Veteranclaims’s Blog

December 27, 2009

Hypertension, Board Unsubstantiated Medical Conclusion citing Colvin v. Derwinski, Harmon v. Shinseki, No. 07-3778

Building on the Colvin v. Derwinski post of yesterday, we found this October 2009 single judge decision that emphasizes an example where the Veterans Court found that the Board sought to issue it’s own unsubstantiated medical opinion. If you recall this is a specific point that the PVA article drew attention to, something to look for when reviewing Board decisions

++++++++++++++++++++++++++++++++++++++++++
In addition, in determining whether the medical evidence is sufficient to make a decision on the claim, the Board must ensure that it does not rely on its own unsubstantiated medical conclusions. See Colvin v. Derwinski, 1 Vet.App. 171, 175 (holding that the Board must point to medical basis other than its own unsubstantiated opinion to support its decision), overruled on other grounds by Hodge v. West, 155 F.3d 1356 (1998). Although the Board noted that the appellant had elevated BP readings of 128 over 92 and 132 over 84 during service (R. at 5), the Board concluded, without support, that “there is no evidence establishing that the veteran’s hypertension occurred during his military service.” R. at 6 (emphasis added). Whether the in-service BP readings were indicative of hypertension appears to be a medical question, especiallyin the absence of any reasons or bases from the Board as to how it determined that the in-service readings revealed normal BP. See Colvin, 1 Vet.App. at 175.
+++++++++++++++++++++++++++

U.S. Court of Appeals for Veterans Claims

. 07-3778
Harmon-3778.pdf

—————————————————-

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 07-3778
CARL J. HARMON, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before MOORMAN, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
MOORMAN,Judge: Theappellant, CarlJ.Harmon,appealsthroughcounselaSeptember6,
2007, Board of Veterans’ Appeals (Board) decision that denied his claim
for service connection for
hypertension. Record (R.) at 1-12. The appellant filed a brief, and the
Secretary filed a brief.
Claims remanded by the Board are not on appeal. The Court has jurisdiction
pursuant to 38 U.S.C.
§§ 7252(a) and 7266(a) to review the September 6, 2007, Board decision.
A single judge may
conduct that review because the outcome in this case is controlled by the
Court’s precedents and “is
not reasonably debatable.” Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (
1990). For the following
reasons, the Court will vacate the Board’s September 2007 decision as to
the claim for service
connection for hypertension and remand the matter for readjudication.
I. FACTS
Mr. Harmon served on active duty in the U.S. Navy from May 1973 to May
1975 and again
from August 1975 to January 1979. R. at 2. During his 1972 enlistment
examination, Mr. Harmon’s
blood pressure (BP) was recorded at 134 over 80. R. at 23. In May 1975, he
suffered an allergic
reaction and was taken to the emergency room. R at 30. At that time, his
BP was 134 over 84. R. at
30. During his May 1975 separation examination, Mr. Harmon’s BP was
recorded at 129 over 92.

R. at 32. His BP was checked three more times, twice on May 8, and again
on May 9. R. at 32. His
BP readings on those days were 112 over 62, 118 over 66, and 110 over 66,
respectively. R. at 32.
In March 1976 another BP reading was taken and was 110 over 64. R. at 276.
A May 1976 BP
reading was 120 over 82. R. at 209. In September of 1978 BP readings were
again taken and
recorded at 116 over 80, 110 over 74, and 118 over 66. R. at 260, 263, 279.
During Mr. Harmon’s
December 1978 separation examination his BP was recorded at 108 over 78. R.
at 40-44. Beginning
in 2000 through 2006, Mr. Harmon was diagnosed and treated for a number of
different conditions,
including hypertension. R. at 139-98, 340-47.
In July 2003, Mr. Harmon submitted an application for service connection,
in part, for
hypertension. R. at 142, 143-54. In February 2004, the VA regional office (
RO) denied Mr.
Harmon’s claim on the basis that there was no medical evidence to
establish the existence of
hypertension during service or within one year of service and there was no
competent medical
evidence to establish a nexus between Mr. Harmon’s current diagnosis of
hypertension and his
military service. R. at 297-302. The rating decision noted that service
connection may be granted
on a presumptive basis under 38 C.F.R. § 3.309, but that Mr. Harmon did
not establish the existence
of hypertension of the requisite severity within the specified period of
time after military service.
R. at 299. He submitted a Notice of Disagreement on April 1, 2004. R. at
304-05. The RO issued
a Statement of the Case in January 2006. R. at 310-29. Mr. Harmon
perfected an appeal. R. at 34,
440.
During a hearing before the Board, Mr. Harmon reported that he had
hypertension prior to
leaving service. R. at 427. He testified that he was “held over” for three
days during his second
discharge examination as a result of high BP readings. R. at 427. He
stated that he did not have
additional
high
BP
readings
again
until
the
1980s.
R.
at
428.
On September 6, 2007, the Board issued the decision here on appeal. R. at
1-12. The Board
denied Mr. Harmon’s claim for service connection for hypertension because
there was no evidence
of hypertension during service or within one year of service and there was
no competent medical
evidence of record to establish a nexus between the Mr. Harmon’s present
diagnosis of hypertension
and his military service. R. at 1-7.
In his brief, Mr. Harmon asserts that the Board’s decision is clearly
erroneous because the
2

Board ignored evidence of record and that the Secretary failed in his
duty to assist by not ordering
a medical nexus examination. Appellant’s Brief (App. Br.) at 14,16. The
appellant asks the Court
to reverse and remand the Board decision on appeal. App. Br. at 1. In his
brief, the Secretary argues
that there is a plausible basis for the Board’s decision and that Mr.
Harmon has not demonstrated that
prejudicial errorhas been committed. Secretary’s Brief (Sec’yBr.) at 4.
The Secretaryasks the Court
to affirm the Board decision. Sec’y Br. at 8.
II. ANALYSIS
A. Service Connection
Establishing service connection generally requires medical or, in certain
circumstances, lay
evidence of (1) a current disability; (2) an in-service incurrence or
aggravation of a disease or injury;
and (3) a nexus between the claimed in-service disease or injury and the
present disability. See
Davidson v. Shinseki, ___F.3d___, No. 2009-7075, 2009 WL 2914339 (Fed. Cir.
Sept. 14, 2009),
Hickson v. West, 12 Vet.App. 247, 253 (1999); Caluza v. Brown, 7 Vet.App.
498, 506 (1995), aff’d
per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); see also Heuer v. Brown,
7 Vet.App. 379, 384
(1995). A finding of service connection, or no service connection, is a
finding of fact reviewed
under the “clearly erroneous” standard in 38 U.S.C. § 7261(a)(4).
See Swann v. Brown,
5 Vet.App. 229, 232 (1993). “A factual finding ‘is clearlyerroneous when
although there is evidence
to support it, the reviewing court on the entire evidence is left with the
definite and firm conviction
that a mistake has been committed.'” Herseyv. Derwinski, 2 Vet.App. 91, 94 (
1992) (quoting United
States v. U.S. Gypsum Co., 333 U.S. 364 (1948)). The Court may not
substitute its judgment for the
factual determinations of the Board on issues of material fact merely
because the Court would have
decided those issues differently in the first instance. See id.
Moreover, 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
on the record; 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 38 U.S.C. § 7104(d)(1); Allday v. Brown,
7 Vet.App. 517, 527 (1995); Simon v. Derwinski, 2 Vet.App. 621, 622 (1992);
Gilbert v. Derwinski,
1 Vet.App. 49, 57 (1990). To comply with this requirement, the Board must
analyze the credibility
3

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, 7 Vet.App at 506; Gabrielson v. Brown, 7 Vet.App. 36,
39-40 (1994).
InthiscasetheBoardfound that there wasno
nexusbetweentheappellant’scurrentcondition
and his military service. R. at 7. As a basis for that determination the
Board cites a lack of medical
evidence indicating that the appellant suffered from hypertension while in
service. R. at 5-7. The
Board decision indicates that the lay evidence offered by the appellant to
support his claim was
excluded from the Board’s consideration of this case. R. at 6-7.
Specifically, the Board stated that
“thereis no indication that [theappellant] or his representativepossess
therequisiteknowledge, skill,
experience, training, or education to qualify as medical experts for his
statements to be considered
competent evidence.” R. at 6-7 (citing Espiritu v. Derwinski, 2 Vet.App.
492 (1992)). The Board
also stated that lay persons are not competent to offer testimony
regarding diagnosis or causation.
R. at 6-7. The Board committed error by categorically excluding the
appellant’s lay testimony
without further analysis.
In its role as factfinder, the Board must first “determin[e] whether lay
evidence is credible
in and of itself, i.e., because of possible bias, conflicting statements,
etc.” Buchanan v. Nicholson,
451 F.3d 1331, 1334-37 (Fed. Cir. 2006); see also Miller v. Derwinski, 3
Vet.App. 201, 204 (1992).
In certain situations, lay evidence may be used to diagnose a veteran’s
medical condition. See
Jandreau v. Nicholson, 492 F.3d 1372, 1377 (2007) (holding that lay
evidence may be used to
diagnose 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
“); Barr v. Nicholson, 21
Vet.App. 303, 307 (2007) (stating that “[l]ay testimony is competent . . .
to establish the presence
of observable symptomatology and ‘may provide sufficient support for a
claim of service
connection'” (quoting Layno v. Brown, 6 Vet.App. 465, 469 (1994)));
Washington v. Nicholson, 21
Vet.App. 191, 195 (2007) (holding that, “[a]s a layperson, an appellant is
competent to provide
information regarding visible, or otherwise observable, symptoms of
disability”). Further, lay
evidence maybe competent to show continuity of symptomatology under 38 C.F.
R. § 3.303(b). See
Davidson, ___F.3d at___, slip op. at 3 (rejecting the view that “competent
medical evidence is
4

required . . . [when] the determinative issue involves either medical
etiologyor a medical diagnosis.”
(citing Jandreau, 492 F.3d at 1376-77)); Savage v. Gober, 10 Vet.App. 488,
497 (1997). When
considering lay evidence, the Board should determine whether the veteran’s
disability is the type of
disability for which lay evidence is competent. See Jandreau, 492 F.3d at
1377, (cited in Robinson
v. Shinseki, 312 F. App’x. 336, 339, 2009 WL 524737 (Fed. Cir. 2009). If
the disability is of the type
for which lay evidence is competent, the Board must weigh that evidence
against the other evidence
of record in making its determination regarding the existence of service
connection. See Buchanan,
451 F.3d at1334-37.
The Board indicated in its analysis that it did not consider the lay
testimony of the appellant
because such evidence is categorically incompetent when offered for
purposes of determining
medical causation or diagnosis. R. at 6-7. This is an incorrect
application of law. See Jandreau, 492
F.2d at 1377, Buchanan, 451 F.3d at 1335. Accordingly, a remand is
necessary to allow the Board
to correctly consider the lay evidence and appropriately weigh the
evidence in accordance with law.
B. Duty To Assist – Medical Nexus Examination
Pursuant to 38 U.S.C. § 5103A, the Secretary’s duty to assist includes,
in appropriate cases,
the dutyto conduct a thorough and contemporaneous medical examination. See
Green v. Derwinski,
1 Vet.App. 121, 124 (1991). The Secretary’s duty to assist requires that
he provide a VA medical
examination to a claimant when there is (1) competent evidence of a
current disability or persistent
or recurrent symptoms of a disability; (2) evidence establishing that an
event, injury, or disease
occurred in service or, for certain diseases, manifestation of the disease
during an applicable
presumptive period for which the claimant qualifies; and (3) an indication
that the disability or
persistent orrecurrent symptomsofthedisabilitymaybeassociated
withtheveteran’s serviceorwith
another service-connected disability; but (4) insufficient competent
medical evidence on file for the
Secretary to make a decision on the claim. See 38 U.S.C. § 5103A(d);
Paralyzed Veterans of Am.
v. Sec’y of Veterans Affairs, 345 F.3d 1334, 1355-57 (Fed. Cir. 2003);
Wells v. Principi, 326 F.3d
1381, 1384 (Fed. Cir. 2003); McLendon v. Nicholson, 20 Vet.App. 79, 81 (
2006); 38 C.F.R.
§3.159(c)(4)(i)(2009). TheBoard’s”
ultimateconclusionthatamedicalexaminationisnot necessary
pursuant to section 5103A(d)(2) is reviewed under the ‘arbitrary,
capricious, an abuse of discretion,
or otherwise not in accordance with law’ standard of review.” McLendon, 20
Vet.App. at 81; see
5

Haas v. Shinseki, 22 Vet.App. 385, 388 (2009). The Board’s underlying
determinations whether the
appellant has a current disability and whether the appellant suffered an
in-service event, injury, or
disease are findings of fact subject to the “clearly erroneous” standard
of review. Id. at 82; see also
38 U.S.C. § 7261(a)(4).
The categorical exclusion of the lay evidence of record in this case from
the Board’s analysis
of the appellant’s claim necessarily indicates that the Board did not
properly analyze the third prong
of 38 U.S.C. § 5103A(d) when it determined that a VA medical examination
was not warranted. R.
at 6. The Board has the authority to determine whether lay evidence is
competent and to
appropriately weigh such evidence, but it must make those determinations
based upon the standard
articulated in Buchanan, Jandreau, and Davidson as discussed above. If
there is competent lay
evidence, such evidence must be considered when determining whether or not
to order a medical
nexus examination. This Court has held that 38 U.S.C. § 5103A(d)(2)(B)
establishes a “low
threshold” requirement for determining whether or not a medical nexus
examination is warranted.
McLendon, 20 Vet.App. at 83. Consequently, in order for the Secretary to
fulfill his duty to assist
the veteran, the Board must make a determination under the appropriate
legal standard as to whether
or not the offered layevidence is competent, and, if the evidence is
competent, whether that evidence
meets the low threshold described in McLendon for ordering a medical nexus
examination. In addition, in determining whether the medical evidence is sufficient to make a decision on the claim,
the Board must ensure that it does not rely on its own unsubstantiated medical conclusions. See Colvin v. Derwinski, 1 Vet.App. 171, 175 (holding that the Board must point to medical basis other than its own unsubstantiated opinion to support its decision), overruled on other grounds by Hodge v. West, 155 F.3d 1356 (1998). Although the Board noted that the appellant
had elevated BP readings of 128 over 92 and 132 over 84 during service (R. at 5), the Board concluded, without support, that “there is no evidence establishing that the veteran’s hypertension occurred during his military service.” R. at 6 (emphasis added). Whether the in-service BP readings were indicative of hypertension appears to be a medical question, especiallyin the absence of any reasons or bases from the Board as to how it determined that the in-service readings revealed normal BP. See Colvin, 1 Vet.App. at 175.

6

III. CONCLUSION
After consideration of the appellant’s and the Secretary’s briefs, and a
review of the record,
the Board’s September 6, 2007, decision is VACATED as to the claim for
service connection for
hypertension and the matter is REMANDED to the Board for further
proceedings consistent with
this decision.
DATED: October 14, 2009
Copies to:
Kenneth L. LaVan
General Counsel (027)
7

Leave a Comment »

No comments yet.

RSS feed for comments on this post. TrackBack URI

Leave a Reply

Your email address will not be published. Required fields are marked *

This site uses Akismet to reduce spam. Learn how your comment data is processed.

Powered by WordPress.com.