Veteranclaims’s Blog

October 21, 2011

Single Judge Application, U.S. VET. APP. Rule 28(a)(5); Locklear v. Nicholson, 20 Vet.App. 410, 416 (2006)

Filed under: Uncategorized — veteranclaims @ 12:58 pm

Designated for electronic publication only
Excerpt frm decision below:
“The appellant does not make any arguments or assertions of error as to the May 2010 Board decision. Pursuant to Rule 28(a)(5) of the Court’s Rules of Practice and Procedure, an appellant’s brief must contain “an argument . . . and the reasons for [it], with
citations to the authorities . . . relied on.” U.S. VET. APP. Rule 28(a)(5); see Locklear v. Nicholson, 20 Vet.App. 410, 416 (2006)(holding that the Court will not entertain perfunctory or underdeveloped arguments). Although the appellant is self-represented, the Court “‘is not required to manufacture [his] argument.'” Coker v. Nicholson, 19 Vet.App. 439, 442 (2006) (quoting Hernandez v. Starbuck, 69 F.3d 1089, 1093 (10th Cir. 1995), and similar cases from the Eighth and Tenth Circuit Courts of Appeal)), rev’d on other grounds sub nom. Coker v. Peake, 310 Fed. Appx. 371 (Fed. Cir. May 1, 2008).
Further, it is the appellant who “bears the burden of persuading the Court that the Board decision below is tainted by prejudicial error that warrants reversing or remanding the matter for the investment of the additional time and effort that would be required by VA to produce a new decision in [the] case.” Moore v. Nicholson, 21 Vet.App. 211, 214 (2007).
Because the appellant has not articulated any error in the Board decision and because the record does not otherwise provide a basis for finding such error, the Court will affirm the May 2010 Board decision.
+++++++++++++++++++++++++++++++++++++++++++++++++++

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 10-2859
JOHN S. PUPIK, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.

Before FARLEY, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.

FARLEY, Judge: The self-represented appellant, John S. Pupik, appeals the
May 4, 2010,
decision of the Board of Veterans’ Appeals (Board) that denied his claim for entitlement to service connection for asbestosis. The Court has jurisdiction pursuant to 38 U.S.C. §§ 7252(a) and 7266(a)
to review the May 2010 Board decision, and a single judge may conduct that review. See Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). Because the appellant has not offered any argument or
allegation of error as to the decision on appeal, the Court will affirm the Board’s decision.

I. FACTS
The appellant served on active duty in the U.S. Air Force from March 1952
to March 1956.
Record (R.) at 426. In September 2007, the appellant filed a claim for
service connection for lung
disease including asbestosis. R. at 327-36. Medical records from Dr. Karl
Fernandes reflect that the
appellant was being treated for chronic obstructive pulmonary disease (
COPD) and asbestosis. R.
at 300-03. A March 2007 treatment record notes that the appellant had been
exposed to asbestos
while working for an automobile manufacturer in the 1970s, and that he had
smoked 1 ½ to 2 packs
of cigarettes a day for over 45 years previously but had quit “about 13
years ago.” R. at 251. The
appellant underwent a VA examination in August 2008. R. at 136-42. At that
time, the examiner

found that recent x-rays revealed the appellant’s lungs to be clear of
infiltrate. R. at 137. The
impression was a normal chest. Id. The examiner diagnosed the appellant
with COPD and opined
that it was more likely related to his history of smoking than to asbestos
exposure. R. at 138.
In September 2008, a VA regional office (RO) denied the appellant’s claim
for service
connection for asbestosis, emphysema, and COPD. See R. at 86-92. In his
subsequently filed Notice
of Disagreement, the appellant objected to the “denial on [his] claim for [
a]sbestosis.” R. at 85. He
argued that while he was in the Air Force his duty assignments involved
exposure to asbestos. Id.
In the May 2010 decision on appeal, the Board denied the appellant’s claim
for entitlement
to service connection for asbestosis. R. at 3-15. After examining the
available evidence, the Board
found that “[t]he competent credible clinical evidence of record does not
establish that the
[appellant] has asbestosis.” R. at 4.

II. ANALYSIS
This Court provides a form that appellants may use to file an informal
brief. This form
consists of questions and sufficient space for explanatory answers. In
this case, the appellant chose
to use this form for his informal brief. The first question on the form
asks for the case number of
any other cases the appellant may have had before the Court. The appellant
indicated that he had no
prior appeals. Appellant’s Brief (Br.) at 1. The second question asks, if
there was more than one
issue decided bythe Board, which one the appellant was appealing. The
appellant answered “none.”
Id. The third question asks: “Did the [Board] incorrectly decide or fail
to take into account any
facts?” It further asks, if the Board did incorrectly decide or fail to
consider any facts, what are those
facts and how should the Board have decided them? The appellant answered ”
Yes” to this question
and further stated that there was “too much bureaucracy in the state of
Ohio for veterans.” Id. The
fourth question asks: “Did the VA or [Board] fail to get any documents
that you or your
representative told them about?” The appellant’s answer to this question
was “Yes,” but he failed
to point to the pages in the record that show that the documents exist or
how these documents related to his claim. Id. The fifth question asks: “Did the [Board] apply the
wrong law or regulation in making its decision?” and the question goes on to ask “what law or
regulation should the [Board] have applied?” The appellant responded with a question mark. Id. at 2.
Question six asks: “Are
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there any other reasons why you think the [Board] decision is wrong?” The
appellant failed to respond. Id. The seventh question asks: “What action do you want this
Court to take?” The appellant stated “none.” Id.
The appellant does not make any arguments or assertions of error as to the May 2010 Board decision. Pursuant to Rule 28(a)(5) of the Court’s Rules of Practice and Procedure, an appellant’s brief must contain “an argument . . . and the reasons for [it], with
citations to the authorities . . . relied on.” U.S. VET. APP. Rule 28(a)(5); see LocklearNext Document v. Nicholson, 20 Vet.App. 410, 416 (2006)(holding that the Court will not entertain perfunctory or underdeveloped arguments). Although the appellant is self-represented, the Court “‘is not required to manufacture [his] argument.'” Coker v. Nicholson, 19 Vet.App. 439, 442 (2006) (quoting Hernandez v. Starbuck, 69 F.3d 1089, 1093 (10th Cir. 1995), and similar cases from the Eighth and Tenth Circuit Courts of Appeal)), rev’d on other grounds sub nom. Coker v. Peake, 310 Fed. Appx. 371 (Fed. Cir. May 1, 2008).
Further, it is the appellant who “bears the burden of persuading the Court that the Board decision below is tainted by prejudicial error that warrants reversing or remanding the matter for the investment of the additional time and effort that would be required by VA to produce a new decision in [the] case.” Moore v. Nicholson, 21 Vet.App. 211, 214 (2007). Because the appellant has not articulated any error in the Board decision and because the record does not otherwise provide a basis for finding such error, the Court will affirm the May 2010 Board decision.

III. CONCLUSION
Upon consideration of the foregoing and the briefs of the parties, the May 2010 Board decision is AFFIRMED.
DATED: October 19, 2011
Copies to:
John S. Pupik
VA General Counsel (027)
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