Veteranclaims’s Blog

April 14, 2014

Single Judge Application; Board Cites Overruled Caselaw; King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012);

Excerpt from decision below:

“As a threshold matter, the Board’s decision facially violates the U.S. Court of Appeals for the Federal Circuit’s (Federal Circuit) holding in Davidson v. Shinseki. 581 F. 3d 1313, 1316 (Fed. Cir. 2009) (rejecting the view that “‘competent medical evidence is required . . . [when] the determinative
2

issue involves either medical etiology or medical diagnosis.'”) (quoting Jandreau v. Nicholson, 492 F.3d 1372, 1376–77 (Fed. Cir. 2007). The Board recognized the
appellant’s statements that “pain from the Veteran’s service-connected lumbosacral strain caused or contributed to his death.” R. at 12 (citing, inter alia, Espiritu v. Derwinski, 2 Vet.App. 492, 494-95 (1992)). The Board then found that “[a]s a layperson, the appellant is not competent to provide an opinion requiring medical knowledge, such as a question of medical causation” and “[a]s a result, her assertions cannot constitute competent medical evidence that a service-connected disability was related to the Veteran’s death.” R. at 12. The Board’s finding constitutes a categorical rejection of the appellant’s lay statements based on caselaw that has been overruled. Id.; see King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012) (observing that the Board “cite[d] case law, [e.g., Espiritu] that has been overturned by [Federal Circuit] precedent.”). When considering evidence supporting a claim, the Board must consider, on a case-by-case basis, whether the veteran’s lay evidence is competent. Davidson, 581 F.3d at 1315-16; Jandreau, 492 F.3d at 1376–77. Further, if the lay evidence is competent, the Board must then weigh that evidence against other evidence of record in making its determination. See
Buchanan v. Nicholson, 451 F.3d 1331, 1334-37 (Fed. Cir. 2006). Here, the Board erred in relying  on outdated caselaw and categorically rejecting the appellant’s lay statements in violation of Davidson, 581 F.3d at 1316.
The above error is compounded by the Board’s erroneous reliance on 38 U.S.C. § 5103A(d), 38 C.F.R. § 3.159(c)(4), and this Court’s decision in McLendon v. Nicholson, 20 Vet.App. 79 (2006), in concluding that VA was not required to obtain a medical opinion with respect to the appellant’s claim for service connection for the cause of the veteran’s death. R. at 8-9. VA’s duty to obtain a medical opinion in a dependency and indemnity compensation claim (DIC) is properly analyzed under 38 U.S.C. § 5103A(a).1
Wood v. Peake, 520 F.3d 1345, 1347 (Fed. Cir. 2008).2″

———————————–

—————————————————-
Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 12-3562
MARTHA J. JACKSON, 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: Theappellant,MarthaJ.Jackson,throughcounsel, appeals a
September 21,
2012, Board of Veterans’ Appeals (Board) decision that denied her claim of
entitlement to service
connection for the cause of her veteran husband’s death. Record (R.) at 2-
15. 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 reverse the Board’s finding that
the dutyto assist was satisfied,
vacate the Board’s September 21, 2012, decision, and remand the matter for
further proceedings
consistent with this decision.
I. FACTS
The veteran, Barnard J. Jackson,servedin theU.S. Armyfrom November1996 to
November
1999. R. at 700. He died in December 2007 as a result of suicide. R. at
113. His death certificate
lists the immediate cause of death as “[b]lunt trauma to torso and
extremities” due to a fall from a
12th floor apartment. Id. No underlying or contributory causes of death
were listed. Id. The
appellant is the deceased veteran’s widow.

In August 2001, the veteran filed a claim for service connection for a
psychiatric condition.
R. at 629-30. In an April 2002 rating decision, the VA regional office (RO)
denied entitlement to
service connection for depression and post-traumatic stress disorder. R.
at 323-30. The veteran did
not appeal that decision, but he attempted to reopen his claim for
entitlement to service connection
for depression in July 2004. R. at 301. In February 2005, the RO
determined that new and material
evidence had not been presented sufficient to warrant reopening the
veteran’s claim. R. at 198-201.
The record before the Court does not reflect that the appellant appealed
the RO’s decision. At the
time of the veteran’s death, service connection was in effect for
lumbosacral strain, rated 40%
disabling, and bilateral tinea pedis, rated as noncompensable. R. at 146-
51.
This casecomes before the Court on appealofaSeptember 2012 decision of the
Board which
denied the appellant’s claim for service connection for the cause of the
veteran’s death. R. at 2-15.
As relevant to this appeal, the Board found that the appellant was not
entitled to a VA medical
opinion. R. at 8-9. In so finding, however, the Board relied on 38 U.S.C. §
5103A(d). See id.
II. ANALYSIS
On appeal, the appellant asserts that the Board clearly erred when it
determined that VA’s
duty to assist was satisfied. Appellant’s Brief (Br.) at 5-14; Reply Br.
at 1-10. Specifically, she
argues that “the Board confused the criteria for entitlement to an
examination under 38 U.S.C.
§ 5103A(d) with VA’s duty to provide such assistance under the general
provisions of § 5130A(a).”
Appellant’s Br. at 9. She asks the Court to reverse the Board’s
determination that the duty to assist
was satisfied, as “[t]he Board’s failure to apply the correct legal
standard in the first instance is
prejudicial and not harmless.” Id. Although the Secretary concedes that
the Board’s reliance on
38 U.S.C. § 5103A(d) was error, he argues that such reliance was not
prejudicial as “there is a lack
of competent evidence that the Veteran’s death from suicide was related to
his service-connected
lumbosacral disability or to service.” Secretary’s Br. at 11. The
Secretary asks the Court to affirm
the Board decision. Secretary’s Br. at 6-15.
As a threshold matter, the Board’s decision faciallyviolates the U.S.
Court of Appeals for the
Federal Circuit’s (Federal Circuit) holding in Davidson v. Shinseki. 581 F.
3d 1313, 1316 (Fed. Cir.
2009) (rejectingthe view that “‘competent medical evidence is required
. . . [when] the determinative
2

issue involves either medical etiology or medical diagnosis.'”) (quoting
Jandreau v. Nicholson,
492 F.3d 1372, 1376–77 (Fed. Cir. 2007). The Board recognized the
appellant’s statements that
“pain from the Veteran’s service-connected lumbosacral strain caused or
contributed to his death.”
R. at 12 (citing, inter alia, Espiritu v. Derwinski, 2 Vet.App. 492, 494-
95 (1992)). The Board then
found that “[a]s a layperson, the appellant is not competent to provide an
opinion requiring medical
knowledge, such as a question of medical causation” and “[a]s a result,
her assertions cannot
constitute competent medical evidence that a service-connected disability
was related to the
Veteran’s death.” R. at 12. The Board’s finding constitutes a categorical
rejection of the appellant’s
lay statements based on caselaw that has been overruled. Id.; see Previous DocumentKingNext Document v.
Shinseki, 700 F.3d 1339,
1345 (Fed. Cir. 2012) (observing that the Board “cite[d] case law, [e.g.,
Espiritu] that has been
overturned by [Federal Circuit] precedent.”).
When considering evidence supporting a claim, the Board must consider, on
a case-by-case
basis, whether the veteran’s lay evidence is competent. Davidson, 581 F.3d
at 1315-16; Jandreau,
492 F.3d at 1376–77. Further, if the lay evidence is competent, the
Board must then weigh that
evidence against other evidence of record in making its determination. See
Buchanan v. Nicholson,
451 F.3d 1331, 1334-37 (Fed. Cir. 2006). Here, the Board erred in relying
on outdated caselaw and
categorically rejecting the appellant’s lay statements in violation of
Davidson, 581 F.3d at 1316.
The above error is compounded by the Board’s erroneous reliance on 38 U.S.
C. § 5103A(d),
38 C.F.R. § 3.159(c)(4), and this Court’s decision in McLendon v.
Nicholson, 20 Vet.App. 79 (2006),
in concluding that VA was not required to obtain a medical opinion with
respect to the appellant’s
claim for service connection for the cause of the veteran’s death. R. at 8-
9. VA’s duty to obtain a
medical opinion in a dependency and indemnity compensation claim (DIC) is
properly analyzed
under 38 U.S.C. § 5103A(a).1
Wood v. Peake, 520 F.3d 1345, 1347 (Fed. Cir. 2008).2
However, the
Section 5103A(a) provides:
(a) Duty to assist. — (1) The Secretary shall make reasonable efforts to
assist a claimant in obtaining
evidence necessary to substantiate the claimant’s claim for a benefit
under a law administered by the Secretary.
(2) The Secretary is not required to provide assistance to a claimant
under this section if no reasonable
possibility exists that such assistance would aid in substantiating the
claim.
The Court is perplexed as to how the Board applied two different legal
standards in this case incorrectly. As
the Court has noted in the past, it is unclear whether the Board’s
reliance on the wrong law stems from a lack of
awareness or the use of outdated boilerplate. Neither hypothetical
explanation is satisfactory. See Daye v. Nicholson,
2
1
3

Court is required to take “due account of the rule of prejudicial error.”
38 U.S.C. § 7261(b)(2). In
that regard, the Federal Circuit stated that section 5103A(a) “‘does not
always require the Secretary
to assist the claimant in obtaining a medical opinion.'” Wood, 520 F.3d at
1348 (quoting DeLaRosa
v. Peake, 515 F.3d 1319, 1322 (Fed. Cir. 2008)). Rather, section 5103A(a)
requires VA to assist a
claimant in obtaining a medical opinion whenever such an opinion is “
necessary to substantiate the
claimant’s claim.” 38 U.S.C. § 5103A(a); Wood, 520 F.3d at 1348; DeLaRosa,
515 F.3d at 1322.
“The statute only excuses . . . VA from making reasonable efforts to
provide such assistance, if
requested, when ‘no reasonable possibility exists that such assistance
would aid in substantiating the
claim.'” Wood, 520 F.3d at 1348 (quoting 38 U.S.C. § 5103A(a)(2)).
Therefore, the proper focus
of the Court’s analysis is whether a medical opinion in this case was
necessary to substantiate the
appellant’s claim or whether “no reasonable possibility exists” that such
an opinion “would aid in
substantiating [her] claim.” Id.
In the decision on appeal, the Board determined that the duty to assist
was satisfied and a
medical opinion was not required because, “none of the medical, or indeed
lay, evidence of record
in this case contains any indication that the cause of the Veteran’s death
was incurred in or
aggravated by active service.” R. at 9 (citing McLendon, 20 Vet.App. at 79
). However, as this is a
DIC claim,theBoardshould haveaddressedwhethertheappellant’s entitlementto
amedicalopinion
under section 5103A(a) and discussed whether there was a “reasonable
possibility” that the medical
opinion would aid in substantiating her claim for service connection for
the cause of the veteran’s
death. The Board erred in failing to do so.
Furthermore, the Court is not able to find the error in this case harmless.
See 38 U.S.C.
§ 7261(b)(2) (requiring the Court to “take due account of the role of
prejudicial error”). As noted
above, the Board erred in categorically rejecting the appellant’s lay
statements that “pain from the
Veteran’s service-connected lumbosacral strain caused or contributed to
his death.” R. at 12.
Moreover, the Board noted that, “[a]t the time of his death, service
connection had been established
for lumbosacral strain, evaluated as 40 percent disabling.” R. at 11. The
Board further noted that
20 Vet.App. 512, 517 (2006) (“[T]he Court observes that ‘boilerplate’
language of the sort that resides in all of our word
processors and is increasingly finding its way into . . . Board decisions
. . . can be an efficient and effective way of
conveying information and conserving time, but only when it is used with
precision. Just like a flower garden,
‘boilerplate’ must constantly be cultivated, weeded, and pruned.”).
4

VA treatment records from April 2006 and May 2006 “note an Axis III
diagnosis of chronic back
pain,”but ultimatelyconcluded that such records do not relate the
diagnosis of chroniclow back pain
“to the Veteran’s depression or suicidal ideation.” R. at 11-12. However,
the Diagnosis and
Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV), makes
clear that “Axis III is for
reporting current general medical conditions that are potentially relevant
to the understanding or
management of the individual’s mental disorder.” DIAGNOSTIC AND
STATISTICAL MANUAL OF
MENTAL DISORDERS 29 (4th ed. 1994) (emphasis added); see 38 C.F.R. § 4.
130 (2013) (providing
that “[r]ating agencies must be thoroughly familiar with [the DSM IV] to
properly implement the
directives in [39 C.F.R.] § 4.125 through § 4.129 and to apply the
general rating formula for mental
disorders in § 4.130″). Hence, the Board misstated the import of the Axis
III notations on the
veteran’s VA treatment records, as an Axis III notation of chronic back
pain indicates that such pain
is potentially relevant to the understanding or management of the
veteran’s mental disorder. See
DSM-IV at 29 (emphasis added).
On review of this record, the Court holds that the Board clearlyerred when
it determined that
a VA medical opinion was not necessary as the Court cannot say that “no
reasonable possibility
exists that such assistance would aid in substantiating the claim.” 38 U.S.
C. § 5103A(a)(2); see
Wood, DeLaRosa, both supra. This Court will, therefore, reverse the
Board’s finding that the duty
to assist was satisfied and remand this matter. See Gutierrez v. Principi,
19 Vet.App. 1, 10 (2004)
(holding that reversal is the appropriate remedy when the Board’s decision
is clearly erroneous
because the “onlypermissible view of the evidence is contraryto the
Board’s decision”). On remand,
the Board must obtain a VA medical opinion with respect to the appellant’s
claim for service
connection for the cause of the veteran’s death. The appellant is free to
submit additional evidence
and argument, including the arguments raised in her 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).
5

III. CONCLUSION
After consideration of the parties’ briefs and a review of the record, the
Board’s finding that
the dutyto assist was satisfied is REVERSED, the September 21, 2012,
decision is VACATED, and
the matter is REMANDED to the Board for further proceedings consistent
with this decision.
DATED: April 3, 2014
Copies to:
Jeffrey S. Beelaert, Esq.
VA General Counsel (027)
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