Veteranclaims’s Blog

February 16, 2011

Single Judge Application Maxson v. Gober, 230 F.3d; Lack of Treatment Does Not Equal Lack of Symptomatology

Filed under: Uncategorized — Tags: , — veteranclaims @ 10:31 pm

Excerpt from Decision Below:
“Citing the lengthy period without documented treatment for either disorder, the Board found that there had not been continuity of symptomatology for depression and anxiety or sinus trouble since discharge. R. at 8, 10. This finding is problematic for two reasons.
First, as this Court has often noted, “symptoms, not treatment, are the essence of any evidence of continuity of symptomatology.” Savage v. Gober, 10 Vet.App. 488, 496(1997);see also Wilson v. Derwinski, 2 Vet.App. 16, 19 (1991) (noting that the “regulation requires continuity of
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symptomatology, not continuity of treatment“). Though treatment that
document symptoms can be strong evidence, evidence of treatment for particular symptoms is not required. Second, the Board appears to have found that an absence of medical records documenting symptoms for a 30-year period was evidence that no such treatment (or symptoms) occurred. If so, this is also error. This Court has cautioned that the lack of actual evidence does not constitute substantive negative evidence. See McLendon v. Nicholson, 20 Vet.App. 79, 85 (2006). Yet, by finding that the “lengthy period without treatment is evidence that there has not been a continuity of symptomatology since discharge” (R. at 8 (emphasis added); accord R. at 10), the Board appears to have drawn impermissible conclusions from the appellant’s missing medical records.
Moreover, the Board cites to Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) to support this conclusion. However, in Maxson, the Federal Circuit held “that evidence of a prolonged period without medical complaint can be considered along with other factors concerning the veteran’s health and medical treatment,” id. at 1313 (emphasis added) — not the sole factor in determining whether a nexus has been established. Cf. Forshey v. Principi, 284 F.3d 1335, 1363 (Fed. Cir. 2002) (en banc) (Mayer, C.J., dissenting) (“Negative evidence, actual evidence which weights against a party, must not be equated with the absence of substantive evidence.”). Indeed, “the availability of medical records” is another factor for consideration mentioned by the court in Maxson, 230 F.3d at 1313.”

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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 09-0690
TILLMAN CAUDILL, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before SCHOELEN, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent.

SCHOELEN, Judge: The appellant, Tillman Caudill, through counsel, appeals
a February 20, 2009, Board of Veterans’ Appeals (Board) decision in which the Board denied entitlement to service connection for anxiety disorder and depressive disorder and for maxillary sinusitis and a deviated nasal septum. Record of Proceedings (R.) at 3-11. Both parties filed briefs. This appeal
is timely, and the Court has jurisdiction to review the Board’s decisions
pursuant to 38 U.S.C. §§ 7252(a) and 7266(a). Single-judge disposition is appropriate. See Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). Because the Board failed to adequately and properly discuss (1) whether the appellant met the threshold entitling him to a medical nexus examination, and (2) whether the
Secretary discharged his heightened duty to assist the appellant, the Court will vacate the Board’s decision, and remand the matter for further proceedings consistent with this decision.

I. BACKGROUND
The appellant served on active duty in the U.S. Army from December 20,
1960, through December 9, 1963. R. at 383. In October 2003, the appellant filed a claim for service connection for depression and anxiety disorders (R. at 1490-99); in December of that year, he filed a claim for

entitlement to service connection for “sinus trouble,” which became a
more specific claim for maxillary sinusitus and deviated septum. R. at 1477, 1346.
In a September 2004 letter, the appellant informed VA that he had
disclosed all available medical records but that his ex-wife had destroyed most of his medical records when they divorced in the early 1980s. He also stated that he was unable to find or obtain records from his private physicians. R. at 1412. On May 13, 2005, VA regional office (RO) issued a formal finding of unavailability for the appellant’s service medical records (SMRs) and morning reports. R. at 1400-
03. On the same day, the same VA employee who issued the finding of
unavailability contacted the
appellant via telephone. The substance of the discussion was summarized as
follows: “Called this veteran and informed him that we were still looking for the [SMRs.] Told him that we were going forward with this claim. If the records ever showed up to send them to us.” R. at 1399.
The appellant’s VA medical records contained diagnoses in the 1990s of
depression, anxiety, and sinus trouble. See, e.g., R. at 453, 723-27, 1469. None of these records address connection to appellant’s service. In lay statements, however, the appellant asserted that certain in-service incidents led to his medical problems. R. at 20-27, 569, 571-72, 1496, 1412.
On May 19, 2005, the RO issued a rating decision and denied all of the
appellant’s claims for
service connection, stating that there was no evidence that the relevant
conditions began in or were
caused by military service. R at 1346-51. The rating decision also states
that VA will continue to
look for the appellant’s records; there is no mention of the formal
finding of unavailability. R. at
1348-49. On June 7, 2005, the appellant filed a Notice of Disagreement and
asked VA to “keep my
file active” until they could locate his military records. R. at 1342. The
RO continued its denial of
the claims in a Statement of the Case and Supplemental Statement of the
Case. R at 51, 1312. The
appellant appealed to the Board. R. at 1308-09.
In its February 20, 2009, decision, the Board found that the appellant was
suffering from the
claimed disabilities, but denied his claims. The Board stated that the 30-
year gap between the
appellant’s discharge from service and the first medical documentation of
anxiety and depression
weighed against a finding of continuity of symptomatology. R. at 8.
Likewise, the Board denied
service connection for sinus troubles, finding that the appellant’s
statements regarding chronicity
were not credible based upon a gap in evidence of medical treatment. R. at
10-11. The Board
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mentioned, but did not discuss, the issues of VA’s heightened duty in the
case of lost records and the
appellant’s burden in obtaining access to a medical examination to help
establish service connection.
R. at 6-7.
The appellant seeks remand, arguing that the Secretary failed in his
statutory duty to assist
him in substantiating his claims in two ways. First, the appellant asserts
that the Secretary did not
afford him a medical examination to help establish an in-service nexus to
his current disorders.
Second, the appellant asserts that the Secretary failed in his heightened
duty to assist and duty to
notify in the case of lost records. On both issues, the appellant also
argues that the Board provided
inadequate reasons and bases for its findings that VA did meet its duties.
Appellant’s Brief (Br.) at
4-5. The Secretary replies that the Board’s decision is supported by the
preponderance of the
evidence, the appellant did not clear the threshold entitling him to a
medical examination, and VA
met its obligation to provide the appellant with records and related
notices. The Secretary also
suggests that any error or deficiency in the Board’s decision is harmless.
Secretary’s Br. at 3-4.
II. ANALYSIS
A. Medical Nexus Examination
The Secretary is required to provide a medical examination to a veteran
seeking disability
compensation when the following four criteria are met:
[T]here is (1) competent evidence of a current disability or persistent or
recurrent
symptoms of a disability, and (2) evidence establishing that an event,
Previous DocumentinjuryNext Hit, or
disease occurred in service or establishing certain diseases manifesting
during an
applicable presumptive period for which the claimant qualifies, and (3) an
indication
that the disability or persistent or recurrent symptoms of a disability
may be
associated with theveteran’s serviceor with another service-
connecteddisability, but
(4) insufficient competent medical evidence on file for the Secretary to
make a
decision on the claim.
McLendon v. Nicholson, 20 Vet.App. 79, 81 (2006). In deciding whether an
examination is
necessary, the Secretary must consider the record as a whole, “taking into
consideration all
information and lay or medical evidence (including statements of the
claimant).” 38 U.S.C.
§ 5103A(d)(2) (emphasis added). The third requirement — indication that
disability or symptoms
“may be” service-connected — establishes a “low threshold.” McLendon, 20
Vet.App. at 83.
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Furthermore, the Board must provide a statement of the reasons or bases
for its determination, adequate to enable an appellant to understand the precise basis for its decision,as well as to facilitate review in this Court. 38 U.S.C. § 7104(d)(1); Allday v. Brown, 7 Vet.App. 517, 527 (1995). To comply with this requirement, the Board must analyze the credibility and probative value
of the evidence, account for the evidence it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Caluza v. Brown, 7 Vet.App.498, 506 (1995), aff’d per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table).
The Board rejected the appellant’s claim that he should have been afforded
a VA medical examination because “there [was] no evidence of record beyond the
Veteran’s uncorroborated assertions” of a connection between his service and his disabilities. R. at 7; see also R. at 11 (denying service connection in part “because there is no medical opinion relating either disability to
military service”). To the extent that this is the basis for the Board’s
decision, it is error. Lay evidence may not be rejected solely because it is not corroborated by medical records. Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). As the Federal Circuit has explained:
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. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (footnote
omitted). This applies to questions of etiology as well as diagnosis. See Davidson v. Shinseki, 581 F. 3d 1313, 1316 (Fed. Cir. 2009). Although the competency and sufficiency of lay evidence are questions of fact that must be addressed by the Board in the first instance, Jandreau, 492 F.3d at 1377, the Board cannot summarily dismiss such evidence.
The lack of corroborating medical evidence, however, was not the only
basis for the Board’s denial of service connection. Citing the lengthy period without documented treatment for either disorder, the Board found that there had not been continuity of symptomatology for depression and anxiety or sinus trouble since discharge. R. at 8, 10. This finding is problematic for two reasons.
First, as this Court has often noted, “symptoms, not treatment, are the
essence of any evidence of continuity of symptomatology.” Savagev. Gober, 10 Vet.App. 488, 496(1997);see also Wilson v. Derwinski, 2 Vet.App. 16, 19 (1991) (noting that the “regulation requires continuity of
4

symptomatology, not continuity of treatment”). Though treatment that
document symptoms can be strong evidence, evidence of treatment for particular symptoms is not required. Second, the Board appears to have found that an absence of medical records documenting symptoms for a 30-year period was evidence that no such treatment (or symptoms) occurred. If so, this is also error. This Court has cautioned that the lack of actual evidence does not constitute substantive negative evidence. See McLendon v. Nicholson, 20 Vet.App. 79, 85 (2006). Yet, by finding that the “lengthy period without treatment is evidence that there has not been a continuity of symptomatology since discharge” (R. at 8 (emphasis added); accord R. at 10), the Board appears to have drawn impermissible conclusions from the appellant’s missing medical records.
Moreover, the Board cites to Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) to support this conclusion. However, in Maxson, the Federal Circuit held “that evidence of a prolonged period without medical complaint can be considered along with other factors concerning the veteran’s health and medical treatment,” id. at 1313 (emphasis addded) — not the sole factor in determining whether a nexus has been established. Cf. Forshey v. Principi, 284 F.3d 1335, 1363 (Fed. Cir. 2002) (en banc) (Mayer, C.J., dissenting) (“Negative evidence, actual evidence which weights against a party, must not be equated with the absence of substantive evidence.”). Indeed, “the availability of medical records” is another factor for consideration mentioned by the court in Maxson, 230 F.3d at 1313.
The appellant stated that he was not able to produce many of his medical
records because his former wife had destroyed them when they separated in the 1980s, and that the physicians who had treated him over the years had either disposed of their records or died. R. at 1412. Nevertheless, in his hearing before the Board,the appellant testified to the in-service incidents that he believes caused his current medical problems, the continuity of his symptoms from the time of the incidents to the present, and the fact that he sought medical treatment during and shortly after leaving service. R. at 20-27. Since the Board’s decision appears to reject the appellant’s lay statements for two impermissible grounds—lack of corroborating medical evidence and equating such lack of evidence with substantive negative evidence — the case must be remanded to the Board for it to clarify its reasons and bases.
The Court notes that though credibility and sufficiency of lay statements
are factual determinations to be made by the Board, in this case, the threshold of
evidence the Board required
5

to warrant a medical nexus examination seems too high. As McLendon’s
language makes clear, the elements necessary to warrant an examination are not equally onerous. A veteran must show current disability or symptoms by “competent evidence”; occurrence of an in-service event simply with “evidence”; and an association between the two is merely indicated. See McLendon, 20 Vet.App.
at 81. The Board’s discussion appears to suggest that “competent evidence”
is required to show an association between a disability and an in-service event in order to satisfy McLendon’s third prong. See R. at 7 (citing Wells v. Principi, 326 F.3d 1381 (2003), for proposition that the “Board [is] under no obligation to obtain a medical opinion when there is no competent evidence that the Veteran’s disability or symptoms were service related”); 9 (“[T]he evidence of record does not show by competent evidence that an in-service event or injury led to the development of his current mental disabilities.”). This is incorrect. See Waters v. Shinseki, 601 F.3d 1274, 1277 (Fed. Cir. 2010)
(stating that evidence “indicating” that a condition “may be associated”
with service need not be “competent”). Indeed, by using one and the same analysis to discuss whether the appellant qualified for a medical nexus examination and for service connection (see R. at 7), the Board’s opinion appears to suggest that the level of proof for both was the same. Requiring the same evidentiary threshold to
establish entitlement for service connection and to establish entitlement
for a medical examination to help determine entitlement for service connection would be pointless.
Therefore, on remand the Board should provide separate reasons and bases explaining whether the lay evidence submitted by the appellant is sufficient to trigger the low threshold required to obtain a medical examination under McLendon. See Locklear v. Nicholson, 20 Vet.App. 410, 418 (2006) (Board’s decision denying McLendon examination must be supported by adequate reasons and bases).

B. Heightened Duty To Assist and Notify
The appellant argues that the Secretary breached his duty to assist with
obtaining his SMRs because the Secretary never issued a formal finding of unavailability, and because the Secretary failed to notify him of that unavailability. Br. at 9-10. In reply, the Secretary argues that VA did
issue such a formal finding and that the appellant has failed to allege
how he was prejudiced.
Secretary’s Br. at 14. The Board determined that VA fulfilled its duty to
assist. R. at 7. Generally,
this is a finding of fact that the Court reviews under the “clearly
erroneous” standard of review. See
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Nolen v. Gober, 14 Vet.App. 183, 184 (2000).
Obtaining relevant records on behalf of the veteran is part of the
Secretary’s statutory duty
to assist. 38 U.S.C. § 5103A(a)(1), (b)(1). The Secretary must pursue
efforts to obtain such records
until “it is reasonably certain that such records do not exist or that
further efforts to obtain those
records would be futile.” 38 U.S.C. § 5103A(b)(3). When the Secretary
determines that he cannot
obtain the records being sought, he must notify the veteran of this fact,
disclose the identity of the
unobtainable records, explain the efforts he made to obtain them, and
describe the further action he
will take regarding the veteran’s claim. 38 U.S.C. § 5103A(b)(2).
Specifically, the Secretary must
notify the veteran that VA will decide the claim based on the available
evidence unless the veteran
submits missing evidence,and that the veteran is “ultimately responsible for
providing the evidence” necessary to support his claim. 38 C.F.R. § 3.159(e)(1). When a veteran’s records in the possession of VA are known to be lost or destroyed, VA is under a “heightened duty” to assist the veteran in developing his claim. Washington v. Nicholson, 19 Vet.App. 362, 370 (2005).
The Secretary is correct that a memorandum of formal finding of unavailability was issued. R. at 1400. The question is whether the Secretary adequately informed the appellant of that finding.
Based upon the record before the Court, the notification was not adequate.
The memorandum of unavailability was addressed “To: File,” not the appellant. R at 1400.
According to the contact report, VA told the appellant that it was continuing to search for his records and that his claim was “going forward.” R. at 1399. Obviously, such a statement could not inform the appellant that VA had discontinued the search for his records. Nor is it clear whether the statement — “If the records
ever showed up to send them to us” — was a request directed to the
appellant or a report of the request made to National Personnel Records Center employees. R. at 1400.
The RO repeated that VA would continue to look for the appellant’s lost records. R. at 1348-49. And the appellant, based on these statements, thought VA would persist in searching for his records. R. at 1342. Therefore, the Secretary failed to notify the appellant that his records were unavailable and that VA would no
longer try to find them, as he was required to do by law. See 38 § 5103A(
b); 38 C.F.R. § 3.159(e)(1). Thus, the Board’s finding that the Secretarymet his duty to assist is clearly erroneous.
This is especially so as VA was under a heightened duty to assist the
appellant in developing
his claim, due to the loss of his records while in the VA’s possession.
Russo v. Brown, 9 Vet.App.
7

46, 51 (1996). Beyond the bare mention of this duty and the assertion it
was met, the Board did not
discuss how the Secretary fulfilled this duty. In a case such as this, the
Board also is “under a
heightened duty to consider and discuss the evidence of record and supply
well-reasoned bases for
its decision as a consequence of the missing [records].” Washington v.
Nicholson, 19 Vet.App. 362, 371 (2005). As discussed supra, the Board was less than clear in its discussion of the McLendon issue. Many of this Court’s cases have discussed specific actions VA should have taken in discharging this heightened duty, such as undertaking a search for alternative medical records,
Cuevas v. Principi, 3 Vet.App. 542, 548 (1992); advising the veteran on
the use of “buddy statements”for corroboration, Garlejo v. Derwinski, 2 Vet.App. 619, 620-21 (1992); and attempting to obtain such statements itself, Washington, 19 Vet.App. at 371. There is no evidence in the record that VA took any steps of this kind after it determined that the appellant’s records were unavailable.
The Secretary asserts that VA informed the appellant several times that he
could submit additional evidence, and seems to suggest that this somehow discharged the Secretary’s heightened duty to assist. Secretary’s Br. at 13-14. But the Secretary owes this basic duty to any claimant who has substantially completed an application for a claim. 38 U.S.C. § 5103(a); see also 38 U.S.C. § 5103A (imposing duty on Secretary to assist claimant in obtaining evidence). A heightened duty to assist specific claimants must encompass more than the minimum duty owed to all claimants. On remand, the Board should discuss whether VA fulfilled its heightened duty to assist, mindful of its own heightened duty.

III. CONCLUSION
After consideration of the appellant’s and the Secretary’s pleadings, and
a review of the record, the Board’s February20, 2009, decision is VACATED and the
caseREMANDED for further proceedings consistent with this decisions.
DATED: February 3, 2011
Copies to:
Jenny Y. Twyford, Esq.
VA General Counsel (027)
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