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March 21, 2009

Medical treatise, Timberlake v. Gober,

Filed under: Medical treatise; Timberlake; — veteranclaims @ 9:12 pm

This decision is a MEMORANDUM DECISION but the citation on medical treaties is of note here not the decision.

“The evidence submitted by the appellant in support of such a relationship was five articles from various Internet Web sites. R. at 245-62. In the past the Court has recognized that sufficiently detailed medical-treatise evidence may be competent to establish facts in support of an appellant’s claim. See Timberlake v. Gober, 14 Vet.App. 122, 130-31 (2000) (remand necessary for Board to determine whether medical treatise evidence was sufficient to make the appellant’s claim well grounded); Wallin v. West, 11 Vet.App. 509, 514 (1998) (in order to establish a well-grounded service-connection claim by means of a medical treatise, the treatise evidence must “not simply provide speculative generic statements not relevant to the veteran’s claim” but rather must discuss “generic relationships with a degree of certainty
such that, under the facts of a specific case, there is at least plausible
causality based upon objective facts rather than on an unsubstantiated lay
medical opinion”).

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U.S. Court of Appeals for Veterans Claims
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Brockhouse-815.wpd
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UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS

No. 03-1815

Robert W. Brockhouse, Appellant,

v.

R. James Nicholson,
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, Robert W. Brockhouse, through counsel,
appeals a January 16, 2003, Board of Veterans’ Appeals (Board or BVA)
decision in which the Board granted his claim for service connection for
peripheral vascular disease of the right lower extremity with resulting
below-the-knee amputation but denied his claim for service connection for
a chronic skin disorder. Record (R.) at 1-16. Single-judge disposition
is appropriate when, as here, the issues are of relative simplicity and
the outcome is not reasonably debatable. 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 set forth below, the Court will affirm the decision.

I. FACTS

The appellant served on active duty in the U.S. Navy from October
1950 to August 1954. R. at 64. In October 1952, while stationed on
board the U.S.S. Menelaus (ARL-13) as an electrician temp, he fell into an
electrical panel and was knocked unconscious. R. at 84.
A March 2000 dermatology report notes that the appellant had minimal
scaling, erythmatous plaques on his elbows, knees, and over his distal
interphalangeal joints, which was attributed to psoriasis. R. at 98.
In May 2000, the Pittsburgh, Pennsylvania, VA Regional Office (RO) denied
the appellant’s claims for service connection for a variety of
conditions alleged to have been caused by the 1952 electrical accident. R.
at 105-06.
On August 26, 2002, the appellant had a personal hearing before
Gordon Shufelt, Chairman of the Board. R. at 202-36. Two months after
the hearing, the appellant sent to the Board four articles from Web sites
on electrical shock injuries and one article on psoriasis. R. at 245-63.
On January 16, 2003, the Board issued the decision here on appeal.
R. at 1-16. Based on the written medical opinion, the Board granted
service connection for the appellant’s below-the-knee amputation, but
denied service connection for the appellant’s psoriasis based on a lack of
evidence relating his current condition to the in-service accident. Id.
The appellant, through counsel, does not argue that the Board
decision should be reversed. Appellant’s Brief (Br.) at 11. Rather, he
asks this Court to find that the decision was procedurally deficient and
remand the matter to the Board for further development. Id. First, the
appellant argues that there is no document in the record that satisfies
the notice requirements pursuant to 38 U.S.C. 5103(a). Appellant’s Br.
at 5-8. The appellant also argues that the RO failed in its duty to
assist because it did not provide a medical examination or seek a medical
opinion regarding the appellant’s claim of service connection for a skin
disorder. Appellant’s Br. at 8-11. Finally, the appellant suggests that
the Board relied on its own unsubstantiated medical opinion to deny his
claim for service connection for his psoriasis. Appellant’s Br. 13-15.
The Secretary argues that the Court should affirm the Board’s decision.
Secretary’s Br. at 4-10.

II. ANALYSIS
A. The Secretary’s Duty to Notify
The Secretary is required to inform the claimant of the information
and evidence not of record (1) that is necessary to substantiate the claim
, (2) that the Secretary will seek to obtain, if any, and (3) that the
claimant is expected to provide, if any. See 38 U.S.C. 5103(a);
Mayfield v. Nicholson, 19 Vet.App. 103, 110 (2005) (citing Quartuccio v.
Principi, 16 Vet.App. 183, 187 (2002)); 38 C.F.R. 3.159(b) (2004). The
Secretary is also required to “request that the claimant provide any
evidence in the claimant’s possession that pertains to the claim.”
Mayfield, supra (quoting 38 C.F.R. 3.159(b)(1)); see also Pelegrini v.
Principi, 18 Vet.App. 112, 121 (2004). The
notice required under statutory section 5103(a) and regulatory 3.159(b)
must be provided upon receipt of a complete or substantially complete
application for benefits and prior to an initial unfavorable decision on a
claim by an agency of original jurisdiction such that the claimant has a “
meaningful opportunity to participate effectively in the processing of his
or her claim.” Mayfield, 19 Vet.App. at 120-21. The Secretary’s failure
to tell the appellant what evidence is necessary to substantiate his claim
is presumptively prejudicial. Mayfield, 19 Vet.App. at 122. Any other
statutory section 5103(a) or regulatory 3.159(b) notice error, including
an error in the timing of the notice, is not remandable error unless the
appellant
identif[ies], with considerable specificity, how the notice was
defective and what evidence the appellant would have provided or
requested the Secretary to obtain . . . had the Secretary fulfilled
his notice obligations; further, an appellant must also assert, again
with considerable specificity, how the lack of that notice and
evidence affected the essential fairness of the adjudication.

Mayfield, 19 Vet.App. at 121.
In this case, the appellant has not asserted any prejudice to support
his claim that the Secretary failed to provide him adequate notice under
38 U.S.C. 5103(a). Appellant’s Br. at 5-8. Accordingly, the only
cognizable argument is his assertion that the Secretary failed to inform
him of the evidence necessary to support his claim. Mayfield, 19 Vet.App.
at 121. However, the evidence contradicts his claim that he was not
properly informed. On August 26, 2002, the appellant had a personal
hearing before Gordon Shufelt, Chairman of the Board. R. at 202-36.
After the appellant testified about his in-service injury and his current
medical conditions, Mr. Shufelt said the following to the appellant:
Q. Let me try to get a little more focus here. Mr. Brockhouse,
I don’t think there’s any question that the injury occurred, I think
that’s quite clear for the record . . . and I don’t think it’s going
to be difficult for you to demonstrate that you have [current
conditions].

The problem-the most difficult part in the record, is the
medical connection between the electric shock injury, and these other
problems that you have today. The nature of the problem is medical.
You may well be right, that there is a connection between these
things, but the record will need to show that a medically trained
person has made that determination, that there is a connection.

What I would like to focus on is, the doctors who have
seen you, the doctors who have made this connection, who have
said there is such a connection? Could you try to get to that
point?
R. at 211 (emphasis added). For the next 11 pages of the hearing
transcript, the Chairman and the appellant discussed the treatment the
appellant had received for his injuries and his physicians’ statements
about whether there was a nexus between his injuries in service. R. at
211-22. The quoted statements made by the Chairman unambiguously told the
appellant what evidence was necessary to substantiate his claim – medical
nexus evidence linking his current conditions to the in-service accident.
Furthermore, two months after this hearing the appellant did submit
additional evidence in support of his claim, and that evidence was
considered by the Board. R. at 245-63. Accordingly, the appellant was
properly informed and had a “meaningful opportunity to participate
effectively in the processing of his . . . claim.” Mayfield, 19 Vet.App.
at 120-21.
B. The Secretary’s Duty to Assist
The appellant next argues that the Secretary incorrectly concluded
that “further development is not necessary to meet the requirements” of
the duty to assist. R. at 4. Section 5103A(d) of title 38 of the U.S.
Code places a duty on the Secretary to provide a medical examination or
opinion where such opinion is necessary to make a decision on the
veteran’s claim for disability compensation. See Wells v. Principi, 326 F.
3d 1381, 1384 (Fed. Cir. 2003). This obligation existed long before the
VCAA’s enactment. 38 U.S.C. 3007(a) (1988); see also Green v. Derwinski,
1 Vet.App. 121, 124 (1991). The Secretary’s duty to assist in this manner
does not arise automatically. The Secretary’s obligation under 38 U.S.C
. 5103A(d) to provide the veteran with a medical examination or to
obtain a medical opinion is triggered only if the evidence of record
demonstrates “some causal connection between his disability and his
military service.” Wells, 326 F.3d at 1384. This includes evidence
that links “persistent or recurrent symptoms of disability” to the
veteran’s service. Duenas v. Principi, 18 Vet.App. 512, 517 (2004) (
quoting 38 U.S.C. 5103A(d)(2) and 38 C.F.R. 3.159(c)(4)(i)).
Here, there is no competent evidence of record suggesting a
relationship between the appellant’s psoriasis and the in-service accident
. The evidence submitted by the appellant in support of such a
relationship was five articles from various Internet Web sites. R. at 245-
62. In the past the Court has recognized that sufficiently detailed
medical-treatise evidence may be competent to
establish facts in support of an appellant’s claim. See Previous DocumentTimberlakeNext Document v.
Gober, 14 Vet.App. 122, 130-31 (2000) (remand necessary for Board to
determine whether medical treatise evidence was sufficient to make the
appellant’s claim well grounded); Wallin v. West, 11 Vet.App. 509, 514 (
1998) (in order to establish a well-grounded service-connection claim by
means of a medical treatise, the treatise evidence must “not simply
provide speculative generic statements not relevant to the veteran’s claim”
but rather must discuss “generic relationships with a degree of certainty
such that, under the facts of a specific case, there is at least plausible
causality based upon objective facts rather than on an unsubstantiated lay
medical opinion”).
In this case, we need not decide whether the articles from Web sites
are sufficiently authoritative to be considered medical treatises because,
on their face, they do not support the appellant’s position. The first
four articles discuss injuries that may be caused by an electrical shock,
including skin burns. R. at 245-60. However, none of the articles
suggest that psoriasis might be caused by an electrical shock or burn.
See id. The final article discusses psoriasis, but states: “No one knows
exactly what causes psoriasis. . . . Recent research suggests that
psoriasis is a di[sease] of the immune system.” R. at 261. Nothing in
the article suggests that psoriasis can be caused by an electrical shock
or burn. Furthermore, no evidence in the entire record suggests that an
electrical shock or burn might effect a person’s immune system.
Accordingly, even assuming the articles submitted by the appellant are
competent and credible, they do not establish the connection necessary to
trigger the Secretary’s duty to assist. See Wells, 326 F.3d at 1384.
Therefore, the Board’s conclusion was not erroneous.
C. The Board’s Finding of No Medical Nexus
The appellant’s final contention is that the Board improperly relied
on its own unsubstantiated medical opinion to find that there was no
medical nexus between the appellant’s psoriasis and the in-service
electrical injury. See Colvin v. Derwinski, 1 Vet.App. 171, 175 (1991).
However, as the appellant quotes in his brief, the Board stated: “The
medical questions presented in this case must be decided on the basis of
medical evidence that is derived from competent medical authorities
. . . . There is not a single medical report in the claims folder that
otherwise attributed the veteran’s diagnosis of psoriasis to his military
service.” R. at 13-14. On its face, this is not a statement that
indicates that the Board was rejecting the credibility of relevant medical
nexus evidence based on
its own opinion, but rather that no such evidence exists in the record.
The appellant’s suggestion that the Board cannot “use the lack of a
medical opinion to support” its denial of benefits (Appellant’s Br. at 15)
is patently wrong. In the absence of supporting evidence, it is the
obligation of the Board to deny the claim. 38 U.S.C. 5107(a).
Accordingly, the Court will affirm the Board decision.

III. CONCLUSION
After consideration of the appellant’s and the Secretary’s briefs,
and a review of the record, the Board’s January 16, 2003, decision is
AFFIRMED.
DATED: August 10, 2005

Copies to:

Sean A. Ravin, Esq.
2800 Quebec St., NW, # 814
Washington, DC 20008

General Counsel (027)
Department of Veterans Affairs
810 Vermont Ave., NW
Washington, DC 20420

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