Veteranclaims’s Blog

October 10, 2011

Single Judge Application, Claim Versus Theory of Entitlement to a Benefit, Hillyard v. Shinseki, 24 Vet.App. 343, 355 (2011)

Filed under: Uncategorized — veteranclaims @ 3:47 pm

Excerpt from decision below:
“This Court has held that a “claim” is an expressed belief in an entitlement to a benefit, while a “theory” is a means of establishing entitlement to a benefit. Hillyard v. Shinseki, 24 Vet.App. 343, 355 (2011). Therefore, “although there may be multiple theories or means
of establishing entitlement to a benefit for a disability, if the theories all pertain to the same benefit for the same
disability, they constitute the same claim.” Roebuck v. Nicholson, 20 Vet.App. 307, 313 (2006); see
also Bingham v. Principi, 18 Vet.App. 470, 474 (2004)(finding that “direct and presumptive service
connection are, by definition, two means (i.e., two theories) by which to reach the same end, namely
service connection).
===========================
—————————————————-
Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 10-1862
BERNADITA P. TORRES, 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, Bernadita P. Torres, appeals through counsel an April 15, 2010, Board of Veterans’ Appeals (Board) decision that, based on the submission of new and material evidence, reopened her claim for entitlement to service
connection for the death of her husband, but then denied her claim. Record (R.) at 3-25. 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). Single-
judge disposition is appropriate. See Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). For the following reasons, the Court will vacate the Board’s decision and remand the matter for further proceedings consistent with this opinion.

I. BACKGROUND
The veteran, George Mendiola Torres, served on active duty in the U.S.
Army from
November 1969 until November 1971, including a period in Vietnam. R. at
519. In a March 15,
2002, decision, the VA regional office (RO) granted the veteran service
connection for diabetes
mellitus on a presumptive basis due to his exposure to herbicides while
serving in Vietnam. R. at
452-57.

In April 2002, following a surgical procedure, the veteran was diagnosed
with pancreatic
carcinoma. R. at 436. The veteran died on March 16, 2003. R. at 365. His
death certificate lists
his cause of death as “metastatic pancreas cancer,” but recorded no other
conditions related to his
cause of death or contributing to his death. Id. On April 10, 2003, the
appellant filed a claim for
dependencyand indemnity compensation (DIC), death pension, and accrued
benefits bya surviving
spouse. R. at 356-60. The RO denied her claim in June 2003, a decision she
apparently did not
appeal. R. at 349-53. The appellant sought to reopen her claim in October
2006. R. at 198, 235.
The RO, however, found in April 2007 that evidence submitted by the
appellant was new but not
material, and therefore declined to reopen her case. R. at 198-203.
In October 2009, the Board requested that an expert medical opinion be
obtained. R. at 51-
57. A large portion of the appellant’s argument revolves around the
November 2009 expert medical
opinion written by Dr. Lawrence B. Afrin. R. at 43-46. Dr. Afrin concluded
that it is unlikely that
the veteran’s pancreatic cancer was caused or aggravated byhis service-
connected diabetesmilletus.
R. at 44. Dr. Afrin noted that, although medical literature indicates that
there might be an
associational link between diabetes mellitus and pancreatic cancer, there
is no evidence of a causal
link. R. at 44-45. Likewise, he found no evidence in medical literature to
indicate how diabetes
mellitus might aggravate pancreatic cancer “in the sense of contributing
to development of the
cancer.” R. at 45. Dr. Afrin’s opinion is supported by an April 2007 VA
examination report in
which the examiner stated that “the veteran’s diabetes did not cause his
pancreatic cancer.” R. at
207-08. A number of other documents submitted by private medical providers,
however, link
pancreatic cancer and diabetes milletus to varying degrees, including at
least one that identified a
causal link. R. at 49, 123, 213, 219, 220.
The Board, in its April 15, 2010, decision here on appeal, reopened the
appellant’s claim for
entitlement to service connection for the cause of death of the veteran
based on the submission of
new and material evidence, but then denied the claim. The Board concluded
that evidence failed to
indicate that the veteran’s cause of death “was due to anyincident or
event in active service,” nor that
it was “proximately due to or the result of his service-connected diabetes
mellitus, on either a
causation or aggravation basis.” R. at 5. The Board found that competent
medical evidence failed
to establishaconnection betweentheveteran’s diabetesmilletus andhis
pancreaticcanceranddeath.
2

R. at 22. In doing so, it rejected (largely by comparison with Dr.
Afrin’s opinion) medical opinions
potentially in support of the appellant’s claim, finding them “conclusory
and speculative.” R. at 23-
24.
The appellant raises three arguments on appeal. First, the appellant
argues that the Board
should have returned Dr. Afrin’s opinion for clarification based on
inconsistencies and inadequate
reasoning in his statement of rationale. Appellant’s Brief (Br.) at 10-13.
Next, the appellant
contends that the Board should have obtained a medical opinion exploring a
possible nexus between
the veteran’s pancreatic cancer and his exposure to herbicide. Id. at 14-
16. Finally, the appellant
argues that the Board failed to apply 38 C.F.R. § 3.312(c)(3) to her
claim. Id. at 16-19.

II. ANALYSIS
A. Dr. Afrin’s Opinion
The appellant argues, essentially, that Dr. Afrin’s medical opinion is
inadequate. The
Secretary’s duty to assist includes “providing a medical examination or
obtaining a medical opinion
when such an examination or opinion is necessary to make a decision on the
claim.”
38 U.S.C. § 5103A(d)(1); see also Green v. Derwinski, 1 Vet.App. 121, 124 (
1991). This Court has
held that a medical opinion is adequate “where it is based upon
consideration of the veteran’s prior
medical history and examinations and also describes the disability, if any,
in sufficient detail so that
the Board’s ‘evaluation of the claimed disability will be a fully informed
one.'” Stefl v. Nicholson, 21
Vet.App. 120, 123 (2007) (quoting Ardison v. Brown, 6 Vet.App. 405, 407 (
1994)). The opinion
“must support its conclusion with an analysis that the Board can consider
and weigh against contrary
opinions.” Id. at 124-25. Whether a medical examination report is adequate
is generally a finding
of fact that the Court reviews under the “clearly erroneous” standard of
review.
38 U.S.C. § 7261(a)(4); Nolen v. Gober, 14 Vet.App. 183, 184 (2000).
When deciding a matter, the Board must include in its decision a written
statement of the
reasons or bases for its findings and conclusions, adequate to enable an
appellant to understand the
precise basis for the Board’s decision as well as to facilitate review in
this Court.
38 U.S.C. § 7104(d)(1); Allday v. Brown, 7 Vet.App. 517, 527 (1995);
Gilbert v. Derwinski, 1
Vet.App. 49, 56-57 (1990). To complywith this requirement, the Board must
analyze the credibility
3
See

and probative value of the evidence, account for the evidence that it
finds 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.
1996) (table); Gilbert, 1 Vet.App. at 57.
As the Board acknowledges, Dr. Afrin essentially states that, although
medical science
suggests at least an associational link between diabetes milletus and
pancreatic cancer, there is no
definitive evidence of a causal link between the two. R. at 24, 44-45. He
stated that, based on
current medical evidence, it is “impossible to say” whether the two
disorders are causallyrelated and
that the “precise nature of [their] association . . . is not yet known.” R.
at 44. But then, he went on
to opine that it “fundamentally is impossible . . . given the scientific
knowledge available at this
time” to opine whether the veteran’s diabetes mellitus caused his cancer.
R. at 45. As to the
pertinent legal question, however, Dr. Afrin opined:
My answer is simply: the available peer-reviewed biomedical literature
does not
support a statement that it is at least as likely as not that this
patient’s pancreatic
cancer was caused or aggravated by his service-connected diabetes mellitus.
Therefore, given the parameters of the primaryquestion Iwas asked, Ihave
no choice
but to conclude the obverse, namely, it is unlikely this patient’s
pancreatic cancer
was caused or aggravated by his service-connected diabetes mellitus.
R. at 44.
Dr. Afrin’s opinion constitutes an unsupported leap in logic that renders
it inadequate. He
concludes first that, based on current medicalevidence, he cannot state,
either way, whetherdiabetes
mellitus and pancreatic cancer are causally linked. Then, however, he
concludes that it is unlikely
that the veteran’s pancreatic cancer was caused or aggravated by his
diabetes mellitus.1
If Dr. Afrin
cannot state the precise nature of the relationship between diabetes
mellitus and pancreatic cancer,
he certainly cannot support his opinion that it is unlikely that
pancreatic cancer was caused or
aggravated by service-connected diabetes mellitus with “a reasoned medical
explanation” as is
Although Dr. Afrin stated that he felt he was forced to offer this opinion
based on the
“parameters of the primaryquestion Iwas asked,”the Board’s request fora
medical opinion gave him
another option. It instructed that if “any question posed cannot be
answered without resorting to
unsupported speculation, the reviewer should so state, and explain why
that is so.” R. at 56.
4
1

required for his opinion to be adequate. See Nieves-Rodriguez v. Peake,
22 Vet.App. 295, 301
(2003); see also Stefl, 21 Vet.App. at 123-24.
Regarding the question of whether the veteran’s diabetes mellitus
aggravated his pancreatic
cancer, Dr. Affrin concludes that the question is “moot” based on his
finding about causation. R. at
46. As the appellant notes (Appellant’s Br. at 11-12), Dr. Afrin, during
his discussion about
aggravation, found that
[o]bviously, severe, poorly controlled diabetes (such as [the veteran] had
later in his
course) will “aggravate” the course of virtually any illness, including
cancer, but as
has already been observed by other reviewers of this case, the worsening
of his
diabetes (to a point where it might have “aggravated” the course of his
cancer) was
surgically induced and not unexpected.
R. at 45.
The Board summarized Dr. Afrin’s opinion, writingthat Dr. Afrin “stated
that severe, poorly
controlled diabetes will aggravate the course of any illness, including
cancer.” R. at 21. However,
neither the Board nor Dr. Afrin explains the apparent incongruities
between these statements and Dr.
Afrin’s conclusion that, for the same reason as his findings on causation,
there is no evidence of
aggravation in the veteran’s case. R at 45; see Stefl and Nieves-Rodriguez,
both supra. For these
reasons, the Court finds that the Board’s determination that Dr. Afrin’s
opinion is adequate is clearly
erroneous. See 38 U.S.C. § 7261(a)(4); Nolen, supra. Where an examination
report is inadequate,
the Board should remand the case to the RO for further development.
Bowling v. Principi,
15 Vet.App. 1, 12 (2001) (holding that the Board has a duty under 38 C.F.R.
§ 19.9(a), to remand
a case “[i]f further evidence or clarification of the evidence or
correction of a procedural defect is
essential for a proper appellate decision”); see also Green, 1 Vet.App. at
124 (holding that remand
is appropriate where the Board relied on an inadequate examination report);
38 C.F.R. § 4.2 (2011).
B. Duty to Assist
The appellant asserts that the Board failed in its duty to assist because
it failed to provide a
medical opinion ascertaining whether there is a nexus between the
veteran’s in-service herbicide
exposure and his pancreatic cancer. Appellant’s Br. at 14-16. The
Secretarydoes not respond to this
argument directly. Instead, he argues that the appellant “never raised the
issue of whether the
[v]eteran’s cancer was directly caused by [herbicide] exposure” at any
stage in the adjudication of
5

her claim prior to her appeal to this Court, and thus the Board “was not
required to obtain a medical
opinion because the issue was not reasonably raised and not properly
before the Board.” Secretary’s
Br. at 6-7.
The Board found that the appellant “is not claiming service connection for
the cause of the
[v]eteran’s death on the basis of in-service incurrence or aggravation of
the disease which caused his
death.” R. at 16. The Board made no findings and offered no discussion
about whether the veteran’s
pancreatic cancer can be directly linked to his herbicide exposure.
Therefore, the Court’s
jurisdictional abilityto respondto theappellant’s
argumenthingesonwhethershe is advancinganew
claim or merely a new argument in support of her existing claim. If the
question of whether the
veteran’s cause of death and herbicide exposure aredirectlylinked
constitutes a new claim, the Court
lacks jurisdiction to consider it because there is no final Board decision
on that claim. See 38 U.S.C.
§§ 7252(a), 7266(a); see also Breeden v. Principi, 17 Vet.App. 475, 478 (
2004). If, however, direct causation represents an alternative argument in support of the appellant’s
claim, then the Court has jurisdiction either to consider it or remand the matter for the Board to
consider it in the first instance. See Maggitt v. West, 202 F.3d 1370, 1377-78 (Fed. Cir. 2000) (holding that
this Court has discretion to hear arguments presented to it in the first instance, provided that it otherwise has jurisdiction over the claim).
This Court has held that a “claim” is an expressed belief in an entitlement to a benefit, while a “theory” is a means of establishing entitlement to a benefit. Hillyard v.Shinseki, 24 Vet.App. 343, 355 (2011). Therefore, “although there may be multiple theories or means
of establishing entitlement to a benefit for a disability, if the theories all pertain to the same benefit for the same
disability, theyconstitute the same claim.” Roebuck v. Nicholson, 20 Vet. App. 307, 313 (2006); see
also Bingham v. Principi, 18 Vet.App. 470, 474 (2004)(finding that “direct and presumptive service
connection are, by definition, two means (i.e., two theories) by which to reach the same end, namely
service connection). In this case, the end sought by the appellant, and thus her “claim,” is service
connection for the cause of death of the veteran, which was pancreatic cancer. The argument that
the Board addresses – whether the veteran’s service-connected diabetes mellitus is related to his
cause of death – and the argument that pancreatic cancer is directly related to the veteran’s in-service
herbicide exposure, are both attempts by the appellant to reach service connection. Thus, the Court
6

finds that the appellant’s assertion, brought here on appeal, that
pancreatic cancer and herbicide
exposure maybe linked, is merely a new theory to support her ultimate claim
that service connection
is warranted for the death of the veteran. See Hillyard, Roebuck, and
Bingham, all supra. Therefore,
the Court has jurisdiction to consider the matter. Maggitt, 202 F.3d at
1377-78.
Pancreatic cancer is not one of the disorders entitled to presumptive
service connection for
veterans exposed to herbicides duringservice. 38C.F.R.§3.309(e)(2011).
Theappellant, however,
is still entitled to attempt to link the veteran’s cancer to exposure to
herbicides on a direct basis.
Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994) (“[T]he presumptive
service connection
procedure . . . does not foreclose proof of direct service connection.”).
The Board has a duty to
address all issues reasonably raised before it by either the appellant or
the contents of the record.
Robinson v. Mansfield, 21 Vet.App. 545 (2008), aff’d sub nom. Robinson v.
Shinseki, 557 F.3d 1355
(Fed. Cir. 2009). The Board found, and the appellant does not dispute,
that she did not make any
argument for direct service connection before the Board. R. at 16.
Therefore, for the Board’s failure
to discuss direct service connection to constitute remandable error, there
must be some indication
that the record reasonably raised direct service connection as an issue.
The appellant attempts to
meet this burden by again citing to Dr. Afrin’s opinion. Appellant’s Br.
at 15. Dr. Afrin stated:
With respect to this particular case, too, I should note that besides
diabetes mellitus
type 2, several other factors have been clearly epidemiologically
associated with an
increased risk for pancreatic cancer including cigarette smoking, various
dietary
factors, various environmental factors (e.g., certain chemical exposures),
certain
infections, and certain chronic inflammatory ailments. . . . The patient
in this case
was both a smoker and had extensive occupational risk for certain chemical
exposures. . . . Did his diabetes cause his cancer? Did his smoking cause
his cancer?
Did his occupational exposure cause his cancer? Did some other yet
unidentified
factor or factors such as a chronic systemic inflammatory ailment cause
his cancer?
Did some complex combination of all of these issues cause his cancer? It
fundamentally is impossible to answer any of these questions in this case (
or similar
cases for that matter) given the scientific knowledge available at this
time.
R. at 45 (emphasis added).
As the appellant argues, Dr. Afrin clearly indicates that environmental
factors including
chemical exposure may be directly associated with the veteran’s pancreatic
cancer. Appellant’s Br.
at 15. The Secretary does not attempt to counter this assertion. Dr. Afrin
could have been
7

referencing chemical exposure in the appellant’s post-service occupation
rather than herbicide
exposure, and his opinion that no scientific evidence exists that might
causally link such exposure
to the veteran’s cancer may be adequate. However, the Board made no such
factual findings, and it
is not for this Court to do so in the first instance. See Hensley v. West,
212 F.3d 1255, 1263 (Fed.
Cir. 2000) (stating that “appellate tribunals are not appropriate fora for
initial fact finding”); see also
38 U.S.C. § 7261(c). It is enough that the appellant has demonstrated
that the record reasonably
raises the possibility that environmental factors such as chemical
exposure may be a cause of the
appellant’s pancreatic cancer to warrant remand. See Robinson, supra.
Therefore, on remand, the
Board should take up the issue and determine whether a medical examination
is warranted. The
Boardshould thendecidewhethertheevidencesupports afindingthattheveteran’s
pancreaticcancer
and herbicide exposure are directly linked and provide a statement of
reasons or bases explaining
its findings.
The Court notes that the standard found in 38 U.S.C. § 5103A(d) is
properly applied to
determine whether a medical examination is warranted in disability
compensation claims, but not
in claims for DIC. See Wood v. Peake, 520 F.3d 1345 (Fed. Cir. 2008);
DeLaRosa v. Peake, 515
F.3d 1319 (Fed. Cir. 2008). Thus, both 38 U.S.C. § 5103A(d) and the test
stated in McLendon v.
Nicholson, 20 Vet.App. 79 (2006), which provides guidelines for applying
38 U.S.C. § 5103A(d),
are not applicable to this case, as the appellant argues. See Appellant’s
Br. at 14-16. Instead, the
Board should apply the more general standards found in 38 U.S.C. § 5103A(
a), as explained by
DeLaRosa and Wood.
C. 38 C.F.R. § 3.312(c)(3)
The appellant argues that the Board should have applied 38 C.F.R. § 3.312(
c)(3) to her case.
Appellant’s Br. at 16-19. In general, a veteran’s death “will be
considered as having been due to a
service-connected disability when the evidence establishes that such
disability was either the
principal or contributory cause of death.” 38 C.F.R. § 3.312(a) (2011).
Regulatory language
describes a contributorycause of death generallyas one that “contributed
substantiallyor materially;
that . . . combined to cause death; that . . . aided or lent assistance to
the production of death. It is
not sufficient to show that it casually shared in producing death, but
rather it must be shown that
8

there was a causal connection.” 38 C.F.R. § 3.312(c). However, pursuant
to 38 C.F.R. § 3.312(c)(3),
a service-connected disease or injury, like the veteran’s diabetes
mellitus,
involvingactiveprocessesaffectingvital organsshould
receivecarefulconsideration
as a contributory cause of death, the primary cause being unrelated, from
the
viewpointofwhethertherewereresultingdebilitatingeffectsandgeneral
impairment
of health to an extent that would render the person materiallyless capable
of resisting
the effects of other disease or injury primarily causing death.
The Board is required to consider and discuss all applicable provisions of
law and regulation
where they are made “potentially applicable through assertions and issues
raised in the record.”
Schafrath v. Derwinski, 1 Vet.App. 589, 592-93 (1991); see 38 U.S.C. §
7104(a); Robinson, 21
Vet.App. at 552. The appellant argues that the pancreas is a vital organ,
and that the veteran’s
diabetes mellitus affected his pancreas. Appellant’s Br. at 18. Therefore,
she argues, the Board
should have applied § 3.312(c)(3) to consider “whether there were
resulting debilitating effects and
general impairment of health from the [v]eteran’s diabetes mellitus to an
extent that would render
him materially less capable of resisting the effects of” his primary cause
of death. Id.
The Board listed § 3.312(c)(3) under the “Applicable Law” portion of its
decision. R. at 15.
The Court can find no evidence, however, that the Board considered and
applied the regulation in
the analysis portion of its decision. Since the Board itself identified
the regulation as applicable to
this case, it should have been considered and discussed. See 38 U.S.C. §
7104(a); Shafrath, 1
Vet.App. at 592-93. The Board’s failure to consider the provision or
explain any findings it reached
renders its statement of reasons or bases inadequate. See 38 U.S.C. §
7104(d)(1); Allday, Caluza,
and Gilbert, all supra. On remand, the Board should consider first whether
the pancreas constitutes
a “vital organ,” and then consider the effects the veteran’s diabetes
mellitus had on his pancreas. See
38 C.F.R. § 3.312(c)(3).
Finally, the Court notes that, on remand, the appellant is free to submit
additional evidence
and argument on the remanded matters, and the Board is required to
consider any such 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.”
9

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).

III. CONCLUSION
After consideration of the appellant’s and Secretary’s pleadings, and a review of the record, the Board’s April 15, 2010, decision is VACATED and the matter is REMANDED to the Board for further proceedings consistent with this decision.
DATED: September 30, 2011
Copies to:
Robert V. Chisholm, Esq.
VA General Counsel (027)
10

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