Veteranclaims’s Blog

February 2, 2015

Single Judge Application; Wingard v. Shinseki, 26 Vet.App. 334, 342 (2013); Chronic Liver Disease; Noncompensable Rating; 38 C.F.R. §§ 4.1, 4.114, 4.31 (2014)

Excerpt from decision below:

“The Board failed to address (1) whether the appellant’s condition constitutes a current chronic liver diseases under Diagnostic Code (DC) 7311, or (2) whether his condition should be considered a service-connected disease with a 0% disability rating based on the fact that his condition was asymptomatic. 38 C.F.R. § 4.114, DC 7345 (2014). The definition of disability used by the Board explains the determination of ratings within the rating schedule, but it does not foreclose the possibility of a service-connected disease or injury without a compensable disability under the regulation. See 38 C.F.R. §§ 4.1, 4.31 (2014). If the Board’s application of the regulation were correct, it would be impossible to receive a noncompensable rating when a veteran is asymptomatic, which is exactly what the rating schedule requires. 38 C.F.R. § 4.114, DC 7345. The Board’s application of the rating schedule is contrary to this Court’s holding in Wingard v. Shinseki and the Secretary’s own regulation. See 26 Vet.App. 334, 342 (2013); see also 38 C.F.R. § 4.21 (2014). Remand is required for the Board to properly determine whether this regulatory provision is applicable to the appellant’s condition. See Schafrath v. Derwinski, 1 Vet.App. 589, 593 (1991) (Board is required to consider all evidence of record and to consider, and discuss in its decision, all potentially applicable provisions of law and regulation).

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

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 13-3278
GREGORY C. EARLEY, APPELLANT,
V.
ROBERT A. MCDONALD,
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, Gregory C. Earley, appeals through
counsel a
September 20, 2013, Board of Veterans’ Appeals (Board) decision that
denied him benefits based
on service connection for a chronic liver disorder. Record (R.) at 3-11.
He argues that the Board
failed to (1) properly interpret and apply the relevant law; (2) consider
all relevant evidence of
record and discuss all potentially relevant laws and regulations; and (3)
ensure that a medical
examination relied upon by the Board was adequate to make a decision on
the claim. Appellant’s
Brief (Br.) at 6-16. Review by a single judge is authorized by 38 U.S.C. §
7254(b) and is
appropriate here. See Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990).
As noted by Justice Alito
in the U.S. 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 the Board failed to provide an adequate statement of reasons or
bases for its decision, the
Court will vacate the September 2013 decision on appeal and remand the
matter for readjudication.
The appellant served on active duty in the U.S. Air Force from November
1975 to February
2005, rising to the rank of chief master sergeant (E-9). R. at 558 (DD
Form 214). During the

appellant’s service he specialized in explosive ordinance disposal. Id.
In November 1991, the
appellant was noted to have elevated liver enzymes. R. at 1263. In 2003,
while on active duty, the
appellant underwent an abdominal ultrasound that identified mild fatty
infiltration of the liver. R.
at 1263. Then in 2004, a computed tomography (CT) examination of the
appellant’s abdomen led
to the diagnosis of hepatic cysts. R. at 694-95. In December 2004, the
appellant filed with VA an
“Application for Compensation and/or Pension” seeking compensation for
liver cyst, along with
other conditions. R. at 772-82. On that application the appellant also
noted that he had been
exposed to an environmental hazard during the Gulf War. R. at 778; see R.
at 558 (noting the
appellant was awarded the Kuwait Liberation Medal Saudi Arabia and Kuwait
Liberation Medal
Kuwait).
In 2009 the appellant was again diagnosed with fatty liver.1
R. at 154. In 2010 the appellant
underwent a VA examination in which the examiner noted that “[f]rom mid to
late 1990’s, patient
reported vague right upper quadrant pain and underwent significant amount
of diagnostic testing . . .
diagnosing him with fatty liver.” R. at 107. The VA examiner diagnosed the
appellant with
“[h]epatitic cyst. Incidental finding on abdominal imaging studies,” and “[
e]levated liver enzymes,
unclear etiology. Patient has remained asymptomatic over the years. These
findings were made
while in service and hence are more likely service connected.” R. at 110.
In 2013, the appellant
underwent a subsequent VA examination with the same examiner, in which the
examiner’s entire
opinion read:
There is no evidence to suggest a chronic liver disorder in this case.
Incidental
findings of fatty infiltration as well as stable hepatic cyst would have
no bearing on
elevated enzymes.
Lack of specific symptomatology implies there is no disability related to
these
findings.
Any further clarification would be beyond the scope of this examination as
it would
require invasive testing such as a liver biopsy or other more specialized
testing under
the auspices of gastroenterology.
“Fatty liver” is “a liver with fatty infiltration, such as from alcohol
abuse, jejunoileal bypass surgery, or
occasionally diabetes mellitus. Fat is in large droplets and the liver is
enlarged but of normal consistency; patients are
often asymptomatic, but the condition can progress to hepatitis or
cirrhosis if the underlying cause is not removed.”
DORLAND’S ILLUSTRATED MEDICAL DICTIONARY 1067 (32d ed. 2012).
1
2

R. at 411.
In September 2013 the Board issued its opinion continuing to deny the
appellant benefits,
or even a noncompensable rating, for the appellant’s liver condition. R.
at 3-11. This appeal ensued.
The Court concludes that the Board provided an inadequate statement of
reasons or bases
for finding that the appellant does not have a current disability. 38 U.S.
C. § 7104(d)(1); Gilbert v.
Derwinski, 1 Vet.App. 49, 56-57 (1990) (in each of its decisions, 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). The appellant has been diagnosed with fatty liver, elevated
enzymes, and hepatic cyst.
The Board failed to address (1) whether the appellant’s condition
constitutes a current chronic liver
diseases under Diagnostic Code (DC) 7311, or (2) whether his condition
should be considered a
service-connected disease with a 0% disability rating based on the fact
that his condition was
asymptomatic. 38 C.F.R. § 4.114, DC 7345 (2014).
The definition of disability used by the Board explains the determination of ratings within the rating schedule, but it does not foreclose the possibility of a service-connected disease or injury without a compensable disability under the regulation. See 38 C.F.R. §§ 4.1, 4.31 (2014). If the Board’s application of the regulation were correct, it would be impossible to receive a noncompensable rating when a veteran is asymptomatic, which is exactly what the rating schedule requires. 38 C.F.R. § 4.114, DC 7345. The Board’s application of the rating schedule is contrary to this Court’s holding in WingardNext Document v. Shinseki and the Secretary’s own regulation. See 26 Vet.App. 334, 342 (2013); see also 38 C.F.R. § 4.21 (2014). Remand is required for the Board to properly determine whether this regulatory provision is applicable to the appellant’s condition. See Schafrath v. Derwinski, 1 Vet.App. 589, 593 (1991) (Board is required to consider all evidence of record and to consider, and discuss in its decision, all potentially applicable provisions of law and regulation).
Because the Court is remanding the appellant’s claim, the Court will not
address his
remaining 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). As the
Court stated in Kay v.
Principi, the appellant may present additional evidence and arguments on
remand to address
arguments the Board raised in its initial decision. 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,
3

2 U.S. (2 Dall.) 409, 410 n., 1 L. Ed. 436 (1792) (“[M]any unfortunate
and meritorious [veterans],
whom Congress 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 . . . .” (
internal quotation marks
omitted)). If the Board determines the appellant does not have chronic
liver disease, the Board must
analyze the condition to determine whether it can be “rate[d] under a
closely related disease or
injury in which not only the functions affected, but the anatomical
localization and symptomatology
are closely analogous.” 38 C.F.R. § 4.20 (2014) (emphasis added); see
also Lendenmann v. Principi,
3 Vet.App. 345, 350-51 (1992).
After consideration of the parties’ briefs and a review of the record, the
Board’s September
20, 2013, decision that denied him benefits based on service connection
for a chronic liver disorder
is VACATED and the matter is REMANDED for readjudication.
DATED: December 30, 2014
Copies to:
Robert V. Chisholm, Esq.
VA General Counsel (027)
4

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