Veteranclaims’s Blog

April 15, 2011

Single Judge Application, Hilkert v. West, 12 Vet.App., Burden of Demonstrating Error

Filed under: Uncategorized — Tags: , , — veteranclaims @ 3:37 pm

Excerpt from decision below:
“C. Reasons or Bases
Mr. Weppler attempts to argue that the Board provided inadequate reasons or bases for its decisions. However, at no time does Mr. Weppler specifically identify any way in which the Board’s reasons or bases are inadequate. Rather, his entire argument on this point consists of one-and-a-half pages of boilerplate language and case citation regarding the Board’s duty, followed by the statement, “This was not done in the case at bar.” Appellant’s Br. at 17. This argument simply does not sufficiently assert error, and the Court therefore need not consider it. See Hilkert v. West, 12 Vet.App. 145, 151 (1999) (holding that appellant has the burden of demonstrating error).”
—————————————————-

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 08-3728
THOMAS WEPPLER, 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: Thomas Weppler appeals through counsel an August 20, 2008,
Board of Veterans’ Appeals (Board) decision that denied entitlement to VA benefits
for throat cancer secondary to in-service exposure to herbicides.1
The Court has jurisdiction pursuant to 38 U.S.C. §§ 7252(a) and 7266(a) to review the Board decision. Because the Board’s determinations that VA satisfied its duties to notify and assist Mr. Weppler were not clearly erroneous, and because Mr. Weppler raises no specific argument regarding the adequacy of the Board’s statement of reasons or bases, the Court will affirm the August 2008 Board decision.

I. FACTS
Mr. Weppler served on active duty in the U.S. Air Force from August 1967
to July 1971.
Beginning in July 1970, he served at Udorn Air Force Base in Thailand.
The Board also denied entitlement to (1) VA benefits for post-traumatic
stress disorder; (2) an increased
disability rating for a duodenal ulcer, currently rated 10% disabling; (3)
an increased disability rating for a skin disorder,
currently rated 10% disabling; and (4) a compensable disability rating for
anxiety neurosis. In his brief, however, Mr.
Weppler appears to limit his arguments to the Board’s denial of benefits
for throat cancer, and the Court therefore deems
any appeal with respect to these other claims abandoned. See Grivois v.
Brown, 6 Vet.App. 136, 138 (1994) (holding
that issues or claims not argued on appeal are considered abandoned).
1

In June 2000, Mr. Weppler’s private physician diagnosed him with “[s]tage
III carcinoma of
the oropharynx.” Record (R.) at 492. In May 2001, he sought VA benefits
for throat cancer on the
basis of exposure to Agent Orange, among other conditions. R. at 506. In a
November 2001 notice
letter, VA informed him of the information and evidence necessary to
substantiate his claims and
who was responsible for obtaining what evidence.
In a June 2002 rating decision, a VA regional office denied Mr. Weppler’s
claim, and he filed
a Notice of Disagreement with that decision. In January 2003, Mr. Weppler,
through his
representative, perfected his appeal to the Board. At that time, he
advised VA that he had served in
Thailand from July 1970 to August 1971 during which time he “worked bomb
loading equipment”
and was responsible for “wash[ing] and work[ing] on T-28 aircraft that was
used in our mission over
Laos.” R. at 347-48.2
In a July 2003 deferred rating decision, a rating officer wrote: “Veteran
alleges
exposure to Agent Orange from aircraft flying from Udorn in Thailand where
he was stationed. Can
we confirm this exposure . . . ?” R. at 345. In August 2003, the regional
office requested documents
that might show Mr. Weppler’s exposure to herbicides, but was subsequently
informed that there
were “no records of exposure to herbicides.” R. at 360.
In November 2003, the regional office informed Mr. Weppler by letter that
additional
information was needed to substantiate his claim, provided an example of
the medical evidence
required, informed him of what information had already been obtained, who
was responsible for
obtaining what portions of the additional information needed to
substantiate his claim, and what that
evidence must show to substantiate his claim. Later that month, Mr.
Weppler responded that he had
been an aircraft mechanic and that, during his time in Udorn, Thailand, he
worked on aircraft that
had flown over Vietnam, Laos, and Cambodia.
In March and June 2004 Supplemental Statements of the Case, the regional
office continued
the denial of Mr. Weppler’s claim. Mr. Weppler continued to disagree with
that decision and his
appeal was certified to the Board.
These pages of the record of proceedings are so faint as to be illegible
by the Court. The parties appear to
agree with this statement of events, however, and the Court has no reason
to suspect that the facts are otherwise. See
Secretary’s Brief (Br.) at 4; Appellant’s Br. at 2.
2
2

In August 2008, after several years of additional development, the Board
issued the decision
on appeal. With respect to the matters on appeal, the Board first
determined that VA had satisfied
its duty to notify Mr. Weppler of the information and evidence necessary
to substantiate his claim.
RegardingVA’s dutyto assist, the Board determined that all pertinent
records had been obtained and
that a medical examination for Mr. Weppler’s throat cancer was not
necessary. In particular, the
Board noted that there was
no evidence beyond [his] own unsupported contentions that he incurred . . .
throat
cancer while on active duty. The service treatment records are negative
for anysigns,
symptoms, or diagnoses of . . . throat cancer. . . . Additionally, none of
the competent
medical evidence of record provides any indication that there could be a
connection
between his present throat cancer and his active service. The Board finds
that there
is sufficient competent medical evidence of record to make a decision on
the claim.
R. at 9. Turning to the merits of Mr. Weppler’s claim for benefits for
throat cancer, the Board
determined that there was no objective evidence of in-service exposure to
herbicides and that Mr.
Weppler’s service in Thailand did not render him eligible for a
presumption of exposure to
herbicides. The Board noted that throat cancer is not one of the
conditions presumptively caused by
herbicide exposure and that there was no medical evidence of record
linking Mr. Weppler’s throat
cancer to exposure to herbicides in service. Accordingly, the Board denied
his claim.
II. ANALYSIS
A. Duty To Notify
On appeal, Mr. Weppler first argues that the Board’s finding that VA
satisfied its duty to
notify him is clearly erroneous. Specifically, he contends
the VA sent the veteran a 17[-]page letter. The first 10 pages are just a
copy of
excerpts of 38 C.F.R. §[§] 3.102-4.130. How does 10 pages of copied law
facilitate
and maximize the veteran’s participation in this process? . . .
VA did not fulfill its duty to notify the veteran regarding the specifics
necessary for him to make out his claim for disability benefits. He was prejudiced by
the VA’s failure to notify because he was denied his opportunity to participate
meaningfully in the adjudication of his claim.
3

Appellant’s Br. at 15-16 (citations and internal quotation omitted). Mr.
Weppler’s argument is unavailing.
The 17-page “letter” to which Mr. Weppler refers is a November 2007 Supplemental Statement of the Case. To the extent that Mr. Weppler contends that a
Supplemental Statement of the Case cannot act as proper notice in his claim for benefits for throat cancer, he is correct. See Mayfield v. Nicholson, 444 F.3d 1328, 1333 (Fed. Cir. 2006) (holding that proper notice is not satisfied by “post-decisional communications from which a claimant might have been able to infer
what evidence the VA found lacking in the claimant’s presentations”).
However, Mr. Weppler ignores the actual notice letters sent to him by VA after he initiated his claim for benefits for throat cancer. See R. at 475-79 (November 2001 notice letter), 333-37 (November 2003 notice letter, followed by readjudication in March and June 2004 (see R. at 308-13, 294- 95)), 256-59 (February 2005 notice letter following November 2004 Board remand). Mr. Weppler does not challenge the
sufficiency of any of these notice letters, and the Court therefore concludes that the Board’s decision in this regard is not clearly erroneous. See Garrison v. Nicholson, 494 F. 3d 1366, 1370 (Fed. Cir. 2007; Mayfield, 444 F.3d at 1333.

B. Duty To Assist
1. Social Security Administration Records
Mr. Weppler next contends that the Board’s finding that VA satisfied its duty to assist is also clearly erroneous. In this regard, he first argues that VA failed to request his records from the Social Security Administration despite being on notice that he was receiving Social Security disability benefits. This argument is without merit. VA is required to make reasonable efforts to obtain all records held by a governmental entity that are relevant to the claim if the claimant provides the Secretary information sufficient to locate such records. 38 U.S.C. § 5103A(c)(1). This includes “a duty to assist in gathering [S]ocial [S]ecurity [Administration] records when put on notice that the veteran is receiving [S]ocial [S]ecurity benefits.” Clarkson v. Brown, 4 Vet.App. 565, 567-68 (1993). In addition, the Court
recognizes that the United States Court of Appeals for the Federal Circuit (
Federal Circuit) has stated that it is impossible for VA to determine the relevance of documents identified by a claimant without first examining them. See Moore v. Shinseki, 555 F.3d 1369, 1375 (Fed. Cir. 2009); see also McGee
4

v. Peake, 511 F.3d 1352, 1358 (Fed. Cir. 2008) (holding that 38 U.S.C. §
5103A “simply does not
excuse the VA’s obligation to fully develop the facts of [a] claim based
on speculation as to the
dispositive nature of relevant records”).
However, the Federal Circuit has more recently
distinguished Moore, McGee, Clarkson, and other cases in which VA was
found to have violated
its duty to assist for failure to obtain Social Security Administration
records, noting that, in those cases, “the identified records had a reasonable possibility of assisting in substantiation of the veteran’s claim.” Golz v. Shinseki, 590 F.3d 1317, 1322 (Fed. Cir. 2010).
Here, there is no evidence that Mr. Weppler properly identified his Social
Security Administration records as being potentially relevant to establishing
entitlement to the various benefits he sought, including benefits for throat cancer. In his brief, Mr. Weppler identifies a single instance that he believes put VA on notice of the existence of Social Security Administration records: a notation in a November 2001 VA examination report that states, “The veteran lives on
disability with his wife and two daughters. He is still recovering from the effects of his cancer treatment.” R. at 445. This hardly qualifies as “information sufficient to locate such records.” 38 U.S.C. § 5103A(c)(1). Indeed, there is not even enough information in that single notation to identify what, precisely “such records” might be or from whom they might be obtained.
Moreover, even if bysome chance VA could have deduced from this single notation that Mr. Weppler was in receipt of Social Security disability benefits, there is still no evidence that such records have any relevance to Mr. Weppler’s claims. Mr. Weppler does not explain, and the record does not reveal, what disabilities he receives Social Security benefits for, and he does not assert that he receives these benefits for the conditions for which he sought VA benefits, including throat cancer. Indeed, there is no description at all of the basis upon which any Social Security disability benefits are paid. In short, Mr. Weppler has not offered any “specific allegations that would give rise to a reasonable belief” that the Social Security Administration records are relevant to the conditions for which he seeks benefits. Golz, 590 F.3d at 1323. He asserts only that those records “contained
relevant evidence, which pertain to [his] conditions.” Appellant’s Br. at 14. Such bald speculation does not establish the relevance of those records and therefore VA had no duty to obtain those records.
5

2. Records Related to Potential Agent Orange Exposure
Mr. Weppler next contends that VA failed to obtain two reports relating to
possible exposure
to herbicides at Udorn Air Force Base in Thailand. Specifically, Mr.
Weppler cites a report entitled
“Project Checo Southeast Asia Report: Base Defense in Thailand,” prepared
by the Department of
the Air Force, and a report entitled “Inequities in Treatment of Vietnam
Veterans: The Exclusion of
the Thailand Veterans,” prepared for presentation to Congress by the
Thailand Vietnam Vets for
Equity in Treatment.3
Mr. Weppler contends that these reports are “crucial evidence” and “highly
probative” in his claim for benefits for throat cancer. Appellant’s Br. at
6, 7. He further argues that
“VA’s dutyto assist should have extended to thesetypes of
secondarymaterials, especiallysince they
have been made part of other cases and are well known to the VA.”
Appellant’s Br. at 7. These
arguments are unpersuasive.
a. Department of the Air Force Report
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). Further, as discussed above, VA is
required to make
reasonable efforts to obtain all records held by a governmental entity
that are relevant to the claim
if the claimant provides the Secretary information sufficient to locate
such records. 38 U.S.C.
§ 5103A(c)(1).
There is no question that the report entitled “Project Checo Southeast
Asia Report: Base
Defense in Thailand” was prepared by the Department of the Air Force, a
governmental entity.
Accordingly, VA was required to obtain that report only if Mr. Weppler ”
provide[d] the Secretary
information sufficient to locate” it. Id. Mr. Weppler does not argue that
he identified this report at
any time during the pendency of his claim. Accordingly, VA did not violate
its duty to assist him
by not requesting the report from the Department of the Air Force.
b. Thailand Vietnam Vets Report
“As part of the assistance provided under [38 U.S.C. 5103A(a)], the
Secretary shall make
reasonable efforts to obtain relevant records (including private records)
that the claimant adequately
Neither of these reports appears in the record of proceedings, and the
parties agree that these reports were not
in the record before the Board. Mr. Weppler, however, attached them as
appendices to his brief.
3
6

identifies to the Secretaryand authorizes the Secretaryto obtain.” 38 U.S.C. § 5103A(b)(1). Again, there is no evidence or assertion by Mr. Weppler that he identified the report entitled “Inequities in Treatment of Vietnam Veterans: The Exclusion of the Thailand Veterans” to enable VA to assist him in obtaining that report. In the absence of such identification, there was no duty for VA to attempt
to obtain this report.

c. Constructive Possession
This Court is precluded by statute from considering any material that was
not contained in the record of proceedings before the Secretary and the Board. 38 U.S.C. § 7252(b); Rogozinski v. Derwinski, 1 Vet.App. 19, 20 (1990) (stating that review in the Court shall be on the record of proceedings before the Secretary and the Board). However, “[t]he Court cannot accept the Board being ‘unaware’ of certain evidence, especially when such evidence is in possession of the VA, and
the Board is on notice as to its possible existence and relevance.” Murincsak v. Derwinski, 2 Vet.App. 363, 372-373 (1992). In Bell v. Derwinski, the Court held that
VA-generated documents in the possession of the Secretary at the time of the Board decision are constructively part of the record of proceedings. 2 Vet.App. 611, 613 (1992). To the extent that Mr. Weppler argues that the reports were constructively part of his claims file and therefore should have been considered in determining entitlement to benefits for throat cancer, he is incorrect.
There is no dispute that the reports in question were not generated by VA.
Likewise, there is no dispute that the reports were not in the Secretary’s possession at the time of the Board’s August 2008 decision in this matter. Mr.Weppler makes only bald, unsupported assertions that these reports were “well known to the VA” and had been part of other claimants’ cases.
This is simply not enough for the Court to conclude that VA was in constructive possession of these reports. Accordingly, Mr. Weppler’s arguments related to these reports must fail.

3. Medical Examination
Mr. Weppler also contends that the Board erred in finding that no medical
examination was warranted with respect to his throat cancer. The Board found:
In this case, the Board is of the opinion that an additional VA examination is not required. See 38 C.F.R. § 3.159(c)(4)(i) [(2008)]. Here, there is no evidence beyond the veteran’s own unsupported contentions that he incurred . . . throat cancer while on active duty. The service treatment records are negative for any signs, symptoms, or diagnoses of . . . throat cancer. . . . Additionally, none of the competent medical
7

evidence of record provides any indication that there could be a
connection between his present throat cancer and his active service. The Board finds that there is sufficient competent medical evidence of record to make a decision on the claim. R. at 9.
Pursuant to 38 C.F.R. § 3.159(c)(4)(i) (2010), VA must provide a claimant
a medical opinion or examination if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but:
(A) Contains competent lay or medical evidence of a current diagnosed
disability or persistent or recurrent symptoms of disability; (B) Establishes that the veteran suffered an event, injury or disease in service, or has
a disease or symptoms of a disease listed in [38 C.F.R.] § 3.309, § 3.
313, § 3.316,
and § 3.317 manifesting during an applicable presumptive period provided
the claimant has the required service or triggering event to qualify for that
presumption; and
(C) Indicates that the claimed disability or symptoms may be associated
with the established event, Previous HitinjuryNext Document, or disease in service or with another service-connected disability. See also 38 U.S.C. § 5103A(d)(2). There is no question that Mr. Weppler has a current diagnosis of throat cancer, satisfying the first prong of the regulation. It is the second and third prongs that led the Board to conclude that a medical examination was not warranted. The
Board found no evidence of complaints, treatment, or diagnosis of throat cancer in service and also found no evidence of in-service exposure to herbicides. Contrary to Mr. Weppler’s assertions, the Board acknowledged Mr. Weppler’s statements that he was exposed to Agent Orange in service, but found that his statements were outweighed by the objective evidence of record (i.e., statements from the National Personnel Records Center and records from the United States Army Center for Unit
Records Research) that indicated that he was not. These factors render the second prong of the regulation unmet. Further, the Board also found no evidence of any connection between Mr. Weppler’s current diagnosis of throat cancer and his active service. The Court concludes that the Board’s determination that a medical examination was not warranted with respect to Mr. Weppler’s claim for benefits for throat cancer is supported by adequate reasons or bases and is not “arbitrary,
capricious, an abuse of
8

discretion, or otherwise not in accordance with the law.”4
38 U.S.C. § 7261(a)(3)(A); McLendon v. Nicholson, 20 Vet.App. 79, 81 (2006).
In light of the above discussion, the Court concludes that the Board’s
determination that VA satisfied its duty to assist Mr. Weppler is not clearly erroneous. See Nolen v. Gober, 14 Vet.App. 183, 184 (2000).

C. Reasons or Bases
Mr. Weppler attempts to argue that the Board provided inadequate reasons or bases for its decisions. However, at no time does Mr. Weppler specifically identify anyway in which the Board’s reasons or bases are inadequate. Rather, his entire argument on this point consists of one-and-a-half pages of boilerplate language and case citation regarding the Board’s duty, followed by the statement, “This was not done in the case at bar.” Appellant’s Br. at 17. This argument simply does not sufficiently assert error, and the Court therefore need not consider it.
See Hilkert v. West, 12 Vet.App. 145, 151 (1999) (holding that appellant has the burden of demonstrating error).

III. CONCLUSION
Upon consideration of the foregoing, the August 20, 2008, Board decision
is AFFIRMED.
DATED: April 13, 2011
Copies to:
Patrick H. Busse, Esq.
VA General Counsel (027)
4
The Court acknowledges Mr. Weppler’s argument that, had VA satisfied its
duty to assist him, as argued in
Part II.B.2 above,”the record would have establish[ed] a connection
between the Agent Orange exposure and cancer.”
Appellant’s Br. at 9. However, the Court has determined that there was no
error in the Board’s finding that VA satisfied
its duty to assist, therefore the Court need not address this portion of
Mr. Weppler’s argument.
9

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