Veteranclaims’s Blog

September 6, 2011

Single Judge Application, Inferred Claims, Claim Defined, TDIU Cases Must be Referred to Director

Excerpts from decision below:

Further, although there may be an inferred issue, there is no such thing as an inferred claim. See Akles v. Derwinski, 1 Vet.App. 118, 121 (1991) (recognizing entitlement to special monthly compensation as an inferred issue where the veteran had filed a claim for an increased disability rating).
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The Court recently held that a claim is “‘a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement, to a benefit.'” Hillyard v. Shinseki, 24 Vet.App. 343, 355 (2011) (citing 38 C.F.R. §.3.1(p) (2010)).
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The Court acknowledges that, pursuant to §4.16(b), even where the general criteria for a total disability rating based on individual unemployability, as outlined in § 4.16(a), have not been shown, the rating board must refer “all cases of veterans who are unemployable by reason of service-connected disabilities” to the Director of the Compensation and Pension Service so that the Director can determine whether an extraschedular total disability rating is appropriate.
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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 09-4389
KEVIN J. WASHINGTON, 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: Kevin J. Washington appeals through counsel an August 28, 2009, Board of Veterans’ Appeals (Board) decision that denied entitlement to VA benefits for a bilateral ankle disorder, including as secondary to service-connected flat feet. Mr. Washington’s Notice of Appeal was timely, and the Court has jurisdiction to review the Board decision pursuant to 38 U.S.C. § 7252(a). Neither party requested oral argument or identified issues they believe require a precedential decision of the Court. Because the Board considered all of the relevant evidence, discussed all applicable provisions of law, and provided an adequate statement of reasons or bases in support of its findings, the Court will affirm the August 2009 Board decision.

I. FACTS
Mr. Washington served on active duty in the U.S. Marine Corps from October 1979 to June 1983. His service medical records reflect that, in February 1983, he suffered from a mild sprain of his right ankle.In September 1993, Mr. Washington filed a claim for VA benefits for an ankle disorder. In December 1993, he was afforded a VA joints examination.The examiner recorded Mr.Washington’s medical history and his current symptoms. After performing a physical examination and taking x-rays, the examiner concluded that there was no pathology of the ankles found and that the x-rays were normal.In March 1994, a VA regional office denied Mr. Washington’s claim because he did not have a current disability. He did not appeal that decision and it became final.In January 2004, Mr. Washington filed an application to reopen his previously denied claim for a bilateral ankle disorder. In support of his application, he submitted lay statements from his mother and former employer.
The lay statement from his mother stated that Mr. Washington never had any problems with his ankles before going into the service, that during service he wrote to her complaining about pain in his ankles, and that over the years his ankles continued to bother him.The lay statement from his former employer stated that physical limitations due to his foot and ankle caused him to miss work and he was ultimately let go.In April 2004, the regional office found that Mr.Washington had submitted new and material evidence sufficient to reopen his previously denied claim; however, the regional office denied the claim on the merits, finding that he did not have a current disability. Mr. Washington appealed that decision to the Board.
In June 2005, Mr. Washington was afforded a VA joints examination. The examiner indicated that he reviewed Mr. Washington’s claims file. The examiner recorded Mr. Washington’s medical history and subjective complaints and performed a physical evaluation. The examiner observed that both ankles were normally aligned and that x-rays of both ankles revealed normal anatomical alignment without any arthritis. The examiner diagnosed normal left and right ankles.In July 2005, Mr. Washington testified at a hearing before a decision review officer aboutthe pain in his left ankle.After further development, VA obtained his Social Security Administration records, which reflected complaints of pain in his ankles. VA also obtained additional VA medical center treatment records that also reflected complaints of pain in his ankles. A September 2002 x-ray also noted normal configuration of the ankle joint.

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In the August 2009 Board decision currently on appeal, the Board found that there was no probative evidence of record of a current bilateral ankle disorder and, accordingly, that VA benefits were not warranted.

II. ANALYSIS
A. All Applicable Provisions of Law
On appeal, Mr. Washington argues that the Board failed to consider all applicable provisions of law under 38 U.S.C. § 7104(a). Specifically, he argues that the Board did not properly consider his lay statements in rejecting the private medical evidence of record and relying primarily on the June 2005 VA examination. In response, the Secretary contends that the Board properly weighed the evidence of record and that the Board’s findings are not clearly erroneous. The Court agrees with the Secretary.Pursuant to 38 U.S.C. § 7104(a), the Board is required to consider all evidence of record and to consider, and discuss in its decision, all applicable provisions of law and regulation. After a review of the record, the Court concludes that in this case the Board complied with that duty.
First, the Board noted that one of the essential requirements of a claim for VA benefits on a direct or a secondary basis is a current disability. The Board explained that “although [Mr. Washington] has continuously made assertions of the existence of a bilateral ankle disorder . . . there is no probative evidence whatsoever in the post-service treatment records of a diagnosis of a bilateral ankle disorder.” Record (R.) at 13. The Board then noted specific instances in the VA and private treatment records where Mr. Washington complained of pain and a possible diagnosis of arthritis; however, the Board found that these treatment records were not probative of a current diagnosis because “all of the diagnoses of ‘possible’ arthritis [ ] cited above are unsupported by actual examinations [or] x-rays taken of the veteran’s ankles.” R. at 14. The Board then noted several instances where x-rays of Mr. Washington’s ankles had been taken and were noted to be normal.With regard to the lay evidence of record, the Board noted that a lay person is competent to state that he suffered from bilateral ankle pain, but that further evidence of an actual diagnosis of an ankle disorder was required. The Board also correctly noted that “pain alone, without a diagnosed or identified underlying malady or condition, does not in and of itself constitute a disability for which

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service connection maybe granted.” R. at 15 (citing Sanchez-Benitez v. West, 13 Vet.App. 282, 285(1999)).
The Court does note that, overall, the Board’s analysis is not a model of clarity. In this regard, the Board’s discussion of how the private and VA physicians did not review Mr. Washington’s service treatment records and post-service medical history, and that a medical history provided by a veteran and recorded by an examiner is not competent evidence, does not provide additional support for the Board’s ultimate conclusion–that Mr. Washington lacked a current diagnosis of an ankle disability. Indeed, these medical records were not probative because, as the Board later noted, they only stated a “possible” diagnosis and were not supported by additional testing such as x-ray evidence. Nonetheless, the Court concludes that, despite some confusing analysis, the Board decision ultimately contains a thorough discussion of the reasons why the record does not reflect a current diagnosis of an ankle disorder. See McClain v. Nicholson, 21 Vet.App. 319, 321 (2007) (“Although we agree with the Secretary that the Board’s statement of reasons or bases is not a model of clarity . . ., such a degree of clarity, although certainly preferred, is not and cannot be demanded in every instance or finality would forever be delayed pending perfection in draftsmanship.”).In addition, for the foregoing reasons, the Court also concludes that the Board decision is supported by an adequate statement of reasons or bases. 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. Caluza v. Brown, 7Vet.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.

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Here, as noted above, the Board complied with this requirement by explaining the applicable laws and regulations pertaining to both direct and secondary service connection and explaining how the facts of Mr. Washington’s case showed that he did not meet the requirement of a current disability. See Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009) (stating that serviceconnection is demonstrated where the evidence shows (1) a current disability, (2) incurrence oraggravation of a disease or injury in service, and (3) a nexus between the in-service injury or diseaseand the current disability); see also Wallin v. West, 11 Vet.App. 509, 512 (1998) (stating thatsecondaryservice connection requires (1) a current disability,(2) a service-connected disability, and(3) evidence that the current disability is proximately due to or the result of the service-connecteddisability). Accordingly, the Court concludes that the Board provided an adequate statement ofreasons or bases for its decision, including compliance with its dutyto consider all relevant evidenceof record and consider all applicable provisions of law and regulation. See 38 U.S.C. § 7104(a);Caluza, 7 Vet.App. at 506.B. Total Disability Rating Based on Individual UnemployabilityMr. Washington also argues that the Board should have inferred the issue of entitlement toa total disability rating based on individual unemployability from the facts of his appeal.1In response, the Secretary argues that evidence of entitlement to a total disability rating based on individual unemployability was not reasonably raised by the record.
The Court agrees with the Secretary. “[T]otal disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation.” 38 C.F.R. § 4.15 (2011). Even where a service-connected disability is less than

1. The Court notes that, in his brief, Mr. Washington refers to an “inferred claim” for a total disability rating basedon individual unemployability. However, there is no such thing as a freestanding “claim” for a total disability ratingbased on individual unemployability. A request for entitlement to a total disability rating based on individualunemployability “involves an attempt to obtain an appropriate rating for a disability or disabilities, either as part of theinitial adjudication of a claim, or . . . as part of a claim for increased compensation.” Rice v. Shinseki, 22 Vet.App. 447,453-54 (2009).
Further, although there may be an inferred issue, there is no such thing as an inferred claim. See Akles v. Derwinski, 1 Vet.App. 118, 121 (1991) (recognizing entitlement to special monthly compensation as an inferred issue where the veteran had filed a claim for an increased disability rating). The Court recently held that a claim is “‘a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement,to a benefit.'” Hillyard v. Shinseki, 24 Vet.App. 343, 355 (2011) (citing 38 C.F.R. §.3.1(p) (2010)).

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total, a veteran may be entitled to pension if that veteran satisfies the percentage requirements set forth in 38 C.F.R. § 4.16(a) (2011). Under § 4.16(a), a total disability rating will be awarded, even where the schedular rating is less than total, (1) when the disabled person is “unable to secure or follow a substantially gainful occupation” as a result of service-connected disabilities; and (2) if there is only one such disability, that it is ratable at 60% or more, or if there are two or more disabilities, there is at least one disability ratable at 40% and sufficient additional disability to bring the combined rating to 70% or more. 38 C.F.R. § 4.16(a). Further, the regulation provides that, for the purpose of one 60% disability, disabilities resulting from a common etiology or single accident are considered one disability. Id. In the event that a veteran fails to meet the percentage requirements set forth in that regulation, a permanent and total disability rating is authorized on an extraschedular basis if the veteran “is found to be unemployable by reason of his or her disability(ies), age, occupational background and other related factors.” 38 C.F.R. § 3.321(b)(2) (2011).
Here, the Court notes that, although Mr. Washington stated that he was unable to maintain employment due to his foot and ankle disabilities, as discussed above, (1) he is not entitled to VA benefits for a bilateral ankle disability–the disability based on which he claims a rating of total disability, and (2) he does not meet the percentage requirements set out in 38 C.F.R. § 4.16(a).Accordingly, even though as Mr. Washington notes in his brief, VA has a duty to sympathetically interpret a veteran’s pleadings, the Board was not required to infer a request for entitlement to individual unemployability based on individual unemployability in this case. See 38 C.F.R. § 4.16(a).The Court acknowledges that, pursuant to §4.16(b), even where the general criteria for a total disability rating based on individual unemployability, as outlined in § 4.16(a), have not been shown, the rating board must refer “all cases of veterans who are unemployable by reason of service-connected disabilities” to the Director of the Compensation and Pension Service so that the Director can determine whether an extraschedular total disability rating is appropriate. However, as noted above, Mr. Washington’s bilateral ankle pain is not a service-connected disability. To the extent that Mr. Washington is claiming that he cannot work due to his service-connected flat feet, that disability is not on appeal at this time. If Mr. Washington wishes to file a claim for an increased disability6rating for his service-connected flat feet, he is free to do so and to raise the issue of unemployability due to that disability at that time.III.

CONCLUSION
Upon consideration of the foregoing, the August 28, 2009, Board decision is AFFIRMED.

DATED: August 30, 2011Copies to:Judy J. Donegan, Esq.VA General Counsel (027)7

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