Veteranclaims’s Blog

December 3, 2011

Single Judge Application, Savage v. Shinseki, 24 Vet.App. 259, 260 (2011), Duty to Return for Clarification Unclear or Insufficient Examination reports

Filed under: Uncategorized — veteranclaims @ 8:07 pm

Excerpt from decision below:
“Thus, when the Board finds a VA examination report to be unclear, it ordinarily should remand the matter to the RO for clarification from the examiner. See Bowling v. Principi, 15 Vet.App. 1, 12 (2001) (holding that the
Board has a duty, under 38 C.F.R. § 19.9(a), to remand a case “[i]f further evidence or clarification of the evidence or correction of a procedural defect is essential for a proper appellate decision”); see also Savage v. Shinseki, 24 Vet.App. 259, 260 (2011) (“in some circumstances, VA does have a duty to return for clarification unclear or insufficient private examination reports . . . , or the Board must explain why such clarification is not necessary.”). The Board in the instant case erred in rejecting the favorable medical evidence of record without complying with its duty to assist by seeking further clarification from the examiners. R. at 14. Accordingly, remand is required. See Savage and Bowling, both supra.”
====================================================
—————————————————-

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 10-3957
BARRY A. KRUPKIN, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before FARLEY, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
FARLEY, Judge: The appellant, Barry A. Krupkin, appeals from the October 5,
2010,
decision of the Board of Veterans’ Appeals (Board) that denied entitlement
to an increased disability
rating in excess of 10% for residuals of shell fragment wounds (SFWs) to
the abdomen with retained
foreign bodies (RFB). Single-judge disposition is appropriate when the
issue is of “relative
simplicity” and “the outcome is not reasonablydebatable.” Frankel v.
Derwinski, 1 Vet.App. 23, 25-
26 (1990). This appeal is timelyand the Court has jurisdiction pursuant to
38 U.S.C. §§ 7252(a) and
7266(a). For the reasons that follow, the Court will vacate the October
2010 Board decision to the
extent that it denied entitlement to an increased disability rating and
remand that matter.
In the same decision, the Board also denied entitlement to service
connection for Kaposi’s
sarcoma, claimed as cancer, and entitlement to an effective date prior to
December 10, 1999, for the
grant of service connection for type II diabetes mellitus. In a separate
Board decision also dated
October5, 2010, the Board denied the payment or reimbursement of
unauthorized medicalexpenses
incurred at a private medical facility on May 11, 2007. The appellant
raises no argument with
respect to the Board’s denial of his claims for service connection for
Kaposi’s sarcoma, entitlement
to an effective date prior to December 10, 1999, for the grant of service
connection for diabetes
mellitus, or entitlement to payment or reimbursement of unauthorized
medical expenses; these

claims are therefore deemed abandoned. See Ford v. Gober, 10 Vet.App. 531,
535 (1997) (holding
that claims not argued on appeal are deemed abandoned); Bucklinger v.
Brown, 5 Vet.App. 435, 436
(1993).
I. FACTS
The appellant served on active duty in the U.S. Army from July 1968 to
February 1970,
including service in Vietnam. Record (R.) at 358. In May 1970, the
regional office (RO) granted
service connection for anxiety reaction and for multiple SFWs, including
an SFW to the abdomen
with laceration of the liver, status post operation, and an SFW to the
abdomen with RFB. R. at
4785-86. The RO assigned a 100% disability rating for the convalescent
period. Id. In August
1970, the RO assigned a 10% rating for the appellant’s SFW to the abdomen
with laceration of the
liver and a separate 10% rating for the appellant’s SFW to the abdomen
with RFB. R. at 4754-56.
In April 1984, the RO determined that the most recent VA examination
failed to show
objective findings to support a compensable rating for superficial and
healed SFWs, including those
to the abdomen, and reduced the disability ratings for all of the
appellant’s service-connected SFWs
to noncompensable. R. at 4554-57; see also R. at 4559-68 (February 1984 VA
examination report).
The appellant filed a claim for increased disability ratings for his
service-connected conditions (see
R. at 4282, 4319), and in November 1988, the RO increased the ratings for
the appellant’s SFW to
the abdomen with laceration of the liver to 10% and for his SFW to the
abdomen with RFB to 10%.
R. at 4284.
In July 2007, the appellant filed a claim seeking increased ratings for
his service-connected
SFWs to the abdomen and left leg. R. at 1356-62. He stated that he
continued to suffer severe pain
from his injuries and that he recently underwent surgery to remove
shrapnel from the left and right
sides of his abdomen. R. at 1356, 1358. He submitted surgical and
pathology reports from Dr.
David Herf, which reflected that the RFBs to the appellant’s abdomen and
left leg had become
“increasingly tender to touch and very superficial.” R. at 1338. The
pathology report reflected that
foreign bodies were removed from the appellant’s right side abdomen and
left upper abdomen. R. at
1340.
2

In August 2007, the appellant underwent a VA examination conducted by Dr.
Sanford
Epstein. R. at 1303-07. The appellant reported constant, severe pain. R.
at 1304. He also reported
constant sweating, nausea four times a week, and periodic emesis. Id. Dr.
Epstein noted a midline
abdominal scar that was 27 cm long by 4 cm wide and was superficial,
linear, flat, and nontender to
palpation. R. at 1305. He also noted an 18 cm by 1 cm horizontal scar that
traversed the lower third
of the midline abdominal scar. Id. The VA examiner described this scar as
linear, flat, superficial,
and also nontender to palpation. Id. He further noted that the appellant
was wheelchair bound and
morbidly obese, “easily bends over from the waist down, except for being
limited by his habitus.”
R. at 1304, 1306. Dr. Epstein specifically stated that the appellant could
not get into examination
table position and that he “would have to speculate as to whether or not
palpation of the abdomen
reveals any tenderness, masses or organomegaly because [the appellant] is
not able to lie on the
examination table.” R. at 1305. An x-ray of the appellant’s abdomen
revealed “[m]ultiple irregular
small metallic densities overlying the abdomen . . . which maybe related
to prior ballistic injury” and
“[i]rregular linear densities overlying the abdomen and pelvis, [which]
are nonspecific and may be
surgical.” R. at 1306. Dr. Epstein rendered a diagnosis of a history of
SFW to the abdomen with
RFB and laceration to the liver, postoperative with scarring. R. at 1306.
In September 2008, the RO denied the appellant’s claim for an increased
rating for his
service-connected residuals of an SFW to the abdomen. See R. at 473, 647.
The appellant perfected
an appeal. R. at 442-72, 647. In his Notice of Disagreement, the appellant
argued that the RO failed
to consider the massive scar tissue on his stomach. R. at 647. In
particular, the appellant alleged that
a 14-inch long horizontal scar on his abdomen stemmed from a 1991
operation and had resulted in
additional nerve and muscle damage that caused constant pain and
disfigurement and restricted his
ability to bend his torso forward. Id. In his Substantive Appeal, the
appellant noted that Dr. James
Moody had surgically removed an incarcerated hernia from his stomach in
October 1991 at the
Destin Hospital. R. at 442. The appellant also submitted a statement from
Dr. Moody dated in June
1998, in which Dr. Moody stated that he had surgically repaired an
incarcerated incisional hernia in
1991. R. at 446. Dr. Moody opined that the appellant’s incarcerated hernia
was due to the deep
penetrating injury that the appellant sustained in Vietnam. Id. He further
stated that the appellant
subsequently had another incisional hernia that required placement of mesh.
Id.
3

The appellant also submitted an inpatient record dated in October 1991
from the Humana
Hospital in Destin, Florida, which revealed that, after the appellant had
presented with right-side
abdominal pain, an ultrasound showed findings that were consistent with a
large ventral hernia
demonstrating incarcerated tissue from within the abdomen. Id. The
attending physician, Dr.
Causton, stated that he obtained a surgical consult from Dr. Moody, and
that the appellant was
admitted to the hospital for surgery. Id. In addition, the appellant
submitted a May 1984 medical
evaluation from Dr. MurrayTodd. R. at 464-66. In pertinent part, Dr. Todd
diagnosed the appellant
with muscle tissue damage caused by deep penetrating wounds of the torso.
R. at 466. A private
treatment record from Dr. Herf reflected that the appellant was admitted
to the North Okaloosa
Medical Center in April 1996 for a ventral hernia repair. R. at 466-68. On
October 5, 2010, the
Board issued its decision in which it denied entitlement to an increased
rating in excess of 10% for
the appellant’s SFW to the abdomen with RFBs. R. at 3-21. This appeal
followed.
II. ANALYSIS
A Board determination of the appropriate degree of disability under the
rating code is a
finding of fact subject to the “clearly erroneous” standard of review. 38
U.S.C. § 7261(a)(4); see
Smallwood v. Brown, 10 Vet.App. 93, 97 (1997). “A factual finding ‘is ”
clearly erroneous” when
although there is evidence to support it, the reviewing court on the
entire evidence is left with the
definite and firm conviction that a mistake has been committed.'” Hersey v.
Derwinski, 2 Vet.App.
91, 94 (1992) (quoting United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (
1948)). The Court
may not substitute its judgment for the factual determinations of the
Board on issues of material fact
merely because the Court would have decided those issues differently in
the first instance. See id.
The Board must consider all evidence of record and discuss all ”
potentially applicable”
provisions of law and regulation. 38 U.S .C. § 7104(a); Schafrath v.
Derwinski, 1 Vet.App. 589,
592-93 (1991). The Board’s decision must include an adequate 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 Board’s
decision, as well as to facilitate informed review in this Court. 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 comply
4

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 appellant argues that his abdomen injury was “further aggravated over
the years by the
additional loss of nerve and muscle tissue damages and greatly further
disfigured [his] body due to
repeated operations.” Appellant’s Brief (Br.) at 2. The appellant argues
that the Board failed to
consider that in 1991 he underwent a “life saving operation” caused by his
original shrapnel injury.
Appellant’s Br. at 3. The appellantfurtheralleged that Dr. Joseph
Monastero, his VA physician from
Eglin Air Force Base, had to call home health nurses to provide wound care
because the mesh pushes
through his stomach. Appellant’s Br. at 4. The appellant argues for the
application of the benefit of
the doubt and asks the Court to rule in his favor and find that he is
entitled to a higher rating for his
abdomen. Appellant’s Br. at 6. The Secretary argues for affirmance of the
Board’s decision.
Secretary’s Br. at 4-9.
The Secretaryhas filed a separate motion to strike an attachment to the
appellant’s replybrief
and arguments based thereon as the document attached by the appellant
contains a handwritten
attestation that postdates the Board’s October 5, 2010, decision.
Secretary’s Motion at 1-2. The
appellant has filed a written opposition to the Secretary’s motion. The
motion to strike the
attachment to the appellant’s reply brief will be granted as the Secretary
correctly argues that such
a document may not be considered by the Court as it was not contained in
the record of proceedings
before the Board. Secretary’s Motion at 1-2; see 38 U.S.C. § 7252(b) (the
Court is prohibited from
considering anymaterial that was not contained in the “record before the
Secretaryand the Board.”);
Bonhomme v. Nicholson, 21 Vet.App. 40, 43-45 (2007); Rogozinski v.
Derwinski, 1 Vet.App. 19,
20 (1990).
The Board purported to limit its decision in the instant case to the
adjudication of the
appellant’s claim for an increased rating for residuals of an SFW to the
abdomen with RFB. R. at
14. The Board expressly found that the appellant’s claim for an increased
rating for residuals of an
SFW to the abdomen with laceration of the liver was not on appeal. Id. The
Board specifically
found that Dr. Moody’s 1998 letter related to “a second condition for
which the [appellant is service[
5

]connected: his residuals of an [SFW] to the abdomen with laceration to
the liver.” Id. The Board
determined that the appellant’s “claim here is not seeking an increase for
those deep penetrating
wounds that he suffered; instead, this claim is focused on [his] other,
more superficial wounds to the
abdomen for which he obtained a separate rating.” Id.
While the appellant did not explicitly raise the issue of entitlement to
an increased rating for
residuals of an SFW to the abdomen with laceration of the liver, the
appellant, as a lay person, is not
qualified to delineate the precise boundaries of his condition or his
claim. See Jandreau v.
Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). An appellant’s claim
is not narrowly limited
to the diagnosis he puts down, but encompasses additional disabilities
reasonably raised by “the
claimant’s description of the claim; the symptoms the claimant describes;
and the information the
claimant submits or that the Secretary obtains in support of the claim.”
Clemons v. Shinseki,
23 Vet.App. 1, 5 (2009). The Court has jurisdiction over “any matters that
were reasonably raised
below that the Board should have decided, with regard to a claim properly
before the Court, but
failed to do so.” Id. at 3.
Because this appellant cannot be expected to understand the technical
differences between
symptoms of residuals of an SFW to the abdomen with a laceration of the
liver and symptoms of
residuals of an SFW to the abdomen with RFB, the Board erred in limiting
his claim for an increased
rating for residuals of SFWs to the abdomen to a claim for an increased
rating for residuals that were
due to RFBs. R. at 14. The appellant’s claim necessarilyincluded
anyrelated disabilityraised during
the development of that claim, as he is seeking increased compensation for
his symptoms regardless
of diagnosis. See Clemons, 23 Vet.App. at 3. Even if the claim for an
increased rating for SFWs to
the abdomen with laceration of the liver was never appealed to the Board,
the findings made in that
claim and its outcome may well be relevant to this appeal. Accordingly,
the Board’s failure to
address the appellant’s entitlement to an increased rating for his SFW to
the abdomenwith laceration
of the liver frustrates judicial review and warrants remand. See Allday,
supra; see also Clemons,
supra (Court has jurisdiction to remand anymatters reasonablyraised below
that Board should have
but failed to decide).
The Secretary “shall make reasonable efforts to assist a claimant in
obtaining evidence
necessary to substantiate the claimant’s claim for a benefit under a law
administered by the
6

Secretary.” 38 U.S.C. § 5103A(a)(1). The Secretary’s duty to assist a
claimant includes, among
other things, “providing a medical examination or obtaining a medical
opinion when such an
examination or opinion is necessaryto make a decision on the claim.” 38 U.
S.C. § 5103A(d)(1); see
38 C.F.R. § 3.159(c) (2011). Further, 38 C.F.R. § 4.2 requires that,
once obtained, if an examination
report does not contain sufficient detail, “it is incumbent upon the
rating board to return the report
as inadequate for evaluation purposes.” 38 C.F.R. § 4.2 (2011). The Court
reviews the Board’s
determination that VA satisfied its duty to assist under the “clearly
erroneous” standard of review.
Nolen v. Gober, 14 Vet.App. 183, 184 (2000).
Here, the Board rejected VA and private medical evidence that indicated
that the appellant
underwent multiple postservice abdominal surgeries related to his SFWs
because the Board found
that the appellant had “fabricated evidence in an effort to support his
claim.” R. at 14. The Board
offered an inadequate statement of reasons or bases for this conclusion.
Id.; see Allday and Gilbert,
both supra. Moreover, pursuant to 38 C.F.R. § 19.9(a) (2011), “[i]f
further . . . clarification of the
evidence . . . is essential for a proper appellate decision, [the Board]
shall remand the case to the
agency of original jurisdiction, specifying the action to be undertaken.”
Id. Thus, when the Board
finds a VA examination report to be unclear, it ordinarily should remand
the matter to the RO for
clarification from the examiner. See Bowling v. Principi, 15 Vet.App. 1,
12 (2001) (holding that the
Board has a duty, under 38 C.F.R. § 19.9(a), to remand a case “[i]f
further evidence or clarification
of the evidence or correction of a procedural defect is essential for a
proper appellate decision”); see
also Previous DocumentSavageNext Hit v. Shinseki, 24 Vet.App. 259, 260 (2011) (“in some
circumstances, VA does have a duty
to return for clarification unclear or insufficient private examination
reports . . . , or the Board must
explain why such clarification is not necessary.”). The Board in the
instant case erred in rejecting
the favorable medical evidence of record without complying with its dutyto
assist byseekingfurther
clarification from the examiners. R. at 14. Accordingly, remand is
required. See Previous HitSavageNext Document and
Bowling, both supra.
To the extent that the appellant argues for reversal of the Board’s
decision, his argument is
not persuasive. Appellant’s Br. at 6. Reversal is the appropriate remedy
only in cases in which the
only permissible view of the evidence is contrary to the Board’s decision.
Gutierrez v. Principi, 19
Vet.App. 1, 10 (2004); Johnson v. Brown, 9 Vet.App. 7, 10 (1996).
Generally, where the Board has
7

incorrectly applied the law or failed to provide an adequate statement of
reasons or bases for its
determinations, or where the record is otherwise inadequate, remand is the
appropriate remedy.
Tucker v. West, 11 Vet.App.369, 374 (1998); see Coburn v. Nicholson, 19
Vet.App. 427, 431 (2006)
(holding that remand is appropriate when “the Court finds that the Board
decision is defective in its
reasons or bases therebypreventing properreview bythe Court”). Here, the
Court is precluded from
reviewing the Board’s decision due to its failure to address the
appellant’s entire claim for an
increased rating for SFWs to the abdomen, as well as VA’s failure to fully
comply with its duty to
assist. Thus, reversal is not the proper remedy; the Court will vacate the
decision and remand the
matter on appeal for readjudication.
In light of the need to remand the appellant’s claim for an increased
rating for residuals of
SFWs to his abdomen based on the foregoing errors, his 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
Upon consideration of the foregoing analysis, the record on appeal,and the parties’ pleadings, the Secretary’s motion to strike the attachment to the appellant’s reply brief is granted and the Board’s October 5, 2010, decision is VACATED to the extent that it denied entitlement to an increased disability rating and that matter is REMANDED for proceedings consistent with the foregoing.
DATED: November 30, 2011
Copies to:
Barry A. Krupkin
VA General Counsel (027)
8

Leave a Comment »

No comments yet.

RSS feed for comments on this post. TrackBack URI

Leave a Reply

Your email address will not be published. Required fields are marked *

This site uses Akismet to reduce spam. Learn how your comment data is processed.

Powered by WordPress.com.