James A. Bardwell v. Eric K. Shinseki

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS

NO . 08-2257

JAMES A. BARDWELL, APPELLANT ,

v.

ERIC K. SHINSEKI,

SECRETARY OF VETERANS AFFAIRS, APPELLEE.

(Decided August 17, 2010)

Robert V. Chisholm, of Providence, Rhode Island, was on the brief for the appellant.

Pamela Nash, with whom Richard Mayerick, Deputy Assistant General Counsel; R.. Randall

Campbell, Assistant General Counsel; and Will A. Gunn, General Counsel, all of Washington, D.C.,

were on the brief for the appellee.

Before HAGEL, LANCE, and DAVIS, Judges.

HAGEL, Judge: James A. Bardwell appeals through counsel a June 16, 2008, Board of

Veterans' Appeals (Board) decision denying entitlement to VA benefits for a bilateral eye disability.

Because VA was not required to provide medical examinations related to Mr. Bardwell's eye

disabilities, the Court will affirm the June 16, 2008, Board decision.

I. FACTS

Mr. Bardwell served on active duty in the U.S. Navy from November 1944 until January 1945.

In March 2001, he submitted a claim for entitlement to VA benefits for in-service injuries to his eyes.

In February 2003, Mr. Bardwell testified at a VA regional office hearing that, while in service,

he went through a training exercise that involved exposure to a chemical gas. He testified that his

eyes were exposed to the chemical and that they started burning. Mr. Bardwell also testified that his

eyesight began to deteriorate after this incident and that by 1978 he was no longer able to work due

to vision problems.

In September 2004, the regional office requested that the National Personnel Records Center

search for any records relating to Mr. Bardwell's exposure to gases or chemicals during his active

duty. The Records Center responded that, after "an extensive and thorough" search, it had been

unable to find any such records and concluded that the records either did not exist or that further

efforts to locate them would be futile. Record (R.) at 247.

In March 2005, Mr. Bardwell submitted a medical opinion from a private ophthalmologist.

The ophthalmologist concluded that Mr. Bardwell was legally blind and displayed nerve dysfunction

that was "consistent with toxic retinopathy."1 R. at 174. The doctor opined that Mr. Bardwell's legal

blindness "appears associated with a gaseous chemical exposure." R. at 174.

In June 2008, the Board issued the decision on appeal, finding that Mr. Bardwell was not

entitled to disability benefits for a bilateral eye disability. The Board acknowledged that Mr. Bardwell

currently had defective vision in both eyes. However, it concluded that "[t]here is neither competent

medical evidence indicating that [Mr. Bardwell's] eyes were harmed in any way during service, nor

any treatment for a vision-related condition." R. at 17. The Board considered Mr. Bardwell's

assertion that he was exposed to chemicals or gases in service and that these chemicals damaged his

eyes. However, the Board determined that these assertions lacked credibility, given the lack of

documentation of the incident in his records and the National Personnel Records Center's inability

to verify the exposure. The Board wrote that it found it "incredible that the veteran would undergo

undocumented chemical or gas testing or other exposure during his less than two-month tour of duty

and his statements to the contrary are not convincing." Id. Accordingly, the Board found that there

was no competent evidence of an in-service injury to Mr. Bardwell's eyes, and therefore found that

the preponderance of the evidence was against a finding that his current eye disability was in any way

related to his military service.

On appeal, Mr. Bardwell argues that VA failed to fulfill its duty to assist in developing his

claim by obtaining a medical examination. Appellant's Brief (Br.) at 7-11.

1

Retinopathy is retinitis, an inflamation of the retina. D ORLAN D 'S I LLU STRATED M ED ICAL D ICTIO N ARY 1658-59

(31st ed. 2007).

2

In response, the Secretary asserts that VA was not obligated to provide a medical examination

because the Board found that Mr. Bardwell's eyes were not injured in service, and this finding was

not arbitrary, capricious, or an abuse of discretion. Secretary's Br. at 4-5.

In his reply brief, Mr. Bardwell argues that the Board failed to give due consideration to the

place, type, and circumstances of his service, pursuant to 38 U.S.C. § 1154(a), when it found that he

did not have an in-service eye injury. Appellant's Reply Br. at 1.

II. ANALYSIS

Pursuant to 38 C.F.R. § 3.159(c)(4)(i) (2010), VA must provide a claimant a medical opinion

or examination

if the information and evidence of record does not contain sufficient competent

medical evidence to decide the claim, but:

(A) Contains competent lay or medical evidence of a current diagnosed

disability or persistent or recurrent symptoms of disability;

(B) Establishes that the veteran suffered an event, injury or disease in service,

or has a disease or symptoms of a disease listed in [38 C.F.R.] § 3.309,

§ 3.313, § 3.316, and § 3.317 manifesting during an applicable presumptive

period provided the claimant has the required service or triggering event to

qualify for that presumption; and

(C) Indicates that the claimed disability or symptoms may be associated with

the established event, injury, or disease in service or with another

service-connected disability.

See also 38 U.S.C. § 5103A(d)(2).

In Duenas v. Principi, the Court held that, when the Board considers whether a medical

examination or opinion is necessary under section 5103A(d) and § 3.159(c)(4), it must provide a

written statement of the reasons or bases for its conclusion, pursuant to 38 U.S.C. § 7104(d)(1), and

that, absent a finding of nonprejudicial error, vacatur and remand is warranted where it fails to do so.

18 Vet.App. 512, 517-18 (2004) (citing Tucker v. West, 11 Vet.App. 369, 374 (1998)).

Additionally, the Court is required to reverse "a finding of material fact . . . if the finding is

clearly erroneous." 38 U.S.C. § 7261(a)(4). "A factual finding 'is "clearly erroneous" when although

3

there is evidence to support it, the reviewing court on the entire evidence is 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)).

Here, Mr. Bardwell argues that VA erred by failing to provide him with a medical examination

pursuant to§ 3.159(c)(4)(i) because he satisfies that regulation's three criteria for an examination. He

asserts that it is not disputed that he has a current eye disability. He asserts that his lay statements

about exposure to gases during training are competent and credible evidence that there was an event

or injury in service relating to his eye. Finally, he asserts that his private ophthalmologist's opinion

is sufficient to indicate that his current disability may be linked to service.

The Court finds Mr. Bardwell's arguments unpersuasive. The Secretary must provide a

medical examination when the information and evidence of record establishes that a claimant suffered

an event, injury, or disease in service. 38 C.F.R. § 3.159(c)(4)(i)(B). The language of the regulation

is clear that the evidence must, in fact, establish that an injury or event occurred in service. The first

prong of § 3.159(c)(f)(i) requires that there be competent evidence of a current disability, while the

third prong requires that there be an indication that the current disability relates to service. By

contrast, the in-service event, injury, or disease prong does not qualify the quality of evidence

necessary to meet its threshold: the evidence must establish that there was a disease, injury, or event

in service. The determination as to whether there was an event, injury, or disease in service is a

finding of fact for the Board that the Court reviews for clear error. See 38 U.S.C. § 7261(a)(4);

McLendon v. Nicholson, 20 Vet.App. 79, 82 (2006).

In this case, the Secretary found that Mr. Bardwell's assertion that he was exposed to a gas or

chemical in service lacked credibility. The Board found that there was no record of such an event in

Mr. Bardwell's records and that it was unlikely that he would have been exposed to chemicals or gases

without such an event being noted in his records. Thus, the Board found that Mr. Bardwell's account

of such exposure was not credible and concluded that the event did not occur. Mr. Bardwell has not

asserted that the Board clearly erred in finding that he was not exposed to gases or chemicals in

service and therefore fails to carry his burden of establishing error. See Hilkert v. West, 12 Vet.App.

145, 151 (1999) (en banc) (holding that appellant has the burden of demonstrating error). Moreover,

the Court finds no clear error in the Board's factual determination that Mr. Bardwell did not suffer an

4

event or injury that harmed his eyes during service. Because the Board did not err in finding that Mr.

Bardwell's eyes did not undergo an event, injury, or disease in service, it was not obligated to consider

whether he was entitled to a medical examination.

Mr. Bardwell asserts that the Board impermissibly rejected his lay evidence contrary to the

U.S. Court of Appeals for the Federal Circuit's (Federal Circuit) holding in Buchanan v. Nicholson,

451 F.3d 1331, 1336 (Fed. Cir. 2006). In Buchanan the Federal Circuit held that the Board could not

reject a veteran's lay evidence about an in-service medical condition solely because that incident was

not reported in the veteran's service medical records. Id.

Mr. Bardwell's situation is distinguishable from Buchanan. In Buchanan, the Federal Circuit

addressed a situation in which a claimant argued that he displayed medical symptoms in service that

were not recorded in his service medical records. The Federal Circuit defined the issue before it as

determining whether this Court had erred by requiring that "lay evidence of medical symptoms be

accompanied by contemporaneous medical records." Id. at 1334. The Federal Circuit held that

although "the lack of contemporaneous medical records may be a fact that the Board can consider and

weigh against a veteran's lay evidence, the lack of such records does not, in and of itself, render lay

evidence not credible." Id. at 1336. Congress has already afforded lay evidence the benefit of a

special presumption conferred on veterans who "engaged in combat with the enemy" in 38 U.S.C.

§ 1154(b). That provision provides that veterans who engaged in combat with the enemy can prove

that a disease or injury was incurred or aggravated in service by lay evidence alone. Here, Mr.

Bardwell invites the Court to hold that a veteran's lay evidence that any event occurred must be

accepted unless affirmative documentary evidence provides otherwise. Congress has indicated that

it did not intend to confer such special status on the lay statements of non-combat veterans. See

38 U.S.C. § 1154(b). Rather, as in all cases, a non-combat veteran's lay statements must be weighed

against other evidence, including the absence of military records supporting the veteran's lay

assertions. See Caluza v. Brown, 7 Vet.App. 498, 506 (1995) (holding that 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

favorable to the claimant), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). Accordingly, we

conclude that the Board did not err by rejecting Mr. Bardwell's lay evidence that he was exposed to

5

gases or chemicals during his less than two-month tour of duty on the basis that such exposure is not

documented in his personnel records. It is for the Board to weigh the evidence before it in the first

instance. Washington v. Nicholson, 19 Vet.App. 362 (2006) (holding that it is the Board's

responsibility to determine the appropriate weight to be given to evidence).

Finally, Mr. Bardwell argues that the Board failed to account for the "places, types, and

circumstances" of his service pursuant to 38 U.S.C. § 1154(a) when it found that his lay evidence

lacked credibility. Contrary to Mr. Bardwell's assertion, however, the Board did consider the

circumstances of Mr. Bardwell's service, but found it "incredible that [he] would undergo

undocumented chemical or gas testing or other exposure during his less than two[-]month tour of

duty." R. at 17. This statement demonstrates that the Board considered his service, but found that

even at the time of his service, training exposure to gases or chemicals would be documented in

personnel records. Accordingly, the Court finds that the Board properly accounted for the place, type,

and circumstances of Mr. Bardwell's service.

III. CONCLUSION

On consideration of the foregoing, the June 16, 2008, Board decision is AFFIRMED.

6