Veteranclaims’s Blog

December 3, 2011

Single Judge Application, No Categorical Requirement of Competent Medical Evidence,Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Kahana v. Shinseki, 24 Vet.App. 428, 435 (2011)

Filed under: Uncategorized — veteranclaims @ 7:47 pm

Excerpt from decision below:
“The Board further stated: “Where a determinative issue involves medical causation or a medical diagnosis, competent medical evidence is required.” Id. Thus, the Board rejected the appellant’s lay assertions that his chronic bronchial condition increased in severity during service because he failed to demonstrate that he had “the requisite competence to render such an opinion.” R. at 11. Contrary to the Board’s statement,there is no categorical requirement of”‘competent medical evidence . . . [when] the determinative issue involves either medical etiology or a medical diagnosis.'” Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (quoting Jandreau v.
1
The Secretary has not responded to this argument.
7

Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007)); see also Kahana v. Shinseki, 24 Vet.App. 428, 435 (2011). Rather, the Board must assess the lay evidence and determine whether the disability claimed is of the type for which lay evidence is competent. See Jandreau, 492 F.3d at1377, cited in Robinson v. Shinseki, 312 F. App’x 336, 339, No. 2008-7096, 2009 WL 524737, at *2-3 (Fed. Cir. Mar. 3, 2009). If the disability is of the type for which lay evidence is competent, in making its determination regarding service connection, the Board, after making a credibility determination regarding the lay evidence, must weigh that evidence against the other evidence of record. See Buchanan v. Nicholson, 451 F.3d 1331, 1334-37 (Fed. Cir. 2006). In so doing, the Board is required to provide the appellant and the Court “a written statement of the reasons or bases for its findings and conclusions,” which must include “the reasons for its rejection of any material evidence favorable to the veteran.” Meyer v. Brown, 9 Vet.App. 425, 433 (1996); see also Gilbert v. Derwinski, 1 Vet.App. 49, 56-57 (1990). In this case, the Board concluded that the appellant was not competent to opine whether his condition increased in severity during his period of ACDUTRA without proffering any reasons or bases for its conclusion. Therefore, on remand, the Board must reassess the appellant’s lay evidence and provide an adequate statement of reasons or bases for its findings.”
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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 10-1641
HARRY E. RICHARDSON, 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 pro se appellant, Harry E. Richardson, appeals an
April 13, 2010,
Board of Veterans’ Appeals (Board) decision that denied entitlement to
service connection for
pneumothorax, claimed as a chronic bronchial condition. Record of
Proceedings (R.) at 3-15. 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). Because the Board failed to provide an
adequate statement of reasons
or bases for its finding that VA satisfied its duty to assist, the Court
will vacate the Board’s April 13,
2010, decision and remand the matter for further proceedings consistent
with this decision.
I. BACKGROUND
The appellant served on active duty for training (ACDUTRA) in the
Tennessee Army
National Guard from July 1961 to December 1961. R. at 1529. The appellant
was honorably
discharged on June 19, 1963, as a result of “physical disqualification.” R.
at 79, 1525. His
enlistment examination does not reflect any defects or conditions related
to his lungs, and the
appellant reported that he was “in good health.” R. at 1560-61. His
service medical records (SMRs)
indicate that he was admitted to the Ireland Army Hospital on August 18,
1961, “because of right

sided chest pain of one week’s duration.” R. at 53. The narrative summary
indicates that the
appellant “came to the hospital because he felt like he was having another
pneumothorax” and
reported that “he had had a pneomothorax in 1959[,] which was treated by
closed thoracotomy.” Id.
(emphasis added). Theappellantwasinitially”treatedconservativelywith
bedrestandobservation,”
followed by “approximately 200 cc air . . . aspirated by needle.” R. at 54.
After serial x-rays
revealed an increased pneumothorax, a closed tube thoracotomywas performed
on August 25, 1961.
Id. Two days later, the tube was changed as a result of “poor positioning.”
Id. On September 2,
1961, the chest tube was removed and a physical examination revealed that
the “chest was clear
throughout to percussion and auscultation.” Id. On September 8, 1961, the
appellant was placed on
10 days’ convalescent leave. Id.
Theappellant’s
posthospitalizationrecordsindicatethathecomplainedofrecurrent chestpain
and was placed on “limited duty, no prolonged standing or marching.” R. at
67; see also R. at 59.
An October 2, 1961, surgical clinic record recorded the appellant’s
complaint of right anterior chest
pain when he was performing physical activity. R. at 59. The clinician
noted that the chest was clear
to percussion and auscultation and that there was no evidence of any
pulmonary disease. Id. The
clinician also noted “post-op[erative] weakness” and suggested that the
appellant “stop smoking.”
Id. The appellant was returned to duty. Id.
A March 1962 medical record indicates that Dr. Carter, a private physician,
treated the
appellant for bronchitis and performed a “bronchoscopy with aspiration
biopsy.” R. at 77. The
appellant’s postservice medical records furtherindicate that he was
treated for recurrent spontaneous
pneumothorax in 1972 and 1975. R. at 190, 205, 237-38, 1348. In September
1975, the appellant’s
physician, a thoracic and cardiac surgeon, opined that the appellant was
totally and permanently
disabled as a result of “right and left thoracotomy, wedge resection of
right and left lungs, and
pleurectomyforrecurrentpneumothorax causedbymultiplecysticdiseaseofboth
lungsandfrequent
episodes of spontaneous pneuomothorax.” R. at 215; see also R. at 1496.
The appellant submitted an application for VA compensation benefits in
September 1974 for
a “collapsed lung,” which the regional office (RO) denied in January1975.
R. at 1492-93, 1521-24;
see also R. at 1491. He attempted to reopen his claim in November 1975,
but was notified in
2

January 1976 that his “claim remain[ed] in disallowed status” because the
evidence failed to show
that his lung condition was “incurred in or aggravated by” military
service. R. at 1470, 1472-75.
In August 2004, the appellant filed a request to reopen a claim for
entitlement to service
connection for a “bronchial condition.” R. at 1367. On January 13, 2005,
the RO denied reopening
the claim for service connection for pneumothorax, claimed as a bronchial
condition, because the
evidence submitted, although new, was not material. R. at 1097-1101. In a
December 4, 2008,
decision, the Board remanded the appellant’s claim to the RO because his ”
claims file [did] not . . .
contain any records, medical or otherwise, relating to prior VA claims or
rating decisions.” R. at
139. The Board noted that “preliminary attempts by the RO to locate these
documents from the
Records Management Center (RMC) [had] been fruitless[,]” and that VA has a ”
‘heightened’ duty
to assist” in cases such a this. Id. The Board noted that the appellant’s
contentions were twofold:
First, “that his lung collapse was caused by arduous physical training
during his period of
ACDUTRA.” R. at 140. Second, that “the 7 daydelayin inserting the chest
tube on or about August
25, 1961, caused permanent damage to his lungs, thereby aggravating his
bronchial condition to the
point of being physically disqualified from the [Tennessee Army National
Guard].” Id. The Board
noted thattheappellantwasdischargedfromservicewith afindingof pneumothorax,
which “existed
prior to service,” and that the question was whether his condition
underwent a permanent increase
in severity during his period of ACDUTRA. Id.
Significantly, the Board also noted that the appellant’s claims file was
previously misplaced
and that “[a]lthough the claims file . . . is classified as ‘rebuilt’,
even the most cursory of inspections
would reveal that the available folder is incomplete, as a plethora of
critical evidence is missing.”
R. at 141. The Board remanded the claim with directions that the RO ”
endeavor to conduct a search
for the veteran’s missing claims file” and that all “requests, actions,
and responses be documented
for future review.” R. at 142. The Board further instructed the RO to
schedule the appellant for a
medicalexamination “toassessthecurrentnatureandetiologyof
anypulmonary/bronchialdisorders
found on examination.” R. at 142-43. The examiner was directed to provide
the following
information: (1) “Discuss the history, onset, and etiology of the
veteran’s pulmonary/bronchial
condition, to include multiple episodes of spontaneous pneumothorax”; (2) ”
Is it as likely as not . . .
that the pulmonary/bronchial condition shown prior to service underwent a
permanent increase in
3

underlying pathology, as opposed to a mere temporary increase in
symptomatology, during or as a
result of . . . service?”; (3) “If so, was the permanent increase in the
underlying pathology due to
normal progression of the disorder?”; and (4) “Address and discuss the
clinical records from August
1961 and September 1961, which document hospitalization at Ireland Army
Hospital, Fort Knox,
Kentucky, for treatment of spontaneous pneumothorax.” R. at 143.
The appellant underwent a compensation and pension examination on
September 3, 2009.
R. at 436-41. Upon review of the appellant’s claims file and a physical
examination, the examiner
opined that the appellant had a preexisting disorder, primary spontaneous
pneumothorax, which is
“often characterized byrecurrences especially with continued risk factors”
such as smoking and that
“under these circumstances (and more likely than not) this case followed a
course that can[]not be
considered unexpected.” R. at 440. Theexaminer also opined that it was ”
more likelythan not [that]
the management of [the appellant’s] pneumothorax during his active tour
did NOT contribute to any
subsequent deterioration in his condition.” Id. (emphasis in original).
With regard to the question
whether the appellant’s condition was aggravated during his ACDUTRA, the
examiner stated that
it was “more likely than not – (and subjective complaints not[]
withstanding) that his preexisting
condition . . . did NOT undergo a ‘permanent increase in underlying
pathology’ during that tour.”
Id. (emphasis in original). Finally, the examiner opined that it was more
likely than not that the
“recurrent infections . . . [,] bronchiectasis[,] and possibly some
portion of the restrictive defect
currently noted on [pulmonary function tests] are related to continued
smoking and the events that
occur[r]ed over a decade (1972) after his release[,] including surgeries
and as[s]ociated sequelea as
well as other possible co[-]morbid disease (cardiac).” Id.
The Board issued the decision here on appeal on April 13, 2010. R. at 3-15.
In its decision,
the Board denied entitlement to service connection for pneumothorax,
claimed as a bronchial
condition. The Board concluded that the appellant had a primaryspontaneous
pneumothorax before
his entryinto ACDUTRA and that it was not likely aggravated during his
period of ACDUTRA. R.
at 5. With regard to VA’s fulfillment of its statutory duty to assist, the
Board stated that
[a]s a result of the Board’s December 2008 [r]emand, the claims file has
been
substantially rebuilt, although information in the claims file indicates
that private
medical records are still missing from several private hospitals,
including reports
dated in the 1960s after service. VA has done everything reasonably
possible to
4

assist the [v]eteran with respect to his claim for benefits in accordance
with
38 U.S.C. § 5103A. . . . Service treatment records have been associated
with the
claims file. All identified and available private treatment records have
been secured,
as well as medical records associated with the [v]eteran’s claim for
disabilitybenefits
from the Social Security Administration. The [v]eteran also has been
medically
evaluated in conjunction with his claim . . . [and t]he Board finds that
the available
medicalevidenceis sufficient foranadequatedetermination
ofhisserviceconnection
claim without causing any prejudice to the [v]eteran.
R. at 6.
II. ANALYSIS
On appeal, the appellant argues that (1) VA failed to fulfill its duty to
assist by failing to
obtain a communication between Dr. John Paul Carter and “proper military
authority,” which
preceded his discharge by physical disqualification; (2) the Board failed
to consider lay testimony;
(3) the Board failed to afford him the benefit of the doubt; and (4) ”
there is no medical evidence to
concludethat smoking was [the] actual causeor even instrumental to [his]
lung condition.” Informal
Brief (Br.) at 1-2. The Secretary admittedly does not respond to or
address the arguments raised by
the appellant. Secretary’s Br. at 11. Rather, the Secretaryargues two
alternative bases for affirming
the Board’s decision: (1) The presumptions of soundness and aggravation
have been rebutted, or (2)
the Board improperly afforded the appellant the presumption of aggravation,
which does not apply
to the appellant’s claim that is based on a period of ACDUTRA. Id. at 8-13 (
citing Donnellan v.
Shinseki, 24 Vet.App. 167 (2010) and Smith v. Shinseki, 24 Vet.App. 40 (
2010)). With regard to the
latter argument, the Secretary asserts that the appellant has not carried
his burden of demonstrating
that his condition was incurred during, or aggravated by, his period of
ACDUTRA. Secretary’s Br.
at 11-13.
A. VA’s Duty To Assist
The Secretary has a duty to assist claimants in developing their claims.
38 U.S.C. § 5103A.
The duty to assist includes the duty to make “reasonable efforts to obtain
relevant records,” as long
as the claimant “adequately identifies” those records to the Secretary and
authorizes the Secretary
to obtain them. 38 U.S.C. § 5103A(b)(1); see also Loving v. Nicholson, 19
Vet.App. 96, 102 (2005).
If the records aremaintained bya Federal department or agency, “efforts to
obtain those records shall
5

continue until the records are obtained unless it is reasonably certain
that such records do not exist
or that further efforts to obtain those records would be futile.” 38 U.S.C.
§ 5103A(b)(3); 38 C.F.R.
§ 3.159(e) (2011). If the Secretary is unable to obtain those records
after making reasonable efforts
to do so, the Secretarymust provide notice of that fact to the claimant.
See 38 U.S.C. § 5103A(b)(2);
38 C.F.R. § 3.159(e). The Board’s determination that VA has satisfied the
duty to assist is reviewed
under the “clearly erroneous” standard of review. Hyatt v. Nicholson, 21
Vet.App. 390, 395 (2007).
Moreover, when a veteran’s records are presumed lost or destroyed, the
Board is “under a
heightened duty to consider and discuss the evidence of record and supply
well-reasoned bases for
its decision as a consequence of the appellant’s missing [records].”
Washington v. Nicholson,
19 Vet.App. 362, 371 (2005); see also Russo v. Brown, 9 Vet.App. 46, 51 (
1996) (holding that the
Court’s caselaw establishes a “heightened duty” to assist when the
appellant’s medical records have
been lost or destroyed); Cuevas v. Principi, 3 Vet.App. 542, 548 (1992) (
holding that the Board’s
dutyto assist a claimant in developinghis claim is heightened in cases in
which the appellant’s SMRs
are lost or destroyed).
In the decision here on appeal, the Board determined that VA’s duty to
assist had been met.
R. at 6. However, the appellant appears to argue that VA did not satisfy
its duty to assist because
all efforts to obtain a communication between his physician, Dr. John Paul
Carter, and “proper
military authority” have been ignored. Informal Br. at 1. A review of the
record reveals that it
contains VA Form 21-4142, Authorization and Consent to Release Information
to [VA], on which
the appellant requested that VA obtain a letter from his physician, Dr.
John Paul Carter, to the
Department of the Army concerning the medical reasons for his physical
disqualification discharge
on June 19, 1963. R. at 497. This document bears the resemblance of a
stamp noting VA’s receipt
of the document; however, the date it was received is not legible. Id.
As argued by the appellant, the record on appeal does not contain the
aforementioned letter.
Although the Board discussed various actions taken by the RO to rebuild
the claims file and
concluded that “all identified and available private treatment records
have been secured,” the Board
did not discuss in its statement of reasons or bases what efforts, if any,
were made to locate the
document. R. at 6. However, in its discussion of the evidence, the Board
noted that the appellant
submitted a statement in January 2009, in which the appellant asserted
that “Dr. [Carter], his
6

cardiovascular and thoracic surgeon, was convinced that the needle
aspiration of his lung while at
the Army hospital and the delay of using a closed chest tube procedure
caused permanent damage
to his lung.” R. at 11. The Board further noted that the appellant
contended that “Dr. [Carter]
contacted National Guard authorities, and that is whyhe was discharged for
physical reasons in June
1963.” Id.
Given that the appellant’s claim appears to hinge on whether his bronchial
condition
underwent a permanent increase in severity during his period of ACDUTRA,
and the Board failed
to discuss whether VA’s duty to assist required it to undertake a search
for this potentially favorable
evidence, the Court will remand the matter. The Board’s failure to address
what efforts, if any, were
made to search for this particular document or whether the document was
adequately identified so
as to trigger VA’s duty to conduct a search, renders its statement of
reasons or bases for finding that
VA satisfied its duty to assist inadequate to facilitate review. See 38 U.
S.C. § 7104(d)(1); see also
Washington, supra; Tucker v. West, 11 Vet.App. 369, 374 (1998) (holding
that remand is the
appropriate remedy “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”).
B. Evaluation of the Appellant’s Lay Evidence
The appellant also argues that the Board failed to appropriately consider
his lay testimony.1 Informal Br. at 1. The Court agrees. A review of the Board’s decision shows that the Board found that “[t]o the extent that the [v]eteran is able to observe continuity of symptomatology, his opinion is outweighed by the competent medical evidence.” R. at 14. The Board further stated: “Where a determinative issue involves medical causation or a medical diagnosis, competent medical evidence is required.” Id. Thus, the Board rejected the appellant’s lay assertions that his chronic bronchial condition increased in severity during service because he failed to demonstrate that he had “the requisite competence to render such an opinion.” R. at 11.
Contrary to the Board’s statement,there is no categorical requirement of”
‘competent medical evidence . . . [when] the determinative issue involves either medical etiology or a medical diagnosis.'” Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (quoting Jandreau v.
1
The Secretary has not responded to this argument.
7

Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007)); see also KahanaNext Document v. Shinseki, 24 Vet.App. 428, 435 (2011). Rather, the Board must assess the lay evidence and determine whether the disability claimed is of the type for which lay evidence is competent. See Jandreau, 492 F.3d at1377, cited in Robinson v. Shinseki, 312 F. App’x 336, 339, No. 2008-7096, 2009 WL 524737, at *2-3 (Fed. Cir. Mar. 3, 2009). If the disability is of the type for which lay evidence is
competent, in making its determination regarding service connection, the Board, after making a credibility determination regarding the lay evidence, must weigh that evidence against the other evidence of record. See Buchanan v. Nicholson, 451 F.3d 1331, 1334-37 (Fed. Cir. 2006). In so doing, the Board is required to provide the appellant and the Court “a written statement of the reasons or bases for its findings
and conclusions,” which must include “the reasons for its rejection of any
material evidence favorable to the veteran.” Meyer v. Brown, 9 Vet.App. 425, 433 (1996); see also Gilbert v. Derwinski, 1 Vet.App. 49, 56-57 (1990). In this case, the Board concluded that the appellant was not competent to opine whether his condition increased in severity during his period of ACDUTRA without proffering any reasons or bases for its conclusion.
Therefore, on remand, the Board must reassess the appellant’s lay evidence and provide an adequate statement of reasons or bases for its findings.

C. The Appellant’s Remaining Arguments
Given the above disposition, the Court will not at this time address the
remaining arguments
and issues raised by the appellant. See Best v. Principi, 15 Vet.App. 18,
20 (2001). “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.” Id. In pursuing his case on remand, the appellant is free to submit
additional evidence and
argument on the remanded matters, and the Board is required to consider
anysuch 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.” Fletcher
v. Derwinski, 1 Vet.App. 394, 397 (1991). The Board must proceed
expeditiously, in accordance
8

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 the Secretary’s pleadings, and
a review of the
record, the Board’s April 13, 2010, decision is VACATED and the matter is
REMANDED to the
Board for further proceedings consistent with this decision.
DATED: November 29, 2011
Copies to:
Harry E. Richardson
VA General Counsel (027)
9

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