Monday, November 28, 2011

Single Judge Appication, Mayhue, 24 Vet.App. at 279-80, 3.156(c)(2) Cannot be Used to Deny EED When Records Were Available to VA

In Mayhue, the Court recognized that § 3.156(c)(2) cannot be used to deny an earlier effective date in a newly acquired service records case where the information ultimately used to verify a purported stressor was available to VA at the time the PTSD claim was previously denied. 24 Vet.App. at 279-80. The Court observed that it was VA's failure to use the information that it always had available, rather than any inaction on the part of the claimant, that prevented the agency from corroborating the stressor at an earlier date. Id. =========================== Designated for electronic publication only UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS NO. 09-4735 SAMUEL E. TAYLOR, APPELLANT, V. ERIC K. SHINSEKI, SECRETARY OF VETERANS AFFAIRS, APPELLEE. Before FARLEY, Judge. MEMORANDUM DECISION Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent. FARLEY, Judge: The appellant, through counsel, appeals from the December 23, 2009, decision of the Board of Veterans' Appeals(Board) that denied entitlement to an effective date earlier than February4, 1998, for the grant of service connection for post-traumatic stress disorder (PTSD). This appeal is timely and the Court has jurisdiction to review the Board's decision pursuant to 38U.S.C. §§ 7252(a)and 7266. Single-judge disposition is appropriate when the issue is of "relative simplicity" and "the outcome is not reasonablydebatable." Frankel v. Derwinski, 1 Vet.App. 23, 25- 26 (1990). On March 28, 2011, the appellant filed a motion for oral argument pursuant to Rule 34 of the Court's Rules of Practice and Procedure. However, because oral argument would not "materially assist in the disposition of this appeal," the motion will be denied. Janssen v. Principi, 15 Vet.App. 370, 379 (2001) (per curiam). For the following reasons, the Court will vacate the Board's decision and remand the matter for further proceedings consistent with this opinion. I. FACTS The appellant served on active duty in the U.S. Army from September 1966 to September 1968, including service in Vietnam. Record (R.) at 461, 618-20. In May 1992, the regional office (RO) denied his claim for service connection for PTSD because a recent VA examination did not include a diagnosis of PTSD. R. at 570-71. The appellant did not file a timely appeal of that decision and it became final. R. at 494-95, 498-99, 550-59. The RO denied the appellant's application to reopen his claim in May 1994. R. at 489-90. He did not appeal this decision and it became final. On February 4, 1998, the appellant filed an application to reopen his claim for service connection for PTSD. R. at 482. The appellant was afforded a VA examination in March 1998. The examiner diagnosed the appellant's psychiatric disorder as major depression with psychotic features and concluded that the appellant did not meet the requirements for a PTSD diagnosis. R. at 468. In April 1998, the RO denied the appellant's claim as not well grounded due to the lack of a medical diagnosis of PTSD. R. at 464-66. The appellant perfected an appeal of the RO decision. R. at 427, 437-58. He also submitted additional evidence to support his claim, to include a statement in which he specificallystated, amongother things, that he was assigned to the 145th Aviation Battalion when a convoyhe was in was ambushed and the driver of the truck in front of his, named Washington, was shot. R. at 443. In October 2001, evidence received from the U.S. Armed Services Center for Unit Records Research (CURR) verified two of the appellant's stressors: (1) that he was exposed to rocket and mortar attacks at Ben Hoa in January 1968; and (2) that Specialist Four ( SP4) Washington was wounded in action on January 30, 1968, from small arms fire and was assigned to the same higher headquarters as the appellant. R. at 330. In February 2002, the RO granted service connection for PTSD and assigned a rating of 100%, effective April 13, 1999. R. at 313-23. The appellant perfected an appeal of the effective date and, in May 2007, the Board granted entitlement to an effective date of February4, 1998, but no earlier, for the grant of service connection for PTSD. R. at 78-85, 113-15, 278. In June 2007 the appellant filed a motion for revision of the May 2007 Board decision on the basis of clear and unmistakable error (CUE). R. at 73. While his motion for revision of the May 2007 Board decision was pending, the appellant appealed the Board's 2007 decision to the Court and, in July2009, the Court remanded the Board's 2007 decision pursuant to a joint motion for remand. R. at 38, 39-44. That same month, the Board dismissed the appellant's motion for revision of the Board's decision on the basis of CUE because the 2007 Board decision was not final. R. at 26-29. On December 23, 2009, the Board issued its decision on appeal in which it denied 2 entitlement to an effective date prior to February 4, 1998, for service connection for PTSD. R. at 3- 14. This appeal followed. The appellant argues for reversal or, in the alternative, for remand. Appellant's Brief (Br.) at 7-24. The Secretary argues for affirmance of the Board's decision. Secretary's Br. at 8-28. II. ANALYSIS The Board's determination of the proper effective date for an award of VA benefits is a finding of fact reviewed under the "clearly erroneous" standard of review set forth in 38 U.S.C. § 7261(a)(4). "'A 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.'" Gilbert v. Derwinski, 1 Vet.App. 49, 52 (1990) (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 in the first instance. Id. The Board, in rendering its decision, is required to provide a written statement of the reasons or bases for its "findings and conclusions . . . on all material issues of fact and law presented on the record." 38 U.S.C. § 7104(d)(1). The statement must be adequate to enable a claimant to understand the precise basis for the Board's decision and to facilitate review in this Court. Gilbert, 1 Vet.App. at 56-57. The determination of the effective date for an original claim or a reopened claim is governed by38 U.S.C. § 5110(a), which provides: "Unless specificallyprovided otherwise in this chapter, the effective date of an award based on an original claim [or] a claim reopened after final adjudication . . . shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor." The implementing regulation similarly states that the effective date shall be the date of receipt of the claim or the date entitlement arose, whichever is later, unless the claim is received within one year after separation from service. 38 C.F.R. § 3. 400 (2011). However, pursuant to 38 C.F.R. § 3.156(c)(1), "if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim." 3 Pursuant to § 3.156(c)(3), "[a]n award made based all or in part on the records identified by paragraph (c)(1) . . . is effective on the date entitlement arose or the date VA received the previously decided claim, whichever is later." 38 C.F.R. § 3.156(c)(3) (2011). An exception to the foregoing is provided under 38 C.F.R. § 3.156(c)(2), which provides that paragraph ( c)(1) does not apply "to records that VA could not have obtained when it decided the claim . . . because the claimant failed to provide sufficient information for VA to identifyand obtain the records ." 38 C.F.R. § 3.156(c)(2). Prior to VA's 2006 amendment to 38 C.F.R. § 3.156(c), "'§ 3.400(q)(2) govern[ed] the effective date of benefits awarded when VA reconsider[ed] a claim based on newlydiscovered service department records.'" Mayhue v. Shinseki, 24 Vet.App. 273, 277 (2011) (quoting New and Material Evidence, 70 Fed. Reg. 35,388 (proposed June 20, 2005)). Read together, §§ 3.156(c) and 3.400(q)(2) provided that the effective date for an award of benefits based on newly discovered service department records that were previously unavailable "may relate back to the date of the original claim or date entitlement arose even though the decision on that claim may be final under [38 C.F.R.] § 3.104." Id. The appellant first argues that the Board impermissibly applied the current version of 38 C.F.R. § 3.156(c) rather than the earlier, more favorable, version of the regulation. Appellant's Br. at 10-14. He specifically objects to the Board's reliance on § 3.156( c)(2), which was added in 2006. Appellant's Br. at 12-13. The Secretary argues for affirmance of the Board's decision. Secretary's Br. at 8-28. He contends that there is a plausible basis for the Board's decision that an effective date prior to February4, 1998, is not warranted because the earliest effective date available in the instant case is the date of receipt of the appellant's claim to reopen, or February 4, 1998. Secretary's Br. at 9-13. He specifically argues that neither the 1998 version of § 3.156(c) nor the current version of that regulation would allow for an earlier effective date than that assigned because the appellant did not meet the criteria for PTSD since he lacked a diagnosis of PTSD until April 1999. Secretary's Br. at 17-18. In fact, the Secretary distinguishes the instant appeal from that in Vigil v. Peake, 22 Vet.App. 63 (2008), on that basis. Secretary's Br. at 19. The appellant provides no support for his contention that the earlier version of the regulation is more favorable than the current version of the regulation. Appellant's Br. at 11-14. As pointed out by the appellant, the Board focused on the current version of § 3.156( c) and did not address the 4 earlier version of the regulation, to include whether it was more favorable than the current version. Appellant's Br. at 21-22. The Board's failure to address this matter renders its reasons or bases inadequate for judicial review in the instant case. See Karnas v. Derwinski, 1 Vet.App. 308, 313 (1991) (holding "where the law or regulation changes after a claim has been filed or reopened but before the administrative or judicial appeal process has been concluded, the version most favorable to the appellant should . . . apply unless Congress provided otherwise or permitted the Secretary . . . to do otherwise and the Secretary did so.")), overruled in part by Kuzma v. Principi, 341 F.3d 1327, 1328-29 (Fed. Cir. 2003); Gilbert, supra; see also Baker v. West, 11 Vet. App. 163, 168-69 (1998) (remanding for the Board to determine in the first instance whether a revised version of a regulation was more favorable to an appellant than a previous version). Additionally, review of the Board's decision reveals that the Board's determination that the appellant did not provide sufficient stressor information to permit corroboration of his PTSD stressors prior to February 1998 is not supported by an adequate statement of reasons or bases. R. at 13-14; see Gilbert, supra. In Mayhue, the Court recognized that § 3.156(c)(2) cannot be used to deny an earlier effective date in a newly acquired service records case where the information ultimately used to verify a purported stressor was available to VA at the time the PTSD claim was previously denied. 24 Vet.App. at 279-80. The Court observed that it was VA's failure to use the information that it always had available, rather than any inaction on the part of the claimant, that prevented the agency from corroborating the stressor at an earlier date. Id. The Board in the instant case conceded that the RO granted service connection for PTSD, at least in part, based on CURR's verification of the appellant's contention that he was exposed to rocket fire and enemy attacks at Ben Hoa in January1968 and that he witnessed the injury of a fellow soldier who was wounded in action in January 1968. R. at 13. The Board also correctly noted that the reference to "official service department records" in § 3.156(c) " include[d] CURR reports such as the reports associated with the [appellant's] claims folder in October 2001." R. at 11; Vigil, supra. However, the Board further found that "the detailed stressor information upon which the CURR verification was based was not of record until the [appellant] filed his claim to reopen in February 1998. Inconjunctionwith his February1998claimto reopen,[he] essentially provided appropriately detailed information . . . which enabled the RO to make the CURR request in January 2001 which 5 led to stressor verification." R. at 13-14. The Board further found that prior to February 1998, the appellant's descriptions of in-service stressors were without sufficient detail to allow for verification and that § 3.156(c)(2) was therefore applicable. R. 13-14. The appellant correctly notes that service personnel records before the VA as early as August 1991 showed the dates that he was stationed at Ben Hoa. Appellant's Br. at 17; R. at 615-20. He further alleges that these records together with his April 1992 and February1993 stressor statements provided sufficient information to permit verification of his PTSD stressor concerning mortar and rocket attacks at Ben Hoa. Appellant's Br. at 7. Because the Board does not address this information in the context of the sufficiency of the appellant's stressor information prior to February 1998 or in the context of Mayhue, which was issued after the Board's decision in the instant case, remand is required. See Mayhue and Gilbert, both supra. Because it has been determined that remand is appropriate for the foregoing reasons, the Court will not address the appellant's other arguments for remand. See Dunn v. West, 11 Vet.App. 462, 467 (1998) (remand of the appellant's claim under one theory moots the remaining theories advanced on appeal). On remand, the appellant may present any additional evidence and argument in support of the matter remanded, and the Board must consider any evidence and argument so presented. See Kay v. Principi, 16 Vet.App. 529, 534 (2002). This matter is to be provided expeditious treatment on remand. See 38 U.S.C. § 7112. Although the appellant argues for reversal of the Board's decision, his argument is not persuasive. Appellant's Br. at 7-19. Reversal is the appropriate remedy only in cases in which the only permissible view of the evidence is contrary to the Board's decision. Gutierrez v. Principi, 19 Vet.App. 1, 10 (2004); Johnson v. Brown, 9 Vet.App. 7, 10 (1996). Generally, where the Board has incorrectly applied the law or failed to provide an adequate statement of reasons or bases for its determinations or where the record is otherwise inadequate, remand is the appropriate remedy. See Coburn v. Nicholson, 19 Vet.App. 427, 431 (2006) (holding that remand is appropriate when "the Court finds that the Board decision is defective in its reasons or bases thereby preventing proper review by the Court"); Tucker v. West, 11 Vet.App. 369, 374 (1998). Here, the Court is precluded from reviewing the Board's decision due to its inadequate reasons or bases. Thus, reversal is not the 6 proper remedy; the Court will vacate the decision and remand the matter on appeal for readjudication. III. CONCLUSION Upon consideration of the foregoing analysis, the record on appeal, and the parties' pleadings, the December 23, 2009, Board decision is VACATED and the matter is REMANDED to the Board for further proceedings consistent with this decision. DATED: November 10, 2011 Copies to: Sean A Ravin, Esq. VA General Counsel (027) 7

Singe Judge Appication, Service Connection on Secondary Basis, 38 C.F.R. § 3.310(a) (2011), Allen v. Brown, 7 Vet.App. 439, 448 (1995)

Excerpt from decision below: "A disability may be service connected on a secondary basis by demonstrating that the disability is either (1) "proximately due to or the result of [an already] service-connected disease or injury," 38 C.F.R. § 3.310(a) (2011), or (2) aggravated by an already service-connected disease or injury, "whether or not the additional impairment is itself a separate disease or injury caused by the service-connected condition." Allen v. Brown, 7 Vet.App. 439, 448 (1995) (en banc). In addition, "VA must determine all potential claims raised by the evidence, applying all relevant laws and regulations," regardless of the specific label attached to the claim. Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001)." ======================================== ---------------------------------------------------- Designated for electronic publication only UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS NO. 10-1878 ALBERT ROSEN, APPELLANT, V. ERIC K. SHINSEKI, SECRETARY OF VETERANS AFFAIRS, APPELLEE. Before IVERS, Judge. MEMORANDUM DECISION Note: Pursuant to U.S. Vet. App. R. 30 (a), this action may not be cited as precedent. IVERS, Judge: Albert Rosen appeals through counsel a May 18, 2010, Board of Veterans' Appeals (Board) decision that denied entitlement to service connection for bilateral hearing loss and tinnitus. Record (R.) at 3-31. Mr. Rosen's Notice of Appeal was timely and the Court has jurisdiction to review the Board decision pursuant to 38 U.S.C. § 7252(a). Neither party requested oral argument or identified issues that they believe require a precedential decision of the Court. Because the Board's decision is supported by an adequate statement of reasons or bases and is not otherwise clearly erroneous, the Court will affirm the May 2010 Board decision. I. FACTS Mr. Rosen served on active duty in the U.S. Army from September 1948 to August 1949 and from September 1950 to September 1952. R. at 293, 296. In January 1949, while flying during service, Mr. Rosen ruptured his right ear drum. R. at 230-31. Although he suffered a decrease in hearing as a result of that an incident, a September 1950 audiogram was " essentially negative" for hearing loss. R. at 230. At his September 1952 separation examination, Mr. Rosen satisfactorily completed a voice whisper test. R. at 222. Shortly after his separation from service, Mr. Rosen applied for and was granted service connection fortheresidualsofhisrupturedright eardream. SubsequentVAexaminationsconducted in 1960 and 1966 reflected normal hearing. R. at 195, 213. In January2006, Mr. Rosen filed a claim for service connection for bilateral hearing loss and tinnitus. R. at 179. In support of his claim, he submitted private treatment records showing a diagnosis of bilateral hearing loss. R. at 189. He also submitted a medical opinion from Dr. Suresh Raja that Mr. Rosen had hearing loss that is "worse than should be expected for a man his age" and that "it is as likely as not his hearing loss was incurred during his military service." R. at 172. In May 2006, Mr. Rosen was afforded a VA audiological examination. R. at 159. The examiner reviewed Mr. Rosen's claims file and recorded his medical history, including his reports of noise exposure in Korea. After performing audiological testing, the examiner opined that [Mr. Rosen]'s hearing loss and accompanying tinnitus are not as likely to be from noise exposure incurred in military service. Noise is most likely the cause of this hearing loss, but documentation shows normal hearing before discharge and initial testing done as a civilian was also within normal limits. Noise exposure was positive in the veteran's occupation. It is likely that this occupational noise exposure and aging of the mechanism is causal for [his] hearing loss. R. at 161. In a May 2006 rating decision, a VA regional office denied Mr. Rosen's claims for service connection for bilateral hearing loss and tinnitus. Mr. Rosen appealed that decision to the Board. In support of his appeal, he submitted an additional medical opinion from Dr. Raja, stating: Mr. Albert Rosen has been a patient of mine since December 2005. He has a history of military service and is a veteran of the Korean War. He was exposed to prolonged noise without hearing protection and thus has experienced sensorineural hearing loss and tinnitus. It is my opinion that his hearing problem and worsening tinnitus are more likely than not[ ] due to his active military service. R. at 151. In the May 2010 Board decision currently on appeal, the Board found that Mr. Rosen's bilateral hearing loss and tinnitus were not related to his active service. R. at 3-31. 2 II. ANALYSIS A. Secondary Service Connection On appeal, Mr. Rosen argues that the Board clearly erred by not addressing whether his hearing loss is secondary to his service-connected ruptured right ear drum. Appellant's Brief (Br.) at 5-7. In response, the Secretary asserts that the Board did address the theory of secondary service connection in its decision. A disability may be service connected on a secondary basis by demonstrating that the disability is either (1) "proximately due to or the result of [an already] service-connected disease or injury," 38 C.F.R. § 3.310(a) (2011), or (2) aggravated by an already service-connected disease or injury, "whether or not the additional impairment is itself a separate disease or injury caused by the service-connected condition." Allen v. Brown, 7 Vet.App. 439, 448 (1995) (en banc). In addition, "VA must determine all potential claims raised by the evidence, applying all relevant laws and regulations," regardless of the specific label attached to the claim. Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001). As with any finding or conclusion on a material issue of fact or law, the Board is required to provide a written statement of reasons or bases for it determination of a claimant's entitlement to secondary service connection. See 38 U.S.C. § 7104(d)(1). Here, the Court concludes that although the Board did not explicitly discuss the laws and regulations that pertain to secondary service connection, it nonetheless provided an adequate statement of reasons or bases addressing this theory of entitlement. First, the Board acknowledged that Mr. Rosen was service connected for the residuals of a ruptured right ear dream, and therefore analyzed his right and left ear hearing loss separately. The Board stated that "[Mr. Rosen] contends that he developed right ear hearing loss as the result of acoustic trauma, or due to a rupture of the tympanic membrane during service," therefore identifying Mr. Rosen's contention that there was a nexus between his current hearing loss and his service-connected condition. R. at 9. The Board next noted Mr. Rosen's in-service ruptured right ear drum, stating "[i] nsofar as this incident is raised as a cause of [his] right ear hearing loss, the Board concludes that [Mr. Rosen] did experience a ruptured right ear drum during service." R. at 10. The Board then discussed the fact that Mr. Rosen had some hearing loss after the in-service incident, but that later in- service and post service medical records showed normal hearing. The Board stated: "[W]ith evidence of the rupture of the tympanic 3 membrane [ ] during service, the determinative issue in regards to service connection for right ear hearing loss is whether there is a connection between the incident in service and [Mr. Rosen]'s current hearing loss." R. at 12. After discussing the probative value of the various medical opinions of record and concluding that Mr. Rosen did not have the required medical expertise to opine that his current hearing loss was related to his ruptured right ear drum, the Board concluded that Mr. Rosen's right ear hearing loss was not related to his active service, including to his ruptured right ear drum during service. R. at 16. Therefore, with regard to Mr. Rosen's argument that the Board erred when it failed to explicitly address secondary service connection, the Court holds that the Board's statement was adequate to facilitate judicial review. See Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990) (stating that the Board's statement of reasons or bases must be adequate to enable a claimant to understand the precise basis of the Board's decision, as well as to facilitate judicial review). Even assuming that the Board should have cited to 38 C.F.R. § 3.310, and specifically to its requirements, such an error was nonprejudicial because the Board nevertheless made factual findings relevant to a secondary- service-connection analysis. See 38 U.S.C. § 7261(b)(2); Shinseki v. Sanders, 129 S. Ct. 1696, 1708 (2009) (holding that this Court must take due account of the rule of prejudicial error). B. Benefit of the Doubt Mr. Rosen's next argument on appeal is that the Board clearly erred in not affording him the benefit of the doubt in his appeal. Appellant's Br. at 8-10. In response, the Secretaryasserts that the Board properly weighed the evidence of record and determined that the preponderance of the evidence was against Mr. Rosen's claims and, therefore, that the benefit of the doubt was not applicable. "[W]hen there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant." 38 U.S.C. § 5107(b). The benefit of the doubt standard is only applicable when the requirement of an "approximate balance of positive and negative evidence" is met. Ferguson v. Principi, 273 F.3d 1072, 1076 (Fed. Cir. 2001). In the present case, the Court concludes that the Board underwent a detailed balancing of all of the evidence of record. It fully and adequately explained why the negative evidence of record 4 outweighed the evidence that was favorable to Mr. Rosen's claims, including the various medical opinions and lay statements of record. It then concluded that "the preponderance of the evidence is against service connection for right ear hearing loss, [left ear hearing loss, and tinnitus], with no reasonable doubt to resolve in the Veteran's favor." R. at 17, 24, 28. As noted above, the benefit of the doubt rule is not triggered unless there is an "approximate balance of positive and negative evidence." Ferguson, 273 F.3d at 1076. As the Board found that the preponderance of the evidence was against Mr. Rosen's claims and fully explained its conclusions, the benefit of the doubt doctrine had no applicability. The Court therefore concludes that the Board adequately explained its reasoning on this issue. See id. C. Inextricably Intertwined Claims Finally, Mr. Rosen argues that his claim for service connection for tinnitus is inextricably intertwined with his claim for service connection for bilateral hearing loss and, therefore, should his hearing loss claim be remanded, his tinnitus claim should also be remanded. Appellant's Br. at 11- 12. This Court has held that "where a decision on one issue would have a 'significant impact' upon another, and that impact in turn 'could render any review by this Court of the decision [on the claim] meaningless and a waste of judicial resources,' the two claims are inextricably intertwined." Henderson v. West, 12 Vet.App. 11, 20 (1998) (quoting Harris v. Derwinski, 1 Vet.App. 180, 183 (1991), overruled on other grounds by Tyrues v. Shinseki, 23 Vet.App. 166 ( 2009)). Here, for the reasons outlined above, the Court concludes that remand is not necessary for Mr. Rosen's bilateral hearing loss claim and, as a result, his argument that his tinnitus claim is inextricably intertwined with that claim is rendered moot. III. CONCLUSION Upon consideration of the foregoing, the May 18, 2010, Board decision is AFFIRMED. DATED: November 22, 2011 5 Copies to: Allan T. Fenley, Esq. VA General Counsel (027) 6