Pedro P. Duenas v. Anthony J. Principi

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO . 03-1251
PEDRO P. DUENAS, APPELLANT ,
V.
ANTHONY J. PRINCIPI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
On Appeal from the Board of Veterans' Appeals
(Decided December 15, 2004 )
Pedro P. Duenas, pro se.
Tim S. McClain, General Counsel; R. Randall Campbell, Assistant General Counsel; Kathy
A. Banfield, Deputy Assistant General Counsel; and Cathy A. Chase, all of Washington, D.C., were
on the brief for the appellee.
Before IVERS, Chief Judge, and GREENE and HAGEL, Judges.
The opinion of the Court is per curiam. HAGEL, Judge, filed a concurring opinion.
PER CURIAM: Pedro P. Duenas, who is unrepresented, appeals a May 13, 2003, Board of
Veterans' Appeals (Board) decision in which the Board denied his claims for service connection for
(1) a urinary tract infection, (2) poor vision, (3) a hearing-loss disability, (4) a gastrointestinal
disorder, (5) asthma, (6) bronchitis, (7) emphysema, (8) heart disease, and (9) hypertension. The
Court has jurisdiction pursuant to 38 U.S.C. §§ 7252(a) and 7266(a) to review the May 2003 Board
decision. For the following reasons, the Court will affirm the May 2003 decision with respect to Mr.
Duenas's claims for service connection for a urinary tract infection, poor vision, a hearing-loss
disability, a gastrointestinal disorder, asthma, bronchitis, emphysema, and hypertension. The Court
will vacate the decision with respect to his claim for service connection for heart disease and will
remand that matter for a more careful consideration of whether Mr. Duenas is entitled to a VA
medical examination.
I. FACTS
Mr. Duenas had recognized Philippine guerilla service from March 1945 to February 1946,
service in the Regular Philippine Army from February 1946 to March 1946, and active-duty service
in the U. S. Army from July 1946 to March 1949. Record (R.) at 26-34, 41-44, 56-57. In September
1999, he filed with a VA regional office claims for service connection for lung ailments, asthma,
hypertension, heart disease, a urinary tract infection, poor vision and hearing, and gastritis. R. at 16.
Along with his application, he submitted statements from Dr. Florante D. Iglesias, who treated him
from 1954 to 1963, and Dr. Reynaldo G. Patriarca, who has treated him since 1964. R. at 21-23.
(Although the Board stated that Dr. Iglesias's statements indicate treatment from "1944," the Court
observes that the statements appear to indicate treatment from 1954. R. at 7, 22, 74-75. The Court
also notes that the regional office interpreted these statements as indicating treatment from 1954.
R. at 88-89, 114.) Both doctors stated that they had treated him for asthma and bronchitis. Id. Dr.
Patriarca also reported that Mr. Duenas's complaints of dyspnea, or shortness of breath, and easy
fatigability suggest emphysema and that Mr. Duenas may be "prone to . . . hypertension." Id.During the development of his claims, VA requested Mr. Duenas's service medical records
and other records related to him. R. at 38-39, 47-48. In response to those requests, VA received the
record of his February 1946 discharge examination. R. at 58. In that record, under the heading
"Record of Physical Examination," the examining U.S. Army Medical Corps officer, in all but one
instance, entered either "normal," "none," or "complete" in the spaces provided for comments
regarding certain disorders and parts of the body. Id. The one exception was in the section for
comments regarding the "Cardiovascular System," in which the examining medical officer entered
the notation, "[t]achycardia." Id. Tachycardia is defined as "excessive rapidity in the action of the
heart." DORLAND 'S ILLUSTRATED MEDICAL DICTIONARY 1655 (28th ed. 1994) [hereinafter
DORLAND 'S]. The regional office also received an Affidavit for Philippine Army Personnel, dated
February 27, 1946, and signed by Mr. Duenas, in which he attested that he had not incurred any
wounds or illness since December 1941. R. at 62.
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In addition, VA requested further information from Drs. Iglesias and Patriarca. R. at 68, 70-
71. In his response, Dr. Iglesias explained that Mr. Duenas's treatment records were either lost or
misplaced but that he recalled treating Mr. Duenas "on and off" from 1954 to 1963 for the illnesses
mentioned in the doctor's previous statement. R. at 73-74. Dr. Patriarca responded that his first
statement was a sufficient account of Mr. Duenas's diagnoses and notified VA that he could not give
a detailed description of his treatment since 1964 because all of Mr. Duenas's records that were more
than five years old had been deleted from his file. R. at 77.
The regional office eventually denied Mr. Duenas's claims for service connection, and he
appealed its decision to the Board. R. at 85-90. In his appeal to the Board, he made the following
statement:
My ailments have been recurring since service, especially my heart and lung
problems. The symptoms have been consistent since I was separated from service
up to the present time . . . [and have] consisted of . . . difficulty in breathing, easy
fatigability, and worse[,] my recurring rapid heartbeat.
R. at 117.
The Board, in the decision on appeal, determined that VA was not required, under 38 U.S.C.
§ 5103A(d), to provide Mr. Duenas with a medical examination because "the evidence before the
Secretary . . . [did not] indicate that the disorders at issue may be associated with [Mr. Duenas's]
active military service." R. at 5. The Board also concluded that an examination was not required
because "there [was] no reasonable possibility that an examination would aid in substantiating [Mr.
Duenas's] claim[s]." Id. With respect to the merits of his claims, the Board concluded that his
claimed disabilities "were not incurred in or aggravated by service." R. at 3.
On appeal to this Court, Mr. Duenas raises three arguments. First, he argues that VA did not
fulfill its duty to assist him insofar as it failed to provide him with medical examinations with respect
to his claims for service connection for heart disease, poor vision, and a hearing-loss disability.
Informal Brief (Br.) at 1-2. Second, Mr. Duenas asserts that the Board should not have held his
February 1946 affidavit against him. Id. at 1. Third, he argues that the opinions of his doctors
should be given "credence" with respect to his claims for asthma, bronchitis, and hypertension. Id.
at 2.
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The Secretary argues that VA was not required under section 5103A to provide Mr. Duenas
with a medical examination. Secretary's Br. at 11-14. The Secretary reasons that an examination
was not required with respect to Mr. Duenas's claims of poor vision and a hearing-loss disability
because Mr. Duenas "[had] not submitted competent evidence of a current disability" and because
the record did not "contain competent evidence that [his] claimed disabilities are associated with his
service." Id. at 12-13. Similarly, the Secretary contends that VA was not required to provide a
medical examination with respect to Mr. Duenas's claim of heart disease because the record did not
"contain medical evidence of a current heart disability." Secretary's Br. at 14. Further, the Secretary
argues that the Board properly denied Mr. Duenas's claims for service connection because his
"claims for the most part are completely lacking in any kind of supportive evidence." Id. at 6-7.
II. ANALYSIS
A. Duty to Provide a Medical Examination under 38 U.S.C. § 5103A(d)
1. Applicable Laws and Regulations
Even prior to the enactment of the Veterans Claims Assistance Act of 2000, Pub. L. No. 106-
475, 114 Stat. 2096 (Nov. 9, 2000), VA had a duty to assist claimants "in developing the facts
pertinent to a claim" and that duty to assist included, in certain situations, providing the claimant
with a medical examination. 38 U.S.C. § 5107(a) (1999); see Green v. Derwinski, 1 Vet.App. 121,
124 (1991). However, under a line of cases decided prior to the enactment of the Veterans Claims
Assistance Act of 2000 and culminating in this Court’s decision in Morton v. West, that duty was not
triggered unless a claimant first demonstrated, as a threshold matter, that the claim at issue was well
grounded. Morton, 12 Vet.App. 477, 486 (1999); Caluza v. Brown, 7 Vet.App. 498, 505-06 (1995),
aff'd, 78 F.3d 604 (Fed. Cir. 1996) (table). A claim was considered to be well grounded if the
claimant provided "competent evidence of current disability (a medical diagnosis), . . . of incurrence
or aggravation of a disease or injury in service (lay or medical evidence), . . . and of a nexus between
the in-service injury or disease and the current disability (medical evidence)." Caluza, 7 Vet.App.
at 506. Whether the claimant ultimately prevailed on the merits of the claim was a separate matter.
See id. at 507-13.
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Displeased with the Morton decision, which the Committees on Veterans' Affairs deemed
a "significant barrier to veterans who need assistance in obtaining information and evidence in order
to receive benefits from . . . VA," Congress eliminated the well-grounded-claim requirement by
enacting the Veterans Claims Assistance Act of 2000. See 146 CONG . REC. H9913-14 (Oct. 17,
2000) (Explanatory Statement by the House and Senate Committees on Veterans' Affairs); Luyster
v. Gober, 14 Vet.App. 186, 186 (2000). The Committees also noted that under VA’s "claimant
friendly" and "non-adversarial" adjudicative system, "VA must provide a substantial amount of
assistance to a [claimant] seeking benefits." 146 CONG . REC. at H9913 (citations omitted). Congress
highlighted the importance of providing medical examinations and opinions as part of that assistance
by establishing standards for determining when VA is required to provide examinations and
opinions. See 38 U.S.C. § 5103A(d). Under the new legal framework, there is generally no
prerequisite to receiving VA assistance; VA is simply required to assist a claimant at the time that
claimant files a claim for benefits. See 38 U.S.C. § 5103A(a); 38 C.F.R. § 3.159(c) (2003). Whether
the claimant prevails on the merits of the claim, however, remains a separate matter.
Under section 5103A(b), VA's duty to assist includes making "reasonable efforts to obtain
relevant records," such as service medical records, records from VA health-care facilities, and private
medical records, so long as the claimant adequately identifies those records to the Secretary and
authorizes the Secretary to obtain them. Depending on the record of evidence provided by the
claimant, or after any such development, VA's duty to assist may also include, under section
5103A(d), providing a claimant with a medical examination:
(1) In the case of a claim for disability compensation, the assistance provided by
the Secretary under subsection (a) shall include providing a medical examination or
obtaining a medical opinion when such an examination or opinion is necessary to
make a decision on the claim.
(2) The Secretary shall treat an examination or opinion as being necessary to
make a decision on a claim for purposes of paragraph (1) if the evidence of record
before the Secretary, taking into consideration all information and lay or medical
evidence (including statements of the claimant)–
(A) contains competent evidence that the claimant has a current disability, or
persistent or recurrent symptoms of disability; and
(B) indicates that the disability or symptoms may be associated with the
claimant's active military, naval, or air service; but
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(C) does not contain sufficient medical evidence for the Secretary to make a
decision on the claim.
38 U.S.C. § 5103A(d) (emphasis added); see Wells v. Principi, 326 F.3d 1381, 1384 (2003) (holding
that proof of current disability alone is insufficient to trigger Secretary's obligation to provide
medical examination); Charles v. Principi, 16 Vet.App. 370, 374-75 (2002) (holding that appellant's
own lay testimony regarding symptoms is sufficient to satisfy section 5103A(d)(2)(B) when
symptoms are "capable of lay observation").
The Secretary implemented section 5103A(d) in 38 C.F.R. § 3.159(c)(4)(i), which was made
applicable to any claim for benefits pending before the Department and "not decided by VA" as of
November 9, 2000. 66 Fed. Reg. 45,620, 45,629-31 (Aug. 29, 2001). Under the regulation, an
examination is necessary
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 . . . ; 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.
38 C.F.R. § 3.159(c)(4)(i) (emphasis added).
Although the regulation contains a requirement that is not present in the statute, namely the
requirement that the evidence of record "[e]stablishes that the veteran suffered an event, injury, or
disease in service," the U.S. Court of Appeals for the Federal Circuit has held that the regulation is
not in conflict with the statute. Paralyzed Veterans of Am. v. Sec'y of Veterans Affairs, 345 F.3d
1334, 1355-57 (Fed. Cir. 2003). In this regard, the Court notes that under section 5103A(a)(2) of
the statute, 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." Because
some evidence of an in-service event, injury, or disease is required in order to substantiate a claim
for service connection and because a postservice medical examination could not provide evidence
of such past events, a medical examination conducted in connection with claim development could
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not aid in substantiating a claim when the record does not already contain evidence of an in-service
event, injury, or disease. See Paralyzed Veterans of Am., 345 F.3d at 1355-57.
In addition, when deciding whether, under section 5103A(d) and § 3.159(c)(4), to provide
a claimant with a medical examination, the Board is required to provide a written statement of the
reasons or bases for its conclusion. 38 U.S.C. § 7104(d)(1). That statement must be adequate to
enable a claimant to understand the precise basis for the Board's decision, as well as to facilitate
review in this Court. See Gilbert v. Derwinski, 1 Vet.App. 49, 57 (1990). To comply with this
requirement, the Board must analyze the credibility and probative value of the evidence, account for
the evidence that it finds to be persuasive or unpersuasive, and provide the reasons for its rejection
of any material evidence favorable to the claimant. See Caluza, 7 Vet.App. at 506. In the absence
of a finding of nonprejudicial error, vacatur and remand is warranted where the Board has failed to
provide an adequate statement of its reasons or bases for its determinations. See Tucker v. West, 11
Vet.App. 369, 374 (1998); Soyini v. Derwinski, 1 Vet.App. 540, 546 (1991) (holding that failure to
provide adequate statement of reasons or bases does not necessitate remand "in the face of
overwhelming evidence in support of the [Board's] result in a particular case").
2. Examination with respect to Mr. Duenas's Claim for Service Connection for Heart Disease
Because Mr. Duenas's appeal was pending before the Board on November 9, 2000, the Board
was required to consider section 5103A and § 3.159(c) when it adjudicated his claims. See
38 U.S.C. § 5103A(a); Charles, 16 Vet.App. at 371-72, 374-75; 38 C.F.R. § 3.159(c). The record
before the Secretary contained Mr. Duenas's statement that he now experiences "difficulty in
breathing, easy fatigability, and [a] recurring rapid heartbeat." R. at 117. Mr. Duenas further
asserted that those symptoms are the symptoms of his claimed disabilities and that he has
experienced them since his separation from service. Id. The record also contained Mr. Duenas's
discharge examination report that includes a notation of an abnormality of his cardiovascular
system–tachycardia. R. at 58.
Although the Board concluded that a medical examination was not required with respect to
Mr. Duenas's claim for service connection for heart disease, it did not support that conclusion with
an adequate statement of reasons or bases. See 38 U.S.C. §§ 5103A(d), 7104(d)(1); Allday v. Brown,
7 Vet.App. 517, 527 (1995); 38 C.F.R. § 3.159(c)(4). Specifically, although the Board determined
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that "the evidence before the Secretary [did] not . . . indicate that the disorders at issue may be
associated with [Mr. Duenas's] active military service," it did not consider that, under section
5103A(d) and § 3.159(c)(4), the record before the Secretary need only (1) contain competent
evidence that he has persistent or recurrent symptoms of heart disease and (2) indicate that those
symptoms may be associated with his active military service. See R. at 1-12 (emphasis added).
To support its conclusion properly, the Board was required to address (1) whether difficulty
in breathing, easy fatigability, and a recurring rapid heartbeat are symptoms of heart disease; (2)
whether Mr. Duenas's statement was competent evidence that he has experienced those symptoms
since his separation from service, see 38 U.S.C. § 5103A(d)(2)(A); (3) what tachycardia is and
whether the symptoms that Mr. Duenas has experienced since service may be associated with his in-
service tachycardia, see 38 U.S.C. § 5103A(d)(2)(B); and (4) why "no reasonable possibility" existed
that an examination would aid in substantiating Mr. Duenas's claim. See R. at 5. The Board failed
to address any of these issues. See R. at 1-12.
3. Examinations with respect to Mr. Duenas's Claims for Service Connection
for Poor Vision and a Hearing-Loss Disability
The record before the Secretary contained Mr. Duenas's statement that he now experiences
the symptoms of his claimed disabilities, but his statement does not include a discussion regarding
symptoms of poor vision or a hearing-loss disability. R. at 117. Further, although Mr. Duenas
asserted that he has experienced the symptoms of his claimed disabilities since his separation from
service, the record also contained Mr. Duenas's discharge examination report that indicated that he
had 20/20 uncorrected bilateral vision and 15/15 bilateral hearing. R. at 58, 117.
As in the Board's decision to deny an examination with respect to Mr. Duenas's claim for
service connection for heart disease, the Board here discussed only whether the disorders of poor
vision and hearing loss may be associated with Mr. Duenas's service, not whether Mr. Duenas had
symptoms of those disorders and whether those symptoms may be so associated. See 38 U.S.C.
§ 5103A(d)(2)(A) and (B); R. at 1-12. Therefore, the Board failed to provide an adequate statement
of reasons or bases to support its conclusion that a medical examination was not required with
respect to Mr. Duenas's claims for service connection for poor vision and a hearing-loss disability.
See 38 U.S.C. §§ 5103A(d), 7104(d)(1); Allday, 7 Vet.App. at 527; 38 C.F.R. § 3.159(c)(4).
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Specifically, the Board did not explain (1) whether Mr. Duenas's statement was competent evidence
that he has the symptoms of poor vision and a hearing-loss disability; (2) if it was competent
evidence, why those symptoms could not be associated with his service; and (3) why "no reasonable
possibility" existed that an examination would aid in substantiating his claims. See R. at 1-12.
4. Application of 38 U.S.C. § 7261(b)(2) regarding the Rule of Prejudicial Error
Although the Board's conclusion with respect to Mr. Duenas's claims for service connection
for poor vision and a hearing-loss disability was not supported by an adequate statement of reasons
or bases, the Court concludes that any such error was nonpredjudicial. See 38 U.S.C. § 7261(b);
Conway v. Principi, 353 F.3d 1369, 1374-75 (Fed. Cir. 2004). In this regard, even assuming that Mr.
Duenas's statement constitutes "competent lay . . . evidence of . . . persistent or recurrent symptoms"
of poor vision and a hearing-loss disability, it does not address, and there is no other evidence in the
record that reflects, that he "suffered an event, injury[,] or disease in service" that may be associated
with those symptoms. See 38 C.F.R. § 3.159(c)(4)(i). Therefore, no reasonable possibility was
suggested by the record that an examination would have aided in substantiating Mr. Duenas's claims
for service connection for either of those two disabilities. See Paralyzed Veterans of Am., 345 F.3d
at 1356. With respect to an examination to evaluate Mr. Duenas's claimed heart disease, however,
the record does contain an in-service notation of tachycardia, which the examining medical officer
noted as an abnormality of the cardiovascular system. R. at 58. Accordingly, the Court cannot
speculate that a medical examination would not aid in substantiating Mr. Duenas's claim for service
connection for heart disease. See Allday, 7 Vet.App. at 527-28. A remand is therefore required but
only with respect to Mr. Duenas's claim for service connection for heart disease.
B. Service Connection
Service connection for VA disability compensation purposes will be awarded to a veteran
when the record before the Secretary contains (1) a medical diagnosis of a current disability, (2)
medical evidence of incurrence or aggravation of a disease or injury in service, and (3) medical
evidence of a nexus between the in-service injury or disease and the current disability. See 38 U.S.C.
§ 1110; Caluza, 7 Vet.App. at 505; 38 C.F.R. § 3.303 (2003).
A finding of service connection generally involves findings of fact. See Russo v. Brown,
9 Vet.App. 46, 50 (1996). The Court is required to reverse "a finding of material fact . . . if the
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finding is clearly erroneous." 38 U.S.C. § 7261(a)(4). "[A] finding of fact is clearly erroneous when
although there is evidence to support it, the reviewing court on the entire evidence is left with a
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
may not substitute its judgment for the factual determinations of the Board on issues of material fact
merely because the Court would have decided those issues differently in the first instance. See id.Here, because the Court will vacate the Board decision with respect to Mr. Duenas's claim
for service connection for heart disease and will remand that matter for readjudication, the Court
need only consider his remaining claims. In this regard, the Court notes that the Board denied those
claims because it determined that the record before the Secretary did not contain evidence of in-
service incurrence or aggravation of a urinary tract infection, poor vision, a hearing-loss disability,
a gastrointestinal disorder, asthma, bronchitis, emphysema, or hypertension. R. at 3, 8-11. First, as
the Board correctly noted, Mr. Duenas's 1946 discharge examination report reflects normal findings
with respect to his genitourinary system, abdominal viscera, and lungs; a negative chest x-ray; 20/20
uncorrected bilateral vision; 15/15 bilateral hearing; and a blood pressure reading that is not
indicative of hypertension. R. at 8-11, 58; DORLAND 'S at 801. Second, Mr. Duenas indicated in his
February 1946 affidavit that he had not incurred any wounds or illness since December 1941. R. at
8-11, 62. Third, Mr. Duenas's doctors, in their statements, do not relate any disabilities that Mr.
Duenas may have to his period of service. R. at 8-11, 21-23, 73-79. Finally, although the record
contains a statement by Mr. Duenas to the effect that his ailments have been recurring since his
service (R. at 117), the Court notes that expert medical evidence is necessary to establish the etiology
of those disabilities and that, because Mr. Duenas is not competent to provide such medical
evidence, his statements concerning the etiology of his alleged disabilities are insufficient to
demonstrate the in-service incurrence of those disabilities. See Espiritu v. Derwinski, 2 Vet.App.
492, 494 (1992). Given this evidence and considering the entire record before the Board and the
Secretary, the Court cannot conclude that the Board's determination in this regard is clearly
erroneous. See 38 U.S.C. § 7261(a)(4); Hersey, 2 Vet.App. at 94; Gilbert, 1 Vet.App. at 52.
With respect to Mr. Duenas's arguments that the Court should not consider his February 1946
affidavit as evidence against his claim and that the Court should give "credence" to his doctors'
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statements regarding his claims for service connection for asthma, bronchitis, and hypertension, the
Court finds those arguments to be unavailing. Specifically, the Court notes that whether or not it
considers the 1946 affidavit as evidence against Mr. Duenas's claims, the record, as the Board
correctly noted, does not contain any evidence of incurrence or aggravation of a disease or injury in
service. In addition, the doctors' statements do not refer to the issue of whether Mr. Duenas's
claimed disabilities were incurred during, or aggravated by, his service.
III. CONCLUSION
On consideration of the foregoing, the May 13, 2003, Board decision is AFFIRMED to the
extent that the Board denied Mr. Duenas's claims for service connection for a urinary tract infection,
poor vision, a hearing-loss disability, a gastrointestinal disorder, asthma, bronchitis, emphysema, and
hypertension. The decision is VACATED with respect to Mr. Duenas's claim for service connection
for heart disease, and that matter is REMANDED for readjudication consistent with this decision.
On remand, Mr. Duenas is free to submit additional evidence and argument in accordance with
Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999) (per curiam order). See Kay v. Principi,
16 Vet.App. 529, 534 (2002). The Court reminds the Board that "[a] remand is meant to entail a
critical examination of the justification for the decision." Fletcher v. Derwinski, 1 Vet.App. 394, 397
(1991). In addition, the Secretary shall proceed expeditiously, in accordance with 38 U.S.C.
§§ 5109B, 7112 (expedited treatment of remanded claims).
HAGEL, Judge, concurring: I write separately because I believe that a matter of great
significance is at issue in this case and wish to elaborate further on the views already expressed. The
focus of the Veterans Claims Assistance Act of 2000 was to ensure that all information necessary
to making a determination on a claim is obtained and presented to the adjudicator as early on in the
decision-making process as possible. One section of that act, now codified in 38 U.S.C. § 5103A(d),
was devoted to clarifying VA's duty to assist veterans seeking disability compensation in obtaining
medical examinations. Whether or not a veteran receives a VA medical examination can have a
significant bearing on the outcome of a veteran's claim for disability compensation. If provided with
an examination, a veteran, although certainly not entitled to benefits automatically, is afforded an
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opportunity to obtain the expert medical evidence that is often necessary to support a claim for
benefits. If denied an examination by VA, however, a veteran may be ill suited to acquire that
evidence on his or her own. The veteran is faced with the somewhat-daunting task of obtaining and
likely paying for a specialized opinion from an expert who may be unfamiliar with the contents of
the service medical and other treatment records and who is uninformed regarding the importance of
certain standards peculiar to the needs of the VA adjudication system. Under section 5103A(d), the
initial decision to provide a veteran seeking disability compensation with an examination rests with
VA, and because of the critical impact of such an examination on the outcome of the adjudication,
it is crucial that VA take this section into careful consideration when making its decision.
The Board failed to do so in this case. Particularly, the Board completely ignored the
language of section 5103A that provides that the necessity of an examination may be triggered by
evidence that a claimant has "persistent or recurrent symptoms of disability" and that those
"symptoms may be associated with the claimant's active military . . . service."
38 U.S.C. §§ 5103A(d)(2)(A), (B) (emphasis added).
In its primary opinion, the Court enumerated a number of issues that the Board is required
to address on remand. Ante at 7-8. Although I am fully cognizant of the principle that "[f]act finding
in veterans cases is to be done by the expert [Board], not by [this] Court," Elkins v. Gober, 229 F.3d
1369, 1377 (2000), I would like to make the following observations with respect to the issues that
this Court has noted. First, difficulty in breathing, easy fatigability, and a recurring rapid heartbeat
are described in some texts as symptoms of heart disease. See David Schechter, M.D. & Roger
Manwaring, Heart Disease, in 7 ATTORNEYS< TEXTBOOK OF MEDICINE ¶¶ 30.31, .60, .62 (Roscoe
N. Gray, M.D., et al. eds., 3d ed. 2003); 5A LAWYERS< MEDICAL CYCLOPEDIA § 34.29 (A), (C), (G),
(K) (Richard M. Patterson ed., 5th ed. 2003). Second, it is unclear to me why those three symptoms
would not be "capable of lay observation," and therefore why Mr. Duenas would not be competent
to testify that he has experienced them.
At this point and in the absence of an explanation by the Board, I cannot conclude that a
recurring rapid heartbeat and other symptoms of heart disease allegedly experienced by Mr. Duenas
since his military service could not potentially be associated with the tachycardia, or excessive
rapidity in the action of the heart, experienced by him during service, as described on his discharge
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examination report. 38 U.S.C. § 5103A(d)(2)(B); 38 C.F.R. § 3.159(c)(4)(i)(C); R. at 58;
DORLAND 'S at 1655. Further, given these observations and the Board's incomplete discussion of the
issues, I also cannot conclude that there is no reasonable possibility that an examination would aid
in substantiating Mr. Duenas's claim. See 38 U.S.C. § 5103A(a)(2). Under the Court's opinion, the
Board must discuss thoroughly the issues raised by the Court and either order a VA examination or
explain clearly and comprehensively why, in light of section 5103A(d)(2), no such examination is
necessary.
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