Veteranclaims’s Blog

August 27, 2021

Single Judge Application; Murphy v. Wilkie, 983 F.3d 1313, 1318 (Fed. Cir. 2020) (citing Boggs v. Peake, 520 F.3d 1330, 1336 (Fed.Cir. 2008)); see Ephraim v. Brown, 82 F.3d 399, 401-02 (Fed. Cir. 1996); In Murphy v. Wilkie, the Federal Circuit endorsed Clemons’s lenity rule and its teaching that a sympathetic reading of the scope of a veteran’s claim “is best accomplished by looking to the veteran’s reasonable expectations in filing the claim and the evidence developed in processing that claim.”;

Filed under: Uncategorized — veteranclaims @ 6:14 pm

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 20-1538
CHARLES J. LOWERY, JR., APPELLANT,
V.
DENIS MCDONOUGH,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before LAURER, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
LAURER, Judge: United States Army veteran Charles J. Lowery, Jr., appeals, through
counsel, a January 23, 2020, Board of Veterans’ Appeals (Board) decision denying service
connection for a deviated septum.1 Appellant argues that the Board provided inadequate reasons
or bases for its decision and erred by not broadening the scope of his initial service connection
claim.2 He contends that this is problematic because, under Clemons v. Shinseki, the Board must
broadly read his initial service connection claim by looking at his reasonable expectations in filing
the claim and the evidence developed in processing that claim.3 The Court agrees that the Board
did not adequately explain why it declined to expand appellant’s initial service connection claim
for a deviated septum to include his later diagnosed allergic rhinitis and left retention cyst in
1 Record (R.) at 3-12. The Board remanded the issue of a compensable rating for tinea versicolor. The Court
lacks jurisdiction to review this matter. See Howard v. Gober, 220 F.3d 1341, 1344 (Fed. Cir. 2000); Breeden v.
Principi, 17 Vet.App. 475, 478 (2004) (per curiam order). Appellant does not allege that he has a right to service
connection for asthma, bronchitis, or chronic obstructive pulmonary disease (COPD). Because appellant does not
challenge the Board’s determinations on these issues, the Court dismisses the appeal on those matters. See Pederson
v. McDonald, 27 Vet.App. 276, 281-85 (2015) (en banc) (finding that the Court may decline to review an issue
appellant has abandoned on appeal).
2 Appella nt’s Brief (Br.) a t 4-6.
3 Appella nt’s Br. a t 5-6; Clemons v. Shinseki, 23 Vet.App. 1, 6 (2009).
2
maxillary sinus (left sinus cyst) conditions.4 Thus, the Court will set aside and remand that part of
the Board decision that denied service connection for a deviated septum.
I. ANALYSIS
When adjudicating a claimant’s filings, VA must “‘determine all potential claims raised by
the evidence” and “apply[] all relevant laws and regulations.’”5 This includes “investigat[ing] the
reasonably apparent and potential causes of the veteran’s condition and theories of service
connection.”6 And potential claims or theories must be “reasonably raised by the record or raised
by a sympathetic reading of the claimant’s filing.”7
For service connection claims, “when a veteran has two diagnoses with separate factual
bases, these diagnoses should be treated as two separate claims.” 8 But VA should broaden the
scope of a service connection claim beyond a veteran’s lay description of a disability to include
any disability “that may reasonably be encompassed by several factors .”9 These factors include
“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.”10 “[T]he claimant’s
intent in filing a claim is paramount to construing its breadth.” 11
When looking to a veteran’s filing intent, “VA shall afford lenity to a veteran’s filings that
fail to enumerate precisely the disabilities included within the bounds of a claim.”12 In Murphy v. Wilkie, the Federal Circuit endorsed Clemons’s lenity rule and its teaching that a sympathetic reading of the scope of a veteran’s claim “is best accomplished by looking to the veteran’s reasonable expectations in filing the claim and the evidence developed in processing that claim.” 13
4 Appella nt’s Br. at 5-6; R. at 1323.
5 Szemraj v. Principi, 357 F.3d 1370, 1373 (Fed. Cir. 2004) (alteration in original) (quoting Roberson v.
Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001)).
6 DeLisio v. Shinseki, 25 Vet.App. 45, 53 (2011).
7 Id.
8 Murphy v. Wilkie, 983 F.3d 1313, 1318 (Fed. Cir. 2020) (citing Boggs v. Peake, 520 F.3d 1330, 1336 (Fed.
Cir. 2008)); see Ephraim v. Brown, 82 F.3d 399, 401-02 (Fed. Cir. 1996).
9 Clemons, 23 Vet.App. at 5.
10 Id.
11 Id.
12 Murphy, 983 F.3d at 1318 (citing Clemons, 23 Vet.App.at 8).
13 Id.
3
And Clemons explained that “the fact that the [claimant] may be wrong about the nature of his [or
her] condition does not relieve the Secretary of his duty to properly adjudicate the claim.” 14
The Court reviews for clear error the Board’s factual finding on the scope of a claim.15 And,
as with all legal conclusions, the Board must support its factual determinations with adequate
reasons or bases that enable appellant to understand the precise basis for its decision and facilitate
this Court’s review.16 Failure to do so compels remand.17
A. Background
The January 2020 Board decision addresses several claims stemming from appellant’s third
attempt to obtain service connection for respiratory disabilities. 18 Before the current service
connection claims, the VA regional office (RO) denied service connection for “chronic rhinitis”
and “respiratory problems” in an April 2008 rating decision.19 And, in a July 2011 rating decision,
the RO denied service connection for a “sinus condition ” from environmental hazard conditions.20
Appellant challenged neither decision, and both decisions are now final.
In March 2016, appellant again sought service connection for newly diagnosed respiratory
conditions.21 As conditions for which he sought service connection, he identified COPD, bronchial
asthma, and a deviated septum.22 In a February 2019 decision, the Board found that appellant’s
claims for asthma, bronchitis, and COPD were “not new claims” because the April 2008 rating
decision denying “respiratory problems” “encompass[ed] any respiratory disorder.” 23 Thus, the
Board characterized appellant’s COPD, bronchitis, and asthma claims as petitions to reopen.24 The
14 Clemons, 23 Vet.App. at 6.
15 Criswell v. Nicholson, 20 Vet.App. 501, 504 (2006).
16 Allday v. Brown, 7 Vet.App. 517, 527 (1995).
17 Tucker v. West, 11 Vet.App. 369, 374 (1998).
18 R. at 2480-81 (September 2007 claim for “chronic rhinitis” and “respiratory problems”); R. a t 2039 (April
2011 claim for “sinus condition” due to environmental hazard conditions); R. at 1323, 1327 (March 2016 claim for
COPD, bronchial asthma, and a deviated septum).
19 R. at 2254-55.
20 R. at 2015-17.
21 R. at 1323-27.
22 R. 1323, 1327.
23 R. at 332.
24 Id.
4
Board then determined that appellant submitted new and material evidence, reopened those service
connection claims, and remanded them for VA to obtain an exam.25
But the February 2019 Board separately addressed appellant’s claim for service connection
for a deviated septum.26 The Board did not find this claim as “encompassed” by a previously
denied one.27 Nor did the Board characterize the claim as a request to reopen.28 Instead, the Board
remanded appellant’s deviated septum claim for an exam.29
On remand, VA obtained a compensation and pension (C&P) exam from a VA-contracted
examiner who used two disability benefits questionnaires (DBQs) to evaluate the remanded
COPD, asthma, bronchitis, and deviated septum conditions.30 In the “Sinusitis/Rhinitis and Other
Conditions of the Nose, Throat, Larynx, and Pharynx” DBQ, the examiner diagnosed allergic
rhinitis, a left retention cyst in maxillary sinus, and a nontraumatic deviated septum; and he
concluded that allergic rhinitis and the sinus cyst were at least as likely as not related to service.31
In the “Respiratory Conditions (Other Than Tuberculosis and Sleep Apnea)” DBQ, the same C&P
examiner considered whether appellant suffered from asthma, chronic bronchitis, or COPD.32 But
he did not diagnose appellant with a respiratory condition.33
B. Scope of Deviated Septum Claim
In its January 2020 decision, the Board addressed appellant’s initial claim for service
connection for a deviated septum.34 The Board found that appellant neither incurred an in-service
nose injury nor was his diagnosed nontraumatic deviated septum related to service in Southwest
Asia.35 Thus, the Board denied service connection for a deviated septum. The Board also “declined
25 R. at 333, 347-48
26 R. at 331.
27 R. at 332.
28 R. at 330-31.
29 R. at 347-48.
30 R. at 158-68; 198-209.
31 R. at 159, 167-68.
32 R. at 198-209.
33 R. at 199.
34 R. at 7-9.
35 R. at 7.
5
to broaden the claim” to include service connection for allergic rhinitis and the left sinus cyst.36
The Board reasoned that “in light of the various prior claims and decisions for service connection
specific sinus and nose conditions,” those conditions were not before it.37 Yet there are several
problems with the Board’s finding that allergic rhinitis and left sinus cyst conditions were not
before it. First, the Board mischaracterized the prior claims as specific to a “nose condition[].”38
By the Court’s count, the VA had denied appellant’s claims for chronic rhinitis, respiratory
problems, and a sinus condition.39 If one of those claims is specific to a nose condition, the Court
cannot intuit how.
The Court is also concerned that the Board failed to consider the prior Board decision on
appellant’s service connection claims in relation to those already denied. The February 2019 Board
decision is relevant here since it found that appellant’s then-current claims for COPD, bronchitis,
and asthma were part of adjudicated claims, and thus the Board adjudicated each as a request to
reopen.40 Yet the February 2019 Board treated appellant’s claim for a deviated septum differently.
The Board instead addressed it as an initial service connection claim.
And, keeping in mind that the February 2019 Board viewed appellant’s deviated septum
claim as separate from his previous denied claims for chronic rhinitis, respiratory problems, and a
sinus condition, it remains unclear to the Court why the Board did not afford lenity to his initial
service connection claim by recognizing the newly diagnosed left sinus condition and allergic
rhinitis as service-connected conditions.41 The Board should have addressed service connection
for symptoms related to a deviated symptom. After all, appellant “did not file a claim to receive
benefits only for a particular diagnosis, but for the affliction his . . . condition . . . causes him”—
here, his described sinus aggravation and nasal congestion symptoms.42
What’s more, the Board did not address whether VA obtained the July 2019
Sinusitis/Rhinitis and Other Conditions of the Nose, Throat, Larynx, and Pharynx DBQ to support
36 R. at 9.
37 Id.
38 Id.
39 R. at 2015-17, 2254-55.
40 R. at 333.
41 See Clemons, 23 Vet.App. at 6.
42 Id. at 5.
6
appellant’s deviated septum claim.43 It took appellant three service connection claims, a Board
remand, and almost 12 years for VA to provide an exam for his symptoms. Yet the Board held
appellant’s feet to the fire to name a specific diagnosis for his nasal congestion and aggravated
sinus symptoms. 44 This is particularly troubling given medical evidence that appellant was
misdiagnosed with sinusitis and only later “correctly diagnosed” with a deviated septum. 45 If
medical professionals cannot accurately describe a claimant’s condition, it defies logic for VA to
require a higher standard from a layperson. And Clemons has long prevented VA from doing so.
To be sure, the rubber band nature of expanding and contracting the scope of service
connection claims can be tricky.46 Which is all the more reason why the Board should explain why
it declined to broaden the scope of appellant’s initial service connection claim.47 Thus, the Court
finds that the Board failed to adequately consider both appellant’s expectations when he sought
service connection for a deviated septum and the evidence developed in processing that claim.
Because the Board did not adequately explain why it declined to broaden the scope of
appellant’s initial service connection claim for a deviated septum, the Court remands for
readjudication. Given this disposition, the Court need not address appellant’s remaining
argument.48 On remand, appellant may submit more evidence and argument; he has 90 days to do
so from the date of VA’s postremand notice.49
43 See id.; R. at 158-68.
44 R. at 167.
45 R. at 1329.
46 See Boggs v. Peake, 520 F.3d 1330, 1336 (Fed. Cir. 2008) (holding that a diagnosis with a separate factual
basis is a separate claim and therefore not a request to reopen); see also Murphy, 983 F.3d at 1318 (holding that a
request to reopen a service connection claim for PTSD did not include a request to reopen a service connection claim
for schizophrenia); Grimes v McDonough, _ Vet.App. _, No. 18-1017, 2021 WL 1653050 (Apr. 28, 2021) (holding
tha t a sympathetic reading of a n initia l service connection cla im for “ear a ches” included appella nt’s la ter dia gnosed
hyperacusis).
47 Allday, 7 Vet.App. at 527.
48 See Best v. Principi, 15 Vet.App. 18, 20 (2001) (per curiam order) (“A na rrow decision preserves for the
appellant an opportunity to argue those claimed errors before the Board at the readjudication . . . .”).
49 Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999) (per curiam order).
7
II. CONCLUSION
For these reasons, the Court SETS ASIDE that part of the Board’s January 23, 2020,
decision that denied service connection for a deviated septum and REMANDS for readjudication.
The Court DISMISSES the rest of the Board decision on appeal.
DATED: July 20, 2021
Copies to:
Nicholas L. Phinney, Esq.
VA General Counsel (027)

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