Single Judge Application, Golz, 590 F.3d at 1321; Relevant Records Under 5103A

Excerpt from decision below: "Relevant records for the 2 purpose of § 5103A are those that relate to the injury for which the claimant is seeking benefits and have a reasonable possibility of helping to substantiate the veteran's claim." Golz, 590 F.3d at 1321." ============================= ---------------------------------------------------- Designated for electronic publication only UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS NO. 10-3400 ROBERT MCLEMORE, JR., APPELLANT, V. ERIC K. SHINSEKI, SECRETARY OF VETERANS AFFAIRS, APPELLEE. Before MOORMAN, Judge. MEMORANDUM DECISION Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent. MOORMAN, Judge: The appellant, Robert McLemore, Jr., appeals through counsel a July 30, 2010, Board of Veterans' Appeals (Board) decision that denied entitlement to service connection for a low back disorder. Record (R.) at 3-10. Both parties filed briefs. This appeal is timely, and the Court has jurisdiction pursuant to 38 U.S.C. § 7252(a). A single judgemayconduct this review. See Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). For the following reasons, the Court will affirm the Board's July 2010 decision. I. ANALYSIS The appellant argues that VA failed to comply with the duty to assist when it declined to request his Social Security Administration (SSA) records. Appellant's (App .) Brief (Br.) at 7-11. The appellant also argues that the Board erred in finding his lay testimony to be less probative than other evidence and in relying on an inadequate 2009 medical examination. App. Br. at 12-17. First, in regard to the appellant's SSA records, the Board: observedthattheVeteranreceivesSupplementalSecurityIncome(SSI)benefits from the [SSA], and that no records from the SSA are currently contained in the claims file. Nevertheless, the Board finds that the SSA records are not necessary to a decision on the claim before the VA. In its decisions, the SSA is concerned with an applicant's current medical situation, whereas in adjudicating this claim for service connection, VA is concerned with evidence reflecting a nexus between a current disability and active military service. The record currently contains ample evidence reflecting the Veteran's current low back situation, and he has not asserted that SSA records would reflect a relationship between his currently-shown low back disorder and service, or are otherwise necessary to the adjudication of this appeal. Thus, the Board finds that remand to obtain any SSA records pertaining to the Veteran's disorder would constitute a waste of judicial and administrative resources, and that an informed and complete decision may be reached without the delay inherent in obtaining these records. R. at 6. The appellant asserts that the record is "unclear as to when [he] was first actually treated for his back problems, and social security records could contain information regarding such facts," and that SSA records "could contain medical nexus opinions regarding the onset and etiology of the veteran's back problems." App. Br. at 11. The appellant further contends that, because he was not represented by counsel before the Board, the Board should have read his filings with sufficient sympathy to assume his SSA records were relevant. App. Br. at 10. VA's duty to assist includes making "reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claimant's claim for a benefit." 38 U.S.C. § 5103A(a)(1), (b); see Loving v. Nicholson, 19 Vet.App. 96, 102-03 (2005) (discussing requirement that the records be adequately identified if the claimant wishes the Secretary to obtain them). The duty to assist "is not boundless in its scope" and VA is only required to obtain relevant records that the claimant adequatelyidentifies and authorizes the Secretaryto obtain. Golz v. Shinseki, 590 F.3d 1317, 1320- 21 (Fed. Cir. 2010). The Board's determination whether VA fulfilled its duty to assist generally is a finding of fact that the Court reviews under the "clearly erroneous" standard of review. See Nolen v. Gober, 14 Vet.App. 183, 184 (2000); Gilbert v. Derwinski, 1 Vet.App. 49, 52 (1990). Althoughtheappellantis currentlyrepresentedbyanexperiencedattorney, hefailsto divulge on what basis his SSI benefits were granted. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) ("The duty to assist is not always a one-waystreet. If a veteran wishes help, he cannot passivelywait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence."); App. Br. at 10 (arguing that knowing the precise basis for his SSA disability, while he was represented by a service organization, would have required legal sophistication beyond that which could be expected of a lay person). " Relevant records for the 2 purpose of § 5103A are those that relate to the injury for which the claimant is seeking benefits and have a reasonable possibility of helping to substantiate the veteran's claim." Golz, 590 F.3d at 1321. The appellant's assertions that his SSA records might be relevant do not persuade the Court that the Board clearly erred in finding that the duty to assist had been met. See R. at 7. Rather, such unsupported assertions only emphasize the relevance of the United States Court of Appeals for the Federal Circuit's determination that concluding"all SSA disabilityrecordsarerelevantwouldrender the word 'relevant' superfluous in the statute." Golz, 590 F.3d at 1321. Thus, the Court cannot conclude that the Board clearly erred in finding that the duty to assist had been met in regard to obtaining relevant records. See Golz and Gilbert, both supra. Second, the appellant asserts that the Board "failed to provide an adequate explanation of its reasons and bases for why [his] lay evidence was not probative evidence in support of his claim, as evidence of continuity of symptomatology under 38 C.F.R. § 3.303(b)(2010 )." App. Br. at 12. Specifically, the appellant asserts that the Board rejected his lay statements "merely because it was not corroborated by medical evidence of record." Id. This assertion is a mischaracterization of the Board's decision, which noted the appellant's contention that his current low back disorder should beattributedto his activemilitaryservicebefore discussing the evidence—includinganunfavorable 2009 VA examination—and determining that "the greater weight of the evidence is against the claim." R. at 8-10. In addition, the Board acknowledged the appellant's 2007 statement that his post-service head trauma did not affect his back, but explained " contemporaneous treatment records clearlyshow that he attributed his back pain to the 1999 trauma, with his VA physicians finding that his back pain was secondary to a cervical spine disorder resulting from the incident." R. at 9; see Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006) (explaining that the Board may discount lay evidence when such discounting is appropriate). Nor is the Board's discussion of Maxson inappropriate, because the Board may consider evidence of a prolonged period without medical complaint, along with other pertinent evidence, in its determination. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000); R. at 9-10 (Board decision takingmultiple factors into account); see also Fagan v. Shinseki, 573 F.3d1282, 1289 (Fed. Cir. 2009) (discussing how the examiner properly took into account evidence of post-service exposure and a lack of treatment until 30 years after service (citing Maxson, 230 F.3d at 1333). 3 Thus, the Court is not persuaded by the appellant's assertion and concludes that the Board provided an adequate statement of reasons or bases for its determination that the appellant's lay evidence was less probative than the other evidence of record.1 See 38 U.S.C. § 7104(d)(1); Allday v. Brown, 7 Vet.App. 517, 527 (1995); Hilkert v. West, 12 Vet.App. 145, 151 (1999) ( en banc) ("An appellant bears the burden of persuasion on appeals to this Court."), aff'd per curiam, 232 F.3d 908 (Fed. Cir. 2000); Berger v. Brown, 10 Vet.App. 166, 169 (1997) ("[T]he appellant . . . always bears the burden of persuasion on appeals to this Court."). Third, the appellant argues that the "Board failed to provide an adequate explanation of its reasons or bases for why remand for an adequate medical opinion was not necessary." App. Br. at 15. The initial question is whether the medical opinion at issue was adequate—if it was adequate, the Board obviously had no reason to discuss why remand for an additional opinion was not necessary. "A medical opinion is adequate when it is based upon consideration of the veteran's prior medical history and examinations and also describes the disability . . . in sufficient detail so that the Board's 'evaluation . . . will be a fully informed one.'" Barr v. Nicholson, 21 Vet.App. 303, 311 (2007) (quoting Ardison v. Brown, 6 Vet.App. 405, 407 (1994)). Whether a medical examination report is adequate is generally a finding of fact that the Court reviews under the "clearly erroneous" standard of review. See 38 U.S.C. § 7261(a)(4); Nolan v. Gober, 14 Vet. App. 183, 184 (2000). A finding of material fact is clearly erroneous when the Court, after reviewing the entire evidence, "is left with the definite and firm conviction that a mistake has been committed." United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948); Gilbert v. Derwinski, 1 Vet.App. 49, 52 (1990). When applying this standard, if, after the Court reviews the record in its entirety, the Board's finding of fact is supported by a plausible basis, "'the [Court] may not reverse it even though convinced that had it been sitting as trier of fact, it would have weighed the evidence differently.'" Id. (quoting Anderson v. City of Bessemer City, 470 U.S. 564, 573-74 (1985)). 1 The Court notes the appellant's assertion that the Board's acknowledgement of his lay testimony did not provide an "adequate discussion of the probative value of said statements." App. Br. at 14. But, after review of the record, the Court is not persuaded that any additional Board discussion of the cited testimony would have better enabled the appellant to understand the precise basis for the Board's decision or further facilitated review in this Court. See Allday v. Brown, 7 Vet.App. 517, 527 (1995); see also Lamb v. Peake, 22 Vet.App. 227, 235 (2008) (holding that there is no prejudicial error when a remand for a decision on the merits would serve no useful purpose). 4 The appellant asserts that the 2009 examiner "listed several 'key points' instead of providing a rationale for his opinion." App. Br. at 15. But, as the record indicates, the "key points" were the examiner's rationale formatted as a list. R. at 49 (four key points listed under the "Rationale for Opinion Given"section of the medical opinion). The Court is not persuaded that a numerical listing of reasons for a medical opinion somehow constitutes an inadequate rationale. See Hilkert and Berger, both supra. The appellant also asserts that the 2009 examiner failed to provide an adequate rationale because "[h]e did not include a discussion of the veteran's statements regarding continuity of symptomatology since service in his rationale." App. Br. at 16. However, the 2009 examiner reviewed the appellant's private and service medical records, discussed the circumstances and initial manifestations of his disorder, and conducted a thorough medical examination that described the appellant's back condition in detail. See R. at 42-49. Further, although the appellant contends that "[a]bsent objective medical evidence to the contrary, the appellant's testimony regarding his continual problems with his low back since the accident in service should have been accepted bythe examiner as true," (App. Br. at 17), there is no indication that the 2009 examiner did not take the appellant's statements into account. See R. at 42-49. The record evidences that the appellant discussed the manifestations of his disorder with the examiner, who noted that the appellant's back issues became chronic when he was injured in 1999. R. at 43. Thus, the record indicates that the examiner correctly based his medical opinion on all of the pertinent evidence before him. See id. Therefore, the Court cannot conclude that the Board clearly erred in implicitly finding the 2009 medical opinion to be adequate. See Gilbert, supra; R. at 9. II. CONCLUSION After consideration of the appellant's and the Secretary's briefs, and a review of the record, the Board's July 30, 2010, decision is AFFIRMED. DATED: June 20, 2012 5 Copies to: Virginia A. Girard-Brady, Esq. General Counsel (027) 6