Tuesday, October 18, 2011
San Francisco-VA Nurse Charged with Stealing Demerol
Full article at: Feds say nurse stole pain meds from San Francisco veterans hospital
Bay City News Service
Julie Weaver, a gastrointestinal registered nurse at the San Francisco Veterans Affairs Medical Center in San Francisco has been charged in federal court with stealing Demerol pain medication from the facility.In a criminal complaint filed by prosecutors on Monday, for one count of theft from a federal health care program, the complaint asks that Weaver be summoned to appear before a federal magistrate in San Francisco on Oct. 27.
Single Judge Application, Kahana v. Shinseki, 24 Vet.App. 428, 434-35 (2011)
Excerpt from decision below:
"Although not discussed in the Secretary's brief, the Court notes that all three of the appellant's claimed conditions are associated with radiation exposure. See 38 C.F.R. §§ 3.309(d)(2)(xv); 3.311(b)(2)(xvi), (xxiii) (2011). If it is ultimately found that the
appellant has multiple conditions associated with radiation exposure, that fact may support the appellant's
claims. However, the
2
likelihood that a single individual would independently develop these three conditions without having been exposed to radiation is likely an issue beyond the competence of the Board. Accordingly, on remand, the Board should consider whether to obtain anexpert opinion on the ikelihood of the veteran developing his diagnosed conditions independent of radiation exposure. See >"
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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 09-3588
CARLOS CONTRERAS, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before LANCE, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
LANCE, Judge: The pro se appellant, Carlos Contreras, appeals a June 8,
2009, Board of
Veterans' Appeals (Board) decision that denied his claims for service
connection for urinary tract
cancer and posterior subcapsular cataracts and denied reopening of his
claim for service connection
for prostate cancer.
Record (R.) at 3-20.
Single-judge disposition is appropriate.
See
Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). This appeal is timely,
and the Court has
jurisdiction over the case pursuant to 38 U.S.C. §§ 7252(a) and 7266.
For the reasons that follow,
the Court will vacate the June 8, 2009, decision and remand the matters
for further proceedings
consistent with this decision.
I. FACTS
The appellant served in the U.S. Navy from July 1954 to May 1958. R. at
1402. During
service he participated in Operation WIGWAM, "a one-shot nuclear weapon
test conducted in the
Pacific Ocean 520 nautical miles southwest of San Diego, California, at
1300 on 14 May 1955." R.
at 1160.
In 1997, the appellant sought service connection for an enlarged prostate
and was denied.
R. at 1434-39, 1453-56. In 2000, the appellant applied for service
connection for prostate cancer.
R. at 1352. In July 2000, the Defense Threat Reduction Agency confirmed
the appellant's
participation in Operation WIGWAM but estimated that he had not received a
detectable level of
radiation exposure based upon location and tasks performed by the ship on
which he served as well
as other available evidence. R. at 1161. The appellant's claim was denied
by the Board in October
2002 on the basis that the appellant was not exposed to ionizing radiation
and there was no medical
evidence connecting his condition to radiation exposure or service. R. at
831-33.
Subsequently, the appellant sought to reopen his claim and also applied
for service
connection for urinary tract cancer and posterior subcapsular cataracts. R.
at 796-97. After an
extended procedural history, the Board decision on appeal denied reopening
of the appellant's
prostate cancer claim and denied his other two claims. R. at 3-20.
II. ANALYSIS
On appeal, the Secretary concedes that remand is required for the Board to
reconsider the
appellant's claims for urinary tract cancer and posterior subcapsular
cataracts. Specifically, the
Secretary concedes that the Board erred in failing to apply the
presumption that the appellant was
exposed to radiation and failed to conduct a proper analysis of whether
that presumption had been
rebutted. Secretary's Brief (Br.) at 11-13. The Court agrees. The
appellant meets the definition of
a "radiation-exposed veteran" based upon his participation in Operation
WIGWAM. 38 C.F.R.
§ 3.309(d)(3)(iv)(L) (2011) (defining operation WIGWAM as a radiation-
risk activity). Although
the presumption of exposure may be rebutted, it cannot be ignored. See
Douglas v. Shinseki,
23 Vet.App. 19, 24-25 (2009).
The Secretary also concedes that the Board's statement questioning the
nature of the
appellant's cataracts fails to address the specific diagnosis in an August
2003 medical note.
Secretary's Br. at 12-13 (citing R. at 721). Again, the Court agrees that
the Board's analysis is
inadequate in failing to analyze this evidence.
Although not discussed in the Secretary's brief,the Court notes that all three
of the appellant's
claimed conditions are associated with radiation exposure. See 38 C.F.R.
§§ 3.309(d)(2)(xv);
3.311(b)(2)(xvi), (xxiii) (2011). If it is ultimately found that the
appellant has multiple conditions
associated with radiation exposure, that fact may support the appellant's
claims. However, the
2
likelihood that a single individual would independently develop these
three conditions without
having been exposed to radiation is likely an issue beyond the competence
of the Board.
Accordingly, on remand, the Board should consider whether to obtain an
expert opinion on the
likelihood of the veteran developing his diagnosed conditions independent
of radiation exposure.
See Kahana v. Shinseki, 24 Vet.App. 428, 434-35 (2011) (holding that the
Board cannot make inferences from medical evidence that are beyond the competence of a lay
person); cf. Stefl v. Nicholson, 21 Vet.App. 120 (2007) (noting that "whether the claimed
condition has manifested itself in an unusual manner" is an issue that maybe addressed by a medical
opinion in an appropriate case).
Despite his concessions, the Secretary argues that the denial of reopening
of the appellant's
claim for service connection for prostate cancer should be affirmed
because no new and material
evidence has been submitted. Secretary's Br. at 7-9. However, the
Secretary's argument and the
Board's decision on this issue are both flawed because they fail to
recognize that the new evidence
that the appellant has been diagnosed with other conditions associated
with radiation exposure is
relevant to his prostate cancer claim. The Court has held that new
evidence that indicates that a
medical opinion is warranted is sufficient to reopen a claim. Shade v.
Shinseki, 24 Vet.App. 110,
117 (2010). As discussed above, the new evidence that the appellant has
been diagnosed with other
conditions associated with radiation exposure tends to support his claim
and the Board failed to
address this evidence in denying reopening. Accordingly, a remand is also
required for the Board
to reconsider this claim.
The appellant makes a number of arguments that the Court will also address.
First, to the
extent that the appellant argues that the Secretaryerred in not obtaining
his medical records from the
SocialSecurityAdministration (SSA),therecordindicatesthattheSSA
respondedthatthoserecords
had been destroyed. R. at 178. Therefore, the Secretary did not err in
failing to obtain records that
no longer exist. Second, the appellant argues that the Board erred in
failing to recognize that he was
exposed to up to 400 rems of radiation. However, the Court notes that the
evidence cited by the
appellant discusses Operation WIGWAM generally and does not preclude the
Board from making
a contrarydetermination based upon the estimate prepared concerning the
specific ship on which the
appellant served. Nonetheless, the Board will have to reconsider the issue
of exposure on remand,
3
weigh all the relevant evidence, and provide reasons or bases for its
conclusion. Finally, the
appellant argues that the Secretary erred in not following the procedures
set forth in 38 C.F.R.
§ 3.311. However, the applicability of those procedures is an issue that
is properly considered by
the Board in the first instance after reconsidering the issue of whether
the appellant was exposed to
radiation.
On remand, the appellant is free to submit additional evidence and
argument, including the
arguments raised in his briefs to this Court, in accordance with
Kutscherousky v. West, 12 Vet.App.
369, 372-73 (1999) (per curiam order), and the Board must consider any
such evidence or argument
submitted.
See Kay v. Principi, 16 Vet.App. 529, 534 (2002).
The Board shall proceed
expeditiously, in accordance with 38 U.S.C. §§ 5109B, 7112 (requiring
Secretary to provide for
"expeditious treatment" of claims remanded by Board or Court).
III. CONCLUSION
After consideration of the appellant's and the Secretary's briefs, and a
review of the record,
the Board's June 8, 2009, decision is VACATED and the matters are REMANDED
to the Board for
further proceedings consistent with this decision.
DATED: Oct. 11, 2011
Copies to:
Carlos Contreras
VA General Counsel (027)
4
Single Judge Application, Kahana v. Shinseki, 24 Vet.App. 428, 438 (2011); Buczynski v. Shinseki, 24 Vet.App. 221, 226-27 (2011)
Excerpt from decision below:
"In this case, the Board discounted the appellant's lay statements that his depression started at age 20. The Board stated that "[w]hen viewed in relation to the other evidence of record, the Board finds that the [appellant]'s account of his post-service continuity of symptomatology is simply not credible." R. at 11. The Board seems to have based this conclusion on the premise that the appellant's statements conflicted with other evidence of record. R. at 11-12. For example, the Board concluded that the appellant's lay statements about continuous symptoms conflicted with his March 2004 statement that he had not received any mental health treatment in the past. R. at 11. This analysis is inaccurate. The Board erred when it stated that the appellant "conceded he had had no past mental health problems or treatment." R. at 11. The appellant himself reported that he had never received treatment for his depression, but he did not state that he had never had mental health problems. R. at 650. The Board again erred when it required corroborating evidence of treatment, rather than symptoms. See Savage, supra. Next, given that the appellant expressly stated he had never been treated for his depression, the Board erred when it considered the lack of evidence of treatment as evidence that the appellant did not experience symptoms during that time. See Buczynski and Kahana both supra. Based on this analysis, the Court cannot conclude that the Board's credibility finding is based on a permissible analysis."
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UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 10-0215
RICHARD J. HOLMES, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before LANCE, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
LANCE, Judge: The appellant, Richard J. Holmes, through counsel, appeals
an October 1,
2009, Board of Veterans'Appeals (Board)decision that denied his claim for
disabilitycompensation
for bipolar disorder.
Record (R.) at 3-15.
Single-judge disposition is appropriate.
See
Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). This appeal is timely
and the Court has
jurisdiction over the case pursuant to 38 U.S.C. §§ 7252(a) and 7266.
For the reasons that follow,
the Court will vacate the October 1, 2009, decision and remand the matter
for further proceedings
consistent with this decision.
I. FACTS
The appellant served in the U.S. Navy from May 1980 to February 1982. R.
at 187. His
entrance examination did not note any psychiatric problems. R. at 132-45.
He was discharged early
after a history of using and dealing illegal drugs and a resulting
incarceration. R. at 95. The reason
listed for his discharge was that he was a "burden to command due to
substandard performance [and]
inability to adapt to military service." R. at 187 (capitalization omitted
). His February 1982
discharge examination report of medical history noted depression and
excessive worry. R. at 518.
In March 2004, a VA mental health interview noted that the appellant
reported no history of
mental health treatment. R. at 650. During an August 2004 psychiatric
history, the appellant
reported that he had suffered from depression since age 20. R. at 633. In
May 2005, the appellant
filed an application for disability compensation for a bipolar disorder. R.
at 703-04. In October
2005, he received a VA medical examination. R. at 668-77. The examiner
noted that the appellant
reported "a historyof emotional difficulties that started during childhood
." R. at 676. The examiner
noted that the appellant
identified his depression that occurred in the military as occurring when
he was sent
to correctional custodyfor his possession of marijuana and then his
inabilityto return
home for his buddy's wedding because he was incarcerated. There was no
other
indication of depression occurring in the United States Navy. Likewise,
the
[appellant]'s identification of depression has to do with the consequences
of his
substance abuse, including his divorce and the refusal of his wife to
allow him to see
his three younger children. Most likely this reflects the emotional
dysregulation that
occurswithaborderlinepersonalitydisorder. Individuals with
borderlinepersonality
disorder are less able to tolerate disappointments and disruption of
relationships.
R. at 676. The examiner concluded that the appellant's depressive symptoms
were likely "the result
of his difficulty regulating his emotions because of borderline
personality disorder and the many
unfortunate consequences of his behavior that have led to disrupted
relationships with his children
and ex-wife." R. at 676. The examiner opined that the "veteran's mental
health symptoms were not
caused or aggravated by his time in the United States Navy and did not
begin during his time in the
United States Navy." R. 676. In November 2005, VA denied the claim and the
appellant appealed.
R. at 510, 622-31.
In July 2006, a VA clinical psychologist stated that "[r]egarding [the
October 2005 opinion]
that [the appellant] has borderline personalitydisorder; [b]ipolar
disorder is certainlyprominent and
it is typical for male adults with bipolar disorder to present with
borderline personality traits with
initial manifestation in childhood and early adolescence." R. 401, 510.
Later that year, in an October 2006 VA mental health note, the appellant's
psychiatrist stated
that his assessment was "early onset bipolar disorder as a youth." R. at
201. The psychiatrist opined
that the appellant's psychiatric problems did not begin in service. R. at
201. He explained: "It is
clear that [the appellant] had mood disturbances and attentional
disturbances as a boy; however, the
stress of the United States Navy may have exacerbated them." R. 201.
InDecember2007,
theBoardissuedadecisiondenyingtheclaimfordisabilitycompensation
for bipolar disorder. R. at 76-84. In May 2009, this Court granted a joint
motion for remand that
directed the Board to reconsider and more adequately address the veteran's
hearing testimony as it
pertained to his continuity of symptomatology since service. R. at 42.
On October 1, 2009, the Board issued the decision on appeal. R. at 3-15.
The Board
explicitly found that the appellant's lay statements about continuity of
symptomatology were not
credible because they conflicted with other evidence of record. R. at 11.
The Board relied on the
October 2005 VA medical opinion that the appellant's mental health
problems were not caused or
aggravated by his military service and denied the claim. R. at 13.
II. ANALYSIS
The appellant states that "the thrust of [his] claim is that his pre-
existing condition of
borderline personality disorder was aggravated in service and developed
into bi-polar depression."
Appellant's Reply Brief (Br.) at 5. Establishing service connection
generally requires medical or,
in certain circumstances, lay evidence of (1) a current disability; (2) in-
service incurrence or
aggravation of a disease or injury; and (3) a nexus between the claimed in-
service disease or injury
and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.
Cir. 2009); Hickson v.
West, 12 Vet.App. 247, 253 (1999); 38 C.F.R. § 3.303 (2011).
A. Adequacy of October 2005 Medical Opinion
An adequate medical opinion must be "accurate and fully descriptive" and
it must be based
on an accurate factual premise and on a consideration of the veteran's
prior medical history and
examinations and must describe the disability in sufficient detail so that
the Board may conduct a
fullyinformed evaluation of the disability. 38 C.F.R. § 4.1 (2011); see
Ardison v. Brown, 6 Vet.App.
405, 407 (1994); see also Floyd v. Brown, 9 Vet.App. 88, 93 (1996). In
addition, the medical
opinion "must support its conclusions with an analysis that the Board can
consider and weigh against
contraryopinions." Stefl v. Nicholson, 21 Vet.App. 120, 124 (2007);
seeNieves-Rodriguez v. Peake,
22 Vet.App. 295, 304 (2008); see also Hicks v. Brown, 8 Vet.App. 417, 421 (
1995) (inadequate
medical evaluation frustrates judicial review). The Board may assign more
probative weight to any
medical opinion as long as it provides an adequate statement of reasons or
bases for that decision.
Owens v. Brown, 7 Vet.App. 429, 433 (1995).
Initially, the Court notes that the appellant argues that the medical
opinion was based on an
inaccurate factual premise solelybecause the examiner did not have access
to medical evidence that
postdatedtheexamination in question. Theappellantfailsto provideanysupport,
legalorotherwise,
for this novel and somewhat illogical proposition. Appellant's Br. at 9,
Appellant's Reply Br. at 4.
The Court's case law is clear that a medical opinion must be based on an
accurate factual premise,
but a medical examiner's failure to predict future information only
renders the opinion inadequate
if that future information actually changes the factual premise on which
the opinion is based. In this
case, the July 2006 opinion added to the record a theory that the
appellant's bipolar disorder may
have been misdiagnosed as borderline personality disorder. R. at 401. The
October 2006 opinion
added to the record a theory that the stress of military service may have
aggravated a preexisting
psychiatric condition. R. at 201. These opinions do not change the factual
premise of the October
2005 medical opinion because theyprovide additional theories, not
conflicting information. It is the
responsibility of the Board, not the medical examiner, to assess and
reconcile all the evidence of
record. Moore v. Nicholson, 21 Vet.App. 211, 218 (2007) (Board fulfilled
its role when it
interpreted the medical evidence of record and determined how a disability
translated into a specific
disability rating pursuant to the applicable diagnostic code), rev'd on
other grounds by Moore v.
Shinseki, 555 F.3d 1369 (Fed. Cir. 2009); cf. 38 C.F.R. § 4.2 (2011).
In this case, the Board
accepted the factual premise of the October 2005 opinion and weighed it
against other opinions
suggesting alternative theories. This was not error.
The appellant also argues that the October 2005 medical opinion is
inadequate because it is
a "general statement without supporting data and without a reasoned
medical explanation [and t]he
examiner failed to provide anyrationale." Appellant's Br. at 5-9. The
Court disagrees. The October
2005 examiner provided a lengthy and detailed medical report, followed by
a nexus opinion. R. at
668-77. She reviewed the claims folder and conducted psychological tests
and an interview with the
appellant. R. at 668. She provided a thorough report of his prior medical
history and a detailed
description of his current condition, mental status at the interview, and
the results of psychological
testing. R. at 668-75. She diagnosed "bipolar disorder, by history, in
partial remission" and
"borderline personality disorder." R. at 675. Finally, she opined that
neither the appellant's
borderline personality disorder nor his bipolar depressive symptoms began
during, were caused by,
or were aggravated by his military service. R. at 676. She also provided a
rationale for these
conclusions: the appellant's problems did not begin in service because
theystarted in childhood and
pre-existed his military service; and his symptoms during service were not
the result of his military
experiences but rather a response to the consequences of his own behavior,
such as being
incarcerated for the possession and sale of illegal drugs, for which he
received an early discharge.
R. at 676. Accordingly, the October 2005 medical opinion was not
inadequate.
B. Presumption of Soundness
The appellant argues that the Board misapplied the presumption of
soundness when it stated
that "the entry examination does not note [any psychiatric problems] and
thus the presumption of
soundness at entry is not rebutted." Appellant's Br. at 13-14. He argues
that "the [Board]'s failure
to correctly determine whether the veteran's presumption of soundness was
rebutted precluded a
correct adjudication of whether or not the veteran had a pre-existing
condition that was aggravated
in service." Appellant's Reply Br. at 5. The Court agrees.
Under the statutory presumption of soundness, e]ery veteran shall be taken
to have been in
sound condition when [inducted], except as to defects, infirmities, or
disorders noted at the time of
the [induction] examination, . . . or where clear and unmistakable
evidence demonstrates that the
injury or disease existed before acceptance and enrollment and was not
aggravated by such service.
38 U.S.C. § 1111. "[T]he correct standard for rebutting the presumption
of soundness under
section 1111 requires the government to show by clear and unmistakable
evidence that (1) the
veteran's disabilityexisted prior to service and (2) that the pre-existing
disability was not aggravated
during service." Wagner v. Principi, 370 F.3d 1089, 1097 (Fed. Cir. 2004).
The clear-and-
unmistakable-evidence standard is an "onerous" one, and requires that the
no-aggravation result be
"undebatable." Laposky v. Brown, 4 Vet.App. 331, 334 (1993) (citing Akins
v. Derwinski,
1 Vet.App. 228, 232 (1991)); see Vanerson v. West, 12 Vet.App. 254, 258,
261 (1999)). The
determination of whether the record contained clear and unmistakable
evidence of sufficient weight
to rebut this presumptions of soundness and aggravation is subject to de
novo review by this Court.
Cotant v. Principi, 17 Vet.App. 116, 130 (2003).
In this case, the Board stated that "[a]lthough some of [the] recent VA
and private treatment
records appear to support [the appellant's] claim of psychiatric
disability existing prior to service,
the entry examination does not note same [sic], and thus the presumption
of soundness at entry is
not rebutted." R. at 12. It is true that the appellant's entryexamination
does not note any psychiatric
problems; however, all three medical opinions of record expressly connect
the appellant's
psychiatric problems to his childhood. R. at 201, 401, 676. In fact, the
October 2005 negative nexus
opinion on which the Board relied expressly states that the appellant's
psychiatric problems began
in childhood as a rationale for her opinion that the problems did not
begin in service. R. at 676. The
Board cannot have it both ways.
The Board totally failed to address the medical opinion evidence about the
possibility of a
pre-existing condition when it made its conclusory statement about the
presumption of soundness.
The Board's failure to adequately address the presumption of soundness
precluded a correct
adjudication of whether or not the appellant had a pre-existing condition
that was aggravated in
service. Accordingly, the Court will remand the matter so the Board may
conduct an analysis of this
issue in the first instance.
C. Lay Statements
The appellant argues the Board erred when it disregarded his laystatements
about continuity
of symptomatologyon the basis that theywere not credible. Appellant's Br.
at 9-12, citing 38 C.F.R.
§ 3.303(b) (service connection may be established by showing continuity
of symptomatology); see
Davidson, 581 F.3d at 1313; Jandreau v. Nicholson, 492 F.3d 1372, 1377 (
Fed. Cir. 2007) (whether
lay evidence is competent and sufficient in a particular case is a factual
issue to be addressed by the
Board); Charles v. Principi, 16 Vet.App. 370, 374 (2002) (appellant is
competent to testify where
symptoms are capable of lay observation, such as ringing in the ears);
Layno v. Brown, 6 Vet.App.
465, 469 (1994) (lay testimony is competent to establish the presence of
an observable
symptomatologyand "mayprovide sufficient support for a claim of service
connection"). Under the
continuity of symptomatologyprovision, "symptoms, not treatment, are the
essence of anyevidence
of continuity of symptomatology." Savage v. Gober, 10 Vet.App. 488, 496 (
1997).
The Board is required to assess the credibility and probative weight of
all relevant evidence.
McClain v. Nicholson, 21 Vet.App. 319, 325 (2007). In doing so, the Board
may consider factors
such as facial plausibility, bias, self interest, and consistency with
other evidence of record. Caluza
v. Brown, 7 Vet.App. 498, 511 (1995), aff'd per curiam 78 F.3d 604 (Fed.
Cir. 1996( (table); see
Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006); Jandreau, 492
F.3d at 1376 ("[T]he
Board retains discretion to make credibility determinations and otherwise
weigh the evidence
submitted[.]"). Personal interest may affect the credibility of the
evidence, but the Board may not
disregard testimony solely because the claimant stands to gain monetary
benefits. Cartright v.
Derwinski, 2 Vet.App. 24, 25 (1991).
Nor may the Board reject a veteran's lay testimony solely because it is
not corroborated by
contemporaneous medical records. Buchanan, 451 F.3d at 1337 (lack of
contemporaneous medical
records does not, in and of itself, render lay evidence not credible); see
Previous DocumentKahanaNext Hit v. Shinseki,
24 Vet.App. 428, 438 (2011) (Lance, J., concurring) (discussing the
distinction between cases in
which there is a complete absence of any evidence to corroborate or
contradict the testimony, as
opposed to cases in which there is evidence that is relevant either
because it speaks directly to the
issue or allows a reasonable inference to be drawn by the Board as
factfinder); cf. Maxson v. Gober,
230 F.3d 1330, 1333 (Fed. Cir. 2000) (Board mayconsider "evidence of a
prolonged period without
medical complaint, along with other factors" when considering aggravation
of a pre-existing
condition). However, the Board may not consider a lack of notation of a
medical condition or
symptoms as evidence that the condition or symptoms did not exist when it
is normal to expect that
such notation would be recorded. See Buczynski v. Shinseki, 24 Vet.App.
221, 226-27 (2011). "The
Court reviews factual findings" such as credibility "under the 'clearly
erroneous' standard such that
it will not disturb a Board finding unless, based on the record as a whole,
the Court is convinced that
the finding is incorrect." See Hood v. Shinseki, 23 Vet.App. 295, 299 (
2009).
In this case, the Board discounted the appellant's lay statements that his
depression started
at age 20. The Board stated that "[w]hen viewed in relation to the other
evidence of record, the
Board finds that the [appellant]'s account of his post-servicecontinuityof
symptomatologyis simply
not credible." R. at 11. The Board seems to have based this conclusion on
the premise that the
appellant's statements conflicted with other evidence of record. R. at 11-
12. For example, the Board
concluded that the appellant's lay statements about continuous symptoms
conflicted with his March
2004 statement that he had not received any mental health treatment in the
past. R. at 11. This
analysis is inaccurate. The Board erred when it stated that the appellant "
conceded he had had no
past mental health problems or treatment." R. at 11. The appellant himself
reported that he had
never received treatment for his depression, but he did not state that he
had never had mental health
problems. R. at 650. The Board again erred when it required corroborating
evidence of treatment,
rather than symptoms. See Savage, supra. Next, given that the appellant
expressly stated he had
never been treated for his depression, the Board erred when it considered
the lack of evidence of
treatment as evidence that the appellant did not experience symptoms
during that time. See
Buczynski and Previous HitKahanaNext Document, both supra.
Based on this analysis, the Court cannot conclude that the Board's
credibilityfinding is based
on a permissible analysis. On remand, the Board must consider and more
adequately address this
issue and also provide an adequate statement of the reasons or bases for
its findings and conclusions.
If the Board changes its credibility determination, it will need to re-
assess the other evidence, such
as the August 2004 VA psychiatric history, that was based on the
appellant's self-reported history
of symptoms.
On remand, the appellant is free to submit additional evidence and
argument, including the
arguments raised in his briefs to this Court, in accordance with
Kutscherousky v. West, 12 Vet.App.
369, 372-73 (1999) (per curiam order), and the Board must consider any
such evidence or argument
submitted. See Kay v. Principi, 16 Vet.App. 529, 534 (2002).
The Board shall proceed expeditiously, in accordance with 38 U.S.C. §§ 5109B, 7112 (requiring
Secretary to provide for "expeditious treatment" of claims remanded by Board or Court).
III. CONCLUSION
After consideration of the appellant's and the Secretary's briefs, and a
review of the record, the Board's October 1, 2009, decision is VACATED and the matter is
REMANDED to the Board
for further proceedings consistent with this decision.
DATED: September 23, 2011
Copies to:
Virginia Girard-Brady, Esq.
VA General Counsel (027)
Single Judge Application, Benefits Arise with Manifestation of Condition, DeLisio v. Shinseki, (Aug. 24, 2011)
Excerpt from decision below:
"The question the examiner was directed to answer was whether that condition might have manifested itself earlier than that. Here, the examiner concludes that, because Mr. Brady's medical records do not show "two consecutive readings of 126 on two consecutive days or a glucose tolerance indicative of diabetes mellitus" until 2000, he did not have the condition prior to that date. It goes without saying, however, that if Mr. Brady was not specifically tested for diabetes until 2000, he could not have been diagnosed with that condition until 2000. The examiner appeared to acknowledge that Mr. Brady experienced some diabetes symptomatology much earlier than 2000, yet did not consider whether those symptoms were evidence of diabetes, even in the absence of any diagnostic test for that condition. As the Board well knows, "entitlement to benefits for a disability or disease does not arise with a medical diagnosis of the condition, but with the manifestation of the condition and the filing of a claim for benefits for the condition." DeLisio v. Shinseki, ___ Vet. App. ___, ___ (Aug. 24, 2011), 2011 WL 3691857 at *9 (citing 38 U.S.C. § 5110(a) and McGrath v. Gober, 14 Vet.App. 28, 35 (2000)). Because the VA medical opinion did not address the relevant issue to be decided by the Board, the opinion is inadequate and the Board erred in relying on it. See Stegall v. West, 11 Vet.App. 268, 271 (1998)."
======================
----------------------------------
Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 10-0157
RAYMOND O. BRADY, 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: Raymond O. Brady appeals through counsel a September 21,
2009, Board
of Veterans' Appeals (Board) decision that denied entitlement to VA
benefits for diabetes mellitus.1
Mr. Brady's Notice of Appeal was timely, and the Court has jurisdiction to
review the Board decision
pursuant to 38 U.S.C. § 7252(a). Neither partyrequested oral argument or
identified issues believed
to require a precedential decision of the Court. Because the Board relied
on an inadequate VA
medical examination report, the Court will vacate the September 2009 Board
decision and remand
the matter for further development and readjudication consistent with this
decision.
I. FACTS
Mr. Brady served on active duty in the U.S. Air Force from July 1976 to
July 1996. The
record of proceedings does not contain service medical records.
The Board also denied entitlement to disability benefits for bilateral
hearing loss. In his brief, Mr. Brady
makes no arguments related to the Board's decision on that claim, and the
Court therefore considers any appeal as to that
claim abandoned. See Grivois v. Brown, 6 Vet.App. 136, 138 (1994) (holding
that issues or claims not argued on appeal
are considered abandoned).
1
InDecember2002,Mr.Bradyfiled claimsfordisabilitybenefits forbilateral
hearingloss and
diabetes mellitus. In support of his claim for benefits for diabetes, he
submitted a statement from
Dr. Robert Abrams, a private physician, who stated:
Mr. Brady was diagnosed with type 2 diabetes mellitus in January of 2000.
At that
time he had been seen on numerous occasions for symptoms consistent with
type 2
diabetes mellitus including urinaryfrequency, fatigue and drymouth. His
symptoms
date back as far as August 1, 1996. It is my opinion that Mr. Brady indeed
suffered
from early type 2 diabetes prior to August 1, 1996.
Record (R.) at 145.
In March 2003, a VA regional office denied Mr. Brady's claim for benefits
for diabetes
because there was no evidence that the condition was incurred in or caused
by military service. Mr.
Brady filed a Notice of Disagreement with that decision. He requested that
VA consider medical
records from the "U.S. Naval Station Clinic in Cutler," Maine (Cutler
Naval Station), at which he
stated he had received treatment both during and after service, and which
he stated would show
treatment by a physician who told him he had "all the symptoms of"
diabetes. R. at 1361. He also
advised VA that he planned to submit new medical evidence in the form of
May 1996 glucose test
results from a private laboratory that showed glucose levels of 65.
In January 2004, Mr. Brady submitted the May 1996 laboratory results and
requested VA's
assistance in obtaining the medical records from Cutler Naval Station. He
stated, "I have been
advised by the U.S. Naval Air Station at New Brunswick (Naval Air Station),
Maine[,] that the
medicalrecords maintainedatCutlerNaval Station wereforwardedto
arecordsdepositorywhenthat
base was closed." R. at 1351.
In August 2004, the regional office issued a Statement of the Case
continuing to deny Mr.
Brady's claims. The Statement of the Case makes no mention of Mr. Brady's
request for VA to
obtain records from Cutler Naval Station. In October 2004, Mr. Brady
appealed his claims to the
Board and reiterated his request that VA obtain and review those records.
In April 2006, in response to a Veterans Claims Assistance Act notice, Mr.
Brady again
requested VA assistance in obtaining records from Cutler Naval Station. He
advised VA that "the
last known location" of those records was the Naval Air Station in
Brunswick, Maine, but noted that
the records "may have been sent" to a record depository. R. at 1313.
2
At an August 2006 Board hearing, Mr. Brady testified that Dr. Abrams, who
was a former
military medical officer and had treated him at Cutler Naval Station,
reviewed his records and told
him that there was "a good possibility" that his diabetes originated as
early as 1986. R. at 1291.
In October 2006, the Board remanded Mr. Brady's claim to the Appeals
Management Center
to obtain his treatment records since his discharge from service,
including those from Cutler Naval
Station, and to obtain a VA medical examination "to ascertain whether or
not diabetes mellitus was
first manifested in service." R. at 1210.
In March 2007, Mr. Brady submitted medical records in support of his claim,
including the
April 1996 private glucose test that showed a glucose level of 65; a March
1997 private laboratory
report that showed a glucose level of 128; and an April 1997 private
laboratory report that showed
a glucose level of 117 and abnormal lipid levels, which the report noted
could be caused bydiabetes,
among many other conditions.
The record reveals three attempts by VA to obtain Mr. Brady's medical
records from Cutler
Naval Station. To the first, in November 2006 ("Please provide veteran's
treatment records since
discharged in July1996 from . . . Cutler Naval Air Station."), the
National Personnel Records Center
replied that it needed more information to process the request,
particularly the time period of the
claimed treatment at the facility. R. at 912. VA sent a second request in
July 2007 that simply
stated, "Please provide veteran's treatment records since discharged in
July 1996 from . . . Cutler Air
Station," and the National Personnel Records Center again replied that
more specific information
was required. R. at 882. In August 2008, VA requested inpatient clinical
records for diabetes
between July 1, 1996, and August 15, 2008, from Cutler Naval Station and
MacDill Air Force Base.
The National Personnel Records Center responded only that records from
MacDill Air Force Base
from 1996 had been mailed.
On August 15, 2008, the Appeals Management Center sent Mr. Brady a letter
advising him
that VA had been "unable to obtain every piece of evidence you identified
to support your claim."
R. at 865. The letter further stated:
We are requesting service medical records from the service department from
July 1,
1996[,] to the present at MacDill Air Force Base and Cutler Naval Air
Station. These
records will help us determine how your claimed disabilities are connected
to your
3
military service. You do not need to contact the service department
yourself. If you
have military medical records already in your possession, please submit
them.
Id.
On August 29, 2008, after receiving the letter from the Appeals Management
Center, Mr.
Brady responded:
I contacted the National Personnel Records Center . . . regarding my
medical records
form[er]llylocatedat Cutler Naval Station, Cutler, Maine. Cutler closed
due to [base
closure and reassignment] . . . action sometime around circa 2000. The [
National
Personnel Records Center] responded to my request on 12/25/2002 and
advised me
they were unable to locate the records. Unfortunately, all Cutler Naval
medical
records should be considered permanently lost. Please go forward with a
decision
without these records.
R. at 283.
In July 2009, Mr. Brady underwent a VA medical examination. The examiner
noted that he
"thoroughly"reviewedMr.Brady's claimsfile,includingDr.Thomas's
statementregardingthelikely
onset of diabetes at least as early as August 1996. R. at 59. The VA
examiner opined that diabetes
was not shown until January 2000.
In September 2009, the Board issued the decision on appeal. Relying
heavily on the July
2009 VA opinion, the Board found no evidence of diabetes mellitus
duringserviceor within the one-
year presumptive period thereafter. The Board discounted Dr. Thomas's
favorable opinion because
he did not review Mr. Brady's entire claims file and because he did not
provide "medical rational[e]"
for his conclusion that Mr. Brady's diabetes had its onset at least as
early as August 1996. R. at 10.
II. ANALYSIS
A. Diabetes Mellitus
1. Duty To Assist
Mr. Brady argues that the Board's determination that VA satisfied its duty
to assist him is
clearly erroneous because VA did not obtain his medical records from
Cutler Naval Station, despite
his numerous requests. This argument is unavailing.
The Court is troubled that counsel for Mr. Brady focuses exclusively on
VA's purported
failure to obtain the records and subsequent failure to notify Mr. Brady
of their unavailability in
4
accordance with 38 U.S.C. § 5103A(b)(2) and 38 C.F.R. § 3.159(c), and
whollyfails, in the principal
brief, to acknowledge Mr. Brady's August 2008 express waiver of
consideration of those records.
Although counsel is to be expected to present the facts of a case in the
light most favorable to her
client, she is prohibited from actively misleading the Court, and the
omission of this crucial fact
comes perilously close to doing so. See MODEL RULES OF PROF'LCONDUCT 3.3(a
) (candor toward
the tribunal) (2007). Counsel only discusses Mr. Brady's August 2008
statement in her reply brief
in an attempt to refute the Secretary's argument that Mr. Brady waived
consideration of the Cutler
Naval Station records. At no time does counsel acknowledge her failure to
discuss this evidence in
her principal brief or explain why she failed to do so. Accordingly, the
Court will not consider Mr.
Brady's argument on this point. See Carbino v. West, 168 F.3d 32, 34 (Fed.
Cir. 1999) (noting that
arguments not raised in opening brief are deemed waived).
After reviewing the record, the Court concludes that, although the Board
erred in finding that
VA satisfied its dutyto assist because VA did not make a formal finding of
unavailability and notify
Mr. Brady, the error is harmless in light of Mr. Brady's demonstrated
understanding from the
National Personnel Records Center that those records were unavailable. See
Conway v. Principi,
353 F.3d 1369, 1374 (Fed. Cir. 2004); see also 38 U.S.C. § 7261(b)(2) (
requiring the Court to "take
due account of the rule of prejudicial error").
2. Adequacy of July 2009 VA Opinion
Mr. Brady next argues that the Board relied on an inadequate medical
opinion to deny his
claim. Specifically, he contends that the July 2009 VA examiner failed to
answer the question he
was asked and that the rationale provided is circular. The Court agrees.
In its October 2006 remand decision, the Board directed the Appeals
Management Center to
obtain a medical opinion that considered "whether or not diabetes mellitus
was first manifested in
service." R. at 1210. The resulting examination concluded only that Mr.
Brady had not been
diagnosed with diabetes until 2000. Although the Secretary and the Board
assert that the VA
examiner provided sufficient rationale for his conclusion, a review of the
opinion reveals only a deft
bit of circular logic. The examiner stated:
All indications from [Mr. Brady's] claims file indicate that he was
diagnosed with
diabetes mellitus for the first time in January[] 2000. Reviewing the
laboratory
results dating back to 1996 and 1998 failed to reveal anylaboratoryresults
indicating
5
the presence of diabetes mellitus. Therefore, my opinion is[,] regardless
of the
symptoms[,] that if the laboratory testing failed to reveal that he had
two consecutive
readings of 126 on two consecutive days or a glucose tolerance indicative
of diabetes
mellitus, the diabetes mellitus did not exist until January[] 200[0].
Therefore, my
opinion is that there is no evidence of diabetes mellitus prior to January
[] 2000.
R. at 59 (emphasis added). Mr. Bradydoes not dispute that he was not
diagnosed with diabetes until
January 2000. The question the examiner was directed to answer was whether
that condition might
have manifested itself earlier than that.
Here, the examiner concludes that, because Mr. Brady's medical records do
not show "two
consecutive readings of 126 on two consecutive days or a glucose tolerance
indicative of diabetes
mellitus" until 2000, he did not have the condition prior to that date. It
goes without saying,
however, that if Mr. Bradywas not specificallytested for diabetes until
2000, he could not have been
diagnosed with that condition until 2000. The examiner appeared to
acknowledge that Mr. Brady
experienced some diabetes symptomatology much earlier than 2000, yet did
not consider whether
those symptoms were evidence of diabetes, even in the absence of any
diagnostic test for that
condition. As the Board well knows, "entitlement to benefits for a
disabilityor disease does not arise
with a medical diagnosis of the condition, but with the manifestation of
the condition and the filing
of a claim for benefits for the condition." Previous DocumentDeLisio v. Shinseki, ___ Vet.
App. ___, ___ (Aug. 24,
2011), 2011 WL 3691857 at *9 (citing 38 U.S.C. § 5110(a) and McGrath v.
Gober, 14 Vet.App. 28,
35 (2000)). Because the VA medical opinion did not address the relevant
issue to be decided by the
Board, the opinion is inadequate and the Board erred in relying on it. See
Stegall v. West,
11 Vet.App. 268, 271 (1998). ("[A] remand by this Court or the Board
confers on the . . . claimant,
as a matter of law, the right to compliance with the remand orders.").
In light of this error, the Court will vacate the Board decision and
remand this claim for the
Board to obtain a new medical opinion that considers the evidence of
record and determines whether
the symptoms noted in Mr. Brady's medical history during or since service
are evidence of an onset
of diabetes earlier than 2000. The examiner must expresslydiscuss Dr.
Thomas's favorable opinion,
as well as the private laboratory glucose and lipid test results, and must
support any conclusion
reached with sufficient rationale. Mr. Brady is free to submit additional
evidence and argument on
6
this claim 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).
3. Reasons or Bases
Mr. Bradyalso contends that the Board provided inadequate reasons or bases
for discounting
Dr. Thomas's favorable opinion that his diabetes began at least as early
as August 1996, which is
within the one-year presumptive period to establish entitlement to
benefits for diabetes. He also
argues that the Board failed to account for other probative evidence of
manifestations of diabetes in
service.
Because the Court is remanding Mr. Brady's claim for further development
and
readjudication, the Board will necessarily provide a new statement of
reasons or bases for any
decision regarding entitlement to benefits for diabetes. Accordingly, the
Court need not address Mr.
Brady's reasons or bases arguments at this time. See Best v. Principi, 15
Vet.App. 18, 20 (2001) (per
curiam order) ("A narrow decision preserves for the appellant an
opportunity to argue those claimed
errors before the Board at the readjudication, and, of course, before this
Court in an appeal, should
the Board rule against him."). The Court reminds the Board, however, 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). Additionally, the mere fact that a physician did not
review a claimant's claims file
does not render the physician's opinion not probative. Nieves–Rodriguez
v. Peake, 22 Vet.App. 295,
303 (2008) (explaining that "the claims file is not a magical or
talismanic set of documents, but
rather a tool to assist VA examiners to become familiar with the facts
necessary to form an expert
opinion," and holding that "claims file review, as it pertains to
obtaining an overview of the
claimant's medical history, is not a requirement for [ ] medical opinions").
B. Reasonably Raised or "Inferred" Claim for Benefits for Tinnitus
On appeal, Mr. Bradyargues that the Board failed to adjudicate a
reasonablyraised claim for
benefits for tinnitus. In the alternative, he argues that the Board failed
to "infer" a claim for benefits
for that condition. These arguments are unpersuasive.
As an initial matter, the Court notes that, while VA does recognize
inferred issues, there is
no such thing as an inferred claim. See Akles v. Derwinski, 1 Vet.App. 118,
121 (1991) (recognizing
entitlement to special monthly compensation as an inferred issue where the
veteran had filed a claim
for an increased disability rating).
7
With respect to whether a claim for benefits for tinnitus was reasonably
raised, Mr. Brady's
reliance on Clemons v. Shinseki, 23 Vet.App. 1 (2009), is misplaced. In
that case, a self-represented
appellant filed an initial claim for benefits for post-traumatic stress
disorder that was denied based
on a lack of a current diagnosis of that condition. The Board, however,
failed to consider whether
the claimant was entitled to benefits for schizoid personalitydisorder, a
distinct mental disorder with
which he had been previouslydiagnosed. The Court, citing the well-
established rulethat a layperson
is generally not competent to provide a medical diagnosis, explained that
VA "should construe a
claim based on the reasonable expectations of the non-expert, self-
represented claimant and the
evidence developed in processing that claim." Id. at 5.
Here, however, Mr. Brady was not seeking benefits for symptoms that he
thought were
caused by hearing loss that turned out to be caused by tinnitus; he was
seeking benefits for hearing
loss. Despite his protestations that his claim for hearing loss is
necessarily related to his diagnosis of tinnitus, the Court has made clear that the conditions are distinct.
Kelly v. Brown, 7 Vet.App. 471, 473 (1995) (recognizing tinnitus and hearing loss as distinct
conditions); compare 38 C.F.R. § 4.85 (2011) (Evaluation of hearing impairment), with 38 C.F.R. § 4.87,
Diagnostic Code 6260 (2011) (Tinnitus, recurrent). Moreover, Mr. Brady's claim was denied
because his diagnosed bilateral hearing loss does not rise to the level of a disability for VA
purposes, not because the Board improperly narrowed the scope of his claim. That Mr. Brady suffers from
tinnitus is irrelevant to the question of whether his bilateral hearing loss is related to service.
Further, the mere existence in the medical records of a diagnosis for a
condition for which a claimant is not service connected is not sufficient to raise a new claim
for benefits for that condition. Criswell v. Nicholson, 20 Vet.App. 501, 504 (2006) ("The mere
existence of medical records generally cannot be construed as an informal claim; rather, there
must be some intent by the claimant to apply for a benefit."). Although Mr. Brady argues that his
cover letter to the submission of the December 2006 audiological examination is sufficient to put VA on
notice that he was seeking benefits for tinnitus in addition to benefits for hearing loss, the Court
disagrees. That document simply advises VA that the attached document is a hearing test dated
December 2006. Nowhere is there any intent to seek benefits for tinnitus, which, again, is a
condition distinct from hearing loss,
the claim Mr. Brady was appealing at the time. In short, Mr. Brady fails
to identify any evidence in
8
the record indicating that he sought VA benefits for his tinnitus, or
that he, or anyone on his behalf, submitted a written document expressing his intent to seek benefits
for that condition. See Brokowski v. Shinseki, 23 Vet.App. 79, 85 (2009) (citing Brannon v. West, 12 Vet.App.
32, 35 (1998) (to file a claim, a "claimant must submit a written document identifying the
benefit and expressing intent to seek it"); see also Criswell, 20 Vet.App. at 504. In the absence of his
having submitted a claim for that condition, it was not error for the Board not to address it. See
Robinson v. Peake, 21 Vet.App. 545, 53 (2008) (holding that the Board is required to consider
all issues raised by the claimant or reasonably raised by the evidence of record).
In light of this discussion, the Court concludes that it was not error for
the Board to not consider a claim for benefits for tinnitus. Mr. Brady remains free to file
a claim for benefits for that condition should he so desire.
C. Final Matter
The Court notes that the parties' briefs repeatedly refer to a "claim for service connection." As the Court explained in Hillyard v. Shinseki, the use of this term is inexact and therefore is—although prevalent in the Court's cases, as well as those of the United States Court of Appeals for the Federal Circuit—disfavored. 24 Vet.App. 343, 355 (2011). The Court urges the parties to practice precision in language in future briefs.
III. CONCLUSION
Upon consideration of the foregoing, the September 21, 2009, Board
decision is VACATED
and the matter is REMANDED for further development and readjudication
consistent with this
decision.
DATED: October 11, 2011
Copies to:
Jill Mitchell, Esq.
VA General Counsel (027)
9
Single Judge Application, Successive versus Non-Successive Rating Criteria, Tatum, 23 Vet.App. at 156; Camacho, 21 Vet.App. at 366;
Excerpts from decision below:
“The rating criteria under DC 7913 are successive; that is, "each higher disability rating includes the criteria of each lower disability rating, such that if a component was not met at any one level, the veteran could only be rated at the level that did not require the missing component." Tatum, 23 Vet.App. at 156. Thus, in Camacho, the Court rejected the appellant's argument that he could be rated 40% disabled by applying 38 C.F.R. § 4.21 (2006), where he unquestionably only satisfied two of the three requirements for a 40% disability rating. 21 Vet.App. at 366. The Court held that the "conjunctive structure of the language used in specifying the criteria for a 40% disability rating under DC 7913" requires that all criteria must be met to establish entitlement to a 40% disability rating. Id.; see also Tatum, 23 Vet.App. at 156 (noting that § 4.7 was not for application under the facts in Camacho because to award "a 40% disability rating where only two of the three criteria were met, would eviscerate the need for a 20% rating since the symptoms established for either rating might be the same").”
==============
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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 09-4580
FEDERICO ADAME, 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, Federico Adame, through counsel, appeals a November3, 2009, Board of Veterans' Appeals (Board) decision in which the Board denied entitlement to (1)an initial disability rating in excess of 20% for diabetes mellitus (DM); (2) an initial disability ratingfor peripheral neuropathy of the right lower extremity in excess of 10% prior to April 9, 2009, andin excess of 20% from April 9, 2009; (3) an initial disability rating for peripheral neuropathy of theleft lower extremity in excess of 10% prior to April 9, 2009, and in excess of 20% from April 9,2009; (4) an initial compensable disability rating for peripheral vascular disease (PVD) of the rightlower extremity; and (5) an initial compensable disabilityrating for PVD of the left lower extremity.Record of Proceedings (R.) at 3-36. The Board also denied entitlement to an initial compensabledisability rating for status post right 4th metacarpal fracture; however, because the appellant raisesno allegation of error with regard to this claim, the Court will consider the matter to have beenabandoned on appeal. See Ford v. Gober, 10 Vet.App. 531, 535 (1997) (holding claims not arguedon appeal are deemed abandoned); Bucklinger v. Brown, 5 Vet.App. 435 (1993). Finally, the Boardremanded for further development the appellant's claims of entitlement to (1) disabilitycompensation benefits for a right knee and low back disability; (2) an initial disability rating inexcess of 10% for coronary artery disease; (3) an initial disability rating in excess of 10% for statuspost arteritic ischemic optic neuropathy of the right eye from September 5, 2002, to September 26,2005, and in excess of 30% from September 27, 2005; and (4) a total disability rating forcompensation purposesbased on individual unemployability. Therefore, those claims arenot beforethe Court. See Hampton v. Gober, 10 Vet.App. 481, 483 (1997). Both parties filed briefs and theappellant filed a reply brief. This appeal is timely, and the Court has jurisdiction to review theBoard's decision pursuant to 38 U.S.C. §§ 7252(a) and 7266(a). Single-judge disposition isappropriate. See Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). For the following reasons, theBoard's decision will be affirmed in part and vacated in part, and the vacated matters will beremanded for further proceedings consistent with this decision.I. BACKGROUNDThe appellant served on active dutyin the U.S. Marine Corps from June 24, 1966, to October11, 1969, including service in Vietnam. R. at 843. In September 2003, he filed a claim forcompensation for DM. R. at 693-702. The appellant underwent a VA compensation and pensionexamination for DM in November 2003, which diagnosed insulin dependent DM with coronaryartery disease, early PVD, and profound peripheral neuropathy. R. at 638-40. The VA examinernoted that the onset of diabetes was 16 years prior, that the appellant had been hospitalized two tothree times for ketoacidosis, was on a restricted diet, and had a hypoglycemic reaction. R. at 638.The examiner recorded the appellant's report that he "walks six to eight miles per day"and that his"feet are painful and [] numb." Id. Examination of his feet revealed that "[h]is peripheral pulses[were] 1+ in the right foot[,] but the posterior tibial could not be palpated in the left foot. Dorsalispedis in the left foot [was] trace." R. at 639. Neurological examination of the feet revealed "lossof sensation and two point discrimination. The sensation loss [was] pinprick and touch mid foot andbeyond. He ha[d] no vibratory sensation in the toes." Id. VA treatment records indicate that theappellant was treated for cellulitis in December 2003 and January 2004. R. at 621, 624.In a July 19, 2004, rating decision, the regional office (RO) granted entitlement to serviceconnection and awardeda20%disabilityratingforDM,effectiveSeptember20,2002; separate 10%disabilityratings for peripheral neuropathyof the right and left lower extremity, effective November24, 2003; and separate noncompensable evaluations for PVD of the right and left lower extremity,2effective November 24, 2003. R. at 96-608. The appellant disagreed with the assigned disabilityratings and perfected an appeal to the Board. R. at 466-67, 469-506, 592-93.The appellant was examined in February 2005 for complaints of numbness in both feet upto the ankles. R. at 514-15. The examination revealed full strength, decreased sensation in bilateraltoes to mid-ankle, and absent right ankle jerk. R. at 514. The examiner noted that "[a]bnormalelectrodiagnostic studies provide evidence for axonal loss affecting both motor and sensory nervesof theright lowerextremity"andopinedthat"[t]he above findings areconsistent with a sensorimotorperipheral neuropathy." R. at 515.At a May 2007 Board hearing, the appellant testified that he could walk about 20 to 30 feetto his mailbox, but that his feet "kill me." R. at 402. He also stated that he could not stay on his feetfor longer than 20 minutes and that he needed to regulate his activities because of his DM andperipheral neuropathy. R. at 402-03. He stated that he could do "almost nothing" without worryingthat he might hurt himself, and that he could not drive himself to his physician's office. R. at 403-04.VA treatment records indicate that the appellant began taking an oral hypoglycemic agent inDecember 2007. R. at 365.InJanuary2008,theBoardremandedtheappellant's claimsforadditionaldevelopment(R. at383-92),andonApril7,2009,theappellantunderwentanadditionalVAexamination (R.at104-15).The examiner noted that the appellant did not require insulin, that he was taking the oralhypoglycemic agent Glipizide on a daily basis, and that he was on a restricted diet. R. at 104. Theexaminer also noted that the appellant had not been hospitalized in the last year for ketoacidosis andwas not having any hypoglycemia. Id. The examiner reported that the appellant's main symptomsrelate to his peripheral neuropathy, which make him unable to walk very much because of burning,numbness, tingling, and loss of sensation in his feet. R. at 105. With regard to PVD, the examineralso reported that the appellant suffers from calf claudication if he walks 60 to 70 yards, and that heneeds to rest for five or ten minutes before he can walk again. R. at 105. The examiner also notedthat the appellant did not have any paralysis, history of muscle atrophy, or dystrophic nails, and thathe had good movement and muscle tone and hair loss over the lower extremities. R. at 105, 107.Examination of the lower extremities revealed that "[p]osterior tibial and dorsalis pedis pulses in theleft foot are each 2+ and in the right foot 1+. There is decreased hair loss over the legs. . . .3Neurological [] examination of the lower extremities [revealed that] his left knee jerk is 1+, right is2+. Ankle jerks are 1+ bilaterally." R. at 106. The examiner opined that "[h]is peripheralneuropathy would be considered moderate." R. at 107. Finally, a May 5, 2009, lower extremityarterial examination indicates that the appellant's ankle/brachial index was 1.16 on the right and 1.18on the left, which were reported to be within normal limits bilaterally. R. at 114.In August 2009, the RO issued a rating decision, which increased the appellant's disabilityratings for peripheral neuropathy of the right and left lower extremity to 20% for each extremity,effective April 7, 2009. R. at 51-61. The disability ratings for his DM and PVD remainedunchanged. R. at 60-61. On November 3, 2009, the Board issued the decision here on appeal thatdenied entitlement to (1) a disability rating in excess of 20% for DM; (2) separate disability ratingsfor peripheral neuropathy of the right and left lower extremities in excess of 10% prior to April 9,2009, and in excess of 20% from April 9, 2009; and (3) an initial compensable disability rating forPVD of the right and left lower extremities. R. at 3-36. This appeal followed.II. ANALYSISThe Board's assignment of a disability rating is a finding of fact that the Court reviews underthe "clearly erroneous" standard of review. See Johnston v. Brown, 10 Vet.App. 80, 84 (1997). Afinding of material fact is clearly erroneous when the Court, after reviewing the entire evidence, "isleft 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 Secretary's regulations provide that "[w]here there is a question as to which of two evaluationsshall be applied, the higher evaluation will be assigned if the disability picture more nearlyapproximates the criteria required for that rating. Otherwise, the lower rating will be assigned."38 C.F.R. § 4.7 (2011). In addition, "it is not expected . . . that all cases will show all the findingsspecified in the [applicable DC]." 38 C.F.R. § 4.21 (2011).In rendering a decision, the Board is required to consider all evidence of record and toconsider, and discuss in its decision, all "potentially applicable" provisions of law and regulation.Schafrath v. Derwinski, 1 Vet.App. 589, 592-93 (1991); see 38 U.S.C. § 7104(a). The Board mustprovide a statement of the reasons or bases for its determination, adequate to enable an appellant to4understand the precise basis for the Board's decision as well as to facilitate review in this Court.38 U.S.C. § 7104(d)(1); see 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 ofthe evidence, account for the evidence it finds persuasive or unpersuasive, and provide the reasonsfor 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 remand is the appropriateremedy "where the Board has incorrectly applied the law, failed to provide an adequate statementof reasons or bases for its determinations, or where the record is otherwise inadequate." Tucker v.West, 11 Vet.App. 369, 374 (1998).A. Disability Rating for DMThe appellant is rated 20% disabled under Diagnostic Code (DC) 7913 for DM"[r]equiringinsulin and restricted diet, or; oral hypoglycemic agent and restricted diet." 38 C.F.R. § 4.119, DC7913 (2011). A 40% disabilityrating is assigned for DM, which "[r]equire[s] insulin, restricted diet,and regulation of activities." Id.In this case, the Board concluded that a 40% disability rating under DC 7913 was notwarranted because the evidence failed to established that the appellant's activities are regulated asa result of his DM. R. at 13-14. The appellant argues that the Board erred when in failed to considerthat, in addition to fulfilling the requirements for a 20% disabilityrating, he also suffers from (1) oneof the criteria for a 60% disability rating under DC 7913, i.e., he experiences noncompensablecomplications, namely cellulitis and PVD, and (2) one of the criteria for a 100% disability rating,i.e., complications that are compensable when evaluated separately, namelycoronaryarterydisease,peripheral neuropathy of the lower extremities, and post arteritic ischemic optic neuropathy.Appellant's Br. at 10-11. The appellant attempts to distinguish his case from Camacho v. Nicholson,21 Vet.App. 360 (2007), and cites the Court's decision in Tatum v. Shinseki, 23 Vet.App. 152 (2009)to support his contention that the matter be remanded for the Board to consider and apply 38 C.F.R.§ 4.7. Id. at 11. The Secretary refutes his contentions and argues that the Board's decision shouldbe affirmed because the Court's decisions in Camacho and Tatum, both supra, support the Board'sfinding that the absence of any evidence showing that the appellant's DM causes him to regulate hisactivities precludes a disability rating in excess of 20%. R. at 11-14. The Court agrees.5The rating criteria under DC 7913 are successive; that is, "each higher disability rating includes the criteria of each lower disability rating, such that if a component was not met at any one level, the veteran could only be rated at the level that did not require the missing component." Tatum, 23 Vet.App. at 156. Thus, in Camacho, the Court rejected the appellant's argument that he could be rated 40% disabled by applying 38 C.F.R. § 4.21 (2006), where he unquestionably only satisfied two of the three requirements for a 40% disability rating. 21 Vet.App. at 366. The Court held that the "conjunctive structure of the language used in specifying the criteria for a 40% disability rating under DC 7913" requires that all criteria must be met to establish entitlement to a 40% disability rating. Id.; see also Tatum, 23 Vet.App. at 156 (noting that § 4.7 was not for application under the facts in Camacho because to award "a 40% disability rating where only two of the three criteria were met, would eviscerate the need for a 20% rating since the symptoms established for either rating might be the same").The appellant's reliance on Tatum is misplaced because the DC at issue in that case, 38 C.F.R. § 4.119, DC 7903, contains rating criteria for hypothyroidism that are not successive. Tatum, 23 Vet.App. 155-57. Accordingly, the Court found that Camacho's holding did not apply and remanded the matter for the Board to determine whether § 4.7 permitted the assignment of a higher disability rating where the evidence demonstrated some of the symptoms required for a higher rating. Id. at 156. The appellant's case is controlled by Camacho because he is rated pursuant to DC 7913, which is the same DC as in Camacho, and it involves successive rating criteria. Consequently, because it is undisputed that the evidence fails to show that the appellant regulates his activities as a result of his DM and "regulation of activities" is a necessary requirement for a 40, 60, and 100% disability rating under DC 7913, the Court must affirm the Board's decision that entitlement to arating in excess of 20% for DM has not been established. See Tatum, Camacho, Johnston, and Gilbert, all supra.To the extent the appellant argues that the matter must nevertheless be remanded because theBoard failed to apply § 4.7 thereby precluding effective judicial review, the Court disagrees. ReplyBr. at 2. The reasons and bases for the Board's decision are clear, i.e., upon consideration of all ofthe evidence, a disabilityrating in excess of 20% was not warranted because "regulation of activitieswas not shown." R. at 14. The Board's conclusion is supported by the evidence and the Court's6decisions in Tatum and Camacho, which are controlling here. The successive nature of the ratingcriteria in DC 7913 requires that all criteria be met to establish entitlement to a higher rating. SeeTatum, 23 Vet.App. at 156; Camacho, 21 Vet.App. at 366. Based on the foregoing, the Board'sfinding that the appellant did not meet the criteria for a disability rating in excess of 20% for DM isnot clearly erroneous and will be affirmed. See Johnston and Gilbert, both supra.B. Disability Rating for PVDThe appellant's PVD is rated under 38 C.F.R. § 4.104, DC 7114 (2011). Pursuant to DC7114, a 20% disabilityratingis warranted where the evidence establishes "[c]laudication on walkingmore than 100 yards, and; diminished peripheral pulses or ankle/brachial index of 0.9 or less." Id.A 40% disability rating is warranted where the evidence establishes "[c]laudication on walkingbetween 25 and 100 yards on a level grade at 2 miles per hour, and; trophic changes (thin skin,absence of hair, dystrophic nails) or ankle/brachial index of 0.7 or less." Id. A 60% disability ratingis warranted where the evidence establishes "[c]laudication on walking less than 25 yards on a levelgrade at 2 miles per hour, and; either persistent coldness of the extremity or ankle/brachial index of0.5 or less." Id. Lastly, a 100% disability rating is warranted for an "[i]schemic limb at rest, and;either deep ischemic ulcers or ankle/brachial index of 0.4 or less." Id.In assessing the appellant's condition under DC 7114, the Board denied a compensabledisability rating for both extremities because "at no time has the [v]eteran been entitled to a 20[%]rating[,] . . . [which] requires claudication on walking more than 100 yards and diminishedperipheral pulses or ankle/brachial index of 0.9 or less." R. at 25 (emphasis added). The appellantargues that a remand is required for the Board to consider the provisions of 38 C.F.R. § 4.7 and toprovide a new statement of reasons and bases for its decision. Appellant's Br. at 11-13. AlthoughtheSecretaryconcedesthattheBoardfoundevidenceshowingdiminishedpulsesofthe leftfoot,hairloss, and claudication on walking between 60 to 70 yards, the Secretary argues that the Boardcorrectly determined that a compensable rating was not warranted. Secretary's Br. at 16-20. TheCourt disagrees.Unlike the rating criteria for DM, the criteria for rating PVD are not successive. Rather, theratingschedulerequires differentlevelsofclaudication anddifferentsymptomatologyateachrating.See 38 C.F.R. § 4.104, DC 7114. Thus, the rating structure for DC 7114 is analogous to the structure7of DC 7903 for hypothyroidism, which was discussed in Tatum. See 38 C.F.R. § 4.119, DC 7903(2009); seealso Tatum,23Vet.App.at156(distinguishingDC 7913andCamachobecauseaveterancan potentially establish all of the criteria required for a 30% or 60% disability rating under DC7903, without establishing anyof the criteria for a lesserdisabilityrating). As noted bythe appellant,the evidence of record shows that the appellant experiences claudication on walking between 60 to70 yards, diminished pulses, and hair loss. See R. at 104-107, 639. This evidence establishes someof the criteria for a 20% disability rating, and some of the criteria for a 40% disability rating. See38 C.F.R. § 4.104, DC 7114. As such, similar to the facts in Tatum, the facts here necessarilyimplicate § 4.7 and the Board was required to consider whether the appellant's "disability picturemore nearly approximates the criteria" required for a compensable disability rating. See Tatum,23 Vet.App. at 156; see also 38 C.F.R. § 4.7. However, the Board's discussion of the evidenceseemed to imply that a compensable rating was not warranted because all the criteria for a 20%disability rating must be met in order for the appellant to be compensated. See R. at 25. Therefore,the matter will be remanded for the Board to reevaluate the evidence and consider how § 4.7 mightapply to the appellant's claim. The Board's failure to discuss § 4.7 renders its statement of reasonsand bases inadequate and frustrates judicial review. See Tucker, Allday, and Schafrath, all supra.While pursuing his case on remand, the appellant is free to submit additional evidence andargument on the remanded matter, and the Board is required to consider any such relevant evidenceand argument. See Kay v. Principi, 16 Vet.App. 529, 534 (2002) (stating that, on remand, the Boardmust consider additional evidence and argument in assessing entitlement to benefit sought);Kutscherouskyv.West,12Vet.App.369,372-73(1999)(percuriam order). TheBoardmust proceedexpeditiously, in accordance with 38 U.S.C. § 7112 (requiring Secretaryto provide for "expeditioustreatment" of claims remanded by the Court).C. Disability Rating for Peripheral NeuropathyThe appellant's peripheral neuropathy of the lower extremities is rated by analogy to DC8620, which pertains to neuritis of the sciatic nerve. R. at 18; see 38 C.F.R. § 4.124a, DC 8620(2011). Under this DC, a 10% disability rating is warranted for "mild" incomplete paralysis, 20%for "moderate" incomplete paralysis, 40% for "moderately severe" incomplete paralysis, 60% for"severe" incomplete paralysis with "marked muscular atrophy," and 80% for complete paralysis8where "the foot dangles and drops, no active movement possible of muscles below the knee, flexionof the knee weakened or (very rarely) lost." See id. A regulatory note preceding the schedule fordiseases of the peripheral nerves, states:The term "incomplete paralysis," with this and other peripheral nerve injuries,indicates a degree of lost or impaired function substantially less than the type picturefor complete paralysis given with each nerve, whether due to varied level of the nervelesion or to partial regeneration. When the involvement is wholly sensory, the ratingshould be for the mild, or at most, the moderate degree.38 C.F.R. § 4.124a (note preceding DC 8510). Pursuant to 38 C.F.R. § 4.120 (2011), "[i]n ratingperipheral nerve injuries, attention should be given to the site and character of the injury , the relativeimpairment in motor function, trophic changes, or sensory disturbance."In the decision here on appeal, the Board determined that the evidence failed to establishentitlement to a disability rating in excess of 10% for each extremity prior to April 7, 2009, or inexcess of 20% from April 7, 2009. R. at 21-22. The appellant argues that, because the notepreceding the schedule for diseases of the peripheral nerves, permits at most a moderate, or 20%,disability rating for incomplete paralysis with wholly sensory manifestations, a claimant displayingmore than wholly sensory manifestations of incomplete paralysis must be rated at a higher level.Appellant's Br. at 13-14; Reply Br. at 3-4. Thus, he argues that because the evidence of recorddemonstrates that he also suffers from diminished reflexes, the matter must be remanded for theBoard to consider whether he is entitled to a "moderately severe" or "severe" disability rating.Appellant's Br. at 14. The Secretary does not dispute the appellant's contention that the recordcontains evidence of diminished reflexes and it appears to be supported bythe record and the Board'sdescription of the evidence. SeeR. at 20 (noting that the February2005 VA electromyographyreportshowed "right ankle jerk absent") and R. at 21 (noting that in April 2009 the appellant's "left kneejerk was 1+[,] his right [knee] was 2+[,] [and] [a]nkle jerks were 1+ bilaterally").Nevertheless, when assessing the evidence of record to determine the appropriate level ofdisability, the Board did not include any analysis or discussion of this evidence, which seems tosuggest that the appellant's disability is also characterized by loss of reflexes. See R. at 21-22; see also 38 C.F.R. § 4.123 (2011) (providing that "[n]euritis, cranial or peripheral, characterized bylossof reflexes, muscle atrophy, sensory disturbances and constant pain, at times excruciating, is to be9rated on the scale provided for injury of the nerve involved"). The Court agrees with the appellantthat the Board should have considered whether the evidence demonstrating absent or diminishedankle jerk, which renders his condition more than "wholly sensory," requires the assignment of ahigher disability rating. The Board's failure to discuss this evidence frustrates judicial review andrenders its statement of reasons or bases inadequate. See Dennis v. Nicholson, 21 Vet.App. 18, 22(2007) ("The Court has long held that merely listing evidence before stating a conclusion does notconstitute an adequate statement of reasons and bases." (citing Abernathy v. Principi, 3 Vet.App.461, 465 (1992))). On remand, the Board must consider the appellant's contention that he is entitledto a higher disability rating because the manifestations of his peripheral neuropathy are more thanwholly sensory, i.e., his condition is also characterized by diminished reflexes. See Tucker, Allday,and Caluza, all supra. The appellant is free to submit additional evidence and argument on theremanded matter, and the Board is required to consider any such relevant evidence and argument.See Kay and Kutscherousky, both supra. The Board must proceed expeditiously, in accordance with38 U.S.C. § 7112.
III. CONCLUSION
After consideration of the appellant's and the Secretary's pleadings, and a review of therecord, the Board's November 3, 2009, decision is AFFIRMED IN PART, VACATED IN PART,and the vacated matters are REMANDED to the Board for further proceedings consistent with this decision.
DATED: October 5, 2011
Copies to:Robert V. Chisholm, Esq.
VA General Counsel (027)10
Single Judge Application, 38 C.F.R. § 4.84b, Tinnitus, Liberalizing, 1976
Excerpt from decision below:
"However, in March 1976, VA amended § 4.84b to provide a 10% disability rating for tinnitus that is "[p]ersistent as a symptom of head injury, concussion[,] or acoustic trauma." 38 C.F.R. § 4.84b, Diagnostic Code 6260 (1976) (emphasis added); 41 Fed. Reg. 11291, 11298 (Mar. 18, 1976). Nevertheless, this liberalizing law does not entitle Mr. Girard to an effective date earlier than September 7, 2006, because he did not seek benefits for tinnitus until September 2007, more than one year after the March 1976 effective date of the liberalizing law. In such a situation, the earliest effective date that may be assigned pursuant to the liberalizing law is one year prior to the date of the receipt of Mr. Girard's claim–in this case, September 7, 2006. See 38 C.F.R. § 3.114(a)(3).
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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 09-2969
LULA J. GIRARD, 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: Lula J. Girard, who is self-represented, appeals a July 28, 2009, Board ofVeterans' Appeals (Board) decision denying her husband an effective date prior to September 7,2006, for the award of a 10% disability rating for tinnitus. Record (R.) at 3-13. Mrs. Girard's Noticeof Appeal was timely, and the Court has jurisdiction to review the Board decision pursuant to38 U.S.C. § 7252(a). Neither party requested oral argument or identified issues they believe torequire a precedential decision of the Court. Because the Board's determination that John C. Girard,Jr., was not entitled to an earlier effective date for the award of benefits for tinnitus was not clearlyerroneous, the Court will affirm the July 28, 2009, Board decision.I. FACTSMrs. Girard is the widow of veteran John C. Girard, Jr., who served on active dutyin the U.S.Army from June 1955 to May 1961. In May 1961, Mr. Girard filed a claim for VA benefits for a"hearing" disability. R. at 363. In July 1961, Mr. Girard underwent a VA audiological examinationand reported to the examiner that his hearing loss and tinnitus began when he was "exposed to allthe demolition noise in service." R. at 348. In May 1962, a VA regional office awarded Mr. Girardbenefits for bilateral hearing loss and assigned a 10% disability rating. The regional office did notadjudicate a claim for benefits for tinnitus at that time. Mr. Girard did not appeal that decision andit became final.In September 2007, more than 45 years after the initial rating decision, Mr. Girard filed aclaim for VA benefits for tinnitus. In January 2008, the regional office awarded Mr. Girard benefitsfor tinnitus and assigned a 10% disability rating, effective September 7, 2007, the date of his claim.Mr. Girard filed a timely Notice of Disagreement with that decision, requesting an earlier effectivedate. In February 2009, Mr. Girard filed a motion to revise the May 1962 regional office decisionbased on clear and unmistakable error that asserted that the regional office "ignored or overlooked"a diagnosis of tinnitus that was of record at the time of the decision. R. at 100.In May 2009, after further development including the assignment of a September 7, 2006,effective date for the award of benefits for tinnitus, the regional office determined that there wasclear and unmistakable evidence in the May 1962 regional office decision because the evidence ofrecord at that time "show[ed] treatment of a chronic disability [of tinnitus] within one year ofdischarge." R. at 47. Therefore, the regional officeassigned him a noncompensable disability rating for tinnitus from May 19, 1961, the date of his initial claim, to September 6, 2006, and a 10%disability rating effective thereafter. Mr. Girard filed a timely Notice of Disagreement with that decision, arguing that he was entitled to a higher disability rating because "the acoustic trauma towhichhewasexposed duringservicewasequivalenttoaconcussion,"andhesubsequentlyperfectedhis appeal to the Board. R. at 40.In July 2009, the Board issued the decision currently on appeal, which denied entitlement toan effective date prior to September 7, 2006, for the award of a 10% disability rating for tinnitus.1
Specifically, the Board explained that tinnitus caused by acoustic trauma was not a compensable disability under the ratings schedule until March 1976 and that, pursuant to 38 C.F.R. § 3.114, the earliest effective date that could be assigned for Mr. Girard's tinnitus based on that liberalizing law The Court notes that the Board refers to an "earlier effective date claim" and a "[clear and unmistakable error]claim." R. at 7, 12. However, there is no such thing as a freestanding claim for an earlier effective date. Rudd v.Nicholson, 20 Vet.App. 296, 300 (2006). Likewise, "an assertion of clear and unmistakable error is a motion or a request, rather than a claim." Hillyard v. Shinseki, 24 Vet.App. 343, 355 (2011).12would be September 7, 2006, one year prior to the date of his claim, which was filed more than one year after March 1976.Mrs. Girard filed a timelyNotice of Appeal with that decision and indicated that her husband died three days after the Board issued its decision. In response to a Court order, Mrs. Girard fileda timely motion for substitution, which the Court granted nunc pro tunc to the date she filed herNotice of Appeal.
II. ANALYSIS
Mrs. Girard argues that the Board's determination that her husband was not entitled to an effective date earlier than September 7, 2006, for the award of benefits for tinnitus was clearly erroneous. The Court disagrees.A Board determination of the proper effective date is a finding of fact that the Court reviews under the "clearly erroneous" standard of review. 38 U.S.C. § 7261(a)(4); see Hanson v. Brown,9 Vet.App. 29, 32 (1996); Gilbert v. Derwinski, 1 Vet.App. 49, 52 (1990). "A factual finding 'is"clearly erroneous" when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.'" Hersey v. Derwinski, 2 Vet.App. 91, 94 (1992) (quoting United States v. U.S. Gypsum Co., 333 U.S. 364,395 (1948)). The Court may not substitute its judgment for the factual determinations of the Board on issues of material fact merely because the Court would have decided those issues differently inthe first instance. See id.Generally, the effective date for an award of disability compensation benefits is "the date of receipt of the claim or the date entitlement arose, whichever is later." 38 C.F.R. § 3.400 (2011); see also 38 U.S.C. § 5110(a). When VA revises a final decision based on clear and unmistakable error,the effective date is the "[d]ate from which benefits would have been payable if the corrected decision had been made on the date of the reversed decision." 38 C.F.R. § 3.400(k). In addition,where disability compensation benefits are awarded or increased pursuant to a liberalizing law or administrative issue, "the effective date of such award or increase shall be fixed in accordance with the facts found but shall not be earlier than the effective date of the Act or administrative issue."38 U.S.C. § 5110; see also 38 C.F.R. § 3.114(a) (2011); 38 C.F.R. § 3.400(p). Where, as here, "a3claim is reviewed at the request of the claimant more than 1 year after the effective date of the law or VA issue, benefits may be authorized for a period of 1 year prior to the date of receipt of suchrequest." 38 C.F.R. § 3.114(a)(3).Because Mr. Girard was awarded benefits for tinnitus retroactive to May 19, 1961, based ona finding of clear and unmistakable error in the May 1962 regional office decision, the Court must rely on the law extant at that time to determine whether or not the Board's determination that he was not entitled to a compensable disability rating prior to September 7, 2006, was clearly erroneous.See 38 C.F.R. § 3.400(k). In May 1962, the rating schedule provided a compensable disabilityratingonly for tinnitus resulting from brain trauma or cerebral arteriosclerosis;2tinnitus resulting from anyother cause, including acoustic trauma, was considered noncompensable. See VA SCHEDULE FORRATING DISABILITIES 63, 112 (1945) (Diagnostic Codes 6260, 8045, and 8046).In the instant case, Mrs. Girard does not point to any evidence of record that demonstratesthat her husband's tinnitus was caused by brain trauma or cerebral arteriosclerosis sufficient towarrant a compensable disability rating retroactive to May 1961. Rather, Mr. Girard previously asserted that he was entitled to a compensable disability rating prior to September 7, 2006, because"the acoustic trauma to which he was exposed duringservicewas equivalentto a concussion," whichis consistent with a July 1961 VA medical examination report indicating that his tinnitus was causedby noise exposure. R. at 40. Mr. Girard's theoryof entitlement is contradicted by the plain languageof the diagnostic codes for rating tinnitus in 1962, which specifically provided for a 10% disabilityrating for tinnitus due to brain trauma and cerebral arteriosclerosis and a noncompensable disabilityrating for tinnitus due to all other causes, including acoustic trauma. Moreover, Mrs. Girard doesnot citeanylegalprecedenttosupportherhusband'sinterpretation oftheapplicablediagnostic codes.Although the Court is cognizant that Mrs. Girard is self-represented, her status as a pro se appellantdoes not relieve her of her burden of demonstrating error. See Hilkert v. West, 12 Vet.App. 145, 151(1999) (en banc) (holding that the appellant has the burden of demonstrating error), aff'd, 232 F.3d908 (Fed. Cir. 2000) (table). Consequently, the Court concludes that the Board's determination thatArteriosclerosis is "any of a group of diseases characterized by thickening and loss of elasticity of arterialwalls." DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 144 (32d ed. 2011). Cerebral arteriosclerosis is"arteriosclerosis of the arteries of the brain." Id.24Mr. Girard was not entitled to an earlier effective date for his award of benefits for tinnitus under therating schedule in effect at the time of the May1962 regional office decision is not clearlyerroneous.The rating schedule was added to the Code of Federal Regulations in May 1964 andDiagnostic Codes 6260, 8045, and 8046 were codified without change. See 38 C.F.R. §§ 4.84b,4.124a (1965); 29 Fed. Reg. 6718 (May 22, 1964). However, in March 1976, VA amended § 4.84b to provide a 10% disability rating for tinnitus that is "[p]ersistent as a symptom of head injury ,concussion[,] or acoustic trauma." 38 C.F.R. § 4.84b, Diagnostic Code 6260 (1976) (emphasisadded); 41 Fed. Reg. 11291, 11298 (Mar. 18, 1976). Nevertheless, this liberalizing law does not entitle Mr. Girard to an effective date earlier than September 7, 2006, because he did not seek benefits for tinnitus until September 2007, more than one year after the March 1976 effective date of the liberalizing law. In such a situation, the earliest effective date that may be assigned pursuantto the liberalizing law is one year prior to the date of the receipt of Mr. Girard's claim–in this case,September 7, 2006. See 38 C.F.R. § 3.114(a)(3). Likewise, even assuming without deciding thata June 1999 amendment to the rating schedule for diseases of the ear, which transferred DiagnosticCode 6260 to § 4.87 and provided a 10% disability rating for recurrent tinnitus without anyrestriction on the cause of the condition was a liberalizing law, Mr. Girard would not be entitled toan earlier effective date pursuant to that amendment because he did not file his claim within one yearof the effective date of that liberalizing law.3See id.; see also 38 C.F.R. § 4.87 (1999); 64 Fed. Reg.25202, 25210 (May 11, 1999).To the extent that Mrs. Girard argues that, but for the regional office's clear and unmistakableerror in the May 1962 decision, VA would have reviewed her husband's entitlement to benefits fortinnitus on its own initiative within one year of the March 1976 amendment, thereby entitling himto an effective date commensurate with the enactment of that liberalizing law under § 3.114(a)(1),VA is not required to review a veteran's entitlement to benefits pursuant to a liberalizing law. SeeMcCay v. Brown, 106 F.3d 1577, 1581 (Fed. Cir. 1997) ("[Section 3.114(a)] would permit [VA] toidentify and apply the provisions of a liberalized law or administrative issue on their own initiativewhere feasible; or, where it is not feasible to identify potential beneficiaries administratively, toIn June 2003, VA also amended the explanatory notes to § 4.87, Diagnostic Code 6260, which are not relevantto this appeal. 68 Fed. Reg. 25822, 25823 (May 14, 2003).35require the filing of an application" (quoting S. Rep. No. 87-2042, at 5 (1962), reprinted in 1962U.S.C.C.A.N. 3260, 3264-65)); Spencer v. Brown, 4 Vet.App. 283, 288 (1993) (explaining that38 U.S.C. § 5110(g), the authorizing statute for § 3.114(a), "does not. . . create a requirement thatVA adjudicate de novo a previously and finally denied claim when there has been an interveningliberalizing law that may affect the claimant's entitlement to benefits," but rather "presuppose[s] theexistence of such a right [to a de novo adjudication]"). Accordingly, the Court cannot award Mr.Girard an earlier effective date under § 3.114(a)(1) based purely on speculation that VA may havetimelyconductedthatdiscretionaryreviewiftheMay1962regionalofficedecisionhacorrectlyin the first instance. Consequently, the Court concludes that the Board's determination thatMr. Girard was not entitled to an earlier effective date for his award of benefits for tinnitus pursuantto a liberalizing law is not clearly erroneous.Mrs. Girard next argues that her husband did not file a claim for benefits for tinnitus beforeSeptember 2007 because the Missouri Veterans Commission, which she claims was "acting onbehalf of [VA]," "discouraged him from reapplying and refused to assist him in doing so" andmisinformed him about the likelihood of success of such a claim. Appellant's Brief (Br.) at 2; ReplyBr. at 1. As an initial matter, the Court takes judicial notice of the fact that, contrary to Mrs. Girard'scontention, the Missouri Veterans Commission is part of the Missouri state government and not partof VA.See MISSOURI DEPARTMENT OF PUBLIC SAFETY: VETERANS COMMISSION,http://mvc.dps.mo.gov/ (last visited Sept. 7, 2011); see also Smith v. Derwinski, 1 Vet.App. 235, 238(1991) ("Courts may take judicial notice of facts not subject to reasonable dispute." (citing FED. R.EVID. 201(b))); Brannon v. Derwinski, 1 Vet.App 314, 316-17 (1991). Although the Court issympathetic to Mrs. Girard's situation, the Court cannot assign an earlier effective date based solelyon principles of equity. See Moffitt v. Brown, 10 Vet.App. 214, 225 (1997) ("[T]his Court is not acourt of equity and cannot provide equitable relief.").Mrs. Girard also asserts that the Board should have assigned her husband an earlier effectivedate for his award of benefits for tinnitus because he was "entitled to the benefit of the doubt whenevidence is lacking to the contrary." Appellant's Br. at 2. However, the benefit of the doubt onlyapplies "when there is an approximate balance of positive and negative evidence regarding anyissuematerial to the determination of a matter." 38 U.S.C. § 5107(b). Here, contrary to Mrs. Girard's6contention, the Board found that the preponderance of the evidence weighed against the assignmentof an earlier effective date, a factual determination that she does not challenge on appeal. R. at 13.Consequently, the benefit of the doubt was not applicable, and the Board's determination in thatregard was not "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance withlaw." Gilbert, 1 Vet. App. at 58.Finally, Mrs. Girard asserts that "only [Mr. Girard's] peace time service has been considered so far" in assigning an effective date for his award of benefits for tinnitus. Appellant's Br. at 3.However, Mrs. Girard fails to cite any statute, regulation, or other legal precedent, nor can the Court discern any, explaining why this distinction is relevant to the assignment of an effective date.Therefore, the Court concludes that Mrs. Girard has failed to carry her burden of demonstrating error in that regard. See Hilkert, 12 Vet.App. at 151.III.
CONCLUSION
Upon consideration of the foregoing, the July 28, 2009, Board decision is AFFIRMED.DATED: October 6, 2011
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