Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
DONALD MARTIN, APPELLANT,
DAVID J. SHULKIN, M.D.,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before SCHOELEN, Judge.
Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent.
SCHOELEN, Judge: The appellant, Donald Martin, through counsel, appeals a June 15, 2016, Board of Veterans’ Appeals (Board) decision that denied service connection for a genitourinary disorder, and denied service connection for colon cancer. Record of Proceedings (R.) at 2-11. 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 affirm the Board’s decision.
The appellant served on active duty in the U.S. Army from August 1957 to June 1960 and from August 1960 to October 1977. R. at 132, 290. In March 1971, the appellant complained of diarrhea and watery bowel movements. R. at 1003. In June 2010, the appellant submitted a claim for frequent urination, an enlarged prostate, and an enlarged kidney. R. at 925. In February 2010, the RO requested the appellant’s service and postservice military records. R. at 1101-06. In August 2010, VA notified the appellant that the RO was unable to obtain his postservice medical records dated from November 1977 to December 2003. R. at 915-17. The letter also stated that a request for records from Dewitt Army Community Hospital in Fort Belvoir was returned with a response stating that the hospital did not have the appellant’s records for that period. Id. at 915.
In a December 2010 rating decision, the RO denied service connection for prostate problems and an enlarged kidney with frequent urination. R. at 896-901. After further development, in January 2015, the Board remanded the appellant’s claim for service connection for a genitourinary disorder, claimed as a prostate disorder, an enlarged kidney, and frequent urination. R. at 803-07. On remand, the Board instructed the RO to request records for any treatment for prostate cancer, and any outstanding records from Camp Lejeune, Fort Belvoir, or Walter Reed National Military Medical Center, and to schedule a VA medical examination. R. at
In May 2015, a VA examiner opined that the appellant’s prostate condition was less likely than not incurred in or caused by an in-service injury, event, or illness. R. at 369-79. Also in May 2015, the appellant filed a claim for service connection for colon cancer. R. at 367-68. In June 2015, the RO denied service connection for colon cancer. R. at 1154-57. An August 2015 Report of General Information notes that a VA representative called the appellant, and the appellant stated that VA had possession of his records from Fort Belvoir already and that he was not seen there after October 2013. R. at 328. The appellant requested that his case move forward because there
were no other records to submit or obtain. Id.
In December 2015, the Board remanded the appellant’s claims for a genitourinary disorder and colon cancer. R. at 104-09. The Board also ordered an addendum medical opinion to the May 2015 VA examination. Id. In March 2016, the May 2015 VA examiner issued an addendum opinion. R. at 1134-36. In the June 15, 2016, decision here on appeal, the Board denied the appellant’s claim for service connection for a genitourinary disorder, to include as due to in-service herbicide exposure,
and colon cancer, to include as due to in-service herbicide exposure. R. at 2-11. This appeal followed.
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. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet.App. 247, 253 (1999); Caluza v. Brown, 7 Vet.App. 498, 506 (1995), aff’d per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table).
A. Hearing Officer’s Duties 38 C.F.R. § 3.103(c)(2) provides that “[i]t is the responsibility of the VA employee or employees conducting the hearings to explain fully the issues and suggest the submission of evidence which the claimant may have overlooked and which would be of advantage to the claimant’s position.” 38 C.F.R. § 3.103(c)(2) (2017); see also Bryant v. Shinseki, 23 Vet.App. 488, 492 (2010) (stating that the regulation imposes “two distinct duties” on hearing officers: the duty to fully explain the issues and the duty to suggest that a claimant submit evidence that may have been overlooked). This provision applies to hearings both before the regional office (RO) and the Board. Procopio v. Shinseki, 26 Vet.App. 76, 79-81 (2012). The appellant argues that the November 2014 Board member erred by not suggesting further evidence that was needed at the hearing. Appellant’s Brief (Br.) at 5-6. The Court finds this argument unavailing. In this case, the record demonstrates that the Board member stated that the issue on appeal was service connection for residuals of prostate cancer and noted that further attempts to obtain the appellant’s medical records would be made. R. at 1175, 1191. However, even assuming the Board member had failed in his duty to suggest further evidence to submit, the appellant has not demonstrated that he was unaware of what was needed to substantiate his claim.
In his opening statement, the appellant’s representative acknowledged that the appellant’s current disability had not been attributed back to his time in service and stated that the appellant hoped that his testimony would provide any missing or unknown information that had previously prevented service connection. R. at 1176.
Additionally, the hearing focused on the lack of records showing any diagnosis or treatment, and the Board member stated that she was going to ask for more records before making her decision. Given this dialogue, the appellant presumably knew what was required to substantiate his claim. Therefore, the Court holds that even assuming the Board member failed to comply with her regulatory duty to suggest the submission of evidence, the appellant has not demonstrated that he was prejudiced by the error. See Mayfield v. Nicholson, 19 Vet.App. 103, 121 (2005) that no prejudice exists when a claimant has actual knowledge of the evidence required), rev’d on other grounds, 444 F.3d 1328 (Fed. Cir. 2008); see also Hilkert v. West, 12 Vet.App. 145, 151 (1999) (en banc) (holding that the appellant bears the burden of demonstrating error on appeal). (noting 1 The appellant had not yet filed his claim for colon cancer at the time of the hearing.
B. Adequacy of Examinations
“[O]nce the Secretary undertakes the effort to provide an examination when developing a service-connection claim, he must provide an adequate one.” Barr v. Nicholson, 21 Vet.App. 303, 311 (2007). A medical examination is considered adequate “where it is based upon consideration of the veteran’s prior medical history and examinations and also describes the disability, if any, in sufficient detail so that the Board’s ‘”evaluation of the claimed disability will be a fully informed one.”‘” Stefl v. Nicholson, 21 Vet.App. 120, 123 (2007) (quoting Ardison v. Brown, 6 Vet.App. 405, 407 (1994) (quoting Green v. Derwinski, 1 Vet.App. 121, 124 (1991))). “Whether a medical
opinion is adequate is a finding of fact, which this Court reviews under the ‘clearly erroneous’ standard.” D’Aries v. Peake, 22 Vet.App. 97, 104 (2008); see also Gilbert v. Derwinski, 1 Vet.App. 49, 52 (1990).
The appellant next argues that the May 2015 VA examination and March 2016 addendum are inadequate. Appellant’s Br. at 6-12. Specifically, the appellant contends that the examiner did not review the appellant’s claims file (C-file) or note the appellant’s complaints of watery and loose bowel movements in 1971, which led to “erroneous factual determinations.” Id. at 10. The Secretary responds that although the examiner did not review the paper C-file, the examiner reviewed the service treatment records, examinations, VA treatment records, and civilian treatment records “presumably through electronic sources.” Secretary’s Br. at 13-15. The Board here assigned great probative weight to these opinions because the examiner reviewed the medical records, examined the appellant, addressed the appellant’s assertion as to the origin of the disability, and provided a sufficient rationale for the conclusion reached based on the record and the examination findings. R. at 7.
The Court finds that in rendering its decision the Board did not err in relying on the 2015 examination and 2016 addendum. Although the examiner checked a box indicating that he had not reviewed the hard copy of the appellant’s C-file, R. at 372, he noted that through a VA database, he reviewed the appellant’s service treatment records, 2006 and 2007 VA treatment records, a December 2009 private x-ray report, appellant’s lay statements and Substantive Appeal to the Board, and the appellant’s testimony at the November 2014 hearing. R. at 372, 379. The March 2016 addendum, provided by the same examiner, specifically noted review of service treatment
records, the appellant’s enlistment and separation examinations, and Veterans Health Administration medical records. R. at 1134. The appellant does not point to any specific records that the examiner did not review, nor does he demonstrate how he was prejudiced. See NievesRodriguez v. Peake, 22 Vet.App. 295, 301 (2008).
As to the appellant’s argument that the examiner made erroneous factual determinations and failed to assist the appellant in developing his claim because the examiner did not note his 1971 complaints of watery and loose bowel movements, this argument must fail. The appellant does not assert what erroneous determination the examiner made or establish how this lack of notation has prejudiced his claim. See Shinseki v. Sanders, 556 U.S. 396, 406 (2009) (appellant has burden of demonstrating prejudice). Therefore, the Court finds the appellant’s arguments unfounded and does not find clear error in the Board’s determination that the May 2015 examination and March 2016 addendum were adequate.
C. Duty To Assist
The Secretary has a duty to assist claimants in developing their claims. 38 U.S.C. § 5103A. That duty to assist includes the duty to make “reasonable efforts to obtain relevant records,” as long as the claimant “adequately identifies” those records to the Secretary and authorizes the Secretary to obtain them. 38 U.S.C. § 5103A(b)(1); see also Loving v. Nicholson, 19 Vet.App. 96, 102 (2005). If the Secretary is unable to obtain those records after making reasonable efforts to do so, the Secretary must provide notice of that fact to the claimant. See 38 U.S.C. § 5103A(b)(2); 38 C.F.R. § 3.159(e) (2017). The Board’s determination that VA has satisfied the duty to assist is
reviewed under the “clearly erroneous” standard of review. Hyatt v. Nicholson, 21 Vet.App. 390, 395 (2007). A finding of fact is clearly erroneous when the Court, after reviewing the entire evidence, “is left with the definite and firm conviction that a mistake has been committed.” United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948); see also Gilbert, 1 Vet.App. at 52.
The appellant argues that the Board “failed to recognize the absence of the last three years of treatment records and consequently failed to ensure that these records are obtained prior to final adjudication of the [v]eteran’s claims.” Appellant’s Br. at 16. Specifically, the appellant argues that the Board “failed to ensure the adequacy of the search conducted” to obtain postservice records from Dewitt Army Community Hospital in Fort Belvoir. Id. However, the appellant does not plead with any specificity what these records would have established and, therefore, has not established any error on appeal. See Hilkert and Shinseki, both supra. Additionally, according to
an August 2015 phone call with a VA representative, the appellant stated that VA already had his records from Fort Belvoir and that he was not treated there after October 2013. R. at 328. Without more, the Court cannot discern how the Board failed in its duty to assist in obtaining records that the appellant previously stated were already in VA’s possession. See Wood v. Derwinski, 1 Vet.App. 190, 192-93 (1990) (duty to assist is not a one-way street).
D. Reasons or Bases
The Board is required to include in its decision a written statement of the reasons or bases for its findings and conclusions on all material issues of fact and law. See 38 U.S.C. § 7104(d)(1); Allday v. Brown, 7 Vet.App. 517, 527(1995). The statement must be adequate to enable a claimant to understand the precise basis for the Board’s decision, as well as to facilitate informed review in this Court. See id.; Gilbert, 1 Vet.App. at 56-57. To comply with this requirement, the Board must analyze the credibility and probative value of the evidence, account for the evidence it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Caluza, 7 Vet.App. at 506; Gabrielson v. Brown, 7 Vet.App. 36, 39-40 (1994).
The appellant argues that the Board did not provide adequate reasons or bases for denying his two claims. Appellant’s Br. at 17-27. He contends that the Board had a heightened duty to provide a well-reasoned basis for its decision because of his missing medical records. Id. The appellant further argues that the Board improperly denied benefits based on the lack of evidence and that the Board did not properly assess the weight and credibility of the evidence. Id. at 19, 21.
The appellant is correct that where service medical records are presumed destroyed, the Board’s obligation to explain its findings and conclusions is heightened. See Russo v. Brown, 9 Vet.App. 46, 51 (1996); see also Washington v. Nicholson, 19 Vet.App. 362 (2005). However, the appellant’s argument is based on an inaccurate factual premise. In this case, the appellant’s records are a part of the record. It is the appellant’s postservice records from 1977 to 2003 that VA was unable to obtain. R. at 915. Therefore, the appellant fails to establish error. See Hilkert, 12 Vet.App. at 151.
As to the appellant’s argument that the Board denied benefits “solely” on the fact that there was no evidence, the Court rejects this argument. With regard to the appellant’s genitourinary disorder claim, the Board explained that it gave the VA examination great probative weight because the examiner addressed the appellant’s assertion on the origin of his disability and provided sufficient rationale for the conclusion reached. R. at 7. The Board also explained that the appellant’s genitourinary conditions did not warrant service connection on a presumptive basis and that no evidence related these conditions to Agent Orange exposure. Id. The Board further
acknowledged the appellant’s lay statements and stated that he was not competent to provide a probative opinion on a complex medical matter such as the etiological relationship between his current disability and service. R. at 8.
With regard to the appellant’s colon cancer claim, the Board noted that review of service and postservice records does not show a diagnosis of colon cancer at any point during the appeal period. Id. The Board then explained that the evidence in the record weighed against a finding that the appellant had a diagnosis for colon cancer. R. at 9. The Court finds the Board’s reasons or bases for denying both of the appellant’s claims adequate to enable the appellant to understand the precise basis for its decision and adequate to facilitate review in this Court. See Allday, 7 Vet.App. at 527.
As to the appellant’s argument that the Board did not properly weigh the evidence, this essentially amounts to an impermissible request that the Court reweigh the evidence. As discussed above, the Board provided adequate reasons and bases for assigning evidence the weight that it did. It is the Board’s responsibility, as factfinder, to determine the credibility and weight to be given to the evidence. See Washington v. Nicholson, 19 Vet.App. 362, 367-68 (2005); Owens v. Brown, 7 Vet.App. 429, 433 (1995) (holding that the Board is responsible for assessing the credibility and weight of evidence and the Court may overturn the Board’s decision only if it is
clearly erroneous). The appellant has not established that the Board’s decision was clearly erroneous in any manner.
E. Other Arguments
To the extent the appellant argues that the Board failed to recognize that his claim for colon cancer should have been “interpreted broadly” because he was diagnosed with post renal obstructive acute kidney injury, the Court rejects this argument. The appellant states that the Board should have recognized that his other symptoms “overlap with colon problems as well as in-service complaints of diarrhea and blood in stool, both of which are symptoms of colon problems.” Appellant’s Br. at 11-12. The appellant’s argument is not supported by the medical evidence of record, and he fails to demonstrate that either he or his attorney possesses the requisite medical
knowledge to opine as to the matter. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Kerr v. Brown, 4 Vet.App. 350, 353 (1993); Hyder v. Derwinski, 1 Vet.App. 221, 225 (1991) (“Lay hypothesizing . . . serves no constructive purpose and cannot be considered by the Court.”).
After consideration of the appellant’s and the Secretary’s pleadings, and a review of the record, the Board’s June 15, 2016, decision is AFFIRMED.
DATED: November 6, 2017
Timothy E. Wipperman, Esq.
VA General Counsel (027)