Friday, October 21, 2011

Single Judge Application, U.S. VET. APP. Rule 28(a)(5); Locklear v. Nicholson, 20 Vet.App. 410, 416 (2006)

Designated for electronic publication only Excerpt frm decision below: "The appellant does not make any arguments or assertions of error as to the May 2010 Board decision. Pursuant to Rule 28(a)(5) of the Court's Rules of Practice and Procedure, an appellant's brief must contain "an argument . . . and the reasons for [it], with citations to the authorities . . . relied on." U.S. VET. APP. Rule 28(a)(5); see Locklear v. Nicholson, 20 Vet.App. 410, 416 (2006)(holding that the Court will not entertain perfunctory or underdeveloped arguments). Although the appellant is self-represented, the Court "'is not required to manufacture [his] argument.'" Coker v. Nicholson, 19 Vet.App. 439, 442 (2006) (quoting Hernandez v. Starbuck, 69 F.3d 1089, 1093 (10th Cir. 1995), and similar cases from the Eighth and Tenth Circuit Courts of Appeal)), rev'd on other grounds sub nom. Coker v. Peake, 310 Fed. Appx. 371 (Fed. Cir. May 1, 2008). Further, it is the appellant who "bears the burden of persuading the Court that the Board decision below is tainted by prejudicial error that warrants reversing or remanding the matter for the investment of the additional time and effort that would be required by VA to produce a new decision in [the] case." Moore v. Nicholson, 21 Vet.App. 211, 214 (2007). Because the appellant has not articulated any error in the Board decision and because the record does not otherwise provide a basis for finding such error, the Court will affirm the May 2010 Board decision. +++++++++++++++++++++++++++++++++++++++++++++++++++ UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS NO. 10-2859 JOHN S. PUPIK, APPELLANT, V. ERIC K. SHINSEKI, SECRETARY OF VETERANS AFFAIRS, APPELLEE. Before FARLEY, Judge. MEMORANDUM DECISION Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent. FARLEY, Judge: The self-represented appellant, John S. Pupik, appeals the May 4, 2010, decision of the Board of Veterans' Appeals (Board) that denied his claim for entitlement to service connection for asbestosis. The Court has jurisdiction pursuant to 38 U.S.C. §§ 7252(a) and 7266(a) to review the May 2010 Board decision, and a single judge may conduct that review. See Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). Because the appellant has not offered any argument or allegation of error as to the decision on appeal, the Court will affirm the Board's decision. I. FACTS The appellant served on active duty in the U.S. Air Force from March 1952 to March 1956. Record (R.) at 426. In September 2007, the appellant filed a claim for service connection for lung disease including asbestosis. R. at 327-36. Medical records from Dr. Karl Fernandes reflect that the appellant was being treated for chronic obstructive pulmonary disease ( COPD) and asbestosis. R. at 300-03. A March 2007 treatment record notes that the appellant had been exposed to asbestos while working for an automobile manufacturer in the 1970s, and that he had smoked 1 ½ to 2 packs of cigarettes a day for over 45 years previously but had quit "about 13 years ago." R. at 251. The appellant underwent a VA examination in August 2008. R. at 136-42. At that time, the examiner found that recent x-rays revealed the appellant's lungs to be clear of infiltrate. R. at 137. The impression was a normal chest. Id. The examiner diagnosed the appellant with COPD and opined that it was more likely related to his history of smoking than to asbestos exposure. R. at 138. In September 2008, a VA regional office (RO) denied the appellant's claim for service connection for asbestosis, emphysema, and COPD. See R. at 86-92. In his subsequently filed Notice of Disagreement, the appellant objected to the "denial on [his] claim for [ a]sbestosis." R. at 85. He argued that while he was in the Air Force his duty assignments involved exposure to asbestos. Id. In the May 2010 decision on appeal, the Board denied the appellant's claim for entitlement to service connection for asbestosis. R. at 3-15. After examining the available evidence, the Board found that "[t]he competent credible clinical evidence of record does not establish that the [appellant] has asbestosis." R. at 4. II. ANALYSIS This Court provides a form that appellants may use to file an informal brief. This form consists of questions and sufficient space for explanatory answers. In this case, the appellant chose to use this form for his informal brief. The first question on the form asks for the case number of any other cases the appellant may have had before the Court. The appellant indicated that he had no prior appeals. Appellant's Brief (Br.) at 1. The second question asks, if there was more than one issue decided bythe Board, which one the appellant was appealing. The appellant answered "none." Id. The third question asks: "Did the [Board] incorrectly decide or fail to take into account any facts?" It further asks, if the Board did incorrectly decide or fail to consider any facts, what are those facts and how should the Board have decided them? The appellant answered " Yes" to this question and further stated that there was "too much bureaucracy in the state of Ohio for veterans." Id. The fourth question asks: "Did the VA or [Board] fail to get any documents that you or your representative told them about?" The appellant's answer to this question was "Yes," but he failed to point to the pages in the record that show that the documents exist or how these documents related to his claim. Id. The fifth question asks: "Did the [Board] apply the wrong law or regulation in making its decision?" and the question goes on to ask "what law or regulation should the [Board] have applied?" The appellant responded with a question mark. Id. at 2. Question six asks: "Are 2 there any other reasons why you think the [Board] decision is wrong?" The appellant failed to respond. Id. The seventh question asks: "What action do you want this Court to take?" The appellant stated "none." Id. The appellant does not make any arguments or assertions of error as to the May 2010 Board decision. Pursuant to Rule 28(a)(5) of the Court's Rules of Practice and Procedure, an appellant's brief must contain "an argument . . . and the reasons for [it], with citations to the authorities . . . relied on." U.S. VET. APP. Rule 28(a)(5); see LocklearNext Document v. Nicholson, 20 Vet.App. 410, 416 (2006)(holding that the Court will not entertain perfunctory or underdeveloped arguments). Although the appellant is self-represented, the Court "'is not required to manufacture [his] argument.'" Coker v. Nicholson, 19 Vet.App. 439, 442 (2006) (quoting Hernandez v. Starbuck, 69 F.3d 1089, 1093 (10th Cir. 1995), and similar cases from the Eighth and Tenth Circuit Courts of Appeal)), rev'd on other grounds sub nom. Coker v. Peake, 310 Fed. Appx. 371 (Fed. Cir. May 1, 2008). Further, it is the appellant who "bears the burden of persuading the Court that the Board decision below is tainted by prejudicial error that warrants reversing or remanding the matter for the investment of the additional time and effort that would be required by VA to produce a new decision in [the] case." Moore v. Nicholson, 21 Vet.App. 211, 214 (2007). Because the appellant has not articulated any error in the Board decision and because the record does not otherwise provide a basis for finding such error, the Court will affirm the May 2010 Board decision. III. CONCLUSION Upon consideration of the foregoing and the briefs of the parties, the May 2010 Board decision is AFFIRMED. DATED: October 19, 2011 Copies to: John S. Pupik VA General Counsel (027) 3