Veteranclaims’s Blog

November 25, 2010

Duenas v. Principi, No. 03-1251, Medical Examination, 5103A.

We noticed that there have been a number of searches for Duenas v. Principi lately so we have gotten that CAVC decision and placed it below:

From various Board Decisions:

“The U.S. Court of Appeals for Veterans Claims (Court) held in Duenas that where there is an in-service notation of a potentially relevant abnormality, a medical opinion may be required to aid in substantiating the claim. Duenas v. Principi, 18 Vet. App. 512 (2004).”
======
“The record before VA need only (1) contain competent evidence that the veteran has persistent or recurrent symptoms of current disability and (2) indicate that those symptoms may be associated with the veteran’s active military service. Duenas v. Principi, 18 Vet. App. 512 (2004).”
+++++++++++++++++++++++++++++++++++++++++++++++++++
Medical treatise, Timberlake v. Gober,

“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)).”
+++++++++++++++++++++++++++++++

Skip navigation
U.S. Court of Appeals for Veterans Claims
Search Terms: DUENAS This version includes the errata dated 15Feb05 – e

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS

No. 03-1251

Pedro P. Duenas, Appellant,

v.

Anthony J. Principi,
Secretary of Veterans Affairs, Appellee.

On Appeal from the Board of Veterans’ Appeals

(Decided December 15, 2004 )

Pedro P. Duenas, pro se.

Tim S. McClain, General Counsel; R. Randall Campbell, Assistant
General Counsel; Kathy A. Banfield, Deputy Assistant General Counsel; and
Cathy A. Chase, all of Washington, D.C., were on the brief for the
appellee.

Before IVERS, Chief Judge, and GREENE and HAGEL, Judges.

The opinion of the Court is per curiam. HAGEL, Judge, filed a
concurring opinion.

PER CURIAM: Pedro P. Duenas, who is unrepresented, appeals a May 13,
2003, Board of Veterans’ Appeals (Board) decision in which the Board
denied his claims for service connection for (1) a urinary tract infection
, (2) poor vision, (3) a hearing-loss disability, (4) a gastrointestinal
disorder, (5) asthma, (6) bronchitis, (7) emphysema, (8) heart disease,
and (9) hypertension. The Court has jurisdiction pursuant to 38 U.S.C.
7252(a) and 7266(a) to review the May 2003 Board decision. For the
following reasons, the Court will affirm the May 2003 decision with
respect to Mr. Duenas’s claims for service connection for a urinary tract infection, poor vision, a hearing-loss disability, a gastrointestinal disorder, asthma, bronchitis, emphysema, and hypertension. The Court will vacate the decision with respect to his claim for service connection for heart disease and will remand that matter for a more careful consideration of whether Mr. Duenas is entitled to a VA medical examination.

I. FACTS
Mr. Duenas had recognized Philippine guerilla service from March 1945
to February 1946, service in the Regular Philippine Army from February
1946 to March 1946, and active-duty service in the U. S. Army from July
1946 to March 1949. Record (R.) at 26-34, 41-44, 56-57. In September
1999, he filed with a VA regional office claims for service connection for
lung ailments, asthma, hypertension, heart disease, a urinary tract
infection, poor vision and hearing, and gastritis. R. at 16. Along with
his application, he submitted statements from Dr. Florante D. Iglesias,
who treated him from 1954 to 1963, and Dr. Reynaldo G. Patriarca, who has
treated him since 1964. R. at 21-23. (Although the Board stated that Dr.
Iglesias’s statements indicate treatment from “1944,” the Court observes
that the statements appear to indicate treatment from 1954. R. at 7, 22,
74-75. The Court also notes that the regional office interpreted these
statements as indicating treatment from 1954. R. at 88-89, 114.) Both
doctors stated that they had treated him for asthma and bronchitis. Id.
Dr. Patriarca also reported that Mr. Previous HitDuenasNext Hit’s complaints of dyspnea, or shortness of breath, and easy fatigability suggest emphysema and that Mr. Duenas may be “prone to . . . hypertension.” Id.
During the development of his claims, VA requested Mr. Duenas service medical records and other records related to him. R. at 38-39, 47-48. In response to those requests, VA received the record of his February 1946 discharge examination. R. at 58. In that record, under the heading “Record of Physical Examination,” the examining U.S. Army Medical Corps officer, in all but one instance, entered either “normal,” “none,” or “complete” in the spaces provided for comments regarding certain disorders and parts of the body. Id. The one exception was in the section for
comments regarding the “Cardiovascular System,” in which the examining
medical officer entered the notation, “[t]achycardia.” Id. Tachycardia
is defined as “excessive rapidity in the action of the heart.” Dorland
‘s Illustrated Medical Dictionary 1655 (28th ed. 1994) [hereinafter
Dorland’s]. The regional office also received an Affidavit for
Philippine Army Personnel, dated February 27, 1946, and signed by Mr.
Previous HitDuenasNext Hit, in which he attested that he had not incurred any wounds or illness since December 1941. R. at 62.
In addition, VA requested further information from Drs. Iglesias and
Patriarca. R. at 68, 70- 71. In his response, Dr. Iglesias explained
that Mr. Previous HitDuenasNext Hit’s treatment records were either lost or misplaced but that he recalled treating Mr. Previous HitDuenasNext Hit “on and off” from 1954 to 1963 for the illnesses mentioned in the doctor’s previous statement. R. at 73-74.
Dr. Patriarca responded that his first statement was a sufficient account
of Mr. Previous HitDuenasNext Hit’s diagnoses and notified VA that he could not give a
detailed description of his treatment since 1964 because all of Mr.
Previous HitDuenasNext Hit’s records that were more than five years old had been deleted from
his file. R. at 77.
The regional office eventually denied Mr. Previous HitDuenasNext Hit’s claims for
service connection, and he appealed its decision to the Board. R. at 85-
90. In his appeal to the Board, he made the following statement:
My ailments have been recurring since service, especially my heart
and lung problems. The symptoms have been consistent since I was
separated from service up to the present time . . . [and have]
consisted of . . . difficulty in breathing, easy fatigability, and
worse[,] my recurring rapid heartbeat.

R. at 117.
The Board, in the decision on appeal, determined that VA was not
required, under 38 U.S.C. 5103A(d), to provide Mr. Previous HitDuenasNext Hit with a medical
examination because “the evidence before the Secretary . . . [did not]
indicate that the disorders at issue may be associated with [Mr. Previous HitDuenasNext Hit
‘s] active military service.” R. at 5. The Board also concluded that an
examination was not required because “there [was] no reasonable
possibility that an examination would aid in substantiating [Mr. Previous HitDuenasNext Hit
‘s] claim[s].” Id. With respect to the merits of his claims, the Board
concluded that his claimed disabilities “were not incurred in or
aggravated by service.” R. at 3.
On appeal to this Court, Mr. Previous HitDuenasNext Hit raises three arguments. First,
he argues that VA did not fulfill its duty to assist him insofar as it
failed to provide him with medical examinations with respect to his
claims for service connection for heart disease, poor vision, and a
hearing-loss disability. Informal Brief (Br.) at 1-2. Second, Mr. Previous HitDuenasNext Hit
asserts that the Board should not have held his February 1946 affidavit
against him. Id. at 1. Third, he argues that the opinions of his doctors
should be given “credence” with respect to his claims for asthma,
bronchitis, and hypertension. Id. at 2.
The Secretary argues that VA was not required under section 5103A to
provide Mr. Previous HitDuenasNext Hit with a medical examination. Secretary’s Br. at 11-14.
The Secretary reasons that an examination was not required with respect to
Mr. Previous HitDuenasNext Hit’s claims of poor vision and a hearing-loss disability because
Mr. Previous HitDuenasNext Hit “[had] not submitted competent evidence of a current disability”
and because the record did not “contain competent evidence that [his]
claimed disabilities are associated with his service.” Id. at 12-13.
Similarly, the Secretary contends that VA was not required to provide a
medical examination with respect to Mr. Previous HitDuenasNext Hit’s claim of heart disease
because the record did not “contain medical evidence of a current heart
disability.” Secretary’s Br. at 14. Further, the Secretary argues that
the Board properly denied Mr. Previous HitDuenasNext Hit’s claims for service connection
because his “claims for the most part are completely lacking in any kind
of supportive evidence.” Id. at 6-7.

II. ANALYSIS
A. Duty to Provide a Medical Examination under 38 U.S.C. 5103A(d)
1. Applicable Laws and Regulations
Even prior to the enactment of the Veterans Claims Assistance Act of
2000, Pub. L. No. 106- 475, 114 Stat. 2096 (Nov. 9, 2000), VA had a duty
to assist claimants “in developing the facts pertinent to a claim” and
that duty to assist included, in certain situations, providing the
claimant with a medical examination. 38 U.S.C. 5107(a) (1999); see
Green v. Derwinski, 1 Vet.App. 121, 124 (1991). However, under a line of
cases decided prior to the enactment of the Veterans Claims Assistance Act
of 2000 and culminating in this Court’s decision in Morton v. West, that
duty was not triggered unless a claimant first demonstrated, as a
threshold matter, that the claim at issue was well grounded. Morton, 12
Vet.App. 477, 486 (1999); Caluza v. Brown, 7 Vet.App. 498, 505-06 (1995),
aff’d, 78 F.3d 604 (Fed. Cir. 1996) (table). A claim was considered to be
well grounded if the claimant provided “competent evidence of current
disability (a medical diagnosis), . . . of incurrence or aggravation of
a disease or injury in service (lay or medical evidence), . . . and of a
nexus between the in-service injury or disease and the current disability (
medical evidence).” Caluza, 7 Vet.App. at 506. Whether the claimant
ultimately prevailed on the merits of the claim was a separate matter.
See id. at 507-13.
Displeased with the Morton decision, which the Committees on
Veterans’ Affairs deemed a “significant barrier to veterans who need
assistance in obtaining information and evidence in order to receive
benefits from . . . VA,” Congress eliminated the well-grounded-claim
requirement by enacting the Veterans Claims Assistance Act of 2000. See
146 Cong. Rec. H9913-14 (Oct. 17, 2000) (Explanatory Statement by the
House and Senate Committees on Veterans’ Affairs); Luyster v. Gober, 14
Vet.App. 186, 186 (2000). The Committees also noted that under VA’s ”
claimant friendly” and “non-adversarial” adjudicative system, “VA must
provide a substantial amount of assistance to a [claimant] seeking
benefits.” 146 Cong. Rec. at H9913 (citations omitted). Congress
highlighted the importance of providing medical examinations and opinions
as part of that assistance by establishing standards for determining when
VA is required to provide examinations and opinions. See 38 U.S.C.
5103A(d). Under the new legal framework, there is generally no
prerequisite to receiving VA assistance; VA is simply required to assist a
claimant at the time that claimant files a claim for benefits. See 38 U.S.
C. 5103A(a); 38 C.F.R. 3.159(c) (2003). Whether the claimant prevails
on the merits of the claim, however, remains a separate matter.
Under section 5103A(b), VA’s duty to assist includes making ”
reasonable efforts to obtain relevant records,” such as service medical
records, records from VA health-care facilities, and private medical
records, so long as the claimant adequately identifies those records to
the Secretary and authorizes the Secretary to obtain them. Depending on
the record of evidence provided by the claimant, or after any such
development, VA’s duty to assist may also include, under section 5103A(d),
providing a claimant with a medical examination:
(1) In the case of a claim for disability compensation, the
assistance provided by the Secretary under subsection (a) shall
include providing a medical examination or obtaining a medical
opinion when such an examination or opinion is necessary to make a
decision on the claim.
(2) The Secretary shall treat an examination or opinion as
being necessary to make a decision on a claim for purposes of
paragraph (1) if the evidence of record before the Secretary, taking
into consideration all information and lay or medical evidence (
including statements of the claimant)- (A) contains
competent evidence that the
claimant has a current
disability, or persistent
or recurrent symptoms of
disability; and
(B) indicates that the disability or symptoms may be
associated with the claimant’s active military, naval, or air
service; but
(C) does not contain sufficient medical
evidence for the Secretary to make a decision on
the claim.

38 U.S.C. 5103A(d) (emphasis added); see Wells v. Principi, 326 F.3d
1381, 1384 (Fed. Cir. 2003) (holding that proof of current disability
alone is insufficient to trigger Secretary’s obligation to provide medical
examination); Charles v. Principi, 16 Vet.App. 370, 374-75 (2002) (holding
that appellant’s own lay testimony regarding symptoms is sufficient to
satisfy section 5103A(d)(2)(B) when symptoms are “capable of lay
observation”).
The Secretary implemented section 5103A(d) in 38 C.F.R. 3.159(c)(
4)(i), which was made applicable to any claim for benefits pending before
the Department and “not decided by VA” as of November 9, 2000. 66 Fed.
Reg. 45,620, 45,629-31 (Aug. 29, 2001). Under the regulation, an
examination is necessary
if the information and evidence of record does not contain sufficient
competent medical evidence to decide the claim, but:
(A) Contains competent lay or medical evidence of a current
diagnosed disability or persistent or recurrent symptoms of
disability;
(B) Establishes that the veteran suffered an event, injury[,]
or disease in service . . . ; and
(C) Indicates that the claimed disability or symptoms may be
associated with the established event, injury, or disease in service
or with another service-connected disability.

38 C.F.R. 3.159(c)(4)(i) (emphasis added).
Although the regulation contains a requirement that is not present in
the statute, namely the requirement that the evidence of record “[e]
stablishes that the veteran suffered an event, injury, or disease in
service,” the U.S. Court of Appeals for the Federal Circuit has held that
the regulation is not in conflict with the statute. Paralyzed Veterans of
Am. v. Sec’y of Veterans Affairs, 345 F.3d 1334, 1355-57 (Fed. Cir. 2003).
In this regard, the Court notes that under section 5103A(a)(2) of the
statute, the Secretary “is not required to provide assistance to a
claimant under this section if no reasonable possibility exists that such
assistance would aid in substantiating the claim.” Because some evidence
of an in-service event, injury, or disease is required in order to
substantiate a claim for service connection and because a postservice
medical examination could not provide evidence of such past events, a
medical examination conducted in connection with claim development could
not aid in substantiating a claim when the record does not already
contain evidence of an in-service event, injury, or disease. See
Paralyzed Veterans of Am., 345 F.3d at 1355-57.
In addition, when deciding whether, under section 5103A(d) and 3.
159(c)(4), to provide a claimant with a medical examination, the Board is
required to provide a written statement of the reasons or bases for its
conclusion. 38 U.S.C. 7104(d)(1). That 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, 7 Vet.App. at 506. In the absence of a finding of
nonprejudicial error, vacatur and remand is warranted where the Board has
failed to provide an adequate statement of its reasons or bases for its
determinations. See Tucker v. West, 11 Vet.App. 369, 374 (1998); Soyini
v. Derwinski, 1 Vet.App. 540, 546 (1991) (holding that failure to provide
adequate statement of reasons or bases does not necessitate remand “in the
face of overwhelming evidence in support of the [Board’s] result in a
particular case”).
2. Examination with respect to Mr. Previous HitDuenasNext Hit’s Claim for Service
Connection for Heart Disease
Because Mr. Previous HitDuenasNext Hit’s appeal was pending before the Board on
November 9, 2000, the Board was required to consider section 5103A and
3.159(c) when it adjudicated his claims. See 38 U.S.C. 5103A(a);
Charles, 16 Vet.App. at 371-72, 374-75; 38 C.F.R. 3.159(c). The
record before the Secretary contained Mr. Previous HitDuenasNext Hit’s statement that he now
experiences “difficulty in breathing, easy fatigability, and [a] recurring
rapid heartbeat.” R. at 117. Mr. Previous HitDuenasNext Hit further asserted that those
symptoms are the symptoms of his claimed disabilities and that he has
experienced them since his separation from service. Id. The record also
contained Mr. Previous HitDuenasNext Hit’s discharge examination report that includes a
notation of an abnormality of his cardiovascular system-tachycardia. R.
at 58.
Although the Board concluded that a medical examination was not
required with respect to Mr. Previous HitDuenasNext Hit’s claim for service connection for
heart disease, it did not support that conclusion with an adequate
statement of reasons or bases. See 38 U.S.C. 5103A(d), 7104(d)(1);
Allday v. Brown, 7 Vet.App. 517, 527 (1995); 38 C.F.R. 3.159(c)(4).
Specifically, although the Board determined
that “the evidence before the Secretary [did] not . . . indicate that the
disorders at issue may be associated with [Mr. Previous HitDuenasNext Hit’s] active military
service,” it did not consider that, under section 5103A(d) and 3.159(c)(
4), the record before the Secretary need only (1) contain competent
evidence that he has persistent or recurrent symptoms of heart disease and (
2) indicate that those symptoms may be associated with his active military
service. See R. at 1-12 (emphasis added).
To support its conclusion properly, the Board was required to address (
1) whether difficulty in breathing, easy fatigability, and a recurring
rapid heartbeat are symptoms of heart disease; (2) whether Mr. Previous HitDuenasNext Hit’s
statement was competent evidence that he has experienced those symptoms
since his separation from service, see 38 U.S.C. 5103A(d)(2)(A); (3)
what tachycardia is and whether the symptoms that Mr. Previous HitDuenasNext Hit has
experienced since service may be associated with his in- service
tachycardia, see 38 U.S.C. 5103A(d)(2)(B); and (4) why “no reasonable
possibility” existed that an examination would aid in substantiating Mr.
Previous HitDuenasNext Hit’s claim. See R. at 5. The Board failed to address any of these
issues. See R. at 1-12.
3. Examinations with respect to Mr. Previous HitDuenasNext Hit’s Claims for Service
Connection
for Poor Vision and a Hearing-Loss Disability
The record before the Secretary contained Mr. Previous HitDuenasNext Hit’s statement
that he now experiences the symptoms of his claimed disabilities, but his
statement does not include a discussion regarding symptoms of poor vision
or a hearing-loss disability. R. at 117. Further, although Mr. Previous HitDuenasNext Hit
asserted that he has experienced the symptoms of his claimed disabilities
since his separation from service, the record also contained Mr. Previous HitDuenasNext Hit
‘s discharge examination report that indicated that he had 20/20
uncorrected bilateral vision and 15/15 bilateral hearing. R. at 58, 117.
As in the Board’s decision to deny an examination with respect to Mr.
Previous HitDuenasNext Hit’s claim for service connection for heart disease, the Board here
discussed only whether the disorders of poor vision and hearing loss may
be associated with Mr. Previous HitDuenasNext Hit’s service, not whether Mr. Previous HitDuenasNext Hit had
symptoms of those disorders and whether those symptoms may be so
associated. See 38 U.S.C. 5103A(d)(2)(A) and (B); R. at 1-12.
Therefore, the Board failed to provide an adequate statement of reasons or
bases to support its conclusion that a medical examination was not
required with respect to Mr. Previous HitDuenasNext Hit’s claims for service connection for
poor vision and a hearing-loss disability. See 38 U.S.C. 5103A(d),
7104(d)(1); Allday, 7 Vet.App. at 527; 38 C.F.R. 3.159(c)(4).
Specifically, the Board did not explain (1) whether Mr. Previous HitDuenasNext Hit’s
statement was competent evidence that he has the symptoms of poor vision
and a hearing-loss disability; (2) if it was competent evidence, why those
symptoms could not be associated with his service; and (3) why “no
reasonable possibility” existed that an examination would aid in
substantiating his claims. See R. at 1-12.
4. Application of 38 U.S.C. 7261(b)(2) regarding the Rule of
Prejudicial Error
Although the Board’s conclusion with respect to Mr. Previous HitDuenasNext Hit’s claims
for service connection for poor vision and a hearing-loss disability was
not supported by an adequate statement of reasons or bases, the Court
concludes that any such error was nonpredjudicial. See 38 U.S.C. 7261(
b); Conway v. Principi, 353 F.3d 1369, 1374-75 (Fed. Cir. 2004). In this
regard, even assuming that Mr. Previous HitDuenasNext Hit’s statement constitutes “competent
lay . . . evidence of . . . persistent or recurrent symptoms” of poor
vision and a hearing-loss disability, it does not address, and there is no
other evidence in the record that reflects, that he “suffered an event,
injury[,] or disease in service” that may be associated with those
symptoms. See 38 C.F.R. 3.159(c)(4)(i). Therefore, no reasonable
possibility was suggested by the record that an examination would have
aided in substantiating Mr. Previous HitDuenasNext Hit’s claims for service connection for
either of those two disabilities. See Paralyzed Veterans of Am., 345 F.3d
at 1356. With respect to an examination to evaluate Mr. Previous HitDuenasNext Hit’s
claimed heart disease, however, the record does contain an in-service
notation of tachycardia, which the examining medical officer noted as an
abnormality of the cardiovascular system. R. at 58. Accordingly, the
Court cannot speculate that a medical examination would not aid in
substantiating Mr. Previous HitDuenasNext Hit’s claim for service connection for heart
disease. See Allday, 7 Vet.App. at 527-28. A remand is therefore
required but only with respect to Mr. Previous HitDuenasNext Hit’s claim for service
connection for heart disease.
B. Service Connection
Service connection for VA disability compensation purposes will be
awarded to a veteran when the record before the Secretary contains (1) a
medical diagnosis of a current disability, (2) medical evidence of
incurrence or aggravation of a disease or injury in service, and (3)
medical evidence of a nexus between the in-service injury or disease and
the current disability. See 38 U.S.C. 1110; Caluza, 7 Vet.App. at 505;
38 C.F.R. 3.303 (2003).
A finding of service connection generally involves findings of fact.
See Russo v. Brown, 9 Vet.App. 46, 50 (1996). The Court is required to
reverse “a finding of material fact . . . if the
finding is clearly erroneous.” 38 U.S.C. 7261(a)(4). “[A] finding of
fact is clearly erroneous when although there is evidence to support it,
the reviewing court on the entire evidence is left with a definite and
firm conviction that a mistake has been committed.” Hersey v. Derwinski,
2 Vet.App. 91, 94 (1992) (quoting United States v. U.S. Gypsum Co., 333 U.
S. 364, 395 (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.
Here, because the Court will vacate the Board decision with respect
to Mr. Previous HitDuenasNext Hit’s claim for service connection for heart disease and will
remand that matter for readjudication, the Court need only consider his
remaining claims. In this regard, the Court notes that the Board denied
those claims because it determined that the record before the Secretary
did not contain evidence of in- service incurrence or aggravation of a
urinary tract infection, poor vision, a hearing-loss disability, a
gastrointestinal disorder, asthma, bronchitis, emphysema, or hypertension.
R. at 3, 8-11. First, as the Board correctly noted, Mr. Previous HitDuenasNext Hit’s 1946
discharge examination report reflects normal findings with respect to his
genitourinary system, abdominal viscera, and lungs; a negative chest x-ray;
20/20 uncorrected bilateral vision; 15/15 bilateral hearing; and a blood
pressure reading that is not indicative of hypertension. R. at 8-11, 58;
Dorland’s at 801. Second, Mr. Previous HitDuenasNext Hit indicated in his February 1946
affidavit that he had not incurred any wounds or illness since December
1941. R. at 8-11, 62. Third, Mr. Previous HitDuenasNext Hit’s doctors, in their statements,
do not relate any disabilities that Mr. Previous HitDuenasNext Hit may have to his period of
service. R. at 8-11, 21-23, 73-79. Finally, although the record contains
a statement by Mr. Previous HitDuenasNext Hit to the effect that his ailments have been
recurring since his service (R. at 117), the Court notes that expert med
ical evidence is necessary to establish the etiology of those
disabilities and that, because Mr. Previous HitDuenasNext Hit is not competent to provide such
medical evidence, his statements concerning the etiology of his alleged
disabilities are insufficient to demonstrate the in-service incurrence of
those disabilities. See Espiritu v. Derwinski, 2 Vet.App. 492, 494 (1992
). Given this evidence and considering the entire record before the Board
and the Secretary, the Court cannot conclude that the Board’s
determination in this regard is clearly erroneous. See 38 U.S.C. 7261(
a)(4); Hersey, 2 Vet.App. at 94; Gilbert, 1 Vet.App. at 52.
With respect to Mr. Previous HitDuenasNext Hit’s arguments that the Court should not
consider his February 1946 affidavit as evidence against his claim and
that the Court should give “credence” to his doctors’
statements regarding his claims for service connection for asthma,
bronchitis, and hypertension, the Court finds those arguments to be
unavailing. Specifically, the Court notes that whether or not it
considers the 1946 affidavit as evidence against Mr. Previous HitDuenasNext Hit’s claims,
the record, as the Board correctly noted, does not contain any evidence of
incurrence or aggravation of a disease or injury in service. In addition,
the doctors’ statements do not refer to the issue of whether Mr. Previous HitDuenasNext Hit
‘s claimed disabilities were incurred during, or aggravated by, his
service.

III. CONCLUSION
On consideration of the foregoing, the May 13, 2003, Board decision
is AFFIRMED to the extent that the Board denied Mr. Previous HitDuenasNext Hit’s claims for service connection for a urinary tract infection, poor vision, a hearing-
loss disability, a gastrointestinal disorder, asthma, bronchitis,
emphysema, and hypertension. The decision is VACATED with respect to Mr.
Duena claim for service connection for heart disease, and that matter
is REMANDED for readjudication consistent with this decision. On remand,
Mr. Duenas is free to submit additional evidence and argument in
accordance with Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999) (per
curiam order). See Kay v. Principi, 16 Vet.App. 529, 534 (2002). The
Court reminds the Board that “[a] remand is meant to entail a critical
examination of the justification for the decision.” Fletcher v. Derwinski,
1 Vet.App. 394, 397 (1991). In addition, the Secretary shall proceed
expeditiously, in accordance with 38 U.S.C. 5109B, 7112 (expedited
treatment of remanded claims).

HAGEL, Judge, concurring: I write separately because I believe that
a matter of great significance is at issue in this case and wish to
elaborate further on the views already expressed. The focus of the
Veterans Claims Assistance Act of 2000 was to ensure that all information
necessary to making a determination on a claim is obtained and presented
to the adjudicator as early on in the decision-making process as possible.
One section of that act, now codified in 38 U.S.C. 5103A(d), was
devoted to clarifying VA’s duty to assist veterans seeking disability
compensation in obtaining medical examinations. Whether or not a veteran
receives a VA medical examination can have a significant bearing on the
outcome of a veteran’s claim for disability compensation. If provided
with an examination, a veteran, although certainly not entitled to
benefits automatically, is afforded an
opportunity to obtain the expert medical evidence that is often necessary
to support a claim for benefits. If denied an examination by VA, however,
a veteran may be ill suited to acquire that evidence on his or her own.
The veteran is faced with the somewhat-daunting task of obtaining and
likely paying for a specialized opinion from an expert who may be
unfamiliar with the contents of the service medical and other treatment
records and who is uninformed regarding the importance of certain
standards peculiar to the needs of the VA adjudication system. Under
section 5103A(d), the initial decision to provide a veteran seeking
disability compensation with an examination rests with VA, and because of
the critical impact of such an examination on the outcome of the
adjudication, it is crucial that VA take this section into careful
consideration when making its decision.
The Board failed to do so in this case. Particularly, the Board
completely ignored the language of section 5103A that provides that the
necessity of an examination may be triggered by evidence that a claimant
has “persistent or recurrent symptoms of disability” and that those ”
symptoms may be associated with the claimant’s active military . . .
service.” 38 U.S.C. 5103A(d)(2)(A), (B) (emphasis added).
In its primary opinion, the Court enumerated a number of issues that
the Board is required to address on remand. Ante at 7-8. Although I am
fully cognizant of the principle that “[f]act finding in veterans cases
is to be done by the expert [Board], not by [this] Court,” Elkins v.
Gober, 229 F.3d 1369, 1377 (Fed. Cir. 2000), I would like to make the
following observations with respect to the issues that this Court has
noted. First, difficulty in breathing, easy fatigability, and a recurring
rapid heartbeat are described in some texts as symptoms of heart disease.
See David Schechter, M.D. & Roger Manwaring, Heart Disease, in 7
Attorneys’ Textbook of Medicine 30.31, .60, .62 (Roscoe N. Gray, M.D.,
et al. eds., 3d ed. 2003); 5A Lawyers’ Medical Cyclopedia 34.29 (A), (
C), (G), (K) (Richard M. Patterson ed., 5th ed. 2003). Second, it is
unclear to me why those three symptoms would not be “capable of lay
observation,” and therefore why Mr. Previous HitDuenasNext Hit would not be competent to
testify that he has experienced them.
At this point and in the absence of an explanation by the Board, I
cannot conclude that a recurring rapid heartbeat and other symptoms of
heart disease allegedly experienced by Mr. Previous HitDuenasNext Hit since his military
service could not potentially be associated with the tachycardia, or
excessive rapidity in the action of the heart, experienced by him during
service, as described on his discharge examination report. 38 U.S.C. 5103A(d)(2)(B); 38 C.F.R. 3.159(c)(4)(i)(C); R. at 58; Dorland’s at 1655. Further, given these observations and the Board’s incomplete discussion of the issues, I also
cannot conclude that there is no reasonable possibility that an
examination would aid in substantiating Mr. Previous HitDuenasNext Document’s claim. See 38 U.S.C. 5103A(a)(2). Under the Court’s opinion, the Board must discuss
thoroughly the issues raised by the Court and either order a VA
examination or explain clearly and comprehensively why, in light of
section 5103A(d)(2), no such examination is necessary.

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.