Veteranclaims’s Blog

February 13, 2017

Single Judge Application; Honoring America’s Veterans and Caring for Camp Lejeune Veterans Act, Public Law No. 112-154, 126 Stat. 1165 (2012); Provided Medical Care Only;

Excerpt from decision below:

“The appellant also argues that the 2012 “Honoring America’s Veterans and Caring for Camp Lejeune Veterans Act” (Act), Public Law No. 112-154, 126 Stat. 1165 (2012), supports or otherwise affects his claim. Appellant’s Br. at 9-11. This argument is unpersuasive. See Coker v. Nicholson, 19 Vet.App. 439, 442 (2006), rev’d on other grounds sub nom. Coker v. Peake, 310 F. App’x 371 (Fed. Cir. 2008) (per curiam order); see also Locklear v. Nicholson, 20 Vet.App. 410, 416 (2006); Hilkert, 12 Vet.App. at 151. The appellant concedes that the Act “does not impose obligations” retroactively, but argues that it is relevant to the appellant’s probable exposure to chemicals at Camp Lejuene and that VA “knew or should have known that many of [the] [a]ppellant’s conditions are likely linked to his father’s military service.” Reply Br. at 2-3. However, as the Secretary points out, the only benefit provided by the Act is medical care, rather than disability compensation benefits, which the appellant specifically seeks in his present claim. Secretary’s Br. 15-16.

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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 11-2580
WILLIAM MCMURRAY, JR., APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before LANCE, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent.

LANCE, Judge: The appellant, William McMurray, Jr., through counsel, appeals an April
21, 2011, Board of Veterans’ Appeals (Board) decision that denied his claim for entitlement to
benefits pursuant to 38 U.S.C. § 1805 for children of Vietnam veterans born with spina bifida.
Record (R.) at 1-12. 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 over the case pursuant to 38 U.S.C. §§ 7252(a) and 7266. For the reasons that follow, the Court will affirm the April 21, 2011, decision.
I. FACTS
The appellant is the biological son of veteran William McMurray, Sr. R. at 117, 363. He
was born October 24, 1982, at the Naval Regional Medical Center at Camp Lejeune, North Carolina. Id.
In January 2008, the appellant submitted a VA Form 21-526 (veteran’s application for
compensation and/or pension) seeking benefits pursuant to 38 U.S.C. § 1805 for children of Vietnam veterans born with spina bifida and 38 U.S.C. § 1815 for children of women Vietnam veterans born with birth defects. R. at 385-402. His claims were denied in an April 2008 rating decision, issued by the Denver, Colorado, VA regional office (RO). R. at 351-357. The appellant filed a Notice of Disagreement with the decision. R. at 300-302. In December 2008, he submitted the following statement: “I understand other birth defects [aside from spina bifida], are only for approved children of female veterans . . . My recommendation would be to cancel the other birth defects claim which I am not approved for because I do not meet the above.” R. at 107-109.
The RO issued a Statement of the Case (SOC) as to the appellant’s claim for benefits under
38 U.S.C. § 1805 in June 2009, maintaining the previous denial. R. at 84-96. The SOC also found that the appellant “withdrew [his] appeal regarding entitlement to benefits pursuant to 38 U.S.C. § 1815 for children of women Vietnam veterans born with birth defects.” R. at 86. Later that same month, the appellant filed his Substantive Appeal. R. at 80.
Following the submission of additional evidence by the appellant, the RO issued a
Supplemental SOC in April 2010. Subsequently, the Board issued its decision in April 2011, finding that the evidence did not show that the appellant has spina bifida. R. at 1-12. This appeal followed.
II. ANALYSIS
A. Failure to Obtain a Medical Examination and Opinion
A monetary allowance may be paid to “any child of a Vietnam veteran for any disability
resulting from spina bifida suffered by such child.” 38 U.S.C. § 1805(a); see 38 U.S.C. § 1802
(noting that monetary allowances are only available based on “forms and manifestations of spina
bifida except spina bifida occulta”). In adjudicating a claim for benefits, VA has a duty to assist that
includes providing a claimant with a medical examination or opinion when certain conditions are
met. This duty may apply under differing statutory provisions depending on the nature of the
benefits sought. See 38 U.S.C. § 5103A(d)(2); 38 U.S.C. § 5103A(a); compare DeLaRosa v. Peake,
515 F.3d 1319, 1322 (Fed. Cir. 2008), with McLendon v. Nicholson, 20 Vet.App. 79, 81 (2006). The
Court reviews the Board’s determination that a medical examination or opinion is not warranted
under the “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law”
standard of review. See 38 U.S.C. § 7261(a)(3)(A); McLendon, 20 Vet.App. at 81.
Before the Court, the appellant argues that VA failed to assist him in determining whether
he has spina bifida. Appellant’s Brief (Br.) at 5. Specifically, he asserts that (1) he has multiple
2
other disabilities and has provided medical evidence that mentions spina bifida, (2) these disabilities
have manifested since birth, (3) the disabilities may be associated with his father’s military service,
and (4) the RO and Board determined there was insufficient medical evidence on file for VA to make
a decision. Appellant’s Br. at 6-7; Reply Br. at 5-6. The Secretary responds that VA fulfilled its duty
to assist here and the Board’s statement of reasons or bases was not inadequate. Secretary’s Br. at
9. More pointedly, the Secretary contends that there was no error in the Board determination that
an examination was not warranted here because the appellant did not meet the required criteria.
Secretary’s Br. at 9-12.
Preliminarily, the Court notes that the appellant relies solely on evidence not before the Board
to support the argument that his other disabilities are recurrent symptoms of spina bifida. Reply Br.
at 5 (citing a National Institutes of Health “Spina Bifida Fact Sheet, NINDS, March 2007.”) Thus,
the Court need not address it further.1 See 38 U.S.C. § 7252(b); Rogozinski v. Derwinski, 1 Vet.App.
19 (1990) (holding that review in this Court shall be on the record of proceedings before the
Secretary and the Board).
Turning to the decision on appeal, the Board analyzed the appellant’s claim under 38 U.S.C.
§ 5103A(d)(2), while citing to McLendon and finding that the appellant was not entitled to a medical
examination, “because there is no competent evidence that the claimed condition has ever existed.”
R. at 4. The Court notes, however, that under 38 U.S.C. § 5103A(a), the proper focus of the analysis
as to whether a medical examination or opinion is required hinges on whether it is necessary to
substantiate the appellant’s claim or whether “no reasonable possibility exists” that such an
examination or opinion “would aid in substantiating [a] claim.” Wood v. Peake, 520 F.3d 1345, 1348
(Fed. Cir. 2008) (quoting 38 U.S.C. § 5103A(a)(2)).
In this case, the Court need not decide whether 38 U.S.C. § 5103A(d)(2) or 38 U.S.C.
§ 5103A(a) governs examinations or opinions required to decide claims pursuant to 38 U.S.C.
§ 1805 because the duty to assist was not triggered under either statutory provision. See Shinseki v.
1The appellant does not argue that judicial notice is appropriate with respect to the cited material. See Cromer
v. Nicholson, 19 Vet.App.215, 217 (2005) (“[I]ssues not raised on appeal are considered abandoned.”), aff’d, 455 F.3d
1346 (Fed. Cir. 2006); but see Jones v. Shinseki, 26 Vet.App. 56, 64 (2012) (treatise evidence should generally be
weighed by the Board rather than considered indisputable fact, “given that accepted medical knowledge changes over
time”).
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Sanders, 556 U.S. 396, 406 (2009) (requiring the Court to evaluate Board errors using the “harmless
error rule”). As in DeLaRosa, here, the Board found that there was no competent evidence that the
appellant ever had spina bifida. R. at 4; see DeLaRosa, 515 F.3d at 1322 (holding that application
of the incorrect statutory standard was harmless because the Board found that there was no
competent evidence of a diagnosis during the veteran’s lifetime that the claimant alleged was service
connected). Hence, any error by the Board would be rendered harmless. See id.; see also Sanders,
supra.
To the extent that the appellant has relied on his own lay statements to trigger VA’s duty to
assist, the Court notes that “[l]ay evidence can be competent and sufficient to establish a diagnosis
of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson
is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the
time supports a later diagnosis by a medical professional.” Jandreau v. Nicholson, 492 F.3d 1372,
1377 (Fed. Cir. 2007); but see Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed. Cir. 2010)
(recognizing that in some cases lay testimony “falls short” in proving an issue that requires expert
medical knowledge); Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010) (rejecting the concept
that medical examinations are “virtually automatically” provided and concluding that a veteran’s lay
belief that his schizophrenia aggravated his diabetes and hypertension was not of sufficient weight
to trigger the Secretary’s duty to seek a medical opinion on the issue).
However, in this case, the Board assigned the appellant’s lay evidence no probative weight;
it made a particularized finding that “whether [the appellant] has a defective closure of the vertebral
arch or a diagnosis of spina bifida is not the type of manifestation that a lay person can observe
through his senses.” R. at 9; see Jandreau, 492 F.3d at 1376–77. The Court is not convinced that
this finding is “clearly erroneous.” See Hood v. Shinseki, 23 Vet.App. 295, 299 (2009) (“The Court
reviews factual findings under the ‘clearly erroneous’ standard.”); Owens v. Brown, 7 Vet.App. 429,
433 (1995) (“It is the responsibility of the [Board], not this Court, to assess the credibility and weight
to be given to evidence.”)
Further, the Board weighed and discounted certain medical evidence, finding that the
evidence of record did not show that the appellant had “ever been treated for or diagnosed with any
form of spina bifida.” R. at 10; see 38 U.S.C. § 5107(a); Owens, supra. The Board also found that
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“there is no competent evidence that the claimed condition has ever existed.” R. at 4.
Notwithstanding the fact that the appellant has argued that there is an indication that he has
“recurrent symptoms” of spina bifida, as discussed above, he has relied on evidence which was not
before the Board and is not properly before the Court. Additionally, appellant’s counsel’s lay
hypothesizing in his brief is not evidence of a competent diagnosis. See, e.g., Hyder v. Derwinski,
1 Vet.App. 221, 225 (1991).
The appellant has not provided any citation to record evidence that the Board overlooked or
otherwise persuaded the Court that the Board’s treatment of the evidence is inadequate or clearly
erroneous. See Hilkert v. West, 12 Vet.App. 145, 151 (1991) (en banc) (on appeal, the appellant
“always bears the burden” of demonstrating error”), aff’d per curiam, 232 F.3d 908 (Fed. Cir. 2000)
(table); see also Nolen v. Gober, 14 Vet.App. 183, 184 (2000) (the Court reviews the Board’s
determination that VA has satisfied its duty to assist under the “clearly erroneous” standard). In
addition, given the record before it, the Board’s conclusion that a medical examination was not
required in this case was not “arbitrary, capricious, an abuse of discretion, or otherwise not in
accordance with the law.” 38 U.S.C. § 7261(a)(3)(A); see also Colantonio and Waters, both supra.
B. Other Arguments
The appellant also argues that the 2012 “Honoring America’s Veterans and Caring for Camp Lejeune Veterans Act” (Act), Public Law No. 112-154, 126 Stat. 1165 (2012), supports or otherwise affects his claim. Appellant’s Br. at 9-11. This argument is unpersuasive. See Coker v. Nicholson, 19 Vet.App. 439, 442 (2006), rev’d on other grounds sub nom. Coker v. Peake, 310 F. App’x 371 (Fed. Cir. 2008) (per curiam order); see also Locklear v. Nicholson, 20 Vet.App. 410, 416 (2006); Hilkert, 12 Vet.App. at 151. The appellant concedes that the Act “does not impose obligations” retroactively, but argues that it is relevant to the appellant’s probable exposure to chemicals at Camp Lejuene and that VA “knew or should have known that many of [the] [a]ppellant’s conditions are likely linked to his father’s military service.” Reply Br. at 2-3. However, as the Secretary points out, the only benefit provided by the Act is medical care, rather than disability compensation benefits, which the appellant specifically seeks in his present claim. Secretary’s Br. 15-16. Furthermore,
nothing in the Act appears to relate to the basis of the Board’s denial of the appellant’s claim under
38 U.S.C. § 1805, i.e., the lack of a current diagnosis of spina bifida. R. at 3-4, 10.
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Finally, the appellant argues that the Board erred in finding that VA satisfied its duty to assist
because the issue of whether his veteran father had been exposed to Agent Orange at any time was
not developed. Appellant’s Br. at 8-9. However, in the decision on appeal, the Board explicitly
stated it was assuming that the appellant’s father served in Vietnam during the Vietnam War. R. at
5. His claim was denied, however, based on the Board’s finding that he “does not have spina bifida.”
R. at 3. Therefore, any failure to provide additional development as to whether the veteran was
exposed to Agent Orange would be harmless error. See Sanders and Hilkert, both supra.
Accordingly, the Board’s decision will be affirmed.
III. CONCLUSION
After consideration of the appellant’s and the Secretary’s briefs, and a review of the record,
the Board’s April 21, 2011, decision is AFFIRMED.
DATED: March 5, 2013
Copies to:
Michael D.J. Eisenberg, Esq.
VA General Counsel (027)
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