Benny R. ROPER, Appellant, v. R. James NICHOLSON, Secretary of Veterans Affairs, Appellee.
No. 04-0233
United States Court of Appeals for Veterans Claims.
July 13, 2006
20 Vet. App. 173
Argued Jan. 11, 2006.
On remand, the Secretary must consider whether the May 8, 1986, application and the appellant‘s submissions in support of that application raised a claim for benefits under section 1151 based on a sympathetic reading of those documents that does not require conformance with legal pleading requirements or intent to seek benefits under section 1151 explicitly. In addition, such considerаtion must be undertaken in accordance with regulations, law, and provisions in the VA Adjudication Procedure Manual that may be applicable to his 1986 filings, see, e.g.,
IV. CONCLUSION
Accordingly, the December 12, 2003, Board decision is VACATED and the matter is REMANDED for further proceedings consistent with this opinion.
Kenneth M. Carpenter, of Topeka, Kansas, for the appellant.
Thomas J. Kniffen, with whom Tim S. McClain, General Counsel; R. Randall Campbell, Assistant General Counsel; Edward V. Cassidy, Jr., Deputy Assistant General Counsel; and Cristine D. Senseman, Appellate Attorney, were on the brief, all of Washington, D.C., for the appellee.
Before MOORMAN, DAVIS, and SCHOELEN, Judges.
DAVIS, Judge:
Benny R. Roper appeals from a December 5, 2003, decision of the Board of Veterans’ Appeals (Board) that (1) denied his claim for secondary service connection for both his right-knee and left-leg disabilities and (2) affirmed the determination of the Columbia, South Carolina, regional office (RO) that awarded an 80% combined disability rating pursuant to
I. BACKGROUND
Mr. Roper served in the U.S. Army from October 1967 to December 1970. R. at 28. In November 1970, the RO granted his service-connection claim for bilateral hearing loss with recurrent tinnitus. R. at 53, 93. His condition was the result of acoustic trauma from friendly gunshot fire while Mr. Roper served in Korea. Id. Despite a lack of intermediate documentation in the record, it is undisputed that Mr. Roper‘s hearing had become significantly worse by 1992.1 By 1992, he was required to wear hearing aids in both ears, and private medical records indicate that his hearing loss was “communicatively significant” and was “expected to interfere with daily communication without the benefit of all facial and auditory cues.” R. at 139, 142. As a consequence of his service-connected hearing loss, Mr. Roper also experienced depression for which the RO awarded him secondary service connection in April 1999. R. at 458-60. At the time of the Board‘s December 2003 decision, Mr. Roper was entitled to a 50% disability rating for his service-connected hearing loss as well as a 50% disability rating for his secondarily service-connected depression. R. at 3. In April 1999, the RO combined these disability ratings in accordance with the table set forth in
In March 1992, Mr. Roper also filed with the RO secondary-service-connection claims for his right-knee and left-leg disabilities, asserting that these conditions were the result of his inability to hear and react to warning signs of oncoming accidents. R. at 106-07. As referred to in his statement in support of his claim, Mr. Roper injured his right knee during a work-related accident in January 1976. R. at 106, 113. Although that incident and a resulting right-knee injury are confirmed through medical records and workers’ compensation documentation, the only documented acсounts of what occurred during the accident are those of the veteran and witness statements made by two of the veteran‘s coworkers, Alton L. Cox, whose statement was written at the request of the veteran in March 1992, and Harold Swafford, whose statement was written at the request of the veteran in November 1996. R. at 106-07, 122, 203-20, 309.
According to these statements, while Mr. Roper was carrying several boxes
Mr. Roper‘s second asserted secondary-service-connection claim, a left-leg disability, arises out of a March 1991 boating accident. Similar to his right-knee disability, the injury to his left leg is confirmed by medical documentation. However, the only documented accounts of how the accident happened are those of the veteran and his friend, D.E. Revis, Jr., whose written statements in March 1992, November 1992, and November 1996 were made at the request of the veteran. R. at 106-07, 134, 144, 182-83, 196, 203-20, 311.
According to these statements, while Mr. Roper and Mr. Revis attempted to winch a boat onto the trailer, the boat began to dislodge as a result of Mr. Roper and Mr. Revis’ failure to properly lock the winch. According to his statemеnts, Mr. Roper was standing close to the handle of the winch. Mr. Revis heard the stripping sound of the gear on the winch, but Mr. Roper‘s hearing loss prevented him from becoming aware of such signs of trouble. Mr. Revis shouted at Mr. Roper to clear the trailer, but Mr. Roper did not hear his warnings before the winch handle began beating against his left calf, causing permanent deep-vein thrombosis. According to both Mr. Roper‘s and Mr. Revis’ statements, the left-leg condition would not have occurred if Mr. Roper had been able to hear either Mr. Revis’ initial shouts of warning or the stripping sound of the gear on the winch. Additionally, in support of his claim, Mr. Roper submitted the February 1998 private medical opinion of his treating physician, Dr. Rogers, who, after being informed of what hаd occurred by the veteran, opined that the veteran‘s left-leg disability was “a result of his inability to hear, and therefore, directly relates to his service deafness.” R. at 371.
The RO initially denied Mr. Roper‘s claims for secondary service connection for his right-knee and left-leg disabilities in a March 1992 rating decision to which Mr. Roper timely filed a Notice of Disagreement. R. at 175, 182. Significant evidentiary development ensued, leading to a September 1998 Board decision that also denied secondary service connection for these conditions. R. at 397-418. Then, on appeal to this Court, Mr. Roper joined the Secretary‘s motion to vacate the Board‘s 1998 decision and to remand the matter to the Board to conduct additionаl evidentiary development. R. at 421-32. After five years of such development, on December 5, 2003, the Board issued the decision here on appeal, again denying Mr. Roper‘s secondary-service-connection claims for his left-leg and right-knee conditions. The
II. DISCUSSION
A. Combined Rating of Primary- and Secondary-Service-Connection Claims
1. 38 C.F.R. § 3.310(a) and the Parties’ Contentions
On appeal, Mr. Roper contends that the Board erred by concluding that he was not entitled to a 100% rating for his service-connected hearing loss and his secondary-service-connected depression. Appellant‘s Brief (Br.) at 15. He does not assert that the Board misсalculated his rating in accordance with the table set forth in
As noted above, Mr. Roper is service connected both on a primary basis for his hearing loss and also on a secondary basis for his depression, which VA determined was the result of his hearing loss. With regard to secondary-service-connection claims, VA has promulgated regulatiоn
Except as provided in
§ 3.300(c) , disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition.
2. 38 C.F.R. § 3.310(a) in the Statutory and Regulatory Scheme
a. Applicable Law
In order to determine the plain meaning of the clause “the second condition shall be considered a part of the original condition,” we will first consider
b. Relevant Chain of Analysis
Currently codified at
For disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service, during a period of war [or during other than a period of war], the United States will pay to any veteran thus disabled and who was discharged or released under conditions other than dishonorable from the period of service in which said injury or disease was incurred, or preexisting injury or disease was aggravated, compensation as provided in this subchapter, but no compensation shall be paid if the disability is a result of the veteran‘s own willful misconduct or abuse of alcohol or drugs.
Service connection can be established in several different ways. For example, service connection may be granted on a direct
Once service connection is established, VA proceeds to the next element of a disability compensation claim, determining a proper disability rating. VA is given authority, in accordance with
c. 38 C.F.R. § 3.310(a) ‘s Place in the Statutory and Regulatory Scheme
Having set up the relevant chain of analysis, we must now determine at what point or points
As noted above, in order for VA disability benefits to be granted, the disability claim must be based on a theory of entitlement that relates that condition to the veteran‘s service. With regard to direct service-connection claims the evidence must sufficiently establish a nexus between the claimed in-service injury or disease and the current disability. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995); see also Hickson v. West, 12 Vet. App. 247, 252 (1999).
However, the basic entitlement provisions do not set forth an answer as to whether the nexus requirement can be stretched to encompass disability benefits for conditions that result not directly from service, but as a result of the service-connected condition. It cannot be disputed, therefore, that the intended purpose behind creating a secondary-service-connection regulation was to establish a pathway for such claims to receive entitlement to disability benefits. Only through satisfying the criteria necessary for secondary service connection would those claims proceed to the disability rating stage.
Excluding for the moment arguments relating to the plain meaning of the language in dispute, we can find no evidence, persuasive or otherwise, that
3. Plain Meaning Analysis of “Will Be Considered a Part of the Original Condition”
Although we find that, based on our analysis of
Here, we find that the regulatory history behind
Disability which is proximately due to or the result of a properly service[-]connеcted disease or injury is pensionable, unless such disability is shown to be the result of a non-service[-]connected intervening cause. When service connection is thus established for a secondary condition, the secondary condition will be considered a part of the original condition for all purposes, i.e., for determinations regarding rights on account of combat, etc.
VR No. 3(a) (emphasis added). Three years later, VA shortened the applicable
Based on the regulatory history, we find that the plain meaning of the regulation is and has always been to require VA to afford secondarily service-connected conditions the same treatment (no more or less favorable treatment) as the underlying service-connected conditions for all determinations. We are not persuaded that the slight and inconsequential changes made to the regulation‘s language over the years were intended to depart from this meaning. If VA had intended to change the regulation substantially to govern disability ratings of secondary-service-connection claims exclusively, VA would have made its intent more ascertainable in drafting the regulation‘s language. Pursuant to the plain meaning of these words, we must reject Mr. Roper‘s аrguments. It would indeed be an anomalous and unharmonious result to read these words to require the same treatment for the underlying and the secondarily service-connected conditions and then conclude that VA intended this same language to treat secondarily service-connected conditions differently with regard to disability ratings. Moreover, our plain-language analysis, coupled with our conclusion that VA only intended
B. Mr. Roper‘s Secondary-Service-Connection Claims
1. Applicable Law
Secondary service connection may be granted for any disability that is proximately due to or the result of a service-connected disease or injury.
Furthermore, the Board is required to consider all evidence of record and to consider, and discuss in its decision, all “potentially applicable” provisions of law and regulation. Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991); see
2. Proper Remedy
Here, the Secretary concedes, and the Court agrees, that the Board erred with regard to its statement of reasons or bases for its denial of both of Mr. Roper‘s secondary-service-connection claims. Therefore, the sole issue remaining before the Court is whether reversal or remand is the appropriate remedy in this case. We begin our analysis by first rejecting Mr. Roper‘s argument that reversal is required on the grounds that the Secretary failed to address it in his brief and has therefore waived the issue. Although the Secretary‘s brief is somewhat indirect, we read it as asserting that, although remand is appropriate here, reversal is not. See Secretary‘s Br. at 7-10. Accordingly, we will address the issue of whether reversal is appropriate here or whether we should remand the matter to the Board for readjudication. See Pullman-Standard v. Swint, 456 U.S. 273, 292 (1982) (stating that “where findings are infirm because of an erroneous view of the law, a remand is the proper course unless the record permits оnly one resolution of the factual issue“); see also Harder, 5 Vet. App. at 189 (reversing the Board‘s denial of a secondary-service-connection claim on the grounds that “there can be one permissible view of the evidence, and thus, the finding is clearly erroneous“).
As to Mr. Roper‘s right-knee disability, the Board committed clear legal error in several respects with regard to its statement of reasons or bases. First, as conceded by the Secretary, the Board failed to apply the applicable laws relating to secondary service connection. In particular, despite noting that “his right[-]knee injury may have been caused by any number of factors besides impaired hearing,” the Board failed to make a finding as to whether therе was a causal connection between his service-connected hearing loss and the 1976 work-related accident leading to his right-knee disability. See
Second, the Board questioned the relevance of Dr. Rogers’ February 1998 opinion on the grounds that Dr. Rogers’ opinion was not based on a personal account of the event, and that Dr. Rogers’ opinion contained factual inaccuracies, including inaccurate dates and a statement that Mr. Roper was actually struck by the truck. R. at 14-15. Moreover, the Board concluded that it had no obligation to obtain a VA medical opinion in this matter because
Third, the Board failed to provide an adequate statement of the reasons or bases for the weight it gave to the lay statements made on behalf of the veteran. In its decision on appeal, the Board found the witnesses’ statements incompetent to show causation because the statements were made several years after the event and their accuracy was diminished by the passage of time. Although it is the Board‘s and not the Cоurt‘s place to properly weigh and evaluate the evidence in the record, the Board may not arbitrarily reject the value of a statement where there is no contrary evidence. Here, instead of properly weighing and evaluating Mr. Roper‘s and his coworkers’ lay statements, the Board impermissibly gave this evidence no weight and instead merely speculated, without any reliance on the record, that it could logically infer from the witnesses’ statements that the veteran eventually heard the warnings of his coworkers and that his right-knee injury may have been caused by any number of other factors besides impaired hearing.
Although we find clear error in the Board‘s statement of reasons or bases, we cannot at this timе conclude, without sufficient evidence as to whether it is possible that Mr. Roper‘s level of hearing loss could have causally contributed to the force at which he turned and disabled his knee, that only one permissible resolution of the matter exists, namely reversal. See Pullman-Standard, supra. Accordingly, we remand this matter to the Board for further proceedings consistent with this decision.
As to Mr. Roper‘s left-leg condition, for similar reasons we find that remand, and not reversal, is the appropriate remedy. First, the Board again failed to properly address and apply the requirements of
In Espiritu v. Derwinski, 2 Vet. App. 492 (1992), this Court stated that generally “‘scientific, technical, or other specialized knowledge,’ must be provided by a ‘witness qualified as an expert by knowledge, skill, experience, training, or education.‘” Espiritu, 2 Vet. App. at 495 (citing the Federal Rules of Evidence). As to the issue of causation, the Board noted that “[t]here are more likely causes for the left[-]leg injury, other than hearing loss.” R. at 14. The Board concluded that the most obvi-
Second, despite summarily dismissing Dr. Rogers’ opinion and the need for a medical opinion in this case, the Board failed to consider and explain why it was unnecessary to have medical evidence as to whether it was as likely as not that someone with Mr. Roper‘s level of hearing loss would be unable to hear the signs of the oncoming accident or Mr. Revis’ shouts of warning. Rather, the Board questioned the validity of Mr. Revis’ conclusion, noting that the simultaneous gear noise, warning shouts, and injury lead to the conclusion that “even with perfect hearing, it appears that the injury could not have been avoided.” R. at 14. The Board thus erred in its statement of reasons or bases by merely speculating, without support in the record and without taking into consideration the equipoise standard in section 5107(b), that the accident would have occurred whether or not Mr. Roper could have heard the shouts of warning.
Again, because there is insufficient evidence in the record for the Court to conclude that only one plausible resolution exists in this case, reversal is not the appropriate remedy here. Accordingly, we will also remand Mr. Roper‘s left-leg claim for further proceedings consistent with this decision. On remand, the Board decision regarding service connection must provide an adequate statement of reasons or bases, consistent with section 7104(d)(1). In particular, we remind the Board on remand of its obligation to discuss all applicable laws pertaining to secondary service connection and also its obligation to resolve any reasonable doubt in favor of the veteran. See
III. CONCLUSION
Upon consideration of the foregoing, the December 5, 2003, Board decision is AFFIRMED as to its determination regard-