Veteranclaims’s Blog

November 14, 2021

Single Judge Application; records reasonably related; it is a VA-generated record, pertains to the appellant, and concerns the medical condition at issue and, thus, is relevant and could reasonably be expected to have been a part of the record before the Board. See Euzebio v. McDonough, 989 F.3d 1305, 1321 (Fed. Cir. 2021) (holding that “the correct standard for constructive possession . . . is relevance and reasonableness”); Bell v. Derwinski, 2 Vet.App. 611, 613 (1992) (per curiam order) (finding evidence to be constructively before the Secretary and the Board where it was “within the Secretary’s control” and “could reasonably be expected to be a part of the record”); see also Lang v. Wilkie, 971 F.3d 1348, 1355 (Fed. Cir. 2020) (“A veteran’s own medical records, generated by the VA itself, are always reasonably related to a veteran’s claim.”);

Filed under: Uncategorized — Tags: — veteranclaims @ 1:10 pm

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 18-1878
CURTIS O. BAILEY, APPELLANT,
V.
DENIS MCDONOUGH,
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, Curtis O. Bailey, through counsel appeals a
February 16, 2018, Board of Veterans’ Appeals (Board) decision denying entitlement to an
effective date prior to August 31, 2010, for the award of disability compensation for coronary
artery disease (CAD). Record (R.) at 1-12. 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 1968 to July 1971,
including service in Vietnam. R. at 3943, 3945. A February 1982 VA medical record reflects a
recent diagnosis of CAD. R. at 3969. Following a claim filed in August 1989 regarding malaria,
hepatitis residuals, high blood pressure, defective vision and hearing, a chest growth, and posttraumatic
stress disorder (PTSD), a VA regional office (RO) issued a rating decision in January
1990, adjudicating those matters. R. at 3303-05. The appellant’s private medical records reflect
2
that he underwent a left heart catherization in March 2003, which revealed “[i]nsignificant CAD.”
R. at 3031; see R. at 3015.
In June 2011, the appellant filed a claim for disability compensation for ischemic heart
disease. R. at 3295-302. The RO, in July 2012, awarded compensation for CAD, effective
August 31, 2010, the date that ischemic heart disease (including CAD) was added to the list of
disabilities recognized as presumptively related to herbicide exposure. R. at 2896-99. The
appellant filed a Notice of Disagreement and asserted that the effective date should be February
2003, when he was “officially diagnosed” with ischemic heart disease. R. at 2828. He subsequently
perfected an appeal to the Board. R. at 2570-71; see R. at 2572-92. In August 2017, he testified
before a Board member that he was treated for chest pain at the VA medical center (VAMC) in
Huntington, West Virginia, in approximately 1975 or 1976 and was diagnosed with a heart
problem in 1977, but that he was unable to obtain a copy of those records. R. at 675-77; see R. at
679-80 (testifying that he was not diagnosed with CAD until 2003).
On February 16, 2018, the Board denied entitlement to an effective date prior to August 31,
2010, for the award of disability compensation for CAD. R. at 1-12. This appeal followed.
II. ANALYSIS
A. Parties’ Arguments
The appellant argues that the Board provided inadequate reasons or bases for its decision
because it failed to discuss the 1982 medical record reflecting a diagnosis of CAD. Appellant’s
Brief (Br.) at 14-19. He points to provisions of VA’s Nehmer Training Guide and asserts that they
provided for an earlier effective date based on the facts of this case. Id. at 15-19 (citing VA
Training Letter 10-04 (rev. ed. Feb. 10, 2011) (Nehmer Training Guide)). The appellant also argues
that the Board failed to ensure compliance with its duty to assist him in developing his claim
because the Board did not attempt to obtain records from the Huntington, West Virginia, VAMC
dated in the 1970s. Id. at 20-22.
For his part, the Secretary argues that the 1982 VA medical record is not subject to the
special Nehmer rules because it “was not actually before the adjudicator at the time of the January
1990 rating decision, or before the Board at the time of the decision on appeal.” Secretary’s Br. at 13. Further, the Secretary asserts that the Nehmer Training Guide is not binding on the Board, this
Court does not have jurisdiction to interpret and enforce the stipulation order agreed to by the
3
parties in the Nehmer litigation, and there was otherwise no evidence of a pending or denied CAD
claim during the relevant dates pursuant to 38 C.F.R. § 3.816. Id. at 6-8, 10-13. Regarding the
Agency’s duty to assist, the Secretary notes that the Huntington, West Virginia, VAMC records
from the 1970s were declared missing during a lengthy records dispute in the present appeal to the
Court; thus, the appellant has not demonstrated error. Id. at 14-15.
In reply, the appellant counters that the Court has jurisdiction to provide the requested
relief, that the Board is bound by the Nehmer Training Guide pursuant to 38 U.S.C. § 7104, that
the 1982 medical record was in VA’s actual possession at the time of the 1990 rating decision, and
therefore, that the Board erred by failing to consider it in determining the proper effective date.
Reply Br. at 1-12. Further, he disputes the Secretary’s contention that the record development that
took place on appeal to the Court, in order to resolve a dispute about the record before the agency,
retroactively obviated the Board’s duty to assist the appellant in obtaining the 1970s Huntington,
West Virginia, VAMC records, and he maintains that he is prejudiced by the Board’s error. Id. at
13-15.
B. Law
Nehmer was a class action in which Vietnam veterans and their survivors alleged that, in
promulgating regulations governing compensation for diseases attributed to Agent Orange, VA
failed to comply with the Dioxin and Radiation Exposure Compensation Standards Act. Nehmer
v. U.S. Veterans’ Admin., 712 F. Supp. 1404 (N.D. Cal. 1989); see also Nehmer v. U.S. Veterans’
Admin., 32 F. Supp. 2d 1175 (N.D. Cal. 1999), aff’d, 284 F.3d 1158 (9th Cir. 2002). In 1991, the
parties entered into a stipulation and order setting forth VA’s ongoing responsibilities for further
rulemaking and disability payments to class members. See Nehmer, 32 F. Supp. 2d at 1177
(describing the stipulation and order). One of the results of Nehmer is that Vietnam veterans may
be eligible to receive effective dates for compensation earlier than the effective dates of regulatory
changes that add a disease to the list of diseases presumed to be caused by exposure to Agent
Orange. See 38 C.F.R. § 3.816 (2021).
In accordance with Nehmer, VA promulgated 38 C.F.R. § 3.816, which provides in
pertinent part that, when determining the effective date for a claim of entitlement to disability
compensation based on a covered herbicide disease, the effective date is dependent on whether the
claim was (1) denied between September 25, 1985, and May 3, 1989, or (2) pending before VA
on May 3, 1989, or received by VA between that date and the effective date of the law establishing
4
a presumption of service connection for the condition. 38 C.F.R. § 3.816(c)(1)-(2). The Nehmer
Training Guide is an internal VA manual to help adjudicators apply these special rules. See Nehmer
Training Guide at 8 (“The purpose of this training guide is to provide users with the information
necessary to review, develop, rate, and authorize Nehmer claims for the three new presumptive
conditions . . . and any other presumptive conditions involving in-country Vietnam service.”). It
provides that, “[i]f VA received medical records documenting a diagnosis of the now-covered
disease, then the first rating decision issued after receipt of those records is deemed to have denied
[service connection] for that condition, and the claim denied by that decision is deemed to have
included a claim for the now-covered disease.” Nehmer Training Guide at 19.
C. Discussion
In the decision on appeal, the Board quoted the effective date provisions found in § 3.816
and VA’s definition of “claim” and “application” as set forth in § 3.1(p) and concluded that those
effective date provisions did not apply. R. at 5-9. In that regard, the Board considered the
appellant’s assertions that he was diagnosed with CAD and filed a claim for the condition in 2003,
but the Board found that VA received no such claim prior to August 2010, when CAD was added
to VA’s list of presumptive diseases. R. at 6-8. The Board also found that a CAD claim was not
received within 1 year of the appellant’s separation from service and that VA had not previously
denied compensation for any form of ischemic heart disease. R. at 8-9. Then, applying 38 C.F.R.
§§ 3.114 and 3.400, the Board found that August 2010 was the earliest effective date available by
law. R. at 9. In reaching this conclusion, the Board did not discuss the 1982 VA medical record or
the Nehmer Training Guide. See R. at 2-10.
As for the 1982 medical record, it is undisputed that it was generated by VA, reflects a
“‘recent’ diagnosis of CAD,” and was in existence prior to the RO’s denial in 1990 of claims based
on other conditions. Secretary’s Br. at 3 (quoting R. at 3969); Appellant’s Br. at 14-15. Although
the parties dispute whether the record was before the RO in 1990, its inclusion in the record before
the agency signifies that it was, at a minimum, constructively before the Board when it rendered
the decision on appeal. See U.S. VET. APP. R. 10 (requiring the record before the agency to include
“all materials that were contained in the claims file on the date the Board issued the decision” and
“any other material from the record before the Secretary and the Board relevant to the Board
5
decision on appeal”).1 Indeed, it is a VA-generated record, pertains to the appellant, and concerns the medical condition at issue and, thus, is relevant and could reasonably be expected to have been a part of the record before the Board. See Euzebio v. McDonough, 989 F.3d 1305, 1321 (Fed. Cir. 2021) (holding that “the correct standard for constructive possession . . . is relevance and reasonableness”); Bell v. Derwinski, 2 Vet.App. 611, 613 (1992) (per curiam order) (finding evidence to be constructively before the Secretary and the Board where it was “within the Secretary’s control” and “could reasonably be expected to be a part of the record”); see also Lang v. Wilkie, 971 F.3d 1348, 1355 (Fed. Cir. 2020) (“A veteran’s own medical records, generated by
the VA itself, are always reasonably related to a veteran’s claim.”).

Because there was, therefore, VA medical evidence constructively before the Board that
the appellant had been diagnosed with an herbicide-related condition prior to the 1990 RO
decision, the Court concludes that remand is warranted. On remand, the Board, even if not bound
by the Nehmer Training Guide, should discuss in the first instance that relevant VA guidance,
whether it should be applied, and, if so, whether it supports assignment of an earlier effective date.
See Healey v. McDonough, 33 Vet.App. 312, 319-22 (2021); Overton v. Wilkie, 30 Vet.App. 257,
264 (2018); see also Bell, 2 Vet.App. at 613 (“If . . . material [constructively before the Board]
could be determinative of the claim and was not considered by the Board, a remand for
readjudication would be in order.” (emphasis added)); 38 C.F.R. § 3.309(e); Nehmer Training
Guide at 19 (“If VA received medical records documenting a diagnosis of the now-covered disease,
then the first rating decision issued after receipt of those records is deemed to have denied
[compensation] for that condition, and the claim denied by that decision is deemed to have included
a claim for the now-covered disease.”).
D. Remand
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 matter, including the specific arguments raised here on
1 The Secretary explains that the appellant submitted this record to VA in June 2020, and VA added it to the
amended record before the agency prior to the parties completing briefing. Secretary’s Br. at 3, n.1.
6
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
“[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
February 16, 2018, decision denying entitlement to an effective date prior to August 31, 2010, for
the award of disability compensation for CAD is VACATED, and the matter is REMANDED for
further proceedings consistent with this decision.
DATED: October 29, 2021
Copies to:
Tara R. Goffney, Esq.
VA General Counsel (027)

Leave a Comment »

No comments yet.

RSS feed for comments on this post. TrackBack URI

Leave a Reply

Your email address will not be published. Required fields are marked *

This site uses Akismet to reduce spam. Learn how your comment data is processed.

Powered by WordPress.com.