Veteranclaims’s Blog

April 16, 2013

Single judge Application; Waters v. Shinseki, 601 F.3d 1274, 1277 (Fed. Cir. 2010); evidence “indicating” that a condition “may be associated” with service need not be “Medical” nor “Competent; McLendon, 20 Vet.App. at 83

Excerpt from decision below:
“The Board determined that a VA examination was not required because there was no competent and credible evidence indicating that Mr. Gifford’s disability may be associated with service. Later in its decision, the Board stated that Mr. Gifford does not have a current disability.
However, Mr. Gifford’s private physician did note that he had a current condition, including numbness and pain in his upper extremities. R. at 418. Additionally, other treatment records note Mr. Gifford’s complaints of numbness and pain in his legs. R. at 722, 915, 992, 1007. The Board does not explain why these symptoms would not constitute a current disability and, thus, satisfy the first requirement for entitlement to a medical examination. 38 U.S.C. § 5103A(d)(2); McLendon,
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20 Vet.App. at 83. Further, although the Board rejected Mr. Gifford’s statements that he was exposed to cold temperatures in service as not competent or credible to establish a casual link between his condition and his military service, the Board does not discuss whether these statements are sufficient to establish merely that he experienced exposure to the cold during service, which
could establish the second requirement for entitlement to a medical examination. 38 U.S.C. § 5103A(d)(2); McLendon, 20 Vet.App. at 83; Layno v. Brown, 6 Vet.App. 465, 469 (holding that witnesses are competent to testify to facts personally observed).
In determining that there was no competent and credible evidence indicating that Mr. Gifford’s disability may be associated with service, the Board did not provide any specific analysis as to why this requirement, as discussed in McLendon, had not been met. To the extent that the Board’s statement could be read as requiring “competent” evidence to indicate that the appellant’s
disability may be associated with service, the U.S. Court of Appeals for the Federal Circuit held that each of the subsections of 38 U.S.C. § 5103A(d) contains a different evidentiary standard and concluded that evidence “indicating” that a condition “may be associated” with service need not be
“medical” nor “competent.” Waters v. Shinseki, 601 F.3d 1274, 1277 (Fed. Cir. 2010).
Although the Board later, in denying the claim, disregarded Mr. Gifford’s private physician’s statement for failing to discuss when the exposure to cold occurred, the Board did not address whether that opinion, combined with Mr. Gifford’s lay statements regarding exposure to cold in service, was
sufficient to indicate that his condition may be associated with service so as to satisfy the “low threshold” in McLendon. McLendon, 20 Vet.App. at 83. Based on the inadequacies in the Board’s reasons and bases, the Court finds that remand is appropriate for the Board to fully explain whether Mr. Gifford is entitled to a VA examination and, if so, to provide him with such an examination.
See Gilbert, 1 Vet.App. at 56-57.
============================

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 12-772
DANIEL C. GIFFORD, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.

Before PIETSCH, Judge.

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

PIETSCH, Judge: Daniel C. Gifford appeals through counsel a February 2, 2012, Board of
Veterans’ Appeals (Board) decision that, among other dispositions, denied entitlement to VA
compensation for residuals of cold exposure.1 This appeal is timely and the Court has jurisdiction
to review the Board’s decision pursuant to 38 U.S.C. §§ 7252(a) and 7266. Single-judge disposition
is appropriate as the issue is “of relative simplicity” and the outcome is “not reasonably debatable.”
Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). For the reasons that follow, the Court will
vacate the Board’s decision and remand the claim for readjudication consistent with this decision.
I. FACTS
Mr. Gifford served on active duty in the U.S. Army from January 1968 to December 1969.
Record (R.) at 69. Service personnel records indicate that he was stationed at Fort Leonard Wood,
Missouri, from March 1968 to February 1969. R. at 71. In June 1968, Mr. Gifford was diagnosed
1The Board also remanded Mr. Gifford’s claim for VA compensation for an acquired psychiatric disorder,
to include post-traumatic stress disorder. Accordingly, that issue is not before the Court at this time. See 38 U.S.C.
§ 7266(a) (stating that the Court reviews only final decisions of the Board); see also Howard v. Gober, 220 F.3d
1341, 1344 (Fed. Cir. 2000) (Board remand does not constitute a final decision that may be appealed).
with pneumonia. R. at 32. However, his service medical records are negative for any cold-related
injuries. R. at 31-68. Mr. Gifford’s December 1969 service discharge examination reflects that his
upper and lower extremities, including his feet, were normal. R. at 54.
In July 2002, Mr. Gifford complained of pain and numbness in the veins in his lower legs.
R. at 722. In October 2002, Mr. Gifford was diagnosed with restless leg syndrome. R. at 1007. A
February 2003 VA treatment note indicated that Mr. Gifford experienced numbness and restless legs
at night. R. at 992. A January 2005 VA treatment also notes symptoms of nocturnal leg cramps and
restless legs. R. at 915.
In June 2007, Mr. Gifford sought VA benefits for residuals of cold exposure. R. at 433. He
stated that he had sustained cold-related injuries while participating in training exercises at Fort
Leonard Wood, which he stated occurred day and night at “40 degrees below zero with only pup
tents for sleeping.” Id. In August 2007, Mr. Gifford sought treatment from a private vascular
physician for upper extremity numbness and pain post-cold exposure. R. at 418. The physician
conducted arterial testing of both upper and lower extremities and found them to be within normal
limits. R. at 417. The physician opined that “given the fact that [Mr. Gifford’s] symptoms occurred
shortly after his exposure to cold and [the] fact he has normal arterial circulation of both upper and
lower extremities indicates to me that the etiology of his symptoms are more likely than not cold
exposure.” Id.
In November 2007, Mr. Gifford submitted a statement in support of his claim, asserting that
he was treated for a cold weather injury while stationed at Fort Leonard Wood some time between
January and March 1969. R. at 389. In January 2008, a VA regional office (RO) denied entitlement
to VA benefits for residuals of a cold injury. R. at 310-24. The RO acknowledged that Mr. Gifford’s
private physician attributed his condition to cold weather, but found that the private physician had
not reviewed Mr. Gifford’s service medical records, which the RO stated contained no evidence of
exposure to cold weather during service. R. at 320. Therefore, the RO rejected the private
physician’s opinion. Id.
In February 2008, Mr. Gifford submitted a Notice of Disagreement, stating that while at Fort
Leonard Wood he served on guard duty in sub-zero temperatures for 12 hours twice a week. R. at
309. In September 2008, the RO continued to deny Mr. Gifford’s claim, finding that the evidence
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did not show that he was exposed to cold during service. R. at 292. Mr. Gifford appealed that
decision. R. at 99. In his appeal, he reasserted that he had been exposed to sub-zero temperatures
while on guard duty at Fort Leonard Wood in February 1968 and had been treated for pneumonia
and cold-related injuries. Id.
In February 2012, the Board issued the decision on appeal, denying entitlement to benefits
for residuals of cold exposure. The Board found that VA did not have a duty to provide Mr. Gifford
an examination because there was no competent and credible evidence that Mr. Gifford’s current
numbness and pain may be associated with his military service. R. at 5-6. In denying his claim, the
Board acknowledged that Mr. Gifford reported being exposed to sub-zero temperatures during
service, including receiving treatment for cold-related injuries. R. at 6. However, the Board found
that his service medical records were silent as to any such injuries or treatment. R. at 7. The Board
also acknowledged the opinion of Mr. Gifford’s private physician that his current condition was more
likely than not related to exposure to cold. Id. However, the Board stated that the physician failed
to specify when Mr. Gifford was exposed to cold, during or after service. Id. The Board also stated
that the private physician did not indicate that Mr. Gifford had a current disability. Id. The Board
found that opinion had no probative value. R. at 8. The Board also found Mr. Gifford’s statements
were not clear as to continuity of symptomatology and were not competent or credible. Id.
On appeal, Mr. Gifford argues that the Board erred in finding that VA fulfilled its duty to
assist. He asserts that VA was required to provide him with a medical examination. In response,
the Secretary contends that no examination was required because the evidence does not establish that
Mr. Gifford has a cold injury disability. The Secretary also argues that to the extent there is a
disability, there is no evidence indicating that it may be related to service.
II. ANALYSIS
The Secretary’s duty to assist includes “providing a medical examination or obtaining a
medical opinion when such an examination or opinion is necessary to make a decision on the claim.”
38 U.S.C. § 5103A(d)(1); see also Green v. Derwinski, 1 Vet.App. 121, 124 (1991). The Secretary
must provide a VA medical examination or opinion for disability compensation claims when the
competent medical evidence of record is insufficient to make a decision and there is (1) “competent
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evidence of a current disability or persistent or recurrent symptoms of a disability,” (2) “evidence
establishing that an event, injury, or disease occurred in service or establishing certain diseases
manifesting during an applicable presumptive period for which the claimant qualifies”, and (3) “an
indication that the disability or persistent or recurrent symptoms of a disability may be associated
with the veteran’s service or with another service-connected disability.” McLendon v. Nicholson,
20 Vet.App. 79, 83 (2006); 38 U.S.C. § 5103A(d)(2). This Court held in McLendon that the third
requirement, an “indication” that a condition “may be associated” with service, establishes a “low
threshold.” McLendon, 20 Vet.App. at 83. When deciding whether an examination is 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.
As always, 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 the Board’s decision as well as
to facilitate review in this Court. 38 U.S.C. § 7104(d)(1); see Allday v. Brown, 7 Vet.App. 517, 527
(1995); Gilbert v. Derwinski, 1 Vet.App. 49, 56-57 (1990). 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 VA examination was not required because there was no competent and credible evidence indicating that Mr. Gifford’s disability may be associated with service. Later in its decision, the Board stated that Mr. Gifford does not have a current disability.
However, Mr. Gifford’s private physician did note that he had a current condition, including numbness and pain in his upper extremities. R. at 418. Additionally, other treatment records note Mr. Gifford’s complaints of numbness and pain in his legs. R. at 722, 915, 992, 1007. The Board does not explain why these symptoms would not constitute a current disability and, thus, satisfy the
first requirement for entitlement to a medical examination. 38 U.S.C. § 5103A(d)(2); McLendon,
4

20 Vet.App. at 83. Further, although the Board rejected Mr. Gifford’s statements that he was exposed to cold temperatures in service as not competent or credible to establish a casual link between his condition and his military service, the Board does not discuss whether these statements are sufficient to establish merely that he experienced exposure to the cold during service, which
could establish the second requirement for entitlement to a medical examination. 38 U.S.C. § 5103A(d)(2); McLendon, 20 Vet.App. at 83; Layno v. Brown, 6 Vet.App. 465, 469 (holding that witnesses are competent to testify to facts personally observed).
In determining that there was no competent and credible evidence indicating that Mr. Gifford’s disability may be associated with service, the Board did not provide any specific analysis as to why this requirement, as discussed in McLendon, had not been met. To the extent that the Board’s statement could be read as requiring “competent” evidence to indicate that the appellant’s
disability may be associated with service, the U.S. Court of Appeals for the Federal Circuit held that each of the subsections of 38 U.S.C. § 5103A(d) contains a different evidentiary standard and concluded that evidence “indicating” that a condition “may be associated” with service need not be
“medical” nor “competent.” Waters v. Shinseki, 601 F.3d 1274, 1277 (Fed. Cir. 2010). Although the Board later, in denying the claim, disregarded Mr. Gifford’s private physician’s statement for failing to discuss when the exposure to cold occurred, the Board did not address whether that opinion, combined with Mr. Gifford’s lay statements regarding exposure to cold in service, was
sufficient to indicate that his condition may be associated with service so as to satisfy the “low threshold” in McLendon. McLendon, 20 Vet.App. at 83. Based on the inadequacies in the Board’s reasons and bases, the Court finds that remand is appropriate for the Board to fully explain whether Mr. Gifford is entitled to a VA examination and, if so, to provide him with such an examination.
See Gilbert, 1 Vet.App. at 56-57.

III. CONCLUSION
Based on Mr. Gifford’s and the Secretary’s briefs and a review of the record of proceedings
before the Court, the Board’s February 2, 2012, decision is VACATED and the matter is
REMANDED for readjudication consistent with this decision.
DATED: April 12, 2013
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Copies to:
Alexandra Curran, Esq.
VA General Counsel (027)
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