Saturday, December 3, 2011
Single Judge Application, Savage v. Shinseki, 24 Vet.App. 259, 260 (2011), Duty to Return for Clarification Unclear or Insufficient Examination reports
Excerpt from decision below:
"Thus, when the Board finds a VA examination report to be unclear, it ordinarily should remand the matter to the RO for clarification from the examiner. See Bowling v. Principi, 15 Vet.App. 1, 12 (2001) (holding that the
Board has a duty, under 38 C.F.R. § 19.9(a), to remand a case "[i]f further evidence or clarification of the evidence or correction of a procedural defect is essential for a proper appellate decision"); see also Savage v. Shinseki, 24 Vet.App. 259, 260 (2011) ("in some circumstances, VA does have a duty to return for clarification unclear or insufficient private examination reports . . . , or the Board must explain why such clarification is not necessary."). The Board in the instant case erred in rejecting the favorable medical evidence of record without complying with its duty to assist by seeking further clarification from the examiners. R. at 14. Accordingly, remand is required. See Savage and Bowling, both supra."
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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 10-3957
BARRY A. KRUPKIN, 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, Barry A. Krupkin, appeals from the October 5,
2010,
decision of the Board of Veterans' Appeals (Board) that denied entitlement
to an increased disability
rating in excess of 10% for residuals of shell fragment wounds (SFWs) to
the abdomen with retained
foreign bodies (RFB). 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). This appeal is timelyand the Court has jurisdiction pursuant to
38 U.S.C. §§ 7252(a) and
7266(a). For the reasons that follow, the Court will vacate the October
2010 Board decision to the
extent that it denied entitlement to an increased disability rating and
remand that matter.
In the same decision, the Board also denied entitlement to service
connection for Kaposi's
sarcoma, claimed as cancer, and entitlement to an effective date prior to
December 10, 1999, for the
grant of service connection for type II diabetes mellitus. In a separate
Board decision also dated
October5, 2010, the Board denied the payment or reimbursement of
unauthorized medicalexpenses
incurred at a private medical facility on May 11, 2007. The appellant
raises no argument with
respect to the Board's denial of his claims for service connection for
Kaposi's sarcoma, entitlement
to an effective date prior to December 10, 1999, for the grant of service
connection for diabetes
mellitus, or entitlement to payment or reimbursement of unauthorized
medical expenses; these
claims are therefore deemed abandoned. See Ford v. Gober, 10 Vet.App. 531,
535 (1997) (holding
that claims not argued on appeal are deemed abandoned); Bucklinger v.
Brown, 5 Vet.App. 435, 436
(1993).
I. FACTS
The appellant served on active duty in the U.S. Army from July 1968 to
February 1970,
including service in Vietnam. Record (R.) at 358. In May 1970, the
regional office (RO) granted
service connection for anxiety reaction and for multiple SFWs, including
an SFW to the abdomen
with laceration of the liver, status post operation, and an SFW to the
abdomen with RFB. R. at
4785-86. The RO assigned a 100% disability rating for the convalescent
period. Id. In August
1970, the RO assigned a 10% rating for the appellant's SFW to the abdomen
with laceration of the
liver and a separate 10% rating for the appellant's SFW to the abdomen
with RFB. R. at 4754-56.
In April 1984, the RO determined that the most recent VA examination
failed to show
objective findings to support a compensable rating for superficial and
healed SFWs, including those
to the abdomen, and reduced the disability ratings for all of the
appellant's service-connected SFWs
to noncompensable. R. at 4554-57; see also R. at 4559-68 (February 1984 VA
examination report).
The appellant filed a claim for increased disability ratings for his
service-connected conditions (see
R. at 4282, 4319), and in November 1988, the RO increased the ratings for
the appellant's SFW to
the abdomen with laceration of the liver to 10% and for his SFW to the
abdomen with RFB to 10%.
R. at 4284.
In July 2007, the appellant filed a claim seeking increased ratings for
his service-connected
SFWs to the abdomen and left leg. R. at 1356-62. He stated that he
continued to suffer severe pain
from his injuries and that he recently underwent surgery to remove
shrapnel from the left and right
sides of his abdomen. R. at 1356, 1358. He submitted surgical and
pathology reports from Dr.
David Herf, which reflected that the RFBs to the appellant's abdomen and
left leg had become
"increasingly tender to touch and very superficial." R. at 1338. The
pathology report reflected that
foreign bodies were removed from the appellant's right side abdomen and
left upper abdomen. R. at
1340.
2
In August 2007, the appellant underwent a VA examination conducted by Dr.
Sanford
Epstein. R. at 1303-07. The appellant reported constant, severe pain. R.
at 1304. He also reported
constant sweating, nausea four times a week, and periodic emesis. Id. Dr.
Epstein noted a midline
abdominal scar that was 27 cm long by 4 cm wide and was superficial,
linear, flat, and nontender to
palpation. R. at 1305. He also noted an 18 cm by 1 cm horizontal scar that
traversed the lower third
of the midline abdominal scar. Id. The VA examiner described this scar as
linear, flat, superficial,
and also nontender to palpation. Id. He further noted that the appellant
was wheelchair bound and
morbidly obese, "easily bends over from the waist down, except for being
limited by his habitus."
R. at 1304, 1306. Dr. Epstein specifically stated that the appellant could
not get into examination
table position and that he "would have to speculate as to whether or not
palpation of the abdomen
reveals any tenderness, masses or organomegaly because [the appellant] is
not able to lie on the
examination table." R. at 1305. An x-ray of the appellant's abdomen
revealed "[m]ultiple irregular
small metallic densities overlying the abdomen . . . which maybe related
to prior ballistic injury" and
"[i]rregular linear densities overlying the abdomen and pelvis, [which]
are nonspecific and may be
surgical." R. at 1306. Dr. Epstein rendered a diagnosis of a history of
SFW to the abdomen with
RFB and laceration to the liver, postoperative with scarring. R. at 1306.
In September 2008, the RO denied the appellant's claim for an increased
rating for his
service-connected residuals of an SFW to the abdomen. See R. at 473, 647.
The appellant perfected
an appeal. R. at 442-72, 647. In his Notice of Disagreement, the appellant
argued that the RO failed
to consider the massive scar tissue on his stomach. R. at 647. In
particular, the appellant alleged that
a 14-inch long horizontal scar on his abdomen stemmed from a 1991
operation and had resulted in
additional nerve and muscle damage that caused constant pain and
disfigurement and restricted his
ability to bend his torso forward. Id. In his Substantive Appeal, the
appellant noted that Dr. James
Moody had surgically removed an incarcerated hernia from his stomach in
October 1991 at the
Destin Hospital. R. at 442. The appellant also submitted a statement from
Dr. Moody dated in June
1998, in which Dr. Moody stated that he had surgically repaired an
incarcerated incisional hernia in
1991. R. at 446. Dr. Moody opined that the appellant's incarcerated hernia
was due to the deep
penetrating injury that the appellant sustained in Vietnam. Id. He further
stated that the appellant
subsequently had another incisional hernia that required placement of mesh.
Id.
3
The appellant also submitted an inpatient record dated in October 1991
from the Humana
Hospital in Destin, Florida, which revealed that, after the appellant had
presented with right-side
abdominal pain, an ultrasound showed findings that were consistent with a
large ventral hernia
demonstrating incarcerated tissue from within the abdomen. Id. The
attending physician, Dr.
Causton, stated that he obtained a surgical consult from Dr. Moody, and
that the appellant was
admitted to the hospital for surgery. Id. In addition, the appellant
submitted a May 1984 medical
evaluation from Dr. MurrayTodd. R. at 464-66. In pertinent part, Dr. Todd
diagnosed the appellant
with muscle tissue damage caused by deep penetrating wounds of the torso.
R. at 466. A private
treatment record from Dr. Herf reflected that the appellant was admitted
to the North Okaloosa
Medical Center in April 1996 for a ventral hernia repair. R. at 466-68. On
October 5, 2010, the
Board issued its decision in which it denied entitlement to an increased
rating in excess of 10% for
the appellant's SFW to the abdomen with RFBs. R. at 3-21. This appeal
followed.
II. ANALYSIS
A Board determination of the appropriate degree of disability under the
rating code is a
finding of fact subject to the "clearly erroneous" standard of review. 38
U.S.C. § 7261(a)(4); see
Smallwood v. Brown, 10 Vet.App. 93, 97 (1997). "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 in
the first instance. See id.
The Board must consider all evidence of record and discuss all "
potentially applicable"
provisions of law and regulation. 38 U.S .C. § 7104(a); Schafrath v.
Derwinski, 1 Vet.App. 589,
592-93 (1991). The Board's decision must include an adequate statement of
the reasons or bases for
its findings and conclusions on all material issues of fact and law
presented on the record; that
statement must be adequate to enable an appellant to understand the
precise basis for the Board's
decision, as well as to facilitate informed review in this Court. 38 U.S.C.
§ 7104(d)(1); Allday v.
Brown, 7 Vet.App. 517, 527 (1995); Gilbert v. Derwinski, 1 Vet.App. 49, 56-
57 (1990). To comply
4
with this requirement, the Board must analyze the credibility and
probative value of the evidence,
account for the evidence it finds persuasive or unpersuasive, and provide
the reasons for its rejection
of any material evidence favorable to the claimant. Caluza v. Brown, 7 Vet.
App. 498, 506 (1995),
aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table).
The appellant argues that his abdomen injury was "further aggravated over
the years by the
additional loss of nerve and muscle tissue damages and greatly further
disfigured [his] body due to
repeated operations." Appellant's Brief (Br.) at 2. The appellant argues
that the Board failed to
consider that in 1991 he underwent a "life saving operation" caused by his
original shrapnel injury.
Appellant's Br. at 3. The appellantfurtheralleged that Dr. Joseph
Monastero, his VA physician from
Eglin Air Force Base, had to call home health nurses to provide wound care
because the mesh pushes
through his stomach. Appellant's Br. at 4. The appellant argues for the
application of the benefit of
the doubt and asks the Court to rule in his favor and find that he is
entitled to a higher rating for his
abdomen. Appellant's Br. at 6. The Secretary argues for affirmance of the
Board's decision.
Secretary's Br. at 4-9.
The Secretaryhas filed a separate motion to strike an attachment to the
appellant's replybrief
and arguments based thereon as the document attached by the appellant
contains a handwritten
attestation that postdates the Board's October 5, 2010, decision.
Secretary's Motion at 1-2. The
appellant has filed a written opposition to the Secretary's motion. The
motion to strike the
attachment to the appellant's reply brief will be granted as the Secretary
correctly argues that such
a document may not be considered by the Court as it was not contained in
the record of proceedings
before the Board. Secretary's Motion at 1-2; see 38 U.S.C. § 7252(b) (the
Court is prohibited from
considering anymaterial that was not contained in the "record before the
Secretaryand the Board.");
Bonhomme v. Nicholson, 21 Vet.App. 40, 43-45 (2007); Rogozinski v.
Derwinski, 1 Vet.App. 19,
20 (1990).
The Board purported to limit its decision in the instant case to the
adjudication of the
appellant's claim for an increased rating for residuals of an SFW to the
abdomen with RFB. R. at
14. The Board expressly found that the appellant's claim for an increased
rating for residuals of an
SFW to the abdomen with laceration of the liver was not on appeal. Id. The
Board specifically
found that Dr. Moody's 1998 letter related to "a second condition for
which the [appellant is service[
5
]connected: his residuals of an [SFW] to the abdomen with laceration to
the liver." Id. The Board
determined that the appellant's "claim here is not seeking an increase for
those deep penetrating
wounds that he suffered; instead, this claim is focused on [his] other,
more superficial wounds to the
abdomen for which he obtained a separate rating." Id.
While the appellant did not explicitly raise the issue of entitlement to
an increased rating for
residuals of an SFW to the abdomen with laceration of the liver, the
appellant, as a lay person, is not
qualified to delineate the precise boundaries of his condition or his
claim. See Jandreau v.
Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). An appellant's claim
is not narrowly limited
to the diagnosis he puts down, but encompasses additional disabilities
reasonably raised by "the
claimant's description of the claim; the symptoms the claimant describes;
and the information the
claimant submits or that the Secretary obtains in support of the claim."
Clemons v. Shinseki,
23 Vet.App. 1, 5 (2009). The Court has jurisdiction over "any matters that
were reasonably raised
below that the Board should have decided, with regard to a claim properly
before the Court, but
failed to do so." Id. at 3.
Because this appellant cannot be expected to understand the technical
differences between
symptoms of residuals of an SFW to the abdomen with a laceration of the
liver and symptoms of
residuals of an SFW to the abdomen with RFB, the Board erred in limiting
his claim for an increased
rating for residuals of SFWs to the abdomen to a claim for an increased
rating for residuals that were
due to RFBs. R. at 14. The appellant's claim necessarilyincluded
anyrelated disabilityraised during
the development of that claim, as he is seeking increased compensation for
his symptoms regardless
of diagnosis. See Clemons, 23 Vet.App. at 3. Even if the claim for an
increased rating for SFWs to
the abdomen with laceration of the liver was never appealed to the Board,
the findings made in that
claim and its outcome may well be relevant to this appeal. Accordingly,
the Board's failure to
address the appellant's entitlement to an increased rating for his SFW to
the abdomenwith laceration
of the liver frustrates judicial review and warrants remand. See Allday,
supra; see also Clemons,
supra (Court has jurisdiction to remand anymatters reasonablyraised below
that Board should have
but failed to decide).
The Secretary "shall make reasonable efforts to assist a claimant in
obtaining evidence
necessary to substantiate the claimant's claim for a benefit under a law
administered by the
6
Secretary." 38 U.S.C. § 5103A(a)(1). The Secretary's duty to assist a
claimant includes, among
other things, "providing a medical examination or obtaining a medical
opinion when such an
examination or opinion is necessaryto make a decision on the claim." 38 U.
S.C. § 5103A(d)(1); see
38 C.F.R. § 3.159(c) (2011). Further, 38 C.F.R. § 4.2 requires that,
once obtained, if an examination
report does not contain sufficient detail, "it is incumbent upon the
rating board to return the report
as inadequate for evaluation purposes." 38 C.F.R. § 4.2 (2011). The Court
reviews the Board's
determination that VA satisfied its duty to assist under the "clearly
erroneous" standard of review.
Nolen v. Gober, 14 Vet.App. 183, 184 (2000).
Here, the Board rejected VA and private medical evidence that indicated
that the appellant
underwent multiple postservice abdominal surgeries related to his SFWs
because the Board found
that the appellant had "fabricated evidence in an effort to support his
claim." R. at 14. The Board
offered an inadequate statement of reasons or bases for this conclusion.
Id.; see Allday and Gilbert,
both supra. Moreover, pursuant to 38 C.F.R. § 19.9(a) (2011), "[i]f
further . . . clarification of the
evidence . . . is essential for a proper appellate decision, [the Board]
shall remand the case to the
agency of original jurisdiction, specifying the action to be undertaken."
Id. Thus, when the Board
finds a VA examination report to be unclear, it ordinarily should remand
the matter to the RO for
clarification from the examiner. See Bowling v. Principi, 15 Vet.App. 1,
12 (2001) (holding that the
Board has a duty, under 38 C.F.R. § 19.9(a), to remand a case "[i]f
further evidence or clarification
of the evidence or correction of a procedural defect is essential for a
proper appellate decision"); see
also Previous DocumentSavageNext Hit v. Shinseki, 24 Vet.App. 259, 260 (2011) ("in some
circumstances, VA does have a duty
to return for clarification unclear or insufficient private examination
reports . . . , or the Board must
explain why such clarification is not necessary."). The Board in the
instant case erred in rejecting
the favorable medical evidence of record without complying with its dutyto
assist byseekingfurther
clarification from the examiners. R. at 14. Accordingly, remand is
required. See Previous HitSavageNext Document and
Bowling, both supra.
To the extent that the appellant argues for reversal of the Board's
decision, his argument is
not persuasive. Appellant's Br. at 6. 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
7
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.
Tucker v. West, 11 Vet.App.369, 374 (1998); 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 therebypreventing properreview bythe Court"). Here, the
Court is precluded from
reviewing the Board's decision due to its failure to address the
appellant's entire claim for an
increased rating for SFWs to the abdomen, as well as VA's failure to fully
comply with its duty to assist. Thus, reversal is not the proper remedy; the Court will vacate the
decision and remand the matter on appeal for readjudication.
In light of the need to remand the appellant's claim for an increased rating for residuals of SFWs to his abdomen based on the foregoing errors, his remaining assertions of error are moot. 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, and the Board must consider, any additional evidence and argument in support of the matter remanded. 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.
III. CONCLUSION
Upon consideration of the foregoing analysis, the record on appeal,and the parties' pleadings, the Secretary’s motion to strike the attachment to the appellant's reply brief is granted and the Board's October 5, 2010, decision is VACATED to the extent that it denied entitlement to an increased disability rating and that matter is REMANDED for proceedings consistent with the foregoing.
DATED: November 30, 2011
Copies to:
Barry A. Krupkin
VA General Counsel (027)
8
Single Judge Application, No Categorical Requirement of Competent Medical Evidence,Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Kahana v. Shinseki, 24 Vet.App. 428, 435 (2011)
Excerpt from decision below:
"The Board further stated: "Where a determinative issue involves medical causation or a medical diagnosis, competent medical evidence is required." Id. Thus, the Board rejected the appellant's lay assertions that his chronic bronchial condition increased in severity during service because he failed to demonstrate that he had "the requisite competence to render such an opinion." R. at 11. Contrary to the Board's statement,there is no categorical requirement of"'competent medical evidence . . . [when] the determinative issue involves either medical etiology or a medical diagnosis.'" Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (quoting Jandreau v.
1
The Secretary has not responded to this argument.
7
Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007)); see also Kahana v. Shinseki, 24 Vet.App. 428, 435 (2011). Rather, the Board must assess the lay evidence and determine whether the disability claimed is of the type for which lay evidence is competent. See Jandreau, 492 F.3d at1377, cited in Robinson v. Shinseki, 312 F. App'x 336, 339, No. 2008-7096, 2009 WL 524737, at *2-3 (Fed. Cir. Mar. 3, 2009). If the disability is of the type for which lay evidence is competent, in making its determination regarding service connection, the Board, after making a credibility determination regarding the lay evidence, must weigh that evidence against the other evidence of record. See Buchanan v. Nicholson, 451 F.3d 1331, 1334-37 (Fed. Cir. 2006). In so doing, the Board is required to provide the appellant and the Court "a written statement of the reasons or bases for its findings and conclusions," which must include "the reasons for its rejection of any material evidence favorable to the veteran." Meyer v. Brown, 9 Vet.App. 425, 433 (1996); see also Gilbert v. Derwinski, 1 Vet.App. 49, 56-57 (1990). In this case, the Board concluded that the appellant was not competent to opine whether his condition increased in severity during his period of ACDUTRA without proffering any reasons or bases for its conclusion. Therefore, on remand, the Board must reassess the appellant's lay evidence and provide an adequate statement of reasons or bases for its findings."
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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 10-1641
HARRY E. RICHARDSON, 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 pro se appellant, Harry E. Richardson, appeals an
April 13, 2010,
Board of Veterans' Appeals (Board) decision that denied entitlement to
service connection for
pneumothorax, claimed as a chronic bronchial condition. Record of
Proceedings (R.) at 3-15. This
appeal is timely, and the Court has jurisdiction to review the Board's
decision pursuant to 38 U.S.C.
§§ 7252(a) and 7266(a). Single-judge disposition is appropriate. See
Frankel v. Derwinski,
1 Vet.App. 23, 25-26 (1990). Because the Board failed to provide an
adequate statement of reasons
or bases for its finding that VA satisfied its duty to assist, the Court
will vacate the Board's April 13,
2010, decision and remand the matter for further proceedings consistent
with this decision.
I. BACKGROUND
The appellant served on active duty for training (ACDUTRA) in the
Tennessee Army
National Guard from July 1961 to December 1961. R. at 1529. The appellant
was honorably
discharged on June 19, 1963, as a result of "physical disqualification." R.
at 79, 1525. His
enlistment examination does not reflect any defects or conditions related
to his lungs, and the
appellant reported that he was "in good health." R. at 1560-61. His
service medical records (SMRs)
indicate that he was admitted to the Ireland Army Hospital on August 18,
1961, "because of right
sided chest pain of one week's duration." R. at 53. The narrative summary
indicates that the
appellant "came to the hospital because he felt like he was having another
pneumothorax" and
reported that "he had had a pneomothorax in 1959[,] which was treated by
closed thoracotomy." Id.
(emphasis added). Theappellantwasinitially"treatedconservativelywith
bedrestandobservation,"
followed by "approximately 200 cc air . . . aspirated by needle." R. at 54.
After serial x-rays
revealed an increased pneumothorax, a closed tube thoracotomywas performed
on August 25, 1961.
Id. Two days later, the tube was changed as a result of "poor positioning."
Id. On September 2,
1961, the chest tube was removed and a physical examination revealed that
the "chest was clear
throughout to percussion and auscultation." Id. On September 8, 1961, the
appellant was placed on
10 days' convalescent leave. Id.
Theappellant's
posthospitalizationrecordsindicatethathecomplainedofrecurrent chestpain
and was placed on "limited duty, no prolonged standing or marching." R. at
67; see also R. at 59.
An October 2, 1961, surgical clinic record recorded the appellant's
complaint of right anterior chest
pain when he was performing physical activity. R. at 59. The clinician
noted that the chest was clear
to percussion and auscultation and that there was no evidence of any
pulmonary disease. Id. The
clinician also noted "post-op[erative] weakness" and suggested that the
appellant "stop smoking."
Id. The appellant was returned to duty. Id.
A March 1962 medical record indicates that Dr. Carter, a private physician,
treated the
appellant for bronchitis and performed a "bronchoscopy with aspiration
biopsy." R. at 77. The
appellant's postservice medical records furtherindicate that he was
treated for recurrent spontaneous
pneumothorax in 1972 and 1975. R. at 190, 205, 237-38, 1348. In September
1975, the appellant's
physician, a thoracic and cardiac surgeon, opined that the appellant was
totally and permanently
disabled as a result of "right and left thoracotomy, wedge resection of
right and left lungs, and
pleurectomyforrecurrentpneumothorax causedbymultiplecysticdiseaseofboth
lungsandfrequent
episodes of spontaneous pneuomothorax." R. at 215; see also R. at 1496.
The appellant submitted an application for VA compensation benefits in
September 1974 for
a "collapsed lung," which the regional office (RO) denied in January1975.
R. at 1492-93, 1521-24;
see also R. at 1491. He attempted to reopen his claim in November 1975,
but was notified in
2
January 1976 that his "claim remain[ed] in disallowed status" because the
evidence failed to show
that his lung condition was "incurred in or aggravated by" military
service. R. at 1470, 1472-75.
In August 2004, the appellant filed a request to reopen a claim for
entitlement to service
connection for a "bronchial condition." R. at 1367. On January 13, 2005,
the RO denied reopening
the claim for service connection for pneumothorax, claimed as a bronchial
condition, because the
evidence submitted, although new, was not material. R. at 1097-1101. In a
December 4, 2008,
decision, the Board remanded the appellant's claim to the RO because his "
claims file [did] not . . .
contain any records, medical or otherwise, relating to prior VA claims or
rating decisions." R. at
139. The Board noted that "preliminary attempts by the RO to locate these
documents from the
Records Management Center (RMC) [had] been fruitless[,]" and that VA has a "
'heightened' duty
to assist" in cases such a this. Id. The Board noted that the appellant's
contentions were twofold:
First, "that his lung collapse was caused by arduous physical training
during his period of
ACDUTRA." R. at 140. Second, that "the 7 daydelayin inserting the chest
tube on or about August
25, 1961, caused permanent damage to his lungs, thereby aggravating his
bronchial condition to the
point of being physically disqualified from the [Tennessee Army National
Guard]." Id. The Board
noted thattheappellantwasdischargedfromservicewith afindingof pneumothorax,
which "existed
prior to service," and that the question was whether his condition
underwent a permanent increase
in severity during his period of ACDUTRA. Id.
Significantly, the Board also noted that the appellant's claims file was
previously misplaced
and that "[a]lthough the claims file . . . is classified as 'rebuilt',
even the most cursory of inspections
would reveal that the available folder is incomplete, as a plethora of
critical evidence is missing."
R. at 141. The Board remanded the claim with directions that the RO "
endeavor to conduct a search
for the veteran's missing claims file" and that all "requests, actions,
and responses be documented
for future review." R. at 142. The Board further instructed the RO to
schedule the appellant for a
medicalexamination "toassessthecurrentnatureandetiologyof
anypulmonary/bronchialdisorders
found on examination." R. at 142-43. The examiner was directed to provide
the following
information: (1) "Discuss the history, onset, and etiology of the
veteran's pulmonary/bronchial
condition, to include multiple episodes of spontaneous pneumothorax"; (2) "
Is it as likely as not . . .
that the pulmonary/bronchial condition shown prior to service underwent a
permanent increase in
3
underlying pathology, as opposed to a mere temporary increase in
symptomatology, during or as a
result of . . . service?"; (3) "If so, was the permanent increase in the
underlying pathology due to
normal progression of the disorder?"; and (4) "Address and discuss the
clinical records from August
1961 and September 1961, which document hospitalization at Ireland Army
Hospital, Fort Knox,
Kentucky, for treatment of spontaneous pneumothorax." R. at 143.
The appellant underwent a compensation and pension examination on
September 3, 2009.
R. at 436-41. Upon review of the appellant's claims file and a physical
examination, the examiner
opined that the appellant had a preexisting disorder, primary spontaneous
pneumothorax, which is
"often characterized byrecurrences especially with continued risk factors"
such as smoking and that
"under these circumstances (and more likely than not) this case followed a
course that can[]not be
considered unexpected." R. at 440. Theexaminer also opined that it was "
more likelythan not [that]
the management of [the appellant's] pneumothorax during his active tour
did NOT contribute to any
subsequent deterioration in his condition." Id. (emphasis in original).
With regard to the question
whether the appellant's condition was aggravated during his ACDUTRA, the
examiner stated that
it was "more likely than not – (and subjective complaints not[]
withstanding) that his preexisting
condition . . . did NOT undergo a 'permanent increase in underlying
pathology' during that tour."
Id. (emphasis in original). Finally, the examiner opined that it was more
likely than not that the
"recurrent infections . . . [,] bronchiectasis[,] and possibly some
portion of the restrictive defect
currently noted on [pulmonary function tests] are related to continued
smoking and the events that
occur[r]ed over a decade (1972) after his release[,] including surgeries
and as[s]ociated sequelea as
well as other possible co[-]morbid disease (cardiac)." Id.
The Board issued the decision here on appeal on April 13, 2010. R. at 3-15.
In its decision,
the Board denied entitlement to service connection for pneumothorax,
claimed as a bronchial
condition. The Board concluded that the appellant had a primaryspontaneous
pneumothorax before
his entryinto ACDUTRA and that it was not likely aggravated during his
period of ACDUTRA. R.
at 5. With regard to VA's fulfillment of its statutory duty to assist, the
Board stated that
[a]s a result of the Board's December 2008 [r]emand, the claims file has
been
substantially rebuilt, although information in the claims file indicates
that private
medical records are still missing from several private hospitals,
including reports
dated in the 1960s after service. VA has done everything reasonably
possible to
4
assist the [v]eteran with respect to his claim for benefits in accordance
with
38 U.S.C. § 5103A. . . . Service treatment records have been associated
with the
claims file. All identified and available private treatment records have
been secured,
as well as medical records associated with the [v]eteran's claim for
disabilitybenefits
from the Social Security Administration. The [v]eteran also has been
medically
evaluated in conjunction with his claim . . . [and t]he Board finds that
the available
medicalevidenceis sufficient foranadequatedetermination
ofhisserviceconnection
claim without causing any prejudice to the [v]eteran.
R. at 6.
II. ANALYSIS
On appeal, the appellant argues that (1) VA failed to fulfill its duty to
assist by failing to
obtain a communication between Dr. John Paul Carter and "proper military
authority," which
preceded his discharge by physical disqualification; (2) the Board failed
to consider lay testimony;
(3) the Board failed to afford him the benefit of the doubt; and (4) "
there is no medical evidence to
concludethat smoking was [the] actual causeor even instrumental to [his]
lung condition." Informal
Brief (Br.) at 1-2. The Secretary admittedly does not respond to or
address the arguments raised by
the appellant. Secretary's Br. at 11. Rather, the Secretaryargues two
alternative bases for affirming
the Board's decision: (1) The presumptions of soundness and aggravation
have been rebutted, or (2)
the Board improperly afforded the appellant the presumption of aggravation,
which does not apply
to the appellant's claim that is based on a period of ACDUTRA. Id. at 8-13 (
citing Donnellan v.
Shinseki, 24 Vet.App. 167 (2010) and Smith v. Shinseki, 24 Vet.App. 40 (
2010)). With regard to the
latter argument, the Secretary asserts that the appellant has not carried
his burden of demonstrating
that his condition was incurred during, or aggravated by, his period of
ACDUTRA. Secretary's Br.
at 11-13.
A. VA's Duty To Assist
The Secretary has a duty to assist claimants in developing their claims.
38 U.S.C. § 5103A.
The duty to assist includes the duty to make "reasonable efforts to obtain
relevant records," as long
as the claimant "adequately identifies" those records to the Secretary and
authorizes the Secretary
to obtain them. 38 U.S.C. § 5103A(b)(1); see also Loving v. Nicholson, 19
Vet.App. 96, 102 (2005).
If the records aremaintained bya Federal department or agency, "efforts to
obtain those records shall
5
continue until the records are obtained unless it is reasonably certain
that such records do not exist
or that further efforts to obtain those records would be futile." 38 U.S.C.
§ 5103A(b)(3); 38 C.F.R.
§ 3.159(e) (2011). If the Secretary is unable to obtain those records
after making reasonable efforts
to do so, the Secretarymust provide notice of that fact to the claimant.
See 38 U.S.C. § 5103A(b)(2);
38 C.F.R. § 3.159(e). The Board's determination that VA has satisfied the
duty to assist is reviewed
under the "clearly erroneous" standard of review. Hyatt v. Nicholson, 21
Vet.App. 390, 395 (2007).
Moreover, when a veteran's records are presumed lost or destroyed, the
Board is "under a
heightened duty to consider and discuss the evidence of record and supply
well-reasoned bases for
its decision as a consequence of the appellant's missing [records]."
Washington v. Nicholson,
19 Vet.App. 362, 371 (2005); see also Russo v. Brown, 9 Vet.App. 46, 51 (
1996) (holding that the
Court's caselaw establishes a "heightened duty" to assist when the
appellant's medical records have
been lost or destroyed); Cuevas v. Principi, 3 Vet.App. 542, 548 (1992) (
holding that the Board's
dutyto assist a claimant in developinghis claim is heightened in cases in
which the appellant's SMRs
are lost or destroyed).
In the decision here on appeal, the Board determined that VA's duty to
assist had been met.
R. at 6. However, the appellant appears to argue that VA did not satisfy
its duty to assist because
all efforts to obtain a communication between his physician, Dr. John Paul
Carter, and "proper
military authority" have been ignored. Informal Br. at 1. A review of the
record reveals that it
contains VA Form 21-4142, Authorization and Consent to Release Information
to [VA], on which
the appellant requested that VA obtain a letter from his physician, Dr.
John Paul Carter, to the
Department of the Army concerning the medical reasons for his physical
disqualification discharge
on June 19, 1963. R. at 497. This document bears the resemblance of a
stamp noting VA's receipt
of the document; however, the date it was received is not legible. Id.
As argued by the appellant, the record on appeal does not contain the
aforementioned letter.
Although the Board discussed various actions taken by the RO to rebuild
the claims file and
concluded that "all identified and available private treatment records
have been secured," the Board
did not discuss in its statement of reasons or bases what efforts, if any,
were made to locate the
document. R. at 6. However, in its discussion of the evidence, the Board
noted that the appellant
submitted a statement in January 2009, in which the appellant asserted
that "Dr. [Carter], his
6
cardiovascular and thoracic surgeon, was convinced that the needle
aspiration of his lung while at
the Army hospital and the delay of using a closed chest tube procedure
caused permanent damage
to his lung." R. at 11. The Board further noted that the appellant
contended that "Dr. [Carter]
contacted National Guard authorities, and that is whyhe was discharged for
physical reasons in June
1963." Id.
Given that the appellant's claim appears to hinge on whether his bronchial
condition
underwent a permanent increase in severity during his period of ACDUTRA,
and the Board failed
to discuss whether VA's duty to assist required it to undertake a search
for this potentially favorable
evidence, the Court will remand the matter. The Board's failure to address
what efforts, if any, were
made to search for this particular document or whether the document was
adequately identified so
as to trigger VA's duty to conduct a search, renders its statement of
reasons or bases for finding that
VA satisfied its duty to assist inadequate to facilitate review. See 38 U.
S.C. § 7104(d)(1); see also
Washington, supra; Tucker v. West, 11 Vet.App. 369, 374 (1998) (holding
that remand is the
appropriate remedy "where the Board has incorrectly applied the law,
failed to provide an adequate
statement of reasons or bases for its determinations, or where the record
is otherwise inadequate").
B. Evaluation of the Appellant's Lay Evidence
The appellant also argues that the Board failed to appropriately consider
his lay testimony.1 Informal Br. at 1. The Court agrees. A review of the Board's decision shows that the Board found that "[t]o the extent that the [v]eteran is able to observe continuity of symptomatology, his opinion is outweighed by the competent medical evidence." R. at 14. The Board further stated: "Where a determinative issue involves medical causation or a medical diagnosis, competent medical evidence is required." Id. Thus, the Board rejected the appellant's lay assertions that his chronic bronchial condition increased in severity during service because he failed to demonstrate that he had "the requisite competence to render such an opinion." R. at 11.
Contrary to the Board's statement,there is no categorical requirement of"
'competent medical evidence . . . [when] the determinative issue involves either medical etiology or a medical diagnosis.'" Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (quoting Jandreau v.
1
The Secretary has not responded to this argument.
7
Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007)); see also KahanaNext Document v. Shinseki, 24 Vet.App. 428, 435 (2011). Rather, the Board must assess the lay evidence and determine whether the disability claimed is of the type for which lay evidence is competent. See Jandreau, 492 F.3d at1377, cited in Robinson v. Shinseki, 312 F. App'x 336, 339, No. 2008-7096, 2009 WL 524737, at *2-3 (Fed. Cir. Mar. 3, 2009). If the disability is of the type for which lay evidence is
competent, in making its determination regarding service connection, the Board, after making a credibility determination regarding the lay evidence, must weigh that evidence against the other evidence of record. See Buchanan v. Nicholson, 451 F.3d 1331, 1334-37 (Fed. Cir. 2006). In so doing, the Board is required to provide the appellant and the Court "a written statement of the reasons or bases for its findings
and conclusions," which must include "the reasons for its rejection of any
material evidence favorable to the veteran." Meyer v. Brown, 9 Vet.App. 425, 433 (1996); see also Gilbert v. Derwinski, 1 Vet.App. 49, 56-57 (1990). In this case, the Board concluded that the appellant was not competent to opine whether his condition increased in severity during his period of ACDUTRA without proffering any reasons or bases for its conclusion. Therefore, on remand, the Board must reassess the appellant's lay evidence and provide an adequate statement of reasons or bases for its findings.
C. The Appellant's Remaining Arguments
Given the above disposition, the Court will not at this time address the
remaining arguments
and issues raised by the appellant. See Best v. Principi, 15 Vet.App. 18,
20 (2001). "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." Id. In pursuing his case on remand, the appellant is free to submit
additional evidence and
argument on the remanded matters, and the Board is required to consider
anysuch relevant evidence
and argument. See Kay v. Principi, 16 Vet.App. 529, 534 (2002) (stating
that, on remand, the Board
must consider additional evidence and argument in assessing entitlement to
benefit sought);
Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999) (per curiam order).
The Court has held that
"[a] remand is meant to entail a critical examination of the justification
for the decision." Fletcher
v. Derwinski, 1 Vet.App. 394, 397 (1991). The Board must proceed
expeditiously, in accordance
8
with 38 U.S.C. § 7112 (requiring Secretary to provide for "expeditious
treatment" of claims remanded by the Court).
III. CONCLUSION
After consideration of the appellant's and the Secretary's pleadings, and
a review of the
record, the Board's April 13, 2010, decision is VACATED and the matter is
REMANDED to the
Board for further proceedings consistent with this decision.
DATED: November 29, 2011
Copies to:
Harry E. Richardson
VA General Counsel (027)
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