Veteranclaims’s Blog

April 8, 2020

Single Judge Application; separate request for in-patient records was required, pursuant to the Manual; Manual, Pt. III, subpt. iii, ch. 2, § B(4)(e) (stating that a separate request must be made for records of in-patient hospital treatment); see Overton v. Wilkie, 30 Vet.App. 257, 264 (2018) (stating that, even though the Manual is not binding on the Board, the Board is nevertheless “required to discuss any relevant provisions contained in the [Manual] as part of its duty to provide adequate reasons or bases”);

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 19-0687
THOMAS R. FLANNERY, APPELLANT,
V.
ROBERT L. WILKIE,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before MEREDITH, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
MEREDITH, Judge: The appellant, Thomas R. Flannery, through counsel appeals a
November 8, 2018, Board of Veterans’ Appeals (Board) decision that denied entitlement to
benefits for right arm ulnar neuropathy and carpal tunnel syndrome, and right arm scarring. Record
(R.) at 3-10. 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. See
Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). For the following reasons, the Court will
vacate the Board’s decision and remand the matter for further proceedings consistent with this
decision.
I. BACKGROUND
The appellant served on active duty in the U.S. Army from May 1980 to May 1983. R. at
1684-87. His service entrance examination report reflects only a right elbow scar. R. at 1695. His
service medical records reveal that he was treated for warts under the right arm in October 1980
and June 1981. R. at 1721, 1726. Those records further reflect that, on May 22, 1982, he was
treated in the emergency room at Darnall Army Community Hospital with a “chief complaint” of
left foot pain after being “cut on steps.” R. at 1712. In September 1982, he complained of low
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back pain, tenderness, and tightness, R. at 1730; the same day, his physical profile was updated to
reflect 20-minute limitations on “strenuous physical activity,” as well as on crawling, stooping,
jumping, marching, or standing, R. at 1731-32. He was also restricted from running altogether.
R. at 1731. In January 1983, he was informed that he was not required to undergo a separation
physical and indicated that he did not desire to do so. R. at 1655.
In December 1983, the appellant completed a “Request Pertaining to Military Records,”
seeking his medical and service records from the National Personnel Records Center (NPRC).
R. at 1677. In response to a direction to explain the purpose for which he sought the requested
records, the appellant wrote, in part, “I need to file a compensation claim on my arm.” Id.
In conjunction with an unrelated claim for benefits, a VA regional office (RO) sought the
appellant’s complete medical and dental records, as well as his entire personnel file, from the
NPRC in April 2013. R. at 1754. The following month, the NPRC responded that “all available”
service medical records and personnel documents had been uploaded to the Veterans Benefits
Management System. R. at 1693; see R. at 1606-82, 1695-753.
In June 2014, the appellant sought benefits for ulnar nerve damage and scarring of the right
arm. R. at 1477-78. He reported that, while he was climbing the ladder of a swimming pool in
1982, the ladder broke, he fell, and the broken ladder cut his right arm open. R. at 1477. He further
stated that he “went to the emergency center and was sewn up.” Id. The RO denied the claims in
August 2014, finding no evidence of such an arm injury in service, R. at 1412-19; the appellant
did not appeal that decision.
Several months later, the appellant contacted his U.S. Senator, seeking assistance in
obtaining medical records from Darnall Army Hospital dated between May and September 1982.
R. at 1372. The Senator’s office forwarded the request to the Department of the Army, which
responded in January 2015 that it does not maintain servicemembers’ medical records after they
separate from service. R. at 1371. Instead, the Army representative wrote, the records are sent to
the NPRC. Id. She further advised the Senator that, “after inquiring with the NPRC[,] they have
informed us that they do not have any medical records for [the appellant].” Id. The Senator, in
turn, forwarded the Army’s letter to the director of VA’s Records Management Center (RMC),
stating that he had been advised that the appellant’s treatment records could be obtained from that
entity and asking VA to forward him the records. R. at 1370. In February 2015, the director of
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the RMC responded to the Senator, enclosed the appellant’s service medical records on a compact
disc, and advised him that “[t]his record represents all available documents.” R. at 1365.
The RO reopened the appellant’s claims in May 2015 but continued to deny them on the
merits. R. at 1256-59. The appellant filed a Notice of Disagreement with that decision, stating
that he injured his right forearm in the same incident in which he injured his left foot (“cut on
steps”) on May 22, 1982. R. at 1243; see R. at 1253-54. He reported that he had “2 arteries,
3 veins, and 2 muscles that had to be operated on [for his] right forearm injury.” R. at 1243. He
later perfected his appeal to the Board. R. at 333-34.
The appellant testified at a hearing before a Board member in May 2017. R. at 202-22. He
again explained that he injured his right forearm on May 22, 1982, when he fell off a ladder and
that his forearm injury was so severe it required surgery at Darnall Army Hospital. R. at 204-05.
The appellant’s nonattorney representative stated that records of the treatment at the Army hospital
“were unable to be located except for the top page,” R. at 217, which appears to be a reference to
the emergency record from the hospital reflecting that the appellant complained of left foot pain
after being cut on the steps, see R. at 1712. The representative further stated: “There [are] no other
medical records that Darn[a]ll Army Hospital can provide to us. The [appellant] has tried
numerous times to obtain these records, but they are not there.” R. at 217.
In a September 2017 decision, the Board remanded the appellant’s claims for a medical
examination, R. at 156-64, which was provided in November 2017, R. at 50-66 (nerves), 69-89
(scars). In a January 2018 addendum, provided because the November 2017 examination report
contained incomplete rationale due to character limits on the form, the examiner stated:
There are no [service medical records] describing any sort of nerve complaints
during service. There are no [service medical records] documenting a right forearm
laceration during military service. Though the [appellant] self-reports nerve
damage as a complication of a right arm laceration in-service, there is a lack of
objective evidence confirming this laceration occurred during active duty. May
2017 Hearing Transcript reviewed[,] as is the full claims file, to include the May
1982 [service medical record], which does not mention a right arm laceration. [The
appellant] had several in[-]service treatment visits after May 1982, which is when
[he] reports the laceration occurred, and none of these mention post-operative status
or right arm injury, which is felt to be inconsistent with the severity the [appellant]
has described. Though [there is] evidence of ulnar neuropathy and carpal tunnel of
the right arm, neither can be linked to service at this time with the available
evidence. Objective evidence of the nerve condition is not found until 2014,
30 years after the [appellant] claims the condition had its onset.
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R. at 67. The examiner offered a similar opinion on the appellant’s right forearm scar. See id.
The Board issued the decision on appeal in November 2018, denying the appellant’s claims
for benefits. The Board determined that, although the appellant alleged that his service medical
records were incomplete, there was no evidence that any other records remained outstanding.
R. at 6. The Board then found the appellant’s statements regarding an in-service forearm injury so
severe as to require surgery inconsistent with the contemporaneous medical evidence of record.
R. at 6-7. This appeal followed.
II. ANALYSIS
The appellant argues that the Board erred in its implicit finding that VA had satisfied its
duty to assist because VA failed to attempt to obtain in-patient clinical records from Darnall Army
Hospital, Appellant’s Brief (Br.) at 12-15, and because the January 2018 VA medical addendum
opinion is inadequate, id. at 15-18. Relying on the VA Adjudication Procedures Manual (Manual),
he contends that in-patient treatment records are not ordinarily included in service medical records
and that VA has yet to request his in-patient records from Darnall. Id. at 13 (citing Manual, Pt. III,
subpt. iii, ch. 2, § B(4)(e)). In the alternative, the appellant contends that the Board failed to discuss
VA’s duty to assist and therefore provided inadequate reasons or bases for its decision. Id. at 18-

  1. Finally, he asserts that the Board provided inadequate reasons or bases for its rejection of his
    lay statements regarding his claimed in-service injury and failed to adequately address his
    arguments regarding the completeness of the record. Id. at 22-25.
    The Secretary generally disputes these arguments and urges the Court to affirm the Board
    decision. Secretary’s Br. at 8-17. Of note, the Secretary concedes that, after the appellant filed his
    June 2014 claims for benefits for the conditions on appeal, “VA did not make any requests to
    obtain any potentially existing in[-]patient clinical records from Darnall Army Community
    Hospital despite being aware of his contention that he suffered a cut to his right arm in service and
    underwent surgery as part of the treatment for that laceration.” Id. at 8. Nevertheless, the Secretary
    contends that this error is harmless because the record reveals that no such records exist, as
    demonstrated by the appellant’s repeated attempts to obtain them. Id. at 8-10.
    Under the duty to assist, “[t]he Secretary shall make reasonable efforts to assist a claimant
    in obtaining evidence necessary to substantiate the claimant’s claim for a benefit.” 38 U.S.C.
    § 5103A(a). This includes “relevant records pertaining to the claimant’s active military, naval, or
    5
    air service that are held or maintained by a governmental entity,” provided that the claimant “has
    furnished the Secretary information sufficient to locate such records.” 38 U.S.C.
    § 5103A(c)(1)(A). But, “[t]he Secretary is not required to provide assistance to a claimant . . . if
    no reasonable possibility exists that such assistance would aid in substantiating the claim.”
    38 U.S.C. § 5103A(a)(2). The Board’s determination of whether the Secretary has fulfilled his
    duty to assist generally is a finding of fact that the Court reviews under the “clearly erroneous”
    standard of review. Van Valkenburg v. Shinseki, 23 Vet.App. 113, 120 (2009). A finding of fact
    is clearly erroneous when the Court, after reviewing the entire evidence, “is left with the definite
    and firm conviction that a mistake has been committed.” United States v. U.S. Gypsum Co.,
    333 U.S. 364, 395 (1948); see Gilbert v. Derwinski, 1 Vet.App. 49, 52 (1990). As with any
    material issue of fact or law, the Board must provide a statement of the reasons or bases for its
    determination “adequate to enable a claimant to understand the precise basis for the Board’s
    decision, as well as to facilitate review in this Court.” Allday v. Brown, 7 Vet.App. 517, 527
    (1995); see 38 U.S.C. § 7104(d)(1); Gilbert, 1 Vet.App. at 56-57.
    Here, the Board stated the following:
    Although the [appellant] assert[s] that his records are incomplete, there is
    significant evidence supporting a conclusion that they are complete. He reports
    that after service he unsuccessfully tried to retrieve his medical records. However,
    January 2015 correspondence shows that the hospital forwards all medical records
    for service members after separation to the [NPRC]. The NPRC did not have any
    medical records for the [appellant] from July to September 1982. May 1982 service
    treatment records clearly show the [appellant’s] hospital emergency room visit for
    a left foot injury. Moreover, the January 2018 VA examiner concluded that the
    lack of post-operative status or right arm injury treatment is inconsistent with the
    right arm injury severity as described by the [appellant]. Normally, the absence of
    evidence is insufficient to make an affirmative declaration. However, here the
    [appellant’s] records are complete and there is a medical opinion concluding that[,]
    based on the severity of the injury, the lack of treatment or post-operation notes is
    inconsistent with the occurrence of an injury of this magnitude.
    R. at 6 (citations omitted). Although the Board acknowledged the appellant’s contention that he
    lacerated his arm in May 1982 and underwent surgery to repair the injury, R. at 5, the Board did
    not address what steps, if any, VA took to obtain any in-patient treatment records from Darnall
    Army Hospital or determine whether such records are unavailable. See 38 U.S.C. § 5103A(c)(2)
    (requiring that efforts to obtain records from Federal entities must continue “until the records are
    obtained unless it is reasonably certain that such records do not exist or that further efforts to obtain
    6
    those records would be futile”). Moreover, although the Board relied on service medical records
    that contain a report from Darnall to find that the appellant’s service medical records were complete, it did not address whether, as the appellant contends, a separate request for in-patient records was required, pursuant to the Manual. Appellant’s Br. at 12-13; Manual, Pt. III, subpt. iii, ch. 2, § B(4)(e) (stating that a separate request must be made for records of in-patient hospital treatment); see Overton v. Wilkie, 30 Vet.App. 257, 264 (2018) (stating that, even though the Manual is not binding on the Board, the Board is nevertheless “required to discuss any relevant provisions contained in the [Manual] as part of its duty to provide adequate reasons or bases”).
    Although the Secretary contends that the Board’s error is harmless because “it is clear” that
    no in-patient records related to a forearm laceration exist, Secretary’s Br. at 9, given the Secretary’s
    concession that VA made no attempts to obtain the identified records, the potentially relevant
    distinction in the Manual between requests for in-patient treatment records and hospital summaries
    for duty to assist purposes, and the lack of discussion as to whether the appellant’s personal
    attempts to retrieve the records were sufficient to encompass in-patient records, the Court cannot
    conclude that the Board’s errors were not prejudicial. See 38 U.S.C. § 7261(b)(2) (requiring the
    Court to “take due account of the rule of prejudicial error”); Shinseki v. Sanders, 556 U.S. 396,
    409 (2009) (holding that the harmless-error analysis applies to the Court’s review of Board
    decisions and that the burden is on the appellant to show that he or she suffered prejudice as a
    result of VA error). Remand is thus required. See Tucker v. West, 11 Vet.App. 369, 374 (1998)
    (“[W]here the Board . . . failed to provide an adequate statement of reasons or bases for its
    determinations, . . . a remand is the appropriate remedy.”).
    Given this disposition, the Court will not now address the remaining arguments and issues
    raised by the appellant. See Quirin v. Shinseki, 22 Vet.App. 390, 395 (2009) (noting that “the
    Court will not ordinarily consider additional allegations of error that have been rendered moot by
    the Court’s opinion or that would require the Court to issue an advisory opinion”); Best v. Principi,
    15 Vet.App. 18, 20 (2001) (per curiam order). On remand, the appellant is free to submit additional
    evidence and argument on the remanded matters, including the specific arguments raised here on
    appeal, and the Board is required to consider any such relevant evidence and argument. See Kay
    v. Principi, 16 Vet.App. 529, 534 (2002) (stating that, on remand, the Board must consider
    additional evidence and argument in assessing entitlement to the benefit sought); Kutscherousky
    v. West, 12 Vet.App. 369, 372-73 (1999) (per curiam order). The Court reminds the Board that
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    “[a] remand is meant to entail a critical examination of the justification for the decision,” Fletcher
    v. Derwinski, 1 Vet.App. 394, 397 (1991), and the Board must proceed expeditiously, in
    accordance with 38 U.S.C. § 7112.
    III. CONCLUSION
    After consideration of the parties’ pleadings and a review of the record, the Board’s
    November 8, 2018, decision is VACATED and the matters are REMANDED for further proceedings consistent with this decision.
    DATED: April 7, 2020
    Copies to:
    Glenn R. Bergmann, Esq.
    VA General Counsel (027)

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