Veteranclaims’s Blog

May 23, 2013

Single Judge Application; Sizemore, 18 Vet.App. at 275; cf. Colayong v. West, 12 Vet.App. 524, 534-35 (1999); Medical Examiner’s Over Reaching

Excerpt from decision below:

“The Board erred in relying on the February 2010 VA physician’s opinion because it contains an unsupported and inconsistent medical conclusion. Namely, the February 2010 VA physician stated that the May 2007 VA examination report, which found that there was “[n]o objective evidence of disease in the lumbosacral spine (R. at 314), was “more accurate” than the December 2008 private physician’s opinion (R. at 619). However, he twice acknowledged later in his opinion that Mr. Townsend suffers from “degenerative lumbar spine disease” and “degenerative changes in the spine.” R. at 619-20; see also R. at 619 (stating that September 2008 x-rays revealed lumbar disc dessication and bulging). Insofar as the February 2010 VA physician was adopting the May 2007 VA examiner’s finding that Mr. Townsend does not have a lumbar spine disability while also twice acknowledging that Mr. Townsend has such a disability, his opinion is internally inconsistent and of minimal probative value. See Nieves-Rodriguez, supra. Yet, the Board failed to recognize and resolve this inconsistency, finding that the February 2010 opinion was “the most probative opinion” of record because it “best discussed the underlying medical rationale of his opinion against the claim.” R. at 15. The Board’s failure to address the conflict within that opinion necessitates remand. See Caluza v. Brown, 7 Vet.App. 498, 506 (1995) (holding that the Board errs when it fails to evaluate the credibility and 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); Gilbert, supra.”
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“This framework makes clear that the Board errs when it relies on a medical examiner’s opinion on a legal matter. See, e.g., D’Aries, 22 Vet.App. at 106 (“[T]he benefit of the doubt is a legal construct to be applied by an adjudicatory body . . . , not by a medical professional when rendering an opinion.”); Moore, 21 Vet.App. at 218 (noting that it is the duty of VA adjudicators, not medical examiners, to apply the appropriate legal standard); Sizemore v. Principi, 18 Vet.App. 264, 275 (2004) (faulting a VA examiner for “expressing an opinion on whether the appellant’s claimed in-service stressors have been substantiated, [which] is a matter for determination by the Board and not a medical matter”). When an examiner makes factual findings and legal
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determinations, a new medical examination may be necessary to “remove whatever taint there may be from [the examiner’s] overreaching.” Sizemore, 18 Vet.App. at 275; cf. Colayong v. West, 12 Vet.App. 524, 534-35 (1999) (remanding the claim for a new independent medical examination because the previous examination was obtained by “tainted process”); Bielby v. Brown, 7 Vet.App. 260, 268-69 (1994) (same).

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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 12-0507
LARRY TOWNSEND, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before BARTLEY, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
BARTLEY, Judge: Veteran Larry Townsend appeals, through counsel, a December 7, 2011,
decision of the Board of Veterans’ Appeals (Board) denying entitlement to service connection for
a low back disability. Record (R.) at 3-17. This appeal is timely and the Court has jurisdiction to
review the Board’s decision pursuant to 38 U.S.C. §§ 7252(a) and 7266(a). Single-judge disposition
is appropriate in this case. See Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). For the reasons
that follow, the Court will set aside the December 2011 Board decision and remand the matter for
further development and readjudication consistent with this decision.
I. FACTS
Mr. Townsend served on active duty in the U.S. Army from March 1976 to March 1979. R.
at 677. His service medical records contain various complaints of low back pain during that time.
R. at 516 (June 1975), 487 (June and July 1975), 490 (September 1977), 491 (January 1979). Mr.
Townsend had several periods of active duty for training (ACDUTRA) following his active duty
service. R. at 4. During one such period in August 1981, Mr. Townsend was involved in a motor
vehicle accident (MVA), in which a military truck turned over and the veteran was found on the
ground with an injured right hip and low back. R. at 375, 395-99, 408-10. He was provisionally
diagnosed with post-traumatic low back pain and a possible muscle contusion (R. at 409-10) and was
assigned one month of light duty (R. at 10, 312). A month later, Mr. Townsend sought treatment for
increased low back pain. R. at 411.
In late 1988, Mr. Townsend filed a claim for service connection for a low back disability,1
which was denied by a VA regional office (RO) in April 1989 because he failed to report for a
scheduled VA medical examination. R. at 455-56. He did not appeal that decision and it became
final.
In October 1989, Mr. Townsend requested that the RO reopen his previously denied claim.
R. at 443-49. He underwent a VA orthopedic examination in June 1990 and was diagnosed with low
back pain with a history of injury. R. at 422. A VA neurologic examination performed the following
month revealed no neurologic abnormalities. R. at 423. In February 1991, the RO issued a rating
decision declining to reopen his claim. R. at 393.2 A month later, Mr. Townsend submitted
additional evidence (R. at 394-400), but the RO issued a confirmed rating decision continuing to
deny his claim because the evidence was not new and material (R. at 392-93). Mr. Townsend did
not appeal that decision and it became final.
In October 2006, Mr. Townsend sought treatment at a VA physical therapy clinic for low
back and neck pain that he said originated in 1981 and has “gradually gotten worse” over the years.
R. at 342-43. Later that month, he submitted another request to reopen his claim for service
connection for a low back disability. R. at 376. In May 2007, Mr .Townsend underwent a VA joints
examination, at which he complained of continuous and gradually increasing low back pain since
the 1981 MVA. R. at 312. A physical examination of his back revealed a “normal range of motion,”
and x-rays of the lumbosacral spine revealed no abnormalities except for age-related “anterior
spurring on the margins of the lower three vertebra.” R. at 313. The examiner’s impression was
“[n]o objective evidence of disease in the lumbosacral spine,” and he opined that the veteran’s “5/5
1The Secretary indicates that Mr. Townsend filed that claim in December 1988, but the record of proceedings
does not contain a copy of the application even though the Secretary cited it in his brief. See Secretary’s Brief (Br.) at
2 (citing R. at 461-62, 464-65); see also U.S. VET. APP. R. 28.1(a)(B) (requiring the Secretary to prepare and file the
record of proceedings, which must include, inter alia, “any document from the record before the agency cited in a brief”).
2Once again, although the Secretary cited the February 1991 RO decision in his brief, he did not include a copy
of that decision in the record of proceedings. See supra note 1.
2
positive Waddell signs[3] on his back examination indicat[e] . . . rather extreme pain behavior and
exaggeration of symptomatology.” R. at 314.
Also in May 2007, Mr. Townsend was afforded a VA post-traumatic stress disorder
examination, which noted, in pertinent part, that he had been denied Social Security disability
benefits two years earlier. R. at 306. In June 2007, the RO reopened the claim but denied service
connection for a low back disability. R. at 297-303. He filed a timely Notice of Disagreement with
that decision (R. at 288) and, in November 2007, the RO issued a Statement of the Case that stated,
inter alia, that a “Social Security Administration SHARE DATA report dated 09-08-07 indicates
veteran denied entitlement to vested benefits administered by said agency” (R. at 181). Mr.
Townsend subsequently perfected his appeal to the Board and requested a hearing. R. at 151-52.
At a September 2008 Board hearing, Mr. Townsend testified that his low back pain began
after the 1981 MVA, but that he did not seek treatment for that condition until 1985 because he was
not aware that he was eligible to receive VA medical care. R. at 107. Mr. Townsend also stated that
he was currently receiving Social Security disability benefits for his back, neck, and hip disabilities.
R. at 110.
Mr. Townsend subsequently submitted additional medical documents in support of his claim,
including a September 2008 MRI report from a private hospital that revealed degenerative disc
changes of the cervical and thoracic segments of the spine, cervical spondylosis, and multilevel facet
disease (R. at 61, 73, 84) and a September 2008 VA radiology report confirming those findings (R.
at 55-57). He also submitted a December 2008 letter from a private physician that states, in pertinent
part:
Mr. Townsend suffers from lumbar degenerative disk disease, lumbar radiculitis,
cervical spondylosis and cervical facet arthropathy with mechanical neck pain that
radiates into the trapezius muscles but not down the arms. Mr. Townsend reports his
pain is related to a military injury in August 1981. Mr. Townsend has had persistent
pain and problems since this reported fall and the degenerative changes could
certainly be related to this incident.
3″Waddell signs” are ” five signs indicating that a patient’s low back pain is being intensified by psychological
factors: tenderness that is not localized but spread over a wide area; production of pain by rotation of the pelvis or
shoulders; decrease in pain behavior when the patient is distracted by the examiner; weakness or sensory disturbance that
is not limited in a normal anatomic distribution; and overreaction, i.e.[,] excessive body language or verbalization during
the examination.” DORLAND’S ILLUSTRATED MEDICAL DICTIONARY 1716 (32d ed. 2012).
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R. at 54 (emphasis added).
In January 2010, the Board reopened the claim for service connection for a low back
condition and remanded the matter for further development. R. at 30-49. Specifically, the Board
instructed the RO to obtain a supplemental medical opinion to “try and resolve the conflict between
the May 2007 VA examiner’s opinion versus the more recent opinions to the contrary provided in
September and December 2008” and to “determine whether it is at least as likely as not the Veteran’s
lumbar degenerative disc disease is attributable, even at least partly, to the documented injury he
sustained in August 1981.” R. at 46; see also R. at 547-48 (VA examination request).
In February 2010, a VA physician provided the requested opinion. R. at 617-20. The
physician first noted that, contrary to VA’s characterization, the September 2008 MRI report was not
an “opinion” but merely a summary of imaging studies. R. at 619. He then stated, in pertinent part:
Based upon a review of the entire body of available records, I think that it is more
likely than not that the opinion of the examiner from 05/17/2007 is more likely than
not more accurate than the opinion given [dated December 2008]. It is noted that the
examiner from 05/17/2007 had reviewed the [claims]-file in the formulation of his
opinion. It does not appear that [the private physician] had the benefit of reviewing
the [claims]-file. It is noted that he indicated that the Veteran “reports his pain as
related to a military injury in August of 1981.” This is basing his opinion upon
history only rather than based upon review of the medical evidence of record. In
addition, he reported that the degenerative changes “could” certainly be related to this
incident. In matters of impairment and disability claims, use of the word “could”
implies possibility rather than probability, and in disability evaluations, possibility
represents less than a 50% likelihood of an occurrence. It is more likely than not that
the degenerative changes in the spine are the result of activities of daily living and
age. Muscle strains of the back and other areas of the body are generally self-limited
and not expected to cause problems over many years or for the rest of one’s life.
Lumbar strain is considered to be a self-limited soft tissue injury to the spinous
ligaments and paraspinous soft tissues. Degenerative spine and disc disease is a
common problem in the population at large and increases with increasing age. There
is no medical evidence that strain causes, predisposes to or accelerates the
development of degenerative spine and disc disease. As such, it is unlikely that his
lumbar strain in the service is responsible for the degenerative lumbar spine disease.
There was no indication in any of the records that the changes of the lumbar spine
were posttraumatic in nature. In addition, there was no indication in his medical
records of him having complaints of neck pain, yet the imaging studies also show
rather extensive degenerative changes of the cervical spine. These are also
representative of degenerative changes associated with the aging process.
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R. at 619-20.
The RO issued a Supplemental Statement of the Case (SSOC) in June 2011, which continued
to deny Mr. Townsend’s claim for service connection for a low back disability. R. at 570-78. The
veteran responded to the SSOC by indicating that he had no further evidence to submit to VA. R.
at 566-69.
In December 2011, the Board issued the decision currently on appeal, which denied
entitlement to service connection for a low back disability. R. at 3-17. The Board first found that
VA had satisfied its duty to assist because Mr. Townsend did not identify any outstanding evidence
relevant to his claim and he averred in June 2011 that he had no further evidence to submit. R. at
7. Turning to the merits of the claim, the Board determined that, although Mr. Townsend has a
current low back disability and injured his low back in the August 1981 MVA while on ACDUTRA,
the preponderance of the evidence was against finding a nexus between that disability and his
service. R. at 5.
In reaching that conclusion, the Board indicated that the May 2007 VA joints examination
report and December 2008 private physician’s opinion contained conflicting conclusions regarding
nexus (R. at 12) and turned to the February 2010 VA medical opinion to resolve that conflict (R. at
13-15). The Board noted each of the February 2010 VA examiner’s stated reasons for preferring the
May 2007 VA joints examination over the December 2008 private physician’s opinion–i.e., the
private physician did not have access to the veteran’s claims file, the opinion was based on the
veteran’s statements rather than a review of the record, and the opinion was phrased in speculative
terms. R. at 13-14. The Board apparently adopted the examiner’s first and third reasons for favoring
the May 2007 VA joints examination, but rejected the second reason. R. at 13 (explaining that
failure to review the claims file “may affect the probative value of the opinion if, as here, the doctor
commenting overlooked or did not account for or consider relevant facts that may have affected or
even changed the outcome of the opinion or certain conclusions or assumptions made in the forming
of the opinion” (emphasis added) (citing Nieves-Rodriguez v. Peake, 22 Vet.App. 295, 304 (2008)));
id. (stating that the “private physician’s reliance on the history the Veteran apparently had recounted
is not reason enough, alone, to undermine the opinion, unless the history the Veteran had provided
to him was not credible,” and concluding that was not the case here (citing, inter alia, Kowalski v.
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Nicholson, 19 Vet. App. 171 (2005)); R. at 14 (outlining the caselaw “discussing the lesser probative
value of opinions like this that are equivocal” (emphasis added) (citing, inter alia, Tirpak v.
Derwinski, 2 Vet.App. 609 (1992))).
The Board then explained that the February 2010 VA medical examiner’s negative nexus
opinion was “the most probative opinion on the determinative issue of causation” because the
examiner “based his opinion on a comprehensive review of the file”; “best discussed the underlying
medical rationale of his opinion against the claim”; “cited to specific evidence in the file, or lack of
it in certain instances, to disassociate the lumbar spine and disc disease from the [August 1981
MVA].” R. at 15. The Board also stated that, “although not [an] apparent reason for concluding
unfavorably,” the examiner addressed the veteran’s low back complaints during active duty and “did
not [] find [them] suggestive of the later diagnosed lumbar spine and disc disease.” Id. This appeal
followed.
II. ANALYSIS
A. The February 2010 VA Medical Opinion
Mr. Townsend first argues that the February 2010 VA medical opinion was inadequate for
rating purposes and the Board therefore erred in relying on it. See Appellant’s Br. at 8-14. The
Secretary’s duty to assist includes “providing a medical examination or obtaining a medical opinion
when such an examination or opinion is necessary to make a decision on the claim.” 38 U.S.C.
§ 5103A(d)(1); see 38 C.F.R. § 3.159(c) (2012). A VA medical examination or opinion is adequate
“where 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 of the claimed
disability will be a fully informed one.'” Stefl v. Nicholson, 21 Vet.App. 120, 123 (2007) (quoting
Ardison v. Brown, 6 Vet.App. 405, 407 (1994)) (internal quotation marks omitted); see Green v.
Derwinski, 1 Vet.App. 121, 124 (1991). A medical examination report or opinion must also “contain
not only clear conclusions with supporting data, but also a reasoned medical explanation connecting
the two.” Nieves-Rodriguez v. Peake, 22 Vet.App. 295, 301 (2008). As with any finding on a
material issue of fact and law presented on the record, the Board must support its finding that a
medical opinion was adequate with an adequate statement of reasons or bases that enables the
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claimant to understand the precise basis for that finding and facilitates review in this Court. See 38
U.S.C. § 7104(d)(1); D’Aries v. Peake, 22 Vet.App. 97, 104 (2008); Gilbert v. Derwinski, 1 Vet.App. 49, 52 (1990).
The Board erred in relying on the February 2010 VA physician’s opinion because it contains an unsupported and inconsistent medical conclusion. Namely, the February 2010 VA physician stated that the May 2007 VA examination report, which found that there was “[n]o objective evidence of disease in the lumbosacral spine (R. at 314), was “more accurate” than the December 2008 private physician’s opinion (R. at 619). However, he twice acknowledged later in his opinion that Mr. Townsend suffers from “degenerative lumbar spine disease” and “degenerative changes in the spine.” R. at 619-20; see also R. at 619 (stating that September 2008 x-rays revealed lumbar disc dessication and bulging). Insofar as the February 2010 VA physician was adopting the May 2007 VA examiner’s finding that Mr. Townsend does not have a lumbar spine disability while also twice acknowledging that Mr. Townsend has such a disability, his opinion is internally inconsistent and of minimal probative value. See Nieves-Rodriguez, supra. Yet, the Board failed to recognize and resolve this inconsistency, finding that the February 2010 opinion was “the most probative opinion” of record because it “best discussed the underlying medical rationale of his opinion against the claim.” R. at 15. The Board’s failure to address the conflict within that opinion necessitates remand. See Caluza v. Brown, 7 Vet.App. 498, 506 (1995) (holding that the Board errs when it fails to evaluate the credibility and 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); Gilbert, supra.
Moreover, although the Court does not agree with Mr. Townsend’s additional argument that
the Board erred in delegating its authority to assess the competing medical opinions of record to a
the February 2010 VA physician (see Appellant’s Br. at 8-14), the Court is persuaded that the VA
physician engaged in factfinding and legal analysis that went beyond his area of expertise, and the
Board therefore erred in adopting the physician’s factual and legal findings as its own. VA medical
examiners and VA adjudicators have distinct and separate roles in the veterans benefits system:
“The medical examiner provides a disability evaluation and the rating specialist interprets medical
reports in order to match the rating with the disability.” Moore v. Nicholson, 21 Vet.App. 211, 218
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(2007), rev’d on other grounds sub nom. Moore v. Shinseki, 555 F.3d 1369 (Fed. Cir. 2009). This
division of responsibilities is based on the differing types of expertise possessed by medical examiners versus adjudicators.
Specifically, VA medical examiners are “nothing more or less than expert witnesses” who provide opinions on medical matters. Nieves-Rodriguez, 22 Vet.App. at 302; see Gabrielson v. Brown, 7 Vet.App. 36, 40 (1994) (noting that a medical opinion is “only that, an opinion” providing medical evidence). Their function is to provide VA adjudicators, who generally lack the expertise and competence to opine on medical matters, see Kahana v. Shinseki, 24 Vet.App. 428, 438 (2011)
(Lance, J., concurring); Colvin v. Derwinski, 1 Vet.App. 171, 172 (1991), with the medical information and analysis necessary to decide a claim. See 38 C.F.R. § 4.1 (2012) (“For the application of [the rating] schedule, accurate and fully descriptive medical examinations are required . . . .”); 38 C.F.R. § 4.10 (2012) (assigning to medical examiners the “the responsibility of furnishing . . . full description of the effects of disability upon the person’s ordinary activity”). In turn, VA adjudicators are charged with making findings of fact and law to determine a claimant’s entitlement to disability benefits. See Moore, supra; 38 C.F.R. § 3.100(a) (2012) (delegating the Secretary’s authority “to make findings and decisions . . . as to the entitlement of claimants to benefits” to, inter
alia, VA “adjudicative personnel”); 38 C.F.R. § 4.2 (2012) (“It is the responsibility of the rating specialist to interpret reports of examination . . . so that the current rating may accurately reflect the elements of disability present.”); VA ADJUDICATION PROCEDURES MANUAL REWRITE, pt. III, subpt.
iv, ch. 3, § A-9(j) (“Do not request a medical authority to make conclusions of law, which is a responsibility inherent to the rating activity.”).
This framework makes clear that the Board errs when it relies on a medical examiner’s opinion on a legal matter. See, e.g., D’Aries, 22 Vet.App. at 106 (“[T]he benefit of the doubt is a legal construct to be applied by an adjudicatory body . . . , not by a medical professional when rendering an opinion.”); Moore, 21 Vet.App. at 218 (noting that it is the duty of VA adjudicators, not medical examiners, to apply the appropriate legal standard); Sizemore v. Principi, 18 Vet.App. 264, 275 (2004) (faulting a VA examiner for “expressing an opinion on whether the appellant’s claimed in-service stressors have been substantiated, [which] is a matter for determination by the Board and not a medical matter”). When an examiner makes factual findings and legal
8

determinations, a new medical examination may be necessary to “remove whatever taint there may be from [the examiner’s] overreaching.” Sizemore, 18 Vet.App. at 275; cf. Colayong v. West, 12 Vet.App. 524, 534-35 (1999) (remanding the claim for a new independent medical examination because the previous examination was obtained by “tainted process”); Bielby v. Brown, 7 Vet.App. 260, 268-69 (1994) (same).
The record before the Board in January 2010 contained conflicting medical opinions as to
whether Mr. Townsend’s low back disability was related to service. See R. at 54, 312-15. The Board
determined that it was unable to reconcile those differing opinions without further medical evidence
and ordered a VA medical opinion “to try and resolve the conflict.” R. at 46. The Board was
permitted to seek such an advisory medical opinion, see Colvin, 1 Vet.App. at 175; 38 C.F.R.
§ 20.901(a) (2012), and, contrary to Mr. Townsend’s contention, there is nothing in VA’s request for
that opinion that amounts to a delegation of the Board’s authority to apply the law and make findings
of fact regarding the relative probity of the conflicting medical opinions. See R. at 547-48 (VA’s
request for “a supplemental medical opinion to try and resolve the conflict between the May 2007
VA examiner’s opinion versus the more recent opinions to the contrary provided in September and
December 2008,” with instructions to “specifically determine whether it is at least as likely as not
the Veteran’s lumbar degenerative disc disease is attributable, even at least partly, to the documented
injury he sustained in August 1981 when he fell or was thrown from a truck while on ACDUTRA”).
Thus, Mr. Townsend’s delegation-of-authority argument (see Appellant’s Br. at 8-14) must fail.
Nevertheless, despite the foregoing instructions from VA, the February 2010 VA physician
opined as to the legal sufficiency of the conflicting nexus opinions of record and made unwarranted
and unsupported factual assumptions unfavorable to the veteran’s claim, rather than simply
evaluating the medical reasoning underlying those opinions in accordance with the VA opinion
request. Specifically, the February 2010 physician criticized the December 2008 private physician
for failing to review Mr. Townsend’s claims file and for “basing his opinion upon history only rather
than . . . upon review of the medical evidence of record.” R. at 619. The February 2010 VA
physician also determined that the private physician’s opinion used language too equivocal to support
a claim for service connection. Id. (“In matters of impairment and disability claims, use of the word
‘could’ implies possibility rather than probability, and in disability evaluations, possibility represents
9

less than a 50% likelihood of an occurrence.”). Those comments relate to the probity of the
conflicting medical opinions of record, a matter outside of the physician’s area of expertise. See
Washington v. Nicholson, 19 Vet.App. 362, 367-68 (2005) (stating that it is the Board’s responsibility
to determine the probative value of the evidence). Not only that, the February 2010 VA physician’s
implication that it is wrong for an examiner to base his or her medical conclusions on a veteran’s
history is an inaccurate statement of the law. See Kowalski, 19 Vet.App. at 179 (holding that a
medical opinion may not be discounted solely on the rationale that it was based on a history given
by the veteran). Although the Board mentioned this misstatement in its decision, it failed to
recognize that the misstatement leaves doubt as to whether the 2010 physician gave proper
consideration to the veteran’s history–which VA had not rejected–in making his own medical
conclusions. By conducting such unwarranted factfinding and legal analysis, the February 2010 VA
physician exceed his authority and engaged in overreaching that tainted his opinion. See Sizemore,
supra. The Board therefore erred in relying on it. See Sizemore, Colayong, and Bielby, all supra.

B. Duty To Assist
Mr. Townsend also argues that the Board’s determination that VA satisfied its duty to assist
was clearly erroneous because VA was aware that he was receiving Social Security disability benefits
for a low back disability but did not attempt to obtain any records from the Social Security
Administration (SSA). See Appellant’s Br. at 14-18. The Secretary contends that Mr. Townsend
“has failed to meet his burden to demonstrate that any [SSA] records, if they exist, would be relevant
to his claim.” Id. The Court is not persuaded by the Secretary’s argument.
As an initial matter, the Court notes that Mr. Townsend concedes that he is “raising the issue
of VA’s failure to obtain his SSA records for the first time at the Court,” but urges the Court to
exercise its discretion to address this argument because he was represented by a non-attorney
representative from a veterans service organization before the Board. Appellant’s Br. at 17. The
Secretary responds that “[f]undamental fairness should persuade the Court to not allow [Mr.
Townsend] to raise this matter now for the first time” because his failure to raise the argument below
“deprived the Board of a fair opportunity to respond to it.” Secretary’s Br. at 13. Although the Court
may, in its discretion, decline to address issues raised for the first on appeal to this Court pursuant
to the exhaustion of remedies doctrine, the interests that are served by that doctrine are not present
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in this case. See Maggitt v. West, 202 F.3d 1370, 1377-78 (Fed. Cir. 2000). Namely, because the
Court has already determined that remand is warranted to remedy other Board errors, addressing Mr.
Townsend’s duty-to-assist argument now will preserve judicial and administrative resources by
affording the Board guidance on how to proceed on remand and hopefully avoiding further litigation
of this issue in the future. See id. (explaining that the “main” institutional interests served by the
exhaustion of remedies doctrine are the protection of agency administrative authority and the
promotion of judicial efficiency); Quirin v. Shinseki, 22 Vet.App. 390, 396 (2009) (holding that the
Court may address an appellant’s other arguments after determining that remand is necessary to
provide guidance to the Board). Accordingly, the Court will now turn to the merits of Mr.
Townsend’s duty-to-assist argument.
The Secretary has a duty to assist claimants in developing their claims. 38 U.S.C. § 5103A.
In disability compensation claims, “the assistance provided by the Secretary . . . shall include
obtaining . . . [a]ny other relevant records held by any Federal department or agency that the claimant
adequately identifies and authorizes the Secretary to obtain.” 38 U.S.C. § 5103A(c)(1)(C). Relevant
to this appeal, VA’s implementing regulation specifically lists SSA records among the Federal
agency records that VA is obligated to attempt to obtain. See 38 C.F.R. § 3.159(c)(2) (2012). VA’s
duty to attempt to obtain SSA records only extends to those records relevant to the veteran’s claim.
Golz v. Shinseki, 590 F.3d 1317, 1321-23 (Fed. Cir. 2010). “Relevant records for the purpose of
[section] 5103A are 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.” Id. at 1321.
Because “it is not the case that a record’s relevance can always be determined without reviewing the
record itself,” there “must be specific reason to believe [SSA] records may give rise to pertinent
information to conclude that they are relevant” and, thus, give rise to VA’s duty to attempt to obtain
those records. Id. at 1323. The Court reviews the Board’s determination that VA satisfied its duty
to assist under the “clearly erroneous” standard of review set forth in 38 U.S.C. § 7261(a)(4). See
Nolen v. Gober, 14 Vet.App. 183, 184 (2000).
Here, the record before the Board contained evidence that Mr. Townsend was seeking and
was eventually awarded Social Security disability benefits for various conditions, including his low
back disability, the disability that is the subject of his appeal. See R. at 110, 181, 306. More
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specifically, at the September 2008 Board hearing, Mr. Townsend expressly testified that he was
currently receiving Social Security disability benefits for his low back disability. R. at 110. His
testimony put VA on notice that SSA likely possessed records relevant to his low back claim and VA
was therefore required to attempt to obtain those records. See Golz, supra; Quartuccio v. Principi,
16 Vet.App. 183, 187-88 (2002) (remanding for VA to obtain SSA records where the veteran was
receiving Social Security disability benefits for the condition for which he was seeking service
connection); Woods v. Gober, 14 Vet.App. 214, 222 (2000) (same); Baker v. West, 11 Vet.App. 163,
169 (1998) (same); Murincsak v. Derwinski, 2 Vet.App. 363, 370-72 (1992) (concluding that VA
has a duty to obtain SSA records in connection with a request for a total disability rating based on
individual unemployability if VA has actual notice that the veteran was receiving SSA benefits); see
also Voerth v. West, 13 Vet.App. 117, 121 (1999) (holding that the duty to assist includes “the
responsibility to obtain any relevant records from the [SSA]”); Solomon v. Brown, 6 Vet.App. 396,
401 (1994) (“[W]here the VA is on notice that records supporting an appellant’s claim may exist, the
VA has a duty to assist the appellant to locate and obtain these records.”). However, the record does
not reflect that there was an attempt to do so. The Court therefore concludes that the Board’s
determination that VA had satisfied its duty to assist was clearly erroneous. See Nolen, supra.
Remand is warranted to provide Mr. Townsend with the assistance to which he was statutorily
entitled. See Tucker, supra.

III. CONCLUSION
Upon consideration of the foregoing, the December 7, 2011, Board decision is SET ASIDE
and the matter is REMANDED for further development and readjudication consistent with this
opinion.
DATED: May 20, 2013
Copies to:
Virginia A. Girard-Brady, Esq.
VA General Counsel (027)
12

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