Veteranclaims’s Blog

September 11, 2012

Single Judge Application, Records Considered; 38 C.F.R. § 3.159(c)(1); Golz v. Shinseki, 590 F.3d 1317, 1321 (Fed. Cir. 2010)

Excerpt from decision below:
“Mr. Moore argues that VA failed in its duty to assist him because it did not obtain employment and medical records that would support his claim. VA has a duty to assist a veteran in the development of claims, including assisting in the procurement of evidence necessary to substantiate a claim for benefits. 38 U.S.C. § 5103A(a). This duty is detailed in 38 C.F.R. § 3.159(c)(1) (2012):
Upon receipt of a substantially complete application for benefits, VA will make reasonable efforts to help a claimant obtain evidence necessary to substantiate the claim. . . . VA will make reasonable efforts to obtain relevant records not in the custody of a Federal department or agency, to include records from State or local governments, private medical care providers, current or former employers, and other non-Federal governmental sources. Such reasonable efforts will generally consist of an initial request for the records and, if the records are not received, at least one follow-up request.
On his 2001 application for benefits, Mr. Moore stated that he lost 30
days of work while employed at the City of Savannah as a result of MS. R. at 350. There is no indication in the record that VA attempted to obtain these employment records. In 2005, and again during a 2010 Board hearing, Mr. Moore stated that approximately five years after service the Department of Defense terminated him from his job at Fort Stewart because he was medically unfit. R. at 29, 273. There is no indication in the record that VA attempted to obtain those records.
These records pertain to Mr. Moore’s medical condition during the seven-year period following his release from service, making them relevant to the pivotal issue of the claim. See Golz v. Shinseki, 590 F.3d 1317, 1321 (Fed. Cir. 2010) (only 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” need be requested). VA made no effort to obtain the records, despite the fact that they were identified as employment records with the Department of Defense and the City of
2

Savannah, and Mr. Moore identified the approximate periods he was
employed at each.1
============================
—————————————————-

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 11-1812
CLIFFORD MOORE, 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. Army veteran Clifford Moore appeals through counsel
from an April
25, 2011, Board of Veterans’ Appeals (Board) decision that denied service
connection for multiple
sclerosis (MS) and an acquired psychiatric disorder. For the reasons that
follow, the Court will set
aside the April 2011 Board decision, and remand the matter for further
adjudication.
I. BACKGROUND
Mr. Moore currently suffers from MS; this is undisputed by the Secretary.
In June 2002, the
regional office denied service connection for Mr. Moore’s MS, and that
decision became final.
Record (R.) at 4, 9. The Board here found that new and material evidence
had been submitted to
reopen the claim and then denied it on the merits.
The unresolved matter in this case is when Mr. Moore’s MS began to
manifest. Mr. Moore
separated from the Army in 1970. The first diagnosis of MS in the record
is dated 1984, 14 years
afterseparation. R. at 600. The Secretary’s regulation states that,
regardless of whetherthecondition
was diagnosed, if MS became manifest to a degree of 10% or more within
seven years from the date
of separation from service, it is considered to have been incurred in
service. 38 C.F.R. § 3.307(a)(3)
(2012).

The Board found that Mr. Moore’s MS “is not shown to have been manifested
within seven
years from his active service discharge or to be casually [sic] related to
active service.” R. at 3. Mr.
Moore disputes this finding on the basis that he began suffering symptoms
of MS as early as when
he first began serving in the Army and that he had ongoing complications
related to MS thereafter.
II. ANALYSIS
Mr. Moore argues that VA failed in its duty to assist him because it did not obtain employment and medical records that would support his claim. VA has a duty to assist a veteran in the development of claims, including assisting in the procurement of evidence necessary to substantiate a claim for benefits. 38 U.S.C. § 5103A(a). This duty is detailed in 38 C.F.R. § 3.159(c)(1) (2012):
Upon receipt of a substantially complete application for benefits, VA will make reasonable efforts to help a claimant obtain evidence necessary to substantiate the claim. . . . VA will make reasonable efforts to obtain relevant records not in the custody of a Federal department or agency, to include records from State or local governments, private medical care providers, current or former employers, and other non-Federal governmental sources. Such reasonable efforts will generally consist of an initial request for the records and, if the records are not received, at least one follow-up request.
On his 2001 application for benefits, Mr. Moore stated that he lost 30
days of work while employed at the City of Savannah as a result of MS. R. at 350. There is no indication in the record that VA attempted to obtain these employment records. In 2005, and again during a 2010 Board hearing, Mr. Moore stated that approximately five years after service the Department of Defense terminated him from his job at Fort Stewart because he was medically unfit. R. at 29, 273. There is no indication in the record that VA attempted to obtain those records.
These records pertain to Mr. Moore’s medical condition during the seven-year period following his release from service, making them relevant to the pivotal issue of the claim. See Golz v. Shinseki, 590 F.3d 1317, 1321 (Fed. Cir. 2010) (only those records 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” need be requested). VA made no effort to obtain the records, despite the fact that they were identified as employment records with the Department of Defense and the City of
2

Savannah, and Mr. Moore identified the approximate periods he was
employed at each.1

The Court, therefore, concludes that VA did not satisfy its duty to assist Mr. Moore in obtaining records relevant to his claim, and a remand is necessary for the Board to do so.
Mr. Moore also argues that VA failed in its duty to assist him in
obtaining a medical
examination to determine whether his MS should be service connected. The
Secretarymust provide
a VA medical examination when there is
(1) competent evidence of a current disability or persistent or recurrent
symptoms of
a disability, and (2) evidence establishing . . . certain diseases
manifesting during an
applicable presumptive period for which the claimant qualifies, and (3) an
indication
that the disability or persistent or recurrent symptoms of a disability
may be
associated with the veteran’s service . . . but (4) insufficient competent
medical
evidence on file for the Secretary to make a decision on the claim.
McLendon v. Nicholson, 20 Vet.App. 79, 81 (2006).
As to the first factor, there is no dispute that Mr. Moore currently
suffers from MS. As to
the second factor, the Court is remanding the claim for VA to obtain
relevant records regarding
whether evidence exists that his symptoms manifested during the seven
years following his
discharge.
As to the third factor, the Court has explained that this presents a low
threshold. Id. at 83.
Although the Board found no indication that Mr. Moore’s current MS may be
associated with his
service, the Board failed to consider whether the fact that Mr. Moore’s
vision deteriorated during
service may have been an early symptom of his MS. The diagnostic code (DC)
for MS directs VA
to consider impairment of vision in rating MS. 38 C.F.R. § 4.124a (2012).
Mr. Moore’s separation
examination noted myopia, while his induction examination reflected
perfect vision. R. at 633, 645.
The Board stated in its decision that “[h]is visual deficit was attributed
to an objectively
demonstrated refractive error of the eye.” R. at 10. There is no medical
report in the record that
The Board identified inconsistencies with Mr. Moore’s reports of dates of
employment with the Department
of Defense. In one document he stated he was terminated from employment as
a plumber at Fort Stewart. R. at 273.
In another document he stated he was employed at Hunter Army Airfield as
an engineer and draftsman on a temporary
basis for seven months. R. at 589-90. These two periods of employment
appear to be unrelated. Additionally, the Board
cited to no inconsistency with Mr. Moore’s reports of employment with the
City of Savannah, leaving no reason those
records could not be requested.
1
3

contains this conclusion, however. This statement, therefore, is a
medical opinion that the Board is
prohibited from making. See Colvin v. Derwinski, 1 Vet.App. 171, 175 (1991).
Because the Court is remanding the claim for further development, the
Board must re-
evaluate,basedonanyinformationobtainedonremand,whetheramedicalexamination
is necessary.
Onremand,theBoardmaynot substituteitsownmedicalopinion forindependent
medical evidence. Id.
The Board also denied service connection for Mr. Moore’s psychiatric
disorder as caused or
aggravated by his MS. R. at 16. Because the Court is remanding the claim for MS, the claim for psychiatric disorder secondary to MS will also be remanded.

III. CONCLUSION
On consideration of the foregoing, the April 25, 2011, Board decision is SET ASIDE and REMANDED to the Board for further readjudication consistent with this decision. On remand, Mr. Moore will be free to submit additional evidence and argument in support of his claims, and the Board is required to consider any such evidence and argument. See Kay v. Principi, 16 Vet.App. 529, 534 (2002). A final decision by the Board following the remand herein
ordered will constitute
a new decision that, if adverse, maybe appealed to this Court on the
filing of a new Notice of Appeal
with the Court not later than 120 days after the date on which notice of
the Board’s new final
decision is mailed to Mr. Moore. See Marsh v. West, 11 Vet.App. 468, 472 (1998).
DATED: August 31, 2012
Copies to:
Robert V. Chisholm, Esq.
VA General Counsel (027)
4

Advertisements

Leave a Comment »

No comments yet.

RSS feed for comments on this post. TrackBack URI

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s

Blog at WordPress.com.

%d bloggers like this: