Veteranclaims’s Blog

January 12, 2012

Single Judge Application, DeLisio v. Shinseki, 25 Vet.App. 45, 53(2011); Apparent and Potential Claim, Referring to Affected Body Part

Filed under: Uncategorized — veteranclaims @ 4:03 pm

Excerpt from decision below:
Although his filing appears to only raise the issue of service connection on a direct basis, VA is not constrained by that theory. See DeLisio v. Shinseki, 25 Vet.App. 45, 53(2011) (“[E]ven if a claimant believes that his condition is related to service in a particular way, his claim is not limited solely to one theory of service connection.”). Indeed, “upon the filing of a claim for benefits, the Secretary generally must investigate the reasonably apparent and potential causes of the veteran’s condition and theories of service connection that are reasonably raised by the record or raised by a sympathetic reading of the claimant’s filing.” Id.
===================================
“The Court disagrees.
Mr. Canuto’s claim was one for a “right leg (injury) condition” (R. at 284
); as the Board noted, he did not provide anydetails as to the condition other than his theory that the condition – whatever that may be – was directly service related. Just as the Board is not limited to his theory of service connection, see DeLisio, supra, the Board is also not limited to only those conditions that may be the result of a right leg “injury.” Especially because the claim was phrased in such broad terms, the Court concludes that Mr. Canuto’s right leg claim may reasonably encompass varicose veins and edema. See DeLisio, 25 Vet.App. at 53 (noting that an appellant sufficiently files a claim by referring to the affected body part).

—————————————————-

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 11-2472
HONORATO D. CANUTO, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.

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

DAVIS, Judge: U.S. Navy veteran Honorato D. Canuto appeals through counsel
from a June 15, 2011, Board of Veterans’ Appeals (Board) decision that denied him entitlement to service connection for “residuals of a right leg injury.”1 Record (R.) at 9. For the reasons stated below, the Court will set aside the Board’s June 2011 decision and remand the matter
for further proceedings consistent with this decision.

I. ANALYSIS
Mr. Canuto first argues that the Board clearly erred in its determination
that Mr. Canuto did not suffer from a current right leg disability. Specifically, he contends that he “suffers from several disabilities of the right leg that have been attributed to his service-connected heart disease” including varicose veins, edema, or a venuous insufficiency (which encompasses both varicose veins and

1 The Board also remanded the issue of entitlement to a total disability
rating based on individual employability and deferred adjudication of the issue of an initial compensable evaluation for hypertension. Those matters are not before the Court at this time. See 38 U.S.C. § 7266 (stating that the Court reviews only final decisions of the Board); see also Howard v. Gober, 220 F.3d 1341, 1344 (Fed. Cir. 2000).

edema) (Appellant’s Brief (Br.) at 7), but the Board only considered
whether he suffered from a disability that could be directly connected to an in-service injury.
In response, the Secretary contends that Mr. Canuto only “sought service
connection for a ‘right leg (injury)’ – not secondary service connection for residuals of arteriosclerotic heart disease.”
Secretary’s Br. at 8. He asserts that the characterization of the
condition as an “injury” (as opposed to a “disease”) that was sustained in service, his reference to supporting evidence from his service
records, and his failure to expressly raise the possibility of secondary serviceconnection in his filings are fatal to his plea before the Court for an expansive reading of his claim for disability benefits.
In this case, Mr. Canuto filed a claim for disability benefits for a ”
right leg (injury)
condition.”2 R. at 284. Although his filing appears to only raise the issue of service connection on a direct basis, VA is not constrained by that theory. See DeLisio v. Shinseki, 25 Vet.App. 45, 53(2011) (“[E]ven if a claimant believes that his condition is related to service in a particular way, his claim is not limited solely to one theory of service connection.”). Indeed, “upon the filing of a claim for benefits, the Secretary generally must investigate the reasonably apparent and potential causes of the veteran’s condition and theories of service connection that are reasonably raised by the record or raised by a sympathetic reading of the claimant’s filing.” Id.
Here, the Board determined that Mr. Canuto was not suffering from a right
leg disability that is related to an injury in service. It appears, however, that the Board may have erred in limiting Mr. Canuto’s claim as one for direct service connection. In its decision, the Board specifically noted that “[t]he only diagnosis of any disorder of the right leg (other than symptoms attributed to his service[-]connected coronary artery disease) appears in September 2008 medical records.” R. at7(emphasis added). Mr. Canuto asserts that those “symptoms” to which the Board referred were varicose veins and edema, both of which may be separately compensable under the diagnostic code (DC). See 38 C.F.R. § 4.104, DC 7120, 7121 (2011). Contrary to Mr. Canuto’s contention, the Board’s analysis does not identify those conditions that may be secondarily related to coronary artery disease. If the “symptoms” are indeed varicose veins and edema, because the record raised the issue of secondary service connection for those compensable conditions, the Board should have
considered whether

2 The Court notes that the Secretary failed to include the word “condition”
when quoting from Mr. Canuto’s claim.
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service connection was warranted. As it stands, the Board’s rationale is
insufficient to facilitate judicial review of this matter, and remand is required. See 38 U.S.C. § 7104(d)(1); Allday v. Brown, 7 Vet.App. 517, 527 (1995).
In so ordering, the Court notes the Secretary’s objection that Mr. Canuto’s claim for a right leg “injury” may not encompass conditions such as varicose veins and edema.
The Court disagrees.
Mr. Canuto’s claim was one for a “right leg (injury) condition” (R. at 284); as the Board noted, he did not provide any details as to the condition other than his theory that the condition – whatever that may be – was directly service related. Just as the Board is not limited to his theory of service connection, see DeLisio, supra, the Board is also not limited to only those conditions that may be the result of a right leg “injury.” Especially because the claim was phrased in such broad terms, the Court concludes that Mr. Canuto’s right leg claim may reasonably encompass varicose veins and edema. See DeLisio, 25 Vet.App. at 53 (noting that an appellant sufficiently files a claim by referring to the affected body part).
Mr. Canuto also argues that he has “a claim for tender scars (including of
the right leg) that has been pending since at least June 1988” (Appellant’s Br. at 8), and that the Board should have considered whether he suffers from a “current disability” of a tender scar of the right leg. It appears that this argument was not presented to the Board in the first instance, which would be better able to determine whether the matter had been previously adjudicated and properly appealed between 1988 and the present. See Maggitt v. West, 202 F.3d 1370, 1377-78 (Fed. Cir. 2000) (holding that
the Court has discretion to remand issues presented for the first time on
appeal). Consequently, on remand,the Board should determine whether the issue of a “tender scar” requires Board adjudication.

II. CONCLUSION
On consideration of the foregoing, the Court SETS ASIDE the Board’s June
15, 2011,
decision as to service connection for residuals of a right leg injury and
REMANDS that matter for
further proceedings consistent with this decision. On remand, Mr. Canuto
is free to submit
additional evidence and raise any other additional arguments to the Board,
and the Board must
address such evidence and argument. See Kay v. Principi, 16 Vet.App. 529,
534 (2002). The Board
3

shall proceed expeditiously, in accordance with 38 U.S.C. §§ 5109B,
7112 (requiring Secretary to
provide for “expeditious treatment” of claims remanded by Board or Court).
DATED: January 5, 2012
Copies to:
Amy F. Fletcher, Esq.
VA General Counsel (027)
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