Veteranclaims’s Blog

June 25, 2012

Single Judge Application, Golz, 590 F.3d at 1321; Relevant Records, 5103A

Filed under: Uncategorized — Tags: , , — veteranclaims @ 1:29 pm

Excerpt from decision below:
“Relevant records for the
2

purpose of § 5103A are those that relate to the injury for which the claimant is seeking benefits and have a reasonable possibility of helping to substantiate the veteran’s claim.” Golz, 590 F.3d at 1321.”
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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 10-3400
ROBERT MCLEMORE, JR., APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before MOORMAN, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
MOORMAN, Judge: The appellant, Robert McLemore, Jr., appeals through
counsel a July
30, 2010, Board of Veterans’ Appeals (Board) decision that denied
entitlement to service connection
for a low back disorder. Record (R.) at 3-10. Both parties filed briefs.
This appeal is timely, and
the Court has jurisdiction pursuant to 38 U.S.C. § 7252(a). A single
judgemayconduct this review.
See Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). For the following
reasons, the Court will
affirm the Board’s July 2010 decision.
I. ANALYSIS
The appellant argues that VA failed to comply with the duty to assist when
it declined to
request his Social Security Administration (SSA) records. Appellant’s (App
.) Brief (Br.) at 7-11.
The appellant also argues that the Board erred in finding his lay
testimony to be less probative than
other evidence and in relying on an inadequate 2009 medical examination.
App. Br. at 12-17.
First, in regard to the appellant’s SSA records, the Board:
observedthattheVeteranreceivesSupplementalSecurityIncome(SSI)benefits from
the [SSA], and that no records from the SSA are currently contained in the
claims
file. Nevertheless, the Board finds that the SSA records are not necessary
to a
decision on the claim before the VA. In its decisions, the SSA is
concerned with an

applicant’s current medical situation, whereas in adjudicating this claim
for service
connection, VA is concerned with evidence reflecting a nexus between a
current
disability and active military service. The record currently contains
ample evidence
reflecting the Veteran’s current low back situation, and he has not
asserted that SSA
records would reflect a relationship between his currently-shown low back
disorder
and service, or are otherwise necessary to the adjudication of this appeal.
Thus, the
Board finds that remand to obtain any SSA records pertaining to the
Veteran’s
disorder would constitute a waste of judicial and administrative resources,
and that
an informed and complete decision may be reached without the delay
inherent in
obtaining these records.
R. at 6. The appellant asserts that the record is “unclear as to when [he]
was first actually treated for
his back problems, and social security records could contain information
regarding such facts,” and
that SSA records “could contain medical nexus opinions regarding the onset
and etiology of the
veteran’s back problems.” App. Br. at 11. The appellant further contends
that, because he was not
represented by counsel before the Board, the Board should have read his
filings with sufficient
sympathy to assume his SSA records were relevant. App. Br. at 10.
VA’s duty to assist includes making “reasonable efforts to assist a
claimant in obtaining
evidence necessary to substantiate the claimant’s claim for a benefit.” 38
U.S.C. § 5103A(a)(1), (b);
see Loving v. Nicholson, 19 Vet.App. 96, 102-03 (2005) (discussing
requirement that the records be
adequately identified if the claimant wishes the Secretary to obtain them).
The duty to assist “is not
boundless in its scope” and VA is only required to obtain relevant records
that the claimant
adequatelyidentifies and authorizes the Secretaryto obtain. Golz v.
Shinseki, 590 F.3d 1317, 1320-
21 (Fed. Cir. 2010). The Board’s determination whether VA fulfilled its
duty to assist generally is
a finding of fact that the Court reviews under the “clearly erroneous”
standard of review. See Nolen
v. Gober, 14 Vet.App. 183, 184 (2000); Gilbert v. Derwinski, 1 Vet.App. 49,
52 (1990).
Althoughtheappellantis currentlyrepresentedbyanexperiencedattorney,
hefailsto divulge
on what basis his SSI benefits were granted. See Wood v. Derwinski, 1 Vet.
App. 190, 193 (1991)
(“The duty to assist is not always a one-waystreet. If a veteran wishes
help, he cannot passivelywait
for it in those circumstances where he may or should have information that
is essential in obtaining
the putative evidence.”); App. Br. at 10 (arguing that knowing the precise
basis for his SSA
disability, while he was represented by a service organization, would have
required legal
sophistication beyond that which could be expected of a lay person). ”
Relevant records for the
2

purpose of § 5103A are those that relate to the Previous DocumentinjuryNext Document for which the
claimant is seeking benefits and
have a reasonable possibility of helping to substantiate the veteran’s
claim.” Golz, 590 F.3d at 1321.
The appellant’s assertions that his SSA records might be relevant do not
persuade the Court that the
Board clearly erred in finding that the duty to assist had been met. See R.
at 7. Rather, such
unsupported assertions only emphasize the relevance of the United States
Court of Appeals for the
Federal Circuit’s determination that concluding”all SSA
disabilityrecordsarerelevantwouldrender
the word ‘relevant’ superfluous in the statute.” Golz, 590 F.3d at 1321.
Thus, the Court cannot
conclude that the Board clearly erred in finding that the duty to assist
had been met in regard to
obtaining relevant records. See Golz and Gilbert, both supra.
Second, the appellant asserts that the Board “failed to provide an
adequate explanation of its
reasons and bases for why [his] lay evidence was not probative evidence in
support of his claim, as
evidence of continuity of symptomatology under 38 C.F.R. § 3.303(b)(2010
).” App. Br. at 12.
Specifically, the appellant asserts that the Board rejected his lay
statements “merely because it was
not corroborated by medical evidence of record.” Id. This assertion is a
mischaracterization of the
Board’s decision, which noted the appellant’s contention that his current
low back disorder should
beattributedto his activemilitaryservicebefore discussing the
evidence—includinganunfavorable
2009 VA examination—and determining that “the greater weight of the
evidence is against the
claim.” R. at 8-10. In addition, the Board acknowledged the appellant’s
2007 statement that his
post-service head trauma did not affect his back, but explained ”
contemporaneous treatment records
clearlyshow that he attributed his back pain to the 1999 trauma, with his
VA physicians finding that
his back pain was secondary to a cervical spine disorder resulting from
the incident.” R. at 9; see
Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006) (explaining
that the Board may
discount lay evidence when such discounting is appropriate).
Nor is the Board’s discussion of Maxson inappropriate, because the Board
may consider
evidence of a prolonged period without medical complaint, along with other
pertinent evidence, in
its determination. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir.
2000); R. at 9-10 (Board
decision takingmultiple factors into account); see also Fagan v. Shinseki,
573 F.3d1282, 1289 (Fed.
Cir. 2009) (discussing how the examiner properly took into account
evidence of post-service
exposure and a lack of treatment until 30 years after service (citing
Maxson, 230 F.3d at 1333).
3

Thus, the Court is not persuaded by the appellant’s assertion and
concludes that the Board provided
an adequate statement of reasons or bases for its determination that the
appellant’s lay evidence was
less probative than the other evidence of record.1
See 38 U.S.C. § 7104(d)(1); Allday v. Brown,
7 Vet.App. 517, 527 (1995); Hilkert v. West, 12 Vet.App. 145, 151 (1999) (
en banc) (“An appellant
bears the burden of persuasion on appeals to this Court.”), aff’d per
curiam, 232 F.3d 908 (Fed. Cir.
2000); Berger v. Brown, 10 Vet.App. 166, 169 (1997) (“[T]he appellant . . .
always bears the burden
of persuasion on appeals to this Court.”).
Third, the appellant argues that the “Board failed to provide an adequate
explanation of its
reasons or bases for why remand for an adequate medical opinion was not
necessary.” App. Br. at
15. The initial question is whether the medical opinion at issue was
adequate—if it was adequate,
the Board obviously had no reason to discuss why remand for an additional
opinion was not
necessary.
“A medical opinion is adequate when it is based upon consideration of the
veteran’s prior
medical history and examinations and also describes the disability . . .
in sufficient detail so that the
Board’s ‘evaluation . . . will be a fully informed one.'” Barr v.
Nicholson, 21 Vet.App. 303, 311
(2007) (quoting Ardison v. Brown, 6 Vet.App. 405, 407 (1994)). Whether a
medical examination
report is adequate is generally a finding of fact that the Court reviews
under the “clearly erroneous”
standard of review. See 38 U.S.C. § 7261(a)(4); Nolan v. Gober, 14 Vet.
App. 183, 184 (2000). A
finding of material fact is clearly erroneous when the Court, after
reviewing the entire evidence, “is
left with the definite and firm conviction that a mistake has been
committed.” United States v. U.S.
Gypsum Co., 333 U.S. 364, 395 (1948); Gilbert v. Derwinski, 1 Vet.App. 49,
52 (1990). When
applying this standard, if, after the Court reviews the record in its
entirety, the Board’s finding of fact
is supported by a plausible basis, “‘the [Court] may not reverse it even
though convinced that had it
been sitting as trier of fact, it would have weighed the evidence
differently.'” Id. (quoting Anderson
v. City of Bessemer City, 470 U.S. 564, 573-74 (1985)).
1
The Court notes the appellant’s assertion that the Board’s acknowledgement
of his lay testimony did not provide
an “adequate discussion of the probative value of said statements.” App.
Br. at 14. But, after review of the record, the
Court is not persuaded that any additional Board discussion of the cited
testimony would have better enabled the
appellant to understand the precise basis for the Board’s decision or
further facilitated review in this Court. See Allday
v. Brown, 7 Vet.App. 517, 527 (1995); see also Lamb v. Peake, 22 Vet.App.
227, 235 (2008) (holding that there is no
prejudicial error when a remand for a decision on the merits would serve
no useful purpose).
4

The appellant asserts that the 2009 examiner “listed several ‘key points’
instead of providing
a rationale for his opinion.” App. Br. at 15. But, as the record indicates,
the “key points” were the
examiner’s rationale formatted as a list. R. at 49 (four key points listed
under the “Rationale for
Opinion Given”section of the medical opinion). The Court is not persuaded
that a numerical listing
of reasons for a medical opinion somehow constitutes an inadequate
rationale. See Hilkert and
Berger, both supra.
The appellant also asserts that the 2009 examiner failed to provide an
adequate rationale
because “[h]e did not include a discussion of the veteran’s statements
regarding continuity of
symptomatology since service in his rationale.” App. Br. at 16. However,
the 2009 examiner
reviewed the appellant’s private and service medical records, discussed
the circumstances and initial
manifestations of his disorder, and conducted a thorough medical
examination that described the
appellant’s back condition in detail. See R. at 42-49. Further, although
the appellant contends that
“[a]bsent objective medical evidence to the contrary, the appellant’s
testimony regarding his
continual problems with his low back since the accident in service should
have been accepted bythe
examiner as true,” (App. Br. at 17), there is no indication that the 2009
examiner did not take the
appellant’s statements into account. See R. at 42-49. The record evidences
that the appellant
discussed the manifestations of his disorder with the examiner, who noted
that the appellant’s back
issues became chronic when he was injured in 1999. R. at 43. Thus, the
record indicates that the
examiner correctly based his medical opinion on all of the pertinent
evidence before him. See id.
Therefore, the Court cannot conclude that the Board clearly erred in
implicitly finding the 2009
medical opinion to be adequate. See Gilbert, supra; R. at 9.
II. CONCLUSION
After consideration of the appellant’s and the Secretary’s briefs, and a
review of the record, the Board’s July 30, 2010, decision is AFFIRMED.
DATED: June 20, 2012
5

Copies to:
Virginia A. Girard-Brady, Esq.
General Counsel (027)
6

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