Veteranclaims’s Blog

April 26, 2011

Single Judge Application, Hilkert v. West, 12 Vet.App.(en banc), Demonstrate Violation Duty to Assist

Excerpt from decision below:
“Second, the record on appeal does not support Mr. Blount’s contention that
the duty to assist was violated when the Secretary failed to obtain medical records from a VA hospital in Florida. The record reflects that, although Mr. Blount requested the medical records, his request was made in the context of his claim for non-service-connected pension based on unemployability. See Record (R.)at 97 (“statement in support of claim” requesting the medical records and discussing his non-service-connected pension claim, but not his low-back disability claim). The duty to assist requires the Secretary to “make reasonable efforts to obtain relevant records,” and Mr. Blount fails to establish – or even posit – that the Florida medical records are relevant to his low-back disability claim. 38 U.S.C. § 5103A(a)(b)(1) (emphasis added). As such, he has not demonstrated a duty to assist violation. See Hilkert, supra.
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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 09-3828
RENARD M. BLOUNT, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before KASOLD, Chief Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
KASOLD, Chief Judge:
Veteran Renard M. Blount appeals through counsel an
August 24, 2009, decision of the Board of Veterans’ Appeals (Board) that
denied disability compensation for a low-back disorder. Mr. Blount contends that the Board erred by (1) failing to address his claim in light of 38 U.S.C. § 1154(b) (providing a relaxed evidentiary standard for combat veterans to establish in-service injury in certain circumstances), (2) finding the duty to assist satisfied even when the Secretaryfailed to obtain medical records from a VA hospital in Florida, and (3) relying on an inadequate medical report. The Secretarydisputes these contentions. Single-judge disposition is appropriate. Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). For the reasons stated below, the Board’s decision will be affirmed.

First, Mr. Blount’s argument that the Board failed to address his claim in
light of 38 U.S.C. § 1154(b) is inapposite. Even if the Board were to apply section 1154(b) and presume an in-service injury, a veteran who establishes an in-service injury through section 1154(b) “must nonetheless submit ‘sufficient evidence of a causal nexus.'” Dalton v. Nicholson, 21 Vet.App. 23, 37 (2007) (quoting Hickson v. West, 12 Vet.App. 247, 253 (1999)). Here, although the Board recognized Mr. Blount’s in-service back pain, it found no nexus between that injury and his current low-back disability because (1) the in-service pain was acute and not chronic, (2) he did not seek treatment for low-back problems for 17 years after service, (3) when he finally sought treatment, it was a week after a work-related fall, and (4) a VA examiner found that his current back disability was less likely than not due to service. Because Mr. Blount has not established clear error in the Board’s determination regarding a lack of nexus, even the application of section 1154(b) would not have provided the award of benefits that Mr. Blount seeks. See Soyini v. Derwinski, 1 Vet.App. 540, 546 (1991) (remand is unnecessary when it “would result in this Court’s unnecessarily imposing additional burdens on the [Board and the Secretary] with no benefit flowing to the veteran”); see also Hilkert v. West, 12 Vet.App. 145, 151 (1999) (en banc) (holding that appellant bears burden of demonstrating error on appeal); Russo v. Brown, 9 Vet.App. 46, 50 (1996) (noting that a finding of service connection, or lack thereof, is a finding of fact reviewed under the “clearly erroneous” standard of review); Gilbert v. Derwinski, 1 Vet.App. 49, 52 (1990).

Second, the record on appeal does not support Mr. Blount’s contention that
the duty to assist was violated when the Secretaryfailed to obtain medical records from a VA hospital in Florida. The record reflects that, although Mr. Blount requested the medical records, his request was made in the context of his claim for non-service-connected pension based on unemployability. See Record (R.) at 97 (“statement in support of claim” requesting the medical records and discussing his non-service-connected pension claim, but not his low-back disability claim). The duty to assist requires the Secretary to “make reasonable efforts to obtain relevant records,” and Mr. Blount fails to establish – or even posit – that the Florida medical records are relevant to his low-back disability claim. 38 U.S.C. § 5103A(a)(b)(1) (emphasis added). As such, he has not demonstrated a duty to assist violation. See Hilkert, supra.

Third, the record does not support the assertion that the 2009 VA medical
report was inadequate. First, although Mr. Blount argues that the report was
inadequate without the medical records from the VA hospital in Florida, as stated above, he fails to establish the relevancy of these documents. Second, Mr. Blount contends that the VA examiner did not consider that he was a combat veteran and unable to easily access hospitals in service. Although this Court cannot assess
what the VA examiner considered, she did address his contention of an in-
service injury, as well as perform an examination, review the claims file, and provide rationale for her conclusion based on the medical evidence of record. As such, Mr. Blount fails to demonstrate that the VA examiner’s thorough medical report did not fully inform the Board of Mr. Blount’s low-back disability. See D’Aries v. Peake, 22 Vet.App. 97, 104 (2008) (“An opinion is adequate where it is based upon consideration of the veteran’s prior medical history and examinations and also describes the disability in sufficient detail so that the Board’s ‘evaluation of the claimed disability will be a fully informed one.'” (quoting Green v. Derwinski, 1 Vet.App. 121, 124 (1991))); Hilkert, supra. Overall, Mr. Blount does not establish that the Board’s reliance on the examination report, and its implicit finding that the report was adequate, is clearly erroneous. See D’Aries, 22 Vet. App. at 104 (“Whether a medical opinion is adequate is a finding of fact, which the Court reviews under the ‘clearly erroneous’ standard.”); Gilbert, supra.
Accordingly, the August 24, 2009, decision of the Board is AFFIRMED.
DATED: April 14, 2011
Copies to:
Kenneth L. LaVan, Esq.
VA General Counsel (027)

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