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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