Jonathan L. Haas v. Eric K. Shinseki

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS

NO . 04-0491

JONATHAN L. HAAS, APPELLANT

V.

ERIC K. SHINSEKI,

SECRETARY OF VETERANS AFFAIRS, APPELLEE.

On Remand from the U.S. Court of Appeals for the Federal Circuit

(Decided March 10, 2009)

Louis J. George and Barton F. Stichman, both of Washington, D.C., were on the brief for

the appellant.

Paul J. Hutter, General Counsel; R. Randall Campbell, Assistant General Counsel; Brian

B. Rippel, Deputy Assistant General Counsel, and William L. Puchnick, all of Washington, D.C.,

were on the brief for the appellee.

Before HAGEL, MOORMAN, and LANCE, Judges.

MOORMAN, Judge: The appellant, U.S. Navy veteran Jonathan L. Haas, appeals a

February 20, 2004, Board of Veterans' Appeals (Board) decision that denied entitlement to service

connection for diabetes mellitus, with peripheral neuropathy, nephropathy, and retinopathy, all

secondary to exposure to herbicide agents during his Vietnam-era service.1 Record (R.) at 11.

Following the submission of briefs and oral argument, the Court issued a unanimous opinion on

August 16, 2006, reversing the Board's determination that the appellant was not entitled to the

presumption of exposure to herbicides and remanding for readjudication. Haas v. Nicholson,

20 Vet.App. 257 (2006). Subsequently, this Court's decision was reversed by the U.S. Court of

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"Neuropathy" is defined as "a disease involving the cranial nerves or the peripheral or autonomic nervous

system"; "nephropathy" is "any disease of the kidney"; and "retinopathy" is a "noninflammatory degenerative disease

of the retina." S TED M A N 'S M EDICA L D IC TIO N A R Y 1211, 1191, 1560 (27th ed. 2000).

Appeals for the Federal Circuit (Federal Circuit) in a 2-to-1 decision, and the matter was remanded.

Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008), cert. denied, 129 S. Ct. 1002 (U.S. Jan. 21, 2009).

The Federal Circuit issued its mandate on October 16, 2008. For the following reasons, the Court

will vacate in part the Board decision and will remand the claim for further proceedings consistent

with this opinion.

I. BACKGROUND

In Haas v. Nicholson, this Court held that 38 U.S.C. §1116(f) is ambiguous as to the phrase

"served in the Republic of Vietnam" and that this statute did not by its terms limit application of the

presumption of service connection for herbicide exposure to those who set foot on the soil of the

Republic of Vietnam. 20 Vet.App. at 263-65. The Court further held that the Secretary's regulation,

38 C.F.R. § 3.307(a)(6)(iii), is ambiguous regarding whether service on the land in Vietnam is

required for the presumption to apply and that the Secretary's interpretation of its regulatory

definition of the phrase was plainly erroneous and unreasonable and, therefore, not entitled to

deference. Id. at 269-75. Finally, the Court held that the provisions of the VA Adjudication

Procedure Manual (M21-1) in effect at the time the appellant filed his claim in 2001 entitled him

to a presumption of service connection based upon his receipt of the Vietnam Service Medal (VSM);

and that VA's attempt to rescind that version of the M21-1 provision more favorable to the appellant

was ineffective because VA did not comply with the notice and comment requirements of the

Administrative Procedures Act (APA), 5 U.S.C. § 706(2)(A). Haas, 20 Vet.App. at 275-78. The

Court also determined that, in light of its reversal as to presumptive service connection, it was not

necessary to consider the Secretary's concession for a remand under direct service-connection

principles. Id. at 278-79.

In reviewing this Court's decision in Haas v. Nicholson, the Federal Circuit held that the

phrase "served in the Republic of Vietnam" in section 1116 is ambiguous and further held that the

Secretary's requirement that a veteran have been present within the land borders of Vietnam at some

point in the course of his duty constitutes a permissible interpretation of the statute and its

implementing regulation. Haas v. Peake, 525 F.3d at 1183, 1187-95. The Federal Circuit concluded

that the pertinent pre-2002 version of the M 21-1 was an interpretative statement, not a substantive

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rule that could be amended only by APA notice-and-comment rulemaking. Id. at 1196. The Federal

Circuit, therefore, reversed this Court's judgment.

II. ANALYSIS

Based on the Federal Circuit's binding precedent in its decision on this appeal, see Bethea

v. Derwinski, 2 Vet.App. 252, 254 (1992), this Court will affirm that part of the Board decision that

denied service connection for type-II diabetes mellitus, peripheral neuropathy, nephropathy, and

retinopathy, claimed as loss of eyesight, based on a presumption that he was exposed to herbicides.

Regarding entitlement to service connection for diabetes mellitus, peripheral neuropathy,

nephropathy, and retinopathy, claimed as loss of eyesight, on a direct service-connection basis, the

Secretary concedes that a remand is warranted. First, the Secretary concedes that a remand is

warranted because the Board provided an inadequate statement of reasons or bases for its decision.

Secretary's Brief at 14-16. The Secretary notes that the Board overlooked certain service medical

records (SMRs), including an August 1968 provisional diagnosis of "R/O [rule out] diabetes

mellitus" (R. at 140) and did not discuss an October 1967 medical record showing an "abnormal

glucose tolerance test," which was found not to have existed prior to enlistment (R. at 124). See

R. at 15-16 (Form DD 214, Certificate of Release or Discharge from Active Duty, certifying

Mr. Haas's service on active duty in the U.S. Navy from September 1959 to September 1960, and

from May 1963 to June 1970).

The Court agrees with the Secretary's concession of error. In its decision here on appeal, the

Board concluded that "[t]he appellant's service medical records are silent as to diabetes." R. at 5.

The Board's conclusion lacked an adequate statement of reasons or bases because it failed to address

the relevant SMRs noted above, and the decision frustrates judicial review. See 38 U.S.C. § 7104(a)

(requiring Board decision to be based on consideration of all evidence and material of record);

38 U.S.C. § 7104(d) (requiring Board decision to include reasons or bases for findings and

conclusions on all material issues of fact and law presented on the record); Allday v. Brown,

7 Vet.App. 517, 527 (1995) (holding that Board's statement must be adequate to enable a claimant

to understand the precise basis for its decision, as well as to facilitate review in this Court). Because

the Board's statement of reasons or bases is inadequate, remand is appropriate. See Tucker v. West,

11 Vet.App. 369, 374 (1998) (remand is appropriate "where the Board has incorrectly applied the

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law, failed to provide an adequate statement of reasons or bases for its determinations, or where the

record is otherwise inadequate"). The Court will vacate the Board's determination that type-II

diabetes mellitus with peripheral neuropathy, nephropathy, and retinopathy (claimed as loss of

eyesight) "was not incurred in or aggravated during active service." R. at 3, 8.

Second, the Secretary concedes that a remand is warranted because VA failed to provide the

appellant with a VA medical examination. In the decision here on appeal, the Board noted that the

appellant was not afforded a VA examination, but stated "the Board sees no areas in which further

development may be fruitful" and that the duty to assist had been "substantially met by the RO

[(regional office)]." R. at 10. The Secretary concedes that the Board failed to ensure VA

compliance with its duty to assist by providing the appellant with a VA medical examination to

determine the etiology of his type-II diabetes, to include peripheral neuropathy, nephropathy, and

retinopathy (claimed as loss of eyesight). Secretary's Brief at 14-18. The Secretary specifically

states that a current VA examination is warranted to determine whether it is at least as likely as not

that the appellant's type-II diabetes mellitus was incurred in or aggravated by active service and to

determine whether it is at least as likely as not that either peripheral neuropathy, nephropathy, or

retinopathy (claimed as loss of eyesight) is due to service or secondary to diabetes mellitus. Id. at

18. The Court agrees.

In disability compensation claims, the Secretary's duty to assist requires that he 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. 38 U.S.C. § 5103A(d); Paralyzed Veterans of Am. v.

Sec'y of Veterans Affairs, 345 F.3d 1334, 1354 (Fed. Cir. 2003); Wells v. Principi, 326 F.3d 1381,

1384 (Fed. Cir. 2003); McLendon v. Nicholson, 20 Vet.App. 79, 81 (2006); 38 C.F.R.

§ 3.159(c)(4)(i)(2008). When determining whether an examination is necessary under section

5103A(d), the Secretary shall consider the evidence of record, taking into consideration "all

information and lay or medical evidence (including statements of the claimant)." 38 U.S.C.

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§ 5103A(d)(2). Further, "[t]he Board's ultimate conclusion that a medical examination is not

necessary pursuant to [38 U.S.C. § 5103A(d)] is reviewed under the 'arbitrary, capricious, an abuse

of discretion, or otherwise not in accordance with law' standard of review." McLendon, 20 Vet.App.

at 81; see 38 U.S.C. § 7261(a)(3)(A).

The Court agrees with the Secretary that the Board erred in its determination that the duty

to assist did not require VA to provide a medical examination. Turning to the factors enumerated

in McLendon, the Board acknowledged that the appellant has a current diagnosis of diabetes. R. at

8. The "in-service event" is, as conceded by the Secretary, the appellant's SMRs that include the

October 1967 medical report showing an "abnormal glucose tolerance test" and an August 1968

provisional diagnosis of "R/O [rule out] diabetes mellitus." R. at 124, 140. This is sufficient to

satisfy the second prong of McLendon.

The third prong, requiring that the evidence of record "indicate" that "the claimed disability

or symptoms may be associated with the established event," establishes "a low threshold" for

determining when the Secretary is required to furnish a medical examination. 20 Vet.App. at 83.

The Court went on to note that "[t]he 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." Id. In this case, as noted by the Secretary, the appellant has stated that his disabilities

(diabetes, peripheral neuropathy, and loss of eyesight) began in 1980, and he received treatment at

a VA hospital in Phoenix, Arizona. R. at 318; see also R. at 566 (July 15, 2003, sworn testimony

of Mr. Haas noting that he was 38 or 39 years old when he "first came down with diabetes"). The

Court is satisfied with the Secretary's concession that this evidence is sufficient to meet the "low

threshold" referenced in McLendon. The evidence of record "indicates" that the appellant's diabetes

"may be associated" with service. McLendon, supra; 38 C.F.R. § 3.159(c)(4)(i).

Finally, addressing the fourth McLendon prong, "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

having to provide a medical examination." McLendon, 20 Vet.App. at 84-85. Here, there was no

competent medical evidence on the issue whether the appellant's current disability was more likely

than not caused by service. Here, the Board found that "there was no need for medical information."

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Despite the evidence referenced above, the Board concluded that the duty to assist did not require

VA to obtain a medical examination. R. at 10. The Board's ultimate conclusion that a medical

examination was not necessary pursuant to 38 U.S.C. § 5103A(d) was "arbitrary, capricious, an

abuse of discretion, or otherwise not in accordance with law."

Therefore, the appellant's claim will be remanded in order for VA to provide such an

examination, including an opinion as to whether it is at least as likely as not that the appellant's type-

II diabetes mellitus was incurred in or aggravated by active service and to determine whether it is

at least as likely as not that either peripheral neuropathy, nephropathy, or retinopathy (claimed as

loss of eyesight) is due to service or secondary to diabetes mellitus.

On remand, the appellant is free to submit additional evidence and argument on the

remanded matters, which the Board must consider when readjudicating his claim. See Kay v.

Principi, 16 Vet.App. 529, 534 (2002); Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999) (per

curiam order). In this regard, as noted by the Federal Circuit in its decision, the appellant is free to

pursue his claim that "he was actually exposed to herbicides while on board his ship as it traveled

near the Vietnamese coast." Haas v. Peake, 525 F.3d at 1197; see, e.g., R. at 564 (July 2003 sworn

testimony of Mr. Haas explaining that, while resupplying coastal vessels in the patrol waters off the

coast of Vietnam, he saw large clouds of chemicals being dropped by aircraft and that "these large

clouds would drift out over the water because of the prevailing offshore winds and they would

engulf the ships, my ship in particular. Now, you could see the chemicals, you could taste them,

smell them and they landed on your skin. We had Army personnel on the ship, uh, at this particular

time. I inquired what the chemicals were and they told me it was Agent Orange."). The Court notes

that such claim appears to be based on the assertion that the land was sprayed and the clouds of

chemicals then drifted out over the water; such claim, therefore, need not depend on there being

evidence "demonstrating that this ship was located in waters sprayed by herbicides." R. at 7. To

the extent that the Board rejected the appellant's allegation that his ship was "enveloped by clouds

of herbicide agents," the Board's determination was not supported by an adequate statement of

reasons or bases. On remand, the appellant is free to clarify his argument for the Board.

On remand, the Board must consider all evidence, including lay evidence, and any Board

decision on remand must include a determination on the credibility and probative value of all lay

and medical evidence of record, and the Board must provide an adequate statement of the reasons

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or bases for its decision. See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006)

(discussing Board's obligations in assessing credibility of lay statements); see also Jandreau v.

Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent

and sufficient in a particular case is a fact issue to be addressed by the Board"); Washington v.

Nicholson, 19 Vet.App. 362, 367-68 (2005) (noting that it is the Board's responsibility to "assess the

credibility of, and weight to be given to," the evidence of record). The Board and the RO must

provide expeditious treatment of this matter on remand. See 38 U.S.C. §§ 5109B, 7112.

III. CONCLUSION

Based on the foregoing analysis and a review of the record on appeal, the February 20, 2004,

Board decision is VACATED to the extent it denied entitlement to service connection for type-II

diabetes mellitus with peripheral neuropathy, nephropathy, and retinopathy on a basis other than that

presumed by a veteran who "served in the Republic of Vietnam" under 38 U.S.C. § 1116, and the

claim is REMANDED for further proceedings consistent with this opinion.

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