Veteranclaims’s Blog

October 18, 2011

Single Judge Application, Benefits Arise with Manifestation of Condition, DeLisio v. Shinseki, (Aug. 24, 2011)

Excerpt from decision below:
“The question the examiner was directed to answer was whether that condition might have manifested itself earlier than that. Here, the examiner concludes that, because Mr. Brady’s medical records do not show “two consecutive readings of 126 on two consecutive days or a glucose tolerance indicative of diabetes mellitus” until 2000, he did not have the condition prior to that date. It goes without saying, however, that if Mr. Brady was not specifically tested for diabetes until 2000, he could not have been diagnosed with that condition until 2000. The examiner appeared to acknowledge that Mr. Brady experienced some diabetes symptomatology much earlier than 2000, yet did not consider whether those symptoms were evidence of diabetes, even in the absence of any diagnostic test for that condition. As the Board well knows, “entitlement to benefits for a disability or disease does not arise with a medical diagnosis of the condition, but with the manifestation of the condition and the filing of a claim for benefits for the condition.” DeLisio v. Shinseki, ___ Vet. App. ___, ___ (Aug. 24, 2011), 2011 WL 3691857 at *9 (citing 38 U.S.C. § 5110(a) and McGrath v. Gober, 14 Vet.App. 28, 35 (2000)). Because the VA medical opinion did not address the relevant issue to be decided by the Board, the opinion is inadequate and the Board erred in relying on it. See Stegall v. West, 11 Vet.App. 268, 271 (1998).”
======================

———————————-

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 10-0157
RAYMOND O. BRADY, 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: Raymond O. Brady appeals through counsel a September 21,
2009, Board
of Veterans’ Appeals (Board) decision that denied entitlement to VA
benefits for diabetes mellitus.1
Mr. Brady’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 partyrequested oral argument or
identified issues believed
to require a precedential decision of the Court. Because the Board relied
on an inadequate VA
medical examination report, the Court will vacate the September 2009 Board
decision and remand
the matter for further development and readjudication consistent with this
decision.
I. FACTS
Mr. Brady served on active duty in the U.S. Air Force from July 1976 to
July 1996. The
record of proceedings does not contain service medical records.
The Board also denied entitlement to disability benefits for bilateral
hearing loss. In his brief, Mr. Brady
makes no arguments related to the Board’s decision on that claim, and the
Court therefore considers any appeal as to that
claim abandoned. See Grivois v. Brown, 6 Vet.App. 136, 138 (1994) (holding
that issues or claims not argued on appeal
are considered abandoned).
1

InDecember2002,Mr.Bradyfiled claimsfordisabilitybenefits forbilateral
hearingloss and
diabetes mellitus. In support of his claim for benefits for diabetes, he
submitted a statement from
Dr. Robert Abrams, a private physician, who stated:
Mr. Brady was diagnosed with type 2 diabetes mellitus in January of 2000.
At that
time he had been seen on numerous occasions for symptoms consistent with
type 2
diabetes mellitus including urinaryfrequency, fatigue and drymouth. His
symptoms
date back as far as August 1, 1996. It is my opinion that Mr. Brady indeed
suffered
from early type 2 diabetes prior to August 1, 1996.
Record (R.) at 145.
In March 2003, a VA regional office denied Mr. Brady’s claim for benefits
for diabetes
because there was no evidence that the condition was incurred in or caused
by military service. Mr.
Brady filed a Notice of Disagreement with that decision. He requested that
VA consider medical
records from the “U.S. Naval Station Clinic in Cutler,” Maine (Cutler
Naval Station), at which he
stated he had received treatment both during and after service, and which
he stated would show
treatment by a physician who told him he had “all the symptoms of”
diabetes. R. at 1361. He also
advised VA that he planned to submit new medical evidence in the form of
May 1996 glucose test
results from a private laboratory that showed glucose levels of 65.
In January 2004, Mr. Brady submitted the May 1996 laboratory results and
requested VA’s
assistance in obtaining the medical records from Cutler Naval Station. He
stated, “I have been
advised by the U.S. Naval Air Station at New Brunswick (Naval Air Station),
Maine[,] that the
medicalrecords maintainedatCutlerNaval Station wereforwardedto
arecordsdepositorywhenthat
base was closed.” R. at 1351.
In August 2004, the regional office issued a Statement of the Case
continuing to deny Mr.
Brady’s claims. The Statement of the Case makes no mention of Mr. Brady’s
request for VA to
obtain records from Cutler Naval Station. In October 2004, Mr. Brady
appealed his claims to the
Board and reiterated his request that VA obtain and review those records.
In April 2006, in response to a Veterans Claims Assistance Act notice, Mr.
Brady again
requested VA assistance in obtaining records from Cutler Naval Station. He
advised VA that “the
last known location” of those records was the Naval Air Station in
Brunswick, Maine, but noted that
the records “may have been sent” to a record depository. R. at 1313.
2

At an August 2006 Board hearing, Mr. Brady testified that Dr. Abrams, who
was a former
military medical officer and had treated him at Cutler Naval Station,
reviewed his records and told
him that there was “a good possibility” that his diabetes originated as
early as 1986. R. at 1291.
In October 2006, the Board remanded Mr. Brady’s claim to the Appeals
Management Center
to obtain his treatment records since his discharge from service,
including those from Cutler Naval
Station, and to obtain a VA medical examination “to ascertain whether or
not diabetes mellitus was
first manifested in service.” R. at 1210.
In March 2007, Mr. Brady submitted medical records in support of his claim,
including the
April 1996 private glucose test that showed a glucose level of 65; a March
1997 private laboratory
report that showed a glucose level of 128; and an April 1997 private
laboratory report that showed
a glucose level of 117 and abnormal lipid levels, which the report noted
could be caused bydiabetes,
among many other conditions.
The record reveals three attempts by VA to obtain Mr. Brady’s medical
records from Cutler
Naval Station. To the first, in November 2006 (“Please provide veteran’s
treatment records since
discharged in July1996 from . . . Cutler Naval Air Station.”), the
National Personnel Records Center
replied that it needed more information to process the request,
particularly the time period of the
claimed treatment at the facility. R. at 912. VA sent a second request in
July 2007 that simply
stated, “Please provide veteran’s treatment records since discharged in
July 1996 from . . . Cutler Air
Station,” and the National Personnel Records Center again replied that
more specific information
was required. R. at 882. In August 2008, VA requested inpatient clinical
records for diabetes
between July 1, 1996, and August 15, 2008, from Cutler Naval Station and
MacDill Air Force Base.
The National Personnel Records Center responded only that records from
MacDill Air Force Base
from 1996 had been mailed.
On August 15, 2008, the Appeals Management Center sent Mr. Brady a letter
advising him
that VA had been “unable to obtain every piece of evidence you identified
to support your claim.”
R. at 865. The letter further stated:
We are requesting service medical records from the service department from
July 1,
1996[,] to the present at MacDill Air Force Base and Cutler Naval Air
Station. These
records will help us determine how your claimed disabilities are connected
to your
3

military service. You do not need to contact the service department
yourself. If you
have military medical records already in your possession, please submit
them.
Id.
On August 29, 2008, after receiving the letter from the Appeals Management
Center, Mr.
Brady responded:
I contacted the National Personnel Records Center . . . regarding my
medical records
form[er]llylocatedat Cutler Naval Station, Cutler, Maine. Cutler closed
due to [base
closure and reassignment] . . . action sometime around circa 2000. The [
National
Personnel Records Center] responded to my request on 12/25/2002 and
advised me
they were unable to locate the records. Unfortunately, all Cutler Naval
medical
records should be considered permanently lost. Please go forward with a
decision
without these records.
R. at 283.
In July 2009, Mr. Brady underwent a VA medical examination. The examiner
noted that he
“thoroughly”reviewedMr.Brady’s claimsfile,includingDr.Thomas’s
statementregardingthelikely
onset of diabetes at least as early as August 1996. R. at 59. The VA
examiner opined that diabetes
was not shown until January 2000.
In September 2009, the Board issued the decision on appeal. Relying
heavily on the July
2009 VA opinion, the Board found no evidence of diabetes mellitus
duringserviceor within the one-
year presumptive period thereafter. The Board discounted Dr. Thomas’s
favorable opinion because
he did not review Mr. Brady’s entire claims file and because he did not
provide “medical rational[e]”
for his conclusion that Mr. Brady’s diabetes had its onset at least as
early as August 1996. R. at 10.
II. ANALYSIS
A. Diabetes Mellitus
1. Duty To Assist
Mr. Brady argues that the Board’s determination that VA satisfied its duty
to assist him is
clearly erroneous because VA did not obtain his medical records from
Cutler Naval Station, despite
his numerous requests. This argument is unavailing.
The Court is troubled that counsel for Mr. Brady focuses exclusively on
VA’s purported
failure to obtain the records and subsequent failure to notify Mr. Brady
of their unavailability in
4

accordance with 38 U.S.C. § 5103A(b)(2) and 38 C.F.R. § 3.159(c), and
whollyfails, in the principal
brief, to acknowledge Mr. Brady’s August 2008 express waiver of
consideration of those records.
Although counsel is to be expected to present the facts of a case in the
light most favorable to her
client, she is prohibited from actively misleading the Court, and the
omission of this crucial fact
comes perilously close to doing so. See MODEL RULES OF PROF’LCONDUCT 3.3(a
) (candor toward
the tribunal) (2007). Counsel only discusses Mr. Brady’s August 2008
statement in her reply brief
in an attempt to refute the Secretary’s argument that Mr. Brady waived
consideration of the Cutler
Naval Station records. At no time does counsel acknowledge her failure to
discuss this evidence in
her principal brief or explain why she failed to do so. Accordingly, the
Court will not consider Mr.
Brady’s argument on this point. See Carbino v. West, 168 F.3d 32, 34 (Fed.
Cir. 1999) (noting that
arguments not raised in opening brief are deemed waived).
After reviewing the record, the Court concludes that, although the Board
erred in finding that
VA satisfied its dutyto assist because VA did not make a formal finding of
unavailability and notify
Mr. Brady, the error is harmless in light of Mr. Brady’s demonstrated
understanding from the
National Personnel Records Center that those records were unavailable. See
Conway v. Principi,
353 F.3d 1369, 1374 (Fed. Cir. 2004); see also 38 U.S.C. § 7261(b)(2) (
requiring the Court to “take
due account of the rule of prejudicial error”).
2. Adequacy of July 2009 VA Opinion
Mr. Brady next argues that the Board relied on an inadequate medical
opinion to deny his
claim. Specifically, he contends that the July 2009 VA examiner failed to
answer the question he
was asked and that the rationale provided is circular. The Court agrees.
In its October 2006 remand decision, the Board directed the Appeals
Management Center to
obtain a medical opinion that considered “whether or not diabetes mellitus
was first manifested in
service.” R. at 1210. The resulting examination concluded only that Mr.
Brady had not been
diagnosed with diabetes until 2000. Although the Secretary and the Board
assert that the VA
examiner provided sufficient rationale for his conclusion, a review of the
opinion reveals only a deft
bit of circular logic. The examiner stated:
All indications from [Mr. Brady’s] claims file indicate that he was
diagnosed with
diabetes mellitus for the first time in January[] 2000. Reviewing the
laboratory
results dating back to 1996 and 1998 failed to reveal anylaboratoryresults
indicating
5

the presence of diabetes mellitus. Therefore, my opinion is[,] regardless
of the
symptoms[,] that if the laboratory testing failed to reveal that he had
two consecutive
readings of 126 on two consecutive days or a glucose tolerance indicative
of diabetes
mellitus, the diabetes mellitus did not exist until January[] 200[0].
Therefore, my
opinion is that there is no evidence of diabetes mellitus prior to January
[] 2000.
R. at 59 (emphasis added). Mr. Bradydoes not dispute that he was not
diagnosed with diabetes until
January 2000. The question the examiner was directed to answer was whether
that condition might
have manifested itself earlier than that.
Here, the examiner concludes that, because Mr. Brady’s medical records do
not show “two
consecutive readings of 126 on two consecutive days or a glucose tolerance
indicative of diabetes
mellitus” until 2000, he did not have the condition prior to that date. It
goes without saying,
however, that if Mr. Bradywas not specificallytested for diabetes until
2000, he could not have been
diagnosed with that condition until 2000. The examiner appeared to
acknowledge that Mr. Brady
experienced some diabetes symptomatology much earlier than 2000, yet did
not consider whether
those symptoms were evidence of diabetes, even in the absence of any
diagnostic test for that
condition. As the Board well knows, “entitlement to benefits for a
disabilityor disease does not arise
with a medical diagnosis of the condition, but with the manifestation of
the condition and the filing
of a claim for benefits for the condition.” Previous DocumentDeLisio v. Shinseki, ___ Vet.
App. ___, ___ (Aug. 24,
2011), 2011 WL 3691857 at *9 (citing 38 U.S.C. § 5110(a) and McGrath v.
Gober, 14 Vet.App. 28,
35 (2000)). Because the VA medical opinion did not address the relevant
issue to be decided by the
Board, the opinion is inadequate and the Board erred in relying on it. See
Stegall v. West,
11 Vet.App. 268, 271 (1998). (“[A] remand by this Court or the Board
confers on the . . . claimant,
as a matter of law, the right to compliance with the remand orders.”).
In light of this error, the Court will vacate the Board decision and
remand this claim for the
Board to obtain a new medical opinion that considers the evidence of
record and determines whether
the symptoms noted in Mr. Brady’s medical history during or since service
are evidence of an onset
of diabetes earlier than 2000. The examiner must expresslydiscuss Dr.
Thomas’s favorable opinion,
as well as the private laboratory glucose and lipid test results, and must
support any conclusion
reached with sufficient rationale. Mr. Brady is free to submit additional
evidence and argument on
6

this claim in accordance with Kutscherousky v. West, 12 Vet.App. 369, 372-
73 (1999) (per curiam
order). See Kay v. Principi, 16 Vet.App. 529, 534 (2002).
3. Reasons or Bases
Mr. Bradyalso contends that the Board provided inadequate reasons or bases
for discounting
Dr. Thomas’s favorable opinion that his diabetes began at least as early
as August 1996, which is
within the one-year presumptive period to establish entitlement to
benefits for diabetes. He also
argues that the Board failed to account for other probative evidence of
manifestations of diabetes in
service.
Because the Court is remanding Mr. Brady’s claim for further development
and
readjudication, the Board will necessarily provide a new statement of
reasons or bases for any
decision regarding entitlement to benefits for diabetes. Accordingly, the
Court need not address Mr.
Brady’s reasons or bases arguments at this time. See Best v. Principi, 15
Vet.App. 18, 20 (2001) (per
curiam order) (“A narrow decision preserves for the appellant an
opportunity to argue those claimed
errors before the Board at the readjudication, and, of course, before this
Court in an appeal, should
the Board rule against him.”). The Court reminds the Board, however, that “[
a] remand is meant to
entail a critical examination of the justification for the decision.”
Fletcher v. Derwinski, 1 Vet.App.
394, 397 (1991). Additionally, the mere fact that a physician did not
review a claimant’s claims file
does not render the physician’s opinion not probative. Nieves–Rodriguez
v. Peake, 22 Vet.App. 295,
303 (2008) (explaining that “the claims file is not a magical or
talismanic set of documents, but
rather a tool to assist VA examiners to become familiar with the facts
necessary to form an expert
opinion,” and holding that “claims file review, as it pertains to
obtaining an overview of the
claimant’s medical history, is not a requirement for [ ] medical opinions”).

B. Reasonably Raised or “Inferred” Claim for Benefits for Tinnitus
On appeal, Mr. Bradyargues that the Board failed to adjudicate a
reasonablyraised claim for
benefits for tinnitus. In the alternative, he argues that the Board failed
to “infer” a claim for benefits
for that condition. These arguments are unpersuasive.
As an initial matter, the Court notes that, while VA does recognize
inferred issues, 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).
7

With respect to whether a claim for benefits for tinnitus was reasonably
raised, Mr. Brady’s
reliance on Clemons v. Shinseki, 23 Vet.App. 1 (2009), is misplaced. In
that case, a self-represented
appellant filed an initial claim for benefits for post-traumatic stress
disorder that was denied based
on a lack of a current diagnosis of that condition. The Board, however,
failed to consider whether
the claimant was entitled to benefits for schizoid personalitydisorder, a
distinct mental disorder with
which he had been previouslydiagnosed. The Court, citing the well-
established rulethat a layperson
is generally not competent to provide a medical diagnosis, explained that
VA “should construe a
claim based on the reasonable expectations of the non-expert, self-
represented claimant and the
evidence developed in processing that claim.” Id. at 5.
Here, however, Mr. Brady was not seeking benefits for symptoms that he
thought were
caused by hearing loss that turned out to be caused by tinnitus; he was
seeking benefits for hearing
loss. Despite his protestations that his claim for hearing loss is
necessarily related to his diagnosis of tinnitus, the Court has made clear that the conditions are distinct.
Kelly v. Brown, 7 Vet.App. 471, 473 (1995) (recognizing tinnitus and hearing loss as distinct
conditions); compare 38 C.F.R. § 4.85 (2011) (Evaluation of hearing impairment), with 38 C.F.R. § 4.87,
Diagnostic Code 6260 (2011) (Tinnitus, recurrent). Moreover, Mr. Brady’s claim was denied
because his diagnosed bilateral hearing loss does not rise to the level of a disability for VA
purposes, not because the Board improperly narrowed the scope of his claim. That Mr. Brady suffers from
tinnitus is irrelevant to the question of whether his bilateral hearing loss is related to service.
Further, the mere existence in the medical records of a diagnosis for a
condition for which a claimant is not service connected is not sufficient to raise a new claim
for benefits for that condition. Criswell v. Nicholson, 20 Vet.App. 501, 504 (2006) (“The mere
existence of medical records generally cannot be construed as an informal claim; rather, there
must be some intent by the claimant to apply for a benefit.”). Although Mr. Brady argues that his
cover letter to the submission of the December 2006 audiological examination is sufficient to put VA on
notice that he was seeking benefits for tinnitus in addition to benefits for hearing loss, the Court
disagrees. That document simply advises VA that the attached document is a hearing test dated
December 2006. Nowhere is there any intent to seek benefits for tinnitus, which, again, is a
condition distinct from hearing loss,
the claim Mr. Brady was appealing at the time. In short, Mr. Brady fails
to identify any evidence in
8

the record indicating that he sought VA benefits for his tinnitus, or
that he, or anyone on his behalf, submitted a written document expressing his intent to seek benefits
for that condition. See Brokowski v. Shinseki, 23 Vet.App. 79, 85 (2009) (citing Brannon v. West, 12 Vet.App.
32, 35 (1998) (to file a claim, a “claimant must submit a written document identifying the
benefit and expressing intent to seek it”); see also Criswell, 20 Vet.App. at 504. In the absence of his
having submitted a claim for that condition, it was not error for the Board not to address it. See
Robinson v. Peake, 21 Vet.App. 545, 53 (2008) (holding that the Board is required to consider
all issues raised by the claimant or reasonably raised by the evidence of record).
In light of this discussion, the Court concludes that it was not error for
the Board to not consider a claim for benefits for tinnitus. Mr. Brady remains free to file
a claim for benefits for that condition should he so desire.

C. Final Matter
The Court notes that the parties’ briefs repeatedly refer to a “claim for service connection.” As the Court explained in Hillyard v. Shinseki, the use of this term is inexact and therefore is—although prevalent in the Court’s cases, as well as those of the United States Court of Appeals for the Federal Circuit—disfavored. 24 Vet.App. 343, 355 (2011). The Court urges the parties to practice precision in language in future briefs.

III. CONCLUSION
Upon consideration of the foregoing, the September 21, 2009, Board
decision is VACATED
and the matter is REMANDED for further development and readjudication
consistent with this
decision.
DATED: October 11, 2011
Copies to:
Jill Mitchell, Esq.
VA General Counsel (027)
9

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