Thursday, September 29, 2011

Single Judge Application, Pain, C.F.R. 3.159(c)(4)(i)(A), Locklear v. Nicholson, 20 Vet.App. 410, 418 n.6 (2006)

Excerpt from decision below: "While pain alone is not a disability for compensation purposes, it may constitute a symptom of a disability about which the appellant is competent to testify. See Locklear v. Nicholson, 20 Vet.App. 410, 418 n.6 (2006) (noting that the appellant's chest pains may alone suffice to satisfy the first prong of 38 C.F.R. § 3.159(c)(4)(i)(A))." ==================================== "Where the following four criteria are present, the Secretary is required to provide a medical examination to a veteran seeking disability compensation: (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; (3) an indication that the disability or persistent symptoms of a disability maybe associated with the veteran's service or with another service-connected disability; and (4) insufficient competent medical evidence on file for the Secretary to make a decision on the claim. McLendon v. Nicholson, 20 Vet.App. 79, 81 (2006) (citing 38 U.S.C. § 5103A(d)(2)). In deciding whether an examination is necessary, the Secretary must consider the record as a whole, "taking into consideration all information and lay or medical evidence (including statements of the claimant)." 38 U.S.C. § 5103A(d)(2). The third criterion, associating a disability or persistent symptoms thereof with service, is a "low threshold," McLendon, 20 Vet.App. at 83, which requires neither medical nor necessarily competent evidence to substantiate it. See Waters v. Shinseki, 601 F.3d 1274, 1277 (Fed. Cir. 2010) ===================================== ---------------------------------------------------- Designated for electronic publication only UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS NO. 09-3177 LOWELL D. JOHNSON, APPELLANT, V. ERIC K. SHINSEKI, SECRETARY OF VETERANS AFFAIRS, APPELLEE. Before SCHOELEN, Judge. MEMORANDUM DECISION Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent. SCHOELEN, Judge: The appellant, Lowell Johnson, appeals through counsel a May 19, 2009, Board of Veterans' Appeals (Board) decision that denied his request for entitlement to service connection for a left knee disability and a right knee disability; a compensable disability rating for service-connected hypertension; and a disability rating in excess of 20% for service-connected peripheral neuropathy of the right lower extremity. This appeal is timely, and the Court has jurisdiction to review the Board's decision pursuant to 38 U.S.C. §§ 7252(a) and 7266(a). Single-judge disposition is appropriate. See Frankel v. Derwinski, 1 Vet. App. 23, 25-26 (1990). For the following reasons, the Court will vacate the Board's May 19, 2009, decision and remand these matters for further proceedings consistent with this opinion. I. BACKGROUND The appellant served on active dutyin the U.S. Army from July1967 until March 1970, with service in Vietnam. Record of Proceedings (R.) at 2373. His service medical records (SMRs) indicate that he twisted his knee in November 1967 and again the next month. R. at 2451. Neither entry indicates which knee the appellant injured. However, a radiographic report from December 1967 states under the clinical history section: "Pain L[eft] knee since November." R. at 2450. During his March 12, 1970, separation examination the appellant indicated that he had a "trick" or locked knee. R. at 2455. However, the results of the examination showed " normal" lower extremities. R. at 2453. A VA examination on August 4, 2003, reported a history of hypertension, neuropathy, right knee arthroscopic surgery in 1988, and "f[ractured] left patella." R. at 2430. In September 2003, the appellant was examined for left knee pain subsequent to a fall. R. at 2427-29. An x-rayrevealed "[o]ld adductor magnus insertion avulsion, which is solid healed with deformity. The knee joint is otherwise normal." R. at 2428. The same examination diagnosed well- controlled hypertension. R. at 2429. In November 2004, the appellant filed a claim for entitlement to service connection for several different medical conditions including diabetes, leg neuropathy, and bilateral knee disabilities. R. at 2436-47. After considering the appellant's SMRs, VA treatment records from 2003 to 2005, and a compensation and pension (C & P) examination for peripheral neuropathy on 2005, the regional office (RO) granted service connection for peripheral neuropathywith a disability rating of 10%, but denied entitlement for service connection for the appellant's bilateral knee condition and hypertension in April 2005. R. at 2375-88. The RO received additional VA medical treatment records after the appellant filed a Notice of Disagreement. The treatment records from November 30, 2005, document that the appellant complained of chronic pain in several joints, including his knee. R. at 2275. The records also document a diagnosis of hypertension from 1993 and arthroscopic knee surgeryin 1988. R. at 2766. The appellant's treatment records from June 2005 document a surgical history of "R[ight] knee x 2 for [a] Baker's cyst [and] tendon repair." R. at 2217. The RO granted service connection for hypertension in March 2006, but assigned a noncompensable disability rating. R. at 1398-1402. The appellant's C & P examination for hypertension and peripheral neuropathy from June 2006 documents hypertension and right kneecap surgery in 1974. R. at 1304- 11. Following the appellant's Substantive Appeal, the RO obtained additional VA and private medical records that included blood pressure readings from 2007 and surgical histories documenting two right knee arthroscopic surgeries. R. at 125, 265, 1164. The RO issued a Supplemental Statement of the Case in May 2007, which continued to deny the appellant's claims. R. 988-92. 2 On March 23, 2009, the appellant appeared at an informal hearing before the Board. He argued that his claims for peripheral neuropathy and hypertension should be remanded to the RO for a contemporaneous medical examination. R. at 21-22. The appellant's representative argued: "The veteran believes that remand is necessary in this case because medical information of record is no longer probative . . . ." R. at 21. He also argued that his claims for his bilateral knee conditions should be remanded formedicalexaminations to determinetheetiologyoftheconditions and for VA to obtain medical records relating to his right knee surgeries. R. at 22- 24. In May 2009, the Board issued its decision granting an increased disability rating for peripheral neuropathy, but denying the appellant's other claims. R. at 3-19. II. ANALYSIS Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) incurrence or aggravation of a disease or injury in service; and (3) a nexus between the claimed in-service injury or disease and the current disability. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Hickson v. West, 12 Vet.App. 247, 252 (1999); Caluza v. Brown, 7 Vet.App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). A. Medical Examinations for Knees The appellant argues that the Secretary breached his duty to assist by failing to provide a VA medical examination to determine the etiology of his bilateral knee conditions. Appellant's Brief (Br.) at 6. In particular, he asserts that the evidence establishes that he suffers from a current bilateral knee disability and that his lay observations of a "persistent and chronic knee condition since service" and medical records documenting pain in both knees are sufficient to demonstrate the disability. Id. In response, the Secretary argues that the Board properly determined that there was insufficient evidence to show that there is a current disability in either knee, a chronic disability of the left knee in service, and an in-service injury to the right knee. Secretary's Br. at 3-7. Further, he respondsbyarguingthattheappellant's "vague"assertionsofa" persistentandchronickneecondition" 3 are insufficient to establish entitlement to an examination and that without evidence of an in-service injury of the right knee an examination could not provide the basis for service connection. Id. at 7. Where the following four criteria are present, the Secretary is required to provide a medical examination to a veteran seeking disability compensation: (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; (3) an indication that the disability or persistent symptoms of a disability maybe associated with the veteran's service or with another service-connected disability; and (4) insufficient competent medical evidence on file for the Secretary to make a decision on the claim. McLendon v. Nicholson, 20 Vet.App. 79, 81 (2006) (citing 38 U.S.C. § 5103A(d)(2)). In deciding whether an examination is necessary, the Secretary must consider the record as a whole, "taking into consideration all information and lay or medical evidence (including statements of the claimant)." 38 U.S.C. § 5103A(d)(2). The third criterion, associating a disability or persistent symptoms thereof with service, is a "low threshold," McLendon, 20 Vet.App. at 83, which requires neither medical nor necessarily competent evidence to substantiate it. See Waters v. Shinseki, 601 F.3d 1274, 1277 (Fed. Cir. 2010) The Court reviews the Board's conclusion that a medical examination or opinion is not necessary pursuant to section 5103A(d) under the "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law" standard of review pursuant to 38 U.S.C. § 7261(a)(3)(A). McLendon, 20 Vet.App. at 81. The Board's underlying determinations whether the appellant has a currentdisabilityandwhethertheappellantsufferedanin-serviceevent,injury, ordiseasearefindings of fact subject to the "clearly erroneous" standard of review. Id. at 82; see 38 U.S.C. § 7261(a)(4). In the decision here on appeal, the Board found that the evidence failed to establish that the appellant suffered from a left or right knee disability. R. at 6. The Board stated that "the records tend to show that he had no chronic disability of the left knee or injury to or disability of the right knee during service." Id. The Board went on to state: "[A]s there is no medical evidence of record of a current left or right knee disability or of a chronic left or right knee disability in service, under the facts of this case, the Board has no duty to provide a VA examination or obtain a medical opinion." R. at 16. 4 The Board found that because of the absence of an "underlying pathology" the appellant did not suffer from a bilateral knee disability, even though the appellant suffered from chronic knee pain. R. at 7. While pain alone is not a disability for compensation purposes, it may constitute a symptom of a disability about which the appellant is competent to testify. See Locklear v. Nicholson, 20 Vet.App. 410, 418 n.6 (2006) (noting that the appellant's chest pains may alone suffice to satisfy the first prong of 38 C.F.R. § 3.159(c)(4)(i)(A)). Consequently, the appellant's observations of persistent and chronic knee pain combined with medical records documenting pain in both of his knees and a history of knee surgeries may be sufficient to establish "competent evidence of a current disability or persistent or recurrent symptoms of a disability." McLendon, 20 Vet.App. at 81. There is no requirement that the appellant present evidence of a chronic knee disability in service. See id. Therefore, the Court will vacate the Board's decision and remand the matter for the Board to consider whether the record contains "competent evidence of . . . persistent and recurrent symptoms of a [bilateral knee] disability" and whether the symptoms may be associated with the appellant's service. See id. With respect to the right knee, the Board also determined there was no in- service injury. The Court finds that the Board failed to provide an adequate statement of reasons or bases with regard to its determination. See R. at 6; Allday v. Brown, 7 Vet.App. 517, 527 (1995 ) (the Board must provide a statement of reasons or bases adequate to enable a claimant to understand the precise basis for its determination, and to facilitate review in this Court); and Caluza, 7 Vet. App. at 506 (holding that Board must analyze the credibility of all evidence and provide the reasons for its rejection of any material evidencefavorableto theclaimant). TheBoardstatedthat:"[s] ervicetreatmentrecordsshow that the Veteran was treated for a twisted left knee in November and December 1967." R. at 5. However, the Board failed to explain how it reached this conclusion. There is ambiguity in whether the injuries in service are for only the left knee or for both knees. See R. at 2451. The SMR entries on November 27 and December 8 list only"twistedknee"without explaining which knee was treated. Id. Furthermore, in his separation physical, the appellant complained of a " trick" or locked knee without indicating which knee, or knees, the condition pertained to. R. at 2455. The Board's conclusory statement does not provide the Court with the kind of discussion required for it to 5 ascertain whether the Board fully considered the ambiguities in the appellant's records. Where appellatereview is frustrated because the Board provided inadequate reasons or basesfor its decision, remand is the appropriate remedy. See Cogburn v. Nicholson, 19 Vet.App. 427, 430 (2006). Accordingly, on remand, the Board must also reevaluate the evidence and provide an adequate statement of reasons or bases for its determination whether the record demonstrates that the appellant sustained an in-service injury to his right knee. When deciding whether an examination is necessary, the Board is reminded that it shall consider the evidence of record, "taking into consideration all information and lay or medical evidence (including statements of the claimant)." 38 U.S.C. § 5103A(d)(2); see, e.g., R. at 22, 2275 (appellant's lay statements that he has suffered from a persistent and chronic knee condition since service, and VA treatment records documenting complaints of chronic pain in the knee); R. at 2217 (appellant's medical records that list two right knee surgeries for a Baker's cyst and tendon repair under past surgical history); R. at 2428 (radiological report that stated that the x-ray of the appellant's left knee showed "[o]ld adductor magnus insertion avulsion, which is solid healed with deformity"); R. at 2430 (appellant's medical records indicating right knee arthroscopic surgeryin 1988 and "fx left patella"); and R. at 2455 (separation physical fromMarch1970thatreported a " trick"or locked knee). If, after applying the McLendon elements, the Board determines that a medical examination is not warranted, it must provide an adequate statement of reasons or bases in support of its decision. Duenas v. Principi, 18 Vet.App. 512, 519 (2004). B. Contemporaneous Examinations for Hypertension and Peripheral Neuropathy The Secretary's dutyto assist requires a thorough and contemporaneous medical examination when the record does not adequately reveal the current state of the claimant's disability. See 38 U.S.C. § 5103A(d)(1); Green v. Derwinski, 1 Vet.App. 121, 124 (1991); see also Caffrey v. Brown, 6 Vet.App. 377, 381 (1994). The record is inadequate and a contemporaneous examination is necessarywhen the "evidence indicates there has been a material change in a disability or that the current ratingmaybe incorrect." 38 C.F.R. § 3.327(a) (2011); seePalczewski v. Nicholson, 21Vet.App. 174, 182 (2007) (submission of new evidence or allegation that a disability has worsened may require a new medical examination to be provided, but "mere passage of time between those 6 events does not"); Caffrey, 6 Vet.App. at 381 (finding 23-month-old examination too remote to be contemporaneous where appellant submitted evidence indicating disability had since worsened); Olson v. Principi, 3 Vet.App. 480, 482 (1992) ("Where the veteran claims a disability is worse than when originally rated, and available evidence is too old to adequately evaluate the current state of the condition, the VA must provide a new examination."). Here, the Board did not address whether the duty to assist required VA to obtain another medical examination. The Board reviewed the March 2005 and June 2006 VA examinations for blood pressure readings, and based its peripheral neuropathy rating decisions on a June 2006 examination. R. at 9-10. The Court finds that the Board did not provide adequate reasons and bases for its decision to rely on the 2005 and 2006 examinations given the appellant's argument at his 2009 hearing that the medical examinations before the Board were not adequate to describe his current medical conditions. R. at 21 ("The veteran believes that remand is necessary in this case because medical information of record is no longer probative regarding the severity of his peripheral neuropathy of the right lower extremity and hypertension[.]" (emphasis added)). The Secretary argues that the appellant did not allege that his conditions had worsened; instead, he argues that the appellant was only basing his request for a new examination on the passage of time. Secretary's Br. at 7- 8. Although the appellant's argument is not a model of clarity, it is clear that he questioned the adequacy of the medical evidence of record and the Board did not address his assertions, frustrating judicial review. Accordingly, the Court will remand the appellant's claim for increased disability ratings for hypertension and peripheral neuropathy for the Board to provide an adequate statement of reasons or bases for its decision. See 38 U.S.C. § 7104(a), (d)(1); Duenas, 18 Vet. App. at 519 (remanding for Board to provide an adequate statement of reasons and bases for its decision that a VA medical examination was not required). C. Other Arguments Given this disposition, the Court will not, at this time, address the other arguments and issues raised by the appellant. See Best v. Principi, 15 Vet.App. 18, 20 (2001) ( per curiam order) (holding that "[a] narrow decision preserves for the appellant an opportunity to argue those claimed errors 7 before the Board at the readjudication, and, of course, before this Court in an appeal, should the Board rule against him"). On remand, the appellant is free to submit additional evidence and argument on the remanded matters, and the Board is required to consider any such relevant argument. See Kay v. Principi, 16 Vet.App. 529, 534 (2002) (stating that, on remand, the Board must consider additional evidence and argument in assessing entitlement to benefit sought); Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999) (per curiam order). The Court has held that "[a] remand is meant to entail a critical examination of the justification for the decision." Fletcher v. Derwinski, 1 Vet.App. 394, 397 (1991). The Board must proceed expeditiously, in accordance with 38 U.S.C. § 7112 (requiring the Secretary to provide for "expeditious treatment" of claims remanded by the Court.). III. CONCLUSION Afterconsideration of the appellant's and theSecretary's pleadings, andareviewof the record, the Board's May 19, 2009, decision is VACATED and the matter is REMANDED to the Board for further proceedings consistent with this decision. DATED: September 21, 2011 Copies to: Glenn R. Bergmann, Esq. VA General Counsel (027) 8

Single Judge Application, Attorney Resentation and Liberally Construed, Cogburn v. Shinseki, 24 Vet.App. 205, 213 (2010)

Excerpt from decision below: "This Court has recently clarified that, although a veteran's claim must always be liberally construed, "representation [by an attorney] may be a factor in determining the degree to which the pleading is liberally construed." Cogburn v. Shinseki, 24 Vet.App. 205, 213 (2010) (emphasis added)" ======================= ---------------------------------------------------- Designated for electronic publication only UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS NO. 10-1917 PAULINE C. BAKER, 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: Pauline C. Baker appeals through counsel a May 19, 2010, Board of Veterans' Appeals (Board) decision that reopened but denied a claim for entitlement to dependency and indemnity compensation. Mrs. Baker'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 party requested oral argument or identified issues theybelieve require a precedential decision of the Court. Because the Board failed to adjudicate all theories of entitlement reasonably raised by the record, the Court will vacate the May 2010 Board decision and remand the matter for further development, if necessary, and readjudication consistent with this decision. I. FACTS Mrs. Baker is the widow of veteran Richard J. Baker, who served on active dutywith the U.S. Navy from November 1962 to November 1966 and from May 1967 to December 1973. No abnormalities were noted at Mr. Baker's entrance examination. Service treatment records from December 1968 indicate that Mr. Baker twice sought treatment for headaches described as "persistent" and "frequent." Record (R.) at 208, 210. Similarly, a May 1971 service treatment note reflects Mr. Baker's complaints of headaches every other day that localized near the left temple and caused a pain that started as a dull ache but would get sharper. In June 1973, he again sought treatment for dizzy spells, sudden lightheadedness, and headaches. Post-service medical records from Air Force and Naval hospitals where Mr. Baker sought treatment between February 1976 and February 1987 indicate continued complaints of headaches and migraines, often described as vascular and persistent, recurring, or experienced for many years. In early March 1987, Mr. Baker was admitted to an Air Force medical center emergency room with recent symptoms of headaches, confusion, disorientation, lethargy, nausea, and slurred speech. A history of migraine headaches with an onset in 1972 was noted. Mr. Baker died on May 5, 1987. The immediate cause of death was presumed to be a midbrain tumor. Following an autopsy, however, the death certificate was amended to change the immediate cause of death to a stroke due to or a consequence of a vascular malformation. Major diagnoses at that time were "[m]arked diffuse autolytic change - brain ( 'Respirator Brain'), "[h]erniation of[the]midbrain,brainstem,cerebellartonsils,"and"[p]neumonia [ of the] right middle lobe." R. at 1097. In the autopsy report, the examiner stated that [g]ross examination of the optic chiasm[1 ] showed a web of anastomosing[2 ] small vessels surrounding it. Several of these were thrombosed.[3 ] The gross and microscopic appearance of these vessels was consistent with cerebral arterial occlusive disease. This is a rare disorder of uncertain etiology marked by occlusion of the main branches of the carotid artery with formation of collateral vessels. R. at 1099. The examiner explained that this rare disorder was known as Moyamoya Disease and that, although it was more prevalent in children, it was also known to occur in adults. He explained that "[t]he characteristic presentation in the adult patients was a sudden alteration in consciousness frequently associated with a massive subarachnoid bleed from the ruptured collaterals," and opined that "[t]his was probably the case with Mr. Baker." R. at 1099. The optic chiasm is "the part of the hypothalamus formed by the decussation, or crossing, of the fibers of the optic nerve from the medial half of each retina." DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 342 (32d ed. 2011) [hereinafter DORLAND'S]. 2 1 Anastomosis is "a connection between two vessels." DORLAND'S at 75. Thrombosis is "the formation, development, or presence of a thrombus." DORLAND'S at 1923. A thrombus is "a stationary blood clot along the wall of a blood vessel, frequently causing vascular obstruction." Id. 3 2 The examiner noted that Mr. Baker "had a history of migra[i]ne headaches that date[d] back to 1972," and that this history "suggest[ed] the presence of altered vascular reactivity." R. at 1099. The examiner also noted that Mr. Baker "had a history of smoking three to four packs of cigarette[s] per day for in excess of [25] years," which was "clinically significant in that smokers under 65 years have twice the death rate from coronary arterial occlusive disease than non-smokers." R. at 1098. The examiner then summarized his findings: "[T]he anatomic findings are consistent with a dia[g]nosis of cerebral arterial occlusive disease—Moyamoya [D]isease. The rupture of some of the collateralvesselsprobablyresultedin hemorrhage, increasedintracranialpressure[,] andMr.Baker's death." R. at 1100. Mrs. Baker applied for dependency and indemnity compensation in April 1987. This claim was denied by a VA regional office in July 1987 on the basis that the evidence did not indicate that Mr. Baker's death was service connected. Mrs. Baker did not appeal this decision and it became final. In December 2004, Mrs. Baker requested that her dependency and indemnity compensation claim be reopened and indicated that her late husband was involved in Project Shipboard Hazardand Defense (SHAD). Project SHAD "was part of the joint service chemical and biological warfare test program conducted during the 1960s" and "encompassed tests designed to identify US warships' vulnerabilities to attacks with chemical or biological warfare agents and to develop procedures to respond to such attacks while maintaining a war-fighting capability." R. at 136. In a July2006 compensation and pension examination inquiry, the regional office confirmed that Mr. Baker had participated in two Project SHAD operations, "Scarlet Sage[,] with exposure to Bacillus subtilis[4 ] var[iant] niger[,] also called Bacillus globigii[,] . . . and . . . Purple Sage[,] with exposure to Methylacetoacetate."5 R. at 268. The regional office therefore requested that a VA Bacillus is "a genus of bacteria of the family Bacillaceae, including large aerobic or facultatively anaerobic, spore-forming, rod-shaped cells, the great majority of which are gram- positive and motile. Most species are saprophytic soil forms; three are pathogenic or potentially pathogenic." DORLAND'S at 190. Bacillus subtilis is "a species that is a common saprophyte in soil and water, often a laboratory contaminant, and can cause conjunctivitis. It also produces the antibiotic bacitracin." Id. 5 4 The record indicates that Methylacetoacetate is "a sarin nerve agent simulant." R. at 136. 3 examiner determine "whether [Mr. Baker's] cause of death was a direct or contributory result of exposure to stimulants as a result of his participation in Project SHAD." R. at 269. This opinion was obtained from a VA neurologist later that month. After reviewing the claims file, the neurologist noted that "[t]he autopsy findings showed that [Mr. Baker] had cerebral vascular occlusive disease and vascular malformation causing him to have a stroke." R. at 240. With regard to the agents to which Mr. Baker was exposed during his involvement with Project SHAD, the neurologist stated that [a] tracer that was used of bacillus globigii has not been known to consistently cause disease in healthyadult humans. The studies on autopsyshowed that this was not the cause of the infection in [Mr. Baker's] right lung. The cause of death was due to congenital vascular malformation causing a stroke. The clinical course was one that is commonly the case of improvement, and then he developed cerebral edema with brain stem compression and this probably caused his respiratory arrest with contributoryfactorsofright-sidedpneumoniaduetostaph[6 ] andklebsiella[7 ] andnot due to the agent that is mentioned in the tests. R. at 240-41. The neurologist therefore opined that Mr. Baker's " participation in Project SHAD . . . and [operation] SCARLET-SAGEwith exposure to bacillus globigii did not cause[his] death, either from that or exposure to Methylacetal acetate in Purple Sage." R. at 241. In August 2006, the regional office issued a rating decision again denying Mrs. Baker dependency and indemnity compensation on the basis that her husband's death was not service connected. Mrs. Baker filed a Notice of Disagreement in October 2007 and, after further development, appealed to the Board. In both her appeal and her Notice of Disagreement, Mrs. Baker argued that bacillus globigii was known to "cause Q-Fever[8 ] in 3-6% of humans that inhaled the 6 Staph, short for Staphylococcus, is "a ubiquitous genus of gram-positive, mainly facultatively anaerobic bacteria . . . ." DORLAND'S at 1765. They "are important inhabitants of the skin, cutaneous glands, and mucous membranes; several species are important pathogens, causing a wide varietyof infections, as well as producing a number of toxins." Id. Klebsiella is "a genus of bacteria of the family Enterobacteriaceae, made up of small, gram-negative, facultatively anaerobic, nonmotile rods, usually occurring singly; they are widely distributed in nature, including in the intestines. They are a frequent cause of nosocomial urinary and pulmonary infections and of wound infections." DORLAND'S at 988. Q fever is "an acute, generallyself-limited infection caused byCoxiella burnetii, characterized byfever, chills, headache, myalgia, malaise, and occasionally rash, and sometimes complicated by mild pneumonia . . ., hepatitis, and endocarditis. In humans, it is usually acquired by inhalation of airborne organisms in dust or aerosols contaminated by 8 7 4 chemical agent and that humans will continue to have flu-like symptoms and diarrhea, sore throat, fever, cough[,] and other cold symptoms—that will continue for years and then humans die 20 years later." R. at 95; see also R. at 60. She asserted that her husband's medical "records match these symptoms flawlessly," R. at 60, 95, and that it was therefore her belief that he "was one of the 3-6% of . . . soldiers sprayed . . . that developed Q-Fever and never received medical treatment due to the fact that everything about . . . [Project] SHAD . . . was kept classified for over 30 years." R. at 60. The Board issued the decision now on appeal in May 2010. Initially, the Board concluded that new and material evidence had been submitted by Mrs. Baker and therefore reopened her dependency and indemnity compensation claim. In assessing the merits of that claim, the Board noted Mrs. Baker's contention that her husband had contracted Q fever as a result of his participation in Project SHAD and that this condition contributed to his death. The Board also noted that service and post-service medical records indicated treatment for various ailments, including, on many occasions, headaches, but observed that none of them "refer[red] to Q fever or to any relationship between [Mr. Baker's] symptoms and his service." R. at 13. Finally, the Board found the VA neurologist's July2006 opinion to be highlyprobativeand"inlinewith the autopsyreport" insomuch as it concluded that Mr. Baker died as a result of "a congenital vascular malformation." R. at 16. Relying on this opinion, the Board concluded that the preponderance of the evidence did not indicate that Mr. Baker's death was related to his service and therefore denied Mrs. Baker entitlement to dependency and indemnity compensation. II. ANALYSIS A. Dependency and Indemnity Compensation On appeal, Mrs. Baker does not contest the Board's finding that Mr. Baker's participation in Project SHAD did not cause or contribute to his death. Instead, she argues that the Board erred by "onlyconsider[ing] whether [Mr. Baker's] cause of death was the result of chemical exposure" when "[t]he evidence of record . . . clearly raise[d] another issue which the [ Board] did not consider or discuss, whether [Mr. Baker's] in-service vascular headaches were the first manifestations of the infected domestic animals." DORLAND'S at 693. 5 [M]oyamoya [D]isease which led to his death bystroke." Appellant's Brief ( Br.) at 4. The Secretary contends that Mrs. Baker "did not raise this theory of entitlement [to dependency and indemnity compensation] when she sought to reopen her claim[,] nor was such a theory suggested by the evidence of record that would reasonably put the Board on notice that such a theory was plausible and must be developed." Secretary's Br. at 4. The Secretary argues that the Board therefore did not err in failing to consider and discuss this theory of entitlement. In Robinson v. Peake, this Court explained that, because proceedings before VA are nonadversarial, "the Board's obligation to analyze claims goes beyond the arguments explicitly made." 21 Vet.App. 545, 553 (2008), aff'd sub nom. Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009). As the Court explained, "[i]t is entirely possible that the record might 'indicate' a theory of entitlement, but that a lay appellant might not be sophisticated enough to recognize the theory," meaning that "a theory can be both unknown to the appellant and suggested by the record." Id. (citing Ingram v. Nicholson, 21 Vet.App. 232, 256-57 (2007)). On the other hand, the Board is not required "to assume the impossible task of inventing and rejecting every conceivable argument in order to produce a valid decision." Id. Accordingly, "[w]here a fully developed record is presented to the Board with no evidentiary support for a particular theory of recovery, there is no reason for the Board to address or consider such a theory." Robinson, 557 F.3d at 1361. In other words, "[t]he Board commits error only in failing to discuss a theory of entitlement that was raised either by the appellant or by the evidence of record." Robinson, 21 Vet.App. at 553. Here, having been reopened following the submission of new and material evidence, Mrs. Baker's claim was one for entitlement to dependency and indemnity compensation. A surviving spouse is eligible for dependency and indemnity compensation under 38 U.S. C. § 1310(a) and 38 C.F.R.§3.312(a)wheretheevidencedemonstratesthata service-connected disability"was either the principal or a contributory cause of death." 38 C.F.R. § 3.312(a) ( 2011). A disability is service connected where the evidence of record demonstrates (1) a current disability, (2) incurrence or aggravation of a disease or injury in service, and (3) a nexus between the in-service injury or disease and the current disability. 38 U.S.C. § 1110; Davidson v. Shinseki, 581 F. 3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); 38 C.F.R. § 3.303 (2011); 6 see also 38 U.S.C. § 1310(a) (providing that "[t]he standards and criteria for determining whether or not a disability is service-connected shall be those applicable under chapter 11 of this title"). Here, the Board found, and the evidence of record overwhelminglyindicates, that Mr. Baker suffered a stroke that resulted in a hemorrhage when some of the collateral vessels near the optic chiasm ruptured, which in turn caused intracranial pressure leading to his death. The evidence of record is equally clear, and the Board again found, that this stroke resulted from a vascular malformationcausedbyararecerebral vascularocclusivediseaseofuncertainetiologythatis known as Moyamoya Disease. Some of the evidence of record—namely, the autopsyreport—indicates that Mr. Baker's history of migraine headaches is consistent with the manner in which this condition manifests. See R. at 1099 ("Mr. Baker's history of migraine headaches suggests the presence of altered vascular reactivity."). The autopsy examiner dated the onset of this symptomatolgy to1972, during Mr. Baker's active duty service, R. at 1098, but, in fact, the first indication in the record of proceedings of Mr. Baker seeking treatment for headaches is found in the December 1968 service treatment notes, in which his headaches were described as "persistent" and " frequent." R. at 208, 210. Further, additional service treatment records indicate that Mr. Baker continued to suffer from headaches through June 1973, approximately five months prior to his separation from service. R. at 1343, 1374. There is also a bevy of post-service medical records suggesting that this symptom persisted following his separation, until the time of his death. R. at 930, 935, 938, 956, 959, 964, 968-70, 972, 980, 1023, 1035-1039. In sum, this body of evidence suggests that: (1) Mr. Baker's death resulted from a rare cerebral vascular disease of uncertain origins; (2) one symptom of this disease exhibited by Mr. Baker was migraine headaches; (3) these migraine headaches began during Mr. Baker's active duty service and continued, to one extent or another, throughout his service; and (4) headaches continued to plague him following his separation from service until the time of his death. Despite this evidence, the Board gave no consideration whatsoever to the possibility that this disease, although not diagnosed until Mr. Baker's death, had an onset during his active duty service. See 38 C.F.R. § 3.303(d) (providing that a disease that is first diagnosed following the veteran's separation from service may still be granted service connection "when all the evidence, including that pertinent to service, establishes that the disease was incurred in service"). Likewise, the Board gave no 7 consideration to whether the condition might be service connected as a " chronic disease" pursuant to 38 C.F.R. § 3.303(b) or, alternatively, by showing continuity of symptomatology pursuant to that sameprovision. SeegenerallySavagev.Gober, 10 Vet.App. 488, 495-97 (1997). Instead, the Board focused solely on the theory of entitlement to dependency and indemnity compensation expressly raised by Mrs. Baker—that her husband contracted Q fever during Project SHAD, which went untreated for many years and ultimately caused or contributed to his death. This was error, as the Board was required not only to develop and adjudicate the theories of entitlement expressly raised by Mrs. Baker, but also those reasonably raised by the record. Robinson, 21 Vet.App. at 553. In reaching the conclusion that this theory of entitlement was reasonably raised by the record, the Court notes that there is no indication that Mrs. Robinson was represented by an attorney during the course of proceedings below. See R. at 5 (listing Disabled American Veterans as Mrs. Baker's representative); see also Comer v. Peake, 552 F.3d 1362, 1370 (Fed. Cir. 2009) (explaining that assistance provided to claimants by veterans service organizations is invaluable but not equivalent to representation by a licensed attorney). This Court has recently clarified that, although a veteran's claim must always be liberally construed, "representation [by an attorney] may be a factor in determining the degree to which the pleading is liberally construed." Cogburn v. Shinseki, 24 Vet.App. 205, 213 (2010) (emphasis added). Accordingly, here, the Board was required to take into account the nature of Mrs. Baker's representation when assessing the evidence of record for the purpose of identifying and fully developing all issues and theories of entitlement pertinent to Mrs. Baker's claim for dependency and indemnity compensation. The Court concludes that a liberal examination of this evidence would have led to the development and adjudication of the alternative theory now expressly presented by Mrs. Baker on appeal. Because this did not happen, the Court will remand this claim for readjudication consistent with this decision. See Robinson, 21 Vet.App. at 553. B. Remedy The Court notes that Mrs. Baker argues that reversal, not remand, is the appropriate remedy under the circumstances of this case. She argues that "[t]he only permissible view of [the] evidence is that [Mr. Baker's] [M]oyamoya [D]isease, which was the cause of his death, began in service and should, then, have been service connected." Appellant's Br. at 7. The Court disagrees. 8 It is true that reversal is the appropriate remedy when there is but one permissible view of the evidence, and that view is contrary to the Board's decision. Gutierrez v. Principi, 19 Vet.App. 1, 10 (2004) (citing Johnson v. Brown, 9 Vet.App. 7, 10 (1996)). It is also true that, in the present case, the theoryof entitlement outlined above byMrs. Baker was most certainly raised bythe record. However, this case involves complex medical questions that the Board did not even attempt to address in the decision on appeal. "[W]here the Board has incorrectly applied the law, failed to provide an adequate statement of reasons or bases for its determinations, or where the record is otherwise inadequate, a remand is the appropriate remedy." Tucker v. West, 11 Vet.App. 369, 374 (1998); see Hicks v. Brown, 8 Vet.App. 417, 422 (1995). Under the circumstances of this case, the Court is not convinced that the "only permissible view of the evidence" necessitates a finding that Mr. Baker's death was service connected, and remand is therefore the appropriate remedy. See Gutierrez, 19 Vet.App. at 10. Onremand,theBoardshould determinewhetheradditionaldevelopment, includingobtaining another VA medical opinion that explicitly considers this alternative theory of entitlement, is necessary. See McLendon v. Nicholson, 20 Vet.App. 79, 83-84 (2006). Mrs. Baker will also be free to submit additional evidence and argument on remand in accordance with Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999) (per curiam order). See Kay v. Principi, 16 Vet.App. 529, 534 (2002). The Board is reminded that "[a] remand is meant to entail a critical examination of the justification for the decision" by the Board. Fletcher v. Derwinski, 1 Vet. App. 394, 397 (1991). In addition, the Board shall proceed expeditiously, in accordance with 38 U.S. C. § 7112 (expedited treatment of remanded claims). 9 III. CONCLUSION Upon consideration of the foregoing, the May 2010 Board decision is VACATED and this matter is REMANDED for additional development, if necessary, and readjudication. DATED: September 21, 2011 Copies to: Shannon L. Brewer, Esq. VA General Counsel (027) 10

Single Judge Application, New and Material, Reasonable Possibility, Shade v. Shinseki, 24 Vet.App. 110, 121 (2010)

Excerpt from decision below: "New and material evidence is evidence that would raise a reasonable possibility of substantiating the claim if, when considered with the old evidence, it would at least trigger the Secretary's duty to assist by providing a medical opinion. Shade v. Shinseki, 24 Vet.App. 110, 121 (2010). Subsequent to the Board's decision in this case,thisCourt issued its decision in Shade, supra, which held that the issue of reopening must be confined to the subject of existence of new and material evidence alone and does not include a separate outcome-based element. Id. In Shade, the Court emphasized "that the phrase 'raise a reasonable possibility of substantiating the claim 'does not create a third element for new and material evidence," but was intended to provide "guidance for VA 3 adjudicators in determining whether submitted evidence meets the new and material requirements." Id. at 117. The Court further held that the term "reasonable possibility" contemplates the likely entitlement to a nexus medical examination, as opposed to the likely entitlement to the benefit sought. Id. at 121. In making the determination of materiality, "the Board is precluded from considering the credibility of the newly submitted evidence; strictly for purposes of determining whether new and material evidence has been presented, the Board must presume that the newly submitted evidence is credible." Duran v. Brown, 7 Vet.App. 216, 220 (1994) (citing Justus v. Principi, 3 Vet.App. 510, 513 (1992))." ========================= Skip navigation U.S. Court of Appeals for Veterans Claims View | Download | Details Previous document | Next document . 10-0997 ReedRA_10-997.pdf Search Terms: INJURY CreationDate: 09/20/2011 16:29:17 Creator: PrintServer150 ModDate: 09/28/2011 13:46:04 Producer: Corel PDF Engine Version 15.0.0.431 Title: X_XMPMETA_DC_TITLE: Times New Roman X_XMPMETA_XMPRIGHTS_MARKED: True ---------------------------------------------------- Designated for electronic publication only UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS NO. 10-0997 ROSS A. REED, APPELLANT, V. ERIC K. SHINSEKI, SECRETARY OF VETERANS AFFAIRS, APPELLEE. Before FARLEY, Judge. MEMORANDUM DECISION Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent. FARLEY, Judge: The appellant, Ross A. Reed, appeals that part of the December 1, 2009, Board of Veterans'Appeals (Board)decision that determinedthatnew and material evidence had not been submitted to reopen his claims for service connection for a left knee disorder and a low back disorder. Record (R.) at 3-15. This appeal is timely, and the Court has jurisdiction to review the Board's decision pursuant to 38 U.S.C. §§ 7252(a) and 7266(a). Single- judge disposition is appropriate. See Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). Because the Board erred in finding that no new and material evidence was offered to reopen the claims, the Court will reverse the decision and remand the matters for further proceedings consistent with this decision. I. FACTS The appellant served on active duty in the U.S. Army from August 1970 to February 1972. Record (R.) at 690. His original claim, filed in March 1972 (R. at 614-15), for entitlement to service connection for back and knee disorders was denied in May 1974 (R. at 577- 78). The VA regional office (RO) at that time found that the appellant's in-service back Previous DocumentinjuryNext Hit was "acute" and that he had no "right" knee disorder. R. at 577-78. Over the following years, the appellant made several unsuccessful attempts to reopen the previously denied claims for entitlement to service connection for a back and a left knee disorder. See, e.g., R. at 234, 541-42, 546. In April 1994, the appellant clarified that it was his left knee, not his right, that was injured in service. R. at 442. Also added to the record was an October 1995 VA medical examination report that included diagnoses of mechanical low back pain and "degenerative joint disease of the left knee." R. at 332. The appellant attempted to reopen his claim for service connection for his back and left-knee conditions in March 2006. R. at 147. The RO denied reopening in December 2006. R. at 118-22. The appellant submitted a Notice of Disagreement in December 2007. R. at 106. In support of his claims, he submitted a letter from Dr. Daniel Hinshaw, his treating physician, who opined that the Previous HitinjuryNext Document documented in the appellant's service medical records is related to his current chronic back pain. R. at 64. In the December 1, 2009, decision on appeal, the Board denied reopening the appellant's claims for entitlement to service connection for his left knee and back disorders. R. at 3-15. The Boardnotedthat the May1974 ratingdecision was final andthat, sincethatdecision,"new"evidence had been submitted. R. at 12. With regard to the Veteran's claim of service connection for a back condition, the RO held that the back strain in 1970 in service was an acute condition that did not exist after 1970, until the present time and could not be related to service. With regard to the left knee claim, the RO denied service connection for lack of evidence of a left knee disability. R. at 11. The Board listed the evidence that the appellant had submitted in support of his claim since the 1974 denial, but ultimately concluded that it was not sufficient to warrant reopening the claim. See R. at 11-12. The Board discussed the opinion submitted by Dr. Hinshaw, but found that "it does not substantiate the Veteran's claim because it does not provide evidence of a currently diagnosed back disability that is related to service." II. ANALYSIS In his brief before this Court, the appellant argues that the Board applied the wrongdefinition of what constitutes new and material evidence sufficient to warrant reopening his claims. Appellant's Brief (Br.) at 5-9. He contends that the Board should have applied the version of the applicable regulation "in effect when the veteran attempted to reopen his claims in 1994 and 1998, 2 and which is more favorable to the veteran." Id. at 5. Alternatively, he argues that, irrespective of whichdefinition ofnewandmaterial evidencewasused,theBoarderredin not reopeningtheclaims. Id. at 5, 10-12. The Secretary concedes that the Board's statement of reasons or bases for declining to reopen the appellant's claims is inadequate. Secretary's Br. at 5. Specifically, the Secretarypoints to the Board's inconsistent statements noting that "a December 2007 VA physician's letter provided a positive nexus" for the back claim but nevertheless finding that the opinion "did not 'substantiate the Veteran's claim because it does not provide evidence of a current back disability.'" Secretary's Br. at 7. The Secretary also points out that the Board noted that the 1974 rating decision denied the appellant's left knee claim on the basis that there was no current disability but the Board denied reopening because "there was no evidence of a nexus to service." Id. at 9. The Secretary urges the Court to remand the matter for readjudication. Id. at 10. He disagrees with the appellant that reversal is the appropriate remedy. Id. at 10-13. Pursuant to 38 U.S.C. § 5108, "[i]f new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim." 38 U.S.C. § 5108. New and material evidence is defined as: New evidence means existing evidence not previously submitted to agency decisionmakers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a) (2011). New and material evidence is evidence that would raise a reasonable possibility of substantiating the claim if, when considered with the old evidence, it would at least trigger the Secretary's duty to assist by providing a medical opinion. Shade v. Shinseki, 24 Vet.App. 110, 121 (2010). Subsequent to the Board's decision in this case,thisCourt issued its decision in Shade, supra, which held that the issue of reopening must be confined to the subject of existence of new and material evidence alone and does not include a separate outcome-based element. Id. In Shade, the Court emphasized "that the phrase 'raise a reasonable possibilityof substantiating the claim 'does not create a third element for new and material evidence," but was intended to provide "guidance for VA 3 adjudicators in determining whether submitted evidence meets the new and material requirements." Id. at 117. The Court further held that the term "reasonable possibility" contemplates the likely entitlement to a nexus medical examination, as opposed to the likely entitlement to the benefit sought. Id. at 121. In making the determination of materiality, "the Board is precluded from considering the credibility of the newly submitted evidence; strictly for purposes of determining whether new and material evidence has been presented, the Board must presume that the newly submitted evidence is credible." Duran v. Brown, 7 Vet.App. 216, 220 (1994) (citing Justus v. Principi, 3 Vet.App. 510, 513 (1992)). The Board's determination of whether a claimant has submitted new and material evidence is generally reviewed under the "clearly erroneous" standard of review set forth in 38 U.S.C. § 7261(a)(4). Suaviso v. Nicholson, 19 Vet.App. 532, 533-34 ( 2006); Elkins v. West, 12 Vet.App. 209, 217 (1999) (en banc). A finding of fact is clearly erroneous when the Court, after reviewing the entire evidence, "'is left with the definite and firm conviction that a mistake has been committed.'" Gilbert v. Derwinski, 1 Vet.App. 49, 52 (1990) (quoting United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948)). Here, the Board denied reopening the appellant's claims for service connection for a back disability and a left knee disability based on the finding that, although the appellant had submitted "new" evidence, it was not "material" because it failed to show a current disability related to service. R. at 12, 15. In coming to this conclusion, the Board reviewed the evidence submitted since the last final denial of the claims in May 1974. R. at 12, see also R. at 577-578. As to the back condition, the Board stated that in 1974 the claim had been denied because "there was no evidence of a back disabilitythat was related to service." R. at 12. However, the Board conceded that a December 2007 VA physician's letter provided a positive nexus between the appellant's back strain in service and his current back pain. See R. at 12, see also R. at 64. Nevertheless, the Board inexplicably denied reopening because the December 2007 nexus opinion did not "substantiate the Veteran's claim because it does not provide evidence of a current back disability. . . ." Id. The Board erred in not reopening the appellant's claim when the evidence of record included the December 2007 medical opinion that relates to an unestablished fact necessary to substantiate the claim. 38 C.F.R. 4 § 3.156(a). This evidence bears directly and substantiallyon his claim for service connection for his back disorder being related to his military service. Id. Similarly, the Board erred in denying reopening of the appellant's left knee disability claim. See R. at 12. Specifically, the Board bases its denial of reopening the appellant's left knee claim on the basis that there was no evidence of a nexus to service. Id. Yet, the Board explicitly stated that the 1974 rating decision denied the claim "for lack of evidence of a left knee disability." R. at 11. Recourse to the 1974 rating decision reveals that service connection for a right knee condition was denied for lack of evidence of a disability. R. at 577-78. In 1976 (R. at 554), and again in April 1994 (R. at 442), the appellant made clear that he was seeking service connection for a left knee disability. Irrespective of which knee was considered, insofar as the denial was based on the lack of a current disability, the newly submitted evidence of record reveals degenerative joint disease of the left knee. R. at 332. However, the Board failed to address the appellant's current diagnosis, which bears directly and substantially on his claim for service connection. The newly submitted evidence meets the regulatory requirements such that the appellant's claim should be reopened. The Court is required to reverse "a finding of material fact . . . if the finding is clearly erroneous." 38 U.S.C. § 7261(a)(4). Accordingly, the Court will reverse the December 1, 2009, Board decision that found that no new and material evidence had been received to reopen the appellant's claims forserviceconnection for his back and left knee disorders, and remand the matters to the Board for readjudication. 38 U.S.C. § 7261(a)(4); Duran, 7 Vet.App. at 220; Justus, 3 Vet.App. at 513. Further, once the claims are remanded, the Board must return the matter to the RO for adjudication to afford the appellant one review on appeal and to complete any development that the reopened claims require. Disabled Am. Veterans v. Sec'y of Veterans Affairs, 327 F.3d 1339, 1347 (Fed. Cir. 2003) ("When the Board obtains evidence that was not considered bythe [regional office] and does not obtain the appellant's waiver, however, an appellant has no means to obtain 'one review on appeal to the Secretary,' because the Board is the only appellate tribunal under the Secretary."); see 38 U.S.C. § 7104(a) ("All questions in a matter which . . . is subject to decision by the Secretary shall be subject to one review on appeal to the Secretary"); Shade, supra. 5 III. CONCLUSION On consideration of the foregoing, the parties' briefs, and the record on appeal, that part of the December 1, 2009, Board decision that found that no new and material evidence had been submitted to warrant reopening the claims for service connection for a back disorder and a left knee disorder is REVERSED and the matters are REMANDED for readjudication consistent with this decision. DATED: September 21, 2011 Copies to: Michael A. Leonard, Esq. VA General Counsel (027) 6 S