Woehlaert v. Nicholson

This version includes the errata dtd 4Sep07 - e

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS

NO . 05-2302

EDMUND WOEHLAERT , JR ., APPELLANT ,

V.

R. JAMES NICHOLSON ,

SECRETARY OF VETERANS AFFAIRS, APPELLEE.

On Appeal from the Board of Veterans' Appeals

(Decided August 24, 2007 )

Michael R. Viterna, of Northville, Michigan, was on the brief for the appellant.

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

Carolyn F. Washington, Deputy assistant General Counsel; and Brent A. Bowker, all of

Washington, D.C., were on the brief for the appellee.

Before LANCE, DAVIS, and SCHOELEN, Judges.

LANCE, Judge: The appellant, Edmund Woehlaert, Jr., through counsel, appeals a June 16,

2005, decision of the Board of Veterans' Appeals (Board). In that decision, the Board denied the

appellant's request to reopen his previously disallowed service-connection claim for a heart

condition because new and material evidence had not been presented. Record (R.) at 1-12. This

appeal is timely, and the Court has jurisdiction over the case pursuant to 38 U.S.C. §§ 7252(a) and

7266(a). Two questions are presented on appeal. First, if VA performs a medical examination of

a claimant after the regional office (RO) reopens a previously adjudicated claim, may the Board

nevertheless decide not to reopen that claim on appeal? Second, if the Board can decide not to

reopen such a claim and the Court determines that it has properly done so, is the adequacy of VA's

new medical examination a viable issue on appeal? For the reasons stated herein, the Court holds

that the Board must review the RO's decision to reopen a previously disallowed claim even if a new

medical examination of a claimant is performed pursuant to 38 U.S.C. § 5103A(d). The Court

further holds that if the Board properly decides not to reopen such a claim, the adequacy of any new

VA medical examinations conducted pursuant to 38 U.S.C. § 5103A(d) is not a viable issue on

appeal. Accordingly, the Court will affirm the Board's decision.

I. FACTS

The appellant served in the U.S. Army from April 1943 to September 1943. R. at 16, 23, 35.

In June 1943, he was hospitalized for coughing, shortness of breath, a severe headache, generalized

weakness, and a cold of several weeks' duration. R. at 31-34. A heart murmur was detected during

his initial examination. R. at 31. The appellant remained in the hospital until his discharge from

service. R. at 18-20, 35-43. His final, primary diagnosis was "neurasthenia, severe, caused by

psychoneurosis." R. at 16, 23; see STEADMAN 'S MEDICAL DICTIONARY 1206 (27th ed. 2000)

(defining "neurasthenia" as "[a]n ill-defined condition, commonly accompanying or following

depression, characterized by vague fatigue believed to be brought on by psychological factors").

The Board of Medical Officers (BMO) later confirmed this diagnosis. R. at 22-23. The BMO also

concluded that this was a preexisting and permanently disabling condition, rendering the appellant

unfit for further duty. Id. The appellant was discharged shortly thereafter. R. at 23. His service

medical records do not include a diagnosis for a heart condition or rheumatic fever.

In February 1955, a private physician, Joseph B. Conti, M.D., diagnosed the appellant with

a heart condition, mitral stenosis. R. at 49. Two months later, a VA examiner diagnosed the

appellant with "organic heart disease, probably rheumatic" and "psychoneurosis, anxiety and

conversion, moderately severe, of life long duration." R. at 60. In May 1955, the Detroit, Michigan,

RO denied the appellant's claims for service connection for a heart condition and a nervous disorder.

R. at 62. The RO found that the appellant had not incurred or aggravated either of those disabilities

in service. Id. The appellant did not appeal.

The appellant has received medical treatment for his heart condition since the RO initially

denied his claim. R. at 69-71, 78-90, 120, 220-21. VA has received some of those treatment records

as well as additional lay evidence, including a 1974 letter from the appellant's wife and two personal

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statements from the appellant that were drafted during the pending adjudication. R. at 64, 66, 69,

78, 87, 92, 120, 220-23, 244.

In May 2002, the appellant sought to reopen his heart disorder claim, because he "believe[d]

[he] was hospitalized while in service for rheumatic fever." R. at 92. In June 2003, the RO

reopened the appellant's claim, but denied it on the merits. R. at 212-15. The appellant appealed.

R. at 217-18. In December 2003, the appellant received two new VA medical examinations. R. at

220-24. A decision review officer later denied the appellant's claim on the merits. R. at 228-42.

In June 2005, the Board issued the decision here on appeal. R. at 1-12. After reviewing the

evidence of record, the Board denied the appellant's request to reopen his heart disorder claim. R.

at 10-12. The Board found that the evidence presented since the RO's May 1955 decision was not

new and material. Id.

II. ANALYSIS

The appellant raises three arguments on appeal. First, he argues that the Board had to decide

the merits of his claim, because the RO reopened the claim and the Secretary performed two new

medical examinations during the pending adjudication. Appellant's Brief (Br.) at 14-15. Second,

he argues that the Board erroneously found that new and material evidence had not been presented,

and that inadequate reasons or bases were provided in support of its decision. Br. at 7-14, 16.

Finally, he argues that the Board erroneously failed to find that VA violated the duty to assist when

it provided an inadequate medical examination pursuant to 38 U.S.C. § 5103A(d)(1)-(2) and

38 C.F.R. § 3.159(c)(4) (2006). Br. at 15. The Secretary has responded by defending the Board's

decision in all respects.

A. The Board's Authority To Deny a Request To Reopen a Previously Adjudicated Claim

The appellant argues that the RO decision denying his claim should be reopened under the

new and material evidence exception to the rule of finality. 38 U.S.C. §§ 5108, 7105(c); 38 C.F.R.

§ 3.156(a) (2006); see Suttman v. Brown, 5 Vet.App. 127, 135-36 (1993). This exception allows a

veteran to reopen a previously disallowed claim if new and material evidence is submitted with

respect to that claim. 38 U.S.C. §§ 5108, 7105(c). A claim to reopen requires a sequential analysis

of two questions. Manio v. Derwinski, 1 Vet.App. 140, 145 (1991). Has the necessary new and

material evidence been presented to justify reopening the claim? Manio, 1 Vet.App. at 145. If so,

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is the veteran entitled to an award of benefits based on all of the evidence of record? Id. The first

question, whether new and material evidence has been presented, is a jurisdictional issue for the

Board. See Prillaman v. Principi, 346 F.3d 1362 (Fed. Cir. 2003); Jackson v. Principi, 265 F.3d

1366 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996); Butler v. Brown, 9 Vet.App.

167 (1996). Therefore, it must be asked and answered by the Board de novo whenever a claim to

reopen is filed. See Barnett, 83 F.3d at 1383. More importantly, an unfavorable answer to this

question requires a summary dismissal of the claim, i.e., without consideration of the second

question or any other issues concerning the merits. A review of the relevant cases in this area

confirms this conclusion.

In Barnett v. Brown, a case involving the attempted reopening of a claim subsumed in a final

Board decision, see 38 U.S.C. § 7104(b), the U.S. Court of Appeals for the Federal Circuit (Federal

Circuit) held that "the [Board] is required to determine whether new and material evidence has been

presented before it can reopen a claim and re-adjudicate service connection or other issues going to

the merits." 83 F.3d at 1384. The Federal Circuit further held that "[w]hat the regional office may

have determined in this regard is irrelevant[,] . . . [because] the Board's jurisdiction [does not vary]

according to how the regional office ruled." Id. at 1383. In Butler v. Brown, supra, we later

concluded that "[Barnett] teaches that the Board must preliminarily decide that new and material

evidence has been presented in a case it has previously adjudicated, before addressing the merits of

the claim." Id. at 171. Finally, in Jackson v. Principi, the Federal Circuit held that "the Board has

a jurisdictional responsibility to consider whether it was proper for a claim to be reopened,

regardless of whether the previous action denying the claim was appealed to the Board." 265 F.3d

1366, 1369 (Fed. Cir. 2001). These decisions eliminate any doubt as to the jurisdictional nature of

the new and material evidence requirement.

Turning to the merits of the first issue presented, the appellant argues that because "the RO

reopened [his] claim . . . and undertook additional medical development in the form of conducting

two . . . examinations thereafter, the Board was obligated to conduct a merits evaluation of the

claim." Br. at 14. We disagree. As previously discussed, the new-and-material-evidence

requirement is jurisdictional. See Prillaman, Jackson, Barnett, and Butler, all supra. Therefore, the

Board had to decide whether new and material evidence had been presented, regardless of the RO's

prior decision or subsequent actions. Barnett, 83 F.3d at 1383. This does not mean that the Board

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can simply ignore the evidence developed after the RO reopens a claim. See 38 U.S.C. § 7104(a)

(requiring the Board to decide each claim "based on the entire record in the proceeding and upon

consideration of all evidence and material of record"). To the contrary, the Board must consider

all of the evidence of record, including any new medical examinations performed after the RO

reopens a claim, when determining whether new and material evidence has been presented. Id. That

being said, the Board cannot even consider–much less decide– the merits of a previously adjudicated

claim once it finds such evidence lacking. Butler, 9 Vet. App. at 171 ("[O]nce the Board finds that

no [new and material] evidence has been offered, that is where the analysis must end."). For these

reasons, the Court holds that even though the RO reopened the appellant's claim and ordered two

new medical examinations, the Board was not bound to decide the merits of his claim.

B. The Board's New-and-Material-Evidence Determination

The Court reviews the Board's determination of whether new and material evidence has been

presented since a prior adjudication under the "clearly erroneous" standard. Elkins v. West, 12

Vet.App. 209, 217 (1999) (en banc); see also Prillaman, 346 F.3d at 1367 (upholding the application

of the "clearly erroneous standard" of review to the Board's new-and-material-evidence

determinations); Fortuck v. Principi, 17 Vet.App. 173, 178-79 (2003) (Board determinations as to

whether new and material evidence has been presented are reviewed under the "clearly erroneous"

standard of review). "New and material evidence" is defined as follows:

New evidence means existing evidence not previously submitted to

agency decisionmakers. Material evidence means existing evidence

that, by itself or when considered with previous evidence of record,

relates to an unestablished fact necessary to substantiate the claim.

New and material evidence can be neither cumulative nor redundant

of the evidence of record at the time of the last prior final denial of

the claim sought to be reopened, and must raise a reasonable

possibility of substantiating the claim.

38 C.F.R. § 3.156(a) (2006) (effective August 29, 2001); Voracek v. Nicholson, 421 F.3d 1299 (Fed.

Cir. 2005). The RO originally denied the appellant's claim because there was no evidence "of in-

service incurrence or aggravation" of heart disease. See Hickson v. West, 12 Vet.App. 247, 253

(1999); Caluza v. Brown, 7 Vet.App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996)

(table); see also Heuer v. Brown, 7 Vet.App. 379, 384 (1995). Therefore, before the merits of his

claim can be readjudicated, the appellant must present new evidence that, "by itself or when

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considered with previous evidence of record, relates to an unestablished fact necessary to" and

"raise[s] a reasonable possibility of" substantiating the in-service incurrence or aggravation of his

heart disease. 38 C.F.R. § 3.156(a); see Voracek v. Nicholson, 421 F.3d 1299 (Fed. Cir. 2005). The

appellant, citing the new medical records and lay statements he has submitted since the prior

adjudication, argues that such evidence has been presented here. Br. at 7-14, 16. However, the

Board reviewed this evidence and found it to be "merely cumulative" of the evidence already of

record. R. at 10-12. The Board further concluded that this evidence did not relate to the RO's

original basis for denying the appellant's claim. Id. Because we are not "'left with the definite and

firm conviction that a mistake has been committed,'" Hersey v. Derwinski, 2 Vet.App. 91, 94 (1992)

(quoting United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948)), the Court holds that the

Board's determination that new and material evidence has not been presented is not clearly

erroneous.

First, we cannot conclude that the new medical evidence presented by the appellant either

relates his heart disease to his military service, see 38 C.F.R. § 3.303(a), or otherwise raises a

reasonable possibility of demonstrating the in-service incurrence or aggravation of his heart

condition. 38 C.F.R. § 3.156(a). The 1974 letter from the appellant's private physician mentions

only his treatment of the appellant from October 1973 onward. R. at 64. Likewise, the appellant's

July 1976 hospital discharge summary only provides information about a recent period of treatment,

and the report specifically dates the onset of his heart disease to 10 years after his discharge from

service. R. at 69 (stating the appellant has a "[h]istory of rheumatic heart disease since he was 28

years old"). The appellant's March 1979 VA examinations also date his initial diagnosis for heart

disease to 1953 or 1954, a decade after his military service had ended. Cf. R. at 81 with R. at 87.

The October 2002 hospital discharge summary includes no discussion of the appellant's military

service (R. at 120), and the December 2003 VA heart examination report states that "[t]here [i]s no

documentation of rheumatic fever, arthritis or any heart condition" in service. R. at 220. Having

been given no indication that a relationship exists between the appellant's heart condition and his

military service, we simply cannot conclude that the Board clearly erred in finding that the medical

evidence submitted was not material.

The appellant's new lay evidence is similarly deficient. The 1974 letter from the appellant's

wife only provides new information about his heart condition from 1946 onward. R. at 66. We also

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agree with the Board's finding that the appellant's statements that he had rheumatic fever in service

are immaterial. Unlike varicose veins, Barr v. Nicholson, Vet.App. , No. 04-0534 (June 15,

2007), or a dislocated shoulder, Jandreau v. Nicholson, F.3d , No. 2007-7029 (Fed. Cir. July

3, 2007), rheumatic fever is not a condition capable of lay diagnosis. See Espiritu v. Derwinski,

2 Vet.App. 492, 494 (1992). Moreover, the appellant's service medical history is meticulously

documented, and it does not include a rheumatic fever diagnosis. R. at 16, 18-20, 22-23, 31-43. In

addition, none of the medical opinions of record establish an affirmative relationship between his

alleged contraction of rheumatic fever, his heart condition, and his military service. Cf. Jandreau,

slip op. at 6-8. Finally, the RO's May 1955 decision denying the appellant's claim noted that his

heart disease was "probably rheumatic." R. at 62. For these reasons, the Court holds the Board did

not clearly err in finding that the appellant has not presented new and material evidence since the

prior adjudication of his claim.

The represented appellant also argues that "the Board failed to support its conclusion with

adequate reasons or bases." Br. at 16. The Board is required to include in its decision 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; that statement must be adequate to enable an appellant to understand

the precise basis for the Board's decision, as well as to facilitate informed review in this Court. See

38 U.S.C. 7104(d)(1); Allday v. Brown, 7 Vet.App. 517, 527 (1995); Gilbert v. Derwinski, 1

Vet.App. 49, 56-57 (1990). To comply with this requirement, the Board must analyze the credibility

and probative value of the evidence, account for the evidence it finds persuasive or unpersuasive,

and provide the reasons for its rejection of any material evidence favorable to the claimant. See

Caluza, 7 Vet.App. at 506; Gilbert, supra. The appellant's entire argument on this issue consists of

the single sentence paraphrased above. This Court has consistently held that it will not address

issues or arguments that counsel for the appellant fails to adequately develop in his or her opening

brief. See Coker v. Nicholson, 19 Vet.App. 439, 442 (2006) (stating that an appellant must "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"); Cromer v. Nicholson, 19 Vet.App. 215, 219 (2005) (holding

that the Court will not address any argument "in the absence of the necessary factual predicate");

see also U.S. VET. APP. R. 28(a)(5). The Court therefore rejects the appellant's argument on this

basis alone.

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C. The Medical Examination Component of the Duty to Assist

Having concluded that the Board did not clearly err in not reopening the appellant's claim,

we must now determine whether we can review the adequacy of the Secretary's new medical

examinations of the appellant. VA has a general duty to assist a veteran in developing his or her

claim. See 38 U.S.C. §§ 5103; 5103A; see also 38 C.F.R. § 3.159. This includes providing a

current medical examination if one "is necessary to make a decision on the claim." 38 U.S.C.

§ 5103A(d)(1)-(2); 38 C.F.R. § 3.159(c)(4); see McLendon v. Nicholson, 20 Vet.App. 79 (2006).

However, the Secretary is not required to provide a new medical examination of a claimant seeking

to reopen a previously and finally disallowed claim unless new and material evidence had been

presented. See Paralyzed Veterans of Am. v. Sec'y of Veterans Affairs, 345 F.3d 1334, 1342-1343

(Fed. Cir. 2003) (holding that "in the absence of new and material evidence, VA is not required to

provide assistance to a claimant attempting to reopen a previously disallowed claim, including

providing a medical examination or obtaining a medical opinion").

The Secretary had a conditional or provisional duty to provide the appellant with new

medical examinations, but this duty was extinguished once the Board found that new and material

evidence had not been presented. In this case, the RO properly ordered the Secretary to conduct new

medical examinations of the appellant after erroneously concluding that sufficient new and material

evidence had been presented to warrant reopening his claim. R. at 212-15. However, the appellant

later appealed this decision to the Board. R. at 217-18. In so doing, the appellant authorized the

Board to issue a new ruling on the RO's decision to reopen his claim. See Bernard, 4 Vet.App. at

390-91. When the Board later found that new and material evidence had not been presented, the

Secretary's duty to provide the appellant with new examinations was extinguished, see Paralyzed

Veterans of Am., supra, and the issue of the inadequacy of his new medical examinations became

moot because the Board was barred by statute from considering any "issues going to the merits."

Barnett, 83 F.3d at 1384. For these reasons, we hold that once the Board decided that the appellant's

claim could not be reopened, the Secretary's conditional duty to provide the appellant with a new

medical examination was extinguished. We further hold that the adequacy of the Secretary's new

medical examinations became moot, because a readjudication of the merits of the appellant's claim

was barred by statute. See Butler, 9 Vet.App. at 171 ("[O]nce the Board finds that no [new and

material] evidence has been offered, that is where the analysis must end."); see also 38

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U.S.C. §§ 5108, 7104(b), 7105(c); 38 C.F.R. § 3.156(a). As the appellant has not argued on appeal

that the Secretary violated his duty in any other respect, the Court holds that the Board did not err

in failing to find the Secretary in violation of the duty to assist.

Our holding today is distinguishable from the Court's recent decision in Barr, supra. In that

case, the claim before the Secretary had not been previously adjudicated. Therefore, the Secretary's

duty to provide the claimant with a medical examination was not contingent upon his presentation

of new and material evidence, and the merits of his claim was not subject to a jurisdictional bar. In

those circumstances, we held that "once the Secretary undertakes the effort to provide an

examination when developing a service-connection, even if not statutorily obligated to do so, he

must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be

provided." Id., slip op. at 10. However, in this case, any development of the merits of the

appellant's claim was subject to a jurisdictional bar, the one applicable to the readjudication of final

VA decisions. And unless that bar was properly removed, the Secretary had no obligation to

develop–and the Board could not consider–the merits of his claim

Finally, as previously discussed, we do not hold that the Secretary's examinations of the

appellant are irrelevant. The Board must consider all of the evidence of record when determining

whether new and material evidence has been presented, including any medical examinations

obtained by the RO prior to its decision. 38 U.S.C. § 7104(a); see Falzone v. Brown, 8 Vet.App.

398, 404-06 (1995); Butler, 9 Vet.App. at 171 (explaining that "[t]he Board's review of the evidence

of record is necessary to determine whether new and material evidence has been submitted").

Rather, we hold that this Court's obligation to ensure the Secretary's compliance with this duty does

not arise and could serve no purpose when the adjudication of the merits of a claim is barred.

Accordingly, the Court will affirm the Board's decision.

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III. CONCLUSION

After consideration of the appellant's and the Secretary's briefs, and a review of the record,

the Board's June 16, 2005, decision is AFFIRMED.

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