Veteranclaims’s Blog

October 24, 2011

Single Judge Application, 38 C.F.R. § 3.310, Secondary Service Connection, Impermissible Medical Judgment

Filed under: Uncategorized — veteranclaims @ 7:42 pm

Excerpt from decision below:
“The record supports Mr. Coble’s first assertion. Based on the record of proceedings, Mr. Coble specifically raised the issue of secondary service connection, such that both causation and aggravation should have been addressed. See Allen v. Brown, 7 Vet.App. 439, 448 (1995) (en banc)(acknowledging that a disability may be secondarily service connected if aggravated by service-connected disease or injury); 38 C.F.R. § 3.310 (2011) (providing for secondary service connection if (a) a disability is “proximately due to or the result of a service-connected disease or injury” or (b) a disability’s “increase in severity . . . is proximately due to or the result of a service-connected disease or injury” and not due to natural progress); see also Robinson v. Peake, 21 Vet.App. 545, 552 (2008) (Board required to consider all issues raised either by the claimant or reasonably by the evidence of record), aff’d sub nom. Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009). The February 2008 medical report, however, only addressed causation. See Record (R.) at 178 (“It is less likely as not (less than 50/50 probability) that the anxiety disorder is caused by or a result of military service, left ear hearing loss, and/or TORP surgery in service.”). As such, the Board’s conclusion that Mr. Coble’s psychiatric disability was not incurred in or aggravated by service exceeds the findings in the February 2008 report and constitutes an impermissible medical judgment. See Colvin v. Derwinski, 1 Vet.App. 171, 175 (1991) (Board’s findings of fact must be supported by medical evidence of record, rather than the Board’s own judgment).”
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—————————————————-

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 09-2486
DENNIS L. COBLE, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before KASOLD, Chief Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
KASOLD, Chief Judge: Veteran Dennis L. Coble appeals through counsel that
part of an
April 10, 2009, decision of the Board of Veterans’ Appeals (Board) that
denied benefits for a
psychiatric disability, claimed as mental stress, secondaryto service-
connected left-ear hearing loss.
Mr. Coble argues that the Board erred by (1) rendering its own
unsubstantiated medical opinion as
to aggravation, (2) relying on an inadequate February 2008 VA medical
report that failed to address
aggravation, and (3) finding that the inadequate medical report fulfilled
the Secretary’s dutyto assist.
The Secretary disputes these arguments. Single-judge disposition is
appropriate. Frankel v.
Derwinski, 1 Vet.App. 23, 25-26 (1990). For the reasons stated below, that
part of the Board
decision on appeal will be set aside and the matter remanded for further
adjudication.
The record supports Mr. Coble’s first assertion. Based on the record of
proceedings, Mr.
Coble specifically raised the issue of secondary service connection, such
that both causation and
aggravation should have been addressed. See Allen v. Brown, 7 Vet.App. 439,
448 (1995) (en banc)
(acknowledging that a disability may be secondarily service connected if
aggravated by
service-connected disease or Previous DocumentinjuryNext Hit); 38 C.F.R. § 3.310 (2011) (providing
for secondary service
connection if (a) a disability is “proximately due to or the result of a
service-connected disease or

Previous HitinjuryNext Hit” or (b) a disability’s “increase in severity . . . is proximately
due to or the result of a service-
connected disease or Previous HitinjuryNext Document” and not due to natural progress); see also
Robinson v. Peake, 21
Vet.App. 545, 552 (2008) (Board required to consider all issues raised
either by the claimant or
reasonably bythe evidence of record), aff’d sub nom. Robinson v. Shinseki,
557 F.3d 1355 (Fed. Cir.
2009). The February 2008 medical report, however, only addressed causation.
See Record (R.) at
178 (“It is less likely as not (less than 50/50 probability) that the
anxiety disorder is caused by or a
result of military service, left ear hearing loss, and/or TORP surgery in
service.”). As such, the
Board’s conclusion that Mr. Coble’s psychiatric disability was not
incurred in or aggravated by
service exceeds the findings in the February 2008 report and constitutes
an impermissible medical
judgment. See Colvin v. Derwinski, 1 Vet.App. 171, 175 (1991) (Board’s
findings of fact must be
supported by medical evidence of record, rather than the Board’s own
judgment).
Although the Secretaryargues that a finding of aggravation cannot be
warranted because the
record reflects no increase in the severity of the psychiatric disability,
the Secretary proffers this
justification post hoc and the Board did not render this finding.
SeeWanless v. Principi, 18 Vet.App.
337, 343 (2004) (Steinberg, J., concurring) (noting that the “Court’s role
is to review whether the
Boardin its decision, rather than the Secretaryin his brief, providedan
adequatestatementofreasons
or bases”). Judicial review is frustrated and remand is warranted. See
Allday v. Brown, 7 Vet.App.
517, 527 (1995) (Board’s 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 also Tucker v. West,
11 Vet.App. 369, 374 (1998) (remand is appropriate “where the Board has
incorrectly applied the
law, failed to provide an adequate statement of reasons or bases for its
determinations, or where the
record is otherwise inadequate”).
Accordingly, Mr. Coble’s other assertions, also based on the aggravation
issue, are rendered
moot by the aforementioned need to remand this matter. See Dunn v. West,
11 Vet.App. 462, 467
(1998) (holding that remand of a claim under one theory moots the
remaining theories advanced on
appeal).
On remand, Mr. Coble may present, and the Board must consider, any
additional evidence
and argument in support of the matter remanded. See Kay v. Principi, 16
Vet.App. 529, 534 (2002).
This matter is to be provided expeditious treatment on remand. See 38 U.S.
C. § 7112.
2

For the reasons stated above, that part of the April 10, 2009, Board
decision that denied
benefits fora psychiatricdisability, claimed as mentalstress, secondaryto
service-connected left-ear
hearing loss, will be SET ASIDE and the matter REMANDED for further
adjudication.
DATED:
October 12, 2011
Copies to:
Erick J. Haynie, Esq.
VA General Counsel (027)
3

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