Full article at: More evidence for PTSD, heart disease link
By Genevra Pittman
"People with post-traumatic stress disorder may be at a higher risk for heart disease, according to researchers. In a study of U.S. war veterans, they found that those with PTSD were more likely to have fatty buildup, or plaque, in the arteries leading to the heart, called coronary artery disease.
The disease had also progressed farther in the mentally troubled vets, and they were more likely to die of any cause over the next three and a half years than their peers."
Tuesday, May 31, 2011
New and Material Evidence, Bielby v. Brown, No. 92-653(Argued March 31, 1994 Decided December 20, 1994 )
Excerpt from decision below:
"Evidence is new where it is not merely cumulative or repetitious of evidence already of record. Id. at 174. If the evidence is not new, there is no need determine whether the evidence is material. See Manio, 1 Vet.App. at 145.
We find that the evidence presented by the appellant is both new and
material. Specifically, we find that the May 1990 letter from Dr. Gilden
is new evidence because it makes two main points. First, it reiterates
his June 1988 Dr. Gilden's opinion that the appellant manifested symptoms
of MS in service. Second, the letter provides Dr. Gilden's opinion that
appellant's symptoms were not the result of infectious mononucleosis as
advanced by the Board. To the extent that the letter restates Dr.
Gilden's opinion that the symptoms manifested by the appellant in service
were those of MS, it is cumulative and repetitive of evidence already of
record. However, to the extent that the letter states that the
appellant's symptoms were not caused by infectious mononucleosis, it
provides evidence conflicting with the theory advanced by the Board."
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UNITED STATES COURT OF VETERANS APPEALS
No. 92-653
David G. Bielby, Appellant,
v.
Jesse Brown,
Secretary of Veterans Affairs, Appellee.
On Appeal from the Board of Veterans' Appeals
(Argued March 31, 1994 Decided December 20, 1994 )
James G. Zissler, with whom L. Poe Leggette was on the brief, for the
appellant.
Michele Russell Katina, with whom Mary Lou Keener, General Counsel;
Norman G. Cooper, Assistant General Counsel; and Adrienne Koerber, Deputy
Assistant General Counsel, were on the brief, for the appellee.
Before KRAMER, MANKIN, and IVERS, Judges. MANKIN, Judge, filed the
opinion of the Court in which IVERS, Judge, joined. KRAMER, Judge, filed
a separate concurring opinion.
MANKIN, Judge: David G. Bielby (appellant) appeals a March 3, 1992,
decision of the Board of Veterans' Appeals (BVA or Board) determining that
the appellant had not submitted new and material evidence to reopen a
previously and finally disallowed claim. The appellant claims the BVA
erred in determining that the newly submitted evidence was not new and
material evidence sufficient to reopen his claim. In response, the VA
asserts that the evidence submitted by the appellant is cumulative of that
already contained in the record, and is not capable of changing the
outcome of the case. We hold, however, that the evidence presented by the
appellant is both new and material.
The appellant further claims that the Board's procedures in utilizing
an independent medical examiner violated his procedural due process rights
. In response, the Secretary argues that there was no violation of the
appellant's due process rights and that the procedure used was appropriate
in all respects. We hold, based on nonconstitutional grounds, that the
procedure was questionable and direct the Board to obtain a new opinion
from a different independent medical examiner before readjudicating the
appellant's claims.
I. Factual Background
The appellant served on active military duty from June 1956 to May
1958. His service medical records for the period were largely destroyed
by the 1973 fire at the personnel records center in St. Louis. A
surviving medical record, however, does indicate that the appellant was
diagnosed and treated for infectious mononucleosis from April 12, 1957, to
June 1, 1957.
In May 1982, the appellant filed a claim for service connection of
multiple sclerosis (MS). In order to establish service connection for MS,
a claimant must demonstrate that the condition was incurred in or
aggravated by active military service. 38 U.S.C. ù 1131; 38 C.F.R. ù 3.
303 (1993). However, this means of demonstrating direct service
connection may be supplanted by satisfying the criteria for presumptive
service connection. MS will be presumed to have been incurred in service
if the claimant manifests the disease to a degree of ten percent or more
within seven years from the date of termination of service,
notwithstanding that there may be no evidence of the disease during
service. 38 U.S.C. ùù 1112, 1113, 1137; 38 C.F.R. ù 3.307 (1993), as
amended by 59 Fed. Reg. 5106, 5107 (1994); 38 C.F.R. ù 3.309 (1993), as
amended by 59 Fed. Reg. 5107 (1994).
In support of his claims for both direct and presumptive service
connection, the appellant submitted numerous lay statements, post-service
medical records, expert medical opinions, and a medical journal excerpt.
Each piece of evidence is addressed separately below.
The file contains numerous lay statements attesting to personal
knowledge of characteristic MS symptomatology the appellant exhibited
following his separation from service. The statements of these witnesses
reflected that they observed that the appellant
experienced dizziness, instability, and vision difficulties, including
blurred vision, and that he stumbled frequently and tired easily. A
former service comrade of the appellant recalled that the appellant had
been hospitalized for dizziness and vision difficulties while they were in
the service. He also recalled that the appellant experienced difficulty
in grasping objects. Another former comrade stated that the appellant had "
some vision problems." Finally, the appellant presented a letter, written
in 1966 by his former wife, describing psychiatric difficulties he
suffered during the presumptive period.
Post-service medical records and expert medical opinions discuss the
onset of his MS. In November 1982, Angie Voekel, M.D., and Jack Burks, M.
D., diagnosed the appellant as suffering from MS based upon his history.
As part of a neurologic consultation performed in January 1982, Dr. Karen
Hall noted that the appellant had been diagnosed in 1971 or 1972 with an
abrupt decrease in his right-eye vision. Dr. Hall also confirmed a prior
diagnosis that the appellant was suffering from a loss or destruction of
myelin, known as demyelinating disease. Webster's Medical Desk
Dictionary 170 (1986). Myelin is the material which forms the sheath
around the core of the nerve fiber. In March 1983, Dr. Hall determined,
after reviewing the appellant's medical records, history, and lay
statements, that he definitely had demonstrated symptoms of MS as early as
the mid-1950's, when he exhibited difficulties with double vision,
tinnitus, weakness, and difficulty with balance.
A statement from Dr. Jack S. Burks addressed whether the appellant's
early difficulties with double vision, dizziness, loss of sensation and
grip, and fatigue could be correlated with an onset of MS. Dr. Burks
stated, "Concerning [the] specific question as to whether these early
events were the early manifestations of [m]ultiple sclerosis, I cannot say
for certain. However, they are suggestive of early multiple sclerosis
symptoms. Statistically, his complaints . . . are among the most common
presenting symptoms of multiple sclerosis."
The appellant also submitted an excerpt from a medical journal
concluding that infectious mononucleosis could have neurologic
ramifications leading to degeneration of the myelin sheath.
However, based upon the Board's finding that the first symptoms of MS,
as described by one of the appellant's doctors, did not appear until 1971
or 1972, and that there was no documentation contemporaneous with service
or the presumptive period of the appellant's symptoms or concurrent
neurologic signs, the Board denied the appellant's claim in December 1986.
The Board also found that the appellant's in-service diagnosis of
infectious mononucleosis provided a more plausible explanation for the
symptoms he showed during service. Finally, it determined that the letter
from the appellant's former wife, while discussing psychiatric
difficulties, did not mention any pertinent physical symptoms which might
yield a conclusion that the appellant had been suffering from MS.
In March 1987, the appellant attempted to reopen his claim for
service connection. In support of his claim, the appellant submitted
additional medical records from 1977 regarding alleged MS symptoms
existing at that time. He also submitted additional documentation from Dr.
Voekel, Dr. Hall, Dr. Burks, Dr. John Simon, Jr., and Dr. W. Herrera
supporting a diagnosis that his MS had an onset date in the mid-1950's.
Additional lay statements regarding the appellant's alleged MS symptoms
prior to the expiration of the presumptive period in 1965 were also
submitted.
The file also contains correspondence provided by the appellant,
dated in June 1988, from Dr. Donald H. Gilden. Dr. Gilden stated, "[The
appellant] not only has multiple sclerosis, but most likely has been
suffering from MS since he was 19 years of age. His neurologic symptoms
at that time were consistent, if not characteristic of MS, and represented
his first exacerbation of MS."
In addition, the appellant offered numerous medical treatises which
discuss possible causes of MS, such as a link between mononucleosis and MS
or a link between Epstein-Barr virus (EBV) and MS, or a link between the
three. As a result of this submission, in July 1989 the VA directed an
engagement letter to the Milton S. Hershey Medical Center in Hershey,
Pennsylvania, requesting an independent medical opinion [hereinafter
opinion] regarding the cause and time of manifestation of the appellant's
MS. The independent medical expert (IME), Dr. Richard Tenser, was
directed to discuss possible etiological connections for MS and other
illnesses, and the relation of the appellant's history of symptoms to MS.
The exact text of this engagement letter is not known as a copy has never
been placed in the appellant's file. The engagement letter, however, did
not include a copy of the appellant's file. Nonetheless, without
reviewing any of the medical history contained in the appellant's file,
the IME issued an opinion declaring, "I cannot conclude that there is any
correlation between the infectious mononucleosis in 1957 and the
subsequent development of multiple sclerosis, which first started possibly
in the early 1970's."
The Board directed a second engagement letter to the IME on August 21,
1989, explaining that an opinion customarily was not rendered until after
the IME had received and reviewed the claimant's file. The appellant's
file was enclosed with this second engagement letter, which also requested
an opinion regarding the "probability that the Epstein Barr virus was an
etiological factor in the development of the in-service infectious
mononucleosis in 1957 and the subsequent development of multiple sclerosis,
definitively diagnosed in 1982 with a reported history of symptoms
including double vision, tinnitus, vertigo, and weakness in the early
1970's?" The IME responded to the Board's request in a letter dated
August 25, 1989, in which he confirmed his prior findings.
The appellant's claim for service connection was denied by a rating
decision dated October 1987. On appeal to the Board, the appellant made
three arguments. First, he contended that his MS became manifest during
service, masquerading as mononucleosis. Second, he asserted that MS
became manifest to a degree of ten percent or more during the presumptive
period. Finally, he argued that there was a causal relationship between
his in-service mononucleosis and his MS. Based upon the evidence of
record, the 1986 Board decision, and the expert opinion of the IME, the
Board's February 8, 1990, decision again denied service connection for MS.
The appellant failed to appeal this decision within the jurisdictional
period and it therefore became final. 38 U.S.C. ù 7266(a).
In September 1990, the appellant again sought to reopen his claim.
To support reopening, the appellant submitted letters from Dr. Gilden and
Dr. Ralph J. Warren, as well as a considerable list of medical treatises.
Dr. Gilden's letter reiterated his opinion that the appellant's MS had its
onset date during service. Dr. Gilden also opined that the appellant's
symptoms of dizziness, fatigue, and vision difficulties during service
were not due to infectious mononucleosis. Dr. Warren's letter, based in
part on the 1966 letter written by the appellant's former wife, opined
that the psychiatric difficulties exhibited by
the appellant during service and the presumptive period were symptoms of
MS. Finally, the list of treatises submitted by the appellant discussed
possible causes of MS. The appellant also used the treatises to call into
question the veracity of the conclusion reached by the IME, as well as the
integrity of the IME procedure and whether the IME was truly independent
of the Board. The Agency of Original Jurisdiction (AOJ) found that most
of the evidence submitted by the appellant was new but not material.
The appellant then submitted copies of several treatises discussing
the relationship between MS and mononucleosis, MS and neuropsychiatric
disorders, and MS and other infectious diseases from the list of treatises
previously submitted. An August 1991 rating decision continued to find
that new and material evidence had not been submitted. The appellant
appealed to the Board, which found in its March 3, 1992, decision that the
appellant had submitted neither new nor material evidence. This appeal
followed.
II. Analysis
A. New and Material Evidence
Under 38 U.S.C. ù 7104(b), a final decision by the Board on a given
claim "may not thereafter be reopened and allowed and a claim based upon
the same factual basis may not be considered." However, 38 U.S.C. ù 5108
provides that a previously and finally disallowed claim may be reopened
where new and material evidence has been presented. In order to determine
if a claimant has presented new and material evidence, the Board must
conduct a two-step analysis. Manio v. Derwinski, 1 Vet.App. 140, 145 (
1991).
Whether newly submitted evidence is new and material is a question of
law which this Court reviews de novo. Masors v. Derwinski, 2 Vet.App.
181, 185 (1992). The new and material analysis requires that two findings
be made to conclude that the evidence is new and material--the Court must
find that the evidence, first, is new, and, second, that it is material.
Colvin v. Derwinski, 1 Vet.App. 171, 174 (1991). Evidence is new where it
is not merely cumulative or repetitious of evidence already of record.
Id. at 174. If the evidence is not new, there is no need determine
whether the evidence is material. See Manio, 1 Vet.App. at 145.
We find that the evidence presented by the appellant is both new and
material. Specifically, we find that the May 1990 letter from Dr. Gilden
is new evidence because it makes two main points. First, it reiterates
his June 1988 Dr. Gilden's opinion that the appellant manifested symptoms
of MS in service. Second, the letter provides Dr. Gilden's opinion that
appellant's symptoms were not the result of infectious mononucleosis as
advanced by the Board. To the extent that the letter restates Dr.
Gilden's opinion that the symptoms manifested by the appellant in service
were those of MS, it is cumulative and repetitive of evidence already of
record. However, to the extent that the letter states that the
appellant's symptoms were not caused by infectious mononucleosis, it
provides evidence conflicting with the theory advanced by the Board. The
appellant had not previously submitted a professional opinion
contradicting this determination of the Board. Consequently, this
evidence is new.
We also find that the August 1990 letter from Dr. Warren is new
evidence. Dr. Warren opined that the psychiatric difficulties manifested
by the appellant during service and the presumptive period were symptoms
of MS. No such medical opinion had previously been of record, and,
therefore, we find that this evidence is new evidence.
Finally, the medical treatises submitted by the appellant after the
1986 denial are new evidence. None of the medical treatises submitted by
the appellant has previously been a part of the record. Furthermore, they
provide a new basis of authority for granting service connection in that
the treatises demonstrate several medically accepted causes for MS. In
short, the appellant has presented the treatises to illustrate that
disorders formerly unacceptable as causes are now accepted as causes for
MS. Thus, while the appellant has previously argued that a number of
different disorders may have been the cause of his MS, and the treatises
address those previous arguments, we find that they are presented for the
purpose of demonstrating that the weight of medical authority has changed,
and that the Board should change its determination to accord with that
authority. Therefore, we hold that the medical treatises are new evidence.
Newly presented evidence must also be material in order to constitute
evidence sufficient to reopen a claim. Colvin, 1 Vet.App. at 174. New
evidence is also material evidence where there is a reasonable possibility
that the new evidence, when viewed in the
context of all the evidence, both new and old, would change the outcome.
Id. For the sole purpose of assessing whether there is new and material
evidence to reopen a claim, the credibility of that evidence is presumed.
Justus v. Principi, 3 Vet.App. 510, 512 (1992). Once a determination as
to whether the evidence is sufficient to reopen a claim has been made, the
weight of the evidence to establish service connection is a question of
fact for the Board. Cox v. Brown, 5 Vet.App. 95, 98 (1993). Thus, new
and material evidence need not establish service connection for the
claimed disability, but need only create a reasonable possibility of
service connection for the sole purpose of reopening. Id.
The appellant has presented three theories to support his assertion
that he should be service connected. First, he asserts that MS was
manifested in service masquerading as infectious mononucleosis. Second,
he contends that MS was manifested during the presumptive period. Finally,
the appellant argues that the virus that causes mononucleosis also causes
MS.
The May 1990 letter of Dr. Gilden supports the appellant's first
contention that MS was manifested during service masquerading as
mononucleosis. It provides a medical opinion that contradicts the
findings of the Board used to deny service connection for incurrence in
service. After the appellant has satisfied the burden of presenting new
and material evidence, the letter may then be considered of sufficient
weight to the fact finder to place the evidence in relative equipoise on
this issue. Where the evidence is in relative equipoise, the benefit of
the doubt must favor the appellant. 38 U.S.C. ù 1154(b); 38 C.F.R. ù 3.
102 (1993). Thus, there is a reasonable possibility that the new evidence,
when considered with all the evidence, both old and new, would change the
outcome on this issue.
The August 1990 letter of Dr. Warren supports the appellant's second
assertion that MS was manifested during the presumptive period. Dr.
Warren's opinion is based upon the evidence submitted previously by the
appellant, principally on the observations of the appellant's former wife.
The appellant's former wife observed in a letter dated March 18, 1966,
that the appellant was suffering from several psychiatric difficulties;
however, it did not discuss any physical disabilities. In its December
1986 decision, the Board concluded that this letter was not probative of
presumptive service connection because it did not suggest any physical
manifestations of MS.
The letter of Dr. Warren, although building on the former wife's
letter, presents an alternative theory of presumptive service connection.
Dr. Warren opined that the appellant's psychiatric problems were symptoms
of the onset of MS, a theory that the Board has not considered previously.
This evidence suggests that there were symptoms of MS during the
presumptive period, and constitutes a medical opinion which, when
considered with the other evidence of record, provides a reasonable
possibility that the outcome of this issue would be different.
The Secretary seeks to disqualify this evidence based on three
arguments. First, the Secretary, citing Black v. Brown, 5 Vet.App. 177 (
1993), and Swann v. Brown, 5 Vet.App. 229 (1993), argues that the evidence
should be disqualified because Dr. Warren relied upon evidence which was
related to him by the appellant, and because Dr. Warren's psychiatric
diagnosis was made more than twenty years after termination of service.
The Secretary further implies that the evidence is somehow unreliable
because it was based upon evidence which was not contemporaneous with the
presumptive period. However, the opinion of Dr. Warren did not rely on
evidence solely related by the appellant, or upon evidence which was not
recorded contemporaneously with the presumptive period. The record
reflects that the observations upon which Dr. Warren relied were those of
the appellant's former wife and that those observations were made
contemporaneously with the presumptive period.
Furthermore, 38 C.F.R. ù 3.307(c) requires that to demonstrate
presumptive service connection for MS, there be shown "by acceptable
medical or lay evidence characteristic manifestations of the disease to
the required degree, followed without unreasonable time lapse by definite
diagnosis." The Secretary essentially argues that there was unreasonable
time lapse between the observation by the appellant's former wife and the
diagnosis. However, MS is a disease with a prolonged course characterized
by remissions and relapses over a course of many years. Dorland's
Illustrated Medical Dictionary 1496, 443 (27 ed. 1988). Because of the
difficulty in diagnosing MS, it does not seem that the lapse of time
between the appellant's former wife's observations and the diagnosis of Dr.
Warren is unreasonable. This, however, is ultimately a question of fact
for the Board to address on remand.
Second, the Secretary asserts that the evidence must be disqualified
because the AOJ has previously considered observations of the appellant's
former wife. The Secretary cites Elkins v. Brown, 5 Vet.App. 474 (1993),
for the proposition that evidence that has been previously considered and
rejected by the AOJ cannot constitute the basis of a new and material
medical opinion. While the Secretary is correct in his assertion of the
general principle, the principle finds no application in this case. The
Board rejected the observations of the appellant's former wife as
indicative of the onset of MS during the presumptive period because those
observations did not contain any evidence of physical symptoms. The
appellant is now asserting a new basis of establishing service connection,
i.e., that psychiatric symptoms manifested by the appellant during the
presumptive period were symptoms of MS. Neither the Board nor the AOJ has
yet to pass on this issue, and the Secretary is directed to do so on
remand.
Third, the Secretary, citing Paller v. Principi, 3 Vet.App. 535 (1992
), contends that Dr. Warren's letter is merely a corroboration of
previously considered and rejected evidence and is, therefore, cumulative.
However, Dr. Warren's letter provides a new theory under which the
appellant may be presumptively service connected. It is not rehashing or
providing further support for previously considered and rejected evidence.
Thus, this evidence may not be said to be cumulative, and the Secretary
will have the opportunity to consider it on remand.
The appellant's second submission of medical treatises supports and
expands on his third argument for service connection that the virus that
causes mononucleosis also causes MS. The treatises provide support for a
medical theory which the Board has rejected as lacking support in the
medical community. The appellant has attacked this determination through
the presentation of evidence tending to show that his theory of causation
is not groundless as the Board has suggested. In fact, the evidence
presented by the appellant provides support for the theory that there may
be a causal relationship between MS and mononucleosis. Using the evidence
in this fashion is thus different from using it for the sole purpose of
disputing the Board's finding that the appellant's MS was not causally
related to his mononucleosis. Rather, it is used to dispute the validity
of the Board's conclusion that medical evidence or research, in general,
does not support the appellant's contention
that MS may be causally related to mononucleosis. Accordingly, this
evidence provides a reasonable possibility that the Board's determination
would be different upon remand.
B. Independent Medical Examination
The appellant also contends that the Board and VA denied him
procedural due process. Specifically, the appellant claims the IME was
biased by the VA's engagement letter and rendered a decision without
considering the record. It is a fundamental and longstanding principle of
judicial restraint, however, that the courts will avoid reaching
constitutional grounds where nonconstitutional grounds will obviate the
need to do so. Jean v. Nelson, 472 U.S. 846, 854 (1988); accord Arkansas
Louisiana Gas Co. v. Department of Public Utilities, 304 U.S. 61, 64 (
1938). It is on these nonconstitutional grounds that we will find that
the record supports the appellant's contention that the IME was
questionable.
In this instance, the VA provided the IME with both a hypothetical
question and the appellant's claims file. However, under the
circumstances, neither the hypothetical question nor the claims file
constituted a proper basis for an expert opinion upon which the BVA could
rely. There are few rules governing the procedure of obtaining and
utilizing an IME. The regulations state simply:
When warranted by the medical complexity or controversy
involved in a pending claim, an advisory medical opinion may be
obtained from one or more medical experts who are not employees of
the VA. Opinions shall be obtained from recognized medical schools,
universities, clinics or medical institutions with which arrangements
for such opinions have been made, and an appropriate official of the
institution shall select the individual expert(s) to render an
opinion . . . . Approval [for an IME] shall be granted only upon a
determination . . . that the issue under consideration poses a
medical problem of such obscurity or complexity, or has generated
such controversy in the medical community at large, as to justify
solicitation of an independent medical opinion. When approval has
been granted, the Compensation and Pension Service shall obtain the
opinion.
38 C.F.R. ù 3.328 (1993).
The VA Adjudication Procedure Manual, Part VI, para. 1.04 (Sept. 21,
1992) [hereinafter M21-1] states:
An advisory medical opinion may be obtained from medical
experts who are not employees of the VA if warranted by the medical
complexity or controversy involved in a pending claim. A request for
an independent medical opinion in conjunction with a pending claim
may be initiated by the regional office, by the claimant, or by his
or her representative. This request must be submitted in writing and
must set forth in detail the reasons why the opinion is necessary
. . . . If it is determined that an independent medical opinion is
warranted, the Compensation and Pension Service will obtain the
opinion.
Id.
We recognize that as a general principle the Federal Rules of
Evidence do not apply to proceedings before the Regional Office (RO), the
Board, or this Court. See Flynn v. Brown, 6 Vet.App. 500, 503 (1994) (
Rules of hearsay evidence do not apply to proceedings before Board).
However, this Court has relied on the Federal Rules of Evidence as a
source of persuasive authority in establishing rules of procedural
fairness to be applied in VA and Board proceedings. Thurber v. Brown, 5
Vet.App. 119, 126 (1993) (Fed. R. Evid. used as persuasive authority in
establishing procedural rule of fairness regarding notice and opportunity
to be heard); Austin v. Brown, 6 Vet.App. 547, 551 (1994). Therefore, we
will again turn to the Federal Rules of Evidence as a source of
persuasive authority.
The Federal Rules of Evidence have liberalized the standards by which
an expert may testify. Fed. R. Evid. 705 and committee notes. Under
Rule 705 an "expert may testify in terms of opinion or Previous DocumentinferenceNext Hit and give
reasons therefor without prior disclosure of the underlying facts or date,
unless the court requires otherwise." Nonetheless, Rule 703 requires that
"[t]he facts or data in the particular case upon which an expert bases an
opinion or Previous HitinferenceNext Document may be those perceived by or made known to the expert
at or before the hearing." This Rule permits the expert to base his
opinion on, for example, a hypothetical question setting out sufficient
facts of the case, or a review of the case file, or upon first hand
observation of evidence at the scene or in the courtroom. Fed. R. Evid.
703 and Committee Notes.
First, it appears from the record that the IME's initial opinion in
this case was rendered without benefit of review of the appellant's file.
The purpose of utilizing an expert, such as an IME, is to assist the trier
of fact in understanding complex evidentiary
materials in a claim. 38 C.F.R. ù 3.328; see also Daubert v. Merrell
Dow Pharmaceuticals, Inc., 113 S.Ct. 2786, 2795 (1993) (expert's role is
to assist trier of fact understand complex issues in case); see also Fed.
R. Evid. 702. In fact, in other federal courts under Fed. R. Evid. 703,
an expert's opinion is not competent unless it is based upon facts or data
in the particular case then under consideration. Burns v. Secretary of
Health and Human Services, 3 F.3d 415, 417 (Fed. Cir. 1993); Brown v.
Parker-Hannifan Corp., 919 F.2d 308, 311 (5th Cir. 1990); Calhoun v.
Honda Motor Co., Ltd., 738 F.2d 126, 131-32 (6th Cir. 1984); Horton v. W.
T. Grant Co., 537 F.2d 1215, 1218 (4th Cir. 1976); United States v. R.J.
Reynolds Tobacco Co., 416 F. Supp. 313, 315 (D.N.J. 1976); see also Fed.
R. Evid. 703 advisory committee's note. In order for an expert's opinion
to be based upon the facts or data of a case, those facts or data must be
disclosed to or perceived by the expert prior to rendering an opinion,
otherwise the opinion is merely conjecture and of no assistance to the
trier of fact. Horton, 537 F.2d at 1218. Since principles of service
connection require a showing that a disability was incurred in or
aggravated by military service, 38 C.F.R. ù 3.303 (1993), this causal
requirement dictates that an IME's failure to, at a minimum, review a
claimant's file as to military service and medical conditions while in
service, renders any opinion uninformed and valueless on the issue of
causation. We hold that the IME's initial opinion in this matter is
without evidentiary value as he failed to review the appellant's record,
and thus had no basis of fact or data upon which to render an expert
opinion as to any etiological relationships involved in this appellant's
specific situation.
Next, the Board presented the IME with a flawed hypothetical question
. See Embrey v. Bowen, 849 F.2d 418, 423 (9th Cir. 1988) (expert's
opinion in Social Security disability case could not be relied upon
because hypothetical question posed to expert did not accurately reflect
the claimant's disabilities and other limitations). The hypothetical
question may not suggest an answer or limit the field of inquiry by the
expert. See id. Rather, the engagement letter must pose to the IME a
hypothetical question which fully and accurately reflects the disability
picture, including both objectively demonstrated disabilities and
subjectively claimed pain or other disability. See Gamer v. Secretary of
Health and Human Services, 815 F.2d 1275, 1279-80 (1987) (hypothetical
questions posed to expert in
Social Security disability case must set out all of claimant's
disabilities, including those supported by medical evidence as well as
subjective claims of pain). If the engagement letter fails to set forth
all of the claimant's impairments, both objective and subjective, or fails
to set forth any other relevant factual detail, such as the time period
during which symptomatology manifested itself, the IME cannot render an
opinion which is supported by a sufficient prior review of and plausible
basis in the record. See DeLorme v. Sullivan, 924 F.2d 841 (9th Cir. 1991
) (substantial evidence supported administrative law judge's opinion based
upon opinion of vocational expert which was, in turn, based upon properly
developed hypothetical question setting forth all of claimant's
disabilities); see also Janeway v. Secretary of Health and Human Services,
702 F. Supp. 795, 797 (C.D. Cal. 1988) (if hypothetical question posed to
expert in Social Security disability case does not set forth all of
claimant's impairments, expert's opinion cannot be based upon substantial
evidence); see also Gilbert v. Derwinski, 1 Vet.App. 49, 52-53 (1990) (
Court may overturn Board's findings of fact where they are not supported
by a plausible basis in the record).
In this case, the Board constrained the IME's scope of inquiry,
thereby limiting his investigation and tainting the results. The Board's
second engagement letter stated that symptomatology characteristic of MS
had manifested itself only in the early 1970's, while there was other
evidence of record providing an earlier date. The Board directed the IME
to address the issue regarding the etiologic relationship of EBV,
mononucleosis, and MS only, while a crucial consideration at the time was
the appellant's claim for presumptive service connection. The statute, 38
U.S.C. ù 7109, and regulation, 38 C.F.R. ù 20.901, governing the
provision and use of an IME leaves to the discretion of the Board the
necessity of obtaining an opinion. Thus, the Board's selection of issues
to be addressed by the IME is entirely discretionary but it cannot limit
background information so as to prejudice the IME. In this instance, the
Board presented the IME with a hypothetical question that incorrectly
limited the possible date of onset of the appellant's claimed MS. The
Board's limiting of the facts stated to the IME may have prevented him
from rendering a fully informed and neutral opinion.
Thus, we conclude that the BVA failed to provide the correct
hypothetical situation to be addressed by the IME, and that the IME
additionally failed to consider the correct facts as they were known at
the time of the adjudication because he did not review the record prior to
rendering an opinion. Consequently, the Board will obtain a new opinion
from a different IME as part of readjudicating the appellant's reopened
claim.
C. Appellant's Claim of Clear and Unmistakable Error
The record reflects that the appellant submitted a letter dated
September 1990 to the VA following the 1990 BVA decision, using the phrase
"[O]n the issue of a 'clear and unmistakable error'" and citing 38 C.F.R.
ù 3.105(a) (1993). He further alleged that the BVA applied the wrong law
to his claim, and in support thereof, he cited a series of regulations,
alleging that "all require acceptance of and consideration of lay evidence
." Those regulations are 38 C.F.R. ù 3.303(a) (principles related to
service connection); 38 C.F.R. ù 3.103(a) (duty to assist a claimant); 38
C.F.R. ù 3.103(b) (right to notice affecting the payments of benefits or
granting of relief); 38 C.F.R. ù 3.307(b) (evidentiary basis may be
established by medical evidence, competent lay evidence or both); and 38 C.
F.R. ù 3.303(b) (with chronic diseases shown in service or within the
presumptive period to permit a finding of service connection, subsequent
manifestations of the same disease are service connected unless attributed
to other causes).
The appellant's substantive appeal (Form 1-9), received on March 27,
1991, made the same allegations using somewhat different terms and using
some different citations to the regulations. The appellant alleged in a
paragraph entitled "ERRORS THE VA MADE IN APPLYING THE LAW" that "No
effort has ever been made to adhere [to] Title 38 [C.F.R. ùù] 3.307[](b),
3.309, 3-303 [sic], 3.102, 3.103(b), or 3.326." These are in effect, the
same allegations made in the 1990 letter to the RO.
A claim of CUE must be specific and not a mere broad allegation of a
failure to follow the regulations, or the failure to give due process, or
any other general, nonspecific claim of CUE. Fugo v. Brown, 6 Vet.App.
40, 44 (1993); Russell v. Principi, 3 Vet.App. 310 (1992) (an appellant
must assert "more than a disagreement as to how the facts were weighed or
evaluated). The appellant may not simply allege CUE on the basis that
prior
adjudications had improperly weighed and evaluated the evidence. Fugo,
6 Vet.App. at 43-44. Neither the appellant's September 1990 letter nor
his Form 1-9 makes any assertions that compliance with the cited
regulations would have manifestly changed the outcome of his case. Thus,
as to the 1990 BVA decision, CUE was not pled in accordance with the
Court's standard in Fugo. However, since the United States Court of
Appeals for the Federal Circuit recently held that this Court's authority
to review CUE under 38 C.F.R. ù 3.105(a)(1993) "relat[es] only to review
of AOJ adjudicatory decisions and not to those of the Board," Smith v.
Brown, __ F.3d __, __, No. 93-7043, slip op. at 28-9 (August 12, 1994),
this Court lacks jurisdiction to review the appellant's allegations of CUE
. Id.
III. Conclusion
Having considered the appellant's brief and reply brief, the
Secretary's brief, and the record, the Court denies the Secretary's motion
to strike as moot, and VACATES and REMANDS the matter. We hold that the
evidence presented by the appellant is new and material evidence. The
Board shall consider the sufficiency of this evidence in conjunction with
the old evidence to support the appellant's claim for both presumptive and
direct service connection on remand. The Board shall obtain a new
independent medical opinion in a manner consistent with this opinion prior
to readjudicating the appellant's claim.
KRAMER, Judge, concurring: I concur to the extent indicated.
As to Part II(A), the letters written by Dr. Gilden and Dr. Warren
constitute new and material evidence. Pursuant to 38 U.S.C. ù 5108,
the Secretary must reopen a previously and finally disallowed claim when "
new and material" evidence is presented or secured with respect to that
claim. See 38 U.S.C. ù 7104(b). "New" evidence is that which is not
merely cumulative of other evidence of record. Cox v. Brown, 5 Vet.App.
95, 98 (1993). "Material" evidence is that which is relevant to and
probative of the issue at hand, and which provides a reasonable
possibility that the new evidence, when viewed in the context of all the
evidence, both new and old, would change the outcome of the case. Id.
Both Dr. Gilden's and Dr. Warren's letters: (1) provide information which
is not cumulative of other
evidence of record, (2) are relevant to and probative of the issue of
whether the appellant's multiple sclerosis (MS) became manifest during the
presumptive period, and (3) provide a reasonable possibility, when viewed
in context of all the evidence of record, that the appellant could be
entitled to presumptive service connection for MS. Both letters are
therefore new and material.
As to Parts II(B), (C), on the specific facts of this case, whether
the two independent medical opinions violated the fair process
requirements of Thurber v. Brown, 5 Vet.App. 119, 120-21 (1993), and
Austin v. Brown, 6 Vet.App. 547, 551-52 (1994), is not a proper subject
for review by this Court. While the use of these two medical opinions may
have created error in the February 1990 Board of Veterans' Appeal decision,
the Court has no jurisdiction over this decision because: (1) the Notice
of Disagreement which led to that decision was filed prior to November 18,
1988 (Veterans' Judicial Review Act, Pub. L. No. 100-687, ù 402, 102 Stat.
4105, 4122 (1988) (found at 38 U.S.C. ù 7251 note)); (2) no timely
Notice of Appeal was filed as to that decision (38 U.S.C. ù 7266); and (3)
it cannot be the subject of review for clear and unmistakable error (CUE) (
Smith (William A.) v. Brown, __ F.3d __, No. 93-7043 (Fed. Cir. Aug. 12,
1994)). Thus, error in the February 1990 decision cannot be a predicate
either for ordering a new medical opinion or for CUE.
Nevertheless, because new and material evidence has been submitted, the
appellant's claim is of necessity well grounded, thus triggering the duty
to assist. See Gobber v. Derwinski, 2 Vet.App. 470, 472 (1992); 38 U.S.C.
ù 5107. On that basis, a new medical examination/opinion should be
ordered.
"Evidence is new where it is not merely cumulative or repetitious of evidence already of record. Id. at 174. If the evidence is not new, there is no need determine whether the evidence is material. See Manio, 1 Vet.App. at 145.
We find that the evidence presented by the appellant is both new and
material. Specifically, we find that the May 1990 letter from Dr. Gilden
is new evidence because it makes two main points. First, it reiterates
his June 1988 Dr. Gilden's opinion that the appellant manifested symptoms
of MS in service. Second, the letter provides Dr. Gilden's opinion that
appellant's symptoms were not the result of infectious mononucleosis as
advanced by the Board. To the extent that the letter restates Dr.
Gilden's opinion that the symptoms manifested by the appellant in service
were those of MS, it is cumulative and repetitive of evidence already of
record. However, to the extent that the letter states that the
appellant's symptoms were not caused by infectious mononucleosis, it
provides evidence conflicting with the theory advanced by the Board."
====================================
UNITED STATES COURT OF VETERANS APPEALS
No. 92-653
David G. Bielby, Appellant,
v.
Jesse Brown,
Secretary of Veterans Affairs, Appellee.
On Appeal from the Board of Veterans' Appeals
(Argued March 31, 1994 Decided December 20, 1994 )
James G. Zissler, with whom L. Poe Leggette was on the brief, for the
appellant.
Michele Russell Katina, with whom Mary Lou Keener, General Counsel;
Norman G. Cooper, Assistant General Counsel; and Adrienne Koerber, Deputy
Assistant General Counsel, were on the brief, for the appellee.
Before KRAMER, MANKIN, and IVERS, Judges. MANKIN, Judge, filed the
opinion of the Court in which IVERS, Judge, joined. KRAMER, Judge, filed
a separate concurring opinion.
MANKIN, Judge: David G. Bielby (appellant) appeals a March 3, 1992,
decision of the Board of Veterans' Appeals (BVA or Board) determining that
the appellant had not submitted new and material evidence to reopen a
previously and finally disallowed claim. The appellant claims the BVA
erred in determining that the newly submitted evidence was not new and
material evidence sufficient to reopen his claim. In response, the VA
asserts that the evidence submitted by the appellant is cumulative of that
already contained in the record, and is not capable of changing the
outcome of the case. We hold, however, that the evidence presented by the
appellant is both new and material.
The appellant further claims that the Board's procedures in utilizing
an independent medical examiner violated his procedural due process rights
. In response, the Secretary argues that there was no violation of the
appellant's due process rights and that the procedure used was appropriate
in all respects. We hold, based on nonconstitutional grounds, that the
procedure was questionable and direct the Board to obtain a new opinion
from a different independent medical examiner before readjudicating the
appellant's claims.
I. Factual Background
The appellant served on active military duty from June 1956 to May
1958. His service medical records for the period were largely destroyed
by the 1973 fire at the personnel records center in St. Louis. A
surviving medical record, however, does indicate that the appellant was
diagnosed and treated for infectious mononucleosis from April 12, 1957, to
June 1, 1957.
In May 1982, the appellant filed a claim for service connection of
multiple sclerosis (MS). In order to establish service connection for MS,
a claimant must demonstrate that the condition was incurred in or
aggravated by active military service. 38 U.S.C. ù 1131; 38 C.F.R. ù 3.
303 (1993). However, this means of demonstrating direct service
connection may be supplanted by satisfying the criteria for presumptive
service connection. MS will be presumed to have been incurred in service
if the claimant manifests the disease to a degree of ten percent or more
within seven years from the date of termination of service,
notwithstanding that there may be no evidence of the disease during
service. 38 U.S.C. ùù 1112, 1113, 1137; 38 C.F.R. ù 3.307 (1993), as
amended by 59 Fed. Reg. 5106, 5107 (1994); 38 C.F.R. ù 3.309 (1993), as
amended by 59 Fed. Reg. 5107 (1994).
In support of his claims for both direct and presumptive service
connection, the appellant submitted numerous lay statements, post-service
medical records, expert medical opinions, and a medical journal excerpt.
Each piece of evidence is addressed separately below.
The file contains numerous lay statements attesting to personal
knowledge of characteristic MS symptomatology the appellant exhibited
following his separation from service. The statements of these witnesses
reflected that they observed that the appellant
experienced dizziness, instability, and vision difficulties, including
blurred vision, and that he stumbled frequently and tired easily. A
former service comrade of the appellant recalled that the appellant had
been hospitalized for dizziness and vision difficulties while they were in
the service. He also recalled that the appellant experienced difficulty
in grasping objects. Another former comrade stated that the appellant had "
some vision problems." Finally, the appellant presented a letter, written
in 1966 by his former wife, describing psychiatric difficulties he
suffered during the presumptive period.
Post-service medical records and expert medical opinions discuss the
onset of his MS. In November 1982, Angie Voekel, M.D., and Jack Burks, M.
D., diagnosed the appellant as suffering from MS based upon his history.
As part of a neurologic consultation performed in January 1982, Dr. Karen
Hall noted that the appellant had been diagnosed in 1971 or 1972 with an
abrupt decrease in his right-eye vision. Dr. Hall also confirmed a prior
diagnosis that the appellant was suffering from a loss or destruction of
myelin, known as demyelinating disease. Webster's Medical Desk
Dictionary 170 (1986). Myelin is the material which forms the sheath
around the core of the nerve fiber. In March 1983, Dr. Hall determined,
after reviewing the appellant's medical records, history, and lay
statements, that he definitely had demonstrated symptoms of MS as early as
the mid-1950's, when he exhibited difficulties with double vision,
tinnitus, weakness, and difficulty with balance.
A statement from Dr. Jack S. Burks addressed whether the appellant's
early difficulties with double vision, dizziness, loss of sensation and
grip, and fatigue could be correlated with an onset of MS. Dr. Burks
stated, "Concerning [the] specific question as to whether these early
events were the early manifestations of [m]ultiple sclerosis, I cannot say
for certain. However, they are suggestive of early multiple sclerosis
symptoms. Statistically, his complaints . . . are among the most common
presenting symptoms of multiple sclerosis."
The appellant also submitted an excerpt from a medical journal
concluding that infectious mononucleosis could have neurologic
ramifications leading to degeneration of the myelin sheath.
However, based upon the Board's finding that the first symptoms of MS,
as described by one of the appellant's doctors, did not appear until 1971
or 1972, and that there was no documentation contemporaneous with service
or the presumptive period of the appellant's symptoms or concurrent
neurologic signs, the Board denied the appellant's claim in December 1986.
The Board also found that the appellant's in-service diagnosis of
infectious mononucleosis provided a more plausible explanation for the
symptoms he showed during service. Finally, it determined that the letter
from the appellant's former wife, while discussing psychiatric
difficulties, did not mention any pertinent physical symptoms which might
yield a conclusion that the appellant had been suffering from MS.
In March 1987, the appellant attempted to reopen his claim for
service connection. In support of his claim, the appellant submitted
additional medical records from 1977 regarding alleged MS symptoms
existing at that time. He also submitted additional documentation from Dr.
Voekel, Dr. Hall, Dr. Burks, Dr. John Simon, Jr., and Dr. W. Herrera
supporting a diagnosis that his MS had an onset date in the mid-1950's.
Additional lay statements regarding the appellant's alleged MS symptoms
prior to the expiration of the presumptive period in 1965 were also
submitted.
The file also contains correspondence provided by the appellant,
dated in June 1988, from Dr. Donald H. Gilden. Dr. Gilden stated, "[The
appellant] not only has multiple sclerosis, but most likely has been
suffering from MS since he was 19 years of age. His neurologic symptoms
at that time were consistent, if not characteristic of MS, and represented
his first exacerbation of MS."
In addition, the appellant offered numerous medical treatises which
discuss possible causes of MS, such as a link between mononucleosis and MS
or a link between Epstein-Barr virus (EBV) and MS, or a link between the
three. As a result of this submission, in July 1989 the VA directed an
engagement letter to the Milton S. Hershey Medical Center in Hershey,
Pennsylvania, requesting an independent medical opinion [hereinafter
opinion] regarding the cause and time of manifestation of the appellant's
MS. The independent medical expert (IME), Dr. Richard Tenser, was
directed to discuss possible etiological connections for MS and other
illnesses, and the relation of the appellant's history of symptoms to MS.
The exact text of this engagement letter is not known as a copy has never
been placed in the appellant's file. The engagement letter, however, did
not include a copy of the appellant's file. Nonetheless, without
reviewing any of the medical history contained in the appellant's file,
the IME issued an opinion declaring, "I cannot conclude that there is any
correlation between the infectious mononucleosis in 1957 and the
subsequent development of multiple sclerosis, which first started possibly
in the early 1970's."
The Board directed a second engagement letter to the IME on August 21,
1989, explaining that an opinion customarily was not rendered until after
the IME had received and reviewed the claimant's file. The appellant's
file was enclosed with this second engagement letter, which also requested
an opinion regarding the "probability that the Epstein Barr virus was an
etiological factor in the development of the in-service infectious
mononucleosis in 1957 and the subsequent development of multiple sclerosis,
definitively diagnosed in 1982 with a reported history of symptoms
including double vision, tinnitus, vertigo, and weakness in the early
1970's?" The IME responded to the Board's request in a letter dated
August 25, 1989, in which he confirmed his prior findings.
The appellant's claim for service connection was denied by a rating
decision dated October 1987. On appeal to the Board, the appellant made
three arguments. First, he contended that his MS became manifest during
service, masquerading as mononucleosis. Second, he asserted that MS
became manifest to a degree of ten percent or more during the presumptive
period. Finally, he argued that there was a causal relationship between
his in-service mononucleosis and his MS. Based upon the evidence of
record, the 1986 Board decision, and the expert opinion of the IME, the
Board's February 8, 1990, decision again denied service connection for MS.
The appellant failed to appeal this decision within the jurisdictional
period and it therefore became final. 38 U.S.C. ù 7266(a).
In September 1990, the appellant again sought to reopen his claim.
To support reopening, the appellant submitted letters from Dr. Gilden and
Dr. Ralph J. Warren, as well as a considerable list of medical treatises.
Dr. Gilden's letter reiterated his opinion that the appellant's MS had its
onset date during service. Dr. Gilden also opined that the appellant's
symptoms of dizziness, fatigue, and vision difficulties during service
were not due to infectious mononucleosis. Dr. Warren's letter, based in
part on the 1966 letter written by the appellant's former wife, opined
that the psychiatric difficulties exhibited by
the appellant during service and the presumptive period were symptoms of
MS. Finally, the list of treatises submitted by the appellant discussed
possible causes of MS. The appellant also used the treatises to call into
question the veracity of the conclusion reached by the IME, as well as the
integrity of the IME procedure and whether the IME was truly independent
of the Board. The Agency of Original Jurisdiction (AOJ) found that most
of the evidence submitted by the appellant was new but not material.
The appellant then submitted copies of several treatises discussing
the relationship between MS and mononucleosis, MS and neuropsychiatric
disorders, and MS and other infectious diseases from the list of treatises
previously submitted. An August 1991 rating decision continued to find
that new and material evidence had not been submitted. The appellant
appealed to the Board, which found in its March 3, 1992, decision that the
appellant had submitted neither new nor material evidence. This appeal
followed.
II. Analysis
A. New and Material Evidence
Under 38 U.S.C. ù 7104(b), a final decision by the Board on a given
claim "may not thereafter be reopened and allowed and a claim based upon
the same factual basis may not be considered." However, 38 U.S.C. ù 5108
provides that a previously and finally disallowed claim may be reopened
where new and material evidence has been presented. In order to determine
if a claimant has presented new and material evidence, the Board must
conduct a two-step analysis. Manio v. Derwinski, 1 Vet.App. 140, 145 (
1991).
Whether newly submitted evidence is new and material is a question of
law which this Court reviews de novo. Masors v. Derwinski, 2 Vet.App.
181, 185 (1992). The new and material analysis requires that two findings
be made to conclude that the evidence is new and material--the Court must
find that the evidence, first, is new, and, second, that it is material.
Colvin v. Derwinski, 1 Vet.App. 171, 174 (1991). Evidence is new where it
is not merely cumulative or repetitious of evidence already of record.
Id. at 174. If the evidence is not new, there is no need determine
whether the evidence is material. See Manio, 1 Vet.App. at 145.
We find that the evidence presented by the appellant is both new and
material. Specifically, we find that the May 1990 letter from Dr. Gilden
is new evidence because it makes two main points. First, it reiterates
his June 1988 Dr. Gilden's opinion that the appellant manifested symptoms
of MS in service. Second, the letter provides Dr. Gilden's opinion that
appellant's symptoms were not the result of infectious mononucleosis as
advanced by the Board. To the extent that the letter restates Dr.
Gilden's opinion that the symptoms manifested by the appellant in service
were those of MS, it is cumulative and repetitive of evidence already of
record. However, to the extent that the letter states that the
appellant's symptoms were not caused by infectious mononucleosis, it
provides evidence conflicting with the theory advanced by the Board. The
appellant had not previously submitted a professional opinion
contradicting this determination of the Board. Consequently, this
evidence is new.
We also find that the August 1990 letter from Dr. Warren is new
evidence. Dr. Warren opined that the psychiatric difficulties manifested
by the appellant during service and the presumptive period were symptoms
of MS. No such medical opinion had previously been of record, and,
therefore, we find that this evidence is new evidence.
Finally, the medical treatises submitted by the appellant after the
1986 denial are new evidence. None of the medical treatises submitted by
the appellant has previously been a part of the record. Furthermore, they
provide a new basis of authority for granting service connection in that
the treatises demonstrate several medically accepted causes for MS. In
short, the appellant has presented the treatises to illustrate that
disorders formerly unacceptable as causes are now accepted as causes for
MS. Thus, while the appellant has previously argued that a number of
different disorders may have been the cause of his MS, and the treatises
address those previous arguments, we find that they are presented for the
purpose of demonstrating that the weight of medical authority has changed,
and that the Board should change its determination to accord with that
authority. Therefore, we hold that the medical treatises are new evidence.
Newly presented evidence must also be material in order to constitute
evidence sufficient to reopen a claim. Colvin, 1 Vet.App. at 174. New
evidence is also material evidence where there is a reasonable possibility
that the new evidence, when viewed in the
context of all the evidence, both new and old, would change the outcome.
Id. For the sole purpose of assessing whether there is new and material
evidence to reopen a claim, the credibility of that evidence is presumed.
Justus v. Principi, 3 Vet.App. 510, 512 (1992). Once a determination as
to whether the evidence is sufficient to reopen a claim has been made, the
weight of the evidence to establish service connection is a question of
fact for the Board. Cox v. Brown, 5 Vet.App. 95, 98 (1993). Thus, new
and material evidence need not establish service connection for the
claimed disability, but need only create a reasonable possibility of
service connection for the sole purpose of reopening. Id.
The appellant has presented three theories to support his assertion
that he should be service connected. First, he asserts that MS was
manifested in service masquerading as infectious mononucleosis. Second,
he contends that MS was manifested during the presumptive period. Finally,
the appellant argues that the virus that causes mononucleosis also causes
MS.
The May 1990 letter of Dr. Gilden supports the appellant's first
contention that MS was manifested during service masquerading as
mononucleosis. It provides a medical opinion that contradicts the
findings of the Board used to deny service connection for incurrence in
service. After the appellant has satisfied the burden of presenting new
and material evidence, the letter may then be considered of sufficient
weight to the fact finder to place the evidence in relative equipoise on
this issue. Where the evidence is in relative equipoise, the benefit of
the doubt must favor the appellant. 38 U.S.C. ù 1154(b); 38 C.F.R. ù 3.
102 (1993). Thus, there is a reasonable possibility that the new evidence,
when considered with all the evidence, both old and new, would change the
outcome on this issue.
The August 1990 letter of Dr. Warren supports the appellant's second
assertion that MS was manifested during the presumptive period. Dr.
Warren's opinion is based upon the evidence submitted previously by the
appellant, principally on the observations of the appellant's former wife.
The appellant's former wife observed in a letter dated March 18, 1966,
that the appellant was suffering from several psychiatric difficulties;
however, it did not discuss any physical disabilities. In its December
1986 decision, the Board concluded that this letter was not probative of
presumptive service connection because it did not suggest any physical
manifestations of MS.
The letter of Dr. Warren, although building on the former wife's
letter, presents an alternative theory of presumptive service connection.
Dr. Warren opined that the appellant's psychiatric problems were symptoms
of the onset of MS, a theory that the Board has not considered previously.
This evidence suggests that there were symptoms of MS during the
presumptive period, and constitutes a medical opinion which, when
considered with the other evidence of record, provides a reasonable
possibility that the outcome of this issue would be different.
The Secretary seeks to disqualify this evidence based on three
arguments. First, the Secretary, citing Black v. Brown, 5 Vet.App. 177 (
1993), and Swann v. Brown, 5 Vet.App. 229 (1993), argues that the evidence
should be disqualified because Dr. Warren relied upon evidence which was
related to him by the appellant, and because Dr. Warren's psychiatric
diagnosis was made more than twenty years after termination of service.
The Secretary further implies that the evidence is somehow unreliable
because it was based upon evidence which was not contemporaneous with the
presumptive period. However, the opinion of Dr. Warren did not rely on
evidence solely related by the appellant, or upon evidence which was not
recorded contemporaneously with the presumptive period. The record
reflects that the observations upon which Dr. Warren relied were those of
the appellant's former wife and that those observations were made
contemporaneously with the presumptive period.
Furthermore, 38 C.F.R. ù 3.307(c) requires that to demonstrate
presumptive service connection for MS, there be shown "by acceptable
medical or lay evidence characteristic manifestations of the disease to
the required degree, followed without unreasonable time lapse by definite
diagnosis." The Secretary essentially argues that there was unreasonable
time lapse between the observation by the appellant's former wife and the
diagnosis. However, MS is a disease with a prolonged course characterized
by remissions and relapses over a course of many years. Dorland's
Illustrated Medical Dictionary 1496, 443 (27 ed. 1988). Because of the
difficulty in diagnosing MS, it does not seem that the lapse of time
between the appellant's former wife's observations and the diagnosis of Dr.
Warren is unreasonable. This, however, is ultimately a question of fact
for the Board to address on remand.
Second, the Secretary asserts that the evidence must be disqualified
because the AOJ has previously considered observations of the appellant's
former wife. The Secretary cites Elkins v. Brown, 5 Vet.App. 474 (1993),
for the proposition that evidence that has been previously considered and
rejected by the AOJ cannot constitute the basis of a new and material
medical opinion. While the Secretary is correct in his assertion of the
general principle, the principle finds no application in this case. The
Board rejected the observations of the appellant's former wife as
indicative of the onset of MS during the presumptive period because those
observations did not contain any evidence of physical symptoms. The
appellant is now asserting a new basis of establishing service connection,
i.e., that psychiatric symptoms manifested by the appellant during the
presumptive period were symptoms of MS. Neither the Board nor the AOJ has
yet to pass on this issue, and the Secretary is directed to do so on
remand.
Third, the Secretary, citing Paller v. Principi, 3 Vet.App. 535 (1992
), contends that Dr. Warren's letter is merely a corroboration of
previously considered and rejected evidence and is, therefore, cumulative.
However, Dr. Warren's letter provides a new theory under which the
appellant may be presumptively service connected. It is not rehashing or
providing further support for previously considered and rejected evidence.
Thus, this evidence may not be said to be cumulative, and the Secretary
will have the opportunity to consider it on remand.
The appellant's second submission of medical treatises supports and
expands on his third argument for service connection that the virus that
causes mononucleosis also causes MS. The treatises provide support for a
medical theory which the Board has rejected as lacking support in the
medical community. The appellant has attacked this determination through
the presentation of evidence tending to show that his theory of causation
is not groundless as the Board has suggested. In fact, the evidence
presented by the appellant provides support for the theory that there may
be a causal relationship between MS and mononucleosis. Using the evidence
in this fashion is thus different from using it for the sole purpose of
disputing the Board's finding that the appellant's MS was not causally
related to his mononucleosis. Rather, it is used to dispute the validity
of the Board's conclusion that medical evidence or research, in general,
does not support the appellant's contention
that MS may be causally related to mononucleosis. Accordingly, this
evidence provides a reasonable possibility that the Board's determination
would be different upon remand.
B. Independent Medical Examination
The appellant also contends that the Board and VA denied him
procedural due process. Specifically, the appellant claims the IME was
biased by the VA's engagement letter and rendered a decision without
considering the record. It is a fundamental and longstanding principle of
judicial restraint, however, that the courts will avoid reaching
constitutional grounds where nonconstitutional grounds will obviate the
need to do so. Jean v. Nelson, 472 U.S. 846, 854 (1988); accord Arkansas
Louisiana Gas Co. v. Department of Public Utilities, 304 U.S. 61, 64 (
1938). It is on these nonconstitutional grounds that we will find that
the record supports the appellant's contention that the IME was
questionable.
In this instance, the VA provided the IME with both a hypothetical
question and the appellant's claims file. However, under the
circumstances, neither the hypothetical question nor the claims file
constituted a proper basis for an expert opinion upon which the BVA could
rely. There are few rules governing the procedure of obtaining and
utilizing an IME. The regulations state simply:
When warranted by the medical complexity or controversy
involved in a pending claim, an advisory medical opinion may be
obtained from one or more medical experts who are not employees of
the VA. Opinions shall be obtained from recognized medical schools,
universities, clinics or medical institutions with which arrangements
for such opinions have been made, and an appropriate official of the
institution shall select the individual expert(s) to render an
opinion . . . . Approval [for an IME] shall be granted only upon a
determination . . . that the issue under consideration poses a
medical problem of such obscurity or complexity, or has generated
such controversy in the medical community at large, as to justify
solicitation of an independent medical opinion. When approval has
been granted, the Compensation and Pension Service shall obtain the
opinion.
38 C.F.R. ù 3.328 (1993).
The VA Adjudication Procedure Manual, Part VI, para. 1.04 (Sept. 21,
1992) [hereinafter M21-1] states:
An advisory medical opinion may be obtained from medical
experts who are not employees of the VA if warranted by the medical
complexity or controversy involved in a pending claim. A request for
an independent medical opinion in conjunction with a pending claim
may be initiated by the regional office, by the claimant, or by his
or her representative. This request must be submitted in writing and
must set forth in detail the reasons why the opinion is necessary
. . . . If it is determined that an independent medical opinion is
warranted, the Compensation and Pension Service will obtain the
opinion.
Id.
We recognize that as a general principle the Federal Rules of
Evidence do not apply to proceedings before the Regional Office (RO), the
Board, or this Court. See Flynn v. Brown, 6 Vet.App. 500, 503 (1994) (
Rules of hearsay evidence do not apply to proceedings before Board).
However, this Court has relied on the Federal Rules of Evidence as a
source of persuasive authority in establishing rules of procedural
fairness to be applied in VA and Board proceedings. Thurber v. Brown, 5
Vet.App. 119, 126 (1993) (Fed. R. Evid. used as persuasive authority in
establishing procedural rule of fairness regarding notice and opportunity
to be heard); Austin v. Brown, 6 Vet.App. 547, 551 (1994). Therefore, we
will again turn to the Federal Rules of Evidence as a source of
persuasive authority.
The Federal Rules of Evidence have liberalized the standards by which
an expert may testify. Fed. R. Evid. 705 and committee notes. Under
Rule 705 an "expert may testify in terms of opinion or Previous DocumentinferenceNext Hit and give
reasons therefor without prior disclosure of the underlying facts or date,
unless the court requires otherwise." Nonetheless, Rule 703 requires that
"[t]he facts or data in the particular case upon which an expert bases an
opinion or Previous HitinferenceNext Document may be those perceived by or made known to the expert
at or before the hearing." This Rule permits the expert to base his
opinion on, for example, a hypothetical question setting out sufficient
facts of the case, or a review of the case file, or upon first hand
observation of evidence at the scene or in the courtroom. Fed. R. Evid.
703 and Committee Notes.
First, it appears from the record that the IME's initial opinion in
this case was rendered without benefit of review of the appellant's file.
The purpose of utilizing an expert, such as an IME, is to assist the trier
of fact in understanding complex evidentiary
materials in a claim. 38 C.F.R. ù 3.328; see also Daubert v. Merrell
Dow Pharmaceuticals, Inc., 113 S.Ct. 2786, 2795 (1993) (expert's role is
to assist trier of fact understand complex issues in case); see also Fed.
R. Evid. 702. In fact, in other federal courts under Fed. R. Evid. 703,
an expert's opinion is not competent unless it is based upon facts or data
in the particular case then under consideration. Burns v. Secretary of
Health and Human Services, 3 F.3d 415, 417 (Fed. Cir. 1993); Brown v.
Parker-Hannifan Corp., 919 F.2d 308, 311 (5th Cir. 1990); Calhoun v.
Honda Motor Co., Ltd., 738 F.2d 126, 131-32 (6th Cir. 1984); Horton v. W.
T. Grant Co., 537 F.2d 1215, 1218 (4th Cir. 1976); United States v. R.J.
Reynolds Tobacco Co., 416 F. Supp. 313, 315 (D.N.J. 1976); see also Fed.
R. Evid. 703 advisory committee's note. In order for an expert's opinion
to be based upon the facts or data of a case, those facts or data must be
disclosed to or perceived by the expert prior to rendering an opinion,
otherwise the opinion is merely conjecture and of no assistance to the
trier of fact. Horton, 537 F.2d at 1218. Since principles of service
connection require a showing that a disability was incurred in or
aggravated by military service, 38 C.F.R. ù 3.303 (1993), this causal
requirement dictates that an IME's failure to, at a minimum, review a
claimant's file as to military service and medical conditions while in
service, renders any opinion uninformed and valueless on the issue of
causation. We hold that the IME's initial opinion in this matter is
without evidentiary value as he failed to review the appellant's record,
and thus had no basis of fact or data upon which to render an expert
opinion as to any etiological relationships involved in this appellant's
specific situation.
Next, the Board presented the IME with a flawed hypothetical question
. See Embrey v. Bowen, 849 F.2d 418, 423 (9th Cir. 1988) (expert's
opinion in Social Security disability case could not be relied upon
because hypothetical question posed to expert did not accurately reflect
the claimant's disabilities and other limitations). The hypothetical
question may not suggest an answer or limit the field of inquiry by the
expert. See id. Rather, the engagement letter must pose to the IME a
hypothetical question which fully and accurately reflects the disability
picture, including both objectively demonstrated disabilities and
subjectively claimed pain or other disability. See Gamer v. Secretary of
Health and Human Services, 815 F.2d 1275, 1279-80 (1987) (hypothetical
questions posed to expert in
Social Security disability case must set out all of claimant's
disabilities, including those supported by medical evidence as well as
subjective claims of pain). If the engagement letter fails to set forth
all of the claimant's impairments, both objective and subjective, or fails
to set forth any other relevant factual detail, such as the time period
during which symptomatology manifested itself, the IME cannot render an
opinion which is supported by a sufficient prior review of and plausible
basis in the record. See DeLorme v. Sullivan, 924 F.2d 841 (9th Cir. 1991
) (substantial evidence supported administrative law judge's opinion based
upon opinion of vocational expert which was, in turn, based upon properly
developed hypothetical question setting forth all of claimant's
disabilities); see also Janeway v. Secretary of Health and Human Services,
702 F. Supp. 795, 797 (C.D. Cal. 1988) (if hypothetical question posed to
expert in Social Security disability case does not set forth all of
claimant's impairments, expert's opinion cannot be based upon substantial
evidence); see also Gilbert v. Derwinski, 1 Vet.App. 49, 52-53 (1990) (
Court may overturn Board's findings of fact where they are not supported
by a plausible basis in the record).
In this case, the Board constrained the IME's scope of inquiry,
thereby limiting his investigation and tainting the results. The Board's
second engagement letter stated that symptomatology characteristic of MS
had manifested itself only in the early 1970's, while there was other
evidence of record providing an earlier date. The Board directed the IME
to address the issue regarding the etiologic relationship of EBV,
mononucleosis, and MS only, while a crucial consideration at the time was
the appellant's claim for presumptive service connection. The statute, 38
U.S.C. ù 7109, and regulation, 38 C.F.R. ù 20.901, governing the
provision and use of an IME leaves to the discretion of the Board the
necessity of obtaining an opinion. Thus, the Board's selection of issues
to be addressed by the IME is entirely discretionary but it cannot limit
background information so as to prejudice the IME. In this instance, the
Board presented the IME with a hypothetical question that incorrectly
limited the possible date of onset of the appellant's claimed MS. The
Board's limiting of the facts stated to the IME may have prevented him
from rendering a fully informed and neutral opinion.
Thus, we conclude that the BVA failed to provide the correct
hypothetical situation to be addressed by the IME, and that the IME
additionally failed to consider the correct facts as they were known at
the time of the adjudication because he did not review the record prior to
rendering an opinion. Consequently, the Board will obtain a new opinion
from a different IME as part of readjudicating the appellant's reopened
claim.
C. Appellant's Claim of Clear and Unmistakable Error
The record reflects that the appellant submitted a letter dated
September 1990 to the VA following the 1990 BVA decision, using the phrase
"[O]n the issue of a 'clear and unmistakable error'" and citing 38 C.F.R.
ù 3.105(a) (1993). He further alleged that the BVA applied the wrong law
to his claim, and in support thereof, he cited a series of regulations,
alleging that "all require acceptance of and consideration of lay evidence
." Those regulations are 38 C.F.R. ù 3.303(a) (principles related to
service connection); 38 C.F.R. ù 3.103(a) (duty to assist a claimant); 38
C.F.R. ù 3.103(b) (right to notice affecting the payments of benefits or
granting of relief); 38 C.F.R. ù 3.307(b) (evidentiary basis may be
established by medical evidence, competent lay evidence or both); and 38 C.
F.R. ù 3.303(b) (with chronic diseases shown in service or within the
presumptive period to permit a finding of service connection, subsequent
manifestations of the same disease are service connected unless attributed
to other causes).
The appellant's substantive appeal (Form 1-9), received on March 27,
1991, made the same allegations using somewhat different terms and using
some different citations to the regulations. The appellant alleged in a
paragraph entitled "ERRORS THE VA MADE IN APPLYING THE LAW" that "No
effort has ever been made to adhere [to] Title 38 [C.F.R. ùù] 3.307[](b),
3.309, 3-303 [sic], 3.102, 3.103(b), or 3.326." These are in effect, the
same allegations made in the 1990 letter to the RO.
A claim of CUE must be specific and not a mere broad allegation of a
failure to follow the regulations, or the failure to give due process, or
any other general, nonspecific claim of CUE. Fugo v. Brown, 6 Vet.App.
40, 44 (1993); Russell v. Principi, 3 Vet.App. 310 (1992) (an appellant
must assert "more than a disagreement as to how the facts were weighed or
evaluated). The appellant may not simply allege CUE on the basis that
prior
adjudications had improperly weighed and evaluated the evidence. Fugo,
6 Vet.App. at 43-44. Neither the appellant's September 1990 letter nor
his Form 1-9 makes any assertions that compliance with the cited
regulations would have manifestly changed the outcome of his case. Thus,
as to the 1990 BVA decision, CUE was not pled in accordance with the
Court's standard in Fugo. However, since the United States Court of
Appeals for the Federal Circuit recently held that this Court's authority
to review CUE under 38 C.F.R. ù 3.105(a)(1993) "relat[es] only to review
of AOJ adjudicatory decisions and not to those of the Board," Smith v.
Brown, __ F.3d __, __, No. 93-7043, slip op. at 28-9 (August 12, 1994),
this Court lacks jurisdiction to review the appellant's allegations of CUE
. Id.
III. Conclusion
Having considered the appellant's brief and reply brief, the
Secretary's brief, and the record, the Court denies the Secretary's motion
to strike as moot, and VACATES and REMANDS the matter. We hold that the
evidence presented by the appellant is new and material evidence. The
Board shall consider the sufficiency of this evidence in conjunction with
the old evidence to support the appellant's claim for both presumptive and
direct service connection on remand. The Board shall obtain a new
independent medical opinion in a manner consistent with this opinion prior
to readjudicating the appellant's claim.
KRAMER, Judge, concurring: I concur to the extent indicated.
As to Part II(A), the letters written by Dr. Gilden and Dr. Warren
constitute new and material evidence. Pursuant to 38 U.S.C. ù 5108,
the Secretary must reopen a previously and finally disallowed claim when "
new and material" evidence is presented or secured with respect to that
claim. See 38 U.S.C. ù 7104(b). "New" evidence is that which is not
merely cumulative of other evidence of record. Cox v. Brown, 5 Vet.App.
95, 98 (1993). "Material" evidence is that which is relevant to and
probative of the issue at hand, and which provides a reasonable
possibility that the new evidence, when viewed in the context of all the
evidence, both new and old, would change the outcome of the case. Id.
Both Dr. Gilden's and Dr. Warren's letters: (1) provide information which
is not cumulative of other
evidence of record, (2) are relevant to and probative of the issue of
whether the appellant's multiple sclerosis (MS) became manifest during the
presumptive period, and (3) provide a reasonable possibility, when viewed
in context of all the evidence of record, that the appellant could be
entitled to presumptive service connection for MS. Both letters are
therefore new and material.
As to Parts II(B), (C), on the specific facts of this case, whether
the two independent medical opinions violated the fair process
requirements of Thurber v. Brown, 5 Vet.App. 119, 120-21 (1993), and
Austin v. Brown, 6 Vet.App. 547, 551-52 (1994), is not a proper subject
for review by this Court. While the use of these two medical opinions may
have created error in the February 1990 Board of Veterans' Appeal decision,
the Court has no jurisdiction over this decision because: (1) the Notice
of Disagreement which led to that decision was filed prior to November 18,
1988 (Veterans' Judicial Review Act, Pub. L. No. 100-687, ù 402, 102 Stat.
4105, 4122 (1988) (found at 38 U.S.C. ù 7251 note)); (2) no timely
Notice of Appeal was filed as to that decision (38 U.S.C. ù 7266); and (3)
it cannot be the subject of review for clear and unmistakable error (CUE) (
Smith (William A.) v. Brown, __ F.3d __, No. 93-7043 (Fed. Cir. Aug. 12,
1994)). Thus, error in the February 1990 decision cannot be a predicate
either for ordering a new medical opinion or for CUE.
Nevertheless, because new and material evidence has been submitted, the
appellant's claim is of necessity well grounded, thus triggering the duty
to assist. See Gobber v. Derwinski, 2 Vet.App. 470, 472 (1992); 38 U.S.C.
ù 5107. On that basis, a new medical examination/opinion should be
ordered.
Thursday, May 26, 2011
Single Judge Application, Davidison v. Shinseki, 581 F.3d, Harmless Error
Excerpt from decision below:
"The Board rejected this lay evidence because "[a]lthough lay persons are
competent to provide evidence regarding injury and symptomatology, they are not competent to provide evidence regarding diagnosis or etiology." R. at 12 (citing Espiritu v. Derwinski, 2 Vet.App. 492 (1992)). As Mr. Yuhasz notes, this is an incorrect application of the law. In Davidson v. Shinseki, the U.S. Court of Appeals for the Federal Circuit rejected the view that "'competent medical evidence is required . . . [when] the determinative issue involves either medical etiology or a medical diagnosis.'" 581 F.3d 1313, 1316 (Fed. Cir. 2009) (quoting Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007)). Thus, instead of dismissing Mr. Yuhasz's statements and the statement from Budget as incompetent because they constituted lay evidence, the Board should have first determined whether unemployability is an issue for which lay evidence is competent and, if so, weighed the lay evidence against the other evidence of record. Jandreau, 492 F.3d at 1377; see also Washington v. Nicholson, 19 Vet.App. 362, 368 (2005) (noting that a veteran is competent to provide lay evidence regarding those matters which are within his personal knowledge and experience).
Consequently, the Board's categorical dismissal of the lay evidence was erroneous.
However, the Board's failure to discuss this lay evidence is harmless error given that Mr. Yuhasz's statements have no bearing on his ability to perform sedentary work and the statement from his employer at Budget merely reflects Mr. Yuhasz's inability to work for Budget or to perform a particular type of work (driving, entering and exiting vehicles frequently)—not his overall capacity to obtain and maintain substantially gainful employment in another setting.
See Sanders, supra.
Again, the Board denied Mr. Yuhasz's claim for TDIU because it found that
he was capable of substantially gainful employment through sedentary work.
Mr. Yuhasz points to no evidence in the record, including the lay evidence
at issue here, that would demonstrate that his service-connected disabilities preclude him from sustaining gainful employment in a sedentary setting, and neither of the medical opinions indicate that his service-connected disabilities would prevent him from doing so. Nor does Mr. Yuhasz explain how the Board's error prejudiced him."
======================================
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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 09-4500
ANDREW S. YUHASZ, 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, Andrew S. Yuhasz, appeals through counsel
an
October 1, 2009, Board of Veterans' Appeals (Board) decision that denied
entitlement to a total
disabilityrating based on individual unemployability(TDIU). Both parties
have filed briefs, and the
appellant has filed a reply brief. The Court has jurisdiction pursuant to
38 U.S.C. §§ 7252(a) and
7266(a) to review the Board's decision. Asinglejudgemayconductthis review
because the outcome
in this case is controlled by the Court's precedents and "is not
reasonably debatable." Frankel v.
Derwinski, 1 Vet.App. 23, 25-26 (1990). For the following reasons, the
Court will affirm the Board's
October 2009 decision.
I. BACKGROUND
Mr. Yuhasz served in the U.S. Army from November 1951 to October 1953.
Record (R.) at
1065. Duringservicehe suffered from flat feet and sustained a left knee
injurythat required surgery.
R. at 703, 1026. After service, Mr. Yuhasz worked for a company called J &
L Steel. R. at 706.
He reported that, due to his inability to do much walking or prolonged
standing, he was offered a job
in the accounting office, which he accepted; he worked as a clerk in the
accounting office until
approximately 1984. R. at 706, 60. After that, Mr. Yuhasz worked part
time for Budget Rent-A-Car
(Budget) as a driver from 1985 to 2001. R. at 574.
Since separation from service, Mr. Yuhasz has been granted service
connection for bilateral
pes planus (flat feet) (currently rated at 30% disabling), left knee total
replacement (currently rated
at 30% disabling), a right knee condition associated with the left knee
disability (currently rated at
10% disabling), and right knee limitation of extension (currentlyrated as
10% disabling). R. at 129-
35, 644-48, 687-88, 730-31, 762-63, 1026.
Mr. Yuhasz filed a claim for TDIU in November 2001. R. at 626-29. He had
previously
submitted a letter to VA in 1997 regarding the effect of his disabilities
on his daily activities in
connection with an earlier claim. R. at 703-706. In the 1997 letter, he
stated:
I am in a position now where I just can't function or perform activities
or work as I
used to. . . . I can't go shopping with my wife. Too much walking. I
bought a
rideing [sic] lawn mower, since I can't walk. I must ride a cart to golf
which I did for
therapy. My bowling is limited now which I always loved. I have a painfull [
sic]
time standing in church services. I don't attend funerals anymore . . . .
I don't march
in veterans parades anymore.
Id. As part of his claim, Mr. Yuhasz submitted a statement in support of
claim and a VA form
completed by his former employer, Budget. R. at 626, 574. Mr. Yuhasz's
statement noted he was
seeking a 100% disability rating for his service-connected conditions "due
to unemployability."
R. at 626. The form from Budget noted that Mr. Yuhasz stopped working
because he was "unable
to return to work due to disability." R. at 574.
The RO denied Mr. Yuhasz's claim for TDIU in June 2002. R. at 516-27. He
then perfected
an appeal to the Board. R. at 514, 499-511, 495. In June 2004, the Board
deferred adjudication of
his claim because the Board found that it was intertwined with a separate
claim that was being
remanded. R. at 413-14, 417. When Mr. Yuhasz's claim returned to the Board
in August 2007, the
Board once again remanded it to the RO for adjudication in light of a
newly service-connected
disability. R. at 149-50. The RO failed to adjudicatethe TDIU claim, and
the Board again remanded
the claim in September 2008. R. at 74-79.
In the meantime, Mr. Yuhasz submitted a letter dated December 2007 from
his private
physician, which stated:
2
Mr. Andrew Yuhasz is a patient of mine who is being treated for chronic
pain due to
intractable arthritis. He's had numerous surgeries without much relief in
pain and
medication therapy is about all that is offered at the present time.
Given his intractable pain he will not be a candidate for job placement
now or in the
foreseeable future.
R. at 47.
In July 2009, the RO provided Mr. Yuhasz with a VA medical examination. R.
at 34-36.
The examiner stated:
As I said, he no doubt has lower extremity pain and limitations, and
certainly this
would preclude him from a lot of jobs, such as driving, which was his last
job, or
labor-intensive jobs. However, it is my opinion that he would be able to
perform
some types of work, such as standard office type work or any computer work
where
he is sitting and performing most of the tasks with his upper body.
R. at 36. The examiner concluded that Mr. Yuhasz's service-connected
disabilities did not preclude
him from gainful employment. The RO apparently denied the claim and Mr.
Yuhasz appealed that
denial, although these documents are not in the record.
In the October 2009 decision here on appeal, the Board found that Mr.
Yuhasz's service-
connecteddisabilitiesalonedidnotprecludehimfromengaginginsubstantiallygain.
In doing so, the Board analyzed Mr. Yuhasz's claim under 38 C.F.R.§§4.16(
a),(b),and 3.321(b)(1).
Under its § 4.16(a) analysis, the Board found that Mr. Yuhasz had four
disabilities with a combined
disability rating of 70%, but since none of his disabilities was rated at
least 40% disabling, § 4.16(a)
did not apply. The Board proceeded to analyze his claim under §§ 4.16(b)
and 3.321(b)(1), but
concluded that he was capable of gainful employment and that his
disabilities were not so unusual
or exceptional as to warrant referral to the director of the Compensation
and Pension Service for
extra-schedular evaluation.
On appeal, Mr. Yuhasz presents three arguments. First, he argues that the
Board failed to
properly apply 38 C.F.R. § 4.16(a). Second, he argues that the Board
failed to provide an adequate
statement of reasons or bases because it "improperly weighed the medical
evidence of record."
Appellant's Brief (Br.) at 4. And third, the Board failed "to give any
weight to [Mr. Yuhasz's]
competent lay testimony concerning his unemployability." Id.
3
II. ANALYSIS
A. TDIU
Before deciding a claim, the Board is required to consider all relevant
evidence of record and
to consider and discuss in its decision all "potentially applicable"
provisions of law and regulation.
Schafrath v. Derwinski, 1 Vet.App. 589, 593 (1991); see 38 U.S.C. § 7104(
a); Weaver v. Principi,
14 Vet.App. 301, 302 (2001) (per curiam order). In addition, the Board is
required to provide a
written statement of the reasons or bases for its findings and conclusions,
adequate to enable an
appellant to understand the precise basis for the Board's decision as well
as to facilitate review in this
Court. See 38 U.S.C. § 7104(d)(1); Allday v. Brown, 7 Vet.App. 517, 527 (
1995); Gilbert v.
Derwinski, 1 Vet.App. 49, 56-57 (1990). To comply with this requirement,
the Board must analyze
the credibility and probative value of the evidence, account for the
evidence that it finds to be
persuasive or unpersuasive, and provide the reasons for its rejection of
any material evidence
favorable to the claimant. Caluza v. Brown, 7 Vet.App. 498, 506 (1995),
aff’d per curiam, 78 F.3d
604 (Fed. Cir. 1996) (table); Gilbert, 1 Vet.App. at 57.
Mr. Yuhasz argues that the Board failed to properly apply 38 C.F.R. § 4.
16(a) because it did
not treat his four service-connected disabilities as one disability as the
regulation provides. Under
§ 4.16(a), TDIU may be assigned when the veteran, in the judgment of the
rating agency, is unable
to secure or follow a substantially gainful occupation as a result of
service-connected disabilities.
To meet the requirements for a schedular TDIU rating, individual
disabilities must equal a combined
rating of 70% or more (with at least one such disability rated at 40% or
more), or, if there is only one
single disability, it must be rated at 60% or more. Id. However, under §
4.16(a), for the purposes
of one 60% disability,disabilities "ofone or both lower extremities"or
those "affectinga single body
system, e.g. orthopedic" are considered a single disability. Id.
In this case, as noted above, Mr. Yuhasz is service connected for
bilateral pes planus, left
knee replacement, and two right knee conditions, with a combined rating of
70%. R. at 134, 10-11.
The Board found that, although Mr. Yuhasz's combined disability rating was
70%, the schedular
rating criteria for TDIU consideration under § 4.16(a)had not been met
since no individual disability
was rated at 40%. However, it appears that the Board did not consider that
portion of § 4.16(a) that
mandates that multiple disabilities of one or both lower extremities or
multiple disabilities affecting
4
a single body system be considered a single disability. Therefore, the
Board failed to consider and
discuss all potentiallyapplicableprovisions of law and regulation in
finding that the schedular rating
criteria for TDIU consideration under § 4.16(a) had not been met. See
Schafrath, supra. The Court
must now consider whether this error prejudiced Mr. Yuhasz. See Shinseki v.
Sanders, 129 S. Ct.
1696, 1704 (2009).
Regarding prejudicial error, Mr. Yuhasz argues that under § 4.16(a), a
claimant must only
show that he is "unable to secure or follow a substantially gainful
occupation," but if a claimant is
forced to seek TDIU under § 4.16(b), he must show that he is "unable to
secure and follow a
substantially gainful occupation," which thus places a higher burden on
the claimant. 38 C.F.R.
§§ 4.16(a), (b) (emphases added). However, in this case, it matters not
whether there is a distinction
between the disjunctive language of § 4.16(a) and the conjunctive
language of § 4.16(b) because the
Board found that Mr. Yuhasz was "capable of substantially gainful
employment through sedentary
work," that is, Mr. Yuhasz could secure and follow substantially gainful
employment. R. at 11.
And, as discussed below, the Court concludes that this finding is not
clearly erroneous. Therefore,
even if the Board had analyzed Mr. Yuhasz's claim for TDIU under § 4.16(a)
—as he argues it should
have—instead of § 4.16(b), the result would have been the same because
he did not demonstrate that
he was unable to secure or follow a substantially gainful occupation. See
Hilkert v. West,
12 Vet.App. 145, 151 (1999) (en banc) (holding that the appellant bears
the burden of demonstrating
error on appeal). The Court concludes that the Board's misapplication of §
4.16 did not prejudice
Mr. Yuhasz.
B. The Medical Opinions
Mr. Yuhasz next argues that the Board failed to provide an adequate
statement of reasons or
bases for its treatment of the medical evidence. See Weaver, Allday,
Schafrath, and Gilbert, all
supra. Here, the Board gave more probative weight to the 2009 VA medical
opinion than it did to
the private physician's report, in part, because the private physician "
appeared to attribute [Mr.
Yuhasz's] inability to work to both his service-connected [disabilities]
as well as his non-service
connected arthritic complaints." R. at 11; see 38 C.F.R. § 4.16(a) (
stating that VA may not consider
non-service-connected disabilities in determining unemployability). Indeed,
the private physician's
5
opinion stated that Mr. Yuhasz was being treated for "chronic pain due to
intractable arthritis," a
condition for which he is not service connected. R. at 47. The physician
also stated that Mr. Yuhasz
hadundergone"numeroussurgeries,"thoughhedidnotidentifytheproceduresto
whichhereferred.1
Id. Finally, he stated: "Given his intractable pain he will not be a
candidate for job placement now
or in the foreseeable future." Id. The reference to "intractable pain" in
the third sentence appears
similar to the "chronic pain" caused by "intractable arthritis" mentioned
in the first sentence.
Therefore, based on this record, the Court concludes that there is a
plausible basis for the Board's
finding that the private physician attributed Mr. Yuhasz's inability to
work based on both service-
connected and non-service-connected disabilities. Accordingly, the Board
did not err in finding the
2009 VA medical opinion more probative than that of the private physician.
C. Lay Evidence
Finally, Mr. Yuhasz argues that the Board improperly disregarded the lay
evidence
concerning his inability to work. Appellant's Br. at 10-11 (citing R. at
626, 628). In support, Mr.
Yuhasz cites to his application for TDIU benefits and his statement in
support of claim and
references the statement from Budget. However, Mr. Yuhasz does not suggest
how further analysis
of the contents of these documents would support his claim. The only
potentially relevant evidence
is as follows. First, on the application, Mr. Yuhasz checked the "Yes" box
in response to the
question, "Did you leave your last job[] because of your disability?" R.
at 628. Second, in his
statement in support of claim, Mr. Yuhasz said, "I am respectfully
requesting an increase from 60%
to 100% for my service/connected for [sic] flat feet [and] left knee
conditions, due to
unemployability." R. at 626. Third, the document from Budget stated he was "
unable to return to
work due to disability." R. at 574. Fourth, although Mr. Yuhasz did not
cite to his 1997 letter
documenting his lifestyle changes, it no doubt constitutes further lay
evidence.2
In its recitation of the facts, the Board noted that Mr. Yuhasz had
undergone surgeries for "an abdominal aortic
aneurysm and certain cardiac disorders" at the same health care facility
where the private physician practiced. R. at 9;
see R. at 103-11. Based on the private physician's letter, it is
impossible to discern whether he was referring to all
surgeries performed on Mr. Yuhasz or only those related to his service-
connected disabilities.
The 1997 letter notes that Mr. Yuhasz cannot "work as [he] used to," and
it was written approximately four
years before he actually stopped working at Budget. R. at 703; see R. at
574. Nonetheless, it is the most comprehensive
statement provided by Mr. Yuhasz in the record.
2
1
6
The Board rejected this lay evidence because "[a]lthough lay persons are
competent to
provide evidence regarding Previous DocumentinjuryNext Document and symptomatology, they are not
competent to provide evidence
regarding diagnosis or etiology." R. at 12 (citing Espiritu v. Derwinski,
2 Vet.App. 492 (1992)). As
Mr. Yuhasz notes, this is an incorrect application of the law. In Davidson
v. Shinseki, the U.S. Court
of Appeals for the Federal Circuit rejected the view that "'competent
medical evidence is required
. . . [when] the determinative issue involves either medical etiology or a
medical diagnosis.'"
581 F.3d 1313, 1316 (Fed. Cir. 2009) (quoting Jandreau v. Nicholson, 492 F.
3d 1372, 1376-77 (Fed.
Cir. 2007)). Thus, instead of dismissing Mr. Yuhasz's statements and the
statement from Budget as
incompetent because they constituted lay evidence, the Board should have
first determined whether
unemployability is an issue for which lay evidence is competent and, if so,
weighed the lay evidence
against the other evidence of record. Jandreau, 492 F.3d at 1377; see also
Washington v. Nicholson,
19 Vet.App. 362, 368 (2005) (noting that a veteran is competent to provide
lay evidence regarding
those matters which are within his personal knowledge and experience).
Consequently, the Board's
categorical dismissal of the lay evidence was erroneous.
However, the Board's failure to discuss this lay evidence is harmless
error given that Mr.
Yuhasz's statements have no bearing on his abilityto perform sedentarywork
and the statement from
his employer at Budget merely reflects Mr. Yuhasz's inability to work for
Budget or to perform a
particular type of work (driving, entering and exiting vehicles frequently)
—not his overall capacity
to obtain and maintain substantially gainful employment in another setting.
See Sanders, supra.
Again, the Board denied Mr. Yuhasz's claim for TDIU because it found that
he was capable of
substantially gainful employment through sedentary work.
Mr. Yuhasz points to no evidence in the record, including the lay evidence
at issue here, that
would demonstrate that his service-connected disabilities preclude him
from sustaining gainful
employment in a sedentary setting, and neither of the medical opinions
indicate that his service-
connected disabilities would prevent him from doing so. Nor does Mr.
Yuhasz explain how the
Board's error prejudiced him. Thus, the Court concludes that the Board did
not commit prejudicial
error by disregarding this lay evidence.
The Board's determination that Mr. Yuhasz was not entitled to TDIU is not
clearlyerroneous
and will therefore be affirmed. See Cathell v. Brown, 8 Vet. App. 539, 543 (
1996) (finding that the
7
determination as to whether an appellant is unemployable pursuant to 38 C.
F.R. § 4.16 is a question
of fact, subject to the "clearly erroneous" standard of review).
III. CONCLUSION
After consideration of the appellant's and the Secretary's briefs, and a
review of the record,
the Board's October 2009 decision denying entitlement to TDIU is AFFIRMED.
DATED: May 24, 2011
Copies to:
Zachary M. Stolz, Esq.
General Counsel (027)
8
"The Board rejected this lay evidence because "[a]lthough lay persons are
competent to provide evidence regarding injury and symptomatology, they are not competent to provide evidence regarding diagnosis or etiology." R. at 12 (citing Espiritu v. Derwinski, 2 Vet.App. 492 (1992)). As Mr. Yuhasz notes, this is an incorrect application of the law. In Davidson v. Shinseki, the U.S. Court of Appeals for the Federal Circuit rejected the view that "'competent medical evidence is required . . . [when] the determinative issue involves either medical etiology or a medical diagnosis.'" 581 F.3d 1313, 1316 (Fed. Cir. 2009) (quoting Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007)). Thus, instead of dismissing Mr. Yuhasz's statements and the statement from Budget as incompetent because they constituted lay evidence, the Board should have first determined whether unemployability is an issue for which lay evidence is competent and, if so, weighed the lay evidence against the other evidence of record. Jandreau, 492 F.3d at 1377; see also Washington v. Nicholson, 19 Vet.App. 362, 368 (2005) (noting that a veteran is competent to provide lay evidence regarding those matters which are within his personal knowledge and experience).
Consequently, the Board's categorical dismissal of the lay evidence was erroneous.
However, the Board's failure to discuss this lay evidence is harmless error given that Mr. Yuhasz's statements have no bearing on his ability to perform sedentary work and the statement from his employer at Budget merely reflects Mr. Yuhasz's inability to work for Budget or to perform a particular type of work (driving, entering and exiting vehicles frequently)—not his overall capacity to obtain and maintain substantially gainful employment in another setting.
See Sanders, supra.
Again, the Board denied Mr. Yuhasz's claim for TDIU because it found that
he was capable of substantially gainful employment through sedentary work.
Mr. Yuhasz points to no evidence in the record, including the lay evidence
at issue here, that would demonstrate that his service-connected disabilities preclude him from sustaining gainful employment in a sedentary setting, and neither of the medical opinions indicate that his service-connected disabilities would prevent him from doing so. Nor does Mr. Yuhasz explain how the Board's error prejudiced him."
======================================
----------------------------------------------------
Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 09-4500
ANDREW S. YUHASZ, 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, Andrew S. Yuhasz, appeals through counsel
an
October 1, 2009, Board of Veterans' Appeals (Board) decision that denied
entitlement to a total
disabilityrating based on individual unemployability(TDIU). Both parties
have filed briefs, and the
appellant has filed a reply brief. The Court has jurisdiction pursuant to
38 U.S.C. §§ 7252(a) and
7266(a) to review the Board's decision. Asinglejudgemayconductthis review
because the outcome
in this case is controlled by the Court's precedents and "is not
reasonably debatable." Frankel v.
Derwinski, 1 Vet.App. 23, 25-26 (1990). For the following reasons, the
Court will affirm the Board's
October 2009 decision.
I. BACKGROUND
Mr. Yuhasz served in the U.S. Army from November 1951 to October 1953.
Record (R.) at
1065. Duringservicehe suffered from flat feet and sustained a left knee
injurythat required surgery.
R. at 703, 1026. After service, Mr. Yuhasz worked for a company called J &
L Steel. R. at 706.
He reported that, due to his inability to do much walking or prolonged
standing, he was offered a job
in the accounting office, which he accepted; he worked as a clerk in the
accounting office until
approximately 1984. R. at 706, 60. After that, Mr. Yuhasz worked part
time for Budget Rent-A-Car
(Budget) as a driver from 1985 to 2001. R. at 574.
Since separation from service, Mr. Yuhasz has been granted service
connection for bilateral
pes planus (flat feet) (currently rated at 30% disabling), left knee total
replacement (currently rated
at 30% disabling), a right knee condition associated with the left knee
disability (currently rated at
10% disabling), and right knee limitation of extension (currentlyrated as
10% disabling). R. at 129-
35, 644-48, 687-88, 730-31, 762-63, 1026.
Mr. Yuhasz filed a claim for TDIU in November 2001. R. at 626-29. He had
previously
submitted a letter to VA in 1997 regarding the effect of his disabilities
on his daily activities in
connection with an earlier claim. R. at 703-706. In the 1997 letter, he
stated:
I am in a position now where I just can't function or perform activities
or work as I
used to. . . . I can't go shopping with my wife. Too much walking. I
bought a
rideing [sic] lawn mower, since I can't walk. I must ride a cart to golf
which I did for
therapy. My bowling is limited now which I always loved. I have a painfull [
sic]
time standing in church services. I don't attend funerals anymore . . . .
I don't march
in veterans parades anymore.
Id. As part of his claim, Mr. Yuhasz submitted a statement in support of
claim and a VA form
completed by his former employer, Budget. R. at 626, 574. Mr. Yuhasz's
statement noted he was
seeking a 100% disability rating for his service-connected conditions "due
to unemployability."
R. at 626. The form from Budget noted that Mr. Yuhasz stopped working
because he was "unable
to return to work due to disability." R. at 574.
The RO denied Mr. Yuhasz's claim for TDIU in June 2002. R. at 516-27. He
then perfected
an appeal to the Board. R. at 514, 499-511, 495. In June 2004, the Board
deferred adjudication of
his claim because the Board found that it was intertwined with a separate
claim that was being
remanded. R. at 413-14, 417. When Mr. Yuhasz's claim returned to the Board
in August 2007, the
Board once again remanded it to the RO for adjudication in light of a
newly service-connected
disability. R. at 149-50. The RO failed to adjudicatethe TDIU claim, and
the Board again remanded
the claim in September 2008. R. at 74-79.
In the meantime, Mr. Yuhasz submitted a letter dated December 2007 from
his private
physician, which stated:
2
Mr. Andrew Yuhasz is a patient of mine who is being treated for chronic
pain due to
intractable arthritis. He's had numerous surgeries without much relief in
pain and
medication therapy is about all that is offered at the present time.
Given his intractable pain he will not be a candidate for job placement
now or in the
foreseeable future.
R. at 47.
In July 2009, the RO provided Mr. Yuhasz with a VA medical examination. R.
at 34-36.
The examiner stated:
As I said, he no doubt has lower extremity pain and limitations, and
certainly this
would preclude him from a lot of jobs, such as driving, which was his last
job, or
labor-intensive jobs. However, it is my opinion that he would be able to
perform
some types of work, such as standard office type work or any computer work
where
he is sitting and performing most of the tasks with his upper body.
R. at 36. The examiner concluded that Mr. Yuhasz's service-connected
disabilities did not preclude
him from gainful employment. The RO apparently denied the claim and Mr.
Yuhasz appealed that
denial, although these documents are not in the record.
In the October 2009 decision here on appeal, the Board found that Mr.
Yuhasz's service-
connecteddisabilitiesalonedidnotprecludehimfromengaginginsubstantiallygain.
In doing so, the Board analyzed Mr. Yuhasz's claim under 38 C.F.R.§§4.16(
a),(b),and 3.321(b)(1).
Under its § 4.16(a) analysis, the Board found that Mr. Yuhasz had four
disabilities with a combined
disability rating of 70%, but since none of his disabilities was rated at
least 40% disabling, § 4.16(a)
did not apply. The Board proceeded to analyze his claim under §§ 4.16(b)
and 3.321(b)(1), but
concluded that he was capable of gainful employment and that his
disabilities were not so unusual
or exceptional as to warrant referral to the director of the Compensation
and Pension Service for
extra-schedular evaluation.
On appeal, Mr. Yuhasz presents three arguments. First, he argues that the
Board failed to
properly apply 38 C.F.R. § 4.16(a). Second, he argues that the Board
failed to provide an adequate
statement of reasons or bases because it "improperly weighed the medical
evidence of record."
Appellant's Brief (Br.) at 4. And third, the Board failed "to give any
weight to [Mr. Yuhasz's]
competent lay testimony concerning his unemployability." Id.
3
II. ANALYSIS
A. TDIU
Before deciding a claim, the Board is required to consider all relevant
evidence of record and
to consider and discuss in its decision all "potentially applicable"
provisions of law and regulation.
Schafrath v. Derwinski, 1 Vet.App. 589, 593 (1991); see 38 U.S.C. § 7104(
a); Weaver v. Principi,
14 Vet.App. 301, 302 (2001) (per curiam order). In addition, the Board is
required to provide a
written statement of the reasons or bases for its findings and conclusions,
adequate to enable an
appellant to understand the precise basis for the Board's decision as well
as to facilitate review in this
Court. See 38 U.S.C. § 7104(d)(1); Allday v. Brown, 7 Vet.App. 517, 527 (
1995); Gilbert v.
Derwinski, 1 Vet.App. 49, 56-57 (1990). To comply with this requirement,
the Board must analyze
the credibility and probative value of the evidence, account for the
evidence that it finds to be
persuasive or unpersuasive, and provide the reasons for its rejection of
any material evidence
favorable to the claimant. Caluza v. Brown, 7 Vet.App. 498, 506 (1995),
aff’d per curiam, 78 F.3d
604 (Fed. Cir. 1996) (table); Gilbert, 1 Vet.App. at 57.
Mr. Yuhasz argues that the Board failed to properly apply 38 C.F.R. § 4.
16(a) because it did
not treat his four service-connected disabilities as one disability as the
regulation provides. Under
§ 4.16(a), TDIU may be assigned when the veteran, in the judgment of the
rating agency, is unable
to secure or follow a substantially gainful occupation as a result of
service-connected disabilities.
To meet the requirements for a schedular TDIU rating, individual
disabilities must equal a combined
rating of 70% or more (with at least one such disability rated at 40% or
more), or, if there is only one
single disability, it must be rated at 60% or more. Id. However, under §
4.16(a), for the purposes
of one 60% disability,disabilities "ofone or both lower extremities"or
those "affectinga single body
system, e.g. orthopedic" are considered a single disability. Id.
In this case, as noted above, Mr. Yuhasz is service connected for
bilateral pes planus, left
knee replacement, and two right knee conditions, with a combined rating of
70%. R. at 134, 10-11.
The Board found that, although Mr. Yuhasz's combined disability rating was
70%, the schedular
rating criteria for TDIU consideration under § 4.16(a)had not been met
since no individual disability
was rated at 40%. However, it appears that the Board did not consider that
portion of § 4.16(a) that
mandates that multiple disabilities of one or both lower extremities or
multiple disabilities affecting
4
a single body system be considered a single disability. Therefore, the
Board failed to consider and
discuss all potentiallyapplicableprovisions of law and regulation in
finding that the schedular rating
criteria for TDIU consideration under § 4.16(a) had not been met. See
Schafrath, supra. The Court
must now consider whether this error prejudiced Mr. Yuhasz. See Shinseki v.
Sanders, 129 S. Ct.
1696, 1704 (2009).
Regarding prejudicial error, Mr. Yuhasz argues that under § 4.16(a), a
claimant must only
show that he is "unable to secure or follow a substantially gainful
occupation," but if a claimant is
forced to seek TDIU under § 4.16(b), he must show that he is "unable to
secure and follow a
substantially gainful occupation," which thus places a higher burden on
the claimant. 38 C.F.R.
§§ 4.16(a), (b) (emphases added). However, in this case, it matters not
whether there is a distinction
between the disjunctive language of § 4.16(a) and the conjunctive
language of § 4.16(b) because the
Board found that Mr. Yuhasz was "capable of substantially gainful
employment through sedentary
work," that is, Mr. Yuhasz could secure and follow substantially gainful
employment. R. at 11.
And, as discussed below, the Court concludes that this finding is not
clearly erroneous. Therefore,
even if the Board had analyzed Mr. Yuhasz's claim for TDIU under § 4.16(a)
—as he argues it should
have—instead of § 4.16(b), the result would have been the same because
he did not demonstrate that
he was unable to secure or follow a substantially gainful occupation. See
Hilkert v. West,
12 Vet.App. 145, 151 (1999) (en banc) (holding that the appellant bears
the burden of demonstrating
error on appeal). The Court concludes that the Board's misapplication of §
4.16 did not prejudice
Mr. Yuhasz.
B. The Medical Opinions
Mr. Yuhasz next argues that the Board failed to provide an adequate
statement of reasons or
bases for its treatment of the medical evidence. See Weaver, Allday,
Schafrath, and Gilbert, all
supra. Here, the Board gave more probative weight to the 2009 VA medical
opinion than it did to
the private physician's report, in part, because the private physician "
appeared to attribute [Mr.
Yuhasz's] inability to work to both his service-connected [disabilities]
as well as his non-service
connected arthritic complaints." R. at 11; see 38 C.F.R. § 4.16(a) (
stating that VA may not consider
non-service-connected disabilities in determining unemployability). Indeed,
the private physician's
5
opinion stated that Mr. Yuhasz was being treated for "chronic pain due to
intractable arthritis," a
condition for which he is not service connected. R. at 47. The physician
also stated that Mr. Yuhasz
hadundergone"numeroussurgeries,"thoughhedidnotidentifytheproceduresto
whichhereferred.1
Id. Finally, he stated: "Given his intractable pain he will not be a
candidate for job placement now
or in the foreseeable future." Id. The reference to "intractable pain" in
the third sentence appears
similar to the "chronic pain" caused by "intractable arthritis" mentioned
in the first sentence.
Therefore, based on this record, the Court concludes that there is a
plausible basis for the Board's
finding that the private physician attributed Mr. Yuhasz's inability to
work based on both service-
connected and non-service-connected disabilities. Accordingly, the Board
did not err in finding the
2009 VA medical opinion more probative than that of the private physician.
C. Lay Evidence
Finally, Mr. Yuhasz argues that the Board improperly disregarded the lay
evidence
concerning his inability to work. Appellant's Br. at 10-11 (citing R. at
626, 628). In support, Mr.
Yuhasz cites to his application for TDIU benefits and his statement in
support of claim and
references the statement from Budget. However, Mr. Yuhasz does not suggest
how further analysis
of the contents of these documents would support his claim. The only
potentially relevant evidence
is as follows. First, on the application, Mr. Yuhasz checked the "Yes" box
in response to the
question, "Did you leave your last job[] because of your disability?" R.
at 628. Second, in his
statement in support of claim, Mr. Yuhasz said, "I am respectfully
requesting an increase from 60%
to 100% for my service/connected for [sic] flat feet [and] left knee
conditions, due to
unemployability." R. at 626. Third, the document from Budget stated he was "
unable to return to
work due to disability." R. at 574. Fourth, although Mr. Yuhasz did not
cite to his 1997 letter
documenting his lifestyle changes, it no doubt constitutes further lay
evidence.2
In its recitation of the facts, the Board noted that Mr. Yuhasz had
undergone surgeries for "an abdominal aortic
aneurysm and certain cardiac disorders" at the same health care facility
where the private physician practiced. R. at 9;
see R. at 103-11. Based on the private physician's letter, it is
impossible to discern whether he was referring to all
surgeries performed on Mr. Yuhasz or only those related to his service-
connected disabilities.
The 1997 letter notes that Mr. Yuhasz cannot "work as [he] used to," and
it was written approximately four
years before he actually stopped working at Budget. R. at 703; see R. at
574. Nonetheless, it is the most comprehensive
statement provided by Mr. Yuhasz in the record.
2
1
6
The Board rejected this lay evidence because "[a]lthough lay persons are
competent to
provide evidence regarding Previous DocumentinjuryNext Document and symptomatology, they are not
competent to provide evidence
regarding diagnosis or etiology." R. at 12 (citing Espiritu v. Derwinski,
2 Vet.App. 492 (1992)). As
Mr. Yuhasz notes, this is an incorrect application of the law. In Davidson
v. Shinseki, the U.S. Court
of Appeals for the Federal Circuit rejected the view that "'competent
medical evidence is required
. . . [when] the determinative issue involves either medical etiology or a
medical diagnosis.'"
581 F.3d 1313, 1316 (Fed. Cir. 2009) (quoting Jandreau v. Nicholson, 492 F.
3d 1372, 1376-77 (Fed.
Cir. 2007)). Thus, instead of dismissing Mr. Yuhasz's statements and the
statement from Budget as
incompetent because they constituted lay evidence, the Board should have
first determined whether
unemployability is an issue for which lay evidence is competent and, if so,
weighed the lay evidence
against the other evidence of record. Jandreau, 492 F.3d at 1377; see also
Washington v. Nicholson,
19 Vet.App. 362, 368 (2005) (noting that a veteran is competent to provide
lay evidence regarding
those matters which are within his personal knowledge and experience).
Consequently, the Board's
categorical dismissal of the lay evidence was erroneous.
However, the Board's failure to discuss this lay evidence is harmless
error given that Mr.
Yuhasz's statements have no bearing on his abilityto perform sedentarywork
and the statement from
his employer at Budget merely reflects Mr. Yuhasz's inability to work for
Budget or to perform a
particular type of work (driving, entering and exiting vehicles frequently)
—not his overall capacity
to obtain and maintain substantially gainful employment in another setting.
See Sanders, supra.
Again, the Board denied Mr. Yuhasz's claim for TDIU because it found that
he was capable of
substantially gainful employment through sedentary work.
Mr. Yuhasz points to no evidence in the record, including the lay evidence
at issue here, that
would demonstrate that his service-connected disabilities preclude him
from sustaining gainful
employment in a sedentary setting, and neither of the medical opinions
indicate that his service-
connected disabilities would prevent him from doing so. Nor does Mr.
Yuhasz explain how the
Board's error prejudiced him. Thus, the Court concludes that the Board did
not commit prejudicial
error by disregarding this lay evidence.
The Board's determination that Mr. Yuhasz was not entitled to TDIU is not
clearlyerroneous
and will therefore be affirmed. See Cathell v. Brown, 8 Vet. App. 539, 543 (
1996) (finding that the
7
determination as to whether an appellant is unemployable pursuant to 38 C.
F.R. § 4.16 is a question
of fact, subject to the "clearly erroneous" standard of review).
III. CONCLUSION
After consideration of the appellant's and the Secretary's briefs, and a
review of the record,
the Board's October 2009 decision denying entitlement to TDIU is AFFIRMED.
DATED: May 24, 2011
Copies to:
Zachary M. Stolz, Esq.
General Counsel (027)
8
Tuesday, May 24, 2011
Importance of Activity in War Wound Recovery
Full article at: War veterans show Games can play important part in recovery
By Vicki Michaelis, USA TODAY
""We used to try to set limits (on what they can do), because we didn't want people to get discouraged. We don't do that any more," says Col. Barbara Springer, a former chief of physical therapy service at Walter Reed Army Medical Center in Washington.
Now therapists try to identify an activity of interest to each wounded war veteran early in rehabilitation, and they focus on helping them participate in that."
By Vicki Michaelis, USA TODAY
""We used to try to set limits (on what they can do), because we didn't want people to get discouraged. We don't do that any more," says Col. Barbara Springer, a former chief of physical therapy service at Walter Reed Army Medical Center in Washington.
Now therapists try to identify an activity of interest to each wounded war veteran early in rehabilitation, and they focus on helping them participate in that."
Monday, May 23, 2011
Single Judge Application, Comer, 552 F.3d 1362, 1367 (Fed. Cir. 2009), Cogent Evidence of Unemployability
Excerpt from decision below:
"TDIU may also be awarded under 38 C.F.R. § 4.16(b) on an extraschedular basis where the veteran is "unable to secure and follow a substantially gainful occupation by reason of service- connected disabilities." The Board stated that the "only medical report clearly suggesting an inability to work was the VA hospital report from February to March of 1991," but this report referenced multiple disabilities that were not service connected at the time. R. at 11. However, evidence of an
3
inability to work need not be limited to medical evidence. Rather, all that is required is "cogent evidence of unemployability." Comer v. Peake, 552 F.3d 1362, 1367 (Fed. Cir. 2009). Therefore, because the Board improperly limited its analysis of the evidence in determining whether Mr.Harvey was entitled to an award of TDIU under 38 C.F.R. § 4.16(b), the Court must remand the matter for readjudication."
========================
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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 09-2601
SIDNEY HARVEY, APPELLANT,
v.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before DAVIS, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
DAVIS, Judge: U.S. Army veteran Sidney Harvey appeals pro se from a June
25, 2009,
Board of Veterans' Appeals (Board) decision that determined he was not
entitled to an effective date
earlier than May 12, 1992, for the grant of a total disability evaluation
based on individual
unemployability due to service-connected disabilities (TDIU). For the
reasons stated below, the
Court will set aside the Board's decision and remand the matter for
readjudication.
I. ANALYSIS
Mr. Harvey argues that the Board failed to consider evidence in the record
that indicates he
requested consideration for TDIU prior to 1992. He asserts in his informal
brief that he mentioned
on his May 12, 1989, application for service connection for post-traumatic
stress disorder (PTSD)
that he was not able to work. See Record (R.) at 1967. He further asserts
that when he testified at
a hearing before the Board in December 1989, he claimed his PTSD prevented
him from working.
See R. at 1789-90, 1793.
Generally,foranoriginalclaimoraclaimreopenedafterfinaladjudication,
theeffectivedate
can be no earlier than the date of the claim. See 38 U.S.C. § 5110(a). In
the case of TDIU, however,
this Court has noted that a request for TDIU is not a freestanding claim;
rather, where there is
evidence of unemployability, it is properly considered a part of the
claim for benefits of the
underlying disability. See Rice v. Shinseki, 22 Vet.App. 447 (2009).
Consequently, a separate
formal claim for TDIU is unnecessary; in an original service-connection
claim, the effective date for
TDIU may date back to the date of the original claim for the underlying
disability. See id. As in all
claims, VA is required to "fully and sympathetically develop the veteran's
claim to its optimum"
before deciding the claim on the merits. Roberson v. Principi, 251 F.3d
1378, 1383 (Fed. Cir. 2001)
(quoting Norris v. West, 12 Vet.App. 413, 420 (1999)).
Pursuant to 38 C.F.R. § 4.16(a), when a veteran is assigned a
disabilityrating of 60% or more
for a single disability, or a combined disability rating of at least 70%
where at least one disability is
rated 40% or above, and is "unable to secure or follow a substantially
gainful occupation as a result
of service-connecteddisabilities,"a claimantiseligibleto receiveTDIU. A
Board's decision to grant
or deny an award of TDIU must be accompanied by a written statement of the
reasons or bases for
its findings and conclusions on all material issues of fact and law
presented on the record; that
statement must be adequate to enable a claimant to understand the precise
basis for the Board's
decision, as well as to facilitate informed review in this Court. See 38 U.
S.C. § 7104(d)(1); Allday
v. Brown, 7 Vet.App. 517, 527 (1995); Gilbert v. Derwinski, 1 Vet.App. 49,
56-57 (1990).
The Board stated that "a review of [Mr. Harvey's] own statements and
hearing testimony . . .
indicates no stated intention to pursue a total disability rating based
upon disabilities for which
service connection was in effect during" the period of December 1980 to
May 1992. R. at 11. This
statement bythe Board is a misapplication of the law. Service connection
did not need to be in effect
at the time Mr. Harvey pursued a total disability rating; he only needed
to indicate that he was
seeking service connection for a disability and that he was unemployable
due to his disability. See
Roberson, 251 F.3d at 1384 ("Once a veteran submits evidence of a medical
disability and makes
a claim for the highest ratingpossible, and additionally submits evidence
of unemployability . . . VA
must consider TDIU.").
Mr. Harvey's May 12, 1989, application for service connection for PTSD
stated that he
"would like to be considered for a permanent and total evaluation and
considered for [non-service-
connected] pension." R. at 1967. He continued: "The only income that I
have is the VA 10%
compensation [for eczema]." Id. The Board concluded "there is no language
in this correspondence
2
to suggest an intent to claim TDIU." R. at 7. Considering that VA is
required to read a pro se
veteran's filings sympathetically, see Szemraj v. Principi, 357 F.3d 1370 (
Fed. Cir. 2004), the Court
concludes that this statement bythe Board is clearlyerroneous. See 38 U.S.
C. § 7261(a)(4) (findings
of fact are reviewed under the "clearly erroneous" standard of review).
As for the December 1989 hearing testimony, the Board stated that Mr.
Harvey"asserted that
he was unable to work" and that he attributed this inability to work to
both his PTSD and back pain.
R. at 8. Because the Board recognized that Mr. Harvey requested
consideration for TDIU and
attributed it to PTSD, he Court discerns no clear error in this statement
by the Board.
The Court must next determine whetherMr. Harveywas prejudiced bythe
Board's error. See
38 U.S.C. § 7261(b)(2) (Court shall take due account of the rule of
prejudicial error); Shinseki v.
Sanders, 129 S. Ct. 1696, 1704 (2009). Despite the Board's
misinterpretation of the May 12, 1989,
statement from Mr. Harvey, the Board determined that TDIU was not
warranted prior to May 12,
1992, because "a rating meeting the minimum criteria of 38 C.F.R. § 4.16(
a) was not in effect until
May 12, 1992." R. at 11.
The regulation requires that, in order for TDIU to be awarded, one of two
criteria must be
met. Either one disability must be rated at 60% or more, or two or more
disabilities must equal a
combined disability rating of 70% or more and one of those disabilities
must be rated at 40% or
more. See 38 C.F.R. § 4.16(a) (2010). Mr. Harvey met that criteria after
a November 1996 decision
increased his disabilityrating for PTSD to 70% effective May12, 1992,
which gave him a combined
disabilityrating of 80%. See R. at 1106, 1114. Prior to that decision, Mr.
Harvey's highest disability
rating for a single disability had been 50% and his highest combined
disability rating had been 60%. See R. at 1106, 1612. Consequently, even if the Board had properly determined that the May 12, 1989, letter was a request for TDIU, Mr. Harvey would not have meet the regulatory criteria for an award of TDIU. Therefore the Board's error was harmless. TDIU may also be awarded under 38 C.F.R. § 4.16(b) on an extraschedular basis where the veteran is "unable to secure and follow a substantially gainful occupation by reason of service- connected disabilities." The Board stated that the "only medical report clearly suggesting an inability to work was the VA hospital report from February to March of 1991," but this report referenced multiple disabilities that were not service connected at the time. R. at 11. However, evidence of an
3
inability to work need not be limited to medical evidence. Rather, all that is required is "cogent evidence of unemployability." Comer v. Peake, 552 F.3d 1362, 1367 (Fed. Cir. 2009). Therefore, because the Board improperly limited its analysis of the evidence in determining whether Mr.Harvey was entitled to an award of TDIU under 38 C.F.R. § 4.16(b), the Court must remand the matter for readjudication.
II. CONCLUSION
On consideration of theforegoing,theCourt SETS ASIDEtheJune25, 2009, Board
decision
and REMANDS for readjudication the matter of an earlier effective date for
TDIU. In pursuing his
case on remand, Mr. Harvey will be free to submit additional evidence and
argument, and the Board
is required to consider any such evidence and argument. See Kay v.
Principi, 16 Vet.App. 529, 534
(2002). A final decision by the Board following the remand herein ordered
will constitute a new
decision that, if adverse, may be appealed to this Court on the filing of
a new Notice of Appeal with
the Court not later than 120 days after the date on which notice of the
Board's new final decision is
mailed to Mr. Harvey. See Marsh v. West, 11 Vet.App. 468, 472 (1998).
DATED: May 12, 2011
Copies to:
Sidney Harvey
VA General Counsel (027)
4
"TDIU may also be awarded under 38 C.F.R. § 4.16(b) on an extraschedular basis where the veteran is "unable to secure and follow a substantially gainful occupation by reason of service- connected disabilities." The Board stated that the "only medical report clearly suggesting an inability to work was the VA hospital report from February to March of 1991," but this report referenced multiple disabilities that were not service connected at the time. R. at 11. However, evidence of an
3
inability to work need not be limited to medical evidence. Rather, all that is required is "cogent evidence of unemployability." Comer v. Peake, 552 F.3d 1362, 1367 (Fed. Cir. 2009). Therefore, because the Board improperly limited its analysis of the evidence in determining whether Mr.Harvey was entitled to an award of TDIU under 38 C.F.R. § 4.16(b), the Court must remand the matter for readjudication."
========================
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----------------------------------------------------
Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 09-2601
SIDNEY HARVEY, APPELLANT,
v.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before DAVIS, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
DAVIS, Judge: U.S. Army veteran Sidney Harvey appeals pro se from a June
25, 2009,
Board of Veterans' Appeals (Board) decision that determined he was not
entitled to an effective date
earlier than May 12, 1992, for the grant of a total disability evaluation
based on individual
unemployability due to service-connected disabilities (TDIU). For the
reasons stated below, the
Court will set aside the Board's decision and remand the matter for
readjudication.
I. ANALYSIS
Mr. Harvey argues that the Board failed to consider evidence in the record
that indicates he
requested consideration for TDIU prior to 1992. He asserts in his informal
brief that he mentioned
on his May 12, 1989, application for service connection for post-traumatic
stress disorder (PTSD)
that he was not able to work. See Record (R.) at 1967. He further asserts
that when he testified at
a hearing before the Board in December 1989, he claimed his PTSD prevented
him from working.
See R. at 1789-90, 1793.
Generally,foranoriginalclaimoraclaimreopenedafterfinaladjudication,
theeffectivedate
can be no earlier than the date of the claim. See 38 U.S.C. § 5110(a). In
the case of TDIU, however,
this Court has noted that a request for TDIU is not a freestanding claim;
rather, where there is
evidence of unemployability, it is properly considered a part of the
claim for benefits of the
underlying disability. See Rice v. Shinseki, 22 Vet.App. 447 (2009).
Consequently, a separate
formal claim for TDIU is unnecessary; in an original service-connection
claim, the effective date for
TDIU may date back to the date of the original claim for the underlying
disability. See id. As in all
claims, VA is required to "fully and sympathetically develop the veteran's
claim to its optimum"
before deciding the claim on the merits. Roberson v. Principi, 251 F.3d
1378, 1383 (Fed. Cir. 2001)
(quoting Norris v. West, 12 Vet.App. 413, 420 (1999)).
Pursuant to 38 C.F.R. § 4.16(a), when a veteran is assigned a
disabilityrating of 60% or more
for a single disability, or a combined disability rating of at least 70%
where at least one disability is
rated 40% or above, and is "unable to secure or follow a substantially
gainful occupation as a result
of service-connecteddisabilities,"a claimantiseligibleto receiveTDIU. A
Board's decision to grant
or deny an award of TDIU must be accompanied by a written statement of the
reasons or bases for
its findings and conclusions on all material issues of fact and law
presented on the record; that
statement must be adequate to enable a claimant to understand the precise
basis for the Board's
decision, as well as to facilitate informed review in this Court. See 38 U.
S.C. § 7104(d)(1); Allday
v. Brown, 7 Vet.App. 517, 527 (1995); Gilbert v. Derwinski, 1 Vet.App. 49,
56-57 (1990).
The Board stated that "a review of [Mr. Harvey's] own statements and
hearing testimony . . .
indicates no stated intention to pursue a total disability rating based
upon disabilities for which
service connection was in effect during" the period of December 1980 to
May 1992. R. at 11. This
statement bythe Board is a misapplication of the law. Service connection
did not need to be in effect
at the time Mr. Harvey pursued a total disability rating; he only needed
to indicate that he was
seeking service connection for a disability and that he was unemployable
due to his disability. See
Roberson, 251 F.3d at 1384 ("Once a veteran submits evidence of a medical
disability and makes
a claim for the highest ratingpossible, and additionally submits evidence
of unemployability . . . VA
must consider TDIU.").
Mr. Harvey's May 12, 1989, application for service connection for PTSD
stated that he
"would like to be considered for a permanent and total evaluation and
considered for [non-service-
connected] pension." R. at 1967. He continued: "The only income that I
have is the VA 10%
compensation [for eczema]." Id. The Board concluded "there is no language
in this correspondence
2
to suggest an intent to claim TDIU." R. at 7. Considering that VA is
required to read a pro se
veteran's filings sympathetically, see Szemraj v. Principi, 357 F.3d 1370 (
Fed. Cir. 2004), the Court
concludes that this statement bythe Board is clearlyerroneous. See 38 U.S.
C. § 7261(a)(4) (findings
of fact are reviewed under the "clearly erroneous" standard of review).
As for the December 1989 hearing testimony, the Board stated that Mr.
Harvey"asserted that
he was unable to work" and that he attributed this inability to work to
both his PTSD and back pain.
R. at 8. Because the Board recognized that Mr. Harvey requested
consideration for TDIU and
attributed it to PTSD, he Court discerns no clear error in this statement
by the Board.
The Court must next determine whetherMr. Harveywas prejudiced bythe
Board's error. See
38 U.S.C. § 7261(b)(2) (Court shall take due account of the rule of
prejudicial error); Shinseki v.
Sanders, 129 S. Ct. 1696, 1704 (2009). Despite the Board's
misinterpretation of the May 12, 1989,
statement from Mr. Harvey, the Board determined that TDIU was not
warranted prior to May 12,
1992, because "a rating meeting the minimum criteria of 38 C.F.R. § 4.16(
a) was not in effect until
May 12, 1992." R. at 11.
The regulation requires that, in order for TDIU to be awarded, one of two
criteria must be
met. Either one disability must be rated at 60% or more, or two or more
disabilities must equal a
combined disability rating of 70% or more and one of those disabilities
must be rated at 40% or
more. See 38 C.F.R. § 4.16(a) (2010). Mr. Harvey met that criteria after
a November 1996 decision
increased his disabilityrating for PTSD to 70% effective May12, 1992,
which gave him a combined
disabilityrating of 80%. See R. at 1106, 1114. Prior to that decision, Mr.
Harvey's highest disability
rating for a single disability had been 50% and his highest combined
disability rating had been 60%. See R. at 1106, 1612. Consequently, even if the Board had properly determined that the May 12, 1989, letter was a request for TDIU, Mr. Harvey would not have meet the regulatory criteria for an award of TDIU. Therefore the Board's error was harmless. TDIU may also be awarded under 38 C.F.R. § 4.16(b) on an extraschedular basis where the veteran is "unable to secure and follow a substantially gainful occupation by reason of service- connected disabilities." The Board stated that the "only medical report clearly suggesting an inability to work was the VA hospital report from February to March of 1991," but this report referenced multiple disabilities that were not service connected at the time. R. at 11. However, evidence of an
3
inability to work need not be limited to medical evidence. Rather, all that is required is "cogent evidence of unemployability." Comer v. Peake, 552 F.3d 1362, 1367 (Fed. Cir. 2009). Therefore, because the Board improperly limited its analysis of the evidence in determining whether Mr.Harvey was entitled to an award of TDIU under 38 C.F.R. § 4.16(b), the Court must remand the matter for readjudication.
II. CONCLUSION
On consideration of theforegoing,theCourt SETS ASIDEtheJune25, 2009, Board
decision
and REMANDS for readjudication the matter of an earlier effective date for
TDIU. In pursuing his
case on remand, Mr. Harvey will be free to submit additional evidence and
argument, and the Board
is required to consider any such evidence and argument. See Kay v.
Principi, 16 Vet.App. 529, 534
(2002). A final decision by the Board following the remand herein ordered
will constitute a new
decision that, if adverse, may be appealed to this Court on the filing of
a new Notice of Appeal with
the Court not later than 120 days after the date on which notice of the
Board's new final decision is
mailed to Mr. Harvey. See Marsh v. West, 11 Vet.App. 468, 472 (1998).
DATED: May 12, 2011
Copies to:
Sidney Harvey
VA General Counsel (027)
4
Friday, May 20, 2011
Hillyard v. Shinseki, No. 08-1733, Update/Correction May 20, 2011
----------------------------------------------------
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 08-1733
JOSEPH C. HILLYARD,
v.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS,
Before GREENE, HAGEL, and SCHOELEN, Judges.
ORDER
It is ORDERED that this Court's opinion entered on March 29, 2011, is
hereby amended as follows:
On page seventeen, lines eight through eleven, delete the sentence
beginning, "For example, in Dingess," and ending "effective date of the disability." and replace it with "For example, in D'Amico v. West, 209 F.3d 1322, 1326 (Fed. Cir. 2000), the Federal Circuit held that '[a] claim for veteran's disability benefits has five elements: (1) veteran status; (2) existence of a disability; (3) service connection of the disability; (4) degree of disability, and (5) effective date of the disability.'"
DATED: May 13, 2011
FOR THE COURT:
/s/ Gregory O. Block
GREGORY O. BLOCK
Clerk of the Court
Copies to:
Kenneth M. Carpenter, Esq.
VA General Counsel (027)
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 08-1733
JOSEPH C. HILLYARD,
v.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS,
Before GREENE, HAGEL, and SCHOELEN, Judges.
ORDER
It is ORDERED that this Court's opinion entered on March 29, 2011, is
hereby amended as follows:
On page seventeen, lines eight through eleven, delete the sentence
beginning, "For example, in Dingess," and ending "effective date of the disability." and replace it with "For example, in D'Amico v. West, 209 F.3d 1322, 1326 (Fed. Cir. 2000), the Federal Circuit held that '[a] claim for veteran's disability benefits has five elements: (1) veteran status; (2) existence of a disability; (3) service connection of the disability; (4) degree of disability, and (5) effective date of the disability.'"
DATED: May 13, 2011
FOR THE COURT:
/s/ Gregory O. Block
GREGORY O. BLOCK
Clerk of the Court
Copies to:
Kenneth M. Carpenter, Esq.
VA General Counsel (027)
Thursday, May 19, 2011
VAOIG Report Number 11-00510-167, Systemic Errors at Multiple RO's
Excerpt:
"We projected that VARO staff did not correctly process 23 percent of approximately 45,000 claims. We also found weaknesses associated with processing Notices of Disagreements for appealed claims, correcting errors identified by VBA’s Systematic Technical Accuracy Review Program, ensuring timely and complete Systematic Analyses of Operations, and processing claims-related mail."
Report Summary
Systemic Issues Reported During Inspections at VA Regional Offices
Report Number 11-00510-167, 5/18/2011 | Full Report (PDF)at above link
The Office of Inspector General established its Benefits Inspection Program in March 2009 as a major initiative to help ensure timely and accurate delivery of veterans’ benefits and services. This report is a summary of systemic issues identified at 16 VAROs inspected from April 2009 to September 2010. We did not inspect all operational activities at each VARO. VARO management teams face multiple challenges in providing benefits and services to veterans. Challenges include providing additional oversight and training for personnel responsible for processing disability compensation claims related to temporary 100 percent disability evaluations, post-traumatic stress disorder, traumatic brain injury, herbicide-related disabilities, and Haas cases. We projected that VARO staff did not correctly process 23 percent of approximately 45,000 claims. We also found weaknesses associated with processing Notices of Disagreements for appealed claims, correcting errors identified by VBA’s Systematic Technical Accuracy Review Program, ensuring timely and complete Systematic Analyses of Operations, and processing claims-related mail. Additionally, VARO staff did not always safeguard veterans’ personally identifiable information or make timely final competency decisions for beneficiaries unable to manage their affairs. As a result of the 16 inspections, we made 86 recommendations to improve VARO operations regarding the systemic issues addressed. VARO Directors concurred with all of the recommendations. We further recommend the Acting Under Secretary for Benefits revise the policy on evaluating residuals of Traumatic Brain Injuries and provide training to medical examiners conducting traumatic brain injury medical examinations to ensure compliance with current examination requirements. We also recommend the Acting Under Secretary develop a clear and measurable standard for timely completion of competency determinations. The Acting Under Secretary for Benefits concurred with our recommendations. Management’s planned actions are responsive and we will follow up as required on all actions.
"We projected that VARO staff did not correctly process 23 percent of approximately 45,000 claims. We also found weaknesses associated with processing Notices of Disagreements for appealed claims, correcting errors identified by VBA’s Systematic Technical Accuracy Review Program, ensuring timely and complete Systematic Analyses of Operations, and processing claims-related mail."
Report Summary
Systemic Issues Reported During Inspections at VA Regional Offices
Report Number 11-00510-167, 5/18/2011 | Full Report (PDF)at above link
The Office of Inspector General established its Benefits Inspection Program in March 2009 as a major initiative to help ensure timely and accurate delivery of veterans’ benefits and services. This report is a summary of systemic issues identified at 16 VAROs inspected from April 2009 to September 2010. We did not inspect all operational activities at each VARO. VARO management teams face multiple challenges in providing benefits and services to veterans. Challenges include providing additional oversight and training for personnel responsible for processing disability compensation claims related to temporary 100 percent disability evaluations, post-traumatic stress disorder, traumatic brain injury, herbicide-related disabilities, and Haas cases. We projected that VARO staff did not correctly process 23 percent of approximately 45,000 claims. We also found weaknesses associated with processing Notices of Disagreements for appealed claims, correcting errors identified by VBA’s Systematic Technical Accuracy Review Program, ensuring timely and complete Systematic Analyses of Operations, and processing claims-related mail. Additionally, VARO staff did not always safeguard veterans’ personally identifiable information or make timely final competency decisions for beneficiaries unable to manage their affairs. As a result of the 16 inspections, we made 86 recommendations to improve VARO operations regarding the systemic issues addressed. VARO Directors concurred with all of the recommendations. We further recommend the Acting Under Secretary for Benefits revise the policy on evaluating residuals of Traumatic Brain Injuries and provide training to medical examiners conducting traumatic brain injury medical examinations to ensure compliance with current examination requirements. We also recommend the Acting Under Secretary develop a clear and measurable standard for timely completion of competency determinations. The Acting Under Secretary for Benefits concurred with our recommendations. Management’s planned actions are responsive and we will follow up as required on all actions.
Single Judge Application, Barr v. Nicholson, 21 Vet.App., Tinnitus
Excerpt from decision below:
"1. Tinnitus
In this case, as noted by the Board, Mr. Robinson asserts that he has
suffered from the
symptoms of ringing in his ears since his time in service, although he has
also stated that his tinnitus
began in 2004. In addition, Mr. Robinson's Form DD-214 states that his
primary military
occupational specialty was a cannon crewmember, which would confirm his
assertions that he was
subjected to extensive noise exposure during service. However, the Board
makes no mention of this
fact and instead focused its analysis on the fact that Mr. Robinson
reported conflicting dates of onset
for his tinnitus.
The evidence of record demonstrates that Mr. Robinson currently
experiences tinnitus, that he was subject to noise exposure as a cannon crewmember during service, and that he has experienced intermittent symptoms of tinnitus since his active service. See Barr v. Nicholson, 21 Vet.App. 303, 307 (2007) (stating that "[l]ay testimony is competent . . . to establish the presence
4
of observable symptom[s] and 'may provide sufficient support for a claim
of service connection'" (quoting Layno v. Brown, 6 Vet.App. 465, 469 (1994))). Accordingly, the Court concludes that the Board failed to provide an adequate statement of reasons or bases as to why Mr. Robinson was not entitled to a VA examination for his tinnitus, because it did not address his military occupational
specialityas a cannon crewmember duringservice in conjunction with his lay statements concerning his ongoing symptoms. See Duenas, 18 Vet.App. 517-18."
================================================
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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 09-4689
ALEIVY J. ROBINSON, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before HAGEL, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
HAGEL, Judge: Aleivy J. Robinson appeals through counsel a November 18,
2009, Board
of Veterans' Appeals (Board) decision that denied entitlement to VA
benefits for tinnitus, a skin
disorder, and right and left foot disorders.1
The Court has jurisdiction pursuant to 38 U.S.C.
§§ 7252(a) and 7266(a) to review the November 2009 Board decision.
Because the Board's
determination that Mr. Robinson was not entitled to VA examinations for
these conditions is not
supported by adequate reasons or bases, the Court will vacate the November
2009 Board decision
and remand the matter for readjudication consistent with this decision.
I. FACTS
Mr. Robinson served on active duty in the U.S. Armyfrom July1988 to
July1992, including
service in Southwest Asia during the Persian Gulf War. During service, Mr.
Robinson was treated
The November 2009 Board decision also denied Mr. Robinson's claim for VA
benefits for bilateral hearing
loss; however, in his brief, Mr. Robinson makes no arguments as to this
claim. The Court therefore deems any argument
pertaining to this issue abandoned. See Grivois v. Brown, 6 Vet.App. 136,
138 (1994) (issues or claims not argued on
appeal are considered abandoned).
1
for skin conditions that included athletes foot and skin peeling between
his toes and for a groin rash
diagnosed as probable herpes simplex. On his May 1992 report of medical
history, he noted that he
experienced hearing loss, but the examiner noted that there were no
circumstantial problems.
In August 1994, Mr. Robinson underwent a general VA examination. At that
time, his skin
was noted to be normal.
In March 2006, Mr. Robinson submitted a claim for VA benefits for a skin
disorder, tinnitus,
and left and right foot disabilities. Mr. Robinson stated that he
experienced a persistent bad rash
since 1993 and that, despite seeing several dermatologists, it had not
cleared. He next stated that,
"in 1988, while on active duty, [my] feet began to become painful after
jumping out of airplanes and
landing on feet." Record (R.) at 656. He also stated that he experienced "
problem with hearing
started within the last two years. Ringing tone in ears on and off. At
times I become unable to
balance." Id.
In support of his claim for a skin disorder, Mr. Robinson submitted
private medical records
documenting treatment for a skin condition diagnosed as subacute
dermatitis in December 2004.
He also submittedVA medical center treatment records reflectingtreatment
for dermatitis from May
to June 2006. Finally, in May 2006, Mr. Robinson submitted a statement
elaborating on his left and
right foot disorders, stating that this disability was not related to his
flat feet noted in service. He
stated that he recorded 42 parachute jumps during service and that this,
combined with long road
marches, caused his feet to hurt, including Achilles tendinitis.
In a September 2006 rating decision, a VA regional office found that Mr.
Robinson was not
entitled to VA benefits for tinnitus, a skin disorder, and left and right
foot disorders. Mr. Robinson
appealed that decision.
Additional VA medical center treatment records dated June 2006 to January
2007 reflect
continued treatment for dermatitis and eczema. Mr. Robinson also submitted
additional private
medical records, dated March to May 2006, reflecting treatment for his
skin, including flare-ups of
dermatitis and a rash on his feet.
In September 2009, Mr. Robinson testified at a Board hearing that his skin
problems began
during service but that he did not begin seeking medical treatment until
approximately 2001 when
2
the condition worsened. He also testified that his skin condition had
been diagnosed as various
disorders throughout the years.
In the November 2009 Board decision currently on appeal, the Board found
that Mr.
Robinson was not entitled to VA benefits for tinnitus, a skin condition,
or left and right foot
disorders. The Board noted that Mr. Robinson had not been afforded a VA
examination for any of
the disabilities on appeal. The Board explained that the criteria for
affordinga VA examination were
not met as to each disability, stating that:
[The record] contains no evidence of tinnitus in service or any persuasive
indication
that [Mr. Robinson]'s current tinnitus is related to service. There is no
evidence of
a chronic skin disorder in service with the same symptom[s] as [his]
current skin
disorders. In addition there is no indication that [his] current skin
disorders are
related to his active service. Regarding [his] claim for right and left
foot disorders,
the evidence again does not indicate that [ ] any current foot disorder is
related to
service. The Board finds that there is otherwise sufficient evidence to
decide the
claims.
R. at 6-7.
On appeal, Mr. Robinson argues that the Board erred in not properly
considering the lay
evidence of record and not affording him examinations. In response, the
Secretary disputes these
contentions and argues that the Court should affirm the November 2009
Board decision.
II. ANALYSIS
A. Entitlement to VA Medical Examinations
Pursuant to 38 C.F.R. § 3.159(c)(4)(i) (2010), VA must provide a claimant
a medical opinion
or examination
if the information and evidence of record does not contain sufficient
competent
medical evidence to decide the claim, but:
(A) Contains competent lay or medical evidence of a current diagnosed
disability or persistent or recurrent symptoms of disability;
(B) Establishes that the veteran suffered an event, injuryor disease in
service,
or has a disease or symptoms of a disease listed in [38 C.F.R.] § 3.309,
§ 3.313, § 3.316, and § 3.317 manifesting during an applicable
presumptive
3
period provided the claimant has the required service or triggering event
to
qualify for that presumption; and
(C) Indicates that the claimed disability or symptoms may be associated
with
the established event, Previous DocumentinjuryNext Document, or disease in service or with another service-connected disability. See also 38 U.S.C. § 5103A(d)(2).
In McLendon v. Nicholson, the Court observed that the third prong of § 3.
159(c)(4)(i), which requires that the evidence of record "indicate" that "the claimed disability or symptoms may be associated with the established event," establishes "a low threshold." 20 Vet.App. 79, 83 (2006)(emphasis added). The Court went on to note that:
The types of evidence that 'indicate' that a current disability 'may be
associated' with military service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. Id.
In addition, the Board is required to provide an adequate statement of
reasons or bases for its conclusion. See Duenas v. Principi, 18 Vet.App. 512, 517-18 (2004) ( citing Tucker v. West, 11 Vet.App. 369, 374 (1998)).
1. Tinnitus
In this case, as noted by the Board, Mr. Robinson asserts that he has
suffered from the symptoms of ringing in his ears since his time in service, although he has also stated that his tinnitus began in 2004. In addition, Mr. Robinson's Form DD-214 states that his primary military occupational specialty was a cannon crewmember, which would confirm his assertions that he was subjected to extensive noise exposure during service. However, the Board makes no mention of this
fact and instead focused its analysis on the fact that Mr. Robinson reported conflicting dates of onset for his tinnitus.
The evidence of record demonstrates that Mr. Robinson currently experiences tinnitus, that
he was subject to noise exposure as a cannon crewmember during service,
and that he has
experienced intermittent symptoms of tinnitus since his active service.
See Barr v. Nicholson,
21 Vet.App. 303, 307 (2007) (stating that "[l]ay testimony is competent
. . . to establish the presence
4
of observable symptom[s] and 'may provide sufficient support for a claim
of service connection'"(quoting Layno v. Brown, 6 Vet.App. 465, 469 (1994))). Accordingly, the Court concludes that the Board failed to provide an adequate statement of reasons or bases as to why Mr. Robinson was not entitled to a VA examination for his tinnitus, because it did not address his military occupational
speciality as a cannon crewmember duringservice in conjunction with his lay statements concerning his ongoing symptoms. See Duenas, 18 Vet.App. 517-18. On remand, the Board should either provide Mr. Robinson with a VA medical examination or discuss this evidence and determine whether Mr. Robinson has tinnitus and whether it is connected to service, or whether a VA medical examination is not warranted.
2. Skin Disorder
Here, the Board stated that Mr. Robinson's skin disorders during service
did not manifest the
same symptoms as his current skin disorder and, therefore, a VA medical
examination was not
warranted. However, the Board failed to discuss the fact that Mr. Robinson
was treated for athletes
foot and peeling between his toes during service and that, in a
February2006 private medical record,
Mr. Robinson was treated for a rash on his feet and lower extremities.
Moreover, throughout his
private and VA medical center treatment records, Mr. Robinson has stated
that his skin disorder
affects his "whole body . . . from head to toe." R. at 36. Further, Mr.
Robinson's private and VA
medical center treatment records reflect that his skin disorder is prone
to flare-ups. For example, his
condition is worse at some visits than at others. In addition to being
treated for a skin disorder
during service and having a currently diagnosed skin disorder, Mr.
Robinson has consistently
maintained throughout the course of his appeal that his skin disorder
continued to afflict him after
service, but that he did not seek medical treatment until approximately
2001 when the condition
worsened.
Accordingly, the Court concludes that the Board failed to provide an
adequate statement of
reasons or bases for its determination that Mr. Robinson was not entitled
to a VA medical examination for his skin disorder. On remand, the Board should either provide Mr. Robinson with a VA medical examination or adequately discuss Mr.Robinson's current symptoms, his skin disorder during service, and his statements that he has experienced ongoing symptoms since service, in
5
determining whether a VA medical examination is not warranted. See Duenas,
18 Vet.App. 517-18.
3. Left and Right Foot Disorders
With regard to Mr. Robinson's left and right foot disorders, the Board
found that he was not
entitled to a VA medical examination because there was no evidence to
indicate that these disorders
were related to service. However, throughout the course of this appeal, Mr.
Robinson has
maintained that his current left and right foot disorders were the result
of parachute jumps during
service. Mr. Robinson's DD-214 reflects that he was awarded the
parachutist badge during service.
Nonetheless, the Board failed to mention in its decisionMr.
Robinson'slaystatementsaboutinjuring
his feet during parachute jumps, the fact that he was awarded the
parachutist badge, or that he has
experienced continuous symptoms since service.
Accordingly, the Court again concludes that the Board failed to provide an
adequate
statement of reasons or bases as to why Mr. Robinson was not afforded a VA
medical examination
for his left and right foot disorders. On remand, the Board should either
provide Mr. Robinson with
a VA medical examination or discuss this evidence in explaining why Mr.
Robinson is not entitled
to such an examination. See Duenas, 18 Vet.App. at 517-18.
B. Other Arguments
In his brief, Mr. Robinson also argues that the Board failed to properly
account for his lay
statements and that the Board's finding that he was not entitled to VA
benefits for a skin disorder was
clearly erroneous. However, because the Court is remanding Mr. Robinson's
claims for further
development as to whether he is entitled to VA medical examinations for
his disabilities on appeal,
which will require the Board to take into account Mr. Robinson's lay
statements, the Court need not
further address this argument at this time. Similarly, because the Board
will readjudicate Mr. Robinson's claim for VA benefits for a skin disorder on remand, the Court need not further address whether the Board's determination was clearly erroneous at this time. The Court reminds the Board that it "cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence," and that "competent lay evidence can be sufficient in and of itself" to support a finding of serviceconnection. Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006).
6
On remand, Mr. Robinson is free to submit additional evidence and
argument in accordance
with Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999) (per curiam
order). See Kay v.
Principi, 16 Vet.App. 529, 534 (2002). The Court reminds the Board that "[
a] remand is meant to
entail a critical examination of the justification for the decision."
Fletcher v. Derwinski, 1 Vet.App.
394, 397 (1991). In addition, the Board shall proceed expeditiously, in
accordance with 38 U.S.C.
§ 7112 (expedited treatment of remanded claims).
III. CONCLUSION
Upon consideration of the foregoing, the November 18, 2009, Board decision
is VACATED
and the issues are REMANDED for readjudication and further development, if
necessary.
DATED: May 12, 2011
Copies to:
R. Edward Bates, Esq.
VA General Counsel (027)
7
"1. Tinnitus
In this case, as noted by the Board, Mr. Robinson asserts that he has
suffered from the
symptoms of ringing in his ears since his time in service, although he has
also stated that his tinnitus
began in 2004. In addition, Mr. Robinson's Form DD-214 states that his
primary military
occupational specialty was a cannon crewmember, which would confirm his
assertions that he was
subjected to extensive noise exposure during service. However, the Board
makes no mention of this
fact and instead focused its analysis on the fact that Mr. Robinson
reported conflicting dates of onset
for his tinnitus.
The evidence of record demonstrates that Mr. Robinson currently
experiences tinnitus, that he was subject to noise exposure as a cannon crewmember during service, and that he has experienced intermittent symptoms of tinnitus since his active service. See Barr v. Nicholson, 21 Vet.App. 303, 307 (2007) (stating that "[l]ay testimony is competent . . . to establish the presence
4
of observable symptom[s] and 'may provide sufficient support for a claim
of service connection'" (quoting Layno v. Brown, 6 Vet.App. 465, 469 (1994))). Accordingly, the Court concludes that the Board failed to provide an adequate statement of reasons or bases as to why Mr. Robinson was not entitled to a VA examination for his tinnitus, because it did not address his military occupational
specialityas a cannon crewmember duringservice in conjunction with his lay statements concerning his ongoing symptoms. See Duenas, 18 Vet.App. 517-18."
================================================
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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 09-4689
ALEIVY J. ROBINSON, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before HAGEL, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
HAGEL, Judge: Aleivy J. Robinson appeals through counsel a November 18,
2009, Board
of Veterans' Appeals (Board) decision that denied entitlement to VA
benefits for tinnitus, a skin
disorder, and right and left foot disorders.1
The Court has jurisdiction pursuant to 38 U.S.C.
§§ 7252(a) and 7266(a) to review the November 2009 Board decision.
Because the Board's
determination that Mr. Robinson was not entitled to VA examinations for
these conditions is not
supported by adequate reasons or bases, the Court will vacate the November
2009 Board decision
and remand the matter for readjudication consistent with this decision.
I. FACTS
Mr. Robinson served on active duty in the U.S. Armyfrom July1988 to
July1992, including
service in Southwest Asia during the Persian Gulf War. During service, Mr.
Robinson was treated
The November 2009 Board decision also denied Mr. Robinson's claim for VA
benefits for bilateral hearing
loss; however, in his brief, Mr. Robinson makes no arguments as to this
claim. The Court therefore deems any argument
pertaining to this issue abandoned. See Grivois v. Brown, 6 Vet.App. 136,
138 (1994) (issues or claims not argued on
appeal are considered abandoned).
1
for skin conditions that included athletes foot and skin peeling between
his toes and for a groin rash
diagnosed as probable herpes simplex. On his May 1992 report of medical
history, he noted that he
experienced hearing loss, but the examiner noted that there were no
circumstantial problems.
In August 1994, Mr. Robinson underwent a general VA examination. At that
time, his skin
was noted to be normal.
In March 2006, Mr. Robinson submitted a claim for VA benefits for a skin
disorder, tinnitus,
and left and right foot disabilities. Mr. Robinson stated that he
experienced a persistent bad rash
since 1993 and that, despite seeing several dermatologists, it had not
cleared. He next stated that,
"in 1988, while on active duty, [my] feet began to become painful after
jumping out of airplanes and
landing on feet." Record (R.) at 656. He also stated that he experienced "
problem with hearing
started within the last two years. Ringing tone in ears on and off. At
times I become unable to
balance." Id.
In support of his claim for a skin disorder, Mr. Robinson submitted
private medical records
documenting treatment for a skin condition diagnosed as subacute
dermatitis in December 2004.
He also submittedVA medical center treatment records reflectingtreatment
for dermatitis from May
to June 2006. Finally, in May 2006, Mr. Robinson submitted a statement
elaborating on his left and
right foot disorders, stating that this disability was not related to his
flat feet noted in service. He
stated that he recorded 42 parachute jumps during service and that this,
combined with long road
marches, caused his feet to hurt, including Achilles tendinitis.
In a September 2006 rating decision, a VA regional office found that Mr.
Robinson was not
entitled to VA benefits for tinnitus, a skin disorder, and left and right
foot disorders. Mr. Robinson
appealed that decision.
Additional VA medical center treatment records dated June 2006 to January
2007 reflect
continued treatment for dermatitis and eczema. Mr. Robinson also submitted
additional private
medical records, dated March to May 2006, reflecting treatment for his
skin, including flare-ups of
dermatitis and a rash on his feet.
In September 2009, Mr. Robinson testified at a Board hearing that his skin
problems began
during service but that he did not begin seeking medical treatment until
approximately 2001 when
2
the condition worsened. He also testified that his skin condition had
been diagnosed as various
disorders throughout the years.
In the November 2009 Board decision currently on appeal, the Board found
that Mr.
Robinson was not entitled to VA benefits for tinnitus, a skin condition,
or left and right foot
disorders. The Board noted that Mr. Robinson had not been afforded a VA
examination for any of
the disabilities on appeal. The Board explained that the criteria for
affordinga VA examination were
not met as to each disability, stating that:
[The record] contains no evidence of tinnitus in service or any persuasive
indication
that [Mr. Robinson]'s current tinnitus is related to service. There is no
evidence of
a chronic skin disorder in service with the same symptom[s] as [his]
current skin
disorders. In addition there is no indication that [his] current skin
disorders are
related to his active service. Regarding [his] claim for right and left
foot disorders,
the evidence again does not indicate that [ ] any current foot disorder is
related to
service. The Board finds that there is otherwise sufficient evidence to
decide the
claims.
R. at 6-7.
On appeal, Mr. Robinson argues that the Board erred in not properly
considering the lay
evidence of record and not affording him examinations. In response, the
Secretary disputes these
contentions and argues that the Court should affirm the November 2009
Board decision.
II. ANALYSIS
A. Entitlement to VA Medical Examinations
Pursuant to 38 C.F.R. § 3.159(c)(4)(i) (2010), VA must provide a claimant
a medical opinion
or examination
if the information and evidence of record does not contain sufficient
competent
medical evidence to decide the claim, but:
(A) Contains competent lay or medical evidence of a current diagnosed
disability or persistent or recurrent symptoms of disability;
(B) Establishes that the veteran suffered an event, injuryor disease in
service,
or has a disease or symptoms of a disease listed in [38 C.F.R.] § 3.309,
§ 3.313, § 3.316, and § 3.317 manifesting during an applicable
presumptive
3
period provided the claimant has the required service or triggering event
to
qualify for that presumption; and
(C) Indicates that the claimed disability or symptoms may be associated
with
the established event, Previous DocumentinjuryNext Document, or disease in service or with another service-connected disability. See also 38 U.S.C. § 5103A(d)(2).
In McLendon v. Nicholson, the Court observed that the third prong of § 3.
159(c)(4)(i), which requires that the evidence of record "indicate" that "the claimed disability or symptoms may be associated with the established event," establishes "a low threshold." 20 Vet.App. 79, 83 (2006)(emphasis added). The Court went on to note that:
The types of evidence that 'indicate' that a current disability 'may be
associated' with military service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. Id.
In addition, the Board is required to provide an adequate statement of
reasons or bases for its conclusion. See Duenas v. Principi, 18 Vet.App. 512, 517-18 (2004) ( citing Tucker v. West, 11 Vet.App. 369, 374 (1998)).
1. Tinnitus
In this case, as noted by the Board, Mr. Robinson asserts that he has
suffered from the symptoms of ringing in his ears since his time in service, although he has also stated that his tinnitus began in 2004. In addition, Mr. Robinson's Form DD-214 states that his primary military occupational specialty was a cannon crewmember, which would confirm his assertions that he was subjected to extensive noise exposure during service. However, the Board makes no mention of this
fact and instead focused its analysis on the fact that Mr. Robinson reported conflicting dates of onset for his tinnitus.
The evidence of record demonstrates that Mr. Robinson currently experiences tinnitus, that
he was subject to noise exposure as a cannon crewmember during service,
and that he has
experienced intermittent symptoms of tinnitus since his active service.
See Barr v. Nicholson,
21 Vet.App. 303, 307 (2007) (stating that "[l]ay testimony is competent
. . . to establish the presence
4
of observable symptom[s] and 'may provide sufficient support for a claim
of service connection'"(quoting Layno v. Brown, 6 Vet.App. 465, 469 (1994))). Accordingly, the Court concludes that the Board failed to provide an adequate statement of reasons or bases as to why Mr. Robinson was not entitled to a VA examination for his tinnitus, because it did not address his military occupational
speciality as a cannon crewmember duringservice in conjunction with his lay statements concerning his ongoing symptoms. See Duenas, 18 Vet.App. 517-18. On remand, the Board should either provide Mr. Robinson with a VA medical examination or discuss this evidence and determine whether Mr. Robinson has tinnitus and whether it is connected to service, or whether a VA medical examination is not warranted.
2. Skin Disorder
Here, the Board stated that Mr. Robinson's skin disorders during service
did not manifest the
same symptoms as his current skin disorder and, therefore, a VA medical
examination was not
warranted. However, the Board failed to discuss the fact that Mr. Robinson
was treated for athletes
foot and peeling between his toes during service and that, in a
February2006 private medical record,
Mr. Robinson was treated for a rash on his feet and lower extremities.
Moreover, throughout his
private and VA medical center treatment records, Mr. Robinson has stated
that his skin disorder
affects his "whole body . . . from head to toe." R. at 36. Further, Mr.
Robinson's private and VA
medical center treatment records reflect that his skin disorder is prone
to flare-ups. For example, his
condition is worse at some visits than at others. In addition to being
treated for a skin disorder
during service and having a currently diagnosed skin disorder, Mr.
Robinson has consistently
maintained throughout the course of his appeal that his skin disorder
continued to afflict him after
service, but that he did not seek medical treatment until approximately
2001 when the condition
worsened.
Accordingly, the Court concludes that the Board failed to provide an
adequate statement of
reasons or bases for its determination that Mr. Robinson was not entitled
to a VA medical examination for his skin disorder. On remand, the Board should either provide Mr. Robinson with a VA medical examination or adequately discuss Mr.Robinson's current symptoms, his skin disorder during service, and his statements that he has experienced ongoing symptoms since service, in
5
determining whether a VA medical examination is not warranted. See Duenas,
18 Vet.App. 517-18.
3. Left and Right Foot Disorders
With regard to Mr. Robinson's left and right foot disorders, the Board
found that he was not
entitled to a VA medical examination because there was no evidence to
indicate that these disorders
were related to service. However, throughout the course of this appeal, Mr.
Robinson has
maintained that his current left and right foot disorders were the result
of parachute jumps during
service. Mr. Robinson's DD-214 reflects that he was awarded the
parachutist badge during service.
Nonetheless, the Board failed to mention in its decisionMr.
Robinson'slaystatementsaboutinjuring
his feet during parachute jumps, the fact that he was awarded the
parachutist badge, or that he has
experienced continuous symptoms since service.
Accordingly, the Court again concludes that the Board failed to provide an
adequate
statement of reasons or bases as to why Mr. Robinson was not afforded a VA
medical examination
for his left and right foot disorders. On remand, the Board should either
provide Mr. Robinson with
a VA medical examination or discuss this evidence in explaining why Mr.
Robinson is not entitled
to such an examination. See Duenas, 18 Vet.App. at 517-18.
B. Other Arguments
In his brief, Mr. Robinson also argues that the Board failed to properly
account for his lay
statements and that the Board's finding that he was not entitled to VA
benefits for a skin disorder was
clearly erroneous. However, because the Court is remanding Mr. Robinson's
claims for further
development as to whether he is entitled to VA medical examinations for
his disabilities on appeal,
which will require the Board to take into account Mr. Robinson's lay
statements, the Court need not
further address this argument at this time. Similarly, because the Board
will readjudicate Mr. Robinson's claim for VA benefits for a skin disorder on remand, the Court need not further address whether the Board's determination was clearly erroneous at this time. The Court reminds the Board that it "cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence," and that "competent lay evidence can be sufficient in and of itself" to support a finding of serviceconnection. Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006).
6
On remand, Mr. Robinson is free to submit additional evidence and
argument in accordance
with Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999) (per curiam
order). See Kay v.
Principi, 16 Vet.App. 529, 534 (2002). The Court reminds the Board that "[
a] remand is meant to
entail a critical examination of the justification for the decision."
Fletcher v. Derwinski, 1 Vet.App.
394, 397 (1991). In addition, the Board shall proceed expeditiously, in
accordance with 38 U.S.C.
§ 7112 (expedited treatment of remanded claims).
III. CONCLUSION
Upon consideration of the foregoing, the November 18, 2009, Board decision
is VACATED
and the issues are REMANDED for readjudication and further development, if
necessary.
DATED: May 12, 2011
Copies to:
R. Edward Bates, Esq.
VA General Counsel (027)
7
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