Veteranclaims’s Blog

September 29, 2011

Single Judge Application, Attorney Representation and Liberally Construed, Cogburn v. Shinseki, 24 Vet.App. 205, 213 (2010)

Excerpt from decision below:
“This Court has recently clarified that, although a veteran’s claim must always be liberally construed, “representation [by an attorney] may be a factor in determining the degree to which the pleading is liberally construed.” Cogburn v. Shinseki, 24 Vet.App. 205, 213 (2010) (emphasis added)”
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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 10-1917
PAULINE C. BAKER, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before HAGEL, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
HAGEL, Judge: Pauline C. Baker appeals through counsel a May 19, 2010,
Board of
Veterans’ Appeals (Board) decision that reopened but denied a claim for
entitlement to dependency
and indemnity compensation. Mrs. Baker’s Notice of Appeal was timely and
the Court has
jurisdiction to review the Board decision pursuant to 38 U.S.C. § 7252(a).
Neither party requested
oral argument or identified issues theybelieve require a precedential
decision of the Court. Because
the Board failed to adjudicate all theories of entitlement reasonably
raised by the record, the Court
will vacate the May 2010 Board decision and remand the matter for further
development, if
necessary, and readjudication consistent with this decision.
I. FACTS
Mrs. Baker is the widow of veteran Richard J. Baker, who served on active
dutywith the U.S.
Navy from November 1962 to November 1966 and from May 1967 to December
1973. No
abnormalities were noted at Mr. Baker’s entrance examination. Service
treatment records from
December 1968 indicate that Mr. Baker twice sought treatment for headaches
described as
“persistent” and “frequent.” Record (R.) at 208, 210. Similarly, a May
1971 service treatment note
reflects Mr. Baker’s complaints of headaches every other day that
localized near the left temple and

caused a pain that started as a dull ache but would get sharper. In June
1973, he again sought
treatment for dizzy spells, sudden lightheadedness, and headaches.
Post-service medical records from Air Force and Naval hospitals where Mr.
Baker sought
treatment between February 1976 and February 1987 indicate continued
complaints of headaches
and migraines, often described as vascular and persistent, recurring, or
experienced for many years.
In early March 1987, Mr. Baker was admitted to an Air Force medical center
emergency
room with recent symptoms of headaches, confusion, disorientation,
lethargy, nausea, and slurred
speech. A history of migraine headaches with an onset in 1972 was noted.
Mr. Baker died on May 5, 1987. The immediate cause of death was presumed
to be a
midbrain tumor. Following an autopsy, however, the death certificate was
amended to change the
immediate cause of death to a stroke due to or a consequence of a vascular
malformation. Major
diagnoses at that time were “[m]arked diffuse autolytic change – brain (
‘Respirator Brain’),
“[h]erniation of[the]midbrain,brainstem,cerebellartonsils,”and”[p]neumonia [
of the] right middle
lobe.” R. at 1097. In the autopsy report, the examiner stated that
[g]ross examination of the optic chiasm[1
] showed a web of anastomosing[2
] small
vessels surrounding it. Several of these were thrombosed.[3
] The gross and
microscopic appearance of these vessels was consistent with cerebral
arterial
occlusive disease. This is a rare disorder of uncertain etiology marked by
occlusion
of the main branches of the carotid artery with formation of collateral
vessels.
R. at 1099. The examiner explained that this rare disorder was known as
Moyamoya Disease and
that, although it was more prevalent in children, it was also known to
occur in adults. He explained
that “[t]he characteristic presentation in the adult patients was a sudden
alteration in consciousness
frequently associated with a massive subarachnoid bleed from the ruptured
collaterals,” and opined
that “[t]his was probably the case with Mr. Baker.” R. at 1099.
The optic chiasm is “the part of the hypothalamus formed by the
decussation, or crossing, of the fibers of the
optic nerve from the medial half of each retina.” DORLAND’S ILLUSTRATED
MEDICAL DICTIONARY 342 (32d ed. 2011)
[hereinafter DORLAND’S].
2
1
Anastomosis is “a connection between two vessels.” DORLAND’S at 75.
Thrombosis is “the formation, development, or presence of a thrombus.”
DORLAND’S at 1923. A thrombus
is “a stationary blood clot along the wall of a blood vessel, frequently
causing vascular obstruction.” Id.
3
2

The examiner noted that Mr. Baker “had a history of migra[i]ne headaches
that date[d] back
to 1972,” and that this history “suggest[ed] the presence of altered
vascular reactivity.” R. at 1099.
The examiner also noted that Mr. Baker “had a history of smoking three to
four packs of cigarette[s]
per day for in excess of [25] years,” which was “clinically significant in
that smokers under 65 years
have twice the death rate from coronary arterial occlusive disease than
non-smokers.” R. at 1098.
The examiner then summarized his findings: “[T]he anatomic findings are
consistent with a
dia[g]nosis of cerebral arterial occlusive disease—Moyamoya [D]isease.
The rupture of some of the
collateralvesselsprobablyresultedin hemorrhage,
increasedintracranialpressure[,] andMr.Baker’s
death.” R. at 1100.
Mrs. Baker applied for dependency and indemnity compensation in April 1987.
This claim
was denied by a VA regional office in July 1987 on the basis that the
evidence did not indicate that
Mr. Baker’s death was service connected. Mrs. Baker did not appeal this
decision and it became
final.
In December 2004, Mrs. Baker requested that her dependency and indemnity
compensation
claim be reopened and indicated that her late husband was involved in
Project Shipboard Hazardand
Defense (SHAD). Project SHAD “was part of the joint service chemical and
biological warfare test
program conducted during the 1960s” and “encompassed tests designed to
identify US warships’
vulnerabilities to attacks with chemical or biological warfare agents and
to develop procedures to
respond to such attacks while maintaining a war-fighting capability.” R.
at 136.
In a July2006 compensation and pension examination inquiry, the regional
office confirmed
that Mr. Baker had participated in two Project SHAD operations, “Scarlet
Sage[,] with exposure to
Bacillus subtilis[4
] var[iant] niger[,] also called Bacillus globigii[,] . . . and . . .
Purple Sage[,] with
exposure to Methylacetoacetate.”5
R. at 268. The regional office therefore requested that a VA
Bacillus is “a genus of bacteria of the family Bacillaceae, including
large aerobic or facultatively anaerobic,
spore-forming, rod-shaped cells, the great majority of which are gram-
positive and motile. Most species are saprophytic
soil forms; three are pathogenic or potentially pathogenic.” DORLAND’S at
190. Bacillus subtilis is “a species that is a
common saprophyte in soil and water, often a laboratory contaminant, and
can cause conjunctivitis. It also produces the
antibiotic bacitracin.” Id.
5
4
The record indicates that Methylacetoacetate is “a sarin nerve agent
simulant.” R. at 136.
3

examiner determine “whether [Mr. Baker’s] cause of death was a direct or
contributory result of
exposure to stimulants as a result of his participation in Project SHAD.”
R. at 269.
This opinion was obtained from a VA neurologist later that month. After
reviewing the
claims file, the neurologist noted that “[t]he autopsy findings showed
that [Mr. Baker] had cerebral
vascular occlusive disease and vascular malformation causing him to have a
stroke.” R. at 240.
With regard to the agents to which Mr. Baker was exposed during his
involvement with Project
SHAD, the neurologist stated that
[a] tracer that was used of bacillus globigii has not been known to
consistently cause
disease in healthyadult humans. The studies on autopsyshowed that this was
not the
cause of the infection in [Mr. Baker’s] right lung. The cause of death was
due to
congenital vascular malformation causing a stroke. The clinical course was
one that
is commonly the case of improvement, and then he developed cerebral edema
with
brain stem compression and this probably caused his respiratory arrest
with
contributoryfactorsofright-sidedpneumoniaduetostaph[6
] andklebsiella[7
] andnot
due to the agent that is mentioned in the tests.
R. at 240-41. The neurologist therefore opined that Mr. Baker’s ”
participation in Project SHAD . . .
and [operation] SCARLET-SAGEwith exposure to bacillus globigii did not
cause[his] death, either
from that or exposure to Methylacetal acetate in Purple Sage.” R. at 241.
In August 2006, the regional office issued a rating decision again denying
Mrs. Baker
dependency and indemnity compensation on the basis that her husband’s
death was not service
connected. Mrs. Baker filed a Notice of Disagreement in October 2007 and,
after further
development, appealed to the Board. In both her appeal and her Notice of
Disagreement, Mrs. Baker
argued that bacillus globigii was known to “cause Q-Fever[8
] in 3-6% of humans that inhaled the
6
Staph, short for Staphylococcus, is “a ubiquitous genus of gram-positive,
mainly facultatively anaerobic
bacteria . . . .” DORLAND’S at 1765. They “are important inhabitants of
the skin, cutaneous glands, and mucous
membranes; several species are important pathogens, causing a wide
varietyof infections, as well as producing a number
of toxins.” Id.
Klebsiella is “a genus of bacteria of the family Enterobacteriaceae, made
up of small, gram-negative,
facultatively anaerobic, nonmotile rods, usually occurring singly; they
are widely distributed in nature, including in the
intestines. They are a frequent cause of nosocomial urinary and pulmonary
infections and of wound infections.”
DORLAND’S at 988.
Q fever is “an acute, generallyself-limited infection caused byCoxiella
burnetii, characterized byfever, chills,
headache, myalgia, malaise, and occasionally rash, and sometimes
complicated by mild pneumonia . . ., hepatitis, and
endocarditis. In humans, it is usually acquired by inhalation of airborne
organisms in dust or aerosols contaminated by
8
7
4

chemical agent and that humans will continue to have flu-like symptoms
and diarrhea, sore throat,
fever, cough[,] and other cold symptoms—that will continue for years and
then humans die 20 years
later.” R. at 95; see also R. at 60. She asserted that her husband’s
medical “records match these
symptoms flawlessly,” R. at 60, 95, and that it was therefore her belief
that he “was one of the 3-6%
of . . . soldiers sprayed . . . that developed Q-Fever and never received
medical treatment due to the
fact that everything about . . . [Project] SHAD . . . was kept classified
for over 30 years.” R. at 60.
The Board issued the decision now on appeal in May 2010. Initially, the
Board concluded
that new and material evidence had been submitted by Mrs. Baker and
therefore reopened her
dependency and indemnity compensation claim. In assessing the merits of
that claim, the Board
noted Mrs. Baker’s contention that her husband had contracted Q fever as a
result of his participation
in Project SHAD and that this condition contributed to his death. The
Board also noted that service
and post-service medical records indicated treatment for various ailments,
including, on many
occasions, headaches, but observed that none of them “refer[red] to Q
fever or to any relationship
between [Mr. Baker’s] symptoms and his service.” R. at 13. Finally, the
Board found the VA
neurologist’s July2006 opinion to be highlyprobativeand”inlinewith the
autopsyreport” insomuch
as it concluded that Mr. Baker died as a result of “a congenital vascular
malformation.” R. at 16.
Relying on this opinion, the Board concluded that the preponderance of the
evidence did not indicate
that Mr. Baker’s death was related to his service and therefore denied Mrs.
Baker entitlement to
dependency and indemnity compensation.
II. ANALYSIS
A. Dependency and Indemnity Compensation
On appeal, Mrs. Baker does not contest the Board’s finding that Mr.
Baker’s participation in
Project SHAD did not cause or contribute to his death. Instead, she argues
that the Board erred by
“onlyconsider[ing] whether [Mr. Baker’s] cause of death was the result of
chemical exposure” when
“[t]he evidence of record . . . clearly raise[d] another issue which the [
Board] did not consider or
discuss, whether [Mr. Baker’s] in-service vascular headaches were the
first manifestations of the
infected domestic animals.” DORLAND’S at 693.
5

[M]oyamoya [D]isease which led to his death bystroke.” Appellant’s Brief (
Br.) at 4. The Secretary
contends that Mrs. Baker “did not raise this theory of entitlement [to
dependency and indemnity
compensation] when she sought to reopen her claim[,] nor was such a theory
suggested by the
evidence of record that would reasonably put the Board on notice that such
a theory was plausible
and must be developed.” Secretary’s Br. at 4. The Secretary argues that
the Board therefore did not
err in failing to consider and discuss this theory of entitlement.
In Robinson v. Peake, this Court explained that, because proceedings
before VA are
nonadversarial, “the Board’s obligation to analyze claims goes beyond the
arguments explicitly
made.” 21 Vet.App. 545, 553 (2008), aff’d sub nom. Robinson v. Shinseki,
557 F.3d 1355 (Fed. Cir.
2009). As the Court explained, “[i]t is entirely possible that the record
might ‘indicate’ a theory of
entitlement, but that a lay appellant might not be sophisticated enough to
recognize the theory,”
meaning that “a theory can be both unknown to the appellant and suggested
by the record.” Id.
(citing Ingram v. Nicholson, 21 Vet.App. 232, 256-57 (2007)). On the other
hand, the Board is not
required “to assume the impossible task of inventing and rejecting every
conceivable argument in
order to produce a valid decision.” Id. Accordingly, “[w]here a fully
developed record is presented
to the Board with no evidentiary support for a particular theory of
recovery, there is no reason for
the Board to address or consider such a theory.” Robinson, 557 F.3d at
1361. In other words, “[t]he
Board commits error only in failing to discuss a theory of entitlement
that was raised either by the
appellant or by the evidence of record.” Robinson, 21 Vet.App. at 553.
Here, having been reopened following the submission of new and material
evidence, Mrs.
Baker’s claim was one for entitlement to dependency and indemnity
compensation. A surviving
spouse is eligible for dependency and indemnity compensation under 38 U.S.
C. § 1310(a) and
38 C.F.R.§3.312(a)wheretheevidencedemonstratesthata service-connected
disability”was either
the principal or a contributory cause of death.” 38 C.F.R. § 3.312(a) (
2011). A disability is service
connected where the evidence of record demonstrates (1) a current
disability, (2) incurrence or
aggravation of a disease or injury in service, and (3) a nexus between the
in-service injury or disease
and the current disability. 38 U.S.C. § 1110; Davidson v. Shinseki, 581 F.
3d 1313, 1315-16 (Fed.
Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004);
38 C.F.R. § 3.303 (2011);
6

see also 38 U.S.C. § 1310(a) (providing that “[t]he standards and
criteria for determining whether
or not a disability is service-connected shall be those applicable under
chapter 11 of this title”).
Here, the Board found, and the evidence of record overwhelminglyindicates,
that Mr. Baker
suffered a stroke that resulted in a hemorrhage when some of the
collateral vessels near the optic
chiasm ruptured, which in turn caused intracranial pressure leading to his
death. The evidence of
record is equally clear, and the Board again found, that this stroke
resulted from a vascular
malformationcausedbyararecerebral
vascularocclusivediseaseofuncertainetiologythatis known
as Moyamoya Disease. Some of the evidence of record—namely, the
autopsyreport—indicates that
Mr. Baker’s history of migraine headaches is consistent with the manner in
which this condition
manifests. See R. at 1099 (“Mr. Baker’s history of migraine headaches
suggests the presence of
altered vascular reactivity.”). The autopsy examiner dated the onset of
this symptomatolgy to1972,
during Mr. Baker’s active duty service, R. at 1098, but, in fact, the
first indication in the record of
proceedings of Mr. Baker seeking treatment for headaches is found in the
December 1968 service
treatment notes, in which his headaches were described as “persistent” and ”
frequent.” R. at 208,
210. Further, additional service treatment records indicate that Mr. Baker
continued to suffer from
headaches through June 1973, approximately five months prior to his
separation from service. R.
at 1343, 1374. There is also a bevy of post-service medical records
suggesting that this symptom
persisted following his separation, until the time of his death. R. at 930,
935, 938, 956, 959, 964,
968-70, 972, 980, 1023, 1035-1039.
In sum, this body of evidence suggests that: (1) Mr. Baker’s death
resulted from a rare
cerebral vascular disease of uncertain origins; (2) one symptom of this
disease exhibited by Mr.
Baker was migraine headaches; (3) these migraine headaches began during Mr.
Baker’s active duty
service and continued, to one extent or another, throughout his service;
and (4) headaches continued
to plague him following his separation from service until the time of his
death. Despite this
evidence, the Board gave no consideration whatsoever to the possibility
that this disease, although
not diagnosed until Mr. Baker’s death, had an onset during his active duty
service. See 38 C.F.R.
§ 3.303(d) (providing that a disease that is first diagnosed following
the veteran’s separation from
service may still be granted service connection “when all the evidence,
including that pertinent to
service, establishes that the disease was incurred in service”). Likewise,
the Board gave no
7

consideration to whether the condition might be service connected as a ”
chronic disease” pursuant
to 38 C.F.R. § 3.303(b) or, alternatively, by showing continuity of
symptomatology pursuant to that
sameprovision. SeegenerallySavagev.Gober, 10 Vet.App. 488, 495-97 (1997).
Instead, the Board
focused solely on the theory of entitlement to dependency and indemnity
compensation expressly
raised by Mrs. Baker—that her husband contracted Q fever during Project
SHAD, which went
untreated for many years and ultimately caused or contributed to his death.
This was error, as the
Board was required not only to develop and adjudicate the theories of
entitlement expressly raised
by Mrs. Baker, but also those reasonably raised by the record. Robinson,
21 Vet.App. at 553.
In reaching the conclusion that this theory of entitlement was reasonably raised by the record,
the Court notes that there is no indication that Mrs. Robinson was
represented by an attorney during the course of proceedings below. See R. at 5 (listing Disabled American
Veterans as Mrs. Baker’s representative); see also Comer v. Peake, 552 F.3d 1362, 1370 (Fed. Cir.
2009) (explaining that assistance provided to claimants by veterans service organizations is
invaluable but not equivalent to representation by a licensed attorney). This Court has recently
clarified that, although a veteran’s claim must always be liberally construed, “representation [by an attorney]
may be a factor in determining the degree to which the pleading is liberally construed.” Cogburn v. Shinseki,
24 Vet.App. 205, 213 (2010) (emphasis added).
Accordingly, here, the Board
was required to take into account the nature of Mrs. Baker’s representation when assessing the
evidence of record for the purpose of identifying and fully developing all issues and theories of
entitlement pertinent to Mrs. Baker’s claim for dependency and indemnity compensation. The Court
concludes that a liberal examination of this evidence would have led to the development and
adjudication of the alternative theory now expressly presented by Mrs. Baker on appeal. Because this did
not happen, the Court
will remand this claim for readjudication consistent with this decision.
See Robinson, 21 Vet.App.
at 553.
B. Remedy
The Court notes that Mrs. Baker argues that reversal, not remand, is the
appropriate remedy
under the circumstances of this case. She argues that “[t]he only
permissible view of [the] evidence
is that [Mr. Baker’s] [M]oyamoya [D]isease, which was the cause of his
death, began in service and
should, then, have been service connected.” Appellant’s Br. at 7. The
Court disagrees.
8

It is true that reversal is the appropriate remedy when there is but one
permissible view of
the evidence, and that view is contrary to the Board’s decision. Gutierrez
v. Principi, 19 Vet.App.
1, 10 (2004) (citing Johnson v. Brown, 9 Vet.App. 7, 10 (1996)). It is
also true that, in the present
case, the theoryof entitlement outlined above byMrs. Baker was most
certainly raised bythe record.
However, this case involves complex medical questions that the Board did
not even attempt to
address in the decision on appeal. “[W]here the Board has incorrectly
applied the law, failed to
provide an adequate statement of reasons or bases for its determinations,
or where the record is
otherwise inadequate, a remand is the appropriate remedy.” Tucker v. West,
11 Vet.App. 369, 374
(1998); see Hicks v. Brown, 8 Vet.App. 417, 422 (1995). Under the
circumstances of this case, the
Court is not convinced that the “only permissible view of the evidence”
necessitates a finding that
Mr. Baker’s death was service connected, and remand is therefore the
appropriate remedy. See
Gutierrez, 19 Vet.App. at 10.
Onremand,theBoardshould determinewhetheradditionaldevelopment,
includingobtaining
another VA medical opinion that explicitly considers this alternative
theory of entitlement, is
necessary. See McLendon v. Nicholson, 20 Vet.App. 79, 83-84 (2006). Mrs.
Baker will also be free
to submit additional evidence and argument on remand 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 Board is reminded that “[a] remand is meant to entail a
critical examination of the
justification for the decision” by the Board. Fletcher v. Derwinski, 1 Vet.
App. 394, 397 (1991). In
addition, the Board shall proceed expeditiously, in accordance with 38 U.S.
C. § 7112 (expedited
treatment of remanded claims).
9

III. CONCLUSION
Upon consideration of the foregoing, the May 2010 Board decision is
VACATED and this
matter is REMANDED for additional development, if necessary, and
readjudication.
DATED: September 21, 2011
Copies to:
Shannon L. Brewer, Esq.
VA General Counsel (027)
10

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