Dwayne A. Moore v. R. James Nicholson

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS

NO . 04-2386

DWAYNE A. MOORE , APPELLANT ,

V.

R. JAMES NICHOLSON ,

SECRETARY OF VETERANS AFFAIRS, APPELLEE.

On Appeal from the Board of Veterans' Appeals

(Decided May 15, 2007 )

Alan T. Fenley, of Schenectady, New York, for the appellant.

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

E. Moriarty, Deputy Assistant General Counsel, and Debra L. Bernal, all of Washington, D.C., for

the appellee.

Before KASOLD, LANCE, and DAVIS, Judges.

LANCE, Judge, filed the opinion of the Court. KASOLD, Judge, filed a dissenting opinion.

LANCE, Judge: The appellant, Dwayne A. Moore, appeals through counsel an August 16,

2004, decision of the Board of Veterans' Appeals (Board) that denied a disability rating for atypical

affective disorder greater than 10% from September 16, 1992, to January 26, 1997; denied a

disability rating greater than 30% from January 27, 1997, to August 7, 2002; and denied a disability

rating greater than 50% since August 8, 2002. Record (R.) at 1-25. For the reasons that follow, the

Court will affirm the August 2004 Board decision.

I. FACTS

The appellant served on active duty in the U.S. Army from 1988 to 1991. R. at 27-28. While

on active duty, he was hospitalized in January 1991 as a result of a personality disorder and

eventually discharged. R. at 95-96. In September 1992, he applied for service connection and

benefits for a personality disorder. R. at 104-07. A VA regional office denied service connection

in a January 1993 rating decision. R. at 117-18. After an extended procedural history, in July 1999

he was granted service connection for an atypical affective disorder (R. at 251-58) and, in August

1999, was assigned a 10% disability rating, effective September 16, 1992 (R. at 260-62). He

appealed the initially assigned disability rating, and was granted a 30% disability rating through an

October 2002 Supplemental Statement of the Case, effective August 8, 2002. R. at 322-31. In

August 2004, the Board issued a decision increasing his disability rating to 30% from January 27,

1997, to August 7, 2002, and to 50% from August 8, 2002, forward. R. at 1-23. This appeal

follows, challenging the denial of an initial disability rating for atypical affective disorder in excess

of 10% from September 16, 1992, to January 26, 1997; the denial of a disability rating in excess of

30% from January 27, 1997, to August 7, 2002; and the denial of a disability rating in excess of 50%

from August 8, 2002.

II. ANALYSIS

A. Medical Records

The appellant asserts that VA erred by failing to obtain service medical records (SMRs) from

the "Tripoli [sic] Army Hospital," where he was treated in January 1991 for a psychiatric condition

while on active duty. Appellant's Brief (Br.) at 8-11 (referring to Tripler Army Hospital in Honolulu,

Hawaii, see infra). Pursuant to 38 U.S.C. § 5103A(a)(1), "[t]he Secretary shall make reasonable

efforts to assist a claimant in obtaining evidence necessary to substantiate the claimant's claim for

a benefit under a law administered by the Secretary." The duty to assist is not unlimited and the

statute permits the Secretary to assert that he has been absolved from the duty because further efforts

would be futile: "The Secretary is not required to provide assistance to a claimant under this section

if no reasonable possibility exists that such assistance would aid in substantiating the claim."

38 U.S.C. § 5103A(a)(2). However, in this case the Secretary does not contest that the duty to assist

does apply and that he is obligated to obtain all relevant records identified by the appellant.

The duty-to-assist statute has specific provisions governing records such as the SMRs that

the appellant suggests exist but were not obtained. In general, "[a]s part of the assistance provided

under subsection (a), the Secretary shall make reasonable efforts to obtain relevant records (including

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private records) that the claimant adequately identifies to the Secretary and authorizes the Secretary

to obtain." 38 U.S.C. § 5103A(b)(1); see Loving v. Nicholson, 19 Vet.App. 96, 102 (2005). As to

claims for disability compensation, the statue is specific:

In the case of a claim for disability compensation, the assistance provided by the

Secretary under subsection (b) shall include obtaining the following records if

relevant to the claim:

(1) The claimant's service medical records and, if the claimant has

furnished the Secretary information sufficient to locate such

records, other relevant records pertaining to the claimant's

active military, naval, or air service that are held or

maintained by a governmental entity.

38 U.S.C. § 5103A(c), (c)(1) (emphasis added).

In his brief, the Secretary asserts that the particular SMRs at issue do not fall within his duty

to assist because they are not relevant to the disputed disability rating. Specifically, the Secretary

argues that "the fact that [the a]ppellant had an in-service psychiatric condition is not in dispute."

Secretary's Br. at 15-16. Accordingly, he argues that the SMRs "cannot shed light on [the disability

rating] because they only show that he had an in-service condition–a point that has already been

acknowledged by VA." Secretary's Br. at 16. Hence, the dispute between the parties is whether,

based on the facts of this case, the SMRs in contention would be relevant to the appellant's claim.

The SMRs that the appellant alleges, for the first time on appeal to this Court (Br. at 8),

should have been obtained are referred to an SMR in the record. The record before the Court

contains a January 14, 1991, "Chronological Record of Medical Treatment" from the Naval Medical

Clinic at Pearl Harbor, Hawaii. R. at 95. In that record, Staff Psychiatrist Cdr. T.A. Bischoff stated

that the appellant "was originally evaluated by me on 3 Jan. '91 after he was hospitalized on the

psychiatric ward at Tripler (29 Dec. - 3 Jan.)." Id. After describing the appellant's symptoms and

treatment, Cdr. Bischoff diagnosed the appellant as having, inter alia, a "dependant personality

disorder" and recommended that the appellant be separated from service. R. at 95-96. Moreover,

evidence contemporaneous with his hospitalization at Tripler and discharge from service notes that

he experienced a psychological episode in December 1990 triggering his February 1991 separation

from service. The December 1992 VA medical examination recognized that the appellant "was

released in February 1991, as part of an R4, or General Medical Discharge, for personality disorder."

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R. at 112. In addition, the August 1999 rating decision stated that "in December 1990 [the appellant]

was reported to have gone 'berserk' and to have made superficial lacerations to his wrists." R. at 260.

In his brief, the appellant argues that his condition has been the subject of "inconsistent diagnoses"

and that "evidence in the records of the veteran's treatment at Tripoli [sic] Army Hospital, could well

contribute to a more complete picture of the circumstances surrounding the origin of [the veteran]'s

disability." Appellant's Br. at 10.

In general, the appellant bears the burden of persuading the Court that the Board decision

below is tainted by a prejudicial error that warrants reversing or remanding the matter for the

investment of the additional time and effort that would be required by VA to produce a new decision

in his case. See Overton v. Nicholson, 20 Vet.App. 427, 435 (2006) ("The appellant carries the

burden of persuasion regarding contentions of error."); Hilkert v. West, 12 Vet.App. 145, 151 (1999)

(en banc) (holding that appellant had failed to satisfy burden of demonstrating error in Board

decision, and thus affirming).

When an appellant asserts that the Secretary failed to obtain relevant records, the Court looks

at the available descriptions of the records to determine whether the appellant has presented a

persuasive argument that they may be relevant to the claim. Gobber v. Derwinski, 2 Vet.App. 470,

472 (1992). In this case, it is undisputed that the alleged records are SMRs that would document a

psychiatric hospitalization occurring while the appellant was in service. However, as the Secretary

points out, the appellant already has been granted service connection for his psychological condition

and the only issue on appeal is the appropriate disability rating for the appellant's condition during

the period for which it is service-connected.

Even if this were a claim for service connection, the issue of whether the appellant had an

in-service disease or injury would be distinct from the issue of whether he had a current disability.

See Hickson v. West, 12 Vet.App. 247, 253 (1999); Francisco v. Brown, 7 Vet.App. 55, 58 (1994)

("Compensation for service-connected injury is limited to those claims which show a present

disability."); Rabideau v. Derwinski, 2 Vet.App. 141, 143 (1992) (without proof of a present

disability, there can be no valid claim). Moreover, as to disability rating, the relevant inquiry

pertains to the symptoms that the claimant was experiencing during the period for which he or she

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seeks compensation. See Francisco, 7 Vet.App. at 58 (rejecting appellant's argument that the current

disability rating opinion was inadequate because it failed to fully discuss past records).

Here, the appellant appealed an initial claim for a higher disability rating. Such an inquiry

must consider a broad range of evidence because staged ratings, or separate ratings for separate

periods of time based on the facts found, may be assigned. See Fenderson v. West, 12 Vet.App. 119,

126 (1999). An initial rating claim is distinct from an increased-rating claim, which is a new claim.

See Suttman v. Brown, 5 Vet.App. 127, 136 (1993) (claim for increase "based upon facts different

from the prior claim").

Though the Court in Fenderson recognized that an initial claim for a higher rating required

consideration of the evidence of record spanning a broader period of time than that considered in an

increased-rating claim, the present level of disability remains of primary concern in an initial rating

claim for a higher disability. While the Fenderson Court remanded the matter for VA to consider

specific medical evidence dated within two years after the date of the veteran's claim, it is significant

that it did not require that VA obtain evidence that predated the date of the claim. See Fenderson,

12 Vet.App. at 126-27. In fact, in prior cases, the Court has chastised the Secretary for relying on

medical evidence that was not contemporaneous with the time period in dispute. See Proscelle

v. Derwinski, 2 Vet.App. 629, 632 (1992) (ruling that it was improper to rate a disability based on

evidence that predated the decision by four years).

Accordingly, the Court is not persuaded that the SMRs that the appellant alleges should have

been obtained would be relevant to any disputed issue, even if they were obtained. In other words,

even if the SMRs were obtained and indicated that the appellant displayed a symptom in service that

was not observed in any of the postservice medical examinations, such records would not help his

claim. He is simply not entitled to disability compensation for symptoms he experienced in service

where those symptoms did not persist into the period for which he has been awarded compensation.

The issue on appeal is what level of disability did the appellant experience after September 16, 1992?

See Francisco, supra. To answer that question, the Board properly obtained and relied upon medical

evidence from the period after September 16, 1992.

Even assuming that the SMRs would be relevant to prove that the symptoms noted in service

continued to manifest after service, the Court cannot conclude that the failure to obtain those records

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was prejudicial to the appellant in this case. Marciniak v. Brown, 10 Vet.App. 198, 201 (1997)

(appellant has burden alleging prejudice with specificity). "We have also come a long way from the

time when all . . . error was presumed prejudicial and reviewing courts were considered citadels of

technicality. The harmless-error rules adopted by this Court and Congress embody the principle that

courts should exercise judgment in preference to the automatic reversal for 'error' and ignore errors

that do not affect the essential fairness of the trial." McDonough Power Equip., Inc. v. Greenwood,

464 U.S. 548, 553 (1984). Moreover, the Court recognizes that the resources of the Secretary are

not infinite. Grivois v. Brown, 6 Vet.App. 136, 139 (1994).

Accordingly, the duty to assist is not a license for the Court to remand a matter for a fishing

expedition. Cf. Gobber, 2 Vet.App. at 472 (ruling on the former version of the duty to assist,

codified as 38 U.S.C. § 5107 (West 1991)). Here, the Board relied on multiple VA medical

examinations conducted during the periods in question as well as treatment records private providers

created contemporaneous with treatment. R. at 8-13. Moreover, the record contains a description

of the appellant's in-service symptoms and a diagnosis prepared 11 days after the in-service

hospitalization by the same physician who treated the appellant during that time. The appellant does

not offer a coherent theory of why the alleged SMRs would be meaningfully different from those

available or how they could alter the picture created by the copious direct evidence of his postservice

symptoms provided by the numerous examinations and treatment records from the periods at issue.

All that the appellant states is that his condition has been the subject of "inconsistent diagnoses" and

that "evidence in the records of the veteran's treatment at Tripoli [sic] Army Hospital, could well

contribute to a more complete picture of the circumstances surrounding the origin of [the appellant]'s

disability." Appellant's Br. at 10. This vague assertion is insufficient to carry the appellant's burden.

Locklear v. Nicholson, 20 Vet.App. 410, 416-17 (2006) (Court unable to find error when arguments

are "far too terse to warrant detailed analysis by the Court"); Coker v. Nicholson, 19 Vet.App. 439,

442 (2006) ("Court requires that an appellant plead with some particularity the allegation of error

so that the Court is able to review and assess the validity of the appellant's arguments.").

Although our dissenting colleague asserts this decision is contrary to established caselaw,

Fenderson v. West, 12 Vet.App. 119, 126 (1999), is inapposite. In Fenderson, the Court ordered VA

to consider medical records from the entire period for which the veteran's condition was eligible for

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service connection, back to the date of his discharge, because the initial grant of service connection

was on appeal and, therefore, staged ratings may have been appropriate. Id. In contrast, although

Mr. Moore's claim also involves an initial rating and presents the possibility of staged ratings, those

ratings would not extend past the undisputed date the claim was filed, much less into the period

before the appellant separated from service. In this case, the disputed evidence relates to a period

prior to the appellant's discharge from active duty. He was discharged from active duty on February

7, 1991. R. at 27. He filed his claim for service connection on August 12, 1992. R. at 107. The

earliest date for which he could be granted service connection is the date of his August 12, 1992,

claim. See 38 U.S.C. § 5110(a). Because Fenderson requires VA to consider evidence throughout

the period for which a claimant is service connected in an initial claim for benefits so a staged rating

may be considered, and the disputed evidence in this case does not address the degree of the

appellant's disability during the period for which he is eligible for service connection, our decision

here does not conflict with Fenderson.

To the extent that our dissenting colleague argues that the records are necessary for the

Secretary to perform his general duty to view the appellant's condition "in relation to its history," he

offers no theory as to how prejudicial error has occurred here. See Conway v. Principi, 353 F.3d

1369, 1373 (Fed. Cir. 2004). The question before the Court is whether this evidence could change

the amount of benefits to which the appellant is entitled? Neither the dissent nor the appellant has

presented such a theory. It is certainly true that the precise content of the disputed records (assuming

they exist) is not known to the Court. Nonetheless, the Court does know that the appellant is not

entitled to compensation for symptoms experienced in January 1991 when his condition is being

rated only from September 1992 forward. No argument has been presented that the extensive

evidence from September 1992 forward does not accurately describe the symptoms the appellant

experienced during the time period for which he is entitled to compensation.

In summary, the claim on review is for a higher disability rating based on the symptoms

experienced by the appellant after September 16, 1992, not for a different diagnosis or a more

complete picture of the circumstances surrounding the origin of his disability; the record contains

substantial direct evidence of the level of the appellant's disability during the time in question as well

a detailed and contemporaneous SMR prepared by the same physician who treated the appellant

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during his in-service hospitalization; and the alleged SMRs at issue could be no better than

circumstantial evidence as they predate the period in dispute by well over a year. Hence, the Court

cannot conclude that the essential fairness of the Board decision was affected when the alleged

SMRs predate the period at issue and the Board had copious direct evidence of the symptoms

experienced by the appellant after September 16, 1992.

B. Adequacy of the Medical Examinations

The appellant also argues VA violated its duty to assist by failing to conduct an adequate

medical examination. Br. at 8. The Secretary is required to provide a medical opinion when such

an opinion is necessary to make a decision on the claim. See 38 U.S.C. § 5103A(d). Such medical

opinions must be "accurate and fully descriptive, with emphasis upon the limitation of activity

imposed by the disabling condition." See 38 C.F.R. § 4.1 (2006). An opinion is adequate where it

is based upon consideration of the veteran's prior medical history and examinations and also

describes the disability in sufficient detail so that the Board's "evaluation of the claimed disability

will be a fully informed one." Ardison v. Brown, 6 Vet.App. 405, 407 (1994) (quoting Green v.

Derwinski, 1 Vet.App. 121, 124 (1991)); see also Floyd v. Brown, 9 Vet.App. 88, 93 (1996).

The appellant specifically argues that, pursuant to Friscia v. Brown, 7 Vet.App. 294, 297

(1994), "the examination must include an opinion on the effect the veteran's service-connected

disabilities have on his ability to work." Br. at 12. He asserts that the December 1992, November

1996, February 1998, and October 2002 medical examinations were all inadequate because the

examiners did not adequately discuss the effect of the disability on his ordinary activities and

employment. Br. at 11-14. We disagree. Because the medical examiners discussed how his

condition affected him in the work environment, his argument must fail.

The regulations impose specific duties on medical examiners and rating specialists. The

medical examiner provides a disability evaluation and the rating specialist interprets medical reports

in order to match the rating with the disability. Title 38, § 4.10 of the Code of Federal Regulations

describes the responsibilities of a medical examiner in the veterans benefits system:

The basis of disability evaluations is the ability of the body as a whole, or of the

psyche, . . . to function under the ordinary conditions of daily life including

employment. . . . This imposes upon the medical examiner the responsibility of

furnishing . . . full description of the effects of disability upon the person's ordinary

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activity. In this connection, it will be remembered that a person may be too disabled

to engage in employment although he or she is up and about and fairly comfortable

at home or upon limited activity.

38 C.F.R. § 4.10 (2006). In addition, "[f]or the application of this schedule, accurate and fully

descriptive medical examinations are required, with emphasis upon the limitation of activity imposed

by the disabling condition." 38 C.F.R. § 4.1 (2006).

How those disabilities translate into a potentially compensable disability is in the sphere of

responsibilities of a rating specialist. See 38 C.F.R. § 4.2 (2006). Title 38, § 4.2 of the Code of

Federal Regulations describes the responsibilities of a rating specialist:

It is the responsibility of the rating specialist to interpret reports of examination in the

light of the whole recorded history, reconciling the various reports into a consistent

picture so that the current rating may accurately reflect the elements of disability

present. Each disability must be considered from the point of view of the veteran

working or seeking work.

Thus, medical examiners and rating specialists, while having different responsibilities, may both be

required to discuss the veteran's ability to work as it pertains to the veteran's ordinary activities.

The appellant's reliance on Friscia as contradicting this allocation of responsibilities is

unavailing. The Court in Friscia limited its holding to claims where the occupational history of the

claimant is relevant, concluding that the Board had a duty, where the critical issue was total disability

based on individual unemployability (TDIU), to request a medical opinion to discuss what effect the

veteran's service-connected disability had on his ability to work. Friscia, 7 Vet.App. at 297. As

observed in Friscia, regulations governing TDIU, such as 38 C.F.R. § 4.16 (2006), and adjudication

procedures found in the VA Adjudication Procedure Manual, M21-1, Part VI, make a veteran's

occupation relevant. Id. at 296-97. Accordingly, even though a doctor is not an expert on

employment in general, once the regulations make a claimant's specific occupation relevant, then it

is possible to get a medical opinion on whether a claimant's service-connected disabilities prevent

him or her from performing the ordinary tasks of that profession. Hence, the Court in Friscia

required a medical opinion on whether the appellant's post-traumatic stress disorder rendered him

unable to perform the ordinary tasks associated with aeronautics, business administration, and

computer programming–the education and professions listed by the appellant. But, that case is

inapplicable here because the Secretary was reviewing Mr. Friscia's eligibility for TDIU. Id. at 295.

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In this case the appellant is not seeking a TDIU rating, merely a higher-than-previously-granted

disability rating for atypical affective disorder.

The allocation of responsibilities between a medical examiner and a rating specialist is also

discussed in Beaty v. Brown, 6 Vet.App. 532 (1994). In Beaty, a medical examination on the

appellant's ability to perform specific tasks associated with his profession was appropriate and

necessary. Mr. Beaty was awarded service connection in 1950 for injuries of the left eye, left thigh,

left hand, jaw, right eye, and multiple minute scars. Id. at 534. He was service connected for the

conditions with a combined 70% disability rating. Id. He had an eighth-grade education and the

only profession he had ever known was farming. Id. at 535. A physician advised him to "retire"

because of his service-connected disabilities. Id. at 538. The Board found he was employable and

denied his claim for TDIU benefits. Id. at 537. It cited the rejection letter from a prospective

employer, the owner of an auto service center, who had turned him down for a job because the

employer did not offer a training program and could not hire someone without adequate experience.

Id. The Board's finding that he could do automotive work was contradicted by a VA medical

examiner who reported that, because of his service-connected hand gunshot wound, he could not grip

tools such as a hammer or pair of pliers. Id. at 537. In reversing the Board decision, the Court found

that, where the claimant's ability to perform the tasks of a certain profession is relevant, a medical

opinion on whether the claimant can perform those tasks is appropriate.

Neither Beaty nor Friscia changed the regulatory allocation of responsibilities between rating

specialists and medical examiners. Rating specialists determine, through the rating schedule, the

effect of a disability on a claimant's ability to earn a living, but in addition to the rating specialist,

a medical professional may be required to give an opinion on specific questions such as whether a

claimant's condition precludes standing for extended periods, lifting more than a certain weight,

sitting for eight hours a day, or performing other specific tasks. Here though, the appellant does not

seek benefits under a regulation that requires consideration of his ability to perform a particular job.

Although our dissenting colleague asserts any discussion of Friscia and Beaty is obiter dictum, the

appellant asserted the examinations were inadequate in light of Friscia. Br. at 12. Accordingly, the

Court is compelled to discuss Friscia in concluding that the appellant's reliance on that case is

misplaced. Our analysis of the relevant regulations is the basis for our rejection of the appellant's

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characterization of our holding in Friscia. It is not a basis for ignoring the appellant's explicit

argument that Friscia mandates a ruling that the medical examination was inadequate in this case.

The requirement that medical examiners provide a report adequate for a rating decision will

frequently require them to discuss, as the examiners did here, how the disability manifests itself in

the claimant's ordinary activities, which include employment. See 38 C.F.R. § 4.10. However, it

does not require medical examiners to offer opinions on the general employability of a claimant.

In this case, the medical examiners and clinicians have, from the outset, appropriately

discussed how the appellant's condition affected his ordinary activities, including work. Although

employed (R. at 112), he was "irritable and anxious and hypervigilent" (R. at 113). He had difficulty

managing anger and was irritable. R. at 141. He was employed but irritable, angry and depressed

at home. R. at 143-44. "He has held a series of manufacturing jobs which he left for better

opportunities or which went out of business. . . . He admits that his anxiety has never interfered with

his performance at work and that he always gets good evaluations on the job." R. at 175. "[H]e is

functioning quite well and is not limited in any major life activity." R. at 176. "He states that one

of the ways that he deals with his stress is he is actually working not only a regular week, but in

addition to that, working quite a bit of overtime . . . ." R. at 318. "He does work full-time, in fact

works a lot of overtime, to help deal with the financial difficulties, but he clearly has significant

impairment in his family life and his social functioning." R. at 320. "It appears that the area of

social functioning is most impacted by Mr. Moore's symptoms." R. at 362. "Mr. Moore suffers from

an anxiety disorder that has been exacerbated by the loss of his job." R. at 367. The medical

examinations appropriately discussed the appellant's employment history in such a way as to

illustrate his symptoms in a manner that the rating specialist could then apply those symptoms to the

rating code. In summary, it was appropriate under § 4.10 for the medical examiner to discuss the

appellant's specific employment history to illustrate his anxiety, depression, irritability, and other

symptoms. However, the question of how those symptoms translate into a disability rating based

on the "average impairment in earnings capacity" was properly left to the Board under § 4.2.

Accordingly, the appellant misses the mark in arguing that the medical examinations were

inadequate because the examiners did not opine on his general ability to work. He does not argue

that his symptoms were not accurately described by a medical report of record. Further, reliance on

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Friscia, which is properly limited to cases in which the occupational history of the claimant is

relevant, is misplaced. It was the role of rating specialists to take the medical evidence of his

symptoms and limitations and determine the effect they had on his general ability to work. A

contrary holding would call into question the key premise of the VA rating system: that lay rating

specialists are fit to evaluate the effect of a medical disability on a veteran's ability to work.

Although our dissenting colleague asserts the discussion of Friscia and Beaty is orbiter dictum, the

appellant specifically argues the medical opinions of record were inadequate pursuant to Friscia.

VA must abide by relevant statutes, regulations, and caselaw. See 38 U.S.C. §§ 7261(a)(1),

(a)(3)(C)-(D). A finding that VA has satisfied regulatory requirements is not dispositive of whether

it has satisfied caselaw requirements. Hence, the Court concludes that the medical opinion sought

by the appellant on appeal is neither necessary nor appropriate for rating his condition.

III. CONCLUSION

Based upon the foregoing, the August 16, 2004, Board decision is AFFIRMED.

KASOLD, Judge, dissenting: Because I believe the majority misapply the law, I respectfully

dissent. A primary issue in this case is whether reasonably identified service medical records

regarding the hospitalization of Mr. Moore for a psychiatric problem should have been obtained by

the Secretary, and, if not obtained, whether the Secretary should have so informed Mr. Moore. There

is no dispute that the Secretary has a specific, statutory duty to obtain all relevant service medical

records or inform the claimant that he could not do so. See 38 U.S.C. § 5103A(a)(2), (b)(2)-(3), (c).

There also is no dispute that the Secretary did not obtain these in-service hospitalization records and

did not so inform Mr. Moore.

Despite the fact that the hospitalization records relate to an in-service psychiatric disability

and Mr. Moore's claim for disability compensation is based on his psychiatric disability, and despite

the fact the Secretary's own regulations require a disability to "be viewed in relation to its history"

for rating purposes, see 38 C.F.R. § 4.1 (2006), and further require that the weight to be given the

evidence is to be "thoroughly and conscientiously studied," 38 C.F.R. § 4.3 (2006), the majority, on

de novo review, find that the hospitalization records are not relevant and that therefore the Board did

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not err in not securing them. In addition to the obvious fact that these hospitalization records are

generally relevant on their face as well as the fact that the majority cannot know the contents of the

records that the Secretary failed to obtain and that are not available for review, the majority makes

its relevancy finding in the first instance and in the absence of any decision below regarding the

relevance of the documents or why they were not obtained. See Wood v. Derwinski, 1 Vet.App. 190,

193 (1991) ("The [Board] has the duty to assess the credibility and weight to be given to the

evidence."); see also Ashmore v. Derwinski, 1 Vet.App. 580, 582 (1991).

In finding that the hospital records are not relevant, the majority rely on (1) the fact that the

Board reviewed other service medical records regarding Mr. Moore's psychiatric condition and (2)

the proposition that since Mr. Moore has been awarded service connection, the only remaining issue

is the appropriate disability rating after the grant of service connection. As to the first basis, it is

axiomatic that having some relevant evidence on an issue is inapposite to the issue of relevancy of

other evidence on the issue. See Baritsky v. Principi, 4 Vet.App. 41, 43 (1993) (noting that relevant

and material evidence was also cumulative in that case). Moreover, to the extent the existence of

some relevant records may enter into consideration of whether a claimant has been prejudiced by the

failure of the Secretary to secure all relevant records, without having the benefit of viewing the

records, one cannot quantify whether the service medical records regarding Mr. Moore's week-long

hospitalization for a psychiatric condition simply duplicate others in the record. Indeed, almost by

definition, these records likely are far more descriptive of his disability than other,

non-hospitalization records. In the face of the statutory duty to obtain all relevant service medical

records, it cannot be said that there is no prejudice in not obtaining these hospital records when they

are relevant on their face and not available for review.1 Cf. Wagner v. United States, 365 F.3d 1358,

1365 (Fed. Cir. 2004) (refusing to apply the harmless error analysis and holding: "Where the effect

1

The observation of the majority that I do not offer a theory of prejudice ignores my discussion of 38 C.F.R.

§§ 4.1 and 4.3, and the fact that the hospital records are likely more telling of Mr. Moore's disability than outpatient

records and therefor required to be considered pursuant to those regulations. The observation of the majority also

evinces a failure to recognize that (1) the hospital records are prima facie relevant, (2) the Secretary has a statutory duty

to obtain all relevant service medical records, (3) in the absence of the documents, prejudice is unquantifiable, and (4)

under these circumstances, the Court should not speculate as to what the outcome would have been had the records been

obtained. See Wagner v. United States, 365 F.3d 1358, 1365 (Fed. Cir. 2004).

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of an error on the outcome of a proceeding is unquantifiable . . . , we will not speculate as to what

the outcome might have been had the error not occurred.").

As to the latter basis for the majority's conclusion that the hospital records are not relevant,

the majority fail to recognize that, even assuming that the degree of disability after submission of

the claim (as opposed to during service) is the primary issue, the evaluation of that disability, as

noted above, must nevertheless "be viewed in relation to its history" based on a thorough and

conscientious study of the evidence. 38 C.F.R. §§ 4.1, 4.3. Here, a significant part of Mr. Moore's

medical history relevant to his psychiatric disability is simply missing. Thus, the probative value of

that missing evidence could not have been, and was not, "thoroughly and conscientiously studied"

below (or here, for that matter). See Wagner, supra. Moreover, this case involves an initial

disability rating, and the majority's premise that the specific disability level extant after submission

of a claim is the primary issue in an initial disability rating decision – as it is for an increased-rating

claim – is contrary to our caselaw. See Fenderson v. West, 12 Vet.App. 119, 126 (1999) (explicitly

rejecting the concept that the current level of disability is of "primary importance" in an initial

disability rating, as opposed to an increased rating claim).2 In sum, the majority's conclusion that

the missing hospitalization records are not relevant has no basis in fact or law.

I also write separately to note that although I agree with the majority that medical opinions

addressing the impact that service-connected disabilities have on one's work ability are necessary to

a proper rating when, as here, those ratings are specifically dependent on such impact, see 38 C.F.R.

§§ 4.1 and 4.10 (2006); see also 38 C.F.R. § 4.130, Diagnostic Code 9410 (2006) (each disability

rating above 0% is based, in part, upon occupational impairment due to disability), and further agree

that the medical examinations in this case complied with these regulatory requirements, I fail to

understand why the majority reject the application of Friscia v. Brown, 7 Vet.App. 294 (1994), and

Beaty v. Brown, 6 Vet.App. 532 (1994), to this issue. In my view, they stand for the very same

2

Although the majority find Fenderson inapposite because it involved a remand for consideration of medical

records back to the date of discharge, this view ignores the fact Fenderson involved an issue over the weight given to

post-service medical records that were in the file and did not involve, as is the case here, missing service medical records

addressing the disability for which benefits are sought. The import and relevance of Fenderson to the issue in this case

is that, as stated in the text of my dissent, the Court explicitly rejected the concept underlying the majority opinion; i.e.,

that the current level of disability is of "primary importance" in an initial disability rating. Fenderson, 12 Vet.App. at

126.

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proposition, i.e., that a determination as to the impact that service-connected disabilities have on

one's work ability is necessary to a proper rating when the disability rating is specifically dependent

on such impact. To the extent that the majority's analysis may come into play in the future, I note

my objection. I further note that, inasmuch as the Court today concludes that §§ 4.1 and 4.10 require

medical examiners to render rating opinions that address the impact of disabilities on work ability

when the rating criteria specifically take into consideration this factor and further finds that the

medical opinions in this case met that standard, any discussion of Friscia and Beaty – even though

raised expressly by the appellant – is unnecessary to the disposition of this appeal and the conclusion

that these cases are not applicable is obiter dictum. Cf. Hatch v. Principi, 18 Vet.App. 527, 531

(2004) (citing Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 67 (1996) (the result and opinion

necessary for result is binding)).

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