Veteranclaims’s Blog

October 16, 2021

Single Judge Application; the ultimate “lesson of our cases is that, while a pro se claimant’s ‘claim must identify the benefit sought,’ the identification need not be explicit in the claim-stating documents, but can also be found indirectly through examination of evidence to which those documents themselves point when sympathetically read.” Shea v. Wilkie, 926 F.3d 1362, 1368–69 (Fed. Cir. 2019). Here, the claim-stating documents pointed, when sympathetically viewed, to a history of symptoms of abdominal pain that yielded a diagnosis of gastritis. And that’s not all. The veteran’s gastritis was expressly linked to service by VA’s own medical examiner—in the context of an examination sought by the Agency as part of the development of Mr. Martinelli’s other claims.; The Secretary says the veteran is out of his depth in suggesting to the Court that melatonin use indicates sleep issues. But even if that were true, the veteran retorts, the Secretary forgets the Court’s ability to take judicial notice of facts generally known. See Tagupa v. McDonald, 27 Vet.App. 95, 100-01 (2014). Indeed, one need look no further than a basic medical dictionary to conclude that his in-service prescription was favorable, material evidence. Melatonin is “a hormone . . . implicated in the regulation of sleep, mood, puberty, and ovarian cycles. It has been tried therapeutically for a number of conditions, including insomnia and jet lag.” DORLAND’S ILLUSTRATED MEDICAL DICTIONARY 1110 (33d ed. 2020). The Board has a responsibility to explain why it rejects favorable, material evidence. Garner v. Tran, 33 Vet.App. 241, 250 (2021).;

Filed under: Uncategorized — Tags: — veteranclaims @ 6:35 pm

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 19-7351
JEFFREY MARTINELLI, APPELLANT,
V.
DENIS MCDONOUGH,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before JAQUITH, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent.
JAQUITH, Judge: Veteran Jeffrey Martinelli served in the Army from 1978 to 1981 and from 1983 to 1998. In 2017, he filed claims for 29 specific conditions, including gastroesophageal reflux (GERD) and sleep apnea. Record (R.) at 2147-49. In a September 20, 2019, decision, the Board of Veterans’ Appeals (Board) denied his requests for a rating higher than 10% for his service-connected GERD and for service connection for sleep apnea. He challenges both of those determinations here and adds a third issue, contending that the Board failed altogether to discuss and adjudicate a reasonably raised claim for gastritis.1 His arguments are persuasive across the board. The Court therefore vacates those parts of the Board’s decision and remands the matters discussed here for further proceedings.
I. BACKGROUND
Mr. Martinelli underwent a VA medical examination in 2017 for, among other conditions, GERD and gastritis. The examiner diagnosed GERD and found symptoms of persistent recurrent epigastric distress, pyrosis, reflux, regurgitation, substernal pain, sleep disturbance caused by
1 The veteran appeals only these issues. Any appeal as to the several other matters decided by the Board is dismissed. See Pederson v. McDonald, 27 Vet.App. 276, 283 (2015) (en banc). As to the matters remanded by the Board, they do not fall within the Court’s jurisdiction. Breeden v. Principi, 17 Vet.App. 475, 478 (2004).
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reflux that lasts less than 1 day and recurs four or more times per year, and nausea that lasts 1 to 9 days and recurs four times or more a year. R. at 1919. The examiner noted that this condition had no functional impact on his ability to work. R. at 1920.
The examiner also diagnosed chronic gastritis, which she found consistent with a previous diagnosis in 2015. R. at 1924. She noted symptoms of pronounced abdominal pain that occurs at least monthly and nausea that lasts 1 to 9 days and recurs four times or more a year. Id.
Both conditions were related to service, in her opinion. R. at 1922. She attributed the veteran’s GERD to the medications he takes for other service-connected disabilities. Id. In other words, it was secondarily related to service. As to gastritis, she noted that the veteran’s service treatment records (STRs) showed a diagnosis of gastroenteritis and treatment on more than one occasion for stomach cramps, nausea, vomiting, and diarrhea. Id. Because those in-service symptoms were “clinically compatible with gastritis,” she concluded that his current symptoms had onset during active service and therefore were at least as likely as not related to service. Id.
VA granted service connection for GERD on a secondary basis and awarded a 10% rating. R. at 1796. It denied his claim for sleep apnea without obtaining a medical examination. R. at 1797. And it did not discuss the veteran’s gastritis. The veteran appealed to the Board.
In the decision now on appeal, the Board found that an increased rating for GERD was not warranted. R. at 29-31. The condition lacks its own diagnostic code (DC) and so is often, and specifically in Mr. Martinelli’s case, rated by analogy to hiatal hernia under 38 C.F.R. § 4.114, DC 7346 (2020). Under that DC’s criteria, a maximum 60% rating is warranted for “[s]ymptoms of pain, vomiting, material weight loss and hematemesis or melena with moderate anemia; or other symptom combinations productive of serious impairment of health.” Id. A 30% rating is warranted for “[p]ersistently recurring epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health.” Id. And a 10% evaluation, which is Mr. Martinelli’s current rating, is warranted for two or more of those symptoms with less severity. Id. The Board reasoned that a higher 30% rating required that his symptoms cause considerable impairment of health, and because the examiner noted that his symptoms did not impact his ability to work, that standard was unmet. The Board also denied service connection for sleep apnea, finding that, although the veteran had a current diagnosis for the condition, his STRs revealed no complaints of fatigue or problems sleeping. R. at 18-19. The Board, like VA, did not discuss the veteran’s gastritis.
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II. ANALYSIS
A. GERD
On appeal to this Court, the veteran presents three arguments. His first assertion is that the Board erred in its implied determination that, because his GERD did not impact his ability to work, it did not cause considerable impairment of health. The Board, he contends, did not explain why it equated the impact his condition had on his ability to work with the regulatory standard that considers only the impact on his health. And although there may be a general relationship between one’s health and one’s ability to work, the regulation’s plain terms give no indication that the ability to work is dispositive. He notes in this regard that the phrase “impairment of health” as used elsewhere in other DCs reveals the false equivalency. Appellant’s Brief (Br.) at 10. For example, he points to the rating criteria for duodenal ulcers, which refer to “impairment of health manifested by anemia or weight loss.” 38 C.F.R. § 4.114, DC 7305 (emphasis added). Similarly, ratings for the resection of the small intestine refer to “impairment of health objectively supported by examination findings including material weight loss.” 38 C.F.R. § 4.114, DC 7328 (emphasis added). He provides other examples, but his point is that impairment of health can be supported by medical findings, untethered from the veteran’s ability to work. So, to the extent the Board concluded that his ability to work was dispositive, it erred by failing to explain how it arrived at this standard, and its statement of reasons and bases is inadequate.
The Secretary responds that there was a plausible basis in the record for finding that the veteran did not suffer considerable impairment of health given the medical evidence of record and specifically, the examiner’s opinion. But he misses the point. “This Court has made clear that the Board cannot base its rating decisions on undisclosed standards.” Tedesco v. Wilkie, 31 Vet.App. 360, 366 (2019). It invites inconsistency of application. See Cantrell v. Shulkin, 28 Vet.App. 382, 390 (2017). And it does not comport with the Board’s duty to “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.'” Bria v. Wilkie, 33 Vet.App. 228, 237 (2021) (quoting Allday v. Brown, 7 Vet.App. 517, 527 (1995)).
The Board’s decision in this instance bears out these concerns. The Board apparently understood the phrase “considerable impairment of health” to mean totally unable to work. The regulation, however, does not speak in terms of ability to work but rather the degree to which the veteran’s health is impaired. See generally 38 C.F.R. § 4.114, DC 7346. And there’s no indication
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as to how the Board arrived as this standard, which apparently renders a veteran’s ability to work dispositive in the scenario here. In other words, there remains no explanation for why Mr. Martinelli’s ability to work was inconsistent with, or otherwise precluded, a finding that his condition caused considerable impairment of health. “In different contexts the Court has held that such a conclusion without reasoning is unacceptable and does not allow for meaningful judicial review.” Skaar v. Wilkie, 33 Vet.App. 127, 141 (2020), appeal docketed sub nom. Skaar v. McDonough, No. 21-1812 (Fed. Cir. Apr. 1, 2021). And so it is here. Remand is necessary for the Board to explain the precise basis for its decision and specifically how it applied DC 7346 to Mr. Martinelli’s case.
B. Gastritis
The veteran’s next assertion is that the Board erred by failing to recognize and adjudicate a reasonably raised claim for gastritis. As mentioned above, Mr. Martinelli filed claims for a long list of conditions, including as relevant here, GERD and irritable bowel syndrome (IBS).2 R. at 2147-49. He attached to that claim a key—a list of documents from 1980 through May 1998— directing the Board to medical evidence submitted. Id. He argues that the records he submitted in support of these claims noted complaints of abdominal pain. R. at 2096. And VA’s development of the claim established that this pain was, in fact, a manifestation of gastritis, a condition diagnosed and attributed to service by a VA medical examiner. See R. at 1921.
The Secretary responds that, because Mr. Martinelli was diagnosed with gastritis in 2015, prior to when he submitted his claim, and because he filed claims specifically for GERD and IBS but not gastritis, the Board had no obligation to sympathetically interpret his claim as encompassing one for that condition.
This response is at odds with decades of caselaw. A claim for VA disability benefits generally requires an intent to seek benefits expressed in writing that identifies the particular benefits sought. DeLisio v. Shinseki, 25 Vet.App. 45, 53 (2011). Whether a veteran’s submission meets this standard is governed by VA’s well-established duty to sympathetically interpret a claim. Robinson v. Shinseki, 557 F.3d 1355, 1359–60 (Fed. Cir. 2009). In fact, “developing a claim ‘to its optimum’ . . . requires the VA to ‘determine all potential claims raised by the evidence,’ regardless of the specific labels those claims are given in the veteran’s pleadings.” Szemraj v. Principi, 357
2 The Board’s decision as to this issue is not contested by the veteran.
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F.3d 1370, 1373 (Fed. Cir. 2004) (quoting Cook v. Principi, 318 F.3d 1334, 1347 (Fed. Cir. 2002) (en banc). The scales are tipped in favor of the veteran for the simple reason that veterans are not (in most cases) medical experts and cannot be expected to provide a precise medical diagnosis or cause of their condition when filing a claim for benefits. Clemons v. Shinseki, 23 Vet.App. 1, 5 (2009). A veteran often does his or her share in establishing a claim simply “‘by referring to a body part or system that is disabled or by describing symptoms of the disability.'” DeLisio, 25 Vet.App. at 53 (quoting Brokowski v. Shinseki, 23 Vet.App. 79, 86 (2009). It’s true that the mandate does not go so far as to obligate VA to anticipate claims for disabilities yet to be “identified in the record by medical professionals or by competent lay evidence at the time a claimant files a claim or during its development.” Brokowski, 23 Vet.App. at 88. But the ultimate “lesson of our cases is that, while a pro se claimant’s ‘claim must identify the benefit sought,’ the identification need not be explicit in the claim-stating documents, but can also be found indirectly through examination of evidence to which those documents themselves point when sympathetically read.” Shea v. Wilkie, 926 F.3d 1362, 1368–69 (Fed. Cir. 2019). Here, the claim-stating documents pointed, when sympathetically viewed, to a history of symptoms of abdominal pain that yielded a diagnosis of gastritis. And that’s not all. The veteran’s gastritis was expressly linked to service by VA’s own medical examiner—in the context of an examination sought by the Agency as part of the development of Mr. Martinelli’s other claims. The Secretary’s belief that the Board had a warrant to ignore this, solely because the veteran’s claim submission didn’t identify the precise condition, flies in the face of well-established caselaw, captured most clearly in the Federal Circuit’s recent decision in Shea: “In deciding what disabilities, conditions, symptoms, or the like the claim-stating documents are sympathetically understood to be identifying, VA must look beyond the four corners of those documents when the documents themselves point elsewhere.” Id. (emphasis added). The Board erred by failing to acknowledge a reasonably raised claim for gastritis. C. Sleep Apnea Mr. Martinelli’s final contention is that the Board overlooked an in-service prescription for melatonin, documented in the records that he submitted in support of his claim for sleep apnea. He contends that his prescribed use of a medication commonly used to treat sleep-related issues
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contradicts the Board’s determination that there was no evidence of issues with fatigue or sleep during service. The Secretary says the veteran is out of his depth in suggesting to the Court that melatonin use indicates sleep issues. But even if that were true, the veteran retorts, the Secretary forgets the Court’s ability to take judicial notice of facts generally known. See Tagupa v. McDonald, 27 Vet.App. 95, 100-01 (2014). Indeed, one need look no further than a basic medical dictionary to conclude that his in-service prescription was favorable, material evidence. Melatonin is “a hormone . . . implicated in the regulation of sleep, mood, puberty, and ovarian cycles. It has been tried therapeutically for a number of conditions, including insomnia and jet lag.” DORLAND’S ILLUSTRATED MEDICAL DICTIONARY 1110 (33d ed. 2020). The Board has a responsibility to explain why it rejects favorable, material evidence. Garner v. Tran, 33 Vet.App. 241, 250 (2021). Because the Board did not discuss this evidence, its statement of reasons and bases is inadequate, and the veteran’s claim for sleep apnea must be remanded for further consideration.
III. CONCLUSION
Accordingly, those parts of the September 20, 2019, Board decision denying service connection for sleep apnea and a rating higher than 10% for GERD are VACATED and the matters REMANDED for further consideration consistent with this opinion. The reasonably raised service connection claim for gastritis is also REMANDED.
DATED: June 30, 2021
Copies to:
Jennifer A. Zajac, Esq.
VA General Counsel (027)

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