Veterans Court , Gardin v. Shinseki, No. 07-1812

U.S. Court of Appeals for Veterans Claims

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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 07-1812
WAYNE J. GARDIN, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before KASOLD, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
KASOLD, Judge: Veteran Wayne J. Previous HitGardinNext Hit appeals through counsel a March 19,
2007,
decision of the Board of Veterans' Appeals (Board) that denied his claim
for disabilitycompensation
for diabetes because it was not service connected. Mr. Previous HitGardinNext Hit argues that
the Board (1) clearlyerred
in determining that the evidence in favor of an in-service onset date for
his diabetes was not credible
or was to be given less weight, (2) failed to apply the benefit of the
doubt principle set out in 38
U.S.C. § 5107(b), and (3) erred in determining that a medical examination
was not necessary under
38 U.S.C. § 5103A(d). The Secretary disputes these contentions. Single-
judge disposition is
appropriate. Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). For the
reasons set forth below,
the Board's decision will be affirmed.
The record does not support Mr. Gardin's argument that the Board clearly
erred in finding
that the evidence that his diabetes began during service was not credible.
The Board stated that it
determined Mr. Gardin's own statements regarding the onset of his diabetes
were not credible
because they were inconsistent over time. Record (R.) at 7. For example,
the Board noted that Mr.
Previous HitGardinNext Hit stated on various occasions that (1) he had had diabetes all his
life and that he had first
noticed symptoms of diabetes during service, and (2) he had begun using
insulin during service,
within two or three months following service, and in 1971, eight years
after service. Id. The Board


also explained that it discounted the lay testimony of Mr. Gardin's
friends and family because they
were based on his statements, were vague, and were not consistent with the
evidence as a whole.
Further, the Board discounted one medical opinion because it was
inconsistent with the
medical examiner's own prior statements and discounted another because the
medical examiner did
not review the claims file when reaching his determination that Mr. Previous HitGardinNext Hit
had had diabetes during
service. R. at 8-11; see also Nieves-Rodriguez v. Peake, 22 Vet.App. 295,
301 (2008) (when
providing a medical examination, "the Secretary ... must ensure that the
examiner providing the
report or opinion is fully cognizant of the claimant's past medical
history"). And, it discounted other
medicalexaminationreportsthatnotedanin-
serviceonsetofdiabetesbecausetheywereeitherbased
on Mr. Gardin's statements or were inconsistent with the evidence as a
whole. Although Mr. Previous HitGardinNext Hit
argues that the Board had no basis for concluding that these opinions were
based on his own reports
of his history, he points to no support in the record for concluding
otherwise. Moreover, the record
reflects that the doctors offering these opinions were not treating Mr.
Previous HitGardinNext Hit while hewas in service.
As the finder of fact, it is the Board's province to determine the
credibility and probative
weight of the evidence, Washington v. Nicholson, 19 Vet.App. 362, 367-68 (
2005), and Mr. Previous HitGardinNext Hit
fails to demonstrate that the Board's finding is not clearlyerroneous,
Prillaman v. Principi, 346 F.3d
1362, 1367 (Fed. Cir. 2003) (determination of witness credibility is "a
quintessential fact-finding
function"); Hilkert v. West, 12 Vet.App. 145, 151 (1999) (en banc) (
appellant bears burden of
demonstrating error on appeal); Gilbert v. Derwinski, 1 Vet.App. 49, 52 (
1990) ('"A finding is
"clearly erroneous" when although there is evidence to support it, the
reviewing court on the entire
evidence is left with the definite and firm conviction that a mistake has
been committed."' (quoting
United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948))).
Mr. Gardin's argument that the Board erred in failing to apply the benefit
of the doubt
provision set out in 38 U.S.C. § 5107(b) is not supported by the record
or the law. In determining
that no credible evidence demonstrated that Mr. Gardin's diabetes began
during service R. at 11, the
Board found that the preponderance of the evidence was against the claim,
and Mr. Previous HitGardinNext Hit fails to
demonstrate that this finding was clearly erroneous. See Hilkert, supra.
Accordingly, the benefit
of the doubt was not for application. Ortiz v. Principi, 274 F.3d 1361,
1364 (Fed. Cir. 2001) ("the
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benefit of the doubt rule is inapplicable when the preponderance of the
evidence is found to be
against the claimant").
The record does not support Mr. Gardin's argument that the Board erred in
determining that
a medical examination was not necessary pursuant to section 5103A(d). In
support of his argument,
Mr. Previous HitGardinNext Hit notes that the Board expressed uncertainty regarding whether
his diabetes began in 1966
or 1971 and he contends that a medical examination was needed to determine
the onset of his
diabetes. Assuming arguendo, however, that the onset date was 1966 – the
earlier of the two dates
– it would not help Mr. Gardner's claim. This is so because he left
service in 1963, three years
before the potential 1966 onset date. Moreover, although the Board could
not determine whether
1966 or 1971 was the onset date, it nevertheless found that the evidence
indicating that Mr. Gardin's
diabetes began before he left service in 1963 was not credible, and, as
noted above, Mr. Previous HitGardin has
not demonstrated that this finding was clearly erroneous. In the absence
of any such credible
evidence, the Board's conclusion that a medical examination was not
necessary under section
5103A(d) is not "arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with
law." See McLendon v. Nicholson, 20 Vet.App 79, 81 (2006) (setting out
standard of review for
Secretary's determination not to provide a medical examination under
section 5103A(d)).
Upon consideration of the foregoing, the Board's March 19, 2007, decision
is AFFIRMED.
DATED:
April 14, 2009
Copies to:
Virginia Girard-Brady, Esq.
VA General Counsel (027)
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