Veteranclaims’s Blog

May 13, 2014

Single Judge Application; Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); Report of Diagnosis is Relevant Evidence; SSA Records

Excerpt from decision below:

“Even if the January 2009 examination correctly reflects that the  appellant did not suffer from a current disability at the time, a veteran need only suffer from a disability at some point during the claims period to be compensated, and the failure to consider the SSA records was thus prejudicial. See 38 U.S.C. § 7261; McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (holding that an appellant satisfies the current disability requirement “when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim . . . even though the disability resolves prior to the Secretary’s adjudication of the claim”). The Social Security records received by VA after the examination include hospitalization for severe chest pain and evidence of ischemia, and though this evidence predates the filing of a claim, it is still relevant to the determination of current disability. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013))(“[W]hen the record contains a recent diagnosis of disability prior to a veteran filing a claim for benefits based on that disability, the report of diagnosis is relevant evidence . . . in determining whether a current disability existed at the time the claim was filed or during its pendency.“). Any examination provided to the appellant should have considered this evidence. Green, supra.”

=====================

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 13-0667
CONUARD A. CHEAVES, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before GREENBERG, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent.

GREENBERG, Judge: The appellant, Conuard A. Cheaves, appeals through counsel that part of the December 31, 2012, Board of Veterans’ Appeals (Board) decision that denied entitlement to benefits based on service connection for a cardiovascular disability.1 R. at 3-22. The appellant argues that the Board erred (1) in relying on an inadequate January 2009 VA examination and (2) providing an inadequate statement of reasons or bases. Appellant’s Brief (Br.) at 5-13. Review by a single judge is authorized by 38 U.S.C. § 7254(b), see Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990), and as noted in Justice Alito’s opinion in Henderson v. Shinseki, the Court’s scope of review in this appeal is “similar to that of an Article III court reviewing agency action under the Administrative Procedure Act, 5 U.S.C. § 706.” 131 S. Ct. 1197, 1201 n.2 (2011); see 38 U.S.C. § 7261. For the following reasons, the Court will vacate that part of the Board’s December 2012 decision on appeal and remand the matter for further development and readjudication.
1
The Board also remanded claims for benefits based on service connection for asthma, a low back disability,and an acquired psychiatric disorder. Record (R.) at 3, 18-21. Those
matters are not before the Court. Hampton v. Gober, 10 Vet.App. 481, 483 (1997); Howard v. Gober, 220 F.3d 1341, 1344 (Fed. Cir. 2000) (Board remand does not constitute a final decision that may be appealed).

The appellant served on active duty in the U.S. Navy from July 1982 to
January 1983. R. at
712 (DD Form 214).
According to the appellant, during basic training in July 1982, he was
injured in a gas
chamber exercise when his mask malfunctioned and he had to be led out of
the room half-blind,
hacking with his eyes watering. R. at 957-58. The petty officer denied him
permission to seek
immediate medical care. R. at 957. For the next several months until his
discharge, he frequently
received medical attention, including treatment for an upper respiratory
infection in July 1982 (R.
at 1083-84, 1126, 1128-29) and September through November 1982 (R. at 1097,
1135-36, 1138-40,
1147).
In 1985 the appellant was stabbed in the chest. R. at 907. He applied for
Social Security
Administration (SSA) disability benefits in April 2005 and reported chest
pain in his application.
R. at 74. When being evaluated for SSA benefits in August 2005, he again
complained of chest pain.
R. at 192. That month he was hospitalized for severe chest pain and
dizziness. R. at 176-79. A
cardiologist reported that “ischemia[2]
[insufficient blood flow] is not excluded.” R. at 163. A
September 2005 treatment note indicates that the appellant experienced
left sterna pressure
associated with shortness of breath and nausea. R. at 176.
In September 2005, the appellant applied to VA for benefits based on
several disabilities,
including “chest pains, asthma” (with an alleged onset date of July 20,
1982) as a single disability.
R. at 1059.
In January 2009, the appellant was provided a VA cardiovascular
examination wherein the
examiner reported that the appellant’s heart was normal and diagnosed the
appellant with “[a]typical
chest pain, mostly related to stab wound in 1985. Not likely related to
veteran’s active service. Not
aggravated by veteran’s service connected conditions. There is no
documentation of chronic chest
pains in the available veteran’s service medical records.” R. at 907. The
records available to the
January2009examinerdid not includemedicalrecordsassociatedwith
theappellant’s SSA disability
claim, which were received by VA in August 2011, August 2012, and
September 2012. R. at 30.
2
“Ischemia” is “deficiency of blood in a part, usually due to functional
constriction or actual obstruction of a
blood vessel.” DORLAND’S ILLUSTRATED MEDICAL ENCYCLOPEDIA 961 (32d ed.).
2

In December 2012, the Board relied on the January2009 examination to
denythe appellant’s
claim for “[e]ntitlement to service connection for a cardiovascular
disability (originally claimed as
a disability manifested by chest pain),” finding that the appellant did
not suffer from a current
disability. R. at 3-22. This appeal ensued.
The Court agrees with the appellant that the Board erred in relying on an
inadequate
examination where the examiner did not have access to all the appellant’s
prior medical history,
specifically the Social Security records. Green v. Derwinski, 1 Vet.App.
121, 124 (1991) (requiring
that medical examinations take into account records of prior medical
treatment). See R. at 163, 176-79. Even if the January 2009 examination correctly reflects that the  appellant did not suffer from a current disability at the time, a veteran need only suffer from a disability at some point during the claims period to be compensated, and the failure to consider the SSA records was thus prejudicial. See 38 U.S.C. § 7261; McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (holding that an appellant satisfies the current disability requirement “when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim . . . even though the disability resolves prior to the Secretary’s adjudication of the claim”). The Social Security records received by VA after the examination include hospitalization for severe chest pain and
evidence of ischemia, and though this evidence predates the filing of a claim, it is still relevant to the determination of current disability. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013))(“[W]hen the record contains a recent diagnosis of disability prior to a veteran filing a claim for benefits based on that disability, the report of diagnosis is relevant evidence . . . in determining whether a current disability existed at the time the claim was filed or during its pendency.”). Any examination provided to the appellant should have considered this evidence. Green, supra. Remand is required for the appellant to be provided a medical examination that adequately considers the appellant’s prior medical history.
On remand, the appellant maypresent, and the Board must consider, any additional evidence and arguments. 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; see also Hayburn’s Case, 2 U.S. (2 Dall.) 409,410,n.,1L.Ed.436(1792) (“[M]any unfortunate and meritorious [veterans], whom [C]ongress
3

have justly thought proper objects of immediate relief, may suffer great
distress, even by a short delay, and may be utterly ruined, by a long one.”).
For the foregoing reasons, and after a review of the record, the December
31, 2012, Board decision is VACATED and the matter is REMANDED for further development and readjudication consistent with this decision.
DATED: April 30, 2014
Copies to:
Dwight Q. Quayle, Esq.
VA General Counsel (027)
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