Camillocci v. McDonough

• Decision Date: 18 March 2022
• Docket Number: 21-3379
• Court: United States Court of Appeals For Veterans Claims
• Parties: James Camillocci, Appellant, v. Denis McDonough, Secretary of Veterans Affairs, Appellee.

James Camillocci, Appellant,
v.
Denis McDonough, Secretary of Veterans Affairs, Appellee.

No. 21-3379

United States Court of Appeals For Veterans Claims

March 18, 2022

Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent.

Brett Burke, Esq. VA General Counsel (027)

Before MEREDITH, Judge.

MEMORANDUM DECISION

MEREDITH, JUDGE:

The appellant, James Camillocci, through counsel appeals a March 17, 2021, Board of Veterans' Appeals (Board) decision. Record (R.) at 5-53.^[1] In that decision, the Board denied entitlement to (1) benefits for a psychiatric disorder, including posttraumatic stress disorder (PTSD), (2) benefits for memory loss, including as due to an undiagnosed illness or medically unexplained chronic multisymptom illness (MUCMI), (3) a disability rating greater than 10% for residuals of squamous cell carcinoma of the left vocal cord prior to July 27, 2017, (4) a rating greater than 10% for kidney stones, left kidney, with ureteropelvic^[2] junction obstruction, (5) initial ratings greater than 10% for restless leg syndrome (RLS) of the right and left leg, and (6) an effective date prior to May 4, 2008, for the award of a 50% disability rating for obstructive sleep apnea (OSA), including on the basis of clear and unmistakable error (CUE) in a June 1996 rating decision. R. at 5-53. The Board dismissed the appellant's request to reopen his

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claim for entitlement to benefits for shortening of the left leg and the issue of an initial disability rating greater than 10% for herpes zoster. R. at 5, 10-11. The Board remanded the issues of entitlement to benefits and increased disability ratings for several other disabilities.^[3] The remanded matters are not before the Court. See Breeden v. Principi, 17 Vet. App. 475, 478 (2004) (per curiam order) (a Board remand "does not represent a final decision over which this Court has jurisdiction"); Hampton v. Gober, 10 Vet.App. 481, 483 (1997) (claims remanded by the Board may not be reviewed by the Court).

Additionally, the Board awarded entitlement to a 30% disability rating, but no higher, for residuals of squamous cell carcinoma of the left vocal cord from July 27, 2017, through October 18, 2019; and an effective date of May 4, 2008, for the 50% rating for OSA. The Board's awards are favorable findings that the Court may not disturb. See Medrano v. Nicholson, 21 Vet.App. 165, 170 (2007), affd in part, dismissed in part sub nom. Medrano v. Shinseki, 332 Fed.Appx. 625 (Fed. Cir. 2009); see also Bond v. Derwinski, 2 Vet. App. 376, 377 (1992) (per curiam order) ("This Court's jurisdiction is confined to the review of final Board . . . decisions which are adverse to a claimant."). The appellant does not raise any argument concerning the Board's dismissal of his request to reopen his claim for benefits for shortening of the left leg, dismissal of entitlement to an initial rating greater than 10% for herpes zoster, denial of an earlier effective date for the award of a 50% rating for OSA on the basis of CUE, and denial of a rating greater than 30% for residuals of squamous cell carcinoma of the left vocal cord from July 27, 2019, through October 18, 2019. Therefore, the Court finds that he has abandoned his appeal of these issues and the Court will dismiss the appeal as to the abandoned issues. See Pederson v. McDonald, 27 Vet.App. 276, 285 (2015) (en banc).

This appeal is timely, and the Court has jurisdiction to review the Board's decision pursuant to 38 U.S.C. §§ 7252(a) and 7266(a). Single-judge disposition is appropriate. See Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). For the following reasons, the Court will affirm the

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Board's decision denying benefits for memory loss, including as due to an undiagnosed illness or MUCMI; a rating greater than 10% for residuals of squamous cell carcinoma of the left vocal cord prior to July 27, 2017; a rating greater than 10% for kidney stones, left kidney, with ureteropelvic junction obstruction; ratings greater than 10% for RLS of the right and left leg; and an effective date prior to May 4, 2008, for the award of a 50% disability rating for OS A, other than on the basis of CUE. The Court will vacate the Board's decision denying benefits for a psychiatric disorder, including PTSD, and remand the matter for further proceedings consistent with this decision.

I. BACKGROUND

The appellant served on active duty in the U.S. Army from September 1982 to January 1996. R. at 1415. In June 1994, the appellant underwent a clinical evaluation and complained of symptoms of depressed mood, memory problems, and sleep disturbances almost nightly. R. at 3060; see R. at 3059-60. The health care provider wrote "PTSD" under the primary diagnosis section of the form. R. at 3059. The appellant submitted letters to VA in February and March 2001. R. at 2926-27. In the first letter, he stated: "I would like to reopen my disability claim. The status of one of my disabilities currently rated at [0%] has changed and several other conditions currently affecting me could be based on my prior service." R. at 2926. He requested that VA reevaluate his noncompensable disability rating for his kidneys and that VA open claims for his back and ankle conditions. Id. In the second letter, he requested that VA reevaluate his 10% rating for cancer and that VA reopen his Gulf War claim. R. at 2927.

The appellant received a VA new patient examination in December 2008; the medical professional noted that she offered him bupropion and nicotine patches to assist him with quitting smoking, but the appellant declined. R. at 1890; see R. at 1888-91. A November 2009 letter from his primary care physician indicates that the appellant was in his care from September 2001 to January 2008 and that the appellant was prescribed Axura and concentration training for his pronounced concentration disorders. R. at 2603. In April 2010, a VA regional office (RO) increased to 50% the appellant's disability rating for OSA, effective March 4, 2009; continued his 10%) disability rating for residuals of squamous cell carcinoma, left vocal cord; deferred the determination of entitlement to benefits for memory loss; and continued the denial of benefits for shortening of the left leg. R. at 2507-09, 2514-21. The appellant underwent a VA mental disorders examination in June 2010; he reported memory problems beginning in "1991 when he was

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diagnosed with vocal cord cancer." R. at 2444; see R. at 2443-49. The RO denied benefits for memory loss and chronic fatigue syndrome the following month. R. at 2371-78.

VA afforded the appellant a kidney stone examination in August 2010. R. at 2330-32. He reported urinating 12 times during the day and 4 times at night, and the examiner noted that the appellant experienced "recurrent urinary tract infections and renal colic." R. at 2330. The examiner also noted that "[examination of the prostate reveals enlargement," but that it was "[n]ot related to [the] claim." R. at 2331. The examiner diagnosed kidney stones, left kidney with ureteropelvic junction obstruction, indicated that the condition was "active," and recorded the following subjective factors: "Recurrent renal colic, frequent urine infection[, ] and frequency of urination." R. at 2332. Following the examination, VA sought an additional medical opinion, explaining that the prior examiner also noted a diagnosis of benign prostatic hypertrophy (BPH), a condition that is not service connected, and "[g]iven the fact that urinary frequency is a common symptom of BPH, we need some clarification as to the most likely etiology of the [appellant's] reported urinary frequency." R. at 2296; see R. at 2295-96. In March 2011, a VA physician opined "that the most likely cause of the urinary frequency is a benign enlargement of the prostate," and he explained that "the prostate is enlarged and causes the bladder to be not completely emptied at the time of urination." R. at 2294. The RO continued the assigned 10% disability rating for the appellant's kidney stones. R. at 2258-63.

The appellant underwent a VA PTSD examination in April 2012; the examiner opined that the appellant's "symptoms do not meet the diagnostic criteria for PTSD" or another mental disorder, R. at 2006, but she noted that the appellant "says he has occasional depressed mood . . . [and his] memory has been poor for a long time," R. at 2013; see R. at 2005-13. The following month, the RO assigned a 10% disability rating for recurrent herpes zoster, and the appellant underwent a VA memory loss examination. R. at 1929-35, 1977-83. The RO subsequently recharacterized the appellant's service-connected sleep apnea as "sleep apnea with [RLS]" but continued the assigned 50% disability rating. R. at 1923-25, 1937-39.^[4]

A May 2013 primary care note reflects that the appellant had been prescribed Wellbutrin to assist with tobacco cessation. R. at 1710; see R. at 1708-11. In July 2017, the appellant reported to a VA speech-language pathologist "dysphonia [for] 4-5 months, worse in the mornings," and a

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history of laryngeal cancer. R. at 918; see R. at 918-20. A March 2019 VA treatment record lists the appellant's active medications, including bupropion "for depression," R. at 785, and the physician, as part of her assessment, made the following entry: "depression - continue with [W]ellbutrin; some improvement with med[ication]," R. at 788; see R. at 785-88. The Board, in November 2019, remanded the appellant's claims for entitlement to (1) benefits for a psychiatric disorder, including PTSD; (2) benefits for memory loss, including as due to an undiagnosed illness or MUCMI; (3) a disability rating greater than 10% for residuals of squamous cell carcinoma of the left vocal cord; (4) a rating greater than 10% for kidney stones, left kidney, with ureteropelvic junction obstruction; (5) separate initial compensable ratings for RLS; and (6) an effective date prior to October...