Veteranclaims’s Blog

July 18, 2021

Single Judge Application; Garner v. Tran; reasonably raised claim; for a claim to be reasonably raised, there must be “some evidence in the record which draws an association or suggests a relationship between” the veteran’s bilateral shoulder arthritis and service. Garner v. Tran, __ Vet. App. , , No. 18-5865, 2021 U.S. Vet. App. Claims LEXIS 81, at *16 (Jan. 26, 2021);

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 19-7197
DAVID MARTIN, APPELLANT,
V.
DENIS MCDONOUGH,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before TOTH, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent.

TOTH, Judge: Veteran David Martin appeals a July 2019 Board decision that denied
service connection for a bilateral shoulder condition, a right wrist condition, and gastroesophageal
reflux disorder (GERD).* Since the parties concede that remand of the bilateral shoulder claim is
warranted, the Court remands it. And because the Board did not adequately explain why it relied
on certain VA examination reports in denying the right wrist claim, the Court also remands that
matter. However, for reasons set forth in more detail below, the Court affirms the Board’s denial
of service connection for GERD.
I. BILATERAL SHOULDER DISABILITY
The parties agree that remand of the bilateral shoulder disability claim is warranted because
the Board did not address Mr. Martin’s explicitly raised theory of service connection—that his
bilateral shoulder condition was caused or aggravated by his service-connected right ankle
disability or PTSD or by a yet non-service-connected right knee, low back, or neck disability.
Therefore, the Court remands for the Board to address these theories. The Court expresses no
*The Board also reopened and remanded claims for a low back and skin condition and remanded a serviceconnection
claim for sleep apnea and a claim for compensation under 38 U.S.C. § 1151. Since remands are not final
Board decisions, the Court has no jurisdiction over these claims. See Sharp v. Shulkin, 29 Vet.App. 26, 28 n.1 (2017).
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opinion on their merits. Nor need the Court address the veteran’s remaining argument that the
Board failed to consider medical text evidence regarding these theories of entitlement. Mr. Martin
is free to raise that contention on remand. See Webb v. Wilkie, 32 Vet.App. 309, 317 (2020) (noting
that, on remand, the Board must consider additional evidence and argument in assessing
entitlement to the benefit sought).
Before remanding, the Court briefly addresses two matters regarding the bilateral shoulder
claim. First, the Board determined that the veteran’s shoulder condition was not caused or
aggravated by his service-connected left wrist disability. Mr. Martin does not challenge the Board’s
denial of secondary service connection due to his left wrist condition. Therefore, that theory of
entitlement is deemed abandoned on appeal. See Harper v. Wilkie, 30 Vet.App. 356, 358 (2018)
(issues not argued on appeal are deemed abandoned).
Second, the veteran argues that, in denying direct service connection, the Board failed to
consider whether “his joints were exposed to trauma during his Vietnam service.” Appellant’s Br.
at 4. In support of his argument, he cites a medical article that generally correlates arthritis to joint
trauma. Although the Board is required to consider theories of entitlement to benefits that are either
explicitly raised by the claimant or reasonably raised by the record, it need not address a particular
theory if there is no support in the record for it. Lynch v. Wilkie, 30 Vet.App. 296, 304 (2018). For
a claim to be reasonably raised, there must be “some evidence in the record which draws an
association or suggests a relationship between” the veteran’s bilateral shoulder arthritis and
service. Garner v. Tran, __ Vet. App. , , No. 18-5865, 2021 U.S. Vet. App. Claims LEXIS
81, at *16 (Jan. 26, 2021).
The veteran bears the burden of demonstrating that the Board erred in
failing to address a theory of service connection. See Lynch, 30 Vet.App. at 306.
Here, Mr. Martin never asserted to VA that his bilateral shoulder disability was related to
joint trauma during service; he points to nothing in the record showing that he did. Indeed, he only
contends for the first time here on appeal that he experienced joint trauma during service.
Moreover, he cites no record evidence indicating that he experienced joint trauma in service. The
Board is obligated to consider reasonably raised theories of service connection, not “all possible”
theories, and a fully developed record “with no evidentiary support for a particular theory ” doesn’t
reasonably raise it. Robinson v. Shinseki, 557 F.3d 1355, 1361 (Fed. Cir. 2009). Absent an assertion
of joint trauma in the record—i.e., evidence—the Board cannot be expected to consider an article
generally correlating arthritis to joint trauma as reasonably raising a theory of service connection.
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Since the appellant has not identified any record evidence that even arguably draws an association
between his shoulder condition and his service, the Court sees no error in the Board not addressing
the medical article and affirms its denial of direct service connection. See Lynch, 30 Vet.App. at
306.
II. RIGHT WRIST
Mr. Martin filed a claim for service connection for his right wrist in March 2015, theorizing
that his service-connected left wrist disability caused him to “overcompensate” with his right wrist.
R. at 2040. VA obtained exams in September 2015 and December 2017. The 2015 examiner opined
that Mr. Martin’s right wrist strain was not related to the left wrist strain because he is right hand
dominant. R. at 1294. The 2017 examiner opined that the right wrist disability was not caused or
aggravated by the left wrist disability because the wrists are “separate anatomical structures” and
“pathology in one does not result in pathology or abnormal biomechanical forces in the other.” R.
at 883.
In its 2019 decision, the Board acknowledged that Mr. Martin challenged the adequacy of
these VA exams. It concluded, however, that the exams were reliable medical evidence to deny
the right wrist claim because they were rendered by “medical professional[s]” who thoroughly
examined the veteran and reported “findings pertinent to the claim.” R. at 9. Mr. Martin challenges
the Board’s reasons or bases for relying on the 2015 and 2017 exams, asserting that the exams are
inadequate because the examiners did not opine on his overcompensation theory.
A medical opinion is adequate if the examiner considered the veteran’s medical history and
described the disability in sufficient detail to allow the Board to understand the medical issue
before it. Sharp, 29 Vet.App. at 31. The Board must provide a statement of reasons or bases that
allows a veteran to understand the precise basis for its decision and facilitates review in this Court.
Id.
Here, it is unclear how the 2015 and 2017 exams informed the Board’s decision as to the
veteran’s theory of entitlement for his right wrist condition. The 2015 examiner reasoned that there
was no relation between the right and left wrist conditions because the veteran is right hand
dominant. And the 2017 examiner reasoned that the left and right wrists are “separate anatomical
structures,” and the “pathology in one does not result in pathology or abnormal biomechanical
forces in the other.” R. at 883. It’s not clear how either examiner’s opinion informed the Board as
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to the question of whether the veteran’s right wrist was aggravated by his left wrist disability via a
theory of overcompensation. Cf. El-Amin v. Shinseki, 26 Vet.App. 136, 140 (2013) (holding that a
medical opinion that fails to address whether a service-connected disability aggravated the claimed
disability is inadequate to inform the Board on the issue of secondary service connection).
“Drawing an inference based on the evidence is at the heart of any adjudication,” Kahana v.
Shinseki, 24 Vet.App. 428, 435 (2011), so the Board is certainly entitled to use common sense
when assessing a service-connection theory in light of medical opinions. But the Board here didn’t
explain what inference, if any, it drew from this opinion that permitted it to adjudicate the
overcompensation theory. In fact, the Court’s ability to discern how the 2015 or 2017 exam fully
informed the Board of the medical question before it is further complicated by the fact that the
Board never mentioned the veteran’s asserted theory of entitlement.
Further, the Court cannot affirm based on the Secretary’s assertion that, although “the
December 2017 VA examiner did not use the term ‘overcompensation,’ the examiner considered
this where he discussed the biomechanical forces.” Secretary’s Br. at 15. The Secretary assumes
without explaining that the term “biomechanical” generally includes the mechanics of
overcompensation or overuse. That explanation has not been made clear enough through the record
or the Board decision that the Court may find any inadequacy in the Board’s reasons or bases
harmless. The Board is free to reach that conclusion, provided that the evidence supports it and the
decision adequately explains it. But the Court reviews what the Board said, not what the Secretary
says it could have said. See Evans v. Shinseki, 25 Vet.App. 7, 16 (2011).
For these reasons, the Court remands so the Board can provide an adequate statement of
reasons or bases as to why it relied on the VA exams in deciding the right wrist claim or determine
whether an addendum opinion is warranted.
III. GERD
Mr. Martin filed a claim for service connection for GERD in March 2015. The following
month, VA obtained a medical exam in which the VA examiner opined that Mr. Martin did not
have an esophageal disability. In 2016, the veteran submitted multiple medical articles in support
of his claim. See generally R. at 1059-1112. VA obtained a second exam in December 2017, and
the examiner opined that there was no relationship between the veteran’s GERD and service or his
service-connected PTSD. The Board relied on the exams to deny the GERD claim.
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Mr. Martin argues that the Board erred in not addressing whether the medical articles that
he submitted in 2016 required interpretation by a medical professional and that the Board erred in
relying on a medical opinion that did not discuss the medical articles. Appellant’s Br. at 9. Although
these arguments are presented as reasons-or-bases challenges, they are clearly duty-to-assist
arguments, as he is asserting that the Board erred in relying on a medical opinion of record and not
obtaining a new one. The Court declines to consider these newly raised arguments in the first
instance. Instead, the circumstances lead the Court to exercise its discretion to invoke the
requirement that an appellant exhaust his administrative remedies.
The Court “has discretion as to whether it will entertain arguments raised for the first time
on appeal” and may decline to hear them if a claimant did not exhaust administrative remedies
before appeal to this Court. Massie v. Shinseki, 25 Vet.App. 123, 126 (2011). In determining
whether to consider an argument in the first instance, the Court must ask whether VA’s institutional
interests outweigh those of a claimant who had the opportunity to raise an argument during his or
her administrative appeal. Id. The Court also considers whether the veteran was represented during
the administrative appeal. Id. at 127. The reason courts must have due regard for “the importance
of issue exhaustion with respect to administrative tribunals” is that “orderly procedure and good
administration require that objections to the proceedings of an administrative agency be made
while [the agency] has opportunity for correction.” Scott v. McDonald, 789 F.3d 1375, 1377 (Fed.
Cir. 2015).
The appellant has been represented by current counsel since March 2015, which is the same
month the veteran filed the claims that are here on appeal. Counsel, therefore, had the entirety of
the nearly four-year long administrative appeal to raise these arguments about the adequacy of the
VA exams but said nothing. Remarkably, even after the Secretary filed a brief urging the Court
not to consider these arguments, the appellant’s counsel remained silent. No reply brief was filed
contesting the Secretary’s exhaustion argument. For these reasons, the Court declines to consider
these newly raised duty-to-assist arguments.
Last, there is simply no merit to the veteran’s assertion that the Board impermissibly
“provide[d] [its] own medical judgment” in assessing medical treatise evidence “without review
by an examiner.” Appellant’s Br. at 9. The Board is permitted to perform that assessment without
the guidance of a medical professional. If a claimant submits a medical treatise or text “on its own,
unaccompanied by a medical opinion that applies the medical text to the facts of a case, [it] is
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generally separately weighed by the Board and assigned an appropriate level of probative value.”
McCray v. Wilkie, 31 Vet.App. 243, 255 (2019). Although the Board may seek clarification of a
medical text if it requires such assistance, it “is perfectly capable of interpreting medical text
evidence on its own.” Id. at 257; see also Harvey v. Shulkin, 30 Vet.App. 10, 20 (2018).
IV. CONCLUSION
Accordingly, the Court VACATES those parts of the July 2, 2019, Board decision denying
service-connection claims for bilateral shoulder and right wrist conditions and REMANDS those
matters for further proceedings consistent with this opinion. The Court AFFIRMS that part of the
decision denying service connection for GERD. The balance of the appeal is DISMISSED.
DATED: April 8, 2021
Copies to:
Cameron Kroeger, Esq.
VA General Counsel (027)

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