Veteranclaims’s Blog

November 24, 2010

Aggravation, Is It Always a Medical Determination?

We are presenting this single judge decision because it address that very question, and at least in the case of asthma, he found it was not a medical matter.

We note the irregularity in the decision but that is the way the decision is presented on the CAVC website, this is a copy and paste of that presentation.

However, symptomatology descriptive of an already diagnosed condition’s
aggravation is not necessarily a medical matter, as evidenced by the observable symptoms noted under 38 C.F.R. § 4.97, Diagnostic Code (DC) 6602 (Bronchial asthma) (2010). Under DC 6602, bronchial asthma

============
Thus, the Court is left to guess why the Board determined that the standard for determining aggravation involved anabi”
grade the veteran’s asthma as mild, moderate, severe, etc.”(R. at 9), and that
the aggravation of asthma, as opposed to its diagnosis, requires special medical knowledge. See id. Thus, the Board failed to provide an adequate statement of reasons or bases for its decision. See 38 U.S.C. § 7104(d)(1); Allday v. Brown, 7 Vet.App. 517, 527 (1995); Gilbert, 1 Vet.App. at 57. On remand, the Board is directed to determine whether the appellant’s family members’ lay evidence that describe readily observable symptomatology is competent to be material evidence of the aggravation of asthma under current caselaw, and provide an adequate statement of reasons or bases for its decision to facilitate possible review in this Court. See, e.g., Davidson , Jandreau, and Buchanan, all supra; see also id.”

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U.S. Court of Appeals for Veterans Claims

Search Terms: AGGRAVATION
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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 08-3036
SAMMY L. MORRISON, 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,SammyL.Morrison,appeals through counsel an
August
27, 2008, Board of Veterans’ Appeals (Board) decision that denied a
request to reopen a claim for
service connection for asthma because new and material evidence had not
been received. Record
(R.) at 3, 11. Both parties filed briefs, and the appellant filed a reply
brief. This appeal is timely,
and the Court has jurisdiction pursuant to 38 U.S.C. §§ 7252(a) and 7266(
a). A single judge may
conduct this 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 August 2008 decision and remand
the matter for further
proceedings consistent with this opinion.
I. FACTS
A. Military, Medical, and Procedural History
Mr. Morrison served in the U.S. Air Force from May 1966 to February 1967,
when he was
medicallydischarged with a diagnosis of bronchial asthma, extrinsic,
multiple allergens. R. at 2550,
2587. A medical board determined his disability existed prior to service
and had not been
aggravated thereby. R. at 2550; see R. at 2548-49 (January1967 medical
examination report stating

the diagnosis as “recurrent since age 12”). In May 1973, Mr. Morrison
filed a VA application for
compensation or pension for asthma. R. at 2578-79, 2706. That year, Mr.
Morrison filed astatement
with VA:
Since the time that I received my medical discharge I have not been able
to properly
work and h[o]ld a job. I am now in the Colorado State Penitent[i]ary and I
am still
affected with asthma. For some time I was not bothered with this asthma
but for [a]
couple of months or so I have been bothered with it.
R. at 2583.
In June 1973, the regional office (RO) issued a decision denying service
connection for
bronchial asthma, explaining that the
[e]ntrance examination on May 25, 1966 was negative. In August, 1966, he
was
treated for bronchial asthma with subsequent treatment on approximately 15
occasions. The service records further show asthma since the age of 12
with
intermittent attacks every two or three months. . . .
The veteran began to receive treatment for asthma within three months of
entry into
active duty. The manifestations reported during service were seasonal
exacerbations
due to the inherent nature of the basic pre-service condition and do not
reflect an
increaseindisabilityto warranta finding ofaggravation.
Heispresentlyincarcerated
and there is no evidence of disability which would preclude substantially
gainful
employment.
R. at 2577. Mr. Morrison did not appeal this decision and it became final.
See R. at 4.
In 1979, Mr. Morrison filed another claim for VA compensation or pension,
explaining that
“I have had asthma since age 12 yrs.” R. at 2570-73. VA interpreted this
claim as a request to
reopen, and sent a letter to Mr. Morrison on June 26, 1979, stating, in
part: “In the absence of any
new and material evidence, this [1973] decision remains final.” R. at 2569.
In July 1980, Mr.
Morrison filed another VA application for compensation or pension,
explaining: “I contend that my
asthma condition became chronic only after I was assigned to Fairchild AFB
Washington, therefore
my service contributed to the worsening of the condition and I should be
service connected.” R. at
2564-66. Laterthat month, VAsent Mr.Morrisona letterstating: ”
Filingofanotherapplicationdoes
not serve to reopen your claim. . . . If you have any new and material
evidence to submit in support
of your claim, we shall be happy to consider it, otherwise, no further
action can be taken.” R. at
2563.
2

In January 2002, Mr. Morrison requested his claim be reopened “due to the
worsening
condition thereof.” R. at 2510. Mr. Morrison stated: “Although slightly
existing prior to my period
of service, my[asthmatic] condition was aggravated during myenlistment,
and continues to become
more disabling; the Air Force was aware of my asthma when I enlisted.” Id.
In April 2002, Ms.
Joyce E. Guthrie, Mr. Morrison’s sister, filed a statement in support of
claim, explaining that “[i]n
1967, after being discharged from the Air Force, Sammy came to live with
me. . . . He stayed with
us for approximately three (3) years because his asthmatic condition had
become so bad that he was
unable to work and maintain his own household.” R. at 2506. In January
2003, VA received a
statement in support of claim from Mr. Morrison’s first cousin, stating: ”
As an asthmatic myself, I
am very familiar with its characteristics. . . . [I]mmediately upon his
discharge from the service
(1967) I observed his asthmatic condition to have worsened severely and he
required ongoing
medication.” R. at 2505. That month, VA also received a statement in
support of claim from Bobby
Jean Wallace, stating that Mr. Morrison had informed him his asthma had
gotten worse in service
and “[d]uring his visit with me [in 1967] I did observe he was undergoing
so called asthma attacks.”
R. at 2504. In March 2003, Mr. Morrison filed a statement in support of
claim, explaining: “At the
age of 12 I was once diagnosed with an acute asthma attack. I never again
experienced that [], until
I entered the military.” R. at 2498.
In May 2003, a VA regional office (RO) continued the denial of service
connection for
bronchial asthma because the evidence submitted was not new and material.
R. at 2445-7. The RO
determined that the laytestimonyprovided was not based on medical fact
that Mr. Morrison’s asthma
was aggravated by service “beyond normal progression of the preexisting
condition.” R. at 2446.
In August 2003, Mr. Morrison filed a Notice of Disagreement (NOD). See R.
at 2442-3. In
September 2003, the RO issued a Statement of the Case (SOC). R. at 2425-41.
The RO explained:
“Lay testimony received does not provide evidence based on medical fact
that your asthma was in
fact aggravated by service beyond normal progression of the preexisting
condition.” R. at 2441. In
February 2004, Mr. Morrison underwent a VA compensation and pension
examination. R. at 2385-
91. In August 2004, the RO issued a Supplemental Statement of the Case,
continuing to deny a
reopening of Mr. Morrison’s claim. R. at 2366-79. A 2005 Board decision
was remanded after this
Court ordered that the parties’ joint motion for remand be granted. R. at
2303-07; see R. at 2269.
3

In January 2008, Mr. Morrison filed his sworn affidavit stating, in part: ”
The VA is trying
to say that I have been treated for asthma since the age of 12. That is
totally incorrect. I stated that
at the age of 12 years old I had some shortness of breath . . . .” R. at
2274. Mr. Morrison’s legal
counsel sent an accompanying letter, explaining: “[T]he VA has contended
that the veteran had said
he had asthma prior to service. He denies he ever said such a thing.” R.
at 2273.
On August 27, 2008, the Board issued the decision here on appeal. R. at 3-
11. The Board
determined that the veteran had not submitted new and material evidence,
and declined to reopen
his claim. R. at 11.
B. The Parties’ Arguments
The appellant argues that he was prejudiced by the Board’s failure to
adequately identify the
date of the last final denial of the claim; the appellant’s burden in
reopening a denial based on a
preexisting condition is less than that required to reopen a denial based
on other factors; and that the
Board failed to recognize that new and material evidence had been
submitted as to the issues of
preexistence and Previous DocumentaggravationNext Hit. Appellant’s (App.) Brief (Br.) at 8, 13, 18.
The appellant requests this
Court remand this matter. Id. at 23. The Secretary argues that the Court
should affirm the Board’s
decision disputing the appellant’s argument regarding the burden he bears
to support reopening and
that the appellant has failed to establish prejudicial error. Secretary’s
Br. at 2.
II. ANALYSIS
A. Date of Last Final Decision
First, the appellant argues that he was prejudiced bythe Board’s failure
to adequatelyidentify
the date of the last final denial of the claim. App. Br. at 8. The Board
stated that “[i]n a June 1973
decision, the RO denied service connection for asthma; this determination
was confirmed and
continued in July 1979 and July 1980 determinations.” R. at 4. The
appellant appears to argue that
VA erred in handling the 1979 and 1980 requests to reopen, as such, the
only “final” decision is that
of 1973. App. Br. at 10-12. The appellant asserts that this is relevant
because the Board may not
have reviewed evidence associated with the claim between 1973 and 1980
once it stated that the
1980 request to reopen was final. App. Br. at 12. However, the Board did
discuss evidence of
record from prior to 1980:
4

At the time of those decisions [1973, 1979, and 1980], the service
entrance
examination was normal but service medical records [SMRs] revealed
treatment for
asthma which the service department found existed prior to service and was
not
aggravated byservice. The veteran had provided a detailed historyabout pre-
service
symptoms and treatment, and his asthma had cleared at the time of
treatment of [his]
last in-service bout in January 1967.
R. at 6. Further, the appellant admits that apart from additional claims
forms and denial letters, the
file contains no evidence of record from between 1973 and 2002. App. Br.
at 21. Thus, the Court
is not persuaded that the appellant’s argument has any merit.1
See Hilkert v. West, 12 Vet.App. 145,
151 (1999) (en banc) (“An appellant bears the burden of persuasion on
appeals to this Court.”), aff’d,
232 F.3d 908 (Fed. Cir. 2000); Berger v. Brown, 10 Vet.App. 166, 169 (1997
) (“[T]he appellant .
. . always bears the burden of persuasion on appeals to this Court.”); see
also Newhouse v. Nicholson,
497 F.3d 1298, 1302 (Fed. Cir. 2007) (“There is a presumption that VA
considered all of the
evidence of record.”).
B. Appellant’s Burden To Provide Evidence To Reopen
Secondly, the appellant argues that his burden in reopening a prior denial
based on a
preexisting condition is less than that required to reopen a denial based
on other factors. App. Br.
at 13. The appellant appears to assert that “[i]n order to determine if
the evidence submitted by[the]
[a]ppellant here constituted new and material evidence, his new evidence
must be evaluated against
the [clear and unmistakable] standards” under 38 U.S.C. §§ 1111 and 1153.
App. Br. at 15. To the
extent this is the appellant’s argument, he is incorrect. The correct
standard for determining whether
to reopen a claim is found under 38 C.F.R. § 3.156(a). Onlyafter a claim
is reopened would sections
1111 and 1153 apply. See 38 C.F.R. § 3.156(a) (2010) (“If new and
material evidence is presented
or secured with respect to a claim which has been disallowed, the
Secretary shall reopen the claim
and review the former disposition of the claim.”). To the extent the
appellant argues that there is a
“qualitativelydifferentstandard”inreviewingwhether evidence is new
andmaterial inapreexisting-
To the extent the appellant argues that he was prejudiced by not being
informed of “VA’s sympathetic system
of appellate rights” (R.at 22), the appellant fails to provide any support
for this contention. Thus, the Court will not
consider this argument. See Evans v. West, 12 Vet.App. 22, 31 (1998) (
stating the Court will give no consideration to
a “vague assertion” or “unsupported contention”); see also See Coker v.
Nicholson, 19 Vet.App. 439, 442 (2006) (“The
Court requires that an appellant plead with some particularity the
allegation of error so that the Court is able to review
and assess the validity of the appellant’s arguments.”), vacated on other
grounds sub nom. Coker v. Peake, 310 F. App’x
371 (Fed. Cir. 2008).
1
5

condition case as opposed to the standard used prior to reopening “an
adjudication based on a prior
denial of direct service connection,” he provides no support apart from
the erroneous possible
assertion noted above. See Hilkert and Berger, both supra.
The appellant also argues that the Board’s description of the new evidence
as not including
“anycompetent evidencethat cures the prior evidentiarydefect”(R. at 9)
indicates it applied a higher
evidentiary burden than required (App. Br. at 16). The Court concludes,
based on the Board’s
analysis of evidentiary requirements under 38 C.F.R. § 3.156(a) (R. at 8),
that the Board’s statement
is nothing more than poorly phrased and did not impact the overall
analysis. See McClain v.
Nicholson, 21 Vet.App. 319, 321 (2007) (stating that although clarity is
preferred, it cannot be
demanded in every instance or “finality would forever be delayed pending
perfection in
draftsmanship”); see also 38 U.S.C. § 7261(b).
C. New and Material Evidence
Next, the appellant argues that the Board failed to recognize that new and
material evidence
had been submitted as to the issues of preexistence and Previous HitaggravationNext Hit. App.
Br. at 18-23.2
“If new and
material evidence is presented or secured with respect to a claim which
has been disallowed, the
Secretary shall reopen the claim and review the former disposition of the
claim.” 38 U.S.C. § 5108.
According to the amended version of 38 C.F.R. § 3.156(a), which applies
in the instant case because
the appellant’s claim was filed after August 29, 2001, “new” evidence
means existing evidence not
previously submitted to Agency decisionmakers. 38 C.F.R. § 3.156(a). ”
Material evidence means
existing evidence that, by itself or when considered with previous
evidence of record, relates to an
unestablished fact necessary to substantiate the claim.” Id. “New and
material evidence can be
neither cumulative nor redundant of the evidence of record at the time of
the last prior final denial
of the claim sought to be reopened, and must raise a reasonable
possibility of substantiating the
claim.” Id. The Court reviews whether an appellant has submitted new and
material evidence to
reopen a previously denied claim under the “clearly erroneous” standard of
review, where, as here,
the new-and-material-evidence determination is “‘fact intensive’ and . . .
requires ‘the weighing of
To the extent the appellant argues that the RO misinterpreted the medical
records provided prior to its 1973
decision, that decision is final and not before the Court on a request to
reopen. See App. Br. at 18-20; cf. 38 C.F.R.
§ 3.156(a)
2
6

conflicting evidence and testimony.'” Suaviso v. Nicholson, 19 Vet.App.
532, 533 (2006) (quoting
Prillaman v. Principi, 346 F.3d 1362, 1367 (Fed. Cir. 2003)); see 38 U.S.C.
§ 7261(a)(4); Elkins v.
West, 12 Vet.App. 209, 217 (1999) (en banc) (“[W]e hold that new-and-
material-evidence
determinations willnow generallybereviewed under adeferential
standardandthat thestandardwill
ordinarily be the ‘clearly erroneous’ standard.”); Gilbert v. Derwinski, 1
Vet.App. 49, 52 (1990).
i. Preexisting Condition
The appellant asserts that the Board incorrectly interpreted his 2008
affidavit, and the lay
statements from his family members. App. Br. at 22. In regard to his 2008
affidavit, the Board
stated: “The veteran’s statements are duplicative of evidence already of
record.” R. at 9. Given that
the appellant, prior to the 1973 RO decision, claimed that his asthma
started during service, the
Court agrees with the Board that these statements are duplicative of the
evidence already of record.
See R. at 2579. Thus, the Board did not commit clear error in determining
the appellant’s lay
testimony was not new and material. See 38 C.F.R. § 3.156(a).
In regard to the laystatements from the appellant’s family members, the
Court does not agree
with the Board’s statement: “The lay persons are considered competent to
state observations, but not
to establish a diagnosis or etiology.” R. at 9. The U.S. Court of Appeals
for the Federal Circuit has
consistently held that “‘lay 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.'” Davidson v.
Shinseki, 581 F.3d 1313,
1316 (Fed. Cir. 2009) (quoting Jandreau v. Nicholson, 492 F.3d 1372, 1377 (
Fed. Cir. 2007)). The
Federal Circuit explicitly rejected the notion that competent medical
evidence is required when a
determinative issue involves medical etiology or diagnosis. Id. The
appellant argues that the lay
statements from the appellant’s family members are relevant because they
describe his preservice
health. App. Reply Br. at 8. The appellant asserts that “lay observations
of his condition prior to
service should have been regarded as probative of his preservice condition
.” App. Reply Br. at 8;
App. Br. at 17. However, none of the lay statements contradict the finding
that the appellant had
asthma prior to service. See R. at 2504-06. Rather, the lay statements
indicate that the appellant’s
asthmaticsymptomsincreasedafterservice. Seeid. Thus,
althoughtheBoardincorrectlyinterpreted
7

the law in regard to reviewing lay testimony discussing medical diagnosis
or etiology, it was
nonprejudicial in light of the fact that none of the lay testimony
contradicts the finding that the
appellant’s asthma preexisted service. See 38 U.S.C. § 7261(b)(2) (
providing that the Court shall
take due account of the rule of prejudicial error); Mayfield v. Nicholson,
19 Vet.App. 103, 116
(2005) (stating that the key to determining whether an error is
prejudicial is the effect of the error
on theessential fairnessoftheadjudication), rev’d on other grounds, 444 F.
3d 1328 (Fed. Cir. 2006);
R. at 6.
ii. Aggravation
Because there is no new competent evidence that the appellant’s asthma was
not preexisting,
the determinative issue in this case does not involve a diagnosis or
etiology. 3
Neither the appellant
nor the Secretary dispute that the appellant had asthma in service. App.
Br. at 1, Secretary’s Br.; see
R. at 6. Rather, the determinative issue is whether the appellant’s asthma
was aggravated byservice,
and the family member’s lay statements attest that there was an increase
in the appellant’s
symptomatology. See R. at 2504-06. Therefore, this new layperson evidence
must be evaluated as
to whether it is material evidence in regard to establishing Previous HitaggravationNext Hit.
This evaluation involves
making findings of fact, which the Board is required to make in the first
instance. See Buchanan v.
Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006).
The Board stated: “[T]hey are not competent, as laypersons, to grade the
veteran’s asthma as
mild, moderate, severe, etc., before, during, or after service, or to
indicate that service caused a
chronic increase in the severity of the veteran’s asthma. Medical
expertise is required.” R. at 9. The
Board cited Moray, to support its determination that the resolution of
whether there was Previous HitaggravationNext Hit
“turns on a medical matter.” R. at 9-10 (citing Moray v. Brown, 5 Vet.App.
211, 214 (1993)).
However, symptomatology descriptive of an already diagnosed condition’s
aggravation is not necessarily a medical matter, as evidenced by the observable symptoms noted under 38 C.F.R. § 4.97, Diagnostic Code (DC) 6602 (Bronchial asthma) (2010). Under DC 6602, bronchial asthma

3
The Court notes that although the appellant alternatively argues that he
never said he had asthma prior to
service (R. at 2273), apart from his own duplicative testimony, there is
no support for this contention in the record before
the Court. See R. at 2510 (letter from appellant stating that “[a]lthough
slightly existing prior to my period of service,
my [asthmatic] condition was aggravated during my enlistment”), 2537 (1966
medical notation that appellant had asthma
since age 12 with mild attacks every 2-3 months), 2571 (claim form signed
by appellant stating “I have had asthma since
age 12 yrs.”).
8

is evaluated based on several observable factors, such as “intermittent
inhalational or oral bronchodilator therapy,” and “dailyuse of systemic (oral or parenteral) high doses of corticosteroids or immuno-suppressive medications.” 38 C.F.R. § 4.97, DC 6602. Thus, the Court is left to guess why the Board determined that the standard for determining aggravation involved anabi”
grade the veteran’s asthma as mild, moderate, severe, etc.”(R. at 9), and that
the aggravation of asthma, as opposed to its diagnosis, requires special medical knowledge. See id. Thus, the Board failed to provide an adequate statement of reasons or bases for its decision. See 38 U.S.C. § 7104(d)(1); Allday v. Brown, 7 Vet.App. 517, 527 (1995); Gilbert, 1 Vet.App. at 57. On remand, the Board is directed to determine whether the appellant’s family members’ lay evidence that describe readily observable symptomatology is competent to be material evidence of the aggravation of asthma under current caselaw, and provide an adequate statement of reasons or bases for its decision to facilitate possible review in this Court. See, e.g., Davidson , Jandreau, and Buchanan, all supra; see also id.

The appellant is free to submit additional evidence and raise his
arguments to the Board on remand; and the Board is required to consider them as it provides expeditious treatment of this matter. See 38 U.S.C. § 7112; see also Kay v. Principi, 16 Vet.App. 529, 534 (2002); Kutscherousky v. West, 12 Vet.App. 369, 372 (1999) (per curiam order).

III. CONCLUSION
After consideration of the appellant’s and the Secretary’s briefs, and a
review of the record,
the Board’s August 27, 2008, decision is VACATED and the matter REMANDED
for proceedings
consistent with this opinion.
DATED: October 27, 2010
Copies to:
Theodore C. Jarvi, Esq.
General Counsel (027)
9

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