Reopen Claim, Shade v. Shinseki; 5103A(a)(2); 5103A(d)

This is a single Judge Decision which looks at the application of Shade v. Shinseki and 5103A.

"In his brief, the Secretary argues that the error made by the Board was not prejudicial because, if section 5103A(a)(2) were applied to the facts of the case, the Board's decision was not clearly erroneous. Secretary's Br. at 8. However, the failure of the Board to apply the correct statutory section frustrates judicial review in this Court and the Secretary cannot correct this error after the fact by suggesting what would have happened if the Board had applied the proper standard. The Board should have determined whether, based on the evidence of record, "no

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reasonable possibility exists that such assistance would aid in substantiating the claim," rather than the four-part test articulated in section 5103A(d). 38 U.S.C. § 5103A(a)(2); cf. Shade v. Shinseki, __ Vet.App. __, No. 08-3548, slip op. at 10 (Nov. 2, 2010) (discussing "raises a reasonable possibility" in the context of a claim to reopen). Accordingly, the Court will vacate and remand the matter so that the Board may apply the proper standard. On remand, the Court notes that, when applying the standard articulated in section 5103A(a)(2), the Board should be cognizant of the particular phrasing of that statute. The statute does not require the evidence to raise a reasonable possibility but, rather, requires the Secretary to render assistance unless there is "no reasonable possibility . . . ." § 5103A(a)(2)."
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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 09-2738
CLAUDIE O. WINSTEAD, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before MOORMAN, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
MOORMAN, Judge: The appellant, Claudie Winstead, appeals through counsel a
June 11,
2009, Board of Veterans' Appeals (Board) decision that denied entitlement
to service connection for
the cause of the veteran's death and for dependancyand
indemnitycompensation (DIC). Record (R.)
at R. at 3-15. The appellant and Secretary both filed briefs and the
appellant filed a reply brief. The
Court has jurisdiction pursuant to 38 U.S.C. §§ 7252(a) and 7266(a) to
review the June 2009 Board
decision. A single judge may conduct that review because the outcome in
this case is controlled by
the Court's precedents and "is not reasonably debatable." Frankel v.
Derwinski, 1 Vet.App. 23, 25-
26 (1990). For the following reasons, the Court will vacate the Board's
June 2009 decision and
remand the matters for readjudication.
Mr. Winstead served on active duty in the U.S. Army from March 1941 to
September 1945.
R. at 799. Mr. Winstead was granted service connection for shell fragment
wounds in 1993 and for
post-traumatic stress disorder (PTSD) in 2002. R. at 174-78. Mr. Winstead
died on February 8,
2008. R. at 158. The death certificate listed acute respiratoryfailure as
the immediate cause of death
due to or as a consequence of possible aspiration failure and coronary
artery disease. Id. The
certificate also indicated that congestive heart failure and hypertension
were significant contributing
factors. Id. The appellant, Mr. Winstead's widow, filed a claim for DIC,
death benefits, and accrued


benefits as a surviving spouse in February 2008. R. at 139-40. The
appellant's claims were denied
by the RO, and she appealed to the Board. R. at 104-06. The June 2009
Board decision here on
appeal denied the appellant's claims for service connection for the cause
of the veteran's death and
entitlement to DIC. R. at 3-15.
The appellant's sole argument on appeal is that the Board failed to
fulfill its duty to assist by
failing to provide a medical examination and opinion as to whether Mr.
Winstead's service-
connected conditions caused or contributed to his death. Appellant's (App.)
Brief (Br.) at 5-10. The
Secretary argues that the Board's determination that the appellant was not
entitled to a medical
examination was not clearly erroneous. Secretary's Br. at 8.
In DeLaRosa v. Peake, 515 F.3d 1319 (Fed. Cir. 2008), the U.S. Court of
Appeals for the
Federal Circuit (Federal Circuit) discussed the Secretary's duty to
provide a medical opinion within
the context of a DIC claim. In that case, the Secretary argued that the
duty to provide a medical
examination under 38 U.S.C. § 5103A(d) is limited to claims for
disability compensation, which
does not encompass claims for DIC benefits. Id at 1322. The Federal
Circuit agreed, but held that
the Secretary may have a duty to provide a medical opinion in connection
with a DIC claim under
section 5103A(a) as part of its duty to assist. Id. at 1322. In Wood v.
Peake, the Federal Circuit held
that section 5103A(a) "excuses VA from making reasonable efforts to
provide such assistance, if
requested, when 'no reasonable possibility exists that such assistance
would aid in substantiating the
claim.'" 520 F.3d 1345, 1348 (Fed. Cir.) (quoting 38 U.S.C. § 5103A(a)(2)).
Here, the Board relied on 38 U.S.C. § 5103A(d) and McLendon v. Nicholson,
20 Vet.App.
79 (2006), for its determination that there is no duty to provide a
medical opinion. R. at 9. However,
the Board's application of section 5103A(d) and McLendon was in error. As
discussed above, the
Federal Circuit's decisions in Wood and DeLaRosa, both supra, indicate
that section 5103A(a) is the
applicable provision for DIC claims. In his brief, the Secretary argues
that the error made by the
Board was not prejudicial because, if section 5103A(a)(2) were applied to
the facts of the case, the
Board's decision was not clearly erroneous. Secretary's Br. at 8. However,
the failure of the Board
to applythe correct statutorysection frustrates judicial review in this
Court and the Secretary cannot
correct this error after the fact bysuggesting what would have happened if
the Board had applied the
proper standard. The Board should have determined whether, based on the
evidence of record, "no
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reasonable possibility exists that such assistance would aid in
substantiating the claim," rather than
the four-part test articulated in section 5103A(d). 38 U.S.C. § 5103A(a)(
2); cf. ShadeNext Document v. Shinseki,
__ Vet.App. __, No. 08-3548, slip op. at 10 (Nov. 2, 2010) (discussing "
raises a reasonable
possibility" in the context of a claim to reopen). Accordingly, the Court
will vacate and remand the
matter so that the Board may apply the proper standard. On remand, the
Court notes that, when
applying the standard articulated in section 5103A(a)(2), the Board should
be cognizant of the
particular phrasing of that statute. The statute does not require the
evidence to raise a reasonable
possibility but, rather, requires the Secretary to render assistance
unless there is "no reasonable
possibility . . . ." § 5103A(a)(2).
This Court is required to consider whether an error committed by the Board
is prejudicial.
See Shinseki v. Sanders, 129 S. Ct. 1696, 1708 (2009) (holding that this
Court must take due account
of the rule of prejudicial error). However, in this case, the Board
applied the wrong legal standard
to the evidence of record. Thus, the Court would have to speculate in
order to determine whether
the appellant was prejudiced by the Board's error. Accordingly, the matter
must be remanded for the
Board to apply the proper standard in the first instance.
Upon consideration of the foregoinganalysis and of the appellant's and
theSecretary's briefs,
and a review of the record, the Board's June 11, 2009, decision is VACATED
and the matters
REMANDED.
DATED: November 24, 2010
Copies to:
Robert V. Chisholm, Esq.
General Counsel (027)
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