Veteranclaims’s Blog

April 23, 2013

Single Judge Application; Golz v. Shinseki, 590 F.3d 1317, 1323 (Fed. Cir. 2010); Failure to Obtain Relevant Records

Excerpt from decision below:
“There is no indication that VA ever attempted to obtain the appellant’s SSA records, despite his representative’s explicit request that VA do so.
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The Court holds that the Board provided an inadequate statement of reasons or bases for its conclusion that VA had satisfied its duty to assist. In particular, although the appellant’s representative specifically requested that VA obtain the appellant’s SSA records, VA did not do so, and the Board did not discuss these records or whether VA had a duty to obtain them. See Golz v. Shinseki, 590 F.3d 1317, 1323 (Fed. Cir. 2010) (“As long as a reasonable possibility exists that the records are relevant to the veteran’s claim, VA is required to assist the veteran in obtaining the identified records.”). The Board’s failure to provide such a discussion frustrates the Court’s review of the Board’s finding that the duty to assist was satisfied, thereby rendering the statement of reasons or bases inadequate. See 38 U.S.C. § 7104(d)(1); Allday v. Brown, 7 Vet.App. 517, 527 (1995); Gilbert, 1 Vet.App. at 56-57.
===========================

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 12-614
EDWARD R. HENEGAR, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.

Before LANCE, Judge.

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

LANCE, Judge: The appellant, Edward R. Henegar, through counsel, appeals an October 24, 2011, Board of Veterans’ Appeals (Board) decision that denied his claim for entitlement to service connection for hypertension, including as secondary to diabetes mellitus, as well as claims for entitlement to increased disability ratings for diabetes mellitus, post-traumatic stress disorder
(PTSD), and peripheral neuropathy of the left upper and lower extremities and the right lower extremity, and dismissed a claim for entitlement to an increased disability rating for peripheral neuropathy of the right upper extremity.1 Record (R.) at 451-475. Single-judge disposition is appropriate. See Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). This appeal is timely, and the Court has jurisdiction over the case pursuant to 38 U.S.C. §§ 7252(a) and 7266. For the reasons that follow, the Court will vacate the October 24, 2011, decision as to the appellant’s claims for service for hypertension and for increased disability ratings for diabetes mellitus, PTSD, and peripheral

1 The Board also dismissed a claim for entitlement to an increased disability rating for erectile dysfunction.
R. at 451-475. The appellant does not challenge this determination, and it is deemed abandoned. See Ford v. Gober,
10 Vet.App. 531, 535 (1997). In addition, the Board remanded a claim for entitlement to an initial compensable rating
for diabetic retinopathy. R. at 451-475. The Court lacks jurisdiction over that claim, and it will not be addressed further.
See 38 U.S.C. §§ 7252(a), 7266(a); Howard v. Gober, 220 F.3d 1341, 1344 (Fed. Cir. 2000).

neuropathy of the left upper and lower and right lower extremities, and it will remand those matters for further proceedings consistent with this decision. The decision will otherwise be affirmed.

I. FACTS
The appellant served in the U.S. Army from July 22, 1963, to December 20, 1963, and from
August 5, 1964, to August 13, 1968, including service in Vietnam. R. at 433, 435, 1546, 1649. In
January 1987, the Roanoke, Virginia, VA regional office (RO) issued a decision granting entitlement
to service connection for PTSD; the RO assigned a 30% disability rating effective July 7, 1986. R.
at 1531-32. In November 2005, the RO issued a decision that granted a 50% evaluation for PTSD,
effective August 5, 2005, and granted entitlement to service connection for diabetes mellitus, erectile
dysfunction, peripheral neuropathy of the right and left upper and lower extremities, and entitlement
to special monthly compensation for loss of use of a creative organ, all effective August 5, 2005.
R. at 1322-30. The appellant filed a request for an increased rating for his diabetes in July 2006,
asserting that his condition had worsened and asking for compensation for all residuals, including
hypertension and erectile dysfunction. R. at 1309.
In November 2006, the appellant underwent a VA compensation and pension (C&P)
examination for diabetes. R. at 874-77. The examiner, Dr. George W. Ford, diagnosed the appellant
with diabetes mellitus, type 2, hypertension, “not due to diabetes mellitus,” erectile dysfunction, and
“severe peripheral neuropathy” of the upper and lower extremities. R. at 877. Dr. Ford reported that
the appellant’s laboratory tests were normal except for his blood glucose levels and sugar in his urine.
Id. In December 2006, the RO issued a decision that granted a noncompensable rating for
retinopathy but denied entitlement to service connection for hypertension and to increased ratings
for right and left upper and lower extremity peripheral neuropathy, erectile dysfunction, and diabetes
mellitus. R. at 856-64. The appellant filed a Notice of Disagreement (NOD) in July 2007, along
with a claim for an increased rating for his PTSD. R. at 850-51.
After affording the appellant with a C&P PTSD examination in December 2007, R. at 821-
25, the RO issued a decision in February 2008 that denied entitlement to an increased rating for
PTSD and a total disability rating based on individual unemployability (TDIU), R. at 814-20. The
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appellant filed an NOD in February 2008. R. at 811. The appellant ultimately perfected his appeals
to the Board in March and September 2008. R. at 621-22, 777.
In March 2010, the appellant underwent additional C&P examinations for PTSD and
diabetes. R. at 561-66, 568-72. In the PTSD examination report, the examiner opined that the
appellant’s hypertension was not due to his diabetes. R. at 565. She also stated that the evidence did
not show visual impairment or kidney disease. Id.
At a hearing before the Board in July 2010, the appellant testified that he was taking insulin
three times per day, but that his diabetes was not yet under control. R. at 505-06. The appellant’s
representative also stated, somewhat confusingly, that the appellant was withdrawing his claim for
a disability rating greater than 30% for peripheral neuropathy of his right arm. R. at 502-04.
At a VA neurology consultation in January 2011, the appellant reported periods of leg
weakness and radiating pain in his lower back and legs. R. at 293. The examiner, Dr. William
Tingler, diagnosed the appellant with several conditions, including “diabetic amyotrophy that has
plateaued,” degenerative spine disease, and claudication. R. at 294. Dr. Tingler stated that he would
like to obtain a magnetic resonance imaging (MRI) scan of the appellant’s low back but could not,
as the appellant “is extremely claustrophobic.” Id. Dr. Tingler also stated that he planned to conduct
an electromyography (EMG) nerve conduction study and a carotid duplex scan; he noted that he
would”await the results” of the EMG study and would “see [the appellant] back at that time.” R. at
294-95. The record also includes a January 13, 2011, note from Dr. Tingler reporting that he called
the appellant with the results of the carotid duplex scan. R. at 290.
On October 24, 2011, the Board issued the decision here on appeal. R. at 451-75. In it, the
Board determined that the appellant’s C&P examinations were adequate for rating purposes and that
VA had otherwise satisfied its duty to assist. R. at 456-57. With respect to the appellant’s
hypertension claim, the Board determined that the medical evidence of record did not indicate that
the appellant’s hypertension was related to his diabetes. R. at 459-60. The Board also determined
that the appellant was not entitled to increased disability ratings for his service-connected disabilities.
R. at 462-72. Finally, the Board determined that the appellant had withdrawn his claim for an
increased disability rating for right upper extremity peripheral neuropathy. R. at 461-62.
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II. ANALYSIS
A. Withdrawn Claim
Although the appellant argues that the Board clearly erred when it determined that his claim for an increased rating for peripheral neuropathy of the right upper extremity had been withdrawn, Appellant’s Brief (Br.) at 23-24, he has not met his burden of demonstrating such error. See 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) (table). In particular, although the appellant asserts that the testimony given by his representative at the July 2010 Board hearing was confusing, Appellant’s Br. at 24, the hearing transcript does not support his contentions, see R. at 502-03. While true that the appellant’s representative initially stated that the appellant wished to withdraw his appeal for an increased disability rating for peripheral neuropathy of the right lower extremity, R. at 502, the rest of the exchange between the representative and the Board member refers to withdrawal of the right upper extremity claim, as well as a 30% disability rating—which had only been assigned to the right upper extremity. R. at 503; see R. at 542. The Court is not “‘left with the definite and firm conviction that a mistake has been made'” and will therefore affirm the Board’s determination on this matter. Gilbert v. Derwinski, 1 Vet.App. 49, 52 (1990) (quoting United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948)).
B. Duty to Obtain Social Security Administration (SSA) Records
The appellant next challenges the Board’s determination that VA’s duty to assist was satisfied.
Appellant’s Br. at 10-15, 21-22. In particular, he argues that VA failed to obtain his SSA records.Id. at 21-22. In support of his argument, the appellant cites the March 2010 C&P examination, which indicates that he was “Social Security retired” as of November 2005, as he could not pass a required test due to his diabetes. R. at 566. Similarly, in May 2008, his representative submitted a statement requesting VA to obtain “his employment history from the [SSA].” R. at 760. The only other discussion of SSA benefits is in the November 2006 C&P examination, which states that the appellant was not in receipt of SSA disability benefits at that time. R. at 875. There is no indication that VA ever attempted to obtain the appellant’s SSA records, despite his representative’s explicit request that VA do so.
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The Court holds that the Board provided an inadequate statement of reasons or bases for its conclusion that VA had satisfied its duty to assist. In particular, although the appellant’s representative specifically requested that VA obtain the appellant’s SSA records, VA did not do so, and the Board did not discuss these records or whether VA had a duty to obtain them. See Golz v. Shinseki, 590 F.3d 1317, 1323 (Fed. Cir. 2010) (“As long as a reasonable possibility exists that the records are relevant to the veteran’s claim, VA is required to assist the veteran in obtaining the identified records.”). The Board’s failure to provide such a discussion frustrates the Court’s review of the Board’s finding that the duty to assist was satisfied, thereby rendering the statement of reasons or bases inadequate. See 38 U.S.C. § 7104(d)(1); Allday v. Brown, 7 Vet.App. 517, 527 (1995); Gilbert, 1 Vet.App. at 56-57. The Court will therefore vacate the Board’s decision as to the
appellant’s claims for entitlement to service connection for hypertension and to increased disability
ratings for diabetes mellitus, PTSD, and peripheral neuropathy of the left upper and lower and right
lower extremities.
On remand, the Board must address whether VA has a duty to obtain the appellant’s SSA
records and, if so, must attempt to obtain them. The appellant is free to submit additional evidence
and argument, including the arguments raised in his briefs to this Court, in accordance with
Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999) (per curiam order), and the Board must
consider any such evidence or argument submitted. See Kay v. Principi, 16 Vet.App. 529, 534
(2002). The Board 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).
C. Other Matters
Although the Court has determined that a remand is necessary, it will address several of the
appellant’s remaining arguments. See Quirin v. Shinseki, 22 Vet.App. 390, 396 (2009) (holding that
the Court may address an appellant’s other arguments to provide guidance on remand).

1. Adequacy of Medical Examinations
The appellant asserts that the November 2006 and March 2010 C&P examinations for his diabetes and its complications were inadequate for rating purposes. Appellant’s Br. at 8-15. In particular, he asserts that the examinations were not sufficiently thorough, as the examiners did not order EMG conduction studies or carotid duplex scans, even though Dr. Tingler found those scans
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warranted in January 2011. Appellant’s Br. at 10-13. He also asserts that the March 2010 examination was unclear as to whether certain findings attributed to his lower left extremity were also attributable to his upper left extremity, citing a “mistaken” finding in the Board’s decision.
Appellant’s Br. at 12. Finally, he asserts that the examinations do not reveal the current state of his diabetes, as they did not consider elevated levels of microalbuminuria as evidenced on subsequent treatment records. Appellant’s Br. at 13-15.
Although the appellant argues that the November 2006 and March 2010 examinations were rendered inadequate by a January 2011 notation that additional tests were necessary, he fails to articulate a rationale as to why a subsequent finding that additional tests would be useful affects the prior judgment of the medical examiners. See Appellant’s Br. at 10-13. It is within each individual examiner’s discretion to determine whether additional testing is necessary, and both this Court and the Board are entitled to presume an examiner’s competence absent clear evidence to the contrary.
Sickels v. Shinseki, 643 F.3d 1362, 1366 (Fed. Cir. 2011); Cox v. Nicholson, 20 Vet.App. 536, 569(2007). The argument proffered by the appellant falls short of this standard, and the Court thus cannot conclude that the Board clearly erred when it found that the examinations were adequate. See Hilkert, 12 Vet.App. at 151; see also Nolen v. Gober, 14 Vet.App. 183, 184 (2000) (Board’s determination that the Secretary satisfied the duty to assist is a finding of fact reviewed under the “clearly erroneous” standard of review).
To the extent that the appellant argues that the Board had a duty to clarify the March 2010 examination or that the Board’s statement of reasons or bases was inadequate in this regard, the appellant is free to raise this issue on remand. See Kay and Kutscherousky, both supra.
Finally, the Court rejects the appellant’s argument that notations of microalbuminuria in September 2010 and January 2011 treatment records impact the adequacy of the November 2006 and March 2010 examinations as to the issue of hypertension. Appellant’s Br. at 13-15 (citing R. at 290, 308). The appellant cites an online source for the proposition that microalbuminuria is “an early marker for renal disease in patients with diabetes,” Appellant’s Br. at 14 n.5 (emphasis removed), which, he argues for the first time on appeal, is evidence supporting his assertion that his hypertension is secondary to his service-connected diabetes, id. at 14. The Court lacks jurisdiction
to consider evidence not before the Board, see 38 U.S.C. § 7252(b), and this evidence is not the
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appropriate subject of judicial notice, see Jones v. Shinseki, 26 Vet.App. 56, 64 (2012) (treatise evidence should generally be weighed by the Board in the first instance). Moreover, neither the appellant nor his counsel has demonstrated that they possess any medical expertise, and the Court cannot accept the appellant’s counsel’s lay assertions as evidence that the appellant’s hypertension is related to his diabetes. See Hyder v. Derwinski, 1 Vet.App. 221, 225 (1991) (“Lay hypothesizing . . . serves no constructive purpose and cannot be considered by the Court.”).

2. Unadjudicated Claim
The appellant asserts that the Board erred by failing to adjudicate a claim for peripheral vascular disease (PVD), to include whether it was related to his service-connected diabetes. Appellant’s Br. at 22-23. He concedes that he did not expressly file a claim for PVD, but he argues that such a claim was reasonably raised by the record. Appellant’s Br. at 22. In support of this
assertion, the appellant cites a January 2008 VA psychiatry outpatient treatment note that includes PVD on a list of diagnoses. Id. (citing R. at 740). Despite the appellant’s apparent contentions to the contrary, “a newly diagnosed disorder, whether or not medically related to a previously diagnosed disorder, can not be the same claim when it has not been previously considered.” Ephraim v. Brown, 82 F.3d 399, 401 (Fed. Cir. 1996). As the appellant’s PVD is a distinct diagnosis from his serviceconnected conditions, it cannot be part of his claims for increased disability ratings for diabetes or peripheral neuropathy. Id.; see Boggs v. Peake, 520 F.3d 1330, 1336 (Fed. Cir. 2008) (“[C]laims based on separate and distinctly diagnosed diseases or injuries must be considered separate and
distinct claims.”); Clemons v. Shinseki, 23 Vet.App. 1, 9 (2009) (a prior, final decision on one
diagnosis justifies separating new diagnoses into separate claims). Absent an adjudication by the
RO in the first instance and a jurisdiction-conferring NOD, neither the Board nor the Court has
jurisdiction over a claim for PVD.2 See Jarrell v. Nicholson, 20 Vet.App. 326, 331 (2006); see also
38 U.S.C. § 7105(a). To the extent that the appellant believes that he is entitled to compensation for

2 Indeed, the appellant appears to expressly acknowledge the jurisdictional impediment to his unadjudicated claim argument insofar as he argues that “the Board erred when it did not refer claim for bilateral lower extremity PVD to the RO for development and adjudication.” Appellant’s Br. at 23 (emphasis added); see Bowen v. Shinseki, 25 Vet.App. 250 (2012) (“[W]hen the Board lacks jurisdiction over a matter, the referral of the matter to the RO is the
appropriate action.”). The Court is puzzled as to why counsel for the appellant is arguing for a Court remand regarding a claim that neither the Board nor the RO has adjudicated. If the appellant truly wanted “expeditious” processing of his claim, he should have simply brought it to the attention of the RO.
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PVD—regardless of whether any claims may currently be pending and unadjudicated—he should pursue those matters with his RO. See DiCarlo v. Nicholson, 20 Vet.App. 52, 56 (2006). Otherwise, any issue related to that claim—including when it was first filed—may be raised to the Secretary and
reviewed by the Court if it ever becomes relevant and contested. See Ingram v. Nicholson, 21 Vet.App. 232, 254 (2007).

III. CONCLUSION
After consideration of the parties’ briefs and a review of the record, the Board’s October 24, 2011, decision is VACATED as to the appellant’s claims for entitlement to service connection for hypertension and for entitlement to increased disability rating for diabetes mellitus, PTSD, and peripheral neuropathy of the left upper and lower and right lower extremities, and those matters are REMANDED to the Board for further proceedings consistent with this decision. The Board decision is otherwise AFFIRMED.
DATED: April 22, 2013
Copies to:
Jeany C. Mark, Esq.
VA General Counsel (027)
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