Veteranclaims’s Blog

November 8, 2021

Single Judge Application; Mattox v. McDonough; This Court reviews “the Board’s findings regarding service connection for clear error.” Mattox v. McDonough, 34 Vet.App. 61, 72 (2021); Clear error exists when there is no plausible basis for the Board’s decision and the Court is left with a definite conviction that a mistake has been made. Id.;

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 20-3510
JOSEPH F. PORZIO, 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: Representing himself, Navy veteran Joseph F. Porzio appeals a February 13, 2020, Board of Veterans’ Appeals (Board) decision that denied a higher initial rating for a left knee condition and service connection for a right hand condition, a right foot condition, and a respiratory disorder. The Secretary concedes error as to the appropriate left knee rating. And over the Secretary’s objections, the veteran persuades the Court that the Board also erred as to the remaining issues. These matters are remanded for further consideration.1
I. RIGHT HAND
A. Background
In 2011, Mr. Porzio filed a claim for residuals of a right hand injury, specifically, mercury poisoning that occurred during service. R. at 860; see R. at 617 (interpreting his claim as one for residuals of a “burn”). During a hearing before the Board, the veteran explained that “he was working with a gyro compass when one of the ballistics holding mercury blew up in his hand.” R.
1 The Board granted service connection for tinnitus. And, as will be discussed further below, the Board also decided to reopen a previously denied claim for service connection for a respiratory disorder. These are favorable findings that the Court may not disturb. See Medrano v. Nicholson, 21 Vet.App. 165, 170 (2007), aff’d in part, dismissed in part sub nom. Medrano v. Shinseki, 332 F. App’x 625 (Fed. Cir. 2009).
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at 17, 51. He also indicated that he presently experiences numbness and tingling in that hand and cannot hold a knife—which, for a butcher, can be a problem. R. at 36, 54.
During the hearing, the Board said that VA conceded that there was evidence of a contusion during service, but when it “asked [the veteran] for substantiation of the residual burn to [his] right hand,” it “didn’t get a response.” R. at 56. The Board indicated that it remained unclear whether this alleged mercury-related incident occurred and left the veteran with a current disability. Id. The Board mentioned that, as a butcher, he likely used his hands a lot, which could cause injury due to overuse, so he needed to gather evidence to “connect what [he has] now to an injury that [he had] back in service.” Id. The Board went on to say during the hearing that
Mercury is very, very toxic. And so, you know, if you actually had contact with Mercury — I don’t know what the — what the consequences [are] but I know that it’s like the most — one of the most toxic substances on earth. So — and a little bit can kill you. So, you know, I’m not sure what’s happening there. You’ve got to — whatever happened, whether it was contusion or a chemical burn you got to get me medical evidence that connects what you have now whatever it is this numbness, it’s neuropathy, is it damage to the nerves, is it damage to your bones? I don’t know what it is. You got to identify what it is and how it’s connected to that injury in service. And we’re going to leave the record open and hopefully [your representative] can help you obtain that kind of evidence.
R. at 56.
In its decision, the Board treated his claim as one for “neurological impairment of the right hand.” R. at 17. The Board noted that the veteran’s records showed treatment during service for a laceration on his right palm and later a contusion on the same hand. R. at 761, 764. Records also showed no related issues upon separation from service, and there were no documented complaints, according to the Board, until 2013, when the veteran’s wife submitted a letter, stating that his right hand swells so bad he cannot make a fist. The same year, x-rays revealed mild degenerative changes, an old fracture deformity, and “scattered minute calcifications next to the joint spaces,” indicating possible “chronic ligamentous injury.” R. at 17-18; see R. at 579.
The Board denied the veteran’s claim because there was no evidence that he was exposed to mercury during service and, although the evidence showed “numerous orthopedic abnormalities in the veteran’s right hand, there [was] no objective medical evidence . . . to establish the existence of a neurological impairment.” R. at 18; see R. at 579 (x-ray report indicating, among other things, possible “chronic ligamentous injury”). “Moreover, because there [was] no indication that the [v]eteran’s current complaints could be related to an in-service injury, event, or disease, to include
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mercury exposure, the Board conclude[d] that a VA examination or opinion [was] not warranted . . . .” R. at 19 (citing McLendon v. Nicholson, 20 Vet.App. 79, 83 (2006)).
B. Analysis
Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability, (2) an in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the claimed in-service disease or injury and the present disability. Simmons v. Wilkie, 964 F.3d 1381, 1383 (Fed. Cir. 2020); 38 C.F.R. § 3.303 (2021). This Court reviews “the Board’s findings regarding service connection for clear error.” Mattox v. McDonough, 34 Vet.App. 61, 72 (2021). Clear error exists when there is no plausible basis for the Board’s decision and the Court is left with a definite conviction that a mistake has been made. Id.
In his informal brief, the veteran argues that his right hand injury involving mercury exposure was documented in his service treatment records, that he did not cut his hand with a knife, and that his hand has continued to experience numbness since the in-service incident. Appellant’s Informal Brief at 3.
As the Secretary concedes, the record shows that the veteran was exposed to mercury, and the Board erred in concluding otherwise. See R. at 780. The Secretary contends, however, that the veteran hasn’t shown clear error in the Board’s finding that he does not have a current neurological condition. And because the absence of a current disability is a sufficient finding, standing alone, to deny service connection, he considers the Board’s error harmless.
The Secretary’s point is not without force in the sense that a veteran’s failure to establish a particular element of service connection necessarily defeats a claim for benefits. But his position is undermined by the fact that the Board stacked the deck against the veteran when it narrowed the scope of the claim to a neurological impairment without identifying any basis for doing so.
It is a “well-established principle that the VA is required ‘to fully and sympathetically develop the veteran’s claim to its optimum before deciding it on the merits.” Murphy v. Wilkie, 983 F.3d 1313, 1319 (Fed. Cir. 2020) (quoting Hodge v. West, 155 F.3d 1356, 1362 (Fed. Cir. 1998)). This mandate has been understood “to mean that ‘the VA must determine all potential claims raised by the evidence, applying all relevant laws and regulations, regardless of [the claim’s label].'” Id. (quoting Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2021) (alterations in original)); see also Shea v. Wilkie, 926 F.3d 1362, 1368 (Fed. Cir. 2019) (“The lesson of our cases is that, while a pro se claimant’s ‘claim must identify the benefit sought,’ the identification need not be explicit
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in the claim-stating documents, but can also be found indirectly through examination of evidence to which those documents themselves point when sympathetically read.”). And for these reasons, this Court has determined that a claim for benefits includes all conditions that may be “reasonably encompassed by the claimant’s description of the claim, the symptoms the claimant describes, and the information the claimant submits or the Secretary obtains in support of the claim.” Clemons v. Shinseki, 23 Vet.App. 1, 5 (2009).
The Board did not adhere to this guidance when it confined its inquiry to whether the veteran suffered from a neurological impairment. Throughout the course of proceedings below, the veteran’s claim was characterized as one for residuals of a right hand injury, including a possible chemical burn. See R. at 617, 537. The Board, too, treated the claim initially as a “right hand injury to include as due to a chemical burn.” R. at 32. And during the hearing, the Board unequivocally admitted that it didn’t know what it was that was causing the veteran’s right hand symptoms. See R. at 56. (“I don’t know what it is;” “You got to identify what it is;” “whatever it is[,] this numbness, [is it] neuropathy, is it damage to the nerves, is it damage to your bones?”).
The precise boundaries of a claim can, of course, take shape as the evidence—particularly the medical evidence—develops in a case. See Murphy, 983 F.3d at 1318 (“Boggs teaches that when a veteran has two diagnoses with separate factual bases, these diagnoses should be treated as two separate claims . . . .” (citing Boggs v. Peake, 520 F.3d 1330 (Fed. Cir. 2008))). But if that assessment involves medical judgment, as it did here, the Board must rely on independent, competent medical evidence. Arline v. McDonough, 34 Vet.App. 238, 251 (2021) (“[B]ecause answering . . . complex medical questions generally requires specific training and Board members are not medical professionals with that requisite training, it follows that medical determinations are outside their competence.” (citing Kahana v. Shinseki, 24 Vet.App. 428, 434 (2011))). So far as the Court can tell, nothing changed between the time the Board held its hearing and the time it issued its the decision. That is, there was no competent, independent medical evidence cited by the Board for its decision to classify the veteran’s claim in a more restrictive manner, and there was no reason given for why the Board—in its own judgment—understood the veteran’s alleged disability to be neurological in nature. In fact, there was medical evidence of record that showed “numerous orthopedic abnormalities.” R. at 18 (emphasis added); see R. at 579.
The Court cannot say this error was harmless, either. The Board found that there wasn’t enough evidence to warrant a medical opinion from a VA examiner. On remand, that assessment
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might change with a broader approach to veteran’s claim and a review of the evidence of exposure to mercury, which was previously overlooked. Because various factual findings remain “open to debate in the first instance,” remand is appropriate. Tadlock v. McDonough, 5 F.4th 1327, 1335 (Fed. Cir. 2021) (holding that this “Court may affirm on a ground not considered by the Board and the VA if it is clear that the factual basis for such conclusion is not open to debate and the Board on remand could not have reached any other determination on that issue” (citing Mayfield v. Nicholson, 444 F.3d 1328, 1336 (Fed. Cir. 2006))).
II. RIGHT FOOT Mr. Porzio also claimed service connection for a right foot condition, secondary2 to his service-connected bilateral knee disability. He testified before the Board that his foot condition manifested around the same time that his knee disability set in, and it causes him to limp and drag his foot. The Board noted that, aside from certain foot issues during service that resolved, the veteran had no foot-related complaints until 2013, when he was diagnosed with flat feet and given custom orthotics. See R. at 579. The Board also found that none of the veteran’s treating physicians had drawn a connection between his foot condition and his knee issues. And to the extent the veteran drew a correlation between the conditions, he wasn’t competent, according to the Board, to opine on such matters. Because there was no competent evidence linking his foot condition to his knee condition, the Board denied service connection. The veteran contends that the Board erred because his private physician has told him that his foot condition is related to his bilateral knee disability. The Secretary responds that the veteran’s argument isn’t supported by the record. That’s the problem, though. It’s unclear whether the Board based its decision on a complete record. The Board has a duty to assist veterans in developing their claim. 38 U.S.C. § 5103A. This includes a duty to make “reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claimant’s claim.” 38 U.S.C. § 5103A(a)(1); see 38 C.F.R. § 3.159(c) (2021). And where “VA is on notice that records supporting an appellant’s claim may exist, . . . VA has a duty
2 See Healey v. McDonough, 33 Vet.App. 312, 322 (2021) (“Secondary service connection is appropriate when a service-connected condition either causes disability or aggravates a preexisting disability.” (citing 38 C.F.R. § 3.310(a) (2020))).
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to assist the appellant to locate and obtain these records.” Wise v. Shinseki, 26 Vet.App. 517, 529 (2014) (quoting Solomon v. Brown, 6 Vet.App. 396, 401 (1994)); see also McKinney v. McDonald, 28 Vet.App. 15, 35 (2016). In every case, the Board has a general obligation to support its determination “with an adequate statement of reasons or bases that enables the claimant to understand the precise basis for that determination and facilitates review in this Court.” Smiddy v. Wilkie, 32 Vet.App. 350, 356 (2020). Although it’s unclear whether the veteran told the Board that his doctor related his current foot condition to his knee disability or whether he’s now raising this fact for the first time before the Court, the veteran testified at the very least in November 2019 that he was receiving treatment for his foot. See R. at 48. So the Agency was on notice that treatment records likely existed. The only treatment records discussed or mentioned by the Board were from 2013, 6 years earlier. The Board stated generally that none of the veteran’s treating physicians had attributed his foot condition to his knees. But he has been treated for several conditions, and there’s no way of knowing from such a generic statement whether this finding was based on all the available records or whether the Board failed to meet its duty to assist in gathering records of foot-related treatment subsequent to 2013. The Board’s reasons and bases are therefore inadequate for review.
III. RESPIRATORY DISORDER
The same problem undermines the Board’s decision as to the veteran’s claim for service connection for a respiratory disorder, secondary to asbestos exposure. This claim was initially denied and became final in 1982. R. at 11. In the decision now on appeal, the Board reopened the matter because the veteran indicated that he had recently been diagnosed with chronic obstructive pulmonary disease (COPD). See 38 C.F.R. § 3.156(a) (2021). On the merits, however, the Board found no in-service respiratory conditions, despite various medical examinations and x-rays specifically oriented to that question because of his exposure to asbestos. See, e.g., R. at 755 (determining that the veteran was likely exposed to asbestos and placing him “in the Navy Asbestos Medical Surveillance Program”). Nor was there any record of the veteran being diagnosed with a respiratory condition since. Per the Board, a 2012 examination revealed no issues, nor did testing in July 2019.
The Board acknowledged that, in November 2019, the veteran testified that he had recently been diagnosed with COPD. But it didn’t matter to the Board because the veteran failed to submit
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corroborating evidence or associated records within 30 days of his hearing. Because the Board again ignored its duty to help the veteran obtain evidence necessary to substantiate his claim—in this instance, private medical records—its statement of reasons and bases is inadequate. See Wise, 26 Vet.App. at 529; Smiddy, 32 Vet.App. at 356.
IV. LEFT KNEE RATING
In 2013, VA awarded service connection for Mr. Porzio’s left knee, secondary to his service-connected right knee disability. R. at 622-23. A 10% rating was assigned based on degenerative arthritis and limitation of motion. Id.; R. at 22; see 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5003-5260 (2021). He appealed that decision to the Board, which found that the veteran did not experience limitation of motion to a compensable degree at any point. And because the rating code for degenerative arthritis, DC 5003, directs that a minimum compensable rating of 10% is warranted where “the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes,” 38 C.F.R. § 4.71a, DC 5003, the Board declined to increase the veteran’s rating.
The veteran does not appear to contest this aspect of the Board’s decision. Rather, he argues that the Board failed to account for the instability caused by his knee. See 38 C.F.R. § 4.71a, DC 5257. Although the Board recognized that separate ratings may be assigned for limitation of flexion, extension, instability, and a meniscal disability of the same knee, see Lyles v. Shulkin, 29 Vet.App. 107, 115 (2017), it rejected the veteran’s assertions of instability because “a 2018 VA examination report affirmatively denies instability” and other “treatment records from July 2019 suggest that [his] complaints are linked to arthritis-related pain rather than instability,” R. at 27.
The Secretary concedes that the Board’s reasons and bases are deficient because it appears to have required objective medical evidence of instability. Indeed, “nothing in DC 5257 provides that objective medical evidence is required or is to be favored over lay evidence.” English v. Wilkie, 30 Vet.App. 347, 352 (2018). As in English, “the Board didn’t explain on what basis it may have implicitly concluded that, on the question of lateral instability, medical evidence is categorically more probative than lay evidence or that lay evidence is not competent at all.” Id.
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V. CONCLUSION
Accordingly, those parts of the February 13, 2020, Board decision denying an initial disability rating higher than 10% and a separate rating for a left knee condition, and denying service connection for a right hand condition, a right foot condition, and a respiratory disorder are VACATED, and the matters are REMANDED for further consideration consistent with this decision.
DATED: October 29, 2021
Copies to:
Joseph F. Porzio
VA General Counsel (027)

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