Monday, October 10, 2011
Single Judge Application, Absence of Evidence Not Negative Evidence, Buczynski v. Shinseki, 24 Vet.App. 221, 224 (2011)
Excerpt from decision below:
"Moreover, as a general matter, "[w]hen assessing a claim, the Board may not consider the absence of evidence as substantive negative evidence." Buczynski v. Shinseki, 24 Vet.App. 221, 224 (2011). There is no reason to expect that any injury or discomfort the appellant may have experienced in two days of active duty before his condition was noted in the SMR would necessarily be recorded in the appellant's service records. Therefore, VA may not rest on the notion that the record contains insufficient evidence of aggravation. Instead, VA must
develop evidence to affirmatively prove that there was no aggravation."
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UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 10-1607
HARRY E. MARSHALL, 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 Harry E. Marshall appeals through counsel
from a May
5, 2009, Board of Veterans' Appeals (Board) decision that denied service
connection for a left
shoulder disability and for a cervical spine disability. For the following
reasons, the Court will
reverse the Board's May 2009 decision with respect to these disabilities
and remand the matters for
further proceedings with the instruction that a finding of aggravation be
entered.
The appellant essentially argues that deficiencies in the VA medical
examination report on
which the Board heavily relied rendered its statement of reasons or bases
inadequate. Specifically,
he argues that because the examination report was based only on a records
review, the examiner did
not have the benefit of the appellant's account of the in-service
aggravation of his preexisting
injuries, a summaryof which was included in a record document submitted
after the VA opinion was
rendered. He further argues that the VA examination reports merely agreed
with the conclusions of
an earlier medical examination board (MEB) report and did not supply the
examiner's own medical
analysis of why his neck and shoulder conditions were not aggravated in
service.
The appellant had approximately 20 years service in the U.S. Army National
Guard before
he was called to active duty in late 2001. Although the record contains
abundant evidence that he
had experienced difficulties with his shoulder and neck prior to
reporting for active duty, in
November 2001 a private physician stated: "He is cleared for active duty
in the military. He should,
however, be aware that if he has a flare up of his shoulder he should back
down on his activity level
as he has been good about doing at work at the present time." Record (R.)
at 304. Both the Board
and the Secretary agree that a December 2001 medical examination conducted
prior to his reporting
for active duty noted no physical conditions with respect to either the
neck or shoulder.1
On February 14, 2002, however, two days after reporting for active duty at
Ft. Stewart,
Georgia, a service medical record indicates that he was "non-deployable
due to inability to wear
rucksack [and] helmet due to cervical radiculopathy and chronic
impingement of [the] shoulder."
R. at 332. He was referred to the MEB and released from active duty. The
MEB report placed an
"X" in the "yes" column for "existed prior to entry on active duty" and an "
X" in the "no" column for
"permanently aggravated by service." Record (R.) at 710.
In the decision here on appeal, the Board acknowledged that "at the time
of entry, there is
a presumption that the Veteran entered in sound health." R. at 20. See 38
U.S.C. § 1111. The Board
found, however, that "the probative evidence constitutes clear and
unmistakable evidence that a left
shoulder and cervical spine injuries . . . existed prior to service
entrance." R. at 21. The Board also
found that "there is clear and unmistakable evidence demonstrating that
the preexisting [shoulder
and neck conditions] were not aggravated byservice." R. at 22. The Board
therefore concluded that
the presumption of soundness had been rebutted and denied service
connection for the shoulder and
neck conditions.
I. ANALYSIS
Generally, in order to establish service connection for a present
disability, "the veteran must
show: (1) the existence of a present disability; (2) in-service incurrence
or aggravation of a disease
or injury; and (3) a causal relationship between the present disability
and the disease or injury
The Court notes that induction examinations fail to note well-established
preexisting conditions all too
frequently, placing VA in a difficult situation of rebutting the
presumption of soundness equipped with little
contemporaneous evidence. The service departments would do well, at a
minimum, to make sure that the examiners at
least inquire as to previous medical history and make appropriate
notations on the induction examination report.
Moreover, the prior arthroscopy should have left multiple, albeit small,
scars that should have seeded further inquiry.
1
2
incurred or aggravated during service." Shedden v. Principi, 381 F.3d
1163, 1166-67 (Fed. Cir.
2004). The presumption of soundness relates to the second
requirement–the showing of in-service
incurrence or aggravation of a disease or injury. See Holton v. Shinseki,
557 F.3d 1362, 1367 (Fed.
Cir. 2009); see also Maxson v. West, 12 Vet.App. 453, 460 (1999) (
application of presumption
satisfies incurrence or aggravation element). A claimant must show that he
or she suffered from a
disease or injurywhile in service. Holton, 557 F.3d at 1367. Thereafter,
except for conditions noted
at induction, the presumption of soundness ordinarilyoperates to
satisfythe second element without
further proof.
"[E]very veteran shall be taken to have been in sound condition when
examined, accepted,
and enrolled for service, except as to defects, infirmities, or disorders
noted at the time of the
examination, acceptance, and enrollment." 38 U.S.C. § 1111; see also 38 C.
F.R. § 3.304(b) (2011).
Therefore, when no preexisting medical condition is noted upon entry into
service, a veteran is
presumed to have been sound in every respect. See Wagner v. Principi, 370
F.3d 1089, 1096 (Fed.
Cir. 2004); Bagby v. Derwinski, 1 Vet.App. 225, 227 (1991).
The burden then falls on VA to rebut the presumption of soundness by clear
and
unmistakable evidence that the veteran's disability was both preexisting
and not aggravated by
service. Wagner, 370 F.3d at 1096; Bagby, 1 Vet.App. at 227. Once the
presumption of soundness
applies, the burden of proof on the second Shedden requirement does not
shift back to the claimant.
In particular, even when there is clear and unmistakable evidence of
preexistence, the claimant need
not produce any evidence of aggravation in order to prevail under the
aggravation prong of the
presumption of soundness. See Routen v. West, 142 F.3d 1434, 1440 (Fed.
Cir. 1998) ("When the
predicate evidence is established that triggers the presumption, the
further evidentiary gap is filled
by the presumption.").
If the Secretary fails to produce clear and unmistakable evidence of lack
of aggravation, the
claimant is entitled to a finding of in-service aggravation of the
preexisting condition. The Secretary
mayshow a lack ofaggravation byestablishing,with
clearandunmistakableevidence,thattherewas
no increase in disability during service or that any "increase in
disability [was] due to the natural
progress" of the preexisting condition. See Wagner, 370 F.3d at 1096.
While this language has
some commonality with the presumption of aggravation, see 38 U.S.C. §
1153, the common
3
language does not signal that the analysis shifts to the presumption of
aggravation once preexistence
of the injury or disease has been established. Rather, the analysis
proceeds under the aggravation
prong of the presumption of soundness. The burden is not on the claimant
to show that his disability
increased in severity, but, rather, it is on VA to establish by clear and
unmistakable evidence that it
did not.
Clear and unmistakable evidence means that the evidence "cannot be
misinterpreted and
misunderstood, i.e., it is undebatable." Vanerson v. West, 12 Vet.App. 254,
258-59 (1999) (citing
definition of "clear and unmistakable error" in Russell v. Principi, 3 Vet.
App. 310, 313-14 (1992)
(en banc)). The clear-and-unmistakable-evidence standard is an "onerous"
one. Laposky v. Brown,
4 Vet.App. 331, 334 (1993) (citing Akins v. Derwinski, 1 Vet.App. 228, 232 (
1991)). If there is clear
and unmistakable evidence to show that the veteran's disability was both
preexisting and not
aggravated by service, then the veteran is not entitled to service-
connected benefits. Wagner, 370
F.3d at 1096.
Whether the Secretary has rebutted the presumption of sound condition is a
matter that the
Court reviews de novo. Miller v. West, 11 Vet.App. 345, 347 (1998). The
factual determinations
underlying the Board's decision, however, are judged under the "clearly
erroneous" standard. See
Bagby, supra.
A. The Preexistence Prong of the Presumption of Soundness
The record amply supports the Board's determination that the shoulder and
neck conditions
preexisted his active duty service. As the Board noted, the record
includes evidence that the
appellant began experiencing discomfort in his shoulder as early as late
1999. He was diagnosed
with "[p]robable tendonitis of the left shoulder" in February 2000. R. at
292. The Board further
noted that the appellant underwent surgery in January 2001, consisting of "
a left shoulder
arthroscopy with bursectomy, subacromial decompression, and an open distal
clavicle excision."
R. at 14, 312. With respect to the cervical spine condition, the Board
noted that an April 10, 2001,
magnetic resonance imaging "revealed bulging discs at C6-7." R. at 304.
Therefore, the Court discerns no reason to disturb the Board's finding
that preexistence of
the neck and shoulder conditions had been established by clear and
unmistakable evidence. The
4
appellant's principal contention, however, is that training leading up to
and after reporting for active
duty aggravated those conditions.
The appellant also submitted a December 2004 statement in which he
attributed the origin
of his neck and shoulder conditions to various accidents that occurred
during periods of training
while he was in the Army National Guard. See R. at 258. The Board stated
that these statements
were not supported by the record, however, "as the objective medical
evaluations showed that the
Veteran did not report any injuries and the spine and left shoulder were
normal on evaluation." R.
at 17. Therefore, the appellant has not shown that it is at least as
likely as not that his neck and
shoulder conditions occurred during his National Guard service.
B. The Aggravation Prong of the Presumption of Soundness
The Secretary must also prove, by clear and unmistakable evidence, that
the preexisting
shoulder and cervical spine disorders were not aggravated during the
appellant's active duty service,
brief as it was. Wagner, 370 F.3d at 1096. The Board's reasoning was asfollows: "There is no record whatsoever of any reinjury, exacerbation, or other incident regarding his left shoulder or cervical spine. There was no increase in the disability level." R. at 22.
The Board's approach to the aggravation issue, as revealed in these statements, is both legally and factually flawed. The appellant's entrance examination made no mention of any difficulties with the shoulder or cervical spine. Furthermore, the private medical report in
November 2001 indicated that the shoulder had improved and cleared the appellant for active duty.
Less than two months later his preexisting conditions made him ineligible for deployment and required
his release from active duty. Finally, the MEB report states as follows: "Currently[the appellant]
has constant left shoulder pain anteriorly aggravated by direct pressure, overhead work and the wear[
ing] of a ruck sack." R. at 716. These portions of the record constitute affirmative evidence of
aggravation. Regardless, as the Board acknowledged, "[t]he claimant is not required to show that the
disease or injury increased in severity during service before VA's duty under the second prong of [the presumption of soundness] attaches." R. at 19. As discussed previously, once the presumption of soundness arises, the appellant has no further duty to provide evidence of aggravation; VA must prove lack of aggravation.
5
Moreover, as a general matter, "[w]hen assessing a claim, the Board may not consider the absence of evidence as substantive negative evidence." Buczynski v.Shinseki, 24 Vet.App. 221, 224 (2011). There is no reason to expect that any injury or discomfort the appellant may have experienced in two days of active duty before his condition was noted in the SMR would necessarily be recorded in the appellant's service records. Therefore, VA may not rest on the notion that the record contains insufficient evidence of aggravation. Instead, VA must develop evidence to affirmatively prove that there was no aggravation.
The Secretary and the Board point to three pieces of evidence pertaining to the aggravation question. There was the MEB report containing an "x" indicating no aggravation during service. There was an accompanying report that generally reiterated the medical history of the appellant's difficulties with his shoulder and neck; this evidence pertains to the preexistence prong of the presumption of soundness. There was no explanation of MEB's conclusion of non-aggravation, however, or any evidence pertaining to that issue. There were also two VA
examination reports (one each for the shoulder and cervical spine conditions) both dated October 1,
2004. With respect to the shoulder condition, the examiner's total discussion of the aggravation
issue was as follows: "On review of the records there is no indication/documentation of aggrivation [
sic] durring [sic] active duty service. I agree with the Medical Board determination." R. at 281.
The cervical spine examination report contains a similarly conclusory and nonexpansive opinion
on aggravation of that condition. See R. at 283.
The Court agrees with the appellant that the examiner's discussion does not constitute the requisite medical explanation. The Court has made clear that such an unexplained conclusory VA opinion is entitled to no weight in a service connection context. See
Nieves-Rodriguez v. Peake, 22 Vet.App. 295, 304 (2008).
Neither the VA medical opinions nor the MEB report on which they rely nor the
combination
of these documents constitutes clear and unmistakable evidence on the
facts of this case. The Court
does not agree that an "x" marked for "no aggravation" on a form rises to
the level of clear and
unmistakable evidence of lack of aggravation, especially when the report
itself is internally
contradictory, containing a statement that the wearing of the rucksack did
aggravate the appellant's
condition. Insofar as the VA medical opinions relyon the MEB report,
theyinvoke the same internal
6
contradictions and add no weight to that report in the absence of any
additional medical analysis.
The only other reasoning in the VA examination reports asserted an absence
of documentation of
aggravation in service. This reasoning does not constitute a medical
analysis; it is merely an
incorrect recitation of facts. Even if the examiner were correct, the
Board may not rely on reasoning
that improperly shifts the burden of proof on the aggravation prong to the
appellant. Therefore, the
Court concludes that the Secretaryhas not carried his burden of proving
lack of aggravation byclear
and unmistakable evidence.
Additionally,theSecretarypoints out thatuponreleasefromactiveduty,
theappellantagreed
"with the [MEB's] findings and recommendation." R. at 712. The Court notes
that the only
alternative presented on the form in question was to appeal the MEB's
findings and recommendation
for discharge. Furthermore, the aggravation of the appellant's preexisting
conditions is ultimately
a medical issue, which he is not competent to assess. See Espiritu v.
Derwinski, 2 Vet.App. 492,
494-95 (1992) (stating that a layperson can provide an account of symptoms
but no a diagnosis that
requires medical knowledge). While the appellant's perception at
separation whether the condition
had been aggravated might constitute some evidence on the symptoms, the
statement on the form
does not constitute a binding admission on the medical conclusion.
The Board asserted that "[t]here was no increase in the disability level."
R. at 22. There is
no medical evidence in the record, however, to support this assessment.
The onlyevidence of record
certainly indicates that the conditions worsened during active duty. See R.
at 304, 332, 710-16.
Whether this worsening constituted an increase in the disability level, as
compared to what it was
upon reporting for duty is a question that might have been illuminated by
further medical evidence.
On this record, however, the Court is unable to conclude that VA proved
that there was no increase
in disability.
In sum, the evidence of lack of aggravation does not rise to the level of
clear and
unmistakable evidence. Therefore, VA has not rebutted both prongs of the
presumption of
soundness. The Court concludes that it must reverse the Board's finding as
to aggravation of the
preexisting shoulder and cervical spine conditions and direct that a
finding of in-service aggravation
be entered for these conditions.
7
It does not necessarily follow, however, that the unrebutted presumption
of soundness will
lead to service connection for the shoulder and cervical spine conditions.
The appellant must still
demonstrate a current disability and a nexus between his current
disability and the in-service
aggravation. See Holton, 557 F.3d at 1367; Dye v. Mansfield, 504 F.3d 1289,
1292-93 (Fed. Cir.
2007) (affirming this Court's finding that the presumption of soundness
does not eliminate the need
to demonstrate a causal connection between a veteran's current condition
and his in-service injury).
The Court will therefore remand these matters for further factfinding on
the current disability and
nexus issues.
On remand, the appellant will be free to submit additional evidence and
argument as to a
current disability and nexus with regard to his shoulder and cervical
spine conditions and the Board
is required to consider any such evidence and argument. See Kay v.
Principi, 16 Vet.App. 529, 534
(2002). A final Board decision following the remand herein ordered will
constitute a new decision
that, if adverse, may be appealed to this Court upon the filing of a new
Notice of Appeal with the
Court not later than 120 days after the date on which notice of the
Board's new final decision is
mailed to the appellant. Marsh v. West, 11 Vet.App. 468, 472 (1998).
II. CONCLUSION
Based on consideration of the foregoing, the Court REVERSES the Board's
May 5, 2009,
determination that the shoulder and cervical spine conditions were not
aggravated in service and
directs that a finding of aggravation be entered. The Court REMANDS these
matters for further
factfinding on the issues of a current disability and nexus to the in-
service aggravation.
DATED: September 30, 2011
Copies to:
Virginia A. Girard-Brady, Esq.
VA General Counsel (027)
8
Single Judge Application, VA Obligation Search for Pertinent Records, Mayhue v. Shinseki, 24 Vet.App. 273, 280 (2011)
Excerpt from decision below:
"Recently, the Court concluded that the Board erred when it failed to assign an earlier effective date based upon the receipt of newly discovered service department records pursuant to 38 C.F.R. § 3.156(c) (2002) and (2010), where the record demonstrated that, not with standing the veteran's failure to fully cooperate with VA's requests for information to verify other claimed stressors, the information necessary for the Center for Research of Unit Records to verify his stressor that resulted in the award of benefits for PTSD had always been a part of the claims file. See Mayhue v. Shinseki, 24 Vet.App. 273, 280 (2011). The Court stated that it was "VA's administrative error in failing to verify [the appellant's] stressor with the information that it had at the time of his initial claim, not [the appellant's] subsequent failure to provide additional information sufficient to verify other claimed stressors, that prevented VA from verifying his stressor until March 2005." Id.
Although Mayhue is not directly on point, the Court's reasoning is instructive and supports the appellant's contention that, in this case, VA's duty to assist may have included conducting a search for the pertinent unit histories and morning reports from the Center for Research of Unit Records where the record contains specific information denoting the appellant's unit assignments, military occupation, and dates of deployment to Vietnam. See R. at 315-16, 425, 480, 487, 526.
The Board, however, did not discuss whether VA was obligated to conduct a search for unit histories or morning reports to confirm whether the appellant engaged in combat during his service in Vietnam. Instead, the Board summarily stated that it was "unaware of any outstanding pertinent evidence." R. at 5. In this case, the Court concludes that it is unclear whether the appellant's inaction deprived VA of the information needed to request records that may corroborate his assertion that he engaged in combat. See Mayhue, 24 Vet.App. at 280 (noting VA's determination that the veteran was subject to enemy attack because the Center for Research of Unit Records verified that
8
the base camp to which the veteran was assigned was subjected to enemy attacks)."
======================================
----------------------------------------------------
Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 09-4670
PAUL T. VENTURA, 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, Paul T. Ventura, appeals through counsel a
November
5, 2009, BoardofVeterans'Appeals(Board)decisionthatfoundnewandmaterial
evidencehad been
received to reopen a claim for entitlement to service connection for post-
traumatic stress disorder
(PTSD), but denied the claim on the merits. Record of Proceedings (R.) at
3-9. 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. Frankel
v. Derwinski, 1 Vet.App.
23, 25-26 (1990). For the following reasons, the Court will vacate the
Board's decision and remand
the matter for further proceedings consistent with this decision.
I. BACKGROUND
The appellant served on active duty in the U.S. Marine Corps from January
27, 1969, to
February 5, 1971, including service in Vietnam. R. at 526. His DD Form 214
reflects that his
military occupational specialty was rifleman and that he received the
National Defense Service
Medal, the Vietnam Service Medal with one star, and the Vietnam Cross of
Gallantry. Id. His
service personnel records include a form that contains a heading, "COMBAT
HISTORY -
EXPEDITIONS," which notes that the appellant's service in Vietnam included
participation in
counterinsurgency actions against the Viet Cong from August 20, 1969, to
November 30, 1969, and
Operation Idaho Canyon in Quang Tri province from August 20, 1969, to
September 10, 1969. R.
at 480. During this time, he was assigned to Company A, 1st Battalion, 4th
Marine Regiment, 3rd
Marine Division. R. at 425. His personnel records also indicate that in
September 1969, he was
aboard the U.S.S. Repose for treatment of a "fever of unk[nown] origin." R.
at 487.
In May 1998, the appellant filed a claim for entitlement to service
connection for PTSD,
which was denied by a VA regional office (RO) in March 1999. R. at 304-09,
335-38. Years later,
in February2005, the appellant was diagnosed with PTSD and reported that
he experienced "hostile
fire in a combat zone" and that he was sexually assaulted when he was
aboard the U.S.S. Repose for
treatment for malaria, hepatitis, and anemia. R. at 255, 257, 270. The
following month, a VA
psychiatrist, Dr. Leonard Kram, also diagnosed PTSD with depression. R. at
249. Dr. Kram's report
indicates that the appellant reported combat service in Vietnam, schrapnel
wounds to his lower
extremities, and that he was treated aboard a medical ship after
contracting malaria and hepatitis.
R. at 248. Dr. Kram recorded the appellant's report that he was sodomized
by another soldier while
aboard the ship, but that he never reported the incident. Id. Dr. Kram
also noted the appellant's
history of recurrent nightmares, difficulty sleeping and maintaining
employment, drug abuse, and
that he had been homeless and unemployed for the preceding two years. R.
at 248-49. Dr. Kram
opined that "[i]t is likely that his PTSD, depression[,] and poly
substance abuse is a direct result of
his experience in combat in Vietnam as well as his sexual assault while
receiving treatment for his
in[j]uries and infectious disease while on active duty." R. at 249.
In March 2005, the appellant submitted a statement indicating that he had
been diagnosed
with PTSD related to a sexual assault while on active duty, that he was
being treated at a VA medical
center for this condition, and requested that VA consider entitlement to
service connection. R. at
298. Later that month, the appellant submitted a statement in support of
claim in which he described
the difficulties he experienced upon returning from service, including
difficulty holding a job and
problems with drug and alcohol, which he attributed to both the in-service
sexual assault and being
separated from his squad and coming into contact with the enemy while on a
night fire mission. R.
at 215-16.
2
The appellant submitted a handwritten statement in April 2005, in which
he provided
additional details regarding his combat service in Vietnam and being
sexually assaulted. R. at 219-
22. With regard to his combat experience, the appellant wrote:
While I was in Viet-Nam; from Da-Nang Air Force Base[,] I was sent to Quan-
Tri
Province then my Co. Platoon was sent to Dong-Ha Mountain where we did
search
[and] destroy missions or patrols. Came in contact with enemy [North
Vietnamese
Army] regulars in a night time s[kir]mish (firefight)[.] After that I was
a nervous
wreck[.] It was in the monsoon season one night on a patrol[,] I was
separated from
my squad[,] and to this day I still feel [the] nervousness I felt that
night. I thought I
was going to be killed or captured[.] I still have recurring nightmares of
these events.
R. at 220.
On June 26, 2005, the RO issued a deferred rating decision, which noted
that although the
appellant's March 2005 correspondence described a sexual assault, later
correspondence described
combat situations. R. at 209. It was noted that clarification was
necessaryto determine whether the
appellant was seeking service connection for PTSD "due to sexual assault
or combat exposure." Id.
On August 1, 2005, the RO sent the appellant a letter informing him that
it was working on
his application for service connection for hepatitis C, anemia, and non-
service-connected pension,
and purported to inform him of the information and evidence needed to
support those claims. R. at
189-97. The sole reference to his pending PTSD claim, contained on page
three of the letter,
requested that he clarify whether he was seeking service connection for
PTSD due to sexual trauma
or combat exposure. R. at 191. There is no indication in the record that
the appellant responded to
this request for clarification.
InNovember2005,theRO notifiedtheappellant ofitsdecisionto
denyentitlementto service
connection for PTSD because there was no evidence presented to show that
he engaged in combat
with the enemy and there was no credible evidence to show that he was a
victim of a sexual assault.
R. at 162; see generally R. at 155-58, 160-69. With regard to the
appellant's combat experience,
the RO noted that
[s]ervice records show that you served in Vietnam from August 19, 1969[,]
to
October 3, 1969[,] as a Rifleman with Company A, 1st Battalion, 4th Marine
Regiment, 3rd Marine Division. For your short period of service in Vietnam,
you
were awarded the National Defense Service Medal, and the Vietnam Service
Medal.
You were also authorized to wear the Vietnamese Cross of Gallantry Medal
that was
awarded to your unit during the period of your assignment to that unit. In
your
3
stressorstatements,youreportedthatduringyourtime in Vietnam
yourcompanywas
assignedto conduct"SearchandDestroy"missions and that yourunit camein
contact
with the North Vietnamese Army in a nighttime firefight, you also report
being
separated from your squad on a night patrol during the rainy season and of
being
sexually assaulted while aboard the hospital ship, the U.S.S. Repose.
Sinceyourservicerecordsfailedto showanyawards,commendations,orcitations
denoting your participation in combat or the occurrence of the sexual
assault, it
would have been necessary to seek out the confirmation of your reported
stressors
with the U.S. Armed Services Center For Research of Unit Records (USASCRUR)
located in Springfield, Maryland. However, this action could not be
undertaken
based on your description of the events leading to your claimed [PTSD]. In
order to
request confirmation of reported in-service stressors, we must have
specific details
of the stressful event such as dates, places, unit of assignments at the
time of the
events, description of the events, medals, or citations received as a
result of the
events and if appropriate, names and other identifying information
concerning any
other individuals involved in the events. As a minimum, the report of
stressors must
indicate location and approximate time (a 2-month specific date range) of
the
stressful events in question, and the unit of assignment at the time the
stressful event
occurred.
R. at 163.
In November 2005, the appellant filed a Notice of Disagreement and
submitted additional
medical evidence from Dr. Selby, a clinical psychologist and sexual trauma
counselor, who
diagnosed him with PTSD based upon military sexual trauma. R. at 150-54.
In February 2007, the
RO issued a Statement of the Case (SOC), which continued to deny the claim
because although the
appellant's medical records showed a diagnosis of PTSD dueto sexual
assault,therewasnoevidence
of a verifiable in-service stressor. R. at 105; see R. at 91-106. The same
SOC also denied the
appellant's claim for entitlement to service connection for hepatitis C
with anemia, which is not
before the Court. Id.
In May and July 2007, the appellant submitted a VA Form 9 indicating that
he read the SOC
and that he was appealing only the issue of "PTSD sexual assault." R. at
86-87; see also 84-85. In
February 2009, the appellant submitted written statements from his
brothers describing an incident
that took place shortly after his return from Vietnam, during which the
appellant stabbed one of his
brothers who startled him from behind. R. at 48-55.
4
On November 5, 2009, the Board issued the decision here on appeal. R. at
3-9. The Board
determined that new and material evidence had been received to reopen a
claim of entitlement to
service connection for PTSD, but denied the claim on the merits. Id. The
Board concluded that
"[t]he [v]eteran did not serve in combat and the record does not include
credible evidence
corroborating the occurrence of the [v]eteran's claimed in-service
stressors including a personal
assault." R. at 4. This appeal followed.
The appellant argues that VA did not fulfill its duty to assist because,
notwithstanding his
statements that he engaged in combat with the enemy and the presence of a
diagnosis of PTSD
based, in part, on his reported combat experiences, VA failed to conduct a
search for unit histories
or morning reports, which could corroborate his assertion that he engaged
in combat. Appellant's
Brief (Br.) at 10-12. The appellant also argues that the Board failed to
provide an adequate statement
of reasons or bases for finding that he did not engage in combat and
impermissiblyignored favorable
evidence demonstrating that his PTSD diagnosis had been attributed to
combat. Id. at 12-18. The
Secretary disputes these contentions and argues for affirmance of the
Board's decision. Secretary's
Br. at 6-10.
II. ANALYSIS
To establish service connection for PTSD, a claimant must present (1)
evidence of a current
diagnosis of PTSD; (2) evidence of an in-service stressor, with credible
supporting evidence that the
claimed in-service stressor occurred; and (3) evidence of a causal nexus
between the current
symptomatology and the in-service stressor. 38 C.F.R. § 3.304(f) (2011);
see Cohen v. Brown,
10 Vet.App. 128, 138 (1997). If the evidence establishes that the veteran
engaged in combat with
the enemy and his claimed stressor is related to that combat, the
veteran's lay testimony alone
generally is sufficient to establish the occurrence of the claimed in-
service stressor. 38 U.S.C.
§ 1154(b); Sizemore v. Principi, 18 Vet.App. 264 (2004); 38 C.F.R. § 3.
304(f); see also Zarycki v.
Brown, 6 Vet.App. 91, 98 (1993) (requiring that the Board "make specific
findings of fact as to
whether or not the veteran was engaged in combat with the enemy and, if so,
whether the claimed
stressor is related to such combat" and describing the different
evidentiary standards applied to
veterans who have been determined to have "engaged in combat with the
enemy" and those who
5
have not). When a claim for PTSD is based on a noncombat stressor, "the
noncombat veteran's
testimony alone is insufficient proof of a stressor." Moreau v. Brown, 9
Vet.App. 389, 396 (1996).
The Board's findings concerningcombat status and the
sufficiencyofcorroborative evidence
are findings of fact that the Court reviews under the "clearly erroneous"
standard of review.
Pentecost v. Principi, 16 Vet.App. 124, 126 (2002); Moreau, 9 Vet.App. at
395. A finding of fact
is clearlyerroneous when the Court, after reviewing the entire evidence, "
is left with the definite and
firm conviction that a mistake has been committed." United States v. U.S.
Gypsum Co., 333 U.S.
364, 395 (1948); see also Gilbert v. Derwinski, 1 Vet.App. 49, 52 (1990).
The Board must consider all the evidence of record and discuss in its
decision all "potentially
applicable" provisions of law and regulation. See 38 U.S.C. § 7104(a);
Schafrath v. Derwinski,
1 Vet.App. 589, 592-93 (1991). The Board is also required to provide a
statement of the reasons or
bases for its determination, adequate to enable an appellant to understand
the precise basis for its
decision, as well as to facilitate review in this Court. See 38 U.S.C. §
7104(d)(1); Allday v. Brown,
7 Vet.App. 517, 527 (1995); Gilbert, 1 Vet.App. at 56-57. To comply with
this requirement, the
Board must analyze the credibility and probative value of the evidence,
account for the evidence it
finds persuasive or unpersuasive, and provide the reasons for its
rejection of any material evidence
favorable to the claimant. Caluza v. Brown, 7 Vet.App. 498, 506 (1995),
aff'd per curiam, 78 F.3d
604 (Fed. Cir. 1996) (table).
A. VA's Duty To Assist
The Secretary has a duty to assist a claimant in obtaining evidence
necessary to substantiate
the claim. 38 U.S.C. § 5103A(a)(1). The Secretary's duty to assist
includes making "reasonable
efforts to obtain relevant records . . . that the claimant adequately
identifies to the Secretary and
authorizes the Secretaryto obtain." 38 U.S.C. § 5103A(b)(1); see Moore v.
Shinseki, 555 F.3d 1369,
1372-75 (Fed. Cir. 2009). If the records are maintained by a Federal
department or agency, "efforts
to obtain those records shall continue until the records are obtained
unless it is reasonably certain
that such records do not exist or that further efforts to obtain those
records would be futile."
38 U.S.C. § 5103A(b)(3); 38 C.F.R. § 3.159(e) (2011). If the Secretary
is unable to obtain those
records after making reasonable efforts to do so, the Secretary must
provide notice of that fact to the
claimant. See 38 U.S.C. § 5103A(b)(2); 38 C.F.R. § 3.159(e). The Board's
determination that VA
6
has satisfied the duty to assist is reviewed under the "clearly erroneous"
standard of review. Hyatt
v. Nicholson, 21 Vet.App. 390, 395 (2007). As this Court has explained on
numerous occasions,
"the duty to assist is not a license for a 'fishing expedition' to
determine if there might be some
unspecified information which could possibly support a claim." Gobber v.
Derwinski, 2 Vet.App.
470, 472 (1992) (noting that the duty to assist is "not a duty to prove a
claim with the claimant only
in a passive role"); Wood v. Derwinski, 1 Vet.App. 190, 193 (1991) (
stating that "[t]he duty to assist
is not a one-way street").
As noted above, the appellant argues that the Secretary should have
undertaken a search for
pertinent unit histories and morning reports to corroborate his assertion
that he engaged in combat
with the enemy. Appellant's Br. at 9-13. In response, the Secretary argues
that VA was under no
obligation to develop a claim for PTSD based on combat exposure because
the appellant failed to
respond to VA's request for information and his VA Form 9 specifically
limited the issue on appeal
to the denial of PTSD based on sexual trauma. Secretary's Br. at 6-10. The
Court disagrees.
As an initial matter, the Court is not persuaded bythe Secretary's
argument that the appellant
limited the issue on appeal. First, it is well established that the Board
has a duty to address all
theories of entitlement that are reasonably raised either by the appellant
or by the contents of the
record. See Robinson v. Peake, 21 Vet.App. 545, 552-56 (2008), aff'd sub
nom. Robinson v.
Shinseki, 557 F.3d 1355 (Fed. Cir. 2009). Indeed, the Court has stated
that "[a]s a nonadversarial
adjudicator, the Board's obligation to analyze claims goes beyond the
arguments explicitly made."
Id. at 563. Here, the record before the Board contained the appellant's
lay assertions that he
experienced combat in Vietnam and the March 2005 VA psychiatrist's opinion
that attributes the
appellant's PTSD in part to his combat experience. Second, and perhaps
most compelling, is that
the Board did not determine that the appellant abandoned the theory
whether his PTSD is the result
of combat stressors. Instead, the Board addressed that theory and found
that the appellant's "service
personnel records and the service treatment records do not show that the [
v]eteran experienced
combat while in Vietnam" and that "[t]here is no evidence to verify that
the [v]eteran experienced
a night time incident with the enemy or that he ever experienced a combat
situation." R. at 7; see
Martin v. Occupational Safety & Health Review Comm'n, 499 U.S. 144, 156 (
1991) ("'[L]itigating
7
positions' are not entitled to deference when they are merely appellate
counsel's 'post hoc
rationalizations' for agency action, advanced for the first time in the
reviewing court.").
With regard to the Secretary's contention that the appellant failed to
cooperate with VA's
requests for information, the Court agrees with the appellant that his
failure to cooperate fully with
VA's request for information did not relieve VA of its duty to assist, if
the Secretary had in his
possession the information required to conduct a search to corroborate
whether he engaged in
combat. See Reply Br. at 4-5. Recently, the Court concluded that the Board
erred when it failed to
assign an earlier effective date based upon the receipt of newly
discovered service department
records pursuant to 38 C.F.R. § 3.156(c) (2002) and (2010), where the
record demonstrated that,
notwithstanding the veteran's failure to fully cooperate with VA's
requests for information to verify
other claimed stressors, the information necessary for the Center for
Research of Unit Records to
verify his stressor that resulted in the award of benefits for PTSD had
always been a part of the
claims file. See MayhueNext Hit v. Shinseki, 24 Vet.App. 273, 280 (2011). The
Court stated that it was
"VA's administrative error in failing to verify [the appellant's] stressor
with the information that it
had at the time of his initial claim, not [the appellant's] subsequent
failure to provide additional
informationsufficient to verifyotherclaimedstressors,
thatpreventedVAfromverifyinghis stressor
until March 2005." Id.
Although Previous HitMayhueNext Hit is not directly on point, the Court's reasoning is
instructive and supports
the appellant's contention that, in this case, VA's duty to assist may
have included conducting a
search for the pertinent unit histories and morning reports from the
Center for Research of Unit
Records where the record contains specific information denoting the
appellant's unit assignments,
military occupation, and dates of deployment to Vietnam. See R. at 315-16,
425, 480, 487, 526.
The Board, however, did not discuss whether VA was obligated to conduct a
search for unit
histories or morning reports to confirm whether the appellant engaged in
combat during his service
in Vietnam. Instead, the Board summarily stated that it was "unaware of
any outstanding pertinent
evidence." R. at 5. In this case, the Court concludes that it is unclear
whether the appellant's
inaction deprived VAoftheinformationneededtorequest records that
maycorroborate his assertion
that he engaged in combat. See Previous HitMayhueNext Document, 24 Vet.App. at 280 (noting VA's
determination that the
veteran was subject to enemy attack because the Center for Research of
Unit Records verified that
8
the base camp to which the veteran was assigned was subjected to enemy
attacks). As noted by the
RO in its November 2005 rating decision, the record before the Agency
contained the appellant's
"[s]ervice records [that] show that [he] served in Vietnam from August 19,
1969[,] to October 3,
1969[,] as a Rifleman with Company A, 1st Battalion, 4th Marine Regiment,
3rd Marine Division."
R. at 169. Given the relatively short period of time that the appellant
served in Vietnam, the Court
is unable to discern any basis for VA's failure to conduct a search for
records to confirm the
appellant's allegations that conducted "search [and] destroy missions or
patrols" and "[c]ame in
contact with enemy [North Vietnamese Army] regulars in a night time s[kir]
mish (firefight)." R. at
220. The Board's failure to explain adequately why VA's duty to assist did
not require the Secretary
to conduct a search for unit histories or morning reports frustrates
judicial review and requires that
the matter be remanded. See Tucker v. West, 11 Vet.App. 369, 374 (1998) (
holding that remand is
the appropriate remedy "where 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").
B. The Board's Reasons and Bases
The Court also agrees that the Board failed to provide an adequate
statement of reasons or
bases for finding that the appellant did not engage in combat. As noted
above, the Board determined
that the appellant did not engage in combat because his service personnel
and treatment records did
not show that he experienced combat. R. at 7. However, in reaching this
determination, the Board
failed to address the credibility and probative value of the appellant's
lay statements that he engaged
in combat. While the Board may discount favorable evidence if it finds
that the evidence lacks
probative value, the Board must provide an adequate statement of reasons
or bases "for its rejection
of any material evidence favorable to the claimant." See Thompson v. Gober,
14 Vet.App. 187, 188
(2000); Owens v. Brown, 7 Vet.App. 429, 433 (1995) ("It is the
responsibility of the [Board] . . . to
assess the credibility and weight to be given to evidence."). The Board
cannot satisfy its reasons-or-
bases requirement by merely listing evidence, nor is a recitation of the
appellant's testimony a
sufficient surrogate for an account of whether the Board finds the
testimony persuasive. See Dennis
v. Nicholson, 21 Vet.App. 18, 22 (2007) ("The Court has long held that
merely listing evidence
before stating a conclusion does not constitute an adequate statement of
reasons and bases." (citing
9
Abernathy v. Principi, 3 Vet.App. 461, 465 (1992))). Here, the Board's
failure to assess the
credibility and probative value of the appellant's lay statements that he
engaged in combat renders
its statement of reasons or bases inadequate. See Gaines v. West, 11 Vet.
App. 353, 359 (1998)
(Board's failure to analyze the veteran's own sworn testimony that he
engaged in combat rendered
the Board's statement of reasons or bases inadequate); see generally Daye
v. Nicholson, 20 Vet.App.
512, 517 (2006) (holding that the absence of awards or decorations that
would confirm engagement
in combat, does not preclude a finding that the veteran engaged in combat,
and the Board erred to
the extent that it relied on the absence of awards to conclude that the
veteran did not participate in
combat).
Finally, the Court agrees with the appellant that the Board impermissibly
ignored favorable
medical evidence. In its decision, the Board noted that the appellant
initially reported a PTSD
diagnosis as a result of sexual trauma, but that in March and April 2005
statements, he "also reported
that he had PTSD due to a night time fight with the enemy North Vietnamese
Regulars." R. at 7.
The Board continued its discussion bynoting that after April 2005, the
appellant "onlyindicated that
he had PTSD due to a personal assault" and that "none of the VA medical
records have attributed
the [v]eteran's claimed PTSD to combat activities, only to the [v]eteran's
claimed personal assault."
Id. (emphasis added). The latter statement is factually incorrect because
it ignores the March 2005
VA psychiatrist's opinion that the appellant's "PTSD, depression[,] and
poly substance abuse is a
direct result of his experience in combat in Vietnam as well as his sexual
assault while receiving
treatment for his in[j]uries and infectious disease while on active duty."
R. at 249. Accordingly, on
remand, the Board must assess the credibility and probative value of the
veteran's lay statements
regarding combat, and address the March 2005 VA psychiatrist's opinion
that attributes the
appellant's PTSD in part to his combat experience.
In pursuing these matters on remand, the appellant is free to submit
additional evidence and
argument, and the Board is required to consider any such relevant evidence
and argument. See Kay
v.Principi,16Vet.App.529,534(2002)(statingthat,onremand,theBoardmust
consideradditional
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,
10
1 Vet.App. 394, 397 (1991). The Board must proceed expeditiously, in
accordance with 38 U.S.C.
§ 7112(requiring Secretary to provide for "expeditious treatment" of claims
remanded by the Court).
III. CONCLUSION
After consideration of the appellant's and the Secretary's pleadings, and
a review of the
record, the November 5, 2009, Board decision is VACATED and the matter is
REMANDED for
further proceedings consistent with this decision.
DATED: September 30, 2011
Copies to:
Sean A. Ravin, Esq.
VA General Counsel (027)
11
Single Judge Application, Claim Versus Theory of Entitlement to a Benefit, Hillyard v. Shinseki, 24 Vet.App. 343, 355 (2011)
Excerpt from decision below:
"This Court has held that a "claim" is an expressed belief in an entitlement to a benefit, while a "theory" is a means of establishing entitlement to a benefit. Hillyard v. Shinseki, 24 Vet.App. 343, 355 (2011). Therefore, "although there may be multiple theories or means
of establishing entitlement to a benefit for a disability, if the theories all pertain to the same benefit for the same
disability, they constitute the same claim." Roebuck v. Nicholson, 20 Vet.App. 307, 313 (2006); see
also Bingham v. Principi, 18 Vet.App. 470, 474 (2004)(finding that "direct and presumptive service
connection are, by definition, two means (i.e., two theories) by which to reach the same end, namely
service connection).
===========================
----------------------------------------------------
Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 10-1862
BERNADITA P. TORRES, 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, Bernadita P. Torres, appeals through counsel an April 15, 2010, Board of Veterans' Appeals (Board) decision that, based on the submission of new and material evidence, reopened her claim for entitlement to service
connection for the death of her husband, but then denied her claim. Record (R.) at 3-25. 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 decision and remand the matter for further proceedings consistent with this opinion.
I. BACKGROUND
The veteran, George Mendiola Torres, served on active duty in the U.S.
Army from
November 1969 until November 1971, including a period in Vietnam. R. at
519. In a March 15,
2002, decision, the VA regional office (RO) granted the veteran service
connection for diabetes
mellitus on a presumptive basis due to his exposure to herbicides while
serving in Vietnam. R. at
452-57.
In April 2002, following a surgical procedure, the veteran was diagnosed
with pancreatic
carcinoma. R. at 436. The veteran died on March 16, 2003. R. at 365. His
death certificate lists
his cause of death as "metastatic pancreas cancer," but recorded no other
conditions related to his
cause of death or contributing to his death. Id. On April 10, 2003, the
appellant filed a claim for
dependencyand indemnity compensation (DIC), death pension, and accrued
benefits bya surviving
spouse. R. at 356-60. The RO denied her claim in June 2003, a decision she
apparently did not
appeal. R. at 349-53. The appellant sought to reopen her claim in October
2006. R. at 198, 235.
The RO, however, found in April 2007 that evidence submitted by the
appellant was new but not
material, and therefore declined to reopen her case. R. at 198-203.
In October 2009, the Board requested that an expert medical opinion be
obtained. R. at 51-
57. A large portion of the appellant's argument revolves around the
November 2009 expert medical
opinion written by Dr. Lawrence B. Afrin. R. at 43-46. Dr. Afrin concluded
that it is unlikely that
the veteran's pancreatic cancer was caused or aggravated byhis service-
connected diabetesmilletus.
R. at 44. Dr. Afrin noted that, although medical literature indicates that
there might be an
associational link between diabetes mellitus and pancreatic cancer, there
is no evidence of a causal
link. R. at 44-45. Likewise, he found no evidence in medical literature to
indicate how diabetes
mellitus might aggravate pancreatic cancer "in the sense of contributing
to development of the
cancer." R. at 45. Dr. Afrin's opinion is supported by an April 2007 VA
examination report in
which the examiner stated that "the veteran's diabetes did not cause his
pancreatic cancer." R. at
207-08. A number of other documents submitted by private medical providers,
however, link
pancreatic cancer and diabetes milletus to varying degrees, including at
least one that identified a
causal link. R. at 49, 123, 213, 219, 220.
The Board, in its April 15, 2010, decision here on appeal, reopened the
appellant's claim for
entitlement to service connection for the cause of death of the veteran
based on the submission of
new and material evidence, but then denied the claim. The Board concluded
that evidence failed to
indicate that the veteran's cause of death "was due to anyincident or
event in active service," nor that
it was "proximately due to or the result of his service-connected diabetes
mellitus, on either a
causation or aggravation basis." R. at 5. The Board found that competent
medical evidence failed
to establishaconnection betweentheveteran's diabetesmilletus andhis
pancreaticcanceranddeath.
2
R. at 22. In doing so, it rejected (largely by comparison with Dr.
Afrin's opinion) medical opinions
potentially in support of the appellant's claim, finding them "conclusory
and speculative." R. at 23-
24.
The appellant raises three arguments on appeal. First, the appellant
argues that the Board
should have returned Dr. Afrin's opinion for clarification based on
inconsistencies and inadequate
reasoning in his statement of rationale. Appellant's Brief (Br.) at 10-13.
Next, the appellant
contends that the Board should have obtained a medical opinion exploring a
possible nexus between
the veteran's pancreatic cancer and his exposure to herbicide. Id. at 14-
16. Finally, the appellant
argues that the Board failed to apply 38 C.F.R. § 3.312(c)(3) to her
claim. Id. at 16-19.
II. ANALYSIS
A. Dr. Afrin's Opinion
The appellant argues, essentially, that Dr. Afrin's medical opinion is
inadequate. The
Secretary's duty to assist includes "providing a medical examination or
obtaining a medical opinion
when such an examination or opinion is necessary to make a decision on the
claim."
38 U.S.C. § 5103A(d)(1); see also Green v. Derwinski, 1 Vet.App. 121, 124 (
1991). This Court has
held that a medical opinion is adequate "where it is based upon
consideration of the veteran's prior
medical history and examinations and also describes the disability, if any,
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)). The opinion
"must support its conclusion with an analysis that the Board can consider
and weigh against contrary
opinions." Id. at 124-25. Whether a medical examination report is adequate
is generally a finding
of fact that the Court reviews under the "clearly erroneous" standard of
review.
38 U.S.C. § 7261(a)(4); Nolen v. Gober, 14 Vet.App. 183, 184 (2000).
When deciding a matter, the Board must include in its decision a written
statement of the
reasons or bases for its findings and conclusions, adequate to enable an
appellant to understand the
precise basis for the Board's decision as well as to facilitate review in
this Court.
38 U.S.C. § 7104(d)(1); Allday v. Brown, 7 Vet.App. 517, 527 (1995);
Gilbert v. Derwinski, 1
Vet.App. 49, 56-57 (1990). To complywith this requirement, the Board must
analyze the credibility
3
See
and probative value of the evidence, account for the evidence that it
finds persuasive or
unpersuasive, and provide the reasons for its rejection of any material
evidence favorable to the
claimant. Caluza v. Brown, 7 Vet.App. 498, 506 (1995), aff'd per curiam,
78 F.3d 604 (Fed. Cir.
1996) (table); Gilbert, 1 Vet.App. at 57.
As the Board acknowledges, Dr. Afrin essentially states that, although
medical science
suggests at least an associational link between diabetes milletus and
pancreatic cancer, there is no
definitive evidence of a causal link between the two. R. at 24, 44-45. He
stated that, based on
current medical evidence, it is "impossible to say" whether the two
disorders are causallyrelated and
that the "precise nature of [their] association . . . is not yet known." R.
at 44. But then, he went on
to opine that it "fundamentally is impossible . . . given the scientific
knowledge available at this
time" to opine whether the veteran's diabetes mellitus caused his cancer.
R. at 45. As to the
pertinent legal question, however, Dr. Afrin opined:
My answer is simply: the available peer-reviewed biomedical literature
does not
support a statement that it is at least as likely as not that this
patient's pancreatic
cancer was caused or aggravated by his service-connected diabetes mellitus.
Therefore, given the parameters of the primaryquestion Iwas asked, Ihave
no choice
but to conclude the obverse, namely, it is unlikely this patient's
pancreatic cancer
was caused or aggravated by his service-connected diabetes mellitus.
R. at 44.
Dr. Afrin's opinion constitutes an unsupported leap in logic that renders
it inadequate. He
concludes first that, based on current medicalevidence, he cannot state,
either way, whetherdiabetes
mellitus and pancreatic cancer are causally linked. Then, however, he
concludes that it is unlikely
that the veteran's pancreatic cancer was caused or aggravated by his
diabetes mellitus.1
If Dr. Afrin
cannot state the precise nature of the relationship between diabetes
mellitus and pancreatic cancer,
he certainly cannot support his opinion that it is unlikely that
pancreatic cancer was caused or
aggravated by service-connected diabetes mellitus with "a reasoned medical
explanation" as is
Although Dr. Afrin stated that he felt he was forced to offer this opinion
based on the
"parameters of the primaryquestion Iwas asked,"the Board's request fora
medical opinion gave him
another option. It instructed that if "any question posed cannot be
answered without resorting to
unsupported speculation, the reviewer should so state, and explain why
that is so." R. at 56.
4
1
required for his opinion to be adequate. See Nieves-Rodriguez v. Peake,
22 Vet.App. 295, 301
(2003); see also Stefl, 21 Vet.App. at 123-24.
Regarding the question of whether the veteran's diabetes mellitus
aggravated his pancreatic
cancer, Dr. Affrin concludes that the question is "moot" based on his
finding about causation. R. at
46. As the appellant notes (Appellant's Br. at 11-12), Dr. Afrin, during
his discussion about
aggravation, found that
[o]bviously, severe, poorly controlled diabetes (such as [the veteran] had
later in his
course) will "aggravate" the course of virtually any illness, including
cancer, but as
has already been observed by other reviewers of this case, the worsening
of his
diabetes (to a point where it might have "aggravated" the course of his
cancer) was
surgically induced and not unexpected.
R. at 45.
The Board summarized Dr. Afrin's opinion, writingthat Dr. Afrin "stated
that severe, poorly
controlled diabetes will aggravate the course of any illness, including
cancer." R. at 21. However,
neither the Board nor Dr. Afrin explains the apparent incongruities
between these statements and Dr.
Afrin's conclusion that, for the same reason as his findings on causation,
there is no evidence of
aggravation in the veteran's case. R at 45; see Stefl and Nieves-Rodriguez,
both supra. For these
reasons, the Court finds that the Board's determination that Dr. Afrin's
opinion is adequate is clearly
erroneous. See 38 U.S.C. § 7261(a)(4); Nolen, supra. Where an examination
report is inadequate,
the Board should remand the case to the RO for further development.
Bowling v. Principi,
15 Vet.App. 1, 12 (2001) (holding that the Board has a duty under 38 C.F.R.
§ 19.9(a), to remand
a case "[i]f further evidence or clarification of the evidence or
correction of a procedural defect is
essential for a proper appellate decision"); see also Green, 1 Vet.App. at
124 (holding that remand
is appropriate where the Board relied on an inadequate examination report);
38 C.F.R. § 4.2 (2011).
B. Duty to Assist
The appellant asserts that the Board failed in its duty to assist because
it failed to provide a
medical opinion ascertaining whether there is a nexus between the
veteran's in-service herbicide
exposure and his pancreatic cancer. Appellant's Br. at 14-16. The
Secretarydoes not respond to this
argument directly. Instead, he argues that the appellant "never raised the
issue of whether the
[v]eteran's cancer was directly caused by [herbicide] exposure" at any
stage in the adjudication of
5
her claim prior to her appeal to this Court, and thus the Board "was not
required to obtain a medical
opinion because the issue was not reasonably raised and not properly
before the Board." Secretary's
Br. at 6-7.
The Board found that the appellant "is not claiming service connection for
the cause of the
[v]eteran's death on the basis of in-service incurrence or aggravation of
the disease which caused his
death." R. at 16. The Board made no findings and offered no discussion
about whether the veteran's
pancreatic cancer can be directly linked to his herbicide exposure.
Therefore, the Court's
jurisdictional abilityto respondto theappellant's
argumenthingesonwhethershe is advancinganew
claim or merely a new argument in support of her existing claim. If the
question of whether the
veteran's cause of death and herbicide exposure aredirectlylinked
constitutes a new claim, the Court
lacks jurisdiction to consider it because there is no final Board decision
on that claim. See 38 U.S.C.
§§ 7252(a), 7266(a); see also Breeden v. Principi, 17 Vet.App. 475, 478 (
2004). If, however, direct causation represents an alternative argument in support of the appellant's
claim, then the Court has jurisdiction either to consider it or remand the matter for the Board to
consider it in the first instance. See Maggitt v. West, 202 F.3d 1370, 1377-78 (Fed. Cir. 2000) (holding that
this Court has discretion to hear arguments presented to it in the first instance, provided that it otherwise has jurisdiction over the claim).
This Court has held that a "claim" is an expressed belief in an entitlement to a benefit, while a "theory" is a means of establishing entitlement to a benefit. Hillyard v.Shinseki, 24 Vet.App. 343, 355 (2011). Therefore, "although there may be multiple theories or means
of establishing entitlement to a benefit for a disability, if the theories all pertain to the same benefit for the same
disability, theyconstitute the same claim." Roebuck v. Nicholson, 20 Vet. App. 307, 313 (2006); see
also Bingham v. Principi, 18 Vet.App. 470, 474 (2004)(finding that "direct and presumptive service
connection are, by definition, two means (i.e., two theories) by which to reach the same end, namely
service connection). In this case, the end sought by the appellant, and thus her "claim," is service
connection for the cause of death of the veteran, which was pancreatic cancer. The argument that
the Board addresses – whether the veteran's service-connected diabetes mellitus is related to his
cause of death – and the argument that pancreatic cancer is directly related to the veteran's in-service
herbicide exposure, are both attempts by the appellant to reach service connection. Thus, the Court
6
finds that the appellant's assertion, brought here on appeal, that
pancreatic cancer and herbicide
exposure maybe linked, is merely a new theory to support her ultimate claim
that service connection
is warranted for the death of the veteran. See Hillyard, Roebuck, and
Bingham, all supra. Therefore,
the Court has jurisdiction to consider the matter. Maggitt, 202 F.3d at
1377-78.
Pancreatic cancer is not one of the disorders entitled to presumptive
service connection for
veterans exposed to herbicides duringservice. 38C.F.R.§3.309(e)(2011).
Theappellant, however,
is still entitled to attempt to link the veteran's cancer to exposure to
herbicides on a direct basis.
Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994) ("[T]he presumptive
service connection
procedure . . . does not foreclose proof of direct service connection.").
The Board has a duty to
address all issues reasonably raised before it by either the appellant or
the contents of the record.
Robinson v. Mansfield, 21 Vet.App. 545 (2008), aff'd sub nom. Robinson v.
Shinseki, 557 F.3d 1355
(Fed. Cir. 2009). The Board found, and the appellant does not dispute,
that she did not make any
argument for direct service connection before the Board. R. at 16.
Therefore, for the Board's failure
to discuss direct service connection to constitute remandable error, there
must be some indication
that the record reasonably raised direct service connection as an issue.
The appellant attempts to
meet this burden by again citing to Dr. Afrin's opinion. Appellant's Br.
at 15. Dr. Afrin stated:
With respect to this particular case, too, I should note that besides
diabetes mellitus
type 2, several other factors have been clearly epidemiologically
associated with an
increased risk for pancreatic cancer including cigarette smoking, various
dietary
factors, various environmental factors (e.g., certain chemical exposures),
certain
infections, and certain chronic inflammatory ailments. . . . The patient
in this case
was both a smoker and had extensive occupational risk for certain chemical
exposures. . . . Did his diabetes cause his cancer? Did his smoking cause
his cancer?
Did his occupational exposure cause his cancer? Did some other yet
unidentified
factor or factors such as a chronic systemic inflammatory ailment cause
his cancer?
Did some complex combination of all of these issues cause his cancer? It
fundamentally is impossible to answer any of these questions in this case (
or similar
cases for that matter) given the scientific knowledge available at this
time.
R. at 45 (emphasis added).
As the appellant argues, Dr. Afrin clearly indicates that environmental
factors including
chemical exposure may be directly associated with the veteran's pancreatic
cancer. Appellant's Br.
at 15. The Secretary does not attempt to counter this assertion. Dr. Afrin
could have been
7
referencing chemical exposure in the appellant's post-service occupation
rather than herbicide
exposure, and his opinion that no scientific evidence exists that might
causally link such exposure
to the veteran's cancer may be adequate. However, the Board made no such
factual findings, and it
is not for this Court to do so in the first instance. See Hensley v. West,
212 F.3d 1255, 1263 (Fed.
Cir. 2000) (stating that "appellate tribunals are not appropriate fora for
initial fact finding"); see also
38 U.S.C. § 7261(c). It is enough that the appellant has demonstrated
that the record reasonably
raises the possibility that environmental factors such as chemical
exposure may be a cause of the
appellant's pancreatic cancer to warrant remand. See Robinson, supra.
Therefore, on remand, the
Board should take up the issue and determine whether a medical examination
is warranted. The
Boardshould thendecidewhethertheevidencesupports afindingthattheveteran's
pancreaticcancer
and herbicide exposure are directly linked and provide a statement of
reasons or bases explaining
its findings.
The Court notes that the standard found in 38 U.S.C. § 5103A(d) is
properly applied to
determine whether a medical examination is warranted in disability
compensation claims, but not
in claims for DIC. See Wood v. Peake, 520 F.3d 1345 (Fed. Cir. 2008);
DeLaRosa v. Peake, 515
F.3d 1319 (Fed. Cir. 2008). Thus, both 38 U.S.C. § 5103A(d) and the test
stated in McLendon v.
Nicholson, 20 Vet.App. 79 (2006), which provides guidelines for applying
38 U.S.C. § 5103A(d),
are not applicable to this case, as the appellant argues. See Appellant's
Br. at 14-16. Instead, the
Board should apply the more general standards found in 38 U.S.C. § 5103A(
a), as explained by
DeLaRosa and Wood.
C. 38 C.F.R. § 3.312(c)(3)
The appellant argues that the Board should have applied 38 C.F.R. § 3.312(
c)(3) to her case.
Appellant's Br. at 16-19. In general, a veteran's death "will be
considered as having been due to a
service-connected disability when the evidence establishes that such
disability was either the
principal or contributory cause of death." 38 C.F.R. § 3.312(a) (2011).
Regulatory language
describes a contributorycause of death generallyas one that "contributed
substantiallyor materially;
that . . . combined to cause death; that . . . aided or lent assistance to
the production of death. It is
not sufficient to show that it casually shared in producing death, but
rather it must be shown that
8
there was a causal connection." 38 C.F.R. § 3.312(c). However, pursuant
to 38 C.F.R. § 3.312(c)(3),
a service-connected disease or injury, like the veteran's diabetes
mellitus,
involvingactiveprocessesaffectingvital organsshould
receivecarefulconsideration
as a contributory cause of death, the primary cause being unrelated, from
the
viewpointofwhethertherewereresultingdebilitatingeffectsandgeneral
impairment
of health to an extent that would render the person materiallyless capable
of resisting
the effects of other disease or injury primarily causing death.
The Board is required to consider and discuss all applicable provisions of
law and regulation
where they are made "potentially applicable through assertions and issues
raised in the record."
Schafrath v. Derwinski, 1 Vet.App. 589, 592-93 (1991); see 38 U.S.C. §
7104(a); Robinson, 21
Vet.App. at 552. The appellant argues that the pancreas is a vital organ,
and that the veteran's
diabetes mellitus affected his pancreas. Appellant's Br. at 18. Therefore,
she argues, the Board
should have applied § 3.312(c)(3) to consider "whether there were
resulting debilitating effects and
general impairment of health from the [v]eteran's diabetes mellitus to an
extent that would render
him materially less capable of resisting the effects of" his primary cause
of death. Id.
The Board listed § 3.312(c)(3) under the "Applicable Law" portion of its
decision. R. at 15.
The Court can find no evidence, however, that the Board considered and
applied the regulation in
the analysis portion of its decision. Since the Board itself identified
the regulation as applicable to
this case, it should have been considered and discussed. See 38 U.S.C. §
7104(a); Shafrath, 1
Vet.App. at 592-93. The Board's failure to consider the provision or
explain any findings it reached
renders its statement of reasons or bases inadequate. See 38 U.S.C. §
7104(d)(1); Allday, Caluza,
and Gilbert, all supra. On remand, the Board should consider first whether
the pancreas constitutes
a "vital organ," and then consider the effects the veteran's diabetes
mellitus had on his pancreas. See
38 C.F.R. § 3.312(c)(3).
Finally, the Court notes that, 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
evidence and argument. See Kay v. Principi, 16 Vet.App. 529, 534 (2002) (
stating that, on remand,
the Board must consider additional evidence and argument in assessing entitlement to benefit sought); Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999) (per curiam order). The Court has held that "[a] remand is meant to entail a critical examination of the justification for the decision."
9
Fletcher v. Derwinski, 1 Vet.App. 394, 397 (1991). The Board must proceed expeditiously, in accordance with 38 U.S.C. § 7112 (requiring Secretary to provide for "expeditious treatment" of claims remanded by the Court).
III. CONCLUSION
After consideration of the appellant's and Secretary's pleadings, and a review of the record, the Board's April 15, 2010, decision is VACATED and the matter is REMANDED to the Board for further proceedings consistent with this decision.
DATED: September 30, 2011
Copies to:
Robert V. Chisholm, Esq.
VA General Counsel (027)
10
Single Judge Application, Separate Disability Ratings When Symptoms do not Overlap, C.F.R. 4.25, Murray v. Shinseki, 24 Vet.App.(2011)
Excerpt from decision below:,
""Except as otherwise provided in [the rating] schedule, the disabilities arising from a single disease entity, e.g., arthritis, multiple sclerosis, cerebrovascular accident, etc., are to be rated separately as are all other disabling conditions, if any." 38 C.F.R. § 4.25(b) (2011). Separate
compensable ratings may be assigned for multiple, associated disabilities so long as the symptoms do not overlap. As recently stated by this Court in Murray v. Shinseki, In Esteban v. Brown, the Court explained that, when determining whether to assign separate disability ratings under § 4.25(b), "[t]he critical element is that none of the symptomatology for any . . . conditions is duplicative of or overlapping with the symptomatologyof the other . . . conditions." 6 Vet.App. 259, 262 (1994) (emphasis in original). If the appellant's symptoms are "distinct and separate,"then the
appellant is entitled to separate disability ratings for the various conditions. Id.
===============
----------------------------------------------------
Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 10-0504
JAMES H. THAXTON, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before MOORMAN, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
MOORMAN, Judge: The appellant, James H. Thaxton, appeals through counsel
an
October 19, 2009, Board of Veterans' Appeals (Board) decision that denied
entitlement to an initial
rating in excess of 10% for residuals of a right knee injury, with mild
traumatic tricompartmental
arthritis and pain (right knee disability), for the period prior to August
1, 2006. Record (R.) at 3-21.
Both parties filed briefs, and the appellant filed a reply brief. The
appellant seeks reversal of the
Board's decision denying him a separate 10% disability rating for symptoms
that he argues are not
contemplated under the current Diagnostic Code assigned to his right knee
condition. The Secretary
concedes that a remand, but not reversal, is warranted on the matter. The
appellant does not raise
any argument with respect to the Board's grant of an initial rating of 60%,
but no higher, for his right
knee disability for the period beginning November 1, 2007. Accordingly,
the Court considers
abandoned on appeal any challenge to this latter matter. See Ford v. Gober,
10 Vet.App. 531, 535
(1997); Degmetich v. Brown, 8 Vet.App. 208, 209 (1995), aff'd, 104 F.3d
1328 (Fed. Cir. 1997).1
Because there is no final Board decision regarding the remanded matter of
entitlement to an initial
compensable rating for a right knee neurological disorder (claimed as
nerve damage), the Court lacks jurisdiction to
consider that claim. See 38 U.S.C. § 7252(a) (providing that Court's
jurisdiction is generally limited to review of final
Board decisions); Kirkpatrick v. Nicholson, 417 F.3d 1361, 1365 (Fed. Cir.
2005) (holding that Board's remand order
"was not a decision within the meaning of section 7252(a)"); see also
Ledford v. West, 136 F.3d 776, 779 (Fed. Cir.
1
This appeal is timely, and the Court has jurisdiction pursuant to 38 U.S.
C. §§ 7252(a) and 7266(a).
A single judge mayconduct this review because the outcome in this case is
controlled bythe Court's
precedents and "is not reasonably debatable." Frankel v. Derwinski, 1 Vet.
App. 23, 25-26 (1990).
For the following reasons, the Court will affirm in part and reverse in
part the Board's October 2009
decision.
I. FACTS
Mr. Thaxton served on active duty in the U.S. Army from March 1959 to
March 1962.
Record (R.) at 888. He underwent surgery on his right knee in service. See
R. at 733. A VA
regional office (RO) granted service connection for the residuals of a
right knee injury, with
traumatic arthritis and pain, andassigneda 10% disabilityratingunder 38 C.
F.R. § 4.71a, Diagnostic
Codes (DCs) 5010-5261, effective August 26, 2003.2
R. at 728-35. Mr. Thaxton appealed and, in
his Notice of Disagreement, he noted that a doctor told him that x-rays
showed that he was missing
a lot of cartilage. In November 2007, the Board remanded the matter for
further development. R. at
492-96. Following development of the claim, the Board issued the October
2009 decision now on
appeal. The Board found that"aseparate10 percent ratingunder DC 5259 would
doublycompensate
the Veteran for the same manifestations of his right knee disability,
contrary to the rule against
pyramiding."3
R. at 18; see 38 C.F.R. § 4.14 (2011) ("The evaluation of the same
disability under
various diagnoses is to be avoided."). This appeal followed.
1998).
Limitation of motion of the right knee is the key consideration when
assigning a disability rating for traumatic
arthritis. See 38 C.F.R. § 4.71a, DC 5010 (providing that arthritis due
to trauma will be rated in the same manner as
degenerative arthritis), 5003 (in turn providing that degenerative
arthritis will be rated on the basis of limitation of motion
under the appropriate DCs for the specific joint involved), 5260 (
providing the schedule of ratings for limitation of
flexion of the leg), 5261 (providing the schedule of ratings for
limitation of extension of the leg). As relevant here, under
DC 5261, when leg extension is limited to 10 degrees, the disability
rating is 10%. 38 C.F.R. § 4.71a, DC 5261.
3
2
The VA Schedule of Ratings for the knee include DC 5258 and 5259:
5258
5259
Cartilage, semilunar, dislocated, with frequent episodes of "locking,"
pain, and effusion into the joint . . . .20
Cartilage, semilunar, removal of, symptomatic
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
10
2
II. ANALYSIS
The appellant contends that the Board erred in denying a separate compensable disability rating for the symptomatic removal of his semilunar cartilage under DC 5259 because it wrongly found symptoms due to the removal of his cartilage as being "contemplated by his current rating of 10 percent under DC 5010-5261," R. at 18. App. Br. at 8-9. The Secretary argues that the Court should vacate and remand the matter because the Board failed to provide an adequate statement of reasons or bases for its explanation that the appellant's right knee symptoms did not warrant a separate rating under DC 5259. "Except as otherwise provided in [the rating] schedule, the disabilities arising from a single disease entity, e.g., arthritis, multiple sclerosis, cerebrovascular accident, etc., are to be rated separately as are all other disabling conditions, if any." 38 C.F.R. § 4.25(b) (2011). Separate compensable ratings may be assigned for multiple, associated disabilities so long as the symptoms do not overlap. As recently stated by this Court in Murray v. Shinseki, In Esteban v. Brown, the Court explained that, when determining whether to assign separate disability ratings under § 4.25(b), "[t]he critical element is that none of the symptomatology for any . . . conditions is duplicative of or overlapping with the symptomatology of the other . . . conditions." 6 Vet.App. 259, 262 (1994) ( emphasis in original). If the appellant's symptoms are "distinct and separate," then the appellant is entitled to separate disability ratings for the various conditions. Id. In addition, two VA General Counsel Precedent Opinions, which are binding on VA, indicate that separate evaluations are allowed for separate disabilities arising from the same knee injury. See VA Gen. Coun. Prec. 9–2004 (Sept. 17, 2004) (authorizing separate evaluations forlimitation of leg flexion and limitation of leg extension); VA Gen. Coun. Prec. 23–97 (July 1, 1997) (authorizing separate evaluations for arthritis and subluxation or instability of the knee under Diagnostic Codes 5003 and 5257); see also Hornick v. Shinseki, 24 Vet.App. 50, 52 (2010) ("The Board is 'bound in its decisions by the . . . precedent opinions of the chief legal officer of the Department.'" (quoting 38 U.S.C. § 7104(c))). Murray, 24 Vet.App. 420, 423 (2011).
The Board's assignment of a disability rating is a finding of fact that the Court reviews under the "clearly erroneous" standard of review. 38 U.S.C. § 7261(a)(4); see Johnston v. Brown, 10 Vet.App. 80, 84 (1997). A finding of material 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
3
committed." United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948);
see Gilbert v. Derwinski, 1 Vet.App. 49, 52 (1990). When applying this standard, if, after reviewing
the record in its entirety, the Board's finding of fact is supported by a plausible basis, "the [Court]
may not reverse it even though convinced that had it been sitting as trier of fact, it would have
weighed the evidence differently." Gilbert, 1 Vet.App. at 52 (quoting Anderson v. City of
Bessemer City, 470 U .S. 564, 573-74 (1985)).
In this case, the Board found that Mr. Thaxton's right knee is
currentlyrated as 10% disabling for the period prior to August 1, 2006, under DC 5010-5261 "for the
disease of traumatic arthritis with a residual condition of limitation of extension of the knee," R. at
11. The Board reviewed the evidence of record and stated:
[T]he Veteran's right knee disability is manifested by X-ray evidence of arthritis, near
full extension and flexion limited to 110 degrees with pain and crepitus,
further
limitation of motion due to pain after prolonged use, symptomatic removal
of
semilunar cartilage, and well-healed scars. The Veteran had subjective
complaints
oflocking,catching,popping,clicking,swelling,flare-ups,andtenderness;
however,
there is no objective evidence of lateral instability, subluxation, or
dislocated
semilunar cartilage.
R. at 15 (emphasis added). The Board further found: "[A]s there is X-ray
evidence of arthritis, the
Veteran has been assigned a 10 percent rating based on painful, limited
motion." R. at 16. This
apparently is based on DCs 5003 and 5010. The Board also stated that "the
preponderance of the
evidence indicates that the Veteran had a right knee partial meniscectomy,
or removal of the
semilunar cartilage, during service." R. at 17.
The Board then discussed Mr. Thaxton's symptoms in more detail.
At the October 2003 VA examination, the Veteran reported occasional
swelling, but
no mechanical symptoms. The Veteran had a mildly positive McMurray's test
and
tenderness along the medial and lateral joint lines, but there was no
objective
evidence of effusion. VA treatment records dated in June and October 2004
reflect
that the Veteran reported popping and cracking with occasional locking,
catching,
and swelling; and physical examination showed pain with the McMurray's
test and
significant tenderness. At the January 2005 VA examination, the Veteran
indicated
that his knee would swell at the end of the day after he had been on it
for long periods. . . . A November 2005 treatment record indicates that the Veteran
reported popping and clicking, but no locking or catching, and he had pain with the
McMurray's test.
4
R. at 17-18. Following the discussion of the evidence as quoted above,
which did not include a discussion of Mr. Thaxton's limitation of motion, the Board concluded that "
the Veteran's right knee was symptomatic as a result of his meniscectomy." R. at 18. The Board,
however, then found that (1) "such symptoms are contemplated by his current rating of 10 percent
under DC 5010-5261 [(limitation of extension)];" and (2) "a separate 10 percent rating under
DC 5259 would doubly compensate the Veteran for the same manifestations of his right knee
disability, contrary to the rule against pyramiding [under 38 C.F.R. § 4.14]." Id.; see R. at 10, 12 (
citing to § 4.14).
The Court concludes that, contrary to the Secretary's position, the
Board's statement of its reason for denying the separate rating is adequate for judicial review.
The Court further concludes that the Board clearly erred and that reversal, not remand, is warranted
in this case because the only permissible view of the evidence is contrary to the Board's decision. See Johnson v. Brown, 9 Vet.App. 7, 10 (1996). The Board's determination that Mr. Thaxton is appropriately assigned a 10% rating only under DC 5261, which expressly is for limitation of extension of the knee, contradicts the evidence of record and "fails to adequately reflect a consideration of [Mr. Thaxton's] arthritis and its symptomatology." Murrayt, 24 Vet.App. at 424. At the time that the RO originally assigned Mr. Thaxton his 10% rating under DC 5010-5261 in December 2003, the RO focused on symptoms consisting of"pain when walking up inclines and getting up from a seated position," "mild pain on motion," "some crepitus at the last 30-40 degrees of flexion," and tender joint lines laterally. R. at 733. Subsequently developed evidence included VA medical records recording Mr. Thaxton's reports of (1) "popping and clicking in his knees" (R. at 434 (November 2005 VA progress notes)); (2) "some instability of his right knee when the pain gets to where it hits him suddenly" and"swelling at the end of the day," (R. at 542-43 (January 2005 VA medical record)); (3) "swelling, popping, locking, and catching" and a doctor's statement that he "ordered a knee brace for [Mr. Thaxton] to help him with some instabilityhe is having on long walks" (R. at 573 (October 2004 VA medical records)); and (4) "popping and cracking, and some mechanical symptoms" (R. at 629 (June 2004 VA medical records). The Court notes that symptoms of swelling, popping, clicking, instability, locking, catching, and cracking are not noted in DC 5261 and further notes that the symptom of "locking" is expressly used in DC 5258 in describing a symptom associated with a dislocated cartilage. Indeed, the Court notes that the Secretary concedes that "[n]either [DC 5010
5
nor DC 5261] contemplate[] Appellant's symptomatic removal of semilunar cartilage." Secretary's Br. at 7-8.
The Court holds that the appellant is entitled to a 10% rating under DC 5259 for the removal of the appellant's cartilage, which the Board found to be symptomatic, as a separate rating in addition to the current 10% rating for arthritis of the right knee under DC 5003 and 5010. See Murray, 24 Vet.App. at 428 (reversing Board decision and remanding for Board (1) to reinstate protected 10% disability rating under DC 5257 for recurrent subluxation or lateral instability of the left knee; and (2) to assign a separate 10% disability rating for arthritis of the
left knee under DCs 5003 and 5010). Accordingly, the Court will reverse the Board's finding that "a separate 10 percent rating under DC 5259 would doubly compensate the Veteran for the same manifestations of his right knee disability, contrary to the rule against pyramiding" (R. at 18) and will also reverse the Board's denial of a separate rating under DC 5259.
I. CONCLUSION
Upon consideration of the foregoing analysis, the record on appeal,
and the parties' pleadings,
the October 19, 2009, Board decision is REVERSED as to the finding that a
separate 10% disability
rating under DC 5259 "would doubly compensate the Veteran for the same
manifestations of his
right knee disability, contrary to the rule against pyramiding" (R. at 18)
and as to the Board's denial
of a separate 10% disability rating under DC 5259 for the appellant's
right knee disability for the
period prior to August 1, 2006. The matter is REMANDED for adjudication
consistent with this
decision. The Board decision is otherwise AFFIRMED.
DATED: September 30, 2011
Copies to:
Virginia L. Carron, Esq.
General Counsel (027)
6
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