Single Judge Application, Attorney Resentation and Liberally Construed, Cogburn v. Shinseki, 24 Vet.App. 205, 213 (2010)

Excerpt from decision below: "This Court has recently clarified that, although a veteran's claim must always be liberally construed, "representation [by an attorney] may be a factor in determining the degree to which the pleading is liberally construed." Cogburn v. Shinseki, 24 Vet.App. 205, 213 (2010) (emphasis added)" ======================= ---------------------------------------------------- Designated for electronic publication only UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS NO. 10-1917 PAULINE C. BAKER, 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: Pauline C. Baker appeals through counsel a May 19, 2010, Board of Veterans' Appeals (Board) decision that reopened but denied a claim for entitlement to dependency and indemnity compensation. Mrs. Baker's Notice of Appeal was timely and the Court has jurisdiction to review the Board decision pursuant to 38 U.S.C. § 7252(a). Neither party requested oral argument or identified issues theybelieve require a precedential decision of the Court. Because the Board failed to adjudicate all theories of entitlement reasonably raised by the record, the Court will vacate the May 2010 Board decision and remand the matter for further development, if necessary, and readjudication consistent with this decision. I. FACTS Mrs. Baker is the widow of veteran Richard J. Baker, who served on active dutywith the U.S. Navy from November 1962 to November 1966 and from May 1967 to December 1973. No abnormalities were noted at Mr. Baker's entrance examination. Service treatment records from December 1968 indicate that Mr. Baker twice sought treatment for headaches described as "persistent" and "frequent." Record (R.) at 208, 210. Similarly, a May 1971 service treatment note reflects Mr. Baker's complaints of headaches every other day that localized near the left temple and caused a pain that started as a dull ache but would get sharper. In June 1973, he again sought treatment for dizzy spells, sudden lightheadedness, and headaches. Post-service medical records from Air Force and Naval hospitals where Mr. Baker sought treatment between February 1976 and February 1987 indicate continued complaints of headaches and migraines, often described as vascular and persistent, recurring, or experienced for many years. In early March 1987, Mr. Baker was admitted to an Air Force medical center emergency room with recent symptoms of headaches, confusion, disorientation, lethargy, nausea, and slurred speech. A history of migraine headaches with an onset in 1972 was noted. Mr. Baker died on May 5, 1987. The immediate cause of death was presumed to be a midbrain tumor. Following an autopsy, however, the death certificate was amended to change the immediate cause of death to a stroke due to or a consequence of a vascular malformation. Major diagnoses at that time were "[m]arked diffuse autolytic change - brain ( 'Respirator Brain'), "[h]erniation of[the]midbrain,brainstem,cerebellartonsils,"and"[p]neumonia [ of the] right middle lobe." R. at 1097. In the autopsy report, the examiner stated that [g]ross examination of the optic chiasm[1 ] showed a web of anastomosing[2 ] small vessels surrounding it. Several of these were thrombosed.[3 ] The gross and microscopic appearance of these vessels was consistent with cerebral arterial occlusive disease. This is a rare disorder of uncertain etiology marked by occlusion of the main branches of the carotid artery with formation of collateral vessels. R. at 1099. The examiner explained that this rare disorder was known as Moyamoya Disease and that, although it was more prevalent in children, it was also known to occur in adults. He explained that "[t]he characteristic presentation in the adult patients was a sudden alteration in consciousness frequently associated with a massive subarachnoid bleed from the ruptured collaterals," and opined that "[t]his was probably the case with Mr. Baker." R. at 1099. The optic chiasm is "the part of the hypothalamus formed by the decussation, or crossing, of the fibers of the optic nerve from the medial half of each retina." DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 342 (32d ed. 2011) [hereinafter DORLAND'S]. 2 1 Anastomosis is "a connection between two vessels." DORLAND'S at 75. Thrombosis is "the formation, development, or presence of a thrombus." DORLAND'S at 1923. A thrombus is "a stationary blood clot along the wall of a blood vessel, frequently causing vascular obstruction." Id. 3 2 The examiner noted that Mr. Baker "had a history of migra[i]ne headaches that date[d] back to 1972," and that this history "suggest[ed] the presence of altered vascular reactivity." R. at 1099. The examiner also noted that Mr. Baker "had a history of smoking three to four packs of cigarette[s] per day for in excess of [25] years," which was "clinically significant in that smokers under 65 years have twice the death rate from coronary arterial occlusive disease than non-smokers." R. at 1098. The examiner then summarized his findings: "[T]he anatomic findings are consistent with a dia[g]nosis of cerebral arterial occlusive disease—Moyamoya [D]isease. The rupture of some of the collateralvesselsprobablyresultedin hemorrhage, increasedintracranialpressure[,] andMr.Baker's death." R. at 1100. Mrs. Baker applied for dependency and indemnity compensation in April 1987. This claim was denied by a VA regional office in July 1987 on the basis that the evidence did not indicate that Mr. Baker's death was service connected. Mrs. Baker did not appeal this decision and it became final. In December 2004, Mrs. Baker requested that her dependency and indemnity compensation claim be reopened and indicated that her late husband was involved in Project Shipboard Hazardand Defense (SHAD). Project SHAD "was part of the joint service chemical and biological warfare test program conducted during the 1960s" and "encompassed tests designed to identify US warships' vulnerabilities to attacks with chemical or biological warfare agents and to develop procedures to respond to such attacks while maintaining a war-fighting capability." R. at 136. In a July2006 compensation and pension examination inquiry, the regional office confirmed that Mr. Baker had participated in two Project SHAD operations, "Scarlet Sage[,] with exposure to Bacillus subtilis[4 ] var[iant] niger[,] also called Bacillus globigii[,] . . . and . . . Purple Sage[,] with exposure to Methylacetoacetate."5 R. at 268. The regional office therefore requested that a VA Bacillus is "a genus of bacteria of the family Bacillaceae, including large aerobic or facultatively anaerobic, spore-forming, rod-shaped cells, the great majority of which are gram- positive and motile. Most species are saprophytic soil forms; three are pathogenic or potentially pathogenic." DORLAND'S at 190. Bacillus subtilis is "a species that is a common saprophyte in soil and water, often a laboratory contaminant, and can cause conjunctivitis. It also produces the antibiotic bacitracin." Id. 5 4 The record indicates that Methylacetoacetate is "a sarin nerve agent simulant." R. at 136. 3 examiner determine "whether [Mr. Baker's] cause of death was a direct or contributory result of exposure to stimulants as a result of his participation in Project SHAD." R. at 269. This opinion was obtained from a VA neurologist later that month. After reviewing the claims file, the neurologist noted that "[t]he autopsy findings showed that [Mr. Baker] had cerebral vascular occlusive disease and vascular malformation causing him to have a stroke." R. at 240. With regard to the agents to which Mr. Baker was exposed during his involvement with Project SHAD, the neurologist stated that [a] tracer that was used of bacillus globigii has not been known to consistently cause disease in healthyadult humans. The studies on autopsyshowed that this was not the cause of the infection in [Mr. Baker's] right lung. The cause of death was due to congenital vascular malformation causing a stroke. The clinical course was one that is commonly the case of improvement, and then he developed cerebral edema with brain stem compression and this probably caused his respiratory arrest with contributoryfactorsofright-sidedpneumoniaduetostaph[6 ] andklebsiella[7 ] andnot due to the agent that is mentioned in the tests. R. at 240-41. The neurologist therefore opined that Mr. Baker's " participation in Project SHAD . . . and [operation] SCARLET-SAGEwith exposure to bacillus globigii did not cause[his] death, either from that or exposure to Methylacetal acetate in Purple Sage." R. at 241. In August 2006, the regional office issued a rating decision again denying Mrs. Baker dependency and indemnity compensation on the basis that her husband's death was not service connected. Mrs. Baker filed a Notice of Disagreement in October 2007 and, after further development, appealed to the Board. In both her appeal and her Notice of Disagreement, Mrs. Baker argued that bacillus globigii was known to "cause Q-Fever[8 ] in 3-6% of humans that inhaled the 6 Staph, short for Staphylococcus, is "a ubiquitous genus of gram-positive, mainly facultatively anaerobic bacteria . . . ." DORLAND'S at 1765. They "are important inhabitants of the skin, cutaneous glands, and mucous membranes; several species are important pathogens, causing a wide varietyof infections, as well as producing a number of toxins." Id. Klebsiella is "a genus of bacteria of the family Enterobacteriaceae, made up of small, gram-negative, facultatively anaerobic, nonmotile rods, usually occurring singly; they are widely distributed in nature, including in the intestines. They are a frequent cause of nosocomial urinary and pulmonary infections and of wound infections." DORLAND'S at 988. Q fever is "an acute, generallyself-limited infection caused byCoxiella burnetii, characterized byfever, chills, headache, myalgia, malaise, and occasionally rash, and sometimes complicated by mild pneumonia . . ., hepatitis, and endocarditis. In humans, it is usually acquired by inhalation of airborne organisms in dust or aerosols contaminated by 8 7 4 chemical agent and that humans will continue to have flu-like symptoms and diarrhea, sore throat, fever, cough[,] and other cold symptoms—that will continue for years and then humans die 20 years later." R. at 95; see also R. at 60. She asserted that her husband's medical "records match these symptoms flawlessly," R. at 60, 95, and that it was therefore her belief that he "was one of the 3-6% of . . . soldiers sprayed . . . that developed Q-Fever and never received medical treatment due to the fact that everything about . . . [Project] SHAD . . . was kept classified for over 30 years." R. at 60. The Board issued the decision now on appeal in May 2010. Initially, the Board concluded that new and material evidence had been submitted by Mrs. Baker and therefore reopened her dependency and indemnity compensation claim. In assessing the merits of that claim, the Board noted Mrs. Baker's contention that her husband had contracted Q fever as a result of his participation in Project SHAD and that this condition contributed to his death. The Board also noted that service and post-service medical records indicated treatment for various ailments, including, on many occasions, headaches, but observed that none of them "refer[red] to Q fever or to any relationship between [Mr. Baker's] symptoms and his service." R. at 13. Finally, the Board found the VA neurologist's July2006 opinion to be highlyprobativeand"inlinewith the autopsyreport" insomuch as it concluded that Mr. Baker died as a result of "a congenital vascular malformation." R. at 16. Relying on this opinion, the Board concluded that the preponderance of the evidence did not indicate that Mr. Baker's death was related to his service and therefore denied Mrs. Baker entitlement to dependency and indemnity compensation. II. ANALYSIS A. Dependency and Indemnity Compensation On appeal, Mrs. Baker does not contest the Board's finding that Mr. Baker's participation in Project SHAD did not cause or contribute to his death. Instead, she argues that the Board erred by "onlyconsider[ing] whether [Mr. Baker's] cause of death was the result of chemical exposure" when "[t]he evidence of record . . . clearly raise[d] another issue which the [ Board] did not consider or discuss, whether [Mr. Baker's] in-service vascular headaches were the first manifestations of the infected domestic animals." DORLAND'S at 693. 5 [M]oyamoya [D]isease which led to his death bystroke." Appellant's Brief ( Br.) at 4. The Secretary contends that Mrs. Baker "did not raise this theory of entitlement [to dependency and indemnity compensation] when she sought to reopen her claim[,] nor was such a theory suggested by the evidence of record that would reasonably put the Board on notice that such a theory was plausible and must be developed." Secretary's Br. at 4. The Secretary argues that the Board therefore did not err in failing to consider and discuss this theory of entitlement. In Robinson v. Peake, this Court explained that, because proceedings before VA are nonadversarial, "the Board's obligation to analyze claims goes beyond the arguments explicitly made." 21 Vet.App. 545, 553 (2008), aff'd sub nom. Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009). As the Court explained, "[i]t is entirely possible that the record might 'indicate' a theory of entitlement, but that a lay appellant might not be sophisticated enough to recognize the theory," meaning that "a theory can be both unknown to the appellant and suggested by the record." Id. (citing Ingram v. Nicholson, 21 Vet.App. 232, 256-57 (2007)). On the other hand, the Board is not required "to assume the impossible task of inventing and rejecting every conceivable argument in order to produce a valid decision." Id. Accordingly, "[w]here a fully developed record is presented to the Board with no evidentiary support for a particular theory of recovery, there is no reason for the Board to address or consider such a theory." Robinson, 557 F.3d at 1361. In other words, "[t]he Board commits error only in failing to discuss a theory of entitlement that was raised either by the appellant or by the evidence of record." Robinson, 21 Vet.App. at 553. Here, having been reopened following the submission of new and material evidence, Mrs. Baker's claim was one for entitlement to dependency and indemnity compensation. A surviving spouse is eligible for dependency and indemnity compensation under 38 U.S. C. § 1310(a) and 38 C.F.R.§3.312(a)wheretheevidencedemonstratesthata service-connected disability"was either the principal or a contributory cause of death." 38 C.F.R. § 3.312(a) ( 2011). A disability is service connected where the evidence of record demonstrates (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. 38 U.S.C. § 1110; Davidson v. Shinseki, 581 F. 3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); 38 C.F.R. § 3.303 (2011); 6 see also 38 U.S.C. § 1310(a) (providing that "[t]he standards and criteria for determining whether or not a disability is service-connected shall be those applicable under chapter 11 of this title"). Here, the Board found, and the evidence of record overwhelminglyindicates, that Mr. Baker suffered a stroke that resulted in a hemorrhage when some of the collateral vessels near the optic chiasm ruptured, which in turn caused intracranial pressure leading to his death. The evidence of record is equally clear, and the Board again found, that this stroke resulted from a vascular malformationcausedbyararecerebral vascularocclusivediseaseofuncertainetiologythatis known as Moyamoya Disease. Some of the evidence of record—namely, the autopsyreport—indicates that Mr. Baker's history of migraine headaches is consistent with the manner in which this condition manifests. See R. at 1099 ("Mr. Baker's history of migraine headaches suggests the presence of altered vascular reactivity."). The autopsy examiner dated the onset of this symptomatolgy to1972, during Mr. Baker's active duty service, R. at 1098, but, in fact, the first indication in the record of proceedings of Mr. Baker seeking treatment for headaches is found in the December 1968 service treatment notes, in which his headaches were described as "persistent" and " frequent." R. at 208, 210. Further, additional service treatment records indicate that Mr. Baker continued to suffer from headaches through June 1973, approximately five months prior to his separation from service. R. at 1343, 1374. There is also a bevy of post-service medical records suggesting that this symptom persisted following his separation, until the time of his death. R. at 930, 935, 938, 956, 959, 964, 968-70, 972, 980, 1023, 1035-1039. In sum, this body of evidence suggests that: (1) Mr. Baker's death resulted from a rare cerebral vascular disease of uncertain origins; (2) one symptom of this disease exhibited by Mr. Baker was migraine headaches; (3) these migraine headaches began during Mr. Baker's active duty service and continued, to one extent or another, throughout his service; and (4) headaches continued to plague him following his separation from service until the time of his death. Despite this evidence, the Board gave no consideration whatsoever to the possibility that this disease, although not diagnosed until Mr. Baker's death, had an onset during his active duty service. See 38 C.F.R. § 3.303(d) (providing that a disease that is first diagnosed following the veteran's separation from service may still be granted service connection "when all the evidence, including that pertinent to service, establishes that the disease was incurred in service"). Likewise, the Board gave no 7 consideration to whether the condition might be service connected as a " chronic disease" pursuant to 38 C.F.R. § 3.303(b) or, alternatively, by showing continuity of symptomatology pursuant to that sameprovision. SeegenerallySavagev.Gober, 10 Vet.App. 488, 495-97 (1997). Instead, the Board focused solely on the theory of entitlement to dependency and indemnity compensation expressly raised by Mrs. Baker—that her husband contracted Q fever during Project SHAD, which went untreated for many years and ultimately caused or contributed to his death. This was error, as the Board was required not only to develop and adjudicate the theories of entitlement expressly raised by Mrs. Baker, but also those reasonably raised by the record. Robinson, 21 Vet.App. at 553. In reaching the conclusion that this theory of entitlement was reasonably raised by the record, the Court notes that there is no indication that Mrs. Robinson was represented by an attorney during the course of proceedings below. See R. at 5 (listing Disabled American Veterans as Mrs. Baker's representative); see also Comer v. Peake, 552 F.3d 1362, 1370 (Fed. Cir. 2009) (explaining that assistance provided to claimants by veterans service organizations is invaluable but not equivalent to representation by a licensed attorney). This Court has recently clarified that, although a veteran's claim must always be liberally construed, "representation [by an attorney] may be a factor in determining the degree to which the pleading is liberally construed." Cogburn v. Shinseki, 24 Vet.App. 205, 213 (2010) (emphasis added). Accordingly, here, the Board was required to take into account the nature of Mrs. Baker's representation when assessing the evidence of record for the purpose of identifying and fully developing all issues and theories of entitlement pertinent to Mrs. Baker's claim for dependency and indemnity compensation. The Court concludes that a liberal examination of this evidence would have led to the development and adjudication of the alternative theory now expressly presented by Mrs. Baker on appeal. Because this did not happen, the Court will remand this claim for readjudication consistent with this decision. See Robinson, 21 Vet.App. at 553. B. Remedy The Court notes that Mrs. Baker argues that reversal, not remand, is the appropriate remedy under the circumstances of this case. She argues that "[t]he only permissible view of [the] evidence is that [Mr. Baker's] [M]oyamoya [D]isease, which was the cause of his death, began in service and should, then, have been service connected." Appellant's Br. at 7. The Court disagrees. 8 It is true that reversal is the appropriate remedy when there is but one permissible view of the evidence, and that view is contrary to the Board's decision. Gutierrez v. Principi, 19 Vet.App. 1, 10 (2004) (citing Johnson v. Brown, 9 Vet.App. 7, 10 (1996)). It is also true that, in the present case, the theoryof entitlement outlined above byMrs. Baker was most certainly raised bythe record. However, this case involves complex medical questions that the Board did not even attempt to address in the decision on appeal. "[W]here the Board has incorrectly applied the law, failed to provide an adequate statement of reasons or bases for its determinations, or where the record is otherwise inadequate, a remand is the appropriate remedy." Tucker v. West, 11 Vet.App. 369, 374 (1998); see Hicks v. Brown, 8 Vet.App. 417, 422 (1995). Under the circumstances of this case, the Court is not convinced that the "only permissible view of the evidence" necessitates a finding that Mr. Baker's death was service connected, and remand is therefore the appropriate remedy. See Gutierrez, 19 Vet.App. at 10. Onremand,theBoardshould determinewhetheradditionaldevelopment, includingobtaining another VA medical opinion that explicitly considers this alternative theory of entitlement, is necessary. See McLendon v. Nicholson, 20 Vet.App. 79, 83-84 (2006). Mrs. Baker will also be free to submit additional evidence and argument on remand 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 Board is reminded that "[a] remand is meant to entail a critical examination of the justification for the decision" by the Board. 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). 9 III. CONCLUSION Upon consideration of the foregoing, the May 2010 Board decision is VACATED and this matter is REMANDED for additional development, if necessary, and readjudication. DATED: September 21, 2011 Copies to: Shannon L. Brewer, Esq. VA General Counsel (027) 10