Veteranclaims’s Blog

March 28, 2011

Single Judge Application, CFR 3.159(c), Demonstrating Relevance of Records VA Failed to Obtain

Excerpt from decision below:
“Under 38 C.F.R. § 3.159(c)(2010), VA’s dutyto assist includes assisting a
claimant to obtain evidence necessary to substantiate a claim. VA’s duty to give such assistance extends to those attempting to reopen a finally decided claim. Id.
Here, the Secretary does not dispute the appellant’s argument that VA made
no attempt to obtain his medical records. As § 3.159(c) clearly states that the duty to assist includes obtaining records for an appellant who seeks to reopen a claim, the Court concludes that VA failed to fulfill its duty to assist. As for whether this error was prejudicial, in his request for VA to obtain the records, the appellant denoted the conditions for which each record was relevant. R. at 219, 220, 222, 234. By making clear references that the records he seeks VA to obtain relate to his lymphoma and to his hepatitis C, the appellant meets his burden of demonstrating that these records are potentially relevant to his attempting to reopen his claim and he is prejudiced by the RO and Board not having these records to review to make its decision.

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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 09-3136
JOHN R. BARBACCIA, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before LANCE, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
LANCE, Judge: The appellant, John R. Barbaccia, through counsel, appeals a
June 23,
2009, Board of Veterans’ Appeals (Board) decision that found that new and
material evidence had
not been submitted to reopen claims for entitlement to service connection
for hepatitis C and non-
Hodgkin’s lymphoma and that denied entitlement to service connection for a
disability manifested
byshortness of breath and fatigue. Record (R.) at 3-20. Single-judge
disposition is appropriate. See
Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). This appeal is timely,
and the Court has
jurisdiction over the case pursuant to 38 U.S.C. §§ 7252(a) and 7266.
For the reasons that follow,
the Court will vacate the June 23, 2009, decision and remand the matter
for further proceedings
consistent with this decision.
I. FACTS
The appellant served on active duty in the U.S. Army from April 1979 to
May 1982. R. at
345. The Board notes that the appellant also served in the ArmyNational
Guard from May1 to May
9, 1992, and from February 1 to July 29, 2003. R. at 4.
In April 2000, the appellant filed an application for compensation or
pension for non-
Hodgkin’s lymphoma and hepatitis C. R. at 233-37. In February 2001, the
appellant submitted a

list of sources and records that he consented to VA obtaining to assist
with his claims. R. at 222-23.
On April 2, 2002, the Oakland, California, regional office (RO) denied his
claims for entitlement to
service connection for hepatitis C and non-Hodgkin’s lymphoma. R. at 200-
04.
In March 2005, the appellant sought to reopen his claims for entitlement
to service
connection for hepatitis C and non-Hodgkin’s lymphoma and filed a claim
seeking entitlement to
service connection for a disability manifested by shortness of breath and
fatigue. R. at 148-51. In
August 2005, the RO denied the appellant’s claims. R. at 138-142. The
decision noted that service
medical records (SMRs) did not list any conditions associated with
shortness of breath and that VA
treatment records did not attribute mild shortness of breath or easy
fatigability to service. R. at 139.
The decision also stated that new and material evidence had not been
submitted to reopen the
appellant’s claims for service connection for hepatitis C and non-
Hodgkin’s lymphoma. R. at
140-141. In November 2005, the appellant filed a Notice of Disagreement (
NOD). R. at 77. In
August 2006, the RO issued a Statement of the Case (SOC). R. at 42-62. The
SOC stated that the
appellant’s claims to reopen were denied because he submitted only
evidence of diagnosis and
treatment for hepatitis C and non-Hodgkin’s lymphoma after discharge
from service. R. at 61.
Regarding the appellant’s claim for entitlement to service for fatigue
and shortness of breath, the
SOC stated that service connection was not warranted absent evidence
showing a chronic disability
or disease associated with shortness of breath and fatigue and absent
evidence linking this disability
to service. Id. The appellant filed an appeal in September 2006. R. at 37.
In the decision currently on appeal, the Board denied the appellant’s
claims for hepatitis C
and non-Hodgkin’s lymphoma because the evidence submitted since the 2002
denial was new but
not material and there was no evidence linking the diseases to service. R.
at 18-19. Regarding the
appellant’s claim for fatigue and shortness of breath, the Board found
no evidence to associate the
claimed symptoms to service. R. at 19.

II. ANALYSIS
A. Duty to Obtain Records
The appellant agues that VA failed to fulfill its duty to assist because ”
VA made no attempt to secure records from anyof thenumerousprimary,treating,
privatephysiciansincluding those who first diagnosed the non-Hodgkins lymphoma and hepatitis C diseases, and who were therefore in the best position to provide opinions concerning etiology.” R. at 3-4. The Secretary argues that the
appellant’s written consent (R. at 220, 222) was submitted in February
2001, which is prior to the April 2002 rating decision that became final, and that the consent was not “new and material” under 38 C.F.R. 3.156(a) (2010), because it was previously of record. Secretary’s Brief (Br.) at 8. The Secretary further asserts that the appellant “has not demonstrated any prejudice where these post-
service records were not obtained where his claims were denied due in part
to lack of evidence of in-service occurrence.” Id., citing R. at 18-19.
Under 38 C.F.R. § 3.159(c)(2010), VA’s dutyto assist includes assisting a
claimant to obtain evidence necessary to substantiate a claim. VA’s duty to give such assistance extends to those attempting to reopen a finally decided claim. Id.
Here, the Secretary does not dispute the appellant’s argument that VA made
no attempt to obtain his medical records. As § 3.159(c) clearly states that the duty to assist includes obtaining records for an appellant who seeks to reopen a claim, the Court concludes that VA failed to fulfill its duty to assist. As for whether this error was prejudicial, in his request for VA to obtain the records, the appellant denoted the conditions for which each record was relevant. R. at 219, 220, 222, 234. By making clear references that the records he seeks VA to obtain relate to his lymphoma and to his hepatitis C, the appellant meets his burden of demonstrating that these records are potentially relevant to his attempting to reopen his claim and he is prejudiced by the RO and Board not having these records to review to make its decision. The Court remands the appellant’s claims for hepatitis C and non-Hodgkin’s lymphoma so that VA can fulfill its duty to obtain the records referenced by the appellant.

B. Inadequate Reasons and Bases
The appellant argues that the Board provided inadequate reasons or bases
for its denial of
his claim for service connection for fatigue and shortness of breath.
Appellant’s Br. at 7-10. The
Secretary defends the Board’s decision by noting that these are recent
symptoms and there is no
evidence that they are related to any period of active military service.
Secretary’s Br. at 9-10.
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(d)(1); Allday v. Brown, 7 Vet.App. 517, 527 (1995); Gilbert v. Derwniski, 1 Vet. App. 49, 56-57 (1990).
While the appellant argues that the Board denied this claim on the basis
that he did not have a diagnosis for his disability (Appellant’s Br. at 7-10), the Secretary notes that the Board based its denial on “the overarching matter that there is no evidence linking the symptoms to any period of service or any service-connected disability” (Secretary’s Br. at 10). In its decision, the Board notes
that the appellant’s conditions of fatigue and shortness of breath ”
recurrently appear in clinical
records associated with [his cancer or hepatitis C] diagnoses and care
therefor since 1994.” R. at
19. Given that the appellant’s complaints of fatigue and shortness of
breath may or may not be symptoms of his other two claims that the Court has decided warranted remand, the Court will also remand these claims for the Board to readjudicate along with his claims to reopen once the appellant’s medical records have been obtained. See Tyrues v.Shinseki,23 Vet.App. 166, 178 (2009) (en banc) (holding that “the Court retains its discretion to determine at the threshold that a claim or theory denied by the Board in any such decision or portion of a decision
on review is so inextricably intertwined with matters still pending before VA that it should be remanded to VA to await development or disposition of a claim or theorynot yet finally decided by VA”) aff’d 631 F.3d 1380 (Fed. Cir. 2011).

C. Duty to Provide a Medical Examination
Finally, the appellant argues that VA failed to fulfill its duty to assist
by failing to obtain medical opinions concerning the etiology of his hepatitis C, non-Hodgkin’s lymphoma, and his claims of fatigue and shortness of breath. Appellant’s Br. at 10-13. As the Court is remanding these three claims, the Court concludes that this argument should be addressed by VA once it has attempted to gather the additional medical records. See Shade v. Shinseki, 24 Vet.App. 110, 117
(2010) (when evaluating the materiality of newly submitted evidence, the Board should not focus solely on whether the evidence remedies the principal reason for denial in the last prior decision, but rather should focus on whether the evidence, taken together, could at least trigger the duty to assist by providing a medical opinion).
On remand, the appellant is free to submit additional evidence and
argument, including the arguments raised in his briefs to this Court, in accordance with Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999) (per curiam order), and the Board must consider any such evidence or argument

submitted.
See Kay v. Principi, 16 Vet.App. 529, 534 (2002).
The Board shall proceed
expeditiously, in accordance with 38 U.S.C. §§ 5109B, 7112 (requiring
Secretary to provide for “expeditious treatment” of claims remanded by Board or Court).

III. CONCLUSION
After consideration of the appellant’s and the Secretary’s briefs, and a
review of the record, the Board’s June 23, 2009, decision is VACATED and the matter is REMANDED to the Board for further proceedings consistent with this decision.
DATED: March 18, 2011
Copies to:
Robert Franklin Howell, Esq.
VA General Counsel (027)

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