diabetes Dysesthesia: Crawford V. Nicholson

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UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS

No. 01-1270

Travis D. Crawford, Appellant,

v.

R. James Nicholson,

Secretary of Veterans Affairs, Appellee.

Before STEINBERG, Judge.

MEMORANDUM DECISION

Note: Pursuant to U.S. Vet. App. R. 30(a),

this action may not be cited as precedent.

STEINBERG, Judge: The appellant, veteran Travis D. Crawford,

through counsel, seeks review of an April 23, 2001, decision of the Board

of Veterans' Appeals (Board or BVA) in which the Board denied his

claims for Department of Veterans Affairs (VA) service connection for

residuals of Agent-Orange exposure, including (1) chloracne, (2) a

cardiovascular disability, (3) bipolar disorder, (4) post-traumatic stress

disorder (PTSD), (5) diabetes mellitus, and (6) a disability of the lower

extremities. Record (R.) at 1-7. The appellant filed a brief and

reply brief, and the Secretary filed a brief. This appeal is timely,

and the Court has jurisdiction pursuant to 38 U.S.C. 7252(a) and 7266(a

). Single-judge disposition is appropriate here because the case is one

whose outcome is controlled by the Court's precedents and is "not

reasonably debatable". Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (

1990). For the reasons set forth below, the Court will vacate in part

the April 2001 Board decision and remand several matters and will dismiss

the appeal as to another matter.

I. Background

The veteran served on active duty in the U.S. Army from May 1966 to

May 1968, including service in Vietnam. R. at 10. In December 1990, he

underwent an electromyogram (EMG)

examination; the examiner's impression was "[a]bnormal EMG of the

left[-]lower extremity with moderate L5-S1 paraspinous muscle denervation

without significant extremity radiculopathy, neuropathy[,[ 1 "

Neuropathy" is defined as "a general term denoting functional disturbances

and/or pathological changes in the peripheral nervous system."

Dorland's Illustrated Medical Dictionary 1131 (27th ed. 1988) [

hereinafter Dorland's]. ]1] or myopathy." R. at 187.

Subsequently, the veteran filed a claim for service connection for various

conditions claimed to be the result of in-service exposure to Agent Orange

. R. at 214-16, 227-28 (in document submitted to VA, veteran asserted,

inter alia, that weakness of lower extremities was due to Agent-Orange

exposure). In a November 1994 BVA decision, the Board, inter alia, denied

as not well grounded the veteran's claim for direct service connection for

a bilateral-leg condition (R. at 241, 248) and noted that he also had "

claimed [that] diabetes and [a] bilateral[-]leg condition were residuals

of exposure to Agent Orange." R. at 249. The Board remanded to a VA

regional office (RO) the veteran's Agent-Orange-residuals service-

connection claims and provided, inter alia, the following remand

instructions:

1. The veteran should be afforded a comprehensive VA medical

examination. The examiner should first identify all disorders claimed by

the [veteran], and then evaluate the nature and severity of these alleged

disorders, and of any and all other disorders discerned on examination.

All tests indicated, to include all diagnostic tests and radiologic

studies, should be conducted at this time. If the examiner determines

that additional testing and evaluation are necessary with regard to a

specific disorder or disorders, a special examination should be scheduled

therefor, and the reports of such examinations should thereafter be

associated with the claims folder. All examiners should be requested to

indicate on the examination report the degree of functional impairment

resulting from all identified disorders, with consideration of the effect

of each disorder on the [veteran's] ability to work or to seek work. A

description of the effects of each disability upon his ordinary activities

should also be included in each examiner's report. The examiners should

also be requested to present all opinions and findings, and the reasons

and bases therefor, in a clear, comprehensive, and legible manner on the

examination report. The claims folder is to be made available to the

examiner, and to any examining specialists, prior to any examination of

the [veteran].

2. The [VA]RO should schedule the [veteran] for a VA

psychiatric examination in order to ascertain the nature and severity of

any psychiatric disorder currently present. The claims file should be

made available to the examiner prior to the examination of the [veteran].

R. at 249-50 (emphasis added).

In May 1997, the veteran underwent a VA Agent-Orange examination,

which included a series of specialty examinations described below. R. at

347-70. A heart-examination report reflected that the veteran reported

that he had had chest pains since 1993 and that the examiner diagnosed the

veteran as having coronary heart disease. R. at 353-54. After conducting

a neurological-disorders examination and a peripheral-nerves examination,

the examiner diagnosed the veteran as having recurrent headaches of

undetermined etiology (R. at 360) and left-thigh dysesthesia[ 2 "

Dysesthesia" is defined as an "impairment of any sense, especially of

that of touch". Dorland's at 517. ]2 of undetermined

etiology (R. at 362). That examiner noted that "[a]pparently nerve[-]

conduction studies were performed about six years ago . . . . [and that

the r]eport of those nerve[-]conduction studies [was] available in the [

claims f]ile." R. at 361. Also, the examiner opined that "some of the

abnormalities of the EMG in 1991 may be related to [a] motor vehicle

accident." R. at 362. A skin-examination report reflected that the

veteran had "approximately three minimally active [acneform] lesions" on

his posterior torso and that the examiner diagnosed him as having acne

vulgaris of the posterior torso. R. at 363. The veteran also underwent a

VA PTSD examination in May 1997. R. at 374-77. The examining

psychologist noted that he had reviewed the veteran's claims file, and the

examiner diagnosed the veteran as having a history of bipolar disorder and

an antisocial personality disorder. R. at 377. After an extended

procedural history (see R. at 523-25 (February 1999 Supplemental Statement

of the Case (SOC)), 541-45 (January 2000 Board remand decision), 552-61 (

June 2000 SOC)), the veteran again perfected an appeal to the Board,

arguing, inter alia, that VA had not yet complied with the prior Board

remand (R. at 563).

In the BVA decision here on appeal, the Board initially noted the

following:

In November 1994, the Board denied entitlement to service

connection for diabetes and for bilateral[-]leg disability,

because they were not manifested in service nor was there any

evidence linking

such disabilities to service. At that time, however, the

veteran was not contending that those disabilities were the

result of Agent[-]Orange exposure in service. Accordingly,

they are new issues [that] will be considered below on a de

novo basis.

R. at 2.[ 3 The Court notes that, although these Board

statements are not entirely clear (particularly considering that the 1994

Board decision had denied the veteran's claim for direct service

connection for a bilateral-leg disability and had remanded his claim for a

bilateral-leg disability secondary to Agent-Orange exposure (see R. at 248,

249-50)), it appears that the Board referred to the RO a reopened claim

for direct service connection for a bilateral-leg disability.]3

The Board also noted that, under 38 C.F.R. 3.307(a) and 3.309(e) (2000),

a veteran who was exposed to an herbicide agent during service may be

entitled to presumptive service connection for certain listed conditions,

including chloracne or other acneform diseases and acute and subacute

peripheral neuropathy. R. at 3. The Board then noted that presumptive

service connection was not "warranted for cardiovascular disability,

bipolar disorder, PTSD, diabetes mellitus, or disability of the lower

extremities (except for acute or subacute peripheral neuropathy) as a

result of Agent[-]Orange exposure" and found that the veteran had not been

diagnosed with chloracne or other acneform diseases. R. at 5. The Board

also found that there was no evidence that the veteran had PTSD or a

disability of the right-lower extremity and that a cardiovascular

disability and a psychiatric disability had not developed until many years

after his discharge from service. R. at 2, 4. Moreover, the Board found

that the veteran's lay statements were the only evidence relating any of

his current conditions to service and that he was not competent to opine

as to the etiology of a disability. R. at 6. The Board thus concluded

that "the presumptive requirements for entitlement to service connection

for any of the disorders have not been met" and that the evidence did not

support a grant of service connection for any of the claimed conditions.

R. at 5-6. Consequently, the Board denied his claims for service

connection for chloracne, a cardiovascular disability, bipolar disorder,

PTSD, diabetes mellitus, and a disability of the lower extremities. R. at

3, 7.

II. Analysis

On appeal, the appellant contends (1) that, in view of medical

evidence reflecting that he has neuropathy and dysesthesia of the left leg,

the Board should have adjudicated a claim for presumptive service

connection for peripheral neuropathy; (2) that the Board failed to ensure

compliance with the terms of its 1994 remand instructions in that the

medical examinations conducted pursuant to the Board's remand failed to

address functional impairment and there is no evidence that the claims

file was made available to the examiners (except for the PTSD examiner);

and (3) that he is entitled to presumptive service connection for diabetes

mellitus based on a VA regulatory amendment. Appellant's (App.) Brief (Br

.) at 8-9, 10-13. In response, the Secretary argues that the Court should

dismiss for lack of jurisdiction that portion of the appellant's appeal

regarding service connection for diabetes mellitus, because he has been

awarded service connection for that condition (in a July 2002 RO decision),

thereby rendering the issue moot. Secretary's (Sec'y) Br. at 9, 11-13.

The Secretary further contends that there is a plausible basis in the

record for the Board's denial of the appellant's claims for service

connection for chloracne, a cardiovascular disorder, bipolar disorder,

PTSD, and a disorder of the lower extremities, because there is no

evidence of a current diagnosis of chloracne, PTSD, and a right-leg

disorder and because there is no medical evidence attributing bipolar

disorder, a cardiovascular disorder, or a left-leg disorder to service.

Br. at 13-16. As to a left-leg disability, the Secretary also asserts

that there is no evidence that the appellant developed acute or subacute

peripheral neuropathy within one year following his in-service exposure to

Agent Orange and that he is thus not entitled to presumptive service

connection for that condition. Br. at 17. Finally, the Secretary

contends that, because the examiners found no current disabilities for

which the appellant would be entitled to service connection, the 1994

remand instructions relating to the degree of disability are irrelevant

and any inadequacies in the examinations would be nonprejudicial. Br. at

18-19.

A. Diabetes Service-Connection Claim

The Secretary has asserted, and provided a copy of an RO decision

reflecting, that the RO, in July 2002, awarded the appellant service

connection for diabetes mellitus. Sec'y Br. at 11-13, Exhibit 3. In his

reply brief, the appellant does not dispute the Secretary's assertions in

that regard. See App. Reply Br. at 1-7. Accordingly, the Court agrees

with the Secretary that any appeal with regard to the appellant's diabetes

service-connection claim has been rendered moot, and the appellant's

appeal as to that claim will be dismissed. See Thomas v. Brown, 9 Vet.

App. 269, 270 (1996) (per curiam order).

B. Stegall v. West Remand

In Stegall v. West, the Court held that "a remand by this Court or

the Board confers on the veteran or other claimant, as a matter of law,

the right to compliance with the remand orders" and that "a remand by this

Court or the Board imposes upon the Secretary . . . a concomitant duty to

ensure compliance with the terms of the remand." Stegall, 11 Vet.App. 268,

271 (1998). In this case, the appellant argues, and the Court agrees,

that there is a Stegall violation because the Board failed to ensure that

the RO had complied with the remand instructions in the November 1994

Board decision. Pursuant to that remand, the RO was required to ensure

that the appellant's claims folder was made available to the examiners

prior to any examinations. R. at 250. Although the psychologist who

conducted the PTSD examination noted that he had reviewed the appellant's

claims file (R. at 376), the remaining examination reports do not

reflect whether the appellant's claims file had been made available to

those other examiners prior to the examinations. See R. at 353-54 (heart-

examination report), 355-57 (general-medical-examination report), 359-60 (

neurological-disorders- examination report), 361-62 (peripheral-nerves-

examination report), 363 (skin-examination report). In that regard, the

Court notes that, although the examiner noted in the peripheral-nerves-

examination report that nerve-conduction studies were "available in the [

claims f]ile", he did not indicate whether he had received or reviewed the

claims file. R. at 361. In addition, the Court agrees with the appellant

that the Board failed to ensure compliance with its remand instruction

that the examiners "report the degree of functional impairment resulting

from all identified disorders". R. at 250 (emphasis added). In that

regard, the Court notes that none of the examination reports include an

analysis of the appellant's functional impairment. See R. at 353-54,

355-57, 359-60, 361-62, 363, 374-77 (PTSD-examination report).

Accordingly, the Court is not able to conclude that VA complied with the

Board's 1994 remand instructions.

Although the Secretary asserts in his brief that an evaluation of

the appellant's functional impairment was unnecessary and that any failure

to comply with the Board's remand instructions was nonprejudicial (Sec'y

Br. at 18-19), the Board decision on appeal does not contain any

discussion of whether an assessment of functional impairment was necessary,

nor does the Board decision address the appellant's argument that VA had

not complied with the prior remand instructions (R. at 563). See Martin

v. Occupational Safety and Health Review Comm'n, 499 U.S. 144, 156 (1991)

(concluding that litigating positions are not entitled to judicial

deference when they are merely appellate counsel's post-hoc

rationalizations for agency action and are advanced for first time on

appeal); see also 38 U.S.C. 7252(a) (providing for Court review of Board

decisions). Because of the Board's failure to discuss adequately the RO's

compliance with the 1994 Board remand instructions regarding the conduct

of the VA examinations and because the Board denied the appellant's

service-connection claims based on a lack of medical evidence, "the Court

cannot say, based on the record before it, that the appellant here has not

been harmed [by the failure to comply with the remand instructions]"

regarding the required examinations. Stegall, supra; see 38 U.S.C. 7261(

B)(2). "Moreover, for the Court presently to make such a determination [(

a conclusive determination of nonprejudice)] may require findings of fact

that the Court believes it is preferable for the Board to make in the

first instance." Pelegrini v. Principi, 18 Vet.App. 112, 121 (2004); see

McCormick v. Gober, 14 Vet.App. 39, 45 (2000). Accordingly, the Court

will vacate the Board's decision to the extent that it denied the

appellant's claims for service connection for residuals of Agent-Orange

exposure, including chloracne, a cardiovascular disability, bipolar

disorder, PTSD, and a disability of the lower extremities, and remand

those matters for compliance with the Board's November 1994 remand

instructions.

C. Lower-Extremities Service-Connection Claim

Pursuant to 38 C.F.R. 3.307(a)(6) (2004), a veteran who was exposed

to Agent Orange during service may be entitled to presumptive service

connection if "[a]cute [or] subacute peripheral neuropathy", 38 C.F.R. 3.

309(e) (2004), manifests to a degree of 10% within one year after the last

date during service on which the veteran was exposed to Agent Orange. See

38 C.F.R. 3.307(a)(6)(iii) (veteran who served in Vietnam during period

from January 9, 1962, to May 7, 1975, shall be presumed to have been

exposed during service to herbicide agent unless there is affirmative

evidence to contrary; last day of service in Vietnam during that period

will be presumed to be last date of exposure). For purposes of 3.309(

e), "the term acute and subacute peripheral neuropathy means transient

peripheral neuropathy that appears within weeks or months of exposure to

an herbicide agent and resolves within two years of the date of onset."

38 C.F.R. 3.309(e), Note 2.

The Board is required to consider, and discuss in its decision, all "

potentially applicable" provisions of law and regulation. Schafrath v.

Derwinski, 1 Vet.App. 589, 592-93 (1991); see 38 U.S.C. 7104(a), (d)(1);

Weaver v. Principi, 14 Vet.App. 301, 302 (2001) (per curiam order); Sanden

v. Derwinski, 2 Vet.App. 97, 100 (1992). The Board is also required to

include in its decision a written statement of the reasons or bases for

its findings and conclusions on all material issues of fact and law

presented on the record; that statement must be adequate to enable an

appellant to understand the precise basis for the Board's decision, as

well as to facilitate informed review in this Court. See 38 U.S.C. 7104(

d)(1); Allday v. Brown, 7 Vet.App. 517, 527 (1995); Gilbert v. Derwinski,

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

must analyze the credibility and probative value of the evidence, account

for the evidence that it finds persuasive or unpersuasive, and provide the

reasons for its rejection of any material evidence favorable to the

claimant. See Caluza v. Brown, 7 Vet.App. 498, 506 (1995), aff'd per

curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); Gabrielson v. Brown, 7 Vet.

App. 36, 39-40 (1994); Gilbert, supra.

In this case, the appellant contends that, because there is evidence

reflecting that he had no "significant . . . neuropathy" and that he had

dysesthesia in his left-lower leg (R. at 187, 362), the Board should have

addressed whether he is entitled to presumptive service connection for

peripheral neuropathy under 38 C.F.R. 3.307(a)(6) and 3.309(e). App.

Br. at 9-10. In this regard, the Board noted that, under certain

circumstances, presumptive service connection may be warranted for

conditions listed in the regulation, including acute or subacute

peripheral neuropathy, and concluded that "the presumptive requirements

for entitlement to service connection for any of the disorders have not

been met" (R. at 5 (emphasis added)). However, in so concluding, the

Board did not address specifically the significance, if any, of the

evidence regarding neuropathy and dysesthesia. Accordingly, the Court

concludes that the Board's statement of reasons or bases in this regard

was inadequate, and the Court will remand the lower-extremity service-

connection matter for this reason as well. See 38 U.S.C. 7104(a), (d)(1);

Caluza, Gabrielson, and Gilbert, all supra; see also 38 C.F.R. 3.307(

a)(6), 3.309(e).

III. Conclusion

On the basis of the foregoing analysis, the record on appeal, and the

parties' pleadings, and having "take[n] due account of the rule of

prejudicial error" under 38 U.S.C. 7261(B)(2), the Court will vacate the

April 23, 2001, Board decision with regard to the appellant's claims for

service connection for residuals of Agent-Orange exposure, including

chloracne, a cardiovascular disability, bipolar disorder, PTSD, and a

disability of the lower extremities, and remand those matters for

expeditious further development and issuance of a readjudicated decision

supported by an adequate statement of reasons or bases, see 38 U.S.C.

1110, 7104(a), (d)(1); 38 C.F.R. 3.307(a), 3.309(e); Fletcher v.

Derwinski, 1 Vet.App. 394, 397 (1991), all consistent with this

decision and in accordance with 38 U.S.C. 7112 (as added by the Veterans

Benefits Act of 2003, Pub. L. No. 108-183, 707(B), 117 Stat. 2651, 2673) (

requiring Secretary to "take such actions as may be necessary to provide

for the expeditious treatment by the Board of any claim that is remanded

to the Secretary by the Court"); see Vargas-Gonzalez v. Principi, 15

Vet.App. 222, 225-30 (2001) (holding that section 302 of Veterans'

Benefits Improvements Act of 1994, Pub. L. No. 103-446, 302, 108 Stat.

4645, 4658, predecessor of section 7112, applies to all elements of a

claim remanded by the Court or Board), and in accordance with all

applicable law and regulation. See Allday, supra. On remand, the

Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475, 114 Stat.

2096, and its implementing regulations will apply. See 38 U.S.C. 5100-

5103, 5103A, 5106, 5107; 38 C.F.R. 3.159 (2004); Pelegrini, supra;

Fortuck v. Principi, 17 Vet.App. 173, 181 (2003); Charles v.

Principi, 16 Vet.App. 371, 374 (2002); Quartuccio v. Principi, 16

Vet.App. 183, 187 (2000). Also, on remand, the appellant will be free to

submit additional evidence and argument on the remanded claims, and the

Board is required to consider any such evidence and argument. See Kay v.

Principi, 16 Vet.App. 529, 534 (2002). As noted above, a remand by

this Court or by the Board confers on an appellant the right to VA

compliance with the terms of the remand order and imposes on the Secretary

a concomitant duty to ensure compliance with those terms. See Stegall,

supra. A final decision by the Board following the remand herein ordered

will constitute a new decision that, if adverse, may be appealed to this

Court only upon the filing of a new Notice of Appeal with the Court not

later than 120 days after the date on which notice of the Board's new

final decision is

mailed to the appellant. See Marsh v. West, 11 Vet.App. 468, 472 (1998

). For the reasons stated in part II.A above, the appeal is dismissed

with regard to the diabetes service-connection claim.

VACATED AND REMANDED IN PART; APPEAL DISMISSED IN PART.

DATED: February 8, 2005

Copies to:

Jeany C. Mark, Esq.

1050 17th Street, NW, #600

Washington, DC 20036

General Counsel (027)

Department of Veterans Affairs

810 Vermont Avenue, NW

Washington, DC 20420

http://search.vetapp.gov/isysquery/ac30dfe...4a833068/2/doc/