Robert L. Trafter v. Eric K. Shinseki

inadequate to evaluate a ing schedule is disability or mul- service-connected

single disabilities, certain

tiple service-connected approve are authorized to an

VA officials

extraschedular evaluation that considers complete disability picture.

the veteran’s assessing

Such an evaluation involve exceptional impact or unusual of each individually,

service-connected

but, according regulation, may to the it involve the collective in- considering

also dis- multiple

teraction of service-connected respectfully

abilities. We therefore dis- majority’s

sent from the affirmance of

Secretary’s interpretation, restrictive contrary

which is to the clear and unam-

biguous regulatory language. TRAFTER, Appellant,

Robert L. SHINSEKI, Secretary K.

Eric Affairs, Appellee.

Veterans

No. 10-3605. Appeals

United States Court

for Veterans Claims.

Argued Jan. 2013. April

Decided City, Curry,

Daniel G. of Kansas Mis- souri, the appellant. Greenstein, Appellate Attorney, B.

Jesse Gunn, Counsel, with whom Will A. General Campbell, R. Randall Assistant General Counsel, Hall, Deputy Assis- and Nisha C. brief, Counsel, were all tant General on D.C., Washington, appellee. for the MOORMAN, HAGEL, Before SCHOELEN, Judges.

MOORMAN, Judge: L. Trafter appeals, Robert Veteran 5, 2010, counsel, an October Board through (Board) Appeals of Veterans’ decision compensation denied entitlement to § 1151 for a mental disorder allegedly occurring due to treatment (R.) facility. See Record at 3-17. VA decide, in was convened to panel This compen- the context of a 38 U.S.C. claim, legal correct sation whether determining pro- if must standard for a medical examination or vide 5103A(a) or 38 provided under 38 U.S.C. 5103A(d). The holds that Court 5103A(d) of section to sec- application VA’s disability compensation claims is tion 1151 statutory language, with the keeping and the prior caselaw from this Court Appeals for the United States Court (“Federal Circuit”), and Federal Circuit However, history. because the legislative 5013A(d)(2) misinterpreted a section Board 5103A(a) factor, appellant, appellant argues to the detriment of the required. applied should have been to his remand claim be-

cause a section 1151 claim does not seek “disability compensation,” required I. BACKGROUND 5103A(d). the application of section He presented two theories of appellant that, 5103A(a), according asserts to section under section entitlement opin- VA must him with a medical timely Board: VA failed to 1151 to the necessary ion because it is to decide his cancer, treat his breast diagnose and possibility claim and has a reasonable development aggrava which led to the substantiating appellant his claim. The disability; tion of his mental VA mis improperly also contends that the Board disorder, having bipolar him as diagnosed judgment substituted its own medical which, turn, aggravated caused or his obtaining opinion, provid- lieu of a medical MR, R. at see M21-1 disability. mental inadequate ed an statement of reasons or (“En G(34)(b) IV, ii, ch. sec. pt. Subpart determination, bases for its and failed to under 38 titlement to obtain private relevant medical records. be based on acts of omission [§ ] commission.”). as well as acts of In its The Secretary argues applica- 5, 2010, decision, 5103A(d) recog October the Board tion of section to a claim for provid nized “that assistance shall include disability compensation under section 1151 obtaining a medical examination or ing is reasonable in the absence clear Con- opinion medical when such an examination gressional intent part as to which of sec- opinion necessary or is to make a decision argues tion 5103A should He apply. also (citing on the claim.” R. at 6 38 required that VA is not a medi- 5103A(d) Nicholson, and McLendon v. opinion cal because “the record is absent (2006)). However, 79 the sufficient evidence to establish fault on the VA, Board found that because the record con part suggest or an association be- “competent any [appel- tained no medical evidence tween VA medical care [the] a con alleged that additional resulted as lant received and his current men- careless[ness], condition,” sequence negligence, duty no tal VA has VA, part event private other fault on the an irrelevant cancer treatment obtain foreseeable,” reasonably appel not and the the failed to identi- appellant records that (Sec.) 15, lay testimony “satisfy Secretary’s lant’s did not the Br. at fy. for a VA or ex obtaining criteria which of sec determining Because amination,” required pro was not VA to a section 1151 com applies tion 5103A vide a medical examination or resolving claim critical in the pensation this case. Id. key appeal, issues raised in this the Court begins by reviewing the statutes involved appeal, appellant On asserts that VA Bradley de novo. See 38 U.S.C. have him with a provided should medical (2008). Peake, 5103A(d), opinion under section because competent medical evidence and “both the II. STATUTORY ANALYSIS lay ‘indi- testimony sufficient to

[his] —was disability (depres- an When this Court reviews statutes cate’ that additional sion) administers, initially resulted from VA medical treat- we are con (Br.) has direct Appellant’s (App.) Congress ment.” Brief at 6. fronted with whether alternative, at issue. response ly spoken precise question In the and in to the Council, briefing, the See Chevron v. Nat’l Res. request Court’s additional Def. qualifying disability or Inc., ing additional 104 S.Ct. 467 U.S. (1984). not if or death was The matter of statu death L.Ed.2d if the intent is at an end the veteran’s willful miscon- tory construction the result of expressed. unambiguously require- other Congress [setting forth duct However, if the statutes Id. at 842-43. ments]. to the ambiguous respect with are silent or Turkette, 1151(a); see U.S. issue, question becomes the second specific 576, 580, 101 S.Ct. U.S. interpretation is based on

whether VA’s (1981) (“In determining the L.Ed.2d of the statutes. permissible construction statute, to its of a we look first scope complex veter id. at 843. Within See language of section language.”). plain scheme, interpretation benefits if VA’s ans 1151(a) possible two unequivocally lists reasonable, are the courts of the statutes is provi- under the types of benefits available judg substituting from their precluded for an additional sion: VA, unless the ment for that of dependency qualifying authority; the Secre exceeded his has (DIC) for indemnity compensation clearly wrong; or tary’s action was a veteran. See 38 qualifying death of is unfavorable to Secretary’s interpretation 101(13) (“The ‘compensa- term veterans, with the such that it conflicts monthly made payment tion’ means veterans underpinning VA’s beneficence Secretary to a veteran because of ser- scheme, and a more liberal con benefits ”). disability, ... vice-connected a harmo is available that affords struction Although language of section 1151 interplay provisions. between nious compen explicitly state does 115, 117-18, Gardner, 513 Brown v. U.S. chapter” is dis sation awarded “under this (1994); L.Ed.2d 462 115 S.Ct. sense ability compensation, a common Council, Inc., 421 Train v. Nat’l Res. Def. for an reading dictates that 60, 87, 43 L.Ed.2d 731 U.S. S.Ct. disability under a Shimer, 374, 382, qualifying additional (1975); v. 367 U.S. U.S. per for (1961); statutory section titled “Benefits 1554, 6 L.Ed.2d 908 Fish 81 S.Ct. or vocational by sons disabled treatment Drydock Repair Corp., & gold v. Sullivan rehabilitation,” 1105, chapter 275, 285, which is under 66 90 L.Ed. 328 U.S. S.Ct. (1946). for “Compensation titled Service-Connect 1230 Death,” Disability properly is con ed §

A. 38 1151 U.S.C. disability compensation, to be sidered compen a hitherto unidentified opposed to application the correct of To decide § Food 1151, type. sation See 38 U.S.C. by we start section 5013A to section Admin, & Drug& v. Brown Williamson language of 38 U.S.C. reviewing 1151(a) 120, 132, 120 S.Ct. type Corp., § benefit Tobacco 529 U.S. to determine the (2000) (“It 1151(a) 1291, 121 is ‘a Section states: 146 L.Ed.2d issue. statutory canon of construc fundamental chapter and

Compensation under this tion that the words of a statute must be indemnity compensa dependency and with a view to in their context and read 13 of this title shall chapter tion under statutory place their in the overall qualifying be for a additional awarded Alloyd v. (quoting scheme.’” a vet disability qualifying or a death of Gustafson 1061, Co., 561, 569, 115 131 513 U.S. S.Ct. in the same manner as if such eran (1995))). Indeed, such a read L.Ed.2d 1 disability or death were ser additional harmonious with 38 U.S.C. ing purposes vice-connected. For this 5110(c), that effec- section, explains which disability qualify- “[t]he or death is a

273 disability compensation tive of an award of com- claim for pursuant date 1151”); to 38 by Ingram reason of section 1151 of this U.S.C. v. Nichol pensation son, 232, (2007) (ex 21 Vet.App. 247-48 injury ag- be the date such title shall plaining that in regard to a 1151 claim if an gravation application was suffered nothing August “there was 1986 RO year therefor is received within one from office) (regional added). [ decision or cover letter id.; ] See (emphasis such date” Ingram informed Mr. of anything that Shinseki, Fishgold, supra; Gaston v. 605 might to a disability compensation relate (Fed.Cir.2010) 979, (noting F.3d 983 n. 2 claim”); Kilpatrick Principi, v. 16 Vet. 5110(c) specifies that 38 the “ef- U.S.C. (2002) 1, 1151(a) App. (“Although 4 of disability compensation fective date provides payment for the of compensation § 1151”(emphasis add- under (disability compensation chapter ed)). dependency indemnity compensa Further, reading a straightforward such 13) chapter tion under to the class of bene with the keeping pur well-established appellant belongs, ficiaries which the Although of section 1151. the lan pose parties forgotten seem to have has been modified guage section 1151 ”), appellant is .... seeking benefits aff'd years, underlying purpose over the its (Fed.Cir.2003); 327 F.3d 1375 Cottle v. providing compensation to veterans dis (2001) 329, Principi, training abled as a result of or treatment (“Section 1151 states that a veteran who injuries, significantly for their has not injured pursuit was as the result of ‘the changed. Kilpatrick Principi, v. rehabilitation,’ a course of vocational shall (Fed.Cir.2003); F.3d Bartlett v. be awarded compensation.”); Shinseki, (2011); 24 Vet.App. 330-331 West, 12 Vet.App. Jones v. Gardner, see also 513 U.S. at n. (explaining that the Board denied a claim (“Section typical S.Ct. 552 1151 is invoked alia, grounded as not well “inter a claim ly benefits to veterans for non- compensation pursuant [VA] disabilities, although service related it is to 38 1151 for of a fall residuals terms.”); not so limited its Mansfield hospital.”); Cogburn at VA see also Peake, (Fed.Cir.2008) 525 F.3d Shinseki, 212-13 (“In terms, general provides section 1151 Ingram, (quoting finding Vet. negli that veterans disabled as a result of “ 247-48, App. at ‘he had no reason to gent treatment at medical facilities disability compensation know how a claim compensated shall be if their as disabilities might based on section 1151 have been service-connected.”); are Alleman v. Prin ”); by regional decided office’ v. Green (Fed.Cir.2003) 1368, cipi, 349 F.3d 1370 (1997) (sum Brown, 111, 10 118 (“Section 1151 does not accord service- marizing the Federal Circuit’s decision in disability connected status to a veteran’s Brown, 1456, v. 5 F.3d Gardner death, provides but rather that in cer (Fed.Cir.1993) by regulation as “VA could not disability tain instances a veteran’s disability compen an entitlement to add to will if death be treated ‘as it were service- § sation established under purposes.”). connected for certain ”); Pons, 575, .... Lorillard v. 434 U.S. cf. Hence, routinely 866, this Court has referred 98 S.Ct. 55 L.Ed.2d to section 1151 claims compensation as of an (“Congress presumed to be aware disability claims. Bart compensation judicial interpretation See administrative or [Wjhere lett, 24 Vet.App. (summarizing Congress at 329 a statute.... ... adopts incorporating decision one that “denied his a new law sections of Board as “disability compensa- defines law, normally can be The VA Congress prior by monthly payment as “a made tion” knowledge have had presumed Affairs to a Department Veterans incorporated to the interpretation given veteran because of service-connected omitted). ”) (citations ... law disability .... if the veteran is disabled similarly re- Circuit has Federal injury or personal as the result of a under section compensation ferred a con- (including aggravation disease Gaston, “disability compensation.” as service) while existing prior dition F.3d Seymour Principi, supra; injury service if the or disease active (Fed.Cir.2001) (“Congress has in line of aggravated was incurred or disability provided that com- specifically (b)(1). Thus, 3.4(a), duty.” 38 C.F.R. 1151 is ‘awarded under section pensation conceded, government payments as the disability manner as if such the same are to a widow or of a veteran widower ”); ... were service connected.’ see also “disability compensation.” not Shinseki, 568 F.3d Adams Wood, 1349, 3; 520 F.3d at n. see DeLaRo (Fed.Cir.2009) (explaining Ingram that in (Fed. Peake, sa v. 515 F.3d 1321-22 explanation of its re- regional “the office’s 5103A(a) Cir.2008) ap (explaining Ingram’s Mr. non-service-con- jection of under a law adminis plies any “benefit pension nection claim for benefits did not Secretary” and thus encom tered that it give Ingram Mr. reasonable notice 5103A(d) claims, passes DIC but rejecting was his claim for also disability com only applies to for “claim[s] 1151”). under section not include pensation,” which does DIC claims.) scant, Although legislative the available The Federal Circuit’s dictum Wood interpretation

history supports the Courts’ Chapter in the of a occurred context “disability compensation” the term any case where reference to section DIC including section unnecessary have been and the 1151 would (June 1994) 103-280 S.Rep. claims. See in- resulting language obviously was (“Section 1151 of title United States apply tended to outside of the narrow con- Code, governs claims for com Wood, supra; text of DIC claims. See pensation dependency indemnity DeLaRosa, 515 F.3d at 1322 n. 1. In both 87-2042 compensation....”); S.Rep. DeLaRosa, Wood and the Federal Circuit 1962) (“It (Sept. possible today DIC, discussing only was which is listed injured judgment an veteran to secure compensation within sec- separately from under the Federal Tort Claims Act and 1151(a) (“Compen- tion 1151. 38 U.S.C. disability compensa thereafter be awarded chapter dependency under this sation tion from the Administration for Veterans’ indemnity compensation chap- injury.”). the same ”). ... ter 13 of this title shall be awarded However, argues that a appellant Additionally, provided by the definition 1151 claim is not a com- Federal is constructed from two Circuit pro- claim under the definition pensation 3.4(a) § separate parts of C.F.R. Peake, (b)(1) in 520 F.3d (b)(1). 3.4(a), Wood § vided See C.F.R. (Fed.Cir.2008). Wood, (2012). 3.4(a) n. In the Section defines the term 3.4(b)(1) explained govern- Federal explains § Circuit “compensation,” while ment had conceded that a DIC claim was that “basic entitlement” to com- claim, per- has a disability compensation pensation not a exists when veteran injury or disease incurred while noted: sonal § separate provisions 38 U.S.C. 1110 tween of title Compare active service. entitlement) (Basic § 1151 with 38 U.S.C. the chapter of United States Code. (Benefits by treat persons Turkette, for disabled Therefore, supra. the Court rehabilitation). Thus, ment or vocational compensation holds that a section 1151 stated, the Federal although explicitly claim disability compensa- is considered a was, most, defining at “basic enti Circuit purposes determining tion claim for the of disability compensation” only. tlement what of section applies. 5103A Indeed, and DeLaRo subsequent Wood sa, the Federal Circuit took no issue with § B. 38 U.S.C. 5103A 3.154, which, § of 38 language C.F.R. 5103A(d), section Under titled may accept since has stated: “VA as “Medical compensation examinations for for a claim benefits under (d)(1) claims,” part clarifies that “[i]n any § § 3.361 communication in 1151 and case of a claim disability compensa for

writing indicating an intent to file a claim tion, the provided by assistance the Secre disability compensation dependency for (a) tary pro under subsection shall include indemnity compensation viding a medical obtaining examination or governing laws entitlement to veterans’ ” opinion a medical when an such examina (em for .... benefits death tion or is necessary to make a added). (2012); phasis 38 C.F.R. 3.154 decision on the claim.” Thus, Mansfield, see 525 F.3d at 1318. 5103A(d)(l) added). Thus, (emphasis the Federal definition of basic Circuit’s 5103A(d)(l) section applies to disability compensation entitlement disability compensation claim. See 38 of a the context DIC claim should not be 1151, 5103A(d)(l), 5110(c); §§ see implying construed as that section 1151 Traynor Turnage, also 485 U.S. compensation “disability compensa is not 545-46, 108 S.Ct. 99 L.Ed.2d 618 tion.” (1988) (assuming that Congress was aware sum, In if language even of “willful interpretation miscon explicitly section 1151 does not define using duct” when it enacted new law type compensation what is awarded for Congress term “and that intended that the qualifying disability, an additional meaning pur term receive the same for Secretary’s construction that a section poses of that statute as it had received for claim, opposed as to a purposes of other veterans’ benefits stat claim, section 1151 DIC is considered a utes”). disability compensation claim for within However, the application of section only the veterans benefits schema is not 5103A(d)(2) reasonable, compensa- in to a section 1151 only but also the rational For terpretation harmony easily that allows for be- tion claim is not so addressed.2 5103A(d)(2) Regarding appellant’s contention that 2. 38 U.S.C. states full: clear, holding "the basic of Wood is and bind- shall treat an examination or 5103A(d), ing: 'disability As used in [s]ection being necessary a deci- to make compensation’ only refers to claims for ser- purposes paragraph sion on a claim for 6), (App. Resp. vice-connection” the dictum if the evidence of record before suggest in Wood does not that the Federal Secretary, taking all in- into consideration Circuit found that section 1151 (in- lay formation and or medical evidence is not to be considered “as if” it were service- claimant)— cluding statements of the purposes applying the term connected (A) competent contains evidence "disability compensation.” See 38 U.S.C. 1151(a); Wood, per- supra. disability, claimant has a current claim. 510SA(d)(2)(B) disability compensation instance, requires section section 6,3, 9. Resp. Sec. a dis that “indicates” of record evidence may be associated ability symptoms or appellant that the To the extent service,” naval, or air military, with “active 5103A(d)(l) be could that section suggests claim, but, in a section isolation, plain language the applied case, symptoms or in this the as 5103A(d)(2) in such an disproves section with active necessarily associated are not Secretary stating that terpretation, “[t]he 1151(a), §§ duty service. See or as treat an examination shall Gardner, 5103A(d)(2)(B); at 117 513 U.S. on a necessary to make decision being 1, section 1151 Although (1) n. 115 S.Ct. if the paragraph purposes claim for in the awarded compensation is to be listing ...” fac of record before evidence qualify if’ an additional same manner “as a medical be met before tors that must connected, nei ing disability were service in a required examination or how specifies 1151 nor 5103A claim. 38 U.S.C. disability compensation ther section 5103A(d)(2) 5103A(d); Principi, under Wells v. the factors section see (Fed.Cir.2003) (explaining compensa F.3d apply to a section should the presented support that no basis was symp the or tion claim which argument contention at oral appellant’s directly related to the claim toms are not 5103A(d) an obli triggers that section duty active service. See 38 U.S.C. ant’s Secretary to a medi gation for the Alleman, 1151, 5103A; supra. §§ opinion regardless or cal examination that, the appellant argues because 5103A(d), provisions under specific 5103A(d)(2) of section “is silent language Secretary’s obligation). which limit what other kinds of evidence regarding suggestion Additionally, appellant’s opinion necessary might make a medical interpret section Court claims, like Section 1151 other kinds of 5103A(d)(l) require having as same 5103A(a)’s claims,” descrip- that “[s]ection 5103A(a) in a under ments as those section duty engages— of when the to assist tion claim, would section 1151 ‘necessary the evidence is to sub- when 5103A(d)(l) redundant and make section the claimant’s claim’ and when stantiate 5103A(d)(2) Such an superfluous. section possibility exists’ that such ‘reasonable violates the well-established interpretation “ fill the claimant —must help would aid that a ‘statute should interpretive canon July Response to the Court’s App. void.” given that effect is to all be construed so 18, 2012, Secretary (Resp.) Order at 6. The inop will be provisions, its so that no that, although language counters insignifi superfluous, void or erative ” 5103A(d)(2)(B) applies specifically U.S., 303, 314, section Corley v. 556 U.S. cant.’ entitlement to service-connection to basic 173 L.Ed.2d S.Ct. claims, policy Winn, that it is VA’s reasonable (quoting Hibbs v. 542 U.S. (2004)); factors 159 L.Ed.2d 172 look to 124 S.Ct. 5103A(d)(2) Shinseki, determining when guidance see Homick plain “the (explaining that necessary in a whether an examination is (C) medical symptoms does not contain sufficient recurrent of disabili- sistent or ty; de- to make a evidence for (B) symp- indicates that the cision on the claim. with the claim- toms be associated service; naval, military, air ant’s active but

277 Interpreting must the Factors meaning any statutory provision of C. Under 5103A(d)(2) Section statutory light in of the be determined should as a whole” and the Court scheme Secretary The concedes that “38 C.F.R. statutory in the same interpret provisions 3.159(c)(4) is the implementing regula a har- subchapter producing of title 38 as 5103A(d), tion for 38 U.S.C. but notes whole); Cottle, 14 at 334 Vet.App. monious in regard applicability that to the of the (each of a statute should be part section or standards set-forth both a Veter to[sic] every with other of section construed an’s claim for benefits under sec ]3.159(c)(4) 1151, (citing similarly a harmonious whole tion is si produce [§ 6, Resp. lent.” Sec. at 1 West, 352, (citing n. Vet.App. v. 12 354 Meeks Shinseki, v. Sharp 23 275 (1999))). 5103A(d)(l) Thus, section must (2009), proposition for the that 5103A(d)(2). “[defer conjunction with be read regulation ence to the no offers addi 5103A(d)(l) to a applies Because section clarity interpretive tional to the issue compensation section 1151 claim and sec inappropriate.”). Although would be 5103A(d)(l) read in iso tion cannot be Secretary prescribed regulation has not lation, Secretary agrees the Court with the pertaining application of section it useful and consistent with the is 5103A(d) compensation to section 1151 in treatment of other claims to claims, the Court will review his current 5103A(d)(2) the factors terpret interpretations provide guidance and on broadly to determine when a medical ex 5103A(d)(2) interpreting the section factors in a provided amination or must be a purposeful effectuate remand. See 38 section 1151 claim. Ze 5103A(e); Corp., Zenith Radio Cf. States, Corp. nith Radio v. 437 United (“longstand at 98 S.Ct. 2441 U.S. 443, 450, U.S. S.Ct. 57 L.Ed.2d ing interpre and consistent administrative (1978) (“Moreover, an weight.”); administrative entitled to tation is considerable Shinseki, Quirin ‘practice peculiar weight when it in has (2009) (noting arguments that additional contemporaneous volves construction of provide guidance to a be addressed to [persons] charged a statute with the tribunal). lower responsibility setting machinery its motion, efficient making parts 5103A(d)(2)(A) work i. Factor 5103A(d)(2)(C) ly smoothly they yet while are untried Factor ” Nitrogen new.’ (quoting Norwegian factor un According to the first States, Products 288 U.S. Co. United 5103A(d)(2) (factor A), a der section medi 294, 315, L.Ed. 796 53 S.Ct. necessary to cal examination or is (1933))). Thus, question becomes: In make a decision on a claim if the evidence claim, a section 1151 what record, along requirements with the un interpretations factors under factors, competent der the other “contains 5103A(d)(2) permissible? are See Chev that the claimant has a current evidence ron, 467 U.S. at 104 S.Ct. see disability, persistent symp or recurrent Corp., Brown & Williamson Tobacco toms ...” (“[I]f Congress 5103A(d)(2)(A). U.S. S.Ct. asserts question, specifically has not addressed of a 1151 com- that in the context agen claim, reviewing respect court must inter- pensation factor A should be as it it in a cy’s long preted construction of a statute so in the same manner as disability compensation non-section permissible.”). mandated, with the conjunction ion is at 12-13. The Court Resp. Sec. claim. C, A if the of factors irrationality requirements with difficulty or no discerns Secretary record before the 1151 evidence of factor A to a section of application the disability symptoms the or “indicates that claim in a manner disability compensation ac- may with the claimant’s to be associated in basic entitlement to that used similar service;....” naval, 38 military, or air there is tive compensation claims—if disability 5103A(d)(2)(B). explained § As a current U.S.C. evidence of disabil- competent no above, factor B must be language the of symptoms of or recurrent ity persistent or a section 1151 interpreted broadly because medical examination or disability, then a a require does not compensation claim by statute. See is not mandated opinion 5103A(d)(2)(A). the dis- a there be an association between § Such “ac- symptoms A and the claimant’s ability of factor is or straightforward application naval, veterans, military, as it does or air service.” See favorable to tive also most Gardner, 1151(a); competing § weighing supra. the require not facts, the the assessment of but rather Secretary contends record evidence the existence of such ... “reasonably inquires whether VA competent. is whether such evidence supporting the material there is evidence Gardner, 117-18, 115 S.Ct. at See U.S. claim” when components of a section 1151 McLendon, Vet.App. at 81-82.3 assessing opinion whether a medical (factor 5103A(d)(2)(C) Specifically,

As to factor at 12. necessary. Resp. Sec. that, C), requirements taking Secretary adjudicat into account when asserts factors, claim, it mandates that a medi it is the other a ing section provided be factor B as mean interpret cal examination reasonable to Secretary disability when the record before that said ing “an indication medical evi “does not contain sufficient with care symptoms [may] be associated skill, Secretary lessness, to make decision negligence, proper dence for lack of 5103A(d)(2)(C). instance of judgment, on the claim.” error in or similar VA, need to agrees that there is no or an event not The Court fault on the any differently foreseeable, for a interpret reasonably factor C in the treatment claim than for a at 13. Ac provided section 1151 a claimant.” Id. disability compensation cording Secretary’s interpretation, basic entitlement to the claim, language applies plain because the includes language “may be associated” id.; McLendon, effect, effortlessly to both. See of causation. In an element 84-85; Resp. Sec. at 12-13. only the evidence have to indicate does treatment, that the that there was VA but 5103A(d)(2)(B) ii. Factor treatment have caused B) 5103A(d)(2)(B) (factor id.; 38 C.F.R. symptoms. Factor cf. 3.159(c)(4)(i)(B),(C). As the Federal opin- examination or states that a medical (2012); (2012) 3.159(c)(4) with 38 C.F.R. Although of an additional the existence Adju- ascertained for qualifying must be Administration see also VeteransBenefits (M21- award- disability compensation benefits to be M21-1 MR dication Procedures Manual 1151, such a determination ed under section IV, ii, G(33)(c) 1MR), pt. Subpart ch. sec. duty separate application of the to from the (2011) (Under "General Information on 5103A(d)(2), assist factors under Under 38 U.S.C. Entitlement to Benefits prior generally reviewed which should be 1151,” "Determining about a discussion granting any regarding the determination Exists”). Disability Whether Additional 3.361(b) Compare 38 C.F.R. benefits. Wells, (1995), curiam, explained supra, having per Circuit aff'd (Fed.Cir.1996) (table) any without causal connection is general F.3d 604 ] obligate (1) insufficient ly as follows: Medical evidence of a or examination. provide medical evidence, disability; current medical Peake, See also Chotta v. evidence, or in certain lay circumstances to mean (interpreting McLendon of incurrence or aggravation injury an duty a medical exami as the result of hospitalization, medical applies “only nation once the evidence has treatment, surgical or pursuit or the of a indicating met the minimal threshold of course of vocational rehabilitation under question” the existence of a medical be chapter 31 of title United States duty require the to assist does not a cause (3) Code; and medical evidence of a fishing expedition to substantiate a com injury nexus between that asserted or pletely unsupported (quoting claim Gobber disability. disease and the current Derwinski, Vet.App. 2 472 Today, compensation a section 1151 5108A(a)(2))). citing to 38 U.S.C. claim does not need to meet the require Thus, Secretary’s interpretation ap the being ments of well-grounded for VA to in it pears properly reasonable that effec duty have a See assist. 38 U.S.C. 5103A(d)(2) tuates the intent of section Indeed, § 5103A. this Court has ex precedent. with complies legal Court that, plained in a basic entitlement dis “may that the language holds be associat claim, ability compensation only factor B requires ed” that the evidence of record requires that the evidence meet a low indicate a causal connection between the threshold, treatment such that the evidence “indi disability current and the VA “may” that a required before VA is a medical cates” there be nexus be (or opinion. disability persistent examination or tween the re 5103A(d)(2). However, in light of the symptoms disability) current of a analysis of our purpose McLendon, section 5103A and military Vet.App. service. 20 McLendon, in the nature of a causal con Alleman, Jones, supra; see 12 cf. nection in interpretation this necessitates Vet.App. (treating at 463 the veteran’s further discussion. claim for an additional section 1151 as it would a claim for ser Congress barriers perceived significant connection). Therefore, in keeping vice in to veterans who needed assistance ob with this determinations in Court’s to receive taining information and evidence McLendon, in a section 1151 VA, from benefits and eliminated well- claim, the threshold under grounded-claim requirement by enacting equally B must be low. factor the Veterans Claims Assistance Act of (VCAA), codified, in which was later Thus, applying when factor part, as 38 5103A. Duenas v. 5103A(d)(2)(B) compensa to a section Principi Vet.App. (per claim, curiam). Secretary may require tion Prior to the enactment of the of record be sufficient to appellant’s that evidence filing VCAA and claim, injury a nexus between the asserted explained prove this Court Jones v. West, (1999), Vet.App. disability. or event and the current McLendon, (“Indeed, well-grounded of a requirements at 84 instance, claim were: evi although this the medical to establish set dence was deemed insufficient paralleling [requirements] those Brown, nexus, evidence, together with other forth in a [v. Caluza care, surgical record, medical hospital be with the may nevertheless evidence treatment, furnished the that it or examination for the Board to conclude sufficient any current claimant under law administered that Mr. McLendon’s ‘indicates’ ”). by Department em- Secretary, with.... either disability ‘may be associated’ facility as de- Secretary require ployee Department Nor 1701(3)(A), part or as medical evidence fined in 38 U.S.C. provide competent record un- program as a an rehabilitation approved “additional resulted that an careless[ness], program title or a chapter der 31 of consequence negligence, (know VA, “compensated therapy or an work fault on the or other foreseeable,” § 1718. See 38 reasonably prior program”) under 38 U.S.C. event not (a)(2), 1151(a)(1), §§ a medical determining whether (standard 5103A(d)(2)(B); McLendon, supra; M21-1 R. at used provided. must be Board). IV, ii, (M21-1MR), pt. Subpart ch. Mandating that the record MR by the (When G(35)(d) rating a preparing competent include medical evidence sec. decision, fault, “Do not make uncor- receiving opinion a medical VA advises: before rating in the deci- failed to exercise the de roborated conclusions to whether VA the treat- expected relationship be of a sion that a between gree of care that would ment, provider, po surgery, provided health care would or medication reasonable exist.”) disability does not tentially purpose having defeat the of not the claimed present well-grounded to section III. OF THE OCTOBER REVIEW claim.

compensation Compare BOARD DECISION 5103A(d)(2) Jones, with 3.361(d)(i); 464; see also 38 C.F.R. Duty A. The to Provide MR, III, iv, ch. pt. Subpart M21-1 sec. Opinion a Medical A(9)(f) (when (2011) requesting a medical appel of the regard In to both claim, opinion provider in a 1151 for entitlement to section lant’s theories asked, pertinent part, should be failed to compensation —that likely as not “state whether it is as least as timely his recurrent breast can diagnose disability that —the claimed was caused condi misdiagnosed cer and his mental as a result of the VA or became worse recognized “that assis tion—the Board part at issue ...—failure on the treatment a medical providing tance shall include timely properly diagnose of VA to and/or obtaining opin examination or a medical disability al treat the claimed disease or when such an examination or ion disability the disease or to continue lowed on the necessary to make a decision Nicholson, 492 progress”); Jandreau v. to section (citing claim.” R. at 6 (Fed.Cir.2007) (compe F.3d 1376-77 5103A(d) McLendon). However, the required be tent medical evidence only failed to thereafter not dis Board involves medical if the determinative issue 5103A(d)(2) factors with cuss the section and there is etiology diagnosis or medical implied but that medical any specificity, lay evidence sufficient to estab competent provided be opinion did not need to be diagnosis). lish a competent “the record is absent for cause Therefore, evidence that additional adjudicating when medical claim, negligence, consequence resulted as a eareless[ness], part other fault on the record analyze Board must the evidence of VA, not reasonable fore that the or an event to determine whether it indicates above, As discussed may be associated seeable.” Id. symptoms finding diagnosis that a medical is not war- of breast cancer was not the evidence of timely ranted because record made in a fashion.” R. at 15. Al competent not include medical evi- though does this appears latter determination legally on the dence of fault VA is analysis within the Board’s of the merits of untenable, because factor compensation claim, the section 1151 it 5103A(d)(2)(B), only the evidence must indicates that the Board to appreci failed “may” that there be an associa- “indicate” ate that it is restricted from making un tion a current between VA substantiated medical determinations and treatment. considering the absence of evidence as 5103A(d)(2)(B); MR, pt. see also M21-1 evidence, substantive negative including G(34)(b). IV, ii, ch. sec. Subpart when deciding complied whether it has with duty provisions. to assist Com In general addition the Board’s misin pare R. at 6 with R. at Buczynski see 5103A(d), terpretation of section for the Shinseki, 24 Vet.App. following reasons the claim on appeal will (“When claim, assessing a the Board may Nicholson, Mayfield be remanded. See not consider the absence of evidence as (stating evidence.”); Duenas, negative substantive key determining whether an error is 18 Vet.App. (explaining at 516 that wheth prejudicial the effect of the error on the er a claimant prevails on the merits of a adjudication), essential fairness of the claim sepa remains a grounds, rev’d on other 444 F.3d 1328 rate matter duty from whether VA has a (Fed.Cir.2006). 5103A(d)); to assist under section Santia Timely Diagnose. 1. Failure to Brown, 288, (1993) go Vet.App. 292 regard In to the appellant’s Derwinski, (citing 1 Vet.App. Colvin v. theory injury first under section 1151— 171, (1991), overruled on other timely diagnose that failed to his re VA West, 1356, by grounds Hodge v. 155 F.3d curring breast cancer such that his mental (Fed.Cir.1998)). Thus, the Board not disability occurred or worsened —the only misinterpreted B as requiring factor initially Board stated that a opin medical fault, competent medical evidence of VA ion was not warranted there because was provided inadequate but also reasons or competent no medical evidence of causa bases for its determination that a medical appellant competent tion and the was not regard was not warranted in to provide lay testimony complex as to the timely diagnose whether VA failed to the 6, question medical of causation. See R. at appellant’s breast cancer. See 38 U.S.C. Thereafter, again explained 8. the Board Brown, 7104(d)(1); Allday Vet.App. appellant layperson, “as a is not Caluza, 517, (1995); supra; Simon v. competent to comment on the timeliness of Derwinski, (1992); 2 Vet.App. cancer, diagnosis a such as in case.” this Derwinski, Gilbert v. R. (citing broadly at 15 to Jandreau for (1990). proposition the that “a compe veteran is However, provide diagnosis simple tent of a the did make cer Board leg, findings undisput condition such as a broken but not tain of fact that remain (1) competent provide February evidence as to more ed the “In parties: However, complex questions”). presented City medical the at the Kansas Veteran (VAMC) finding this did not deter the Board from Medical to establish Center (R. (2) 9); time, determining nothing itself care” at “At this he ex “[t]here in the medical from suggest pressed records VA to that he desired to use the VAMC (R. “sufficient medical evidence for cancer” not contain breast up possible check on (3) 9); Septem- his to make a decision on the appellant the missed the at 5103A(d)(2)(C). November appointment, ber 2005 claim.” a breast cancer requested again he Therefore, in find clearly the Board erred (4) (R. 725); the was appellant at check-up substantially complied ing that VA had evaluations at psychiatric seen for several R. at requirements.” with “assistance (R. 7-9); at thereafter the VAMC remand, Gilbert, at 52. On see also talked Veteran September “[t]he with appellant the Board must another breast recently finding about pursuant to 38 U.S.C. a medical (R. 11), he at underwent lump” 5103A(d). MR, III, Sub- pt. M21-1 Cf. (R. 12); that month at biopsy later A(9)(f) (“Instructions iv, ch. sec. into a seri- that he “went appellant stated Opinions Providing Medical —1151 as felt that depression [he] state of ous Claims”).5 (R. 13); properly treated” at was not [he] Misdiagnosis 2. subsequently diagnosed was appellant (R. dysthimic depression disorder and with theory second appellant’s As to 14). 1-4; Br. at App. Br. at Sec. mis- injury under section 1151—that VA 9-10. disorder, bipolar him diagnosed with findings, taken as a undisputed These which, turn, aggravated caused or his whole, unequivocally “indicate” that there provided mental Board —the “may ap be an association” between analysis erroneous as it had for the same mental and his pellant’s current theory. See R. at appellant’s first treatment, ap which included an VAMC However, appellant’s unlike the first theo- gap 11-month between a re proximately ry, disputed facts are pertinent several for a breast cancer check peated request cannot theory, to this such that Court diagnosis of recurrent breast up and an unequivocally there is conclude 5103A(d)(2)(A), cancer.4 See 38 U.S.C. current appellant’s indication that (B); Principi, also Cantu v. 18 Vet. see with disability may mental be associated the App. (applying plain 99-100 treatment. See VA § meaning of 38 1710 to the undis U.S.C. 5103A(d)(2)(B); 9,16. § R. at the case to conclude that the puted facts of discuss Because the Board failed to for appellant eligibility met the criteria VA care). the evidence of record indicated It clear from the whether hospital is also may that there be an association between Board’s statements that the record does case, suggesting these appellant suggested, this the Court is not 4. To the extent that the during argument, might necessarily prove oral that he have also fault on facts that there was injury, separate physical VA, from a suffered appellant's claimed the of or that the delay disability, alleged the mental due to or became worse as a was caused treatment, a claim was not breast cancer such conduct, any or that of result of VA medical Thus, the Court does presented to the Board. diagnoses additional the latter constitute an jurisdiction it. Seri v. Ni not have over See § qualifying disability. U.S.C. 1151. See 38 cholson, (2007); Tubi integral analy questions are to an While such Derwinski, anosa compensa sis of the merits of a section (1992) (a party the Court devel before should claim, they pertinent inquiries tion are not arguments op present all of its in its determining Secretary’s duty to when the as pleading). initial requirements of sist under the low threshold Duenas, 5103A(d)(2)(B). supra. factor requiring a medi- In to order undisputed facts of cal based on the (Fed.Cir.2010). Upon receipt any current and VA appellant’s addi- treatment, provided inadequate records, it reasons tional medical any and before ad- for its determination that undertaken, or bases opinions ditional medical are duty to assist was met. See 88 U.S.C. required isVA to add such records to the Gilbert, 7104(d)(1); su- Allday both appellant’s claims file. remand, On the Board must pra. analysis application

a detailed of its IV. CONCLUSION 5103A(d)(2) pertinent to the facts Based on the foregoing, the October surrounding appellant’s current mental 2010, decision of the Board is VACATED diagnoses. and this matter is REMANDED adju- Duty Obtaining

B. The to Assist in dication consistent with opinion. this

Medical Records MOORMAN, Judge, filed the addition, In found that “[a]ll Board the Court. known and available records relevant appeal the issues on have been obtained.” HAGEL, Judge, separate opinion filed a R. at 5. The appellant argues concurring the result. Board failed obtain records of his Uni- HAGEL, Judge, concurring in the (KUMC) versity of Kansas Medical Center result: treatment, provided cancer which con- was case, fully I concur in the result in this currently with his cancer some of VAMC separately express my but I write con- by physician worked treatment who also majority’s cern over the resolution of the App. at the R. at Br. at VAMC. panel central issue. A was convened to appears portion 25-26. It that some of the decide, in the context of a claim for bene- appellant’s private cancer treatment rec- fits under 38 U.S.C. whether 38 were ords faxed from the KUMC to 5103A(a) 5103A(d) or 38 R.

VAMC. at 618. controls the determination of whether VA Any in the possession KUMC records must provide medical examination or prior appeal to the on Board’s decision opinion. plain reading Based on a of the constructively were also the Board. before statutes, applicable precedential and the Derwinski, 2 Vet.App. See Bell v. decisions of this court and the U.S. Court (1992). It is unclear from the record be Circuit, Appeals for the Federal I con- parties’ argu fore Court and from the proper clude that the standard for deter- exactly may ments what records VA mining whether a medical examination or possession, ap not have its but it opinion should be ordered in a claim for pears that such records be relevant provided benefits under section 1151 is 9, 11, appeal. to the claim on See R. at 5103A(a). However, § under 38 be- U.S.C remand, appears 618. On because there 5103A(a) analysis cause to concern that a of prior be some release yields majority the same result as did the (ROI) long information authorization is no 5103A(d), I in using section concur viable, er an appellant must result. Thereafter, updated ROI for VA. VA is re Meaning A. Plain quired attempt all the ap obtain of Foremost, pellant’s plain reading medical of the rele- pertain KUMC records ing disability requires to his mental cancer vant statutes this conclusion. A 5103A(b); statutory § construc- treatment. See 38 U.S.C. fundamental canon of Shinseki, are v. 590 F.3d 1320-21 tion is that the words of a statute Golz cer, development ag- or which led to com ‘ordinary, contemporary, “their given (2) disability; mental of his gravation indication Con absent an meaning,’ mon bipolar misdiagnosed him with differ that VA to bear some intended them gress which, turn, disorder, aggra- caused or in Taylor, 529 v. U.S. import.” ent Williams disability. R. at 8. Sec- mental 435 vated his 420, 431, 146 L.Ed.2d 120 S.Ct. shall (2000) provides tion 1151 Metropolitan (quoting Walters disability 202, 207, or Inc., for an additional be awarded 519 U.S. Enterprises, Ed. (1997)); manner as if such “in the same see death 136 L.Ed.2d 644 117 S.Ct. States, or death were service- 508 U.S. additional Smith United connected,” disability or if the additional (citing 124 L.Ed.2d 138 S.Ct. 37, 42, the veteran’s States, was not the result of death U.S. Perrin v. United (1979) (stat willful misconduct and: 62 L.Ed.2d 100 S.Ct. defined, otherwise ing that “[UJnless by was caused or death interpreted will be

words a[in statute] care, surgical medical or treat- hospital ordinary, contemporary, com taking their ment, furnished the vet- or examination 5103A(d)(l) ex meaning”)). Section mon any by law administered eran under “a claim for plicitly concerns cause proximate ... and the 5103A(a) does while section compensation,” disability or was— of the death Thus, whether a we must determine not. (A) carelessness, negligence, lack of § 1151 is under 38 U.S.C. claim made skill, judgment, error or proper as “a claim for disabili properly construed part of instance of fault on similar plain meaning The of ty compensation.” furnishing the hos- Department dictates that it is “disability compensation” care, surgical or treat- pital medical not. examination; ment, or or 3.4(b)(1) First, states 38 C.F.R. (B) reasonably foresee- an event not disability compen- entitlement [for “[b]asic able. if the veteran is for a veteran exists sation] 1151(a). injury personal the result of a disabled as of a con- (including aggravation or disease compensation under premise behind service) while existing prior dition an that the veteran suffered section 1151 is or was injury if the disease active service disability or death as the result additional duty.” in the line of aggravated incurred or care, surgi- training, hospital medical 3.4(b)(l)(2012). The focus of 38 C.F.R. treatment, compensated therapy, work cal injury is that the or disease regulation this VA, by an examination furnished in the line aggravated “incurred or was aggravated injury or disease incurred added). “In the line duty.” (emphasis Id. while in active service. injury “an or disease duty” is defined as (2012). Thus, Mr. Trac- § 3.361 38 C.F.R. during period aggravated incurred or compensa- entitlement er's theories of naval, or air service unless military, active negligence on on premised tion are of the injury or was the result such disease VA, was depression not that his veteran’s own willful misconduct....” duty. in the line of aggravated incurred or 3.1(m)(2012). § C.F.R. underlying section premise The factual claims, very language of the Here, by sought compensation Trafter Mr. statute, disability that not include on two theories: does under section 1151 based fact, is, in linked in service but place failed to took personnel that VA medical treatment service. his breast can- timely diagnose and treat after 5103A(d)(2)(B) Second, B. Prior Caselaw of This explicitly section Court that, when the is deter- provides Second, prior sup- our own caselaw also or whether a medical examination mining ports the conclusion that section 1151 on “necessary is to make decision “disability claims are not compensation” claim,” the evidence of record must “indi- claims. disability symptoms may or ] cate! Contrary majority’s to the finding, this with the claimant’s active be associated that, has held previously although Court naval, military, or air service.” The term to an compensation awarded 1151 claimant naval, in- military, or air service” “active paid is in the same manner as if such cludes: disability additional were service connect (A) ed, are, fact, they in two distinct duty; active claims. Principi, Vet.App. See Anderson v. (B) duty of active for train- any period (2004) (“There legal is a distinction which the individual con- ing during filing between a claim for service connec or died from a dis- cerned was disabled disability pursuant tion for a to 38 U.S.C. injury aggravated ease or incurred 1110 and a claim for de duty; line of grant compensation pursu rived from a (C) duty training any period of inactive 1151.”).6 Further, ant to 38 U.S.C. this during which the individual concerned “[sjection has Court noted that 1151 does was disabled or died— confer upon not its beneficiaries the status connection; rather, of service section 1151 (i) injury aggra- from an incurred or awards as the claimant if duty; in line of

vated words, In were service connected. other (ii) myocardial from an acute infarc- provides section 1151 nowhere arrest, tion, a cardiac or a cerebrovas- generally is ... to be treated occurring during cular accident such Kilpatrick if it were service connected.” training. (2002), Principi, aff'd, (Fed.Cir.2003). F.3d 1375 A section 101(24). the crux of a Again, separate 1151 claim “constitutes a and dis pursuant claim made to section Anderson, tinct claim for benefits.” VA VA, specifically on the negligence Thus, Vet.App.at 377. this Court’s case that the claimant’s was result consistently distinguished law has claims treatment, care or medical not as a to section 1151 and claims pursuant made naval, military, result of his active or air disability compensation pursuant Thus, plain meaning service. of the 1110. “disability necessi- compensation” term Appeals States Court of C. United for which the tates (Federal for the Federal Circuit seeking claimant is benefits is incurred Circuit) Precedent by military active service. aggravated section 1151 Entitlement to benefits under drawn a The Federal Circuit has also VA, fault grounded post-service “disability compensa- distinction between aggravation on the in-service incurrence or and other benefits administered tion” 5103A(a) disability, Secretary. provides that are authorized Section of a benefits that: under 38 Court, Hillyard speak connection.” See attempt in an more "claim for service

6. This Shinseki, (2011). specifically, of the term has eschewed use claims, section 1151 claimants pensation reasonable Secretary shall make The that obtaining compensation injuries in for a claimant also seek efforts to assist the necessary to substantiate evidence to active service as de- are not connected under a Thus, claim for analogy, § claimant’s by 3.4. by fined 38 C.F.R. benefit Secretary. by the law administered category of 1151 claims fall into the section required provide not Secretary The is by the “any other benefit” administered this sec- a claimant under assistance to 5103A(a) there- Secretary, and section exists possibility if reasonable no tion to use to deter- fore the correct standard in would aid sub- that such assistance must a medical mine whether VA claim. stantiating the opinion. examination or added). 2) 5103A(a)(l, (emphasis addition, Principi, In in Alleman starkly language contrasts general This (Fed.Cir.2003), the Federal Cir- F.3d 1368 “disability compen- specific with the more receiving veterans bene- cuit decided that predicate as the for language used sation” section 1151were not entitled fits under 5103A(d). applying section Insurance un- Service Disabled Veterans’ (Fed. Peake, 520 F.3d 1345 In v.Wood The Federal Cir- der Cir.2008), determined the Federal Circuit that section 1151 “does cuit determined duty provision” “general the to assist that status to a not accord service-connected determining depen whether applies when death, disability or but rather veteran’s claim dency indemnity compensation and in instances a veter- that certain provides to a medical examination ants are entitled ‘as disability or death will be treated an’s development in the of their Id. at 1370. if it were service connected.” Federal concluded claims. The Circuit Further, Federal reiterated Circuit 5103A(a) that, applies [section] “[w]hile that, disability to be ‘service-con- “for a a law administered any ‘benefit under nected,’ in- must have been Secretary’ encompasses [de and thus duty ‘in the line of in aggravated curred or indemnity compensation] pendency and ” naval, military, or air service.’ the active 5103A(d) claims, only applies ‘claim[s] 101(16)). (quoting Id. disability compensation,’ which does for indemnity [dependency and include Finally, although appears section 1151 Wood, 520 F.3d. compensation] claims.” “Compensation titled for Ser- chapter Peake, also DeLaRosa see Death,” Disability or and vice-Connected (Fed.Cir.2008) 1319, 1322 (noting that F.3d sub-chapter compensation “General 5103A(d)(l) its explicitly limits “[s]ection with the this is not inconsistent provisions” to claims for com applicability analysis. logical interpretation above Further, in a footnote the pensation”). compensation of this location is noted, and the Federal Circuit pursuant paid to section 1151 is awarded conceded, dependency indemnity manner as was the same if “disability payments are not connected, though even service Wood, at 1349 compensation.” 520 F.3d. benefits are not disabil- “claimfs] that, Thus, if logical it is a extension n. 3. ity compensation.” indemnity dependency discussion, I the above light In “disability compensation,” benefits are not 5103A(a) strongly believe that 38 U.S.C. purview 1151 claims also fall outside correct standard for when provides the Although these “disability compensation.” re- medical examination or in the VA Federal cases were decided Circuit in claims under section 1151. indemnity quired com- dependency context of 5103A(d) 5103A(a) Wood, ing the claim.’” 520 F.3d.at 1348 and Comparing D. 5103A(a)). (quoting 38 U.S.C. 5103A(a) 5103A(d) “apply and Sections sought disability Mr. Trafter bene- require- and unrelated wholly different 1151, advancing fits under section two the- ments,” “dramatically different and are (1) negligence: ories of VA that VA medi- Wood, F.3d. at 1349. scope.” [in] personnel timely cal failed to diagnose and 5103A(a) pro- to “requires Section VA[ ] cancer, treat his breast which led to the opinion a free vide a claimant with medical development aggravation or of his mental (1) ‘necessary opinion whenever such an is (2) disability; misdiagnosed and that VA (2) claim,’ ‘no to substantiate unless [the] which, turn, disorder, bipolar him with in that such as- possibility reasonable exists aggravated disability. caused or his mental substantiating [the] sistance would aid ” R. at 8. Wood, (quoting claim.’ 520 F.3d.at 1349 5103A(d) Here, the Board cited section 5103A(a)). hand, On the other (1) summarily determined that Mr. 5103A(d) requires that “the claim- competent opine Trafter is not as to the record evi- ant demonstrate [] whether the timeliness of his breast cancer (1) competent dence ‘contains evidence diagnosis misdiagnosis or mental his disability, that the claimant has a current condition demonstrates negligence; and persistent symptoms or or recurrent (2) no competent other evidence of record (2) disability disability;’ ‘indicates that the exists demonstrating fault on the with the symptoms may or be associated VA. R. at 15-16. The Board then con- naval, active or air ser- military, claimant’s sidered the merits of Mr. Trafter’s section (3) vice;’ and ‘does not contain sufficient discussing 1151 claim without ever wheth- Secretary medical evidence for the opinion “necessary er a medical was make a decision on the claim.’” Id. at explaining why substantiate” his claim or 5103A(d)(2)).7 (quoting 1349-50 possibility “no reasonable exists that [a E. of Law To This Application Case opinion] medical would aid in substantiat- 5103A(a) requires Section that VA “as- 5103A(a)(l, ing claim.” 38 U.S.C. [his] obtaining 2). a claimant a medical sist duty to is not Although “[t]he assist opinion or examination whenever such an scope,” competent boundless in its without opinion ‘necessary to substantiate of record or a medical opinion evidence ” claim,’ “only claimant’s excuses Mr. Traft- discussing [ ] the theories on which based, ... making VA from reasonable efforts 1151 claim is it is un- er’s section possibility ‘no reasonable exists that reach the con- when clear how Board could Mr. mental clusion that Trafter’s such assistance would aid substantiat- 5103A(d) lay provides medical evidence 7. Section in full: information or claimant)— (including statements of the (1) In the a claim case of (A) competent contains evidence compensation, provided the assistance disability, per- claimant has a current or (a) Secretary in- under subsection shall symptoms recurrent of disabili- sistent or providing clude a medical examination ty; and obtaining opinion a medical when such an (B) symp- indicates that the necessary examination or the claim- toms be associated with amake decision on the claim. service; naval, military, active or air ant’s Secretary shall treat an examina- but necessary being to make tion or (C) not contain sufficient medical does purposes para- a decision on a claim for to make a de- graph evidence for if the evidence of record before Secretary, taking on the claim. into consideration all cision for its of reasons bases quate R. at negligence. statement the result of VA is not claimant permits conclusions F.3d see Golz Shinseki the de- why the Board made understand (Fed.Cir.2010) “duty to (holding that VA’s allow it did and to effective termination scope”). assist is not boundless decision). judicial review of of this issue concluso- treatment Board’s thorough discussion ry, and a more to understand the Mr.

needed for Trafter reasoning and for

Board’s Court proper review. See Gilbert

conduct a (hold

Derwinski, Vet.App. an ade- must

ing that Board

Case Details

Case Name: Robert L. Trafter v. Eric K. Shinseki

Court Name: United States Court of Appeals for Veterans Claims

Date Published: Apr 29, 2013

Citation: 26 Vet. App. 267

Docket Number: 10-3605

Court Abbreviation: Vet. App.