Single Judge Application, Benefits Arise with Manifestation of Condition, DeLisio v. Shinseki, (Aug. 24, 2011)

Excerpt from decision below: "The question the examiner was directed to answer was whether that condition might have manifested itself earlier than that. Here, the examiner concludes that, because Mr. Brady's medical records do not show "two consecutive readings of 126 on two consecutive days or a glucose tolerance indicative of diabetes mellitus" until 2000, he did not have the condition prior to that date. It goes without saying, however, that if Mr. Brady was not specifically tested for diabetes until 2000, he could not have been diagnosed with that condition until 2000. The examiner appeared to acknowledge that Mr. Brady experienced some diabetes symptomatology much earlier than 2000, yet did not consider whether those symptoms were evidence of diabetes, even in the absence of any diagnostic test for that condition. As the Board well knows, "entitlement to benefits for a disability or disease does not arise with a medical diagnosis of the condition, but with the manifestation of the condition and the filing of a claim for benefits for the condition." DeLisio v. Shinseki, ___ Vet. App. ___, ___ (Aug. 24, 2011), 2011 WL 3691857 at *9 (citing 38 U.S.C. § 5110(a) and McGrath v. Gober, 14 Vet.App. 28, 35 (2000)). Because the VA medical opinion did not address the relevant issue to be decided by the Board, the opinion is inadequate and the Board erred in relying on it. See Stegall v. West, 11 Vet.App. 268, 271 (1998)." ====================== ---------------------------------- Designated for electronic publication only UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS NO. 10-0157 RAYMOND O. BRADY, 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: Raymond O. Brady appeals through counsel a September 21, 2009, Board of Veterans' Appeals (Board) decision that denied entitlement to VA benefits for diabetes mellitus.1 Mr. Brady'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 partyrequested oral argument or identified issues believed to require a precedential decision of the Court. Because the Board relied on an inadequate VA medical examination report, the Court will vacate the September 2009 Board decision and remand the matter for further development and readjudication consistent with this decision. I. FACTS Mr. Brady served on active duty in the U.S. Air Force from July 1976 to July 1996. The record of proceedings does not contain service medical records. The Board also denied entitlement to disability benefits for bilateral hearing loss. In his brief, Mr. Brady makes no arguments related to the Board's decision on that claim, and the Court therefore considers any appeal as to that claim abandoned. See Grivois v. Brown, 6 Vet.App. 136, 138 (1994) (holding that issues or claims not argued on appeal are considered abandoned). 1 InDecember2002,Mr.Bradyfiled claimsfordisabilitybenefits forbilateral hearingloss and diabetes mellitus. In support of his claim for benefits for diabetes, he submitted a statement from Dr. Robert Abrams, a private physician, who stated: Mr. Brady was diagnosed with type 2 diabetes mellitus in January of 2000. At that time he had been seen on numerous occasions for symptoms consistent with type 2 diabetes mellitus including urinaryfrequency, fatigue and drymouth. His symptoms date back as far as August 1, 1996. It is my opinion that Mr. Brady indeed suffered from early type 2 diabetes prior to August 1, 1996. Record (R.) at 145. In March 2003, a VA regional office denied Mr. Brady's claim for benefits for diabetes because there was no evidence that the condition was incurred in or caused by military service. Mr. Brady filed a Notice of Disagreement with that decision. He requested that VA consider medical records from the "U.S. Naval Station Clinic in Cutler," Maine (Cutler Naval Station), at which he stated he had received treatment both during and after service, and which he stated would show treatment by a physician who told him he had "all the symptoms of" diabetes. R. at 1361. He also advised VA that he planned to submit new medical evidence in the form of May 1996 glucose test results from a private laboratory that showed glucose levels of 65. In January 2004, Mr. Brady submitted the May 1996 laboratory results and requested VA's assistance in obtaining the medical records from Cutler Naval Station. He stated, "I have been advised by the U.S. Naval Air Station at New Brunswick (Naval Air Station), Maine[,] that the medicalrecords maintainedatCutlerNaval Station wereforwardedto arecordsdepositorywhenthat base was closed." R. at 1351. In August 2004, the regional office issued a Statement of the Case continuing to deny Mr. Brady's claims. The Statement of the Case makes no mention of Mr. Brady's request for VA to obtain records from Cutler Naval Station. In October 2004, Mr. Brady appealed his claims to the Board and reiterated his request that VA obtain and review those records. In April 2006, in response to a Veterans Claims Assistance Act notice, Mr. Brady again requested VA assistance in obtaining records from Cutler Naval Station. He advised VA that "the last known location" of those records was the Naval Air Station in Brunswick, Maine, but noted that the records "may have been sent" to a record depository. R. at 1313. 2 At an August 2006 Board hearing, Mr. Brady testified that Dr. Abrams, who was a former military medical officer and had treated him at Cutler Naval Station, reviewed his records and told him that there was "a good possibility" that his diabetes originated as early as 1986. R. at 1291. In October 2006, the Board remanded Mr. Brady's claim to the Appeals Management Center to obtain his treatment records since his discharge from service, including those from Cutler Naval Station, and to obtain a VA medical examination "to ascertain whether or not diabetes mellitus was first manifested in service." R. at 1210. In March 2007, Mr. Brady submitted medical records in support of his claim, including the April 1996 private glucose test that showed a glucose level of 65; a March 1997 private laboratory report that showed a glucose level of 128; and an April 1997 private laboratory report that showed a glucose level of 117 and abnormal lipid levels, which the report noted could be caused bydiabetes, among many other conditions. The record reveals three attempts by VA to obtain Mr. Brady's medical records from Cutler Naval Station. To the first, in November 2006 ("Please provide veteran's treatment records since discharged in July1996 from . . . Cutler Naval Air Station."), the National Personnel Records Center replied that it needed more information to process the request, particularly the time period of the claimed treatment at the facility. R. at 912. VA sent a second request in July 2007 that simply stated, "Please provide veteran's treatment records since discharged in July 1996 from . . . Cutler Air Station," and the National Personnel Records Center again replied that more specific information was required. R. at 882. In August 2008, VA requested inpatient clinical records for diabetes between July 1, 1996, and August 15, 2008, from Cutler Naval Station and MacDill Air Force Base. The National Personnel Records Center responded only that records from MacDill Air Force Base from 1996 had been mailed. On August 15, 2008, the Appeals Management Center sent Mr. Brady a letter advising him that VA had been "unable to obtain every piece of evidence you identified to support your claim." R. at 865. The letter further stated: We are requesting service medical records from the service department from July 1, 1996[,] to the present at MacDill Air Force Base and Cutler Naval Air Station. These records will help us determine how your claimed disabilities are connected to your 3 military service. You do not need to contact the service department yourself. If you have military medical records already in your possession, please submit them. Id. On August 29, 2008, after receiving the letter from the Appeals Management Center, Mr. Brady responded: I contacted the National Personnel Records Center . . . regarding my medical records form[er]llylocatedat Cutler Naval Station, Cutler, Maine. Cutler closed due to [base closure and reassignment] . . . action sometime around circa 2000. The [ National Personnel Records Center] responded to my request on 12/25/2002 and advised me they were unable to locate the records. Unfortunately, all Cutler Naval medical records should be considered permanently lost. Please go forward with a decision without these records. R. at 283. In July 2009, Mr. Brady underwent a VA medical examination. The examiner noted that he "thoroughly"reviewedMr.Brady's claimsfile,includingDr.Thomas's statementregardingthelikely onset of diabetes at least as early as August 1996. R. at 59. The VA examiner opined that diabetes was not shown until January 2000. In September 2009, the Board issued the decision on appeal. Relying heavily on the July 2009 VA opinion, the Board found no evidence of diabetes mellitus duringserviceor within the one- year presumptive period thereafter. The Board discounted Dr. Thomas's favorable opinion because he did not review Mr. Brady's entire claims file and because he did not provide "medical rational[e]" for his conclusion that Mr. Brady's diabetes had its onset at least as early as August 1996. R. at 10. II. ANALYSIS A. Diabetes Mellitus 1. Duty To Assist Mr. Brady argues that the Board's determination that VA satisfied its duty to assist him is clearly erroneous because VA did not obtain his medical records from Cutler Naval Station, despite his numerous requests. This argument is unavailing. The Court is troubled that counsel for Mr. Brady focuses exclusively on VA's purported failure to obtain the records and subsequent failure to notify Mr. Brady of their unavailability in 4 accordance with 38 U.S.C. § 5103A(b)(2) and 38 C.F.R. § 3.159(c), and whollyfails, in the principal brief, to acknowledge Mr. Brady's August 2008 express waiver of consideration of those records. Although counsel is to be expected to present the facts of a case in the light most favorable to her client, she is prohibited from actively misleading the Court, and the omission of this crucial fact comes perilously close to doing so. See MODEL RULES OF PROF'LCONDUCT 3.3(a ) (candor toward the tribunal) (2007). Counsel only discusses Mr. Brady's August 2008 statement in her reply brief in an attempt to refute the Secretary's argument that Mr. Brady waived consideration of the Cutler Naval Station records. At no time does counsel acknowledge her failure to discuss this evidence in her principal brief or explain why she failed to do so. Accordingly, the Court will not consider Mr. Brady's argument on this point. See Carbino v. West, 168 F.3d 32, 34 (Fed. Cir. 1999) (noting that arguments not raised in opening brief are deemed waived). After reviewing the record, the Court concludes that, although the Board erred in finding that VA satisfied its dutyto assist because VA did not make a formal finding of unavailability and notify Mr. Brady, the error is harmless in light of Mr. Brady's demonstrated understanding from the National Personnel Records Center that those records were unavailable. See Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004); see also 38 U.S.C. § 7261(b)(2) ( requiring the Court to "take due account of the rule of prejudicial error"). 2. Adequacy of July 2009 VA Opinion Mr. Brady next argues that the Board relied on an inadequate medical opinion to deny his claim. Specifically, he contends that the July 2009 VA examiner failed to answer the question he was asked and that the rationale provided is circular. The Court agrees. In its October 2006 remand decision, the Board directed the Appeals Management Center to obtain a medical opinion that considered "whether or not diabetes mellitus was first manifested in service." R. at 1210. The resulting examination concluded only that Mr. Brady had not been diagnosed with diabetes until 2000. Although the Secretary and the Board assert that the VA examiner provided sufficient rationale for his conclusion, a review of the opinion reveals only a deft bit of circular logic. The examiner stated: All indications from [Mr. Brady's] claims file indicate that he was diagnosed with diabetes mellitus for the first time in January[] 2000. Reviewing the laboratory results dating back to 1996 and 1998 failed to reveal anylaboratoryresults indicating 5 the presence of diabetes mellitus. Therefore, my opinion is[,] regardless of the symptoms[,] that if the laboratory testing failed to reveal that he had two consecutive readings of 126 on two consecutive days or a glucose tolerance indicative of diabetes mellitus, the diabetes mellitus did not exist until January[] 200[0]. Therefore, my opinion is that there is no evidence of diabetes mellitus prior to January [] 2000. R. at 59 (emphasis added). Mr. Bradydoes not dispute that he was not diagnosed with diabetes until January 2000. The question the examiner was directed to answer was whether that condition might have manifested itself earlier than that. Here, the examiner concludes that, because Mr. Brady's medical records do not show "two consecutive readings of 126 on two consecutive days or a glucose tolerance indicative of diabetes mellitus" until 2000, he did not have the condition prior to that date. It goes without saying, however, that if Mr. Bradywas not specificallytested for diabetes until 2000, he could not have been diagnosed with that condition until 2000. The examiner appeared to acknowledge that Mr. Brady experienced some diabetes symptomatology much earlier than 2000, yet did not consider whether those symptoms were evidence of diabetes, even in the absence of any diagnostic test for that condition. As the Board well knows, "entitlement to benefits for a disabilityor disease does not arise with a medical diagnosis of the condition, but with the manifestation of the condition and the filing of a claim for benefits for the condition." Previous DocumentDeLisio v. Shinseki, ___ Vet. App. ___, ___ (Aug. 24, 2011), 2011 WL 3691857 at *9 (citing 38 U.S.C. § 5110(a) and McGrath v. Gober, 14 Vet.App. 28, 35 (2000)). Because the VA medical opinion did not address the relevant issue to be decided by the Board, the opinion is inadequate and the Board erred in relying on it. See Stegall v. West, 11 Vet.App. 268, 271 (1998). ("[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."). In light of this error, the Court will vacate the Board decision and remand this claim for the Board to obtain a new medical opinion that considers the evidence of record and determines whether the symptoms noted in Mr. Brady's medical history during or since service are evidence of an onset of diabetes earlier than 2000. The examiner must expresslydiscuss Dr. Thomas's favorable opinion, as well as the private laboratory glucose and lipid test results, and must support any conclusion reached with sufficient rationale. Mr. Brady is free to submit additional evidence and argument on 6 this claim 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). 3. Reasons or Bases Mr. Bradyalso contends that the Board provided inadequate reasons or bases for discounting Dr. Thomas's favorable opinion that his diabetes began at least as early as August 1996, which is within the one-year presumptive period to establish entitlement to benefits for diabetes. He also argues that the Board failed to account for other probative evidence of manifestations of diabetes in service. Because the Court is remanding Mr. Brady's claim for further development and readjudication, the Board will necessarily provide a new statement of reasons or bases for any decision regarding entitlement to benefits for diabetes. Accordingly, the Court need not address Mr. Brady's reasons or bases arguments at this time. See Best v. Principi, 15 Vet.App. 18, 20 (2001) (per curiam order) ("A narrow decision preserves for the appellant an opportunity to argue those claimed errors before the Board at the readjudication, and, of course, before this Court in an appeal, should the Board rule against him."). The Court reminds the Board, however, 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). Additionally, the mere fact that a physician did not review a claimant's claims file does not render the physician's opinion not probative. Nieves–Rodriguez v. Peake, 22 Vet.App. 295, 303 (2008) (explaining that "the claims file is not a magical or talismanic set of documents, but rather a tool to assist VA examiners to become familiar with the facts necessary to form an expert opinion," and holding that "claims file review, as it pertains to obtaining an overview of the claimant's medical history, is not a requirement for [ ] medical opinions"). B. Reasonably Raised or "Inferred" Claim for Benefits for Tinnitus On appeal, Mr. Bradyargues that the Board failed to adjudicate a reasonablyraised claim for benefits for tinnitus. In the alternative, he argues that the Board failed to "infer" a claim for benefits for that condition. These arguments are unpersuasive. As an initial matter, the Court notes that, while VA does recognize inferred issues, there is no such thing as an inferred claim. See Akles v. Derwinski, 1 Vet.App. 118, 121 (1991) (recognizing entitlement to special monthly compensation as an inferred issue where the veteran had filed a claim for an increased disability rating). 7 With respect to whether a claim for benefits for tinnitus was reasonably raised, Mr. Brady's reliance on Clemons v. Shinseki, 23 Vet.App. 1 (2009), is misplaced. In that case, a self-represented appellant filed an initial claim for benefits for post-traumatic stress disorder that was denied based on a lack of a current diagnosis of that condition. The Board, however, failed to consider whether the claimant was entitled to benefits for schizoid personalitydisorder, a distinct mental disorder with which he had been previouslydiagnosed. The Court, citing the well- established rulethat a layperson is generally not competent to provide a medical diagnosis, explained that VA "should construe a claim based on the reasonable expectations of the non-expert, self- represented claimant and the evidence developed in processing that claim." Id. at 5. Here, however, Mr. Brady was not seeking benefits for symptoms that he thought were caused by hearing loss that turned out to be caused by tinnitus; he was seeking benefits for hearing loss. Despite his protestations that his claim for hearing loss is necessarily related to his diagnosis of tinnitus, the Court has made clear that the conditions are distinct. Kelly v. Brown, 7 Vet.App. 471, 473 (1995) (recognizing tinnitus and hearing loss as distinct conditions); compare 38 C.F.R. § 4.85 (2011) (Evaluation of hearing impairment), with 38 C.F.R. § 4.87, Diagnostic Code 6260 (2011) (Tinnitus, recurrent). Moreover, Mr. Brady's claim was denied because his diagnosed bilateral hearing loss does not rise to the level of a disability for VA purposes, not because the Board improperly narrowed the scope of his claim. That Mr. Brady suffers from tinnitus is irrelevant to the question of whether his bilateral hearing loss is related to service. Further, the mere existence in the medical records of a diagnosis for a condition for which a claimant is not service connected is not sufficient to raise a new claim for benefits for that condition. Criswell v. Nicholson, 20 Vet.App. 501, 504 (2006) ("The mere existence of medical records generally cannot be construed as an informal claim; rather, there must be some intent by the claimant to apply for a benefit."). Although Mr. Brady argues that his cover letter to the submission of the December 2006 audiological examination is sufficient to put VA on notice that he was seeking benefits for tinnitus in addition to benefits for hearing loss, the Court disagrees. That document simply advises VA that the attached document is a hearing test dated December 2006. Nowhere is there any intent to seek benefits for tinnitus, which, again, is a condition distinct from hearing loss, the claim Mr. Brady was appealing at the time. In short, Mr. Brady fails to identify any evidence in 8 the record indicating that he sought VA benefits for his tinnitus, or that he, or anyone on his behalf, submitted a written document expressing his intent to seek benefits for that condition. See Brokowski v. Shinseki, 23 Vet.App. 79, 85 (2009) (citing Brannon v. West, 12 Vet.App. 32, 35 (1998) (to file a claim, a "claimant must submit a written document identifying the benefit and expressing intent to seek it"); see also Criswell, 20 Vet.App. at 504. In the absence of his having submitted a claim for that condition, it was not error for the Board not to address it. See Robinson v. Peake, 21 Vet.App. 545, 53 (2008) (holding that the Board is required to consider all issues raised by the claimant or reasonably raised by the evidence of record). In light of this discussion, the Court concludes that it was not error for the Board to not consider a claim for benefits for tinnitus. Mr. Brady remains free to file a claim for benefits for that condition should he so desire. C. Final Matter The Court notes that the parties' briefs repeatedly refer to a "claim for service connection." As the Court explained in Hillyard v. Shinseki, the use of this term is inexact and therefore is—although prevalent in the Court's cases, as well as those of the United States Court of Appeals for the Federal Circuit—disfavored. 24 Vet.App. 343, 355 (2011). The Court urges the parties to practice precision in language in future briefs. III. CONCLUSION Upon consideration of the foregoing, the September 21, 2009, Board decision is VACATED and the matter is REMANDED for further development and readjudication consistent with this decision. DATED: October 11, 2011 Copies to: Jill Mitchell, Esq. VA General Counsel (027) 9