Veteranclaims’s Blog

November 26, 2021

Single Judge Application; M21-1 Hypertension; Overton v. Wilkie; The M21-1 requires VA’s regional offices (ROs) to consider a claimant’s “predominant,” “current” blood pressure readings, VA ADJUDICATIONS PROCEDURES MANUAL, pt. 3, subpt. iv, ch. 4, sec. G.3.e; When “considering predominant blood pressure before control with medication,” it explains that the ROs are to begin with either the more current of the readings taken as part of the diagnostic workup period leading to the diagnosis of hypertension if medication was prescribed at that time, or the reading taken as part of a subsequent diagnostic workup period leading to the prescription of medication, VA ADJUDICATIONS PROCEDURES MANUAL, pt. 3, subpt. iv, ch. 4, sec. G.3.e; Appellant argues the Board’s reasons or bases for denying an initial compensable rating for hypertension were inadequate because it failed to explain why it didn’t follow the M21-1 to deny the rating when it considered all his blood pressure readings from throughout the appeal period, rather than just those “taken as part of a subsequent diagnostic workup period leading to the prescription of medication.” The Court agrees.; Although it’s true that the M21-1 isn’t binding on the Board, this Court held in Overton v. Wilkie that “[t]he Board is required to discuss any relevant provisions contained in the M21-1 as part of its duty to provide adequate reasons or bases, but because it is not bound by those provisions, it must make its own determination before it chooses to rely on an M21-1 provision as a factor to support its decision.” 30 Vet.App. 257, 264 (2018); Here, the Board failed to address the applicable M21-1 provision whatsoever. Under Overton, this renders its reasons or bases for denying an initial compensable rating for hypertension inadequate and remand is thus warranted.;

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 18-0217
ROBERT P. ADLER, APPELLANT,
V.
ROBERT L. WILKIE,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before ALLEN, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
ALLEN, Judge: Appellant Robert P. Adler served the Nation honorably in the United
States Army from January 1955 to June 1968, including service in the Republic of Vietnam. He
appeals a September 18, 2017, Board of Veterans’ Appeals decision that denied service connection
for both a left hand and a left foot disability as well as an initial compensable rating for
hypertension.1
The Board’s denials in this appeal, which is timely and over which the Court has
jurisdiction,2 were all clearly erroneous or not supported by an adequate statement of reasons or
bases. First, the Board clearly erred in denying service connection for a left hand disability by
relying on a June 2016 VA opinion that in turn relied on an inaccurate factual premise. Second,
the Board committed clear error in denying service connection for a left foot disability by failing
to expressly decide whether the combat presumption under 38 U.S.C. § 1154(b) applies. And
finally, the Board’s denial of an initial compensable rating for hypertension is not subject to
meaningful judicial review because it considered all appellant’s blood pressure readings rather than
1 The Board also denied service connection for a left knee disability and loss of teeth due to trauma. Because appellant
presents no argument on these issues, the Court deems them abandoned. See Pederson v. McDonald, 27 Vet.App. 276,
283 (2015).
2 See 38 U.S.C. §§ 7252(a), 7266(a).
2
only a certain subset of readings that VA’s adjudication manual states should be used, yet the Board
did not adequately explain why it deviated from the manual’s recommendations. The Board’s
September 18, 2017, decision is set aside and the matter remanded for readjudication.
I. ANALYSIS
A. Left Hand Disability
The parties (and the Court) agree the Board clearly erred in denying service connection for
a left hand disability by failing to consider whether appellant’s reports of pain and limited motion
resulted in functional loss sufficient to warrant service connection as a disability, even if appellant
currently has no diagnosed disability.3 In denying appellant’s claim, the Board noted that appellant
testified that he experiences loss of strength in his left hand and that he reported pain and decreased
range of motion at a June 2016 examination. Nonetheless it found that “[w]ithout a diagnosis, the
Veteran’s service connection claim for a left hand disability must be denied.”4 But it’s simply not
true that claimants are required to have a formal diagnosis of a disability to receive service
connection for the functional impairment of that disability.5 Instead, the Board was required to
consider whether appellant experiences functional loss in his left hand sufficient to warrant service
connection as a disability, even if he currently has no diagnosed disability. It didn’t, and so remand
is warranted.6
The parties also agree that the Board failed to adequately explain how it could rely on a
June 2016 VA opinion they contend was inadequate. This June 2016 opinion noted appellant’s
assertions of an in-service shrapnel injury to his left hand, but rejected them because there was “no
evidence found for this or any hand impairment related.”7 The examiner didn’t give any basis for
this conclusion, however, failing to conduct any imaging studies or other testing before ruling out
appellant’s reports of in-service injury. This is error as “a medical examination report must contain
3 See Appellant’s Brief (Br.) at 21-22; Secretary’s Br. at 5-6; see also Saunders v. Wilkie, 886 F.3d 1356, 1367-68 (Fed.
Cir. 2018) (holding that pain alone may qualify as a “disability” under 38 U.S.C. § 1110 if it rises to “the level of a
functional impairment of earning capacity”).
4 Record (R.) at 5.
5 See Saunders, 886 F.3d at 1367-68.
6 See Tucker v. West, 11 Vet.App. 369, 371 (1998).
7 R. at 133.
3
not only clear conclusions with supporting data, but also a reasoned medical explanation
connecting the two.”8
Because the Board clearly erred in denying service connection for a left hand disability by
failing to consider whether appellant’s reports of pain and limited motion resulted in functional
loss sufficient to warrant service connection as a disability and failed to adequately explain how it
could rely on an inadequate June 2016 VA opinion, the Court sets aside the Board’s denial of
service connection for a left hand disability and remands that claim for readjudication.
B. Left Foot Disability
Appellant next argues the Board clearly erred in denying service connection for a left foot
disability by failing to expressly decide whether the combat presumption under 38 U.S.C.
§ 1154(b) applies. The Secretary argues in response that, if the Board did err in not considering
the combat presumption, any such error is harmless as giving appellant the benefit of the
presumption doesn’t affect any of the bases the on which Board denied service connection.
Appellant has the better of the argument.
The so-called “combat presumption” reduces the evidentiary burden of showing an inservice
injury when a veteran served in combat.9 Specifically, it allows veterans to use lay evidence
to show in-service incurrence of a disease or injury.10 The Court has held that, when the record
includes evidence of combat service, the Board is required is consider whether “the advantages of
section 1154(b) should be afforded.” 11 When rendering a decision, the Board also has an
independent duty to consider all “applicable provisions of law and regulation.”12
Here, the record presents considerable evidence that appellant served in combat.13 Yet the
Board failed to address the applicability of the combat presumption whatsoever (even if only to
explain why it didn’t apply). This is error. 14 And the Court can’t conclude that error wasn’t
8 Nieves-Rodriguez v. Peake, 22 Vet.App. 295, 300-01 (2008); see Stefl v. Nicholson, 21 Vet.App. 120, 124 (2007);
38 C.F.R. § 4.2 (2018).
9 See 38 U.S.C. § 1154(b); 38 C.F.R. § 3.304(d) (2018); Dambach v. Gober, 222 F.3d 1376, 1380 (Fed. Cir. 2000).
10 See Reeves v. Shinseki, 682 F.3d 988, 1000 (Fed. Cir. 2012); Gaines v. West, 11 Vet.App. 353, 358 (1998).
11 Gaines, 11 Vet.App. at 358.
12 See 38 U.S.C. § 7104(a).
13 See R. at 387, 388, 761, 1227, 1285, 1289, 1440.
14 See Robinson v. Peake, 21 Vet.App. 545, 552 (2008).
4
prejudicial.15 The Board denied appellant service connection for a left foot disability because of a
lack of credibility regarding his lay reports of an in-service injury and a lack of nexus. Applying
the combat presumption could affect the latter of those two bases.
Indeed, as the Federal Circuit held in Reeves, attachment of the combat presumption doesn’t
just address in-service incurrence of an injury.16 It also can make it “far easier” for claimants to
establish a nexus between their military service and their claimed disability because it allows them
to “invoke the section 1154(b) presumption in order to show that [they] incurred the disability itself
while in service.”17 Thus, the Court can’t say that the Board’s failure to apply the provisions of
§ 1154(b) in adjudicating appellant’s claim was harmless.
Appellant also argues the Board’s denial of service connection for a left foot disability was
clearly erroneous because the Board improperly discounted the credibility of his lay statements
regarding the cause of his left foot injury. The Secretary argues the Board was merely
“acknowled[ing] the discrepancy between two accounts of symptom onset.”18 Again, appellant is
right.
The Board found that the credibility of appellant’s lay reports of continuous symptoms
since service was “somewhat diminishe[d]” because he also stated that in 1962 had sustained a left
leg sports injury in addition to his claimed 1968 in-service injury.19 But the Board cited no basis
in law for the proposition that veterans who suffer two different in-service injuries at two different
times are somehow less credible than those with only one injury. Because the Board didn’t
adequately explain the basis for its discounting of appellant’s lay statements, the Court is unable
to tell whether the Board simply misapplied the law or improperly required a different legal
threshold to appellant’s claim. Either is basis for remand.20
C. Hypertension
Finally, appellant argues the Board’s denial of an initial compensable rating for
hypertension was clearly erroneous because it considered all his blood pressure readings rather
15 See 38 U.S.C. § 7261(b)(2); Hilkert v. West, 12 Vet.App. 145, 151 (1999) (en banc).
16 682 F.3d at 999-1000.
17 Id. at 999 (emphasis in original) (citing Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004)).
18 Secretary’s Br. at 9.
19 R. at 7.
20 See Tucker, 11 Vet.App. at 371.
5
than only a certain subset of readings that he argues VA’s Adjudications Procedures Manual (the
M21-1) requires the Board to consider, while the Board did not explain why it deviated from the
M21-1’s recommendations. The Secretary argues in response that (i) the Board couldn’t have erred
by not following the M21-1’s guidance because the Board isn’t bound by the manual, and (ii) even
if the M21-1’s provisions were applied, appellant wouldn’t qualify for a compensable rating and,
thus, the Board didn’t clearly err.
The M21-1 requires VA’s regional offices (ROs) to consider a claimant’s “predominant,” “current” blood pressure readings. 21 When “considering predominant blood pressure before control with medication,” it explains that the ROs are to begin with either the more current of the readings taken as part of the diagnostic workup period leading to the diagnosis of hypertension if medication was prescribed at that time, or the reading taken as part of a subsequent diagnostic workup period leading to the prescription of medication.[22]
Appellant argues the Board’s reasons or bases for denying an initial compensable rating for
hypertension were inadequate because it failed to explain why it didn’t follow the M21-1 to deny
the rating when it considered all his blood pressure readings from throughout the appeal period,
rather than just those “taken as part of a subsequent diagnostic workup period leading to the
prescription of medication.” The Court agrees.
Although it’s true that the M21-1 isn’t binding on the Board,23 this Court held in Overton v. Wilkie that “[t]he Board is required to discuss any relevant provisions contained in the M21-1 as part of its duty to provide adequate reasons or bases, but because it is not bound by those provisions, it must make its own determination before it chooses to rely on an M21-1 provision as
a factor to support its decision.”24 Here, the Board failed to address the applicable M21-1 provision whatsoever. Under Overton, this renders its reasons or bases for denying an initial compensable
rating for hypertension inadequate and remand is thus warranted.25
The Secretary argues the Board’s failure to address the applicability of the M21-1 to
appellant’s hypertension claim was harmless, because even if the Board had applied the M21-1,
21 VA ADJUDICATIONS PROCEDURES MANUAL, pt. 3, subpt. iv, ch. 4, sec. G.3.e
22 Id.
23 See Disabled Am. Veterans v. Sec’y of Veterans Affairs, 859 F.3d 1072, 1077-78 (Fed. Cir. 2017).
24 30 Vet.App. 257, 264 (2018).
25 Id.; Tucker, 11 Vet.App. at 371.
6
appellant’s claim still would’ve been denied. This is so, he argues, because appellant has only one
reading “taken as part of a subsequent diagnostic workup period leading to the prescription of
medication,” and a single reading can’t, in his view, be “predominant” as predominance requires
more than a single reading. There’s simply no basis in law for this position and the Secretary cites
none in support of it. The fact that appellant has only one qualifying reading “taken as part of a
subsequent diagnostic workup period leading to the prescription of medication” is due to no fault
of his own. Now the Secretary’s argument asks this Court to retroactively engraft a quantitative
requirement onto his own manual provisions, and the Court simply won’t do that. The Board’s
reasons or bases for denying an initial compensable rating for hypertension are inadequate and
remand is warranted.26
Given this disposition, the Court need not now address the remaining arguments and issues
raised by appellant. 27 In pursuing his case on remand, appellant is free to submit additional
evidence and argument, including the arguments raised in his briefs to this Court. He has 90 days
to do so from the date of VA’s postremand notice.28 The Board must consider any such evidence
or argument. 29 The Court reminds the Board that “[a] remand is meant to entail a critical
examination of the justification for the decision.”30 The Board must proceed expeditiously.31
II. CONCLUSION
The Board’s September 18, 2017, decision is SET ASIDE and the matter REMANDED.
DATED: June 26, 2019
Copies to:
Christine M. Cote Hill, Esq.
VA General Counsel (027)
26 Tucker, 11 Vet.App. at 371.
27 See Best v. Principi, 15 Vet.App. 18, 20 (2001).
28 Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999) (per curiam order); see also Clark v. O’Rourke, 30 Vet.App.
92, 97 (2018).
29 Kay v. Principi, 16 Vet.App. 529, 534 (2002).
30 Fletcher v. Derwinski, 1 Vet.App. 394, 397 (1991).
31 38 U.S.C. §§ 5109B, 7112.

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