Saturday, April 28, 2012
VAOIG Report 12-00900-168, VA Mental Health Appointment Times Not Accurate
Full article at: Report: VA overstates how fast it provides mental health care to veterans
By Steve Vogel,
The Department of Veterans Affairs has greatly overstated how quickly it provides mental-health care for veterans, according to an inspector general’s report released Monday.
Contrary to VA claims that 95 percent of first-time patients seeking mental-health care in 2011 received an evaluation within the department’s goal of 14 days, just under half were seen in that time frame, the report found. A majority waited about 50 days on average for a full evaluation.
A similar claim that 95 percent of new patients in 2011 got appointments to begin treatment within 14 days of their desired date was also far off the mark; the report from the VA Office of Inspector General estimated that 64 percent of patients did; the rest waited on average 40 days.
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VAOIG Report: Review of Veterans’ Access to Mental Health Care
Report Link: http://www.va.gov/oig/pubs/VAOIG-12-00900-168.pdf
Report Number: 12-00900-168
Summary: Congress and the VA Secretary requested the OIG determine how accurately the Veterans Health Administration records wait times for mental health services for both new patients and established patients visits and if the wait time data VA collects is an accurate depiction of the veteran’s ability to access those services. VHA policy requires all first-time patients referred to or requesting mental health services receive an initial evaluation within 24 hours and a more comprehensive diagnostic and treatment planning evaluation within 14 days. The primary goal of the initial 24-hour evaluation is to identify patients with urgent care needs and to trigger hospitalization or the immediate initiation of outpatient care when needed.
One method VHA uses to monitor access to mental health services is to calculate patients’ waiting times by measuring the elapsed days from the desired dates of care to the dates of the treatment appointments. Medical facility schedulers must enter the correct desired dates of care in the system to ensure the accuracy of this measurement. VHA’s goal is to see patients within 14 days of the desired dates of care.
VHA does not have a reliable and accurate method of determining whether they are providing patients timely access to mental health care services. VHA did not provide first-time patients with timely mental health evaluations and existing patients often waited more than 14 days past their desired date of care for their treatment appointment As a result, performance measures used to report patient’s access to mental health care do not depict the true picture of a patient’s waiting time to see a mental health provider.
The Under Secretary for Health concurred with the OIG’s findings and recommendations and stated VHA is unequivocally committed to providing Veterans the best care possible.
Friday, April 27, 2012
Single Judge Application, Stressors Need Not Cause Physical Injury, Buczynski v. Shinseki, 24 Vet.App. 221, 224 (2011)
Excerpt from decision below:
"Mr. Page consistently alleged that he suffered personal assaults by a
drill instructor, which the Board noted in its decision. R. at 21. Without discussing 38 C.F.R. § 3.304(f)(5), the Board discredited the notion that the in-service personal assaults Mr. Page endured amounted to a stressor.
First, the Board stated that Mr. Page failed to show treatment for any
injuries from these assaults. Id. The regulation does not require that a servicemember be injured in a personal assault for the assault to constitute a stressor; instead it states that medical records are a type of alternative evidence that may be used to prove an in-service assault occurred. The Board's treatment of the absence of medical records as negative evidence, therefore, is an inappropriate application of the
regulation. See Buczynski v. Shinseki, 24 Vet.App. 221, 224 (2011) ("[T]he Board may not consider the absence of evidence as substantive negative evidence."). Next, the Board stated that Mr. Page
"admits that [the assault] was not directed solely at him, but that other
Marines were treated the same." Id. The Court is unconvinced by the Board's logic that because other Marines were also assaulted that Mr. Page's assault somehow ceases to be stressful. Additionally, the Board cited "[t]he fact that none of the VA examiners gave credence to this alleged stressor speaks to its inadequacy." Id. The record, however, does not support that characterization of the evidence. None of the medical reports in the record stated that Mr. Page's in-service personal assaults lacked credence. See R. at 60-64, 902. Finally, the Board stated that the assault could not meet the DSM-IV definition of a PTSD stressor because Mr. Page "has not reported that he feared for his life." R. at 21. As stated above, fear for one's life is not required by DSM-IV. All the reasons provided for the Board's determination that Mr. Page's in-service personal assault did not amount to a stressor are, therefore, inadequate.
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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 11-0684
GEORGE E. PAGE, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before DAVIS, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
DAVIS, Judge: U.S. Marine Corps veteran George E. Page appeals through
counsel from a
January 21, 2011, Board of Veterans' Appeals (Board) decision in which the
Board first determined
that VA had satisfied its duty to assist Mr. Page in substantiating his
claim and then denied service
connection for an acquired psychiatric disorder, to include post-traumatic
stress disorder (PTSD)
because the record did not reveal a current diagnosis of PTSD. Mr. Page
contests only the Board's
findingastoPTSD, andpresents noarguments
regardingotherpsychiatricdisorders. Forthereasons
stated below, the Court will set aside the January 2011 Board decision and
remand the matter for
further proceedings consistent with this decision.
I. ANALYSIS
A. Inadequate Medical Examination
Mr. Page first argues that the Board relied on an inadequate August 2010
VA medical
examination. He alleges the medical examiner did not follow guidelines set
forth in the Diagnostic
and Statistical Manual of Mental Disorders (4th ed.) (DSM-IV).
Service connection for PTSD requires (1) medical evidence diagnosing the
condition in
accordance with 38 C.F.R. § 4.125(a); (2) a link, established by medical
evidence, between current
symptoms andanin-servicestressor;and(3)
crediblesupportingevidencethattheclaimedin-service
stressor occurred. 38 C.F.R. § 3.304(f) (2011). "If the diagnosis of a
mental disorder does not
conform to DSM-IV or is not supported by the findings on the examination
report, the rating agency
shall return the report to the examiner to substantiate the diagnosis." 38
C.F.R. § 4.125(a) (2011).
The Board found the August 2010 VA medical examination the most probative
evidence in
the record, and declared all other medical examination reports in the
record inadequate. Record (R.)
at 22. In the August 2010 report, the examiner stated that the two
stressors Mr. Page consistently
asserted as causes of his PTSD, witnessing the death of a friend in
bootcamp and being informed that
his cousin was killed in Vietnam, "don't meet stressor criteri[a]. There
was no threat to physical
integrity, pt's [patient's] life was not threatened and he didn't witness
these incidents." R. at 63.
Initially, the Court notes the VA medical examiner's statement that Mr.
Page did not witness
the death of his friend in boot camp is not supported by the record. R. at
60-61, 67, 133, 362, 527,
529, 537, 567, 1160; see Reonal v. Brown, 5 Vet.App. 458, 460-61 (1993) (
medical opinion based
on an inaccurate factual premise has no probative value). The Court
additionally notes that
elsewhere in the same examination report, the VA examiner stated that Mr.
Page "meets stressor
criterion based on witnessing the death of his friend." R. at 64.
Next, the Court agrees with Mr. Page that the VA medical examiner's
statement that a
stressor must involve threat to the physical integrity of the claimant is
a misstatement of DSM-IV
criteria. According to the DSM-IV, a stressor occurs when "the person
experienced, witnessed, or
was confronted with an event or events that involved actual or threatened
death or serious injury, or
a threat to the physical integrity of self or others [and] the person's
response involved intense fear,
helplessness or horror." DSM-IV at 427-28 (emphasis added). The examiner
failed to explain why
Mr. Page being confronted with the event that his cousin had been killed
in action did not satisfythis
definition.
Here, neither this Court nor the Board can draw a medical conclusion as to
whether these
facts, which appear to satisfythe DSM-IV criteria, indeed do so, and it is
not clear whythe examiner
used the incorrect definition of a stressor in rendering her diagnosis. It
is the Board's responsibility
to ensure that a medical opinion is "supported bythe findings on the
examination report." 38 C.F.R.
§ 4.125(a). Remand is required for the Board to obtain a new medical
examination.
2
In addition, the Court notes that the examiner found Mr. Page did not "
currently" have PTSD
but had a history of PTSD. R. at 64. A "current" disability exists for the
purposes of service
connection if the diagnosed disability is present at any time during the
pendency of the claim, even
if the disability resolves prior to adjudication. McClain v. Nicholson, 21
Vet.App. 319 (2007). In
such a case, staged ratings may be appropriate. See id. at 321; Fenderson
v. West, 12 Vet.App. 119,
126 (1999). The Board failed to determine when Mr. Page satisfied the
criteria for PTSD.
Therefore, on remand, the Board must also clarifythe period for which the
examiner determined that
Mr. Page had PTSD and consider staged ratings. See id.
B. Application of 38 C.F.R. § 3.304(f)(3)
Mr. Page next argues that the Board erred in not applying 38 C.F.R. § 3.
304(f)(3) to his claim
that the death of his cousin was a stressful experience. This regulatory
subsection eliminates the
requirement that evidence corroborate a claimed in-service stressor if a
claimed stressor is related
to the veteran's fear of hostile military or terrorist activity. See 75
Fed. Reg. 39,843-01 (2010)
(codified at 38 C.F.R. § 3.304(f)(3)). The regulation defines "fear of
hostile military or terrorist
activity"asacircumstancewhere"aveteranexperienced,witnessed,
orwasconfrontedwith anevent
or circumstance that involved actual or threatened death or serious injury,
or a threat to the physical
integrity of the veteran or others, such as from . . . incoming artillery,
rocket, or mortar fire . . . and
theveteran's responseto
theeventorcircumstanceinvolvedapsychologicalorpsycho-physiological
state of fear, helplessness, or horror." 38 C.F.R. § 3.304(f)(3) (2011).
The Board did not discuss this
regulation in its decision.
The Secretary, in his brief, alleges that this regulation was intended to
apply only to veterans
serving in combat environments. The requirement that the veteran must have
engaged in combat
with the enemy is present in a separate subsection of the regulation, 38 C.
F.R. § 3.304(f)(2), which
refers to circumstances in which "the veteran engaged in combat with the
enemy." However, such
a requirement is not contained in 38 C.F.R. § 3.304(f)(3), which
contemplates only "fear of hostile
military or terrorist activity."
Additionally, the Federal Register does not support the Secretary's
assertion. See 75 Fed.
Reg. 39,843-01 (2010). The comments accompanying 38 C.F.R. § 3.304(f)(2)
state: "The rule has
no geographic requirement and is not limited to service in a combat zone
or on land. Rather, it
3
applies to all persons who served in active military, naval or air
service." Id. at 3. The comments
also state that "'circumstance' means 'a condition, fact, or event'" and
that "fear may result from
conditions to which the veteran was exposed during service." Id.
Furthermore, "[t]he regulation is
not limited to events or circumstances perpetrated by a foreign enemy." Id.
at 4.
Mr.Pageassertedthatwhilehewasonactiveduty,
astaffnoncommissionedofficerinformed
him that his cousin1
had been killed in Vietnam by mortar fire. R. at 516, 527. It appears then
that
Mr. Page was indeed confronted with an event or circumstance that involved
actual death to another
from incoming mortar fire, as described in 38 C.F.R. § 3.304(f)(3). The
Board noted in its decision
that after learning of his cousin's death, Mr. Page became enraged and
retrieved a weapon to kill the
Marine who had informed him of the death because the Marine was laughing
about it. R. at 10. It
is not the role of this Court to determine whether that reaction evidenced
psycho-physiological fear,
helplessness, or horror such that 38 C.F.R. § 3.304(f)(3) is satisfied.
The Board, therefore, must
consider the application of this regulation on remand.
C. Reasons or Bases
1. 38 C.F.R. 3.304(f)(5)
On review of the Board decision, the Court notes various additional
reasons-or-bases
deficiencies. On remand the Board must address these issues.
In its decision, the Board did not discuss the applicabilityof 38 C.F.R. §
3.304(f)(5), relevant
to PTSD based on in-service personal assaults. This regulation states: "If
a [PTSD] claim is based
on in-service personal assault, evidence from sources other than the
veteran's service records may
corroboratetheveteran's account ofthestressorincident." 38C.F.R.§3.304(f)(
5). Examplesofsuch
evidence include, but are not limited to, records from hospitals or
physicians, and evidence of
behavior changes following the claimed assault. Id.
The Board appears unconvinced that the deceased Marine in question was
actually Mr. Page's cousin. The
Board stated: "The Veteran claims this was his cousin; however, he has not
submitted any documentation to support that
assertion." R. at 20. The Court notes, however, that the deceased Marine
had the same last name as Mr. Page, that the
circumstances of his death as documented on the Vietnam Veteran's Memorial
information contained in the record match
those recounted by Mr. Page, and that VA previously acknowledged in a
memorandum for the record that it had "verified
the death of his cousin." R. at 496, 516.
1
4
Mr. Page consistently alleged that he suffered personal assaults by a
drill instructor, which
the Board noted in its decision. R. at 21. Without discussing 38 C.F.R. §
3.304(f)(5), the Board
discredited the notion that the in-service personal assaults Mr. Page
endured amounted to a stressor.
First, the Board stated that Mr. Page failed to show treatment for any
injuries from these assaults. Id. The regulation does not require that a servicemember be injured in a personal assault for the assault to constitute a stressor; instead it states that medical records are a type of alternative evidence that may be used to prove an in-service assault occurred. The Board's treatment of the absence of medical records as negative evidence, therefore, is an inappropriate application of the regulation. See Buczynski v. Shinseki, 24 Vet.App. 221, 224 (2011) ("[T]he Board may not consider the absence of evidence as substantive negative evidence."). Next, the Board stated that Mr. Page "admits that [the assault] was not directed solely at him, but that other
Marines were treated the same." Id. The Court is unconvinced by the Board's logic that because other Marines were also assaulted that Mr. Page's assault somehow ceases to be stressful. Additionally, the Board cited"[t]he fact that none of the VA examiners gave credence to this alleged stressor speaks to its inadequacy." Id. The record, however, does not support that characterization of the evidence. None of the medical reports in the record stated that Mr. Page's in-service personal assaults lacked credence. See R. at 60-64, 902. Finally, the Board stated that the assault could not meet the DSM-IV definition of a PTSD stressor because Mr. Page "has not reported that he feared for his life." R. at 21. As stated above, fear for one's life is not required by DSM-IV. All the
reasons provided for the Board's
determination that Mr. Page's in-service personal assault did not amount
to a stressor are, therefore,
inadequate.
Furthermore, although evidence is present in the record of Mr. Page's
change in behavior
duringservice, the Board failed to discuss this evidence as it relates to
proof of an in-service personal
assault. See R. at 61-62 (in-service counseling records reflecting
disciplinary problems six months
after boot camp), 805 (statement of staff sergeant detailing Mr. Page's
poor work performance and
his request for a discharge nine months after boot camp).
The Board provided inadequate reasons or bases for its determination that
the assaults Mr.
Page suffered in service could not have amounted to a PTSD stressor. On
remand, the Board must
reevaluate Mr. Page's claim in accordance with 38 C.F.R. § 3.304(f)(5).
See Brannon v. West,
5
12 Vet.App. 32, 34 (1998) ("The Board is required to adjudicate all
issues reasonably raised by a
liberal reading of the appellant's substantive appeal, including all
documents and oral testimony in
the record prior to the Board's decision.").
Mr. Page also argues that the Board erred in finding that VA satisfied its
duty to notify him of the law and types of evidence he may submit to substantiate his claim under 38 C.F.R. § 3.304(f)(5). Mr. Page now is aware of the law and evidence he may submit on remand to substantiate his claim. Therefore the Court need not address this argument in detail. See Best v. Principi, 15 Vet.App. 18, 20 (2001).
2. Lay Statements
The Board additionally provided inadequate reasons or bases for finding Mr.
Page's
statements lacking in credibility. R. at 22. The sole basis advanced for
the Board's finding was that
Mr. Page's statements were inconsistent. The record does not support this
finding.
First, the Board took issue with Mr. Page's account of his behavior after
he was laughingly
informed of his cousin's death. He related that his reaction was to
retrieve a rifle from his barracks
in order to kill the Marine who laughed, but he was thwarted by another
Marine who hit him over the head to stop him. Mr. Page recounted that the next thing he knew, he woke up in the brig. The Board decision took issue with the fact that there is no documentation of Mr. Page's admittance to the brig around the time of his cousin's death. R. at 22-23.
The Board's reasoning and use of negative evidence in this respect is flawed.
The Court takes judicial notice that noncommissioned officers and those of higher rank have the authority to apprehend and take into custody servicemembers involved in "quarrels,
frays or disorders" until
properauthoritieshavebeennotified. MANUALFOR COURTS-MARTIAL,ch.V,sec.19(b),(
d)(1969);
see also Brannon v. Derwinski, 1 Vet.App. 314, 316 (1991) (courts may take
judicial notice of facts
of universal notoriety). The Manual for Courts-Martial does not require a
record to be kept of such
apprehension or custody as it is clearly contemplated as a temporary
safety measure. Id. Based on
the circumstances described by Mr. Page, it would appear that another
Marine exercised this
authority over him, and the absence of a record of the apprehension and
custody does not therefore
weigh against Mr. Page's account of the events.
6
Next, the Board asserted that Mr. Page's statement that he enjoyed the
military was
contradicted by his military record. R. at 23. Preliminarily, the Court
notes that whether a veteran
"enjoyed" the military is an exceptionally subjective criterion on which
to determine a veteran's
credibility; however, the Board did make an indirect finding in the
process of this analysis. The
Board discredited Mr. Page's statement to a VA medical examiner in 1995
that he enjoyed military
service until his cousin's death by alleging that his dissatisfaction with
the Marine Corps started
before his cousin's death. Id. The Board pointed out that Mr. Page's
cousin was killed in September
1969 and that five months prior, in April 1969, Mr. Page sought counseling
with a chaplain because
"he had been dissatisfied with military life, and he saw the psychiatrist
later that month and stated
that he wanted out and was not going to do anything until he received a
discharge." Id. The Board
thus indirectly found that Mr. Page's cousin's death could not be a
legitimate stressor for PTSD
purposes because Mr. Page's behavioral changes (dissatisfaction with the
Marine Corps) started
before that event.
The Board overlooked the fact that Mr. Page had consistently reported
other stressors in
addition to his cousin's death, namely that he witnessed the death of a
friend in boot camp and was
subjected to personal assaults in boot camp. The record reflects that Mr.
Page attended boot camp
in November 1968, approximately five months prior to his noted April 1969 "
dissatisfaction" with
the Marine Corps. R. at 1177. Also, the first disciplinary action taken
against Mr. Page was six
months after his experiences in boot camp, in May 1969. R. at 508. Mr.
Page's behavioral change,
therefore,postdatedhis claimed boot campstressors,eveniftheydid not
postdatehiscousin's death.
The first notation in the record that Mr. Page enjoyed serving in the
military up until the point his
cousin was killed is dated 1995. R. at 1144. Whether Mr. Page recalled the
exact point he became
dissatisfied with his service in the Marine Corps some 26 years later is
an extremely tenuous reason
for discrediting his statements, and, as the Court states above, the
objective evidence actually
supports that Mr. Page exhibited behavioral changes followingtwo stressful
incidents in boot camp.
Next, the Board stated that Mr. Page's recounting of in-service stressors
is also inconsistent,
further impugning his credibility. At various times between 2002 and 2010,
Mr. Page recounted the
death of his friend in boot camp during a training run and the death of
another Marine. The death
of the second Marine was noted by one VA medical examiner as occurring
while the Marine was on
7
leave, and bya separate VA medical examiner as occurring "during drills."
R. at 23-24. It is unclear
from the medical reports whether the two Marines are in fact the same
person. R. at 60, 133. Absent
a more precise identification of the two Marines, the Board's reasoning
that Mr. Page was
inconsistent in these reports is inadequate.
The Board next relied on an inconsistency in the record pertaining to how
Mr. Page's cousin
died in Vietnam. The Board pointed out that Mr. Page reported that his
cousin was "blown up"
during an enemymortar attack, but a March 2002 VA examination report
stated that his cousin "died
of exposure." R. at. 23. Given that on every occasion that Mr. Page
described his cousin's death in
his own words (during the Board hearing and in his handwritten statements
in support of his claim)
he consistentlystated his cousin was "blown up," the inconsistencyappears
to be with the report, and
not Mr. Page. R. at 527, 529, 732, 1039-40, 1159. The Board also takes
issue with the fact that the
August 2010 VA medical examination report did not note the death of Mr.
Page's cousin as a
stressor. Such minor inconsistencies are an inadequate reason for
declaring a veteran not credible.
See 38 U.S.C. § 7104(d)(1).
The last reason advanced by the Board for Mr. Page's incredibility is
asserted evidence that
he seeks secondary gain. The Board stated that "there is evidence in the
record that he believes he
can get increased compensation from VA if he were to obtain" a PTSD
diagnosis. R. at 25. A
review of the record reveals the contrary, however. In 1998, VA granted Mr.
Page entitlement to a
permanent and total disabilityevaluation for non-service-connected pension (
R. at 544) and the only
information contained in the record states that Mr. Page denied that a
PTSD diagnosis "would have
any effect on his benefits status." R. at 94.
D. VA Duties
Lastly, Mr. Page contests the Board's conclusion that VA satisfied its
duty to assist him
because VA did not get jail records from the city of Oceanside, California,
regarding an assault that
he suffered off base. In his brief, the Secretary asserts that it is
unclear that the assault actually occurred. Because the Court is remanding Mr. Page's claim for further proceedings, Mr. Page will have the opportunity to adequately identify the records he seeks VA to obtain. See 38 C.F.R. § 3.159(c)(1) (2011).
8
II. CONCLUSION
On consideration of the foregoing, the Court SETS ASIDE the Board's
January 21, 2011, decision and REMANDS the matter to the Board for further proceedings consistent with this decision. A final decision by the Board following the remand herein ordered will constitute a new decision that, if adverse, may be appealed to this Court on the filing of a new Notice of Appeal with the Court not later than 120 days after the date on which notice of the Board's new final decision is mailed to Mr. Page. See Marsh v. West, 11 Vet.App. 468, 472 (1998).
DATED: April 23, 2012
Copies to:
Nicholas L. Phinney, Esq.
VA General Counsel (027)
9
Thursday, April 26, 2012
Single Judge Application, Parrish v. Shinseki, 24 Vet.App. 391, 398 (2011); Board Error when Failure to Address Issue Raised
Excerpt from decision below:
"Further, although Mr. Ramirez-Arce argues that the Board should
have addressed this anemia issue, the record of proceedings does not reflect that he raised this issue to the Board. See (finding no error where Board did not address issue not raised by appellant or reasonably raised by the record).
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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 10-3678
ORLANDO RAMIREZ-ARCE, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before KASOLD, Chief Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
KASOLD, Chief Judge: Veteran Orlando Ramirez-Arce appeals through counsel
that part
of an October 4, 2010, decision of the Board of Veterans' Appeals (Board)
that (1) denied a disability
rating in excess of 10% for hemorrhoids, (2) denied entitlement to service
connection for an upper
back disorder, and (3) denied entitlement to service connection for
erectile dysfunction (ED). Mr.
Ramirez-Arce argues that the Board clearly erred in finding that the
Secretary satisfied his duty to
assist, and provided inadequate reasons or bases for its determinations.
The Secretary agrees that
the Board provided inadequate reasons or bases for the ED matter, but
disputes Mr. Ramirez-Arce's
remaining contentions. Single-judge disposition is appropriate. Frankel v.
Derwinski, 1 Vet.App.
23, 25-26 (1990). For the reasons stated below, that part of the Board
decision denying a disability
rating in excess of 10% for hemorrhoids will be affirmed, and that part of
the decision denying
entitlement to service connection for an upper back disorder and ED will
be set aside and the matters
remanded for further adjudication.
The record does not support Mr. Ramirez-Arce's arguments regarding the
hemorrhoids
matter. The Board found that a 20% disability rating was unwarranted
because the 2008 medical
report noted hemorrhoids with "frequent" bleeding (Record (R.) at 272; see
38 C.F.R. § 4.114,
Diagnostic Code (DC) 7336 (2011) (requirement for a 10% rating)), not
hemorrhoids with
"persistent bleeding and with secondary anemia, or with fissures" (DC 7336 (requirement for a 20% rating)). Although Mr. Ramirez-Arce asserts that the 2008 report is inadequate because it did not address anemia, the Secretary correctly notes that even a finding of anemia would not meet the
schedular requirement for a 20% rating without a finding of persistent
bleeding. Although Mr.
Ramirez-Arce responds that a finding of anemia could warrant a 20%
ratingbased on 38 C.F.R. § 4.7
(2011) ("Where there is a question as to which of two evaluations shall be
applied, the higher
evaluation will be assigned if the disability picture more nearly
approximates the criteria required
for that rating."), he fails to explain how a finding of anemia without
persistent bleeding would
create "a question as to which of two evaluations shall be applied." Id.;
see Hilkert v. West,
12 Vet.App. 145, 151 (1999) (en banc) (appellant bears burden of
demonstrating error on appeal).
Further,although Mr.Ramirez-Arce argues that the Board should
have addressed this anemia issue, the record of proceedings does not reflect that he raised this issue to the Board. See Parrish v. Shinseki, 24 Vet.App. 391, 398 (2011) (finding no error where Board did not address issue not raised by appellant or reasonably raised by the record). In fact, the record reflects that he acknowledged his lack of anemia. See R. at 46 (stating, in his "Informal Hearing Presentation" to the Board, that he "does not presently exhibit secondary anemia or fissures"). Accordingly, Mr. Ramirez-Arce fails to demonstrate clear error in the Board's duty-to-assist determination or inadequate reasons or bases for its rating determination on this matter. See Nolen v. Gober, 14 Vet.App. 183, 184 (2000) (Board determination that Secretary satisfied the
dutyto assist is reviewed
under the "clearly erroneous" standard); Gilbert v. Derwinski, 1 Vet.App.
49, 52 (1990) ("'A finding
is clearly erroneous when . . . the reviewing court on the entire evidence
is left with the definite and
firmconvictionthat a mistake has been committed.'"(quoting United States v.
U.S. GypsumCo.,333
U.S. 364, 395 (1948))); see also Hilkert, supra; Allday v. Brown, 7 Vet.
App. 517, 527 (1995)
(holding that the Board's statement "must be adequate to enable claimant
to understand the precise
basis for the Board's decision, as well as to facilitate review in this
Court").
On the other hand, the record supports Mr.Ramirez-Arce's
argumentthattheBoard provided
inadequate reasons or bases for denying service connection for a back
condition. The Board
acknowledged a 1989 psychiatric report discussing the interplay of his
back condition and post-
2
traumatic stress disorder (PTSD), but found that the report "did not
specifically relate" the back
condition to PTSD and therefore that there was "no medical evidence
linking" the back condition
to PTSD. R. at 14, 15. However, the Board's interpretation of that report
is not understandable in
light of the report's statement that Mr. Ramirez-Arce's PTSD "adds" to his
back condition. R. at
1669 ("The associated symptoms of the [PTSD] with anxiety, hyper-vigilance,
tension state, and
fearfulness, adds to the [back] disability."); see Allday, supra. Moreover,
although the Board noted
evidence that his PTSD is unrelated to his back condition – including a
June 2006 fibromyalgia
report not in the record of proceedings and a November 2003 report
attributing the back condition
to the 1987 restraining of a man attempting suicide (which was caused by
PTSD according to the
1989 psychiatric report) – the Board did not explain how it might have
weighed these reports against
the other medical evidence of record. See Washington v. Nicholson, 19 Vet.
App. 362, 367 (2005)
("[T]he Board must analyze the credibility and probative weight of the
evidence, account for the
evidence that it finds persuasive or unpersuasive, and provide the reasons
for its rejection of any
material evidence favorable to the claimant."); see also Hensley v. West,
212 F.3d 1255, 1263 (Fed.
Cir. 2000) ("[A]ppellate tribunals are not appropriate fora for initial
fact finding."). Accordingly,
remand is warranted. Tucker v. West, 11 Vet.App. 369, 374 (1998) (remand
is appropriate "where
the Board has incorrectlyapplied the law, failed to provide an adequate
statement of reasons or bases
for its determinations, or where the record is otherwise inadequate").
The record also supports the parties' argument that the Board provided
inadequate reasons or bases for denying serviceconnection for ED. More specifically, Mr.Ramirez-Arce raised a theory of service connection – that his ED is related to his PTSD medications – and the Board failed to address or obtain medical evidence1 on this theory. See R. at 523 (Notice of Disagreement stating:
"PTSD stress is a major contributor in ED as well as medication used to
treat PTSD."), 1264 (statement in support of claim asserting: "I am requesting [service connection] for [ED] secondary to PTSD condition [and] medications taken for same condition."); see also
R. at 14-16 (Board not
addressing PTSD medications), 446-50 (2007 report not addressing PTSD
medications), 1244-48
1
The Secretary generally must provide a medical examination or opinion on a
theory of service connection if
there is, inter alia, an indication that his disability "may be associated
with the veteran's service" through that theory and
insufficient medical evidence on that theory. McLendon v. Nicholson, 20
Vet.App. 79, 81 (2006); see Robinson v.
Peake, 21 Vet.App. 545, 553 (2008), aff'd sub nom. Robinson v. Shinseki,
557 F.3d 1355 (Fed. Cir. 2009).
3
(2005 report not addressing PTSD medications). The Board's failure to
address a theory for service
connection raised by a claimant frustrates judicial review, such that
remand is warranted. See
Robinson, 21 Vet.App. at 553 (Board commits error "in failing to discuss a
theoryof entitlement that
was raised . . . by the appellant"); Tucker and Allday, both supra. The
parties also note that the
Board did not address the 2007 medical report's statement that ED was a "
diabetic related
genitourinary symptom." R. at 440. The Board should address this statement
on remand. See
Robinson, 21 Vet.App. at 553 (Board commits error "in failing to discuss a
theoryof entitlement that
was [reasonably] raised . . . by the evidence of record").
Also on remand, Mr. Ramirez-Arce may present, and the Board must consider,
any additional
evidence and argument in support of the remanded matters. See Kay v.
Principi, 16 Vet.App. 529,
534 (2002). These matters are to be provided expeditious treatment on
remand. See 38 U.S.C. §
7112.
Accordingly, that part of the October 4, 2010, Board decision denying a
disability rating in
excess of 10% for hemorrhoids is AFFIRMED, and that part of the decision
denying entitlement to
service connection for an upper back disorder and ED is SET ASIDE and the
matters REMANDED
for further adjudication.
DATED:
April 19, 2012
Copies to:
Glenn R. Bergmann, Esq.
VA General Counsel (027)
4
Briley v. Shinseki, No. 11-1579(DATED: April 19, 2012); Substitution Following Veterans Death
Excerpt from decision below:
"For the purposes of this opinion, it is sufficient to observe that Mrs. Briley died while her appeal was pending before this Court and no one who would be potentially eligible to receive accrued benefits has sought
substitution."
=============================
----------------------------------------------------
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 11-1579
ANNETTE B. BRILEY, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before KASOLD, Chief Judge, and HAGEL and LANCE, Judges.
ORDER
On May 18, 2011, the appellant, widow of deceased veteran Richard R.
Briley, through counsel, filed a Notice of Appeal from a January 31, 2011, Board of Veterans' Appeals (Board) decision denying entitlement to service connection for the veteran's colon cancer for the purposes of accrued benefits. On February 7, 2012, appellant's counsel notified the Court that the appellant died on January 29, 2012, provided a copy of the appellant's obituary, and filed a motion requesting a 30-day stay to locate a potential accrued benefits claimant for substitution. On March 14, 2012,
the Court denied the motion as moot as more than 30 days had already
elapsed and ordered appellant's counsel to show cause, within 14 days, why the appeal should not be dismissed.
Appellant's counsel did not respond to the Court's order.
In Mokal v. Derwinski, 1 Vet.App. 12, 13 (1990), the Court chose "to
adhere to the case or
controversy jurisdictional restraints adopted by Article III Courts."
Although the Court initially
adopted the case-or-controversy requirement "as a matter of policy," the
Court, as our concurring
colleague admits, did not make the application of that requirement
discretionary. Id. at 15. Rather,
beginning with Mokal and continuing unimpeded to this day, the Court has
steadfastly held that a
matter before this Court that does not present a live case or controversy
must be dismissed for a lack
of jurisdiction. See, e.g., Mendoza v. Shinseki, 25 Vet.App. 189 (2012) (
per curiam order); Moore
v. Peake, 22 Vet.App. 239 (2008) (per curiamorder); Hyatt v. Peake, 22 Vet.
App. 211 (2008); Nolan
v. Nicholson, 20 Vet.App. 340 (2006); Ramsey v. Nicholson, 20 Vet.App. 223 (
2006); Polovick v.
Nicholson, 24 Vet.App. 257 (2006); Urban v. Principi, 18 Vet.App. 143 (
2004) (per curiam order);
Long v. Principi, 17 Vet.App. 555 (2004); Breeden v. Principi, 17 Vet.App.
475 (2004) (per curiam
order); Herlehy v. Principi, 15 Vet.App. 33 (2001) (per curiam order);
Hibbard v. West, 13 Vet.App.
546 (2000) (per curiam order); Haines v. Gober, 10 Vet. App. 446 (1997) (
per curiam order);
Hudgins v. Brown, 8 Vet.App. 365 (1995) (per curiam order); Landicho v.
Brown, 7 Vet.App. 42
(1994); Shoen v. Brown, 6 Vet.App. 456 (1994); Dofflemyer v. Brown, 4 Vet.
App. 339 (1993) (per
curiam order); Coombs v. Principi, 3 Vet.App. 530 (1992) (per curiam order
); Waterhouse v.
Principi, 3 Vet.App. 473 (1992); Bond v. Derwinski, 2 Vet.App. 376 (1992) (
per curiam order);
Mokal, 1 Vet.App. at 15.
This Court has long grappled with the question of whether a live case or
controversy exists
after an appellant dies. See, e.g., Breedlove v. Shinseki, 24 Vet.App. 7,
14-22 (2010); Pekular v.
Mansfield, 21 Vet.App. 495, 498-502 (2007); Landicho, 7 Vet.App. at 49-54.
However, we need not venture down that tortuous path again. For the purposes of this opinion, it is sufficient to observe that Mrs. Briley died while her appeal was pending before this Court and no one who would
be potentially eligible to receive accrued benefits has sought
substitution. It is beyond axiomatic that, where there is no appellant, there is no case or controversy. To hold otherwise would be to
empower the Court to issue advisory opinions that have no definite and
concrete connection to the legal relations of the putative parties. See Aetna Life Ins. Co. of Hartford, Conn. v. Haworth, 300 U.S. 227, 240-41 (1937) (explaining that a justiciable controversy "must
be definite and concrete, touching the legal relations of parties having adverse legal interests" and "must be a real and substantial controversy admitting of specific relief through a decree of a conclusive character, as
distinguished from an opinion advising what the law would be upon a
hypothetical state of facts"); see also GTE Sylvania, Inc. v. Consumers Union of U.S., Inc., 445 U.S. 375, 382 (1980) ("The purpose of the case-or-controversy requirement is to 'limit the business of federal courts to questions presented in an adversary context and in a form historically viewed as capable of resolution through the judicial process.'" (quoting Flast v. Cohen, 392 U.S. 83, 85 (1968))).
Such a practice would contravene the venerable principle that federal courts are not "merely publicly funded forums for the ventilation of public grievances or the refinement of jurisprudential understanding," and the Court, therefore, will not condone it. Valley Forge Christian College v. Americans United for Separation of Church & State, Inc., 454 U.S. 464, 473 (1982). Instead, the Court will reiterate its unflinching adherence to the jurisdictional limitations contained in Article III, which "assure that the legal questions presented to the court will be resolved, not in the
rarified atmosphere of a debating society, but in a concrete factual context conducive to a realistic appreciation of judicial action." Id. at 472.
Moreover, contrary to our concurring colleague's opinion, the decision of
the U.S. Supreme Court in Henderson v. Shinseki, 131 S. Ct. 1197 (2011), did not in any way alter the Court's case-or-controversy analysis. In Henderson, the Supreme Court held that 38 U.S.C. § 7266(a), which
provides that a person adversely affected by a final Board decision must
file a Notice of Appeal within 120 days after the mailing of that decision to obtain review in this Court, was "an important procedural rule," but was not jurisdictional. 131 S. Ct. at 1206. In doing so, the Supreme Court
clearly indicated that our authority must be based on what Congress
intended and, therefore, did not enlarge our jurisdiction beyond that expressly given to us by Congress. See id. at 1203 ("The question here, therefore, is whether Congress mandated that the 120–day deadline be
'jurisdictional.'" (emphasis added). In fact, the Supreme Court has long
held that federal courts "possess only that power authorized by Constitution and statute, which is not to be expanded by judicial decree." Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375, 377 (1994) (internal citations omitted). Our concurring colleague fails to cite any authority suggesting that Congress, in creating this Court, intended to except it from the bedrock principle that courts may not issue advisory opinions in the absence of a live case or controversy.
Accordingly, because the holding in Henderson only addressed the narrow question of "whether a veteran's failure to file a [N]otice of [A]ppeal within the 120-day period should be regarded as having 'jurisdictional' consequences,"
2
131 S. Ct. at 1200, and because it reaffirmed the principle that our
power is defined by Congress's intent, that decision does not undermine Mokal or its progeny.
Finally, although our concurring colleague cites Padgett v. Nicholson, 473
F.3d 1364 (Fed. Cir. 2007), to support his assertion that the Court could have issued a decision in this case nunc pro tunc to the date of Mrs. Briley's death, Padgett expressly states that nunc pro tunc relief would not be appropriate in a case such as this. Specifically, the U.S. Court of
Appeals for the Federal Circuit rejected the Secretary's argument that "nunc pro tunc relief may cause the court to issue advisory opinions or decide hypothetical cases," holding that, "[if] the court were not aware of any potential accrued-benefits claimants, or if all potential accrued-benefits claimants failed to qualify," the only appropriate disposition would be to dismiss the appeal and vacate or reverse the underlying decision. Id. at 1371. Consequently, because this appeal has become moot by virtue of the death of the appellant, and because the Court has not received any request that another party be substituted for the appellant, the appeal will be dismissed and the underlying Board decision vacated. See Breedlove v. Shinseki, 24 Vet.App. 7, 21 (2010) (noting that where "no one seeks substitution . . . Board vacatur and dismissal of the appeal would be the appropriate action"); Landicho, 7 Vet.App. at 53-54. Upon consideration of the foregoing, it is hereby
ORDERED that the January 31, 2011, Board decision is VACATED with respect
to the matters appealed to the Court. It is further
ORDERED that this appeal is DISMISSED for lack of jurisdiction.
DATED: April 19, 2012
PER CURIAM
KASOLD, Chief Judge, concurring in part:
Inasmuch as counsel for the deceased appellant failed to respond to an
order to show cause why the appeal should not be dismissed, I concur in now dismissing the appeal. Dismissal, however, should be for failing to respond, U.S. VET. APP. R. 38(b) ("Failure . . . to comply with an order of
the Court . . . may be grounds for . . . dismissal of the appeal."), not
for lack of jurisdiction.
Our jurisdiction, like that of all federal courts other than the Supreme
Court, is established solely by Congress, not the Court. Sheldon v. Sill, 49 U.S. 441, 449 (1850). As my colleagues seem to admit, the requirement in our Court for a case or controversy is an important prudential rule wisely adopted by the Court in its formative year, but it is not in our jurisdictional statute. See Mokal v. Derwinski, 1 Vet.App. 12, 15 (1990) (adopting "as a matter of policy the jurisdictional restrictions of the Article III case or controversy rubric"); see also Padgett v. Nicholson, 473 F.3d 1364, 1370 (Fed. Cir. 2007) (noting that this Court is "not formally bound by" the case or controversy requirement but "nevertheless, adheres to it"). Accordingly, although application of the case or controversy requirement is not discretionary absent Mokal being overturned by the en banc Court or statute, Bethea v. Derwinski, 2 Vet.App. 252, 254 (1992), dismissal under this important prudential rule nevertheless is not a dismissal for lack of jurisdiction. 49 U.S. at 449; cf. Henderson
3
v. Shinseki, 131 S. Ct. 1197, 1206 (2001) (finding that 38 U.S.C. § 7266(
a) was an "important procedural rule" but not jurisdictional); see also Breedlove v. Shinseki, 24 Vet.App. 7, 17 n.5 (2010) (per curiam order) (citing Zevalkink v. Brown, 102 F.3d 1236, 1244 (Fed. Cir. 1996) and noting that the Court does not lack jurisdiction upon the death of the claimant).
Indeed, in addition to dismissing the appeal, the Court also had the
option of rendering a decision nunc pro tunc. See Mitchell v. Overman, 103 U.S. 62, 64-65 (1880) (noting the authority of a court to issue a decision nunc pro tunc generally, and specifically when death occurs after the
matter has been submitted and any delay in issuing the decision was not
due to the parties); Padgett,
473 F.3d at 1367 ("Where a party dies after his case is submitted, but
before the opinion issues . .
. , the Supreme Court has consistently entered judgment nunc pro tunc to
the date of the party's death
. . . ."). The appellant in this case died after the case was submitted,
see Breedlove, 24 Vet.App. at
18 (noting that case is submitted for decision "upon completion of the
briefing period"), and,
although the attorney for the deceased appellant did not respond to the
Court's show cause order, the
decedent's estate, at a minimum, is a potential accrued benefits
beneficiary, 38 U.S.C. § 5121(a)(6),
such that issuance of a decision nunc pro tunc was a viable option. See
Padgett, 473 F.3d at 1371
(finding dismissal appropriate "if the court were not aware of any
potential accrued-benefits
claimants" (emphasis added)); see also Mitchell, supra.
Moreover, an accrued benefits beneficiary has up to one year after date of
death of a VA
beneficiary to request substitution, 38 U.S.C. § 5121A(a)(1), such that –
even after dismissal in this
case – there very well might be judicial economy reasons to permit an
accrued benefits beneficiary
to seek substitution within the one-year period after the death of the
appellant and prior to mandate
entering in this case. See Breedlove, 24 Vet.App. at 17 (noting that
substitution "'furthers judicial
and administrative economy'" (quoting Padgett, 473 F.3d at 1370)).
As noted at the outset of my concurring statement, however, the failure of
counsel to respond to the Court's order is a valid basis for dismissing this matter at this time, and it is the basis for my concurrence in part with the order issued today by the majority.
4
Githens v. Shinseki, No. 2010-7129(Decided: April 26, 2012); TDIU, 4.16(a), Considered on Service-connected Disabilities
Excerpt from decision below:
"The Veterans Court in a series of cases has consistently interpreted § 4.16(a) to require that only service-connected disabilities may be
considered in a § 4.16(a) TDIU analysis.3"
===========================
United States Court of Appeals
for the Federal Circuit
__________________________
KAREN S. GITHENS,
Claimant-Appellant,
v.
ERIC K. SHINSEKI, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee.
__________________________
2010-7129
__________________________
Appeal from the United States Court of Appeals for
Veterans Claims in case no. 08-4239, Judge Alan G.
Lance, Sr.
__________________________
Decided: April 26, 2012
__________________________
KENNETH M. CARPENTER, Carpenter, Chartered, of
Topeka, Kansas, argued for claimant-appellant.
L. MISHA PREHEIM, Attorney, Commercial Litigation
Branch, Civil Division, United States Department of
Justice, of Washington, DC, argued for respondentappellee.
With him on the brief were TONY WEST, Assistant
Attorney General, JEANNE E. DAVIDSON, Director,
and MARTIN F. HOCKEY, JR., Assistant Director. Of coun-
GITHENS v. DVA 2
sel on the brief were DAVID J. BARRANS, Deputy Assistant
General Counsel, and TRACEY P. WARREN, Attorney,
United States Department of Veterans Affairs, of Washington,
DC.
__________________________
Before RADER, Chief Judge, and NEWMAN and REYNA,
Circuit Judges.
REYNA, Circuit Judge.
Ms. Karen S. Githens-Bellas appeals the decision of
the Court of Appeals for Veterans Claims (“Veterans
Court”) that affirmed the Regional Office’s (“RO”) 1996
denial of total disability based on individual unemployability
(“TDIU”). Githens-Bellas v. Shinseki, No. 08-4239,
at *1 (CAVC May 12, 2010) (“Op.”). Ms. Githens-Bellas
believes that the Veterans Court erred when it upheld a
finding that the RO did not commit clear and unmistakable
error (“CUE”). For lack of jurisdiction, we dismiss.
I. FACTUAL HISTORY
Ms. Githens-Bellas served in the U.S. Army from September
1980 to February 1981 and from April 1981 to
May 1983. During her service, Ms. Githens-Bellas suffered
an injury to her knees and wrist. The RO assigned
a 10 percent rating to her left wrist with an effective date
of November 12, 1986. In 1987, Ms. Githens-Bellas’s
right upper arm was injured as a result of the medical
care she received from the Department of Veterans Affairs
(“VA”). In 1990, her injury to right knee and shoulder
were each rated at 20 percent and her left knee at 30
percent. After leaving service, she received disability
benefits for the service-related injuries and the injury to
her upper arm. In 1996, she was unable to continue
working as a bookkeeper.
GITHENS v. DVA 3
II. PROCEDURAL HISTORY
In August 1996, Ms. Githens-Bellas brought a claim
before the VA for TDIU. A VA examiner diagnosed her
with the following service-connected disabilities: stress
fractures of her left and right knees and a contusion of the
spinal accessory nerve with wasting of the upper region of
her right trapezius muscle and limitation of motion. She
was also diagnosed with non-service-connected disabilities,
including lipoma in her lower back, migraine headaches,
and anxiety disorder due to chronic pain syndrome.
The Veterans Affairs Regional Office (“RO”) rated her
service-connected disabilities at 70 percent, but denied a
total rating based on unemployability under 38 C.F.R.
§ 4.16(a) on grounds that her service-connected disabilities
did not meet the schedular requirements.1 A veteran
that has not been rated 100 percent disabled can meet the
schedular requirements if the veteran’s service connected
disabilities fall within the exceptions under § 4.16(a)
which provides that: at least one service-connected
disability rated at 60 percent or higher, or the service-
connected disabilities add up to at least 70 percent
with at least one service-connected disability rated at 40
percent or higher. Id. Section 4.16(a) also provides that
disabilities of “both lower extremities, including the
bilateral factor, if applicable” are to be “considered as one
disability.” Id.
The RO, however, failed to consider Ms.
Githens-Bellas’s two distinct knee injuries as a single
injury. As a result, the RO based the unemployability
1 The RO evaluated service connected disabilities as
70 percent, but the record indicates that the correct
evaluation should have been rated at 80 percent. See
Joint Appendix at 15, 17.
GITHENS v. DVA 4
determination on § 4.16(b), which provides that “the
rating board will include a full statement as to the veteran’s
service-connected disabilities, employment history,
educational and vocational attainment and all other
factors having a bearing on the issue.” Applying § 4.16(b),
the RO found that “[e]ntitlement to individual unemployability
is denied because the claimant has not been found
unable to secure or follow a substantially gainful occupation
as a result of service-connected disabilities.” Joint
Appendix at 15. In June 1997, Ms. Githens-Bellas filed a
request with the RO to reopen her claim for TDIU. The
RO denied her request.
Over six years later, in March 2004, Ms.
Githens-Bellas requested that her 1996 rating decision be
reviewed on grounds that the RO had committed CUE
and sought retroactive benefits with an effective date of
January 1, 1996 for TDIU. In November 2004, the RO
denied her request for review. Ms. Githens-Bellas filed a
Notice of Disagreement with the Board of Veterans’
Appeals (“Board”) on October 4, 2005. In March 2006, the
RO issued a statement of the case denying Ms.
Githens-Bellas retroactive benefits for total disability on
the basis of the 1996 denial. In April 2006, Ms.
Githens-Bellas appealed the RO’s determination to the
Board. On August 27, 2008, the Board determined that
the RO’s decision to deny benefits for TDIU did not constitute
CUE.
Ms. Githens-Bellas appealed the Board’s decision to
the Veterans Court. In her appeal, Ms. Githens-Bellas
asserted that the RO’s miscalculation was CUE, and that
this error prevented the VA from assisting her in developing
evidence to support her claim for TDIU, which she
contended resulted in a manifestly different outcome.
During the appeal, the Secretary conceded that the RO
GITHENS v. DVA 5
committed error by incorrectly computing Ms.
Githens-Bellas’s rating under § 4.16(a). The Secretary
acknowledged that the RO should have treated Ms.
Githens-Bellas’s injuries to two lower extremities as one
disability that met the 40 percent or higher disability
rating pursuant to § 4.16(a)(1). Both parties agreed that
because the RO correctly rated her other service-
connected disabilities to her wrist and upper right
arm as 10 percent and 20 percent respectively, for a total
of 30 percent, the RO should have determined therefore
that Ms. Githens-Bellas met the requirement under
§ 4.16(a): she had one rated disability at 40 percent or
higher which, when added to the 20 percent and 10 percent
ratings, provided a disability rating that met the 70
percent or higher requirement. However, the government
asserted that the RO’s miscalculation did not constitute
CUE.
The Veterans Court agreed with the government and
affirmed the Board’s finding that the RO’s 1996 denial of
TDIU did not constitute CUE. The Veterans Court cited
to Cook v. Principi, 318 F.3d 1334 (Fed. Cir. 2002) (en
banc) for the proposition that a breach in the duty to
assist cannot constitute CUE. The Veterans Court acknowledged
that the RO had erred in computing Ms.
Githens-Bellas’s schedular disability rating, but determined
that the error was harmless because the record
showed that the RO had made an unemployability determination
that satisfied the requirements for a § 4.16(a)
analysis.
This appeal followed.
GITHENS v. DVA 6
III. JURISDICTION
The jurisdiction of this court to review a decision of
the Veterans Court is limited. This court has jurisdiction
to review a Veterans Court decision if it addresses (1) the
validity of statutes or regulations on which the decision of
the Veterans Court depended; (2) issues of interpretation
if the Veterans Court elaborated upon the meaning of a
statute or regulation and the decision depended on that
interpretation; and (3) issues of validity or interpretation
raised before the Veterans Court but not decided, if the
decision would have been altered by adopting the position
that was urged. See Szemraj v. Principi, 357 F.3d 1370,
1374 (Fed. Cir. 2004) (quoting Forshey, 284 F.3d. 1335,
1338 (Fed. Cir. 2002) (en banc)). We also have jurisdiction
to review a decision of the Veterans Court on a rule of
law. See 38 U.S.C. § 7292(a); Szemraj, 357 F.3d at 1374.
This court may not review the Veterans Court for an
“application of a legal standard to the facts of the particular
case to determine whether there has been an error
that is essentially factual in nature.” Id. at 1375 (citing
Lennox v. Principi, 353 F.3d 941, 946 (Fed. Cir. 2003);
Bailey v. Principi, 351 F.3d 1381, 1384 (Fed. Cir. 2003);
Gaston v. Shinseki, 605 F.3d 979, 982 (Fed. Cir. 2010);
Santana-Venegas v. Principi, 314 F.3d 1293, 1298 (Fed.
Cir. 2002)). We may affirm or, if the decision of the
Veterans Court is not in accordance with law, modify or
reverse the decision of the Veterans Court or remand the
matter, as appropriate. 38 U.S.C. § 7292(e)(1)(2000).
IV. DISCUSSION
The sole issue on appeal is whether the Veterans Court’s decision is based on an erroneous interpretation of 38 C.F.R. § 4.16(a). Ms. Githens-Bellas argues that the Veterans Court misinterpreted § 4.16(a), and then relied
GITHENS v. DVA 7
on the misinterpretation to affirm the Board’s determination that the 1996 TDIU denial was not based on CUE. In support, she cites a statement by the Veterans Court that “it was predominantly her non-service-connected disabilities that prevented her from obtaining employment.” Op. at 4. Ms. Githens-Bellas argues that this statement demonstrates that the Veterans Court misinterprets § 4.16(a) as permitting non-service connected disabilities to be considered in TDIU determinations once the § 4.16(a) schedular requirements are met.2
2 The paragraph that includes the statement relied on by appellant provides that:
In this case, the RO had to determine
whether the appellant's service-connected
disabilities prevent her from obtaining
employment. The Secretary concedes
that in 1996, the RO “incorrectly found
that [the a]ppellant did not meet the
schedul[a]r requirements.” Secretary's
Br. at 5. However, after assessing the
schedular requirements, the RO still had
to determine whether the serviceconnected
disabilities rendered the claimant unemployable. 38 C.F.R. §
4.16(a). In its 1996 rating decision, the
RO stated that “[t]he medical reports
show both service connected and nonservice-
connected disabilities which interfere
with employment, with the
greater degree of disability being from
non-service connected disabilities[.]” R.
at 776. Thus, the RO's error did not
cause a manifestly different outcome in
the 1996 decision. Even if the RO had
correctly found that the appellant's combined
service-connected disabilities did
meet the schedular requirements, it still
would have denied her claim because it
GITHENS v. DVA 8
We disagree that the statement constitutes an interpretation of § 4.16(a). The issue before the Veterans Court was whether the 1996 TDIU determination was based on CUE. There is no indication that issues concerning interpretation of § 4.16(a) were before the Veterans Court. In addition, the Veterans Court’s decision does not address the validity, or elaboration of § 4.16(a), or reflect that a different decision would have resulted had the position urged by appellant been adopted. Forshey, 284
F.3d at 1349.
Further, when the statement is viewed in the context of the entire decision, in particular the paragraph that contains the statement, it is clear that the Veterans Court was not making a statement of interpretation on § 4.16(a), but rather explaining why “the RO’s error did not cause a
manifestly different outcome in the 1996 decision.” Op. at 4.
Indeed, the Veterans Court decision reflects a view of § 4.16(a) that is precisely the same as the view that appellant argues should be adopted by this court. Appellant ignores that the paragraph that contains the statement begins with “[i]n this case, the RO had to determine
whether the appellant’s service-connected disabilities prevent her from obtaining employment.” Id. In addition, was predominantly her non-serviceconnected disabilities that prevented her from obtaining employment. Thus, it was not “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law” for the Board to conclude that there was no CUE in the September 1996 decision that denied
TDIU. Accordingly, the Court will affirm the Board decision. Op. at 4 (emphases added).
GITHENS v. DVA 9
when addressing the Secretary’s concession that the RO
had erred in computing the schedular requirements, the
Veterans Court stated “the RO still had to determine
whether the service-connected disabilities rendered the
claimant unemployable.” Id. The Veterans Court in a
series of cases has consistently interpreted § 4.16(a) to
require that only service-connected disabilities may be
considered in a § 4.16(a) TDIU analysis.3
We have no jurisdiction over an issue of interpretation
that does not exist. We conclude that the sentence in the
Veterans Court’s decision cited by the appellant was a
mere statement of the Veterans Court’s view on whether
the RO’s error constituted CUE, and not a statement of
interpretation of § 4.16(a). See, e.g., Conway v. Principi,
353 F.3d 1369, 1373 (Fed. Cir. 2004) (Lack of jurisdiction
existed where the Veterans Court statement that
§ 5103(a) had not been “properly administered” was not
an interpretation of section § 5103(a)). In sum, the Veterans
Court decision is silent as to the adoption of a particular
interpretation of § 4.16(a). Ferguson v. Principi, 273
F.3d 1072, 1075 (Fed. Cir. 2001). Because this appeal
does not involve an interpretation of § 4.16(a), we dismiss.
DISMISSED
Each party shall bear its own costs.
3 See, e.g., Hermann v. Shinseki, 2011 WL 2599914, at *2 (Vet. Ct. 2011) (“[A]n award of VA benefits
for TDIU is based solely on service-connected disabilities.”); Ruybal v. Nicholson, 25 Vet. App. 114 (2007); Pratt v. Derwinski, 3 Vet. App. 269, 272 (1992).
Sunday, April 22, 2012
New Army PTSD Guidelines Fault Madigan's Screening Process
Full article at: Army's new PTSD guidelines fault Madigan's screening tests
By Hal Bernton, Seattle Times staff reporter
"The Army Surgeon General's Office has issued new guidelines for diagnosing PTSD that criticize an approach once routinely used at Madigan Army Medical Center.
The policy, obtained by The Seattle Times, specifically discounts tests used to determine whether soldiers are faking symptoms of post-traumatic stress disorder. It says that poor test results do not constitute malingering. The written tests often were part of the Madigan screening process that overturned the PTSD diagnoses of more than 300 patients during the past five years."
VA Releases 70 New Disability Benefits Questionnaires
Disability Benefits Questionnaires (DBQs)
VA releases 70 new DBQ forms, following success with Agent Orange [AO] medical questionnaires. DBQs are used to guide physician in making their reports of medical findings, ensuring that VA has the medical information needed to make prompt decisions.
Veterans have the option of visiting a private health care provider instead of a VA facility to complete their disability evaluation form. Veterans can have their providers fill out any of the more than 70 DBQs that are appropriate for their conditions and submit them to VA.
Remember, doctors are not attorneys, so get help filling out these form so that the form clearly and fairly represents your medical condition and degree of disability. This will save time time not only in the initial evaluation but also during any subsequent appeals.
Forms can be found here:
http://benefits.va.gov/TRANSFORMATION/dbqs/ListByDBQFormName.asp
Friday, April 20, 2012
Single Judge Application, Vocational Rehab., Entitlement to Full Explanation; Freeman v. Shinseki, 24 Vet.App. 404, 417 (2011)
Excerpt from decision below:
"Further, although the Secretary is correct that the Court reviews the Board's determination that a vocational goal is not reasonably feasible under the "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law" standard of review, Kandik v. Brown, 9 Vet.App. 434, 438 (1996) (citing 38 U.S.C. § 7261(a)(3)(A)), that highly deferential standard does not relieve the Board of its duty to provide an adequate statement of reasons or bases for its application of the detailed VA regulations governing the award of
vocational rehabilitation benefits. See Freeman v. Shinseki, 24 Vet.App. 404, 417 (2011) (holding that an appellant would "be entitled to a full explanation . . . of the reasons or bases for the Board's decision" regarding the Secretary's discretionary appointment of a particular fiduciary).
=============
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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 11-0425
ABDULLAH SHABAZZ, 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: Abdullah Shabazz appeals through counsel an October 12, 2010,
Board of
Veterans' Appeals (Board) decision denying entitlement to vocational
rehabilitation benefits and
training as a paralegal (non-lawyer legal assistant). Record (R.) at 3-16.
Mr. Shabazz's Notice of
Appeal was timelyand the Court has jurisdiction to review the Board
decision pursuant to 38 U.S.C.
§ 7252(a). The parties neither requested oral argument nor identified
issues that theybelieve require
a precedential decision of the Court. Because the Board's statement of
reasons or bases for its
decision was inadequate, the Court will vacate the October 12, 2010, Board
decision and remand the
matter for readjudication consistent with this decision.
I. FACTS
Mr. Shabazz served on active duty in the U.S. Army from May 1955 to
October 1958. He
currentlyhas a 20% combined disability rating for a left wrist strain and
residuals of fractures of two
bones of the left hand.
Although all documents relevant to the claim are not contained in the
record of proceedings,
it appears that Mr. Shabazz has been seeking vocational rehabilitation
benefits since at least 1984.
Mr. Shabazz's most recent claim for vocational rehabilitation benefits
began in June 2001, when he
expressed interest in training to become a paralegal. However, in July
2002, a VA regional office
denied Mr. Shabazz's claim for vocational rehabilitation benefits and
training as a paralegal.
Specifically, the regional office found that it was not reasonably
feasible for Mr. Shabazz to
complete a two-year paralegal certification program offered by a local
community college because
(1) the job outlook for certified paralegals in the local market was poor
given the surplus of attorneys
seeking similar employment; (2) he failed to complete previous VA
vocational rehabilitation
programs; and (3) "were he to complete such a program successfully, he
would be 67 years of age
upon program completion." R. at 2138. Mr. Shabazz filed a timely Notice of
Disagreement with
that decision, stating that he had been accepted into the aforementioned
paralegal training program
at the community college and requesting a hearing to determine whether he
was entitled to
"immediate financial support to meet [his] academic goal and requirements."
R. at 549. He
subsequently perfected his appeal.
In April 2009, Mr. Shabazz was afforded a hearing before a Board member.1
At that time,
Mr. Shabazz testified that he previously submitted a letter to VA from
attorney Alan D. Eisenberg
stating that he would hire Mr. Shabazz as a paralegal once he completed
the training program. Mr.
Shabazz also stated that he had another, similar letter from attorney
Alfred Albertson, but that he
forgot to bring it with him to the hearing. At the conclusion of the
hearing, the Board member
indicated that he would leave the record open for 30 days so that Mr.
Shabazz could submit any
additional documents that he had in his possession. However, Mr. Shabazz
failed to do so.
Nevertheless, in August 2009, the Board remanded his claim for further
development.
In January 2010, a VA vocational counselor reevaluated the feasibility of
Mr. Shabazz's
vocational goal of becoming a paralegal. The counselor noted that Mr.
Shabazz's "interests,
aptitudes[,] and abilities" were consistent with those of a paralegal and
that his "general medical
condition" would not "limit him physically in the usual activities of a
paralegal." R. at 2481.
However, the counselor also explained that Mr. Shabazz had "a troubling
legal history," including
1
It is unclear from the parties' briefs and the record of proceedings why
it took nearly six years to schedule the
requested hearing. See R. at 549 (September 2002 Notice of Disagreement),
524-28 (March 2003 Statement of the
Case), R. at 73 (references to a June 2006 Supplemental Statement of the
Case, a July 2006 VA Form 9, and an October
2006 certification of the appeal to the Board), 143-84 (transcript from
the April 2009 Board hearing).
2
multiple felony convictions for forgery and dealing in false securities,
which made "finding gainful
employment as a paralegal . . . remote at best," particularly considering
the limited local job market
for paralegals. R. at 2482. The counselor confirmed this hypothesis with
the regional counsel at the
local regional office, who stated that Mr. Shabazz's "'propensity toward
not being honest' would be
a barrier to securing employment in the legal arena generally, and that VA
would not hire a paralegal
with an extensive legal history." Id. Finally, the counselor noted that Mr.
Shabazz would face
"[a]dditional projected difficulties" because he had been unemployed for
over 10 years, with
"significant restriction on employability resulting from his age of 72." R.
at 2483. Therefore, the
counselor concluded that it was not reasonably feasible for Mr. Shabazz to
achieve his occupational
goal of obtaining employment as a certified paralegal.
InOctober2010,the Board issued the decision currentlyonappeal,
whichdeniedentitlement
to vocational rehabilitation benefits and training as a paralegal. The
Board reviewed the evidence
of record and noted that, in the April 2009 Board hearing, Mr. Shabazz
indicated that he "submitted
to his counselor two letters from local attorneys who stated that they
would hire [him] in a[n]
apprenticeship program," but that "[those] letters are not of record nor
have they been mentioned in
VA counselor reports." R. at 11. The Board then acknowledged Mr. Shabazz's "
legal history of
convictions for fraud, misrepresentation, and unsatisfied judgments" and
noted that "the applicable
state law does permit denial of employment if the felony convictions are
substantially related to the
job" and that "[a] national paralegal association and the Wisconsin State
Bar both support the denial
of licensure as a paralegal to those convicted of crimes of moral
turpitude." R. at 15-16. In light of
those barriers, the Board concluded that it was not reasonably feasible
for Mr. Shabazz to secure
employment as a paralegal.
II. ANALYSIS
A. Duty To Assist
Mr.Shabazz firstargues thattheBoard's determination thatVAsatisfiedits
dutyto assist was
clearlyerroneousbecauseVAgenerally,andtheBoardmemberspecifically,
wererequiredto inform
him that the attorney letters that he referenced at the April 2009 Board
hearing were not in the
record. The Court disagrees.
3
1. Duties of a VA Hearing Officer
"Upon request, a claimant is entitled to a hearing at anytime on anyissue
involved in a claim
within the purview of part 3 of [title 38 of the Code of Federal
Regulations.]" 38 C.F.R.
§ 3.103(c)(1) (2011). "It is the responsibility of the [VA] employee or
employees conducting the
hearings to explain fully the issues and suggest the submission of
evidence which the claimant may
have overlooked and which would be of advantage to the claimant's position [
on appeal]." 38 C.F.R.
§ 3.103(c)(2). This provision "imposes . . . two distinct duties on the
hearing officer . . . : The duty
to explain fully the issues and the duty to suggest the submission of
evidence that may have been
overlooked." Bryant v. Shinseki, 23 Vet.App. 488, 492 (2010) (per curiam).
These requirements are
designed "'[t]o assure clarity and completeness of the hearing record.'"
Thomas v. Nicholson,
423 F.3d 1279, 1285 (Fed. Cir. 2005) (quoting 38 C.F.R. § 3.103(c)(2) (
2005)); see also Bryant,
23 Vet.App. at 499.
The Court notes that, on August 23, 2011, VA published a final rule "
amending its hearing
regulations to clarify that the provisions regarding hearings before the
Agency of Original
Jurisdiction do not apply to hearings before the Board of Veterans'
Appeals," effective on that date.
76 Fed. Reg. 52572–75 (Aug. 23, 2011). This amendment was intended to
make "clarifying
changes" to reflect VA's intent to differentiate between the duties owed
to claimants by hearing
officers at the agency of original jurisdiction and Board members. See id.
In this case, the Court need not reach the question of whether VA's recent
amendment to
§ 3.103(c)(2) applies retroactively because, even assuming that it did
not, Mr. Shabazz's arguments
would lack merit. Specifically, Mr. Shabazz does not argue that the Board
member failed to fully
explain anyissues related to his claim, but rather asserts that the Board
member failed to suggest that
he submit evidence–i.e., the letters from attorneys stating that
theywould hire him upon completion
of his paralegal training–that was not in the record. However, the fatal
flaw with this argument is
that a hearing officer is onlyrequired to suggest that a claimant submit
evidence that "mayhave been
overlooked," not evidence that is simplymissing from the record. 38 C.F.R.
§ 3.103(c)(2) (emphasis
added). Indeed, Mr. Shabazz concedes that § 3.103(c)(2) would not applyin
his case because "[t]his
situation does not involve [him] overlooking the evidence" because he was
aware of the existence
of the attorney letters and their importance to his claim. Appellant's Br.
at 9; see R. at 153 (Mr.
4
Shabazz's testimony indicating that a vocational rehabilitation counselor
previously told him to
obtain such letters to substantiate his claim). Rather, Mr. Shabazz argues
only that "the spir[i]t of
38 C.F.R. § 3.103(c)(2), as well as fundamental due process
considerations, would requirethe Board
member to suggest to him that he resubmit [the attorney letters]." Id. at
10.
However, Mr. Shabazz does not cite any precedent for his argument that the
Court should
expand the duties of a hearing officer beyond those specificallyenumerated
in § 3.103(c)(2), and the
Court is unpersuaded by his vague and unsupported due process and fairness
arguments. See
Locklear v. Nicholson, 20 Vet.App. 410, 416 (2006) (holding that the Court
will not entertain
underdevelopedarguments);Brewerv.West,11Vet.App.228,236(1998)(
explainingthattheCourt
need not consider "mere assertions of constitutional impropriety for which [
the appellant] has not
provided any legal support").
The Court therefore concludes that, even assuming that the
amendment to § 3.103(c)(2) is not retroactive, Mr. Shabazz has failed to
carry his burden of
demonstrating that the Board member violated any duty imposed by that
regulation. See Hilkert v.
West, 12 Vet.App. 145, 151 (1999) (en banc) (holding that the appellant
has the burden of
demonstrating error), aff'd per curiam, 232 F.3d 908 (Fed. Cir. 2000) (
table).
2. VA's General Duty To Obtain Records
"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
Secretary." 38 U.S.C. § 5103A(a)(1). This duty includes making "
reasonable efforts to obtain
relevant records (including private records) that the claimant adequately
identifies to the Secretary
and authorizes the Secretary to obtain." 38 U.S.C. § 5103A(b)(1). If the
Secretary is unable to
obtain all of the records sought, the Secretary must provide notice to the
claimant that "identif[ies]
the records that the Secretary was unable to obtain," "briefly explain[s]
the efforts that the Secretary
made to obtain those records," and "describe[s] any further action to be
taken by the Secretary with
respect to the claim." 38 U.S.C. § 5103A(b)(2). These requirements also
apply to private
documents.
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). "A factual
finding 'is "clearly erroneous" when although there is evidence to support
it, the reviewing court on
5
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)).
Here, Mr.Shabazz testified that he had a letterfrom attorneyAlbertson that
he forgot to bring
with him to the hearing, and the Board member directed that the record be
held open for 30 days to
allow him to submit it. Nevertheless, Mr. Shabazz did not do so. On appeal,
Mr. Shabazz argues
that his failure to submit the letter from attorney Albertson compelled VA
to obtain it on his behalf.
To accept this argument would be to impose on VA a quiescent duty to
obtain records known to the
claimant and within the claimant's exclusive possession that springs to
life upon the claimant's
inaction. However, "[t]he duty to assist is not always a one-way street"
and a claimant seeking
assistance "cannot passively wait for it in those circumstances where he
may or should have
information that is essential in obtaining the putative evidence." Wood v.
Derwinski, 1 Vet.App.
190, 193 (1991). The duty to assist is just that: a requirement that VA
assist the claimant in
obtaining evidence to substantiate a claim, not a requirement that VA
produce that evidence while
the claimant rests on his laurels. Accordingly, the Court concludes that
the Board's determination
that VA satisfied its duty to assist Mr. Shabazz in obtaining the letter
from attorney Albertson was
not clearly erroneous. See Nolen, 14 Vet.App. at 184.
Mr. Shabazz also testified that he had previously submitted a similar
letter from attorney
Eisenberg to his VA vocational rehabilitation counselor. Unlike the letter
from attorney Albertson
that Mr. Shabazz did not submit to VA and therefore had no reason to
believe was in the record
before the agency, Mr. Shabazz's testimony establishes that he believed
that the letter from attorney
Eisenberg was alreadyin the record and would therefore be considered bythe
Board. Consequently,
Mr. Shabazz argues that VA had a duty to assist him in obtaining that
letter once the Board
determined that it was not in the record.
The Court notes that, aside from cursory references to 38 U.S.C. § 5103A(
a) and (b), Mr.
Shabazz does not cite any legal precedent in support of his argument.
Rather, Mr. Shabazz merely
asserts that "VA could easily have informed [him]" that the letter from
attorney Eisenberg was not
in the record before the agencyand that "[i]t is hardly an undue burden on
VA to expect it to provide
this minimal assistance." Appellant's Br. at 10; Appellant's Reply Br. at
4. Even assuming, as Mr.
6
Shabazz contends, that it would be "easy" for VA to review the record to
determine whether it
contains evidence that a claimant believes is in the record and inform the
claimant of that missing
evidence, Mr. Shabazz has failed to identify any statute, regulation, or
legal precedent that requires
VA to do so. The Court reminds Mr. Shabazz that "[t]he duty to assist is
not boundless in its scope."
Golz v. Shinseki, 590 F.3d 1317, 1320 (Fed. Cir. 2010). Absent any
citation to legal authority
supporting the requested extension of the duty to assist, the Court
concludes that Mr. Shabazz has
failed to carry his burden of demonstrating that the Board's determination
that VA satisfied its duty
to assist him in obtaining the letter from attorney Eisenberg was clearly
erroneous. See Nolen,
14 Vet.App. at 184; Hilkert, 12 Vet.App. at 151. The Court has made it
clear that, especially in a
case where the appellant is represented by an attorney, the Court is not
required to address an
underdeveloped argument. See Locklear v. Nicholson, 20 Vet.App. 410, 416 (
2006); cf. Redondo-
Borges v. U.S. Dept. of Hous. & Urban Dev., 421 F.3d 1, 6 (1st Cir. 2005) ("
Even during appellate
review of a [dismissal for failure to state a claim], which takes place
under a set of plaintiff-friendly
guidelines, the reviewing court cannot be expected to 'do counsel's work,
create the ossature for the
argument, and put flesh on its bones.'" (quoting U.S. v. Zannino, 895 F.2d
1, 17 (1st Cir. 1990))).
The failures mentioned above place this case in that category.
B. Reasons or Bases
Mr. Shabazz next argues that the Board's statement of reasons or bases for
its decision was
inadequatebecausetheBoardfailedto considerevidencepotentiallyfavorableto
his claimandfailed
to explain why a barrier to employability rendered his vocational goal not
reasonably feasible. The
Court agrees.
In rendering its decision, the Board 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
enablea claimant to understand
the precise basis for the Board's decision, as well as to facilitate
review in this Court. Gilbert v.
Derwinski, 1 Vet.App. 49, 57 (1990). To comply with this requirement, the
Board must analyze the
credibilityand probative value of the evidence, account for the evidence
that it finds to be 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.
7
1996) (table). The Board may commit error requiring remand when it fails
to provide an adequate
statement of its reasons or bases. See Gilbert, 1 Vet.App. at 57.
Although Mr. Shabazz makes numerous arguments regarding the adequacy of
the Board's
statement of reasons or bases, the Court is persuaded by his argument that
the Board failed to
consider evidence that he was performing volunteer legal work for a civil
rights organization under
the supervision of licensed attorneys. Specifically, Mr. Shabazz notes
that there is evidence in the
record indicating that he conducts legal research and drafts
correspondence to clients. These tasks
are similar to those routinely performed by paralegals and it appears that
Mr. Shabazz's criminal
history was not a barrier to his securing such employment, albeit on a
volunteer basis. The Board's
decision rests primarily, if not solely, on the determination that Mr.
Shabazz's particular vocational
goal–i.e., qualification as a paralegal–is not reasonably achievable
when considering the
circumstance of his previous criminal record. This finding makes the
evidence that he would be
hired by two lawyers and that he currently works as a paralegal on a
volunteer basis particularly
probative regarding the issue of whether his criminal record is a barrier
to the reasonable feasibility
of employment. Accordingly, this evidence is potentially favorable to Mr.
Shabazz's claim and the
Board, therefore, was required to consider and discuss it in determining
whether his vocational goal
of becoming a certified paralegal was reasonably feasible. See Caluza, 7
Vet.App. at 506. The
Board's failure to do so renders its statement of reasons or bases
inadequate and, therefore, the Court
concludes that vacatur and remand is warranted.2
See Tucker v. West, 11 Vet.App. 369, 374 (1998);
Gilbert, 1 Vet.App. at 57.
Further, although the Secretary is correct that the Court reviews the
Board's determination
that a vocational goal is not reasonably feasible under the "arbitrary,
capricious, an abuse of
discretion, or otherwise not in accordance with law" standard of review,
Kandik v. Brown,
9 Vet.App. 434, 438 (1996) (citing 38 U.S.C. § 7261(a)(3)(A)), that
highlydeferential standard does
not relieve the Board of its duty to provide an adequate statement of
reasons or bases for its
2
As noted above, Mr. Shabazz has raised other arguments relating to the
Board's statement of reasons or bases
for its decision. However, because the Court is remanding Mr. Shabazz's
claim and the Board will necessarily render
a new decision on remand, the Court need not address those 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.").
8
application of the detailed VA regulations governing the award of
vocational rehabilitation benefits.
See Freeman v. Shinseki, 24 Vet.App. 404, 417 (2011) (holding that an appellant would "be entitled to a full explanation . . . of the reasons or bases for the Board's decision" regarding the Secretary's discretionary appointment of a particular fiduciary).
Lastly, the Board placed great importance on the opinion of VA's regional counsel that Mr. Shabazz's vocational goal of becoming a certified paralegal would not be reasonably feasible in light
of his criminal record. However, this opinion is only referenced in the
January 2010 VA vocational
counselor's report and is not contained in the record before the agency or
the record of proceedings
in this appeal. Therefore, the Court concludes that the Board erred in
relyingon that opinion because
it did not notify Mr. Shabazz that it would consider that extrinsic
evidence and did not provide him
with an opportunity to submit contrary evidence or argument. See Thurber v.
Brown, 5 Vet.App.
119, 126 (1993); 38 C.F.R. § 20.903 (2011).
On remand, Mr. Shabazz is free to submit additional evidence and argument
in accordance
with Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999) (per curiam
order), and, in particular,
is encouraged to submit the letters from attorneys Albertson and Eisenberg
if they are still in his
possession. See Kay v. Principi, 16 Vet.App. 529, 534 (2002). "A remand is
meant to entail a
critical examination of the justification for the decision" by the Board.
Fletcher v. Derwinski,
1 Vet.App. 394, 397 (1991). In addition, the Board shall proceed
expeditiously, in accordance with
38 U.S.C. § 7112 (expedited treatment of remanded claims).
III. CONCLUSION
Upon consideration of the foregoing, the October 12, 2010, Board decision is VACATED and the matter is REMANDED for readjudication consistent with this decision.
DATED: March 27, 2012
Copies to:
Daniel G. Krasnegor, Esq.
VA General Counsel (027)
9
Single Judge Application, Massie v. Shinseki, 25 Vet.App. 123, 131-32 (2011); 38 CFR 3.157(b)
Excerpt from decision below:
"Accordingly, this Court has previously held that, unless the evidence of record demonstrates the veteran's intent to seek benefits for a particular disability, the mere existence of medical evidence referencing the disability, such as that cited by Mr.
9
Hester, does not raise an informal claim for such benefits. See Criswell v. Nicholson, 20 Vet.App. 501, 503–04 (2006). The only exception to this rule is that, pursuant to regulation, certain medical records demonstrating a worsening in a veteran's disability that is already service connected may constitute an informal claim for an increased disability rating for that disability. See 38 C.F.R.
§ 3.157(b) (2011); see also Massie v. Shinseki, 25 Vet.App. 123, 131-32 (2011) (discussing the requirements of § 3.157(b)).
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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 10-3072
ANTE HESTER, 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: Ante Hester, who is self-represented,1
appeals a December 17, 2009, Board
of Veterans' Appeals (Board) decision2
denying entitlement to an initial disability rating for a
cervical spine disability in excess of 20% from December 14, 1993, to
August 16, 2001, and in
excess of 60% from August 16, 2001, onward.3
Mr. Hester's Notice of Appeal was timely and the
Court has jurisdiction to review the Board decision pursuant to 38 U.S.C. §
7252(a). The parties
neitherrequestedoralargumentnor identified issues that theybelieve
requireaprecedentialdecision
1
Mr. Hester's principal brief was submitted through counsel, but the Court
issued an order granting his former
counsel's motion to withdraw on September 22, 2011.
The Board's decision was issued on December 17, 2009. Mr. Hester
subsequently filed a motion for
reconsideration, which was denied by the Board on September 8, 2010.
The Board also granted entitlement to VA benefits for a left elbow
disability. However, on appeal, Mr. Hester
presents no argument related to this aspect of the Board decision and the
Court therefore deems any such argument
abandoned. See Grivois v. Brown, 6 Vet.App. 136, 138 (1994) (issues or
claims not argued on appeal are considered
abandoned). The Board also remanded the issue of entitlement to a total
disability rating based on individual
unemployability for further development. Because the Board has not yet
issued a final decision regarding this issue, the
Court does not have authority to consider it at this time. See 38 U.S.C. §
7252 (providing that the Court may only review
final decisions of the Board); see also Howard v. Gober, 220 F.3d 1341,
1344 (Fed. Cir. 2000) (holding that a Board
remand does not constitute a final decision that may be appealed (citing
38 C.F.R. § 20.1100(b)(1999))).
3
2
of the Court. Because the Board provided an adequate statement of reasons
or bases for its decision,
the Court will affirm the September 2010 Board decision.
I. FACTS
Mr. Hester served on active duty with the U.S. Army from October 1993 to
December 1993.
He was discharged from active duty after a medical board determined, in
October 1993, that he did
not meet medical fitness standards for enlistment due to the residuals of
a preexisting left elbow
fracture"with intermittent symptoms ofnumbnessand tinglingin the ulnar
nervedistribution aswell
as the middle finger on the left hand" that occasionally spread to the
index finger. Record (R.) at
1735. The medical board noted that, a week prior to its determination, Mr.
Hester fell and
subsequently "developed some muscle spasm on the left side of his neck." R.
at 1735.
In January 1994, shortly after his separation from active duty, Mr. Hester
filed a claim for
VA benefits for a neck injury resulting from the in-service fall. Mr.
Hester was provided a VA
muscles examination in April 1994. After a physical examination and the
interpretation of x-rays
taken at that time, the examiner diagnosed Mr. Hester with a left neck
muscle strain and ruled out
cervical radiculopathy.4
In June 1994, a VA regional office awarded Mr. Hester VA benefits for a
left neck muscle
strain, evaluated as 10% disabling, effective January 1994.
Mr. Hester filed a Notice of
Disagreement with this decision in November 1994 and, in December 1994,
the regional office
issued a Statement of the Case continuing the previous determination. In
January 1995, Mr. Hester
submitted a statement requesting a personal hearing and notification of
what further action would
be taken.
VA medical records from 1996 indicate that Mr. Hester sought treatment for
various
problems. A January 1996 VA treatment note reflects that Mr. Hester
reported intermittent
headaches with photophobia, the sensation of seeingblackdots, andpressure.
Theimpression atthat
time was probable vascular headaches. A March 1996 VA treatment note
reflects continued
complaints of headaches and blurry eyesight. A VA treatment note from
September 1996 indicates
Radiculopathy is "disease of the nerve roots, such as from inflamation or
impingement by a tumor or bony
spur." DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 1571 (32d ed. 2012) [
hereinafter "DORLAND'S"].
4
2
that Mr. Hester complained of neck pain with right arm numbness. The only
assessment was neck
pain. A VA neurological clinic note from October 1996 indicates that Mr.
Hester reported
headaches, tingling in both of his hands, and numbness in his right arm.
Mr. Hester told the
examiner that his headaches had plagued him since childhood and caused
some visual problems, but
no nausea or vomiting. The examiner's impression was variable headaches
and numbness and
tingling on both hands. Peripheral neuropathy5
and cervical radiculopathy were ruled out.
Mr. Hesterwasaffordeda VA joints examination in February1997. The examiner
noted that
computedtomographyscansofMr.Hester'sheadperformedin
February1996werenegativeandthat
nerve conduction velocity studies performed on his left upper extremity in
March 1995 were
negative for radiculopathy, neuropathy, and carpal tunnel disease. After
physical examination, the
examiner diagnosed a chronic strain of the cervical spine.
In June 1997, the regional office issued a rating decision denying a
disability rating in excess
of 10% for a left neck muscle strain. Although not entirely clear, it
appears that the regional office
made this determination in the context of a new claim for an increased
disability rating. There is no
indication that Mr. Hester appealed this decision, meaning it became final.
A November 2000 VA physical therapy initial evaluation report reflects
that Mr. Hester
complained of increased pain in his spine described as "intermittent and
. . . localized to the left
upper trapezius muscle with some radiation into the upper cervical spine,
radiating into the occiput
as well as to the parietal lobe, experiencing the pain as headaches." R.
at 1589. The assessment at
that time was "signs and symptoms of [a] left upper trapezius strain." R.
at 1589.
A March 2001 VA x-ray report contained an impression of cervical
spondylosis. A
subsequent VA treatment note from May 2001 reflects that Mr. Hester
complained of recent loss of
balance and continuing headaches, neck pain, and neck spasms. The
impression was (1) cervical
spondylosis, (2) myofascial6
pain, and (3) headaches secondary to the cervical spondylosis and
myofascial pain, or of another etiology.
Peripheral neuropathy, or polyneuropathy, is "neuropathy of several
peripheral nerves simultaneously."
DORLAND'S at 1491. Neuropathy is "a functional disturbance or pathological
change in the peripheral nervous system,
sometimes limited to noninflammatory lesions as opposed to those of
neuritis." Id. at 1268.
The term "myofascial" means "pertaining to or involving the fascia
surrounding and associated with muscle
tissue." DORLAND'S at 1223.
6
5
3
In August 2001, Mr. Hester submitted a statement "requesting a current
review of [his]
present condition as it relates to spondylosis, facial pain[,] and
migraine headaches." R. at 1480.
The regional office treated this statement as a claim for an increased
disability rating for his service-
connected left neck muscle strain and initial claims for VA benefits for
cervical spondylosis and
myofascial pain with headaches, both secondary to his service-connected
left neck muscle strain.
Each of these claims was denied by the regional office in a June 2002
rating decision. The claims
for benefits for myofascial pain with headaches and cervical spondylosis
were both denied because
there was no evidence that they were related to the service-connected left
neck muscle strain or that
the conditions manifested in service. Mr. Hester filed a Notice of
Disagreement with this decision
in December 2002.
Mr. Hester was afforded VA spine examinations in September 2002 and July
2003, during
which range of motion testing was conducted and magnetic resonance imaging
and
electromyography testing results were reviewed. The September 2002
examiner diagnosed Mr.
Hester with "[c]ervical spondylosis with foraminal stenosis" and the July
2003 examiner assessed
him with "[i]ntervertebral dis[c] syndrome with radicular symptoms and
cervical spondylosis with
foraminal stenosis." R. at 1347, 977. The July 2003 examiner further
opined that "it is at least as
likely as not that the continued progression of [Mr. Hester's] symptoms
are related to the onset of
symptoms in service." R. at 977.
Separate Statements of the Case were issued in October 2002 (continuing to
deny an
increased disability rating for a service-connected left neck muscle
strain) and September 2003
(continuing to deny, among other claims, Mr. Hester's claim for VA
benefits for myofascial pain
with headaches). Also in September 2003, a decision review officer granted
Mr. Hester's claim for
benefits for cervical spine spondylosis and assigned a 10% disability
rating, effective August 16,
2001. This award of benefits was made in addition to the existing award of
benefits for a left neck
muscle strain. Mr. Hester filed a Notice of Disagreement with this
decision later that month.
In November 2003, Mr. Hester submitted a statement indicating that he "[d]
isagree[ed] with
all of the [i]ssue[s] on appeal" and that he wanted "a decision on all [of
his] [i]ssue[s]." R. at 770,
771.
4
In March 2004, a decision review officer issued another decision. At the
outset, the decision
review officer noted that other issues remained pending following the
issuance of Statements of the
Case, including Mr. Hester's claim for benefits for myofascial pain
syndrome with headaches. The
decision reviewofficerfoundthatMr.Hester's service-
connectedleftneckmusclestrainandcervical
spondylosis should betreatedasonedisabilityandthat"[t]he evaluation of
cervical spondylosis with
chronic muscle strain of the left neck [was] increased to 60% disabling
effective August 16, 2001."
R. at 587. The decision review officer rated this condition pursuant to
the rating criteria for
intervertebral disc syndrome, 38 C.F.R. § 4.71a, Diagnostic Code 5293 (
2001).7
In establishing this
disability rating, the decision review officer relied on "[m]edical
evidence show[ing] significant
impairment in the neck and left arm with lesser symptoms in the right arm,"
and stated that the 60%
disability rating "include[d] all neurological symptoms in the arms." R.
at 587.
In October 2007, Mr. Hester requested revision of the June 1994 regional
officedecision that
awarded benefits for a left neck muscle strain and assigned a 10%
disability rating, alleging that that
decision was tainted by clear and unmistakable error. After further
development, in July 2009 the
Board dismissed this motion as untimely because it found that Mr. Hester's
January 1995 statement
regarding his neck claim was filed "within the one year appeals period
from the denial of the claims"
and was sufficient to demonstrate his intent to pursue an appeal of the
issues decided in the June
1994 regional office decision. R. at 166. Accordingly, the Board found
that the regional office
mistakenly "failed to certify the issues to the Board, . . . the Board
. . . never [took] any action," and
the appeal therefore remained open. R. at 166. The Board remanded Mr.
Hester's claim for benefits
for a left neck muscle strain for further development and readjudication.
In October 2009, the regional office issued a Supplemental Statement of
the Case continuing
to deny an initial disability rating for a service-connected left neck
muscle strain in excess of 10%
for the period between December 14, 1993, and August 16, 2001, whenMr.
Hester's disabilityrating
was increased to 60%. The following month, Mr. Hester appealed to the
Board, arguing that,
because his appeal remained open, the effective date for the March 2004
award of a 60% disability
rating should have been effective from the date of his claim.
7
Becausethediagnosticcriteriachanged duringthependencyofMr. Hester'sappeal,
thedecisionreviewofficer
determined that the previous version would result in a higher disability
rating,and therefore applied it.
5
TheBoardissuedthe decision now on appeal in December 2009. The Board
framedtheissue
before it as Mr. Hester's entitlement to an initial disability rating for
a "cervical spine disability" in
excess of 10% for the period from December 14, 1993 (the date Mr. Hester
filed a claim for a neck
injury), to August 16, 2001 (the effective date established by the March
2004 decision for a 60%
disability rating for cervical spondylosis with chronic muscle strain of
the left neck). R. at 94.
II. ANALYSIS
In rendering its decision, the Board 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, as well as to facilitate
review in this Court. See Gilbert
v. Derwinski, 1 Vet.App. 49, 57 (1990). To comply with this requirement,
the Board must analyze
the credibility and probative value of the evidence, account for the
evidence that it finds to be
persuasive or unpersuasive, and provide the reasons for its rejection of
any material evidence
favorable to the claimant. See Caluza v. Brown, 7 Vet.App. 498, 506 (1995),
aff'd per curiam,
78 F.3d 604 (Fed. Cir. 1996) (table). The Board may commit error requiring
remand when it fails
to provide an adequate statement of its reasons or bases. See Gilbert, 1
Vet.App. at 57.
Mr. Hester argues that the Board's reasons or bases for its decision were
inadequate in four
respects, all of which pertain to the disability rating established prior
to August 16, 2001.
A. Extraschedular Consideration
First, Mr. Hester contends that the Board failed to adequately explain its
determination that
referral for extraschedularconsideration was not warranted for the period
of time prior to August 16,
2001.
Consideration of whether a claimant is entitled to an extraschedular
rating is a three-step
inquiry. Thun v. Peake, 22 Vet.App. 111, 115 (2008), aff'd, 572 F.3d 1366 (
Fed. Cir. 2009). The
first step is to determine whether the "evidence before VA presents such
an exceptional disability
picture that the availableschedular evaluations for that service-connected
disabilityare inadequate."
Id. If the adjudicator determines that this is so, the second step of the
inquiryrequires the adjudicator
to "determine whether the claimant's exceptional disability picture
exhibits other related factors,"
6
such as marked interference with employment or frequent periods of
hospitalization. Id. at 116.
Finally, if the first two steps of the inquiry have been satisfied, the
third step requires the adjudicator
to refer the claim to the Under Secretary for Benefits or the Director of
the Compensation and
Pension Service for a determination of whether an extraschedular rating is
warranted. Id.
TheBoardconcludedthat,priorto August16,2001,Mr.Hester's"service-
connectedcervical
spine disability manifest[ed] with pain and limitation of motion, with
associated neurological
symptoms of sensorydeficit." R. at 112. However, the Board further
concluded that its examination
of Mr. Hester's symptoms and the relevant schedular criteria reflected
that "these symptoms are
contemplated by the rating criteria." R. at 112. The Board therefore
concluded that referral for
extraschedular consideration was not warranted.
Mr. Hester argues that, by discussing only his symptoms of pain,
limitation of motion, and
neurological sensory deficits, the Board ignored evidence suggesting that,
prior to August 2001, he
alsosufferedfromsymptoms suchasheadaches,blurredvision, lossofbalance,
andmyofascialpain.
He further asserts that there is evidence that these symptoms may be
attributable to his service-
connected neck condition, including the May 2001 VA treatment note that
included an assessment
of headaches possibly secondary to the cervical spondylosis or myofascial
pain. Accordingly, he
contends that the Board should have discussed whether these symptoms
warranted referral for
extraschedular consideration. The Court disagrees.
The record indicates that, since Mr. Hester filed a statement in August
2001 requesting
review of his condition as it relates to myofascial pain and migraine
headaches, the regional office
has recognized a separate claim for disability compensation benefits for a
condition characterized
by such symptoms, including as secondary to Mr. Hester's service-connected
neck/cervical spine
condition. The record further indicates that the regional office denied
this claim in June 2002, that
Mr. Hester filed a Notice of Disagreement with this decision, and that the
regional office issued a
Statement of the Case continuing to deny this claim in September 2003. The
Court notes that, in
November 2003, Mr. Hester filed a statement expressing that he "[d]isagree[
d] with all of the
[i]ssue[s] on appeal" and requesting "a decision on all [his] [i]ssue[s]."
R. at 770, 771.
In January 2012, the Court issued an order directing "the Secretary to
supplement the record
of proceedings with all documents pertaining to VA's adjudication of the
claim for benefits for
7
myofascial pain syndrome with headaches" in an effort to better assess
the status of this claim.
Hester v. Shinseki, U.S. Vet. App. No. 10-3072 (Jan. 20, 2012, order).8
Although the Secretaryfiled
a supplemental record of proceedings in February 2012, the evidence
contained in this supplement
is either duplicative of that already contained in the original record of
proceedings or simply does
not relate to Mr. Hester's claim for benefits for myofascial pain with
headaches. The Court is
therefore left to assume that VA has taken no further adjudicatory action
on this claim since the
September 2003 Statement of the Case. The Court is troubled by this state
of affairs, given Mr.
Hester's November2003statementthatappearsto request appellatereview of all
issues thenpending
in appellate status, which would presumablyinclude the denial of his claim
for myofascial pain with
headaches. Nevertheless, because the issue of the denial of benefits on
that claim is not currently
before the Court, the Court makes no finding at this time regarding
whether the November 2003
statement constituted a Substantive Appeal, since the Court would lack
jurisdiction to do so.
Regardless, it is apparent from the record that VA has determined that Mr.
Hester's
myofascial pain, headaches,and attendant symptoms are attributable to a
disabilityseparate from his
service-connected cervical spine disability, and that this disability is
not secondary to the cervical
spine disability or otherwise related to his service. This being so, these
symptoms are not pertinent
to the service-connected cervical spine disability that is at the heart of
this appeal and the Board was
therefore not required to discuss them when conducting an extraschedular
analysis. See 38 C.F.R.
§ 3.321 (2011) (expresslystating that extraschedular evaluation should
compensate for "the average
earning capacity impairment due exclusively to the service-connected
disability or disabilities"
(emphasis added)); see also 38 U.S.C. § 7104(d)(1) (providing that the
Board must provide a
statement of its reasons or bases for its findings and conclusions only "
on . . . material issues of fact
and law presented on the record" (emphasis added)); Caluza, 7 Vet.App. at
506 (stating that the
Board's obligation to explain its determinations requires it to explain
its rejection of any material
evidence that is favorable to the claimant). In reaching this conclusion,
the Court emphasizes that
The Court also offered Mr. Hester an opportunity to supplement the record
with any documents he felt were
relevant but had not been included in the supplement filed by the
Secretary, see Hester v. Shinseki, U.S. Vet. App. No.
10-3072 (Mar. 15, 2012, order), but, on March 20, 2012, he filed a
response indicating that he had nothing more to add.
8
8
the propriety of the regional office's determination that Mr. Hester's
disorder characterized as
myofascial pain with headaches is not service connected is simply not
before the Court at this time.
In light of this discussion, the Court concludes that Mr. Hester has not
carried his burden of
demonstrating error in the Board decision now on appeal. See Hilkert v.
West, 12 Vet.App. 145, 151
(1999) (en banc) (holding that appellant has the burden of demonstrating
error), aff'd per curiam,
232 F.3d 908 (Fed. Cir. 2000) (table).
B. Claims Reasonably Raised by the Record
Mr. Hesternext argues that the Board's statement of reasons or bases was
inadequate because
"the decision on appeal fails to explain why the evidence of headaches,
blurred vision, and loss of
balance—and evidence that these problems are associated with service-
connected cervical spine
disability—were not additional claims reasonably raised by the record."
Appellant's Br. at 15. This
argument is not compelling.
First, and as noted above, the record reflects that VA has recognized and
adjudicated a claim
for myofascial pain syndrome with headaches since Mr. Hester filed his
August 2001 statement
requesting a review of his condition as manifested by facial pain and
headaches. Because VA has
recognized and adjudicated such a claim, Mr. Hester's argument that the
Board should have
discussed the possibility that evidence of headaches raised a separate
claim is without merit.
To the extent that Mr. Hester's argument is that VA should have recognized
the possibility
of a claim for a separate condition manifested by blurred vision and loss
of balance, in support of
this argument, he cites only to various medical records documenting these
symptoms. However, it is now well established that an intent to apply for benefits is an essential element of any claim, whether formal or informal, and that such intent must be expressed in
writing. See Brokowski v. Shinseki, 23 Vet.App. 79, 84 (2009) (explaining that "the essential requirements of any claim, whether formal or informal," are "(1) an intent to apply for benefits, (2) an identification of the benefits sought, and (3) a communication in writing"); see also 38 C.F.R. § 3.1(p) (2011) (defining a "claim" as "a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement"). Accordingly, this Court has previously held that, unless the evidence of record demonstrates the veteran's intent to seek benefits for a particular disability, the mere existence of medical evidence referencing the disability, such as that cited by Mr.
9
Hester, does not raise an informal claim for such benefits. See Criswell v. Nicholson, 20 Vet.App. 501, 503–04 (2006). The only exception to this rule is that, pursuant to regulation, certain medical records demonstrating a worsening in a veteran's disability that is already service connected may constitute an informal claim for an increased disability rating for that disability. See 38 C.F.R.
§ 3.157(b) (2011); see also Massie v. Shinseki, 25 Vet.App. 123, 131-32 (2011) (discussing the requirements of § 3.157(b)).
Here, Mr. Hester has not cited any evidence reflecting his written intent to seek benefits for blurred vision or loss of balance. Instead, he has cited only medical records documenting these symptoms. Because these records alone could not, as a matter of law, have
raised initial claims for
VA benefits for conditions characterized bysuch symptoms, the Board was
not obligated to consider
and discuss this possibility. See Criswell, 20 Vet.App. at 503-04; see
also 38 U.S.C. § 7104(d)(1)
(requiring the Board to consider only the "material issues of . . . law
presented on the record").
C. Evidence of Right Upper Extremity Neurological Symptoms
Next, Mr. Hester argues that the Board ignored evidence that, prior to
August 2001, he
exhibited neurological symptoms in not just his left upper extremity, but
also his right upper
extremity. He contends that the Board was required to consider evidence of
neurological symptoms
in his right upper extremity because it is favorable insomuch as it may
have resulted in a higher
schedular rating.
The Board considered several diagnostic codes under which Mr. Hester's
condition could be
rated for the period prior to August 16, 2001, including the rating
criteria for intervertebral disc
syndrome, 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2001). At that time,
Diagnostic Code 5243
provided for: a 60% disability rating for pronounced intervertebral disc
syndrome "with persistent
symptoms compatible with sciatic neuropathy with characteristic pain and
demonstrable muscle
spasm, absent ankle jerk, or other neurological findings appropriate to [
the] site of [the] diseased
disc, [with] little intermittent relief"; a 40% disability rating for
severe symptoms characterized by
"recurring attacks[] with intermittent relief"; a 20% disability rating
for moderate symptoms
characterized by "recurring attacks"; and a 10% disability rating for mild
symptoms. 38 C.F.R.
§ 4.71a, Diagnostic Code 5243 (2001).
10
The Board concluded that, even if it were to evaluate Mr. Hester's
condition pursuant to this
diagnostic code, the evidence of record prior to August 16, 2001, did not
demonstrate that his
symptoms were any more than moderate. Mr. Hester argues that, in reaching
this conclusion, the
Board considered only evidence of neurological symptoms such as tingling
and numbness in his left
hand and arm and ignored evidence suggesting that he also experienced such
symptoms in his right
hand and arm.
However, Mr. Hester ignores that the Board expresslyconsidered the results
of reflex testing
conductedbyvariousmedicalexaminersbetweenApril1994andAugust 14,2001,
thatcumulatively
suggested that his "reflexes were 2+ and symmetrical, bilaterally, at all
times." R. at 112 (emphasis
added). Accordingly, although the Board did not explicitly state that the
record contained some
evidence that Mr. Hester experienced numbness in his right upper extremity,
it did base its
determination on reflex testing that addressed the neurological impact of
Mr. Hester's condition on
both of his upper extremities. Under these circumstances, the Court
concludes that the Board
adequately discussed the evidence of record pertaining to neurological
symptoms Mr. Hester
experiences in his bilateral upper extremities.
D. Effective Dates
Finally, Mr. Hester argues that the Board failed to adequately discuss the
ramifications of its
July 2009 determination that his initial claim for benefits for a neck
muscle strain remained in
appellate status.
More specifically, he contends that the Board failed to discuss how this
determination impacted the establishment of an effectivedate for the
increased 60% disabilityrating
awarded by a decision review officer in March 2004. It appears that his
contention is that, because
the decision review officer established an effective date for this
increased disability rating based on
the mistaken presumption that Mr. Hester's August 2001 statement was a new
claim for an increased
disability rating, he is entitled to an effective date prior to August
2001 for the increased disability
rating as a result of the Board's July 2009 decision. This argument is
unpersuasive.
The Board adequately explained its determination that Mr. Hester was not
entitled to a
disability rating in excess of 20% prior to August 16, 2001. Specifically,
the Board stated that,
because Mr. Hester's appeal involved the appropriate initial disability
rating, it was giving
"consideration . . . to 'staged ratings' (different percentage ratings for
different periods of time since
11
the effective date of service connection)." R. at 112 (citing Fenderson v.
West, 12 Vet.App. 119
(1999). The Board further found that "the weight of the credible evidence
demonstrate[d] that [Mr.
Hester's] cervical spine disability . . . warranted a 20[%] rating but no
more for the period prior to
August 16, 2001, and no more than 60[%] for the initial rating period
since August 16, 2001." R.
at 112. This finding was based on a lengthy analysis of the medical
evidence of record prior to
August 16, 2001, and Mr. Hester does not contend that the Board clearly
erred in assessing this
evidence and assigning no more than a 20% disability rating for this
period under the schedular
criteria. Accordingly, the Court concludes that the Board
adequatelyexplained its decision to assign
staged ratings. Further, this explanation clearly indicated that the Board
was aware of the import of
its July 2009 finding that Mr. Hester's claim remained in appellate status.
III. CONCLUSION
Upon consideration of the foregoing, the September 8, 2010, Board decision is AFFIRMED.
DATED: April 17, 2012
Copies to:
Ante Hester
VA General Counsel (027)
12
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