Excerpt from decision below:
"Finally, the appellant argues that VA erred by not sending him his claims file as he requested. See Anderson v. West, 12 Vet.App. 491, 494-95 (1999) (noting Secretary's duty to provide claimant documents within his custody upon request); see also 38 U.S.C. § 5701(b) (requiring the Secretary to disclose documents to a claimant under certain circumstances)."
----------------------------------------------------
Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 08-3342
QUENTIN L. BRENSON, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before MOORMAN, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
MOORMAN,Judge: The prose appellant,Quentin L. Brenson, appeals a September 3,2008,
Board of Veterans'Appeals (Board)decisionthatdeniedhisrequest to re-open a
claim of entitlement
to service connection for a dental disability due to impacted wisdom teeth
and denied service
connection for a nervous disorder, to include as secondary to a dental
disability due to impacted
wisdom teeth.1
The appellant filed an informal brief, and the Secretary filed a brief.
The Court has
jurisdiction pursuant to 38 U.S.C. §§ 7252(a) and 7266(a) to review the
September 2008 Board
decision. A single judge may conduct this review because the outcome in
this case is controlled by
theCourt'sprecedentsand"isnot reasonablydebatable." Frankel v. Derwinski,
1 Vet.App. 23, 25-26
(1990). For the following reasons, the Court will affirm the Board's
September 2008 decision.
In a letter to VA, the appellant stated that the side effects of his tooth
condition included a "nervous disorder."
Record (R.) at 572. The appellant testified before the Board that he was
not referring to a psychiatric disorder, but a
physical problem with his nerves. R. at 23-24. For clarity, the Court will
refer to this claimed condition as a "nerve
disorder."
1
I. BACKGROUND
Mr. Brenson served on a period of active dutyfor training with the U.S.
ArmyReserves from
August 1994 to January 1995. R. at 675, 699. On January 4 and 6, 1995, Mr.
Brenson received
dental treatment on tooth #18, which was broken, from an Army dentist.2
R. at 159.
In January2004, Mr. Brenson filed a claim for service connection for a "
severe problem with
wisdom teeth" (R. at 679-86), which a VA regional office (RO) denied in
April 2004 (R. at 622-26).
The RO explained that there was no evidence regarding observation,
treatment, or diagnosis of
wisdom teeth in service, and there was no evidence generally, other than
Mr. Brenson's statements,
regarding his wisdom teeth. R. at 624. Mr. Brenson filed a Notice of
Disagreement (R. at 611), the
RO issued a Statement of the Case (R. at 599-607, 584-96), but Mr. Brenson
did not file a timely
Substantive Appeal, and the April 2004 denial became final.
In July 2005, Mr. Brenson requested that his claim be reopened. R. at 573.
In August 2005,
he stated that he suffered from "multiple cases of impacted teeth. The
side effects of this are severe
nervous disorder which can be heard in my voice." R. at 572. He also
stated: "While on active duty
one of my second molars broke as a result of this problem." Id.
In May 2006, Mr. Brenson submitted a request for his "Personal File." R.
at 536. In
response, the RO sent Mr. Brenson his "Entire Claims File/Service Medical
Records." R. at 532.
In July 2006, the RO reopened Mr. Brenson's claim for entitlement to
service connection for
his tooth condition and denied it on the merits and denied his claim for a "
nervous" condition
associated with his tooth condition. R. at 162-67. Mr. Brenson appealed
that decision to the Board.
In January 2008, Mr. Brenson testified before a Board member. R. at 16-29.
When asked
whether he had ever sustained an injury to his face in service, Mr.
Brenson responded in the
negative. R. at 21-22. Mr. Brenson also testified that his claim for a "
nervous condition" was one
referring to a physical nerve problem and not a psychiatric condition. R.
at 23-24.
In the September 3, 2008, decision here on appeal, the Board found that
new and material
evidence had not been received to reopen the previously disallowed claim
of entitlement to service
Tooth #18 is a "second molar." The Merck Manuals Online Medical Library,
http://www.merckmanuals.com/
teeth are not second molars, but third
molars. DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 1964 (31st ed. 2007).
2
2
connection for a dental disability and denied service connection for a
nerve disorder. R. at 8-13.
The appellant argues that (1) the Board failed to review certain dental
records that would
have supported his claim for a dental disability; (2) VA erred by not
sending him his claims file as
he requested; and (3) VA should have adjudicated his claim under "Chapter
38" §§ 610 and 110.
In response, the Secretary argues that this Court should affirm the Board
decision because the Board
had a plausible basis in the record for its decision and supported its
decision with an adequate
statement of reasons or bases. Secretary's (Sec'y) Br. at 5.
II. ANALYSIS
A. Dental Disability
Pursuant to 38 U.S.C. § 5108, "[i]f 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." 38 U.S.C. § 5108. "New evidence means
existing evidence not
previously submitted to agency decisionmakers." 38 C.F.R. § 3.156(a) (
2010). "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." Id. "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." Id.; see Shade v. Shinseki, 24 Vet.App. 110, 118 (2010) ("[T]he
determination of whether
newly submitted evidence raises a reasonable possibility of substantiating
the claim should be
considered a component of the question of what is new and material
evidence, rather than a separate
determination to be made after the Board has found that evidence is new
and material.").
The Court reviews whether an appellant has submitted new and material
evidence to reopen
a previously denied claim under the "clearly erroneous" standard of review.
Shade, 24 Vet.App. at
118 (citing Elkins v. West, 12 Vet.App. 209, 217 (1999) (en banc)). "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. United
States Gypsum Co., 333 U.S.
364, 395 (1948)). The Court may not substitute its judgment for the
factual determinations of the
3
Board on issues of material fact merely because the Court would have
decided those issues
differently in the first instance. Id.
In the case currently before the Court, the RO in April 2004 denied the
appellant's claim for
serviceconnection fora tooth conditiondueto
impactedwisdomteethbecausetheclaimeddisability
did not occur in service nor was it caused by service. R. at 624; see R.
at 9. Since that decision, the
appellant has submitted various statements and testimony regarding his
wisdom teeth. E.g., R. at
16-29, 60, 151-52, 572, 582, 611. The appellant also provided medical
records. R. at 57, 89-92,
330. The RO also obtained Social SecurityAdministration (SSA) records. R.
at 169-283, 295-530.
Thestatements,testimony,medicalrecords,andSSA
documentsallqualifyasnewevidencebecause
they were not previously in the record before the agency. However, the
Board found the evidence
added to the record since the April 2004 RO rating decision to be
cumulative and redundant of the
evidence previouslyconsidered bythe RO. R. at 10. The Board also found no
material evidence that
would support a finding that the appellant sustained dental trauma in
service, a fact it deemed
necessary to establish service connection. Id.; see 38 C.F.R. § 3.381(e)(
3) (providing that "[t]hird
molars" (wisdom teeth) cannot be considered service connected for
treatment purposes "unless the
pathology of the tooth developed after 180 days or more of active service,
or was due to combat or
in-service trauma"); see Nielson v. Shinseki, 607 F.3d 802 (Fed. Cir. 2010
) (discussing service
"trauma"). The appellant did not have 180 days of active service. R. at
675. The Court has
reviewed all the evidence of record. Based on that review, the Court
concludes that the Board did
not err in finding no new and material evidence, as defined by38 C.F.R. §
3.156, sufficient to reopen
the appellant's claim for a tooth condition or dental disability due to
impacted wisdom teeth.
B. The Appellant's Remaining Arguments Regarding a Dental Disability
The appellant argues that (1) the Board failed to review certain dental
records that would
have supported his claim for a dental disability; (2) VA should have
considered "Chapter 38" §§ 110
and 610; and (3) VA erred by not sending him his claims file as he
requested. For the following
reasons, the Court concludes that these arguments are without merit.
The appellant argues that the Board failed to review certain dental
records that would have
supported his claim for a dental disability. The appellant did not
identify any records, dental or
otherwise, the Board purportedly failed to review. The Board, for its part,
specifically stated: "The
4
Board has reviewed all the evidence in the appellant's claims file." R.
at 7. Furthermore, absent
specific evidence indicating otherwise, the Board is presumed to have
reviewed all the evidence in
the record at the time of its determination. Newhouse v. Nicholson, 497 F.
3d 1298, 1302 (Fed. Cir.
2007) (citing Gonzalez v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000)).
The Court has reviewed
the record of proceedings in its entirety and concludes there is no merit
to the appellant's claim that
the Board failed to review certain dental records that support his claim
for a dental disability.
The appellant argues that VA should have considered "Chapter 38" §§ 110,
610. The Court
interprets this argument to mean the Board failed to consider 38 U.S.C. §§
110, 610 or 38 C.F.R.
§§ 110, 610. See 38 U.S.C. § 7104(a) (requiring Board to consider all
applicable provisions of law
and regulation). The Secretary argues that these sections are not
applicable or do not exist. Sec'y
Br. at 12-13. The Court agrees. Section 110 of title 38, U.S. Code,
addresses the circumstances
under which a disability rating in effect for twenty years or more may be
reduced. Because the
appellant has no disabilities subject to service connection, section 110
is inapplicable. Title 38 of
the Code of Federal Regulations does not include a § 110. And neither
title 38 of the Code of
Federal Regulations nor title 38 of the U.S. Code contains a section 610.
The Court concludes that
the Board did not err in not considering any of these provisions.
Finally,theappellantargues that VA erred bynot sendinghim his
claimsfileasherequested.
See Anderson v. West, 12 Vet.App. 491, 494-95 (1999) (noting Secretary's
duty to provide claimant
documents within his custody upon request); see also 38 U.S.C. § 5701(b) (
requiring the Secretary
to disclosedocumentstoaclaimantundercertaincircumstances).
Theappellantrequestedhis claims
file on May 2, 2006, from the Milwaukee, Wisconsin RO. R. at 536. The
request did not list a
return address. Id. VA sent a copy of the "Entire Claims File/Service
Medical Records"
approximately two weeks later to the Milwaukee address previously used by
VA in correspondence
prior to May 2006. R. at 532; see e.g. R. at 563. The appellant had listed
this address in a prior
submission to VA. R. at 573 (the appellant's July 2005 Statement in
Support of Claim). As the
Secretarynotes, there is no indication in the record that VA did not
actuallysend the claims file other
than the appellant's allegations. Sec'yBr. at 12. Furthermore, "[t]here is
a presumption of regularity
under which it is presumed that government officials properly discharge
their official duties in good
faith and in accordance with law and governing regulations." KyhnNext Document v.
Shinseki, 24 Vet.App. 228,
5
232 (2011) (citing Ashley v. Derwinski, 2 Vet.App. 307, 308-09 (1992)).
This presumption "may
be overcome only by 'clear evidence to the contrary.'" Id. (quoting Ashley,
2 Vet.App. at 309). The
Court further notes that the appellant was provided a copy of the Record
Before the Agency in
February 2009 at the same Milwaukee address. Upon review of the record
before the Court, and in
light of the specific documents mentioned above, the Court concludes that
the appellant's argument
regarding his claims file is without merit.
C. Nerve Disorder
Establishing service connection generally requires medical or, in certain
circumstances, lay
evidence of (1) a current disability; (2) an in-service incurrence or
aggravation of a disease or injury;
and (3) a nexus between the claimed in-service disease or injury and the
present disability. See
Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12
Vet.App. 247, 253
(1999); Caluza v. Brown, 7 Vet.App. 498, 506 (1995), aff'd per curiam, 78
F.3d 604 (Fed. Cir. 1996)
(table); see also Heuer v. Brown, 7 Vet.App. 379, 384 (1995). A claimant
may establish service
connection on a secondary basis by demonstrating that the disability is
either (1) proximately due
to or the result of an already service-connected disease or injury, or (2)
aggravated by an already
service-connected disease or injury. See Allen v. Brown, 7 Vet.App. 439,
448 (1995) (en banc);
38 C.F.R. § 3.310(b). A finding of service connection, or no service
connection, is a finding of fact
reviewed under the "clearly erroneous" standard found in 38 U.S.C. § 7261(
a)(4). See Swann
v. Brown, 5 Vet.App. 229, 232 (1993).
In the decision here on appeal, the Board denied the appellant's claim for
a nerve disorder as
secondary to his dental disability due to impacted wisdom teeth on the
grounds that service
connection for the latter injuryhad not beenestablished. TheBoard did not
errin this determination.
See 38 C.F.R. § 3.310.
The Board also denied service connection for a nerve disorder on a direct
basis. However,
the appellant has abandoned any claim of direct service connection on
appeal because he is
contending that the nerve condition was caused by his tooth condition and
makes no argument that
he is entitled to service connection for a nerve condition on a direct
basis. Thus, the Court considers
any appeal of the claim on a direct basis to have been abandoned. See Ford
v. Gober, 10 Vet.App.
531, 535 (1997) (holding that claims not argued on appeal are deemed
abandoned).
6
III. CONCLUSION
After consideration of the appellant's and the Secretary's briefs, and a
review of the record,
the Board's September 3, 2008, decision denying the appellant's request to
reopen his claim for a
dental disability due to impacted wisdom teeth and request for entitlement
to service connection for
a nerve disorder as secondary to a dental disability due to impacted
wisdom teeth is AFFIRMED.
DATED: March 31, 2011
Copies to:
Quentin L. Brenson
General Counsel (027)
7
Monday, April 11, 2011
Single Judge Application, Comer v. Peake, 552 F.3d, TDIU
Excerpt from decision below:
"VA must consider whether TDIU is warranted when a veteran who is seeking
an increased
disability rating submits evidence of unemployability. Roberson v.
Principi, 251 F.3d 1378, 1384(Fed. Cir. 2001); Norris v. West, 12 Vet.App. 413, 421-22 (1999). "[A] claim to TDIU benefits is not a free-standing claim that must be pled with specificity; it is implicitly raised whenever a pro se veteran,who presents cogent evidence of unemployability, seeks to obtain a higher disability rating." Comer v. Peake, 552 F.3d 1362, 1367 (Fed. Cir. 2009). An informal TDIU claim can be raised by VA's receipt of hospitalization and medical examination reports coupled with assertions of unemployability. See Norris, 12 Vet.App. at 421; 38 C.F.R. § 3.157 (2010).
Thus, all that is required to support consideration of TDIU within a claim for a higher disability rating is the general intent to seek increased compensation. Roberson and Comer, both supra; see also Rice v. Shinseki, 22 Vet.App. 447, 448 (holding that "a request for TDIU is best understood as part of an initial claim
for VA disability compensation . . . or as a particular type of claim for
increased compensation").
----------------------------------------------------
Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 09-1533
GEORGE WYNN, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before NEBEKER, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
NEBEKER, Judge: The appellant, George Wynn, through counsel, seeks review
of a
December 30, 2008, decision of the Board of Veterans' Appeals (Board) that
denied entitlement to
a rating in excess of 50% for post-traumatic stress disorder (PTSD). Both
parties have filed briefs
and the appellant has filed a motion requesting oral argument. This appeal
is timely and the Court
has jurisdiction pursuant to 38 U.S.C. §§ 7252(a) and 7266(a). Single-
judge disposition is
appropriate as the issue is "of relative simplicity" and "the outcome is
not reasonably debatable."
Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). Additionally, the Court
deems this appeal to
have sufficient merit as to the two issues argued. Rather than refer it to
a panel (with the attendant
additional delay), the Court concludes that a decision at this stage is
just under there circumstances.
See 38 U.S.C. § 7252(a) (the Court has the power to "affirm, modify, or
reverse a decision of the
Board or to remand the matter, as appropriate"). For the reasons set forth
below, the Court will
vacate the Board's December 2008 decision and remand the matter for
readjudication. The Court
will deny the appellant's motion for oral argument as it would not
materially assist in the disposition
of this appeal. See Janssen v. Principi, 15 Vet.App. 370, 379 (2001) (per
curiam).
I. FACTS
The appellant served on active duty in the U.S. Army from June 1967 to May
1970. Record
(R.) at 634. In April 2003, he filed a claim for service connection for
PTSD. R. at 463. The VA
regional office (RO) issued a rating decision granting service connection
and assigning a 50%
disability evaluation. R. at 435-37.
In August 2004, the appellant filed a claim for an increased rating for
his service-connected
PTSD. R. at 407. The RO denied his claim in February 2005 and the
appellant appealed that
decision. R. at 40, 45-48, 349-51. In March 2005, he submitted a statement
in support of claim
indicating that he was unemployed. R. at 321. That claim was denied by the
RO in August 2005
on the basis that the evidence did not indicate that the appellant was
unable to secure or follow a
substantially gainful occupation as a result of service-connected
disabilities. R. at 202-05. He was
afforded VA PTSD examinations in March and November 2006. R. at 64-69, 164-
68. On
December 30, 2008, the Board issued the decision here on appeal. R. at 3-
14. In that decision, the
Board found that the appellant's PTSD is manifested, at worst, by
occupational and social
impairment with reduced reliability and productivity. R. at 5. This appeal
followed.
II. ANALYSIS
A. Increased Rating
The appellant first argues that the Board erred in failing to award a
rating in excess of 50%
for his service-connected PTSD. Appellant's Brief (Br.) at 13-20. In
particular, he contends that the
Board failed to address evidence favorable to his claim. Id. The Secretary
incorrectly counters that
the appellant's argument is without merit. Secretary's Br. at 3-7.
The regulation governing the assignment of a disability evaluation for
PTSD, 38 C.F.R.
§ 4.130, Diagnostic Code (DC) 9440 (2010), provides that a 70% rating is
warranted if the evidence
demonstrates:
Occupational and social impairment, with deficiencies in most areas, such
as work,
school, family relations, judgment, thinking, or mood, due to such
symptoms as:
suicidal ideation; obsessional rituals which interfere with routine
activities; speech
intermittently illogical, obscure, or irrelevant; near-continuous panic or
depression
affecting the ability to function independently, appropriately and
effectively;
impaired impulse control (such as unprovoked irritability with periods of
violence);
2
spatial disorientation; neglect of personal appearance and hygiene;
difficulty in
adapting to stressful circumstances (including work or a worklike setting);
inability
to establish and maintain effective relationships.
Here, applying that regulation, the Board found that:
Throughout the pendencyof this appeal, the veteran's PTSD has been
manifested by,
at worst, serious symptomatology. He complained consistently of trouble
sleeping,
depressive mood, and an inability to get along with other people. He had
been
married to his wife for at least 35 years and, although he reported
increasing marital
conflict in October 2005, he subsequently reported that his marital
relationship had
improved in March 2006. The veteran also initially reported a good
relationship with
his three grown children. He subsequently reported that his relationship
with his
eldest son was distant but he remained close to his grandson. He
repeatedly denied
panic attacks. No impaired impulse control, speech problems, or anxiety
was noted
on repeated mental status examination of the veteran conducted during the
pendency
of this appeal. The veteran's [Global Assessment of Functioning] GAF score
was 50
throughout this appeal which indicates, at worst, serious symptoms. The
veteran's
service[-]connected PTSD also was not totally disabling at any time during
this
appeal; in fact, at the veteran's most recent VA examination in March 2006,
the VA
examiner noted that the veteran's service-connected PTSD had minimal
symptoms.
Because few of the criteria for the next higher rating (i.e., a 70 or 100
percent rating)
are present, the Board finds that a disability rating greater than 50
percent for PTSD
is not warranted.
Record (R.) at 12.
The appellant contends that the Board failed to discuss evidence of his
inability to sustain
employment, difficulties with family relationships, and deficiencies in
judgment, thinking, and
mood. Appellant's Br. at 13-20, citing R. at 66-69, 165-66, 187-88, 321,
384-87, 450, 461. His
argument is persuasive. The Board must account for the evidence which it
finds to be persuasive
or unpersuasive, and provide the reasons for its rejection of any material
evidence favorable to the
veteran. See Gabrielson v. Brown, 7 Vet.App 36, 39-40 (1994). In this case,
it failed to account for
evidence that may support entitlement to a 70% or greater evaluation for
PTSD, most notably
evidence noting an inability to maintain employment due to PTSD. See R. at
66, 69, 166, 168, 321,
384. Remand is required on this basis.
B. TDIU
The appellant also argues that the Board failed to discuss entitlement to
a total disability
rating based on individual unemployability (TDIU) pursuant to 38 C.F.R. §
4.16(b) (2010).
3
Appellant's Br. at 21-23. The Secretary argues that the issue of
entitlement to TDIU was previously
adjudicated by the RO in an August 2005 unappealed rating decision and the
issue is therefore not
ripe for review by the Court. Secretary's Br. at 7-10, citing R. at 197-
205.
VA must consider whether TDIU is warranted when a veteran who is seeking
an increased
disability rating submits evidence of unemployability. Roberson v.
Principi, 251 F.3d 1378, 1384
(Fed. Cir. 2001); Norris v. West, 12 Vet.App. 413, 421-22 (1999). "[A]
claim to TDIU benefits is
not a free-standing claim that must be pled with specificity; it is
implicitly raised whenever a pro se
veteran,whopresents cogentevidenceofunemployability,
seekstoobtainahigherdisabilityrating."
Previous DocumentComerNext Hit v. Peake, 552 F.3d 1362, 1367 (Fed. Cir. 2009). An informal TDIU
claim can be raised by
VA's receipt of hospitalization and medical examination reports coupled
with assertions of
unemployability. See Norris, 12 Vet.App. at 421; 38 C.F.R. § 3.157 (2010).
Thus, all that is
required to support consideration of TDIU within a claim for a higher
disability rating is the general
intent to seek increased compensation. Roberson and Previous HitComerNext Hit, both supra; see
also Rice v. Shinseki,
22 Vet.App. 447, 448 (holding that "a request for TDIU is best understood
as part of an initial claim
for VA disability compensation . . . or as a particular type of claim for
increased compensation").
Here, the RO issued a rating decision in August 2005 adjudicating, and
denying, entitlement
to TDIU. R. at 202-05. The appellant did not appeal that decision and it
became final. However,
the appellant continued to pursue entitlementto an increased ratingfor his
service-connected PTSD.
In November 2006, during the pendency of his claim for an increased rating
for PTSD, a VA
psychiatric examination was conducted and noted that the appellant's PTSD
impeded his ability to
sustain employment and that he was generally unable to work. R. at 69.
That evidence of
unemployability, in conjunction with the appellant's claim for an
increased rating for PTSD, raised
the issue of TDIU. See Roberson, Previous HitComerNext Document, and Norris, all supra. While the
Secretary is correct that
entitlement to TDIU had previously been denied, that does not foreclose
the appellant's ability to
reopen that issue. Accordingly, the Board should have considered whether
the November 2006
evidence of unemployability due to PTSD, in conjunction with a claim for
an increased rating, was
a claim to reopen the previously denied claim for TDIU. The Board's
failure to address that issue
necessitates remand. Beverly v. Nicholson, 19 Vet.App. 394, 404 (2005) ("'[
T]he Board is required
to adjudicate all issues reasonably raised by a liberal reading of the
appellant's substantive appeal,
4
including all documents and oral testimony in the record prior to the
Board's decision.'" (quoting
Brannon v. West, 12 Vet.App. 32, 34 (1998))); see also Robinson v.
Mansfield, 21 Vet.App. 545, 552
(2008) (Board required to consider all issues raised either by the
claimant or by evidence of record).
Onremand,theappellantis freeto submit
additionalevidenceandargumentontheremanded
matters, and the Board is required to consider any such relevant evidence
and argument. See Kay v.
Principi, 16 Vet.App. 529, 534 (2002) (stating that, on remand, the Board
must consider additional
evidence and argument in assessing entitlement to benefit sought);
Kutscherousky v. West,
12 Vet.App. 369, 372-73 (1999) (per curiam order). The Court has held that
"[a] remand is meant
to entail a critical examination of the justification for the decision."
Fletcher v. Derwinski,
1 Vet.App. 394, 397 (1991). The Board must proceed expeditiously, in
accordance with 38 U.S.C.
§7112(requiringSecretaryto provide for "expeditious treatment" of claims
remanded bytheCourt).
III. CONCLUSION
Based on the foregoing analysis and a review of the record on appeal, the
Board's
December 30, 2008, decision is VACATED and the matters are REMANDED for
readjudication
consistent with this decision. The appellant's motion requesting oral
argument is DENIED.
DATED: March 31, 2011
Copies to:
Barbara C. McCurdy, Esq.
VA General Counsel (027)
5
"VA must consider whether TDIU is warranted when a veteran who is seeking
an increased
disability rating submits evidence of unemployability. Roberson v.
Principi, 251 F.3d 1378, 1384(Fed. Cir. 2001); Norris v. West, 12 Vet.App. 413, 421-22 (1999). "[A] claim to TDIU benefits is not a free-standing claim that must be pled with specificity; it is implicitly raised whenever a pro se veteran,who presents cogent evidence of unemployability, seeks to obtain a higher disability rating." Comer v. Peake, 552 F.3d 1362, 1367 (Fed. Cir. 2009). An informal TDIU claim can be raised by VA's receipt of hospitalization and medical examination reports coupled with assertions of unemployability. See Norris, 12 Vet.App. at 421; 38 C.F.R. § 3.157 (2010).
Thus, all that is required to support consideration of TDIU within a claim for a higher disability rating is the general intent to seek increased compensation. Roberson and Comer, both supra; see also Rice v. Shinseki, 22 Vet.App. 447, 448 (holding that "a request for TDIU is best understood as part of an initial claim
for VA disability compensation . . . or as a particular type of claim for
increased compensation").
----------------------------------------------------
Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 09-1533
GEORGE WYNN, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before NEBEKER, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
NEBEKER, Judge: The appellant, George Wynn, through counsel, seeks review
of a
December 30, 2008, decision of the Board of Veterans' Appeals (Board) that
denied entitlement to
a rating in excess of 50% for post-traumatic stress disorder (PTSD). Both
parties have filed briefs
and the appellant has filed a motion requesting oral argument. This appeal
is timely and the Court
has jurisdiction pursuant to 38 U.S.C. §§ 7252(a) and 7266(a). Single-
judge disposition is
appropriate as the issue is "of relative simplicity" and "the outcome is
not reasonably debatable."
Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). Additionally, the Court
deems this appeal to
have sufficient merit as to the two issues argued. Rather than refer it to
a panel (with the attendant
additional delay), the Court concludes that a decision at this stage is
just under there circumstances.
See 38 U.S.C. § 7252(a) (the Court has the power to "affirm, modify, or
reverse a decision of the
Board or to remand the matter, as appropriate"). For the reasons set forth
below, the Court will
vacate the Board's December 2008 decision and remand the matter for
readjudication. The Court
will deny the appellant's motion for oral argument as it would not
materially assist in the disposition
of this appeal. See Janssen v. Principi, 15 Vet.App. 370, 379 (2001) (per
curiam).
I. FACTS
The appellant served on active duty in the U.S. Army from June 1967 to May
1970. Record
(R.) at 634. In April 2003, he filed a claim for service connection for
PTSD. R. at 463. The VA
regional office (RO) issued a rating decision granting service connection
and assigning a 50%
disability evaluation. R. at 435-37.
In August 2004, the appellant filed a claim for an increased rating for
his service-connected
PTSD. R. at 407. The RO denied his claim in February 2005 and the
appellant appealed that
decision. R. at 40, 45-48, 349-51. In March 2005, he submitted a statement
in support of claim
indicating that he was unemployed. R. at 321. That claim was denied by the
RO in August 2005
on the basis that the evidence did not indicate that the appellant was
unable to secure or follow a
substantially gainful occupation as a result of service-connected
disabilities. R. at 202-05. He was
afforded VA PTSD examinations in March and November 2006. R. at 64-69, 164-
68. On
December 30, 2008, the Board issued the decision here on appeal. R. at 3-
14. In that decision, the
Board found that the appellant's PTSD is manifested, at worst, by
occupational and social
impairment with reduced reliability and productivity. R. at 5. This appeal
followed.
II. ANALYSIS
A. Increased Rating
The appellant first argues that the Board erred in failing to award a
rating in excess of 50%
for his service-connected PTSD. Appellant's Brief (Br.) at 13-20. In
particular, he contends that the
Board failed to address evidence favorable to his claim. Id. The Secretary
incorrectly counters that
the appellant's argument is without merit. Secretary's Br. at 3-7.
The regulation governing the assignment of a disability evaluation for
PTSD, 38 C.F.R.
§ 4.130, Diagnostic Code (DC) 9440 (2010), provides that a 70% rating is
warranted if the evidence
demonstrates:
Occupational and social impairment, with deficiencies in most areas, such
as work,
school, family relations, judgment, thinking, or mood, due to such
symptoms as:
suicidal ideation; obsessional rituals which interfere with routine
activities; speech
intermittently illogical, obscure, or irrelevant; near-continuous panic or
depression
affecting the ability to function independently, appropriately and
effectively;
impaired impulse control (such as unprovoked irritability with periods of
violence);
2
spatial disorientation; neglect of personal appearance and hygiene;
difficulty in
adapting to stressful circumstances (including work or a worklike setting);
inability
to establish and maintain effective relationships.
Here, applying that regulation, the Board found that:
Throughout the pendencyof this appeal, the veteran's PTSD has been
manifested by,
at worst, serious symptomatology. He complained consistently of trouble
sleeping,
depressive mood, and an inability to get along with other people. He had
been
married to his wife for at least 35 years and, although he reported
increasing marital
conflict in October 2005, he subsequently reported that his marital
relationship had
improved in March 2006. The veteran also initially reported a good
relationship with
his three grown children. He subsequently reported that his relationship
with his
eldest son was distant but he remained close to his grandson. He
repeatedly denied
panic attacks. No impaired impulse control, speech problems, or anxiety
was noted
on repeated mental status examination of the veteran conducted during the
pendency
of this appeal. The veteran's [Global Assessment of Functioning] GAF score
was 50
throughout this appeal which indicates, at worst, serious symptoms. The
veteran's
service[-]connected PTSD also was not totally disabling at any time during
this
appeal; in fact, at the veteran's most recent VA examination in March 2006,
the VA
examiner noted that the veteran's service-connected PTSD had minimal
symptoms.
Because few of the criteria for the next higher rating (i.e., a 70 or 100
percent rating)
are present, the Board finds that a disability rating greater than 50
percent for PTSD
is not warranted.
Record (R.) at 12.
The appellant contends that the Board failed to discuss evidence of his
inability to sustain
employment, difficulties with family relationships, and deficiencies in
judgment, thinking, and
mood. Appellant's Br. at 13-20, citing R. at 66-69, 165-66, 187-88, 321,
384-87, 450, 461. His
argument is persuasive. The Board must account for the evidence which it
finds to be persuasive
or unpersuasive, and provide the reasons for its rejection of any material
evidence favorable to the
veteran. See Gabrielson v. Brown, 7 Vet.App 36, 39-40 (1994). In this case,
it failed to account for
evidence that may support entitlement to a 70% or greater evaluation for
PTSD, most notably
evidence noting an inability to maintain employment due to PTSD. See R. at
66, 69, 166, 168, 321,
384. Remand is required on this basis.
B. TDIU
The appellant also argues that the Board failed to discuss entitlement to
a total disability
rating based on individual unemployability (TDIU) pursuant to 38 C.F.R. §
4.16(b) (2010).
3
Appellant's Br. at 21-23. The Secretary argues that the issue of
entitlement to TDIU was previously
adjudicated by the RO in an August 2005 unappealed rating decision and the
issue is therefore not
ripe for review by the Court. Secretary's Br. at 7-10, citing R. at 197-
205.
VA must consider whether TDIU is warranted when a veteran who is seeking
an increased
disability rating submits evidence of unemployability. Roberson v.
Principi, 251 F.3d 1378, 1384
(Fed. Cir. 2001); Norris v. West, 12 Vet.App. 413, 421-22 (1999). "[A]
claim to TDIU benefits is
not a free-standing claim that must be pled with specificity; it is
implicitly raised whenever a pro se
veteran,whopresents cogentevidenceofunemployability,
seekstoobtainahigherdisabilityrating."
Previous DocumentComerNext Hit v. Peake, 552 F.3d 1362, 1367 (Fed. Cir. 2009). An informal TDIU
claim can be raised by
VA's receipt of hospitalization and medical examination reports coupled
with assertions of
unemployability. See Norris, 12 Vet.App. at 421; 38 C.F.R. § 3.157 (2010).
Thus, all that is
required to support consideration of TDIU within a claim for a higher
disability rating is the general
intent to seek increased compensation. Roberson and Previous HitComerNext Hit, both supra; see
also Rice v. Shinseki,
22 Vet.App. 447, 448 (holding that "a request for TDIU is best understood
as part of an initial claim
for VA disability compensation . . . or as a particular type of claim for
increased compensation").
Here, the RO issued a rating decision in August 2005 adjudicating, and
denying, entitlement
to TDIU. R. at 202-05. The appellant did not appeal that decision and it
became final. However,
the appellant continued to pursue entitlementto an increased ratingfor his
service-connected PTSD.
In November 2006, during the pendency of his claim for an increased rating
for PTSD, a VA
psychiatric examination was conducted and noted that the appellant's PTSD
impeded his ability to
sustain employment and that he was generally unable to work. R. at 69.
That evidence of
unemployability, in conjunction with the appellant's claim for an
increased rating for PTSD, raised
the issue of TDIU. See Roberson, Previous HitComerNext Document, and Norris, all supra. While the
Secretary is correct that
entitlement to TDIU had previously been denied, that does not foreclose
the appellant's ability to
reopen that issue. Accordingly, the Board should have considered whether
the November 2006
evidence of unemployability due to PTSD, in conjunction with a claim for
an increased rating, was
a claim to reopen the previously denied claim for TDIU. The Board's
failure to address that issue
necessitates remand. Beverly v. Nicholson, 19 Vet.App. 394, 404 (2005) ("'[
T]he Board is required
to adjudicate all issues reasonably raised by a liberal reading of the
appellant's substantive appeal,
4
including all documents and oral testimony in the record prior to the
Board's decision.'" (quoting
Brannon v. West, 12 Vet.App. 32, 34 (1998))); see also Robinson v.
Mansfield, 21 Vet.App. 545, 552
(2008) (Board required to consider all issues raised either by the
claimant or by evidence of record).
Onremand,theappellantis freeto submit
additionalevidenceandargumentontheremanded
matters, and the Board is required to consider any such relevant evidence
and argument. See Kay v.
Principi, 16 Vet.App. 529, 534 (2002) (stating that, on remand, the Board
must consider additional
evidence and argument in assessing entitlement to benefit sought);
Kutscherousky v. West,
12 Vet.App. 369, 372-73 (1999) (per curiam order). The Court has held that
"[a] remand is meant
to entail a critical examination of the justification for the decision."
Fletcher v. Derwinski,
1 Vet.App. 394, 397 (1991). The Board must proceed expeditiously, in
accordance with 38 U.S.C.
§7112(requiringSecretaryto provide for "expeditious treatment" of claims
remanded bytheCourt).
III. CONCLUSION
Based on the foregoing analysis and a review of the record on appeal, the
Board's
December 30, 2008, decision is VACATED and the matters are REMANDED for
readjudication
consistent with this decision. The appellant's motion requesting oral
argument is DENIED.
DATED: March 31, 2011
Copies to:
Barbara C. McCurdy, Esq.
VA General Counsel (027)
5
Single Judge Application, Bryant v. Shinseki, 23 Vet.App., Overlooked Evidence
Excerpt from decision below:
"In regard to the duty to explain issues fully, the Court has stated that when the RO has denied a disability claim because there is no current disability, no nexus to service, or no incident in service, etc., then the Board hearing officer should explain that the claim can be substantiated only when the claimed disability is shown to exist and shown to be caused by an injury or disease in service, and the Board hearing officer's explanation and discussion should be centered on these issues. Id. at 496. In regard to the duty to suggest the submission of overlooked evidence, the Court in Bryant clarified that "nothing in the regulation limits the Secretary's duties to advise the claimant to submit evidence only to those situations when the existence of such evidence is raised at the hearing"; rather, the hearing officer "must suggest the submission of evidence when testimony during the hearing indicates that it exists (or could be reduced to writing) but is not of record." Id. at 496-97.
----------------------------------------------------
Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 10-0032
DENNIS R. RASNICK, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before HOLDAWAY, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
HOLDAWAY,Judge: Theappellant,throughcounsel,appeals fromtheDecember14,2009,
decision of the Board of Veterans' Appeals (Board) that denied entitlement
to service connection for
lost teeth, to include as secondary to septoturbinoplasty for a service-
connected nasal septal
deviation. Both parties filed briefs. This appeal is timely and the Court
has jurisdiction pursuant
to 38 U.S.C. §§ 7252(a) and 7266(a). Single-judge disposition is
appropriate when the issue is of
"relative simplicity" and the outcome is not "reasonably debatable."
Frankel v. Derwinski,
1 Vet.App. 23, 25-26 (1990). For the reasons set forth below, the decision
of the Board will be
affirmed.
I. FACTS
The appellant served honorably on active duty in the U.S. Army from
January 1966 to
December 1967. Record (R.) at 37. His initial service dental examination,
dated in January 1966,
reflected that he had six missing teeth, gingivitis, and slight calculus.
R. at 1014. The appellant's
service medical records (SMRs) and service personnel records reveal that
he incurred multiple
lacerations to his face and throat in a June 1967 automobile accident. R.
at 976-77, 999-1000, 1018-
19, 1039.
In February 1969, the regional office (RO) granted service connection for
facial scars, and
assigned a noncompensable disability rating for the scars. R. at 962. The
appellant subsequently
soughtentitlementtooutpatientdentalcarebaseduponanallegation that his
front teethhadloosened
from the impact of the in-service accident. R. at 900. In March 1977, the
appellant was examined
by a VA dentist. R. at 902. The VA dentist opined that there was "no
indication of dental trauma
in service." Id. In April 1977, the RO increased the disability rating for
the appellant's facial scars
to 10%. R. at 890. The RO subsequently granted service connected for a
deviated septum, status
post septoturbinoplasty, rated as 10% disabling, effective in January 1984.
See R. at 750.
In May 1999, the appellant submitted a statement to the RO in which he
alleged that all of
his top teeth fell out as a result of surgery to correct his service-
connected deviated septum. R. at
807. The RO denied the appellant's claim for service connection for loss
of teeth in January 2000
(R. at 744-51) and the appellant perfected an appeal (R. at 593-94, 733).
The appellant testified at
a June 20021
Board hearing that he had no trouble with his teeth prior to the 1982
surgery to correct
his deviated septum and that the doctor "loosened all my muscles with
surgery and stuff and cut all
[his] top musculars [sic] that hold [his] teeth in and when he did [his]
teeth fell out." R. at 555. His
representative acknowledgedthatit wasthe"VA's position that [the
appellanthad not] presented any
evidence to support [the] idea" that his loss of teeth was related to his
nasal septum. R. at 553. The
appellant stated that he had no written evidence he could produce. Id. The
appellant's representative
asked the appellant whether a physician had given an opinion as to whether
or not his surgery had
caused his tooth loss, and the appellant stated that none had. R. at 554.
In June 2004, the Board remanded the appellant's claim for further
development, to include
a VA examination. R. at 471-96. The appellant underwent a VA dental
examination in June 2005.
R. at 411. The examiner reported that he "found no evidence that there was
a defect in the hard or
soft palate referencing the maxilla." Id. He noted that a 1977 VA trauma
rating reflected no dental
trauma. The examiner reported that the appellant was missing all the teeth
in the maxillary arch and
five teeth in the mandibular arch. Id. The examiner further reported that
the remaining dentition in
Although the appellant states that the Board hearing was conducted on June
11, 2007 (Appellant's Br. at
6), the record reflects only one hearing, which occurred on June 11, 2002.
1
2
the mandibular arch was in an "extremely poor state of repair" with "
advanced chronic periodontal
disease [and] gross caries." The examiner opined that
This is obviously a result of a history of dental neglect, with very poor
dental oral
hygiene . . . . I must say that I see no evidence in the maxillary arch
that would
indicate otherwise than the lower teeth the fact that he had normal loss
of his teeth
from the same reason that the lower teeth will be lost, periodontal
disease. I found
no evidence in the records where there was dental trauma, nor did Ifind
anyevidence
that any procedure was performed where his maxillary teeth were
compromised as
to the longevity or prognosis for retention.
Id.
In a May 2007 addendum, the VA dentist who had conducted the June 2005
dental
examination opined that there was no evidence in the appellant's records
that his loss of teeth
resulted from his nasal surgery. R. at 281. The examiner further opined
that "[i]t is not likely . . .
that any tooth loss in his oral cavity would be the result of his nasal
surgery or sinus surgery." Id.
On December 14, 2009, the Board issued its decision on appeal, in which it
denied entitlement to
service connection for lost teeth, to include as secondary to a
septoturbinoplasty. R. at 3-11. This
appeal followed.
II. ANALYSIS
The appellant's sole argument on appeal is that the hearing officer at the
Board hearing failed
to explain the issue of medical nexus evidence and "failed to suggest the
submission of evidence
overlooked, i.e., written reports regarding medical nexus evidence, and
which would be
advantageous to [his] position." Appellant's Brief (Br.) at 4-12. He
contends that this failure was
prejudicial because "the harmless error conclusion would require the [
Court] to resolve an issue of
fact that the Board never resolved." Appellant's Br. at 11. He further
contends that it would be "pure
speculation for the Court to conclude that the Hearing Officer complied
with 38 C.F.R. § 3.103(c)."
Appellant's Br. at 12. The Secretaryconcedes that the hearing officer did
not satisfythe duty to fully
explain the issues pursuant to § 3.103(c) and the Court's guidance.
Secretary's Br. at 12-14. He
expressly concedes that the hearing officer "does not appear to have
explained either the basis of the
RO's denial or the outstanding elements for his claim for entitlement to
service connection for tooth
loss." Secretary's Br. at 14. However, he contends that the error was not
prejudicial. Secretary's Br.
3
at 15-20. He first contends that the appellant has not pled with
sufficient particularity how the
alleged hearing officer errors prejudiced his claim. Secretary's Br. at 15.
He further contends that
the statements made by the appellant's representative at the hearing "
obviated the need for the
hearing officer to explain the basis of the RO's denial." Id. Regarding
the appellant's opportunity
to submit evidence after the hearing, the Secretarynotes that VA developed
the appellant's claim for
seven years after the Board hearing, to include the provision of a VA
examination evaluating
whether there was a connection between the loss of teeth and service or
his service-connected
septum surgery. Secretary's Br. at 19, citing R. at 281, 411.
Under38C.F.R.§3.103(c)(2)(2010),"[i]t is
theresponsibilityoftheemployeeoremployees
conducting the hearings to explain fully the issues and suggest the
submission of evidence which the
claimant mayhave overlooked and which would be ofadvantageto the
claimant's position." In order
to follow this regulatory mandate, a hearing officer "cannot ignore a lack
of evidence in the record
on a material issue and not suggest its submission, unless the record (or
the claimant at hearing)
clearly shows that such evidence is not available." Previous DocumentBryantNext Hit v. Shinseki, 23
Vet.App. 488, 493-94
(2010) (per curiam). In regard to the duty to explain issues fully, the
Court has stated that
when the RO has denied a disability claim because there is no current
disability, no
nexus to service, or no incident in service, etc., then the Board hearing
officer should
explain that the claim can be substantiated only when the claimed
disability is shown
to exist and shown to be caused by an injury or disease in service, and
the Board
hearing officer's explanation and discussion should be centered on these
issues.
Id. at 496. In regard to the duty to suggest the submission of overlooked
evidence, the Court in
Previous HitBryantNext Hit clarified that "nothing in the regulation limits the Secretary's
duties to advise the claimant to
submit evidence only to those situations when the existence of such
evidence is raised at the
hearing"; rather,thehearingofficer"
mustsuggestthesubmissionofevidencewhentestimonyduring
the hearing indicates that it exists (or could be reduced to writing) but
is not of record." Id. at 496-97.
Review of the June 2002 hearing transcript confirms, as conceded by the
Secretary, that the hearing officer failed to fulfill his duty to fully explain the issues. Secretary's Br. at 11-12; R. at 544-74. Regarding the duty to suggest the submission of overlooked evidence, this depends on what evidence is needed to substantiate the issue. Bryant, 23 Vet.App. at 496-97. Here, the evidence
4
lacking was a nexus between the appellant's loss of teeth and his service-
connected deviated septum.
As pointed out by the Secretary, the appellant's testimony did not
indicate that evidence of medical nexus existed. Secretary'sBr.at 16-17. Rather, the appellant testified that no physician had rendered an opinion that his loss of teeth was due to his surgery. R. at 554. Pursuant to Bryant, and contrary
to the Secretary's argument (Secretary's Br. at 13), the hearing officer
erred in failing to suggest to the appellant that he should secure and submit medical evidence on the key issue of nexus Bryant, 23 Vet.App. at 499.
Having found error, the Court must determine whether any resulting error
was prejudicial to the appellant. Bryant, 23 Vet.App. at 498; see 38 U.S.C. § 7261(b)(2) (providing that the Court shall
take due account of the rule of prejudicial error); Mayfield v. Nicholson,
19 Vet.App. 103, 116
(2005) (stating that the key to determining whether an error is
prejudicial is the effect of the error
on the essential fairness of the adjudication),rev'd on other grounds, 444F.3d1328(
Fed.Cir. 2006).
Here, it is clear from statements of the appellant's representative at the
June 2002 hearing that the
appellant had actual knowledge that his claim was denied due to the
absence of nexus evidence
relating the loss of his teeth to his service-connected deviated septum. R.
at 553. Moreover, there
was no indication that the appellant had information to submit regarding
the issue of nexus. R. at
544-74. Accordingly, the Court holds that under the facts of this case the
hearing officer's failure
to explain the need for a nexus opinion was harmless. In addition, because
VA developed the
appellant's claimfurther,to includetheprovision of a 2007 VAexamination
thatincludedanopinion
concerning the issue of whether the appellant's maxillarytooth loss was
related to the surgery for his
service-connected deviated septum (R. at 281, 411), the appellant was not
prejudiced by the hearing
officer's failure to suggest the submission of such evidence. See Previous HitBryantNext Hit,
23 Vet.App. at 498-99; see also R. at 281, 621. Based on the foregoing, the appellant has not met his burden to demonstrate prejudicial error. See Bryant, supra; Marciniak v. Brown, 10 Vet.App. 198, 201 (1997).
III. CONCLUSION
Upon consideration of the foregoing,the submissions of the parties,
and the record on appeal,
the December 14, 2009, Board decision is AFFIRMED.
DATED: March 25, 2011
5
Copies to:
R. Edward Bates, Esq.
VA General Counsel (027)
6
"In regard to the duty to explain issues fully, the Court has stated that when the RO has denied a disability claim because there is no current disability, no nexus to service, or no incident in service, etc., then the Board hearing officer should explain that the claim can be substantiated only when the claimed disability is shown to exist and shown to be caused by an injury or disease in service, and the Board hearing officer's explanation and discussion should be centered on these issues. Id. at 496. In regard to the duty to suggest the submission of overlooked evidence, the Court in Bryant clarified that "nothing in the regulation limits the Secretary's duties to advise the claimant to submit evidence only to those situations when the existence of such evidence is raised at the hearing"; rather, the hearing officer "must suggest the submission of evidence when testimony during the hearing indicates that it exists (or could be reduced to writing) but is not of record." Id. at 496-97.
----------------------------------------------------
Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 10-0032
DENNIS R. RASNICK, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before HOLDAWAY, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
HOLDAWAY,Judge: Theappellant,throughcounsel,appeals fromtheDecember14,2009,
decision of the Board of Veterans' Appeals (Board) that denied entitlement
to service connection for
lost teeth, to include as secondary to septoturbinoplasty for a service-
connected nasal septal
deviation. Both parties filed briefs. This appeal is timely and the Court
has jurisdiction pursuant
to 38 U.S.C. §§ 7252(a) and 7266(a). Single-judge disposition is
appropriate when the issue is of
"relative simplicity" and the outcome is not "reasonably debatable."
Frankel v. Derwinski,
1 Vet.App. 23, 25-26 (1990). For the reasons set forth below, the decision
of the Board will be
affirmed.
I. FACTS
The appellant served honorably on active duty in the U.S. Army from
January 1966 to
December 1967. Record (R.) at 37. His initial service dental examination,
dated in January 1966,
reflected that he had six missing teeth, gingivitis, and slight calculus.
R. at 1014. The appellant's
service medical records (SMRs) and service personnel records reveal that
he incurred multiple
lacerations to his face and throat in a June 1967 automobile accident. R.
at 976-77, 999-1000, 1018-
19, 1039.
In February 1969, the regional office (RO) granted service connection for
facial scars, and
assigned a noncompensable disability rating for the scars. R. at 962. The
appellant subsequently
soughtentitlementtooutpatientdentalcarebaseduponanallegation that his
front teethhadloosened
from the impact of the in-service accident. R. at 900. In March 1977, the
appellant was examined
by a VA dentist. R. at 902. The VA dentist opined that there was "no
indication of dental trauma
in service." Id. In April 1977, the RO increased the disability rating for
the appellant's facial scars
to 10%. R. at 890. The RO subsequently granted service connected for a
deviated septum, status
post septoturbinoplasty, rated as 10% disabling, effective in January 1984.
See R. at 750.
In May 1999, the appellant submitted a statement to the RO in which he
alleged that all of
his top teeth fell out as a result of surgery to correct his service-
connected deviated septum. R. at
807. The RO denied the appellant's claim for service connection for loss
of teeth in January 2000
(R. at 744-51) and the appellant perfected an appeal (R. at 593-94, 733).
The appellant testified at
a June 20021
Board hearing that he had no trouble with his teeth prior to the 1982
surgery to correct
his deviated septum and that the doctor "loosened all my muscles with
surgery and stuff and cut all
[his] top musculars [sic] that hold [his] teeth in and when he did [his]
teeth fell out." R. at 555. His
representative acknowledgedthatit wasthe"VA's position that [the
appellanthad not] presented any
evidence to support [the] idea" that his loss of teeth was related to his
nasal septum. R. at 553. The
appellant stated that he had no written evidence he could produce. Id. The
appellant's representative
asked the appellant whether a physician had given an opinion as to whether
or not his surgery had
caused his tooth loss, and the appellant stated that none had. R. at 554.
In June 2004, the Board remanded the appellant's claim for further
development, to include
a VA examination. R. at 471-96. The appellant underwent a VA dental
examination in June 2005.
R. at 411. The examiner reported that he "found no evidence that there was
a defect in the hard or
soft palate referencing the maxilla." Id. He noted that a 1977 VA trauma
rating reflected no dental
trauma. The examiner reported that the appellant was missing all the teeth
in the maxillary arch and
five teeth in the mandibular arch. Id. The examiner further reported that
the remaining dentition in
Although the appellant states that the Board hearing was conducted on June
11, 2007 (Appellant's Br. at
6), the record reflects only one hearing, which occurred on June 11, 2002.
1
2
the mandibular arch was in an "extremely poor state of repair" with "
advanced chronic periodontal
disease [and] gross caries." The examiner opined that
This is obviously a result of a history of dental neglect, with very poor
dental oral
hygiene . . . . I must say that I see no evidence in the maxillary arch
that would
indicate otherwise than the lower teeth the fact that he had normal loss
of his teeth
from the same reason that the lower teeth will be lost, periodontal
disease. I found
no evidence in the records where there was dental trauma, nor did Ifind
anyevidence
that any procedure was performed where his maxillary teeth were
compromised as
to the longevity or prognosis for retention.
Id.
In a May 2007 addendum, the VA dentist who had conducted the June 2005
dental
examination opined that there was no evidence in the appellant's records
that his loss of teeth
resulted from his nasal surgery. R. at 281. The examiner further opined
that "[i]t is not likely . . .
that any tooth loss in his oral cavity would be the result of his nasal
surgery or sinus surgery." Id.
On December 14, 2009, the Board issued its decision on appeal, in which it
denied entitlement to
service connection for lost teeth, to include as secondary to a
septoturbinoplasty. R. at 3-11. This
appeal followed.
II. ANALYSIS
The appellant's sole argument on appeal is that the hearing officer at the
Board hearing failed
to explain the issue of medical nexus evidence and "failed to suggest the
submission of evidence
overlooked, i.e., written reports regarding medical nexus evidence, and
which would be
advantageous to [his] position." Appellant's Brief (Br.) at 4-12. He
contends that this failure was
prejudicial because "the harmless error conclusion would require the [
Court] to resolve an issue of
fact that the Board never resolved." Appellant's Br. at 11. He further
contends that it would be "pure
speculation for the Court to conclude that the Hearing Officer complied
with 38 C.F.R. § 3.103(c)."
Appellant's Br. at 12. The Secretaryconcedes that the hearing officer did
not satisfythe duty to fully
explain the issues pursuant to § 3.103(c) and the Court's guidance.
Secretary's Br. at 12-14. He
expressly concedes that the hearing officer "does not appear to have
explained either the basis of the
RO's denial or the outstanding elements for his claim for entitlement to
service connection for tooth
loss." Secretary's Br. at 14. However, he contends that the error was not
prejudicial. Secretary's Br.
3
at 15-20. He first contends that the appellant has not pled with
sufficient particularity how the
alleged hearing officer errors prejudiced his claim. Secretary's Br. at 15.
He further contends that
the statements made by the appellant's representative at the hearing "
obviated the need for the
hearing officer to explain the basis of the RO's denial." Id. Regarding
the appellant's opportunity
to submit evidence after the hearing, the Secretarynotes that VA developed
the appellant's claim for
seven years after the Board hearing, to include the provision of a VA
examination evaluating
whether there was a connection between the loss of teeth and service or
his service-connected
septum surgery. Secretary's Br. at 19, citing R. at 281, 411.
Under38C.F.R.§3.103(c)(2)(2010),"[i]t is
theresponsibilityoftheemployeeoremployees
conducting the hearings to explain fully the issues and suggest the
submission of evidence which the
claimant mayhave overlooked and which would be ofadvantageto the
claimant's position." In order
to follow this regulatory mandate, a hearing officer "cannot ignore a lack
of evidence in the record
on a material issue and not suggest its submission, unless the record (or
the claimant at hearing)
clearly shows that such evidence is not available." Previous DocumentBryantNext Hit v. Shinseki, 23
Vet.App. 488, 493-94
(2010) (per curiam). In regard to the duty to explain issues fully, the
Court has stated that
when the RO has denied a disability claim because there is no current
disability, no
nexus to service, or no incident in service, etc., then the Board hearing
officer should
explain that the claim can be substantiated only when the claimed
disability is shown
to exist and shown to be caused by an injury or disease in service, and
the Board
hearing officer's explanation and discussion should be centered on these
issues.
Id. at 496. In regard to the duty to suggest the submission of overlooked
evidence, the Court in
Previous HitBryantNext Hit clarified that "nothing in the regulation limits the Secretary's
duties to advise the claimant to
submit evidence only to those situations when the existence of such
evidence is raised at the
hearing"; rather,thehearingofficer"
mustsuggestthesubmissionofevidencewhentestimonyduring
the hearing indicates that it exists (or could be reduced to writing) but
is not of record." Id. at 496-97.
Review of the June 2002 hearing transcript confirms, as conceded by the
Secretary, that the hearing officer failed to fulfill his duty to fully explain the issues. Secretary's Br. at 11-12; R. at 544-74. Regarding the duty to suggest the submission of overlooked evidence, this depends on what evidence is needed to substantiate the issue. Bryant, 23 Vet.App. at 496-97. Here, the evidence
4
lacking was a nexus between the appellant's loss of teeth and his service-
connected deviated septum.
As pointed out by the Secretary, the appellant's testimony did not
indicate that evidence of medical nexus existed. Secretary'sBr.at 16-17. Rather, the appellant testified that no physician had rendered an opinion that his loss of teeth was due to his surgery. R. at 554. Pursuant to Bryant, and contrary
to the Secretary's argument (Secretary's Br. at 13), the hearing officer
erred in failing to suggest to the appellant that he should secure and submit medical evidence on the key issue of nexus Bryant, 23 Vet.App. at 499.
Having found error, the Court must determine whether any resulting error
was prejudicial to the appellant. Bryant, 23 Vet.App. at 498; see 38 U.S.C. § 7261(b)(2) (providing that the Court shall
take due account of the rule of prejudicial error); Mayfield v. Nicholson,
19 Vet.App. 103, 116
(2005) (stating that the key to determining whether an error is
prejudicial is the effect of the error
on the essential fairness of the adjudication),rev'd on other grounds, 444F.3d1328(
Fed.Cir. 2006).
Here, it is clear from statements of the appellant's representative at the
June 2002 hearing that the
appellant had actual knowledge that his claim was denied due to the
absence of nexus evidence
relating the loss of his teeth to his service-connected deviated septum. R.
at 553. Moreover, there
was no indication that the appellant had information to submit regarding
the issue of nexus. R. at
544-74. Accordingly, the Court holds that under the facts of this case the
hearing officer's failure
to explain the need for a nexus opinion was harmless. In addition, because
VA developed the
appellant's claimfurther,to includetheprovision of a 2007 VAexamination
thatincludedanopinion
concerning the issue of whether the appellant's maxillarytooth loss was
related to the surgery for his
service-connected deviated septum (R. at 281, 411), the appellant was not
prejudiced by the hearing
officer's failure to suggest the submission of such evidence. See Previous HitBryantNext Hit,
23 Vet.App. at 498-99; see also R. at 281, 621. Based on the foregoing, the appellant has not met his burden to demonstrate prejudicial error. See Bryant, supra; Marciniak v. Brown, 10 Vet.App. 198, 201 (1997).
III. CONCLUSION
Upon consideration of the foregoing,the submissions of the parties,
and the record on appeal,
the December 14, 2009, Board decision is AFFIRMED.
DATED: March 25, 2011
5
Copies to:
R. Edward Bates, Esq.
VA General Counsel (027)
6
Single Judge Application Shade v. Shinseki, 24 Vet. App., Credible Lay Evidence to Reopen
Excerpt from decision below:
"After the briefs were submitted in this case, the Court issued a decision
that conclusively establishes the Board's finding on new and material evidence to be in error. In Shade v. Shinseki, 24 Vet.App. 110 (2010), the veteran had previously been denied service connection for lack of evidence of a current disability and for lack of nexus evidence. When he later submitted a medical diagnosis of the condition for which he sought service connection, both VA and the Board declined to reopen his case because there was still no nexus evidence in the record.
The Court held that the evidence submitted related to an unestablished fact, the existence of a current disability, as required by the Secretary's regulation as properly interpreted. The Court observed that the language of the regulation "does not require new and material evidence as to each previously unproven element of
a claim." Id. at 120. The concurrence reasoned that "[n]ew and material evidence is evidence that–if found credible–would either entitle the claimant to benefits or to some further assistance from the Secretary in gathering evidence." Shade, 24 Vet.App. at 124 (Lance, J., concurring). If anything, the facts of this case are more favorable to the appellant than the facts of Shade.
Here, there was only one stated reason for the previous denial, and the
appellant submitted evidence relevant to that reason. Accepting the sister's lay statement as credible, as required at this stage of the proceedings, see Justus. supra, it constitutes evidence that the appellant's anxiety symptoms did
not preexist service but manfested themselves on his return from service.
Coupled with the appellant's statements that his symptoms began in service, there is
evidence relating to two of the requirements for service connection by continuity of symptomatology. See Barr v. Nicholson, 21 Vet.App. 303, 307 (2007) (citing Savage v. Gober, 10 Vet.App. 488, 495-96 (1997)) (continuity of
3
symptomatology may establish service connection if a claimant can
demonstrate (1) that 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). Among the types evidence that suffice
to require a VA medical opinion is "credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation." McLendon v. Nicholson, 20 Vet.App. 79, 83 (2006).
----------------------------------------------------
Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 09-3543
RANDIE L. BREDAHL, 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. Army veteran Randie L. Bredahl appeals through counsel
from a June
11, 2009, Board of Veterans' Appeals (Board) decision that declined to
reopen a previously denied
service-connection claim for anxiety disorder and denied his service-
connection claims for a left
shoulder and low back disabilities. For the following reasons, the Court
will affirm in part and
reverse in part the Board's June 2009 decision, and remand a matter for
further proceedings
consistent with this decision.
I. ANALYSIS
A.
Request 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.
38 C.F.R. § 3.156(a) (2010). New evidence is presumed credible for
purposes of determining whether the claim should be reopened. Justus v. Principi, 3 Vet.App. 510, 513 (1992). "[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).
In this case the Board found that "[s]ervice connection for anxiety
disorder was last finally denied by an unappealed rating decision by the [regional office] in December 2005." Record (R.) at 5. The stated reason for that denial was that "the evidence continues to show this condition was not incurred in or aggravated by military service." R. at 250. Similarly, the notice letter issued
pursuant to the requirements of the Veterans Claims Assistance Act of 2000 (
VCAA), Pub. L. No. 106-475, § 3(a), 114 Stat. 2096 (codified in part at 38 U.S.C. § 5103(a
)), stated: "Your claim was
previously denied because the condition was not incurred in or aggravated
by military service.
Therefore, the evidence you submit must relate to this fact."1
R. at 228.
The Board listed the additional evidence received since the last (December
2005) denial as
"a statement from the Veteran's sister, VA outpatient notes for 2006, and
numerous private medical
records, including some duplicates from 1983 to 2006." R. at 10. The
record further includes a
mental status report dated July 5, 2006, prepared for purposes of a Social
Security disability claim,
which the Board did not discuss.
The laystatement bythe appellant's sister stated that before service "he
seemed happy& with
a good outlook on life and what was ahead for him in life." R. at 247. She
went on to describe his
severe anxiety symptoms since his return from service. See R. at 237-41.
Furthermore, the Social
Securityexamination recorded the appellant's statements that trace the
onset of his anxietyproblems
1
The appellant additionally challenges the sufficiency of the VCAA notice
letter in a footnote. Because the Court is remanding this claim for a different reason, it need not reach this issue. See Mahl v. Principi, 15 Vet.App. 37,
38 (2001) (per curiam order) ("[I]f the proper remedy is a remand, there is no need to analyze and discuss all the other claimed errors that would result in a remedy no broader than a remand.").
2
to various stressors during his service in Germany. This evidence clearly
relates to the issue of in-service incurrence.
The Board, however, focused on the lack of nexus evidence in the record.
It found that "the additional evidence is not new and material, since it does not include [a] competent medical opinion linking the Veteran's current anxiety disorder to service." R. at 12. The Board viewed the lay statement from the appellant's sister as having "little probative value as to the nature or etiology of
[the appellant's] current psychiatric disorder." R. at 11. The discussion
of the new medical treatment notes was confined to the observation that they only dealt with treatment of psychiatric problems since 1999.
After the briefs were submitted in this case, the Court issued a decision
that conclusively establishes the Board's finding on new and material evidence to be in error. In Shade v. Shinseki, 24 Vet.App. 110 (2010), the veteran had previously been denied service connection for lack of evidence of a current disability and for lack of nexus evidence. When he later submitted a medical
diagnosis of the condition for which he sought service connection, both VA
and the Board declined to reopen his case because there was still no nexus evidence in the record.
The Court held that the evidence submitted related to an unestablished fact, the existence of a current disability, as required by the Secretary's regulation as properly interpreted. The Court observed that the language of the regulation "does not require new and material evidence as to each previously unproven element of
a claim." Id. at 120. The concurrence reasoned that "[n]ew and material evidence is evidence that–if found credible–would either entitle the claimant to benefits or to some further assistance from the Secretary in gathering evidence." Shade, 24 Vet.App. at 124 (Lance, J., concurring). If anything, the facts of this case are more favorable to the appellant than the facts of Shade.
Here, there was only one stated reason for the previous denial, and the
appellant submitted evidence relevant to that reason. Accepting the sister's lay statement as credible, as required at this stage of the proceedings, see Justus. supra, it constitutes evidence that the appellant's anxiety symptoms did not preexist service but manfested themselves on his return from service.
Coupled with the appellant's statements that his symptoms began in service, there is
evidence relating to two of the requirements for service connection by continuity of symptomatology. See Barr v. Nicholson, 21 Vet.App. 303, 307 (2007) (citing Savage v. Gober, 10 Vet.App. 488, 495-96 (1997)) (continuity of
3
symptomatology may establish service connection if a claimant can
demonstrate (1) that 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). Among the types evidence that suffice
to require a VA medical opinion is "credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation." McLendon v. Nicholson, 20 Vet.App. 79, 83 (2006).
The Court is unable to conclude that "the remaining element, a nexus between the current diagnosis and [service] could not be established were [the appellant]
provided a VA medical examination." Shade, 24 Vet.App. at 120. Therefore, the Court will reverse the Board's conclusion that "[n]ew and material evidence has not been received to reopen the claim of service connection for anxiety disorder " (R. at 5), and remand with instructions to reopen this claim. The Board will
have to consider whether a VA nexus opinion should be obtained on remand.
B. Service-Connection Claims
The appellant argues that a remand is required with respect to his left
shoulder and low back
claims because VA violated its duty to assist when it failed to provide
him with medical
examinations addressing the etiology of each condition. This Court has
held that in disability
compensation claims
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, injury, 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. McLendon, 20 Vet.App. at 81; 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.
Contrary to the appellant's contention, the Board found that his "assertions of chronic left shoulder and low back problems since service [are] not supported by the contemporaneous record and therefore, [are] not credible." R. at 16. The appellant argues that this reasoning contravenes
4
Buchanan v.Nicholson,451F.3d1331,1336(Fed. Cir. 2006)( absence of contemporaneous medical records, without more, does not establish lack of credibility for lay
statements of medical history).
The Court's review of the record reveals that the Board made its
credibility determination
based on the entire record. The Board noted that the only relevant service
medical record pertains
to treatment of an upper back and right shoulder strain and "do[es] not
show any complaints, treatment, abnormalities, or diagnosis referable to any left shoulder or low back problems." R. at 14; see also R. at 380. The Board further noted that the separation examination report recorded no complaints or abnormalities related to shoulder or back problems. After service, the Board noted,
despite filing two earlier service-connection claims, the appellant made
no mention of a connection between low back problems and service until 2006. Finally, the Board noted that the appellant made several statements to treating physicians relating his back problems to various other incidents over
the years, including being thrown from horses while growing up on a farm,
riding on an ATV that flipped over, and incidents working in construction.
The Court discerns no error in the Board's determination that no credible
evidence supported a link between the appellant's current right shoulder and lower back conditions and service. The appellant acknowledges the in-service reference to "upper back strain" (R. at 380), but argues that "the limits of 'upper' are not defined in the medical notes." Appellant's Brief at 20. In the Court's
view, the English language is not so elastic as to include the lower back
in the concept of an "upper back strain." The Court concludes that the appellant has not produced sufficient evidence to satisfy even the low threshold of evidence required to establish a link between the current condition and service. See McLendon, supra. The Court will therefore affirm the Board's findings as to the lower back and left shoulder claims.
II. CONCLUSION
On consideration of the foregoing, the Court AFFIRMS the Board's June 11,
2009, decision
with respect to its determination that the appellant was not entitled to
service connection for a left
shoulder and a lower back condition, REVERSES the Board's determination
that the appellant
submitted no new and material evidence to reopen the anxiety claim, and
REMANDS that claim for
further proceedings consistent with this decision.
5
In pursuing his anxiety claim on remand, the appellant will be free to
submit additional
evidence and argument in support of the claim, 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: March 31, 2011
Copies to:
John S. Berry, Esq.
VA General Counsel (027)
6
"After the briefs were submitted in this case, the Court issued a decision
that conclusively establishes the Board's finding on new and material evidence to be in error. In Shade v. Shinseki, 24 Vet.App. 110 (2010), the veteran had previously been denied service connection for lack of evidence of a current disability and for lack of nexus evidence. When he later submitted a medical diagnosis of the condition for which he sought service connection, both VA and the Board declined to reopen his case because there was still no nexus evidence in the record.
The Court held that the evidence submitted related to an unestablished fact, the existence of a current disability, as required by the Secretary's regulation as properly interpreted. The Court observed that the language of the regulation "does not require new and material evidence as to each previously unproven element of
a claim." Id. at 120. The concurrence reasoned that "[n]ew and material evidence is evidence that–if found credible–would either entitle the claimant to benefits or to some further assistance from the Secretary in gathering evidence." Shade, 24 Vet.App. at 124 (Lance, J., concurring). If anything, the facts of this case are more favorable to the appellant than the facts of Shade.
Here, there was only one stated reason for the previous denial, and the
appellant submitted evidence relevant to that reason. Accepting the sister's lay statement as credible, as required at this stage of the proceedings, see Justus. supra, it constitutes evidence that the appellant's anxiety symptoms did
not preexist service but manfested themselves on his return from service.
Coupled with the appellant's statements that his symptoms began in service, there is
evidence relating to two of the requirements for service connection by continuity of symptomatology. See Barr v. Nicholson, 21 Vet.App. 303, 307 (2007) (citing Savage v. Gober, 10 Vet.App. 488, 495-96 (1997)) (continuity of
3
symptomatology may establish service connection if a claimant can
demonstrate (1) that 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). Among the types evidence that suffice
to require a VA medical opinion is "credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation." McLendon v. Nicholson, 20 Vet.App. 79, 83 (2006).
----------------------------------------------------
Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 09-3543
RANDIE L. BREDAHL, 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. Army veteran Randie L. Bredahl appeals through counsel
from a June
11, 2009, Board of Veterans' Appeals (Board) decision that declined to
reopen a previously denied
service-connection claim for anxiety disorder and denied his service-
connection claims for a left
shoulder and low back disabilities. For the following reasons, the Court
will affirm in part and
reverse in part the Board's June 2009 decision, and remand a matter for
further proceedings
consistent with this decision.
I. ANALYSIS
A.
Request 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.
38 C.F.R. § 3.156(a) (2010). New evidence is presumed credible for
purposes of determining whether the claim should be reopened. Justus v. Principi, 3 Vet.App. 510, 513 (1992). "[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).
In this case the Board found that "[s]ervice connection for anxiety
disorder was last finally denied by an unappealed rating decision by the [regional office] in December 2005." Record (R.) at 5. The stated reason for that denial was that "the evidence continues to show this condition was not incurred in or aggravated by military service." R. at 250. Similarly, the notice letter issued
pursuant to the requirements of the Veterans Claims Assistance Act of 2000 (
VCAA), Pub. L. No. 106-475, § 3(a), 114 Stat. 2096 (codified in part at 38 U.S.C. § 5103(a
)), stated: "Your claim was
previously denied because the condition was not incurred in or aggravated
by military service.
Therefore, the evidence you submit must relate to this fact."1
R. at 228.
The Board listed the additional evidence received since the last (December
2005) denial as
"a statement from the Veteran's sister, VA outpatient notes for 2006, and
numerous private medical
records, including some duplicates from 1983 to 2006." R. at 10. The
record further includes a
mental status report dated July 5, 2006, prepared for purposes of a Social
Security disability claim,
which the Board did not discuss.
The laystatement bythe appellant's sister stated that before service "he
seemed happy& with
a good outlook on life and what was ahead for him in life." R. at 247. She
went on to describe his
severe anxiety symptoms since his return from service. See R. at 237-41.
Furthermore, the Social
Securityexamination recorded the appellant's statements that trace the
onset of his anxietyproblems
1
The appellant additionally challenges the sufficiency of the VCAA notice
letter in a footnote. Because the Court is remanding this claim for a different reason, it need not reach this issue. See Mahl v. Principi, 15 Vet.App. 37,
38 (2001) (per curiam order) ("[I]f the proper remedy is a remand, there is no need to analyze and discuss all the other claimed errors that would result in a remedy no broader than a remand.").
2
to various stressors during his service in Germany. This evidence clearly
relates to the issue of in-service incurrence.
The Board, however, focused on the lack of nexus evidence in the record.
It found that "the additional evidence is not new and material, since it does not include [a] competent medical opinion linking the Veteran's current anxiety disorder to service." R. at 12. The Board viewed the lay statement from the appellant's sister as having "little probative value as to the nature or etiology of
[the appellant's] current psychiatric disorder." R. at 11. The discussion
of the new medical treatment notes was confined to the observation that they only dealt with treatment of psychiatric problems since 1999.
After the briefs were submitted in this case, the Court issued a decision
that conclusively establishes the Board's finding on new and material evidence to be in error. In Shade v. Shinseki, 24 Vet.App. 110 (2010), the veteran had previously been denied service connection for lack of evidence of a current disability and for lack of nexus evidence. When he later submitted a medical
diagnosis of the condition for which he sought service connection, both VA
and the Board declined to reopen his case because there was still no nexus evidence in the record.
The Court held that the evidence submitted related to an unestablished fact, the existence of a current disability, as required by the Secretary's regulation as properly interpreted. The Court observed that the language of the regulation "does not require new and material evidence as to each previously unproven element of
a claim." Id. at 120. The concurrence reasoned that "[n]ew and material evidence is evidence that–if found credible–would either entitle the claimant to benefits or to some further assistance from the Secretary in gathering evidence." Shade, 24 Vet.App. at 124 (Lance, J., concurring). If anything, the facts of this case are more favorable to the appellant than the facts of Shade.
Here, there was only one stated reason for the previous denial, and the
appellant submitted evidence relevant to that reason. Accepting the sister's lay statement as credible, as required at this stage of the proceedings, see Justus. supra, it constitutes evidence that the appellant's anxiety symptoms did not preexist service but manfested themselves on his return from service.
Coupled with the appellant's statements that his symptoms began in service, there is
evidence relating to two of the requirements for service connection by continuity of symptomatology. See Barr v. Nicholson, 21 Vet.App. 303, 307 (2007) (citing Savage v. Gober, 10 Vet.App. 488, 495-96 (1997)) (continuity of
3
symptomatology may establish service connection if a claimant can
demonstrate (1) that 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). Among the types evidence that suffice
to require a VA medical opinion is "credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation." McLendon v. Nicholson, 20 Vet.App. 79, 83 (2006).
The Court is unable to conclude that "the remaining element, a nexus between the current diagnosis and [service] could not be established were [the appellant]
provided a VA medical examination." Shade, 24 Vet.App. at 120. Therefore, the Court will reverse the Board's conclusion that "[n]ew and material evidence has not been received to reopen the claim of service connection for anxiety disorder " (R. at 5), and remand with instructions to reopen this claim. The Board will
have to consider whether a VA nexus opinion should be obtained on remand.
B. Service-Connection Claims
The appellant argues that a remand is required with respect to his left
shoulder and low back
claims because VA violated its duty to assist when it failed to provide
him with medical
examinations addressing the etiology of each condition. This Court has
held that in disability
compensation claims
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, injury, 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. McLendon, 20 Vet.App. at 81; 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.
Contrary to the appellant's contention, the Board found that his "assertions of chronic left shoulder and low back problems since service [are] not supported by the contemporaneous record and therefore, [are] not credible." R. at 16. The appellant argues that this reasoning contravenes
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Buchanan v.Nicholson,451F.3d1331,1336(Fed. Cir. 2006)( absence of contemporaneous medical records, without more, does not establish lack of credibility for lay
statements of medical history).
The Court's review of the record reveals that the Board made its
credibility determination
based on the entire record. The Board noted that the only relevant service
medical record pertains
to treatment of an upper back and right shoulder strain and "do[es] not
show any complaints, treatment, abnormalities, or diagnosis referable to any left shoulder or low back problems." R. at 14; see also R. at 380. The Board further noted that the separation examination report recorded no complaints or abnormalities related to shoulder or back problems. After service, the Board noted,
despite filing two earlier service-connection claims, the appellant made
no mention of a connection between low back problems and service until 2006. Finally, the Board noted that the appellant made several statements to treating physicians relating his back problems to various other incidents over
the years, including being thrown from horses while growing up on a farm,
riding on an ATV that flipped over, and incidents working in construction.
The Court discerns no error in the Board's determination that no credible
evidence supported a link between the appellant's current right shoulder and lower back conditions and service. The appellant acknowledges the in-service reference to "upper back strain" (R. at 380), but argues that "the limits of 'upper' are not defined in the medical notes." Appellant's Brief at 20. In the Court's
view, the English language is not so elastic as to include the lower back
in the concept of an "upper back strain." The Court concludes that the appellant has not produced sufficient evidence to satisfy even the low threshold of evidence required to establish a link between the current condition and service. See McLendon, supra. The Court will therefore affirm the Board's findings as to the lower back and left shoulder claims.
II. CONCLUSION
On consideration of the foregoing, the Court AFFIRMS the Board's June 11,
2009, decision
with respect to its determination that the appellant was not entitled to
service connection for a left
shoulder and a lower back condition, REVERSES the Board's determination
that the appellant
submitted no new and material evidence to reopen the anxiety claim, and
REMANDS that claim for
further proceedings consistent with this decision.
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In pursuing his anxiety claim on remand, the appellant will be free to
submit additional
evidence and argument in support of the claim, 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: March 31, 2011
Copies to:
John S. Berry, Esq.
VA General Counsel (027)
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