Single Judge Application, No Categorical Requirement of Competent Medical Evidence,Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Kahana v. Shinseki, 24 Vet.App. 428, 435 (2011)

Excerpt from decision below: "The Board further stated: "Where a determinative issue involves medical causation or a medical diagnosis, competent medical evidence is required." Id. Thus, the Board rejected the appellant's lay assertions that his chronic bronchial condition increased in severity during service because he failed to demonstrate that he had "the requisite competence to render such an opinion." R. at 11. Contrary to the Board's statement,there is no categorical requirement of"'competent medical evidence . . . [when] the determinative issue involves either medical etiology or a medical diagnosis.'" Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (quoting Jandreau v. 1 The Secretary has not responded to this argument. 7 Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007)); see also Kahana v. Shinseki, 24 Vet.App. 428, 435 (2011). Rather, the Board must assess the lay evidence and determine whether the disability claimed is of the type for which lay evidence is competent. See Jandreau, 492 F.3d at1377, cited in Robinson v. Shinseki, 312 F. App'x 336, 339, No. 2008-7096, 2009 WL 524737, at *2-3 (Fed. Cir. Mar. 3, 2009). If the disability is of the type for which lay evidence is competent, in making its determination regarding service connection, the Board, after making a credibility determination regarding the lay evidence, must weigh that evidence against the other evidence of record. See Buchanan v. Nicholson, 451 F.3d 1331, 1334-37 (Fed. Cir. 2006). In so doing, the Board is required to provide the appellant and the Court "a written statement of the reasons or bases for its findings and conclusions," which must include "the reasons for its rejection of any material evidence favorable to the veteran." Meyer v. Brown, 9 Vet.App. 425, 433 (1996); see also Gilbert v. Derwinski, 1 Vet.App. 49, 56-57 (1990). In this case, the Board concluded that the appellant was not competent to opine whether his condition increased in severity during his period of ACDUTRA without proffering any reasons or bases for its conclusion. Therefore, on remand, the Board must reassess the appellant's lay evidence and provide an adequate statement of reasons or bases for its findings." ================================================ ---------------------------------------------------- Designated for electronic publication only UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS NO. 10-1641 HARRY E. RICHARDSON, 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 pro se appellant, Harry E. Richardson, appeals an April 13, 2010, Board of Veterans' Appeals (Board) decision that denied entitlement to service connection for pneumothorax, claimed as a chronic bronchial condition. Record of Proceedings (R.) at 3-15. 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). Because the Board failed to provide an adequate statement of reasons or bases for its finding that VA satisfied its duty to assist, the Court will vacate the Board's April 13, 2010, decision and remand the matter for further proceedings consistent with this decision. I. BACKGROUND The appellant served on active duty for training (ACDUTRA) in the Tennessee Army National Guard from July 1961 to December 1961. R. at 1529. The appellant was honorably discharged on June 19, 1963, as a result of "physical disqualification." R. at 79, 1525. His enlistment examination does not reflect any defects or conditions related to his lungs, and the appellant reported that he was "in good health." R. at 1560-61. His service medical records (SMRs) indicate that he was admitted to the Ireland Army Hospital on August 18, 1961, "because of right sided chest pain of one week's duration." R. at 53. The narrative summary indicates that the appellant "came to the hospital because he felt like he was having another pneumothorax" and reported that "he had had a pneomothorax in 1959[,] which was treated by closed thoracotomy." Id. (emphasis added). Theappellantwasinitially"treatedconservativelywith bedrestandobservation," followed by "approximately 200 cc air . . . aspirated by needle." R. at 54. After serial x-rays revealed an increased pneumothorax, a closed tube thoracotomywas performed on August 25, 1961. Id. Two days later, the tube was changed as a result of "poor positioning." Id. On September 2, 1961, the chest tube was removed and a physical examination revealed that the "chest was clear throughout to percussion and auscultation." Id. On September 8, 1961, the appellant was placed on 10 days' convalescent leave. Id. Theappellant's posthospitalizationrecordsindicatethathecomplainedofrecurrent chestpain and was placed on "limited duty, no prolonged standing or marching." R. at 67; see also R. at 59. An October 2, 1961, surgical clinic record recorded the appellant's complaint of right anterior chest pain when he was performing physical activity. R. at 59. The clinician noted that the chest was clear to percussion and auscultation and that there was no evidence of any pulmonary disease. Id. The clinician also noted "post-op[erative] weakness" and suggested that the appellant "stop smoking." Id. The appellant was returned to duty. Id. A March 1962 medical record indicates that Dr. Carter, a private physician, treated the appellant for bronchitis and performed a "bronchoscopy with aspiration biopsy." R. at 77. The appellant's postservice medical records furtherindicate that he was treated for recurrent spontaneous pneumothorax in 1972 and 1975. R. at 190, 205, 237-38, 1348. In September 1975, the appellant's physician, a thoracic and cardiac surgeon, opined that the appellant was totally and permanently disabled as a result of "right and left thoracotomy, wedge resection of right and left lungs, and pleurectomyforrecurrentpneumothorax causedbymultiplecysticdiseaseofboth lungsandfrequent episodes of spontaneous pneuomothorax." R. at 215; see also R. at 1496. The appellant submitted an application for VA compensation benefits in September 1974 for a "collapsed lung," which the regional office (RO) denied in January1975. R. at 1492-93, 1521-24; see also R. at 1491. He attempted to reopen his claim in November 1975, but was notified in 2 January 1976 that his "claim remain[ed] in disallowed status" because the evidence failed to show that his lung condition was "incurred in or aggravated by" military service. R. at 1470, 1472-75. In August 2004, the appellant filed a request to reopen a claim for entitlement to service connection for a "bronchial condition." R. at 1367. On January 13, 2005, the RO denied reopening the claim for service connection for pneumothorax, claimed as a bronchial condition, because the evidence submitted, although new, was not material. R. at 1097-1101. In a December 4, 2008, decision, the Board remanded the appellant's claim to the RO because his " claims file [did] not . . . contain any records, medical or otherwise, relating to prior VA claims or rating decisions." R. at 139. The Board noted that "preliminary attempts by the RO to locate these documents from the Records Management Center (RMC) [had] been fruitless[,]" and that VA has a " 'heightened' duty to assist" in cases such a this. Id. The Board noted that the appellant's contentions were twofold: First, "that his lung collapse was caused by arduous physical training during his period of ACDUTRA." R. at 140. Second, that "the 7 daydelayin inserting the chest tube on or about August 25, 1961, caused permanent damage to his lungs, thereby aggravating his bronchial condition to the point of being physically disqualified from the [Tennessee Army National Guard]." Id. The Board noted thattheappellantwasdischargedfromservicewith afindingof pneumothorax, which "existed prior to service," and that the question was whether his condition underwent a permanent increase in severity during his period of ACDUTRA. Id. Significantly, the Board also noted that the appellant's claims file was previously misplaced and that "[a]lthough the claims file . . . is classified as 'rebuilt', even the most cursory of inspections would reveal that the available folder is incomplete, as a plethora of critical evidence is missing." R. at 141. The Board remanded the claim with directions that the RO " endeavor to conduct a search for the veteran's missing claims file" and that all "requests, actions, and responses be documented for future review." R. at 142. The Board further instructed the RO to schedule the appellant for a medicalexamination "toassessthecurrentnatureandetiologyof anypulmonary/bronchialdisorders found on examination." R. at 142-43. The examiner was directed to provide the following information: (1) "Discuss the history, onset, and etiology of the veteran's pulmonary/bronchial condition, to include multiple episodes of spontaneous pneumothorax"; (2) " Is it as likely as not . . . that the pulmonary/bronchial condition shown prior to service underwent a permanent increase in 3 underlying pathology, as opposed to a mere temporary increase in symptomatology, during or as a result of . . . service?"; (3) "If so, was the permanent increase in the underlying pathology due to normal progression of the disorder?"; and (4) "Address and discuss the clinical records from August 1961 and September 1961, which document hospitalization at Ireland Army Hospital, Fort Knox, Kentucky, for treatment of spontaneous pneumothorax." R. at 143. The appellant underwent a compensation and pension examination on September 3, 2009. R. at 436-41. Upon review of the appellant's claims file and a physical examination, the examiner opined that the appellant had a preexisting disorder, primary spontaneous pneumothorax, which is "often characterized byrecurrences especially with continued risk factors" such as smoking and that "under these circumstances (and more likely than not) this case followed a course that can[]not be considered unexpected." R. at 440. Theexaminer also opined that it was " more likelythan not [that] the management of [the appellant's] pneumothorax during his active tour did NOT contribute to any subsequent deterioration in his condition." Id. (emphasis in original). With regard to the question whether the appellant's condition was aggravated during his ACDUTRA, the examiner stated that it was "more likely than not – (and subjective complaints not[] withstanding) that his preexisting condition . . . did NOT undergo a 'permanent increase in underlying pathology' during that tour." Id. (emphasis in original). Finally, the examiner opined that it was more likely than not that the "recurrent infections . . . [,] bronchiectasis[,] and possibly some portion of the restrictive defect currently noted on [pulmonary function tests] are related to continued smoking and the events that occur[r]ed over a decade (1972) after his release[,] including surgeries and as[s]ociated sequelea as well as other possible co[-]morbid disease (cardiac)." Id. The Board issued the decision here on appeal on April 13, 2010. R. at 3-15. In its decision, the Board denied entitlement to service connection for pneumothorax, claimed as a bronchial condition. The Board concluded that the appellant had a primaryspontaneous pneumothorax before his entryinto ACDUTRA and that it was not likely aggravated during his period of ACDUTRA. R. at 5. With regard to VA's fulfillment of its statutory duty to assist, the Board stated that [a]s a result of the Board's December 2008 [r]emand, the claims file has been substantially rebuilt, although information in the claims file indicates that private medical records are still missing from several private hospitals, including reports dated in the 1960s after service. VA has done everything reasonably possible to 4 assist the [v]eteran with respect to his claim for benefits in accordance with 38 U.S.C. § 5103A. . . . Service treatment records have been associated with the claims file. All identified and available private treatment records have been secured, as well as medical records associated with the [v]eteran's claim for disabilitybenefits from the Social Security Administration. The [v]eteran also has been medically evaluated in conjunction with his claim . . . [and t]he Board finds that the available medicalevidenceis sufficient foranadequatedetermination ofhisserviceconnection claim without causing any prejudice to the [v]eteran. R. at 6. II. ANALYSIS On appeal, the appellant argues that (1) VA failed to fulfill its duty to assist by failing to obtain a communication between Dr. John Paul Carter and "proper military authority," which preceded his discharge by physical disqualification; (2) the Board failed to consider lay testimony; (3) the Board failed to afford him the benefit of the doubt; and (4) " there is no medical evidence to concludethat smoking was [the] actual causeor even instrumental to [his] lung condition." Informal Brief (Br.) at 1-2. The Secretary admittedly does not respond to or address the arguments raised by the appellant. Secretary's Br. at 11. Rather, the Secretaryargues two alternative bases for affirming the Board's decision: (1) The presumptions of soundness and aggravation have been rebutted, or (2) the Board improperly afforded the appellant the presumption of aggravation, which does not apply to the appellant's claim that is based on a period of ACDUTRA. Id. at 8-13 ( citing Donnellan v. Shinseki, 24 Vet.App. 167 (2010) and Smith v. Shinseki, 24 Vet.App. 40 ( 2010)). With regard to the latter argument, the Secretary asserts that the appellant has not carried his burden of demonstrating that his condition was incurred during, or aggravated by, his period of ACDUTRA. Secretary's Br. at 11-13. A. VA's Duty To Assist The Secretary has a duty to assist claimants in developing their claims. 38 U.S.C. § 5103A. The duty to assist includes the duty to make "reasonable efforts to obtain relevant records," as long as the claimant "adequately identifies" those records to the Secretary and authorizes the Secretary to obtain them. 38 U.S.C. § 5103A(b)(1); see also Loving v. Nicholson, 19 Vet.App. 96, 102 (2005). If the records aremaintained bya Federal department or agency, "efforts to obtain those records shall 5 continue until the records are obtained unless it is reasonably certain that such records do not exist or that further efforts to obtain those records would be futile." 38 U.S.C. § 5103A(b)(3); 38 C.F.R. § 3.159(e) (2011). If the Secretary is unable to obtain those records after making reasonable efforts to do so, the Secretarymust provide notice of that fact to the claimant. See 38 U.S.C. § 5103A(b)(2); 38 C.F.R. § 3.159(e). The Board's determination that VA has satisfied the duty to assist is reviewed under the "clearly erroneous" standard of review. Hyatt v. Nicholson, 21 Vet.App. 390, 395 (2007). Moreover, when a veteran's records are presumed lost or destroyed, the Board is "under a heightened duty to consider and discuss the evidence of record and supply well-reasoned bases for its decision as a consequence of the appellant's missing [records]." Washington v. Nicholson, 19 Vet.App. 362, 371 (2005); see also Russo v. Brown, 9 Vet.App. 46, 51 ( 1996) (holding that the Court's caselaw establishes a "heightened duty" to assist when the appellant's medical records have been lost or destroyed); Cuevas v. Principi, 3 Vet.App. 542, 548 (1992) ( holding that the Board's dutyto assist a claimant in developinghis claim is heightened in cases in which the appellant's SMRs are lost or destroyed). In the decision here on appeal, the Board determined that VA's duty to assist had been met. R. at 6. However, the appellant appears to argue that VA did not satisfy its duty to assist because all efforts to obtain a communication between his physician, Dr. John Paul Carter, and "proper military authority" have been ignored. Informal Br. at 1. A review of the record reveals that it contains VA Form 21-4142, Authorization and Consent to Release Information to [VA], on which the appellant requested that VA obtain a letter from his physician, Dr. John Paul Carter, to the Department of the Army concerning the medical reasons for his physical disqualification discharge on June 19, 1963. R. at 497. This document bears the resemblance of a stamp noting VA's receipt of the document; however, the date it was received is not legible. Id. As argued by the appellant, the record on appeal does not contain the aforementioned letter. Although the Board discussed various actions taken by the RO to rebuild the claims file and concluded that "all identified and available private treatment records have been secured," the Board did not discuss in its statement of reasons or bases what efforts, if any, were made to locate the document. R. at 6. However, in its discussion of the evidence, the Board noted that the appellant submitted a statement in January 2009, in which the appellant asserted that "Dr. [Carter], his 6 cardiovascular and thoracic surgeon, was convinced that the needle aspiration of his lung while at the Army hospital and the delay of using a closed chest tube procedure caused permanent damage to his lung." R. at 11. The Board further noted that the appellant contended that "Dr. [Carter] contacted National Guard authorities, and that is whyhe was discharged for physical reasons in June 1963." Id. Given that the appellant's claim appears to hinge on whether his bronchial condition underwent a permanent increase in severity during his period of ACDUTRA, and the Board failed to discuss whether VA's duty to assist required it to undertake a search for this potentially favorable evidence, the Court will remand the matter. The Board's failure to address what efforts, if any, were made to search for this particular document or whether the document was adequately identified so as to trigger VA's duty to conduct a search, renders its statement of reasons or bases for finding that VA satisfied its duty to assist inadequate to facilitate review. See 38 U. S.C. § 7104(d)(1); see also Washington, supra; Tucker v. West, 11 Vet.App. 369, 374 (1998) (holding that remand is the appropriate remedy "where 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"). B. Evaluation of the Appellant's Lay Evidence The appellant also argues that the Board failed to appropriately consider his lay testimony.1 Informal Br. at 1. The Court agrees. A review of the Board's decision shows that the Board found that "[t]o the extent that the [v]eteran is able to observe continuity of symptomatology, his opinion is outweighed by the competent medical evidence." R. at 14. The Board further stated: "Where a determinative issue involves medical causation or a medical diagnosis, competent medical evidence is required." Id. Thus, the Board rejected the appellant's lay assertions that his chronic bronchial condition increased in severity during service because he failed to demonstrate that he had "the requisite competence to render such an opinion." R. at 11. Contrary to the Board's statement,there is no categorical requirement of" 'competent medical evidence . . . [when] the determinative issue involves either medical etiology or a medical diagnosis.'" Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (quoting Jandreau v. 1 The Secretary has not responded to this argument. 7 Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007)); see also KahanaNext Document v. Shinseki, 24 Vet.App. 428, 435 (2011). Rather, the Board must assess the lay evidence and determine whether the disability claimed is of the type for which lay evidence is competent. See Jandreau, 492 F.3d at1377, cited in Robinson v. Shinseki, 312 F. App'x 336, 339, No. 2008-7096, 2009 WL 524737, at *2-3 (Fed. Cir. Mar. 3, 2009). If the disability is of the type for which lay evidence is competent, in making its determination regarding service connection, the Board, after making a credibility determination regarding the lay evidence, must weigh that evidence against the other evidence of record. See Buchanan v. Nicholson, 451 F.3d 1331, 1334-37 (Fed. Cir. 2006). In so doing, the Board is required to provide the appellant and the Court "a written statement of the reasons or bases for its findings and conclusions," which must include "the reasons for its rejection of any material evidence favorable to the veteran." Meyer v. Brown, 9 Vet.App. 425, 433 (1996); see also Gilbert v. Derwinski, 1 Vet.App. 49, 56-57 (1990). In this case, the Board concluded that the appellant was not competent to opine whether his condition increased in severity during his period of ACDUTRA without proffering any reasons or bases for its conclusion. Therefore, on remand, the Board must reassess the appellant's lay evidence and provide an adequate statement of reasons or bases for its findings. C. The Appellant's Remaining Arguments Given the above disposition, the Court will not at this time address the remaining arguments and issues raised by the appellant. See Best v. Principi, 15 Vet.App. 18, 20 (2001). "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." Id. In pursuing his case on remand, the appellant is free to submit additional evidence and argument on the remanded matters, and the Board is required to consider anysuch 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." Fletcher v. Derwinski, 1 Vet.App. 394, 397 (1991). The Board must proceed expeditiously, in accordance 8 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 the Secretary's pleadings, and a review of the record, the Board's April 13, 2010, decision is VACATED and the matter is REMANDED to the Board for further proceedings consistent with this decision. DATED: November 29, 2011 Copies to: Harry E. Richardson VA General Counsel (027) 9