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
Single Judge Application, Golz v. Shinseki, 590 F.3d 1317, 1321 (Fed. Cir. 2010); VA's Duty to Obtain Relevant Records
Excerpt from decision below:
"C. VA's Duty To Obtain Relevant Records
The Secretary has a duty to assist claimants in developing their claims. 38 U.S.C. § 5103A.
The duty to assist includes the duty to make "reasonable efforts to obtain relevant records," as long as the claimant "adequately identifies" those records to the Secretary and authorizes the Secretary
9
to obtain them. 38 U.S.C. § 5103A(b)(1); see also Loving v. Nicholson, 19 Vet.App. 96, 102 (2005).
In the case of claims for disability compensation, the Secretary's
assistance shall include obtaining"[t]he claimant's service medical records and, if the claimant has furnished the Secretary information
sufficient to locate such records, other relevant records pertaining to the claimant's active military, naval, or air service that are held or maintained bya governmental entity."38 U.S.C. § 5103A(c)(1).
If the records are maintained by a Federal department or agency, "efforts to obtain those records shall continue until the records are obtained unless it is reasonably certain that such records do not exist or that further efforts to obtain those records would be futile." 38 U.S.C. § 5103A(b)(3); 38 C.F.R. § 3.159(c)(2) (2011). If the Secretary is unable to obtain those records after making reasonable efforts to do so, the Secretary must notify the claimant of that fact. See 38 U.S.C. § 5103A(b)(2); 38 C.F.R. § 3.159(e).
The Board's determination that VA has satisfied the duty to assist is
reviewed under the "clearly erroneous" standard of review. Hyatt v. Nicholson, 21 Vet.App. 390, 395 (2007). As always, the Board is required to include in its decision 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; 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(a), (d)(1); Allday v. Brown, 7 Vet.App. 517, 527 (1995); Gilbert, 1 Vet.App. at 56-57.
In the decision here on appeal, the Board found that VA satisfied its duty to assist because
VA "made reasonable efforts to assist the [v]eteran in obtaining evidence necessary to substantiate
his claim," and the "[v]eteran has not identified any other evidence which has not been obtained."
R. at 8. However, in reaching this conclusion, the Board did not discuss the Department of the Air
Force memoranda indicating that "in some cases, standard practice was to maintain records" of
occupational exposure in individual health, unit, or installation records" (R. at 265, 338), and that
"in early cases . . . the DD Form 1141 . . . [was] maintained in the
military medical record or by the local unit, and [was] not forwarded for inclusion in the central
repository" (R. at 361). This failure is significant given the Board's reliance on (1) the absence of a DD 1141 in the record and its "presum[ption]" that one was not prepared for the appellant; and (2) its
selective reliance on a
10
portion of the same November 2004 memorandum stating that the "registry was the single repository
for occupational radiation exposure monitoring for all Air Force personnel." R. at 12.
The Department of the Air Force memoranda (R. at 265, 338) adequately
identified an additional repository for records that VA had identified as necessary to substantiate the appellant's claim and cautioned that the "inability . . . to locate a record should not be considered as conclusive evidence that an occupational exposure" to radiation and nonionizing radiation did not occur. SeeGolz v. Shinseki, 590 F.3d 1317, 1321 (Fed. Cir. 2010) (identifying "relevant records" for purposes of VA's duty to assist as "those records 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"). Yet, the record on appeal does not indicate that VA conducted a search for unit or installation records, nor did the Board make any finding that there was "no reasonable possibility" that the records could help substantiate the appellant's claim for benefits or that "such records do not exist or that further efforts to obtain those records would be futile." See 38 U.S.C. §§ 5103A(a)(2),(b)(3); see also 38 C.F.R. § 3.159(c)(2). The Board's failure to explain why a further search was not necessary – particularly in light of its "presum[ption]" of no ionizing radiation exposure (R. at 12) and its failure to adjudicate this theory of entitlement – renders its statement of reasons or bases inadequate. See 38 U.S.C. § 7104(d); see also Allday and Gilbert, both supra.
Nonetheless, the Court is required to "take due account of the rule of prejudicial error." 38 U.S.C. § 7261(b)(2); see Shinseki v. Sanders, 129 S. Ct. 1696, 1704 (2009) (noting that the statute requiring this Court to "take due account of prejudicial error [] requires the Veterans Court to apply the same kind of 'harmless error' rule that courts ordinarily apply in civil cases"). Regarding the theory of entitlement adjudicated in the Board's decision – entitlement based on exposure to nonionizing radiation – the Secretary persuasively argues that any error is not prejudicial because the Board relied on the medical opinions of record, which noted that the appellant denied any acute symptoms of high level RFR exposure and, even assuming low-level exposure, the evidence did not
establish a relationship between the appellant's claimed disabilities and exposure to low levels of RFR. Secretary's Br. at 20; see R. at 138-46, 184, 249-54. In his reply brief, the appellant argues that "the level of exposure, high or otherwise, cannot be determined due to the [A]gency's inadequate
11
development." Reply Br. at 15. However, his response misses the mark. In other words, the appellant fails to demonstrate how remand to obtain records confirming the amount of exposure would assist in substantiating the appellant's claim when the scientific and medical evidence of record fails to identify a relationship between low-level exposure and the appellant's disabilities, and the appellant has denied any acute symptoms of high-level exposure. As a result, the Court concludes that the appellant has not carried his burden of demonstrating prejudicial error.
However, because the Board did not make any similar adverse finding with regard to the relationship, if any, between the appellant's current disabilities and exposure to ionizing radiation, the Court cannot conclude that the error is not prejudicial with regard to this theory of entitlement.
Therefore, because the Court has determined that the Board erred when it failed to adjudicate a theory of entitlement based on exposure to ionizing radiation, on remand the Board must determine whether the Secretary's duty to assist requires VA to search for the pertinent records with regard to this theory, and if no additional search is warranted, the Board must provide an adequate statement of reasons or bases for its determination.
===========
----------------------------------------------------
Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 10-3273
LEANDER WORKMAN, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before SCHOELEN, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
SCHOELEN, Judge: The appellant, Leander Workman, through counsel appeals a
July 30,
2010, Board of Veterans' Appeals (Board or BVA) decision that denied VA
disabilitycompensation
for macular degeneration as a result of nonionizing radiation exposure and
bronchial mucosa
associated lymphoma tissue (B-MALT) status post left lung lobectomy as a
result of nonionizing
radiation exposure. Record of Proceedings (R.) at 3-18. This appeal is
timely, and the Court has
jurisdiction to review the Board's decision pursuant to 38 U.S.C. §§
7252(a) and 7266(a). Both
parties filed briefs, and the appellant filed a replybrief. Single-judge
disposition is appropriate. See
Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). For the following
reasons, the Court will affirm
in part and vacate in part the July 30, 2010, Board decision, and remand
the vacated matters for
further proceedings consistent with this decision.
I. BACKGROUND
The appellant served honorably on active duty in the U.S. Air Force from
January 1954 to
December 1957 and from July 1958 to June 1962. R. at 1234-35. He was
diagnosed with possible
small cell carcinoma in January 1995. R. at 975, 1178. After the appellant
underwent a left lung
upper lobectomy, his diagnosis was changed to bronchial mucosa associated
lymphoid tissue
lymphoma. R. at 988. A February 1995 oncology report indicates that he
had a complete resection
of the tumor and that there was no evidence of metastasis. Id. A July 1999
optometry consult note
indicates a diagnosis of age-related macular degeneration, refractive
error, and possible glaucoma.
R. at 1204-05.
In June 1999, the appellant submitted a claim for disability compensation
for "lung cancer
residuals"and "macular degeneration," whichherelatedto radiation exposure
in service. R. at 1230-
33. An undated telephone "report of contact" indicates that VA personnel
contacted the appellant
to obtain specifics regarding his in-service radiation exposure and that
he reported being "exposed
to microwaves due to his MOS [military occupational specialty] for 8 y[
ears]. He was stationed in
compounds where there were radar dishes." R. at 1229.
An October 2000 Department of the Air Force memorandum indicates that the
Air Force
requested information from the U.S. Air Force Radiofrequency Radiation (
RFR) Overexposure
Repository, which resulted in "no information confirming any exposure to
RFR." R. at 362. The
memorandumalsoindicatesthat"[e]pidemiological studies
providenoclearevidenceofdetrimental
effects in humans from chronic exposure to RFR and it has not been linked
to cancer." Id. However,
the memorandum does indicate that "[o]cular damage was found in
individuals who were exposed
to RFR 'well in excess' of the limits, and at levels and duration to cause
thermal heating of the eye."
Id.
In a September 2001, rating decision, the Louisville, Kentucky, regional
office (RO) denied
disability compensation for macular degeneration and B-MALT, to include as
a result of exposure
to ionizing radiation. R. at 837-42. The appellant filed a Notice of
Disagreement (R. at 822-32) and
submittedstatementsdescribinghisexposuretohigh-poweredAircraftControl &
Warning(AC&W)
radar radiation via "FPS-3 Early Warning Search Radar and FPS-6 Height
Finding Radar" and
"similar more powerful" radarequipment (R. at 751-52). He reported the
following assignments and
exposure during service: (1) From June 1954 to December 1957, he was
stationed at the 784th
AC&W Radar Squadron, where hewasexposedto earlywarningsearch and height
finding radar that
swept past his operations building three times every minute; (2) from July
1958 to February 1959,
he was stationed at Shaw Air Force Base, where he used similar equipment
and his operations'
building was adjacent to radar dishes that were 15 feet above ground and
swept radiation past the
2
building three times every minute; (3) from February 1959 to February
1962, he was stationed in
Spain where he was exposed to newer, more powerful radar equipment that
was only 15 to 20 feet
above his work area and also swept radiation past the operations room
three times everyminute; and
(4) from February1962 to June 1962, he was stationed at Sweetwater, Texas,
where he was exposed
to radar dishes that were located a few hundred feet from the operations'
building. Id. The appellant
also asserted that he recalled "attending various training sessions when
radiological and biological
threats were explained and radiation badges were shown and explained to us.
My recollection is we
were told radiation badges would onlybe issued to us in the event of
possible hostile nuclear action."
R. at 751.
In a May 2002 Statement of the Case (SOC), the RO continued to deny
disability
compensation for macular degeneration and B-MALT, because the evidence
failed to show
"exposure to ionizing radiation during service" or that either condition
was caused or aggravated by
military service. R. at 793-808 (emphasis added). In June 2003, the
appellant submitted a letter
from Dr. Charles Lahr who opined, based on literature provided to him by
the appellant and the
appellant's duties in the military, that the appellant's diagnosed cancer
and macular degeneration are
more likely than not residuals of his RFR exposure. R. at 736.
In a December 2003 decision, the Board remanded the claims to the RO for
additional
development, which it characterized as claims for B-MALT and macular
degeneration, both
secondary to RFR or microwave radiation. R. at 579-87. In describing the
appellant's claim, the
Board stated that the appellant "does not contend and the evidence does
not show that he was
exposed to ionizing radiation" and that he "can[]not be considered a
radiation-exposed veteran due
to participation in as radiation risk activity." R. at 582. Nonetheless,
based on the appellant's
statements relating that he worked around or near radar equipment, the
Board decided that another
attempt should be made to ascertain whether he was exposed to RFR during
service, and if so, his
estimated exposure. R. at 582-85.
In response to the RO's request for a "record of exposure of ionizing
radiation," a November
2004 Department of the Air Force memorandum indicates that its queryof the
U.S. Air Force Master
RadiationExposureRegistry(MRER)found"noexternalorinternalexposuredata"
ontheappellant.
3
R. at 361 (emphasis added). The memorandum also indicates that although
the MRER is the "single
repository for occupational radiation exposure monitoring for all Air
Force personnel," and their
records date to 1947, "there appear to have been cases where early records,
especially the DD Form
1141, were maintained in the military medical record or by the local unit,
and were not forwarded
for inclusion in the central repository." Id.
In February 2006, the Department of the Air Force provided an additional
response, which
indicates that it was unable to reconstruct a precise dose estimate for
the appellant based on his
duties as a radar technician because there was no "exposure data for the
particular radar system" he
worked with, "nor the detailed information on his duties that would be
required for such an
estimate." R. at 359. The memorandum noted that "[i]t is recognized that
occupational exposures
thatcouldresult from radarsystems includenon-ionizingradiation intheformof[
RFR]andionizing
radiation in the form of x-rays from RFR generating sources, such as
klystroms." Id. (emphasis
added). With respect to RFR, the memorandum noted that the consensus of
scientific advisory
bodies is that there are no long-term effects (including cancer) from low-
level exposures. Id. With
respect to ionizing radiation exposure, the memorandum noted that "[t]he
potential for ionizing
radiation exposure when working near some radar systems does exist, but we
are unable to judge
what specificexposures mayhave resulted. It is recognized that high
exposures to ionizing radiation
may increase long-term risks of cancer." Id.
AseparateFebruary2006memorandumfromtheAirForceInstituteforOccupationalHeal
(AFIOH) indicates that a search of the MRER and "all records currently
maintained by this
organization" was negative. R. at 338. Although the MRER contains "
occupational radiation
exposure records generated from 1947 to the present," the memorandum
indicates that
[i]n some cases, standard practice was to maintain records of occupational
radiation
exposure in individual health, unit, or installation records. We no have
no way of
determining if records of those types exist. Therefore, absence of a
record in the
MRER should not be considered as conclusive evidence that an occupational
exposure to radiation did not occur.
Id.
4
In June 2006, the AFIOH provided another negative response for records of "
occupational
microwave and [RFR] exposures." R. at 265. However, this memorandum also
indicates that "[i]n
some cases, standard practice was to maintain records of occupational
microwave and [RFR]
exposures in individual health, unit or installation records" and that the
AFIOH has "no way of
determining if records of those type exist. Therefore, the inability for
us to locate a record should
not beconsideredas conclusive evidence that an occupational exposureto non-
ionizing radiation did
not occur." Id. (emphasis added).
The appellant was provided a compensation and pension examination in
October 2006. R.
at 249-54. The examiner opined that the appellant's B-MALT was not caused
by or a result of RFR
exposure. R. at 254. The examiner indicated that he reviewed the
literature provided by the
appellant, which showed "little relationship" to low-level RFR exposure
and was primarily related
to "overdose high exposure situations." Id. With respect to high-level
exposure, the examiner stated
that "extrapolation from high dose or over[]exposure to RFR to low dose
RFR is not possible" and
that "[w]hen asked by the BVA judge if the veteran had ever had any of the
symptoms of overdose
in his literature he answered no to all questions asked." Id. The examiner
concluded, based on the
current information available, that there is no "conclusive evidence of a
relationship between RFR
and cancer" and noted that the appellant denied any symptoms of overdose
mentioned in the
literature. R. at 252, 254.
In June 2008, the Board requested an independent medical examination (IME)
to determine
whether it is "at least as likely as not that the claimed lung changes and
macular degeneration are due
to [RFR] or microwave radiation exposure during the veteran's period of
active service." R. at 189-
91. In January 2009, the examiner opined that it was unlikely that the
appellant's development of
primarypulmonarylymphomaresultedfromhis exposureto nonionizing radiation.
R. at 184. Based
on his review of the scientific literature, the examiner indicated that
the appellant's lymphoma
accounts for less than 1% of all lymphomas and that there have been no
recorded instances in the
literature of its specific association with nonionizing radiation. Id.
Because the January 2009 examiner failed to opine regarding the
appellant's macular
degeneration, the Board requested another IME in August 2009. R. at 159-62.
In October 2009, the
5
examiner opined that the appellant's macular degeneration was less likely
than not related to his
military service, including RFR. R. at 138-46. The examiner reasoned that "[
t]here is no
substantiated proof of cumulative effects from long-term low-level
exposure to [RFR] in the peer-
reviewed literature" and that the "onlyproven effects . . . are thermal."
R. at 137. He also noted that
high doses produce acute symptoms and signs and that the appellant
testified that he had "none of
the symptoms of acute high-level radiofrequency/microwave exposure." R. at
137-38.
In the decision here on appeal, the Board denied disability compensation
for macular
degeneration and B-MALT as a result of exposure to nonionizing radiation.
R. at 3-18. Although
the appellant's service records confirmed his duties as a radar operator,
the Board found that the
record contained no evidence of ionizing radiation exposure or the claimed
high levels or even low
levels of RFR exposure. R. at 5, 10, 12, 17. Additionally, in determining
that the preponderance
of the evidence was against the appellant's claim, the Board found Dr.
Lahr's favorable opinion not
probative and assigned greater probative weight to the findings made by
the VA examiner and the
January and October 2009 IMEs. R. at 13-18.
II. ANALYSIS
A. The Parties' Arguments
On appeal, the appellant argues that the Board erred when it found no
evidence of in-service
exposureto ionizingornonionizingradiation
andrejectedtheappellant'slayevidenceasnot credible
regarding his proximity to radar equipment. Appellant's Brief (Br.) at 12-
16. The appellant also
argues that VA failed to fulfill its duty to assist, the Board ignored
evidence indicating that radar
systems emit both ionizing and nonionizing radiation, and the Board
provided an inadequate
statement of reasons or bases to deny his claims. Id. at 16-19, 22-24. He
argues that the Board erred
when it failed to require development of his claim based on exposure to
ionizing as well as
nonionizing radiation, and argues that remand is required for an
additional search of local unit and
installation records,
whichtheAirForcememorandaindicatedmightcontainrecordsofoccupational
radiation exposure. Id. at 5, 16-19; see R. at 265, 361 (November 2004 and
June 2006 memoranda).
6
The appellant also asserts that he submitted sufficient information
relevant to calculating a
dose estimate, but that VA failed to obtain an estimate. Id. at 7-11. In
addition, because the record
was inadequately developed, the appellant asserts, the IMEs are inadequate
because they are based
on the presumption of low exposure or no exposure to nonionizing radiation
and fail to opine on any
matters pertinent to exposure to ionizing radiation related to x-rays from
RFR-generating sources.
Id. at 12, 19-22; see R. at 359 (February 2006 memorandum). Finally, the
appellant argues that the
Board applied the wrong legal standard when it denied his claim. Id at 24.
The Secretaryargues that the Board correctlydetermined that the
appellant's claims were not
predicated on any alleged exposure to ionizing radiation and that the
record nevertheless did not
contain evidence of any such exposure. Secretary's Br. at 8-9. The
Secretary also argues that the
Board plausibly determined that the evidence did not confirm exposure to
high or low doses of
nonionizing radiation, and that the appellant fails to identify any
evidence that contradicts or
otherwise questions the plausibility of its interpretation of the evidence.
Id. at 13-14. To the extent
that the appellant challenges the Board's dismissal of lay evidence as not
credible, the Secretary
contends that the Board merely found the evidence not credible as to nexus,
and not as to his
proximity to radar equipment in service. Id. at 16-17. Finally, the
Secretaryargues that VA satisfied
its duty to assist, the medical nexus opinions are adequate, and the Board
did not apply an incorrect
legal standard. Id. at 18-22.
In his reply brief, the appellant argues that he had no duty to
specifically plead an ionizing
radiation theory and that the Board's finding no evidence of ionizing
radiation exposure is both
erroneous and demonstrative that the issue was raised bythe record.
ReplyBr. at 1-7. The appellant
also refutes the Secretary's contentions that the duty to assist did not
require VA to conduct an
additional search for records. Reply Br. at 10-15.
B. Reasonably Raised Theory Based on Exposure to Ionizing Radiation
The Board has a duty to address all issues reasonably raised either by the
appellant or by the
contents of the record. See Robinson v. Peake, 21 Vet.App. 545, 552-56 (
2008), aff'd sub nom.
Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009). As noted above, the
parties disagree whether
the appellant or the record reasonably raised entitlement to disability
compensation benefits based
7
on exposure to ionizing radiation. Contrary to the Secretary's suggestion,
the Court finds that this
is not a situation where Board is being asked to "assume the impossible
task of inventing and
rejecting every conceivable argument in order to produce a valid decision."
Secretary's Br. at 8
(quoting Robinson, 21 Vet.App. at 553).
Initially, the Court observes that the appellant's application did not
specify the type of
radiation he was exposed to during service and the RO initially
adjudicated his claim based on
exposure to ionizing radiation. R. at 793-808 (May 2002 SOC); 837-42 (
September 2001 rating
decision); 1230-33 (application for benefits). In addition, the February
2006 Department of the Air
Force memorandum recognized that "occupational exposures that could result
from radar systems
include non-ionizing radiation in the form of [RFR] and ionizing radiation
in the form of x-rays
from RFR generating sources, such as klystroms." R. at 359 (emphasis added
); see Schafrath v.
Derwinski, 1 Vet.App. 589, 592-93 (1991) (Board is required to consider
all evidence of record and
to discuss in its decision all "potentially applicable" provisions of law
and regulation.).
The Secretary argues at great length that the appellant's submissions and
arguments confirm
that he was asserting entitlement to benefits based on exposure only to
nonionizing radiation, and
that the appellant's reliance on the February 2006 memorandum is misplaced
because it fails to
demonstrate that the appellant was personally exposed to such radiation.
Secretary's Br. at 10-11.
The Court is not persuaded by the Secretary's arguments because, as noted,
the RO initially
adjudicated entitlement to benefits based on exposure to ionizing
radiation, and the Secretary does
not identifyanyaffirmative evidence indicating that the appellant
abandoned this ionizing-exposure
theory of entitlement. See Roebuck v. Nicholson, 20 Vet.App. 307, 313 (
2006) (recognizing that a
claimant can raise "multiple means of establishing entitlement to a
benefit for a disability, [even] if
the theories all pertain to the same benefit for the same disability").
The Secretary also argues that any error in failing to adjudicate this
theory is harmless
because the record is devoid of anyevidence of actual exposure to ionizing
radiation. Id. at 13. This
argument also lacks merit because the Board "presumed" that no DD Form
1141, Record of
Occupational Exposure to Ionizing Radiation, was prepared for the
appellant based the Department
of the Air Force's assertion that it found no exposure data regarding the
appellant. R. at 12.
8
However, as discussed in more detail below, the Board failed to discuss
evidence indicating that
there have been instances where the DD Forms 1141 were not forwarded to
the central repository,
but were maintained in the military medical record or by the local unit (
see R. at 361 (November
2004 memorandum)), and there is no indication that VA searched the
military unit records.
Based on the foregoing, the Court concludes that the Board's
characterization of the issue on
appeal as a claim for benefits "due to non-ionizing radiation" and its
finding that "this claim is not
based on ionizing radiation exposure" is clearlyerroneous. See Gilbert v.
Derwinski, 1 Vet.App. 49,
52 (1990) ("'A finding is "clearly erroneous" when although there is
evidence to support it, the
reviewing court on the entire evidence is left with the definite and firm
conviction that a mistake has
been committed.'" (quoting United States v. U.S. Gypsum Co., 333 U.S. 364,
395 (1948))); see also
Robinson v. Peake, supra. In addition, because there is no indication that
VA ordered a search for
unit records to determine whether a DD Form 1141 was maintained for the
appellant outside of the
central repository, the Board's determination that there is no evidence of
exposure to ionizing
radiation appears to have been based on an inadequate record. Therefore,
the Court will remand this
issue for further development and adjudication consistent with this
decision.
In pursuing his case on remand, the appellant is free to submit additional
evidence and
argument on the remanded matters, and the Board is required to consider
anysuch relevant evidence
and argument. See Kay v. Principi, 16 Vet.App. 529, 534 (2002) (stating
that, on remand, the Board
must consider additional evidence and argument in assessing entitlement to
benefit sought);
Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999) (per curiam order).
The Court has held that
"[a] remand is meant to entail a critical examination of the justification
for the decision." Fletcher
v. Derwinski, 1 Vet.App. 394, 397 (1991). The Board must proceed
expeditiously, in accordance
with 38 U.S.C. § 7112 (requiring Secretary to provide for "expeditious
treatment" of claims
remanded by the Court).
C. VA's Duty To Obtain Relevant Records
The Secretary has a duty to assist claimants in developing their claims.
38 U.S.C. § 5103A.
The duty to assist includes the duty to make "reasonable efforts to obtain
relevant records," as long
as the claimant "adequately identifies" those records to the Secretary and
authorizes the Secretary
9
to obtain them. 38 U.S.C. § 5103A(b)(1); see also Loving v. Nicholson,
19 Vet.App. 96, 102 (2005).
In the case of claims for disability compensation, the Secretary's
assistance shall include obtaining
"[t]he claimant's servicemedical records and, if the claimant has
furnishedtheSecretaryinformation
sufficient to locate such records, other relevant records pertaining to
the claimant's active military,
naval, or air service that are held or maintained bya governmental entity."
38 U.S.C. § 5103A(c)(1).
If the records aremaintained bya Federal department or agency, "efforts to
obtain those records shall
continue until the records are obtained unless it is reasonably certain
that such records do not exist
or that further efforts to obtain those records would be futile." 38 U.S.C.
§ 5103A(b)(3); 38 C.F.R.
§ 3.159(c)(2) (2011). If the Secretary is unable to obtain those records
after making reasonable
efforts to do so, the Secretary must notify the claimant of that fact. See
38 U.S.C. § 5103A(b)(2);
38 C.F.R. § 3.159(e).
The Board's determination that VA has satisfied the duty to assist is
reviewed under the
"clearly erroneous" standard of review. Hyatt v. Nicholson, 21 Vet.App.
390, 395 (2007). As
always, the Board is required to include in its decision 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; 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(a), (d)(1);
Allday v. Brown, 7 Vet.App. 517, 527 (1995); Gilbert, 1 Vet.App. at 56-57.
In the decision here on appeal, the Board found that VA satisfied its duty
to assist because
VA "made reasonable efforts to assist the [v]eteran in obtaining evidence
necessary to substantiate
his claim," and the "[v]eteran has not identified any other evidence which
has not been obtained."
R. at 8. However, in reaching this conclusion, the Board did not discuss
the Department of the Air
Force memoranda indicating that "in some cases, standard practice was to
maintain records" of
occupational exposure in individual health, unit, or installation records" (
R. at 265, 338), and that
"in early cases . . . the DD Form 1141 . . . [was] maintained in the
military medical record or by the
local unit, and [was] not forwarded for inclusion in the central
repository" (R. at 361). This failure
is significant given the Board's reliance on (1) the absence of a DD 1141
in the record and its
"presum[ption]" that one was not prepared for the appellant; and (2) its
selective reliance on a
10
portion of the same November 2004 memorandumstating that the "registrywas
the single repository
for occupational radiation exposure monitoring for all Air Force personnel
." R. at 12.
The Department of the Air Force memoranda (R. at 265, 338) adequately
identified an
additional repository for records that VA had identified as necessary to
substantiate the appellant's
claim and cautioned that the "inability . . . to locate a record should
not be considered as conclusive
evidence that an occupational exposure" to radiation and nonionizing
radiation did not occur. See
Golz v. Shinseki, 590 F.3d 1317, 1321 (Fed. Cir. 2010) (identifying "
relevant records" for purposes
of VA's duty to assist as "those records 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"). Yet, the
record on appeal does not indicate that VA conducted a search for unit or
installation records, nor
did the Board make any finding that there was "noreasonable possibility"
that the records could help
substantiate the appellant's claim for benefits or that "such records do
not exist or that further efforts
to obtain those records would be futile." See 38 U.S.C. §§ 5103A(a)(2),(
b)(3); see also 38 C.F.R.
§ 3.159(c)(2). The Board's failure to explain why a further search was
not necessary – particularly
in light of its "presum[ption]" of no ionizing radiation exposure (R. at
12) and its failureto adjudicate
this theory of entitlement – renders its statement of reasons or bases
inadequate. See 38 U.S.C.
§ 7104(d); see also Allday and Gilbert, both supra.
Nonetheless, the Court is required to "take due account of the rule of
prejudicial error."
38 U.S.C. § 7261(b)(2); see Shinseki v. Sanders, 129 S. Ct. 1696, 1704 (
2009) (noting that the statute
requiring this Court to "take due account of prejudicial error [] requires
the Veterans Court to apply
the same kind of 'harmless error' rule that courts ordinarily apply in
civil cases"). Regarding the
theory of entitlement adjudicated in the Board's decision – entitlement
based on exposure to
nonionizing radiation – the Secretarypersuasivelyargues that anyerror is
not prejudicial because the
Board relied on the medical opinions of record, which noted that the
appellant denied any acute
symptoms of high level RFR exposure and, even assuming low-level exposure,
the evidence did not
establish a relationship between the appellant's claimed disabilities and
exposure to low levels of
RFR. Secretary's Br. at 20; see R. at 138-46, 184, 249-54. In his
replybrief, the appellant argues that
"the level of exposure, high or otherwise, cannot be determined due to the [
A]gency's inadequate
11
development." Reply Br. at 15. However, his response misses the mark. In
other words, the
appellant fails to demonstrate how remand to obtain records confirming the
amount of exposure
would assist in substantiating the appellant's claim when the scientific
and medical evidence of
record fails to identifya relationship between low-level exposure and the
appellant's disabilities, and
the appellant has denied any acute symptoms of high-level exposure. As a
result, the Court
concludes that the appellant has not carried his burden of demonstrating
prejudicial error.
However, because the Board did not make any similar adverse finding with
regard to the
relationship, if any, between the appellant's current disabilities and
exposure to ionizing radiation,
the Court cannot conclude that the error is not prejudicial with regard to
this theory of entitlement.
Therefore, because the Court has determined that the Board erred when it
failed to adjudicate a
theory of entitlement based on exposure to ionizing radiation, on remand
the Board must determine
whether the Secretary's duty to assist requires VA to search for the
pertinent records with regard to
this theory, and if no additional search is warranted, the Board must
provide an adequate statement
of reasons or bases for its determination.
D. Adequacy of IMEs and the Board's Assessment of Evidence
The appellant argues that VA obtained and the Board relied on inadequate
IMEs because the
examiners (1) did not have sufficient information regarding the
appellant's actual exposure, and
assuming those records are not available, VA failed to obtain data
sufficient to make a dose estimate
calculation, and (2) the examiners failed to offer an opinion based on his
exposure to ionizing
radiation. Appellant's Br. at 19-22. He also argues that the Board
inappropriately afforded less
weight to Dr. Lahr's medical opinion because it was based on the
appellant's "unsusbtantiated claim
of high level exposure to RFR" when the IMEs were based on an
unsubstantiated claim of no
exposure or low exposure. Id. at 20. The Secretary asserts that the
appellant's argument lacks merit
because it is predicated on the condition that the Secretary violated his
duty to assist with respect to
obtaining records relevant to radiation exposure. Secretary's Br. at 21.
The Court agrees.
With regard to the appellant's claim based on exposure to nonionizing
radiation, the
appellant's arguments fail for the same reason the Court found no
prejudice concerning VA's failure
to search for unit or installation records. The lack of actual exposure
data is not fatal to the adequacy
12
of the examiners' opinions because they found no association between low-
level exposure to RFR
and the appellant's claimed disabilities, and although the literature
indicated a relationship to high-
level exposure, the appellant denied any symptoms of overdose or acute
high level RFR exposure.
See R. at 139 (October 2009 IME noting that the appellant "testified that
he had none of the
symptoms of acute high-level radiofrequency/microwave exposure" and
concluding that "it is less
likely than not that [his] military service, including radiofrequency
radiation, is [r]elated to his
macular degeneration"); R. at 184 (finding no instances of "specific
association" in the literature
between the appellant's lymphoma and nonionizing radiation); see also R.
at 252, 254 (October2006
VA examiner's finding that there is "no conclusive evidence of a
relationship between RFR and
cancer" and noting that the appellant denied any symptoms of overdose
mentioned in the literature).
In light of these findings, the Court cannot say that the Board's
assignment of greater
probative worth to the October 2006 VA examination and the January and
October 2009 IMEs was
clearly erroneous. See Washington v. Nicholson, 19 Vet.App. 362, 367-68 (
2005) (it is the Board's
duty, as factfinder, to determine the credibility and weight to be given
to the evidence); Owens v.
Brown, 7 Vet.App. 429, 433 (1995) (holding that the Board is responsible
for assessing the
credibility and weight of evidence and that the Court may overturn the
Board's decision only if it is
clearly erroneous). Nor has the appellant demonstrated error in the
Board's finding that Dr. Lahr's
favorable opinion was not probative because his opinion was based on the
appellant's
unsubstantiated claim of high-level exposure and did not contain any
rationale for his conclusions.
See Nieves-Rodriguez v. Peake, 22 Vet.App. 295, 300 (2008) ("Part of the
Board's consideration of
how much weight to assign [a medical opinion] is the foundation upon which
the medical opinion
is based."); see also Stefl v. Nicholson, 21 Vet.App. 120, 124 (2007) (
medical opinion should
"support its conclusion with an analysis that the Board can consider and
weigh against contrary
opinions").
Because the appellant's claim based on a theory of exposure to ionizing
radiation is being
remanded for adjudication, the Court will not address the appellant's
argument that the IMEs are
inadequate because the examiners failed to address whether his
disabilities are related to exposure
to ionizing radiation. See Mahl v. Principi, 15 Vet.App. 37, 38 (2001) (
per curiam order) (holding
13
that "if the proper remedy is a remand, there is no need to analyze and
discuss all the other claimed
errors that would result in a remedy no broader than a remand"); see also
Best v. Principi,
15 Vet.App. 18, 19 (2001) (per curiam order) (holding that the Court
generally decides cases on the
narrowest possible grounds and therefore is not required to rule upon
other allegations of error in
effecting a remand).
E. The Appellant's Remaining Arguments
The appellant also argues that the Board erred when it found his lay
evidence not "credible"
and failed to explain whyhis statements that he worked in proximity to
radar systems for eight years
and his descriptions of those radar systems can be viewedas untruthful or
inconsistent with the facts.
Appellant's Br. at 13-14. The Secretary argues that the Board did not find
the lay evidence of his
proximity to radar equipment not credible. Secretary's Br. at 17. Even
assuming that the Board
erred, the Secretary argues that any error was necessarily harmless. Id.
The Court agrees.
Undoubtedly, the appellant's proximity and duration of exposure to the
radar equipment is
relevant to whether he was exposed to RFR-generating sources. See Hyatt,
21 Vet.App. at 396
(defining "relevant evidence" as "evidence having any tendency to make the
existence of any fact
that is of consequence to the determination of the action more probable or
less probable than it would
be without the evidence"). However, as discussed above, the Board denied
the appellant's claim
because the evidence of record shows no relationship between the
appellant's disabilities and low
levels of RFR exposure, and the appellant denied symptoms of acute high-
level RFR or microwave
exposure. R. at 14-16. As a result, the Court finds that the appellant has
not demonstrated that any
error was prejudicial. See Sanders, supra.
Finally, the appellant argues that the Board applied the wrong legal
standard when it required
a preponderance of the evidence to establish a relationship between the
appellant's claimed exposure
to RFR and his claimed disabilities. Appellant's Br. at 24; Reply Br. at 1.
The Secretary argues that
"when read in the context of the surrounding Board discussion" it is clear
that the Board "intended
to convey that it found the preponderance of the evidence to weigh against
a finding of nexus, and
not that it required nexus to be shown by a preponderance of the evidence."
Secretary's Br. at 22.
14
There can be no dispute that the Board stated that "[e]ven assuming some
exposure to low
levels of RFR . . . the preponderance of the evidence fails to establish a
relationship to the claimed
radiation exposure and the [v]eteran's development of macular degeneration
and a broncial mucosa
disorder." R. at 13. The Court agrees with the appellant that the Board's
statement suggests that a
nexus had not been established by a preponderance of the evidence. However,
the Court does not
review the Board's statements in isolation. Rather, it is clear from the
Board's assessment of the
evidence, which the appellant has not shown to be clearly erroneous, that
the Board (1) found Dr.
Lahr's favorable opinion not probative; (2) assigned greater weight to the
findings of the VA
examiner and the IMEs; and (3) ultimately concluded that "the
preponderance of the evidence is
against the claims." R. at 13-18 (emphasis added). As a result, while the
Board may have noted an
incorrect standard, the Court will not require a remand when the Board's
analysis demonstrates that
it applied the correct legal standard when it found the preponderance of
the evidence against the
claim.
III. CONCLUSION
After consideration of the appellant's and the Secretary's pleadings, and
a review of the
record, the Board's July 30, 2010, decision is AFFIRMED IN PART and
VACATED IN PART and
the vacated matter is REMANDED to the Board for further proceedings
consistent with this
decision.
DATED: April 13, 2012
Copies to:
Sandra E. Booth, Esq.
VA General Counsel (027)
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