Veteranclaims’s Blog

May 29, 2014

Single Judge Application; Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000); Factual Predicate Must be Established

Excerpt from decision below:

“To the extent that the Board did find the appellant’s 1992 statement credible, it dismissed it
by noting that it “date[d] the onset of pertinent symptoms to a time after service.” R. at 16. Yes, but it dated the onset of those symptoms to within two years of active service. The Board and the April 2010 examiner both seemed swayed by the fact that the first documented evidence that the appellant experienced low back pain dates to nine years after his service. Their opinions (and certainly their explanations), may have been different had they accepted the appellant’s report that he has experienced low back pain since 1977. Moreover, the appellant’s statement seems to call into question the Board’s apparent conclusion that the appellant’s current back disorder was solely caused by his post-service occupational pursuits. Was two years of occupational wear and tear sufficient to start a physiological process that, with additional wear and tear, eventually led to a degenerative back disorder? That is a question that the Board may now have to consider.
Next, the Board found evidence that the appellant received treatment for low back pain in
the 1980s unimportant because “most of his complaints were related to acute injuries or episodes after service.” R. at 15. The Board, however, also accepted that these incidents were part of a continuous disease process that had become symptomatic by at least 1984. R. at 15-16. Were these incidents flare-ups in a pre-existing disorder? Were they acute incidents that resolved and thus are unrelated to the appellant’s present degenerative disorder? Or were they the vanguard manifestations of the appellant’s current disorder? The Board should clearly answer these questions on remand.
Finally, the Board relied on Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000), to conclude
that “the absence of contemporaneous statements in connection with initial treatment or pertinent diagnosis for several years following service also weighs against [the appellant’s] claim.” R. at 15.
In Maxson, the U.S. Court of Appeals for the Federal Circuit explained that “a prolonged period
without medical complaint can be considered, along with other factors concerning the veteran’s
health and medical treatment during and after military service” when deciding a claim. 230 F.3d at 1333. The Federal Circuit cautioned, however, that the “trier of fact should consider all of the
evidence including the availability of medical records, the nature and course of the disease or
disability, the amount of time that elapsed since military service, and any other relevant facts.” Id. On remand, the Board should not apply Maxson until it has clearly established the factual predicate required for it to do so.

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

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 13-0986
VICTOR L. SIMS, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before PIETSCH, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
PIETSCH, Judge: The pro se appellant, Victor L. Sims, appeals a March 20, 2013, Board
of Veterans’ Appeals (Board) decision in which the Board denied him entitlement to disability
benefits for a “low back condition with pain and degenerative disc disease.” Record (R.) at 3-17.
This appeal is timely and the Court has jurisdiction over the claim on appeal pursuant to
38 U.S.C. §§ 7252(a) and 7266. Single-judge disposition is appropriate when the issue is of “relative
simplicity” and “the outcome is not reasonably debatable.” Frankel v. Derwinski, 1 Vet.App. 23, 25-
26 (1990). For the reasons that follow, the Court will vacate the Board’s decision and remand the
matter on appeal for further proceedings consistent with this decision.
I. BACKGROUND
The appellant served on active duty in the U.S. Army from March 1971 until March 1973 and
from March 1974 until March or April 1975. R. at 3, 7, 1777. In July 1974, the appellant “jumped
from [a] height of” about four feet and landed on his left leg. R. at 2854. He felt pain in his left hip
that radiated into the left side of his groin and through his left leg, and he sought medical treatment.
Id. His care provider diagnosed him with a muscle sprain. Id. The appellant believes that his
current back disorder is related to that injury.1 R. at 536-37, 1533, 1553, 1572-73, 2208-09, 2688,
2672.
In 1992, the appellant told a physician that he began experiencing chronic back pain in 1977.
R. at 2752. The record indicates that the appellant first sought medical treatment for low back pain
in May 1984. R. at 2640. Since that time, he has periodically returned for additional treatment of
his back pain. R. at 2675, 2677, 2698, 2728-29, 2752, 2772-73, 2775, 2779. Medical records
generally indicate that the appellant recurrently suffered occupational injuries that caused his back
pain either to awake from dormancy or markedly increase in intensity. Id. An August 1995
radiology report reveals that by that date he had developed a degenerative disorder in his lumbar
spine. R. at 2728.
In May 1997, the appellant filed a claim for entitlement to disability benefits for a back
injury. R. at 2825-28. In September 1997, the VA regional office (RO) denied the appellant’s claim.
R. at 2666-67. The appellant did not challenge the RO’s decision, and it became final. R. at 4.
In April 2000, the appellant again filed a claim for entitlement to disability benefits for a back
disorder. R. at 2278-79. In August 2005, the Board concluded that the appellant had submitted
evidence sufficient to reopen his claim for entitlement to disability benefits for a low back disorder,
and it remanded his claim for additional development. R. at 1592-1603.
In February 2006, a VA medical examiner diagnosed the appellant with a “[m]echanical back
strain by history,” but concluded that the appellant’s disorder is “in no way related to the injury he
sustained in the military in 1974.” R. at 1573. In October 2006, the Board denied the appellant’s
claim. R. at 1524-34. The appellant appealed the Board’s decision to this Court, and on August 27,
2008, the parties jointly moved that the Court vacate the Board’s decision and remand the appellant’s
claim for additional proceedings. R. at 808-13. The parties agreed in their joint motion that the
February 2006 examination report is inadequate. R. at 810-12. On September 3, 2008, the Court
granted the parties’ motion.
1 The appellant has alleged not only that his in-service injury started a physiological process that resulted in his
current back disorder, but also that his fall caused a chronic back disorder to immediately develop and that he has
experienced back pain since he left active service. R. at 536-37, 2208, 2668, 2672.
2
In March 2010, the Board remanded the appellant’s claim for additional development. R. at
776-82. The Board ordered the RO to engage a VA medical examiner and request that the examiner
consider whether the appellant has a back disability that first became symptomatic during his service
or within a year of his discharge and whether the appellant’s disorder is related “through continuity
of symptoms” to his period of service. R. at 780.
In April 2010, a VA medical examiner diagnosed the appellant with degenerative disc disease
of the lumbosacral spine with left lower extremity radiculopathy. R. at 543. The examiner opined
that the appellant’s disorder is “less likely as not . . . caused by or a result of through continuity of
symptoms to military service.” R. at 544. The examiner stated that the appellant has suffered from
a chronic low back disorder since at least 1984, but “there is no evidence of recurrent back pain in
military service or at time of separation from military service,” and the appellant’s post-service
occupation “is the more likely cause” of his disorder because it “involved repetitive heavy lifting.”
Id.
In its March 20, 2013, decision here on appeal, the Board denied the appellant entitlement
to disability benefits for a “low back condition with pain and degenerative disc disease.” R. at 3-17.
The Board found that the appellant’s statements linking his current condition to his service are not
credible, and it relied heavily on the April 2010 examiner’s opinion to reach its conclusion. R. at 14-
17.
II. ANALYSIS
Establishing service connection for a claimed disorder, and thus entitlement to disability
benefits, generally requires medical evidence or, in certain circumstances, lay evidence of the
following: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and
(3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson
v. Shinkseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77
(Fed. Cir. 2007); Hickson v. West, 12 Vet.App. 247, 253 (1999).
There is no dispute that the appellant currently has a degenerative back disorder and that he
fell and suffered an injury during his service. Whether the appellant’s claim succeeds, therefore, is
3
entirely dependent on whether the evidence demonstrates that there is a nexus between the
appellant’s current disorder and his in-service injury.
In the past, appellants have routinely sought to establish entitlement to disability benefits
without engaging the nexus prong of the general test for service connection by applying an
alternative method to achieve service connection that is found in 38 C.F.R. § 3.303(b). The Court
interpreted § 3.303(b) to mean that a claimant may establish the second and third elements of the
general test for service connection by demonstrating continuity of symptomatology. See Barr v.
Nicholson, 21 Vet.App. 303, 307 (2007). Continuity of symptomatology, the Court has stated, is
established when the record contains (1) evidence that a condition was “noted” during service; (2)
evidence of continuous symptoms after service; and (3) medical, or in certain circumstances, lay
evidence of a nexus between the current disability and the postservice symptoms. Savage v. Gober,
10 Vet.App. 488, 495-96 (1997).
The appellant argued that the Board did not properly apply § 3.303(b) in this case.
Appellant’s Brief at 1-3. The U.S. Court of Appeals for the Federal Circuit (Federal Circuit),
however, recently issued a decision in Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013), that
markedly restricted the application of § 3.303(b). The Federal Circuit concluded that § 3.303(b) “is
constrained by [38 C.F.R.] § 3.309(a),” a provision that contains a list of chronic diseases “subject
to presumptive service connection.” 708 F.3d at 1338; 38 C.F.R. § 3.309(a) (2013). Thus,
according to the Federal Circuit, § 3.303(b) “is only available to establish service connection for the
specific chronic diseases listed in § 3.309(a).” 708 F.3d at 1338.
The appellant’s low back disorder is not one of those diseases, and thus the appellant cannot
establish entitlement to disability benefits via continuity of symptomatology. Consequently, any
error committed by the Board during its analysis of continuity of symptomatology is harmless, and
the Court need not be further detained by the appellant’s argument. See 38 U.S.C. § 7261(b)(2); see
also Shinseki v. Sanders, 556 U.S. 396, 406 (2009) (noting that the statute requiring this Court to
“take due account of prejudicial error [] requires the Veterans Court to apply the same kind of
‘harmless error’ rule that courts ordinarily apply in civil cases”).
The appellant, however, may still establish entitlement to the benefits he seeks by
demonstrating that there is a nexus between his current degenerative back disorder and his service.
4
See Davidson, 581 F.3d at 1316; Jandreau, 492 F.3d at 1376-77; Hickson, 12 Vet.App. at 253. The
Board concluded that “the preponderance of the evidence is against finding that currently diagnosed
low back disability is related to active military service or events therein,” but its discussion of the
nexus element of the general test for service connection is otherwise oblique and unhelpful. R. at
16-17. The Board’s abstruseness is symptomatic of a significant deficiency in its analysis–it decided
the nexus issue without gathering evidence that would allow it to do so properly and thoroughly.
When, in March 2010, the Board determined that a medical opinion was necessary to resolve
this case, it ordered the RO to engage a medical examiner and ask the examiner to comment on three
specific issues. R. at 780. Those issues were all related to either the continuity of symptomatology
theory of entitlement to disability benefits or to a regulatory presumption of service connection
potentially available to the appellant. The examiner was not asked to specifically comment about
whether the appellant’s in-service injury could have started a process that resulted in a later
degenerative back disorder.
In response to the Board’s inquiries, the April 2010 VA medical examiner submitted a
fragmented, choppily written report that contains two specific findings: (1) the appellant’s back
disorder “is less likely as not . . . caused by or a result of through continuity of symptoms to military
service”; and (2) the appellant’s disorder “is less likely as not . . . caused by or a result of manifested
within one year following [his] discharge from service.” R. at 544. In explanation, the examiner
wrote:
Rationale for opinion given: No documentation of back condition in military service.
No reported back trouble on April 1975 separation physical. Single note dated 11/99
which documents low back pain in 1975. However, treatment record 4/7/97: “C/O
recurrent backache. No trauma.” Although [appellant] has a preponderance of
evidence which clearly documents chronic low back condition from 1984 to the
present, there is no evidence of recurrent back pain in military service or at time of
separation from military service. [Appellant’s] occupation post military involved
repetitive heavy lifting, which is the more likely cause of his chronic low back
condition.
R. at 544-45.
The examiner did not specifically opine about or otherwise address the question of central
importance in this case: whether the appellant’s in-service injury led to his current back disorder.
5
To the extent that the examiner was trying to convey that she had weighed the effects of the
appellant’s post-service occupation on his back against the likelihood that his in-service injury
triggered his current back disorder and found that the appellant’s back disorder was most likely
related to his post-service occupational pursuits, she did not say as much, and she did not explain
her reasoning. Consequently, her opinion (if that is her opinion) is inadequate. See Stefl
v. Nicholson, 21 Vet.App. 120, 123 (2007) (holding that a medical opinion is adequate “where it is
based on consideration of the veteran’s prior medical history and examinations and also describes
the disability, if any, in sufficient detail so that the Board’s ‘evaluation of the claimed disability will
be a fully informed one.'”) (quoting Ardison v. Brown, 6 Vet.App. 405, 407 (1994)). Moreover, the
examiner did not explain why the multiple facts she cited are medically important and did not
connect them to her ultimate conclusion with a detailed analysis. See Nieves-Rodriguez v. Peake,
22 Vet.App. 295, 301 (2008) (holding that an examination report must “contain not only clear
conclusions with supporting data, but also a reasoned medical explanation connecting the two”).
In summation, the Board did not seek medical evidence addressing whether the appellant’s
in-service injury caused his current disorder, did not get a medical opinion adequately addressing that
topic, and decided to reject the appellant’s claim without having before it evidence sufficient to allow
it to fully understand the effects of the appellant’s in-service injury. See 38 U.S.C. § 5103A(d)(1)
(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”; see also
Kahana v. Shinseki, 24 Vet.App. 428, 435 (2011) (holding that, when a Board inference “results in
a medical determination, the basis for that inference must be independent and it must be cited”);
Colvin v. Derwinski, 1 Vet.App. 171, 172 (1991) (holding that when the Board reaches a medical
conclusion, it must support its findings with “independent medical evidence”).
The Board’s present conduct contrasts sharply with its actions during an earlier phase of this
claim’s procedural history. In its August 2005 remand order, the Board specifically requested that
the RO obtain a medical opinion stating whether the appellant “has current low back disability that
is due to reported back trauma or other disease or injury that was sustained in service.” R. at 1602.
The February 2006 VA medical examiner directly answered that question, and the Board relied on
the examiner’s answer to deny the appellant’s claim in October 2006. R. at 1524-34, 1573. Although
6
the parties agreed that the February 2006 examiner’s opinion was inadequate and the Court granted
their joint motion to vacate the Board’s October 2006 decision on that basis, the process the Board
followed during that phase of this claim’s history was the correct one for properly addressing the
nexus issue, and it should have followed that process again when the claim was returned to it.
When making factual determinations, the Board is required to provide a written statement
of the reasons or bases for its findings and conclusions adequate to enable an appellant to understand
the precise basis for the Board’s decision as well as to facilitate review in this Court. 38 U.S.C.
§ 7104(d)(1); Allday v. Brown, 7 Vet.App. 517, 527 (1995); Gilbert v. Derwinski, 1 Vet.App. 49,
56-57 (1990). To comply with this requirement, the Board must analyze the credibility and probative
value of the evidence, account for the evidence that it finds persuasive or unpersuasive, and provide
the reasons for its rejection of any material evidence favorable to the claimant. Caluza v. Brown,
7 Vet.App. 498, 506 (1995), aff’d per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); Gilbert,
1 Vet.App. at 57. The Board errors discussed above caused it to make an inadequately supported
finding that the appellant’s in-service injury did not result in his current disorder.
The Board’s statement of reasons or bases is undermined by a few additional errors. First,
it is not clear how the Board dealt with the appellant’s 1992 report that his back pain began in about
1977. The Board may have swept the appellant’s statement aside by including it in its finding that
the appellant’s descriptions of his in-service injury and post-service symptoms are not credible. If
so, then it should reconsider its finding for this particular statement. The Board’s credibility
determination rests heavily on its conclusion that the appellant inserted mendacious statements into
the record for the purpose of successfully obtaining disability compensation. R. at 14. The
appellant’s 1992 statement, however, was made about five years prior to the date he filed his claim
for entitlement to disability benefits for a low back disorder. It seems unlikely that in 1992 the
appellant conjured a fallacious history of his disorder that places the onset of his symptoms two years
after he left active service and passed it on to his care provider in the hopes that it would help him
successfully pursue a claim that he would not file for several more years. If the Board does believe that he engaged in this peculiar tactical exercise, it should say so specifically and explain its reasoning.
7
To the extent that the Board did find the appellant’s 1992 statement credible, it dismissed it by noting that it “date[d] the onset of pertinent symptoms to a time after service.” R. at 16. Yes, but it dated the onset of those symptoms to within two years of active service. The Board and the April 2010 examiner both seemed swayed by the fact that the first documented evidence that the appellant experienced low back pain dates to nine years after his service. Their opinions (and certainly their explanations), may have been different had they accepted the appellant’s report that he has experienced low back pain since 1977. Moreover, the appellant’s statement seems to call into question the Board’s apparent conclusion that the appellant’s current back disorder was solely caused by his post-service occupational pursuits. Was two years of occupational wear and tear sufficient to start a physiological process that, with additional wear and tear, eventually led to a degenerative back disorder? That is a question that the Board may now have to consider.
Next, the Board found evidence that the appellant received treatment for low back pain in the 1980s unimportant because “most of his complaints were related to acute injuries or episodes after service.” R. at 15. The Board, however, also accepted that these incidents were part of a continuous disease process that had become symptomatic by at least 1984. R. at 15-16. Were these incidents flare-ups in a pre-existing disorder? Were they acute incidents that resolved and thus are unrelated to the appellant’s present degenerative disorder? Or were they the vanguard manifestations of the appellant’s current disorder? The Board should clearly answer these questions on remand.
Finally, the Board relied on Moxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000), to conclude
that “the absence of contemporaneous statements in connection with initial treatment or pertinent diagnosis for several years following service also weighs against [the appellant’s] claim.” R. at 15.
In Maxson, the U.S. Court of Appeals for the Federal Circuit explained that “a prolonged period without medical complaint can be considered, along with other factors concerning the veteran’s health and medical treatment during and after military service” when deciding a claim. 230 F.3d at 1333. The Federal Circuit cautioned, however, that the “trier of fact should consider all of the evidence including the availability of medical records, the nature and course of the disease or
disability, the amount of time that elapsed since military service, and any other relevant facts.” Id. On remand, the Board should not apply Maxson until it has clearly established the factual predicate required for it to do so.
8
The Court will not at this time address any additional arguments the appellant has raised.
See Best v. Principi, 15 Vet.App. 18, 20 (2001) (per curiam order) (holding that “[a] narrow decision
preserves for the appellant an opportunity to argue those claimed errors before the Board at the
readjudication, and, of course, before this Court in an appeal, should the Board rule against him”).
On remand, the appellant is free to submit additional evidence and argument on the remanded
matters, and the Board is required to consider any such relevant evidence and argument. See Kay
v. Principi, 16 Vet.App. 529, 534 (2002); Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999)
(per curiam order). The Court has held that “[a] remand is meant to entail a critical examination of
the justification for the decision.” Fletcher v. Derwinski, 1 Vet.App. 394, 397 (1991). The Board
must proceed expeditiously, in accordance with 38 U.S.C. § 7112 (requiring the Secretary to provide
for “expeditious treatment” of claims remanded by the Court).

III. CONCLUSION
After consideration of the appellant’s and the Secretary’s briefs and a review of the record,
the Board’s March 20, 2013, decision is VACATED and the matter on appeal is REMANDED for
further proceedings consistent with this decision.
DATED: May 28, 2014
Copies to:
Victor L. Sims
VA General Counsel (027)
9

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