Monday, March 12, 2012

Single Judge Application, Davidson v. Shinseki, 581 F.3d 1313, 1316 (2009); No Categorical Requirement of Competent Medical Evidence

Excerpt from decision below: "There is no categorical requirement of "'competent medical evidence . . . [when] the determinative issue involves either medical etiology or a medical diagnosis.'" Davidson v. Shinseki, 581 F.3d 1313, 1316 (2009) (quoting Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007)). Moreover, this Court has held that "[l]ay testimony is competent . . . to establish the presence of observable symptomatologyand 'may provide sufficient support for a claim of service connection.'" Barr v. Nicholson, 21 Vet.App. 303, 307 (2007) (quoting Layno v. Brown, 6 Vet.App. 465, 469(1994)). As this Court has often noted, "symptoms, not treatment, are the essence of any evidence of continuity of symptomatology." Savage v. Gober, 10 Vet.App. 488, 496 (1997); see also Wilson v. Derwinski, 2 Vet.App. 15, 19 (1991) (noting that the "regulation requires continuity of symptomatology, not continuity of treatment)" ======================= Skip navigation U.S. Court of Appeals for Veterans Claims View | Download | Details Previous document | Next document . 11-0764 HeatonRL_11-764.pdf Search Terms: BUCHANAN CreationDate: 02/27/2012 23:26:07 Creator: PrintServer150 ModDate: 03/07/2012 13:34:09 Producer: Corel PDF Engine Version 15.0.0.505 Title: X_XMPMETA_DC_TITLE: Times New Roman X_XMPMETA_XMPRIGHTS_MARKED: True ---------------------------------------------------- Designated for electronic publication only UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS NO. 11-0764 RICHARD L. HEATON, APPELLANT, V. ERIC K. SHINSEKI, SECRETARY OF VETERANS AFFAIRS, APPELLEE. Before HOLDAWAY, Judge. MEMORANDUM DECISION Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent. HOLDAWAY, Judge: The appellant appeals the February 8, 2011, decision of the Board of Veterans' Appeals (Board) that denied his claim for entitlement to service connection for a bilateral foot and ankle disorder other than tinea pedis. The Board granted service connection for bilateral tinea pedis. The Court lacks jurisdiction over this issue because there is no case or controversy remaining with regard to the matter. See Bond v. Derwinski, 2 Vet.App. 376, 377 (1992); Mokal v. Derwinski, 1 Vet.App. 12, 15 (1990). This appeal is timely and the Court has jurisdiction pursuant to 38 U.S.C. §§ 7252(a) and 7266(a). Single-judge disposition is appropriate when the issue is of "relative simplicity" and "the outcome is not reasonably debatable." Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). For the reasons set forth below, the Court will vacate that part of the February 2011 decision that denied service connection for a bilateral foot and ankle disorder other than tinea pedis and remand the matter for further proceedings consistent with this decision. I. FACTS The appellant served on active duty in the U.S. Army from July 1957 to July 1959. See Record (R.) at 3. His service medical records were destroyed by fire. R. at 367. In May 2005, the appellant filed a claim for service connection for a disability causing bilateral foot and ankle pain. R. at 438, 439-52. In February2006, the regional office(RO) denied the appellant's claim for service connection for bilateral foot and ankle pain. R. at 363-65. The appellant perfected an appeal. R. at 308, 358. In November 2008, the appellant testified that he had foot problems in service that continued after service. R. at 219-21. In March 2010, the Board remanded the appellant's claim for furtherdevelopment,to include a VA examination. R. at 136-43. The appellant underwent a VA examination in July 2010. R. at 95-110. The examiner noted that the appellant had broken his left ankle two years earlier and continued to have pain from overcompensating for his injury. R. at 97. Bilateral foot x-rays revealed an old fracture of the fifth metatarsal. R. at 99. A left ankle x- ray revealed an irregularity of the medial malleolus thought to represent an old fracture and degenerative changes of the ankle joint and the talonavicular joint. R. at 104. The examination of the appellant's feet and ankles revealed that the appellant had numbness of both feet and ankles, which the examiner opined was "probably related to his diabetes mellitus." R. at 102. The examiner rendered a diagnosis of status post fracture of the left ankle, well healed and bilateral heel spurs. R. at 108. With regard to the question of whether the appellant's current foot complaints were related to service, the examiner opined that "ICANNOTRESOLVETHISISSUEWITHOUTRESORTTOMERESPECULATION. [N]o military medical records . . . are available. It is my opinion that the patient's problems are related to diabetic neuropathy." R. at 110. In October 2010, the Board remanded the appellant's claim for another VA examination. R. at 72-77. The appellant was provided another VA foot examination in November 2010. R. at 46- 59. The appellant described symptoms of pain in both feet while standing, walking, and at rest. R. at 47. The examiner noted the appellant's history of diabetes with peripheral neuropathy involving the feet and found that the appellant's feet had dysesthesia to touch bilaterally. R. at 48-49. X-rays of the feet revealed small bilateral calcaneal spurs and mild osteopenia. R. at 50. The examiner noted the appellant's history of left ankle fracture approximately three years earlier. R. at 53. X-rays of the left ankle verified the past fracture. R. at 56. X-rays of the right ankle showed degenerative spurringand a calcaneal plantar spur that resulted in an impression of "[o] steoarthritis. Suspect prior trauma right ankle. Vascular calcifications." R. at 57. The examiner opined that the appellant's 2 current bilateral foot status was "unremarkable except for his diagnosis of diabetic peripheral neuropathy and bilateral calcaneal enthesopathy[1] by x[-]ray." R. at 58. The examiner also diagnosed bilateral ankle arthritis and left ankle symptoms associated with a left ankle fracture in 2008. R. at 58-59. On February 8, 2011, the Board issued its decision in which it granted service connection for bilateral tinea pedis, but denied service connection for a bilateral foot and ankle disorder other than tinea pedis. R. at 3-19. This appeal followed. II. ANALYSIS In his brief, the appellant argues that the Board erred in focusing on his diabetes as the source of his bilateral foot problems. Appellant's Brief (Br.) at 1-2. He alleges that if his SMRs had not been destroyed, he could establish service connection for his foot problem and asks the Court to re- evaluate his claim. Appellant's Br. at 2. The Secretary concedes that remand of the Board decision is appropriate because the Board provided an inadequate statement of reasons or bases for its decision. Secretary's Br. at 4-8. Among other things, the Secretaryspecificallycontends that, while the Board generally denied service connection for a bilateral foot and ankle disorder, it failed to adequatelyaddress, amongotherthings,whethertheappellant's diagnosedbilateral plantarcalcaneal spurs, mild osteopenia, and bilateral ankle arthritis were related to service. Secretary's Br. at 6-7. The Secretary further concedes that the Board erred by rejecting the appellant's lay statements of continuity of symptomatology as not credible based on a lack of corroborating medical evidence. Secretary's Br. at 7-8. The Board must consider all evidence of record and discuss all " potentially applicable" provisions of law and regulation. 38 U.S.C. § 7104(a); Schafrath v. Derwinski, 1 Vet.App. 589, 592- 93 (1991). The Board's decision must include an adequate statement of the reasons or bases for its findings and conclusions on all material issues offact and law presented on the record; that statement must be adequate to enable an appellant to understand the precise basis for the Board's decision, as well as to facilitate informed review in this Court. See 38 U.S.C. § 7104( d)(1); Allday v. Brown, 7 Vet.App. 517, 527 (1995); Gilbert v. Derwinski, 1 Vet.App. 49, 56-57 (1990 ). To comply with this 1 MEDICAL DICTIONARY 634 Enthesopathy is a disorder of the muscular or tendinous attachment to bone. DORLAND'S ILLUSTRATED (31st ed. 2007) 3 requirement, the Board must analyze the credibilityand probative value of the evidence, account for the evidence it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995); Gabrielson v. Brown, 7 Vet.App. 36, 39-40 (1994). There is no categorical requirement of "'competent medical evidence . . . [when] thedeterminative issue involves either medical etiology or a medical diagnosis.'" Davidson v. Shinseki, 581 F.3d 1313, 1316 (2009) (quoting Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007)). Moreover, this Court has held that "[l]ay testimony is competent . . . to establish the presence of observable symptomatologyand 'may provide sufficient support for a claim of service connection.'" Barr v. Nicholson, 21 Vet.App. 303, 307 (2007) (quoting Layno v. Brown, 6 Vet.App. 465, 469(1994)). As this Court has often noted, "symptoms, not treatment, are the essence of any evidence of continuity of symptomatology." Savage v. Gober, 10 Vet.App. 488, 496 (1997); see also Wilson v. Derwinski, 2 Vet.App. 15, 19 (1991) (noting that the "regulation requires continuity of symptomatology, not continuity of treatment). In Buchanan v. Nicholson, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) made clear that "[w]hile thelack of contemporaneous medical records maybe a fact that the Board can consider and weigh against a veteran's lay evidence, the lack of contemporaneous records does not, in and of itself, render lay evidence not credible." 451 F.3d 1331, 1336 (Fed. Cir. 2006). The Board expressly stated the following concerning the appellant's lay statements in its February 2011 decision: Although the [appellant] has attested to the continuity of his bilateral foot symptomatology; the Board finds that [his] statements in this regard may not be credible, given that the objective medical evidence in this case does not establish any clinical evidence of a chronic disabilityof the feet to which the [ appellant's] foot pain maybe attributed other than diabetic peripheral neuropathy. . . . The [ appellant's] lay assertions are not competent or sufficient to establish that [his] current peripheral neuropathy or calcaneal enthesopathy are related to his in-service foot complaints. Furthermore, the Board finds that the veterans complaints of pain in service and thereafter are not competent or sufficient to establish the presence of any other currently diagnosed foot disability. . . . Although the [appellant] has identified foot pain in service and shortly thereafter; he does not have competent and credible medical evidence of a currently diagnosed disability to which this pain may be attributed. . . . 4 R. at 16-17. As conceded by the Secretary, the Board erred in relying on the lack of medical treatment records for its finding that the appellant's lay statements of continuity of symptomatology (see R. at 27, 219-21) lacked competency and credibility in the instant case. Secretary's Br. at 7-8; Previous HitBuchananNext Document, supra; R. at 16-17. The failure of the Board to adequately consider the appellant's lay statements or to adequately discuss those statements in the context of all of the appellant's diagnosed foot and ankle disabilities renders its statement of reasons or bases inadequate. See 38 U.S.C. § 7104(d)(1); see also Allday, Caluza, and Gilbert, all supra. Accordingly, the Court will remand the Board's decision. On remand, the appellant is free to submit additional evidence and argument on the remanded matter, and the Board is required to consider any such relevant evidence and argument. See Kay v. Principi, 16 Vet.App. 529, 534 (2002) (stating that, on remand, the Board must consider additional evidence andargumentinassessingentitlementto benefit sought); Kutscherousky v.West, 12 Vet.App. 369, 372-73 (1999) (per curiam order). The Court has held that "[a] remand is meant to entail a critical examination of the justification for the decision." Fletcher v. Derwinski, 1 Vet.App. 394, 397 (1991). The Board must proceed expeditiously, in accordance with 38 U.S.C. § 7112(requiring Secretary to provide for "expeditious treatment" of claims remanded by the Court). III. CONCLUSION After consideration of the appellant's and the Secretary's briefs, and a review of the record, that part of the Board's February 8, 2011, decision that denied service connection for a bilateral foot and ankle disorder other than tinea pedis is VACATED and the matter is REMANDED to the Board for further development and readjudication consistent with this opinion. DATED: February 28, 2012 Copies to: Richard L. Heaton VA General Counsel (027) 5