Veteranclaims’s Blog

June 4, 2014

Single judge Application; Evans v. Shinseki, 25 Vet.App. 7, 16 (2011); Post Hoc Rationalization

Excerpt from decision below:

“The Board erred in failing to address Mr. Garcia’s challenge to his assigned effective date as well as his argument relating to DC 6009 as a basis of an increased evaluation. Even though the Secretary partially addresses Mr. Garcia’s earlier effective date claim (see Secretary’s Br. at 13), the Board was silent on the issue of whether he is entitled to an earlier effective date of benefits. “[I]t is the Board that is required to provide a complete statement of reasons or bases, and the Secretary cannot make up for its failure to do so.” Evans v. Shinseki, 25 Vet.App. 7, 16 (2011). The Court will not accept the Secretary’s reasoning in place of a silent Board decision. See Martin v. Occupational Safety &Health Review Comm’n, 499 U.S. 144, 156 (1991) (“‘[L]itigating positions’ are not entitled to deference when they are merely. . . counsel’s ‘post hoc rationalization’ for agency action, advanced for the first time in the in the reviewing court.”).

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

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 13-0862
JESUS L. GARCIA, 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: Self-represented veteran Jesus L. Garcia appeals through
counsel the
December 17, 2012, Board of Veterans’ Appeals (Board) decision denying
entitlement to an
increased evaluation in excess of 10% for status post pterygium1
of the left eye from June 2007.
Record (R.) at 3-14.2
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 to
review the Board’s decision
pursuant to 38 U.S.C. §§ 7252(a) and 7266(a). For the reasons that
follow, the Court will affirm the
Board decision to the extent it found that Mr. Garciawas not entitled to a
higher disabilityevaluation
from June 2007 under 38 C.F.R. § 4.84, Diagnostic Code(DC)
6018forconjunctivitis andDCs 6061
to 6079 for loss of visual acuity. The December 17, 2012, Board decision
denying entitlement to an
“Pterygium” is “an abnormal triangular fold of membrane in the
interpalpebral fissure, extending from the
conjunctiva to the cornea; it is immovably united to the cornea at its
apex, firmly attached to the sclera in its middle
portion, and merged with the conjunctiva at its bases.” DORLAND’S
ILLUSTRATED MEDICALDICTIONARY 1551 (32d ed.
2012) (hereinafter “DORLAND’S”).
The Board also remanded claims for service connection for basal cell
carcinoma, cataracts, and presbyopia
hypertension. R. at 14-16. Because a remand is not a final decision of the
Board subject to judicial review, the Court
does not have jurisdiction to consider these claims. See Howard v. Gober,
220 F.3d 1341, 1344 (Fed. Cir. 2000);
Breeden v. Principi, 17 Vet.App. 475, 478 (2004); 38 C.F.R. § 20.1100(b) (
2013).
2
1

increased evaluation for the left eye condition is otherwise set aside
and the matter is remanded for
further development and readjudication consistent with this decision below.
I. FACTS
Mr. Garcia served on active duty in the U.S. Navy from March 1943 to
August 1963. See
R. at 460-63, 908, 1014. In October 1963, the VA regional office (RO)
granted Mr. Garcia’s
September 1963 claim and awarded service connection for pterygium of the
left eye, evaluated as
noncompensable. R. at 908, 1014-17.
In February 1966, Mr. Garcia submitted correspondence requesting an
increased evaluation
for his service-connected condition. R. at 909. His representative
indicated that Mr. Garcia
is service connected for Pterygium, left. He has had five operations on
this eye since
1963. His last one was today at Wilford Hall, Lackland Air Force Base.
Please
secure a summary and re-evaluate his case.
R. at 910. In May 1966, VA responded that
[w]e requested the above report from the medical librarians at Wilford
Hall but they
stated that they have no record of this operation.
If you will furnish on the attached Form 21-4138, the exact date, and
place, and
whether you were hospitalized or in the outpatient clinic, we will again
try to secure
this report.
As soon as the above information is received, we will be glad to take
further action
on your claim.
R. at 911. The record does not indicate whether Mr. Garcia responded to
the VA request.
June 2007 correspondence from Mr. Garcia’s representative indicated that
Mr. Garcia was
seeking “service connection” for pterygium of the left eye. R. at 905. A
June 2007 letter from
private physician Andrew J. Cottingham, Jr., reported Mr. Garcia’s history
of three surgeries for his
pterygium and that he currently had a red inflamed left eye with pterygium
growth onto the cornea
medially. R. at 900. Dr. Cottingham noted that “[a]t the time of his last
examination[,] which was
June 6th, 2007, the area of excision of the pterygium is obvious when
examined on a slit lamp, but
he is free of recurrence into the cornea.” Id. Mild swelling was noted,
and his best corrected vision
was 20/30. Id.
2

In October 2007, Mr. Garcia underwent a VA examination in which it was
noted that he had
undergone four procedures for the excision of the left eye pterygium. R.
at 584. Mr. Garcia reported
suffering pain, redness, eye watering, and blurred vision. Id. His
corrected visual acuity in the left
eye was 20/40 for both far and near vision. Id. The examiner reported that
the condition “resolved”
after his fourth surgical procedure, that he “d[id] have moderate
bilateral cataracts, pinguecula in the
right eye[,] andeccentricmaculardegeneration”but that he was”
onlysymptomatic fromhis bilateral
cataracts with blurred vision.” Id.
In December 2007, the RO continued a noncompensable evaluation for left
eye pterygium.
R. at 730. In March 2008, Mr. Garcia filed a Notice of Disagreement (NOD)
as to the December
2007 rating decision. R. at 701-11. Among other things, he argued that he
was entitled to a higher
evaluation under 38 C.F.R. § 4.84, DCs 6009 and 6071-6079, with an
effective date of 1963, that
there was no indication that he had withdrawn his May 1966 claim, and that
VA had improperly
stopped processing his claim. R. at 701-711.
VAreceivedoutpatienttreatment recordsreflectingtreatmentfromApril2008to
April2009.
R. at 527-36. An April 2008 treatment record noted vision changes and dry
eyes (R. at 536), while
a May 2008 treatment record showed nasal conjunctival and limbal scarring
with “very small
residual pterygium” (R. at 529, 532). His corrected visual acuity in each
eye was “20/30-1.” R. at
531. The impression was a stable status-post pterygium. R. at 530, 532.
InJuly2008,the RO issued a decision continuing the noncompensable
evaluation for left eye
pterygium. R. at 574-79. In February 2009, Mr. Garcia disagreed with that
decision. R. at 571-73.
He underwent another VA examination in April 2009. R. at 545-49. Left eye
symptoms included
complaints of pain, redness, watering, and blurring. R. at 546. During the
examination, it was noted
that his left eye corrected near and distance vision was “20/30-.” R. at
546-47. Slit lamp
examination revealed scarring from pterygium removal with associated
conjunctival vessel
engorgement and hyperemia.3
R. at 547. Mr. Garcia also had active conjunctivitis with “chronic
inflammation at the site of pterygium removal, nasally left eye, requiring
artificial tear drops for
3
Hyperemia is an increase of blood in a part. DORLAND’S 888.
3

relief.” R. at 548-49. The diagnosis was “pterygium removal left eye[,]”
with no significant effects
on Mr. Garcia’s occupation. R. at 548.
In July 2009, the RO awarded a 10% evaluation for service-connected left
eye pterygium,
effective June 20, 2007, the date VA received the claim for increased
evaluation. R. at 502-04, see
R. at 905. The RO issued a Statement of the Case (SOC) in August 2009 (R.
at 506-23), and Mr.
Garcia appealed to the Board (R. at 468-80). In his Substantive Appeal, Mr.
Garcia made arguments
regarding entitlement to an earlier effective date of benefits and to a
higher disability evaluation and
as to the existence of clear and unmistakable error (CUE) in the 1963
decision. See R. at 468-80;
see also R. at 34.
In December 2009, Mr. Garcia underwent additional VA examination. R. at
274-76. At that
time, his corrected left eye visual acuity was 20/30. R. at 274. Testing
revealed conjunctival and
limbal scarring, nasally. R. at 275. The impression was status post
pterygium excision involving
four surgeries and partial corneal transplant, which overall appeared
stable. Id.
A June 2010 VA examination noted left eye complaints of blurry vision,
irritation, dryness,
and watering. R. at 217. Mr. Garcia’s corrected visual acuitywas 20/30 in
his left eye and additional
testing revealed vessel engorgement, hyperemia, and conjunctival scarring.
R. at 218. Relevant
diagnoses were “scar [status post] pterygium left eye” and “
sclera/conjunctival vessel engorgement
and hyperemia secondary to pterygium left eye[.]” R. at 219.
The RO issued a Supplemental SOC in October 2010, which continued the 10%
evaluation
for service-connected left eye pterygium. R. at 170-74. On December 17,
2012, the Board issued
a decision that is described more fully below, denying an increased
evaluation. R. at 2-16. Citing
73 Fed. Reg. 66, 543 (Nov. 10, 2008), the Board noted that during the
pendency of this appeal the
regulations for evaluating eye and vision disabilities were amended for
applications received on or
after December 10, 2008. R. at 11. The Board applied the previous criteria
because Mr. Garcia’s
application was received in June 2007. Id. This appeal followed.
II. ANALYSIS
Mr. Garcia argues that (1) the Board failed to properly consider his claim
for increased
evaluation under 38 C.F.R. § 4.84a, DCs 6061-6079 (2007) (Impairment of
central visual acuity)
4

(Appellant’s Brief (Br.) at 10); (2) the Veterans Claims Assistance Act (
VCAA) required that VA
reopen and readjudicate claims “as if [an earlier] denial or dismissal had
not been made” and VA
erred in not doing so in his case (id. at 6-7); (3) there was CUE in the
1963 decision that assigned
a 0% evaluation (id. at 1-3); (4) VA erred when it ceased processing his
increased evaluation claim
in May 1966 and failed to provide proper notice of cessation of processing
and that he is therefore
entitled to an earlier effective date of increased benefits (id. at 6, 18);
and (5) the Board should have
considered whether he was entitled to an increased evaluation under 38 C.F.
R.§ 4.84a, DC 6009
(2007) (Eye, injury of, unhealed), including from an earlier effective
date (id. at 13-15). Mr. Garcia
does not challenge the Board’s decision to apply the evaluation criteria
in existence prior to
December 10, 2008, to his claim and the Court will not address that issue.
The Secretaryargues that the Board considered the version of DCs 6061 to
6079, impairment
of central visual acuity, that applies in this case and properlydetermined
that an increased evaluation
was not warranted under those DCs (Secretary’s Br. at 8-10); there was no
duty on the part of VA
to reopen the veteran’s claim or provide notification upon enactment of
the VCAA (id. at 12-13); the
Court lacks jurisdiction to consider Mr. Garcia’s CUE motion (id. at 12);
and, VA responded to Mr.
Garcia’s May 1966 request for an increased evaluation, notifying him that
he should submit
additional information, but that “[he] failed to submit the requested
information and had no contact
with VA until June 2007″ (id. at 13; see R. at 911). The Secretary did not
respond to Mr. Garcia’s
argument that the Board should have considered whether he is entitled to
an increased evaluation
under DC 6009 (2007) (Eye, injury of, unhealed).
In his reply brief, Mr. Garcia argues that the Board overlooked many of
the arguments that
he raised below. See Appellant’s Reply Br. at 3-8.
As to Mr. Garcia’s arguments (1) and (2), the Court discerns no error in
the Board decision
and will affirm those matters. As to Mr. Garcia’s CUE motion, which is
listed as argument (3)
above, the Court lacks jurisdiction over that matter in this instance. As
to arguments (4) and (5)
pertaining to an earlier effective date of increased benefits and
increased benefits under the 2007
version of DC 6009, because the Board did not address those matters, the
Court will remand them.
5

A. Entitlement to an Increased Evaluation from June 2007
Under DCs 6061 through 6079 and DC 6018
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). “A factual finding ‘is “clearly erroneous”
when although there is
evidence to support it, the reviewing court on the entire evidence is left
with the definite and firm
conviction that a mistake has been committed.'” Hersey v. Derwinski, 2 Vet.
App. 91, 94 (1992)
(quoting United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948)). As
with any finding on a
material issue of fact and law presented on the record, the Board must
support its determination that
VA satisfied its duty to assist with an adequate statement of reasons or
bases that enables the
claimant to understand the precise basis for that finding and facilitates
review in this Court.
38 U.S.C. § 7104(d)(1); Gilbert v. Derwinski, 1 Vet.App. 49, 52 (1990).
Mr. Garcia argues that in denying an evaluation in excess of 10%, the
Board failed to
properly consider his condition under the 2007 version of DCs 6061-6079,
impairment of central
visual acuity. Appellant’s Br. at 10. He also argues that he is entitled
to an increased evaluation
under the applicable version of DC 6018.
His left eye condition is currentlyevaluated 10% disabling under 38 C.F.R.
§4.84a, DC 6018
(Conjunctivitis,other,chronic),whichis themaximum allowableevaluation
forthatDC. Therecord
reflects that the Board considered whether Mr. Garcia would be entitled to
a higher evaluation for
his left eye pterygium based upon impairment of visual acuity pursuant to
the 2007 version of DCs
6061-6079. First, the Board explained that pterygium is evaluated based on
visual impairment,
disfigurement under DC 7800, or conjunctivitis under DC 6018, depending on
the particular
findings. 38 C.F.R. § 4.84a, DC 6034 (2007). R. at 11. The Board noted
that there was no
indication of disfigurement of the head, face, or neck so that evaluation
under DC 7800 was not for
application. Id. The Board then noted that under DC 6018, conjunctivitis,
if healed, is rated on the
basis of residuals, and that a maximum 10% evaluation is warranted if
there is evidence of active
conjunctivitis with objective symptoms. Id. The Board found that Mr.
Garcia had manifested active
conjunctivitis since his June 2007 claim for increase and that, since his
condition is active, he was
entitled to the 10% maximum evaluation under that DC. R. at 12.
6

As to visual acuity, the Board indicated that conjunctivitis may also be
evaluated on
impairment of visual acuitybased upon the best distant vision obtainable
after correction byglasses.
R. at 12. The Board noted that “[u]nless blindness is shown in the service-
connected eye and
blindness is shown in the non-service connected eye that is not due to
willful misconduct[,] the
visual acuityof the non-service connected eye will be considered to be [
the same as the visual acuity
of the service-connected eye, or] 20/40 for purposes of evaluating the
service-connected visual
impairment.” R. at 11 (citing 38 C.F.R. § 3.383(a)(1) (2007)). The Board
further recognized that
[a] 10 percent disability rating is warranted for impairment of central
visual acuity
in the following situations: (1) when vision in one eye is correctable to
20/50 and
vision in the other eye is correctable to 20/40; (2) when vision in both
eyes is
correctable to 20/50; (3) when vision in one eye is correctable to 20/70
and vision in
the other eye is correctable to 20/40; or (4) when vision in one eye is
correctable to
20/100 and vision in the other eye is correctable to 20/40. A rating of 20
percent
requires corrected visual acuity of 20/100 in the service-connected eye.4
R. at 12 (citing 38 C.F.R. § 4.84a, DC 6078, 6079 (2007)); see also 38 C.
F.R. § 3.383(a)(1) (2007);
38 C.F.R. § 4.75 (2007) (noting that “[t]he best distant vision
obtainable after best correction by
glasses will be the basis of rating”). The Board found that, based upon Mr.
Garcia’s visual acuity
testing showing that his correctable left eye vision was, at worst, 20/40,
the version of DCs 6061
through 6079 that applied did not allow for an evaluation in excess of 10%.
R. at 12; see also R. at
186, 218 , 274, 531, 546-47, 584, 900.
The Court concludes that the Board did not clearlyerr in its finding as to
an evaluation under
DC 6018, conjunctivitis, or under the visual acuityDCs. See 38 U.S.C. §
7261(a)(4). The Court also
concludes that the Board provided adequate reasons or bases for
determining that there was no basis
for an evaluation in excess of the currently assigned 10% under either DC
6018 or DCs 6061 to
6079 from June 2007. Therefore, that portion of the Board decision will be
affirmed. R. at 12.
Although the Board stated that a 20% evaluation requires corrected visual
acuity of 20/100 in the service-
connected eye, the regulation provides that a 20% evaluation is also
warranted where vision in one eye is 20/70 and is
20/50 in the other eye. 38 C.F.R.§ 4.84a, DC 6078 (2007). The Board’s
finding that Mr. Garcia’s worst correctable left
eye vision was 20/40 renders this error harmless.
4
7

B. VCAA Arguments
To the extent that Mr. Garcia argues that passage of the VCAA required
that VA reopen and
readjudicate his claim “as if the denial or dismissal had not been made,”
without his having to submit
new and material evidence, this argument must fail. See Appellant’s Br. at
6-7. The VCAA did not
change the law related to an award of service connection and did not
create a new basis of
entitlement to benefits. Paralyzed Veterans of Am. v. Sec’y of Veterans
Affairs, 345 F.3d 1334, 1349
(Fed. Cir. 2003) (stating that the VCAA did not alter the circumstances in
which a previously
disallowed claim may be reopened). As the U.S. Court of Appeals for the
Federal Circuit stated in
quoting the statute, “[n]othing in this section shall be construed to
require the Secretary to reopen
a claim that has been disallowed except when new and material evidence is
presented or secured .
. . .” Id., quoting 38 U.S.C. § 5103A(f). Therefore, because the VCAA did
not require VA to
readjudicateclaimspreviouslydisallowedwithoutthesubmissionofnewandmaterial,
Mr.
Garcia’s argument is unpersuasive.
C. Earlier Effective Date Claim and Increased Evaluation Argument
The Board is required to consider all theories of entitlement to VA
benefits that are either
raised bythe claimant or reasonablyraised bythe record. Schroeder v. West
v. West, 212 F. 3d 1265,
1271 (Fed. Cir. 2000); Robinson v. Peake, 21 Vet.App. 545, 553 (2008),
aff’d sub nom. Robinson
v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009). The Court has jurisdiction to
review whether the Board
erred in failing to consider such issues. Barringer v. Peake, 22 Vet.App.
242, 244 (2008). More
specifically, “the Board is required to adjudicate all issues reasonably
raised by a liberal reading of
theappellant’s [S]ubstantive[A]ppeal,
includingalldocumentsandoraltestimonyin therecordprior
to the Board’s decision.” Brannon v. West, 12 Vet.App. 32, 34 (1998). This
includes giving “a
sympathetic reading to the veteran’s filings by ‘determining all potential
claims raised by the
evidence, applying all relevant laws and regulations.'” Szemraj v.
Principi, 357 F.3d 1370, 1373
(Fed. Cir. 2004) (quoting Roberson v. Principi, 251 F.3d 1378, 1384 (Fed.
Cir. 2001)).
Mr. Garcia’s argument (4), that VA erred when it ceased processing his
increased evaluation
claim in May 1966 and failed to provide proper notice of cessation of
processing and that he is
therefore entitled to an earlier effective date of increased benefits, and
his argument (5), that the
Board should have considered whether he was entitled to an increased
evaluation under 38 C.F.R.
8

§ 4.84a, DC 6009 (2007) (Eye, injury of, unhealed), including from an
earlier effective date, were
clearly raised below in both Mr. Garcia’s March 2008 NOD (R. at 701-11)
and Substantive Appeal
to the Board (R. at 469-79). In his NOD, Mr. Garcia argued that there is
no indication that he
withdrew his 1966 claim; that VA stopped processing that claim without
proper notice (R. at 705,
709); that he was entitled to an earlier effective date of benefits on
that basis (R. at 703-07, 711); and
that VA failed to assign a proper evaluation in its 1963 decision when it
failed to consider DC 6009
(R. at 702, 704-05). In his Substantive Appeal, Mr. Garcia argued that VA
erred by failing to
process his May 1966 claim without proper notice (R. at 471-72, 474) and
failed to consider DC
6009 (R. at 476-77).
The Board erred in failing to address Mr. Garcia’s challenge to his assigned effective date as well as his argument relating to DC 6009 as a basis of an increased evaluation. Even though the Secretary partially addresses Mr. Garcia’s earlier effective date claim (see Secretary’s Br. at 13), the Board was silent on the issue of whether he is entitled to an earlier effective date of benefits. “[I]t is the Board that is required to provide a complete statement of reasons or bases, and the Secretary cannot make up for its failure to do so.” Evans v. Shinseki, 25 Vet.App. 7, 16 (2011). The Court will not accept the Secretary’s reasoning in place of a silent Board decision. See Martin v. Occupational Safety &Health Review Comm’n, 499 U.S. 144, 156 (1991) (“‘[L]itigating positions’ are not entitled to deference whentheyaremerely. . . counsel’s ‘post hoc rationalization’ for agency action, advanced for the first time in the in the reviewing court.”).
The Board was also silent as to whether DC 6009 would be an appropriate
diagnostic code
for evaluation of Mr. Garcia’s service-connected eye condition, which has
been determined to be
active. The Court will remand this matter because it requires factual
findings that the Board did not
make and the Court cannot make in the first instance. See McLendon v.
Nicholson, 20 Vet.App. 79,
84 (2006); see also Hensley v. West, 212 F.3d 1255, 1263 (Fed. Cir. 2000) (“
appellate tribunals are
not appropriate fora for initial fact finding”). For these reasons, the
matter will be remanded for the
Board to address in the first instance Mr. Garcia’s arguments that were
raised below, to include his
earlier effective date arguments.
9

D. Mr. Garcia’s CUE Motion
The RO and the Board failed to adjudicate whether the October 1963 RO
decision that
assigned a 0% evaluation was CUE and the record demonstratesthat Mr.
Garcia raised this argument
to the RO. R. at 471, 477. Nonetheless, the Court agrees with the
Secretary that it cannot address
Mr. Garcia’s CUE argument. This Court’s jurisdiction derives exclusively
from statutory grants and is limited to appeals from final decisions of the Board. See 38 U.S.C. § 7252; Breeden, 17 Vet.App. at 477. Because the Court’s jurisdiction is premised on and defined by a Board decision concerning the matter being appealed, when the Board has not rendered a decision on a
particular issue, the Court generally has no jurisdiction under section 7252(a) to consider the matter. See Evans v. Shinseki, 25 Vet.App. 7, 10 (2011); see also Ledford v. West, 136 F.3d 776, 779 (Fed. Cir. 1998).
The Board, in turn, generally has no jurisdiction over an issue unless the RO has adjudicated it and the claimant has filed an NOD challenging the RO decision. See Jarrell v. Nicholson, 20 Vet.App. 326, 331-32 (2006) (en banc).
In the record presently before the Court, there is no evidence that the RO has adjudicated the CUE motion. Because there is no RO decision on the CUE motion, the Board lacked jurisdiction over that matter in this instance. Id. In turn, the Court has no jurisdiction to consider the CUE challenge in the first instance because it was not the subject of a final Board decision. See Ledford, 136 F.3d at 779;Evans, 25 Vet.App. at 10.

III. CONCLUSION
Upon consideration of the foregoing, the December 17, 2012, Board decision
is AFFIRMED
to the extent that the Board found that Mr. Garcia was not entitled to a
higher disability evaluation
from June 2007 under DC 6018 for conjunctivitis and DC 6061 to 6079 for
loss of visual acuity.
The Board decision is otherwise SET ASIDE and the matter is REMANDED for
further
development and readjudication consistent with this decision.
DATED: May 23, 2014
10

Copies to:
Jesus L. Garcia
VA General Counsel (027)
11

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