Single Judge Application, Prejudicial Error, Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004)

Excerpt from decision below:
"The Board's failure to consider potentially favorable medical
evidence constitutes error that renders its statement of reasons of bases inadequate. See Caluza, 7 Vet.App. at 506. When the Court concludes that the Board has committed error, the Court is bound by statute to determine whether that error is prejudicial to the claimant's claim. See 38 U.S.C. § 7261(b)(2) (requiring the Court to "take due account of the rule of prejudicial error"); Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004).
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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 09-3181
GLEN H. PHILLIPS, 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: Glen H. Phillips appeals through counsel an April 30, 2009,
Board of
Veterans' Appeals (Board) decision denying entitlement to VA benefits for
muscle and joint pain,
a neuropsychological disorder, a sinus and throat disorder, a respiratory
disorder, a gastrointestinal
disorder, and extreme dental decay, all to include as due to an
undiagnosed illness.1
Record (R.) at
688-705. The Court has jurisdiction pursuant to 38 U.S.C. §§ 7252(a) and
7266(a) to review the
April 2009 Board decision. Mr. Phillips did not request oral argument or
identify issues he believes
require a precedential decision of the Court. Because the Board failed to
ensure compliance with
its September2007remandorderregardingMr.Phillips'sclaimforbenefits
foraneuropsychological
disorder, and because the Board failed to provide an adequate statement of
reasons or bases for its
decision regarding his claim for benefits for a gastrointestinal disorder,
the Court will vacate the
portions of the April 30, 2009, Board decision denying entitlement to
benefits for a
neuropsychological disorder and a gastrointestinal disorder and remand
those claims for further
The Board also denied entitlement to initial disability ratings in excess
of 10% for varicosities of the bilateral
lower extremities. However, because Mr. Phillips does not make any
arguments regarding the varicosities claims in his
brief, the Court deems abandoned any appeal as to those claims. See
Grivois v. Brown, 6 Vet.App. 136, 138 (1994)
(holding that issues or claims not argued on appeal are considered
abandoned).
1


development, if necessary, and readjudication consistent with this
decision. Because the Board's
failure to consider various medical records was not Previous DocumentprejudicialNext Hit to Mr.
Phillips's other claims, the
Court will affirm the remainder of the Board decision.
I. FACTS
Mr. Phillips served on active duty in the U.S. Air Force from June 1981 to
June 1991,
including service in Southwest Asia during the Persian Gulf War. Service
medical records reveal
treatment for chronic low back pain and scoliosis in February1983,
heartburn and gastritis in March
1988, chest and lung problems in January 1990, heartburn in October 1990,
and recurrent low back
pain and scoliosis in March 1991.2
It was also noted that Mr. Phillips had dental caries3
in
September 1985 and sought treatment for depression due to marital problems
in April 1990.
In April 2001, Mr. Phillips was involved in a "significant motor vehicle
accident" in which
he sustained a closed head injury, traumatic brain injury, and fractured
cervical spine. R. at 514.
Upon being admitted to the hospital, Mr. Phillips was intubated to assist
his breathing.4
In November 2002, Mr. Phillips filed a claim for VA benefits for muscle
and joint pain, a
neuropsychological disorder, a sinus and throat disorder, a respiratory
disorder, a gastrointestinal
disorder, and extreme dental decay, among other conditions. His claim also
referenced stenosis of
the trachea.5
In August 2003, Mr. Phillips attended a VA medical examination for these
conditions. With
respect to Mr. Phillips's muscle and joint pain, a VA examiner diagnosed
him with "osteoarthritis
in multiple sites consistent with age" and opined that his "Gulf War
experience did not cause his
osteoarthritis." R. at 911. The examiner also attributed Mr. Phillips's "
progressive low back pain"
Scoliosis is "an appreciable lateral deviation in the normally straight
vertical line of the spine." DORLAND'S
ILLUSTRATED MEDICAL DICTIONARY 1706 (31st ed. 2007) [hereinafter DORLAND'S
]. Gastritis is "inflammation of the
stomach." Id. at 774.
Caries is "the molecular decay or death of a bone, in which it becomes
softened, discolored, and porous."
DORLAND'S at 300.
4
3
2
Intubation is "the insertion of a tube into a body canal or cavity."
DORLAND'S at 969.
Stenosis is "an abnormal narrowing of a duct or canal." DORLAND'S at 1795.
5
2


to his mild degenerative joint disease, "which is a process of his ageing [
sic]." R. at 921. With
respect to Mr. Phillips's respiratory condition, the examiner diagnosed
him with subglottic stenosis
with a resultant tracheotomy. The examiner opined that he "d[id] not feel
like [Mr. Phillips's] Gulf
War experience with breathing the fumes that [were] over there caused his
subglottic stenosis," but
rather that it was "most likely secondaryto his traumatic intubation"
following the April 2001 motor
vehicle accident. R. at 917. Finally, Mr. Phillips underwent a
psychological examination and a
separate VA examiner diagnosed him with bipolar disorder of an unspecified
etiology without
reviewing his claims file.
In September 2003, a VA regional office denied Mr. Phillips's claims for
benefits for muscle
and joint pain, a neuropsychological disorder, a sinus and throat disorder,
a respiratory disorder, a
gastrointestinal disorder, and extreme dental decay.
Mr. Phillips filed a timely Notice of
Disagreement with that decision and subsequently perfected his appeal.
In October 2005, Mr. Phillips attended another VA medical examination in
which he was
diagnosed with chronic obstructive pulmonary disease and gastroesophageal
reflux disease.6
Although Mr. Phillips was also scheduled for a dental examination at that
time, he refused to
undergo the examination because he stated that "he had all [his] teeth
removed and dentures made"
and "got his award from Social Security and does not feel he needs the
exam[ination]." R. at 770.
In September 2007, the Board remanded Mr. Phillips's claims for VA to
obtain his Social
Security Administration records. The Board also noted that the examiner
who conducted Mr.
Phillips's August 2003 psychiatric examination did not review his claims
folder, which "contains
evidence . . . relevant to the question of the etiology and onset of [his]
bipolar disorder," and
remanded for VA to schedule a new psychiatric evaluation that included
claims-folder review. R.
at 675. Accordingly, the VA Appeals Management Center scheduled Mr.
Phillips for a psychiatric
examination in August 2008, but he cancelled it for reasons that were
unexplained at the time. In
January 2009, Mr. Phillips sent an email to VA that stated: "I am now
willing, able & looking
Chronic obstructive pulmonary disease is "any disorder characterized by
persistent or recurring obstruction
of bronchial air flow, such as chronic bronchitis, asthma, or pulmonary
emphysema" DORLAND'S at 538.
Gastroesophageal reflux disease is "any condition noted clinically or
histopathologically that results from
gastroesophageal reflux, ranging in seriousness from mild to life-
threatening; principal characteristics are heartburn and
regurgitation." Id. at 540.
6
3


forward to a [VA] examination. I cancelled one that I had in Aug[ust] [20]
08 because I was
suffering from severe depression & anxiety." R. at 8. However, VA did not
schedule another
psychiatric examination for him.
In April 2009, the Board issued the decision currently on appeal, which
denied entitlement
to benefits for muscle and joint pain, a neuropsychological disorder, a
sinus and throat disorder, a
respiratory disorder, a gastrointestinal disorder, and extreme dental
decay, all to include as due to
an undiagnosed illness. Specifically, the Board found that these
conditions were not undiagnosed
illnesses under 38 C.F.R. § 3.317 because they were all attributed to
known diagnoses. Moreover,
the Board determined that Mr. Phillips was not entitled to service
connection for any of these
conditions on a direct basis because there was no evidence of any diseases
or injuries in service and
no evidence of a nexus between the current diagnoses and his service.
In making these
determinations, the Board considered the length of time between Mr.
Phillips's separation from
service and his post-service treatment and found that such gaps weighed
against his claims. In
addition, with respect to his claim for benefits for a sinus and throat
problem, the Board found that
the evidence established that this condition was related to the April 2001
motor vehicle accident, not
his service in the Persian Gulf.
II. ANALYSIS
As an initial matter, the Court notes that Mr. Phillips does not challenge
the Board's findings
that he was not entitled to benefits for any of his conditions under 38 C.
F.R. § 3.317 because each
of his claimed conditions was attributed to a known diagnosis. Therefore,
the Court will not address
this theory of service connection in its discussion of his claims. See
Hilkert v. West, 12 Vet.App.
145, 151 (1999) (holding that appellant has the burden of demonstrating
error), aff'd, 232 F.3d 908
(Fed. Cir. 2000) (table).
A. Compliance with September 2007 Board Remand Order
Mr. Phillips first argues that the Board erred in adjudicating his claim
for benefits for a
neuropsychological disorder because it failed to ensurecompliancewith its
September 2007 remand
order, which instructed VA to provide him with a new psychiatric
examination that included review
of his claims file. Specifically, Mr. Phillips asserts that, after he
cancelled the scheduled psychiatric
4


examination because of depression and anxiety caused by his bipolar
disorder, VA failed to request
and schedule another psychiatric examination and the Board subsequently
failed to determine
whether he had good cause for failing to attend the examination. The
Secretary concedes that "the
Board did not discuss the terms of the September 2007 Board remand order,
the fact that [Mr.
Phillips] did not present for his scheduled VA examination, or whether [
his] January2009 statement
established 'good cause' for not presenting for that examination."
Secretary's Brief (Br.) at 19
(quoting 38 C.F.R. § 3.655(a) (2010)). Both parties assert that vacatur
and remand is warranted to
ensure compliance with the Board's September 2007 remand order.
"[A] remand by this Court or the Board confers on the . . . claimant, as a
matter of law, the
right to compliance with the remand orders." Stegall v. West, 11 Vet.App.
268, 271 (1998). When
"the remand orders of the Board or this Court are not complied with, the
Board itself errs in failing
to [e]nsure compliance." Id. Such an error can constitute the basis for a
remand by this Court. Id.
It is undisputed that the September 2007 Board decision remanded Mr.
Phillips's claim for
benefits for a neuropsychological disorder for a new psychiatric
examination that included claims
file review. Pursuant to that remand order, VA scheduled a psychiatric
examination for Mr. Phillips
in August 2008, which he failed to attend. At that point, VA was free to
adjudicate his claim based
on the evidence of record, provided that the Board determined that Mr.
Phillips did not have good
cause, including "illness or hospitalization of the claimant," for failing
to report for the psychiatric
examination. 38 C.F.R. §§ 3.655(a)-(b).
However, both parties assert, and the Court agrees, that the Board erred
when it failed to
consider whether depression and anxiety constituted good cause under § 3.
655(a). Therefore,
vacatur and remand is warranted for the Board to make this determination
in the first instance to
comply with the Board's September 2007 remand order. See Stegall, 11 Vet.
App. at 271. In making
this determination, the Board must consider that the original examination
was held pursuant to a
Court order, there was only one effort made to obtain the requested
examination, and the Secretary
has conceded error in this regard. If the Board finds that Mr. Phillips's
depression and anxiety
constituted good cause under § 3.655(a), then the Board must provide him
with a new psychiatric
evaluation that includes claims file review. Otherwise, the Board must
provide an adequate
statement of reasons or bases for its determination that Mr. Phillips
failed to demonstrate good cause
5


for failing to report for the August 2008 examination. 38 U.S.C. § 7104(
d)(1) (stating that the Board
is required to provide 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").
Although Mr. Phillips additionally argues that the Board's statement of
reasons or bases for
denying his claim for benefits for a neuropsychological disorder was
inadequate, the Court need not
address that argument because the Board will necessarily provide a new
statement of reasons or
bases for its decision on this claim on remand.
B. Reasons or Bases
Mr. Phillips next argues that the Board failed to provide an adequate
statement of reasons or
bases for its determinations that he was not entitled to VA benefits for
his remaining conditions.
In rendering its decision, the Board is required to provide 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." 38 U.S.C. § 7104(d)(1). The statement must be adequate to enable
a claimant to understand
the precise basis for the Board's decision, as well as to facilitate
review in this Court. Gilbert v.
Derwinski, 1 Vet.App. 49, 57 (1990). To comply with this requirement, the
Board must analyze the
credibilityand 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). The Board may commit error requiring remand when it fails
to provide an adequate
statement of its reasons or bases. Gilbert, 1 Vet.App. at 57.
1. Muscle and Joint Pain
Mr. Phillips argues that the Board's statement of reasons or bases for its
determination that
he was not entitled to benefits for muscle and joint pain was inadequate
because it (1) failed to
consider March 1991 service medical records reflecting a complaint of low
back pain and diagnoses
of recurrent low back strain and very mild lumbar scoliosis; (2)
misapplied the holding in Maxson
v. Gober, 230 F.3d 1330 (Fed. Cir. 2000); and (3) relied on Maxson to "
supplant the appropriate
application of 38 C.F.R. § 3.303(b) to evaluate continuity of
symptomatology to establish service
connection." Appellant's Br. at 15.
6


With respect to his first argument, Mr. Phillips is correct that the
Board did not discuss either
of the March 1991 service medical records that reflect treatment for and
diagnoses of low back
conditions. The Board's failure to consider potentially favorable medical
evidence constitutes error that renders its statement of reasons of bases inadequate. See Caluza, 7 Vet.App. at 506. When the Court concludes that the Board has committed error, the Court is bound by statute to determine whether that error is prejudicial to the claimant's claim. See 38 U.S.C. § 7261(b)(2) (requiring the Court to "take due account of the rule of prejudicial error"); Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004).
Service connection for VA disability compensation purposes is established
on a direct basis when the record before the Secretary contains lay or medical evidence of (1) a current disability,
(2) incurrence or aggravation of a disease or injury in service, and (3) a
nexus between the in-service
injury or disease and the current disability. See 38 U.S.C. § 1110;
Shedden v. Principi, 381 F.3d
1163, 1166-67 (Fed. Cir. 2004); 38 C.F.R. § 3.303 (2011). Here, the Board
denied Mr. Phillips's
claim for benefits for muscle and joint pain on a direct basis because it
determined that there was no
incurrence of a disease or injury in service and no nexus between his
current disability and service.
Even assuming that the March 1991 service medical records that the Board
failed to consider would
establish that Mr. Phillips incurred a muscle or joint disease or injury
in service, there would still be
no evidence of a nexus between his current disabilities, diagnosed as
osteoarthritis and degenerative
joint disease, and his service. In fact, the only evidence of a nexus
between his current muscle and
joint disabilities and service is Mr. Phillips lay statements, which the
Board determined were not
competent to establish nexus because Mr. Phillips, as a layman, did not
possess the necessary
expertise to opine as to the etiology of those disabilities. Accordingly,
the only evidence of record
relevant to the question of nexus between Mr. Phillips's current muscle
and joint disabilities and
service is the August 2003 VA medical opinion that stated that his
osteoarthritis and degenerative
joint disease were attributable to age, not to his service.
Mr. Phillips does not challenge the Board's competency determination with
regard to his lay
statements, does not argue that the August 2003 VA medical examination was
inadequate, and does
not otherwise assert that a new medical opinion is warranted to determine
the etiology of his current
muscle and joint disabilities. Consequently, the Court concludes that the
Board's failure to consider
7


the March 2001 service medical records was harmless error. See 38 U.S.C. §
7261(b)(2); Conway,
353 F.3d at 1374; see also Soyini v. Derwinski, 1 Vet.App. 540, 546 (1991) (
holding that remand is
not warranted where "strict adherence" to the reasons-or-bases requirement
would unnecessarily
impose additional burdens on the Board with no benefit flowing to the
veteran).
Mr. Phillips's second argument is also unpersuasive. In Maxson, the U.S.
Court of Appeals
for the Federal Circuit (Federal Circuit) held that "evidence of a
prolonged period without medical
complaint can be considered, along with other factors concerning the
veteran's health and medical
treatment during and after military service, as evidence of whether a pre-
existing condition was
aggravated by military service." 230 F.3d at 1333. Although Mr. Phillips
is correct that Maxson
dealt with a claim for VA benefits based on a theory of aggravation, not
direct service connection,
neither the Federal Circuit nor this Court has limited the application of
the holding in Maxson to
such claims. See, e.g., Fagan v. Shinseki, 573 F.3d 1282, 1289 (Fed. Cir.
2009) (direct service
connection); Parrish v. Shinseki, 24 Vet.App. 391, 401 (2011) (presumptive
service connection
based on exposure to ionizing radiation); Nieves-Rodriguez v. Peake, 22
Vet.App. 295, 305 (2008)
(secondary service connection and increased disability rating).
Moreover, to the extent that Mr. Phillips attempts to distinguish his case
from Maxson
because the length of time between separation from service and his first
post-service complaint was
only four years as opposed to 45 years, he provides no argument as to why
such a four-year gap
would not be probative evidence that his current muscle and joint
disabilities were not incurred in
service. Accordingly, the Court concludes that Mr. Phillips has failed to
carry his burden of
demonstrating error in this regard.7
See Hilkert, 12 Vet.App. at 151.
With respect to his third argument, the Court agrees with Mr. Phillips
that the Board erred
in its application of the principles of continuityof symptoms to his claim
for benefits for muscle and
joint pain. Continuity of symptoms provides an alternative method of
establishing the second and
Mr. Phillips makes this same argument with regard to his claims for
benefits for a respiratory disorder and a
gastrointestinal disorder. In both cases, he does not explain why a 10-
year and a six-year gap between his separation
from service and his initial post-service treatment for a respiratory
disorder and a gastrointestinal disorder, respectively,
would not be probative evidence that those disabilities were not incurred
in service. Therefore, the Court concludes that
he failed to carry his burden of demonstrating error in this regard. See
Hilkert, 12 Vet.App. at 151. Accordingly, the
Court will not address this argument further in its respective discussions
of Mr. Phillips's respiratory and gastrointestinal
disorders.
7
8


third elements required to establish service connection, i.e., incurrence
or aggravation of a disease
or injury in service and a nexus between the in-service injury or disease
and the current disability.
Barr v.Nicholson,21Vet.App.303,307(2007). "
Continuityofsymptomatologymaybeestablished
if a claimant can demonstrate (1) that a condition was 'noted' during
service; (2) evidence of
postservice continuity of the same symptomatology; and (3) medical or, in
certain circumstances,
lay evidence of a nexus between the present disability and the postservice
symptomatology." Id.
(citing Savage v. Gober, 10 Vet.App. 488, 495-96 (1997)); see also 38 C.F.
R. § 3.303(b). In Savage,
the Court explained that, notwithstanding a showing of continuous symptoms
since service, medical
evidence is still required to demonstrate a nexus between a current
disability and the continuous
symptoms "unless such a relationship is one as to which a lay person's
observation is competent"
because "it would not necessarily follow that there is a relationship
between any present disability
and the continuity of symptomatology demonstrated." 10 Vet.App. at 497.
Here, the Board cited Maxson and stated that a four-year gap between Mr.
Phillips's
separation from service and his initial post-service treatment for muscle
and joint disabilities "does
not support a finding of in-service onset." R. at 696. However, "symptoms,
not treatment, are the
essence of any evidence of continuity of symptomatology." Savage, 10 Vet.
App. at 496. Therefore,
Mr. Phillips's failure to seek treatment for four years following service
is irrelevant to the issue of
continuityof symptoms where, as here, there is evidence that he suffered
from continuing symptoms
of muscle and joint pain since service. See R. at 910 (reporting that Mr.
Phillips experienced
"progressive bilateral[] hip, shoulder, and knee pains since the Gulf War
"). Nevertheless, the Court
concludes that this error is harmless because, as explained above, Mr.
Phillips does not point to any
competent evidence of a nexus between his current muscle and joint
disabilities and his continuing
symptoms, anecessaryelementforanawardofserviceconnection
basedoncontinuityofsymptoms.
See Barr, 21 Vet.App. at 307; Savage, 10 Vet.App. at 497.
2. Respiratory Disorder
Mr. Phillips next argues that the Board's statement of reasons or bases
for its determination
that he was not entitled to benefits for a respiratory disorder was
inadequate because it failed to
consider a February1990 medical record that indicated a "[s]uspect area of
increased patchydensity
in the right upper lung zone" (R. at 1389), as well as an April 2001
medical record noting "a linear
9


area of probable subsegmental atelectasis seen within the right upper
lobe"8
(R. at 541) and a January
2003 medical record noting "multiple calcified subcentimeter nodes
surrounding the upper lobe
bronchus which maybe causing some degree of compression" (R. at 196). He
also contends that the
Board failed to consider his continuity of symptoms.
The Court agrees with Mr. Phillips that the Board failed to discuss the
February 1990, April
2001, and January 2003 medical records cited in his brief. However, the
Court concludes that the
Board's failure to consider these records was harmless. First, with
respect to the February 1990
medical record, Mr. Phillips does not point to any evidence of a diagnosis
of a respiratory disorder
in service. In fact, the BoardexpresslystatedthattheAugust
1990pulmonaryfunction test "revealed
no pulmonary diagnosis and found [Mr. Phillips] to be within normal limits
." R. at 699. Second,
with respect to the April 2001 and January 2003 medical records, Mr.
Phillips does not explain how
considerationofthesepost-servicemedical recordswoulddemonstrateanin-
servicediseaseorinjury
or a nexus between his current chronic obstructive pulmonary disease and
service. Notably, the
October 2005 VA medical opinion attributed his chronic obstructive
pulmonary disease to his
tobacco use. Therefore, the Court concludes that Mr. Phillips has failed
to demonstrate Previous HitprejudicialNext Hit
error in this regard. See Hilkert, 12 Vet.App. at 151.
Moreover, Mr. Phillips's continuity of symptoms argument likewise fails
because he has not
pointed to any evidence of a nexus between his current respiratory
disability and his continuous
symptoms other than his lay statements, which the Board determined to be
incompetent. See Part
II.B.1 above. In light of the negative nexus opinion provided by the VA
examiner in October 2005
and the lack of any evidence of a nexus between his current respiratory
disability and his continuing
symptoms, any error by the Board in this regard is necessarily harmless.
3. Sinus and Throat Disorder
The portion of Mr. Phillips's brief regarding his claim for benefits for a
sinus and throat
disorder is somewhat unclear, but he appears to argue that the Board erred
in classifying his
gastroesophageal reflux disease as a sinus and throat disorder rather than
a gastrointestinal disorder.
See Appellant's Br. at 19. However, other than his conclusory statement
that this disorder was
8
Atelectasis is "incomplete expansion of a lung or a portion of a lung."
DORLAND'S at 173.
10


mischaracterized by the Board, Mr. Phillips makes no argument that he was
prejudiced by the
purported error. Indeed, the Court notes that the October 2005 VA medical
examination attributes
Mr. Phillips's gastroesophageal reflux disease to his age, weight, and
tobacco use and not to his
military service. R. at 768. Accordingly, the Court concludes that Mr.
Phillips has failed to carry
his burden of demonstrating error in this regard. See Hilkert, 12 Vet.App.
at 151.
4. Extreme Dental Decay
Mr. Phillips next argues that the Board's statement of reasons or bases
for its determination
that he was not entitled to benefits for extreme dental decay was
inadequate because it failed to
consider the September 1985 medical record indicating that he had dental
caries in service. He also
contends that the Board failed to consider his continuity of symptoms.
The Court agrees with Mr. Phillips that the Board failed to consider the
September 1985
medical record. Notably, the Board stated: "Service treatment records do
not reveal complaints of,
treatment for, or diagnosis of dental decay in service. Reports of [m]
edical [h]istory indicate that
[Mr. Phillips] never suffered from tooth or gum trouble." R. at 701. This
determination is clearly
erroneous in light of the September 1985 medical record indicating that Mr.
Phillips suffered from
dental caries.
However, the Court concludes that theBoard's failureto consider this
evidence was harmless
because, even assuming that the September 1985 medical record establishes
a disease or injury in
service, there is no competent evidence of a nexus between his current
disability and his service.
Specifically, VA attempted to provide Mr. Phillips with a dental
examination in October 2005 to
determine the etiology of his extreme tooth decay. However, Mr. Phillips
refused to undergo the
examination because he stated that "he had all [his] teeth removed and
dentures made" and "got his
award from Social Securityand [did] not feel he need[ed] the exam[ination
]." R. at 770. As a result,
the Board was free to adjudicate his claim based on the evidence of record,
which did not include
a medical nexus opinion. See Kowalski v. Nicholson, 19 Vet.App. 171, 178 (
2005) (recognizing that
"a veteran is free to refuse to report for a scheduled VA examination,"
but "the consequences of that
refusal may result in the adjudication of the matter based on the evidence
of record"); 38 C.F.R.
§ 3.655(b) ("When a claimant fails to report for an examination scheduled
in conjunction with an
original compensation claim, the claim shall be rated based on the
evidence of record."). The only
11


other evidence of record that indicates a nexus between Mr. Phillips's
current dental disability and
his service is his lay statement regarding the etiology of his extreme
dental decay, which the Board
determined was not competent. Again, Mr. Phillips does not challenge this
finding and the Court
will not disturb it. Therefore, had the Board considered the September
1985 medical record, Mr.
Phillips still would not have prevailed on his claim for benefits for
extreme dental decay because
there was no competent evidence of record connecting his current dental
disability to his service.
Accordingly, the Court concludes that the Board's failure to consider the
September 1985 medical
record did not prejudice his claim. See 38 U.S.C. § 7261(b)(2); Conway,
353 F.3d at 1374.
5. Gastrointestinal Disorder
Finally, Mr. Phillips argues that the Board's statement of reasons or
bases for its
determination that he was not entitled to benefits for a gastrointestinal
disorder was inadequate
because it failed to consider March 1988 and October 1990 complaints of
heartburn in service. The
Court agrees.
Here, the Board stated that "VA treatment records reflect ongoing
treatment for peptic ulcer
disease and chronic gastritis," but determined that Mr. Phillips did not
demonstrate a chronic
gastrointestinal problem in service because his service medical records
only revealed "a single
instance of gastritis" that was deemed to be "acute and transitory rather
than chronic in nature." R.
at 700. However, the Board did not discuss the March 1988 and October 1990
complaints of
heartburn, which could have indicated an in-service gastrointestinal
disorder. The Board was
required to discuss this potentially favorable evidence and its failure to
do so renders its statement
of reasons or bases inadequate. See Caluza, 7 Vet.App. at 506.
Unlike the Board's failure to discuss medical records related to Mr.
Phillips's other claims
as described above, the Court concludes that the Board's failure to
consider the March 1988 and
October 1990 service medical records was prejudicial to his claim for
benefits for a gastrointestinal
disorder because VA never provided him with a medical examination to
determine the etiology of
his chronicgastritis andpepticulcerdisease. Specifically,theAugust
2003VAmedicalexamination
did not address his gastrointestinal disorder and, although he was
provided with an examination for
"stomach, duodenum[,] and peritoneal adhesions" in October 2005, R. at 766,
the examiner only
discussed his gastroesophageal reflux disease, which the Board considered
part of his claim for
12


benefits for a sinus and throat disorder. R. at 698-99. Assuming, without
deciding, that the March
1988 and October 1990 complaints of heartburn were evidence of an event,
injury, or disease in
service, VA would be required to provide Mr. Phillips with a medical
examination pursuant to
38 C.F.R. § 3.159(c)(4)(i) because there would be evidence of a current
gastrointestinal disability,
i.e, chronic gastritis and peptic ulcer disease; an in-service
gastrointestinal disease demonstrated by
his complaints of heartburn; and an indication that the current disability
is related to the in-service
disease, i.e., credible evidence of continuityof symptoms capable of
layobservation. See McLendon
v. Nicholson, 20 Vet.App. 79, 81-84 (2006); see also 38 U.S.C. § 5103A(d)(
2). Consequently, the
Court is unable to conclude that the Board's failure to consider the March
1988 and October 1990
complaints of heartburn in service was nonprejudicial to Mr. Phillips's
claim for benefits for a
gastrointestinal disorder and, therefore, vacatur and remand is warranted.
See Gilbert, 1 Vet.App.
at 57.
Onremand,theBoardmust determinewhethertheMarch1988andOctober1990complaints
of heartburn demonstrate incurrence of a gastrointestinal disease in
service and, if so, whether a
medical examination is required pursuant to § 3.159(c)(4)(i). Mr.
Phillips is also 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).
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III. CONCLUSION
Upon consideration of the foregoing, the portions of the April 30, 2009,
Board decision
denying entitlement to benefits for a neuropsychological disorder and a
gastrointestinal disorder are
VACATED and the claims REMANDED for further development, if necessary, and
readjudication
consistent with this decision. The remainder of the Board decision is
AFFIRMED.
DATED: July 27, 2011
Copies to:
Valerie D. Metrakos, Esq.
VA General Counsel (027)
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