before that time-limit is met.

Your Editor,
Ray B Davis, Jr.

http://www.veteransresources.net/
http://groups.yahoo.com/group/raybdavisjr/

VETERANS RESOURCES NETWORK

Dear Readers,

We had posted information about the Federal Circuit case Cook v
Principi, and below is part of a letter one of our readers sent in about
that case (see our archive for the case text).

Also the VA has posted information about Concurrent Receipt of both
Military retirement pay and VA compensation, see it copied below. You
need to be rated at 10 percent with a purple heart because of the
disability, or a 60 percent rating at time of retirement because of
combat injury.  But you will have to wait until the final regulations
are written by the Dept. of Defense to be certain of qualifications.

Your Editor,
Ray B Davis, Jr.

##### Cook Case ####

Dear Editor,

People who did Cook are trying to get the Supreme Court to accept
review of this decision but, from my own professional standpoint, the Fed
Circuit decision did not represent that much of a loss.  The Veterans Court
cut Hayre back considerably in its later decisions, and I have never seen a
Hayre win (except one of my own, which got a claim cranked back to 1971 and
a very happy veteran) before the BVA.

A.

##### Concurrent Pay Information #####

NEW CONCURRENT RECEIPT LAW

On December 2, 2002 President Bush signed into law Public Law No.107-314
SEC. 636. SPECIAL COMPENSATION FOR CERTAIN COMBAT-RELATED DISABLED
UNIFORMED SERVICES RETIREES.

This law will be administered by the Department of Defense (DoD).
Eligible retirees will have to apply for this new compensation. Because
the Defense Department needs time to develop guidelines for approval as
well as application forms and procedures, Congress made the effective
date of the new payment 180 days after the President signed the law.
President Bush did that on December 2, so the effective date of the new
special compensation will be June 1, 2003.

DoD officials have a lot of work to do to build documentation
requirements, approval procedures and guidelines, application forms and
more, and say these actions probably won’t be completed before the end
of April. It will be four or five months before it will be known what
the final rules are or how or where to apply. Disabled retirees are
urged to be patient and avoid sending inquiries to the Defense
Department until the rules are announced.

For purposes of this law, an eligible combat-related disabled uniformed
services retiree is a member of the uniformed services entitled to
retired pay who has completed at least 20 years of service in the
uniformed services that are creditable for purposes of computing the
amount of retired pay to which the member is entitled; and has a
qualifying combat-related disability.

The term "qualifying combat-related disability" means either of the
following: A disability that is attributable to an injury for which the
member was awarded the Purple Heart; and is rated as not less than 10
percent disabling by VA or Dod, as of the date on which the member is
retired from the uniformed services; or a service-connected disability
that was incurred (as determined under criteria prescribed by the
Secretary of Defense) as a direct result of armed conflict, or while
engaged in hazardous service, or in the performance of duty under
conditions simulating war, through an instrumentality of war, and is
rated as not less than 60 percent disabling by VA or Dod, as of the date
on which the member is retired from the uniformed services.

The monthly amount to be paid an eligible combat-related disabled
uniformed services retiree for a combat-related disability is equal to
the monthly amount of compensation to which the retiree would be
entitled solely for the combat-related disability from VA. The amount
paid to an eligible combat-related disabled uniformed services retiree
for any month may not exceed the amount of the reduction in retired pay
that is applicable to the retiree for that month for the receipt of VA
compensation.

http://www.vba.va.gov/ro/south/spete/news/notes/0301/3.htm

###### END ######
--
Signed:
Veterans Resources Network
Ray B Davis Jr, Editor
Box 68
East Flat Rock, NC 28726
http://www.veteransresources.net
http://groups.yahoo.com/group/raybdavisjr/
http://groups.yahoo.com/group/sound-off-veterans/

VETERANS RESOURCES NETWORK

Dear Readers,

Below in the Federal Circuit case Cook v Principi (Dec. 2002)
overruled part of their decision in a former case; Hayre, also upheld
that a failure by the VA to assist is not Clear and unmistakable
error.

-------Quote:
We affirm the decision of the Veterans Court.  In Part I of this
opinion, we have overruled Hayre insofar as it holds that the
existence of "grave procedural error" renders a decision of the VA
non-final.  In Part II, we have held that a failure of the VA to
assist the veteran to the extent required by applicable law and
regulations cannot constitute CUE under 38 U.S.C. § 5109A.  In the
face of these rulings, Mr. Cook's claim for an earlier effective date
for his service-connected disability benefits must fail, because the
rulings leave Mr. Cook without any ground upon which to claim an
earlier effective date.
Unquote-------

See the entire text below.  Also not that the dissenting judges (see
after the decision) make a good case for Mr. Cook going to the
Supreme Court to decide the issue.

Your Editor,
Ray B Davis, Jr.

##### START #####

United States Court of Appeals for the Federal Circuit

00-7171

JAMES R. COOK,

Claimant-Appellant,


v.


ANTHONY J. PRINCIPI, Secretary of Veterans Affairs,


Respondent-Appellee.



         Kenneth M. Carpenter, Carpenter, Chartered, of Topeka,
Kansas, argued for claimant-appellant.

         Martin F. Hockey, Jr., Senior Trial Counsel, Commercial
Litigation Branch, Civil Division, Department of Justice, of
Washington, DC, argued for respondent-appellee.  With him on the
brief were Robert D. McCallum, Jr., Assistant Attorney General; and
David M. Cohen, Director. Of counsel on the brief were Richard D.
Hipolit, Deputy Assistant General Counsel; and Martie Adelman, Staff
Attorney, Department of Veterans Affairs, of Washington, DC.

         Linda E. Blauhut, Paralyzed Veterans of America, of
Washington, DC, for amicus curiae Garrett V. Hayre.  With her on the
brief was Michael P. Horan.

On Petition for Rehearing En Banc
United States Court of Appeals for the Federal Circuit


00-7171

JAMES R. COOK,

         Claimant-Appellant,

v.

ANTHONY J. PRINCIPI,
Secretary of Veterans Affairs,


Respondent-Appellee.


                         ___________________________

                         DECIDED:   December 20, 2002
                         ___________________________



Before MAYER, Chief Judge, FRIEDMAN, Senior Circuit Judge, NEWMAN,
MICHEL, LOURIE, CLEVENGER, RADER, SCHALL, BRYSON, GAJARSA, LINN, DYK,
and PROST, Circuit Judges.

Opinion for the court filed by Circuit Judge SCHALL, in which Senior
Circuit Judge FRIEDMAN and Circuit Judges MICHEL, LOURIE, CLEVENGER,
RADER, BRYSON, LINN, DYK, and PROST join.

Concurring opinion filed by Circuit Judge DYK, in which Circuit Judge
LINN joins.

Dissenting opinion filed by Circuit Judge GAJARSA, in which Chief
Judge MAYER and Circuit Judge NEWMAN join.

SCHALL, Circuit Judge.


         James R. Cook appeals the decision of the United States Court
of Appeals for Veterans Claims ("Veterans Court') in Cook v. West,
No. 91-1535, 2000 WL 719866 (Table) (Vet. App. June 1, 2000).  In its
decision, the Veterans Court upheld the ruling of the Board of
Veterans Appeals ("Board') that the alleged failure of the Veterans´
Administration´s# Regional Office ("RO') to give Mr. Cook a proper
medical examination before denying his 1952 claim for service-
connected benefits did not constitute clear and unmistakable error
("CUE') under 38 U.S.C. § 5109A.  See id. at *2-5.  The Veterans
Court also rejected Mr. Cook´s argument that, under Hayre v. West,
188 F.3d 1327 (Fed. Cir. 1999), the RO´s alleged failure to give him
a proper medical examination rendered the RO´s denial of service
connection non-final.  Cook, 2000 WL 719866, at *5.  Subsequently, a
split panel of this court affirmed the decision of the Veterans
Court.  Cook v. Principi, 258 F.3d 1311 (Fed. Cir. 2001), vacated,
275 F.3d 1365 (Fed. Cir. 2002).  The panel (Mayer, C.J., Friedman,
S.J., Rader, J.) held that the Veterans Court did not err in ruling
that the RO´s alleged violation of the duty to assist could not serve
as the basis for a claim of CUE.  At the same time, the panel held
that the Hayre exception to the rule of finality did not apply in Mr.
Cook´s case.  Chief Judge Mayer dissented on the latter point,
stating that "a breach of the duty to assist the veteran by failing
to provide a proper medical examination vitiates the prior decision
of the Regional Office for the purpose of direct appeal.'  Cook, 258
F.3d at 1316 (Mayer, C.J., dissenting).
Mr. Cook petitioned for rehearing en banc.  In so doing, he argued
that, under a proper application of Hayre, a showing that the VA
violated any statutory or regulatory duty towards a veteran vitiates
the finality of a decision regarding the veteran´s entitlement to
benefits.  On January 4, 2002, we granted Mr. Cook´s petition for
rehearing en banc and vacated the panel opinion.  Cook, 275 F.3d at
1366.  For purposes of the en banc proceedings, we asked the parties
to brief the following two questions:
1. Whether this court´s decision in Hayre v. West, 188 F.3d 1327
(Fed. Cir. 1999), should be overruled insofar as that case holds that
the existence of "grave procedural error' renders a decision of the
Veterans´ Administration non-final?

2. Whether, if Hayre is overruled in this respect, a failure of the
Secretary to assist the veteran under the law and regulations
applicable at the time (affirmatively demonstrated by the record
before the adjudicator in the particular case) can constitute clear
and unmistakable error ("CUE') under 38 U.S.C. § 5109A?  See Roberson
v. Principi, 251 F.3d 1378 (Fed. Cir. 2001).

We answer the en banc questions as follows:  First, to the extent
that it created an additional exception to the rule of finality
applicable to RO decisions, Hayre is overruled.  Second, a failure of
the Secretary to assist a veteran under applicable law and
regulations cannot constitute CUE.  In Parts I and II of this
opinion, respectively, we address the first and second en banc
questions.  In Part III, we consider Mr. Cook´s appeal in light of
our answers to the en banc questions.  Doing so, we affirm the
decision of the Veterans Court.
DISCUSSION
I.
A.  First En Banc Question
Whether this court´s decision in Hayre v. West, 188 F.3d 1327 (Fed.
Cir. 1999), should be overruled insofar as that case holds that the
existence of "grave procedural error' renders a decision of the
Veterans' Administration non-final?

B. The Rule of Finality
If a veteran fails to appeal from an RO decision concerning a claim,
the decision becomes "final,' and "the claim will not thereafter be
reopened or allowed, except as may otherwise be provided by
regulations not inconsistent with this title.'  38
U.S.C.               § 7105(c) (2000).  Principles of finality and
res judicata apply to agency decisions that have not been appealed
and have become final.  See Astoria Fed. Savs. & Loan Ass´n v.
Solimino, 501 U.S. 104, 107-08 (1991) (allowing the application of
res judicata to administrative agency determinations that have
attained finality); Routen v. West, 142 F.3d 1434, 1437 (Fed. Cir.
1998) (applying finality and res judicata to VA decisions).  As we
observed in Routen, "[u]nless otherwise provided by law, the cases
are closed and the matter is thus ended.'  Routen, 142 F.3d at 1438.
There are, however, two statutory exceptions to the rule of
finality.  First, pursuant to 38 U.S.C. § 5108, the Secretary must
reopen a claim "[i]f new and material evidence [regarding the claim]
is presented or secured.'  Second, a decision "is subject to revision
on the grounds of clear and unmistakable error.'  38 U.S.C. §§ 5109A
(decision by the Secretary) & 7111 (decision by the Board).  These
are the only statutory exceptions to the finality of VA decisions.#
C.  Hayre v. West
In Hayre, the veteran filed a claim in 1972 for service connection
for a "nerve problem.'  188 F.3d at 1329.  Hayre stated on his claim
form that he had been treated while in service for "nerves' and that
he had "talked to [a] psychiatrist,' and he requested that the RO
obtain his service medical records ("SMRs').  Id.  The RO sent a
request for the SMRs to the National Personnel Records Center but did
not receive them.  Id.  The RO made no further attempts to obtain the
records and rejected Hayre´s claim without notifying him that his
SMRs had not been obtained.  The RO told Hayre in its denial notice
that "we don´t find in your medical records or elsewhere any evidence
of a nervous condition.'   Id.
In 1992, Hayre again applied for service-connected disability.
Following a VA examination, he was awarded service connection and a
disability rating for post-traumatic stress disorder.  In 1993,
seeking an earlier effective date for the award of service
connection, Hayre brought a claim challenging the RO´s 1972 decision
as "clearly erroneous.'  Hayre argued that the RO had not obtained
the psychiatric SMRs that he had requested and had failed to afford
him a VA examination.  Id.  The RO denied the claim, and the Board
and the Veterans Court affirmed, treating the claim as a CUE claim.#
Hayre appealed to us.
On appeal, we reversed and remanded.  We first held that an RO´s
single unsuccessful request for pertinent SMRs that are specifically
sought by a claimant does not fulfill the RO´s duty to assist the
veteran in developing facts pertinent to his claim.#  Id. at 1331-
32.  However, relying on Bustos v. West, 179 F.3d 1378, 1381 (Fed.
Cir. 1999), we held that such a breach of the duty to assist cannot
amount to CUE.  Hayre, 188 F.3d at 1333.
We next held that the RO´s 1972 decision was not final for purposes
of appeal.  In so doing, we created a third exception to the rule of
finality in addition to the two statutory exceptions created by
Congress.  Specifically, we held that "where there is a breach of the
duty to assist in which the VA failed to obtain pertinent SMRs
specifically requested by the claimant and failed to provide the
claimant notice explaining the deficiency, the claim does not become
final for purposes of appeal.'  Id. at 1334.  In reaching this
holding, we stated that "[i]n cases of grave procedural error, . . .
the [Veterans Court] has consistently held that RO or Board decisions
are not final for purposes of direct appeal.'  Id. at 1333 (citing
Tablazon v. Brown, 8 Vet. App. 359, 361 (1995); Hauck v. Brown, 6
Vet. App. 518, 519 (1994); Kuo v. Derwinski, 2 Vet. App. 662, 666
(1992); Ashley v. Derwinski, 2 Vet. App. 307, 311 (1992)).  We
explained that "[a] breach of the duty to assist in which the VA
failed to obtain pertinent SMRs specifically requested by the
claimant and failed to provide the claimant with notice explaining
the deficiency is a procedural error of, at least, comparable gravity
[to the errors in the four cited Veterans Court cases] that vitiates
the finality of an RO decision for purposes of direct appeal.'  Id.
We elaborated on the importance of providing adequate notice to the
veteran:
Notice to the claimant explaining the failure to obtain pertinent and
specifically requested SMRs is . . . essential to insuring that the
agency of original jurisdiction ("AOJ') will adequately develop a
veteran´s claim before deciding it on the merits.  Furthermore, if
the claimant is to effectively appeal his or her case, the claimant
must be cognizant of all the evidence considered by the AOJ.  Where
so much of the evidence in VA adjudications is circumstantial at
best, notice explaining the failure to obtain pertinent and
specifically requested SMRs is critical to ensuring a proper award
for benefits and an effective right to judicial review.

Id. at 1334.  We thus concluded that if the Veterans Court "finds
that the RO breached the duty to assist [Hayre] in 1972, then the
1972 RO decision is not final for purposes of direct appeal.'#  Id.
at 1335.  We remanded the case to the Veterans Court for further
proceedings consistent with our opinion.
D.  Whether Hayre Should Be Overruled
         The government contends that we should overrule the holding
of Hayre that the finality of a VA decision is vitiated if the VA
commits a "grave procedural error' when adjudicating a claim.  The
government argues that the Hayre decision is not supported by statute
or legislative history.  For his part, Mr. Cook argues that the Hayre
decision is consistent with Congress´ intent to create a system where
the veteran is fully and sympathetically assisted in the development
of his claims before the VA makes a decision on the merits.  He
further contends that the holding in Hayre recognizes the need for a
mechanism to allow a veteran to collaterally challenge a VA decision
where the veteran later discovers that the VA breached its duty to
assist him in developing his claim.
We agree with the government that Hayre should be overruled.  The
statutory scheme provides only two exceptions to the rule of
finality.  At the same time, we see nothing in the legislative
history of the pertinent statutes -- 38 U.S.C § 5109A (CUE challenge
to an RO decision), 38 U.SC. § 7111 (CUE challenge to a Board
decision), 38 U.S.C. § 5108 (reopening of a claim based on new and
material evidence), and former 38 U.S.C. § 5107(a) (recognizing the
VA´s duty to assist the claimant in the development of his claims) --
that indicates that Congress intended to allow additional exceptions
to the finality of VA decisions based upon "grave procedural error.'
The purpose of the rule of finality is to preclude repetitive and
belated readjudication of veterans´ benefit claims.  Congress knew
how to create exceptions to the finality of VA decisions, and it
explicitly did so in two circumstances.  It enacted the statutes
codifying CUE challenges (sections 5109A and 7111) and the statute
allowing claims based on new and material evidence (section 5108).
Applying the familiar canon of expressio unius est exclusio alterius,
we conclude that Congress did not intend to allow exceptions to the
rule of finality in addition to the two that it expressly created.#
See, e.g., Leatherman v. Tarrant County Narcotics Intelligence &
Coordination Unit, 507 U.S. 163, 168 (1993) (applying the expressio
unius est exclusio alterius canon in concluding that because Federal
Rule of Civil Procedure 9(b) imposes a particularity requirement for
pleading two specific types of actions, such particularity is not
required for pleading other non-enumerated types of actions); BMW
Mfg. Corp. v. United States, 241 F.3d 1357, 1361 (Fed. Cir. 2001)
("It thus appears that Congress expressly provided for the exemption
of certain merchandise from the [Harbor Maintenance Tax].  Where it
did not so provide, it is reasonable to conclude that it did not so
intend.').
In support of its holding that "grave procedural error' vitiates the
finality of a VA decision, the Hayre panel relied on the legislative
history of the Veterans´ Benefits Amendments of 1989, Pub. L. No. 101-
237, § 115 (a)(1), 103 Stat. 2062, 2065 (1989), which added sections
3004(a)(1) and (2) to title 38 of the United States Code (currently
codified as amended at 38 U.S.C. § 5104(a) and (b)).  Hayre, 188 F.3d
at 1333-34.  The relevant provision, section 5104(b), provides that
when the VA denies a benefit, the claimant must be provided with a
statement of the reasons for the decision and a summary of the
evidence considered by the VA; it was effective with regard to VA
decisions issued after January 31, 1990.  Pub. L. No. 101-237, § 115
(b), 103 Stat. at 2066.  Section 5104(b) was intended to remedy a
lack of information in VA notices denying claims.  S. Rep. No. 101-
126, at 294-97 (1989), reprinted in 1989 U.S.C.C.A.N. 1470, 1700-03.
There is nothing in the legislative history relating to section 5104
(b), however, to indicate that Congress intended that the lack of
information in a pre-1990 VA decision could support a claim to reopen
a final decision.
As noted above, the Hayre panel also relied on four Veterans Court
decisions involving "grave procedural error' in support of its
conclusion that the VA´s single request for Hayre´s SMRs and its
failure to notify him of its inability to obtain the records vitiated
the finality of the 1972 RO decision.  Hayre, 188 F.3d at 1333.  We
do not think, however, that these cases provide support for the
creation of a third exception to the finality of an unappealed VA
decision.
An understanding of the process for obtaining disability benefits
will help put the four Veterans Court decisions upon which the Hayre
panel relied in proper perspective.  We outlined the process in
Maggitt v. West, 202 F.3d 1370, 1375 (Fed. Cir. 1998).  A veteran may
appeal an adverse RO decision to the Board.  Appellate review is
initiated by the veteran filing a notice of disagreement ("NOD') with
the VA.  See 38 U.S.C. § 7105(a).#  The NOD is a written
communication from the veteran expressing dissatisfaction or
disagreement with an adjudicative decision of the VA.  See 38 C.F.R.
§ 20.201; Collaro v. West, 136 F.3d 1304, 1308 (Fed. Cir. 1998)
(explaining that disagreement between the VA and the veteran over
legal entitlement to a particular benefit may form the basis of an
NOD).  Once the VA receives the veteran´s NOD, it must prepare
a "statement of the case.'  See 38 U.S.C. § 7105(d)(1).  The
statement of the case "frames the [VA´s] view of the case, and is
meant to assist the veteran in gaining every benefit that can be
supported in law.'  Maggitt, 202 F.3d at 1375.  The veteran is
required to file a "formal appeal' with the Board within sixty days
from the date the statement of the case is mailed.  See 38 U.S.C. §
7105(d)(3) ("The appeal should set out specific allegations of error
of fact or law, such allegations related to specific items in the
statement of the case.'); 38 C.F.R. § 20.202.  After the Board
renders a decision on the merits of the veteran´s request for
benefits, the veteran may appeal the Board´s decision to the Veterans
Court.  See 38 U.S.C. § 7252(a).  A veteran has 120 days from the
date of receipt of a Board decision to appeal to the Veterans Court.
See 38 U.S.C. § 7266.
In each of the cases cited by the Hayre panel, the Veterans Court
held that the time for appealing either an RO or a Board decision did
not run where the VA failed to provide the veteran with information
or material critical to the appellate process just described.  See
Tablazon v. Brown, 8 Vet. App. 359 (1995) (because the VA did not
furnish the veteran with a statement of the case, he was unable to
file a "formal appeal' with the Board and the RO rating decision did
not become final); Hauck v. Brown, 6 Vet. App. 518 (1994) (because
the veteran never received notification of claim denial in accordance
with 38 U.S.C. § 7105(b)(1), the one-year period in which to file an
NOD did not begin to run); Kuo v. Derwinski, 2 Vet. App. 662 (1992)
(the veteran was not furnished with a statement of the case;
therefore, the period in which to lodge a "formal appeal' with the
Board did not begin to run); Ashley v. Derwinski, 2 Vet. App. 307
(1992) (since the Board did not mail its decision in accordance with
38 U.S.C. § 7104(e) and 38 U.S.C. § 7266, the 120-day period within
which to appeal to the Veterans Court did not begin to run).
Tablazon, Hauck, Kuo, and Ashley involved straightforward application
of 38 U.S.C. §§ 7105(b)(1), 7105(d)(3), and 7266.  Section 7105(b)(1)
provides that the one-year period which the veteran has to file an
NOD does not begin to run until the date of the mailing of notice of
the claim denial to the veteran.  Section 7105(d)(3) makes the
furnishing of a statement of the case the event that triggers the
veteran´s obligation to file a "formal appeal' with the Board, while
pursuant to section 7266, the 120-day period for appealing to the
Veterans Court from a decision of the Board does not begin to run
until the Board´s decision is mailed to the veteran.  In contrast,
there is no statutory basis for the Hayre panel´s holding that a
breach of the duty to assist the veteran in developing facts
pertinent to his claim would vitiate the finality of an RO decision.
Furthermore, in Tablazon, Hauck, Kuo, and Ashley, the VA´s failure to
comply with statutory procedural requirements regarding notification
of benefit determinations had the effect of extinguishing the
claimant´s right to appeal an adverse decision.  In Hayre´s case,
however, regardless of any failure of the duty to assist in the
development of evidence, Hayre was afforded notice of the RO decision
denying his claim for service connection.  If he had filed an NOD
with respect to the 1972 administrative decision, the VA would have
been required to provide him with a statement of the case, which
would have notified him of the basis for the denial of his claim.
See Pub. L. No. 87-666, 76 Stat. 553 (1962) (adding statement-of-the-
case requirement at 38 U.S.C. § 4005, currently codified as amended
at 38 U.S.C. § 7105).  Thus, the VA´s failure to notify Hayre that it
had been unsuccessful in obtaining his SMRs did not preclude him from
challenging the administrative decision denying his claim and raising
the issue of the duty to assist after he was notified of the basis
for the decision.#
In summary, a breach of the duty to assist the veteran does not
vitiate the finality of an RO decision.  We therefore overrule Hayre
to the extent that it created an additional exception to the rule of
finality applicable to VA decisions by reason of "grave procedural
error.'  If additional exceptions to the rule of finality in 38
U.S.C. § 7105(c) are to be created, if is for Congress, not this
court, to provide them.  As we discuss next, however, to the extent
it stands for the proposition that a breach of the duty to assist
cannot constitute CUE, Hayre remains good law.#
II.
A.  Second En Banc Question
Whether, if Hayre is overruled in this respect, a failure of the
Secretary to assist the veteran under the law and regulations
applicable at the time (affirmatively demonstrated by the record
before the adjudicator in the particular case) can constitute clear
and unmistakable error ("CUE") under 38 U.S.C. § 5109A? See Roberson
v. Principi, 251 F.3d 1378 (Fed. Cir. 2001).

B.  The Concept of CUE
         CUE provides a means for collateral attack on a final
decision of an RO.  This concept, once solely grounded in regulation,
see 38 C.F.R. § 3.105, is now also governed by statute.  In 1997
Congress enacted Pub. L. No. 105-111, 111 Stat. 2271 (1997), which is
codified at 38 U.S.C. §§ 5109A and 7111.  Section 5109A covers claims
of clear and unmistakable error at the RO level, while section 7111
covers claims of clear and unmistakable error at the Board level.#
Although the two provisions are quite similar, only section 5109A,
pertaining to review of an RO decision, is relevant to our inquiry.
Section 5109A states in relevant part that:
(a) A decision by the Secretary under this chapter is subject to
revision on the grounds of clear and unmistakable error.  If evidence
establishes the error, the prior decision shall be reversed or
revised.
(b) For the purposes of authorizing benefits, a rating or other
adjudicative decision that constitutes a reversal or revision of a
prior decision on the grounds of clear and unmistakable error has the
same effect as if the decision had been made on the date of the prior
decision.
38 U.S.C. § 5109A.#
The regulation from which section 5109A was derived, and which
remains in place today, provides that final determinations of the RO
will be accepted as correct unless CUE is shown.  See 38 C.F.R. §
3.105(a).  Further, like the statute, the regulation provides for the
reversal of decisions found to contain CUE and the retroactive award
of benefits to the date of the original decision.  Id.  The pertinent
language in the regulation is as follows:
(a) Error.  Previous determinations which are final and binding,
including decisions of service connection, degree of disability, age,
marriage, relationship, service, dependency, line of duty, and other
issues, will be accepted as correct in the absence of clear and
unmistakable error.  Where evidence establishes such error, the prior
decision will be reversed or amended.  For the purpose of authorizing
benefits, the rating or other adjudicative decision which constitutes
a reversal of a prior decision on the grounds of clear and
unmistakable error has the same effect as if the corrected decision
had been made on the date of the reversed decision.
38 C.F.R. § 3.105(a).
          The Veterans Court has rendered decisions addressing the
meaning of "clear and unmistakable error," as used in the statute and
regulation.  In Russell v. Principi, the court addressed for the
first time the validity of 38 C.F.R. § 3.105.  3 Vet. App. 310
(1992)  (en banc).  In upholding the validity of the regulation, id.
at 314, the court set forth the parameters of a successful claim of
CUE:
By its express terms, 38 C.F.R. § 3.105(a) refers to "determinations
on which an action was predicated."  Therefore, it necessarily
follows that a "clear and unmistakable error" under § 3.105(a) must
be the sort of error which, had it not been made, would have
manifestly changed the outcome at the time it was made.
Id.;# see also Fugo v. Brown, 6 Vet. App. 40, 44 (1993) ("[E]ven
where the premise of error is accepted, if it is not absolutely clear
that a different result would have ensued, the error complained of
cannot be, ipso facto, clear and unmistakable error."). The
requirement that a clear and unmistakable error be one which would
have manifestly changed the outcome of the RO's determination was
adopted by this court in Bustos.  See 179 F.3d at 1381 ("[T]o prove
the existence of CUE as set forth in § 3.105(a), the claimant must
show that an outcome-determinative error occurred.").
In Russell, the Veterans Court also explained that in order for an
error to rise to the level of CUE, the error must have been made on
the record as it existed at the time the decision was made.  See
Russell, 3 Vet. App. at 313-314.  According to the court, "[a]
determination that there was a 'clear and unmistakable error' must be
based on the record and the law that existed at the time of the prior
AOJ . . . decision."  Id. (emphasis added).  As explained by the
Veterans Court in Caffrey v. Brown, 6 Vet. App. 377, 383 (1994), a
CUE claim is an attack on a prior judgment that asserts an incorrect
application of law or fact.  Necessarily, the asserted error must
have occurred on the record "as it existed at the time of the
disputed adjudication."  Id.  We extended this interpretation of the
regulation to section 5109A in Pierce v. Principi, 240 F.3d 1348,
1354 (2001) ("We . . . affirm the court's interpretation of the
term 'evidence' in § 5109A and [38 C.F.R. § 3.105(a)] as being
limited to evidence that was of record at the time the challenged RO
decision was made.").
C.  Whether a Breach of the Duty to Assist Can Constitute CUE
Mr. Cook urges us to overrule precedent holding that a breach of the
duty to assist cannot serve as a basis for CUE.  See Hayre, 188 F.3d
at 1333 (stating that "a breach [of the duty to assist] is not an
error of the sort that should be contemplated in the CUE analysis");
Caffrey, 6 Vet. App. at 384 (stating that "the VA's breach of the
duty to assist cannot form a basis for a claim of CUE because such a
breach creates only an incomplete rather than an incorrect record").
Mr. Cook advances three arguments in support of his position.  First,
he contends that requiring the CUE analysis to be conducted on the
record as it existed at the time of the original decision is flawed.
He argues that the proper interpretation of section 5109A allows for
all evidence of error to be considered in reviewing a CUE claim, not
just evidence that was a part of the original record.  Second, Mr.
Cook urges that the requirement that an error must be outcome
determinative in order to constitute CUE, stated in Bustos, see 179
F.3d at 1381, and relied on in part by Hayre in its rejection of
Hayre's CUE claim, see 188 F.3d at 1333, is also flawed.  Mr. Cook
urges that a lesser standard should be applied consistent with the
goal of "fundamental fairness."  He suggests that a lesser standard
for CUE was advanced by this court in Roberson v. Principi, 251 F.3d
1378 (Fed. Cir. 2001).  For its part, the government argues that the
interpretations of 38 C.F.R. § 3.105 and 38 U.S.C. § 5109A discussed
above are supported by the statute and legislative history and,
therefore, should be upheld.
We agree with the government that a breach of the duty to assist
cannot constitute CUE.  Both our precedent and that of the Veterans
Court establish two requirements for a CUE claim.  First, in order to
constitute CUE, the alleged error must have been outcome
determinative, see Bustos, 179 F.3d at 1381; second, the error must
have been based upon the evidence of record at the time of the
original decision, see Pierce, 240 F.3d at 1354.  As explained below,
in order to hold that a breach of the duty to assist can form the
basis for a CUE claim, we would have to jettison these requirements.
We do not think that such a change in the law is warranted.
Turning first to the requirement that the alleged error be outcome
determinative, we note that both the regulation and the statute
provide that once a prior decision is found to contain clear and
unmistakable error it is to be "reversed."  See 38 C.F.R.        §
3.105(a); 38 U.S.C. § 5109A.  The call for reversal on account of
clear and unmistakable error clearly suggests that the contemplated
error is outcome determinative.  See id.
The legislative history of section 5109A also supports the conclusion
that an alleged error must be outcome determinative in order to
constitute CUE.  We have held that Congress' intent in drafting
section 5109A was to codify and adopt the CUE doctrine as it had
developed under 38 C.F.R. § 3.105.  See Pierce, 240 F.3d at 1353
(noting that the legislative history of section 5109A "reveals
Congress' awareness and approval of the decision of the Veterans
Court in Russell,' and pointing out that the House and Senate
Reports, see H.R. Rep. No. 105-52, at 2-3, and S. Rep. No. 105-157,
at 3, "discuss Russell as setting forth the current state of the law
which was to be codified by § 5109A"); Donovan v. West, 158 F.3d
1377, 1382 (Fed. Cir. 1998) ("Pub. L. No. 105-111 . . . made no
change in the substantive standards in the regulation governing
modifications of a regional office decision because of 'clear and
unmistakable error.'"); Bustos, 179 F.3d at 1381 ("38 U.S.C. § 5109A
made no change to the substantive standards governing modifications
of RO decisions because of CUE . . .  This statutory provision merely
codified 38 C.F.R. § 3.105 and the Court of Appeals for Veterans
Claims´ long standing interpretation of CUE.").  As stated in the
legislative history, the purpose of the bill was to "effectively
codify [38 C.F.R. § 3.105], and extend the principle underlying it to
BVA decisions."  H.R. Rep. No. 105-52, at 2 (1997).  In addition,
Congress explicitly endorsed the Russell interpretation of CUE.  The
House Report to Pub. L. No. 105-111 cites liberally to the Russell
and Fugo opinions in its discussion of CUE, including the following
language from Fugo:
It must always be remembered that clear and unmistakable error is a
very specific and rare kind of "error".  It is the kind of error, of
fact or of law, that when called to the attention of later reviewers
compels the conclusion, to which reasonable minds could not differ,
that the result would have been manifestly different but for the
error.  Thus even where the premise of error is accepted, if it is
not absolutely clear that a different result would have ensued, the
error complained of cannot be, ipso facto, clear and unmistakable.
Russell v. Principi, 3 Vet. App. 310, 313 (1992) (en banc).

H.R. Rep. No. 105-52, at 3 (quoting Fugo, 6 Vet. App. at 44).  The
Senate Report cites to Russell in its explanation of the doctrine of
CUE: "CVA has ruled that 'clear and unmistakable error' is error that
is obvious and was outcome determinative with respect to the decision
under review."  S. Rep. No. 105-157, at 3.
We turn now to the second requirement of CUE.  As noted above, in
Russell, the Veterans Court held that a determination that there was
CUE must be based upon the record that existed at the time of the
original RO decision.  We have held that the legislative history of
section 5109A supports the requirement that the CUE analysis be
limited to the record before the prior adjudicator.  In Pierce, we
stated that "[a]lthough the language of § 5109A does not expressly
limit the evidence that can be considered in a CUE challenge to
evidence that was of record at the time the challenged decision was
made, the legislative history of the statute, the purpose of the
statute, and the overall statutory scheme for reviewing veterans'
benefits decisions all indicate that Congress intended the evidence
to be so limited."  240 F.3d at 1353.  In addition, we pointed out
that "[a]lthough the House and Senate reports do not expressly
discuss Russell´s holding with respect to the evidence that can be
considered when evaluating a CUE claim, they do discuss Russell as
setting forth the current state of the law that was to be codified by
§ 5109A.'  Id.  Significantly, the House Report explains, "[t]his
bill addresses errors similar to the kinds which are grounds for
reopening Social Security claims.  Under the Social Security system,
a claim may be reopened at any time to correct an error which appears
on the face of the evidence used when making the prior decision.'
H.R. Rep. No. 105-52, at 3 (emphasis added).
We conclude that decisions of this court and the Veterans Court
concluding that a clear and unmistakable error at the RO level must
be outcome determinative and must be apparent from the evidence of
record at the time of the original decision are supported by the
language of 38 U.S.C. § 5109A and its legislative history.  We
therefore reject Mr. Cook´s request that we overturn existing law to
that effect.#
The requirements that a clear and unmistakable error be outcome
determinative and be based on the record that existed at the time of
the original decision make it impossible for a breach of the duty to
assist to form the basis for a CUE claim.  First, a breach of the
duty to assist cannot constitute an outcome determinative error.
Without the benefit of additional evidence that might have been in
the record but for the breach, we may only conclude that, as a result
of the breach, the record was incomplete.  This cannot be an "outcome-
determinative" error.  In Caffrey, the Veterans Court explained that
[w]hile it is true that an incomplete record may ultimately lead to
an incorrect determination, it cannot be said that an incomplete
record is also an incorrect record.  If the facts contained in the
record are correct, it is not erroneous, although not embodying all
of the relevant facts.  Rather, an incomplete record is just that—
incomplete . . . .  Thus, an incomplete record, factually correct in
all other respects, is not clearly and unmistakably erroneous.
Caffrey, 6 Vet. App. at 383.  Second, a breach of the duty to assist
necessarily implicates evidence that was not before the RO at the
time of the original decision.  In accordance with the duty to
assist, the VA is required to help a veteran in obtaining evidence in
support of his or her claim.  See 38 U.S.C. § 5103A.  If the VA
breaches this duty, the result is that the RO considers the veteran´s
claim on a record that is incomplete because it does not include all
the pertinent evidence.  Incomplete or not, however, as explained
above, the only record that may be reviewed in the CUE analysis is
the record that was before the RO at the time of the original
decision.  Evidence that should have been part of the record, but was
not (because of a breach of the duty to assist), may not be
considered.  In sum, a breach of the duty to assist cannot constitute
CUE.
         Finally, we do not agree with Mr. Cook that Roberson v.
Principi supports the proposition that a breach of the duty to assist
can form the basis for a CUE claim.  In Roberson, a panel of this
court reviewed the Veterans Court´s rejection of a CUE claim that was
based on an alleged breach of the duty to assist relating to a 1984
rating (percentage of disability) decision.  We explained that,  "[a]
s we held in Hayre v. West, 188 F.3d 1327, 1332-33 (Fed. Cir. 1999),
breach of the duty to assist cannot form the basis for a CUE claim."
Roberson, 251 F.3d at 1384.
Having rejected the argument that a breach of the duty to assist
could serve as the basis for a CUE claim, we went on to "determine
the standard that applies when the VA is considering a CUE claim.'
Id.  We concluded that, in adjudicating a CUE claim, the VA is
required to a follow the approach outlined in Hodge v. West, 155 F.3d
1356 (Fed. Cir. 1998), for the situation in which a veteran seeks to
reopen a disallowed claim based upon new and material evidence under
38 U.S.C. § 5108.  Roberson, 251 F.3d at 1384.  In Hodge, we stated
that the VA is "to fully and sympathetically develop the veteran´s
claim to its optimum before deciding it on the merits.'  155 F.3d at
1362.  In Roberson, a critical issue was whether, in addressing
Roberson´s claim that there was CUE in the 1984 rating decision, the
VA and the Veterans Court had erred by failing to recognize that in
his original claim, Roberson had sought total disability based upon
individual unemployability ("TDIU').  We concluded that, in line with
the Hodge rubric, once a veteran submits evidence of a medical
disability and makes a claim for the highest rating possible and also
submits evidence of unemployability, the VA must consider TDIU.  We
stated that, in order to develop a claim "to its optimum,' as
required by Hodge, the VA "must determine all potential claims raised
by the evidence, applying all relevant laws and regulations,
regardless of whether the claim is specifically labeled as a claim
for TDIU.'  Roberson, 251 F.3d at 1384.  We therefore reversed the
holding of the Veterans Court that Roberson had failed to make a
claim for TDIU before the RO in 1984.  Id.  We remanded the case to
the court for consideration of Roberson´s appeal of the denial of his
CUE claim in light of our decision.  Roberson does not support Mr.
Cook´s contention that a breach of the duty to assist may constitute
CUE.
III.
         Having held that there can be no judicially crafted exception
to the rule of finality and that a breach of the duty to assist
cannot constitute CUE, we turn now to the facts of this case.
         Mr. Cook served in the United States Army from August of 1942
to December of 1945. His service medical records contain a March 1945
diagnosis of "psychoneurosis, anxiety type."  When he was recalled
for service in 1950, an examination found that he was "not qualified
for active duty due to his ulcer."  In 1952, Mr. Cook submitted a
benefits claim to the RO for service connection for "Stomach Trouble-
Nervous Stomach."  A physical examination revealed a duodenal ulcer.
In a neuropsychiatric examination the attending physician noted:
The present day idea is, generally, that a peptic ulcer may be a
visceral expression of long continued anxiety. In this case, a
diagnosis of duodenal ulcer has been established. A dual diagnosis
should not be made, but it should be clear that the diagnosis of
duodenal ulcer includes a psychic or emotional component.
In June of 1952, the RO denied service connection for "stomach
trouble and nervousness."  It stated that Mr. Cook's ulcer was not
incurred or aggravated in service and that the most recent
examination had not revealed nervousness. The RO also stated that
the "[neuropsychiatric] examination revealed no evidence of a
psychiatric disability."
Mr. Cook did not appeal the RO decision to the Board; it therefore
became final.   See 38 U.S.C. § 709 (1952).#  In July of 1989, Mr.
Cook sought to reopen his claim. The Board did so and denied service
connection.  The Veterans Court, however, reversed and directed the
Board to determine Mr. Cook's rating for both his nervous disorder
and his ulcer.  Cook v. Brown, 4 Vet. App. 231, 238 (1993).
Thereafter, the RO awarded Mr. Cook a thirty percent rating for his
anxiety disorder and a zero percent rating for his duodenal ulcer.
The RO made the awards effective as of July 1989 (when Mr. Cook had
sought reopening of his claims).
Mr. Cook appealed the RO's decision, contending that the effective
date of the award should have been the April 1952 date of the
original filing of his claim and that the RO's 1952 decision
contained CUE and therefore was non-final.#  The Board rejected Mr.
Cook's contention that the 1952 regional office decision constituted
CUE, and Mr. Cook appealed to the Veterans Court.  While the appeal
was pending at the Veterans Court, Hayre was decided.  The Veterans
Court ordered briefing by the parties as to the application of Hayre
to Mr. Cook's case.
Subsequently, in a single-judge unpublished decision, the Veterans
Court affirmed the decision of the Board. The court first held that
the alleged deficiencies in the RO's 1952 decision did not constitute
CUE.  The court then rejected Mr. Cook's argument that the RO's
failure to give him an adequate medical examination in 1952 violated
its duty to assist him, so as to render the 1952 decision not final
and make the date of that decision the effective date of his
benefits.  As to whether Mr. Cook's claim fit within the exception to
the rule of finality created by Hayre, the court concluded that even
if Mr. Cook had established a breach of the duty to assist, the
failure to provide him with an appropriate medical examination did
not rise to the level of the "grave procedural error" found in Hayre.
We affirm the decision of the Veterans Court.  In Part I of this
opinion, we have overruled Hayre insofar as it holds that the
existence of "grave procedural error" renders a decision of the VA
non-final.  In Part II, we have held that a failure of the VA to
assist the veteran to the extent required by applicable law and
regulations cannot constitute CUE under 38 U.S.C. § 5109A.  In the
face of these rulings, Mr. Cook's claim for an earlier effective date
for his service-connected disability benefits must fail, because the
rulings leave Mr. Cook without any ground upon which to claim an
earlier effective date.
CONCLUSION
         For the foregoing reasons, the decision of the Veterans Court
is affirmed.
COSTS
         No costs.
AFFIRMED
United States Court of Appeals for the Federal Circuit

00-7171

JAMES R. COOK,


Claimant-Appellant,

v.

ANTHONY J. PRINCIPI, Secretary of Veterans Affairs,


Respondent-Appellee.

DYK, Circuit Judge, with whom LINN, Circuit Judge, joins, concurring.

I fully join the majority´s opinion, but wish to make clear that we
are not deciding today that a past breach of the duty to assist is
without consequence.  In particular we are not deciding the effect of
a past breach of the duty to assist on a new and material evidence
claim.
Unlike a successful clear and unmistakable error (CUE) claim, which
is given the effective date of an earlier reversed or revised
decision under 38 U.S.C. § 5109A, a successful new and material
evidence claim typically is not given retroactive effect.  By statute
and regulation, a reopened claim generally results in the veteran´s
receiving payments only from the date that the application was
received.  38 U.S.C. § 5110(a) ("Unless specifically provided
otherwise in this chapter, the effective date of an award based
on . . . a claim reopened after final adjudication . . . shall not be
earlier than the date of receipt of application therefor.'); 38
C.F.R. § 3.400 ("[The effective date] will be the date of receipt of
the claim or the date entitlement arose, whichever is the later.').
Where there has been a material breach of the statutory duty to
assist at some time in the past, and that breach by the government
prevented the veteran from discovering the new and material evidence
at an earlier date, a question arises as to whether retroactive
relief is available in a new and material evidence proceeding.  An
argument for retroactivity might have particular force where the
violation of the duty to assist was unknown to the veteran at the
time of the original application, for example, where the Veterans
Administration had pertinent undisclosed information in its files and
the veteran was unaware that a proper search had not been conducted.
Indeed, the government in this case appears to concede that in such
circumstances retroactive relief would be available in a new and
material evidence proceeding by virtue of 38 C.F.R. § 3.400(q)(2).#
I express no opinion on these questions, and write merely to
emphasize that we are not deciding them today.
United States Court of Appeals for the Federal Circuit


00-7171

JAMES R. COOK,

Claimant-Appellant,

v.

ANTHONY J. PRINCIPI,
Secretary of Veterans Affairs,

Respondent-Appellee,

Dissenting opinion filed by Circuit Judge GAJARSA, in which Chief
Judge MAYER and Circuit Judge NEWMAN join.

I respectfully dissent.  In my view, a breach of the duty to assist a
veteran by failing to provide a proper medical examination vitiates
the prior decision of the regional office ("RO') for purposes of
direct appeal.  The duty to assist is an integral part of the pro-
claimant, non-adversarial claims adjudication process of the
Department of Veterans Affairs ("VA').  Congress expressly stated
that the VA must "fully and sympathetically develop the veteran´s
claim to its optimum before deciding it on the merits.'  H.R. Rep.
No. 100-963 at 13, reprinted in 1988 U.S.C.C.A.N. 5782, 5795; see
also 38 U.S.C. § 5107(a) (1994) ("The Secretary shall assist such a
claimant in developing the facts pertinent to the claim.'), amended
by 38 U.S.C. § 5103A (2000) ("Duty to assist claimants'); 38 U.S.C. §
5103 (2000) ("Notice to claimants of required information and
evidence').  Breaches of this critical duty compel us to toll the
finality of VA decisions, as we held in Hayre v. West, 188 F.3d 1327,
1334 (Fed. Cir. 1999), which the majority today overrules, or to
declare such a breach a clear and unmistakable error.  This would
ensure that the VA´s duty to assist claimants does not become a
hollow slogan.
In the veterans´ uniquely pro-claimant system of awarding benefits,
systemic justice and fundamental considerations of procedural
fairness are critical, Hayre, 188 F.3d at 1334 (citing S. Rep. No.
101-126 at 294, reprinted in 1989 U.S.C.C.A.N. 1469, 1703), which I
develop below.  This is because, as Congress recognized, in most
cases before the RO the veteran is not represented by counsel or a
veterans service organization and representation at the Board of
Veterans´ Appeals ("Board') is discouraged.  As a result, a veteran´s
ability to ensure that a fair and procedurally correct decision has
been reached on his or her claim is limited; so too is his or her
ability to make a well-informed choice whether to accept or appeal a
decision.  See S. Rep. No. 101-126 at 294, reprinted in 1989
U.S.C.C.A.N. 1469, 1703.  Thus, VA decisions on records that are less
than thoroughly and adequately prepared may go unchallenged and the
veteran will lose years of earned benefits that, but for the VA´s
breach of its duty to assist, he or she would have collected.  In an
adversarial system, it may be appropriate to dismiss a claimant who
does not immediately challenge a decision.  But in a paternalistic
system, where a claimant is led to believe that his or her claim is
being fairly and accurately decided to afford him or her the fullest
compensation he or she is due, it is readily apparent why a decision
may not be promptly challenged.  The VA is charged with the
development of the merits of a claim and acts as final adjudicator as
well; there must be a remedy when it fails in its responsibility.  To
allow the organization to default in its development of a claim and
then to adjudicate it without the possibility of challenge is an
injustice.
The question raised here is whether a claimant should be denied an
opportunity "to collaterally challenge a VA decision where the
veteran later discovers that the VA breached its duty to assist.'
Ante, at 7.  The majority says no such opportunity exists, for two
reasons: first, "[p]rinciples of finality and res judicata apply to
agency decisions that have not been appealed and . . . . [u]nless
otherwise provided by law, the cases are closed and the matter is
thus ended,' ante, at 3-4 (citing Astoria Fed. Savs. & Loan Ass´n v.
Solimino, 501 U.S. at 107-08; Routen v. West, 142 F.3d 1434, 1437
(Fed. Cir. 1998)); and second, "[t]he statutory scheme provides only
two exceptions to the rule of finality [which do not apply to Cook
and Hayre],' ante, at 4.
I recognize the importance of the rule of finality; however,
enforcement of that policy must be circumscribed by constitutional
due process and tempered by fairness and equity.#  "Although
administrative estoppel is favored as a matter of general policy, its
suitability may vary according to the specific context of the rights
at stake, the power of the agency, and the relative adequacy of
agency procedures.'  Astoria, 501 U.S. at 109-10.  Thus, where
breaches of the statutory duty to assist result in denials of
benefits, draconian application of the rule of finality is tantamount
to a denial of due process.  Because such breaches impose an
unconstitutional restraint on an individual´s property right, the
rule of finality is inappropriate here.
I shall first explain why claimants for, as well as recipients of,
veterans´ benefits have property rights, then identify my
disagreements with the majority´s analysis, and finally explain why I
believe a breach of the statutory duty to assist veterans imposes an
unconstitutional restraint on individual property.
A.
According to Board of Regents v. Roth, 408 U.S. 564 (1972), to have a
property interest in a government benefit, "a person clearly must
have more than an abstract need or desire for [the benefit].  He [or
she] must have more than a unilateral expectation of it.  He [or she]
must, instead, have a legitimate claim of entitlement to it.'  Id. at
577.  Entitlements derive from "an independent source such as state
law,' that is, statutes or regulations "that secure certain benefits
and that support claims of entitlements to those benefits.'  Id.  It
is well established that recipients of statutory entitlements such as
Social Security disability benefits have a property interest
protected by the Due Process Clause of the Fifth Amendment.  See
Mathews v. Eldridge, 424 U.S. 319, 332 (1976) ("[T]he interest of an
individual in continued receipt of [Social Security disability]
benefits is a statutorily created property interest protected by the
Fifth Amendment.' (citing Richardson v. Belcher, 404 U.S. 78, 80-81
(1971); Richardson v. Perales, 402 U.S. 389, 401-402 (1971); Flemming
v. Nestor, 363 U.S. 603, 611 (1960); cf. Arnett v. Kennedy, 416 U.S.
134, 166 (1974) (Powell, J., concurring in part); Roth, 408 U.S. at
576-78; Bell v. Burson, 402 U.S. 535, 539 (1971); Goldberg v. Kelly,
397 U.S. 254, 261-62 (1970)).  For the same reasons property
interests were found in these cases, a veteran´s interest in the
continued receipt of service-connected death and disability benefits
is also a property interest.  The statutory entitlement to such
benefits is set forth in 38 U.S.C. §§ 1110, 1121, 1131, and 1141, and
these sections provide an absolute right to benefits to qualified
individuals.  38 U.S.C. § 1110 (2000) (providing for wartime
disability compensation); 38 U.S.C. § 1121 (2000) (providing for
wartime death compensation for designated heirs and dependents); 38
U.S.C. § 1131 (2000) (providing for peacetime disability
compensation); 38 U.S.C. § 1141 (2000) (providing for peacetime death
compensation for designated heirs and dependents).
Applicants for service-connected death and disability benefits, as
distinct from recipients threatened with total or partial
termination, also have a property interest in the receipt of those
benefits.  In Walters v. Nat´l Assoc. of Radiation Survivors, the
Supreme Court considered whether "a statutory fee limitation, as it
bears on the [veterans´ benefits system] in operation, deprives a
rejected claimant or recipient of `life, liberty, or property,
without due process of law´ by depriving him of representation.'  473
U.S. 305, 320 (1985) (quoting U.S. Const. amend. V).  Although the
Supreme Court did not rule on the extent to which applicants for
government benefits have property rights in their statutory
entitlements, the Court analyzed the rights to veterans´ benefits of
the applicants together with the recipients as a statutorily created
property interest protected by the Due Process Clause.  Id.  The
First, Third, Seventh, and Ninth Circuits have held that the Due
Process Clauses apply to applicants seeking property interests.  See,
e.g., Ressler v. Pierce, 692 F.2d 1212, 1214-16 (9th Cir. 1982)
(applicant for federal rent subsidies); Kelly v. R.R. Retirement Bd.,
625 F.2d 486, 489-90 (3d Cir. 1980) (applicant for disabled child´s
annuity); Griffeth v. Detrich, 603 F.2d 118, 120-22 (9th Cir. 1979)
(applicants for general relief program); Wright v. Califano, 587 F.2d
345, 354 (7th Cir. 1978) (applicant for social security benefits);
Raper v. Lucey, 488 F.2d 748, 752 (1st Cir. 1973) (applicant for
driver´s license).  But see Eidson v. Pierce, 745 F.2d 453, 460 (7th
Cir. 1984) (ruling that holders of federal housing subsidies had no
property interest because the owners of those units had complete
discretion to turn away individual subsidy-holders for any reason or
for no reason at all).  These courts have reasoned that claimants,
just like recipients threatened with termination for alleged
ineligibility, have a property interest because of their statutory
entitlement to benefits if they meet the substantive requirements.
For veterans basic entitlement to disability compensation derives
from two statutes, both found in title 38, sections 1110 and 1131—the
former relating to wartime disability compensation and the latter
relating to peacetime disability compensation.  Both statutes provide
for compensation with the following words: "For disability resulting
from personal injury suffered or disease contracted in the line of
duty, or for aggravation of a preexisting injury suffered or disease
contracted . . . the United States will pay to any veteran thus
disabled . . . compensation . . . .'  38 U.S.C. §§ 1110, 1131
(2000).  Here, Cook and Hayre, who meet the threshold eligibility
requirements of 38 U.S.C. § 1110, are entitled to procedural due
process by virtue of the statutory mandate of the program and the
VA´s policy and practice in the administration of the veterans´
benefits program.  It is common ground that a statute declaring that
veterans meeting certain eligibility criteria will receive a service-
connected benefit secures the benefit for those veterans, just as a
blanket of common law rules secures more traditional forms of private
property for individuals.  See Roth, 408 U.S. at 577.  As discussed
below, no form of "new property' is more clearly earned by the
applicant, who received this claim of entitlement to benefits in
exchange for service given to his or her country.
Correlatively, the fact that only those who meet specified criteria
are entitled to the benefit does not mean that due process is
inapplicable until eligibility has been conclusively proven, because
this approach would deny the very procedures needed to demonstrate
that a property interest exists in the first place.  See id. ("[R]
ecipients in Goldberg v. Kelly . . . had not yet shown that they
were, in fact, within the statutory terms of eligibility.  But we
held that they had a right to a hearing at which they might attempt
to do so.').  Thus, while at the application stage of the proceedings
neither Cook nor Hayre had been administratively adjudged entitled to
receive benefits under the regulatory scheme, an applicant for
veterans´ benefits nonetheless possesses a property interest of
sufficient magnitude to invoke the protection of the Fifth
Amendment´s Due Process Clause.  The property interest is not that
benefits have been previously received, but the existence of
statutory provisions creating the right to a remedy and defining the
terms under which it can be obtained.  By establishing substantive
standards for qualification, the regulations governing the veterans´
benefits system create a legitimate claim the applications of Cook
and Hayre will not be denied unless the VA factually determines that
they do not suffer from a disability originating from service.
Accordingly, their statutory entitlement to benefits constitutes a
protected property right.
B.
By focusing primarily on the "red herring' finality issue, the
majority avoids application of the interest-balancing test normally
applied in due process cases.  I understand the majority to imply two
basic arguments in dismissing the arguments of Cook and Hayre.  The
first is to suggest that no remedy is required when breaches of the
statutory duty to assist—such as the omission of a complete and
thorough medical examination for Cook—are involved.  The second is
that the affirmatively misleading notice sent to Hayre sufficed to
adequately protect veterans´ interests in any case, because veterans
can be presumed to know the law regarding the veterans´ benefits
system and their right to appeal.
In my view, the majority´s fixation on finality creates a conceptual
confusion in identifying the constitutional deprivation present in
these cases.  In traditional cases arising under the Due Process
Clause of the Fifth Amendment, governmental confiscation of property
is not difficult to recognize: An individual possesses property and
the Government´s action deprives the individual of it.  Where "new
property' interests—that is, statutory entitlements—are involved,
however, claimants have an interest only in their benefit level as
correctly determined under the law, rather than in any particular
preordained amount.  See Charles A. Reich, The New Property, 73 Yale
L.J. 733 (1964).  Thus, while any deprivation of property by the
Government implicates the Due Process Clause, only a breach resulting
in denial or inadequate allocation of benefits effects a deprivation
subject to constitutional constraint.  It is the breach, and not the
reduction per se, that causes the deprivation.
Keeping this point in mind, it is readily apparent that the Supreme
Court´s application of the Due Process Clause to governmental
administrative action has not only encompassed, but indeed has been
premised upon, the need for protection of individual property
interests against even inadvertent breaches by the Government.  See,
e.g., Memphis Light, Gas & Water Div. v. Craft, 436 U.S. 1 (1978);
Mathews, 424 U.S. 319; Goldberg, 397 U.S. 254.  Properly applied,
regulations that govern administrative decisions in such cases do not
deprive recipients of property, because a beneficiary whose
entitlement should be reduced or terminated under relevant statutes
can claim no valid interest in continuation.  Administrative
decisions that affect statutory entitlements may often be correct.
But when the breach—that is, the deprivation of property—occurred
because the administrative agent, for reasons beyond the claimant´s
control, failed to comply with a statutorily mandated duty,
constitutional procedures are interposed to prevent such breaches of
regulation insofar as feasible.  See Logan v. Zimmerman Brush Co.,
455 U.S. 422, 436 (1982) (holding that the post-deprivation remedy
(the possibility of a negligence suit against the Commission) was
insufficient to comply with due process because petitioner was
challenging not the Commission´s error, but the "established state
procedure' that destroys his entitlement without according him proper
procedural safeguards).
In the veterans´ uniquely claimant friendly system of awarding
compensation, breaches of the duty to assist are at the heart of due
process analysis.  If the Constitution provides no protection against
the occurrence of such breaches, then the paternalistic interest in
protecting the veteran is an illusory and meaningless assurance.  The
fact that breaches inevitably occur in the administration of any
bureaucracy requires the conclusion that when the Secretary
administers a property entitlement program, he or she has a
constitutional obligation to provide due process before implementing
adverse changes in the entitlement level.  Otherwise, erroneous
reductions or denials of benefits—that is, deprivations of individual
property—are effected without due process of law.
C.
Because the breaches in these cases cannot merely be overlooked, I
turn to the central constitutional inquiry: what process was due in
light of "the practicalities and peculiarities of the case'?  Mullane
v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950).  In
determining what process is due, the court must employ a flexible
balancing test that takes into account the particular facts and
circumstances, as the need for procedural safeguards varies with the
situation: "due process unlike some legal rules, is not a technical
conception with a fixed content unrelated to time, place and
circumstances.'  Cafeteria Workers v. McElroy, 367 U.S. 886, 895
(1961).  "Due process is flexible and calls for such procedural
protections as the particular situation demands.'  Morrissey v.
Brewer, 408 U.S. 471, 481 (1972).
When reviewing alleged procedural due process violations, the Supreme
Court has distinguished between (1) claims based on established state
procedures and (2) claims based on random, unauthorized acts by state
employees.  See Daniels v. Williams, 474 U.S. 327, 331 (1986); Logan,
455 U.S. at 435-36.  In the latter case, the Due Process Clause is
not violated when a state employee intentionally deprives an
individual of property or liberty, so long as the State provides a
meaningful post-deprivation remedy.  Hudson v. Palmer, 468 U.S. 517,
531-33 (1984).  However, when the deprivation occurs in the more
structured environment of established procedures—for example, because
an administrative official, for reasons beyond the claimant´s
control, failed to comply with a statutorily mandated duty—courts
must follow the now familiar interest-balancing analysis set forth in
Mathews, 424 U.S. at 334-35.  Identification of the specific dictates
of due process generally requires consideration of three distinct
factors: "First, the private interest that will be affected by the
official action; second, the risk of an erroneous deprivation of such
interest through the procedures used, and the probable value, if any,
of additional or substitute procedural safeguards; and finally, the
Government´s interest, including the function involved and the fiscal
and administrative burdens that the additional or substitute
requirement would entail.'  Id.  These interests are relevant to
determining the "content of the notice' as well as its timing and
other procedural claims.  Goss v. Lopez, 419 U.S. 565, 579 (1975).
1. Importance of the Private Interest
The importance of the correct level of veterans´ benefits to eligible
veterans cannot be overstated.  No form of new property is more
clearly earned by an applicant or recipient, who received this claim
of entitlement to benefits in exchange for service given to his or
her country: award through the VA claims procedure is the sole
process available to the veteran.  He or she cannot sue for
disabilities stemming from military service under the Federal Tort
Claims Act.  See Feres v. United States, 340 U.S. 135 (1950).
Veterans injured in military service generally lose all or much of
their ability to earn a livelihood.  Yet under the majority opinion,
a man or a woman, after time in service, has no rights that may not
be frustrated to serve the shibboleth of finality.  The majority
makes no effort to balance the interests at stake.  In this clash
between individual rights and the public policy of finality, the
latter, they say, is automatically held to be superior and trumps the
former.
2. Risk of Error and Value of Additional Procedures
"[A] primary function of legal process is to minimize the risk of
erroneous decisions.'  Mackey v. Montrym, 443 U.S. 1, 13 (1979); see
also Fuentes v. Shevin, 407 U.S. 67, 80-81 (1972).  Consequently, a
breach that may cause deprivation of property must be "preceded by
notice.'  Mullane, 339 U.S. at 313.  "An elementary and fundamental
requirement of due process in any proceeding which is to be accorded
finality is notice reasonably calculated, under all the
circumstances, to apprise interested parties of the pendency of the
action and afford them an opportunity to present their objections.
The notice must be of such nature as reasonably to convey the
required information . . . .'  Id. at 314 (citations omitted); see
also Memphis Light, 436 U.S. at 14-15 n15 (ruling that "skeletal'
notice was constitutionally insufficient because utility customers
are "of various levels of education, experience and resources'
and "the uninterrupted continuity of [utility service] is essential
to health and safety').
The likelihood of error due to ineffective decision notices by the VA
is substantial.  The General Accounting Office ("GAO') found that:
[In] over 60 percent (539) of the 898 compensation notices reviewed,
insufficient information was found to have been provided on the
reason or reasons for VA´s decision.  GAO found that "Denial notices
for compensation claims were especially poor.  They often stated only
that the claims were denied because service connection was not found.'

S. Rep. No. 101-126, at 294, reprinted in 1989 U.S.C.C.A.N. 1469,
1701-02.  The GAO also noted that the evidence was incomplete in
approximately 10 percent of claims and that information about how a
veteran could appeal a decision was not included in the notices in 2
to 3 percent of claims.  Id.
The importance of this information can be seen in the circumstances
of Cook and Hayre where the vital failure of effective notice was
misleading enough to jeopardize their rights to appeal.
Although "Hayre was afforded notice of the RO decision,' ante, at 12,
the notice misleadingly assured Hayre that "we do not find in your
medical records or elsewhere any evidence of the existence of a
nervous condition' without obtaining the service medical records
Hayre had specifically requested, ante, at 4.  Notice that
affirmatively misleads in this fashion clearly violates the
constitutional guarantee of due process.  For Cook, the notice
denying service connection for "stomach trouble and nervousness'
stated that the "[neuropsychiatric] examination revealed no evidence
of a psychiatric disability,' even though the VA compensation
examination in 1952 noted:
The present day idea is, generally, that a peptic ulcer may be a
visceral expression of long continued anxiety.  In this case, a
diagnosis of duodenal ulcer has been established.  A dual diagnosis
should not be made, but it should be clear that the diagnosis of
duodenal ulcer inculdes [sic] a psychic or emotional component.

Ante, at 23.  The denial notice given to Cook did not clearly
indicate that the neuropsychiatric report had evidence of a "psychic
or emotional component.'  Although the record does not state whether
Cook was aware of the contents of the report before the appeals
period had run, it was important for Cook, who was relying on the pro-
claimant benefits system, to be notified of what evidence was
considered by the VA and how the evidence was used in reaching a
decision.  Without such knowledge, Cook was not in a position to
evaluate its accuracy or propriety and to determine whether or not to
contest it.  The obvious value of notice of those simple factual
determinations is that they were the only data that would have
enabled Cook to "choose for himself whether to . . . acquiesce or
contest' by filing a timely appeal.  Mullane, 339 U.S. at 314.  As
the Supreme Court made clear in Goldberg, 397 U.S. at 267, in
statutory entitlement cases the Due Process Clause normally
requires "timely and adequate notice detailing the reasons' for
proposed administrative action.  Such process is constitutionally
required whenever the action may be "challenged . . . as resting on
incorrect or misleading factual premises or on misapplication of
rules or policies to the facts of particular cases.'  Id. at 268.
The forms of notice delivered to Cook and Hayre are sufficiently
misleading that they introduce a high risk of error into the
decisionmaking process, because veterans with valid entitlements
might wrongly abandon their claims after an initial denial and not
reassert them until their right to appeal is barred by the rule of
finality.
This is especially true in the circumstances of Cook and Hayre, who
relied on the non-adversarial and pro-claimant character of the
veterans´ benefits system and pursued their statutory entitlements
without the assistance of legal counsel.  See 38 U.S.C. § 5904(c)(1)
(prohibiting fee agreements with an attorney until the Board issues a
final decision); Jaquay v. Principi, 304 F.3d 1276, 1282 (Fed. Cir.
2002) (en banc) ("[T]he law prohibiting lawyers from charging a fee
has the practical effect of limiting the ability of veterans to
retain a lawyer at the early stages of the claim process.'); Hayre,
188 F.3d at 1334 (noting that "representation by attorneys is
discouraged and infrequent' (quoting S. Rep. No. 101-126, 16 294,
reprinted in 1989 U.S.C.C.A.N. 1469, 1700-03)).  While all citizens
are presumed to know the law, that legal fiction is not identical to
requiring that veteran claimants must be personally conversant and
proficient with the arcane intricacies of an entitlement program that
requires voluminous statutes, regulations, manuals, and circulars to
administer.
In light of the complexity of the substance and procedures involved
in these proceedings, as well as the importance of the interest at
stake, I believe that Due Process includes minimal protections for
the property interests of unrepresented veterans.  When a veteran is
not represented by counsel, the Secretary has a heightened duty to
assist veterans by conscientiously developing and obtaining all the
relevant evidence.  The Secretary must be especially diligent in
ensuring that favorable as well as unfavorable facts and
circumstances are elicited.  In addition, when a veteran´s service
medical records are not obtained, as in Hayre, the VA´s duty to
assist is essential, because "the veteran´s possession of service
medical records is a decidedly abnormal situation.  The veteran
cannot reasonably be expected to have such records.'  Department of
Veterans Benefits, Veterans Administration, DVB Circular 21-83-5,
Procedures for Claims Involving Delayed Receipt of Service Medical
Records (Mar. 18, 1983); see also VA Veterans Benefits Administration
Letter 20-99-60 at 1 (Aug. 30, 1999) ("Service medical records and VA
medical center records are to be requested in all cases.  These are
records considered to be in VA custody.').
Moreover, where so much of the evidence in VA adjudications is
circumstantial at best, the results of a medical examination for a
veteran such as Cook, are often the determinative factor in the claim
adjudication process.  An insufficient examination also breaches the
VA´s duty to assist the veteran in fully developing his or her claim
because such evidence is needed to determine whether the veteran is
eligible for benefits and the amount of any such benefits.
Therefore, administering an inadequate medical exam has as important
an effect on the proper resolution of a veteran´s claim as a failure
to inform the veteran that the VA was unable to obtain medical
records.  A veteran must rely upon the VA for a thorough medical
examination just as he or she must rely upon the department to locate
service medical records.  Just as a veteran must be able to assume,
absent notice to the contrary, that the VA located and based its
claim determination on the requested, complete, and adequate medical
records, he or she should be able to assume that the VA performed a
complete and thorough medical examination.  Because the breach of the
duty to assist in this uniquely pro-claimant system jeopardized in a
fundamentally unfair manner the right to appeal, the claims of Cook
and Hayre should not become final for purposes of appeal.
3. Governmental Interest
In contrast, requiring notices accurately to state what evidence was
considered by the VA and how the evidence was used in reaching a
decision does not impose a significant financial or administrative
burden on the Secretary.  In determining the costs to support the
veterans´ benefits system, Congress has already appropriated its
resources with the presumption that statutory requirements will be
upheld.  Thus, requiring the Secretary to meet the duty to assist—by
providing notices that are not affirmatively misleading and by
administering complete and thorough medical exams—does not increase
the expected administrative burden of providing eligible veterans
with statutory entitlements.  Moreover, Congress has evaluated the
financial and administrative costs of upholding the statutory duty to
assist in accordance with the interest at stake.  The benefits
administered by the Secretary are an entitlement by which the Nation
keeps its commitment to our veterans who have sacrificed to protect
and defend our freedom.  The Government has considered this interest
and ensured that it will continue to pay our debts to these men and
women.  Thus, Congress, through fiscal appropriations presuming that
statutory requirements will be upheld, recognizes the value of
demonstrating to veterans—to all those currently serving in our
military and to those who may serve in the future—that America honors
its commitments to those who have served.
In my view, regardless of the nature of the dispute between the
sovereign and the citizen—whether it be a claim for social security
benefits or veterans´ benefits asserted by a soldier who was disabled
during service to his or her country—the citizen´s right to
procedural due process is constitutionally protected.  I am dismayed
by the majority´s implication that breaches in the administration of
veterans´ benefits programs may be ignored in determining what
protection the Constitution provides.  Such breaches all too often
plague benefits programs designed to aid veterans.  If breaches that
might be prevented inexpensively lie entirely outside the ambit of
the Due Process Clause, then the non-adversarial and manifestly pro-
claimant character of the veterans´ benefits system would be the
cruelest of shams perpetrated upon our veterans.
I would reverse the judgment of the Court of Appeals for Veterans
Claims.

###### END ######

VETERANS RESOURCES NETWORK

Dear Readers,

The American Legion has a new survey which will be delivered to Congress, the
survey will tell about the long waits veterans must endure for VA Health Care.

Go To:
http://www.veterans.legion.org/commander.htm
or call 1- 866-539-2509 to speak with a service officer.

I can email the pdf version of the form for you to print out and mail back to
the American Legion.

Let us all work together to make 2003 the year for a reformed VA Health Care
system, with mandatory funding, and no more waiting in long lines for needed
health care.

Your Editor,
Ray B Davis, Jr.

--
Signed:
Veterans Resources Network
Ray B Davis Jr, Editor
Box 68
East Flat Rock, NC 28726
http://www.veteransresources.net
http://groups.yahoo.com/group/raybdavisjr/
http://groups.yahoo.com/group/sound-off-veterans/

VETERANS RESOURCES NETWORK

Two new VA General Counsel Opinions have been posted click link to read
complete text:

##### START 1 #####

1. http://www.veteransresources.net/OGC/Ogc2002/PREC-6-2002.htm
Subj: Protection of Service Connection—38 U.S.C. § 1159; 38 C.F.R. § 3.957

HELD:

A. Section 1159 of title 38, United States Code, and its implementing
regulation, 38 C.F.R. § 3.957, protect a grant of service connection
(unless the grant was based on fraud or military records clearly show
that the person concerned did not have the requisite service or
character of discharge) that has been in effect for ten years or longer,
as computed from the effective date of the establishment of service
connection. Those provisions protect even service connection erroneously
and recently granted, but with an effective date more than ten years
before the date of the decision establishing service connection. The
Department of Veterans Affairs (VA) may not sever such a grant of
service connection (in the absence of fraud or lack of requisite service
or character of discharge).

B. Sections 1110 and 1131 of title 38, United States Code, direct the
payment of compensation in accordance with the provisions of chapter 11,
title 38, United States Code, to a veteran with the requisite service
who is disabled by a service-connected disability, unless the disability
is a result of the veteran’s own willful misconduct or abuse of alcohol
or drugs. In the absence of the veteran’s own

willful misconduct or abuse of alcohol or drugs, VA must pay, in
accordance with the provisions of chapter 11, compensation otherwise in
order for a disability that was erroneously service connected, where
service connection is protected from severance.

#### START 2 #####

And 2. http://www.veteransresources.net/OGC/Ogc2002/PREC-7-2002.htm
Subj: Termination of Benefits of Fugitive Felons Under Section 505 of
Public Law No. 107-103
HELD:

A. If a surviving spouse of a veteran becomes a fugitive felon and
consequently loses eligibility for dependency and indemnity compensation
(DIC) or improved death pension benefits by operation of 38 U.S.C. §
5313B, additional benefits payable to the surviving spouse for children
of the veteran would cease. Statutes governing DIC, 38 U.S.C. § 1313(a),
and improved death pension, 38 U.S.C. § 1542, provide independent
eligibility for a veteran’s children where there is no surviving spouse
eligible for benefits. Thus, the children may receive benefits in their
own right.

B. If a veteran’s child in receipt of improved death pension benefits
loses eligibility for those benefits by operation of 38 U.S.C. § 5313B
upon becoming a fugitive felon, the improved pension benefits payable to
other children of the veteran would not be affected. Similarly, in the
case of DIC, as long as the child who loses eligibility under 38 U.S.C.
§ 5313B continues to meet the definition of child for title 38 purposes,
the shares of other children receiving DIC will not increase.

### END ###

Your Editor,
Ray B Davis, Jr.

--
Signed:
Veterans Resources Network
Ray B Davis Jr, Editor
Box 68
East Flat Rock, NC 28726
http://www.veteransresources.net
http://groups.yahoo.com/group/raybdavisjr/
http://groups.yahoo.com/group/sound-off-veterans/

VETERANS RESOURCES NETWORK

Dear Readers,

Some have asked why I have not posted lately?  My mother Ruby Melton
Davis, age 74, who has battled cancer for 16 years, went to Heaven to be
with her Lord and Savior Jesus Christ on December 13, 2002.  We took her
to the hospital on Sunday December 8th, and she remained there until she
passed away, and was buried today December 16, 2002.

She was a great and good Wife, Mother, Grand Mother, and Great
Grandmother.  As well as being an all around great American.  Saved by
Grace, and Faithful to Our Lord Jesus Christ.

I was privileged to have her for my 48 years, and to be with her the
last days of her earthly life.  She was brave and humble to the very
end.  I await the day Our Lord will return and bring both her and all
the Saints with Him.

I have placed a photo of her on our mail list home page, and it will
remain there until at least after the first of the new year.

Your Editor,
Ray B Davis, Jr.




--
Signed:
Veterans Resources Network
Ray B Davis Jr, Editor
Box 68
East Flat Rock, NC 28726
http://www.veteransresources.net
http://groups.yahoo.com/group/raybdavisjr/
http://groups.yahoo.com/group/sound-off-veterans/

VETERANS RESOURCES NETWORK

Dear Readers,

Below is a Federal Circuit case where the date for Agent Orange compensation can
be seen as it relates to DIC.  Docket no. 02-7020,
SHIRLEY D. WILLIAMS, Claimant-Appellant, v. ANTHONY J. PRINCIPI.
(complete case at the bottom).

Quote:
In May 1991, the government and the plaintiffs in the Nehmer litigation entered
into a stipulation according to which the DVA would
readjudicate claims, the denials of which were voided by the 1989 Nehmer I
decision. Nehmer v. United States Veterans Administration, No.
CV-86-6160 (TEH), (N.D. Cal. May 17, 1991) (?Nehmer Stipulation?). The effective
date of any resulting award of benefits would be based on
the filing date of the original claim, for claims originally filed before May 3,
1989 (?Stipulation 1?), or on the later of the filing date of the claim or
the date of disability or death of the veteran, for claims filed on or after May
3, 1989 (?Stipulation 2?). Id., slip op. at 2-5.
Unquote.

If your case is similar, the appeal or claim should be withdrawn.

Your Editor,
Ray B Davis, Jr.

##### Start ######

United States Court of Appeals for the Federal Circuit



02-7020



SHIRLEY D. WILLIAMS,

Claimant-Appellant,

v.

ANTHONY J. PRINCIPI, Secretary of Veterans Affairs,

Respondent-Appellee.






	 P. Heith Reynolds, Wolfe, Williams & Rutherford, of Norton, Virginia, argued
for claimant-appellant.  On the brief was Roger W.
Rutherford.

	 Martin F. Hockey, Jr., Senior Trial Attorney, Commercial Litigation Branch,
Civil Division, Department of Justice, of Washington, DC,
argued for respondent-appellee.  With him on the brief were Robert D. McCallum,
Jr., Assistant Attorney General; and David M. Cohen,
Director.  Of counsel on the brief were Richard D. Hipolit, Deputy Assistant
General Counsel; and David J. Barrans, Staff Attorney, Department
of Veterans Affairs, of Washington, DC.

Appealed from:       United States Court of Appeals for Veterans Claims


Chief Judge Kenneth B. Kramer
  United States Court of Appeals for the Federal Circuit


02-7020

SHIRLEY D. WILLIAMS,

Claimant-Appellant,
v.

ANTHONY J. PRINCIPI,
	 Secretary of Veterans Affairs,

Respondent-Appellee.

				 __________________________

DECIDED: November 13, 2002
				 __________________________

Before CLEVENGER, SCHALL, and LINN, Circuit Judges.

LINN, Circuit Judge.

	 Shirley D. Williams ("Williams") appeals from a decision of the United States
Court of Appeals for Veterans Claims ("CAVC") affirming a
determination by the Board of Veterans' Appeals ("Board") that Williams was not
entitled to an effective date prior to October 20, 1989, for her
award of dependency and indemnity compensation ("DIC").  Williams v. Principi,
15 Vet. App. 189 (2001) (en banc).  Because the CAVC
correctly determined that the stipulation set forth in Nehmer v. United States
Veterans' Administration, No. CV-86-6160 (N.D. Cal. May 20,
1991), governed Williams' award date, and the CAVC did not err as a matter of
law in its interpretation of that stipulation, we affirm.
I. BACKGROUND
Williams' husband, James B. Williams, a Vietnam veteran, died of lung cancer on
June 28, 1979.  Williams filed a claim for DIC benefits in
August 1979.  In November 1979, a Veterans' Administration ("VA") regional
office ("RO") denied Williams' claim.   The Board finally denied her
claim on October 2, 1980, finding that the lung cancer did not develop in
service or within a presumption period, that it did not result from
exposure to Agent Orange, and that it was not causally related to
service-connected disabilities.  In 1984, Congress passed the Veterans'
Dioxin and Radiation Exposure Compensation Standards Act, which mandated the
establishment of standards for assessing Agent Orange
claims.  Veterans' Dioxin and Radiation Exposure Compensation Standards Act,
Pub. L. No. 98-542, § 3, 98 Stat. 2725 (1984) (codified in part
at 38 U.S.C. § 1154 (2000)) ("Dioxin Act").   In June 1985, Williams again filed
for DIC benefits.   The VA reopened the original claim, and
denied it again on July 22, 1985.
On September 25, 1985, 38 C.F.R. § 3.311a came into effect; this regulation
established service connection between dioxin exposure and the
skin condition chloracne.  Adjudication of Claims Based on Exposure to Dioxin or
Ionizing Radiation, 50 Fed. Reg. 34,452, 34,458 (August 26,
1985) (codified at 38 C.F.R. § 3.311a).  The validity of this regulation was
challenged in a class action suit filed in the Northern District of
California in 1987.  Nehmer v. United States Veterans' Administration, 118
F.R.D. 113 (N.D. Cal. 1987) ("Class Certification").  The district court
granted class certification to plaintiffs denied benefits on claims of
disability resulting from service-connected dioxin exposure.  Id. at 125.  In
its
class certification, those plaintiffs who were denied benefits prior to the
effective date of § 3.311a were held to lack standing.  Id. at 117.  In
May of 1989, the district court held that the regulation was contrary to the
Dioxin Act and voided all benefit denials that were made under §
3.311a(d).  Nehmer v. United States Veterans' Administration, 712 F. Supp. 1404,
1409 (N.D. Cal. 1989) ("Nehmer I").   The district court later
clarified that the claims "made under" § 3.311a(d) were those "in which the
disease or cause of death is later found-under valid Agent Orange
regulation(s)-to be service connected."  Nehmer v. United States Veterans
Administration, 32 F. Supp. 2d 1175, 1183 (N.D. Cal. 1999)
("Nehmer II").
In October 1989, Williams requested that her DIC claim be reopened.  On January
3, 1990, the Department of Veterans' Affairs ("DVA")
notified her that it was delaying action on her claim pending reconsideration of
its regulations relating to dioxin exposure.  On February 6, 1991,
the Agent Orange Act of 1991 was passed; this statute established a presumption
of service connection, by reason of exposure to dioxin, for
diseases that were to be identified in later-promulgated regulations.  Agent
Orange Act of 1991, Pub. L. No. 102-4, § 2, 105 Stat. 11 (1991)
(codified in part at 38 U.S.C. § 316 (2000)) ("Agent Orange Act").
In May 1991, the government and the plaintiffs in the Nehmer litigation entered
into a stipulation according to which the DVA would
readjudicate claims, the denials of which were voided by the 1989 Nehmer I
decision.  Nehmer v. United States Veterans Administration, No.
CV-86-6160 (TEH), (N.D. Cal. May 17, 1991) ("Nehmer Stipulation").  The
effective date of any resulting award of benefits would be based on
the filing date of the original claim, for claims originally filed before May 3,
1989 ("Stipulation 1"), or on the later of the filing date of the claim or
the date of disability or death of the veteran, for claims filed on or after May
3, 1989 ("Stipulation 2").  Id., slip op. at 2-5.
	 On June 9, 1994, revised 38 C.F.R. § 3.309(e), establishing a presumption of
service connection for lung cancer, came into effect.
Disease Associated with Exposure to Certain Herbicide Agents (Multiple Myeloma
and Respiratory Cancers), 59 Fed. Reg. 29,723, 29,724
(June 9, 1994) (codified at 38 C.F.R. §§ 3.307(a), 3.309(e)) (adding the words
"Respiratory cancers (cancer of the lung, bronchus, larynx, or
trachea)" to the list of diseases which are service-connected "[i]f a veteran
was exposed to an herbicide agent during active military . . .
service").   In July of 1994, the RO granted service connection for James
Williams' cancer, and later established the effective date of Williams'
DIC benefits to be October 20, 1989, the date on which Williams requested
reopening of her DIC claim.  Williams appealed the decision to the
Board.
Both the Board and the CAVC held that, pursuant to the Nehmer Stipulation,
Williams was entitled to an effective date that was the same as
that of her request to reopen the claim, October 20, 1989.  Williams has
appealed the decision of the CAVC to this court.  We have jurisdiction
under 38 U.S.C. § 7292.
II. DISCUSSION
A. Standard of Review
This scope of this court's review of a decision of the CAVC is governed by 38
U.S.C. § 7292(d):
(d)(1) The Court of Appeals for the Federal Circuit shall decide all relevant
questions of law, including interpreting constitutional and statutory
provisions. The court shall hold unlawful and set aside any regulation or any
interpretation thereof (other than a determination as to a factual
matter) that was relied upon in the decision of the Court of Appeals for
Veterans Claims that the Court of Appeals for the Federal Circuit finds
to be-
(A) arbitrary, capricious, and abuse of discretion, or otherwise not in
accordance with law;
(B) contrary to constitutional right, power, privilege, or immunity;
(C) in excess of statutory jurisdiction, authority, or limitations, or in
violation of a statutory right; or
(D) without observance of procedure required by law.
(2) Except to the extent that an appeal under this chapter presents a
constitutional issue, the Court of Appeals may not review (A) a challenge
to a factual determination, or (B) a challenge to a law or regulation as applied
to the facts of a particular case.

The interpretation of a court order involves a question of law.  YBM Magnex,
Inc. v. Int'l Trade Comm'n, 145 F.3d 1317, 1320 (Fed. Cir. 1998).
B. Analysis
	 At issue in the present appeal is the effective date of Williams' DIC benefits.
Williams appealed from the Board's determination that she
was not entitled to an effective date earlier than October 20, 1989.  In its en
banc split decision, the CAVC addressed the legal questions of:
whether Nehmer I and Nehmer II had the legal effect of voiding the 1980 and 1985
denials of [Williams'] August 1979 and June 1985 DIC
claims; whether, if those denials were voided, there is a legal basis for an
earlier effective date under Stipulation 1 or the statutory and
regulatory effective date provisions; and whether, if the denials were not
voided, there is a legal basis for an earlier effective date, under
Stipulation 2 or the statutory and regulatory effective-date provisions, based
on the 1979, 1985, or 1989 claim.

Williams, 15 Vet. App. at 196.  The CAVC held that "neither Nehmer I nor Nehmer
II was intended to have the legal effect of voiding either the
October 1980 or the June 1985 denial of the appellant's 1979 and 1985 claims,
respectively, both of which occurred prior to the promulgation
of former § 3.311a."  Id. at 196-97.  Accordingly, the CAVC concluded that
"Stipulation 1, which by its terms applies only where a prior decision
has been voided by Nehmer I, is inapplicable."  Id. at 197.  Since the 1980 and
1985 denials remained final, the CAVC held that the denied
claims could not "serve as a basis for an earlier effective date under the
statutory or regulatory effective-date provisions."  Id.  The CAVC
further stated that Williams could not be awarded an earlier effective date even
if the 1980 and 1985 denials had been voided by Nehmer I or
Nehmer II.  Id.  In so concluding, the CAVC relied on 38 U.S.C. § 5110(g), which
provides that when DIC benefits, inter alia, are "awarded or
increased pursuant to any Act or administrative issue," the effective date
cannot be earlier than the date of the liberalizing act or issue.  38
U.S.C. § 5110(g) (2000).   Since Williams' award of DIC benefits in July 1994
was made pursuant to liberalizing regulations that became
effective on June 9, 1994, the latter date was the earliest effective date
allowed by the statute.  Williams, 15 Vet. App. at 197.
Williams argues that the majority's interpretation of the Nehmer Stipulation is
too restrictive.  She adverts to the familiar principle that "the
character of the veterans' benefits statutes is strongly and uniquely
pro-claimant."  Hodge v. West, 155 F.3d 1356, 1362 (Fed. Cir. 1998).
Williams argues that the Nehmer Stipulation, as interpreted in the Nehmer II
decision, voided the denials of all prior claims for service
connection for illnesses resulting from dioxin exposure.   Because in Williams'
view her 1979 claim was voided by the Nehmer Stipulation, she
argues that that claim is still pending and DIC benefits should be awarded with
an effective date of June 28, 1979, the date of James Williams'
death.  Williams argues that such an effective date would not be precluded by 38
U.S.C. § 5110(g), as the "Act or administrative issue"
pursuant to which the DIC benefits would be granted is unspecified legislation
funding VA research into the effects of dioxin.
Alternatively, Williams argues that the benefits could be awarded based on the
1985 claim; in that case, she maintains that the "Act or
administrative issue" set forth in 38 U.S.C. § 5110(g) would be the 1984 Dioxin
Act, which sets forth as its purpose "to ensure that Veterans'
Administration disability compensation is provided to veterans who were exposed
during service in the Armed Forces in the Republic of
Vietnam to a herbicide containing dioxin."  Dioxin Act, Pub. L. No. 98-542, § 3,
98 Stat. 2725 (1984).  Williams argues that this view is bolstered
by the CAVC minority's conclusion that "the 1984 Dioxin Act is the legislation
enabling VA's provision, at that time and at any future date, of
disability and survivor compensation based on exposure to Agent Orange in
Vietnam."  Williams, 15 Vet. App. at 202-03.  She thus maintains
that, at a minimum, she is entitled to an effective date of October 24, 1984,
the effective date of the Dioxin Act.
The government responds that Williams is not entitled to an effective date prior
to October 20, 1989.  It argues that the award of DIC benefits
was made pursuant to DVA's June 9, 1994 regulation establishing a presumption of
service connection for lung cancer, not pursuant to earlier
legislation providing for studies into the effects of dioxin, so that Williams
is not entitled to an effective date based on that earlier legislation
under 38 U.S.C. § 5110(g).  Furthermore, the government argues that the CAVC
correctly concluded that the denials of Williams' 1979 and
1985 claims were not voided by Nehmer I, because those claims were denied before
the challenged regulation took effect, and therefore the
earliest effective date allowable under the Nehmer Stipulation is October 20,
1989, the date of Williams' third claim for DIC benefits.
1
The Nehmer class action was filed in February 1987; the named plaintiffs
challenged the promulgation in 1985 of a regulation, 38 C.F.R. §
3.311a, as an improper implementation of the 1984 Dioxin Act.  Class
Certification, 118 F.R.D. at 115-16.  This regulation, entitled "Claims
based on exposure to herbicides containing dioxin during service in the Republic
of Vietnam," established a presumption that veterans who
served in the Republic of Vietnam were "exposed to a herbicide containing dioxin
while in Vietnam."  38 C.F.R. § 3.311a(b) (1986).  However,
the regulation granted service connection only for "[c]hloracne manifested not
later than three months from the date of exposure."  Id. § 3.311a
(c).  The regulation specified that "[s]ound scientific and medical evidence
does not establish a cause and effect relationship between dioxin
exposure and [all other] diseases."  Id. § 3.311a(d).  In certifying the class
of plaintiffs, the court distinguished plaintiffs who had been denied
benefits under § 3.311a from those whose claims had been denied prior to the
effective date of the regulation:
Plaintiffs claim that the 1985 regulation, and the procedures used to enact it,
violate the Dioxin Act.  Plaintiffs denied benefits prior to the
regulation's enactment lack standing to pose that legal challenge to their
denial.

Class Certification, 118 F.R.D. at 117.
In 1989, the court invalidated § 3.311a(d), the portion of the regulation that
denied service connection for diseases other than chloracne.
Nehmer I, 712 F. Supp. at 1409.  The court held that "the Administrator's
adoption of the cause and effect test and failure to give the benefit of
the doubt to veterans violated the Dioxin Act."  Id.  The court voided "all
benefit decisions made under" 38 C.F.R. § 3.311a(d), and remanded
the case to the VA for further proceedings.  Id.
In May of 1991, the parties agreed to a Final Stipulation and Order that
resolved the remaining issues of injunctive and monetary relief for the
class.  Nehmer Stipulation, No. CV-86-6160 (TEH) (N.D. Cal. May 17, 1991).   The
Nehmer Stipulation provided that the VA would complete its
analysis of possible connections between dioxin exposure and three specified
diseases, among them lung cancer.  Nehmer Stipulation, slip op.
at 2.  On reviewing the resulting scientific report, the Secretary would
determine whether or not to issue a final rule establishing service
connection for each disease.  Id., slip op. at 2-3.  The Stipulation then set
forth the VA's course of action following the issuance of such a final
rule:
3. As soon as a final rule is issued service connecting, based on dioxin
exposure, any of the three diseases, soft tissue sarcoma, and any
other disease which may be service connected in the future pursuant to the Agent
Orange Act of 1991, 38 U.S.C. § 316(b), the VA shall
promptly thereafter readjudicate all claims for any such disease which were
voided by the Court's Order of May 3, 1989 [Nehmer I], as well as
adjudicate all similar claims filed subsequent to the Court's May 3, 1989 Order,
without waiting for final rules to be issued on any other
diseases.
  . . . .
5. For any of the three diseases for which the Secretary determines to issue a
final positive rule . . . as to any denials of claims which were
voided as a result of the Court's May 3, 1989 Order, the effective date for
disability compensation or dependency and indemnity compensation
("DIC"), if the claim is allowed upon readjudication . . . will be the date the
claim giving rise to the voided decision was filed (except as otherwise
provided in 38 U.S.C. §§ 3010(b)(1), or 3010(d)(1)) . . . .  For any claim for
any such disease which was not filed until after May 3, 1989, the
effective date for beginning disability compensation or DIC will be the date the
claim was filed or the date the claimant became disabled or
death occurred, whichever is later.

Id., slip op. at 3-5.
A dispute subsequently arose as to which benefit decisions were "made under" 38
C.F.R. § 3.311a(d), Nehmer I, 712 F. Supp. at 1423, and
were thus "voided by" the Nehmer I decision in the meaning of Paragraph 3 of the
Nehmer Stipulation.  In Nehmer II, two members of the class
of plaintiffs had been denied service-connected benefits during the period when
38 C.F.R. § 3.311a was in effect.  The denied claims were
"based on a disease that the VA did not then recognize as linked to Agent
Orange-but which the VA [later] recognize[d was] so linked
pursuant to its revised Agent Orange regulations."  Nehmer II, 32 F. Supp. 2d at
1177.  At the time, the VA policy was that Paragraph 3 of the
Nehmer Stipulation did not require it to readjudicate such claims unless the
claim specifically alleged that Agent Orange was a factor, or the
VA's denial of the claim specifically cited 38 C.F.R. § 3.311a.  Id. at 1177-78.
Plaintiffs challenged the VA policy as a violation of the Nehmer
Stipulation.  Id. at 1178.  The court, reasoning that "a benefit decision could
have been erroneously decided because of the flawed regulation
even if the claim did not expressly reference Agent Orange or the VA did not
cite to 38 C.F.R. § 3.311a(d) in its written denial," id. at 1180, held
that "the Court's order voiding all benefits decisions 'made under 38 C.F.R. §
3.311a(d)' voided all benefit decisions which involved claims in
which the disease or cause of death is later found-under valid Agent Orange
regulation(s)-to be service connected."  Id. at 1183.  This
interpretation of the Nehmer Stipulation was affirmed on appeal.  Nehmer v.
Veterans' Administration of the Gov't of the United States, 284
F.3d 1158 (9th Cir. 2002).
Williams argues that the statement in Nehmer II that Nehmer I "voided all
benefit decisions which involved claims in which the disease or cause
of death is later found-under valid Agent Orange regulation(s)-to be service
connected," Nehmer II, 32 F. Supp. 2d at 1183, means that even
denials prior to the promulgation of 38 C.F.R. § 3.311a were voided by Nehmer I.
Thus, Williams maintains, her 1979 and 1985 claims, which
were both denied prior to the effective date of 38 C.F.R. § 3.311a, are eligible
for readjudication.   Williams' view of the Nehmer Stipulation is
too expansive.  The Nehmer litigation was a challenge to the validity of a
specific regulation, 38 C.F.R. § 3.311a(d), as a violation of the Dioxin
Act.  Williams' 1985 claim was denied before the challenged regulation took
effect, and her 1979 claim was denied even before the effective
date of the Dioxin Act, which was the basis of the challenge to the regulation. 
These denials were thus outside the scope of the Nehmer
litigation.  As the district court ruled, plaintiffs who were "denied benefits
prior to the regulation's enactment lack[ed] standing" to challenge §
3.311a.  Class Certification, 118 F.R.D. at 117.  Because the denials of
Williams' 1979 and 1985 claims occurred before the effective date of §
3.311a, those denials were unaffected by the outcome of the Nehmer litigation,
remain final, and are not eligible for readjudication.
2
  Williams also raises, as an alternative basis for entitlement to an earlier
effective date for her DIC benefits, 38 U.S.C. § 5110(g).  That statute
provides that:
where compensation, dependency and indemnity compensation, or pension is awarded
or increased pursuant to any Act or administrative
issue, the effective date of such award or increase shall be fixed in accordance
with the facts found but shall not be earlier than the effective
date of the Act or administrative issue.

38 U.S.C. § 5110(g) (2000).  Williams argues that either the 1984 Dioxin Act, or
unspecified litigation funding VA research into the effects of
dioxin exposure, could be the "Act or administrative issue" pursuant to which
Williams' DIC benefits were awarded.
	 We do not agree.  Section 5110(g) "provides the means for determining the
effective date of any award of VA benefits made pursuant
to a liberalizing law or administrative issue."  Spencer v. Brown, 17 F.3d 368,
371 n.5 (Fed. Cir. 1994) (quoting Spencer v. Brown, 4 Vet. App.
283, 288 (1993)).  The minority view in the CAVC would have held that "the 1984
Dioxin Act is the legislation enabling VA's provision, at that
time and at any future date, of disability and survivor compensation based on
exposure to Agent Orange in Vietnam."  Williams, 15 Vet. App. at
202-03.  However, Williams' benefits could not have been awarded pursuant to the
Dioxin Act, as that statute simply directed the Administrator
of the VA to:
(1) establish guidelines and (where appropriate) standards and criteria for the
resolution of claims for benefits under laws administered by the
Veterans' Administration where the criteria for eligibility for a benefit
include a requirement that a death or disability be service connected and
the claim of service connection is based on a veteran's exposure during service
. . . in the Republic of Vietnam during the Vietnam era to a
herbicide containing dioxin . . . and
(2) ensure that, with respect to those claims, the policy of the United States
described in section 2(13) [the "benefit of the doubt" rule] is carried
out.

Dioxin Act, Pub. L. No. 98-542, § 5, 98 Stat. 2725 (1984).   Since this statute
did not establish service connection for lung cancer in veterans
exposed to dioxin during service, it did not establish a present entitlement to
DIC benefits for Williams.  Similarly, statutes which may have
provided funding in 1979 for the VA to conduct dioxin-related research did not
establish an entitlement to DIC benefits for widows of veterans
who died as a result of lung cancer after exposure to dioxin during service. 
Rather, the award of DIC benefits to Williams was first made
possible by, and was thus made "pursuant to," revised 38 C.F.R. § 3.309(e),
which took effect on June 9, 1994.  Disease Associated with
Exposure to Certain Herbicide Agents (Multiple Myeloma and Respiratory Cancers),
59 Fed. Reg. 29,723, 29,724 (June 9, 1994) (codified at 38
C.F.R. §§ 3.307(a), 3.309(e)).
AFFIRMED
COSTS
No costs.



###### End ######

Signed:
Veterans Resources Network
Ray B Davis Jr, Editor
Box 68
East Flat Rock, NC 28726
http://www.veteransresources.net
http://groups.yahoo.com/group/raybdavisjr/
http://groups.yahoo.com/group/sound-off-veterans/