Veteranclaims’s Blog

November 10, 2009

Word Choice Important when Arguing before the Court

This is a single judge decision which is being presented to illustrate the fact that you need to use the right words when presenting arguments to the Court.

In this instance the Court interperted the Vet’s statements: “that the Board “has not truly examined the initial facts” of his case. Appellant’s Informal Br. at 3. Mr. Bradley then discusses several facts that he felt the Board did not adequately discuss when rendering its decision. Id.” in his favor, but you can not always count on that happening.

In this instance the Court stated: “Accordingly, the Court will interpret these assertions as an argument that the Board did not provide adequate reasons and bases.
In rendering its decision, the Board is required to provide a written statement of the reasons or bases for its “findings and conclusions[ ] on all material issues of fact and law presented in the record.” 38 U.S.C. § 7104(d)(1).

So, the bottom line is try to find and use the right words and cite to cases and laws that support your position.

Full Case below with items we thought were of interest in Bold type.

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“However, as a combat veteran, Mr. Bradley is also competent to testify as to matters of service incurrence. 38 U.S.C. § 1154(b); see also Washington v. Nicholson, 19 Vet. App. 362, 368 (2005) (holding that a veteran may testify to matters about which he has first-hand knowledge). At his Board hearing, Mr. Bradley testified that he went to Vietnam during monsoon season, that his feet were continually wet, causing him to lose a large piece of skin from the bottom of his feet and that the condition did not resolve when he returned to the United States. R. at 17.
This testimony may be consistent with the circumstances, conditions, and hardship of his combat service in a tropical theater. 38 U.S.C. § 1154(b). This testimony also appears to pertain to a subjectof which Mr. Bradley has first-hand knowledge. See Washington, 19 Vet.App. at 368. Therefore, it was improper of the Board to dismiss Mr. Bradley’s testimony as incompetent medical nexus evidence without considering section 1154(b).
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Despite Mr. Bradley’s status as a combat veteran, the Board failed toconsider this provision, to include whether Mr. Bradley’s lay statements and testimony at his Board hearing constitute new and material evidence that could assist him in reopening his claim. Rather, the Board merely relied on this Court’s decision in Moray v. Brown, 5 Vet.App. 211, 214 (1993), to find that, although Mr. Bradley was competent to testify as to continuity of symptoms, he was not competent to testify as to causation.
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Specifically, Mr. Bradley contends that the Board “has not truly examined the initial facts” of his case. Appellant’s Informal Br. at 3. Mr. Bradley then discusses several facts that he felt the Board did not adequately discuss when rendering its decision. Id.
Accordingly, the Court will interpret these assertions as an argument that the Board did not provide adequate reasons and bases.
In rendering its decision, the Board is required to provide a written
statement of the reasons or bases for its “findings and conclusions[ ] on all material issues of fact and law presented in the record.” 38 U.S.C. § 7104(d)(1).
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Further, “[i]n the context of the duty to assist in obtaining records, the relevance of the documents cannot be known with certainty before they are obtained.” Hyatt v. Nicholson, 21 Vet.App. 390, 394 (2007), aff’d sub nom. Hyatt v. Shinseki, 563 F.3d 1364 ( Fed. Cir. 2009). Because the Board did not account for the identified Allen Park VA medical center treatment records from 1970-72, remand is warranted. See Bell, 2 Vet.App. at 613 (“If such material could be determinative of the claim and was not considered by the Board, a remand for readjudication would be in order.”).
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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 08-2100
WILLIAM O. BRADLEY III, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before HAGEL, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
HAGEL, Judge: William O. Bradley, III, who is self-represented, appeals a May 14, 2008, Board of Veterans’ Appeals (Board) decision denying entitlement to VA benefits for seborrheic keratosis1 and hyperhidrosis2
of the feet. Record (R.) at 2-12. In his informal brief, Mr. Bradley
makes no arguments related to the Board’s denial of entitlement to VA
benefits for the residuals of malaria and a dental condition. The Court therefore deems any appeal with respect to those matters
abandoned. See Grivois v. Brown, 6 Vet.App. 136, 138 (1994). The Court has jurisdiction pursuant to 38 U.S.C. §§ 7252(a) and 7262(a) to review the May2008 Board decision, and a single judge may conduct that review. See Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990).
Because the Board violated the duty to assist by not attempting to obtain identified VA medical center treatment records and did not provide adequate reasons or bases for its decision, the Court will vacate the May 14, Seborrheic keratosis is “a common, usually benign, type of skin lesion composed of basaloid cells; it usually first appears after age 30 and presents as a soft, friable plaque with variable pigmentation. The most common sites are the face, trunk, and limbs.” DORLAND’S ILLUSTRATED MEDICAL DICTIONARY (hereinafter “DORLAND’S”) 996 (31st ed. 2007).
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1 Hyperhidrosis is excessive sweating. DORLAND’S at 901.

2008, Board decision and will remand the matter to the Board for
readjudication consistent with this decision.
I. FACTS
Mr. Bradley served on active duty in the U.S. Marine Corps from January 1968 to January 1970. R. at 281. During his active duty, he served in Vietnam and received several decorations for that service, including the Combat Action Ribbon. Id. Mr. Bradley contends
that he served in Vietnam during the monsoon season and that his feet were continually wet, causing him to lose a large piece of flesh on the bottom of his feet from the moisture. R. at 17-18. He further contends
that this condition lingered after his separation from service. Id. His
service medical records for that period do not show any treatment for a foot or a skin disorder. R. at 261-71.
In June 1973, Mr. Bradley was diagnosed with hyperhydrosis by a VA
physician and was provided with medication for his feet. R. at 223. In September 1973, Mr. Bradley filed a claim for VA benefits for a skin condition of the hands and feet. R. at 231. In October 1973, a VA regional office denied Mr. Bradley entitlement to VA benefits for a skin condition of the hands and feet. R. at 222. Mr. Bradley filed a Notice of Disagreement with that decision in November 1973 and later that same month a Statement of the Case was issued. R. at 212, 215. Mr.Bradley did not file aSubstantive Appeal, and the decision became final.
In November 2004, Mr. Bradley sought to reopen his claim. In a February 2005 decision,
the regional officedeclined to reopen Mr. Bradley’s claim, findingthat no
new and material evidence had been submitted. R. at 168. Mr. Bradley then appealed that decision to the Board. R. at 76, 114-15, 135. In December 2006, Mr. Bradley testified at a hearing before a Board member. R. at 15-29.
At the hearing, Mr. Bradley testified that he received treatment for his
skin condition on his feet at the VA medical center in Allen Park, Michigan following his discharge from active duty from 1970-72. He further testified that this condition had not resolved over the past 30 years. R. at 4.
In the May 2008 Board decision currently on appeal, the Board found “that the evidence received since the last final decision does not raise a reasonable possibility of substantiating [Mr. Bradley’s] claim as new and material evidence sufficient to reopen the claim has not been received.”
R. at 11. Accordingly, the Board found Mr. Bradley’s claim must be denied. R. at 12.
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On appeal, Mr. Bradley argues that his skin condition on his feet began
in Vietnam. Appellant’s Informal Brief (Br.) at 2. He asserts that when he returned from Vietnam, he reported this condition to medical personnel, but was told that if he wanted treatment, he would be placed on
a medical hold for six months. Appellant’s Informal Br. at 3. He also
asserts that he was told that the condition was due to the climate in Vietnam and that it would “go away” upon returning to a drier climate. Id. Finally, Mr. Bradley asserts that in making its decision, the Board did not “truly examine[]” the facts of his case. Id.
In response, the Secretary concedes that remand of Mr. Bradley’s claim is “warranted because VA failed to comply with its duty to assist [Mr. Bradley] in the development of his claim by not obtaining VA treatment records identified by [him].” Secretary’s Br. at 10.
II. ANALYSIS
A. Duty to Assist
Pursuant to 38 U.S.C. § 5103A, the Secretaryis required to “make
reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claimant’s claim for a benefit.” 38 U.S.C. § 5103A(a). Under 5103A(c)(2), VA is required to obtain “[r]ecords of relevant medical treatment or examination of the claimant at Department health-care facilities[.]” When the Secretary attempts to obtain relevant treatment records from a Federal department or agency, it must continue trying to obtain the records until it is reasonably certain that the records do not exist or that further efforts would be futile. 38 U.S.C. § 5103A(b)(3). If the Secretary is unable to obtain all of the relevant records sought, the Secretary must notify the claimant, identifying the records that were unable to be obtained, brieflyexplaining the efforts taken to obtain those records, and describing any further action to be taken by the Secretary with respect to the claim. 38 U.S.C. § 5103A(b)(2). In Bell v. Derwinski, this Court held that VA has constructive knowledge of all VA generated documents. 2 Vet.App. 611, 613 (1992).
In this case, Mr. Bradley stated at his December 2006 Board hearing that he was treated for his skin condition on his feet at the Allen Park VA medical center from 1970-72. The Court recognizes that VA medical center treatment records are VA generated documents, and as such, the Board had a duty to obtain those records. 38 U.S.C. § 5103A(c)(2).
However, the record does not
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reflect that the Board attempted to obtain these documents or account for the fact that they were not in the record. Further, “[i]n the context of the duty to assist in obtaining records, the relevance of the documents cannot be known with certainty before they are obtained.” Hyatt v. Nicholson, 21 Vet.App. 390, 394 (2007), aff’d sub nom. Hyatt v. Shinseki, 563 F.3d 1364 ( Fed. Cir. 2009). Because the Board did not account for the identified Allen Park VA medical center treatment records from 1970-72, remand is warranted. See Bell, 2 Vet.App. at 613 (“If such material could be determinative of the claim and was not considered by the Board, a remand for readjudication would be in order.”).
B. Reasons or Bases
Mr. Bradley’s informal brief appears to contain an argument related to the Board’s reasons or bases. Specifically, Mr. Bradley contends that the Board “has not truly examined the initial facts” of his case. Appellant’s Informal Br. at 3. Mr. Bradley then discusses several facts that he felt the Board did not adequately discuss when rendering its decision. Id.
Accordingly, the Court will interpret these assertions as an argument that the Board did not provide adequate reasons and bases.
In rendering its decision, the Board is required to provide a writtenstatement of the reasons or bases for its “findings and conclusions[ ] on all material issues of fact and law presented in the record.” 38 U.S.C. § 7104(d)(1). The statement must be adequate to enable a claimant to understand the precise basis for the Board’s decision, as well as to facilitate review in this Court. See Gilbert v. Derwinski, 1 Vet.App. 49, 57 (1990). To comply with this requirement, the Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Caluza v. Brown, 7 Vet.App. 498, 506 (1995), aff’d per curium, 78 F.3d 604 (Fed. Cir. 1996) (table). The Board may commit remandable error when it fails to provide an adequate statement of its reasons and bases. See Gilbert, 1 Vet. App. at 57.
The Court notes that Mr. Bradleyis a combat veteran. Pursuant to 38 U.S.C. § 1154(b), with regard to any veteran who engaged in combat with the enemy in active service . . . the Secretary shall accept as sufficient proof of service-connection of any disease or injury alleged to have been incurred in or aggravated by such service satisfactory
lay or other evidence of service incurrence or aggravation of such injury
or disease, if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence
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or aggravation in such service, and, to that end, shall resolve every
reasonable doubt in favor of the veteran.
Despite Mr. Bradley’s status as a combat veteran, the Board failed toconsider this provision, to include whether Mr. Bradley’s lay statements and testimony at his Board hearing constitute new and material evidence that could assist him in reopening his claim. Rather, the Board merely relied on this Court’s decision in Moray v. Brown, 5 Vet.App. 211, 214 (1993), to find that, although Mr. Bradley was competent to testify as to continuity of symptoms, he was not competent to testify as to causation.
However, as a combat veteran, Mr. Bradley is also competent to testify as to matters of service incurrence. 38 U.S.C. § 1154(b); see also Washington v. Nicholson, 19 Vet. App. 362, 368 (2005) (holding that a veteran may testify to matters about which he has first-hand knowledge). At his Board hearing, Mr. Bradley testified that he went to Vietnam during monsoon season, that his feet were continually wet, causing him to lose a large piece of skin from the bottom of his feet and that the condition did not resolve when he returned to the United States. R. at 17.
This testimony may be consistent with the circumstances, conditions, and hardship of his combat service in a tropical theater. 38 U.S.C. § 1154(b). This testimony also appears to pertain to a subject of which Mr. Bradley has first-hand knowledge. See Washington, 19 Vet.App. at 368. Therefore, it was improper of the Board to dismiss Mr. Bradley’s testimony as incompetent medical nexus evidence without considering section 1154(b).
Because the Court is not convinced that the Board adequately considered Mr. Bradley’s lay statements, to include his hearing testimony, a remand is necessary for the Board to consider this evidence in the context of reopening Mr. Bradley’s claim. See Caluza, 7 Vet.App. at 506.

III. CONCLUSION
Upon consideration of the foregoing, the May 14, 2008, Board decision is VACATED and the matter is REMANDED for further adjudication consistent with this decision.
DATED: November 3, 2009
Copies to:
William O. Bradley III
VA General Counsel (027)
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