Veteranclaims’s Blog

April 26, 2013

Single Judge Application; 38 C.F.R. § 3.156(c)(1) (2012); Reconsideration of Claim

Excerpt from decision below:

“Mr. Morse’s claim was reconsidered pursuant to 38 C.F.R. § 3.156(c)(1) (2012) as a result of the receipt of service department records – which were not previously in Mr. Morse’s claims file – confirming Mr. Morse’s stressor.
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“However, the Board failed to recognize, or at least failed to note, several gaps in the development of Mr. Morse’s claim that became reasonably apparent once an in-service stressor was confirmed, to include (1) whether an inquiry should have been made to the March 1990 private examiner to
determine what stressor his PTSD diagnosis was based on, see Savage v. Shinseki, 24 Vet.App. 259, 270 (2011) (finding that the Board’s duty to seek clarification of medical examinations applies to private examination reports in limited circumstances), and (2) whether a medical review of Mr. Morse’s symptoms prior to January 21, 2004, might help establish the onset date of his PTSD due to his in-service stressor, see Chotta v. Peake, 22 Vet.App. 80, 85 (2008) (holding that the duty to assist “may include obtaining a retrospective medical opinion” especially when there is an absence of medical record for an extended time period); McLendon v. Nicholson, 20 Vet.App. 79, 83 (2006)(holding that 38 U.S.C. § 5103A(d)(2) requires that a medical opinion to be provided where the evidence indicates that a claim has merit but is insufficient to grant the claim).”
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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 12-681
WILLIAM J. MORSE, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before KASOLD, Chief Judge.

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

KASOLD, Chief Judge: Veteran William J. Morse appeals through counsel a
January 5, 2012,decision of the Board of Veterans’ Appeals (Board) that granted an effective date of January 21, 2004, but no earlier, for benefits for service-connected post-traumatic stress disorder(PTSD). Mr. Morse argues that the Board erred by finding that the Secretary met the duty to assist because a retrospective medical examination or opinion was necessary to rendering a proper decision, but was not obtained. The Secretary disputes this contention. Single-judge disposition is appropriate. Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). For the reasons stated below, the decision of the Board will be set aside and the matter remanded for further adjudication.
The record of proceedings (ROP) supports Mr. Morse’s argument. Mr. Morse originally filed his claim in June 1992. It was denied in a January 1993 rating decision based on, inter alia, the RO assigning greater weight to an October 1992 VA medical opinion (diagnosing Mr. Morse with a generalized anxiety disorder with depressive features rather than PTSD) than was given to a March
1990 private medical record diagnosing PTSD but failing to provide any information regarding the stressor upon which the PTSD diagnoses was based. Mr. Morse’s claim was reconsidered pursuant to 38 C.F.R. § 3.156(c)(1) (2012) as a result of the receipt of service department records – which were not previously in Mr. Morse’s claims file – confirming Mr. Morse’s stressor.

The Board correctly noted that under § 3.156(c)(1) the proper effective date may be the date of Mr. Morese’s original claim or the date entitlement arose, whichever was later. The Board assigned January 21, 2004, as the effective date because it was the date of the VA examination that diagnosed Mr. Morse with PTSD based on the in-service stressor confirmed by Mr. Morse’s newly acquired service records. The Board noted the March 1990 private medical record diagnosing PTSD, but determined that the record could not serve as the basis for an effective date because it did not provide any information regarding the stressor upon which the PTSD diagnosis was based.
However, the Board failed to recognize, or at least failed to note, several gaps in the development of Mr. Morse’s claim that became reasonably apparent once an in-service stressor was confirmed, to include (1) whether an inquiry should have been made to the March 1990 private examiner to
determine what stressor his PTSD diagnosis was based on, see Savage v. Shinseki, 24 Vet.App. 259, 270 (2011) (finding that the Board’s duty to seek clarification of medical examinations applies to private examination reports in limited circumstances), and (2) whether a medical review of Mr. Morse’s symptoms prior to January 21, 2004, might help establish the onset date of his PTSD due to his in-service stressor, see Chotta v. Peake, 22 Vet.App. 80, 85 (2008) (holding that the duty to assist “may include obtaining a retrospective medical opinion” especially when there is an absence of medical record for an extended time period); McLendon v. Nicholson, 20 Vet.App. 79, 83 (2006)(holding that 38 U.S.C. § 5103A(d)(2) requires that a medical opinion to be provided where the evidence indicates that a claim has merit but is insufficient to grant the claim).

The Board’s failure to address these reasonably raised issues frustrates judicial review. Allday v. Brown, 7 Vet.App. 517, 527 (1995) (holding that the Board’s statement “must be adequate to enable claimant to understand the precise basis for the Board’s decision, as well as to facilitate review in this Court”). Remand is warranted. Tucker v. West, 11 Vet.App. 369, 374 (1998) (remand is appropriate “where the Board has incorrectly applied the law, failed to provide an adequate statement of reasons or bases for its determinations, or where the record is otherwise inadequate”).
On remand, Mr. Morse may present any additional evidence and argument in support of the matter remanded, and the Board must consider any evidence and argument so presented. See Kay v. Principi, 16 Vet.App. 529, 534 (2002). This matter is to be provided expeditious treatment on remand. See 38 U.S.C. § 7112.
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Accordingly, the March 5, 2012, decision of the Board will be SET ASIDE and the matter
REMANDED for further adjudication.
DATED: April 25, 2013
Copies to:
Robert V. Chisholm, Esq.
VA General Counsel (027)
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