William P. McLendon v. R. James Nicholson

This version includes the errata dated 7Aug07 - e

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS

NO . 04-0185

WILLIAM P. MCLENDON , APPELLANT ,

V.

R. JAMES NICHOLSON ,

SECRETARY OF VETERANS AFFAIRS, APPELLEE.

On Appeal from the Board of Veterans' Appeals

(Decided June 5, 2006 )

Richard A. LaPointe, of Marco Island, Florida, was on the brief for the appellant.

Tim S. McClain, General Counsel; R. Randall Campbell, Assistant General Counsel; Brian

B. Rippel, Deputy Assistant Counsel; and Thomas E. Sullivan, all of Washington, D.C., were on the

brief for the appellee.

Before GREENE, Chief Judge, and KASOLD and MOORMAN, Judges.

KASOLD, Judge: Vietnam War veteran William P. McLendon appeals, through counsel, a

January 15, 2004, decision of the Board of Veterans' Appeals (Board) that denied entitlement to

service connection for a chronic low-back disability. Mr. McLendon argues that the Board erred in

its evaluation of the evidence and that the Secretary failed to provide him with a VA medical

examination pursuant to 38 U.S.C. § 5103A. Appellant's Brief (Br.) at 6-7. He also asserts that the

Secretary failed to comply with the notice provisions required by 38 C.F.R. § 3.159(b) (2005).

Appellant's Br. at 3-6. The Secretary responds that Mr. McLendon received adequate notice and that

the Board properly concluded that a VA medical examination was not necessary to make a

determination on his claim. Secretary's Br. at 6. For the reasons set forth below, the decision of the

Board will be set aside and the matter remanded for readjudication.

I. BACKGROUND

Mr. McLendon served on active duty in the U.S. Marine Corps from December 1963 to

December 1967. Record (R.) at 12. In May 2001, he filed a claim for compensation for a low-back

condition. R. at 62-67. Although he did not seek medical treatment at the time, Mr. McLendon

stated that, while serving in Spain in 1964 or 1965, he "was standing in a landing craft on the beach

that was being loaded when [he] fell back into the boat and landed on my back on a steel lifting

ring." R. at 77. Mr. McLendon also submitted medical statements prepared in 2001 by Drs.

Maniscalco and Bearison, private physicians, stating that he suffered from a low-back disability. R.

at 57, 59. Both opinions also noted that this disability could have been caused by the in-service

injury reported by Mr. McLendon. Specifically, Dr. Maniscalco indicated that "[t]he process of

degeneration may have been initiated by the fall that he had onto his lower back." R. at 57. In

addition, Dr. Bearison stated that Mr. McLendon's "history is that of injuring his back when he fell

onto a steel object on a boat" while in the military and suggested that "[i]t is within the realm of

medical possibility that Mr. McLendon may have produced significant disk damage to his lumbar

spine to initiate the degenerative process which finally led to him needing to have surgery." R. at

59.

In May 2002, without providing Mr. McLendon a VA medical examination, a VA regional

office (RO) denied service connection. The RO found that a 20-year gap existed between active

service and the first private medical records showing treatment for a low-back disability, and further

noted that Mr. McLendon's service medical records did not reflect any injury or diagnosis of a back

disability. R. at 321. Mr. McLendon appealed to the Board.

In the decision on appeal, the Board considered private medical records from 1993 forward

that confirmed a current low-back disability, as well as Mr. McLendon's assertions of a history of

back pain since 1964 or 1965, as recorded in those records. R. at 1-8. It also considered the lack of

relevant in-service medical treatment, and specifically noted that Mr. McLendon's service-separation

examination did not reveal any back injury or disability. The Board rejected the two 2001 private

medical opinions submitted by Mr. McLendon as incompetent because they relied on history

provided by Mr. McLendon and were otherwise "speculative and not definitive" with regard to

whether his current back disability was service connected. The Board concluded that a VA medical

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examination was not warranted because the evidence of record was sufficient to decide the claim.

Ultimately, the Board found that the in-service injury had occurred but that it had "resolved without

leaving chronic residual disability," and it denied Mr. McLendon's claim. R. at 7. In addition, the

Board found compliance with the statutory and regulatory requirements of the Veterans Claims

Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096, now codified, in part, in

38 U.S.C. §§ 5103(a) and 5103A. R. at 3.

II. ANALYSIS

A. Medical Examination Requirement

In disability compensation claims, the Secretary must provide a VA medical examination

when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of

a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or

establishing certain diseases manifesting during an applicable presumptive period for which the

claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a

disability may be associated with the veteran's service or with another service-connected disability,

but (4) insufficient competent medical evidence on file for the Secretary to make a decision on the

claim. See 38 U.S.C. § 5103A(d)(2); Paralyzed Veterans of Am. v. Sec'y of Veterans Affairs,

345 F.3d 1334, 1355-57 (Fed. Cir. 2003); Wells v. Principi, 326 F.3d 1381, 1384 (Fed. Cir. 2003);

38 C.F.R. § 3.159(c)(4)(i). Thus, there are four elements to review to determine if a medical

examination is necessary.

The Board's ultimate conclusion that a medical examination is not necessary pursuant to

section 5103A(d)(2) is reviewed under the "arbitrary, capricious, an abuse of discretion, or otherwise

not in accordance with law" standard of review. See 38 U.S.C. § 7261(a)(3)(A) (Court shall hold

unlawful decisions by the Board that are "arbitrary, capricious, an abuse of discretion, or otherwise

not in accordance with law"); Marrero v. Gober, 14 Vet.App. 80, 81 (2000) (holding that the Court

reviews the Board's application of the law to the facts under the deferential "arbitrary, capricious,

an abuse of discretion, or otherwise not in accordance with law" standard of review); see also Kent

v. Principi, 389 F.3d 1380, 1384 (Fed. Cir. 2004) (reiterating that the "'arbitrary, capricious, an abuse

of discretion, or otherwise not in accordance with law' standard of review . . . contemplates de novo

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review of questions of law"). The Board's determinations that underlie this conclusion, however,

are reviewed by this Court using a standard that is multifaceted. See Butts v. Brown, 5 Vet.App. 532,

539-40 (1993) (en banc) (discussing the various standards of review).

1. Competent Evidence of Current Disability or Recurrent Symptoms

The first element in determining the need for a medical examination is whether there is

competent evidence of a current disability or persistent or recurrent symptoms of a disability. As

stated, this element requires only (1) an assessment of whether there is evidence of a current

disability or persistent or recurrent symptoms thereof and (2) an assessment that such evidence is

competent. See 38 U.S.C. § 5103A(d)(2)(A); see also Charles v. Principi, 16 Vet.App. 370, 374

(2002) (holding that a Board's acknowledgment of a diagnosis of tinnitus in the record was sufficient

to establish "'competent evidence that [the claimant] has a current disability'" (quoting 38 U.S.C.

§ 5103A(d)(2)(A))). Neither requires the weighing of competing facts. The former merely involves

an assessment of the existence of such evidence in the record. The latter involves an assessment of

whether the evidence is competent.1

In this case, although the Board needed to determine only the threshold question of whether

there was competent evidence of a current disability or recurrent symptoms thereof, it actually went

beyond that determination and found as a factual matter that Mr. McLendon currently suffers from

a low-back disability. See R. at 7. Nothing precludes the Board from weighing the evidence in the

record, supportive and nonsupportive of a current disability and making this finding. Moreover, a

Board finding that the evidence preponderates for or against the presence of a current disability is

a finding of fact, subject to the "clearly erroneous" standard of review, see Washington v. Nicholson,

19 Vet.App. 362, 367-68 (2005) (holding that it is the Board's responsibility to determine the

probative weight of the evidence of record); Wood v. Derwinski, 1 Vet.App. 190, 193 (1991) (same);

see also Gilbert v. Derwinski, 1 Vet.App. 49, 53 (1990) (holding that a Board's findings of fact are

reviewed under the "clearly erroneous" standard of review), and, when favorable to the claimant, as

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An assessment of competency can be one of legal competency, which is reviewed de novo, see Layno v.

Brown, 6 Vet.App. 465, 469 (1994) (holding that "competency" "is a legal concept determining whether testimony may

be heard and considered by the trier of fact, while [weight and credibility] is a factual determination going to the

probative value of the evidence to be made after the evidence has been admitted"), or of factual competency, which is

reviewed for clear error, see Sanders v. Brown, 9 V et.App. 525, 529 (1996) (holding that mental "competency" is a

factual determination that the Court reviews under the "clearly erroneous" standard of review).

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it is here, not subject to review by the Court, see 38 U.S.C. § 7261(a)(4) (factual findings can be

overturned only if clearly erroneous); Snyder v. Principi, 15 Vet.App. 285, 299 (2001) (holding that,

except where the Board lacked jurisdiction in the first instance, "there is no case or controversy as

to a [Board] determination that was favorable to an appellant"). Although the Board did not

specifically address the existence of competent evidence of a current disability, its ultimate

conclusion that "there is no question that the veteran currently suffers low back disability . . ."

necessarily includes this determination and the first element is thus satisfied. See R. at 7.

2. Establishment of In-Service Event, Injury, or Disease

The second element to consider when determining the need for a medical examination is

whether the evidence establishes that the claimant suffered an in-service event, injury, or disease,

or "has a disease or symptoms of a disease listed [in certain regulatory provisions] manifesting

during an applicable presumptive period, provided the claimant has the required service or triggering

event to qualify for that presumption." 38 C.F.R. § 3.159(c)(4)(i)(B); see also 38 U.S.C.

§ 5103A(d)(2). This is a classic factual assessment, involving the weighing of facts, and the Board's

findings are subject to the "clearly erroneous" standard of review. See Lovelace v. Derwinski,

1 Vet.App. 73, 74 (1990) (stating that a factual determination involves the analysis and evaluation

of evidence as opposed to the application of law and the legal conclusions flowing from it); see also

38 U.S.C. § 7261(a)(4); Butts, 5 Vet.App. at 535; Gilbert, supra. In this instance, the Board could

have found that the evidence with regard to Mr. McLendon's report of an in-service injury was not

credible; however, it did not do so. Rather, it found that Mr. McLendon suffered an in-service back

injury (R. at 6-7 ("[E]vidence of record compels a finding that the low back injury which the veteran

claims to have suffered in late 1964 or early 1965 was an acute injury . . . . ")), which satisfies the

second element.

3. Indication that Current Disability May Be Associated with In-Service Event

The third element to consider when assessing the need for a medical examination is whether

evidence "indicates" that a disability, or persistent or recurrent symptoms of a disability, "may be

associated with the claimant's . . . service," 38 U.S.C. § 5103A(d)(2)(B), or "with another

service-connected disability," 38 C.F.R. § 3.159(c)(4)(i)(C). In contrast to the second element,

which requires evidence to establish an in-service injury, this element requires only that the evidence

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"indicates" that there "may" be a nexus between the two. This is a low threshold. See 38 U.S.C.

§ 5103A(d)(2)(B); see also Wells, 326 F.3d at 1384 (requiring the "showing of some causal

connection between his disability and his military service"); Duenas v. Principi, 18 Vet.App. 512,

517-18 (2004) (stating that, in order to trigger the Secretary's duty to provide a medical examination

under section 5103A(d)(2)(B), the evidence of record need only indicate that symptoms of a

disability, as opposed to a disability itself, may be associated with his active service); 146 CONG .

REC. H9912, H9917 (2000) (statement of Rep. Evans) (suggesting that once the VCAA is enacted,

"if a veteran's military records indicate he served as a paratrooper, making multiple jumps during

service in Vietnam and the veteran now has evidence of arthritis of the knees that he indicates was

due to these jumps, VA will be required to obtain a medical opinion as to whether it is as likely as

not that his current arthritis is related to his military service").

Although the underlying facts are found below and those findings of fact are subject to the

"clearly erroneous" standard of review, whether those facts "indicate" that a current disability "may

be associated" with military service is a matter that is reviewed under the "arbitrary, capricious, an

abuse of discretion, or otherwise not in accordance with law" standard of review. See 38 U.S.C.

§ 7261(a)(3)(A); Marrero, supra; see also Kent, supra; Bagby v. Derwinski, 1 Vet.App. 225, 227

(1991) (holding that the Court reviews "de novo" the Board's determination that the facts found by

the Board satisfy a statutory threshold requirement that clear and unmistakable evidence has been

shown to rebut the presumption of soundness). Such a matter involves the application of facts to the

law.

The types of evidence that "indicate" that a current disability "may be associated" with

military service include, but are not limited to, medical evidence that suggests a nexus but is too

equivocal or lacking in specificity to support a decision on the merits, or credible evidence of

continuity of symptomatology such as pain or other symptoms capable of lay observation. As noted

by Representative Evans, the development of arthritis in a person's knees and the fact that that person

had been a paratrooper with numerous jumps "indicates" that his disability "may be associated" with

his service. See 146 CONG . REC. H9912, H9917. Similarly, exposure to "noise from a rifle range,

bombing, artillery fire, trucks, and heavy equipment" with credible testimony of ringing in the ears

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"ever since service" indicates that a hearing disability may be associated with service. Charles,

16 Vet.App. at 372-74.

Although the Board in this case noted that Dr. Maniscalco's 2001 opinion suggested that "it

is possible" that Mr. McLendon's current back condition was related to his injury in service, and that

Dr. Bearison's 2001 opinion stated that "it is within the realm of medical possibility" that Mr.

McLendon's current back condition was related to his injury in service, the Board never specifically

addressed the third element and never assessed whether these medical opinions, or any other

evidence, "indicated" that Mr. McLendon's in-service injury "may be associated" with his current

disability. Rather, the Board proceeded to weigh the evidence and determine that the opinions of

Drs. Maniscalco and Bearison were speculative and could not establish a medical nexus. See Bloom

v. West, 12 Vet.App. 185, 187 (1999) (speculative medical opinion cannot establish in-service

medical nexus to service).

That conclusion, however, does not mean necessarily that the evidence does not "indicate"

that there "may be an association" between an in-service injury and a current disability. Indeed, in

this instance, although the medical evidence was deemed insufficient to establish a nexus, that

evidence, together with other evidence of record, may nevertheless be sufficient for the Board to

conclude that it "indicates" that Mr. McLendon's current disability "may be associated" with an

in-service injury, absent a finding that the evidence itself otherwise warranted no consideration. See,

e.g., Coburn v. Nicholson, 19 Vet.App. 427, 432 (2006) ("reliance on a veteran's statement renders

a medical report incredible only if the Board rejects the statements of the veteran"); Reonal v. Brown,

5 Vet.App. 458, 461 (1993) (stating that the Board is not bound to accept a physician's opinion when

it is based exclusively on the recitations of a claimant that have been rejected by the Board); Swann

v. Brown, 5 Vet.App. 229, 233 (1993) (noting that a medical opinion premised upon an

unsubstantiated account is of no probative value and does not serve to verify the occurrences

described). Such a determination should be made by the Board in the first instance.

Mr. McLendon is fully competent to testify to any pain he may have suffered, see Wells and

Duenas, both supra; see also Charles, 16 Vet.App. at 374-75 (holding that an appellant was capable

of providing lay testimony sufficient to "indicate" that his disability could be associated with

service); Falzone v. Brown, 8 Vet.App. 398, 405 (1995) (claimant competent to testify to visible

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injuries and pain); Espiritu v. Derwinski, 2 Vet.App. 492, 494-95 (1992) (layperson may provide

eye-witness account of medical symptoms), and his testimony can be rejected only if found to be

mistaken or otherwise deemed not credible, a finding the Board did not make and the Court cannot

make in the first instance, i 38 U.S.C. § 7261(c); Hensley v. West, 212 F.3d 1255, 1263 (Fed. Cir.

2000) (stating that "appellate tribunals are not appropriate fora for initial fact finding"). Absent such

a finding, the evidence of Mr. McLendon's in-service injury, testimony of pain since that injury (if

ultimately deemed credible), and his current disability "indicate" that his current disability "may be

associated" with his in-service injury. See Charles, supra; 146 CONG . REC. H9912, H9917 (2000).

4. Sufficient Competent Medical Evidence To Decide Claim

Addressing the first three elements for when a medical examination is required does not end

the analysis.2 As provided by the fourth element, if there is sufficient competent medical evidence

on file for the Secretary to make a decision on the claim, he may proceed to do so without providing

a medical examination. 38 U.S.C. § 5103A(d). The key question, however, is whether there is

"sufficient competent medical evidence." 38 C.F.R. § 3.159(c)(4)(i); see 38 U.S.C.

§ 5103A(d)(2)(C). Sufficiency of the evidence generally is a question of fact. See 38 U.S.C.

§ 7261(a)(4); Swann, 5 Vet.App. at 232 ("A finding concerning service connection, or no service

connection . . . is a finding of fact."); Gilbert, 1 Vet.App. at 52 (Board's findings of fact are reviewed

under the "clearly erroneous" standard of review and may not be reversed or revised unless the

Board's findings are not plausible and, therefore, are clearly erroneous).

In this instance, although the Board correctly determined that the opinions of Drs. Maniscalco

and Bearison were speculative and did not establish a medical nexus, the Board failed to recognize

that these opinions also did not establish that there was no medical nexus. Cf. Forshey v. Principi,

284 F.3d 1335, 1363 (Red. Cir. 2002) (en banc) (Mayer, C.J., and Newman, J., dissenting on grounds

not relevant here) (distinguishing between the existence of negative evidence and the absence of

actual evidence and noting that "[t]he absence of actual evidence is not substantive 'negative

evidence'").". Similarly, the Board's findings that Mr. McLendon's service medical records did not

2

By undertaking an analysis of the first three elements, we do not imply that the Board may not conclude at

the outset that there is sufficient medical evidence to decide a case – the fourth element – such that a medical examination

is not necessary.

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reflect any injuries to his lower back, that a medical examination conducted at the time of his

discharge in 1967 indicated that his spine was clinically normal, and that his personal medical

records did not reflect any report of injuries to his lower back at any time before 1993, did not

establish that there was no medical nexus. Indeed, when a nexus between a current disability and

an in-service event is "indicated," there must be a medical opinion that provides some nonspeculative

determination as to the degree of likelihood that a disability was caused by an in-service disease or

incident to constitute sufficient medical evidence on which the Board can render a decision with

regard to nexus. See Bloom, 12 Vet.App. at 187 (speculative medical opinion cannot establish

in-service medical nexus to service); Goss v. Brown, 9 Vet.App. 109, 114 (1996) (remanding claim

for service connection for polyneuropathy because VA examiner's statement that he "could not rule

out nutrition deficiency as a prisoner of war" as the cause of the appellant's polyneuropathy was too

ambiguous to support the Board's finding that the condition was not service connected).

The Board also erred in its finding that Mr. McLendon's in-service back injury was acute

without chronic residual disability. Having found that Mr. McLendon suffered an in-service back

injury, the degree of that injury and whether any disabilities resulted therefrom are medical

assessments that the Board is not competent to render in the first instance. See Colvin v. Derwinski,

1 Vet.App. at 175 (holding that the Board may only consider independent medical evidence in

support of its findings and may not substitute its own medical opinion); see also 38 U.S.C.

§ 5107(b); Mariano v. Principi, 17 Vet.App. 305, 313-17 (2003); see also Flash v. Brown,

8 Vet.App. 332, 339 (1995) ("The Board may not rely on its own unsubstantiated medical

conclusions to reject expert medical evidence in the record; rather, the Board may reject a claimant's

medical evidence only on the basis of other independent medical evidence."). Because there is no

competent medical evidence with regard to whether Mr. McLendon's current disability was more

likely than not caused by his in-service injury, the Board's finding that there was sufficient competent

medical evidence in the record to make a decision on the claim is not supported by the record and

is clearly erroneous.

5. Need for a Medical Examination

Although a claimant may and should assist in processing a claim, it is the Secretary who has

the affirmative, statutory duty to assist the veteran in making his case. See 38 U.S.C. § 5103A. It

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is the Secretary who is required to provide the medical examination when the first three elements

of section 5103A(d)(2) are satisfied, and the evidence of record otherwise lacks a competent medical

opinion regarding the likelihood of medical nexus between the in-service event and a current

disability. The Board is not competent to provide that opinion. See Colvin, supra; see also Flash,

supra.

Section 5103A(d)(2) mandates that a medical examination be provided in disability

compensation claim cases when (1) there is competent evidence of a current disability or persistent

or recurrent symptoms of a disability (or, as in this case, a finding that Mr. McLendon has a current

disability), and (2) evidence establishing that an event, injury, or disease occurred in service or

establishing certain diseases manifesting during an applicable presumptive period for which the

claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a

disability may be associated with the veteran's service or with another service-connected disability,

but (4) insufficient competent medical evidence on file for the Secretary to make a decision on the

claim. In this instance, the Board never addressed the third element. Because that element includes

factual determinations, it should be addressed by the Board in the first instance. See Hensley,

212 F.3d at 1263-64 (court of appeals may remand if it determines that a lower tribunal failed to

make findings of fact essential to a decision). Moreover, if the Board determines on remand that the

third element has been met in this case, it must ensure that the appellant is provided a medical

examination pursuant to section 5103A(d) because there would be insufficient medical evidence to

decide the claim.

B. Other Arguments

The Court at this time will not address the appellant's assertion that the Secretary failed to

provide adequate notice. See Best v. Principi, 15 Vet.App. 18, 20 (2001) ("A narrow decision

preserves for the appellant the opportunity to argue any claimed errors before the Board at the

readjudication."); see also Mahl v. Principi, 15 Vet.App. 37, 38 (2001) (holding that where remand

is appropriate, the Court need not "analyze and discuss all the other claimed errors that would result

in a remedy no broader than a remand"). On remand, the appellant is free to submit additional

evidence and argument, including the arguments raised in his briefs to this Court, in accordance with

Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999), and the Board must consider any such

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evidence or argument submitted. See Kay v. Principi, 16 Vet.App. 529, 534 (2002). The Board shall

proceed expeditiously, in accordance with 38 U.S.C. §§ 5109B, 7112 (requiring Secretary to provide

for "expeditious treatment" of claims remanded by Board or Court).

III. CONCLUSION

The January 15, 2004, Board decision is SET ASIDE and the matter REMANDED for action

consistent with this opinion.

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