Veteranclaims’s Blog

August 9, 2015

Single Judge Application; Continuity of Symptoms; Service-Connection; Groves v. Peake, 524 F.3d 1306 (Fed. Cir. 2008)

Excerpt from decision below:

“To the extent that the veteran argues that the Board erred in requiring evidence of continuity of symptoms from separation until 2001 because, under Groves v. Peake, 524 F.3d 1306 (Fed. Cir. 2008), “the  condition arose in service and manifested after service, [and therefore] it does not matter how remote the post-service manifestations occurred” (Appellant’s Br. at 7), the veteran misapprehends  Groves and § 3.303(b).
In Groves, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) clarified that, under § 3.303(b), when a chronic condition is “diagnosed in service,”  subsequent manifestations of the
same chronic disease at any later date are serviceconnected,
unless clearly attributable to intercurrent causes. Groves, 524 F.3d at 1309. In Groves it was undisputed that the veteran was diagnosed with a chronic disease in service. Id. at 1310. In other words in Groves the Federal Circuit was interpreting the chronic disease portion of § 3.303(b), not the continuity of symptoms portion of that regulation.”

======================

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 14-1556
ANTHONY J. VALESE, APPELLANT,
V.
ROBERT A. MCDONALD,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before BARTLEY, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
BARTLEY, Judge: Veteran Anthony J. Valese appeals through counsel an April
18, 2014,
Board of Veterans’ Appeals (Board) decision denying service connection for
a low back disability.
Record (R.) at 3-16. 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(a). Single-judge
disposition is appropriate in
this case. See Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). For the
reasons that follow, the
Court will set aside the April 2014 decision and remand the matter for
further development and
readjudication consistent with this decision.
I. FACTS
Mr. Valese served on active dutyin the U.S. Navyfrom October1960 to
October1964, April
1965 to April 1969, and September 1969 to August 1981, earning, inter alia,
the National Defense
Service Medal, the Vietnam Service Medal, the Sea Service Deployment
Ribbon, and the Vietnam
Campaign Medal. R. at 369, 384, 386. Service treatment records (STRs) show
that he was treated
for low back pain in August 1972 and October 1973. R. at 102, 103. He
indicated “recurrent back
pain” on a report of medical history at separation in May 1981. R. at 575.
The accompanying report
of medical examination was negative for spine issues. R. at 577-78.

Mr. Valese apparently claimed and was denied service connection for “a
back disorder
sometime prior to 1999″; however, per a November 2010 Board decision, the ”
original claims file
[was] apparently [] lost or misplaced.” R. at 174; see also R. at 6.
Neither the record nor the parties
indicate when this original claim was adjudicated.
In July 2001, Mr. Valese complained to a private physician that his right
leg had been aching
and tingling for a couple of weeks, which occasionally radiated down to
the knee. R. at 336. The
doctor noted that the veteranoccasionallyexperienceddiscomfortin the
buttocks as well. Id. X-rays
taken that day showed “some narrowing” of the “L5/S1 interspace.” Id.
Later that month, the
veteran complained of right side hip, back, and leg pain once a week,
which had gotten
“progressively worse.” R. at 334.
In June 2007, Mr. Valese sought to reopen his claim for a low back
condition, stating that
he was treated for back pain in October or November 1965, August 1972, and
October 1973 and that
he “[s]till continue[s] to have intermittent pain.” R. at 570. The veteran
stated that he was evaluated
post-service at the Fargo VA medical center (VAMC) in March 1982, where he
was told by the
treating physician that his injuries did not merit “any more than a rating
of [0%]” but that if his
conditions became worse he should “get them reevaluated.” R. at 568. The
veteran stated that at the
time of his request to reopen, his back and other conditions had gotten ”
increasingly . . . worse.” Id.
He indicated that in 1992 he had gotten the Fargo VAMC to transfer his
records to “[t]he VA here
in Sioux Falls.” Id.
In a July 2007 email, the Sioux Falls VA regional office (RO) notified the
VA Records
Management Center (RMC) that it had not received Mr. Valese’s claims file
and asked the RMC to
check on the status. R. at 572. The RMC notified the RO later that month
that it was unable to
locate the file. Id. Per a September 2009 Supplemental Statement of the
Case (SSOC), the case file
used from that point forward was “a rebuilt folder based on the original
claims folder[‘s] being
unavailable after extensive research.” R. at 268.
In an August 2007 statement, Mr. Valese indicated that he spent time in
service as a hospital
corpsman and that he first injured his back while lifting a patient off
the floor in an Oakland naval
hospital in October 1965. R. at 511. He further stated that, as a
registered nurse, he was “quite
capable of caring for [him]self” and did not “seek medical attention for
every little ache or pain” but
2

rathertreatedhimselfwith stretchingandexercisetechniquesandover-the-
counterpainmedications
and sought outside medical assistance only when he had a “major need.” Id.
In December 2007, the
RO denied the request to reopen and confirmed and continued the previous
denial of service
connection for a low back condition. R. at 463-78.
In August 2008, Mr. Valese sought treatment for right lumbar back pain,
indicating that pain
began in 1965 and describing the pain as “intermittent” and “waxing and
waning.” R. at 89. During
the visit, the veteran described pain radiating down his right leg and
sporadic right leg numbness.
R. at 89-90. He stated that he had had low back pain for about nine months
but that problems had
been “on/off for 40 years.” R. at 90. X-rays showed lumbar spine
degenerative changes. R. at 89.
Later in August 2008, the veteran submitted to VA magnetic resonance
imaging (MRI) results from
a private medical provider that showed lumbar spine “central
spondylostenosis” and “spondylotic
neural foraminal narrowing.” R. at 407, 409.
Ahandwritten note signed by”Jackie/ROI” and dated September8, 2008, states
, “Norecords
at Fargo VA and no retired records.” R. at 414. In an October 2008 rating
decision, the RO,
apparently reopening the claim, continued the denial of service connection,
styling the condition as
“spondylostenosis with spondylotic neural foraminal narrowing, lumbar
spine (claimed as low back
condition).” R. at 397. The decision stated that the Fargo VAMC had
advised that it did not have
any records for Mr. Valese during “the time period specified.” R. at 398.
The veteran submitted a
timely Notice of Disagreement (NOD) in December 2008, reiterating that he
had gotten his Fargo
VAMC records transferred to the Sioux Falls VAMC in 1992 or 1993. R. at
359-90.
In January 2009, the RO notified the Fargo VAMC that the veteran “states
he had back
surgery at your facility on or about March 1982 (2-15-82 / 4-14-1982)” and
requested that the
VAMC send “all treatment reports concerning back surgery.” R. at 323. In
response to that request,
in February 2009, the Fargo VAMC stated, “The system of records named by
you does not contain
a record retrievable by name or file number.” R. at 321. Also in February
2009, the RO contacted
both the Sioux Falls and Fargo VAMCs by phone, and “both verified” that
they had no treatment
records for the veteran. R. at 319.
In a February 2009 Statement of the Case (SOC), the RO continued the
denial of service
connection. R. at 295-318. In March 2009, Mr. Valese filed a Substantive
Appeal. R. at 285-94.
3

In September 2009, the veteran underwent a VA spine examination, where a
VA examiner opined
that the veteran’s current low back pain was less likely than not related
to service, citing the lack of
evidence showing treatment for recurrent back pain between 1981 and 2001
and a lack of objective
medical evidence that the back pain suffered in 1972 and 1973 was of the
same etiology as the 2008
MRI findings. R. at 271-73; see also R. at 174. Later that month, an SSOC
continued the denial of
service connection. R. at 261-70.
At a July 2010 Board hearing, Mr. Valese reiterated that he first injured
his back in 1965
while lifting a patient off the floor. R. at 185. He stated that he had
had constant back pain and right
legnumbness for “quite a[]while”but thathedid not seektreatment between
1981 and 2001 because,
as a nurse, he did not think his back condition was severe enough to
warrant a doctor’s opinion and
because he was self-medicating and performing sedentary work during this
period. R. at 186, 190.
He drew a distinction between having aches and pains that caused him to be
unable to sleep, drive,
or sit for more than an hour, which he described as “a chronic problem
that keeps coming and
going,” and having a “dull ache” in his legs and back, which since service
was “always there.” R.
at 187. He reiterated that he was treated at the Fargo VAMC in March 1982,
stating that he and his
wife were at the facility all day and that he had an electrocardiogram (
EKG), x-rays, and a physical
examination. R. at 188.
In November 2010, the Board remanded the question of whether to reopen the
claim for
service connection for a back disability. R. at 171-79. The Board found
the September 2009 VA
examination report inadequate because the examiner’s opinion was
improperly based on the lack of
contemporaneous medical records from 1981 to 2001. R. at 174. Additionally,
the Board found:
[T]he record contradicts the examiner’s notation in the examination report
that there
was no care from the [v]eteran[‘s] separation from service in 1981 to 2001.
The
[v]eteran has provided competent lay testimony that he experienced
symptoms
related to his low back following service and that he employed various
methods of
self-treatment, including over-the-counter medications and heating pads.
R. at 175. The Board also faulted the examiner for restricting his
analysis to the documented
notations of in-service treatment in 1972 and 1973, noting that he had ”
failed to discuss the
[v]eteran’s other two reported instances of in-service treatment for low
back pain, and the [v]eteran’s
notation of recurrent back pain at separation in 1981.” Id.
4

The Board also found that remand was necessary for additional efforts to
locate the original
claims file (R. at 176) and to locate records of treatment at the Fargo
VAMC (R. at 177). With
respect to the latter, the Board noted “that a September 2008 RO request
for VA records was
unnecessarily limited to March 1982[] and that a January 2009 RO request
for VA records was
similarly limited in time frame as well as in requesting records
specifically relating to a surgery.”
R. at 177. The Board instructed that the RO obtain records of any and all
VA treatment, including
VA examinations, at the Sioux Falls and Fargo VAMCs. R. at 178.
At the resulting December 2010 VA spine examination, the examiner opined
that Mr.
Valese’s current back problems were less likely than not the result of or
incurred in active service,
noting that the veteran “did have two brief episodes of back pain in 1972
and 1973[;] however[,]
there is no consistent [treatment] pattern to his [lower back pain,] and
then the next time that he has
[lower back pain] is many years later.” R. at 157-58.
In a January 2011 letter, the Appeals Management Center (AMC) informed Mr.
Valese that
it had requested his claims file from the RMC and the Fargo RO. R. at 125.
A January 2011 email
exchange shows a request to the RMC and the Fargo RO for the missing
claims file and a response
from the RMC that the file was not found. R. at 96. Neither the letter nor
the emails reference the
search for the 1982 Fargo VAMC treatment record.
Mr. Valese submitted a statement with attachments in February 2011,
reiterating, inter alia,
that he had been treated for back pain in March 1982 at the Fargo VAMC and
that the records had
been transferred to the Sioux Falls VAMC in the early 1990s. R. at 99-100.
He disputed the idea
that his conditions were not chronic, stating, “As a professional care
provider[,] chronic can be
defined [as] continuous, ongoing, intermittent, recurrent, etc.[;] e.g.:
asthma, diabetes, or arthritis
all are not continuous[;] they exacerbate and recur, just as my back does.”
R. at 100. The RO issued
an SSOC continuing the denial of service connection in December 2011. R.
at 53-62.
In a March 2012 decision, the Board reopened the claim and remanded for
another VA
examination, finding that the December 2010 VA examiner, like the
September 2009 examiner, had
not considered the veteran’s report of “continuing back pain and self-
treatment for many years
following service and again relied on a lack of contemporaneous treatment
records.” R. at 24.
Regarding the search for records, the Board stated that the AMC had found ”
no progress notes” at
5

the Fargo VAMC and had located Sioux Falls VAMC records from November2007
to August 2010;
however, it was “not clear what time period was searched at the Fargo VAMC
,” and the Board noted
that “there may be additional more recent treatment records from the Sioux
Falls VAMC.” R. at 25.
The Board directed that a request be made for “any and all VA treatment
records pertaining to the
[v]eteran’s low back.” Id.
In April 2012, Mr. Valese underwent a third VA spine examination. R. at
646-57. The
examiner diagnosed moderate lower lumbar spine degenerative disc disease (
DDD) and mild lower
lumbar spine facet joint arthropathy. R. at 657. The examiner noted the
veteran’s statements
regarding back injuries in service, including statements that he injured
his back in 1965 when lifting
a patient and then again in 1968 in Singapore, when he “wrenched his back”
during physical therapy.
R. at 647. The examiner opined that the veteran’s current back condition
was less likely than not the
result of injuries in service, observing that his in-service injuries were ”
either not reported” or
“consisted of short term muscle sprains, requiring muscle relaxants.” R.
at 657. He observed no
report of “significant injury to [the veteran’s] low back, such as to
cause moderate degenerative
changes of his [lumbar] spine, and onset of radicular symptoms was much
later.” Id. He further
stated, “Onset of more severe back symptoms develop[ed] much later after
his period of service[]
and can be attributed to normal wear and tear[] or aging.” Id.
Following an October 2012 SSOC (R. at 635-43), the Board issued the April
2014 decision
on appeal, denying service connection for a low back disability (R. at 3-
14). The Board found that
VA’s duty to assist in locating the March 1982 Fargo treatment records was
satisfied by the RO’s
requests in 2008 and 2009 and stated that “any further attempts to obtain
the purported March 1982
records would be futile.” R. at 6-7. The Board found that the 2009 and
2010 VA medical
examinations were inadequate because the examiners did not consider the
veteran’s “report of
continuing back pain and self-treatment for many years following service
and . . . relied on a lack
of contemporaneous treatment records.” R. at 9-10. However, the Board
found that the April 2012
VA medical examination report was adequate and persuasive evidence,
observing the examiner’s
rationale that the in-service injuries were not of sufficient severity to
have caused the veteran’s
current symptoms and that the veteran’s more serious symptoms did not
appear until many years
following service, suggesting normal wear and tear due to the aging
process was a more likelycause.
6

R. at 10-11. The Board found Mr. Valese competent to report his lay
observations about symptoms
since service but found him not credible because his statements about
duration of symptoms were
“at best, inconsistent.” R. at 11. The Board noted that, as a nurse, the
veteran was competent to
opine regarding the etiology of his low back disability but weighed the
veteran’s medical opinion as
less persuasive than that of the April 2012 VA examiner. R. at 10. In this
regard, the Board noted
that the veteran “has not offered an explanation as to why he believes”
his current symptoms are
related to his in-service injuries and “has not addressed how the sorts of
injuries that he experienced
in-service can give rise to degenerative disease of the low back, nor has
he addressed other possible
causes of low back disability, such as the natural aging process.” R. at
10-11. This appeal followed.
II. ANALYSIS
Mr. Valese argues that the Board impermissibly relied on the lack of
medical evidence of
treatment from 1981 to 2001 to deny service connection on the basis of
continuity of symptoms and
that the Board’s negative credibility determination was clearly erroneous
and supported by
inadequate reasons or bases. Appellant’s Brief (Br.) at 6-9. He further
argues that the Board clearly
erred in finding the duty to assist satisfied because the April 2012 VA
medical examination was
inadequate and because VA failed to take adequate steps to locate March
1982 Fargo VAMC
treatment records. Id. at 11-15. The Secretary argues that the Board did
not restrict its continuity
of symptoms analysis to the lack of medical records, that the Board’s
credibility determination was
not clearly erroneous, that the Board did not clearly err in finding the
April 2012 VA examination
adequate, and that the Board did not clearly err in determining that VA
had done all that was
necessaryin attempting to locate potentially relevant treatment records.
Secretary’s Br. at 7-14. For
the reasons that follow, the Court holds that remand is necessary.
The Board’s service connection determination is a finding of fact, which
this Court reviews
for clear error. 38 U.S.C. § 7261(a)(4); Rose v. West, 11 Vet.App. 169,
171 (1998). “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)). As with any finding on a material issue of fact and law
presented on the record,
7

the Board must support its service connection determination with an
adequate statement of reasons
or bases that enables the claimant to understand the precise basis for
that finding and facilitates
review in this Court. See 38 U.S.C. § 7104(d)(1); Washington v. Nicholson,
19 Vet.App. 362, 366-
67 (2005). To comply with this requirement, the Board must analyze the
credibility and probative
value of evidence, account for evidence it finds persuasive or
unpersuasive, and provide reasons for
its rejection of 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).
Establishing service connection generally requires medical or, in certain
circumstances, lay
evidence of (1) a current disability; (2) in-service incurrence or
aggravation of a disease or injury;
and (3) a link between the claimed in-service disease or injury and the
present disability. See
Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Hickson v.
West, 12 Vet.App. 247,
253 (1999). Because arthritis is a chronic disease listed in 38 C.F.R. §
3.309(a), linkage may be
established by demonstrating continuity of symptoms since service. 38 C.F.
R. § 3.303(b) (2014);
see Walker v. Shinseki, 708 F.3d 1331, 1340 (Fed. Cir. 2013); Rose, 11 Vet.
App. at 171.
A. Findings Regarding Continuity of Symptoms
Mr. Valese first argues that the Board impermissibly relied on the absence
of “medical
evidence of post-service treatment until 2001” to deny service connection
based on continuity of
symptoms under 38 C.F.R. § 3.303(b). Appellant’s Br. at 7. To the extent
that the veteran argues
that the Board erred in requiring evidence of continuity of symptoms from
separation until 2001
because, under Previous DocumentGrovesNext Hit v. Peake, 524 F.3d 1306 (Fed. Cir. 2008), “the
condition arose in service and
manifested after service, [and therefore] it does not matter how remote
the post-service
manifestations occurred” (Appellant’s Br. at 7), the veteran misapprehends
Previous HitGrovesNext Hit and § 3.303(b).
In Previous HitGrovesNext Hit, the U.S. Court of Appeals for the Federal Circuit (Federal
Circuit) clarified that, under
§ 3.303(b), when a chronic condition is “diagnosed in service,”
subsequent manifestations of the
samechronicdiseaseatanylaterdateareserviceconnected,
unlessclearlyattributableto intercurrent
causes. Previous HitGrovesNext Hit, 524 F.3d at 1309. In Previous HitGrovesNext Hit, it was undisputed that the
veteran was diagnosed with
a chronic disease in service. Id. at 1310. In other words, in Previous HitGrovesNext Document, the
Federal Circuit was
interpreting the chronic disease portion of § 3.303(b), not the
continuityof symptoms portion of that
regulation.
8

In Mr. Valese’s case, by contrast, arthritis was not diagnosed in service
or shortly thereafter.
See R. at 12 (Board finds that arthritis was diagnosed “many years after
service”). Therefore, he
could only establish linkage under § 3.303(b) by showing continuity of
symptoms since service, and
it does “matter how remote the post-service manifestations occurred.” See
Walker, 708 F.3d at 1336
(“If evidence of a chronic condition is noted during service or during the
presumptive period, but the
chronic condition is not ‘shown to be chronic, or where the diagnosis of
chronicity may be
legitimately questioned,’ . . . then a showing of continuity of
symptomatology after discharge is
required . . . .'” (quoting § 3.303(b))).
To the extent that the veteran faults the Board for relying on a lack of
medical, as opposed
to lay, evidence of symptoms from 1981 to 2001 (see Appellant’s Br. at 7-8 (
the Board “did not
indicate why the [v]eteran’s statements and the nursing credentials he
provided were insufficient to
demonstrate whythe absence of [medical] evidence was not a hindrance to
establishing the claim”)),
the Court notes that the Board appeared to rely on both the absence of
medical records and the
veteran’s lay statements, finding the latter not credible. R. at 11. The
Board found both that “[t]here
is no competent medical evidence suggesting that the [v]eteran was treated
after service for a low
back disability until 2001” and that “[t]he [v]eteran has consistently
argued that he did not seek
medical care for this condition during this time.” R. at 11. The Board
then found that the veteran’s
stated reason as to why he did not seek medical treatment during this
time–because he was self-
treating–was not credible, and ultimately concluded that the veteran had
not presented sufficient
evidence that his symptoms had indeed been continuous from separation
until 2001. Id. Therefore,
the Court disagrees with the veteran to the extent that he argues that the
Board impermissibly based
its determination about continuity of symptoms on the lack of medical
evidence. See Buchanan v.
Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (Board may consider
absence of corroborating
medical records as a factor but may not rely solely on absence of medical
records).
The Court agrees with Mr. Valese, however, that the Board did not
adequately explain its
negative credibility determination. It is the Board’s province to
determine the credibility and
probative value of evidence, Owens v. Brown, 7 Vet.App. 429, 433 (1995);
Wood v. Derwinski,
1Vet.App.190,193(1991);however,suchcredibilitydeterminations must
besupportedbyadequate
reasons or bases, Washington, 19 Vet.App. at 366-67. Here, the Board
determined that the veteran’s
9

statementsaboutself-treatmentofcontinuityofsymptoms
between1981and2001lackedcredibility
because theywere inconsistent as to how long his symptoms had lasted at
various points, noting that
in July 2001 he complained of right leg pain for the “past couple of weeks”
but that in August 2008
he complained of low back pain for the past nine months and indicated that
he had symptoms
“on/off” for 40 years. R. at 11. The Board fails to explain why it is
inconsistent to describe
symptoms that last for different durations at different times,
particularlyconsidering that the veteran
consistently described his symptoms as “intermittent” (R. at 570), “waxing
and waning” (R. at 89),
“on/off” (R. at 90), and “a chronic problem that keeps coming and going” (
R. at 187). Further, the
Board’s recitation of symptoms that lasted for a couple of weeks in 2001
but for months in 2008 is
entirely consistent with the veteran’s June 2007 statement that his
symptoms were getting
“increasingly . . . worse.” R. at 568. Accordingly, the Board failed to
support its adverse credibility
determination with adequate reasons or bases. See Caluza, 7 Vet.App. at
506.
B. Adequacy of the April 2012 VA Medical Examination
Mr. Valese contends that the Board clearly erred in determining the
adequacy of the April
2012 VA medical examination because the examiner ignored his lay
statements about post-service
symptoms. The Court discerns no clear error. Any medical opinion on which
the Board relies must
be adequate to support judicial review. See Stefl v. Nicholson, 21 Vet.App.
120, 124 (2007) (a
medical opinion “must support its conclusion with an analysis that the
Board can consider and weigh
against contraryopinions”); see also Nieves-Rodriguez v. Peake, 22 Vet.App.
295, 301 (2008) (“[A]
medical examination report must contain not only clear conclusions with
supporting data, but also
a reasoned medical explanation connecting the two.”). Although “there is
no reasons or bases
requirement imposed on examiners,” Acevedo v. Shinseki, 25 Vet.App. 286,
293 (2012), “an
adequate medical report must rest on correct facts and reasoned medical
judgment so as to inform
the Board on a medical question and facilitate the Board’s consideration
and weighing of the report
against any contrary reports.” Id. “An opinion based upon an inaccurate
factual premise has no
probative value.” Reonal v. Brown, 5 Vet.App. 460, 461 (1993). The Court
reviews the Board’s
determination that a medical examination is adequate for clear error.
D’Aries v. Peake, 22 Vet.App.
97, 104 (2008).
10

Here, in finding the April 2012 VA examination adequate, the Board noted
that the examiner
discussed Mr.Valese’s lowbackdisabilityin relation to its history,
including discussing the veteran’s
lay statements, STRs, and other pertinent medical records. R. at 10. The
Board further noted that
the examiner opined that the veteran’s current disability was more likely
the result of the normal
aging process than in-service injuries and that his rationale was that the
veteran’s in-service injuries
were not of adequate severityto have caused the veteran’s current symptoms.
R. at 11. Accordingly,
the Board determined that the April 2012 VA examiner considered the facts,
provided a conclusion,
and supported that conclusion with an adequate rationale connecting the
two. See Acevedo,
25 Vet.App. at 293; Nieves-Rodriguez, 22 Vet.App. at 301.
The veteran contends that the examiner relied on an “inaccurate factual
premise” because he
did not “address” the veteran’s statements about why he did not seek
medical treatment for the 20
years followingservice. Appellant’s Br. at 11-12. However, there is no
reasons or bases requirement
imposed on medical examiners, see Acevedo, 25 Vet.App. at 293, and the
examination report
contains no indication that the examiner ignored this evidence. To the
contrary, the examiner’s
observation that “more severe back symptoms develop[ed] much later after
. . . service,” including
a later onset of radicular symptoms, is consistent with Mr. Valese’s
stated history of manageable
symptoms at first that he treated himself and then more severe symptoms
later, including numbness
and tingling, for which he sought medical treatment from others. R. at 657;
see R. at 186 (veteran
describing self-treatment from separation until 2001, during which time he
did not consider his
symptoms serious enough to warrant doctor’s treatment). Accordingly, the
Board did not clearly err
in deeming adequate the April 2012 VA examination.1
See D’Aries, 22 Vet.App. at 104.
The Court notes that, for the reasons stated below, remand is necessary
for additional
attempts to obtain potentially relevant Fargo VAMC treatment records. To
the extent that those
attempts recover additional records relevant to the veteran’s medical
history, an additional medical
opinion may be required. See Acevedo, 25 Vet.App. at 293 (adequate medical
reports must rest on
1
The veteran does not dispute theBoard’sdeterminationthat the April 2012
VAexaminer’s opinionwas entitled
to more probative weight than the veteran’s medical opinions, nor does he
question the adequacy of the reasoning behind
this determination, and the Court discerns no error and no inadequacy in
this regard. See R. at 10 (Board finds that the
veteran’s opinions lack adequate rationale); see also Simon v. Derwinski,
2 Vet.App. 621, 623 (1992) (the Board is
permitted to favor one medical opinion over another provided that it gives
an adequate statement of reasons or bases for
doing so).
11

correct facts); 38 C.F.R. § 4.1 (2014) (“It is . . . essential, both in
the examination and in the
evaluation of disability, that each disability be viewed in relation to
its history.”).
C. Duty to Assist in Obtaining March 1982 Fargo VAMC Records
The Secretary’s duty to assist under 38 U.S.C. § 5103A includes making ”
as many requests
as are necessary to obtain relevant records from a Federal department or
agency.” 38 C.F.R.
§ 3.159(c)(2) (2014). “VA will end its efforts to obtain [such] records
. . . only if VA concludes that
the records sought do not exist or that further efforts to obtain those
records would be futile,” such
as when “the Federal department or agency advises VA that the requested
records do not exist or the
custodian does not have them.” Id. The Court reviews the Board’s
determination that VA satisfied
its duty to assist for clear error. See Nolen v. Gober, 14 Vet.App. 183,
184 (2000).
Here, the Board’s determination that VA had satisfied its dutyto assist in
attempting to locate
the Fargo VAMC records was based on September 2008 and February 2009 RO
requests, in which,
according to the Board, “the RO received a response indicating that no
records were available from
that time.” R. at 6-7. However, there are multiple indications from the
record that the RO’s requests
were insufficient to target the records sought. As to the September 2008
request, there is no
indication from the September 2008handwritten note(R. at 414) or the
October2008 ratingdecision
(R. at 398) of what time period was searched nor was a request made at
that time to the Sioux Falls
VAMC, where the veteran had stated he had the treatment records
transferred (R. at 568). As to the
February 2009 request, the January 2009 request–to which a response was
received in February
2009–was clearly limited to records of “back surgery” and once again was
not made to the Sioux
Falls VAMC (R. at 321, 323); and, in the February2009 reports of phone
calls to the Sioux Falls and
Fargo VAMCs–dated 12 days after the Januaryrequests–there is no
indication as to whether records
of all treatment were requested or merely surgical records (R. at 319).
Accordingly, the Board’s
determination that these requests satisfied the duty to assist was clearly
erroneous. See Nolen,
14 Vet.App. at 184; 38 C.F.R. § 3.159(c)(2).
Moreover, in its November 2010 remand, the Board found that the RO’s
requests for March
1982 Fargo VAMC records and the requests for the veteran’s former claims
file were deficient. R.
at 177. The Board directed the RO to send requests for the claims file to
the RMC and the Fargo RO
and, separately, to send requests for “any and all VA treatment, including
VA examinations,” to the
12

Fargo and Sioux Falls VAMCs. R. at 177-78. Although the record shows that
January 2011
requests were made to the RMC and the Fargo RO for the claims file, there
is no evidence that the
RO made anyfurther attempts to locate the March 1982 Fargo VAMC treatment
records from either
the Fargo VAMC or the Sioux Falls VAMC. R. at 96, 125. Although the March
2012 Board
decision references Sioux Falls VAMC records from November 2007 to August
2010 and indicates
that there might be “more recent” treatment records at the Sioux Falls
VAMC and that it was “not
clear what time period was searched at the Fargo VAMC,” neither the Board
nor the RO appears to
have referenced the March 1982 Fargo VAMC treatment records after the
November 2010 Board
remand. R. at 25.
The Board is obligated to ensure substantial compliance with prior Board
remands. See
Stegall v. West, 11 Vet.App. 268, 271 (1998) (Board remand confers a right
on claimant to
compliance with the remand order); see also Dyment v. West, 13 Vet.App.
141, 147 (1999)
(clarifying that “substantial[]” compliance is required). Here, in
addition to clearly erring in
determining that the 2008 and 2009 requests satisfied the duty to assist,
the Board erred in not
ensuring substantial compliance with the November 2010 Board remand. See
Dyment, 13 Vet.App.
at 147. On remand, the Board must ensure that the Fargo VAMC and Sioux
Falls VAMC are asked
for records of any VA medical visit during the time period of February to
April 1982.
Remand is required for the reasons stated above. See Tucker v. West, 11
Vet.App. 369, 374
(1998) (holding that remand is the appropriate remedy “where 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”). On remand, Mr. Valese is free to submit
any additional evidence
and argument in accordance with Kutscherousky v. West, 12 Vet.App. 369,
372-73 (1999) (per
curiam order), and the Board must consider any such evidence or argument
submitted. See Kay v.
Principi, 16 Vet.App. 529, 534 (2002). The Board shall proceed
expeditiously, in accordance with
38 U.S.C. §§ 5109B and 7112.
III. CONCLUSION
Upon consideration of the foregoing, the April 18, 2014, Board decision is
SET ASIDE, and
the matter is REMANDED for furtherdevelopment and readjudication
consistent with this decision.
13

DATED: May 19, 2015
Copies to:
Robert V. Chisholm, Esq.
VA General Counsel (027)
14

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