Veteranclaims’s Blog

March 12, 2012

Single Judge Application, Davidson v. Shinseki, 581 F.3d 1313, 1316 (2009); No Categorical Requirement of Competent Medical Evidence

Excerpt from decision below:
“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 (2009) (quoting Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007)).
Moreover, this Court has held that “[l]ay testimony is competent . . . to
establish the presence of observable symptomatologyand ‘may provide sufficient support for a claim of service connection.'” Barr v. Nicholson, 21 Vet.App. 303, 307 (2007) (quoting Layno v. Brown, 6 Vet.App. 465, 469(1994)). As this Court has often noted, “symptoms, not treatment, are the essence of any evidence of continuity of symptomatology.” Savage v. Gober, 10 Vet.App. 488, 496 (1997); see also Wilson v. Derwinski, 2 Vet.App. 15, 19 (1991) (noting that the “regulation requires continuity of symptomatology, not continuity of treatment)”
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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 11-0764
RICHARD L. HEATON, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before HOLDAWAY, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
HOLDAWAY, Judge: The appellant appeals the February 8, 2011, decision of
the Board
of Veterans’ Appeals (Board) that denied his claim for entitlement to
service connection for a
bilateral foot and ankle disorder other than tinea pedis. The Board
granted service connection for
bilateral tinea pedis. The Court lacks jurisdiction over this issue
because there is no case or
controversy remaining with regard to the matter. See Bond v. Derwinski, 2
Vet.App. 376, 377
(1992); Mokal v. Derwinski, 1 Vet.App. 12, 15 (1990). This appeal is
timely and the Court has
jurisdiction pursuant to 38 U.S.C. §§ 7252(a) and 7266(a). Single-judge
disposition is appropriate
when the issue is of “relative simplicity” and “the outcome is not
reasonably debatable.” Frankel
v. Derwinski, 1 Vet.App. 23, 25-26 (1990). For the reasons set forth below,
the Court will vacate
that part of the February 2011 decision that denied service connection for
a bilateral foot and ankle disorder other than tinea pedis and remand the matter for further proceedings consistent with this decision.

I. FACTS
The appellant served on active duty in the U.S. Army from July 1957 to
July 1959. See Record (R.) at 3. His service medical records were destroyed by fire. R. at 367. In May 2005, the

appellant filed a claim for service connection for a disability causing
bilateral foot and ankle pain.
R. at 438, 439-52. In February2006, the regional office(RO) denied the
appellant’s claim for service
connection for bilateral foot and ankle pain. R. at 363-65. The appellant
perfected an appeal. R. at
308, 358. In November 2008, the appellant testified that he had foot
problems in service that
continued after service. R. at 219-21.
In March 2010, the Board remanded the appellant’s claim for
furtherdevelopment,to include
a VA examination. R. at 136-43. The appellant underwent a VA examination
in July 2010. R. at
95-110. The examiner noted that the appellant had broken his left ankle
two years earlier and
continued to have pain from overcompensating for his injury. R. at 97.
Bilateral foot x-rays
revealed an old fracture of the fifth metatarsal. R. at 99. A left ankle x-
ray revealed an irregularity
of the medial malleolus thought to represent an old fracture and
degenerative changes of the ankle
joint and the talonavicular joint. R. at 104. The examination of the
appellant’s feet and ankles
revealed that the appellant had numbness of both feet and ankles, which
the examiner opined was
“probably related to his diabetes mellitus.” R. at 102. The examiner
rendered a diagnosis of status
post fracture of the left ankle, well healed and bilateral heel spurs. R.
at 108. With regard to the
question of whether the appellant’s current foot complaints were related
to service, the examiner
opined that “ICANNOTRESOLVETHISISSUEWITHOUTRESORTTOMERESPECULATION.
[N]o military medical records . . . are available. It is my opinion that
the patient’s problems are
related to diabetic neuropathy.” R. at 110.
In October 2010, the Board remanded the appellant’s claim for another VA
examination.
R. at 72-77. The appellant was provided another VA foot examination in
November 2010. R. at 46-
59. The appellant described symptoms of pain in both feet while standing,
walking, and at rest. R. at
47. The examiner noted the appellant’s history of diabetes with peripheral
neuropathy involving the
feet and found that the appellant’s feet had dysesthesia to touch
bilaterally. R. at 48-49. X-rays of
the feet revealed small bilateral calcaneal spurs and mild osteopenia. R.
at 50. The examiner noted
the appellant’s history of left ankle fracture approximately three years
earlier. R. at 53. X-rays of
the left ankle verified the past fracture. R. at 56. X-rays of the right
ankle showed degenerative
spurringand a calcaneal plantar spur that resulted in an impression of “[o]
steoarthritis. Suspect prior
trauma right ankle. Vascular calcifications.” R. at 57. The examiner
opined that the appellant’s
2

current bilateral foot status was “unremarkable except for his diagnosis
of diabetic peripheral
neuropathy and bilateral calcaneal enthesopathy[1]
by x[-]ray.” R. at 58. The examiner also
diagnosed bilateral ankle arthritis and left ankle symptoms associated
with a left ankle fracture in
2008. R. at 58-59. On February 8, 2011, the Board issued its decision in
which it granted service
connection for bilateral tinea pedis, but denied service connection for a
bilateral foot and ankle
disorder other than tinea pedis. R. at 3-19. This appeal followed.
II. ANALYSIS
In his brief, the appellant argues that the Board erred in focusing on his
diabetes as the source
of his bilateral foot problems. Appellant’s Brief (Br.) at 1-2. He alleges
that if his SMRs had not
been destroyed, he could establish service connection for his foot problem
and asks the Court to re-
evaluate his claim. Appellant’s Br. at 2. The Secretary concedes that
remand of the Board decision
is appropriate because the Board provided an inadequate statement of
reasons or bases for its
decision. Secretary’s Br. at 4-8. Among other things, the
Secretaryspecificallycontends that, while
the Board generally denied service connection for a bilateral foot and
ankle disorder, it failed to
adequatelyaddress, amongotherthings,whethertheappellant’s
diagnosedbilateral plantarcalcaneal
spurs, mild osteopenia, and bilateral ankle arthritis were related to
service. Secretary’s Br. at 6-7.
The Secretary further concedes that the Board erred by rejecting the
appellant’s lay statements of
continuity of symptomatology as not credible based on a lack of
corroborating medical evidence.
Secretary’s Br. at 7-8.
The Board must consider all evidence of record and discuss all ”
potentially applicable”
provisions of law and regulation. 38 U.S.C. § 7104(a); Schafrath v.
Derwinski, 1 Vet.App. 589, 592-
93 (1991). The Board’s decision must include an adequate statement of the
reasons or bases for its
findings and conclusions on all material issues offact and law presented
on the record; that statement
must be adequate to enable an appellant to understand the precise basis
for the Board’s decision, as
well as to facilitate informed review in this Court. See 38 U.S.C. § 7104(
d)(1); Allday v. Brown, 7
Vet.App. 517, 527 (1995); Gilbert v. Derwinski, 1 Vet.App. 49, 56-57 (1990
). To comply with this
1
MEDICAL DICTIONARY 634
Enthesopathy is a disorder of the muscular or tendinous attachment to bone.
DORLAND’S ILLUSTRATED
(31st ed. 2007)
3

requirement, the Board must analyze the credibilityand probative value of
the evidence, account for
the evidence it finds persuasive or unpersuasive, and provide the reasons
for its rejection of any
material evidence favorable to the claimant. See Caluza v. Brown, 7 Vet.
App. 498, 506 (1995);
Gabrielson v. Brown, 7 Vet.App. 36, 39-40 (1994).
There is no categorical requirement of “‘competent medical evidence . . . [when] thedeterminative issue involves either medical etiology or a medical diagnosis.'” Davidson v. Shinseki, 581 F.3d 1313, 1316 (2009) (quoting Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007)).
Moreover, this Court has held that “[l]ay testimony is competent . . . to
establish the presence of observable symptomatologyand ‘may provide sufficient support for a claim of service connection.'” Barr v. Nicholson, 21 Vet.App. 303, 307 (2007) (quoting Layno v. Brown, 6
Vet.App. 465, 469(1994)). As this Court has often noted, “symptoms, not treatment, are the essence of any evidence of continuity of symptomatology.” Savage v. Gober, 10 Vet.App. 488, 496 (1997); see also Wilson v. Derwinski, 2 Vet.App. 15, 19 (1991) (noting that the “regulation
requires continuity of symptomatology, not continuity of treatment).
In Buchanan v. Nicholson, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) made clear that “[w]hile thelack of contemporaneous medical records maybe a fact that the Board can consider and weigh against a veteran’s lay evidence,
the lack of contemporaneous records does not, in and of itself, render
lay evidence not credible.” 451 F.3d 1331, 1336 (Fed. Cir. 2006).
The Board expressly stated the following concerning the appellant’s lay
statements in its
February 2011 decision:
Although the [appellant] has attested to the continuity of his bilateral
foot
symptomatology; the Board finds that [his] statements in this regard may
not be
credible, given that the objective medical evidence in this case does not
establish any
clinical evidence of a chronic disabilityof the feet to which the [
appellant’s] foot pain
maybe attributed other than diabetic peripheral neuropathy. . . . The [
appellant’s] lay
assertions are not competent or sufficient to establish that [his] current
peripheral
neuropathy or calcaneal enthesopathy are related to his in-service foot
complaints.
Furthermore, the Board finds that the veterans complaints of pain in
service and
thereafter are not competent or sufficient to establish the presence of
any other
currently diagnosed foot disability. . . . Although the [appellant] has
identified foot
pain in service and shortly thereafter; he does not have competent and
credible
medical evidence of a currently diagnosed disability to which this pain
may be
attributed. . . .
4

R. at 16-17.
As conceded by the Secretary, the Board erred in relying on the lack of
medical treatment
records for its finding that the appellant’s lay statements of continuity
of symptomatology (see R. at
27, 219-21) lacked competency and credibility in the instant case.
Secretary’s Br. at 7-8; Previous HitBuchananNext Document,
supra; R. at 16-17. The failure of the Board to adequately consider the
appellant’s lay statements or
to adequately discuss those statements in the context of all of the
appellant’s diagnosed foot and
ankle disabilities renders its statement of reasons or bases inadequate.
See 38 U.S.C. § 7104(d)(1);
see also Allday, Caluza, and Gilbert, all supra. Accordingly, the Court
will remand the Board’s
decision. On remand, the appellant is free to submit additional evidence
and argument on the
remanded matter, and the Board is required to consider any such relevant
evidence and argument.
See Kay v. Principi, 16 Vet.App. 529, 534 (2002) (stating that, on remand,
the Board must consider
additional evidence andargumentinassessingentitlementto 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 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 briefs, and a
review of the record, that part of the Board’s February 8, 2011, decision that denied service connection for a bilateral foot and ankle disorder other than tinea pedis is VACATED and the matter is REMANDED to the Board for further development and readjudication consistent with this opinion.
DATED: February 28, 2012
Copies to:
Richard L. Heaton
VA General Counsel (027)
5

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