Veteranclaims’s Blog

February 23, 2011

Single Judge Decision, Competent Lay Evidence, McLendon, 20 Vet.App.

Filed under: Uncategorized — Tags: , — veteranclaims @ 3:48 pm

“With regard to the first element, the Board found “that there is no competent evidence showing that [Mr. Ragan] has a current right wrist, right knee and/or right ankle disease or injury.” R. at 7. Although the Board expressed this finding in terms of a lack of competent evidence of a current “disease or injury,” it appears the Board meant to state that it found
5

no competent evidence of a current disability, given that, in the very
next sentence, it reasoned that there could therefore be “no showing that a right wrist, right knee and/or right ankle disability is attributable to service.” R. at 7 (emphasis added). Accordingly, the Court interprets the Board’s decision as determining that the first McLendon element was not satisfied. On this point, Mr. Ragan notes that the Board only considered whether there was competent
evidence of a current disability, and not whether there was competent evidence of “persistent or recurrent symptoms of a disability.” See McLendon, 20 Vet.App. at 81. The Court agrees that the Board clearly erred in this regard. In fact, when the Board reached the merits of Mr. Ragan’s claims, it effectively found that the record contained such evidence. Specifically, the Board found that Mr. Ragan “asserted right wrist, right knee[,] and right ankle pain” and that he was “competent to report symptoms of arthritis.” R. at 10. The Board also found that it had “no reason to doubt [his] reports of right wrist, right knee and right ankle pain.” R. at 10. Accordingly, the Board clearly erred in determining that the first McLendon element was not satisfied.

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Not published
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 09-3361
BILLY E. RAGAN,
v.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS,
APPELLANT,
APPELLEE.
Before HAGEL, Judge.
ORDER
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
It is ORDERED that this Court’s memorandum decision entered on February 4,
2011, is
hereby amended as reflected in the document accompanying this order,
wherein additions are
underlined and deletions are struck.
DATED: February 11, 2011
FOR THE COURT:
/s/ Gregory O. Block
GREGORY O. BLOCK
Clerk of the Court
Copies to:
Glenn R. Bergmann, Esq.
VA General Counsel (027)

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 09-3361
BILLY E. RAGAN, 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: Billy E. Ragan appeals through counselOn December 10, 2010,
the Court
issued a decision affirming an August 5, 2009, Board of Veterans’ Appeals (
Board) decision that
denied BillyE. Ragan entitlement to VA benefits for disabilities of the
right wrist, knee, and ankle.1
On December 12, 2010, Mr. Ragan filed through counsel a motion for
reconsideration of that
decision. Having had the benefit of additional briefing contained in the
motion for reconsideration
and not available to the judge who previously decided this case, the Court
will now grant Mr.
Ragan’s motion for reconsideration, withdraw the December 10, 2010,
decision, and issue this
decision in its stead.2
The Court has jurisdiction pursuant to 38 U.S.C. §§ 7252(a) and 7266(a)
to
The Board’s August 2009 decision also remanded claims for bilateral
hearing loss and tinnitus. Because the
Board has not yet issued a final decision regarding these claims, the
Court does not have authority to consider them at
this time. See 38 U.S.C. § 7262 (stating that the Court reviews only
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))).
On January 3, 2011, the Court entered an order explaining that Judge
Farley, who issued the December 10,
2010, decision, had completed his 2010 service as a recall-eligible
retired judge. See 38 U.S.C. § 7257. The order
therefore designated the undersigned in his stead.
The Court is aware of the general “rule of judicial comity,” which holds ”
that judges of co-ordinate jurisdiction
sitting in the same court and in the same case should not overrule the
decisions of each other” so that “the orderly
2
1

review the August 2009 Board decision. Because the Board clearly erred in
determining that VA
satisfied its duty to assist, the Court will vacate the August 2009 Board
decision and remand the
matter for further development and readjudication consistent with this
decision.
I. FACTS
Mr. Ragan served on active duty with the U.S. Air Force3
from June 1956 to January 1960
and as a reservist with the Arkansas National Guard from January 1960 to
June 1962. A December
1959separationexamination
reportindicatednoclinicalabnormalitiesofthemusculoskeletalsystem
and he reported no pertinent medical history concerning his right ankle,
right knee, or right wrist.
All other service medical records are unavailable and presumably lost as
the result of the 1973 fire
at the National Personnel Records Center.
In December 2006, Mr. Ragan applied for disability compensation benefits
for right ankle,
knee, and wrist injuries he claimed to have incurred while playing
football for the U.S. Air Force.
In his application, Mr. Ragan indicated that he received treatment for the
injuries in August 1958 at
a U.S. Air Force base in England.
functioning of the judicial process [is preserved].” TCF Film Corp. v.
Gourley, 240 F.2d 711, 713 (3d Cir. 1957). The
rule of judicial comity has elsewhere been treated as a subset of the law-
of-the-case doctrine, see, e.g., Ellis v. United
States, 313 F.3d 636, 646-47 (1st Cir. 2002), which, in relevant part,
provides that “‘unless corrected by an appellate
tribunal, a legal decision made at one stage of a civil or criminal case
constitutes the law of the case throughout the
pendency of the litigation.'” Id. at 646 (quoting Flibotte v. Pa. Truck
Lines, Inc., 131 F.3d 21, 25 (1st Cir. 1997)). This
rule merely directs the court’s discretion; it does not prevent a court
from reconsidering a matter already decided. See
Arizona v. California, 460 U.S. 605, 619 (1983) (“Law of the case directs
a court’s discretion, it does not limit the
tribunal’s power.”). Accordingly, the rule of judicial comity is also
considered to be “one regulating the exercise of
discretion in acting rather than one denying power to act at all.” United
States v. Wheeler, 256 F.2d 745, 747 (3d Cir.
1958). Thus, courts have recognized that, in “exceptional circumstances
. . . the rule is not to be applied,” and have
found that such circumstances exist when the judge who made an original
decision in a matter is no longer available to
rule upon a party’s properly raised request for reconsideration. See TCF
Film Corp., 240 F.2d at 714 (holding that where
a judge who originally decided a matter has his or her assignment with the
court terminated or dies, the original judge
“is no longer available to reconsider . . . and such reconsideration must
perforce be by another judge if it is to be had at
all”).
In the present case, this Court’s Rules of Practice and Procedure
expressly guarantee that “[a] party in a case
decided by a single judge may move for reconsideration by the single judge
,” in this instance, Judge Farley. U.S. VET.
APP. R. 35(a)(1). However, as explained in the Court’s January 3, 2011,
order, Judge Farley completed his 2010 service
as a recall-eligible retired judge, and was therefore no longer available
to pass upon Mr. Ragan’s motion for
reconsideration. See 38 U.S.C. § 7257. It is due to these circumstances
that the Court chooses to exercise its discretion
and grant reconsideration in this matter. See TCF Film Corp., 240 F.2d at
714.
3
The Secretary erroneously states that Mr. Ragan’s service was in the U.S.
Army. See Secretary’s Brief at 2.
2

In September 2007, a VA regional office denied Mr. Ragan’s claims. After
further
development, Mr. Ragan appealed to the Board.
In June 2009, Mr. Ragan submitted service personnel records dated between
September and
November 1959 indicating that, on a number of occasions, he had been
granted temporary duty by
special order to participate in sports and football activities in England
and Italy.
Thereafter, in July 2009, Mr. Ragan was afforded an informal hearing
presentation in which
he related that he recalled his injuries occurring during a football game
in Spain in 1958 or 1959
“when he was tackled by another player from the right side, turning his
body around while his feet
remained planted.” Record (R.) at 17. At that time, Mr. Ragan also stated
that he had received
treatment for the injuries at the hospital at Bentwaters Air Base in
England, “where he was
subsequently on crutches for at least a month.” R. at 17. He “relate[d]
current pain and arthritis
symptoms in his right wrist, knee[,] and ankle,” and explained that x-rays
taken “years ago” showed
scar tissue in his ankle. R. at 17. In light of this history, Mr. Ragan
requested that VA attempt to
obtainhis servicepersonnel records,
whichhecontendedwouldprovideevidenceoftheapproximate
dates he was injured, as well as any existing records from the Bentwaters
Air Base hospital that
pertain to treatment he received there. Mr. Ragan also requested that, if
his in-service injuries were
verified, he be provided a VA medical examination.
In August 2009, the Board denied Mr. Ragan’s claims for VA benefits for
right wrist, knee,
and ankle disabilities. The Board concluded that VA did not need to make
any further efforts to
assist Mr. Ragan because there was no evidence of a current disability.
The Board then denied his
claims for the same reason: lack of evidence of a current disability of
the right wrist, knee, or ankle.
On appeal, Mr. Ragan argues that the Board clearly erred in determining
that VA’s duty to
assist did not require it to provide him with a VA medical examination or
attempt to obtain his
militarypersonnel records and treatment records from the Bentwaters Air
Base hospital. At the very
least, Mr. Ragan contends that the Board’s statement of its reasons or
bases offered in support of this
conclusion was inadequate. Finally, Mr. Ragan argues that the Board failed
to explain how it could
issue a final decision on his right wrist, right knee, and right ankle
claims while simultaneously
remanding his audiological disability claims so that VA could attempt to
obtain records pertaining
to his National Guard service.
3

In response, the Secretary contends that there was an adequately
described, plausible basis
for the Board’s determination that there is no evidence that Mr. Ragan
suffers from a current
disability of the right wrist, knee, or ankle and, therefore, for its
conclusion that VA did not need to
take any further measures to satisfy its duty to assist. The Secretary
further argues that the issues
relevant to Mr. Ragan’s right wrist, knee, and ankle claims are not
inextricably intertwined with the
issues pertinent to his audiological disability claims and that the Board
therefore did not clearly err
in remanding the audiological disability claims while rendering a decision
on all others.
II. ANALYSIS
At the outset, the Court notes that, in its August 2009 decision, the
Board found that Mr.
Ragan’s servicemedicalrecordsaremissing. Further,
therecordcontainsevidencethat these records
are presumed lost as the result of the 1973 fire at the National Personnel
Records Center. This Court
has previously explained that, in cases where a claimant’s records are
known to have been destroyed
in the National Personnel Records Center fire, the law is clear that VA
has a “heightened” duty to
assist that claimant byadvising him to submit alternative forms of
evidence supporting the claim and
assisting the claimant in obtaining this alternative evidence. Washington
v. Nicholson, 19 Vet.App.
362, 370 (2005); Dixon v. Derwinski, 3 Vet.App. 261, 263 (1992). Further, ”
where the service
medical records are presumed destroyed . . . in such a case, the [Board]’s
obligation to explain its
findings and conclusions and to consider carefully the benefit-of-the-
doubt rule is heightened.”
O’Hare v. Derwinski, 1 Vet.App. 365, 367 (1991).
The Court notes that, although the Board acknowledged its heightened duty
to explain its
findings and apply the benefit-of-the-doubt rule, it appears to have
ignored the most important duty
flowing from a finding that records have been destroyed while in the
custody of the government: the
heightened duty to assist. While VA’s heightened duty to explain its
findings and apply the benefit-
of-the-doubt rule may be easier to achieve, it is often of less practical
consequence to a veteran
whose records have been lost or destroyed through no fault of his or her
own. With this in mind, the
Court turns to the Board’s explanation for its conclusion that VA’s dutyto
assist required it to neither
afford Mr. Ragan a VA medical examination, nor attempt to obtain his
service personnel records or
any records pertaining to treatment he received at the Bentwaters Air Base
hospital.
4

VA’s duty to assist disability-compensation claimants by providing a
medical examination
is established by 38 U.S.C. § 5103A and 38 C.F.R. § 3.159(c)(4). The
language of these provisions
was parsed and examined in detail by this Court in McLendon v. Nicholson,
20 Vet.App. 79 (2006).
In that case, the Court explained:
In disability compensation claims, the Secretary must provide a VA medical
examination whenthereis (1)competentevidenceofacurrentdisabilityor
persistent
or recurrent symptoms of a disability, and (2) evidence establishing that
an event,
injuryNext Hit, or disease occurred in service or establishing certain diseases
manifesting
during an applicable presumptive period for which the claimant qualifies,
and (3) an
indication that the disability or persistent or recurrent symptoms of a
disability may
be associated with the veteran’s service or with another service-connected
disability,
but (4) insufficient competent medical evidence on file for the Secretary
to make a
decision on the claim.
Id. at 81 (emphasis added).
In Duenas v. Principi, the Court held that when the Board considers
whether a medical
examination or opinion is necessary under section 5103A(d) and § 3.159(c)(
4), it must provide a
written statement of the reasons or bases for its conclusion, pursuant to
38 U.S.C. § 7104(d)(1), and
that, absent a finding of nonprejudicial error, vacatur and remand is
warranted where it fails to do
so. 18 Vet.App. 512, 517-18 (2004) (citing Tucker v. West, 11 Vet.App. 369,
374 (1998)).
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
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)).
In the August 2009 decision now on appeal, the Board concluded that VA’s
duty to assist did
not require it to provide Mr. Ragan with a medical examination because the
first two McLendon
elements were not satisfied. With regard to the first element, the Board
found “that there is no
competent evidence showing that [Mr. Ragan] has a current right wrist,
right knee and/or right ankle
disease or Previous HitinjuryNext Hit.” R. at 7. Although the Board expressed this finding in
terms of a lack of
competent evidence of a current “disease or Previous HitinjuryNext Hit,” it appears the Board
meant to state that it found
5

no competent evidence of a current disability, given that, in the very
next sentence, it reasoned that
there could therefore be “no showing that a right wrist, right knee and/or
right ankle disability is attributable to service.” R. at 7 (emphasis added). Accordingly, the Court interprets the Board’s decision as determining that the first McLendon element was not satisfied.
On this point, Mr. Ragan notes that the Board only considered whether
there was competent evidence of a current disability, and not whether there was competent evidence of “persistent or recurrent symptoms of a disability.” See McLendon, 20 Vet.App. at 81. The Court agrees that the Board clearly erred in this regard. In fact, when the Board reached the merits of Mr. Ragan’s claims, it effectively found that the record contained such evidence. Specifically, the Board found that Mr. Ragan “asserted right wrist, right knee[,] and right ankle pain” and that he was “competent to report symptoms of arthritis.” R. at 10. The Board also found that it had “no reason to doubt [his] reports of right wrist, right knee and right ankle pain.” R. at 10. Accordingly, the Board clearly erred in determining that the first McLendon element was not satisfied.
The Board also appears to have concluded that Mr. Ragan was not entitled
to a VA medical examination because the second McLendon element was not satisfied, in that there was no evidence revealing an in-service event, injury, or disease. Specifically, the Board found that [b]ecause some evidence of an in-service event,injury, or disease is required in order to substantiate a claim for service connection and because a post-service medical examination could not provide evidence of such past events, a medical examination conducted in connection with claim development could not aid in substantiating a claim when the record does not already contain evidence of an in-service event, injury, or disease.
R. at 7. However, despite this finding, the Board did recognize that, “[v]
ia various statements[,] [Mr. Ragan] . . . reported that he was injured while playing football in service” in 1958 or 1959, a period of time the Board found “corresponds to when he was placed on [temporary duty].” R. at 9. The
Board acknowledged Mr. Ragan’s statements that “[h]e recalled being
treated immediately by a
medic with a splint and, when he returned to base, being treated at the
Bentwaters Air Base in
England.” R. at 9. The Board also noted that Mr. Ragan believed that his
service personnel records
and any existing treatment records from the Bentwaters Air Base hospital
would substantiate his
6

assertions of an in-service injury, and that he believed VA should
therefore assist him in obtaining
these records.
Despite Mr. Ragan’s assertions and requests for assistance, the Board
concluded that “in the
absence of a current disability, service connection may not be granted”
and, “[a]s such, a remand for
the purpose of obtaining the . . . records would be futile in the absence
of a showing that [Mr. Ragan]
has a right wrist, right knee and right ankle disability.” R. at 7. The
Court concludes that the Board
clearly erred in determining that, under these circumstances, VA’s duty to
assist did not require it to
attempt to obtain the described records.
The Secretary is required to “make reasonable efforts to assist a claimant
in obtaining
evidence necessaryto substantiate the claimant’s claim for benefits.” 38 U.
S.C. § 5103A(a)(1). That
duty includes making “reasonable efforts to obtain relevant records,” so
long as the claimant
“adequately identifies” those records to the Secretary and authorizes the
Secretary to obtain them.
38 U.S.C. § 5103A(b)(1); see also Loving v. Nicholson, 19 Vet.App. 96,
102 (2005). Further, VA
is required to make reasonable efforts to obtain all records held by a
governmental entity that are
relevant to the claim and that pertain to the claimant’s military service
if the claimant provides the
Secretaryinformation sufficient to locate such records. 38 U.S.C. § 5103A(
c)(1). In that regard, VA
is required to make as many requests as necessary to obtain records from
Federal agencies.
38 C.F.R. § 3.159(c)(2) (2010). VA may discontinue its efforts to obtain
records from a Federal
department or agency only when it concludes that continued efforts would
be futile, which requires
that the Federal department or agency advise VA that either the requested
documents do not exist
or that the custodian does not have them. Id.
Here, Mr. Ragan identified two categories of records—his service
personnel records and
records documenting treatment he received at the Bentwaters Air Base
hospital—that he believed
would substantiate his assertion of an in-service injury. VA therefore had
a duty to attempt to obtain
such records until such attempts became futile. See 38 U.S.C. § 5103A(a)-(
c). The Court concludes
that the Board’s determination that VA was not required to do so because
of a lack of evidence of
a current disability is not substantiated and clearly erroneous given that
: (1) the Board denied Mr.
Ragan a VA medical examination that may have resulted in a current
diagnosis of disability based
on a clearly erroneous application of section 5103A(d) and the test set
fort in McLendon, supra; (2)
7

Mr. Ragan made specific assertions of an in-service injury and current
symptoms of disability that
the Board found credible; and (3) VA had a heightened duty, given the loss
of his service medical
records, to assist Mr. Ragan in developing his claim by obtaining
alternative forms of evidence. See
Washington, 19 Vet.App. at 370; Dixon, 3 Vet.App. at 263.
Accordingly, the Court will vacate the August 2009 Board decision and
remand the matter
for additional development and readjudication. On remand, the Board will
attempt to obtain Mr.
Ragan’s service personnel records and any existing records
documenting treatment he received at the
Bentwaters Air Base hospital. The Board will also afford Mr. Ragan a VA
medical examination,
obtain a medical opinion from a qualified expert, or explain adequately
why, in light of McLendon,
Duenas, and the language of the statute and regulation, Mr. Ragan is not
entitled to such assistance
on the part of VA.
The Court notes that Mr. Ragan also argues that the Board clearly erred in
deciding his claims
for right wrist, knee, and ankle disabilities while simultaneously
remanding his audiological
disability claims. This Court has held that “where a decision on one issue
would have a ‘significant
impact’ upon another, and that impact in turn ‘could render any review by
this Court of the decision
[on the other claim] meaningless and a waste of judicial resources,’ the
two claims are inextricably
intertwined” and should be decided together. Henderson v. West, 12 Vet.App.
11, 20 (1998)
(quoting Harris v. Derwinski, 1 Vet.App. 180, 183 (1991)); see Gurley v.
Peake, 528 F.3d 1322,
1325 (Fed. Cir. 2008). However, Mr. Ragan does not assert that his right
wrist, knee, and ankle
disability claims are inextricably intertwined with his audiological
disability claims, only that
evidence obtained in conjunction with the further development of his
audiological disability claims
may also reveal evidence pertaining to his right wrist, knee, and ankle
disability claims.
Accordingly,the Court determines that remand is not warranted on this
ground. However,giventhat
the Court will remand Mr. Ragan’s right wrist, knee, and ankle disability
claims for the reasons
outlined above, the Board will, of course, be required to consider any
evidence pertinent to those
claims that is acquired during the development of Mr. Ragan’s audiological
disability claims.
III. CONCLUSION
8

Upon consideration of the foregoing, the August 5, 2009, Board decision
is VACATED and
the matter is REMANDED for further development and readjudication consistent
with this decision.

DATED: February 11, 2011
Copies to:
Glenn R. Bergmann, Esq.
VA General Counsel (027)
9

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