Lead Opinion
Thе appellant, Dwayne A. Moore, appeals through counsel an August 16, 2004,
I. FACTS
The appellant served on active duty in the U.S. Army from 1988 to 1991. R. at 27-28. While on active duty, he was hospitalized in January 1991 as a result of a personality disorder and eventually discharged. R. at 95-96. In September 1992, he applied for service connection and benefits for a personality disorder. R. at 104-07. A VA regional office denied service connection in a January 1993 rating decision. R. at 117-18. After an extended procedural history, in July 1999 he was granted service connection for an atypical affective disorder (R. at 251-58) and, in August 1999, was assigned a 10% disability rating, effective September 16, 1992 (R. at 260-62). He appealed the initially assigned disability rating, and was granted a 30% disability rating through an October 2002 Supplemental Statement of the Case, effective August 8, 2002. R. at 322-31. In August 2004, the Board issued a decision increasing his disability rating to 30% from January 27,1997, to August 7, 2002, and to 50% from August 8, 2002, forward. R. at 1-23. This appeal follows, challenging the denial of an initial disability rating for atypical affective disorder in excess of 10% from September 16, 1992, to January 26, 1997; the denial of a disability rаting in excess of 30% from January 27, 1997, to August 7, 2002; and the denial of a disability rating in excess of 50% from August 8, 2002.
II. ANALYSIS
A. Medical Records
The appellant asserts that VA erred by failing to obtain service medical records (SMRs) from the “Tripoli [sic] Army Hospital,” where he was treated in January 1991 for a psychiatric condition while on active duty. Appellant’s Brief (Br.) at 8-11 (referring to Tripler Army Hospital in Honolulu, Hawaii, see infra). Pursuant to 38 U.S.C. § 5103A(a)(l), “[t]he Secretary shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claimant’s claim for a benefit under a law administered by the Secretary.” The duty to assist is not unlimited and the statute permits the Secretary to assert that he has been absolved from the duty because further efforts would be futile: “The Secretary is not required to provide assistance to a claimant under this section if no reasonable possibility exists that such assistance would aid in substantiating the claim.” 38 U.S.C. § 5103A(a)(2). However, in this case the Secretary does not contest that the duty to assist does apply and that he is obligated to obtain all relevant records identified by the appellant.
The duty-to-assist statute has specific provisions governing records such as the SMRs that the appellant suggests exist but were not obtained. In general, “[a]s part of the assistance provided under subsection (a), the Secretary shall make reasonable efforts to obtain relevant records (including private records) that the сlaimant adequately identifies to the Secretary and authorizes the Secretary to obtain.” 38 U.S.C. § 5103A(b)(l); see Loving v. Nicholson,
In the case of a claim for disability compensation, the assistance provided*214 by the Secretary under subsection (b) shall include obtaining the following records if relevant to the claim:
(1) The claimant’s service medical records and, if the claimant has furnished the Secretary information sufficient to locate such records, other relevant records pertaining to the claimant’s active military, naval, or air service that are held or maintained by a governmental entity.
38 U.S.C. § 5103A(c), (c)(1) (emphasis added).
In his brief, the Secretary asserts that the particular SMRs at issue do not fall within his duty to assist because they are not relevant to the disputed disability rating. Specifically, the Secretary argues that “the fact that [the a]ppellant had an in-service psychiatric condition is not in dispute.” Secretary’s Br. at 15-16. Accordingly, he argues that the SMRs “cannot shed light on [the disability rating] because they only show that he had an in-service condition' — a point that has already been acknowledged by VA.” Secretary’s Br. at 16. Hence, the dispute between the parties is whether, based on the facts of this case, the SMRs in contention would be relevant to the appellant’s claim.
The SMRs that the appellant alleges, for the first time on appeal to this Court (Br. at 8), should have been obtained are rеferred to an SMR in the record. The record before the Court contains a January 14, 1991, “Chronological Record of Medical Treatment” from the Naval Medical Clinic at Pearl Harbor, Hawaii. R. at 95. In that record, Staff Psychiatrist Cdr. T.A. Bischoff stated that the appellant “was originally evaluated by me on 3 Jan. '91 after he was hospitalized on the psychiatric ward at Tripler (29 Dee.-3 Jan.).” Id. After describing the appellant’s symptoms and treatment, Cdr. Bischoff diagnosed the appellant as having, inter alia, a “dependant personality disorder” and recommended that the appellant be separated from service. R. at 95-96. Moreover, evidence contemporaneous with his hospitalizatiоn at Tripler and discharge from service notes that he experienced a psychological episode in December 1990 triggering his February 1991 separation from service. The December 1992 VA medical examination recognized that the appellant “was released in February 1991, as part of an R4, or General Medical Discharge, for personality disorder.” R. at 112. In addition, the August 1999 rating decision stated that “in December 1990 [the appellant] was reported to have gone ‘berserk’ and to have made superficial lacerations to his wrists.” R. at 260. In his brief, the appellant argues that his condition has been the subject of “inconsistent diagnoses” and that “evidence in the records of the veteran’s treatment at Tripoli [sic] Army Hospital, could well contribute to a more complete picture of the circumstances surrounding the origin of [the veteranas disability.” Appellant’s Br. at 10.
In general, the appellant bears the burden of persuading the Court that the Board decision below is tainted by a prejudicial error that warrants reversing or remanding the matter for the investment of the additional time and effort that would be required by VA to produce a new decision in his case. See Overton v. Nicholson,
When an appеllant asserts that the Secretary failed to obtain relevant records, the Court looks at the available descriptions of the records to determine
Even if this were a claim for service connection, the issue of whether the appellant had an in-service disease or injury would be distinct from the issue of whether he had a current disability. See Hickson v. West,
Here, the appellant appealed an initial claim for a higher disability rating. Such an inquiry must consider a broad range of evidence because staged ratings, or separate ratings for separate periods of time based on the facts found, may be assigned. See Fenderson v. West,
Though the Court in Fenderson recognized that an initial claim for a higher rating required consideration of the evidence of record spanning a broader period of time than that considered in an increased-rating claim, the present level of disаbility remains of primary concern in an initial rating claim for a higher disability. While the Fenderson Court remanded the matter for VA to consider specific medical evidence dated within two years after the date of the veteran’s claim, it is significant that it did not require that VA obtain evidence that predated the date of the claim. See Fenderson,
Accordingly, the Court is not persuaded that the SMRs that the appellant alleges should have been obtained would be relevant to any disputed issue, even if they were obtained. In other words, even if the SMRs were obtained and indicated that the appellant displayed a symptom in service that was not observed in any of the postservice medical examinations, such records would not help his claim. He is simply not entitled to disability compensation for symptoms he experienced in service where those symptoms did not persist into the period for which he has been awarded compensation. The issue on appeal is what level of disability did the appellant experience after September 16, 1992? See Francisco, supra. To answer that question, the Board properly obtained and relied upon medical evidence from the period after September 16,1992.
Accordingly, the duty to assist is not a license for the Court to remand a matter for a fishing expedition. Cf. Gobber,
Although our dissenting colleague asserts this decision is contrary to established caselaw, Fenderson v. West,
To the extent that our dissenting colleague argues that the records are necessary for the Secretary to perform his general duty to view the appellant’s condition “in relation to its history,” he offers no theory as to how prejudicial error has occurred here. See Conway v. Principi,
In summary, the claim on review is for a higher disability rating based on the symptoms experienced by the appellant after September 16, 1992, not for a different diagnosis or a more complete picture of the circumstances surrounding the origin of his disability; the record contains substantial direct evidence of the level of the appellant’s disability during the time in question as well a detailed and contemporaneous SMR prepared by the same physician who treated the appellant during his in-service hospitalization; and the alleged SMRs at issue could be no better than circumstantial evidence as they predate the period in dispute by well over a year. Hence, the Court cannot conclude that the essential fairness of the Board decision was affected when the alleged SMRs predate the period at issue and the Board had copious direct evidence of the symptoms experienced by the appellant after September 16,1992.
B. Adequacy of the Medical Examinations
The appellant also argues VA violated its duty to assist by failing to conduct an adequate medical examination. Br. at 8. The Secretary is required to provide a medical opinion when such an opinion is necessary to make a decision on the claim. See 38 U.S.C. § 5103A(d). Such medical opinions must be “accurate and fully descriptive, with emphasis upon the limitation of activity imposed by the disabling condition.” See 38 C.F.R. § 4.1 (2006). An opiniоn is adequate where it is based upon consideration of the veteran’s prior medical history and examinations and also describes the disability in sufficient detail so that the Board’s “evaluation of the claimed disability will be a fully informed one.” Ardison v. Brown,
The appellant specifically argues that, pursuant to Friscia v. Brown,
The regulations impose specific duties on medical examiners and rating specialists. The medical examiner provides a disability evaluation and the rating specialist interprets medical reports in order to match the rating with the disability. Title 38, § 4.10 of the Code of Federal Regulations describes the responsibilities of a medical examiner in the veterans benefits system:
The basis of disability evaluations is the ability of the body as a whole, or of the psyche, ... to function under the ordinary conditions of daily life including employment.... This imposes upon the medical examiner the responsibility of furnishing ... full description of the effects of disability upon the person’s ordinary activity. In this сonnection, it will be remembered that a person may be too disabled to engage in employment although he or she is up and about and fairly comfortable at home or upon limited activity.
38 C.F.R. § 4.10 (2006). In addition, “[f]or the application of this schedule, accurate and fully descriptive medical examinations are required, with emphasis upon the limitation of activity imposed by the disabling condition.” 38 C.F.R. § 4.1 (2006).
How those disabilities translate into a potentially compensable disability is in the sphere of responsibilities of a rating specialist. See 38 C.F.R. § 4.2 (2006). Title 38, § 4.2 of the Code of Federal Regulations describes the responsibilities of a rating specialist:
It is the responsibility of the rating specialist to interpret reports of examination in the light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability present. Each disability must be considered from the point of view of the veteran working or seeking work.
Thus, medical examiners and rating specialists, while having different responsibilities, may both be required to discuss the veteran’s ability to work as it pertains to the veteran’s ordinary activities.
The appellant’s, reliance on Friscia as contradicting this allocation of responsibilities is unavailing. The Court in Friscia limited its holding to claims where the occupational history of the claimant is relevant, concluding that the Board had a duty, where the critical issue was totаl disability based on individual unemploya-bility (TDIU), to request a medical opinion to discuss what effect the veteran’s service-connected disability had on his ability to work. Friscia,
The allocation of responsibilities between a medical examiner and a rating specialist is also discussed in Beaty v. Brown,
Neither Beaty nor Friscia changed the regulatory allocation of responsibilities between rating specialists and medical examiners. Rating specialists determine, through the rating schedule, the effect of a disability on a claimant’s ability to earn a living, but in addition to the rating specialist, a medical professional may be required to give an opinion on specific questions such as whether a claimant’s condition precludes standing for extended periods, lifting more than a certain weight, sitting for eight hours a day, or performing other specific tasks. Here though, the appellant does not seek benefits under a regulation that requires consideration of his ability to perform a particular job. Although our dissenting colleague asserts any discussion of Friscia and Beaty is obiter dictum, the appellant asserted the examinations were inadequate in light of Friscia. Br. at 12. Accordingly, the Court is compelled to discuss Friscia in cоncluding that the appellant’s reliance on that case is misplaced. Our analysis of the relevant regulations is the basis for our rejection of the appellant’s characterization of our holding in Friscia. It is not a basis for ignoring the appellant’s explicit argument that Friscia mandates a ruling that the medical examination was inadequate in this case.
The requirement that medical examiners provide a report adequate for a rating decision will frequently require them to discuss, as the examiners did here, how the disability manifests itself in the claimant’s ordinary activities, which include employment. See 38 C.F.R. § 4.10. However, it does not require medical examiners to offer opinions on the general employability of a сlaimant.
In this case, the medical examiners and clinicians have, from the outset, appropriately discussed how the appellant’s condition affected his ordinary activities, including work. Although employed (R. at
Accordingly, the appellant misses the mark in arguing that the medical examinations were inadequate because the examiners did not opine on his general ability to work. He does not argue that his symptoms were not accurately described by a medical report of record. Further, reliance on Friscia, which is properly limited to cases in which the оccupational history of the claimant is relevant, is misplaced. It was the role of rating specialists to take the medical evidence of his symptoms and limitations and determine the effect they had on his general ability to work. A contrary holding would call into question the key premise of the VA rating system: that lay rating specialists are fit to evaluate the effect of a medical disability on a veteran’s ability to work. Although our dissenting colleague asserts the discussion of Friscia and Beaty is orbiter dictum, the appellant specifically argues the medical opinions of record were inadequate pursuant to Friscia. VA must abide by relevant statutes, regulations, and caselaw. See 38 U.S.C. §§ 7261(a)(1), (a)(3)(C)-(D). A finding that VA has satisfied regulatory requirements is not dispositive of whether it has satisfied caselaw requirements. Hence, the Court concludes that the medical opinion sought by the appellant on appeal is neither necessary nor appropriate for rating his condition.
III. CONCLUSION
Based upon the foregoing, the August 16, 2004, Board decision is AFFIRMED.
Dissenting Opinion
dissenting:
Because I believe the majority misapply the law, I respectfully dissent. A primary issue in this case is whether reasonably identified service medical records regarding the hospitalization of Mr. Moore for a psychiatric problem should have been obtained by the Secretary, and, if not obtained, whether the Secretary should have
Despite the fact that the hospitalization records relate to an in-service psychiatric disability and Mr. Moore’s claim for disability compensation is based on his psychiatric disability, and despite the fact the Secretary’s own regulations require a disability to “be viewed in relation to its history” for rating purposes, see 38 C.F.R. § 4.1 (2006), and further require that the weight to be given the evidence is to be “thoroughly and conscientiously studied,” 38 C.F.R. § 4.3 (2006), the majority, on de novo review, find that the hospitalization records are not relevant and that therefore the Board did not err in not securing them. In addition to the obvious fact that these hospitalization records are generally relevant on their face as well as the fact that the majority cannot know the contents of the records that the Secretary failed to obtain and that are not available for review, the majority makes its relevancy finding in the first instance and in the absence of any decision below regarding the relevance of the documents or why they were not obtained. See Wood v. Derwinski,
In finding that the hospital rеcords are not relevant, the majority rely on (1) the fact that the Board reviewed other service medical records regarding Mr. Moore’s psychiatric condition and (2) the proposition that since Mr. Moore has been awarded service connection, the only remaining issue is the appropriate disability rating after the grant of service connection. As to the first basis, it is axiomatic that having some relevant evidence on an issue is inapposite to the issue of relevancy of other evidence on the issue. See Baritsky v. Principi,
As to the latter basis for the majority’s conclusion that the hospital records are not relevant, the majority fail to recognize that, even assuming that the degree of disability after submission of the claim (as opposed to during service) is the primary issue, the evaluation of that disability, as noted above, must nevertheless “be viewed in relation to its history” based on a thorough and conscientious study of the evidence. 38 C.F.R. §§ 4.1, 4.3. Here, a significant part of Mr. Moore’s medical history relevant to his psychiatric disability is simply missing. Thus, the probative value of that missing evidence could not have been, and was not, “thoroughly and conscientiously studied” below (or here, for that matter). See Wagner, supra. Moreover, this case involves an initial disability rating, and the majority’s premise that the specific disability level extant after submission of a claim is the primary issue in an initial disability rating decision — as it is for an increased-rating claim — is contrary to our caselaw. See Fenderson v. West,
I also write separately to note that although I agree with the majority that medical opinions addressing the impact that service-connected disabilities have on one’s work ability are necessary to a proper rating when, as here, those ratings are specifically dependent on such impact, see 38 C.F.R. §§ 4.1 and 4.10 (2006); see also 38 C.F.R. § 4.130, Diagnostic Code 9410 (2006) (each disability rating above 0% is based, in part, upon occupational impairment due to disability), and further agree that the medical examinations in this case complied with these regulatory requirements, I fail to understand why the majority reject the application of Friscia v. Brown,
Notes
. The observation of the majority that I do not offer a theory of prejudice ignores my discussion of 38 C.F.R. §§ 4.1 and 4.3, and the fact that the hospital records are likely more telling of Mr. Moore’s disability than outpatient records and therefor required to be considered pursuant to those regulations. The observation of the majority also evinces a failure to recognize that (1) the hospital records are prima facie relevant, (2) the Secretary has a statutory duty to obtain all relevant service mеdical records, (3) in the absence of the documents, prejudice is unquantifiable, and (4) under these circumstances, the Court should not speculate as to what the outcome would have been had the records been obtained. See Wagner v. United States,
. Although the majority find Fenderson inap-posite because it involved a remand for consideration of medical records back to the date of discharge, this view ignores the fact Fend-erson involved an issue over the weight given to post-service medical records that were in the file and did not involve, ■ as is the case here, missing service medical records addressing the disability for which benefits are sought. The import and relevance of Fender-son to the issue in this case is that, as stated in the text of my dissent, the Court explicitly rejected the concept underlying the majority opinion; i.e., that the current level of disability is of “primary importance” in an initial disability rating. Fenderson,