Veteranclaims’s Blog

July 14, 2015

Herbert v. McDonald, No. 2014-7111(Decided: July 2, 2015); Ordered Additional Medical Exams

Excerpt from decision below:

“The Court of Appeals for Veterans Claims affirmed the denial after determining that the Board, in an earlier stage of the proceeding, had not erred by ordering an additional medical examination in connection with his claim. We affirm.”

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“The parties specifically agreed that, “[u]pon remand, [Mr. Herbert] may submit additional evidence and argument on the questions at issue, and [the VA] may ‘seek any other evidence the [VA] feels is necessary’ to the timely resolution of [Mr. Herbert’s] claim.” J.A. 480 (quoting Fletcher v. Derwinski, 1 Vet. App. 394, 397 (1991)).
On remand, in February 2010, the Board determined that Mr. Herbert “must be scheduled for a VA psychiatric examination” and that “[t]he examiner must specifically opine whether the appellant has [PTSD] due solely to the fact that he survived a storm at sea in January 1956,” J.A. 346, i.e., not based on a claim that he saw anyone going overboard.

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United States Court of Appeals for the Federal Circuit
______________________
RALPH W. HERBERT,
Claimant-Appellant
v.
ROBERT A. MCDONALD, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee
______________________
2014-7111
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 12-2680, Judge Robert N. Davis.
______________________
Decided: July 2, 2015
______________________
MATTHEW A. TRAUPMAN, Quinn Emanuel Urquhart &
Sullivan, LLP, New York, NY, for claimant-appellant.
K. ELIZABETH WITWER, Commercial Litigation Branch,
Civil Division, United States Department of Justice,
Washington, DC, for respondent-appellee. Also represented
by JOYCE R. BRANDA, ROBERT E. KIRSCHMAN, JR.,
MARTIN F. HOCKEY, JR; LARA EILHARDT, Y. KEN LEE,
TRACEY PARKER WARREN, MEGHAN ALPHONSO, Office of
General Counsel, United States Department of Veterans
Affairs, Washington, DC.
______________________
2 HERBERT v. MCDONALD
Before DYK, TARANTO, and HUGHES, Circuit Judges.
TARANTO, Circuit Judge.
Ralph Herbert filed a claim for disability benefits based on an assertion of disability caused by serviceconnected post-traumatic stress disorder (PTSD). The Board of Veterans’ Appeals denied the claim, finding no
service connection. The Court of Appeals for Veterans Claims affirmed the denial after determining that the Board, in an earlier stage of the proceeding, had not erred by ordering an additional medical examination in connection with his claim. We affirm.

BACKGROUND
Mr. Herbert is a veteran of the United States Navy.
In late 2000, he filed with the Department of Veterans
Affairs (VA) a claim for benefits for disability caused by
PTSD, which he alleged was connected to an event during
his service, namely, a typhoon that his ship, the USS
Mount McKinley, encountered en route to Japan in January
1956. Ship logs and letters from two shipmates
confirm that the USS Mount McKinley weathered a bad
storm around that time.
Mr. Herbert underwent a VA medical examination in
May 2002, but the examiner found no PTSD, and the VA’s
Seattle Regional Office then denied Mr. Herbert’s benefits
claim. Although Mr. Herbert timely filed a notice of
disagreement, his hearing before the Board did not take
place until February 2008. In the intervening years, Mr.
Herbert underwent several more medical examinations.
A January 2004 examination at the VA’s Veterans Center
and a July 2006 examination by a private psychologist
both produced diagnoses of PTSD. Two other examinations—
a May 2006 VA examination and an October 2007
examination conducted at the VA’s behest—did not.
HERBERT v. MCDONALD 3
At the February 2008 hearing, Mr. Herbert testified
about the typhoon, stating in particular that he saw
people go overboard on a neighboring ship. Two months
later, the Board denied Mr. Herbert’s claim for service
connection. It found Mr. Herbert not credible insofar as
he testified to witnessing others go overboard, and it
therefore concluded that it could not rely on medical
opinions that credited his statements about others going
overboard in arriving at a PTSD diagnosis.
Mr. Herbert appealed to the Veterans Court, which
remanded his case to the Board in July 2009 pursuant to
a joint request by Mr. Herbert and the VA. The parties
requested remand for several reasons, including that it
was unclear whether the October 2007 medical examiner
had reviewed Mr. Herbert’s earlier history and examinations,
as evidenced by her inclusion of a factually incorrect
statement about Mr. Herbert’s disciplinary history. The
parties specifically agreed that, “[u]pon remand, [Mr.
Herbert] may submit additional evidence and argument
on the questions at issue, and [the VA] may ‘seek any
other evidence the [VA] feels is necessary’ to the timely
resolution of [Mr. Herbert’s] claim.” J.A. 480 (quoting
Fletcher v. Derwinski, 1 Vet. App. 394, 397 (1991)).
On remand, in February 2010, the Board determined
that Mr. Herbert “must be scheduled for a VA psychiatric
examination” and that “[t]he examiner must specifically
opine whether the appellant has [PTSD] due solely to the
fact that he survived a storm at sea in January 1956,”
J.A. 346, i.e., not based on a claim that he saw anyone
going overboard. The Board remanded Mr. Herbert’s case
to the Regional Office for appropriate development. Mr.
Herbert underwent the ordered VA examination on November
23, 2011. The examiner concluded that experiencing
the typhoon in and of itself was an adequate stressor
to support a PTSD diagnosis, J.A. 311, but that Mr.
Herbert’s symptoms “do not meet the diagnostic criteria
for PTSD,” J.A. 315.
4 HERBERT v. MCDONALD
Meanwhile, in May 2011, Mr. Herbert had an additional
private medical examination, and the examiner
found PTSD based on the storm alone being a sufficient
stressor. It is uncontested before us that the VA did not
receive that examination report until after the November
23, 2011 VA examination. But the May 2011 examination
report was part of the record when the matter returned to
the Board.
In August 2012, the Board rejected Mr. Herbert’s
claim. It determined that Mr. Herbert was “not credible
in reporting his psychiatric symptoms or the stressors he
claimed regarding his PTSD,” J.A. 17, and found the
November 2011 examination to be more probative than
the May 2011 examination. It therefore found that “entitlement
to service connection for [PTSD] is not warranted.”
J.A. 20.
Mr. Herbert appealed to the Veterans Court, arguing
that the Board should not have ordered the November
2011 examination, that the November 2011 examination
was inadequate, that the Board failed to comply with the
remand order, that the Board set forth inadequate reasons
and bases for its decision, that the Board’s factual
findings were clearly erroneous, and that those errors
were prejudicial. The Veterans Court affirmed the
Board’s decision, concluding, among other things, that the
Board did not err by ordering the November 2011 examination.
DISCUSSION
On appeal, Mr. Herbert raises only one issue that is
within our jurisdiction—whether the Veterans Court
relied on a misinterpretation of a statute, 38 U.S.C.
§ 5103A, in rejecting his contention that the Board was
forbidden to order the November 2011 examination. See
Appellant’s Br. at 1 (statement of the issue). We have
jurisdiction to decide that legal issue. 38 U.S.C. § 7292(a),
(d)(1). Mr. Herbert argues that § 5103A required the
HERBERT v. MCDONALD 5
Board, before it could properly order the November 2011
examination, to make an adequately explained finding
that the pre-November 2011 record was insufficient for a
sound ruling to be made on the claim. We hold that
§ 5103A contains no such requirement.
Section 5103A imposes on the VA Secretary certain
duties to assist veterans in developing their claims. 38
U.S.C. § 5103A (“Duty to assist claimants”). Subsection
(d) specifically addresses the duty to provide a veteran
with medical examinations:
(d) Medical examinations for compensation
claims.—(1) In the case of a claim for disability
compensation, the assistance provided by the Secretary
under subsection (a) shall include providing
a medical examination or obtaining a medical
opinion when such an examination or opinion is
necessary to make a decision on the claim.
(2) The Secretary shall treat an examination or
opinion as being necessary to make a decision on a
claim for purposes of paragraph (1) if the evidence
of record before the Secretary, taking into consideration
all information and lay or medical evidence
(including statements of the claimant)—
(A) contains competent evidence that the
claimant has a current disability, or persistent
or recurrent symptoms of disability; and
(B) indicates that the disability or symptoms
may be associated with the claimant’s active
military, naval, or air service; but
(C) does not contain sufficient medical evidence
for the Secretary to make a decision on
the claim.
By its express terms, § 5103A imposes an affirmative
requirement on the Secretary to provide medical exami6
HERBERT v. MCDONALD
nations under certain conditions, specifically, where a
medical examination “is necessary to make a decision on
the claim.” § 5103A(d)(1). The statute states that, in
certain circumstances, the Secretary must order a medical
examination. It does not say, however, that the Secretary
may not order a medical examination in any other circumstance.
It imposes an evidence-gathering duty on the
Secretary. It does not confine discretion the Secretary
otherwise has to gather evidence, including by ordering a
medical examination.
Mr. Herbert’s only argument for restricting the Secretary’s
examination-ordering authority rests on § 5103A.
But the provision by its terms does not do so, and Mr.
Herbert cites no governing precedent stating otherwise.
We therefore follow § 5103A’s plain terms. For that
reason, we reject Mr. Herbert’s argument that the Veterans
Court legally erred in not requiring the Board, under
§ 5103A, to make more of a finding about the insufficiency
of the existing medical evidence than it did.
Mr. Herbert does not argue that the Secretary lacks
authority outside § 5103A to take steps to develop the
record to make a legally sound decision on a claim, including
by ordering a medical examination. See Douglas v.
Shinseki, 23 Vet. App. 19, 22–26 (2009) (describing statutory
bases for broad authority of Secretary to develop the
record, including by scheduling a veteran for a medical
examination). Nor has he identified and relied on any
constraints on such authority, of which § 5103A by its
terms is not one. Mr. Herbert makes no claim that 38
C.F.R. § 3.304(c) is such a limit, and the Veterans Court
has rejected a veteran’s argument “that the language of
38 C.F.R. § 3.304(c) limits VA’s development of evidence,”
ruling that the provision “gives VA the discretion to
determine how much development is necessary for a
determination of service connection to be made.” Shoffner
v. Principi, 16 Vet. App. 208, 213 (2002).
HERBERT v. MCDONALD 7
To the extent that Mr. Herbert might be taken to present
an argument about constraints outside § 5103A by
invoking the Veterans Court’s decision in Mariano v.
Principi, 17 Vet. App. 305 (2003), he has identified no
legal error. The Veterans Court has since qualified certain
“broad, general” language in Mariano by explaining
that the VA “has an affirmative duty to gather the evidence
necessary to render an informed decision on the
claim, even if that means gathering and developing negative
evidence, provided [it] does so in an impartial, unbiased,
and neutral manner.” Douglas, 23 Vet. App. at 25–
26 (internal quotation marks omitted). Mr. Herbert has
shown no legal error in that standard. And under
§ 7292(d)(2), we lack jurisdiction to review the Veterans
Court’s as-applied determination, which is consistent with
that standard, that the Board could properly order a
medical examination here because the record “contain[ed]
conflicting medical evidence pre-dating the November
2011 examination.” Herbert v. Shinseki, No. 12-2680,
2014 WL 781428, at *1 (Vet. App. Feb. 28, 2014).
CONCLUSION
For the foregoing reasons, we reject Mr. Herbert’s argument
that the Board violated § 5103A in ordering the
November 2011 medical examination. As Mr. Herbert has
raised and pressed no other argument on appeal, we
affirm the decision of the Veterans Court.
No costs.
AFFIRMED

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