Saturday, July 9, 2011

Single Judge Application, Lay Evidence in Continuity of Symptomatology, Caluza v. Brown, 7 Vet.App.(1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996)

Excerpt from decision below:
"The Board's failure to make an assessment of the lay evidence for purposes of
continuity of symptomatology renders inadequate the Board's statement of reasons or bases. See Caluza v.Brown, 7 Vet.App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (table) (requiring the Board to analyze the credibility and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence
favorable to the claimant). The Court's review of the matter is frustrated,
and remand is required. See Tucker v. West, 11 Vet.App. 369, 374 (1998)."
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----------------------------------------------------


Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 08-2985
LANI G. MILLER, 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. ArmyveteranLaniG.Miller appeals through
counselfromaSeptember
5, 2008, Board of Veterans' Appeals (Board) decision that denied him
service connection for a low
back disability. For the reasons stated below, the Court will set aside
the September 2008 Board
decision and remand a matter for further proceedings consistent with this
decision.
Mr. Miller served from April 1961 to April 1966. He asserts that, during
service, he fell into
a self-propelled howitzer, landing on his low back. He further contends
that he continued to
experience pain following service, but did not seek treatment until 1995.
At that time, he was shown
to have spondylosis and disc space narrowing at the L4-5 level, and mild
disc space narrowing at the
L5-S1 level.
This case centers around only one element of service connection. The Board
decision here
on appeal does not dispute Mr. Miller's current low back disability or
that the incident occurred in
service. Theissuein contention,therefore,is whetherthe evidence
establishes a connection between
Mr. Miller's disability and the Previous DocumentinjuryNext Hit he suffered during service. See
Shedden v. Principi, 381 F.3d
1163, 1166-67 (Fed. Cir. 2004) (requiring a service-connection claim to be
supported by evidence
demonstrating "(1) the existence of a present disability; (2) in-service
incurrence or aggravation of


a disease or Previous HitinjuryNext Hit; and (3) a causal relationship between the present
disability and the disease or
Previous HitinjuryNext Hit incurred or aggravated during service"); see also 38 C.F.R. § 3.
303(b) (2010) (allowing for
service connection on a showing of continuity of symptomatology). The
Board determined that it
did not, and this appeal ensued.
I. ANALYSIS
A. Medical Evidence
On appeal, Mr. Miller first asserts that the Board improperly discredited
favorable medical
opinions and improperly obtained and relied on a negative VA medical
opinion in 2008.
1. Favorable Medical Evidence
Here, the Board acknowledged that a May 1997 VA opinion, a September 1997
private
physician's statement, and a July 1999 VA opinion all tended to support a
link between Mr. Miller's
disability and service. However, in weighing the medical evidence, the
Board concluded that
[t]he problem with the VA examiner's opinions is that the May 1997
examiner used
the word "probably" and the July1999 examiner used the word "might" in
describing
whether there was a relationship between the veteran's current back
disability and
service. The use of such equivocal language regarding a link between
service and a
present disability makes an examiner's statement speculative in nature.
R. at 14. With regard to the 1997 private physician's statement, the Board
did not specifically
discount it. The Board did, however, favor the 2008 VA opinion over all of
the opinions because
it included supporting rationale and a detailed opinion, was based on a
review of service records and
postservice evidence (including the nearly 30 years between service and
the initial treatment for a
back disability), and did not use equivocal language.
With regard to Mr. Miller's assertion that the Board erred as a matter of
law when it
concluded that the use of the words "probably" and "might," respectively,
rendered the May 1997
and July 1999 VA reports speculative, the Court partially agrees. The word "
probably" implies a
degree of certainty at least as much as the "as likely as not" standard.
With regard to the term
"might," however, the Court concludes that the term is more akin to the
terms "could" or "may,"
which the Court has found too speculative to establish medical nexus. See
Bloom v. West, 12
Vet.App. 185, 187 (1999) (finding that "could" in medical opinion without
additional support for
2


conclusion is speculative); Tirpak v. Derwinski, 2 Vet.App. 609, 611 (
1992) (holding that medical
opinion stating "veteran's death may or may not have been averted" is
speculative); see also Obert
v. Brown, 5 Vet.App. 30, 33 (1993).
Regardless, even if the Board erred in deeming the examinations
speculative on the basis of
their inclusion of those single words, the Court deems the error harmless.
See 38 U.S.C.
§ 7261(b)(2) (requiring the Court to "take due account of the rule of
prejudicial error"); Conway v.
Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004). In view of the context of
both the May 1997 and
July 1999 VA opinions, the Court cannot discern error in the Board's
overall characterization of the
reports as speculative on the issue of etiology. Bloom, 12 Vet.App. at 187 (
analyzing the context of
an opinion to determine whether it is speculative because "[w]hat is
speculative in one context may
be less so in another"). In the May 1997 opinion, Dr. James Webber stated,
with regard to Mr.
Miller's assertion that his back problems were related to an in-service
incident:
I feel there is really no adequate way to substantiate this other than to
say that he has
had progressive low back problems since the alleged fall in 1963. He has
evidence
on examination today to suggest continuing low back problems . . . . I
feel that this
claim is a difficult one to evaluate from my standpoint and . . . I feel
that this case is
warranted in saying that the low back pain is probablydirectly related to
his previous
Previous HitinjuryNext Hit where he fell onto the howitzer.
R. at 649-50.
The July 1999 VA examiner was similarly equivocal on the issue of etiology.
Therein, the
examiner stated that although Mr. Miller had service records with him, "
they really don't deal with
the etiology of [his current back Previous HitinjuryNext Hit] at all. . . . Although I am not
an expert on back injuries, I
think it not unreasonable to conclude that some or all of his current back
problems might be related
to the [in-service] Previous HitinjuryNext Hit that he describes." R. at 447.
As stated previously, the Board did not expressly discount the September
1997 opinion, but
did not rely on it. To the extent that it found the evidence of no
probative value, the Court again
finds the error harmless. See 38 U.S.C. § 7261(b)(2); Conway, supra. The
examiner stated: "[Mr.
Miller] had a fall into a howitzer in 1963, and most of his subsequent
lower back difficulties were
a result of that. There is no other previous history of falls. He has been
seen by Dr. Web[b]er from
the VA system who agreed that this was a service connected Previous HitinjuryNext Hit and all
related back to the 1963
3


incident." R. at 609. The examiner provided no rationale for his
conclusion other than his assertion
that there was no historyof falls (but he does not explain how "low back
difficulty" could only result
from a fall) and that another examiner found the Previous HitinjuryNext Hit service connected.
Without more, the
conclusory opinion is not entitled to probative value for the purpose of
establishing etiology. See
Nieves-Rodriguez v. Peake, 22 Vet.App. 295, 304 (2008).
Because these favorable opinions were insufficient for the purpose of
establishing etiology,
it was not error for the Board to discount them and for VA to seek the
2008 VA medical opinion on
which the Board ultimately relied.
2. Negative Medical Evidence
Mr. Miller also contests the adequacy of the 2008 VA opinion that deemed
it "unlikely that
any current diagnosed chronic low back disorder is causally related to an [
in-service] event." R. at
129. In pertinent part, Mr. Miller contends that the physician failed to
discuss continuity of
symtomatology, stated generalities, included speculation, and relied on
the absence of corroborating
medical evidence. Appellant's Brief (Br.) at 17. The Court views these
arguments as unpersuasive.
A medical opinion is adequate where it is based upon the veteran's medical
history and
examinations and describes the disability in sufficient detail. See
D'Aries v. Peake, 22 Vet.App. 97,
104 (2008). Here, the examiner was provided a copy of the claims file, and
there is no indication
that he was not aware of what was in it, including the lay statements.
Although the physician did
not specifically address the lay statements, he was under no obligation to
do so. See Roberson v.
Shinseki,22Vet.App. 358, 366 (2009) ("A medical examiner neednotdiscuss
allevidencefavorable
to an appellant's claim when rendering an opinion.").
As to Mr. Miller's contention that the report included some generalities
and speculation, the
Court disagrees that this renders the examination inadequate, particularly
when the basis for the
physician's opinion is clear. See Nieves-Rodriguez v. Peake, 22 Vet.App.
295, 301 (2008) (requiring
a medical report to contain clear conclusions and supporting data, as well
as "a reasoned medical
explanation" connecting the data and conclusions). Although the opinion
made some general
statements such as, "[t]he stenosis which necessitated [a lumbar
laminectomy] is most often related
to age and degeneration rather than a distant history of trauma," and "[l]
ow back pain is a very
common phenomenon and is most often unrelated to anydistant history of
soft-tissue trauma," these
4


general statements supported the physician's ultimate conclusion which
was not based on
generalities. R. at 129. Specifically, the physician noted that there was
no evidence of any
permanent damage such as fracture or dislocation and that Mr. Miller's
condition was "unlikely to
be caused by a distant history of trauma without major permanent injuries
such as fracture,
dislocation, or instability." Id. Because the physician provided a
specific and sufficient explanation
of the basis for his medical conclusion, the Court is unconvinced that his
general statements
detracted from the value of the opinion.
Mr. Miller also takes issue with the examiner's reliance on the lack of
corroborating medical
records. He cites no law for the proposition that a physician is
prohibited from relying on the lack
of evidence of an Previous HitinjuryNext Hit in rendering an assessment, and the Court is
unaware of any. The Court
deems this argument meritless. See Locklear v. Nicholson, 20 Vet.App. 410,
416 (2006) (holding
that the Court will not entertain underdeveloped arguments); Hilkert v.
West, 12 Vet.App. 145, 151
(1999) (en banc) (requiring the appellant to demonstrate error on appeal).
In sum, the Court is unconvinced that the Board clearly erred in its
reliance on the 2008 VA
medical opinion. See Nolen v. Gober, 14 Vet.App. 183, 184 (2000) (
reviewing the adequacy of a
medical examination under the "clearly erroneous" standard).
B. Continuity of Symptomatology
Mr.MilleralsoassertsthattheBoardfailedto address his
continuityofsymptomatologyafter
service. Continuity of 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 thepresent disabilityandthepostservicesymptomatology. Barr v.
Nicholson,21 Vet.App.
303, 307 (2007) (citing Savage v. Gober, 10 Vet.App. 488, 495-96 (1997)).
Here, the Board acknowledged Mr. Miller's assertions that his current back
disability began
in service and determined that medical evidence was required to establish
a link between the in-
service incident and Mr. Miller's current disorder. However, the Board did
not address Mr. Miller's
lay statements and those of his parents as they pertained to continuity of
symptomatology. In that
regard, the Board is obligated to "determin[e] whether lay evidence is
credible in and of itself."
Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006).
5


To the extent that the Board relied on the lack of contemporaneous
medical evidence to
implicitly discredit Mr. Miller's contentions, "symptoms, not treatment,
are the essence of any
evidence of continuity of symptomatology." Savage, 10 Vet.App. at 496; see
R. at 15 (Board's
statement that it could not "help but notice the lapse of approximately
three decades after the Previous HitinjuryNext Document
the veteran has described in service [and the first post-treatment record
documenting a low back
problem]"). In addition, although the Board mayweigh the lack of medical
evidence, the U.S. Court
of Appeals for the Federal Circuit has instructed that
[the Board] cannot determine that lay evidence lacks credibility merely
because it is
unaccompanied by contemporaneous medical evidence. If the Board concludes
that
the layevidence presented bya veteran is credible and ultimately competent,
the lack
of contemporaneous medical evidence should not be an absolute bar to the
veteran's
abilityto prove his claim of entitlement to disabilitybenefits based on
that competent
lay evidence.
Buchanan, 451 F.3d at 1337.
Consequently, a finding regarding the competency and credibility of the
lay evidence is
critical in this case so that the Board may weigh it against other
evidence of record. Notably, the
three medical opinions that the Board discounted for purposes of
establishing etiologyclearlyfound
credible Mr. Miller's assertions of continuing back pain, and the
examination on which the Board
ultimatelyrelied rejected a finding of nexus but did not address
layevidence of continuing pain. The
Board's failure to make an assessment of the lay evidence for purposes of
continuity of
symptomatologyrenders inadequate the Board's statement ofreasons orbases.
SeeCaluza v.Brown,
7 Vet.App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (table) (
requiring the Board to
analyze the credibility and probative value of the evidence, account for
the evidence that it finds to
be persuasive or unpersuasive, and provide the reasons for its rejection
of any material evidence
favorable to the claimant). The Court's review of the matter is frustrated,
and remand is required.
See Tucker v. West, 11 Vet.App. 369, 374 (1998).
C. Pending Motions
Finally, Mr. Miller argues that the Board erroneously issued its decision
while a PrivacyAct
request and motion for extension of time in order to obtain the results of
the Privacy Act request
were pending. The Secretary responds that VA granted an extension of time
and provided the
6


documents requested in the privacyact request. After receiving those
documents, Mr. Miller sought
an additional 90 days, mistakenly asserting that he had not received all
documents from the Privacy
Act request. See Appellant's Reply Br. at 12. The Secretary argues that
any error in the Board
adjudicating the claim after all documents were provided was not
prejudicial to Mr. Miller. The
Court agrees that Mr. Miller has not persuasively shown how he was
prejudiced in this regard. In
any view of the matter, Mr. Miller will have the opportunity to present
additional evidence and
arguments to the Board in pursuing his claim on remand, and the Board must
address such argument
and evidence. See Kay v. Principi, 16 Vet.App. 529, 534 (2002).
II. CONCLUSION
On consideration of the foregoing, the Court SETS ASIDE the Board's
September 5, 2008,
decision and REMANDS the service-connection claim for a low back
disability for further
proceedings consistent with this decision. The Board shall proceed
expeditiously, in accordance
with 38 U.S.C. §§ 5109B, 7112 (requiring Secretaryto provide for "
expeditious treatment" of claims
remanded by Board or Court).
DATED: June 30, 2011
Copies to:
Barbara J. Cook, Esq.
VA General Counsel (027)
7

Single Judge Application, Treatise Material and Prejudice, Sacks v. West, 11 Vet.App. 314, 317 (1998), Herlehy v. Brown, 4 Vet. App. 122, 123 (1993)

Excerpt from decision below:
"Further, to establish prejudice, Mr. McLaughlin would have to demonstrate
that the treatise material was specific to him and could outweigh the specific medical opinions against his claim, and he has not done so. See Sacks v. West, 11 Vet.App. 314, 317 (1998) (holding that treatise materials generally are not specific enough to show nexus); Herlehy v. Brown, 4 Vet. App. 122, 123 (1993)(discussing how, in general, medical opinions directed at specific patients are more probative than
medical treatises); see also Sanders, supra.
=====================================================

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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 10-2130
JAMES MCLAUGHLIN, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before KASOLD, Chief Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
KASOLD, Chief Judge: Veteran James McLaughlin appeals pro se that part of
a June 21,
2010, decision of the Board of Veterans' Appeals (Board) that denied
disability compensation for
asthma, autoimmune disorder,1
and systematic arthritis of multiple joints because they were not
service connected. Mr. McLaughlin asserts numerous errors with the Board's
decision, including
specific allegations that the Board (1) erred in its duty-to-assist
determination and (2) improperly
relied on the September 2009 VA medical opinion.2
The Secretary disputes these arguments.
Single-judge disposition is appropriate. Frankel v. Derwinski, 1 Vet.App.
23, 25-26 (1990). For the
reasons stated below, the Board's decision will be affirmed.
The record does not support Mr. McLaughlin's arguments. In order to
substantiate a claim
for benefits, the evidence must establish (1) a current disability, (2) an
in-service incurrence or
"Autoimmune disease" is "a disorder caused by an immune response directed
against self antigens . . . .
[S]ome diseases, such as systematic lupus erythematosus and rheumatoid
arthritis are often classified as autoimmune
diseases even though their pathogenesis is unclear." DORLAND'S ILLUSTRATED
MEDICAL DICTIONARY 536 (31st ed.
2007) [hereinafter DORLAND'S].
Mr. McLaughlin also files a motion for oral argument. As his appeal
involves no matters that require
more extensive briefing, his motion will be denied. See Winslow v. Brown,
8 Vet.App. 469, 471 (1996) (denying
motion for oral argument where Court did not believe it would materially
assist in disposition of appeal).
2
1


aggravation of a disease or Previous DocumentinjuryNext Hit, and (3) a nexus between the claimed
in-service disease or Previous HitinjuryNext Document
and the current disability. Hickson v. West, 12 Vet.App. 247, 253 (1999).
With regard to asthma, the Board found – and the record on appeal
reflects – that the
evidence did not establish a nexus between Mr. McLaughlin's current asthma
and service. See
Hickson, supra. In rendering its decision, the Board relied on a September
2009 VA medical report
that was based on a review of the record and in which the physician opined
that Mr. McLaughlin's
asthma was an allergic-type asthma, not caused by cold air, gonorrhea, or
penicillin in service. The
Board also noted that (1) there was no medical opinion contrary to the
September 2009 report, (2)
asthma symptoms began 13 years after service, (3) private treatment
records did not indicate that
cold weather in service caused Mr. McLaughlin's asthma, and (4) Mr.
McLaughlin did not
demonstrate the requisite medical expertise to posit competent testimony
regarding the medical
etiologyof his asthma, seeEspiritu v. Derwinski, 2 Vet.App. 492, 495 (1992
) (in general, laywitness
may not "offer probative evidence on a matter normally regarded to be the
province of an expert").
With regard to an autoimmune disorder or systemic arthritis, the Board
found that the
evidence demonstrated no current disability. See Hickson, supra. The Board
noted that, although
certain medical reports noted symptoms of arthritis or an arthritic
component, none contained a
specific diagnosis of autoimmune disorder, systematic arthritis, or
rheumatoid arthritis,3
and the
September2009 physician explicitlyopined that Mr. McLaughlin did not
haveautoimmunedisorder
or systemic arthritis. Further, although the record reflects a recent
increase in positive antinuclear
antibodies (ANAs),4
VA physicians in April 2009 and September 2009 both stated that the
increase
could be a false positive, and the September 2009 physician explained that "
the finding of positive
ANA in and of itself is not solely diagnostic of an autoimmune disorder."
Record (R.) at 41.
Overall, Mr. McLaughlin received two VA examinations on this issue, and a
medical examiner's
review of his medical records, none of which supports his claim. Moreover,
Mr. McLaughlin
"Rheumatoid arthritis" is "a chronic systematic disease primarily of the
joints . . . . The cause is unknown,
but autoimmune mechanisms and virus infection have been postulated."
DORLAND'S at 152-59.
"Antinuclear antibodies" are "antibodies directed against nuclear antigens;
ones against a variety of
different antigens are almost invariably found in systematic lupus
erythematosus and are frequently found in
rheumatoid arthritis." DORLAND'S at 102.
4
3
2


identifies no medical diagnosis in the record contrary to the September
2009 physician's explicit
opinion that Mr. McLaughlin has no current autoimmune disorder or
systematic arthritis.
Withregardto Mr.McLaughlin'sspecificassertions of error, although
theBoardshould have
discussed the treatise material brought to its attention by Mr. McLaughlin
at his Board hearing, Mr.
McLaughlin fails to demonstrate prejudice, and the Court cannot discern
any from the record on
appeal. See Shinseki v. Sanders, 129 S. Ct. 1696, 1706, 1708 (2009) (
holding that appellant
generallybears burdenofdemonstratingprejudiceonappeal,
andfindingprejudicenotdemonstrated
when appellant did not explain, and Court could not discern, how error
could have made difference
in outcome). The record reflects that the Board hearing officer stated
that he could review the
treatise on his own and Mr. McLaughlin does not demonstrate that the
hearing officer did not do so.
Further, to establish prejudice, Mr. McLaughlin would have to demonstrate
that the treatise material
was specific to him and could outweigh the specific medical opinions
against his claim, and he has
not done so. See Sacks v. West, 11 Vet.App. 314, 317 (1998) (holding that
treatise materials
generally are not specific enough to show nexus); Herlehy v. Brown, 4 Vet.
App. 122, 123 (1993)
(discussing how, in general, medical opinions directed at specific
patients are more probative than
medical treatises); see also Sanders, supra.
Also unsuccessful is Mr. McLaughlin's argument that the Board improperly
relied on the
September 2009 VA medical opinion because the physician (1) was not an
expert rheumatologist,
(2) was employed by the VA rather than an independent medical expert, and (
3) did not personally
examine him. First, in the absence of specific reasons why the physician
is unqualified to render a
medical opinion, the Board is permitted to presume that the physician is
competent. See Bastien v.
Shinseki, 599 F.3d 1301, 1307 (Fed. Cir. 2010). Second, the Secretary "is
explicitly and implicitly
authorized to use its own employees as experts." Bastien, supra; see also
Winsett v. West, 11
Vet.App. 420, 426 (1998) ("[W]hether the Board chooses to refer a
particular case for an
independent medical opinion is entirely within its discretion."). Third,
the Secretary is permitted to
request and grant probative weight to the medical opinions of nonexamining
physicians. See
Williams v. Brown, 4 Vet.App. 270, 273 (1993) ("Nowhere is it provided in
law or regulation that
opinions by the examining [physicians] are inherently more persuasive than
that of other competent
medical health professionals."). Moreover, although Mr. McLaughlin argues
that the September
3


2009 physician provided inadequate scientific evidence and reasoning for
his opinion, Mr.
McLaughlin has not demonstrated that he has the necessary expertise to
challenge the September
2009 physician's medical reasoning. See Hilkert v. West, 12 Vet.App. 145,
151 (1999) (en banc)
(appellant bears burden of demonstrating error on appeal); Espiritu, supra.
In sum, based on the record on appeal, the Board's specific findings that
support its service-
connection determinations are plausible and not clearly erroneous. See
Russo v. Brown, 9 Vet.App.
46, 50 (1996) (finding of service connection, or lack thereof, is a
finding of fact reviewed under the
"clearly erroneous" standard of review); Gilbert v. Derwinski, 1 Vet.App.
49, 52 (1990). Moreover,
the Board's statement of reasons or bases in support of its findings is
understandable and facilitative
of judicial review. See Allday v. Brown, 7 Vet.App. 517, 527 (1995) (
Board's statement "must be
adequate to enable a claimant to understand the precise basis for the
Board's decision, as well as to
facilitate review in this Court").
Accordingly, that part of the June, 21, 2010, decision of the Board on
appeal is AFFIRMED.
DATED: July 1, 2011
Copies to:
James McLaughlin
VA General Counsel (027)
4

Single Judge Application, Secondary Basis for Service Connection, CFR 3.310(a); Allen v. Brown, 7 Vet.App.(1995)

Excerpt from decision below:
"A disability may be service connected 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," 38 C.F.R. § 3.310(a) (2010), or (2) aggravated by an already service-connected disease or injury,"whether or not the additional impairment is itself a separate disease or injury caused by the service-connected condition," Allen v. Brown, 7 Vet.App. 439, 448 (1995) (en banc)."
======================================

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


Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 09-4375
THURMAN SUGGS, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before HAGEL, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
HAGEL,Judge: ThurmanSuggs appeals throughcounselaJuly29,2009,
BoardofVeterans'
Appeals (Board) decision denying entitlement to VA benefits for (1) a
right arm disability; (2) a left
shoulder and arm disability; (3) a right leg disability; and (4) a left
leg disability, all including as
secondary to his service-connected cervical or lumbar spine disabilities.1
Record (R.) at 3-16. The
Court has jurisdiction pursuant to 38 U.S.C. §§ 7252(a) and 7266(a) to
review the July 2009 Board
decision. The Court concludes that the Board provided an adequate
statement of its reasons or bases
for its decision and properly referred Mr. Suggs's claims for increased
disability ratings for his
service-connected cervical and lumbar spine disabilities to the regional
office. However, the Court
also concludes that the Board decision contains inconsistent findings.
Consequently, the Court will
modify the July 29, 2009, Board decision to eliminate the inconsistent
findings and will affirm the
decision as modified.
The Board also remanded Mr. Suggs's claim for entitlement to VA benefits
for headaches, including as
secondary to a service-connected cervical spine disability, and that claim
is therefore not before the Court at this time.
See 38 U.S.C. § 7266 (stating that the Court reviews only final decisions
of the Board); see also Howard v. Gober,
220 F.3d 1341, 1344 (Fed. Cir. 2000) (Board remand does not constitute a
final decision that may be appealed (citing
38 C.F.R. § 20.1100(b) (1999))).
1


I. FACTS
Mr. Suggs served on active duty in the U.S. Army from April 1982 to August
1982, from
December 1990 to May 1991, and from January 2003 to March 2004, with
additional service in the
Army National Guard.
In July1998, Mr. Suggs began experiencingbackpain that radiated to his
left arm and caused
numbness in his left shoulder and arm. He was subsequentlydiagnosed with a
ruptured cervical disc
and degenerative disease of the cervical spine and underwent a cervical
discectomy in March 1999.2
In August 1999, Mr. Suggs filed claims for VA benefits for a back
condition and a nerve condition
of the left shoulder and arm. In March 2000, a VA regional office denied
these claims, which it
characterized as claims for benefits for degenerative disc disease of the
cervical spine with pain and
tinglingoftheleftshoulderandarm,statuspost-operativecervicaldiscectomy,
anddegenerativedisc
disease of the lumbar spine, because it found there was no medical nexus
between these conditions
and his service. Mr. Suggs did not appeal that decision and it became
final.
In March 2002, Mr. Suggs reinjured his back when he slipped and fell down
a steep hill
during a training exercise. A subsequent x-ray revealed moderate to severe
degenerative changes
of his cervical spine with disc space narrowing. In March 2003, Mr. Suggs
sought treatment at an
Armymedicalcenterforhis continuingbackpainandwasdiagnosedwithcervical and
lumbar spinal
stenosis, lumbar spondylosis with degenerative disc disease, and bilateral
lower extremity
radiculopathy.3
In March 2004, Mr. Suggs filed claims for benefits for neck, lower back,
bilateral arm, and
bilateral leg conditions. In October 2004, the regional office awarded him
benefits for degenerative
disc disease of the cervical spine, status post-operative cervical
discectomy, and assigned a 20%
disability rating for that condition. However, the regional office denied
his other claims. Mr. Suggs
filed a timely Notice of Disagreement with that decision and subsequently
perfected his appeal.
A discectomy is "excision of an intervertebral disk." DORLAND'S
ILLUSTRATED MEDICAL DICTIONARY 553
(31st ed. 2007) [hereinafter DORLAND'S].
Spinal stenosis is "narrowing of the vertebral canal, nerve root canals,
or intervertebral foramina of the lumbar
spine caused by encroachment of bone upon the space. . . . The condition
may be either congenital or due to spinal
degeneration." DORLAND'S at 1795. Spondylosis is "ankylosis of a vertebral
joint." Id. at 1780. Ankylosis is
"immobility and consolidation of a joint due to disease, injury, or
surgical procedure." Id. at 94.
3
2
2


In February 2007, Mr. Suggs sought treatment at a VA medical center for
pain in his neck
and arms. A magnetic resonance image revealed severe compression of the
spinal cord and he
underwent a cervical decompressive laminoplasty.4
As a result, in May 2008, the regional office
awarded him an increased disability rating of 40% for his cervical spine
disability.
Inthemeantime,in September2007theBoardreopenedMr.Suggs's
previouslydeniedclaim
for benefits for a low back disability and remanded the claim to the
regional office for further
development, including a VA medical examination. Pursuant to this remand
order, Mr. Suggs
underwent a VA spinal examination in October 2008. At that time, Mr. Suggs
reported chronic neck
pain radiating into both arms, chronic low back pain radiating into both
legs, and weakness in his
upper and lower extremities. With respect to these complaints, the
examiner opined: "I do not think
that [Mr. Suggs] has anyseparate disabilityinvolving the upper or the
lower extremities. I think that
these are all part and parcel consistent with pain radiating from the neck
and lower back region."
R. at 60.
InJanuary2009,theregionalofficeawardedMr.
Suggsbenefitsfordegenerativediscdisease
of the lumbar spine and assigned a 20% disability rating for that
condition. In March 2009, the
regional office issued a Supplemental Statement of the Case that continued
to denyhis other claims.
In July 2009, the Board issued the decision currently on appeal, which
denied entitlement to
benefits for a right arm disability and a left shoulder and arm disability,
both including as secondary
to a service-connected cervical spine disability, as well as a right leg
disability and a left leg
disability, both including as secondary to a service-connected lumbar
spine disability. Specifically,
the Board denied these claims because it concluded that Mr. Suggs's pain
and numbness in his upper
and lower extremities were not separate disabilities but were instead
symptoms of his service-
connected cervical and lumbar spine disabilities.
A laminoplasty is an "incision completely through one lamina of a
vertebral arch with creation of a trough in
the contralateral lamina; the vertebral arch is then opened like a door,
with the trough acting as a hinge; performed to
relieve compression of the spinal cord or nerve roots." DORLAND'S at 1017.
4
3


II. ANALYSIS
A. Reasons or Bases
Mr. Suggs first argues that the Board's statement of reasons or bases for
its decision is
inadequate because it made "no clear statement as to why the evidence in
the record is insufficient
to substantiate a finding of secondaryservice connection for Mr. Suggs'[s]
disorders of the upper and
lower extremities which have been found to stem from his service[-]
connected spinal disorders."
Appellant's Brief (Br.) at 11. The Court disagrees.
A disability may be service connected 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
Previous HitinjuryNext Hit," 38 C.F.R. § 3.310(a) (2010), or (2) aggravated by an already
service-connected disease or
Previous HitinjuryNext Hit,"whether or not the additional impairment is itself a separate
disease or Previous HitinjuryNext Document caused by the
service-connected condition," Allen v. Brown, 7 Vet.App. 439, 448 (1995) (
en banc). As with any
finding or conclusion on a material issue of fact or law, the Board is
required to provide a written
statement of reasons or bases for its determination of a claimant's
entitlement to secondary service
connection. See 38 U.S.C. § 7104(d)(1). The statement must be adequate to
enable a claimant to
understand the precise basis for the Board's decision, as well as to
facilitate review in this Court. See
Gilbert v. Derwinski, 1 Vet.App. 49, 57 (1990). To comply with this
requirement, the Board must
analyze the credibility and probative value of the evidence, account for
the evidence that it finds to
be persuasive or unpersuasive, and provide the reasons for its rejection
of any material evidence
favorable to the claimant. Caluza v. Brown, 7 Vet.App. 498, 506 (1995),
aff'd per curiam, 78 F.3d
604 (Fed. Cir. 1996) (table). The Board maycommit error requiring remand
when it fails to provide
an adequate statement of its reasons or bases. See Gilbert, 1 Vet.App. at
57.
With respect to his claims for benefits for a right arm disability and a
left shoulder and arm
disability, the Board determined that these conditions were merely
symptoms of his service-
connected cervical spine disabilityand not separate disabilities in and of
themselves. Generally, "all
disabilities, including those arising from a single disease entity, are to
be rated separately, and then
all ratings are to be combined pursuant to 38 C.F.R. § 4.25." Esteban v.
Brown, 6 Vet.App. 259, 261
(1993). However, "the rating schedule may not be employed as a vehicle for
compensating a
claimant twice (or more) for the same symptomatology; such a result would
overcompensate the
4


claimant for the actual impairment of his earning capacity." Brady v.
Brown, 4 Vet.App. 203, 206
(1993). Therefore, "evaluation of the same disability" or the "same
manifestation under different
diagnoses" is to be avoided. 38 C.F.R. § 4.14 (2010). Separate disability
ratings may not be
assigned if the disabilities are duplicative of each other or involve
overlapping symptomatology.
Esteban, 6 Vet.App. at 262 (holding that separate disability ratings may
be assigned where all of a
claimant's symptoms are "distinct and separate").
In support of its determination that Mr. Suggs's right arm disabilityand
left shoulder and arm
disability are symptoms of his service-connected cervical spine disability
and not separate
disabilities, the Board stated:
No medical evidence indicates that [Mr. Suggs] has a disability involving
either
upper extremity which is separate from his service-connected cervical
spine
disability. The evidence against [Mr. Suggs]'s claims includes the
following: (i) a
November 1999 VA examination report which notes that [Mr. Suggs]'s
complaints
of pain and tingling in his left shoulder and arm originate from the neck; (
ii) a March
1999 VA treatment record which attributes [Mr. Suggs]'s symptoms in his
upper
extremities to C4-5 disc protrusion on the left; (iii) a February 2003 VA
treatment
report which lists a diagnosis of cervical radiculopathy after [Mr. Suggs]
reported
pain and weakness in his left arm and shoulder; (iv) an October 2006 VA
treatment
record which indicates that the symptoms of radiating pain from the neck
to the left
shoulder and hand are consistent with cervical radiculopathy; (v) a
January 2007
[private medical] opinion . . . that the [] cervical disc between the
third and fourth
vertebra is pressing on the spinal cord; and (vi) an October 2008 VA
examination
report which indicates that [Mr. Suggs] has no separate disability
involving either
upper extremity, and that all symptoms are due to his service-connected
cervical
spine disability.
R. at 10-11. The Board also noted that, to the extent that Mr. Suggs had
been previously diagnosed
with muscle spasms in the left shoulder region, "spasm, like pain, is
merely a symptom and does not
constitute a disability." R. at 10 (citing Sanchez-Benitez v. West, 13 Vet.
App. 282, 285 (1999),
vacated in part and dismissed in part on other grounds sub nom. Sanchez-
Benitez v. Principi,
259 F.3d 1356 (Fed. Cir. 2001)). Contrary to Mr. Suggs's contention, the
foregoing analysis by the
Board clearlyinforms him and the Court of the reason his claims were
denied–i.e., that his right arm
condition and left shoulder and arm conditions aresymptoms of his service-
connected cervical spine
disability,not
separatedisabilitiescapableofserviceconnectiononeitheradirect
orsecondarybasis.
5


Therefore, the Court concludes that the Board's statement of reasons or
bases is adequate in this
regard. See Gilbert, 1 Vet.App. at 57.
With respect to Mr. Suggs's claims for benefits for bilateral leg
disabilities, the Board
likewise determined that these conditions were merely symptoms of his
service-connected lumbar
spine disability and not separate disabilities in and of themselves.
Specifically, the Board stated:
[A] February 2003 report notes [Mr. Suggs]'s complaints of low back pain
with a
tingling sensation down the left leg; the only diagnostic impression was
lumbar
radiculopathy. An October 2004 report notes [Mr. Suggs]'s complaints of
low back
painwith radiatingpaindownboth lowerextremities. And a March 2005 report
notes
[Mr. Suggs]'s radicular symptoms in both lower extremities. All of these
records
indicate that [Mr. Suggs]'s complaints of pain and tingling in his lower
extremities
are symptoms of his service-connected low back disability. Moreover, after
reviewing all VA and private medical records in the claims file, the Board
emphasizes that none of these records indicates that [Mr. Suggs]'s
neurological
symptoms in his legs are due to a disease or disability other than his
service-connected low back disability. . . .
In addition to these treatment records, the Board also notes that the
October 2008 VA
examination report provides the most probative evidence against [Mr. Suggs]
's
claims. After reviewing the claims file and examining [Mr. Suggs]'s spine
and lower
extremities, the examiner concluded that [Mr. Suggs] has no separate
disability
involving either lower extremity, and that all symptoms are due to his
service-connected lumbar spine disability.
R. at 13. As stated above, this statement informs Mr. Suggs and the Court
of the precise basis for
the Board's decision–i.e., that his bilateral leg conditions are
symptoms of his service-connected
lumbar spine disability, not separate disabilities capable of service
connection on either a direct or
secondary basis. Consequently, the Court concludes that the Board's
statement of reasons or bases
is adequate in this regard. See Gilbert, 1 Vet.App. at 57.
B. Roberson v. Principi
Mr. Suggs next argues that the Board erred "in failing to evaluate all the
evidence for all
potential claims"in violation of Robersonv. Principi, 251 F.3d1378, 1384 (
Fed. Cir. 2001), because
the Board did not adjudicate his claims for increased disability ratings
for his service-connected
cervicalandlumbarspine disabilities. Appellant's Br. at 13. Specifically,
he contends that"[i]f there
was evidence in the record sufficient to substantiate a claim for increase,
the Board was required to
6


adjudicate it at that time." Id. at 14. However, a review of the Board
decision demonstrates that this
argument is without merit.
In Roberson, the U.S. Court of Appeals for the Federal Circuit held that, "
in order to develop
a claim 'to its optimum' as mandated by Hodge[ v. West, 155 F.3d 1356,
1362 (Fed. Cir. 1998)], the
VA must determine all potential claims raised by the evidence, applying
all relevant laws and
regulations," regardless of the specific label attached to the claim. 251
F.3d at 1384. Here, the
Board considered and denied Mr. Suggs's claims for benefits for
disabilities of the upper and lower
extremities because the Board determined that these conditions were merely
symptoms of his
service-connectedcervicalandlumbarspinedisabilitiesand,therefore,werenot
separatedisabilities
capable of service connection on a direct or secondary basis. The Board
also construed the October
2008 VA medical examination as claims for increased disability ratings for
his service-connected
cervical and lumbar spine disabilities and referred those claims to the
regional office for further
development and adjudication. Therefore, the Court concludes that,
contrary to Mr. Suggs's
contention, the Board considered and addressed all of the potential claims
that were raised by the
evidence of record. See Roberson, 251 F.3d at 1384.
However, the Court acknowledges that the Board decision on this issue is
not a picture of
clarity. Notably, the Board states:
An October 2008 VA examination report reflects that the examiner opined
that [Mr.
Suggs] had right and left upper extremity and lower extremity impairment
that were
manifestations of his service-connected cervical spine and low back
disabilities. The
Board interprets the report as a claim for higher ratings for his cervical
spine and low
back disabilities. These issues are referred to the [regional office] for
appropriate
action, which must specifically include adjudicating whether separate
compensable
ratings are warranted for [Mr. Suggs]'s left and right upper and lower
extremity
impairment.
R. at 5. Later in its decision, the Board also states:
If [Mr. Suggs] believes that [he] is not being adequatelycompensated for
his cervical
symptoms in his upper extremities, the Board encourages him to file a
claim for
increased compensation benefits for his service-connected cervical spine
disability.
Indeed, VA's Schedule for Rating Disabilities provides that separate
ratings are
available for neurological manifestations due to intervertebral disc
syndrome.
7


R. at 11-12 (citing 38 C.F.R. §.4.71a, Diagnostic Code 5243). It is
difficult to reconcile these
seemingly inconsistent statements. On the one hand, the Board stated that
it was referring Mr.
Suggs's claims for increased disability ratings for his cervical and
lumbar spine conditions to the
regional office; on the other hand, the Board encouraged Mr. Suggs to file
a new claim for an
increased disability rating for his cervical spine disability. To the
extent that the Board's statement
that Mr. Suggs should file a new claim for an increased disability rating
constitutes error, the Court
concludes that it is harmless because the Board referred his claims for
increased disability ratings
for his cervical and lumbar spine disabilities to the regional office and
those claims are still pending
adjudication that could result in the awardofincreased disabilityratings.
See 38 U.S.C. § 7261(b)(2)
(requiring the Court to "take due account of the rule of prejudicial error
"); Conway v. Principi,
353 F.3d 1369, 1374 (Fed. Cir. 2004).
Moreover, the Board specifically instructed the regional office to "
adjudicat[e] whether
separate compensable ratings are warranted for [Mr. Suggs]'s left and
right upper and lower
extremity impairment," while also determining that those disabilities
cannot be service connected
on any basis because they are not separate disabilities. Although
contradictory on its face, the Court
construes this language to mean that the Board is instructing the regional
office to assess whether
Mr. Suggs's service-connected cervical and lumbar spine disabilities
warrant increased disability
ratings due to the manifestations of these disabilities in his upper and
lower extremities, not that the
regional office should reconsider whether the manifestations in his upper
and lower extremities are
separate disabilities capable of separate compensation apart from his
currently service-connected
disabilities. Accordingly, the Court will modify the Board decision to
correct this apparent
inconsistency. See 38 U.S.C. § 7252(a) (empowering the Court to "affirm,
modify, or reverse a
decision of the Board or to remand the matter, as appropriate").
C. Other Arguments
Mr. Suggs next argues that "the Board specificallyerr[ed] when it state[d]
that [his] low back
disability has never been 'identified by a medical professional.'"
Appellant's Br. at 10 (quoting R. at
14). The Court acknowledges that the Board's statement that "[Mr. Suggs]
is not medicallyqualified
to attribute his symptoms to a disability other than his low back
disability, which has never been
identified by a medical professional," is somewhat unclear. R. at 13-14.
However, it appears that
8


the Board is stating that the pain and numbness in Mr. Suggs's lower
extremities have never been
identified as a separate disabilitybya medical professional and that he is
not competent to make such
a diagnosis. This interpretation is consistent with the rest of the Board
decision. Moreover, Mr.
Suggs's argument fails to acknowledge that the Board repeatedly stated
that Mr. Suggs has a
diagnosed lumbar spine disability that is already service connected.
Therefore, to the extent that the
Board's statement in this regard constitutes error, the Court concludes
that it is harmless. See
38 U.S.C. § 7261(b)(2); Conway, 353 F.3d at 1374.
Finally, the Court need not address Mr. Suggs's argument for reversal
because the Court is
affirming the Board decision.

III. CONCLUSION
Upon consideration of the foregoing, the July 29, 2009, Board decision is
MODIFIED to
reflect that the Board referred Mr. Suggs's claims for increased
disability ratings for his service-
connected cervical and lumbar spine disabilities, to include consideration
of whether the symptoms
of pain and numbness in his upper and lower extremities caused by these
disabilities warrant the
award of increased disability ratings for his service-connected
disabilities. The Board decision is
AFFIRMED as modified. The Board will issue the modified decision to Mr.
Suggs and his
representative.
DATED: July 5, 2011
Copies to:
Sean A. Kendall, Esq.
VA General Counsel (027)
9