Byron S. Cox v. R. James Nicholson

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS

NO . 03-1671

BYRON S. COX , APPELLANT ,

V.

R. JAMES NICHOLSON ,

SECRETARY OF VETERANS AFFAIRS, APPELLEE.

On Appeal from the Board of Veterans' Appeals

(Decided January 19, 2007 )

Sean A. Ravin, of Washington, D.C., for the appellant.

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

V. Cassidy, Jr., Deputy Assistant General Counsel; and Mitchell I. Feld, all of Washington, D.C.,

for the appellee.

Before GREENE, Chief Judge, and DAVIS and SCHOELEN, Judges.

DAVIS, Judge: The appellant, Byron S. Cox, through counsel, appeals a June 16, 2003,

Board of Veterans' Appeals (Board or BVA) decision that granted a 40% initial disability rating for

his service-connected low-back strain, denied referral of the low-back claim for extraschedular

consideration, denied entitlement to service connection for an abdominal disorder, and referred an

informal claim for a total disability rating based on individual unemployability (TDIU) to a VA

regional office (RO) for clarification and action. Mr. Cox made several assertions of error in the

Board decision; panel consideration is required to determine the issue of whether the Secretary's duty

to assist under 38 U.S.C. § 5103A requires that physicians, rather than nurses or other healthcare

professionals, conduct any necessary medical examinations. For the reasons provided herein, the

Court will deny Mr. Cox's motion for oral argument and set aside and remand that part of the June

2003 Board decision that denied service connection for an abdominal condition and denied referral

of the low-back claim for extraschedular consideration. The Board decision will otherwise be

affirmed.

I. BACKGROUND

Mr. Cox served on active duty in the U.S. Army from July 1988 to August 1995. In

September 1995, he sought VA service connection for a low-back disability and for abdominal pain.

He submitted a second application for VA benefits in September 1996. In October 1996, the Waco,

Texas, RO granted service connection for his low-back condition and assigned a noncompensable

rating based upon "slight subjective symptoms," effective September 1996. The RO denied service

connection for abdominal pain. In April 1997, Mr. Cox filed a Notice of Disagreement.

In January 1998, he underwent a VA abdominal and spinal medical examination. The

examiner, Pat Roach, noted that the medical records were not available for review, and, as to Mr.

Cox's abdominal disorder, diagnosed him as having "[c]hronic constipation with flatulence." Record

(R.) at 232. As to Mr. Cox's back disability, the examiner performed diagnostic and clinical tests,

and opined that Mr. Cox had "Grade I retrolisthesis" with recurrent pain and muscle spasms. R. at

236. Additionally, the examiner observed that Mr. Cox's back pain "significantly limit[s] or fully

restrict[s] his participation in sexual activity with his wife, his past hobbies of hiking, [his] out-of-

town road travel, yard work[,] and mall shopping with family and friends." R. at 235. The examiner

also noted that Mr. Cox had "usually been unemployed" since his military discharge. Id. In

September 1998, the RO increased Mr. Cox's initial rating to 10% for his back disability due to pain

and its effect on motion.

In June 2001, Mr. Cox again underwent a VA medical examination for his back and

abdominal conditions. The examination was conducted by a registered nurse practitioner, Mary

Wait. Ms. Wait reviewed Mr. Cox's claims file, performed diagnostic and clinical tests, and

provided diagnoses concerning his conditions. In October 2001, the RO increased to 20% Mr. Cox's

rating for his back, effective September 1996, but again denied service connection for his abdominal

condition. A December 2001 letter from VA to Mr. Cox attached that rating decision and informed

him about the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat.

2096. He appealed and argued that the June 2001 medical examination was inadequate and that he

2

was entitled to a higher rating for his service-connected back condition and service connection for

his abdominal condition. In January 2002, Mr. Cox underwent another VA spine examination,

conducted by a physician, Dr. Ely Bartal. Dr. Bartal reviewed Mr. Cox's claims file and medical

history, ordered magnetic resonance imaging (MRI), which was interpreted by a physician, and as

to Mr. Cox's back pain and radiculopathy, concluded that because there was "an absolutely normal

x-ray and a normal MRI, I do not believe that this condition is related to service." R. at 398. The

RO issued a Supplemental Statement of the Case (SSOC) in September 2002.

In the June 2003 decision here on appeal, the Board determined that Mr. Cox should be

granted a 40% initial disability rating for his back, effective September 1996, but denied service

connection for an abdominal disorder. The Board initially concluded that VA had provided Mr. Cox

statutorily compliant VCAA notice. Specifically, the Board noted:

The veteran was informed in an October 1996 letter and rating decision of the

evidence needed to substantiate his claim, and he was provided an opportunity to

submit such evidence. Moreover, in a May 1997 [S]tatement of the [C]ase [(SOC)]

and [SSOCs] issued in September 1998 and September 2002, the RO notified the

veteran of regulations pertinent to service connection and increased rating claims,

informed him of the reasons why his claims had been denied, and provided him

additional opportunities to present evidence and argument in support of his claims.

In a December 2001 letter and September 2002 [SSOC], the veteran was informed

of VA's duty to obtain evidence on his behalf.

R. at 4. Next, the Board determined that VA satisfied its duty to assist Mr. Cox by obtaining medical

evidence and providing three VA examinations. The Board noted that "the veteran's work

restrictions with respect to activities such as bending and repetitive lifting have been well

documented," but determined that the evidence of record did not warrant a disability rating higher

than 40% under 38 C.F.R. § 4.71a (2002), Diagnostic Code (DC) 5292 or DC 5293. R. at 9. The

Board also found that there was no evidence of a current abdominal disorder for VA compensation

purposes. Finally, as to an extraschedular rating, the Board determined:

The veteran has not indicated, nor has he presented evidence to support the premise,

that his low[-]back disability has resulted in marked interference with employment

so as to render impracticable the application of the regular schedular standards. He

asserted that he had missed approximately five days in a three[-]month period due to

his back pain, and although he has provided more recent evidence that his current

employer found him ineligible for full[-]time employment because of the restrictions

3

caused by his back disorder, such interference with employment has been considered

in the regular schedular standards.

R. at 15. After also noting the lack of hospitalizations for his disorder, the Board concluded that

there was no exceptional or unusual disability picture to warrant referral for consideration of an

extraschedular rating.

II. CONTENTIONS ON APPEAL

On appeal, Mr. Cox challenges the Board's decision on three bases. First, he asserts that VA

breached its duty to assist under 38 U.S.C. § 5103A because it failed to provide an adequate medical

examination; specifically, he contests the adequacy of examinations conducted by nurses rather than

physicians and contends that the one medical examination conducted by a physician was incomplete.

Next, he argues that, by not providing him with documents compliant with 38 U.S.C. § 5103(a), the

Secretary failed to provide the notice required by the VCAA and the corresponding regulations and

caselaw. Finally, Mr. Cox contends that the Board's statement of reasons or bases is inadequate

because it does not identify the documents that provided VCAA notice, nor did it "explain it[]s

finding that [Mr. Cox's] back disability did not interfere with his employment despite evidence that

[he] was discharged from his employment due to the disability." Appellant's Brief (Br.) at 14-17.

In response, the Secretary argues that VA provided adequate medical examinations because

this Court requires only that the medical opinion be conducted by "a health[]care professional."

Secretary's Br. at 20-23. As to VCAA notice, the Secretary asserts that VA advised Mr. Cox of the

evidence needed to substantiate his claims, but Mr. Cox never identified or submitted any additional

records. Moreover, the Secretary contends that Mr. Cox failed to identify how he was harmed by

any purported notice failure. Additionally, the Secretary argues that there was a plausible basis in

the record for the Board's 40% disability rating for Mr. Cox's back disability as well as for its

determination that there was no evidence of a current abdominal disorder. Finally, as to Mr. Cox's

argument that the Board failed to consider the effect of his back condition on his employment, the

Secretary argues that the Board properly determined that there was no exceptional or unusual

disability picture warranting an extraschedular evaluation.

4

III. ANALYSIS

A. VA Examination

Mr. Cox argues that VA did not satisfy its duty to assist him because it did not provide him

with an adequate medical examination conducted by a physician. Section 5103A(a)(1) of title 38

of the U.S. Code provides that the Secretary "shall make reasonable efforts to assist a claimant in

obtaining evidence necessary to substantiate the claimant's claim." That duty includes "providing

a medical examination or obtaining a medical opinion when such an examination or opinion is

necessary to make a decision on the claim." 38 U.S.C. § 5103A(d)(1); see McLendon v. Nicholson,

20 Vet.App. 79 (2006). Medical examinations require "emphasis on the limitation of activity

imposed by the disabling condition," and "[e]ach disability must be considered from the point of

view of the veteran working or seeking work." 38 C.F.R. §§ 4.1, 4.2 (2006). Where the record does

not adequately reveal the current state of the claimant's disability, the fulfillment of the duty to assist

includes providing a thorough and contemporaneous medical examination that considers the

claimant's prior medical examinations and treatment. See Floyd v. Brown, 9 Vet.App. 88, 93 (1996);

Ardison v. Brown, 6 Vet.App. 405, 407-08 (1994); see also 38 C.F.R. § 4.1 (stating that it is

imperative that in a VA examination, the examiner evaluate the disability "in relation to its history").

Under VA regulations, if an examination report provided for the purposes of rating a

service-connected disability does not contain sufficient detail, "it is incumbent upon the rating board

to return the report as inadequate for evaluation purposes." 38 C.F.R. § 4.2; see also Stegall v. West,

11 Vet.App. 268, 270-71 (1998) (remanding where VA examination was "inadequate for evaluation

purposes"); Hicks v. Brown, 8 Vet.App. 417, 422 (1995) (concluding that inadequate medical

evaluation frustrates judicial review).

Here, Mr. Cox underwent VA medical examinations on three separate occasions–a back

examination conducted by a physician in 2002, an abdominal and a back examination administered

by a registered nurse practitioner in 2001, and an abdominal and back examination in 1998 by an

examiner whose education, training, or experience is not ascertainable from the record. Neither

section 5103A nor the implementing regulations define the term "medical examination," and neither

party cites any judicial decision interpreting this term. The Secretary argues that the examinations

were adequate because, among other things, this Court affords no greater deference to a physician

5

versus other healthcare professionals. Secretary's Br. at 22. We have never required, nor do we

intend to do so here, that medical examinations under section 5103A only be conducted by

physicians. See, e.g., Goss v. Brown, 9 Vet.App. 109, 114 (1996) (recognizing that nurses'

statements regarding nexus were sufficient to make a claim well grounded); Williams v. Brown, 4

Vet.App. 270, 273 (1993) (finding opinions of a VA registered nurse therapist competent medical

testimony and requiring the Board to provide reasons or bases for finding those opinions

unpersuasive).

Mr. Cox argues that VA regulation 38 C.F.R. § 3.159(a)(1) provides that "a nurse

[practitioner] is not competent to provide 'competent medical evidence' in the form of a medical

examination and medical diagnosis." Appellant's Br. at 13. That argument is not supported by the

regulation. See 38 C.F.R. § 3.159(a)(1) (2006). Under that regulation, "competent medical evidence

means evidence provided by a person who is qualified through education, training, or experience to

offer medical diagnoses, statements, or opinions." Id. A registered nurse practitioner, such as the

one who conducted Mr. Cox's June 2001 back and abdominal examinations, is one who, by

definition, has "advanced education and clinical training in a specialized area of health[]care . . .

[and] can diagnose, prescribe, and perform procedures." DORLAND 'S ILLUSTRATED MEDICAL

DICTIONARY 1294 (30th ed. 2003). A nurse practitioner, having completed medical education and

training, thus fits squarely into the requirement of § 3.159(a)(1) as one competent to provide

diagnoses, statements, or opinions. We hold that VA may satisfy its duty to assist by providing a

medical examination conducted by one able to provide "competent medical evidence" under

§ 3.159(a)(1). Accordingly, VA satisfied its duty to assist when it provided a medical examination

performed by one able to provide competent medical evidence–here, a nurse practitioner. That is

not to say that all medical examinations conducted by healthcare providers are sufficient; the Board

must review the examinations, and if incomplete or otherwise insufficient, the Board must return the

reports to VA. See 38 C.F.R. § 4.2. The level of training, education, and experience of the person

conducting the examination is a factor that, if the Board affords more or less weight to the report

because of that reason, must be thoroughly explained in its decision. See Caluza v. Brown,

7 Vet.App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table).

6

Mr. Cox also contends that Dr. Bartal's January 2002 examination report did not contain

information as to Dr. Bartal's qualifications, left unanswered numerous questions on the physician's

template, and opined as to service connection rather than the severity of Mr. Cox's already service-

connected back disability. These arguments are unpersuasive. First, Mr. Cox does not assert that

the examiner was not competent, but rather argues that VA did not establish his competence.

However, the Board is entitled to assume the competence of a VA examiner. See Hilkert v. West,

12 Vet.App. 145, 151 (1999) ("[T]he Board implicitly accepted [the VA examiner's] competency by

accepting and relying upon the conclusions in her opinion."), aff'd, 232 F.3d 908 (Fed. Cir. 2000).

Further, the "appellant bears the burden of persuasion on appeals to this Court to show that such

reliance was in error." Id.; see also Butler v. Principi, 244 F.3d 1337, 1340 (Fed. Cir. 2001) ("The

[presumption of regularity] doctrine thus allows courts to presume that what appears regular is

regular, the burden shifting to the attacker to show the contrary."). Mr. Cox has provided no

evidence, nor can the Court discern any in the record, that would cast doubt on Dr. Bartal's

competence and qualifications. Absent such argument or evidence, the Court finds no error in the

Board's implicit presumption of competence.

Mr. Cox's argument as to the incompleteness of Dr. Bartal's examination is more persuasive,

but is ultimately unavailing. A review of that examination report shows that Dr. Bartal did not

address all the questions in the report template. Indeed, although service connection had already

been established, he opined as to whether Mr. Cox's back disability was service connected; the

question Dr. Bartal should have addressed was the level of disability. Nonetheless, the Board found

that, based upon the totality of the medical evidence, "the medical evidence of record [was] adequate

to rate the disability at issue" and that "[t]he examinations and diagnostic testing accomplished by

multiple examiners in this case appear to be complete and comprehensive." R. at 10.

Review of the record that was before the Board reveals that the 2001 VA medical

examination was thorough and that Nurse Wait recorded Mr. Cox's medical history, reviewed his

claims file and medical records, and ordered and reviewed diagnostic and clinical tests. This

examination report contained sufficient detail for rating Mr. Cox's medical conditions and was

conducted by a healthcare professional who was competent under VA regulations to provide medical

evidence. See 38 U.S.C. § 5103A; 38 C.F.R. §§ 4.1, 4.2. Having found that a registered nurse

7

practitioner's medical-examination diagnoses and medical opinions are acceptable medical evidence,

we hold that VA's duty to assist was satisfied when a nurse practitioner conducted Mr. Cox's 2001

thorough medical examination. Therefore, although the January 1998 examination did not identify

the examiner's qualifications, and the January 2002 examination was incomplete, we cannot

conclude that the Board's determination that there was adequate medical evidence to rate the

disability was erroneous.

B. VCAA Notice

Upon receipt of a complete or substantially complete application for benefits, the Secretary

is required to inform the claimant of the information and evidence not of record (1) that is necessary

to substantiate the claim, (2) that the Secretary will seek to obtain, if any, and (3) that the claimant

is expected to provide, if any. See 38 U.S.C. § 5103(a); Quartuccio v. Principi, 16 Vet.App. 183,

187 (2002); 38 C.F.R. § 3.159(b) (2006). The Secretary is also required to "request that the claimant

provide any evidence in the claimant's possession that pertains to the claim." 38 C.F.R.

§ 3.159(b)(1); see Pelegrini v. Principi, 18 Vet.App. 112, 121 (2004). VA's regulations

implementing section 5103(a) were made applicable to all cases pending before VA on or after

November 9, 2000. See 38 C.F.R. § 3.159; see also Dingess v. Nicholson, 19 Vet.App. 473, 483

(2006).

The Court applies the "clearly erroneous" standard of review to the Board's factual

determination that VCAA notice had been satisfied. See 38 U.S.C. § 7261(a)(4); Prickett v.

Nicholson, 20 Vet.App. 370, 378-79 (2006). Under the "clearly erroneous" standard of review, the

Court may only set aside a finding of material fact when, after reviewing the record as a whole, it

is "left with the definite and firm conviction that a mistake has been committed." Gilbert v.

Derwinski, 1 Vet.App. 49, 52 (1991) (quoting United States v. U.S. Gypsum Co., 333 U.S. 364, 395

(1948)). When applying this standard, "'[i]f the [Board's] account of the evidence is plausible in light

of the record viewed in its entirety, the [Court] may not reverse it even though convinced that had

it been sitting as the trier of fact, it would have weighed the evidence differently.'" Id. (quoting

Anderson v. City of Bessemer City, 470 U.S. 564, 573-74 (1985)).

8

1. Low-Back Claim

Concerning Mr. Cox's back condition, in October 1996, the RO granted service connection

and assigned a noncompensable rating with an effective date of September 1996. "[O]nce a decision

awarding service connection, a disability rating, and an effective date has been made, section 5103(a)

notice has served its purpose, and its application is no longer required because the claim has already

been substantiated." Dingess, 19 Vet.App. at 490. Because the claim was substantiated in 1996,

before the enactment of the VCAA on November 9, 2000, VA was not required to provide section

5103(a) notice before the 1996 decision. See id.; Pelegrini, 18 Vet.App. at 121. Accordingly, the

Board's determination that VA provided Mr. Cox notice compliant with section 5103(a) and

§ 3.159(b) as to his back disability was not error, because, at the time of the September 1996

decision, such notice was not required.

2. Abdominal-Disorder Claim

VA's duty to provide affirmative notification prior to the initial decision "is not satisfied by

various post-decisional communications from which a claimant might have been able to infer what

evidence the VA found lacking in the claimant's presentation." Mayfield v. Nicholson, 444 F.3d

1328, 1333 (Fed. Cir. 2006). Here, the Board determined that the notice and assistance requirements

of the VCAA had been satisfied by an October 1996 letter and rating decision, a May 1997 SOC, a

September 1998 SSOC, a December 2001 letter, and a September 2002 SSOC. This determination

was erroneous because the Board may not rely on a combination of various predecisional and

postdecisional communications to find section 5103(a) compliant notice. See Mayfield, 444 F.3d

at 1334-35. Because the Board failed to identify any timely document that would satisfy the notice

requirements, we will assume the notice error occurred as pled by Mr. Cox, and determine whether

such error was prejudicial. See Overton v. Nicholson, 20 Vet.App. 427, 439 (2006); see also

38 U.S.C. § 7261(b)(2); Conway v. Principi, 353 F.3d 1369, 1374-75 (Fed. Cir. 2004).

Any error that renders a claimant without a meaningful opportunity to participate effectively

in the processing of his or her claim is prejudicial because such an error would have affected the

essential fairness of the adjudication. See Overton, supra; Holliday v. Principi, 14 Vet.App. 280,

289-90 (2001). Generally, an appellant "bears that burden of showing how any error is prejudicial

or has effected the essential fairness of the adjudication." Overton, 20 Vet.App. at 435. Where a

9

claimant asserts that the Secretary has committed a first-element notice error, i.e., failure to advise

a claimant regarding the information and evidence necessary to substantiate a claim, prejudice is

presumed. See id. at 436 (noting that failure to provide first-element notice "preclude[es] a claimant

from participating effectively in the processing of his or her claim, substantially defeating the very

purpose of section 5103(a) notice"). The burden then shifts to the Secretary to demonstrate that there

was no error or that the claimant was not prejudiced by any failure to give notice as to this element.

Id.

Although he alleged section 5103(a) notice errors, Mr. Cox failed to allege that he was

prejudiced by such errors. As to the second- and third-element notice errors, i.e., failure to advise

a claimant of the evidence that the Secretary would seek to obtain and the evidence that the claimant

would be expected to provide, his failure to assert prejudice would be fatal. However, despite those

pleading deficiencies, VA's failure to provide first-element notice "has the natural effect of producing

prejudice . . . . [and] the burden shifts to the Secretary to demonstrate that there was no error or that

the appellant was not prejudiced by any failure to give notice as to this element." Id. The Secretary's

argument regarding prejudice simply alleges that Mr. Cox bears the burden of alleging prejudice; the

Secretary failed to assert how Mr. Cox was not prejudiced by the notice errors. Because of the

foregoing, the Secretary failed to meet his burden. The Court finds that the presumption of prejudice

was not rebutted and thus, Mr. Cox was prejudiced because he did not have a meaningful opportunity

to participate in the processing of his claim. As a result, the Court will remand Mr. Cox's abdominal

claim to the Board for compliance with the VCAA.

C. Reasons or Bases

Mr. Cox also argues that the Board did not consider the effect of his service-connected back

disability on his employment. In rendering its decision, the Board 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." 38 U.S.C. § 7104(d)(1). The statement must be adequate to enable

a claimant to understand the precise basis for the Board's decision, as well as to facilitate review in

this Court. See Gilbert, 1 Vet.App. at 57. To comply with this requirement, the Board must analyze

the credibility and probative value of the evidence, account for the evidence that it finds to be

persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence

10

favorable to the claimant. See Caluza, 7 Vet.App. at 506. The Board's failure to provide an adequate

statement of its reasons or bases may constitute remandable error. See Gilbert, supra.

Although the Board acknowledged that Mr. Cox's employer found him unable to continue

his full-time employment because of his back disability, the Board went on to conclude that such

interference with employment is considered in the regular schedular standards and, thus,

extraschedular consideration was not warranted. While this Court and the Board are constrained by

the schedule of ratings included in chapter 38 of the Code of Federal Regulations, the regulations

also contemplate "exceptional or unusual" circumstances that may require an extraschedular rating.

38 C.F.R. § 3.321(a)-(b) (2006). The regulations provide the following guidance:

The governing norm in these exceptional cases is: A finding that the case presents

such an exceptional or unusual disability picture with such related factors as marked

interference with employment or frequent periods of hospitalization as to render

impractical the application of the regular schedular standards.

38 C.F.R. § 3.321(b). Upon submission by a VA field office, the Under Secretary for Benefits or the

director of the Compensation and Pension Service may assign an extraschedular rating. Id. Here, the

Board acknowledged the marked interference with employment, but failed to reconcile its decision that

Mr. Cox's disability picture was not exceptional with its referral of a possible TDIU claim to the RO

for further clarification and action. The Board's failure to explain why the regular schedular standards

apply exclusively when Mr. Cox may be considered totally disabled as a result of unemployability

renders the decision not to refer the claim to the Under Secretary for Benefits or the director of

Compensation and Pension Service insufficient to facilitate review in this Court and, thus, this matter

must be remanded for readjudication and an adequate statement of reasons or bases. See 38 U.S.C.

§ 7104; Gilbert, supra.

On remand, in addition to ensuring VCAA compliance as to Mr. Cox's abdominal-disorder

claim, the Board must explain why referral for extraschedular consideration is not appropriate. Mr.

Cox will be free to submit additional evidence and argument on the claim, and the Board is required

to consider any such evidence and argument. See Kay v. Principi, 16 Vet.App. 529, 534 (2002). A

final decision by the Board following the remand herein ordered will constitute a new decision that,

if adverse, may be appealed to this Court upon the filing of a new Notice of Appeal with the Court not

11

later than 120 days after the date on which notice of the Board's new final decision is mailed to the

appellant. See Marsh v. West, 11 Vet.App. 468, 472 (1998).

IV. CONCLUSION

Upon consideration of the foregoing, the Board's June 16, 2003, decision that denied service

connection for an abdominal disorder and denied referral for extraschedular consideration for his

service-connected back disability is SET ASIDE and those matters REMANDED, and the remainder

of that decision is AFFIRMED. In addition, because the Court does not believe that oral argument

would aid materially in the disposition of this appeal, Mr. Cox's motion for oral argument is denied.

See Constantino v. West, 12 Vet.App. 517, 521 (1999).

12