Veteranclaims’s Blog

May 10, 2011

Single Judge Application, Locklear v. Nicholson, Board Must Support Decision Not To Examine Veteran

Single Judge Application, Locklear v. Nicholson, Board Must Support Decision Not To Examine Veteran

Excerpt from decision below:
“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
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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 or recurrent symptoms of the disability may be associated with the veteran’s service or with another service-connected disability; but (4) insufficient evidence on file for the Secretary to make a decision on the claim. See 38 U.S.C. § 5103A(d); McLendon v. Nicholson, 20 Vet.App. 79, 81 (2006). The Board must support its decision that a veteran is not entitled to a VA examination pursuant to McLendon by adequate reasons or bases. See Locklear v. Nicholson, 20 Vet. App. 410, 418 (2006); Duenas v. Principi, 18 Vet.App. 512, 517 (2004).
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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 10-1714
CLARENCE E. WILSON, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before HOLDAWAY, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
HOLDAWAY,Judge: The self-represented appellant, Clarence E.Wilson,
appeals from that part of a March 5, 2010, decision of the Board of Veterans’ Appeals (Board) that denied entitlement to service connection for a skin disability. This appeal is timely and the Court has jurisdiction pursuant to 38 U.S.C. §§ 7252(a) and 7266(a). Single-judge disposition is appropriate as the issues
are of “relative simplicity” and “the outcome is not reasonably debatable.”
Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). For the reasons set forth below, the Court will vacate the Board’s March 2010 decision and remand the matter on appeal for readjudication consistent with this decision.

I. FACTS
The appellant served on active duty in the U.S. Air Force from May 1969 to
February 1974.
See Record (R.) at 315. A 1973 service medical record (SMR) reflected a
diagnosis of cellulitis.
R. at 485. The regional office (RO) denied the appellant’s claim for
service connection for a skin
disability in March 1992 (R. at 443-44), and declined to reopen the
appellant’s claim in September
2006 (R. at 226-28).

In June 2007, the appellant filed an application to reopen his claim. R.
at 221. The RO
determined that new and material evidence had not been presented to reopen
the appellant’s claim
in June 2007 (R. at 207-09), and he perfected an appeal (R. at 152, 200-01
). On March 5, 2010, the
Board issued its decision on appeal, in which it reopened the appellant’s
claim and denied it on the
merits. R. at 3-15. This appeal followed.
II. ANALYSIS
The appellant argues that the Board overlooked the fact that he was
diagnosed with a skin
disorder during service. Appellant’s Brief (Br.) at 1. He contends that
the Board was required to
discuss this evidence. Id. He also argues that VA failed to assist him by
providing an examination
and failed to provide him the benefit of the doubt. Appellant’s Br. at 2.
He asks the Court to remand
his claim for an examination and adequate reasons or bases. Id. The
Secretary concedes that the
Board provided inadequate reasons or bases for its decision. Secretary’s
Br. at 4-7. The Secretary,
however, does not concede that an examination is warranted. Id.
When rendering its decision, the Board must consider all relevant evidence
of record and
address in its decision all potentially applicable provisions of law and
regulation. See 38 U.S.C.
§ 7104 (a); Schafrath v. Derwinski, 1 Vet.App. 589, 593 (1991). The Board
is required to include
in its decision 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; that statement
must be adequate to enable
an appellant to understand the precise basis for the decision, as well as
to facilitate informed review
in this Court. See 38 U.S.C. § 7104(d)(1); Allday v. Brown, 7 Vet.App.
517, 527 (1995); Gilbert
v. Derwinski 1 Vet.App.49, 56-57 (1990). To complywith this requirement,
the Board must analyze
the credibility and probative value of the evidence, account for the
evidence that it finds persuasive
or unpersuasive, and provide the reasons for its rejection of any material
evidence favorable to the
claimant. See Caluza v. Brown, 7 Vet.App. 498, 506 (1995), aff’d per
curiam, 78 F.3d 604 (Fed. Cir.
1996) (table); Gabrielson v. Brown, 7 Vet.App. 36, 39-40 (1994).
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
2

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 or recurrent
symptoms of the disability may be associated with the veteran’s service or
with another
service-connected disability; but (4) insufficient
evidenceonfilefortheSecretaryto makeadecision
on the claim. See 38 U.S.C. § 5103A(d); McLendon v. Nicholson, 20 Vet.App.
79, 81 (2006). The
Board must support its decision that a veteran is not entitled to a VA
examination pursuant to
McLendon by adequate reasons or bases. See Previous DocumentLocklearNext Hit v. Nicholson, 20 Vet.
App. 410, 418 (2006);
Duenas v. Principi, 18 Vet.App. 512, 517 (2004).
The Board in the instant case reopened the appellant’s claim for service
connection, but
denied the claim on the merits. R. at 3-15. The Board found that the
appellant had a current skin
disability that is diagnosed as eczema. R. at 12. However, the Board found
that the appellant’s
SMRs lacked “any complaints, diagnosis, or treatment for a skin disability
.” R. at 14. The Board’s
denial of the appellant’s claim was based, in part, upon this finding. Id.
In addition, the Board found
that the appellant was not entitled to a VA examination because it found
his SMRs were negative
for any evidence of a skin disability. R. at 6-7. The Board expressly
stated that “[i]n view of the
objective evidence of record which was negative for any complaints or
findings of a skin disability
in service, no reasonable possibility exists that a VA medical examination
or opinion would aid the
[appellant] in substantiating the service connection claim in this matter.”
R. at 7.
As noted by both parties, the Board failed to address the 1973 SMR that
showed in-service
treatment for a skin disability diagnosed as cellulitis. See R. at 485.
The failure to address this SMR
renders the Board’s reasons or bases inadequate for judicial review. See
Schafrath and Gilbert, both
supra. While the appellant argues that he is entitled to an examination,
the Board has to make a
factual determination as to whether any evidence of record, to include the
1973 SMR, indicates that
his current skin disability may be associated with his in-service skin
condition. See McLendon,
supra. As conceded by the Secretary, the Board’s failure to consider the
evidence of the appellant’s
in-service treatment for a skin condition renders inadequate its statement
of reasons or bases for
finding that a VA examination was not required and for denying entitlement
to service connection.
See Previous HitLocklearNext Document and Duenas, both supra. Accordingly, remand is required.
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In light of the need to remand the appellant’s claim for the Board to
provide an adequate
statement of reasons or bases and to adjudicate a claim for TDIU, the
appellant’s remaining
assertions of error are moot. See Dunn v. West, 11 Vet.App. 462, 467 (1998
) (remand of the
appellant’s claim under one theory moots the remaining theories advanced
on appeal). On remand,
the appellant may present, and the Board must consider, any additional
evidence and argument in
support of the matter remanded. See Kay v. Principi, 16 Vet.App. 529, 534 (
2002). This matter is
to be provided expeditious treatment on remand. See 38 U.S.C. § 7112.
III. CONCLUSION
Based on the foregoing analysis and a review of the record on appeal, that
part of the Board’s
March 5, 2010, decision that denied entitlement to service connection for
a skin disability is
VACATED and the matter is REMANDED for readjudication consistent with this
decision.
DATED: April 29, 2011
Copies to:
Clarence E. Wilson
VA General Counsel (027)
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