Single Judge Application, Savage v. Shinseki, 24 Vet.App. 259, 260 (2011), Duty to Return for Clarification Unclear or Insufficient Examination reports

Excerpt from decision below: "Thus, when the Board finds a VA examination report to be unclear, it ordinarily should remand the matter to the RO for clarification from the examiner. See 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 Savage v. Shinseki, 24 Vet.App. 259, 260 (2011) ("in some circumstances, VA does have a duty to return for clarification unclear or insufficient private examination reports . . . , or the Board must explain why such clarification is not necessary."). The Board in the instant case erred in rejecting the favorable medical evidence of record without complying with its duty to assist by seeking further clarification from the examiners. R. at 14. Accordingly, remand is required. See Savage and Bowling, both supra." ==================================================== ---------------------------------------------------- Designated for electronic publication only UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS NO. 10-3957 BARRY A. KRUPKIN, APPELLANT, V. ERIC K. SHINSEKI, SECRETARY OF VETERANS AFFAIRS, APPELLEE. Before FARLEY, Judge. MEMORANDUM DECISION Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent. FARLEY, Judge: The appellant, Barry A. Krupkin, appeals from the October 5, 2010, decision of the Board of Veterans' Appeals (Board) that denied entitlement to an increased disability rating in excess of 10% for residuals of shell fragment wounds (SFWs) to the abdomen with retained foreign bodies (RFB). Single-judge disposition is appropriate when the issue is of "relative simplicity" and "the outcome is not reasonablydebatable." Frankel v. Derwinski, 1 Vet.App. 23, 25- 26 (1990). This appeal is timelyand the Court has jurisdiction pursuant to 38 U.S.C. §§ 7252(a) and 7266(a). For the reasons that follow, the Court will vacate the October 2010 Board decision to the extent that it denied entitlement to an increased disability rating and remand that matter. In the same decision, the Board also denied entitlement to service connection for Kaposi's sarcoma, claimed as cancer, and entitlement to an effective date prior to December 10, 1999, for the grant of service connection for type II diabetes mellitus. In a separate Board decision also dated October5, 2010, the Board denied the payment or reimbursement of unauthorized medicalexpenses incurred at a private medical facility on May 11, 2007. The appellant raises no argument with respect to the Board's denial of his claims for service connection for Kaposi's sarcoma, entitlement to an effective date prior to December 10, 1999, for the grant of service connection for diabetes mellitus, or entitlement to payment or reimbursement of unauthorized medical expenses; these claims are therefore deemed abandoned. See Ford v. Gober, 10 Vet.App. 531, 535 (1997) (holding that claims not argued on appeal are deemed abandoned); Bucklinger v. Brown, 5 Vet.App. 435, 436 (1993). I. FACTS The appellant served on active duty in the U.S. Army from July 1968 to February 1970, including service in Vietnam. Record (R.) at 358. In May 1970, the regional office (RO) granted service connection for anxiety reaction and for multiple SFWs, including an SFW to the abdomen with laceration of the liver, status post operation, and an SFW to the abdomen with RFB. R. at 4785-86. The RO assigned a 100% disability rating for the convalescent period. Id. In August 1970, the RO assigned a 10% rating for the appellant's SFW to the abdomen with laceration of the liver and a separate 10% rating for the appellant's SFW to the abdomen with RFB. R. at 4754-56. In April 1984, the RO determined that the most recent VA examination failed to show objective findings to support a compensable rating for superficial and healed SFWs, including those to the abdomen, and reduced the disability ratings for all of the appellant's service-connected SFWs to noncompensable. R. at 4554-57; see also R. at 4559-68 (February 1984 VA examination report). The appellant filed a claim for increased disability ratings for his service-connected conditions (see R. at 4282, 4319), and in November 1988, the RO increased the ratings for the appellant's SFW to the abdomen with laceration of the liver to 10% and for his SFW to the abdomen with RFB to 10%. R. at 4284. In July 2007, the appellant filed a claim seeking increased ratings for his service-connected SFWs to the abdomen and left leg. R. at 1356-62. He stated that he continued to suffer severe pain from his injuries and that he recently underwent surgery to remove shrapnel from the left and right sides of his abdomen. R. at 1356, 1358. He submitted surgical and pathology reports from Dr. David Herf, which reflected that the RFBs to the appellant's abdomen and left leg had become "increasingly tender to touch and very superficial." R. at 1338. The pathology report reflected that foreign bodies were removed from the appellant's right side abdomen and left upper abdomen. R. at 1340. 2 In August 2007, the appellant underwent a VA examination conducted by Dr. Sanford Epstein. R. at 1303-07. The appellant reported constant, severe pain. R. at 1304. He also reported constant sweating, nausea four times a week, and periodic emesis. Id. Dr. Epstein noted a midline abdominal scar that was 27 cm long by 4 cm wide and was superficial, linear, flat, and nontender to palpation. R. at 1305. He also noted an 18 cm by 1 cm horizontal scar that traversed the lower third of the midline abdominal scar. Id. The VA examiner described this scar as linear, flat, superficial, and also nontender to palpation. Id. He further noted that the appellant was wheelchair bound and morbidly obese, "easily bends over from the waist down, except for being limited by his habitus." R. at 1304, 1306. Dr. Epstein specifically stated that the appellant could not get into examination table position and that he "would have to speculate as to whether or not palpation of the abdomen reveals any tenderness, masses or organomegaly because [the appellant] is not able to lie on the examination table." R. at 1305. An x-ray of the appellant's abdomen revealed "[m]ultiple irregular small metallic densities overlying the abdomen . . . which maybe related to prior ballistic injury" and "[i]rregular linear densities overlying the abdomen and pelvis, [which] are nonspecific and may be surgical." R. at 1306. Dr. Epstein rendered a diagnosis of a history of SFW to the abdomen with RFB and laceration to the liver, postoperative with scarring. R. at 1306. In September 2008, the RO denied the appellant's claim for an increased rating for his service-connected residuals of an SFW to the abdomen. See R. at 473, 647. The appellant perfected an appeal. R. at 442-72, 647. In his Notice of Disagreement, the appellant argued that the RO failed to consider the massive scar tissue on his stomach. R. at 647. In particular, the appellant alleged that a 14-inch long horizontal scar on his abdomen stemmed from a 1991 operation and had resulted in additional nerve and muscle damage that caused constant pain and disfigurement and restricted his ability to bend his torso forward. Id. In his Substantive Appeal, the appellant noted that Dr. James Moody had surgically removed an incarcerated hernia from his stomach in October 1991 at the Destin Hospital. R. at 442. The appellant also submitted a statement from Dr. Moody dated in June 1998, in which Dr. Moody stated that he had surgically repaired an incarcerated incisional hernia in 1991. R. at 446. Dr. Moody opined that the appellant's incarcerated hernia was due to the deep penetrating injury that the appellant sustained in Vietnam. Id. He further stated that the appellant subsequently had another incisional hernia that required placement of mesh. Id. 3 The appellant also submitted an inpatient record dated in October 1991 from the Humana Hospital in Destin, Florida, which revealed that, after the appellant had presented with right-side abdominal pain, an ultrasound showed findings that were consistent with a large ventral hernia demonstrating incarcerated tissue from within the abdomen. Id. The attending physician, Dr. Causton, stated that he obtained a surgical consult from Dr. Moody, and that the appellant was admitted to the hospital for surgery. Id. In addition, the appellant submitted a May 1984 medical evaluation from Dr. MurrayTodd. R. at 464-66. In pertinent part, Dr. Todd diagnosed the appellant with muscle tissue damage caused by deep penetrating wounds of the torso. R. at 466. A private treatment record from Dr. Herf reflected that the appellant was admitted to the North Okaloosa Medical Center in April 1996 for a ventral hernia repair. R. at 466-68. On October 5, 2010, the Board issued its decision in which it denied entitlement to an increased rating in excess of 10% for the appellant's SFW to the abdomen with RFBs. R. at 3-21. This appeal followed. II. ANALYSIS A Board determination of the appropriate degree of disability under the rating code is a finding of fact subject to the "clearly erroneous" standard of review. 38 U.S.C. § 7261(a)(4); see Smallwood v. Brown, 10 Vet.App. 93, 97 (1997). "A factual finding 'is " clearly erroneous" when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.'" Hersey v. Derwinski, 2 Vet.App. 91, 94 (1992) (quoting United States v. U.S. Gypsum Co., 333 U.S. 364, 395 ( 1948)). The Court may not substitute its judgment for the factual determinations of the Board on issues of material fact merely because the Court would have decided those issues differently in the first instance. See id. The Board must consider all evidence of record and discuss all " potentially applicable" provisions of law and regulation. 38 U.S .C. § 7104(a); Schafrath v. Derwinski, 1 Vet.App. 589, 592-93 (1991). The Board's decision must include an adequate statement of the reasons or bases for its findings and conclusions on all material issues of fact and law presented on the record; that statement must be adequate to enable an appellant to understand the precise basis for the Board's decision, as well as to facilitate informed 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 comply 4 with this requirement, the Board must analyze the credibility and probative value of the evidence, account for the evidence 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). The appellant argues that his abdomen injury was "further aggravated over the years by the additional loss of nerve and muscle tissue damages and greatly further disfigured [his] body due to repeated operations." Appellant's Brief (Br.) at 2. The appellant argues that the Board failed to consider that in 1991 he underwent a "life saving operation" caused by his original shrapnel injury. Appellant's Br. at 3. The appellantfurtheralleged that Dr. Joseph Monastero, his VA physician from Eglin Air Force Base, had to call home health nurses to provide wound care because the mesh pushes through his stomach. Appellant's Br. at 4. The appellant argues for the application of the benefit of the doubt and asks the Court to rule in his favor and find that he is entitled to a higher rating for his abdomen. Appellant's Br. at 6. The Secretary argues for affirmance of the Board's decision. Secretary's Br. at 4-9. The Secretaryhas filed a separate motion to strike an attachment to the appellant's replybrief and arguments based thereon as the document attached by the appellant contains a handwritten attestation that postdates the Board's October 5, 2010, decision. Secretary's Motion at 1-2. The appellant has filed a written opposition to the Secretary's motion. The motion to strike the attachment to the appellant's reply brief will be granted as the Secretary correctly argues that such a document may not be considered by the Court as it was not contained in the record of proceedings before the Board. Secretary's Motion at 1-2; see 38 U.S.C. § 7252(b) (the Court is prohibited from considering anymaterial that was not contained in the "record before the Secretaryand the Board."); Bonhomme v. Nicholson, 21 Vet.App. 40, 43-45 (2007); Rogozinski v. Derwinski, 1 Vet.App. 19, 20 (1990). The Board purported to limit its decision in the instant case to the adjudication of the appellant's claim for an increased rating for residuals of an SFW to the abdomen with RFB. R. at 14. The Board expressly found that the appellant's claim for an increased rating for residuals of an SFW to the abdomen with laceration of the liver was not on appeal. Id. The Board specifically found that Dr. Moody's 1998 letter related to "a second condition for which the [appellant is service[ 5 ]connected: his residuals of an [SFW] to the abdomen with laceration to the liver." Id. The Board determined that the appellant's "claim here is not seeking an increase for those deep penetrating wounds that he suffered; instead, this claim is focused on [his] other, more superficial wounds to the abdomen for which he obtained a separate rating." Id. While the appellant did not explicitly raise the issue of entitlement to an increased rating for residuals of an SFW to the abdomen with laceration of the liver, the appellant, as a lay person, is not qualified to delineate the precise boundaries of his condition or his claim. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). An appellant's claim is not narrowly limited to the diagnosis he puts down, but encompasses additional disabilities reasonably raised by "the claimant's description of the claim; the symptoms the claimant describes; and the information the claimant submits or that the Secretary obtains in support of the claim." Clemons v. Shinseki, 23 Vet.App. 1, 5 (2009). The Court has jurisdiction over "any matters that were reasonably raised below that the Board should have decided, with regard to a claim properly before the Court, but failed to do so." Id. at 3. Because this appellant cannot be expected to understand the technical differences between symptoms of residuals of an SFW to the abdomen with a laceration of the liver and symptoms of residuals of an SFW to the abdomen with RFB, the Board erred in limiting his claim for an increased rating for residuals of SFWs to the abdomen to a claim for an increased rating for residuals that were due to RFBs. R. at 14. The appellant's claim necessarilyincluded anyrelated disabilityraised during the development of that claim, as he is seeking increased compensation for his symptoms regardless of diagnosis. See Clemons, 23 Vet.App. at 3. Even if the claim for an increased rating for SFWs to the abdomen with laceration of the liver was never appealed to the Board, the findings made in that claim and its outcome may well be relevant to this appeal. Accordingly, the Board's failure to address the appellant's entitlement to an increased rating for his SFW to the abdomenwith laceration of the liver frustrates judicial review and warrants remand. See Allday, supra; see also Clemons, supra (Court has jurisdiction to remand anymatters reasonablyraised below that Board should have but failed to decide). The Secretary "shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claimant's claim for a benefit under a law administered by the 6 Secretary." 38 U.S.C. § 5103A(a)(1). The Secretary's duty to assist a claimant includes, among other things, "providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessaryto make a decision on the claim." 38 U. S.C. § 5103A(d)(1); see 38 C.F.R. § 3.159(c) (2011). Further, 38 C.F.R. § 4.2 requires that, once obtained, if an examination report does not contain sufficient detail, "it is incumbent upon the rating board to return the report as inadequate for evaluation purposes." 38 C.F.R. § 4.2 (2011). The Court reviews the Board's determination that VA satisfied its duty to assist under the "clearly erroneous" standard of review. Nolen v. Gober, 14 Vet.App. 183, 184 (2000). Here, the Board rejected VA and private medical evidence that indicated that the appellant underwent multiple postservice abdominal surgeries related to his SFWs because the Board found that the appellant had "fabricated evidence in an effort to support his claim." R. at 14. The Board offered an inadequate statement of reasons or bases for this conclusion. Id.; see Allday and Gilbert, both supra. Moreover, pursuant to 38 C.F.R. § 19.9(a) (2011), "[i]f further . . . clarification of the evidence . . . is essential for a proper appellate decision, [the Board] shall remand the case to the agency of original jurisdiction, specifying the action to be undertaken." Id. Thus, when the Board finds a VA examination report to be unclear, it ordinarily should remand the matter to the RO for clarification from the examiner. See 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 Previous DocumentSavageNext Hit v. Shinseki, 24 Vet.App. 259, 260 (2011) ("in some circumstances, VA does have a duty to return for clarification unclear or insufficient private examination reports . . . , or the Board must explain why such clarification is not necessary."). The Board in the instant case erred in rejecting the favorable medical evidence of record without complying with its dutyto assist byseekingfurther clarification from the examiners. R. at 14. Accordingly, remand is required. See Previous HitSavageNext Document and Bowling, both supra. To the extent that the appellant argues for reversal of the Board's decision, his argument is not persuasive. Appellant's Br. at 6. Reversal is the appropriate remedy only in cases in which the only permissible view of the evidence is contrary to the Board's decision. Gutierrez v. Principi, 19 Vet.App. 1, 10 (2004); Johnson v. Brown, 9 Vet.App. 7, 10 (1996). Generally, where the Board has 7 incorrectly applied the law or failed to provide an adequate statement of reasons or bases for its determinations, or where the record is otherwise inadequate, remand is the appropriate remedy. Tucker v. West, 11 Vet.App.369, 374 (1998); see Coburn v. Nicholson, 19 Vet.App. 427, 431 (2006) (holding that remand is appropriate when "the Court finds that the Board decision is defective in its reasons or bases therebypreventing properreview bythe Court"). Here, the Court is precluded from reviewing the Board's decision due to its failure to address the appellant's entire claim for an increased rating for SFWs to the abdomen, as well as VA's failure to fully comply with its duty to assist. Thus, reversal is not the proper remedy; the Court will vacate the decision and remand the matter on appeal for readjudication. In light of the need to remand the appellant's claim for an increased rating for residuals of SFWs to his abdomen based on the foregoing errors, his remaining assertions of error are moot. See Dunn v. West, 11 Vet.App. 462, 467 (1998) (remand of the appellant's claim under one theory moots the remaining theories advanced on appeal). On remand, the appellant may present, and the Board must consider, any additional evidence and argument in support of the matter remanded. See Kay v. Principi,16 Vet.App. 529, 534 (2002). This matter is to be provided expeditious treatment on remand. See 38 U.S.C. § 7112. III. CONCLUSION Upon consideration of the foregoing analysis, the record on appeal,and the parties' pleadings, the Secretary’s motion to strike the attachment to the appellant's reply brief is granted and the Board's October 5, 2010, decision is VACATED to the extent that it denied entitlement to an increased disability rating and that matter is REMANDED for proceedings consistent with the foregoing. DATED: November 30, 2011 Copies to: Barry A. Krupkin VA General Counsel (027) 8