Veteranclaims’s Blog

July 26, 2011

Single Judge Application, Continual/Ongoing Pain, McLendon, 20 Vet.App. at 84

Filed under: Uncategorized — Tags: , , — veteranclaims @ 6:29 pm

Excerpt from decision below:
“McLendon, 20 Vet.App. at 84 (stating that a veteran is competent to testify that he has experienced an injury and that he has endured ongoing pain, and such
“testimony can be rejected only if found to be mistaken or otherwise deemed not credible”).”
Designated for electronic publication only
No. 09-4736

Before SCHOELEN, Judge.
Note: Pursuant to U.S. Vet. App. R. 30(a),this action may not be cited as precedent.

SCHOELEN, Judge: The appellant, Kenneth L. Jones, Jr., through counsel, appeals a September 1, 2009, Board of Veterans’ Appeals (Board) decision in which the Board deniedentitlement to serviceconnection for the residuals of a right clavicle fracture. Record of Proceedings(R.) at 3-13. The Board remanded consideration of the appellant’s claim of entitlement to serviceconnection for the residuals of a suboccipital craniectomy; therefore, that issue is not before theCourt. See Hampton v. Gober, 10 Vet.App. 481, 483 (1997). Both parties filed briefs. This appealis 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). For the following reasons, the Court will affirm the Board’s September1, 2009, decision.I. BACKGROUNDThe appellant served on active duty in the U.S. Armyfrom August 14, 1981, through August13, 1985. R. at 1106, 1115. At his separation examination, the appellant reported a prior history ofa right clavicle fracture. R. at 1124. The separation examination does not, however, indicate whenthe injury occurred. Id. Upon clinical evaluation, the medical examiner noted that the appellant’s”upper extremities ([s]trength, range of motion)” were normal. R. at 1125. The appellant alsoreported that he was in “good health” and “not taking medications.” R. at 1126.A July 1997 VA medical examination, which was provided in connection with an unrelatedclaim for entitlement to service connection for a hand disability, included an evaluation of theappellant’s musculoskeletal system. R. at 1086. The examination report indicates that the appellanthad “full range of motion throughout, no crepitus[,] swelling[,] or tenderness of his joints.” Id.The appellant filed a claim of entitlement to service connection for a “fractured rightcollarbone” in April 2000. R. at 1057. In a July 2000 rating decision, the regional office (RO)denied the claim because the appellant’s service medical records (SMRs) were “negative fortreatment of a fractured clavicle.” R. at 1044-48. The appellant filed a timely Notice ofDisagreement (R. at 1040); the RO issued a Statement of the Case (R. at 1034-39); and the appellantperfected his appeal to the Board (R. at 1008-09).In February 2002, the appellant informed the RO that he was injured in 1982 while he wasstationed at Fort Ord and requested that the RO obtain his medical records from Fort Ord. R. at 997-99. In April 2002, the RO requested the appellant’s SMRs from the National Personnel RecordsCenter (NPRC), which responded that all of his SMRs had been sent to the RO in July 1997. R. at994. The RO sent additional requests in October 2003 (R. at 974) and December 2003 (R. at 971)and received negative responses to both requests (R. at 971-73). In January 2004, the RO made afinding of unavailability of additional SMRs. R. at 967-70. That same month, the RO issued a Supplemental Statement of the Case, which noted that “responses from the service department,[NPRC] were negative for any additional [SMRs].” R. at 964-66. The appellant testified at a Board hearing in May 2004 that he broke his right clavicle twicewhile he was in the military. R. at 944. He reported that the first incident occurred in December 1981 or January 1982, while he was playing football. Id. He stated that he was treated with a slingat the Silas B. Hays Army Community Hospital in Fort Ord. Id. The appellant reported that he broke his right clavicle a second time under the pressure of a rucksack while he was on a road march.Id. The appellant stated that his clavicle hurts when he raises his hand above his head. Id.The appellant’s claim was remanded by the Board in September 2004 (R. at 932-40) and 2 April 2007 (R. at 488-93) for further procedural and evidentiary development, including anadditional search for the appellant’s SMRs and records from the Silas B. Hays Army CommunityHospital. The Appeals Management Center received negative responses from the NPRC and the Madigan Army Medical Center(formally Silas B. Hays Army Community Hospital). R. at105, 109-16.In its September 1, 2009, decision, the Board denied the appellant’s claim of entitlement toservice connection for residuals of a right clavicle fracture because the record was devoid of any”credible, competent evidence tending to show that the [v]eteran’s current complaints ‘may be associated’ with a clavicle fracture in service.” R. at 9. This appeal followed.The appellant seeks a remand for the Secretary to provide him a VA medical examinationand to “use greater efforts” to locate his SMRs relating to his right clavicle injury . Appellant’s Brief(Br.) at 4-7. The appellant also argues that the Board erred (1) in finding that VA satisfied its duty to notify him of the information and evidence necessary to substantiate his claim, and (2) by failing to provide an adequate statement of reasons or bases for denying his claim. Id. at 8-9. The Secretary refutes each of these contentions and argues for affirmance. Secretary’s Br. at 5-19.

A. Medical Nexus Examination

The Secretary has a duty to “make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claimant’s claim for a benefit.” 38 U.S.C. § 5103A(a)(1). As part of his duty, the Secretary must provide a medical examination or obtain a medical opinion “when such an examination or opinion is necessary to make a decision on the claim.” 38 U.S.C.§ 5103A(d). A medical examination or opinion is considered necessary if the evidence of record(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)(2) (emphasis added). The subsections of 38 U.S.C. § 5103A(d)(2) articulate three different evidentiary standards. See Waters v. Shinseki, 601 F.3d 1274, 1277 (Fed. Cir. 2010)3(discussing the statute’s evidentiary standards). This Court has held that the requirement that the evidence indicate that a condition “may be associated” with service establishes a “low threshold.”See McLendon v. Nicholson, 20 Vet.App. 79, 83 (2006). When deciding whether an examinationis necessary, the Secretary shall consider the evidence of record, “taking into consideration all information and lay or medical evidence (including statements of the claimant).” 38 U.S.C.§ 5103A(d)(2). “The Board’s ultimate conclusion that a medical examination is not necessary pursuant to section 5103A(d)(2) is reviewed under the ‘arbitrary, capricious, an abuse of discretion,or otherwise not in accordance with law’ standard of review.” McLendon, 20 Vet.App. at 81.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 determined that a medical examination was not necessary because the record was “devoid of any credible, competent evidence to show that any of his current complaints may in anyway be associated with an in-service right clavicle fracture.” R. at 7 (emphasis added). The appellant argues that the Board applied an incorrect evidentiary standard because its use of the word “show” instead of the word “indicates” “suggests that in order to receive a medical examination, [he]needed to somehow prove that his complaint may be in any way associated with an in-service injury.” Appellant’s Br. at 5 (emphasis added). This argument lacks merit. The Secretary persuasively argues that “there is no meaningful distinction between the words ‘show’ and ‘indicate’, when used in the context of determining whether an examination is necessary.” Secretary’s Br. At 7-8. Indeed, in discussing VA’s duty to provide a medical examination, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) has similarly used the word “show” when stating that the requirement that the evidence “indicate[] that the disability or symptoms may be associated with. . . service” requires “the veteran . . . to show some casual connection between his disability and his military service.” Wells v. Principi, 326 F.3d 1381, 1884 (Fed. Cir. 2003) (emphasis added). The4Court therefore concludes that the appellant has not identified any error based solely on the Board’s use of “show.”The appellant also argues that the Board “ignore[d] longstanding [case]law that a claimant’s sworn testimony is evidence, which the Board must consider.” Appellant’s Br. at 5. In this regard he asserts that his lay testimony that he “broke his clavicle while on active duty”; “his clavicle hurts when he raises [his hand] above his head”; and “he has had chronic shoulder problems because he broke his shoulder” satisfies the requirement that the record indicate that his symptoms “may be associated” with service. Id. at 6. This argument is not persuasive because it wholly ignores the Board’s credibility determination in this matter. That is, the Board found that “the normal findings contained in the report of his separation examination and post-service medical records belie any implicit allegations of continuity of symptomatology.” R. at 9; see also R. at 8-9 (noting that July 1997, March 1988, and February 2001 records showed “full range of motion in all joints,” “normal strength throughout the right upper extremity,” and “normal muscular bulk, tone, and strength” in upper extremities). Hence, the Board did not ignore the appellant’s lay evidence – it found him not credible. See Owens v. Brown, 7 Vet.App. 429, 433 (1995) (holding that the Board is responsible for assessing the credibility and weight of evidence and that the Court may overturn the Board’s decision only if it is clearly erroneous); see also McLendon, 20 Vet.App. at 83 (noting that credible evidence of continuity of symptompatology is a type of evidence that may “indicate” that a current disability “may be associated” with service); cf. Waters, 601 F.3d at 1278 (rejecting the veteran’s contention that his “conclusory generalized statement that his service illness caused his presentmedical problems was enough to entitle him to a medical examination”). Because the appellant doesnot raise any argument challenging the Board’s credibility finding, he has not satisfied his burden ofestablishing error. See Hilkert v. West, 12 Vet.App. 145, 151 (1999) (en banc) (holding that theappellant bears the burden of demonstrating error on appeal).Finally, the appellant argues that the Board “could not legally conclude that the evidence ofrecord does not ‘indicate there may be a connection to military service’, because [it] did not make afinding that ‘no possibility existed that a medical examination or opinion would aid in substantiating the claim.'” Appellant’s Br. at 6-7 (relying on Duenas v. Principi, 18 Vet. App. 512 (2004)). The Secretary’s duty to provide a medical examination is triggered when the requirements of 38 U.S.C.5§ 5013A(d)(2) are met. Once the Board determined that the evidence failed to indicate that the appellant’s disability may be associated with service, the Board was not obligated to provide further explanation. The appellant has not demonstrated that the Board’s ultimate determination that a medical examination was not necessary to decide the claim is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. McLendon, 20 Vet.App. at 81.

B. The Appellant’s Missing SMRs
The appellant argues that the Board erred by failing to remand the matter to the RO “to use greater efforts” to locate his SMRs relating to his clavicle injury. Appellant’s Br. at 7. The appellant generally refers to established caselaw holding that VA is under a “heightened duty” to assist whena veteran’s records are known to be lost or destroyed, Washington v. Nicholson, 19 Vet.App. 362,370 (2005), and that VA’s duty to assist includes “advising the veteran that he could submit ‘buddystatements’ or other alternative sources of evidence to corroborate his claim of in-service injury.”Appellant’s Br. at 7 (citing Washington, 19 Vet.App. at 370-71).Obtaining relevant records on behalf of the veteran is part of the Secretary’s statutory dutyto 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). After noting the RO’s multiple attempts to obtain the appellant’s SMRs, the Board concluded that any further efforts to obtain the records would be futile. R. at 7. Here, the Court finds that the appellant’s blanket request that the matter be remanded for the RO to use “greater efforts” to obtain the missing records, without offering any cogent reasonwhy the Board erred in failing to order an additional search, is too terse to warrant consideration. It is well settled that an appellant must provide support for arguments raised on appeal. 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.”), rev’d on other grounds sub nom. Coker v. Peake, 310 F. App’x 371 (Fed. Cir. 2008) (per curiam order); see also Locklear v. Nicholson, 20 Vet.App. 410, 416 (2006) (holding that the Court will not entertain underdeveloped arguments); Hilkert, supra. Moreover, even assuming the Board erred by failing to order an additional search for themissing records, the Board assumed for purposes of its decision that the appellant sustained a right 6 clavicle fracture in service. R. at 9. The Board denied the claim because there was no credible,competent evidence relating the appellant’s current symptoms of a disability to the in-servicefracture. Id. Given the complete absence of any evidence establishing a nexus between the appellant’s condition and the purported in-service injury , the Court finds that the appellant has not demonstrated how he is prejudiced by the missing records. See 38 U.S.C. § 7261(b)(2) (stating that the Court shall take due account of the rule of prejudicial error); see also Shinseki v. Sanders,129 S. Ct. 1696, 1704 (2009) (noting that the statute requiring this Court to “take due account ofprejudicial error [] requires the Veterans Court to apply the same kind of ‘harmless error’ rule thatcourts ordinarily apply in civil cases”). To the extent that the appellant argues VA should have advised him of alternative sourcesof evidence to submit, a review of the November 2004 and May 2007 letters shows that VAinformed him that “[s]tatements from persons who knew you when you were in service and knowof any disability you had while on active duty” (R. at 925) and “letters written during service, orphotographs taken during service, that relate to [the] in-service . . . right shoulder injury , may aid insubstantiating your claim” (R. at 465).

The appellant has not explained why this notice is insufficient and therefore further consideration of this argument is not warranted. See Coker, Locklear, and Hilkert, all supra. Finally, the Court acknowledges the appellant’s suggestion that the Board failed to fulfill its heightened obligation to explain its findings and conclusions and to carefully consider the benefitof the doubt in cases where military records are missing. Appellant’s Br. at 7. However, because the appellant does not offer any support for this argument, other than to state that “[t]he Board did not do this,” the Court will not entertain it. See Coker, Locklear, and Hilkert, all supra.C. VA’s Duty To Notify The appellant also argues that the Secretary failed to satisfy his duty to inform him of theinformation and evidence necessary to substantiate his claim. Appellant’s Br. at 8. In particular, heasserts that the notice letters, relied on by the Board as satisfying the duty to notify, did not “inform[him] that unless he submitted medical evidence, his claim would be denied” and that “unless hesubmitted a medical opinion to show that his current complaint is associated with a right claviclefracture during service, his claim would be denied.” Id. The appellant’s argument is unavailing7because it misunderstands the breadth of the Secretary’s obligations pursuant to his duty to notify.Under section 5103(a), VA is required to inform a claimant of (1) the information andevidence not of record that is necessary to substantiate the claim, (2) which portion of thatinformation and evidence, if any, that the claimant is expected to provide, and (3) which portion ofthat information and evidence, if any, that VA will seek to obtain. 38 U.S.C. § 5103(a). Contraryto the appellant’s suggestion, VA is not required to preadjudicate the claim and detail exactly whatevidence is missing and necessary to substantiate the claim. See Locklear, 20 Vet.App. at 415; see also Vazquez-Flores v. Shinseki, 580 F.3d 1270, 1277 (Fed. Cir. 2009) (“generic notice in response to the ‘particular type of claim’ . . . is all that is required” and need not be “veteran-specific”); Wilson v. Mansfield, 506 F.3d 1055, 1062 (Fed. Cir. 2007) (“[N]otice may be generic in the sense that itneed not identify evidence specific to the individual claimant’s case. . . . [and i]t need not describe. . . VA’s evaluation of the particular veteran’s claim.”).Here, the Board found that VA provided adequate notice in August 2003, November 2004,and May 2007 letters. R. at 6. These letters informed the appellant that in order to establish entitlement to service connection, the evidence must show (1) an injury or disease that began in or was made worse by his military service, (2) that he has a current disability, and (3) that there is “arelationship between [his] current disability and an injury , disease, or event in military service.Medical records or medical opinions usually show this relationship.” R. at 929, 989; see also R. at469 (May 2007 letter stating that “[m]edical records or medical opinions are required to establishthis relationship”). The letters also informed him that VA would assist him “by providing a medicalexamination or getting a medical opinion if we decide it’s necessary to make a decision on yourappeal.” R. at 469, 929, 989 (emphasis added). Because generic notice is all that is required, the Court holds that the Board’s determination that VA satisfied its duty to notify is not clearly erroneous. See Garrison v. Nicholson, 494 F.3d 1366, 1370 (Fed. Cir. 2007) (holding that the Boarddetermination that VA satisfied the duty to notify is a factual determination reviewed under the “clearly erroneous” standard of review).8

D. Merits Determination
The appellant’s final argument is twofold. First, he argues that the Board denied his claim because the record was devoid of medical evidence establishing a link between his current symptoms and his in-service injury and that the absence of this evidence was the result of VA’s failure to provide him the benefit of a VA medical examination. Appellant’s Br. at 8. However, because the appellant has not demonstrated error in the Board’s determination that no medical examination was necessary, this argument must fail. The appellant’s second argument is that the Board failed to provide an adequate statement of reasons or bases for rejecting his lay evidence. Id. at 8-9. Here, he states that the “only reason advanced by the [Board] for rejecting [his] testimony was that the record does not establish that he had the medical training necessary to offer competent opinions on matters of medical etiology.” Id.at9. However, rather than present any argument to challenge the Board’s competency determination, the appellant states that “determinations as to service connection must be based on a review of the entire record, with due consideration to the policy of the Department of Veterans Affairs to administer the law under broad and liberal interpretation consistent with the facts in each individual case.” Id. at 9. This statement does not support a finding of remandable error. Moreover, the Board did not reject the appellant’s lay evidence solely because he does not have medical training. See R. at 9. Rather, as noted above, the Board found the appellant’s testimony that he has had chronic shoulder problems because of his in-service clavicle injury not credible – a finding that the appellant has not challenged here on appeal. See McLendon, 20 Vet.App. at 84 (stating that a veteran is competent to testify that he has experienced an injury and that he has endured ongoing pain, and such “testimony can be rejected only if found to be mistaken or otherwise deemed not credible”). To the extent that the Board also found the appellant not competent regarding matters of medical etiology,the Secretary urges the Court to affirm the Board’s decision because “the appellant presents no argument, and identifies no error, with the Board’s competency determination.” Secretary’s Br. At 18; see Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (“[W]hether lay evidence is competent and sufficient in a particular case is a fact issue to be addressed by the Board.”); see also Waters, 601 F.3d at 1278 (noting that VA “must consider lay evidence, but may give it whatever weight it concludes the evidence is entitled to receive”). On this point, the Court must agree that the 9 appellant has failed to plead with any specificity why the Board’s determination was erroneous and this Court “‘is not required to manufacture the appellant’s argument.'” Coker, 19 Vet.App. at 442 (quoting Hernandez v.Starbuck,69 F.3d 1089, 1093 (10th Cir. 1995)). Ultimately, the Board denied the appellant’s claim of entitlement to service connection because the record was devoid of any credible, competent evidence tending to show that the appellant’s current complaints may be associated with service. The appellant’s arguments on appeal have not demonstrated that finding to be clearly erroneous. See Dyment v. West, 13 Vet.App. 141, 144 (1999) (a finding of service connection, or lack thereof, is a finding of fact reviewed under the “clearly erroneous” standard ofreview); Gilbert v. Derwinski, 1 Vet.App. 49, 52 (1990) (a finding of fact is clearly erroneous when the Court, after reviewing the entire evidence, “‘is left with the definite and firm conviction that a mistake has been committed.'” (quoting United States v. U.S. Gypsum Co., 333 U.S. 364, 395(1948))).

After consideration of the appellant’s and the Secretary’s pleadings, and a review of therecord, the Board’s September 1, 2009, decision is AFFIRMED.
DATED: July 22, 2011
Copies to:Walter C. Spiegel, Esq.VA General Counsel (027)

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