Veteranclaims’s Blog

December 18, 2021

Single Judge Application; Saunders v. Wilkie; the United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that pain alone may constitute a disability, even without an identifiable underlying pathology. Saunders v. Wilkie, 886 F.3d 1356, 1368 (Fed. Cir. 2018). However, “to establish a disability, the veteran’s pain must amount to a functional impairment.” Id. at 1367. “Functional impairment,” the Federal Circuit noted, is defined as the inability of the body or a constituent part of it “‘to function under the ordinary conditions of daily life including employment.'” Id. at 1363 (quoting 38 C.F.R. § 4.10). In other words, pain alone can qualify as a disability where it diminishes the body’s ability to function, even where it is not diagnosed as connected to a current underlying condition. Id.;

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 18-2316
MILTON BROWN, APPELLANT,
V.
ROBERT L. WILKIE,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before BARTLEY, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
BARTLEY, Judge: Self-represented veteran Milton Brown appeals a February 9, 2018,
Board of Veterans’ Appeals (Board) decision that denied entitlement to service connection for
degenerative joint disease (DJD) of multiple joints, including the shoulders, hands, and knees.
Record (R.) at 2-10. For the reasons that follow, the Court will set aside the February 2018 Board
decision to the extent that it denied service connection for a disability of the hand and remand that
matter for further development, if necessary, and readjudication consistent with this decision. The
remainder of the Board decision will be affirmed.
I. FACTS
Mr. Brown served honorably in the U.S. Army from April 1967 to April 1970, including
service in the Republic of Vietnam. R. at 10786. According to the Board, service treatment records
(STRs) were negative for complaints of, treatment for, or findings of DJD of multiple joints,
including the shoulders, hands, and knees. R. at 6.1
1 Mr. Brown’s STRs are not contained in the record of proceedings. The Board’s statement in this regard is
consistent with its previous statement in a July 2004 decision, R. at 9538, 9540; a similar statement made by the RO,
R. at 9602 (January 2003); and similar statements made by VA examiners describing their review of the STRs, R. at
2
In July 2002, Mr. Brown submitted a statement in which he reported “pain in [his] joints,”
R. at 9666, which was construed as a claim for service connection for DJD of the shoulders, hands,
and knees, R. at 9600. In January 2003, a VA regional office (RO) denied the claim. R. at 9600-

  1. In July 2004, the Board likewise denied the claim. R. at 9531-44. At that time, the Board noted
    that Mr. Brown had made only general contentions about his DJD, “assert[ing] that he developed
    arthritis of multiple joints . . . during his active military duties. He ha[d] not described more
    specific contentions.” R. at 9540.
    Mr. Brown then appealed the adverse Board decision to this Court. In a January 2007
    decision, the Court set aside and remanded the claim. R. at 8615-23; Brown v. Nicholson, No. 04-
    1335, 2007 WL 470196 (Vet. App. Jan. 29, 2007), aff’d sub nom. Brown v. Peake, 269 F. App’x
    956, 957 (Fed. Cir. 2008). In December 2008, the Board remanded the claim for development
    consistent with the January 2007 Court order. R. at 8515-20.
    In July 2009, Mr. Brown filed a statement in conjunction with a separate claim for service
    connection for a back disability, contending that his back disability was related to an in-service
    incident where he fell off the back of a truck. R. at 8496. In May 2012, the Board denied the backdisability
    claim and remanded the DJD claim for additional development.2 R. at 7941-57. The
    Board additionally remanded the claim in December 2014. R. at 7459-76. Notably, in the
    December 2014 remand, the Board directed that Mr. Brown be provided a VA examination
    addressing the nature and cause of his claimed disabilities, with particular consideration given to
    his assertion that he fell off a truck during service. R. at 7473-75.
    Following a series of VA examinations in December 2015, a VA examiner indicated that
    Mr. Brown did not present with a diagnosable condition related to the hands, as no DJD was noted
    34 (noting no visits or treatment for claimed conditions in STRs), 4770 (noting a normal March 1967 entrance
    examination report and the April 1970 service separation examination report reflecting only back pain).
    2 Mr. Brown appealed the adverse portion of the May 2012 Board decision to this Court. In June 2013, the
    Court affirmed that portion of the May 2012 Board decision. Brown v. Shinseki, No. 12-1797, 2013 WL 2434943
    (Vet. App. June 5, 2013). However, following unilateral motions from the Secretary to recall mandate, withdraw
    judgment, and remand the appeal, the Court vacated its June 2013 decision, set aside the May 2012 Board decision,
    and remanded the appeal pursuant to National Organization of Veterans Advocates, Inc. v. Secretary of Veterans
    Affairs, 725 F.3d 1312 (Fed. Cir. 2013). Brown v. Shinseki, No. 12-1797, 2014 WL 648123 (Vet. App. Feb. 20, 2014).
    In a December 2014 decision, the Board again denied service connection for the back disability, R. at 7459-76, which
    Mr. Brown did not appeal. As relevant, however, the Board noted that Mr. Brown was provided an opportunity to
    request a new Board hearing, but he indicated that he did not wish to appear at a new hearing. R. at 7461.
    3
    upon x-ray. R. at 4777-78. In addition, although the examiner noted DJD in the shoulders and
    knees, he opined that the disabilities were less likely than not related to Mr. Brown’s military
    service but instead due to his aging process, weight, and active employment history. R. at 4790,
  2. In this regard, the examiner noted Mr. Brown’s assertion that he fell off a truck during
    service, which he contended resulted in injuries to his hands, shoulders, and knees, but noted no
    indication in the STRs or subsequent examinations of such injuries. R. at 4771, 4781, 4794. The
    examiner also noted Mr. Brown’s employment history consisting of manual labor. R. at 4780-81,
    4793.
    In March 2017, the Board again remanded the claim, finding the December 2015 medical
    opinion inadequate. R. at 526-31. Specifically, the Board found the opinion to be based on a lack
    of documentation corroborating Mr. Brown’s assertion that he fell off a truck during service. R. at
  3. In addition, the Board found the examiner overlooked favorable evidence and failed to
    provide adequate rationale for his opinion. R. at 528-29.
    In a June 2017 supplemental medical opinion, a different VA examiner noted that, although
    Mr. Brown was credible to report a fall during service, “he is not able to state if any medical
    diagnosis occurred due to the fall.” R. at 34. She added that review of Mr. Brown’s private and VA
    medical records demonstrated that he did not begin reporting knee and shoulder pain until 1992
    and hand pain until 1996. R. at 35. She added that a 1997 x-ray of the left knee, 1998 x-ray of both
    knees, and a 1996 x-ray of the hands all did not demonstrate DJD and that the first x-ray of record
    demonstrating degenerative changes in any of the claimed joints was an April 1996 x-ray of the
    shoulders. Id. Based on her review of the evidence, she opined that “[w]ithout continuity, a nexus
    [to service] cannot be stated.” Id.
    In the February 2018 decision on appeal, the Board denied service connection for DJD of
    the hands, finding “no competent evidence” of a current diagnosis. R. at 4. The Board denied
    service connection for DJD of the shoulders and knees, finding the medical opinions “highly
    probative” and against a finding of a link to Mr. Brown’s military service. R. at 9-10. In addition,
    the Board found Mr. Brown’s assertions that his DJD began during service and has continued since
    service not credible. R. at 9. This appeal followed.
    4
    II. JURISDICTION AND STANDARD OF REVIEW
    Mr. Brown’s appeal is timely and the Court has jurisdiction to review the February 2018
    Board 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).
    The Board’s determinations regarding service connection are findings of fact subject to the
    “clearly erroneous” standard of review. 38 U.S.C. § 7261(a)(4); see Davis v. West, 13 Vet.App.
    178, 184 (1999). “A factual finding ‘is “clearly erroneous” when although there is evidence to
    support it, the reviewing court on the entire evidence is left with the definite and firm conviction
    that a mistake has been committed.'” Hersey v. Derwinski, 2 Vet.App. 91, 94 (1992) (quoting
    United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948)).
    The Board must support its material determinations of fact and law with adequate reasons
    or bases. 38 U.S.C. § 7104(d)(1); Pederson v. McDonald, 27 Vet.App. 276, 286 (2015) (en banc);
    Allday v. Brown, 7 Vet.App. 517, 527 (1995); Gilbert v. Derwinski, 1 Vet.App. 49, 56-57 (1990).
    To comply with this requirement, the Board must analyze the credibility and probative value of
    evidence, account for evidence it finds persuasive or unpersuasive, and provide reasons for its
    rejection of material evidence favorable to the claimant. Caluza v. Brown, 7 Vet.App. 498, 506
    (1995), aff’d per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). When assessing the credibility of
    lay evidence, the Board may consider factors such as facial plausibility, bias, self-interest, and
    consistency with other evidence of record. Southall-Norman v. McDonald, 28 Vet.App. 346, 355
    (2016) (citing Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006); Caluza, 7 Vet.App.
    at 511).
    III. ANALYSIS
    Under a liberal construction of his brief, see De Perez v. Derwinski, 2 Vet.App. 85, 86
    (1992), Mr. Brown argues that the Board erred when it failed to provide adequate reasons or bases
    for determining that his claimed shoulder, hand, and knee conditions were not related to military
    service. Appellant’s Informal Brief (Br.) at 1-3. The Secretary urges the Court to dismiss the
    appeal, asserting that Mr. Brown failed to assert any argument as to error in the Board decision.
    Secretary’s Br. at 4-6. Alternatively, the Secretary urges the Court to affirm the Board decision
    5
    because its determinations are supported by a plausible basis in the record and by adequate reasons
    or bases. Secretary’s Br. at 6-11.
    Establishing service connection generally requires medical or, in certain circumstances, lay
    evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury;
    and (3) a link between the claimed in-service disease or injury and the present disability.
    Romanowsky v. Shinseki, 26 Vet.App. 289, 293 (2013). In its decision, the Board specifically
    adjudicated a single claim for “[e]ntitlement to service connection for [DJD] of multiple joints,
    including the shoulders, hands, and knees.” R. at 2, 4, 10. However, in denying the claim for service
    connection, the Board made distinct findings of fact related to different claimed joints. R. at 4.
    Regarding the shoulders and knees, the Board found that service connection was not warranted
    because the third element—link between the present disability and service—was not met. Id. In
    contrast, regarding the hands, the Board found that service connection was not warranted because
    the first element—presence of a current disability—was not met. Id.
    For the reasons discussed below, the Court concludes that the Board did not err with respect
    to its finding of fact relating to the shoulders and knees. However, the Court further concludes that
    the Board did err with respect to that portion of the claim pertaining to the hands. Accordingly, the
    Court will bifurcate the claim on appeal, remanding the hand claim and affirming the shoulder and
    knee claims.
    A. Shoulder and Knee DJD
    The Court concludes that the Board provided adequate reasons or bases for its
    determination that service connection was not warranted for DJD of the shoulders and knees. In
    reaching its conclusion, the Board found highly probative the opinions from “medical
    professionals who reviewed the record, examined [Mr. Brown], interviewed him, and considered
    his lay statements regarding his in-service fall,” but ultimately concluded that the DJD was less
    likely than not incurred during or related to his military service. R. at 10. The Board considered
    Mr. Brown’s assertions of the etiology of his DJD, but found those assertions outweighed by the
    unfavorable medical opinions.3 Id.
    3 The Board seemingly relies on the December 2015 examiner’s opinion as adequate despite its previous
    finding to the contrary, without any discussion of its previous determination. Compare R. at 9-10 with R. at 528-29.
    The Court notes, however, that the Board does not rely solely on the December 2015 opinion, but appears to rely on
    this opinion as supportive of the June 2017 opinion. See Monzingo v. Shinseki, 26 Vet.App. 97, 107 (2012) (noting
    6
    The Board also considered entitlement to presumptive service connection. In this regard,
    the Board considered Mr. Brown’s assertions that his DJD began during service and continued
    since service, but found his contentions not credible, noting that he did not file a claim for DJD
    until 2001 despite filing earlier claims for service connection, including one for a skin rash upon
    service separation. R. at 9. The Board, therefore, found no evidence that DJD manifested to a
    compensable degree within one year of service discharge or continuity of symptoms following
    service separation. R. at 4, 9.
    In his informal brief, Mr. Brown makes several assertions: (1) “38 C.F.R. do[es] not apply
    in part to my medical condition,” Appellant’s Informal Br. at 2; (2) “medical science is more
    advance[d] now than it was [in] 1967-1970,” id. at 3; and (3) that the Court should “review [his]
    work record in 1961-1965″ and his “DD [Form] 214 job cod[e] 922-887,” id.4
    Regarding Mr. Brown’s assertion that title 38 of the Code of Federal Regulations (C.F.R.)
    does not apply, Mr. Brown does not explain the basis for or relevance of this contention and the
    Court cannot glean either from his bare assertion. Mr. Brown applied for service-connected
    compensation and the regulations that govern such compensation are published in title 38 of the
    C.F.R. See, e.g., 38 C.F.R. § 3.303 (2019) (principles relating to service connection); 38 C.F.R.
    § 4.71a, Diagnostic Code 5003 (2019) (providing disability evaluations for degenerative arthritis);
    see also 38 U.S.C. § 501(a) (providing that “[t]he Secretary has authority to prescribe all rules and
    regulations which are necessary to carry out the laws administered by” VA). Absent further support
    for this contention, the Court will not address it further. See Evans v. West, 12 Vet.App. 22, 31
    (1998) (stating that the Court will not consider a “vague assertion” or an “unsupported contention”
    of error).
    Regarding Mr. Brown’s assertion about the advancement of medical science, the specific
    import of this argument is also unclear. However, to the extent that he is arguing that, if medical
    science in the 1960s were as advanced as it is today, he would have been diagnosed with DJD
    during service, see De Perez, 2 Vet.App. at 86, the Board noted that Mr. Brown’s STRs do not
    that “if [an] opinion is merely lacking in detail, then it may be given some weight based on the amount of information
    and analysis it contains”).
    4 According to Mr. Brown’s DD Form 214, the military occupational specialty 76X40 corresponded to a
    civilian occupational code 922.887, which refers to “warehouseman.” R. at 10786.
    7
    reflect that he sought treatment for shoulder or knee pain, R. at 6. Therefore, it is unclear why the
    advancement of medical science is significant to Mr. Brown’s appeal if he did not receive medical
    treatment during service. Moreover, VA specifically requested medical opinions to determine if
    Mr. Brown’s DJD, although not diagnosed during service, was otherwise related to service.
    Accordingly, the Court will not address this contention further. See Evans, 12 Vet.App. at 31.
    Regarding Mr. Brown’s assertion that the Court should assess his pre-service work records
    and his military occupational specialty, the Board indicated that VA attempted to obtain relevant
    records from the Social Security Administration and the Mississippi Workers’ Compensation
    Commission, but determined that those records were unavailable. R. at 4. In addition, the
    December 2015 and June 2017 VA examiners both reviewed Mr. Brown’s service records in
    rendering their opinion. R. at 34 (June 2017 opinion), 4770 (December 2015 opinion specifically
    noting Mr. Brown’s military occupational specialty).
    In addition, Mr. Brown attached several documents to his informal brief, including several
    internet articles discussing elbow pain, an obituary of Dr. Edgar Bobo, and a research report
    discussing medial epicondylitis of the elbow. See Appellant’s Informal Br. at Appendix. Initially,
    the Court notes that it is prohibited from considering evidence that was not in the record before
    the Board. See Kyhn v. Shinseki, 716 F.3d 572, 578 (Fed. Cir. 2013). Moreover, the relevancy of
    these documents is unclear. The internet articles and research report relate to elbow pain, which is
    not part of the instant appeal as the record of proceedings contains no mention of Mr. Brown
    reporting elbow pain. In addition, if Mr. Brown is submitting the obituary of Dr. Bobo, a physician
    who practiced in Mr. Brown’s hometown, to imply that he received treatment from Dr. Bobo and
    that there are outstanding medical records, the Board found that VA satisfied its duty to assist with
    respect to obtaining medical records. R. at 4. The Court discerns no clear error in that
    determination.
    The Court therefore concludes that the Board’s analysis was consistent with governing law,
    plausible in light of the record, and sufficiently detailed to inform Mr. Brown of the reasons for its
    determination that service connection for DJD of the shoulders and knees was not warranted and
    to facilitate judicial review. Accordingly, the Board did not clearly err in finding that service
    connection for DJD of the shoulders and knees was not warranted and the Board provided adequate
    8
    reasons or bases for its finding. See Allday, 7 Vet.App. at 527; Caluza, 7 Vet.App. at 506; Gilbert,
    1 Vet.App. at 57. Therefore, the Court will affirm this portion of the February 2018 Board decision.
    B. Hand Claim
    In its decision, the Board found that service connection for DJD of the hands was not
    warranted because there was no competent evidence that Mr. Brown had DJD of the hands. R. at
    4; see R. at 9 (noting that “the pertinent evidence . . . indicates that a diagnosis of arthritis of [Mr.
    Brown’s] hands has not been made”). However, Mr. Brown’s initial claim for service-connected
    compensation did not reference DJD; instead, he claimed “pain in [his] joints.” R. at 9666. When
    the RO adjudicated the claim, however, it characterized it as one for DJD of multiple joints, even
    though it acknowledged that medical records reflected a diagnosis of DJD only in the shoulders
    and knees, not the hands. R. at 9602. This mischaracterization is important for two reasons.
    First, although the December 2015 VA examiner did not diagnose DJD, he noted x-ray
    irregularities in the right hand, including evidence suggestive of a fracture of the distal phalanx of
    the fifth digit and osteophyte formation in the thumb interphalangeal joint. R. at 4777.5 Although
    DJD was not noted, these x-ray findings suggest the objective presence of pathology, evidence that
    tends to support a finding of a current disability, undermining the Board’s finding of no current
    disability. R. at 4.
    Second, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has
    held that pain alone may constitute a disability, even without an identifiable underlying pathology.
    Saunders v. Wilkie, 886 F.3d 1356, 1368 (Fed. Cir. 2018). However, “to establish a disability, the
    veteran’s pain must amount to a functional impairment.” Id. at 1367. “Functional impairment,” the
    Federal Circuit noted, is defined as the inability of the body or a constituent part of it “‘to function
    under the ordinary conditions of daily life including employment.'” Id. at 1363 (quoting 38 C.F.R.
    § 4.10). In other words, pain alone can qualify as a disability where it diminishes the body’s ability
    to function, even where it is not diagnosed as connected to a current underlying condition. Id.

    5 The Court notes that the June 2017 examiner described an October 1996 x-ray report as documenting a
    fracture of the distal phalanx of the right fifth digit, R. at 35, which is consistent with the Board’s description of the
    October 1996 x-ray findings, R. at 8, and both these descriptions seem to imply that the fracture occurred
    contemporaneous with the October 1996 x-ray. However, the December 2015 examiner indicated that the (undated)
    x-ray findings reflected a “time indeterminate fracture.” R. at 4777. Even assuming the fifth finger fracture occurred
    in 1996, many years after service, the December 2015 examiner additionally identified osteophyte formation in the
    thumb. Id.
    9
    In this regard, the Board acknowledged that Mr. Brown is competent to report pain in his
    joints. R. at 10. However, the Board did not consider whether Mr. Brown’s pain caused functional
    impairment to satisfy the first element of service connection. Accordingly, the Court concludes
    that the Board’s reasons or bases for denying service connection for a hand disability are inadequate
    and remand is warranted. See Allday, 7 Vet.App. at 527; Caluza, 7 Vet.App. at 506; Gilbert,
    1 Vet.App. at 57; see also Tucker v. West, 11 Vet.App. 369, 374 (1998) (holding that remand is
    the appropriate remedy “where the Board has incorrectly applied the law, failed to provide an
    adequate statement of reasons or bases for its determinations, or where the record is otherwise
    inadequate”).
    On remand, Mr. Brown is free to submit additional arguments and evidence, including the
    arguments raised in his brief to this Court, in accordance with Kutscherousky v. West, 12 Vet.App.
    369, 372-73 (1999) (per curiam order), and the Board must consider any such evidence or
    argument submitted. See Kay v. Principi, 16 Vet.App. 529, 534 (2002). The Court reminds the
    Board that “[a] remand is meant to entail a critical examination of the justification for the [Board’s]
    decision,” Fletcher v. Derwinski, 1 Vet.App. 394, 397 (1991), and must be performed in an
    expeditious manner in accordance with 38 U.S.C. § 7112.
    IV. CONCLUSION
    Upon consideration of the foregoing, to the extent that the February 9, 2018, Board decision
    denied service connection for a hand disability, that portion is SET ASIDE and that matter is
    REMANDED for further development, if necessary, and readjudication consistent with this
    decision. The balance of the appeal is AFFIRMED.
    DATED: August 20, 2019
    Copies to:
    Milton Brown
    VA General Counsel (027)

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