Hal H. LOCKLEAR, Appellant, v. R. James NICHOLSON, Secretary of Veterans Affairs, Appellee.
No. 04-743.
United States Court of Appeals for Veterans Claims.
Sept. 19, 2006.
20 Vet. App. 410
The majority‘s opinion will expand this Court‘s jurisdiction to review matters addressing not the merits of the appellant‘s argument, but whether a CUE motion contains specific and clear allegations. Caselaw from the majority of other circuits demonstrates that those courts refrain from addressing this type of matter to foreclose the possibility of piecemeal litigation. This decision has the potential to increase the time it will take for an appellant to receive a final judgment in his or her case. Even if this Court were to find that the Board erred and the appellant had plead with specificity, the Court could not adjudicate the claim; at most, it could remand the case back to the Board for the Board to address the issues in the first instance. Alternatively, if we were to affirm the Board‘s holding, that determination has no preclusive effect; by statute, the appellant can always amend and refile the motion with the Board. See
Tim S. McClain, General Counsel; R. Randall Campbell, Assistant General Counsel; and Richard Mayerick, Deputy Assistant General Counsel, all of Washington, D.C., were on the brief for the appellee.
Before HAGEL, LANCE, and SCHOELEN, Judges.
On Appeal from the Board of Veterans’ Appeals
HAGEL, Judge:
Hal H. Locklear appeals through counsel an April 12, 2004, Board of Veterans’ Appeals (Board) decision wherein the Board denied service connection for a chest disability. The Court has jurisdiction pursuant to
I. BACKGROUND
Mr. Locklear served on active duty in the U.S. Army from October 1970 to May 1971. Record (R.) at 17. In May 2001, he submitted an application for compensation for severe chest pains caused by “overexposure to CS gas.”1 R. 58. The following month, in order to comply with its duty to notify under the Veterans Claims Assistance Act of 2000,
In September 2001, the regional office denied service connection for chest pains. Mr. Locklear appealed that decision to the Board, resulting in the April 2004 Board decision, which is the subject of this appeal.
On appeal, Mr. Locklear raises four arguments. First, he asserts that the Board failed to consider all evidence and potential issues. He contends tersely that the Board “should have considered at least a claim for service connection for reflux disease” because such a claim was presented by the evidence before the Board. Appellant‘s Brief (Br.) at 5. Next, he contends that the Board failed to offer adequate reasons or bases for rejecting his account of pain. Id. at 5-7. His third argument is that VA did not provide adequate notice pursuant to
In response to Mr. Locklear‘s first argument, the Secretary asserts that the Board
We will begin our analysis with a discussion of Mr. Locklear‘s argument regarding the duty to notify, the basis of Mr. Locklear‘s third argument. We will then address his first, second, and fourth arguments in that order.
II. ANALYSIS
A. Compliance with the Duty to Notify
1. Standard of Review
Whether a notice letter satisfies “the statutory and regulatory notification requirements [is] a substantially factual determination of the type that should [be] made by the agency in the first instance.” Mayfield v. Nicholson, 444 F.3d 1328, 1335 (Fed.Cir.2006). It follows that Board findings regarding VA‘s compliance with the duty to notify are findings of fact that the Court reviews under the clearly erroneous standard. See
2. Review of the Board‘s Findings Regarding the Duty to Notify
Here, the Board outlined the requirements of the duty to notify and then concluded that, “[i]n a letter dated in June 2001, VA notified the veteran of the evidence needed to substantiate the claim and offered to assist him in obtaining any relevant evidence.” R. at 3. Next, the Board concluded that “[t]he letter gave notice of what evidence the veteran needed to submit and what evidence VA would try to obtain and notified the veteran of the evidence that the [regional office] had obtained and considered.” Id. For the reasons stated below, upon review of the June 2001 letter and the Board‘s findings with respect to it, we cannot conclude that the Board erred in finding that that letter satisfied VA‘s duty to notify.
The Veterans Claims Assistance Act of 2000, enacted on November 9, 2000, was designed by Congress in order to overcome a string of cases, culminating in Morton v. West, 12 Vet.App. 477, 486 (1999), that ultimately impaired VA‘s ability to provide claimants with assistance in obtaining information and evidence in connection with their claims for benefits. See
The duty to notify was designed by Congress with one purpose in mind—to facilitate and maximize the collaborative process that is the cornerstone of the VA claims process. To achieve its purpose, Congress imposed upon VA three very specific statutory notice requirements, which the Court has labeled “notice elements.”2 Pelegrini v. Principi, 18 Vet.App. 112, 118 (2004). The first statutory notice element requires that VA “notify the claimant and the claimant‘s representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim.”
In this case, based on the arguments presented to us by Mr. Locklear, we cannot find that the Board erred in concluding that the June 2001 letter satisfied section 5103(a). However, by this finding, we do not mean to suggest that that letter is free from imperfection. Nevertheless, because Mr. Locklear has not asserted any notice errors other than the one described below, see infra at 415, we will limit our analysis to the argument actually raised to us.
Regarding the first notice element, the letter apprised Mr. Locklear not only of the legal requirements for obtaining an award of service connection, but, more importantly, of some of the kinds of information and evidence necessary to satisfy those requirements. See R. at 153-54. Regarding the second and third notice elements, the letter is particularly well crafted, providing Mr. Locklear with a detailed chart listing all of the evidence that VA had received, from whom it had received that evidence, and the period of time to which that evidence pertained. See R. at 154-55. That chart has been reproduced below in its entirety.
What We Already Have Received
We have already received the following evidence in support of your claim:
| EVIDENCE | RECEIVED FROM | FOR PERIOD (dates) |
|---|---|---|
| Medical treatment records | VA Medical Center, Fayetteville, North Carolina | October 8, 1999 through April 9, 2001 |
| Statement | You | Dated May 4, 2001 and date unknown |
| Lay statement | Doris Locklear | Date unknown |
| Medical statement | Dr. Lowry | Dated April 9, 2001 |
| Medical treatment records | First Health Family Care Center | August 4, 1999 through April 3, 2001 |
| Medical treatment records | S.E. Regional Medical Center | May 23, 1993 through April 21, 2001 |
| Medical treatment records | Duke University Medical Center | Dated December 3, 1986 |
| Medical treatment records | S.E. Medical Practice | August 4, 1998 through January 24, 2000 |
| Medical treatment records | St. Eugene Community Hospital | November 5, 1986 through October 19, 2000 |
| Medical treatment records | Medical Specialists | March 31, 1994 through March 19, 2001 |
Under a heading entitled “What We Are Doing,” in the letter VA then informed Mr. Locklear that VA was in the process of seeking service medical records from the Army. R. at 155. Finally, under a heading entitled “What VA Needs From You,” Mr. Locklear was told in great detail of the specific types of evidence that VA wanted him to submit. R. at 155-56. The letter also clearly informed Mr. Locklear that, although VA would assist him in obtaining certain records, the ultimate responsibility for obtaining them rested with him.
Mr. Locklear‘s argument with respect to the duty to notify amounts to a contention that the statute requires VA to analyze the evidence already in its possession and inform the claimant that the evidence is insufficient to support an award and that other evidence is required in order for the claimant to prevail. In other words, he argues that, as part of its duty to notify, VA is required to provide him with a predecisional adjudication.3 That argument must fail.
To begin with, the duty to notify deals with evidence gathering, not the analysis of already gathered evidence. See Dingess v. Nicholson, 19 Vet.App. 473, 490 (2006) (“Within the VA adjudicatory scheme, section 5103(a) is focused on notice that is required to be provided to a claimant upon receipt of a complete or substantially complete application for benefits and prior to an initial adjudication.“). In addition, section 5103(a) commands that the statutory notice obligations be complied with “[u]pon receipt of a complete or substantially complete application” for VA benefits.
Finally, it is important to realize, as the Court pointed out in Dingess, and as the Secretary argues in his brief, that the approach advocated by Mr. Locklear was considered and rejected by the Secretary prior to the promulgation of section 5103(a)‘s implementing regulation,
Nevertheless, it is noteworthy that section 5103(a) speaks to notifying a claimant of information and evidence “not previously provided to the Secretary.” Although this certainly does not mandate a “predecisional decision,” it indicates that some cognitive review of the claim must be made prior to providing the notice and that a generalized or boilerplate notice letter might not suffice in some cases. See Kent v. Nicholson, 20 Vet.App. 1, 10 (2006) (holding, in the context of a claim to reopen, that the Secretary is required to “look at the bases for the denial in the prior decision and to respond with a notice letter that describes what evidence would be necessary to substantiate that element or elements required to establish service connection that were found insufficient in the previous denial“).
B. Claim for Service Connection for Reflux Disease
Mr. Locklear‘s argument that the Board erred in failing to consider a claim for service connection for reflux disease is far too terse to warrant detailed analysis by the Court.4 See
C. Board‘s Failure to Provide Adequate Reasons or Bases for Rejecting Mr. Locklear‘s Account of Pain
The Board, in rendering its decision, is required to provide a written statement of the reasons or bases for its “findings and conclusions[ ] on all material issues of fact and law presented on the record.”
Mr. Locklear is incorrect in his assertion that the Board failed to reject evidence that he suffers from “symptoms of pain.” Appellant‘s Br. at 7. In fact, the Board acknowledged Mr. Locklear‘s pain, but observed “that a symptom of pain is not a disability” and that “the medical evidence of record does not reflect a diagnosis of an underlying disability which causes the complaints of chest pain.” R. at 12. Mr. Locklear contends that the Board erred because his pain can be attributed to “scarring on the lungs and pulmonary impairment.” Appellant‘s Br. at 6. That argument is unavailing, particularly because, later in its decision, the Board acknowledged that Mr. Locklear suffers from a lung condition. See R. at 12 (“[T]he medical evidence shows that the veteran has findings of chronic scarring of the lungs and a mild restrictive pattern upon pulmonary function testing.“). The Board then concluded that “[t]he veteran has not submitted any competent medical evidence relating these pulmonary findings to his period of service” and that “[t]here is no competent evidence of record which associates these findings to service.” R. at 12. As the Secretary argues in his brief, whether or not Mr. Locklear suffers from pain, “[t]he absence of a nexus was fatal to th[e] claim.” Secretary‘s Br. at 9; see Duenas v. Principi, 18 Vet.App. 512, 519 (2004) (noting that service connection for VA disability compensation purposes requires, among other things, medical evidence of a nexus between the in-service injury or disease and the current disability).
D. Duty To Provide a Medical Examination or Opinion
Mr. Locklear contends that the Board erred by failing to require VA to provide him with a medical examination. Pursuant to
(A) Contains competent lay or medical evidence of a current diagnosed disability or persistent or recurrent symptoms of disability;
(B) Establishes that the veteran suffered an event, injury or disease in service, or has a disease or symptoms of a disease listed in
§ 3.309 ,§ 3.313 ,§ 3.316 , and§ 3.317 manifesting during an applicable presumptive period provided the claimant has the required service or triggering event to qualify for that presumption; and(C) Indicates that the claimed disability or symptoms may be associated with the established event, injury, or disease in service or with another service-connected disability.
See
The Court in Duenas, made clear that when the Board considers whether a medical examination or opinion is necessary under section 5103A(d) and
The Board‘s entire analysis concerning Mr. Locklear‘s entitlement to a VA medical examination or opinion was as follows: “The Veteran was not afforded a VA medical examination. However, the Board finds that such examination was not necessary since there was no competent evidence of a chest disability or symptoms in service and there is no competent evidence of an association between the claimed chest disability and service.” R. at 4.
Later in its decision, the Board acknowledged “that the medical evidence shows that the veteran has findings of chronic scarring of the lungs and a mild restrictive pattern upon pulmonary function testing.” R. at 12. Thus, the Board conceded that Mr. Locklear had presented competent evidence of a current disability or persistent or recurrent symptoms of a disability.6 See
However, regarding the third prong of the regulation, the Board failed to explain why Mr. Locklear‘s lung scarring and symptoms of chest pain could not have been associated with his in-service exposure to tear gas. See Duenas, 18 Vet.App. 512, 516-18 (2004).
In McLendon v. Nicholson, the Court observed that the third prong of
Thus, although Mr. Locklear‘s other arguments are unavailing, in light of the aforementioned reasons-or-bases error, the Court will vacate the April 2004 Board decision and remand the matter for readjudication. On remand, the Board will afford Mr. Locklear a VA medical examination, obtain a medical opinion from a qualified expert, or explain with adequate reasons or bases why, in light of McLendon, Duenas, and the language of the statute and regulation, Mr. Locklear is not entitled to such assistance on the part of VA.
III. CONCLUSION
On consideration of the foregoing, the Court VACATES the April 12, 2004, Board decision and REMANDS the matter for readjudication.
*Hal H. LOCKLEAR, Appellant,
v.
R. James NICHOLSON, Secretary of Veterans Affairs, Appellee.
Leonard T. SUTTON, Appellant,
v.
R. James NICHOLSON, Secretary of Veterans Affairs, Appellee.