Single Judge Application, Claim Versus Theory of Entitlement to a Benefit, Hillyard v. Shinseki, 24 Vet.App. 343, 355 (2011)

Excerpt from decision below: "This Court has held that a "claim" is an expressed belief in an entitlement to a benefit, while a "theory" is a means of establishing entitlement to a benefit. Hillyard v. Shinseki, 24 Vet.App. 343, 355 (2011). Therefore, "although there may be multiple theories or means of establishing entitlement to a benefit for a disability, if the theories all pertain to the same benefit for the same disability, they constitute the same claim." Roebuck v. Nicholson, 20 Vet.App. 307, 313 (2006); see also Bingham v. Principi, 18 Vet.App. 470, 474 (2004)(finding that "direct and presumptive service connection are, by definition, two means (i.e., two theories) by which to reach the same end, namely service connection). =========================== ---------------------------------------------------- Designated for electronic publication only UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS NO. 10-1862 BERNADITA P. TORRES, APPELLANT, V. ERIC K. SHINSEKI, SECRETARY OF VETERANS AFFAIRS, APPELLEE. Before SCHOELEN, Judge. MEMORANDUM DECISION Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent. SCHOELEN, Judge: The appellant, Bernadita P. Torres, appeals through counsel an April 15, 2010, Board of Veterans' Appeals (Board) decision that, based on the submission of new and material evidence, reopened her claim for entitlement to service connection for the death of her husband, but then denied her claim. Record (R.) at 3-25. This appeal is timely, and the Court has jurisdiction to review the Board's decision pursuant to 38 U.S.C. §§ 7252(a) and 7266(a). Single- judge disposition is appropriate. See Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). For the following reasons, the Court will vacate the Board's decision and remand the matter for further proceedings consistent with this opinion. I. BACKGROUND The veteran, George Mendiola Torres, served on active duty in the U.S. Army from November 1969 until November 1971, including a period in Vietnam. R. at 519. In a March 15, 2002, decision, the VA regional office (RO) granted the veteran service connection for diabetes mellitus on a presumptive basis due to his exposure to herbicides while serving in Vietnam. R. at 452-57. In April 2002, following a surgical procedure, the veteran was diagnosed with pancreatic carcinoma. R. at 436. The veteran died on March 16, 2003. R. at 365. His death certificate lists his cause of death as "metastatic pancreas cancer," but recorded no other conditions related to his cause of death or contributing to his death. Id. On April 10, 2003, the appellant filed a claim for dependencyand indemnity compensation (DIC), death pension, and accrued benefits bya surviving spouse. R. at 356-60. The RO denied her claim in June 2003, a decision she apparently did not appeal. R. at 349-53. The appellant sought to reopen her claim in October 2006. R. at 198, 235. The RO, however, found in April 2007 that evidence submitted by the appellant was new but not material, and therefore declined to reopen her case. R. at 198-203. In October 2009, the Board requested that an expert medical opinion be obtained. R. at 51- 57. A large portion of the appellant's argument revolves around the November 2009 expert medical opinion written by Dr. Lawrence B. Afrin. R. at 43-46. Dr. Afrin concluded that it is unlikely that the veteran's pancreatic cancer was caused or aggravated byhis service- connected diabetesmilletus. R. at 44. Dr. Afrin noted that, although medical literature indicates that there might be an associational link between diabetes mellitus and pancreatic cancer, there is no evidence of a causal link. R. at 44-45. Likewise, he found no evidence in medical literature to indicate how diabetes mellitus might aggravate pancreatic cancer "in the sense of contributing to development of the cancer." R. at 45. Dr. Afrin's opinion is supported by an April 2007 VA examination report in which the examiner stated that "the veteran's diabetes did not cause his pancreatic cancer." R. at 207-08. A number of other documents submitted by private medical providers, however, link pancreatic cancer and diabetes milletus to varying degrees, including at least one that identified a causal link. R. at 49, 123, 213, 219, 220. The Board, in its April 15, 2010, decision here on appeal, reopened the appellant's claim for entitlement to service connection for the cause of death of the veteran based on the submission of new and material evidence, but then denied the claim. The Board concluded that evidence failed to indicate that the veteran's cause of death "was due to anyincident or event in active service," nor that it was "proximately due to or the result of his service-connected diabetes mellitus, on either a causation or aggravation basis." R. at 5. The Board found that competent medical evidence failed to establishaconnection betweentheveteran's diabetesmilletus andhis pancreaticcanceranddeath. 2 R. at 22. In doing so, it rejected (largely by comparison with Dr. Afrin's opinion) medical opinions potentially in support of the appellant's claim, finding them "conclusory and speculative." R. at 23- 24. The appellant raises three arguments on appeal. First, the appellant argues that the Board should have returned Dr. Afrin's opinion for clarification based on inconsistencies and inadequate reasoning in his statement of rationale. Appellant's Brief (Br.) at 10-13. Next, the appellant contends that the Board should have obtained a medical opinion exploring a possible nexus between the veteran's pancreatic cancer and his exposure to herbicide. Id. at 14- 16. Finally, the appellant argues that the Board failed to apply 38 C.F.R. § 3.312(c)(3) to her claim. Id. at 16-19. II. ANALYSIS A. Dr. Afrin's Opinion The appellant argues, essentially, that Dr. Afrin's medical opinion is inadequate. The Secretary's duty to assist includes "providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on the claim." 38 U.S.C. § 5103A(d)(1); see also Green v. Derwinski, 1 Vet.App. 121, 124 ( 1991). This Court has held that a medical opinion is adequate "where it is based upon consideration of the veteran's prior medical history and examinations and also describes the disability, if any, in sufficient detail so that the Board's 'evaluation of the claimed disability will be a fully informed one.'" Stefl v. Nicholson, 21 Vet.App. 120, 123 (2007) (quoting Ardison v. Brown, 6 Vet.App. 405, 407 ( 1994)). The opinion "must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions." Id. at 124-25. Whether a medical examination report is adequate is generally a finding of fact that the Court reviews under the "clearly erroneous" standard of review. 38 U.S.C. § 7261(a)(4); Nolen v. Gober, 14 Vet.App. 183, 184 (2000). When deciding a matter, the Board must include in its decision 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. 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 complywith this requirement, the Board must analyze the credibility 3 See and probative value of the evidence, account for the evidence that it finds 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. As the Board acknowledges, Dr. Afrin essentially states that, although medical science suggests at least an associational link between diabetes milletus and pancreatic cancer, there is no definitive evidence of a causal link between the two. R. at 24, 44-45. He stated that, based on current medical evidence, it is "impossible to say" whether the two disorders are causallyrelated and that the "precise nature of [their] association . . . is not yet known." R. at 44. But then, he went on to opine that it "fundamentally is impossible . . . given the scientific knowledge available at this time" to opine whether the veteran's diabetes mellitus caused his cancer. R. at 45. As to the pertinent legal question, however, Dr. Afrin opined: My answer is simply: the available peer-reviewed biomedical literature does not support a statement that it is at least as likely as not that this patient's pancreatic cancer was caused or aggravated by his service-connected diabetes mellitus. Therefore, given the parameters of the primaryquestion Iwas asked, Ihave no choice but to conclude the obverse, namely, it is unlikely this patient's pancreatic cancer was caused or aggravated by his service-connected diabetes mellitus. R. at 44. Dr. Afrin's opinion constitutes an unsupported leap in logic that renders it inadequate. He concludes first that, based on current medicalevidence, he cannot state, either way, whetherdiabetes mellitus and pancreatic cancer are causally linked. Then, however, he concludes that it is unlikely that the veteran's pancreatic cancer was caused or aggravated by his diabetes mellitus.1 If Dr. Afrin cannot state the precise nature of the relationship between diabetes mellitus and pancreatic cancer, he certainly cannot support his opinion that it is unlikely that pancreatic cancer was caused or aggravated by service-connected diabetes mellitus with "a reasoned medical explanation" as is Although Dr. Afrin stated that he felt he was forced to offer this opinion based on the "parameters of the primaryquestion Iwas asked,"the Board's request fora medical opinion gave him another option. It instructed that if "any question posed cannot be answered without resorting to unsupported speculation, the reviewer should so state, and explain why that is so." R. at 56. 4 1 required for his opinion to be adequate. See Nieves-Rodriguez v. Peake, 22 Vet.App. 295, 301 (2003); see also Stefl, 21 Vet.App. at 123-24. Regarding the question of whether the veteran's diabetes mellitus aggravated his pancreatic cancer, Dr. Affrin concludes that the question is "moot" based on his finding about causation. R. at 46. As the appellant notes (Appellant's Br. at 11-12), Dr. Afrin, during his discussion about aggravation, found that [o]bviously, severe, poorly controlled diabetes (such as [the veteran] had later in his course) will "aggravate" the course of virtually any illness, including cancer, but as has already been observed by other reviewers of this case, the worsening of his diabetes (to a point where it might have "aggravated" the course of his cancer) was surgically induced and not unexpected. R. at 45. The Board summarized Dr. Afrin's opinion, writingthat Dr. Afrin "stated that severe, poorly controlled diabetes will aggravate the course of any illness, including cancer." R. at 21. However, neither the Board nor Dr. Afrin explains the apparent incongruities between these statements and Dr. Afrin's conclusion that, for the same reason as his findings on causation, there is no evidence of aggravation in the veteran's case. R at 45; see Stefl and Nieves-Rodriguez, both supra. For these reasons, the Court finds that the Board's determination that Dr. Afrin's opinion is adequate is clearly erroneous. See 38 U.S.C. § 7261(a)(4); Nolen, supra. Where an examination report is inadequate, the Board should remand the case to the RO for further development. Bowling v. Principi, 15 Vet.App. 1, 12 (2001) (holding that the Board has a duty under 38 C.F.R. § 19.9(a), to remand a case "[i]f further evidence or clarification of the evidence or correction of a procedural defect is essential for a proper appellate decision"); see also Green, 1 Vet.App. at 124 (holding that remand is appropriate where the Board relied on an inadequate examination report); 38 C.F.R. § 4.2 (2011). B. Duty to Assist The appellant asserts that the Board failed in its duty to assist because it failed to provide a medical opinion ascertaining whether there is a nexus between the veteran's in-service herbicide exposure and his pancreatic cancer. Appellant's Br. at 14-16. The Secretarydoes not respond to this argument directly. Instead, he argues that the appellant "never raised the issue of whether the [v]eteran's cancer was directly caused by [herbicide] exposure" at any stage in the adjudication of 5 her claim prior to her appeal to this Court, and thus the Board "was not required to obtain a medical opinion because the issue was not reasonably raised and not properly before the Board." Secretary's Br. at 6-7. The Board found that the appellant "is not claiming service connection for the cause of the [v]eteran's death on the basis of in-service incurrence or aggravation of the disease which caused his death." R. at 16. The Board made no findings and offered no discussion about whether the veteran's pancreatic cancer can be directly linked to his herbicide exposure. Therefore, the Court's jurisdictional abilityto respondto theappellant's argumenthingesonwhethershe is advancinganew claim or merely a new argument in support of her existing claim. If the question of whether the veteran's cause of death and herbicide exposure aredirectlylinked constitutes a new claim, the Court lacks jurisdiction to consider it because there is no final Board decision on that claim. See 38 U.S.C. §§ 7252(a), 7266(a); see also Breeden v. Principi, 17 Vet.App. 475, 478 ( 2004). If, however, direct causation represents an alternative argument in support of the appellant's claim, then the Court has jurisdiction either to consider it or remand the matter for the Board to consider it in the first instance. See Maggitt v. West, 202 F.3d 1370, 1377-78 (Fed. Cir. 2000) (holding that this Court has discretion to hear arguments presented to it in the first instance, provided that it otherwise has jurisdiction over the claim). This Court has held that a "claim" is an expressed belief in an entitlement to a benefit, while a "theory" is a means of establishing entitlement to a benefit. Hillyard v.Shinseki, 24 Vet.App. 343, 355 (2011). Therefore, "although there may be multiple theories or means of establishing entitlement to a benefit for a disability, if the theories all pertain to the same benefit for the same disability, theyconstitute the same claim." Roebuck v. Nicholson, 20 Vet. App. 307, 313 (2006); see also Bingham v. Principi, 18 Vet.App. 470, 474 (2004)(finding that "direct and presumptive service connection are, by definition, two means (i.e., two theories) by which to reach the same end, namely service connection). In this case, the end sought by the appellant, and thus her "claim," is service connection for the cause of death of the veteran, which was pancreatic cancer. The argument that the Board addresses – whether the veteran's service-connected diabetes mellitus is related to his cause of death – and the argument that pancreatic cancer is directly related to the veteran's in-service herbicide exposure, are both attempts by the appellant to reach service connection. Thus, the Court 6 finds that the appellant's assertion, brought here on appeal, that pancreatic cancer and herbicide exposure maybe linked, is merely a new theory to support her ultimate claim that service connection is warranted for the death of the veteran. See Hillyard, Roebuck, and Bingham, all supra. Therefore, the Court has jurisdiction to consider the matter. Maggitt, 202 F.3d at 1377-78. Pancreatic cancer is not one of the disorders entitled to presumptive service connection for veterans exposed to herbicides duringservice. 38C.F.R.§3.309(e)(2011). Theappellant, however, is still entitled to attempt to link the veteran's cancer to exposure to herbicides on a direct basis. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994) ("[T]he presumptive service connection procedure . . . does not foreclose proof of direct service connection."). The Board has a duty to address all issues reasonably raised before it by either the appellant or the contents of the record. Robinson v. Mansfield, 21 Vet.App. 545 (2008), aff'd sub nom. Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009). The Board found, and the appellant does not dispute, that she did not make any argument for direct service connection before the Board. R. at 16. Therefore, for the Board's failure to discuss direct service connection to constitute remandable error, there must be some indication that the record reasonably raised direct service connection as an issue. The appellant attempts to meet this burden by again citing to Dr. Afrin's opinion. Appellant's Br. at 15. Dr. Afrin stated: With respect to this particular case, too, I should note that besides diabetes mellitus type 2, several other factors have been clearly epidemiologically associated with an increased risk for pancreatic cancer including cigarette smoking, various dietary factors, various environmental factors (e.g., certain chemical exposures), certain infections, and certain chronic inflammatory ailments. . . . The patient in this case was both a smoker and had extensive occupational risk for certain chemical exposures. . . . Did his diabetes cause his cancer? Did his smoking cause his cancer? Did his occupational exposure cause his cancer? Did some other yet unidentified factor or factors such as a chronic systemic inflammatory ailment cause his cancer? Did some complex combination of all of these issues cause his cancer? It fundamentally is impossible to answer any of these questions in this case ( or similar cases for that matter) given the scientific knowledge available at this time. R. at 45 (emphasis added). As the appellant argues, Dr. Afrin clearly indicates that environmental factors including chemical exposure may be directly associated with the veteran's pancreatic cancer. Appellant's Br. at 15. The Secretary does not attempt to counter this assertion. Dr. Afrin could have been 7 referencing chemical exposure in the appellant's post-service occupation rather than herbicide exposure, and his opinion that no scientific evidence exists that might causally link such exposure to the veteran's cancer may be adequate. However, the Board made no such factual findings, and it is not for this Court to do so in the first instance. See Hensley v. West, 212 F.3d 1255, 1263 (Fed. Cir. 2000) (stating that "appellate tribunals are not appropriate fora for initial fact finding"); see also 38 U.S.C. § 7261(c). It is enough that the appellant has demonstrated that the record reasonably raises the possibility that environmental factors such as chemical exposure may be a cause of the appellant's pancreatic cancer to warrant remand. See Robinson, supra. Therefore, on remand, the Board should take up the issue and determine whether a medical examination is warranted. The Boardshould thendecidewhethertheevidencesupports afindingthattheveteran's pancreaticcancer and herbicide exposure are directly linked and provide a statement of reasons or bases explaining its findings. The Court notes that the standard found in 38 U.S.C. § 5103A(d) is properly applied to determine whether a medical examination is warranted in disability compensation claims, but not in claims for DIC. See Wood v. Peake, 520 F.3d 1345 (Fed. Cir. 2008); DeLaRosa v. Peake, 515 F.3d 1319 (Fed. Cir. 2008). Thus, both 38 U.S.C. § 5103A(d) and the test stated in McLendon v. Nicholson, 20 Vet.App. 79 (2006), which provides guidelines for applying 38 U.S.C. § 5103A(d), are not applicable to this case, as the appellant argues. See Appellant's Br. at 14-16. Instead, the Board should apply the more general standards found in 38 U.S.C. § 5103A( a), as explained by DeLaRosa and Wood. C. 38 C.F.R. § 3.312(c)(3) The appellant argues that the Board should have applied 38 C.F.R. § 3.312( c)(3) to her case. Appellant's Br. at 16-19. In general, a veteran's death "will be considered as having been due to a service-connected disability when the evidence establishes that such disability was either the principal or contributory cause of death." 38 C.F.R. § 3.312(a) (2011). Regulatory language describes a contributorycause of death generallyas one that "contributed substantiallyor materially; that . . . combined to cause death; that . . . aided or lent assistance to the production of death. It is not sufficient to show that it casually shared in producing death, but rather it must be shown that 8 there was a causal connection." 38 C.F.R. § 3.312(c). However, pursuant to 38 C.F.R. § 3.312(c)(3), a service-connected disease or injury, like the veteran's diabetes mellitus, involvingactiveprocessesaffectingvital organsshould receivecarefulconsideration as a contributory cause of death, the primary cause being unrelated, from the viewpointofwhethertherewereresultingdebilitatingeffectsandgeneral impairment of health to an extent that would render the person materiallyless capable of resisting the effects of other disease or injury primarily causing death. The Board is required to consider and discuss all applicable provisions of law and regulation where they are made "potentially applicable through assertions and issues raised in the record." Schafrath v. Derwinski, 1 Vet.App. 589, 592-93 (1991); see 38 U.S.C. § 7104(a); Robinson, 21 Vet.App. at 552. The appellant argues that the pancreas is a vital organ, and that the veteran's diabetes mellitus affected his pancreas. Appellant's Br. at 18. Therefore, she argues, the Board should have applied § 3.312(c)(3) to consider "whether there were resulting debilitating effects and general impairment of health from the [v]eteran's diabetes mellitus to an extent that would render him materially less capable of resisting the effects of" his primary cause of death. Id. The Board listed § 3.312(c)(3) under the "Applicable Law" portion of its decision. R. at 15. The Court can find no evidence, however, that the Board considered and applied the regulation in the analysis portion of its decision. Since the Board itself identified the regulation as applicable to this case, it should have been considered and discussed. See 38 U.S.C. § 7104(a); Shafrath, 1 Vet.App. at 592-93. The Board's failure to consider the provision or explain any findings it reached renders its statement of reasons or bases inadequate. See 38 U.S.C. § 7104(d)(1); Allday, Caluza, and Gilbert, all supra. On remand, the Board should consider first whether the pancreas constitutes a "vital organ," and then consider the effects the veteran's diabetes mellitus had on his pancreas. See 38 C.F.R. § 3.312(c)(3). Finally, the Court notes that, on remand, the appellant is free to submit additional evidence and argument on the remanded matters, and the Board is required to consider any such relevant evidence and argument. See Kay v. Principi, 16 Vet.App. 529, 534 (2002) ( stating that, on remand, the Board must consider additional evidence and argument in assessing entitlement to benefit sought); Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999) (per curiam order). The Court has held that "[a] remand is meant to entail a critical examination of the justification for the decision." 9 Fletcher v. Derwinski, 1 Vet.App. 394, 397 (1991). The Board must proceed expeditiously, in accordance with 38 U.S.C. § 7112 (requiring Secretary to provide for "expeditious treatment" of claims remanded by the Court). III. CONCLUSION After consideration of the appellant's and Secretary's pleadings, and a review of the record, the Board's April 15, 2010, decision is VACATED and the matter is REMANDED to the Board for further proceedings consistent with this decision. DATED: September 30, 2011 Copies to: Robert V. Chisholm, Esq. VA General Counsel (027) 10