Wednesday, February 23, 2011

Single Judge Application, Buczynski v. Shinseki, No. 08-3000; Silence in Medical Record

Excerpt from Decision below;
"Prior to his current claim for benefits, the appellant never mentioned an in-service injury to his back and repeatedly reported to physicians that he had a severe childhood injury instead. See Buczynski v. Shinseki, 08-3000, __ Vet.App. __, __, 2011 WL 37846 at *3, slip op. at 5 (Jan. 6, 2011) (silence in a medical record may be relevant if the record would normally have recorded the fact at issue); cf. Fed. R. Evid. 803(4) (statements of relevant medical history are an exception to the hearsay rule); 803(7) (the absence of an entry in a record may be taken as evidence that the event did not occur if the matter is of the kind that ordinarily would have been recorded in that record). Accordingly, the Board could reasonably conclude that the appellant's prior statements rendered his current statements not credible."
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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 09-4108
GERALD O'DANIELS, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.

Before LANCE, Judge.

MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.

LANCE, Judge: The appellant, Gerald O'Daniels, through counsel, appeals a
September 15, 2009,Board of Veterans' Appeals(Board)
decision denying his claims for compensation for a lumbar spine disability and a disability characterized by loss of concentration. Record (R.) at 3-10.
Single-judge disposition is appropriate. See Frankel v. Derwinski, 1 Vet.
App. 23, 25-26 (1990).
This appeal is timely, and the Court has jurisdiction over the case
pursuant to 38 U.S.C. §§ 7252(a) and 7266. For the reasons that follow, the Court will affirm the September 15, 2009, decision.
The appellant's claims are based upon the assertion that he suffered two
in-service injuries to his back and an overdose of the pain medication prescribed for those injuries, notwithstanding the fact that there are no records of either the injuries or the treatment. Appellant's Brief (Br.) at 1.
The Board rejected the appellant's claims based upon its conclusion that the claims "have no support other than his history, which is neither consistent nor credible." R. at 8. The Court concludes that the Board's credibility finding is not clearly erroneous.See 38 U.S.C. § 7104(d)(1)); Gutierrez v. Nicholson, 19 Vet.App. 1, 9-10 (2005) (noting that a Board 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.'" (quoting Gilbert v. Derwinski, 1 Vet.App. 49, 52 (1990) (internal citations omitted))).


There is ample evidence that contradicts the appellant's factual
assertions. An April 1988 Social Security Administration (SSA) decision found that the appellant became unable to work after service in 1977 when he suffered an injury to his back while working in the construction industry. R. at 28. There is no indication that the appellant asserted at that time that he had been injured in service. Moreover,the SSA decision also referred to a June 1984 evaluation by an orthopedist where the appellant stated his back pain was due to a childhood injury. Id. In a
December 1995 private hospital record, the appellant reported that he had two ruptured discs and two cracked vertebrae when he was five years old. R. at 322. In a July 1997 private clinical note, the appellant attributed his back pain to an accident that occurred when he was five years old that involved being run over by a vehicle and that since the accident, he had chronic low back pain. R. at 371. At a March 2002 private psychiatric evaluation, the appellant gave a history of being run over by a tractor as the cause of his back pain. R. at 366-67.
The appellant filed a claim for service connection for a back disability in November 2004. R. at 392-95. Despite his repeated statements to physicians about a severe childhood injury, during a May 2006 hearing the appellant stated that before he went into service, he did not have any back problems and had never injured his back. R. at 188. In a May 2006 hearing, the appellant again asserted that he had no problems with his back prior to service. R. at 188.
At a February 2009 hearing before the Board, the appellant indicated that he had an
occupational injury to his back in 1977 and that he received workers' compensation for it. R. at 473-76.
Based upon the above evidence, the Court firmly agrees with the Board that
the appellant's assertions of a back injury in service are simply not credible. Prior to his current claim for benefits, the appellant never mentioned an in-service injury to his back and repeatedly reported to physicians that he had a severe childhood injury instead. See Buczynski v. Shinseki, 08-3000, __ Vet.App. __, __, 2011 WL 37846 at *3, slip op. at 5 (Jan. 6, 2011) (silence in a medical record may be relevant if the record would normally have recorded the fact at issue); cf. Fed. R.Evid. 803(4) (statements
of relevant medical history are an exception to the hearsay rule); 803(7) (the absence of an entry in a record may be taken as evidence that the event did not occur if the matter is of the kind that ordinarily would have been recorded in that record). Accordingly, the Board could reasonably conclude that the appellant's prior statements rendered his current statements not credible.
2


The appellant argues that, despite the inconsistencies, "[i]t is well within the realm of possibility" that he had an in-service back injury even if he also had a childhood injury and a post-service injury. Appellant's Br. at 6. The appellant further argues that he is entitled to a medical examination and to explicit consideration of all the theories of entitlement raised by his testimony.
The Court disagrees. Simply put, once the appellant's testimony was found not credible, there was no factual basis to require further development of his claim or further discussion by the Board.
While that will not be true in every case, the appellant admits that in
this case there is no evidence to corroborate his testimony and, therefore, nothing that would require VA to expend further effort on this claim once that testimony was found not credible. Cf. Reonal v. Brown, 5 Vet.App. 458, 460-61 (1993) (medical opinion based on inaccurate factual premise has no probative value). The appellant remains free to seek to reopen his claims should he obtain some evidence to corroborate his testimony.
After consideration of the appellant's and the Secretary's briefs, and a
review of the record,
the Board's September 15, 2009, decision is AFFIRMED.
DATED: Feb. 9, 2011
Copies to:
Daniel G. Krasnegor, Esq.
VA General Counsel (027)
3

NRC Issues Orders Over Botched Brachytherapy at Philadelphia-VA Medical Center

Full Article at: NRC issues orders against 2 former Philly VA medical specialists

By Brian Bowling
PITTSBURGH TRIBUNE-REVIEW

"Viktoria Mitlyng, an Nuclear Regulatory Commission [NRC] spokeswoman, said the agency was ordering Dr. Gary Kao to refrain from any "NRC-regulated activities" because he no longer works at an institution that can require him to undergo the training the agency believes he needs before performing medical procedures involving radioactive materials. Most of the treatments he performed were wrong," she said."

A separate order was issued "against medical physicist Gregory Desobry" that "requires him to notify the NRC — which normally issues orders only to institutions — if he ever takes another job that involves NRC-regulated activities."

"The NRC investigation focused on a prostate treatment known as brachytheraphy, a procedure that uses the injection of rice-sized seeds of iodine-125 to kill off cancerous cells. The Philadelphia VA staff flubbed 97 of the 116 brachytherapy procedures it performed from 2002-08, and Kao was responsible for 91 of those botched procedures, according to the NRC."

Arkansas-RO Serious Problems, VAOIG No. 10-02858-102

Administrative Investigation Failure to Safeguard and Misuse of VA Equipment and Lack of Candor Office of Information & Technology Fayetteville, Arkansas

Report Number 10-02858-102, 2/23/2011 | Restricted - Contact our FOIA office for assistance

Single Judeg Application, Libertine v. Brown, 9 Vet.App., Medical Literature and Medical Nexus

Excerpt from decision below:
"Even assuming that the paragraph from Mr.Crump's statement constitutes medical treatise evidence, this Court has previously held that such generalized medical literature is too generic to independently establish a medical nexus between a veteran's particular in-service injury and a currently diagnosed condition. See, e.g., Libertine v. Brown, 9 Vet.App. 521, 523 (1996). Accordingly, the quoted portion of the medical article was not material to the issue critical to the adjudication of Mr. Crump's claim: a direct connection between his in-service sun exposure and his currently diagnosed basal cell carcinoma of the nose. The Board therefore did not err by failing to discuss this evidence. See Caluza, 7 Vet.App. at 506."
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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 08-1187
THOMAS B. CRUMP, 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: Thomas B. Crump appeals through counsel a January 2, 2008,
Board of
Veterans' Appeals (Board) decision that denied entitlement to VA benefits
for a residual shell
fragment wound scar on the back of the head and for basal cell carcinoma
of the nose. The Court
has jurisdiction pursuant to 38 U.S.C. §§ 7252(a) and 7266(a) to review
the January 2008 Board
decision. Because the Board provided an inadequate statement of its
reasons or bases in determining
that there is no evidence that Mr. Crump has a residual scar on the back
of his head, the Court will
vacate that portion of the January 2008 Board decision and remand the
matter for further
development and readjudication consistent with this decision. Because the
Board relied on an
adequate medical opinion and provided a sufficient statement of its
reasons or bases, the Court will
affirm that portion of the Board's January 2009 decision that denied
entitlement to VA benefits for
basal cell carcinoma of the nose.
I. FACTS
Mr. Crump served on active duty with the U.S. Marine Corps from August
1940 until March
1967, including service in the Asiatic-Pacific Campaign during World War
II and in the Korean
Conflict. Mr. Crump also participated in the defense of Pearl Harbor on
December 7, 1941, when
it was attacked by the Empire of Japan.


In September 2003, Mr. Crump filed a claim for VA benefits for a scar on
the back of his
head, indicating that it was the result of a wound he suffered during the
attack on Pearl Harbor. In
November 2003, Mr. Crump submitted a statement in support of his claim,
indicating that he
suffered this wound when he was hit in the back of the head byshrapnel
during the bombing of Pearl
Harbor and that he was treated for it outside the naval hospital. A
separate statement previously
submitted by Mr. Crump in connection with an unrelated claim also recounts
these events and states
that his name was not taken at the hospital due to the chaos of the moment.
In addition to his own
statements, a former gunnery sergeant that served with Mr. Crump at Pearl
Harbor offered a letter
dated November 2003 stating that Mr. Crump had been wounded in the head
during the attack.
Also in November 2003, Mr. Crump applied for VA benefits for basal cell
carcinoma of the
nose.
In July 2003, Mr. Crump was afforded a VA medical examination with a nurse
practitioner.
In the examiner's report, several claimed conditions were noted, including
basal cell carcinoma,
which Mr. Crump told the examiner had been diagnosed in 1990. The report
also indicated that Mr.
Crump told the examiner that he believed the cancer was caused by sun
exposure during his long
period of active duty. The examiner diagnosed Mr. Crump with "basal cell
carcinoma of the nose
by history; status post[-]skin grafting," but concluded that "this
condition was not diagnosed until
1990 and is not likely related to military service." Record (R.) at 589.
In April 2004, a VA regional office denied both of Mr. Crump's claims and
in May 2004 he
filed a Notice of Disagreement.
In July 2004, Mr. Crump submitted a statement in support of his claim,
explaining that he
had been stationed in South Carolina and California for a period of time
and that his duties required
him to be constantly exposed to sun. He also stated that several
dermatologists that treated him
informed him that "the damage to [his] face was caused from the cumulative
results of excessive
exposure to sun." R. at 439. Finally, Mr. Crump quoted from an article he
represented was written
by a private dermatologist:
"When your skin absorbs the sun's rays, those rays actually damage the DNA
in your
skin's cells. This damage causes the cells to become dysfunctional.
Dysfunctional
cells don't behave properly, the results of which include a reduction in
the production
of collagen and elastin (the substances in the skin that support it and
make it plump
2


and healthy), a thinning of the top layer of skin, a halt in the skin's
natural ability to
slough off its dead layers, and a rise in pigmentation. In the worst cases,
these
dysfunctional cells become cancerous."
R. at 439.1
In March 2005, Mr. Crump submitted medical records pertaining to his basal
cell carcinoma
claim, one of which indicated that he had been diagnosed with the
condition as early as December
1982.
After further development, Mr. Crump appealed both claims to the Board.
In April 2007, Mr. Crump was afforded another VA medical examination. The
examiner's
report indicates that Mr. Crump reported a lot of in-service sun exposure
and having been wind
burned while stationed in Alaska. It also indicates Mr. Crump reported
having worked as a farmer
following service but that he "state[d] he wore [a] wide brimmed hat and
long sleeves nearly
constantly." R. at 72. In documenting Mr. Crump's history of skin
conditions, the examiner noted
that he had been treated for three lesions of the left cheek and temple
area while in service. The
examiner ultimately provided the following medical opinion:
I would state that [the] left cheek lesions are at least as likely [
service connected],
multiple other lesions to include the nose [and other areas] are not.
There is evidence
in [the service medical records] of treatment of left cheek lesions [
diagnosed as]
senile keratosis. . . . There is no evidence of treatment of other skin
lesions in
service, [with] civilian treatment documented startingin [the] 1980[]s.
Althoughper
[Mr. Crump] he did have [a lot] of sun exposure/sunburns in the tropics
and wind
burn in Alaska, he also worked as a [f]armer for decades which could have
contributed greatly to sun exposure and resulting skin changes. It would
be only
mere speculation to say that any lesions other than the left cheek [
lesions] were
[service connected] some 50-60 y[ea]rs ago.
R. at 76.
In September 2007, Mr. Crump testified at a hearing before the Board. At
that time, Mr.
Crump stated that, in the past, the scar on the back of his head from the
wound he suffered during
the bombing of Pearl Harbor would occasionally trouble him by getting
sunburned, becoming
Mr. Crump's statement indicates that a copy of this article was attached
to his statement, but no such copy is
included in the record of proceedings.
1
3


irritated when wearing a cap, and causing a burning sensation, but that
he currently had no problems
with the scar.
In January 2008, the Board issued the decision now on appeal, denying Mr.
Crump's claim
for VA benefits for a shell fragment wound scar on the back of the head
because there was no
medical evidence of such a scar and denying his claim for VA benefits for
basal cell carcinoma of
the nose because the June 2003 and April 2007 VA medical opinions
preponderated against the
claim.
II. ANALYSIS
A. Residual Shell Fragment Wound Scar
Mr. Crump first contends that, with respect to his residual scar claim,
the Board clearlyerred
in determining that VA satisfied its duty to assist. The Secretary
concedes error as to the Board's
finding on Mr. Crump's residual scar claim, but characterizes that error
as one in which the Board
failed to provide a sufficient statement of its reasons or bases.
IndenyingMr. Crump VA benefits for the residual scar, the BoardfoundthatMr.
Crumpwas
competentto providetestimonyregardinghis in-
serviceheadinjuryandthatthetestimonyheoffered
was credible. However, the Board concluded that there was no evidence that
Mr. Crump now has
"a residual scar on the back of the head attributable to the Pearl Harbor
incident." R. at 8. In support
of this finding, the Board stated that "[n]either the July 2003 nor the
April 2007 VA examination
makes any mention of the claimed residual scar and no medical evidence of
such residual scar has
been submitted." R. at 8-9.
In fact, Mr. Crump has repeatedly asserted that he does have such a scar
on the back of his
head and that this scar is the result of the wound he suffered during the
bombing of Pearl Harbor.
For instance, during his September 2007 testimony before the Board he was
asked whether he
currently had a healed, non-tender scar on the back of his head from the
wound he suffered at Pearl
Harbor and he answered affirmatively.
When evaluating a claim for disability compensation benefits, 38 U.S.C. §
1154(a) requires
that VA give "due consideration" to "all pertinent medical and lay
evidence . . . ." With regard to
layevidence,it is well established that a veteran is competent to describe
observablesymptoms, such
as pain. See Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007).
Here, the Board did not
4


discuss the competency or credibility of Mr. Crump's lay testimony during
the September 2007
hearing, nor of any of the other similar statements he offered throughout
the course of the
development of his claim. The Board's failure to do so thus renders its
statement of reasons or bases
inadequate. See 38 U.S.C. § 7104(d)(1) (requiring that Board provide a
written statement of the
reasons or bases for its "findings and conclusions[] on all material
issues of fact and law presented
on the record"); see also Caluza v. Brown, 7 Vet.App. 498, 506 (1995),
aff'd per curiam, 78 F.3d 604
(Fed. Cir. 1996) (table) (holding that to comply with reasons or bases
requirement, the Board must
analyze the credibility and probative value of the evidence, account for
the evidence that it finds to
be persuasive or unpersuasive, and provide the reasons for its rejection
of any material evidence
favorable to the claimant). Accordingly, the Court will vacate that
portion of the Board's January
2008 decision that denied entitlement to VA benefits for a residual shell
fragment wound scar and
remand the matter for further development and readjudication consistent
with this decision.
The Court also notes that, although the Board found that the July 2003 and
April 2007 VA
medical examination reports made no mention of the claimed scar, nothing
in either of those reports
indicates that the examiners were asked to confirm the existence of such a
scar or offer a nexus
opinion pertaining to it. The July 2003 examiner specifically listed all
claims pertinent to her
examination of Mr. Crump, but there was no mention of the residual scar
claim. Similarly, the April
2007 examiner prefaced his medical opinion byoutlining the questions he
had been asked to answer,
but, again, those questions did not pertain to the residual scar claim.
Accordingly, if on remand the
Board concludes that further medical evidence is necessary to adjudicate
Mr. Crump's residual scar
claim,it should providehim with anadditionalVAmedicalexamination
andspecificallyrequest that
the examiner address any unresolved questions. See 38 U.S.C. § 5103A(d)(1
) (Secretary's duty to
assist claimants 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").
Further, on remand, Mr. Crump is free to submit additional evidence and
argument 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 Court reminds the Board
that "[a] remand is
meant to entail a critical examination of the justification for the
decision." Fletcher v. Derwinski,
5


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).
B. Basal Cell Carcinoma of the Nose
Mr. Crump next contends that, with respect to his basal cellcarcinomaclaim,
the Board erred
by relying on the July 2003 VA medical examiner's opinion, which he
asserts was inadequate, and
by failing to discuss the medical treatise evidence outlined in his July
2004 statement.
1. July 2003 Medical Opinion
Mr. Crump argues that the July 2003 VA medical opinion was inadequate
because it was not
supported by a sufficient rationale.
A medical examination "is adequate where it is based upon consideration of
the veteran's
prior medical historyand examinations and also describes the disability
. . . 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)). Further, this
Court has previously explained that "most of the probative value of a
medical opinion comes from
its reasoning," and that "[t]he Board must be able to conclude that a
medical expert has applied valid
medical analysis to the significant facts of the particular case in order
to reach the conclusion
submitted in the medical opinion." Nieves-Rodriguez v. Peake, 22 Vet.App.
295, 304 (2008).
Whether a medical opinion is adequate is a finding of fact, which the
Court reviews under the
"clearly erroneous" standard. See 38 U.S.C. § 7261(a)(4); D'Aries v.
Peake, 22 Vet.App. 97, 103
(2008); Gilbert v. Derwinski, 1 Vet.App. 49, 52 (1990). "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 July 2003 VA medical examiner opined that it was not likely that Mr.
Crump's basal cell
carcinoma of the nose was caused by his military service because it was
not diagnosed until 1990,
apparently concluding that the lapse of time between Mr. Crump's in-
service sun exposure and this
diagnosis suggested the two were unrelated. However, subsequent to this
examination, Mr. Crump
submitted additional medical records indicating that he had been diagnosed
with the condition as
early as December 1982. Hence, not only was the reasoning employed bythe
July 2003 VA medical
6


examiner undermined to some degree, her opinion was no longer based on Mr.
Crump's known and
complete medical history. See Nieves-Rodriguez, 22 Vet.App. at 304;
Ardison, 6 Vet.App. at 407.
Accordingly, the Board clearly erred in relying on the opinion.
However, the Court concludes that this error did not prejudice Mr. Crump.
See 38 U.S.C.
§ 7261(b) (requiring the Court to take due account of the rule of
prejudicial error). In denying Mr.
Crump's basal cell carcinoma claim, the Board also relied on the April
2007 VA medical examiner's
opinion. That opinion did take into consideration the medical records
indicating a December 1982
diagnosis.
The examiner concluded that, in the absence of some evidence of in-service
symptoms—such as the cheek lesions Mr. Crump experienced while in
service—and due to the
passage of time, he would have to resort to mere speculation if he were to
offer an opinion as to
whether Mr. Crump's in-service sun exposure and wind burns were more, less,
or equally as likely
to have caused his current basal cell carcinoma of the nose than his post-
service farming career.
Mr. Crump has not challenged the adequacy of this opinion. Further, this
Court has
previously explained that "an examination is not inadequate merely because
the examiner states he
or she cannot reach a conclusion without resort to speculation" so long as
the "examiner has done
all that reasonably should be done to become informed about a case . . .
and the inability to render
a requested opinion is adequately explained." Jones v. Shinskei, 23 Vet.
App. 382, 391 (2010).
Accordingly, the Board's reliance on the April 2007 VA medicalexaminer's
opinion was appropriate
and there was a plausible basis for the Board's determination that Mr.
Crump failed to establish his
entitlement to VA benefits for basal cell carcinoma of the nose. Thus, the
Court concludes that the
Board's reliance on the inadequate July 2003 VA medical examiner's opinion
did not prejudice Mr.
Crump.
2. Consideration of Medical Treatise Evidence
Mr. Crump next contends that the Board's statement of its reasons or bases
was inadequate
because the Board failed to discuss the portion of the dermatologist's
article he quoted in his July
2004 statement in support of his claim. To comply with the reasons-or-
bases requirement of
38 U.S.C. § 7104(d)(1), the Board must analyze the credibility and
probative value of the evidence,
account for the evidence that it finds to be persuasive or unpersuasive,
and provide the reasons for
its rejection of any material evidence favorable to the claimant. See
Caluza, 7 Vet.App. at 506.
7


Theportion ofthemedicalarticleMr.Crump quotedfromin his
July2004statementoutlined
the connection between sun exposure and the development of skin cancer.
The Board did not
explicitly discuss this evidence in its decision. However, Mr. Crump's
basal cell carcinoma claim
was not denied by the Board on the basis of a finding that there is no
connection between sun
exposure and skin cancer; rather, the Board denied the claim because the
most probative medical
nexus evidenceofrecord—theApril2007 VA medicalexaminer's
opinion—concluded that it would be impossible to determine whether the condition was at least as likely as not related to the in-service sun exposure, given the post-service exposure to sun Mr. Crump likely experienced as a farmer and the lack of evidence of in-service symptoms of the condition. Even assuming that the paragraph from Mr.Crump's statement constitutes medical treatise evidence, this Court has previously held that such generalized medical literature is too generic to independently establish a medical nexus between a veteran's particular in-service injury and a currently diagnosed condition. See, e.g., Libertine v. Brown, 9 Vet.App. 521, 523 (1996). Accordingly, the quoted portion of the medical article was not material to the issue critical to the adjudication of Mr. Crump's claim: a direct connection between his in-service sun exposure and his currently diagnosed basal cell carcinoma of the nose. The Board therefore did not err by failing to discuss this evidence. See Caluza, 7 Vet.App. at 506.

III. CONCLUSION
Upon consideration of the foregoing, that portion of the January2, 2008,
Board decision that
denied entitlement to VA benefits for a residual shell fragment wound scar
on the back of the head
is VACATEDandthematteris REMANDEDforfurtherdevelopment and readjudication
consistent
with this decision. That portion of the January 2, 2008, Board decision
that denied entitlement to
VA benefits for basal cell carcinoma of the nose is AFFIRMED.

DATED: February10, 2011
Copies to:
Jeany C. Mark, Esq.
VA General Counsel (027)
8

Single Judge Application, Reopen Claim CFR 3.156(a); Three Way to Obtain Service Connection

Excerpts from decison below:

"The Court agrees with the appellant that he need not submit evidence having to do with every element of service connection in order to reopen a claim. He need only submit evidence relating to "an unestablished fact," 38 C.F.R. § 3.156(a), which certainly includes the sole reason given for the prior rejection."
========================================
"There are three methods by which a claimant may obtain service connection "
by affirmatively showing inception or aggravation during service." 38 C.F.R. § 3.303(a) (2010). Generally, "the veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service." Shedden v. Principi, 381 F. 3d 1163, 1166-67 (Fed. Cir. 2004). In addition, there are two alternative methods of establishing service connection under § 3.303(b); a claimant may establish service connection by chronicity or by continuity of symptomatology. See Savage v. Gober, 10 Vet.App. 488, 495-97 (1997)."
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----------------------------------------------------

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 09-1967
MICHAEL W. PRUITT, APPELLANT,
v.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.

Before DAVIS, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.

DAVIS, Judge: U.S. Marine Corps veteran Michael W. Pruitt appeals through
counsel from
a May 1, 2009, Board of Veterans' Appeals (Board) decision that, among
other actions,1
declined to
reopen claims for disabilities of the cervical and lumbar spine and for
left-ear hearing loss, and
denied entitlement to service connection for a gastrointestinal disability.
For the following reasons,
the Court will reverse in part, and set aside in part, the Board's May
2009 decision and remand five
matters for further proceedings and readjudication consistent with this
decision.
The appellant presents multiple arguments for the Court's consideration.
With respect to the
Board's denial of his request to reopen, he argues that VA did not furnish
VCAA-compliant notice,
imposed a burden of proof that exceeds that of the Secretary's regulations
on new and material
evidence, and failed to adequately explain its disregard of evidence
favorable to the claims. With
regard to his service-connection claim for gastrointestinal disabilities,2
he argues that the Board
The Board decision made determinations with respect to six other matters
as to which the appellant raises no
argument. The Court therefore deems any issue with respect to these
matters abandoned. See Cromer v. Nicholson, 19
Vet.App. 215 (2005).
2
1
These disabilities include gastroesophageal reflux disease (GERD),
irritable bowel syndrome (IBS), hiatal
hernia, and acid reflux disease.


erred in denying a VA medical examination and relying on its own medical
opinion, failedto explain
its decision regardinga medical examination, and ignored favorable
evidence. While the Court does
not agree with all of these arguments, it does agree that new and material
evidence was presented
with respect to the left-ear hearing loss claim and that the spinal and
gastrointestinal claims should
be remanded.
The appellant had active duty service from July 1969 to July 1971 and from
August 1972 to
July 1982. On separation from service, in July 1982, he filed service-
connection claims for several
conditions, including neck and back problems and hearing loss. A regional
office (RO) denied these
claims in a May 1983 rating decision. The appellant did not perfect his
appeal and the RO decision
became final. In July 2006 he filed a claim to reopen these claims.
Additionally, in January 2007,
he filed a claim for service connection for a gastrointestinal condition
to include GERD and IBS.
The denial of all of these claims eventuated in this appeal.
I. ANALYSIS
A. Claim to Reopen
Pursuant to 38 U.S.C. § 5108, "if new and material evidence is presented
or secured with
respect to a claim which has been disallowed, the Secretary shall reopen
the claim and review the
former disposition of the claim." This Court generally reviews Board
decisions regarding whether
the appellant has submitted new and material evidence sufficient to reopen
a prior claim under the
"clearly erroneous" standard of review set forth in 38 U.S.C. § 7261(a)(4
). See Elkins v. West, 12
Vet.App. 209, 217 (1999); see also Fortuck v. Principi, 17 Vet.App. 173,
178-79 (2003).
"New and material evidence" is defined as follows:
New evidence means existing evidence not previously submitted to agency
decision
makers. Material evidence means existing evidence that, by itself or when
considered with previous evidence of record, relates to an unestablished
fact
necessary to substantiate the claim. New and material evidence can be
neither
cumulative nor redundant of the evidence of record at the time of the last
prior final
denial of the claim sought to be reopened, and must raise a reasonable
possibility of
substantiating the claim.
2


38 C.F.R. § 3.156(a)(2010). "[T]he question of what constitutes material
evidence to reopen a claim
for service connection depends on the basis on which the prior claim was
denied." Kent v.
Nicholson, 20 Vet.App. 1, 10 (2006).
1. Cervical and Lumbar Spine Conditions
In this case, the Board noted that the basis on which these claims were
denied in a 1983
rating decision, in which the claims were characterized as "discopathy of
the cervical spine and
discopathy L3-L4," was that "the findings on examination and in the
service records did not support
the diagnosis." Record (R.) at 13. The Board stated that the evidence
submitted since that decision
included VA treatment records and examinations reflecting complaints of
cervical and lumbar back
pain, and statements from the veteran detailing how his initial back
injuries occurred in service. The Board observed that pain without an accompanying diagnosis is not compensable, and concluded that "[w]ithout a recognized injury or disease entity, VA is not authorized to award compensation for reported symptomatology." R. at 16.
The appellant argues that a medical certificatedatedDecember6,1983,
approximately seven months after the May 1983 denial of the back claims, rendered a diagnosis of "acute lumbar facet pain." R. at 606; Appellant's Brief at 15. That the pain is more specifically located, however, is no more of a diagnosis than any general complaint of pain. See Sanchez- Benitez v. West, 13 Vet.App. 282, 285 (1999) (pain without explanatory diagnosis not compensable).
The Court notes, however, that one of the statements the appellant
submitted in support of
his claim states that he had undergone back surgery and nevertheless had
lingering problems. See
R. at 545. Assuming this statement to be accurate, as the Board must when
evaluating evidence to
reopen, see Justus v. Principi, 3 Vet.App. 110 (1992), it should have
sought the medical records
associated with this surgical procedure. Presumably, back surgery is only
recommended and
undertaken to address a diagnosed condition. See Nieves-Rodriguez v. Peake,
22 Vet.App. 295, 300
(2008) ("[T]he content of information and evidence received by VA may
require an appropriate
response, consistent with the duty to assist."). Neither the Board
decision nor the Secretary's brief
mentions this evidence nor indicates that VA undertook any effort to
inquire after or obtain
associated records.
3


VA regulations provide specifically that for claims filed on or after
August 29, 2001, the duty
to obtain records applies to claims to reopen. See 38 C.F.R. § 3.159(c) (
2010) ("VA will give the
assistance described in paragraphs (c)(1) [(pertaining to obtaining
records not in Federal custody)],
(c)(2) [(pertaining to obtaining Federal records)], and (c)(3) [(pertaining to obtaining records in disability compensation claims)] to an individual attempting to reopen a finally decided claim."); see also Paralyzed Veterans of Am. v. Sec'y of Veterans Affairs, 345 F.3d 1334, 1353 (Fed. Cir. 2003) ("VA has chosen to assist claimants attempting to reopen in limited circumstances. Specifically, VA will give the assistance described in § 3.159(c)(1)-(3)."). Thus, the Board erred in not seeking any pertinent surgical records, which makes its statement of reasons or bases
at least premature. The Court will set aside the Board's determinations with respect to the cervical and lumbar spine conditions and remand the matters for further development.

2. Left-Ear Hearing Loss
The Board stated that the reason for the May 1983 denial of a claim for
left-ear hearing
disability was that "left ear hearing loss [was] not shown by the evidence
of record. " R. at 13. The
appellant underwent VA audio examinations in September 2006 and September
2007. Results from
both examinations showed that the appellant now has a left-ear hearing
disability for VA rating
purposes. See R. at 309, 517; 38 C.F.R. § 3.385 (2010). "The Secretary
concedes that the Court
should vacate and remand that portion of the Board's decision which found
that new and material
evidence had not been submitted to reopen [the] claim for service
connection for left-ear hearing
loss." Secretary's Brief at 3. The Court agrees with the concession.
The Board declined to reopen the claim on the basis that these test
results "do not raise a
reasonable possibility of substantiating the claims." R. at 15-16. The
Board relied on an opinion in
the September 2007 VA examination report, which was one of the documents
establishing a current
hearing loss disability. The examiner opined that "[t]he veteran's hearing
loss in the left ear is not
a result of noise exposure during his active duty military service." R. at
311. The examiner
elaborated that the separation examination showed no hearing deterioration
in the left ear and that
"[s]ince the damage is done when [the ear is] exposed to noise, a normal
audiogram subsequent to
the noise exposure would verify that the hearing had recovered without
permanent loss." R. at 312.
Although this opinion includes a medical explanation sufficient to entitle
it to be weighed in the final
4


determination, see Nieves-Rodriguez, 22 Vet.App. at 302, the reasoning
contained therein was not
part of the original denial in May 1983.
Therefore, the Board's determination is premature. The Court agrees with
the appellant that
he need not submit evidence having to do with every element of service
connection in order to
reopen a claim. He need only submit evidence relating to "an unestablished
fact," 38 C.F.R.
§ 3.156(a), which certainly includes the sole reason given for the prior
rejection. Because he
presented evidence of a current disability, the Board should have reopened
the claim.
The failure to do so short circuited the development of the claim, which
would have afforded
the appellant an opportunity to obtain his own medical evidence to support
a link between the
present left-ear hearing disabilityand service. It is unclear whether
everyphysician would agreethat
an examination noting normal hearing at separation precludes the
possibility of finding any damage
by noise exposure in service.
Therefore, the Court will reverse the Board's finding that new and
material evidence had not been submitted with respect to the left-ear hearing claim and remand for development of the reopened claim. Because the right-ear hearing loss claim and the left-ear hearing loss claim are inextricably intertwined in the rating process, the Court will set aside and remand that portion of the
Board decision also. See Simmons v. Shinseki, 24 Vet.App. 87, 93 (2010);
38 C.F.R. § 4.85 (2010).
B. Service-Connection Claim for Gastrointestinal Disability
There are three methods by which a claimant may obtain service connection "
by affirmatively showing inception or aggravation during service." 38 C.F.R. § 3.303(a) (2010). Generally, "the veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service." Shedden v. Principi, 381 F. 3d 1163, 1166-67 (Fed. Cir. 2004). In addition, there are two alternative methods of establishing service connection under § 3.303(b); a claimant may establish service connection by chronicity or by continuity of symptomatology. See Savage v. Gober, 10 Vet.App. 488, 495-97 (1997).
The appellant argues that VA failed to fulfill its duty to assist by
declining to furnish a VA medical examination with respect to his gastrointestinal disability. This Court has held that in disability compensation claims
5


the Secretary must provide a VA medical examination when there is (1)
competent
evidence of a current disability or persistent or recurrent symptoms of a
disability,
and (2) evidence establishing that an event, Previous HitinjuryNext Document, or disease occurred
in service or
establishingcertaindiseasesmanifestingduringanapplicablepresumptiveperiodf
which the claimant qualifies, and (3) an indication that the disability or
persistent or
recurrent symptoms of a disability may be associated with the veteran's
service or
with another service-connected disability, but (4) insufficient competent
medical
evidence on file for the Secretary to make a decision on the claim.
McLendon v. Nicholson, 20 Vet.App. 79, 81 (2006); see also 38 U.S.C. §
5103A(d)(2). The Court
further characterized the third requirement of "an indication" that a
disability "may be" associated
with service as a "low threshold." McLendon, 20 Vet.App. at 83.
Inthis case,theBoard's analysis shows that at least two McLendon
requirements aremet.The
Board conceded that "[t]he Veteran clearly has GERD." R. at 20. The Board
also listed no less than
10 instances in which the service medical records (SMRs) reflected
complaints having to do with
thegastrointestinalsystem. BothindividuallyandcollectivelytheseSMRs record"
events"occurring
in service. As to the third requirement, "'in order to trigger the
Secretary's duty to provide a medical
examination . . . the evidence of record need only indicate that symptoms
of a disability, as opposed
to a disability itself, may be associated with active service.'" McLendon,
20 Vet.App. at 83 (quoting
Duenas v. Principi, 18 Vet.App. 512, 517-18 (2004)).
Theappellant's present gastrointestinalsymptoms andthereportedin-
servicesymptoms may
be linked. However, if the Board concluded that the symptoms experienced
in service were different
from and therefore unconnected to the symptoms manifested in the
appellant's present
gastrointestinal conditions, it did not offer sufficient explanation for
that conclusion. Indeed, the
Board did not discuss the topic of a VA medical examination at all, which
is an omission requiring
remand. See Duenas, 18 Vet.App. at 519 (Board must provide reasons or
bases for its decision that
a medical examination was not required). The Court will remand for a more
complete statement of
reasons or bases.
The Court also agrees with the appellant that the Board had no medical
basis for its
conclusionthatthemultiplereports ofgastrointestinalproblemsin servicedid
not establishachronic
condition. See Colvin v. Derwinski, 1 Vet.App. 171 (1991); 38 C.F.R. § 3.
303(b) (2010). If the
6


Board deems this conclusion necessary to its analysis on remand, it will
require a medical opinion
in support.
For the further guidance on remand, the Court notes that the Board found
that continuity of
symptomatology was not shown because of the long time period between
service and the first
diagnosis of GERD. There is no requirement, however, for an uninterrupted
record of medical
treatment in order to establish continuity of symptomatology.3
A claimant may obtain service
connection by continuity of symptomatology if he can demonstrate that (1)
a condition was "noted"
during service; (2) there is postservice evidence of the same
symptomatology; and (3) there is
medical or, in certain circumstances, lay evidence of a nexus between the
present disability and the
postservice symptomatology. Barr v. Nicholson, 21 Vet.App. 303, 307 (2007) (
citing Savage v.
Gober, 10 Vet.App. 488, 495-96 (1997)). "[S]ymptoms, not treatment, are
the essence of any
evidence of continuity of symptomatology." Savage, 10 Vet.App. at 496.
A VA medical examination would be needed to provide evidence on whether
the symptoms
noted in service are the same symptoms noted after service and whether the
present disabilities are
linked to the postservice symptoms. The Board should also consider whether
and to what extent the
appellant is competent to comment on the similarity between in-service and
postservice symptoms
and the symptoms of his current disabilities.

II. CONCLUSION
On consideration of the foregoing, the Court REVERSES the May 1, 2009,
Board
determination that the appellant submitted no new and material evidence to
reopen the left-ear
hearing disability claim, SETS ASIDE the Board's determinations regarding
compensation for the
right-ear hearing claim, denial of the cervical and lumbar spine claims,
and denial of the
In this regard, the Board noted that one of the VA medical records
mentioned treatment in the intervening
time by a Dr. Rodrigues, but complained that "the Veteran has not provided
VA with the necessary authorization to
enable VA to obtain any private treatment records from Dr. Rodrigues on
his behalf." R. at 19. The Secretary points
to no evidence in the record before the Court that VA ever requested such
authorization or suggested that these records
would be relevant and potentially important to the determination. Again,
it is not appropriate to take a passive approach
to the possible existence of such evidence when its possible existence
becomes manifest. See Nieves-Rodriguez, supra.
3
7


gastrointestinal disability claim, and REMANDS these matters for further
proceedings consistent
with this decision.
On remand, the appellant will be free to submit additional evidence and
argument in support
of the above-listed claims, and the Board is required to consider any such
evidence and argument.
See Kay v. Principi, 16 Vet.App. 529, 534 (2002). A final decision by the
Board following the
remand herein ordered will constitute a new decision that, if adverse, may
be appealed to this Court
upon the filing of a new Notice of Appeal with the Court not later than
120 days after the date on
which notice of the Board's new final decision is mailed to the appellant.
Marsh v. West, 11
Vet.App. 468, 472 (1998).
DATED: February 11, 2011
Copies to:
John S. Berry, Esq.
VA General Counsel (027)
8

Single Judge Decision, Board Error, Credible Lay Evidence, citing McLendon, 20 Vet.App.

"With regard to the first element, the Board found "that there is no competent evidence showing that [Mr. Ragan] has a current right wrist, right knee and/or right ankle disease or injury." R. at 7. Although the Board expressed this finding in terms of a lack of competent evidence of a current "disease or injury," it appears the Board meant to state that it found
5

no competent evidence of a current disability, given that, in the very
next sentence, it reasoned that there could therefore be "no showing that a right wrist, right knee and/or right ankle disability is attributable to service." R. at 7 (emphasis added). Accordingly, the Court interprets the Board's decision as determining that the first McLendon element was not satisfied. On this point, Mr. Ragan notes that the Board only considered whether there was competent
evidence of a current disability, and not whether there was competent evidence of "persistent or recurrent symptoms of a disability." See McLendon, 20 Vet.App. at 81. The Court agrees that the Board clearly erred in this regard. In fact, when the Board reached the merits of Mr. Ragan's claims, it effectively found that the record contained such evidence. Specifically, the Board found that Mr. Ragan "asserted right wrist, right knee[,] and right ankle pain" and that he was "competent to report symptoms of arthritis." R. at 10. The Board also found that it had "no reason to doubt [his] reports of right wrist, right knee and right ankle pain." R. at 10. Accordingly, the Board clearly erred in determining that the first McLendon element was not satisfied.

=============================================

----------------------------------------------------


Not published
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 09-3361
BILLY E. RAGAN,
v.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS,
APPELLANT,
APPELLEE.
Before HAGEL, Judge.
ORDER
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
It is ORDERED that this Court's memorandum decision entered on February 4,
2011, is
hereby amended as reflected in the document accompanying this order,
wherein additions are
underlined and deletions are struck.
DATED: February 11, 2011
FOR THE COURT:
/s/ Gregory O. Block
GREGORY O. BLOCK
Clerk of the Court
Copies to:
Glenn R. Bergmann, Esq.
VA General Counsel (027)


Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 09-3361
BILLY E. RAGAN, 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: Billy E. Ragan appeals through counselOn December 10, 2010,
the Court
issued a decision affirming an August 5, 2009, Board of Veterans' Appeals (
Board) decision that
denied BillyE. Ragan entitlement to VA benefits for disabilities of the
right wrist, knee, and ankle.1
On December 12, 2010, Mr. Ragan filed through counsel a motion for
reconsideration of that
decision. Having had the benefit of additional briefing contained in the
motion for reconsideration
and not available to the judge who previously decided this case, the Court
will now grant Mr.
Ragan's motion for reconsideration, withdraw the December 10, 2010,
decision, and issue this
decision in its stead.2
The Court has jurisdiction pursuant to 38 U.S.C. §§ 7252(a) and 7266(a)
to
The Board's August 2009 decision also remanded claims for bilateral
hearing loss and tinnitus. Because the
Board has not yet issued a final decision regarding these claims, the
Court does not have authority to consider them at
this time. See 38 U.S.C. § 7262 (stating that the Court reviews only
final decisions of the Board); see also Howard v.
Gober, 220 F.3d 1341, 1344 (Fed. Cir. 2000) (holding that a Board remand
does not constitute a final decision that may
be appealed (citing 38 C.F.R. § 20.1100(b)(1999))).
On January 3, 2011, the Court entered an order explaining that Judge
Farley, who issued the December 10,
2010, decision, had completed his 2010 service as a recall-eligible
retired judge. See 38 U.S.C. § 7257. The order
therefore designated the undersigned in his stead.
The Court is aware of the general "rule of judicial comity," which holds "
that judges of co-ordinate jurisdiction
sitting in the same court and in the same case should not overrule the
decisions of each other" so that "the orderly
2
1


review the August 2009 Board decision. Because the Board clearly erred in
determining that VA
satisfied its duty to assist, the Court will vacate the August 2009 Board
decision and remand the
matter for further development and readjudication consistent with this
decision.
I. FACTS
Mr. Ragan served on active duty with the U.S. Air Force3
from June 1956 to January 1960
and as a reservist with the Arkansas National Guard from January 1960 to
June 1962. A December
1959separationexamination
reportindicatednoclinicalabnormalitiesofthemusculoskeletalsystem
and he reported no pertinent medical history concerning his right ankle,
right knee, or right wrist.
All other service medical records are unavailable and presumably lost as
the result of the 1973 fire
at the National Personnel Records Center.
In December 2006, Mr. Ragan applied for disability compensation benefits
for right ankle,
knee, and wrist injuries he claimed to have incurred while playing
football for the U.S. Air Force.
In his application, Mr. Ragan indicated that he received treatment for the
injuries in August 1958 at
a U.S. Air Force base in England.
functioning of the judicial process [is preserved]." TCF Film Corp. v.
Gourley, 240 F.2d 711, 713 (3d Cir. 1957). The
rule of judicial comity has elsewhere been treated as a subset of the law-
of-the-case doctrine, see, e.g., Ellis v. United
States, 313 F.3d 636, 646-47 (1st Cir. 2002), which, in relevant part,
provides that "'unless corrected by an appellate
tribunal, a legal decision made at one stage of a civil or criminal case
constitutes the law of the case throughout the
pendency of the litigation.'" Id. at 646 (quoting Flibotte v. Pa. Truck
Lines, Inc., 131 F.3d 21, 25 (1st Cir. 1997)). This
rule merely directs the court's discretion; it does not prevent a court
from reconsidering a matter already decided. See
Arizona v. California, 460 U.S. 605, 619 (1983) ("Law of the case directs
a court's discretion, it does not limit the
tribunal's power."). Accordingly, the rule of judicial comity is also
considered to be "one regulating the exercise of
discretion in acting rather than one denying power to act at all." United
States v. Wheeler, 256 F.2d 745, 747 (3d Cir.
1958). Thus, courts have recognized that, in "exceptional circumstances
. . . the rule is not to be applied," and have
found that such circumstances exist when the judge who made an original
decision in a matter is no longer available to
rule upon a party's properly raised request for reconsideration. See TCF
Film Corp., 240 F.2d at 714 (holding that where
a judge who originally decided a matter has his or her assignment with the
court terminated or dies, the original judge
"is no longer available to reconsider . . . and such reconsideration must
perforce be by another judge if it is to be had at
all").
In the present case, this Court's Rules of Practice and Procedure
expressly guarantee that "[a] party in a case
decided by a single judge may move for reconsideration by the single judge
," in this instance, Judge Farley. U.S. VET.
APP. R. 35(a)(1). However, as explained in the Court's January 3, 2011,
order, Judge Farley completed his 2010 service
as a recall-eligible retired judge, and was therefore no longer available
to pass upon Mr. Ragan's motion for
reconsideration. See 38 U.S.C. § 7257. It is due to these circumstances
that the Court chooses to exercise its discretion
and grant reconsideration in this matter. See TCF Film Corp., 240 F.2d at
714.
3
The Secretary erroneously states that Mr. Ragan's service was in the U.S.
Army. See Secretary's Brief at 2.
2


In September 2007, a VA regional office denied Mr. Ragan's claims. After
further
development, Mr. Ragan appealed to the Board.
In June 2009, Mr. Ragan submitted service personnel records dated between
September and
November 1959 indicating that, on a number of occasions, he had been
granted temporary duty by
special order to participate in sports and football activities in England
and Italy.
Thereafter, in July 2009, Mr. Ragan was afforded an informal hearing
presentation in which
he related that he recalled his injuries occurring during a football game
in Spain in 1958 or 1959
"when he was tackled by another player from the right side, turning his
body around while his feet
remained planted." Record (R.) at 17. At that time, Mr. Ragan also stated
that he had received
treatment for the injuries at the hospital at Bentwaters Air Base in
England, "where he was
subsequently on crutches for at least a month." R. at 17. He "relate[d]
current pain and arthritis
symptoms in his right wrist, knee[,] and ankle," and explained that x-rays
taken "years ago" showed
scar tissue in his ankle. R. at 17. In light of this history, Mr. Ragan
requested that VA attempt to
obtainhis servicepersonnel records,
whichhecontendedwouldprovideevidenceoftheapproximate
dates he was injured, as well as any existing records from the Bentwaters
Air Base hospital that
pertain to treatment he received there. Mr. Ragan also requested that, if
his in-service injuries were
verified, he be provided a VA medical examination.
In August 2009, the Board denied Mr. Ragan's claims for VA benefits for
right wrist, knee,
and ankle disabilities. The Board concluded that VA did not need to make
any further efforts to
assist Mr. Ragan because there was no evidence of a current disability.
The Board then denied his
claims for the same reason: lack of evidence of a current disability of
the right wrist, knee, or ankle.
On appeal, Mr. Ragan argues that the Board clearly erred in determining
that VA's duty to
assist did not require it to provide him with a VA medical examination or
attempt to obtain his
militarypersonnel records and treatment records from the Bentwaters Air
Base hospital. At the very
least, Mr. Ragan contends that the Board's statement of its reasons or
bases offered in support of this
conclusion was inadequate. Finally, Mr. Ragan argues that the Board failed
to explain how it could
issue a final decision on his right wrist, right knee, and right ankle
claims while simultaneously
remanding his audiological disability claims so that VA could attempt to
obtain records pertaining
to his National Guard service.
3


In response, the Secretary contends that there was an adequately
described, plausible basis
for the Board's determination that there is no evidence that Mr. Ragan
suffers from a current
disability of the right wrist, knee, or ankle and, therefore, for its
conclusion that VA did not need to
take any further measures to satisfy its duty to assist. The Secretary
further argues that the issues
relevant to Mr. Ragan's right wrist, knee, and ankle claims are not
inextricably intertwined with the
issues pertinent to his audiological disability claims and that the Board
therefore did not clearly err
in remanding the audiological disability claims while rendering a decision
on all others.
II. ANALYSIS
At the outset, the Court notes that, in its August 2009 decision, the
Board found that Mr.
Ragan's servicemedicalrecordsaremissing. Further,
therecordcontainsevidencethat these records
are presumed lost as the result of the 1973 fire at the National Personnel
Records Center. This Court
has previously explained that, in cases where a claimant's records are
known to have been destroyed
in the National Personnel Records Center fire, the law is clear that VA
has a "heightened" duty to
assist that claimant byadvising him to submit alternative forms of
evidence supporting the claim and
assisting the claimant in obtaining this alternative evidence. Washington
v. Nicholson, 19 Vet.App.
362, 370 (2005); Dixon v. Derwinski, 3 Vet.App. 261, 263 (1992). Further, "
where the service
medical records are presumed destroyed . . . in such a case, the [Board]'s
obligation to explain its
findings and conclusions and to consider carefully the benefit-of-the-
doubt rule is heightened."
O'Hare v. Derwinski, 1 Vet.App. 365, 367 (1991).
The Court notes that, although the Board acknowledged its heightened duty
to explain its
findings and apply the benefit-of-the-doubt rule, it appears to have
ignored the most important duty
flowing from a finding that records have been destroyed while in the
custody of the government: the
heightened duty to assist. While VA's heightened duty to explain its
findings and apply the benefit-
of-the-doubt rule may be easier to achieve, it is often of less practical
consequence to a veteran
whose records have been lost or destroyed through no fault of his or her
own. With this in mind, the
Court turns to the Board's explanation for its conclusion that VA's dutyto
assist required it to neither
afford Mr. Ragan a VA medical examination, nor attempt to obtain his
service personnel records or
any records pertaining to treatment he received at the Bentwaters Air Base
hospital.
4


VA's duty to assist disability-compensation claimants by providing a
medical examination
is established by 38 U.S.C. § 5103A and 38 C.F.R. § 3.159(c)(4). The
language of these provisions
was parsed and examined in detail by this Court in McLendon v. Nicholson,
20 Vet.App. 79 (2006).
In that case, the Court explained:
In disability compensation claims, the Secretary must provide a VA medical
examination whenthereis (1)competentevidenceofacurrentdisabilityor
persistent
or recurrent symptoms of a disability, and (2) evidence establishing that
an event,
injuryNext Hit, or disease occurred in service or establishing certain diseases
manifesting
during an applicable presumptive period for which the claimant qualifies,
and (3) an
indication that the disability or persistent or recurrent symptoms of a
disability may
be associated with the veteran's service or with another service-connected
disability,
but (4) insufficient competent medical evidence on file for the Secretary
to make a
decision on the claim.
Id. at 81 (emphasis added).
In Duenas v. Principi, the Court held that when the Board considers
whether a medical
examination or opinion is necessary under section 5103A(d) and § 3.159(c)(
4), it must provide a
written statement of the reasons or bases for its conclusion, pursuant to
38 U.S.C. § 7104(d)(1), and
that, absent a finding of nonprejudicial error, vacatur and remand is
warranted where it fails to do
so. 18 Vet.App. 512, 517-18 (2004) (citing Tucker v. West, 11 Vet.App. 369,
374 (1998)).
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). "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)).
In the August 2009 decision now on appeal, the Board concluded that VA's
duty to assist did
not require it to provide Mr. Ragan with a medical examination because the
first two McLendon
elements were not satisfied. With regard to the first element, the Board
found "that there is no
competent evidence showing that [Mr. Ragan] has a current right wrist,
right knee and/or right ankle
disease or Previous HitinjuryNext Hit." R. at 7. Although the Board expressed this finding in
terms of a lack of
competent evidence of a current "disease or Previous HitinjuryNext Hit," it appears the Board
meant to state that it found
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no competent evidence of a current disability, given that, in the very
next sentence, it reasoned that
there could therefore be "no showing that a right wrist, right knee and/or
right ankle disability is attributable to service." R. at 7 (emphasis added). Accordingly, the Court interprets the Board's decision as determining that the first McLendon element was not satisfied.
On this point, Mr. Ragan notes that the Board only considered whether
there was competent evidence of a current disability, and not whether there was competent evidence of "persistent or recurrent symptoms of a disability." See McLendon, 20 Vet.App. at 81. The Court agrees that the Board clearly erred in this regard. In fact, when the Board reached the merits of Mr. Ragan's claims, it effectively found that the record contained such evidence. Specifically, the Board found that Mr. Ragan "asserted right wrist, right knee[,] and right ankle pain" and that he was "competent to report symptoms of arthritis." R. at 10. The Board also found that it had "no reason to doubt [his] reports of right wrist, right knee and right ankle pain." R. at 10. Accordingly, the Board clearly erred in determining that the first McLendon element was not satisfied.
The Board also appears to have concluded that Mr. Ragan was not entitled
to a VA medical examination because the second McLendon element was not satisfied, in that there was no evidence revealing an in-service event, injury, or disease. Specifically, the Board found that [b]ecause some evidence of an in-service event,injury, or disease is required in order to substantiate a claim for service connection and because a post-service medical examination could not provide evidence of such past events, a medical examination conducted in connection with claim development could not aid in substantiating a claim when the record does not already contain evidence of an in-service event, injury, or disease.
R. at 7. However, despite this finding, the Board did recognize that, "[v]
ia various statements[,] [Mr. Ragan] . . . reported that he was injured while playing football in service" in 1958 or 1959, a period of time the Board found "corresponds to when he was placed on [temporary duty]." R. at 9. The
Board acknowledged Mr. Ragan's statements that "[h]e recalled being
treated immediately by a
medic with a splint and, when he returned to base, being treated at the
Bentwaters Air Base in
England." R. at 9. The Board also noted that Mr. Ragan believed that his
service personnel records
and any existing treatment records from the Bentwaters Air Base hospital
would substantiate his
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assertions of an in-service injury, and that he believed VA should
therefore assist him in obtaining
these records.
Despite Mr. Ragan's assertions and requests for assistance, the Board
concluded that "in the
absence of a current disability, service connection may not be granted"
and, "[a]s such, a remand for
the purpose of obtaining the . . . records would be futile in the absence
of a showing that [Mr. Ragan]
has a right wrist, right knee and right ankle disability." R. at 7. The
Court concludes that the Board
clearly erred in determining that, under these circumstances, VA's duty to
assist did not require it to
attempt to obtain the described records.
The Secretary is required to "make reasonable efforts to assist a claimant
in obtaining
evidence necessaryto substantiate the claimant's claim for benefits." 38 U.
S.C. § 5103A(a)(1). That
duty includes making "reasonable efforts to obtain relevant records," so
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). Further, VA
is required to make reasonable efforts to obtain all records held by a
governmental entity that are
relevant to the claim and that pertain to the claimant's military service
if the claimant provides the
Secretaryinformation sufficient to locate such records. 38 U.S.C. § 5103A(
c)(1). In that regard, VA
is required to make as many requests as necessary to obtain records from
Federal agencies.
38 C.F.R. § 3.159(c)(2) (2010). VA may discontinue its efforts to obtain
records from a Federal
department or agency only when it concludes that continued efforts would
be futile, which requires
that the Federal department or agency advise VA that either the requested
documents do not exist
or that the custodian does not have them. Id.
Here, Mr. Ragan identified two categories of records—his service
personnel records and
records documenting treatment he received at the Bentwaters Air Base
hospital—that he believed
would substantiate his assertion of an in-service injury. VA therefore had
a duty to attempt to obtain
such records until such attempts became futile. See 38 U.S.C. § 5103A(a)-(
c). The Court concludes
that the Board's determination that VA was not required to do so because
of a lack of evidence of
a current disability is not substantiated and clearly erroneous given that
: (1) the Board denied Mr.
Ragan a VA medical examination that may have resulted in a current
diagnosis of disability based
on a clearly erroneous application of section 5103A(d) and the test set
fort in McLendon, supra; (2)
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Mr. Ragan made specific assertions of an in-service injury and current
symptoms of disability that
the Board found credible; and (3) VA had a heightened duty, given the loss
of his service medical
records, to assist Mr. Ragan in developing his claim by obtaining
alternative forms of evidence. See
Washington, 19 Vet.App. at 370; Dixon, 3 Vet.App. at 263.
Accordingly, the Court will vacate the August 2009 Board decision and
remand the matter
for additional development and readjudication. On remand, the Board will
attempt to obtain Mr.
Ragan's service personnel records and any existing records
documenting treatment he received at the
Bentwaters Air Base hospital. The Board will also afford Mr. Ragan a VA
medical examination,
obtain a medical opinion from a qualified expert, or explain adequately
why, in light of McLendon,
Duenas, and the language of the statute and regulation, Mr. Ragan is not
entitled to such assistance
on the part of VA.
The Court notes that Mr. Ragan also argues that the Board clearly erred in
deciding his claims
for right wrist, knee, and ankle disabilities while simultaneously
remanding his audiological
disability claims. This Court has held that "where a decision on one issue
would have a 'significant
impact' upon another, and that impact in turn 'could render any review by
this Court of the decision
[on the other claim] meaningless and a waste of judicial resources,' the
two claims are inextricably
intertwined" and should be decided together. Henderson v. West, 12 Vet.App.
11, 20 (1998)
(quoting Harris v. Derwinski, 1 Vet.App. 180, 183 (1991)); see Gurley v.
Peake, 528 F.3d 1322,
1325 (Fed. Cir. 2008). However, Mr. Ragan does not assert that his right
wrist, knee, and ankle
disability claims are inextricably intertwined with his audiological
disability claims, only that
evidence obtained in conjunction with the further development of his
audiological disability claims
may also reveal evidence pertaining to his right wrist, knee, and ankle
disability claims.
Accordingly,the Court determines that remand is not warranted on this
ground. However,giventhat
the Court will remand Mr. Ragan's right wrist, knee, and ankle disability
claims for the reasons
outlined above, the Board will, of course, be required to consider any
evidence pertinent to those
claims that is acquired during the development of Mr. Ragan's audiological
disability claims.
III. CONCLUSION
8


Upon consideration of the foregoing, the August 5, 2009, Board decision
is VACATED and
the matter is REMANDED for further development and readjudication consistent
with this decision.

DATED: February 11, 2011
Copies to:
Glenn R. Bergmann, Esq.
VA General Counsel (027)
9