Veteranclaims’s Blog

June 4, 2014

Single Judge Application; Wise v. Shinseki, 26 Vet.App. 517, 529 (2014); Pre-VCAA Duties to Assist, Good Law

Excerpt from decision below:

“The Court agrees with the appellant’s contentions that the Board failed to provide an adequate statement of reasons or bases for its determination that VA complied with the duty to assist.
Specifically, the Board failed to account for evidence that private medical records existed pursuant to the veteran’s treatment by his personal physician of more than 20 years,
notice of which is potentially provided bya letter in the record diagnosing high blood pressure. R. at 141; see Solomon, 6 Vet.App. 396. The Board failed to address whether this letter was sufficient notice of private medical records supporting the appellant’s claim,2 and the record provides no indication that VA tried

2. Although the Secretary suggests that the Veterans Claims Assistance Act of 2000 ((Pub.L. 106-475, Nov. 9, 2000, 114 Stat. 2096) (VCAA)) “redefined VA’s duties to notify and assist” and rendered Ivey and other cases applying the old statute “inapposite,” he provides no persuasive support. Secretary’s Br. at 14-15. On the contrary, our cases
continue to cite Ivey and other pre-VCAA duty to assist decisions as good
law. E.g., Wise v. Shinseki, 26 Vet.App. 517, 529 (2014) (citing Solomon and Ivey); Hyatt v. Nicholson, 21 Vet.App. 390, 393-97 (2007), aff’d sub nom. Hyatt v. Shinseki, 566 F.3d 1364 (Fed. Cir. 2009).

 

to obtain those records. On remand, the Board must provide an adequate statement of reasons or bases for its determinations regarding the duty to assist and must ensure
that the records are obtained if it determines that VA has sufficient notice of them.”

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

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 13-0108
ROMONA A. ALESSI, 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, Romona A. Alessi, widow of the veteran
Anthony
Alessi, Jr., appeals through counsel a November 30, 2012, Board of
Veterans’ Appeals (Board)
decision denying dependency and indemnity compensation (DIC) based on
service connection for
the veteran’s death. Record (R.) at 3-19. The appellant argues that the
Board erred in (1) finding the
dutyto assist satisfied when private treatment records werenot obtained;
and(2) “fail[ing] to address
lay arguments and unrelated Board and Court decisions that recognize an
etiological connection
between PTSD and hypertension.” Appellant’s Brief (Br.) at 9-18. Review by
a single judge is
authorized by 38 U.S.C. § 7254(b) and appropriate here. See Frankel v.
Derwinski, 1 Vet.App. 23,
25-26 (1990). As noted by Justice Alito in the Supreme Court’s decision 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)
(citing 38 U.S.C. § 7261). Because VA failed to satisfy its duty to
assist the appellant in obtaining
relevant records, the Court will vacate the Board’s November 2012 decision
and remand the matter
for further development and readjudication.
The veteran served on active duty in the U.S. Army from August 1969 to May
1971 (R. at
1027), including combat service in Vietnam (R. at 1057). He and the
appellant were married in July

1972. R. at 1134. In October 1985, he applied to VA for entitlement to
disability benefits based on
service connection for a skin condition and post-traumatic stress disorder (
PTSD). R. at 1057. In
January1986, the VA regional office (RO) granted entitlement to service
connection for PTSD with
a 10% disability rating, effective October 1985, but denied service
connection for a skin disability.
R. at 1055-58. In January 1991, the RO granted a 30% disability rating for
PTSD, effective May
1990. R. at 810-11. In October 2002, the RO granted a 70% disability
rating for PTSD, effective
August 2001, but denied service connection for residuals of a laminectomy.
R. at 652.
On December 11, 2005, the veteran was taken to a hospital, Centegra
Memorial Medical
Center, after his wife found him unresponsive on the floor of their home.
R. at 9. He died the next
day. R. at 194. His death certificate was completed by Dr. Robin K. Purdy
and lists his cause of
death as cerebral hemorrhage due to aneurysm due to PTSD, and also notes
hypertension1
as a
contributing cause of death. R. at 194.
In December 2005, the appellant submitted a claim for, inter alia,
entitlement to DIC for her
husband’s death. R. at 221. She stated that her husband’s “long battle
with PTSD contributed to and
or aggravated the condition which took his life” and that “because of the
chronic stress headaches
he had as a result of his PTSD he was not able to distinguish the
difference between the stress
headache and the warning sign of a brain aneurysm.” R. at 221.
In March 2006, the appellant received a development letter that included
at least one blank
copy of VA Form 21-4142, for the authorization of release of medical
records. See R. at 207-215;
Secretary’s Br. at 3. The letter instructed her to complete forms for the
release of records of her
husband’s autopsy, medical evidence showing that the condition that caused
death was service
connected, and records of the veteran’s final hospitalization. R. at 208.
Under the heading “How
You Can Help,” the letter said that “[i]f the evidence is not in your
possession, you must give us
enough information about the evidence so that we can request it from the
person or agency that has
it.” R. at 211. Later that month, the appellant faxed a completed Form 21-
4142 to VA, authorizing
Centegra Memorial Medical Center to release the veteran’s December 2005
treatment records. R.
at 199-200.
1
Hypertension is “high arterial blood pressure.” DORLAND’S ILLUSTRATED
MEDICALENCYCLOPEDIA896 (32d
ed. 2012).
2

In August 2006, Dr. Purdy stated in a letter to VA that the veteran had
been his patient from
August 1983 through his death in December 2005 and that the veteran’s
conditions, including PTSD,
“added to his blood pressure elevations which very likely could have
contributed to his ultimate
demise from a cerebral aneurysm.” R. at 141.
On November 30, 2012, the Board denied the appellant’s claim for
entitlement to service
connection for the veteran’s death. R. at 4-5. The Board found that VA had
satisfied its duty to
assist, based on the two development letters and the fact that the
appellant had not “identified any
other pertinent evidence, not already of record.” R. at 4-7. The Board
also stated that “the VA
medical opinion was adequate,” although it did not specify which medical
opinion it meant. R. at
7. This appeal ensued.
The Secretary has a duty to make “reasonable efforts to assist a claimant
in obtaining
evidence,” includingprivatelyheldmedicalrecords,”
necessarytosubstantiatetheclaimant’s claim.”
38 U.S.C. § 5103A(a)-(b). “Where . . . VA is on notice that records
supporting an appellant’s claim
may exist, . . . VA has a duty to assist the appellant to locate and
obtain these records.” Solomon v.
Brown, 6 Vet.App. 396, 401 (1994); see Ivey v. Derwinski, 2 Vet.App. 320,
323 (1992) (holding that
evidence of record before VA may “raise[] enough notice of pertinent
private medical records to
trigger the duty to assist”). The Board must support its determination
that VA satisfied its duty to
assist with an adequate statement of reasons or bases. See Trafter v.
Shinseki, 26 Vet.App. 267, 281-
83 (2013) (citations omitted).
TheCourt agrees with the appellant’s contentions that the Board failed to
provide an adequate statement of reasons or bases for its determination that VA complied with the duty to assist.
Specifically, the Board failed to account for evidence that private medical records existed pursuant to the veteran’s treatment by his personal physician of more than 20 years,
notice of which is potentially provided bya letter in the record diagnosing high blood pressure. R. at 141; see Solomon, 6 Vet.App. 396. The Board failed to address whether this letter was sufficient notice of private medical records supporting the appellant’s claim,2 and the record provides no indication that VA tried
2
Although the Secretary suggests that the Veterans Claims Assistance Act of
2000 ((Pub.L. 106-475, Nov. 9, 2000, 114 Stat. 2096) (VCAA)) “redefined VA’s duties to notify and assist” and rendered Ivey and other cases applying the old statute “inapposite,” he provides no persuasive support. Secretary’s Br. at 14-15. On the contrary, our cases
continue to cite Ivey and other pre-VCAA duty to assist decisions as good
law. E.g., Wise v. Shinseki, 26 Vet.App. 517,
3

to obtain those records. On remand, the Board must provide an adequate
statement of reasons or
bases for its determinations regardingthe dutyto assist and must ensure
that the records are obtained
if it determines that VA has sufficient notice of them.
Because the Court is remanding this matter to potentially obtain
additional evidence, it is
premature to address the appellant’s other arguments. See Dunn v. West, 11
Vet.App. 462, 467
(1998) (remand of appellant’s claim under one theory moots the remaining
theories advanced on
appeal). On remand, the appellant may present, and the Board must consider,
any additional
evidence and arguments. See Kay v. Principi, 16 Vet.App. 529, 534 (2002).
If the appellant wants
VA to obtain the private medical records from Dr. Purdy that pertain to
his treatment of the veteran
from 1983 to 2005, she should request them on remand. To the extent that
records are obtained on remand that provide additional information not previously of record, the Board must determine whether the medical examinations provided remain adequate for rating purposes. This matter is to be provided expeditious treatment. 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 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 above reason, the November 30, 2012, Board decision is VACATED and
REMANDED for readjudication consistent with this decision.
DATED: May 30, 2014
Copies to:
Eric A. Gang, Esq.
VA General Counsel (027)

529 (2014) (citing Solomon and Ivey); Hyatt v. Nicholson, 21 Vet.App. 390,
393-97 (2007), aff’d sub nom. Hyatt v. Shinseki, 566 F.3d 1364 (Fed. Cir. 2009).
4

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