Thursday, September 15, 2011

Federal Circuit, Non-Precedential, 5103A, Duty to Assist, Golz, 590 F.3d at 1323

Excerpt from Dissenting opinion below: "As we have repeatedly stated, “[i]n close or uncertain cases, the VA should be guided by the principles underlying this uniquely pro-claimant system. VA has a duty to assist veterans and is required to ‘fully and sympathetically develop the veteran’s claim to its optimum before deciding it on the merits.’” Golz, 590 F.3d at 1323 (quoting McGee v. Peake, 511 F.3d 1352, 1357 (Fed. Cir. 2008)). When in doubt, the VA should attempt to locate the records. ======================================== O’MALLEY, Circuit Judge, dissenting. The majority concludes that we lack jurisdiction be-cause Richard Hime is asking us to resolve disputed material facts and apply the law to those facts. The facts material to the analysis of the VA’s duty to assist, how-ever, are undisputed. We must decide only whether the undisputed, material facts are sufficient to invoke the duty to assist as a matter of law. Because those facts are sufficient, I would vacate the denial of claim entitlement, remand this case, and instruct the VA to attempt to locate the physical therapy records. HIME v. DVA 2 Section 5103A contains requirements, two of which are at issue in this case, that a claimant must satisfy to invoke the VA’s duty to assist in locating treatment records at a VA healthcare facility. First, a claimant must demonstrate that the records are relevant. 38 U.S.C. § 5103A(b)(1), (c)(2). A single, undisputed fact in Mr. Hime’s case satisfies the relevancy requirement: that the Board concluded in its 1983 opinion that Mr. Hime’s right shoulder should not have caused him significant functional problems. Mr. Hime seeks the physical therapy records because he wants to prove that he did experi-ence functional problems in his shoulder. If Mr. Hime can prove that fact, he anticipates proving that, because of those functional problems, he was directed and effectively forced to use his left arm, almost exclusively, which, in turn, caused his left-hip bursitis. Mr. Hime, in other words, is attempting to rebut a Board finding in a case that he is seeking to reopen. Here, there is no dispute that the records at issue are physical therapy records relating to Mr. Hime’s right shoulder injury, the very injury whose severity was at issue in the Board’s determination. Records are relevant for the purpose of Section 5103A if they relate to the injury for which a claimant is seeking benefits and have a reasonable possibility of helping to substantiate the claim. Golz, 590 F.3d at 1321. I would hold, as a matter of law, that treatment records fall within the definition of relevancy if, based on a claimant’s description of them, the records could assist in a claim-ant’s rebutting a prior Board finding in a case that the claimant seeks to reopen. The majority believes that we cannot resolve the rele-vancy requirement as a matter of law because a factual dispute exists as to whether there is a relationship be-tween Mr. Hime’s shoulder and hip injuries. That fact is 3 HIME v. DVA immaterial to the duty to assist in this case. Although Mr. Hime must prove that relationship to prevail on the merits, Section 5103A does not require him to prove his case on the merits to compel the VA to obtain treatment records. The statute only requires him to demonstrate a relationship to the claimed injury and a reasonable possi-bility that the treatment records will help substantiate his claim. Golz, 590 F.3d at 1321. That Mr. Hime is attempting to rebut a prior Board finding in a case that he is seeking to reopen, with records relating to an injury on which that finding turned, indicates that a relation-ship to the claimed injury exists and that the physical therapy records could assist Mr. Hime in substantiating his claim. In addition to the relevancy requirement, a claimant must adequately identify the records sought and furnish information sufficient to locate the records. 38 U.S.C. § 5103A(b)(1), (c)(2). No one disputes the following facts: Mr. Hime filed a statement in support of claim, in which he indicated that he received treatment at the VA Medical Center in Hampton, Virginia. Progress notes indicate that Dr. Palmer referred Mr. Hime for physical therapy on his right shoulder around June 3, 1981, and that Dr. Palmer concluded, on June 22, 1981, that the physical therapy had little effect and discontinued it. The undis-puted facts, therefore, indicate the nature of the treat-ment that Mr. Hime received, the location where he received it, the approximate timeframe when he received it, and the referring doctor’s name. Clearly, such identifi-cation is sufficient for the VA to locate those records. Indeed, it is hard to imagine what more information a claimant would need to provide the VA. The majority contends that Mr. Hime’s identification was inadequate because he did not specifically tell the regional office that he was seeking physical therapy HIME v. DVA 4 records. The statute, however, does not require literal identification. It only requires that a claimant “ade-quately identify” and “furnish[] information sufficient to locate [the] records.” 38 U.S.C. § 5103A(c)(1), (c)(2). The majority cites no authority that equates the statutory requirements to literal identification. Instead, the majority relies on Veterans Court cases, which we are not obligated to follow, and which are dis-tinguishable on their facts. In Loving v. Nicholson, the claimant never contended that additional medical records existed until the Board, apparently on its own initiative, mentioned the possibility that unspecified medical records existed but concluded that the records would not have affected the outcome of the case. 19 Vet. App. 96, 102 (2005). The case record appeared to lack any information shedding light on what the supposedly missing medical records were. See id. Mr. Hime’s submissions, by con-trast, indicate on their face that Mr. Hime participated in physical therapy during a particular timeframe, at a particular facility, and at the direction of a particular doctor. In Canlas v. Nicholson, the Veterans Court was faced with a situation similar to that in Loving. The claimant argued that the VA had a duty to locate what appeared to be her deceased husband’s post-service government employment records because those records might have contained the decedent’s military service number. 21 Vet. App. 312, 315, 317 (2007). The claimant failed to specify, during the pendency of her claim, why that gen-eral category of records could be reasonably expected to disclose the decedent’s service number. Id. The VA had far more specific information before it in Mr. Hime’s case than it did in Canlas. The government suggests in its brief that there is no way of knowing whether there are actually physical therapy records to obtain even if the VA were to search for HIME v. DVA 5 them. Mr. Hime has submitted enough information that the VA should at least investigate. The VA, in fact, sent Mr. Hime a letter after the agency received his application and informed him that the VA was responsible for obtaining relevant records from any federal agency. Mr. Hime was entitled to take the VA at its word. As we have repeatedly stated, “[i]n close or uncertain cases, the VA should be guided by the principles underlying this uniquely pro-claimant system. VA has a duty to assist veterans and is required to ‘fully and sympathetically develop the veteran’s claim to its optimum before deciding it on the merits.’” Golz, 590 F.3d at 1323 (quoting McGee v. Peake, 511 F.3d 1352, 1357 (Fed. Cir. 2008)). When in doubt, the VA should attempt to locate the records. If the VA were to locate Mr. Hime’s physical therapy records, I do not suggest that the Board would be obligated to find that those records satisfy the materiality prerequisite to reopening Mr. Hime’s case. I only propose today that we hold that what Mr. Hime has done is sufficient, as a legal matter, to invoke the VA’s duty to assist and provide him another opportunity to argue for the reopening of his claim if the VA finds the records. Accordingly, I respectfully dissent. ============================ NOTE: This disposition is nonprecedential. United States Court of Appeals for the Federal Circuit __________________________ RICHARD B. HIME, Claimant-Appellant, v. ERIC K. SHINSEKI, SECRETARY OF VETERANS AFFAIRS, Respondent-Appellee. __________________________ 2011-7057 __________________________ Appeal from the United States Court of Appeals for Veterans Claims in Case No. 08-2236, Judge William A. Moorman. ____________________________ Decided: September 15, 2011 ____________________________ SANDRA W. WISCHOW, Goodman, Allen & Filetti, of Richmond, Virginia, argued for claimant-appellant. RENEE GERBER, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, argued for respondent-appellee. With her on the brief were TONY WEST, Assis-tant Attorney General, JEANNE E. DAVIDSON, Director, HIME v. DVA 2 and MARTIN HOCKEY, Assistant Director. Of counsel on the brief were DAVID J. BARRANS, Deputy Assistant Gen-eral Counsel, and AMANDA R. BLACKMON, Attorney, United States Department of Veterans Affairs, of Wash-ington, DC. __________________________ Before RADER, Chief Judge, and LOURIE and O’MALLEY, Circuit Judges. Opinion for the Court filed by Circuit Judge LOURIE. Dissenting opinion filed by Circuit Judge O’MALLEY. LOURIE, Circuit Judge. Richard Hime appeals from the decision of the United States Court of Appeals for Veterans Claims (“the Veter-ans Court”) holding that the Department of Veterans Affairs (“VA”) had fulfilled its statutory duty to assist and affirming the denial of his request to reopen his claim for entitlement to service connection for his hip bursitis. Hime v. Shinseki, No. 08-2236, 2010 WL 2978498, at *1 (Vet. App. July 29, 2010) (“Veterans Court Op.”). Because we conclude that Hime’s challenges are outside the scope of our jurisdiction, we dismiss. BACKGROUND Hime served on active duty in the U.S. Navy from 1966 to 1970. During service, he injured his right shoul-der and was granted service connection for his shoulder disability as of 1979. On June 3, 1981, Hime was treated by a VA physician, Dr. Palmer, for his right shoulder condition and sent to physical therapy for two weeks. Dr. Palmer recommended that Hime use his left hand instead of his right in order to alleviate some of the right shoulder pain. A few weeks later, on August 5, 1981, Dr. Palmer 3 HIME v. DVA wrote another treatment plan for Hime, this time for bursitis in his left hip. In 1982, Hime filed a claim for bursitis of the left hip as secondary to his right shoulder disability, contending that it had resulted from performing various actions with his left hand to avoid further injury to his right shoulder. He submitted an opinion from Dr. Palmer stating that the bursitis was directly related to the service-connected condition of his shoulder. The Board of Veterans’ Appeals (“the Board”) denied Hime’s claim in 1983, explaining that Hime had almost full function of his shoulder and that the bursitis had been diagnosed years later. The Board also stated that it had considered Dr. Palmer’s statement in coming to its conclusion. Id. In 2005, Hime submitted a request to reopen his claim for service connection for bursitis. In support of his claim, he submitted three pieces of evidence: (1) Dr. Palmer’s medical statement from 1982, (2) a statement dated 2007 from a private physician on a matter unrelated to bursi-tis, and (3) VA medical progress notes from 1981. The VA medical progress notes that Hime submitted were not in his original claim file. One of the progress notes indi-cates, inter alia, that Hime received physical therapy at the VA medical center in June 1981 for his right shoulder disability. However, Hime did not obtain or submit any individual records of those therapy sessions. The Regional Office (“RO”) denied the request, finding that none of the evidence submitted was new and mate-rial. On appeal, the Board agreed. It noted that Dr. Palmer’s medical statement was considered by the VA in its 1983 decision, and therefore that evidence was not new. It found that the other evidence, including the 1981 treatment notes, was new, but not material, as it did not address the relationship between the hip condition and HIME v. DVA 4 the shoulder disability—the unestablished element in the 1983 decision. Id. It explained that the treatment notes merely demonstrate a diagnosis of the right shoulder disability, a fact that had long been established. The Board further found that the VA had satisfied its duty to assist pursuant to 38 U.S.C. § 5103A(a) and 38 C.F.R. § 3.159(c) because it had “obtained records of treatment reported by [Mr. Hime], including service medical records, VA medical center (VAMC) records and private medical records [and there was] no indication from the record of additional medical treatment for which the RO ha[d] not obtained, or made sufficient efforts to obtain, corresponding records.” The Veterans Court affirmed the Board’s decision. Hime argued to the Veterans Court that the VA had not satisfied its duty to assist him in obtaining VA records because the 1981 treatment notes, which he had obtained and submitted, were not in the original records obtained by the VA. Because the newly submitted treatment notes indicated that Hime was undergoing physical therapy in 1981, Hime argued that there likely existed additional records related to that therapy, such as individual ther-apy session records, that could contain information rele-vant to his bursitis claim. Hime’s argument was that because he had identified potentially relevant records that likely existed but he had not been able to obtain, the VA had a duty to seek out and obtain those records for him prior to deciding his claim for service connection for bursitis of the left hip. The Veterans Court rejected that argument, explain-ing that those notes simply stated that Hime had bursitis, but failed to provide any type of nexus evidence or estab-lish that there existed any other records not reasonably obtained by the VA. Veterans Court Op. at *4. The court 5 HIME v. DVA specifically found that the new evidence submitted by Hime failed to “establish the existence of additional missing medical records.” Id. The court therefore con-cluded that the VA had made reasonable efforts to assist Hime in obtaining medical records necessary to substan-tiate his claim and therefore fulfilled its duty to assist. Id. Hime filed a motion for reconsideration and, in the alternative, for a panel decision. That motion was denied. Hime v. Shinseki, No. 08–2236, 2010 WL 3759887 (Vet. App. Sept. 24, 2010). Hime then timely appealed. DISCUSSION This court’s jurisdiction to review decisions of the Veterans Court is limited by statute. 38 U.S.C. § 7292. We “have exclusive jurisdiction to review and decide any challenge to the validity of any statute or regulation or any interpretation thereof [by the Veterans Court] . . . , and to interpret constitutional and statutory provisions, to the extent presented and necessary to a decision.” Id. § 7292(c). We may not, however, absent a constitutional challenge, “review (A) a challenge to a factual determina-tion, or (B) a challenge to a law or regulation as applied to the facts of a particular case.” Id. § 7292(d)(2). Hime argues that the VA made no attempt to obtain his physical therapy treatment records from the VA medical center even though he provided sufficient infor-mation indicating the existence of those records, and yet the Veterans Court found the duty to assist fulfilled. Hime therefore contends that in affirming the Board’s decision, the Veterans Court necessarily held that the VA had no duty to assist him. Hime argues that the Veterans Court’s holding can only stand under an incorrect inter-pretation of 38 U.S.C. § 5103A(c)(2): that the VA would have no duty to find and obtain VA treatment records even when the veteran submits sufficient information HIME v. DVA 6 supporting the likely existence of such records. According to Hime, the Veterans Court’s interpretation renders the duty to assist meaningless because it requires the veteran to obtain and provide records himself because, in his view, that would be the only way to demonstrate that the records actually contain the necessary evidence to sub-stantiate his claim. That, Hime continues, imposes an improper burden on the veteran that cannot be supported by a reasonable reading of the statute. Thus, Hime urges that this court has jurisdiction in this case and that we should correct the VA’s improper interpretation of the statute. The government responds that we lack jurisdiction to review the Veterans Court’s decision in this case because it is an application of law to facts. The government con-tends that the Veterans Court did not interpret § 5103A(c)(2) to mean that the VA had no duty to assist Hime in obtaining medical records and that Hime’s dis-agreement is really with the factual inferences that the Board made as well as the Veterans Court’s determina-tion that the VA had satisfied the duty to assist. It points out that Hime did not specifically inform the RO that additional records could be missing. Thus, it contends, there was no reason for the VA to infer the existence of missing records merely from the existence of the 1981 treatment notes or to conclude that reports of the individ-ual physical therapy sessions, even if they existed, would contain any relevant information. We agree with the government that the question pre-sented here is whether the Board made clearly erroneous factual findings or incorrectly applied the law to the facts of this case, both of which are beyond our jurisdiction. See 38 U.S.C. § 7292 (absent a constitutional issue, this court “may not review (A) a challenge to a factual determina-tion, or (B) a challenge to a law or regulation as applied to 7 HIME v. DVA the facts of a particular case”). The VA’s duty to assist claimants is codified at 38 U.S.C. § 5103A. The VA has a duty to “make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claim-ant’s claim.” Id. § 5103A(a)(1). Section 5103A(c), entitled “Obtaining records for compensation claims,” describes the types of records the VA must assist the veteran in obtaining: (c) Obtaining records for compensation claims.—In the case of a claim for disability compensation, the assistance provided by the Secretary under subsection (b) shall include obtaining the follow-ing records if relevant to the claim: (1) The claimant’s service medical records and, if the claimant has furnished the Secretary informa-tion sufficient to locate such records, other rele-vant records pertaining to the claimant's active military, naval, or air service that are held or maintained by a governmental entity. (2) Records of relevant medical treatment or ex-amination of the claimant at Department health-care facilities or at the expense of the Depart-ment, if the claimant furnishes information suffi-cient to locate those records. (3) Any other relevant records held by any Federal department or agency that the claimant ade-quately identifies and authorizes the Secretary to obtain. Id. § 5103A(c) (emphases added). The corresponding regulation, 38 C.F.R. § 3.159(c), also lists a claimant’s relevant VA medical records as a category of records that the VA is required to obtain with regard to a veteran’s claim for disability compensation. There can be no doubt HIME v. DVA 8 that Congress intended the VA to assist veterans in obtaining records for compensation claims, and the duty to assist requires the Secretary to make reasonable efforts to obtain “evidence necessary to substantiate the claim-ant’s claim for a benefit.” Golz v. Shinseki, 590 F.3d 1317, 1321 (Fed. Cir. 2010). On the other hand, the duty to assist is not boundless in its scope, and the statute is explicit that only those medical records that are relevant to the veteran’s claim must be sought. Id.; see also McGee v. Peake, 511 F.3d 1352, 1357 (Fed. Cir. 2008) (“Congress has explicitly defined the VA’s duty to assist a veteran with the factual development of a benefit claim in terms of relevance.”). Relevant records for the purpose of § 5103A are those records that relate to the injury for which the claimant is seeking benefits and have a reasonable possibility of helping to substantiate the veteran’s claim. Golz, 590 F.3d at 1321. With regard to the new evidence submitted by Hime, viz., the 1981 treatment notes, the Board made, and the Veterans Court affirmed, two separate findings that Hime appears to challenge: (1) that it failed to support the requisite nexus between his hip and shoulder conditions, and (2) that it failed to establish that there existed any other records not reasonably obtained by the VA. Veter-ans Court Op. at *4. Hime challenges both of those find-ings to argue that the court’s conclusion that the VA had fulfilled its duty to assist resulted from an incorrect interpretation of the statute. We disagree. The first of those findings goes directly to the rele-vance of any physical therapy treatment that Hime un-derwent for his shoulder condition in 1981 to his present claim for hip bursitis. Hime argues that the relevance of the physical therapy records is unquestionable. He points 9 HIME v. DVA out that the treatment notes indicate that he was under-going physical therapy for his right shoulder disability in 1981, and that he had modified his physical activities because of his shoulder disability. According to Hime, because his claim is for hip bursitis as an injury secon-dary to his right shoulder disability, any records devel-oped during the physical therapy for his shoulder disability would be relevant to his claim. The Board reviewed the treatment notes and made a factual determination as to whether they provided the requisite nexus to support Hime’s claim. The June 22, 1981, note specifically states that physical therapy of Hime’s right shoulder provided only temporary relief and the resulting improvement was so small that the therapy was terminated. The Board reviewed that note and found that it “does not relate to the unestablished fact necessary to substantiate the claim.” In effect, the Board found that the 1981 physical therapy of Hime’s right shoulder was not relevant to establishing the “relationship between the veteran’s bursitis of the left hip and his service connected shoulder condition”—the unestablished element in the 1983 Board decision. This is a fact-based determination over which we have no jurisdiction. 38 U.S.C. § 7292; see Golz, 590 F.3d at 1322 (“The Board’s factual finding that . . . records would not be relevant to [the veteran’s] claim is not reviewable by this court.”). Hime next argues that even though the Board found that the treatment notes failed to establish the requisite nexus between his hip and shoulder injuries, the VA was still required to obtain and review the physical therapy records before deciding that they were irrelevant for purposes of § 5103A. That argument fails in light of our recent precedent. Golz, 590 F.3d at 1323 (“It is not the case that the government must obtain records in every case in order to rule out their relevance.” (distinguishing HIME v. DVA 10 Moore v. Shinseki, 555 F.3d 1369, 1374 (Fed. Cir. 2009))). In Golz, we rejected the veteran’s argument that the VA was obligated to obtain Social Security Administration records relating to a back disability to support the vet-eran’s claim for service connection for post-traumatic stress disorder even though the Board had made a factual determination that those records would be irrelevant to the veteran’s claim. Id. at 1322. We explained that the legal standard for relevance requires the VA to obtain records only if there exists a reasonable possibility that the records could help the veteran substantiate his claim for benefits. Id. at 1323. As in Golz, the Board in this case made a factual de-termination that Hime’s treatment notes, including statements that he received physical therapy for his right shoulder condition, failed to establish the requisite nexus element for his claim relating to bursitis, and where there is no nexus, there can be no relevance. It would thus be contrary to the plain language of the statute and our precedent to require that the VA obtain detailed records of the physical therapy even where there is no reasonable possibility that they would aid in substantiating Hime’s claim. See 38 U.S.C. § 5103A(c)(2) (“Records of relevant medical treatment . . . .” (emphasis added)); see also Golz, 590 F.3d at 1323 (“There must be specific reason to be-lieve these records may give rise to pertinent information to conclude that they are relevant.” (emphasis added)). We therefore conclude that the Veterans Court did not independently construe section 5103A but rather followed established law in affirming the Board’s decision. See also Darlington v. Shinseki, 415 Fed. Appx. 253, (Fed. Cir. Feb. 22, 2011) (declining to find an error in the Veterans Court’s interpretation of section 5103A where the veteran challenged the Board’s factual determination on relevance of records). Moreover, its determination that Hime’s 11 HIME v. DVA treatment notes relating to physical therapy of his shoul-der failed to provide nexus evidence for his hip claim is a factual one that is not within our jurisdiction. Likewise, the Board’s second finding that Hime’s treatment notes failed to establish the existence of any other records not reasonably obtained by the VA also requires resolving disputed facts and applying the law to those facts, each of which is beyond our jurisdiction. Hime argues that by submitting the June 22 treatment note, he provided sufficient information indicating that physical therapy occurred between early June and June 22, 1981, and that there may exist at the VA medical center individual records of each of those therapy ses-sions. That, according to Hime, constitutes sufficient information under the statute to trigger the VA’s duty to assist so as to require the VA to seek out and obtain any treatment records that may exist for his physical therapy. We disagree. The statute plainly requires the veteran to “adequately identify” the relevant records that the veteran desires the VA to obtain. 38 U.S.C. § 5103A(b). The subsection relating to medical treatment records specifically states that the VA’s duty to assist is only triggered “if the claimant furnishes information sufficient to locate those records.” Id. § 5103A(c)(2). As the government points out, Hime did not in any way inform the RO that he was seeking additional records that were not a part of his file, or that he believed addi-tional records even existed. The government further states that the treatment notes that Hime submitted do not indicate that there are any additional physical ther-apy records. Yet Hime argues that the VA, based merely on his submission of the treatment notes, should have inferred that additional physical therapy records had to be sought out and obtained under its duty to assist. In HIME v. DVA 12 essence, Hime argues that the duty to assist requires the VA to seek out additional medical records whenever evidence submitted by the veteran even remotely suggests that additional records may exist. That interpretation of § 5103A is contrary to the plain language of the statute. See Loving v. Nicholson, 19 Vet. App. 96, 103 (2005) (concluding that the VA’s duty to assist had been fulfilled because “at no time during the pendency of his claim before VA, did Mr. Loving ever identify any additional medical records or quality-assurance reports or request VA to provide them nor explain how they might be rele-vant to his claim”); see also Canlas v. Nicholson, 21 Vet. App. 312, 317 (2007) (“The duty to assist is not a license for a fishing expedition to determine if there might be some unspecified information which could possibly sup-port a claim.”). We therefore conclude that the question whether Hime established that there existed any addi-tional records not reasonably obtained by the VA is a straightforward one of application of law to disputed facts, one that we are not at liberty to review. Hime argues that we are bound by our precedent in Moore, in which we held that the VA had an obligation to obtain service medical records that predated the period for which the claimant sought compensation. 555 F.3d at 1373-74. We explained that the Veterans Court’s decision in that case, categorically ruling such “predated” records as irrelevant to the veteran’s claims was an incorrect interpretation of the statute, contrary even to its own regulation. Id. at 1373. Thus, Moore, like Golz, addressed the meaning and scope of the term “relevant records” as used in the statute. In Moore, we were not presented with the question presented here, viz., whether a veteran has provided sufficient information to adequately identify the records to be obtained, which in our view constitutes application of law to fact. The records actually at issue in 13 HIME v. DVA Moore were the veteran’s service medical records, i.e., records developed during service, which the veteran’s department already possessed and the issue of identifica-tion did not arise. Id. at 1370. As the government points out, that distinction between the types of veteran’s medi-cal records, e.g., records in the possession of the veteran’s department versus records at a VA or even a non-VA health-care facility somewhere across the country is highlighted in the statute itself. Compare 38 U.S.C. § 5103A(c)(1), with § 5103A(c)(2). The holding in Moore is therefore inapposite to the issue presented here. Hime argues that this is a case where “the material facts are not in dispute and the adoption of a particular legal standard would dictate the outcome of a veteran’s claim, [such that] we treat the application of law to un-disputed fact as a question of law.” Conley v. Peake, 543 F.3d 1301, 1304 (Fed. Cir. 2008). That, however, is not correct. As discussed above, there are facts in this case that are disputed between the parties, particularly includ-ing the possible relationship between the shoulder and hip injuries as well as the likelihood that additional searching for unidentified records would turn up relevant evidence; the Veterans Court reviewed the Board’s factual determinations and application of law to those facts. See Veterans Court Op. at *4 (affirming the Board’s finding as not clearly erroneous). In affirming the Board, the Veter-ans Court relied solely on the plain language and on our prior interpretation of section 5103A. Hime’s challenges on appeal therefore do not fall within the scope of 38 U.S.C. § 7292. CONCLUSION We have considered Hime’s remaining arguments and do not find them persuasive. Accordingly, we dismiss Hime’s appeal for lack of jurisdiction. HIME v. DVA 14 DISMISSED COSTS No costs. NOTE: This disposition is nonprecedential. United States Court of Appeals for the Federal Circuit __________________________ RICHARD B. HIME, Claimant-Appellant, v. ERIC K. SHINSEKI, SECRETARY OF VETERANS AFFAIRS, Respondent-Appellee. __________________________ 2011-7057 __________________________ Appeal from the United States Court of Appeals for Veterans Claims in Case No. 08-2236, Judge William A. Moorman. __________________________ O’MALLEY, Circuit Judge, dissenting. The majority concludes that we lack jurisdiction be-cause Richard Hime is asking us to resolve disputed material facts and apply the law to those facts. The facts material to the analysis of the VA’s duty to assist, how-ever, are undisputed. We must decide only whether the undisputed, material facts are sufficient to invoke the duty to assist as a matter of law. Because those facts are sufficient, I would vacate the denial of claim entitlement, remand this case, and instruct the VA to attempt to locate the physical therapy records. HIME v. DVA 2 Section 5103A contains requirements, two of which are at issue in this case, that a claimant must satisfy to invoke the VA’s duty to assist in locating treatment records at a VA healthcare facility. First, a claimant must demonstrate that the records are relevant. 38 U.S.C. § 5103A(b)(1), (c)(2). A single, undisputed fact in Mr. Hime’s case satisfies the relevancy requirement: that the Board concluded in its 1983 opinion that Mr. Hime’s right shoulder should not have caused him significant functional problems. Mr. Hime seeks the physical therapy records because he wants to prove that he did experi-ence functional problems in his shoulder. If Mr. Hime can prove that fact, he anticipates proving that, because of those functional problems, he was directed and effectively forced to use his left arm, almost exclusively, which, in turn, caused his left-hip bursitis. Mr. Hime, in other words, is attempting to rebut a Board finding in a case that he is seeking to reopen. Here, there is no dispute that the records at issue are physical therapy records relating to Mr. Hime’s right shoulder injury, the very injury whose severity was at issue in the Board’s determination. Records are relevant for the purpose of Section 5103A if they relate to the injury for which a claimant is seeking benefits and have a reasonable possibility of helping to substantiate the claim. Golz, 590 F.3d at 1321. I would hold, as a matter of law, that treatment records fall within the definition of relevancy if, based on a claimant’s description of them, the records could assist in a claim-ant’s rebutting a prior Board finding in a case that the claimant seeks to reopen. The majority believes that we cannot resolve the rele-vancy requirement as a matter of law because a factual dispute exists as to whether there is a relationship be-tween Mr. Hime’s shoulder and hip injuries. That fact is 3 HIME v. DVA immaterial to the duty to assist in this case. Although Mr. Hime must prove that relationship to prevail on the merits, Section 5103A does not require him to prove his case on the merits to compel the VA to obtain treatment records. The statute only requires him to demonstrate a relationship to the claimed injury and a reasonable possi-bility that the treatment records will help substantiate his claim. Golz, 590 F.3d at 1321. That Mr. Hime is attempting to rebut a prior Board finding in a case that he is seeking to reopen, with records relating to an injury on which that finding turned, indicates that a relation-ship to the claimed injury exists and that the physical therapy records could assist Mr. Hime in substantiating his claim. In addition to the relevancy requirement, a claimant must adequately identify the records sought and furnish information sufficient to locate the records. 38 U.S.C. § 5103A(b)(1), (c)(2). No one disputes the following facts: Mr. Hime filed a statement in support of claim, in which he indicated that he received treatment at the VA Medical Center in Hampton, Virginia. Progress notes indicate that Dr. Palmer referred Mr. Hime for physical therapy on his right shoulder around June 3, 1981, and that Dr. Palmer concluded, on June 22, 1981, that the physical therapy had little effect and discontinued it. The undis-puted facts, therefore, indicate the nature of the treat-ment that Mr. Hime received, the location where he received it, the approximate timeframe when he received it, and the referring doctor’s name. Clearly, such identifi-cation is sufficient for the VA to locate those records. Indeed, it is hard to imagine what more information a claimant would need to provide the VA. The majority contends that Mr. Hime’s identification was inadequate because he did not specifically tell the regional office that he was seeking physical therapy HIME v. DVA 4 records. The statute, however, does not require literal identification. It only requires that a claimant “ade-quately identify” and “furnish[] information sufficient to locate [the] records.” 38 U.S.C. § 5103A(c)(1), (c)(2). The majority cites no authority that equates the statutory requirements to literal identification. Instead, the majority relies on Veterans Court cases, which we are not obligated to follow, and which are dis-tinguishable on their facts. In Loving v. Nicholson, the claimant never contended that additional medical records existed until the Board, apparently on its own initiative, mentioned the possibility that unspecified medical records existed but concluded that the records would not have affected the outcome of the case. 19 Vet. App. 96, 102 (2005). The case record appeared to lack any information shedding light on what the supposedly missing medical records were. See id. Mr. Hime’s submissions, by con-trast, indicate on their face that Mr. Hime participated in physical therapy during a particular timeframe, at a particular facility, and at the direction of a particular doctor. In Canlas v. Nicholson, the Veterans Court was faced with a situation similar to that in Loving. The claimant argued that the VA had a duty to locate what appeared to be her deceased husband’s post-service government employment records because those records might have contained the decedent’s military service number. 21 Vet. App. 312, 315, 317 (2007). The claimant failed to specify, during the pendency of her claim, why that gen-eral category of records could be reasonably expected to disclose the decedent’s service number. Id. The VA had far more specific information before it in Mr. Hime’s case than it did in Canlas. The government suggests in its brief that there is no way of knowing whether there are actually physical therapy records to obtain even if the VA were to search for HIME v. DVA 5 them. Mr. Hime has submitted enough information that the VA should at least investigate. The VA, in fact, sent Mr. Hime a letter after the agency received his application and informed him that the VA was responsible for obtaining relevant records from any federal agency. Mr. Hime was entitled to take the VA at its word. As we have repeatedly stated, “[i]n close or uncertain cases, the VA should be guided by the principles underlying this uniquely pro-claimant system. VA has a duty to assist veterans and is required to ‘fully and sympathetically develop the veteran’s claim to its optimum before deciding it on the merits.’” Golz, 590 F.3d at 1323 (quoting McGee v. Peake, 511 F.3d 1352, 1357 (Fed. Cir. 2008)). When in doubt, the VA should attempt to locate the records. If the VA were to locate Mr. Hime’s physical therapy records, I do not suggest that the Board would be obligated to find that those records satisfy the materiality prerequisite to reopening Mr. Hime’s case. I only propose today that we hold that what Mr. Hime has done is sufficient, as a legal matter, to invoke the VA’s duty to assist and provide him another opportunity to argue for the reopening of his claim if the VA finds the records. Accordingly, I respectfully dissent.

Single Judge Application, New and Material Triggering Medical Exam Duty, Shade v. Shinseki, 24 Vet.App. 110 (2010), Kahana v. Shinseki, 24 Vet. App. (2011)

Excerpt from decision below: "The Board's conclusion that a medical examination is not necessary is reviewed under the "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law" standard of review. 38 U.S.C. § 7261(a)(3)(A); McLendon, 20 Vet.App. at 81. The Board held that the letters from Drs. Shanahan and Fay (misstated by the Board and the parties as a single letter from Dr. Shanahan), while sufficiently "new and material" to trigger the 2 reopening of a claim, did not provide "evidence of in-service disease or injury . . . [or] competent evidence that any claimed disability may be related to the Veteran's military service." R. at 6-7. Therefore, the Board held that the Secretary was not required to provide a medical examination and proceeded to evaluate and deny the claim based on the existing record. This Board determination was in error. The Court's recent decision in Shade v. Shineski, 24 Vet.App. 110 (2010), clarified the "proper relationship between the new-and-material-evidence standard to reopen a claim and the standard for triggering the Secretary's duty to provide a medical examination under 38 U.S.C. § 5013A(d). In cases where medical evidence is necessary to prevail, the two standards are the same." Id. at 123 (Lance, J., concurring). The Board found the newly submitted evidence to be "material, as it provides additional probative information and relates to an unestablished fact necessary to substantiate the claim," and reopened the claim. R at 11; 38 C.F.R § 3.156 (2011). This determination was correct because the letters from Drs. Shanahan and Fay stated that the infection, actinomycosis, was acquired during service. R. at 523-25. Therefore, the Board's judgment that the medical opinions met the "new-and-material-evidence standard" triggered the duty to assist and the Secretary is obligated to provide a medical opinion. In essence, the Board erred in determining, without independent medical evidence, that the medical opinions provided by Drs. Shanahan and Fay "are of no probative value." R at 13. The Board asserted that, because the private medical opinions did not include " review of the service records or a factual predicate in the record," they were "too speculative in nature to be probative." R. at 13. However, "the claims file is not a magical or talismanic set of documents" and "a private medical opinion may not be discounted solely because the opining physician did not review the claims file." Nieves-Rodriguez v. Peake, 22 Vet.App. 295, 303, 304 (2008)." ========================== "It is also clear from Dr. Shanahan's letter that in the past 30 years he and the appellant have discussed the appellant's military career and related medical history. Id. Furthermore, even if Drs. Shanahan and Fay are basing their analysis on an incomplete factual premise, the Board remains prohibited from assuming that more information would necessarily change the doctors' opinion. 3 Kahana v. Shinseki, 24 Vet. App. 428, 439 n.8 (2011) (Lance, J., concurring) (distinguishing an incorrect factual premise, which has no probative value, from an incomplete factual premise). Even if the doctors' opinions are based on an incomplete medical premise, they may still indicate service connection, which would trigger the Secretary's duty to assist by providing a medical exam. Id." ========================== "The Board "'must consider only independent medical evidence to support [its] findings rather than provide [ its] own medical judgment in the guise of a Board opinion'" so that " 'all medical evidence contrary to the veteran's claim will be made known to him and be a part of the record before this Court.'" Kahana, 24 Vet.App. at 434 (quoting Colvin, 1 Vet.App. at 172, 175)." =========================== ---------------------------------------------------- Designated for electronic publication only UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS NO. 10-1909 WOODROW YOHAN, APPELLANT, V. ERIC K. SHINSEKI, SECRETARY OF VETERANS AFFAIRS, APPELLEE. Before LANCE, Judge. MEMORANDUM DECISION Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent. LANCE, Judge: The appellant, Woodrow Yohan, through counsel, appeals a February 12, 2010, Board of Veterans' Appeals (Board) decision that denied his claims for service connection for actinomycosis,1 status post right thoracotomy, and secondary service connection for chronic obstructive pulmonary disease (COPD). Record (R.) at 2-16. Single-judge disposition is appropriate. See Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). This appeal is timely and the Court has jurisdiction over the case pursuant to 38 U.S.C. §§ 7252(a) and 7266. For the reasons that follow, the Court will vacate the February 12, 2010, decision and remand the matter for further proceedings consistent with this decision. I. FACTS The appellant served on active duty in the U.S. Navy from October 1955 to August 1976. R. at 4. Service medical records (SMRs) include complaints of chest pain in 1973 and 1975 and a 1974 abnormal chest x-ray indicating scarring in the left lung. R. at 144- 46, 148. In December Actinomycosis is "an infectious disease" most commonly impacting "the submandibular region, thorax, and abdomen." DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 22 (32nd Ed. 2012). 1 1978, two years after his retirement from the Navy, the appellant was diagnosed with actinomycosis in his right lung. R. at 373, 504-05, 523-25. The appellant filed his initial claim for service connection for actinomycosis in October 1997; it was denied in November 1998 on the grounds that "there was no evidence of any signs or symptoms of actinomycosis or any respiratory disorder in service or until more than two years after service." R. at 8. R. at 691-98. No appeal was filed. R. at 4. In December 2006 the appellant requested that his claim be reopened, R. at 606, adding to the record two private medical opinion letters fromDrs. William J. Shanahan and James E. Fay, both of whomwere involved in diagnosing the appellant with actinomycosis. R. at 523-25. Dr. Shanahan has continued to treat the appellant for over 30 years. R. at 523. Both doctors described the kind of work the appellant performed while in service and opined that as a result the appellant's medical condition is service connected. The VA regional office (RO) considered this evidence sufficiently "new and material" to reopen the claim, but denied the claim on the merits. R. at 312-19. The appellant appealed this denial, and the Board issued the February 2010 decision that is now on appeal to this Court. II. ANALYSIS The issue on appeal is whether VA failed in its duty to assist by not ordering a medical opinion. VA must provide a medical opinion when the record contains (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, ( 2) evidence establishing that an event, injury, or disease occurred in service, 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 for the Secretary to make a decision on the claim. 38 U.S.C. § 5103A(d)(2); McLendon v. Nicholson, 20 Vet.App. 79, 81-86 (2006); 38 C.F.R. § 3.159(c)(4) (2011). The Board's conclusion that a medical examination is not necessary is reviewed under the "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law" standard of review. 38 U.S.C. § 7261(a)(3)(A); McLendon, 20 Vet.App. at 81. The Board held that the letters from Drs. Shanahan and Fay (misstated by the Board and the parties as a single letter from Dr. Shanahan), while sufficiently "new and material" to trigger the 2 reopening of a claim, did not provide "evidence of in-service disease or injury . . . [or] competent evidence that any claimed disability may be related to the Veteran's military service." R. at 6-7. Therefore, the Board held that the Secretary was not required to provide a medical examination and proceeded to evaluate and deny the claim based on the existing record. This Board determination was in error. The Court's recent decision in Shade v. Shineski, 24 Vet.App. 110 (2010), clarified the "proper relationship between the new-and-material-evidence standard to reopen a claim and the standard for triggering the Secretary's duty to provide a medical examination under 38 U.S.C. § 5013A(d). In cases where medical evidence is necessary to prevail, the two standards are the same." Id. at 123 (Lance, J., concurring). The Board found the newly submitted evidence to be "material, as it provides additional probative information and relates to an unestablished fact necessary to substantiate the claim," and reopened the claim. R at 11; 38 C.F.R § 3.156 (2011). This determination was correct because the letters from Drs. Shanahan and Fay stated that the infection, actinomycosis, was acquired during service. R. at 523-25. Therefore, the Board's judgmentthatthemedicalopinionsmetthe"new-and-material-evidencestandard" triggeredtheduty to assist and the Secretary is obligated to provide a medical opinion. In essence, the Board erred in determining, without independent medical evidence, that the medical opinions provided by Drs. Shanahan and Fay "are of no probative value." R at 13. The Board asserted that, because the private medical opinions did not include " review of the service records or a factual predicate in the record," they were "too speculative in nature to be probative." R. at 13. However, "the claims file is not a magical or talismanic set of documents" and "a private medical opinion may not be discounted solely because the opining physician did not review the claims file." Nieves-Rodriguez v. Peake, 22 Vet.App. 295, 303, 304 (2008). Indeed, "[t]here are other means by which a private physician can become aware of critical medical facts, not the least of which is by treating the claimant for an extended period of time." Id. at 303. Dr. Shanahan stated that he has treated the appellant since 1978 and examined him as recently as January 2007. R. at 523. It is also clear from Dr. Shanahan's letter that in the past 30 years he and the appellant have discussed the appellant's military career and related medical history. Id. Furthermore, even if Drs. Shanahan and Fay are basing their analysis on an incomplete factual premise, the Board remains prohibited from assuming that more information would necessarily change the doctors' opinion. 3 Kahana v. Shinseki, 24 Vet. App. 428, 439 n.8 (2011) (Lance, J., concurring) (distinguishing an incorrect factual premise, which has no probative value, from an incomplete factual premise). Even if the doctors' opinions are based on an incomplete medical premise, they may still indicate service connection, which would trigger the Secretary's duty to assist by providing a medical exam. Id. Dr. Shanahan stated that he "believe[s] that Mr. Yohan acquired this infection prior to his retirement from the United States Navy." R. at 523. Dr. Fay states: "It is clear that his respiratory process which is a severe one clearly dates back to his active duty period . (I myself took care of him back in 1977.)" R. 525. Both doctors treated the appellant shortly after his retirement; Dr. Shanahan continues to treat the appellant. R. at 523-525. Both doctors assert that the appellant's condition is service connected, and their statements were accepted by the Board as new and material evidence sufficient to reopen the appellant's claim. R. at 11. See 38 C.F.R. § 3. 156 (2011). In Colvin v. Derwinski, 1 Vet.App. 171 (1991), rev'd on other grounds, 155 F.3d 1356 (Fed. Cir. 1998), the Court held that the Board, "in finding that the new evidence did not provide a new factual basis for a claim was, in effect, refuting the expert medical conclusions in the record with its own unsubstantiated medical conclusions." Id. at 175. The Board "'must consider only independent medical evidence to support [its] findings rather than provide [ its] own medical judgment in the guise of a Board opinion'" so that " 'all medical evidence contrary to the veteran's claim will be made known to him and be a part of the record before this Court.'" Kahana, 24 Vet.App. at 434 (quoting Colvin, 1 Vet.App. at 172, 175). Therefore, this claim is remanded for the Secretary to provide a medical opinion or to adequately explain why one is not necessary and make a determination on the appellant's claim that is based on independent medical evidence. III. CONCLUSION After consideration of the appellant's and the Secretary's briefs, and a review of the record, the Board's February 12, 2010, decision is VACATED and the matter is REMANDED to the Board for further proceedings consistent with this decision. DATED: September13, 2011 4 Copies to: Robert W. Legg, Esq. VA General Counsel (027) 5

Single Judge Application, Probative Value of Medical Opinion Comes From its Reasoning, Nieves-Rodriguez v. Peake, 22 Vet.App. 295, 304(2008)

Excerpt from decision below: "Because this Court has previously explained that "most of the probative value of a medical opinion comes from its reasoning," the Court concludes that there was a plausible basis for the Board's determination that the private physician's opinions were entitled to minimal probative value. Nieves-Rodriguez v. Peake, 22 Vet.App. 295, 304 (2008)." ========================================= ---------------------------------------------------- Designated for electronic publication only UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS NO. 10-2246 EZZIE THOMAS, 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: Ezzie Thomas appeals through counsel a June 7, 2010, Board of Veterans' Appeals (Board) decision that denied entitlement to VA benefits for right and left knee disorders. Mr. Thomas's Notice of Appeal was timely, and the Court has jurisdiction to review the Board decision pursuant to 38 U.S.C. § 7252(a). Neither partyrequested oral argument or identified issues they believe require a precedential decision of the Court. Because the Board relied on an adequate VA medical examination, adequately explained its determination regarding the weighing of countervailing medical opinions, and considered all material issues of law, the Court will affirm the June 2010 Board decision. I. FACTS Mr. Thomas served on active duty in the U.S. Air Force from September 1949 to January 1953. No abnormalities of the extremities or joints were noted during his entrance examination. Most of the remainder of Mr. Thomas's service treatment records are presumed to have been destroyed in the July 1973 fire at the National Personnel Records Center in St. Louis, Missouri. A June 2001 VA treatment note indicates that Mr. Thomas sought treatment for right knee pain and was referred for a knee brace. Similar complaints were noted in VA treatment notes from March and April 2002. For instance, an April 2002 note indicates that Mr. Thomas taught "tennis to inner city kids [t]wo days weekly" and that "[h]is knee bother[ed] him after heavy work out[s]." Record (R.) at 816. Another April 2002 note reflects that Mr. Thomas reported a history "of remote sports injuries, but . . . no surgeries," and that he had been experiencing symptoms associated with the right knee for over 20 years. X-rays taken at that time "revealed severe narrowing of the medial joint line with multiple marginal osteophytes"1 and "severe degenerative changes of the patellofemoral joint," leading to a diagnosis of degenerative joint disease and chondromalacia.2 R. at 821. In March 2004, Mr. Thomas filed a claim for VA benefits for a "bilateral knee condition due to playing football while on active duty in the U.S. Air Force."3 R. at 858. In December 2004, one of Mr. Thomas's fellow servicemembers submitted a statement indicating that while the men "were stationed at Bergstrom Air Force Base [they] tried out for the football team," but that Mr. Thomas was unable to continue practicing after he "injured his knees early in the season," which caused him to walk with "a pronounce[d] limp as he moved about the base." R. at 841. In a June 2005 rating decision, a VA regional office denied Mr. Thomas entitlement to VA benefits for left and right knee conditions. Mr. Thomas filed a Notice of Disagreement with this decision in March 2006. His Notice of Disagreement was accompanied by a letter from his wife, in which she stated that Mr. Thomas played football while at Bergstrom Air Force Base and, "[o]n several occasions[,] he would come home with knee or ankle injuries" that she treated with massages and heat applications. R. at 794. Mr. Thomas also submitted a letter from a private physician. The physician stated that he reviewed the statements submitted by Mr. Thomas's wife and fellow servicemember and that Mr. Thomas "sustained multiple traumatic injuries during his tenur[e]." R. at 795. The private physician then opined that he could, "with reasonable certainty[,] state that [Mr. Anosteophyteisa"bonyexcrescence or osseous outgrowth." DORLAND'SILLUSTRATEDMEDICALDICTIONARY 1348 (32d ed. 2011) [hereinafter DORLAND'S]. 2 1 Chondromalacia is "softening of the articular cartilage, most frequently in the patella." DORLAND'S at 352. Mr. Thomas characterized this as a claim to reopen a previously denied claim for such benefits, but the record contains no indication that he previously applied for and was denied benefits for a bilateral knee condition and VA therefore adjudicated his claim as though it were an initial claim for benefits. 3 2 Thomas's] time on the football field in the military contributed to his present degenerative joint disease of his knees." R. at 795. VA medical records dated between August 2005 and February 2007 continue to reflect complaints of bilateral knee pain resulting in diagnoses of degenerative joint disease. After further development, Mr. Thomas appealed to the Board, which remanded his claims in June 2009 so that a VA medical examination could be obtained. This medical examination was conducted in September 2009. The examiner's report indicates that there were "[n]o records of any knee pain or issues while in service" and Mr. Thomas "[d]enie[d] any history of knee pain while in service"; that he had "[n]o history of traumatic injury to [his] knees during service"; and that his condition had not previously required surgery. R. at 75. After a physical examination, the examiner diagnosed Mr. Thomas with bilateral moderate knee degenerative joint disease. He concluded, however, that this condition was less likelythan not related to Mr. Thomas's militaryservice because "[t]here [was] no history or record of a traumatic injury in the service to explain [his] current [degenerative joint disease]" and "it is unlikely that [four] years of service, or 1.5 years of football (without significant knee injury)[,] would have degenerated his knee to its current condition." R. at 77. Instead, the examiner opined that Mr. Thomas's "current knee condition is more likely a result of age-related degenerative changes." R. at 77. In November 2009, this opinion was returned to the VA examiner for clarification. Specifically, the decision review officer instructed the examiner to provide a new opinion that "include[d] a discussion of the creditable lay evidence submitted by [Mr. Thomas's] wife, . . . Army buddy[,] . . . and the statement from his private physician." R. at 67. In response, the VA examiner issued an addendum to his earlier report in January 2010. The VA examiner's opinion was identical to that previously provided, except that it also discussed the relevant lay and medical evidence, as directed. With regard to the lay statements, the VA examiner "acknowledge[ d] that [Mr. Thomas] played football and sustained injuries in this sport," but concluded that it was still "more likely that [his] advanced age[] and normal articular cartilage degenerative changes are responsible for his current [degenerative joint disease] than his football playing." R. at 54. With regard to the private physician's letter, the VA examiner stated that he disagreed with the private physician's opinion because, absent evidence that those injuries required hospitalization or surgery, Mr. Thomas's 3 "advanced age, activities, and other factors were more significant in the development of [degenerative joint disease] than his brief tenure of football while in service." R. at 54. InMarch2010,Mr.Thomas's privatephysiciansubmittedasecondletterdetailingstatements made by Mr. Thomas's wife regarding her husband's history of knee problems. Specifically, the letter noted that Mr. Thomas's wife indicated that her husband "took lots of over the count[er] medications" and "refused corrective surgical interventions because he saw . . . bad outcomes with [his] buddies," and that "[h]is knee problems stopped him from running around when all of his buddies were 'wide open.'" R. at 19. The examiner then opined that Mr. Thomas had "advanced arthritis in both knees and his military career had a negative impact on his knee health." R. at 21. The Board issued the decision now on appeal in June 2010, concluding that the preponderance of the evidence did not indicate that Mr. Thomas's current bilateral degenerative joint disease was related to his service and therefore denying his claims. In reaching this conclusion, the Board afforded "great probative value [to the VA examiner's opinion because] it was based on a review of the file, an examination of [Mr. Thomas], and . . . a rationale was provided." R. at 7. The Board concluded that this opinion outweighed those provide by the private physician because "the private physician did not provide a rationale for his nexus opinion." R. at 8. The Board also found that "the absence of medical complaint of a bilateral knee condition for many years after service [was] highly probative evidence against [Mr. Thomas's] claim." R. at 8. Finally, the Board found all of the lay evidence of record credible and that it therefore constituted evidence of an in-service injury. However, the Board found that none of this "evidence show[ed] that [ Mr. Thomas] had arthritis to any degree within one year of separation of service" and that, although Mr. Thomas had related his in-service football injury to his current bilateral knee condition, "his opinion [was] outweighed by the more probative medical opinion of record." R. at 8. On appeal, Mr. Thomas contends that the September 2009 VA medical examination was inadequate, even in light of the January 2010 addendum. He also argues that the Board failed to provide adequate reasons or bases for its determination that the VA examiner's opinion was more 4 probative than the private physician'sopinions. Finally,hecontendsthat the Board failed to consider whether his degenerative joint disease should be service connected as a chronic condition.4 The Secretary argues that the VA medical examination was adequate, that the Board adequatelyexplained its determinationthattheexaminer's resultingopinion wasmoreprobativethan that offered by the private physician, and that the record simply does not provide any evidence that Mr. Thomas's current degenerative joint disease of the knees manifested itself as a chronic condition during his service or within the relevant presumptive period. II. ANALYSIS A. Adequacy of the VA Medical Examination The Secretary "shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claimant's claim for a benefit under a law administered by the Secretary." 38 U.S.C. § 5103A(a)(1). The Secretary's duty to assist a claimant includes, among other things, "providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessaryto make a decision on the claim." 38 U. S.C. § 5103A(d)(1); see 38 C.F.R. § 3.159(c) (2011). The medical examination provided must be "thorough and contemporaneous" and consider prior medical examinations and treatment. Green v. Derwinski, 1 Vet.App. 121, 124 (1991). A medical examination is adequate "where it is based upon consideration oftheveteran's priormedicalhistoryandexaminationsandalsodescribesthedisability . . . in sufficient detail so that the Board's 'evaluation of the claimed disability will be a fully informed one.'" Stefl v. Nicholson, 21 Vet.App. 120, 123 (2007) (quoting Ardison v. Brown, 6 Vet.App. 405, 407 (1994)). If an examination report does not contain sufficient detail, "it is incumbent upon the rating board to return the report as inadequate for evaluation purposes." 38 C.F.R. § 4.2 (2011); see Bowling v. Principi, 15 Vet.App. 1, 12 (2001) ( emphasizing the Board's dutyto return inadequate examination report). The Board maycommit error requiring remand when 4 Mr. Thomas does not allege that VA failed to satisfy any of its enhanced duties that arose due to his missing service medical records. See Washington v. Nicholson, 19 Vet.App. 362, 370 ( 2005) (explaining that where a veteran's are presumed to have been lost or destroyed while inthe possession ofthe government, VA's dutyto assist is heightened); O'Hare v. Derwinski, 1 Vet.App. 365, 367 (1991) ("[W]here the service medical records are presumed destroyed . . . the [Board]'s obligation to explain its findings and conclusions and to consider carefully the benefit-of-the-doubt rule is heightened."). 5 it relies on an inadequate medical examination. See Ardison, 6 Vet.App. at 407 (holding that an inadequate medical examination frustrates judicial review). Whether a medical opinion is adequate is a finding of fact, which the Court reviews under the "clearlyerroneous" standard. See 38 U.S.C. § 7261(a)(4); D'Aries v. Peake, 22 Vet.App. 97, 103 (2008); Gilbert v. Derwinski, 1 Vet.App. 49, 52 (1990). "A factual finding 'is "clearly erroneous" when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.'" Hersey v. Derwinski, 2 Vet.App. 91, 94 (1992) (quoting United States v. U.S. Gypsum Co., 333 U. S. 364, 395 (1948)). Here, Mr. Thomas argues that the VA medical examiner's report was inadequate because it failed "to properly consider the injuries described in the lay statements in spite of . . . VA's determination that those lay statements were credible." Appellant's Brief ( Br.) at 4. The Court disagrees. The VA examiner's initial opinion failed to discuss the lay statements of Mr. Thomas's wife and the fellow servicemember. Accordingly, the decision review officer returned the examination report as inadequate, directed the examiner to consider those lay statements, which were described as credible, and further instructed him to offer a new opinion that directly addressed the lay statements. See R. at 67; see also 38 C.F.R. § 4.2. In the January 2010 addendum to the initial report, the VA examiner acknowledged these lay statements and accepted that they were evidence that Mr. Thomas played football for approximately 1.5 years during his service and that he suffered knee injuries as a result, but noted that the lay statements did not indicate that these injuries required hospitalization or surgery. The examiner then opined that, without evidence of an injury so severe that it required hospitalization or surgery, it remained more likely that Mr. Thomas's current degenerativejoint diseasewascausedbythenormalagingprocess thanhis in- servicefootball-related experiences. In light of this portion of the examiner's January 2010 addendum, the Court concludes that there is no foundation for Mr. Thomas's argument that the VA examiner failed to properly consider the laystatements and the Board therefore did not clearlyerr in concluding that the examiner's report was adequate. See D'Aries, 22 Vet.App. at 103. 6 B. Reasons or Bases Mr. Thomas next argues that the Board failed to adequately explain its decision to afford greater probative value to the VA medical examiner's opinion than those offered by his private physician. It is for the Board to weigh the evidence in the first instance, Washington, 19 Vet.App. at 369, and the Court may not substitute its judgment for the determinations of the Board on an issue of material fact. Hersey, 2 Vet.App. at 94. Accordingly, the Board's assessment of the credibility and weight to be given to evidence is a finding of fact that the Court reviews under the "clearly erroneous" standard of review. 38 U.S.C. § 7261(a)(4); Wood v. Derwinski, 1 Vet.App. 190, 193 (1991); Gilbert, 1 Vet.App. at 52. To this end, it is well established that the Board is permitted to favor one medical opinion over another provided that it gives an adequate statement of its reasons and bases for doing so. See Simon v. Derwinski, 2 Vet.App. 621, 622 (1992). To comply with this requirement, the Board's explanation must beadequateto enableaclaimant to understand the precise basis for the Board's decision, as well as to facilitate review in this Court. Gilbert, 1 Vet.App. at 57. Here, the rationale the Board provided for favoring the VA examiner's opinion over those provided bythe private physician was that, whereas the VA examiner based his opinion "on a review of the file[ and] an examination of [Mr. Thomas], and . . . [provided] a rationale" for his opinion, R. at 7, "the private physician did not provide a rationale for his nexus opinion." R. at 8. After reviewing the private physician's opinions, the Court agrees that they are unsupported by medical reasoning. In fact, Mr. Thomas appears to concede this point, as he argues that the VA examiner's opinion also was unsupported by a rationale, meaning that the countervailing opinions were equally probative and he should have been afforded the benefit of the doubt. Appellant's Br. at 6 (citing 38 U.S.C. § 5107(b)). Because this Court has previouslyexplained that " most of the probative value of a medical opinion comes from its reasoning," the Court concludes that there was a plausible basis fortheBoard's determination thattheprivatephysician's opinions wereentitledtominimal probative value. Nieves-Rodriguez v. Peake, 22 Vet.App. 295, 304 (2008). Furthermore,theCourtdisagreeswith Mr.Thomas's argumentthattheVAmedicalexaminer likewise failed to provide a rationale for his opinion. As discussed above, the VA medical examiner explained in his January2010 addendum that, without evidence of an injuryso severe that it required 7 hospitalization or surgery, Mr. Thomas's current bilateral knee degenerative joint disease was more likely attributable to the natural aging process than his football-related injuries. As a medical rationale was, therefore, provided by the VA examiner, the Court concludes that there was a plausible basis for the Board's determination that the VA examiner's opinion was entitled to greater probative value than those offered bythe private physician, and that the Board adequately explained its determination on this point. See Simon, 2 Vet.App. at 622; Wood, 1 Vet. App. at 193. C. Consideration of Chronicity Finally, Mr. Thomas argues that the Board failed to consider whether, pursuant to 38 C.F.R. § 3.303(b), the lay statements of record constituted evidence of in- service symptoms of a chronic condition from which he also now suffers. In relevant part, § 3.303(b) provides: With chronic disease shown as such in service (or within the [one-year] presumptive period under [38 C.F.R.] § 3.307) so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearlyattributable to intercurrent causes. This rule does not mean that any manifestation of joint pain . . . in service will permit service connection of arthritis . . . first shown as a clearcut clinical entity, at some later date. For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "Chronic." This Court has explained that this provision is for application "when the evidence demonstrates: (1) that the veteran had a chronic disease in service, or during an applicable presumption period . . . and (2) that the veteran presently has the same condition." Savage v. Gober, 10 Vet.App. 488, 495 (1997). Here, Mr. Thomas contends that "the [Board] did not discuss or consider whether the symptoms the veteran suffered in service, pain and swelling, were manifestations of the chronic condition from which he now suffers." Appellant's Br. at 7. He does not, however, specifically identify the evidence of record that he contends demonstrates the onset of " clearcut clinical" degenerative joint disease of the knees while he was in service, meaning evidence demonstrating "a combination of manifestations sufficient to identify" in-service degenerative joint disease and "to establish chronicity at the time." 38 C.F.R. § 3.303(b). It is Mr. Thomas's burden to demonstrate Board error and, without so much as identifying the specific evidence in the record of proceedings 8 that he contends triggered the provisions of § 3.303(b), he cannot carry this burden. See Hilkert v. West, 12 Vet.App. 145, 151 (1999) (holding that the appellant has the burden of demonstrating error), aff'd, 232 F.3d 908 (Fed. Cir. 2000) (table). In fact, it does not appear that Mr. Thomas even alleges that he did suffer from chronic degenerative joint disease of the knees while in service or during the presumptive period following his separation from service; instead, he only alleges that he experienced knee pain and swelling during service. However, without more, this is not sufficient to indicate the onset of a chronic condition during service or the presumptive period. As § 3.303(b) expresslyprovides, the rule it sets forth "does not mean that any manifestation of joint pain . . . in service will permit service connection of arthritis . . . first shown as a clearcut clinical entity, at some later date." Here, even the private physician who offered opinions on Mr. Thomas's behalf did not state that Mr. Thomas's in-service knee pain and swelling were caused bychronic degenerative joint disease that manifested at that time. Instead, he merely opined that his in-service football injuries were likely the cause of his current degenerative joint disease of the knees. The Board is only required to discuss the provisions of law that the record indicates are material to a veteran's claim. See 38 U.S.C. § 7104(d)(1) (requiring the Board to provide a written statement of the reasons or bases for its "findings and conclusions[] on all material issues of . . . law presented on the record"). Without some indication in the record that Mr. Thomas had chronic degenerative joint disease of the knees during service or within one year thereafter, the Board was under no obligation to discuss the chronicity provisions of § 3.303(b). Id.; see also Savage, 10 Vet.App. at 495. III. CONCLUSION Upon consideration of the foregoing, the June 7, 2010, Board decision is AFFIRMED. DATED: September 13, 2011 Copies to: Shannon L. Brewer, Esq. VA General Counsel (027) 9

Single Judge Application, Service Trauma, Nielson v. Shinseki, 607 f.3d 802 (Fed.Cir 2010)

Excerpt from decision below: "It is now settled that "service trauma means an injury or wound produced by an external force during the service member's performance of military duties." Nielson v. Shinseki, 607 F.3d 802, 808 (Fed. Cir. 2010)." =========================================== ---------------------------------------------------- Designated for electronic publication only UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS NO. 10-0373 ROBERT VAUGHN, 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 Robert Vaughn appeals through counsel from a January 11, 2010, Board of Veterans'Appeals (Board) decisionthatdeniedserviceconnection fora headache disorder, to include migraines, and for dental trauma to teeth 5 to11 for purposes of eligibility for VA dental treatment. For the following reasons, the Court will affirm the Board's January 2010 decision. The appellant served on active duty from April 9, 1968, to April 10, 1970. The reports from the induction and separation examinations are mixed together out of sequence in the record and the notations therein are quite cryptic, preventing verification of the dates of treatment for each of the teeth at issue in this case. It is clear, however, that during service the appellant was provided a bridge from tooth 5 to tooth ll. In the course of preparing for the installation of this bridge, tooth 7, which was malaligned, was removed in December 1969 to facilitate the effectiveness of the bridge.1 The records state: "Pt [patient] acceptance very good" (Record (R.) at 545 ), and the bridge was cemented into place. The appellant now complains that the bridge is broken and that the anchor The separation examination nevertheless contains a notation designating tooth 7 as "restorable," the meaning of which is not at all evident to the Court. See R. at. 540 1 teeth (5 and 11), which were filed down to accommodate installation of the bridge, are now deteriorating. He seeks dental treatment benefits to address this condition. The appellant advances several arguments for the Court's consideration. He argues that the Board's statement of reasons or bases is inadequate for failure to discuss the extraction of teeth 7 and 19, which were extracted after a sufficient time in service such that theymight be eligible for service connection. See 38 C.F.R. § 3.381 (2011). He further asserts that the regional office (RO) premised its decision on factually erroneous information as to when these teeth were extracted and the Board did not explain why these extractions did not meet the requirements for service connection under 38 U.S.C. § 1712. He asserts that the VA notice letters on which the Board relied failed to satisfy 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)). Specifically, he urges that the notice letters were deficient because they never advised him that he must submit evidence of service trauma. He argues that VA failed in its duty to assist by failure to obtain medical records pertaining to his postservice dental treatment and by failing to provide a medical examination. Additionally, he argues for the first time on appeal that the Board erred byfailing to consider a claim for headaches as secondary to his dental condition. I. ANALYSIS Congresshaschosento limit theextent to which dentalconditions maybeserviceconnected. See 38 U.S.C. § 1712. Compensable disability ratings are available only for service-related loss of basic bone structure in the jaws or hard palate.2 See 38 C.F.R. § 4.150 (2011). Other dental conditions maybeserviceconnectedsolelyforpurposes of treatment if certain requirements aremet. Some conditions treated in service will be eligible for VA treatment, but only if the conditions existed at discharge and an application for treatment is submitted within 180 days of discharge. See 38 U.S.C. § 1712(a)(1)(B)(i), (iii); 38 C.F.R. § 17.161(b) (2011). Among the other conditions eligible for postservice treatment are those "due to combat wounds or other service trauma." The Board noted that the RO considered and rejected a claim for a compensable dental condition in a February 2009 rating decision. See R. at 47. The Board stated: "The veteran has not disagreed with that decision, and no claim regarding compensation for a dental disorder is before the Board." R. at 4. 2 2 38 U.S.C. § 1712(a)(1)(C). A. Reasons or Bases Argument The appellant argues first that the Board did not sufficiently discuss the extraction of teeth 7 and 19, both of which were extracted more than 180 days after induction. See 38 C.F.R. § 3.381(d)(1). This argument reveals that the appellant may not have fully grasped the interrelationship of the regulations implementing 38 U.S.C. § 1712. A noncompensable dental condition maybeserviceconnectedyetstill ineligibleforpostservicedentaltreatment. Seegenerally 38 C.F.R. § 17.161. Postservice treatment of dental conditions treated in service is generally available only when an application for benefits is made within six months after discharge. The appellant points to no evidence that he ever submitted such a postservice application and the Court's review of the record reveals none. He sought service connection only in 2006. WhiletheBoarddid not maketheforegoingexplanation, theappellanthasnot explained how such a discussion might affect the outcome in his case. See Soyini v. Derwinski, 1 Vet.App. 540 (1991) (Court will not require strict adherence to reasons-or-bases requirement when it results in additional burdens on the Board and VA with no possible benefit flowing to the veteran). The Board focused on the onlystatutoryand regulatoryprovisions under which the appellant might have been eligible for the sought-after postservice treatment. A noncompensable service- connected dental condition will be eligible for postservice VA treatment if it is "due to combat wounds or other service trauma." 38 U.S.C. § 1712(a)(1)(C); 38 C.F.R. §§ 3.381(b), 17.161(c). It is now settled that "service trauma means an injury or wound produced by an external force during the service member's performance of military duties." Nielson v. Shinseki, 607 F.3d 802, 808 (Fed. Cir. 2010). Furthermore,"[t]his definition excludes the intended result of proper medical treatment." Id. In the decision here on appeal the Board found that "[s]ervice dental records establish that the Veteran did not incur trauma to [teeth 5 to 11], and that a bridge from tooth #5 to tooth #11 was provided because the Veteran's crossbite could not otherwise be corrected." R. at 4. The Board further concluded that "the Veteran was provided with a bridge in service, but [] the bridge was not required as the result of a combat Previous HitinjuryNext Document or trauma." R. at 15. The Court's review of the record reveals no indication of trauma to any of the teeth extracted and the appellant points to none. 3 B. VCAA Notice Issues The appellant argues that the VCAA notice letter was deficient because "[n] one of the VA letters sent to the veteran prior to the first denial of benefits . . . notified the veteran that the claim depended on whether the dental condition was due to service trauma." Appellant's Brief at iii. The Board relied on VA notice letters sent in March 2006 and July 2006. The former is a generic letter listing the requirements for a generic claim for disability benefits and the latter is missing from the record before the Court. This Court has indicated that VCAA notice mayneed to be tailored to the nature of the claim. See Kent v. Nicholson, 20 Vet.App. 1 (2006). The March 2006 notice letter does not address a claim for treatment benefits for a dental condition or the type of evidence that will support such a claim. Because the July 2006 letter is not available in the record for the Court's review, the Court will assume, for purposes of this analysis only, that the VCAA notice letters failed to properly advise the appellant as to the type of evidence required. The appellant argues that such an error would be a TypeIerror,whichwould be presumptivelyprejudicial. See Mayfieldv.Nicholson, 19Vet.App.103 (2005). The U.S. Supreme Court has warned, however, against "courts'determining whetheran error is harmless through the use of mandatory presumptions and rigid rules rather than case-specific application of judgment, based upon examination of the record." Shinseki v. Sanders, 129 S. Ct. 1696, 1704-05 (2009) (emphasis added); see also Mlechick v. Mansfield, 503 F.3d 1340, 1345 (Fed. Cir. 2007) (Court may"go outside of the facts as found by the Board to determine whether [a VCAA notice] error was prejudicial by reviewing 'the record of proceedings before the Secretary and the Board'"). The Court's review of the record in this case reveals no contention, much less any evidence, that the removal of the appellant's teeth and the installation of the bridge was due to service trauma as defined in Nielson, supra. The appellant does not so contend in his brief and identifies no evidence that the appellant might have submitted tending to show service trauma. More important, the evidence of record uniformly indicates that the removal of certain teeth in service was the intended result of proper dental treatment, which negates the existence of service trauma as a matter of law. Therefore, the Court concludes that any VCAA notice error in failing to advise of the 4 necessity of evidence of service trauma did not prejudice the appellant. In the clear absence of service trauma there was no legal basis upon which benefits could be awarded. See Mlechick, 503 F.3d at 1345 (no prejudice where benefit could not have been awarded as a matter of law). The record rebuts any presumption that may yet arise under Mayfield. C. Duty To Assist The appellant further argues that VA failed to comply with its duty to assist because it did not obtain postservice treatment records. The duty to assist pertains to relevant records adequately identified. See 38 U.S.C. § 5103A(b). The Board concluded that "for purposes of determining the Veteran's eligibility status for outpatient dental treatment, the post- service dental records are not relevant, as the governing regulations assign dental status based only on the conditions and circumstances of the Veteran's service, such as whether he sustained combat injuryor trauma or was a prisoner of war (POW)." R. at 9. Further, the Board noted that "neither the Veteran nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of any claim at issue that has not been obtained." Id. The appellant asserts that "[t]he [postservice] records might have supported the position that the Veteran's dental condition was due to trauma in service." Appellant's Brief at 18. He does not venture any explanation, however, as to how such records could have supported service trauma. It is not at all clear that the treatment reports of dentists years after service could suggest that the absence of the teeth replaced by the bridge is due to in-service trauma. In any event, the appellant has not established that the postservice dental records were either relevant or identified. Therefore, the Court will affirm the Board's denial of entitlement to VA dental treatment for the dental condition associated with the bridge. Simply put, the appellant has offered no evidence that he meets the stringent requirements set by Congress for such benefits. D. Headaches The appellant does not assert any argument that the Board erred in denying service connection for his headaches on a direct basis. Therefore, the Court deems any issue with respect to that determination to be abandoned. See Cromer v. Nicholson, 19 Vet.App. 215, 217 (2005). He does argue, however, that the Board erred in not consideringhis headaches as a secondary effect of his dental condition. Setting aside the fact that the appellant's dental condition is not 5 currently service connected, the record does not reveal that the appellant ever argued for headaches as secondary to his dental condition before the Board. Moreover, the record evidence cited does not raise that possibility. The Court is therefore unable to conclude that the Board erred in failing to discuss such a secondary claim. II. CONCLUSION On consideration of the foregoing, the Court AFFIRMS the Board's January 11, 2010, determination that the appellant is not entitled to VA treatment for his dental condition. DATED: September 13, 2011 Copies to: Kenneth L. LaVan, Esq. VA General Counsel (027) 6