Euzebio v. Wilkie
| Decision Date | 22 August 2019 |
| Docket Number | 17-2879 |
| Court | United States Court of Appeals For Veterans Claims |
| Parties | Robert M. Euzebio, Appellant, v. Robert L. Wilkie, Secretary of Veterans Affairs, Appellee. |
Argued May 30, 2019
On Appeal from the Board of Veterans' Appeals
April Donahower, with whom Linden K. Nash was on the brief, both of Providence, Rhode Island, for the appellant.
Lance Steahly, with whom James M. Byrne, General Counsel; Mary Ann Flynn, Chief Counsel; Kenneth A. Walsh, Deputy Chief Counsel and Kelly L. Grosshuesch (non-attorney practitioner), were on the brief, all of Washington, D.C., for the appellee.
Before ALLEN, MEREDITH, and FALVEY, Judges.
The appellant, Robert M. Euzebio, through counsel appeals a July 20, 2017, Board of Veterans' Appeals (Board) decision that denied entitlement to disability compensation for benign thyroid nodules, including as due to exposure to Agent Orange (AO) or water contaminants at Camp Lejeune, on presumptive and direct bases. Record (R.) at 1-14. The appellant does not raise any argument concerning the Board's denial of entitlement to disability compensation on a presumptive basis. Therefore, the Court finds that he has abandoned his appeal of this issue and will dismiss the appeal as to the abandoned issue. 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). This matter was submitted to a panel of the Court, with oral argument, to address whether the National Academies of Sciences, Engineering & Medicine's (NAS) report, Veterans and Agent Orange Update 2014 (10th Biennial Update 2016) (hereinafter 2014 Update) was constructively before the Board when it denied entitlement to disability compensation for benign thyroid nodules. See Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990) (). For the reasons discussed below, the Court holds that the 2014 Update was not constructively before the Board and the appellant has not demonstrated prejudicial error in the Board's decision to decline to obtain a medical nexus opinion. Accordingly, the Court will affirm the Board's decision.
The appellant served on active duty in the U.S. Navy from February 1966 to October 1969, including service in Vietnam. R. at 399. He also attended a training course at Camp Lejeune in North Carolina. R. at 24-25, 118. In April 2011, a private physician found the appellant's thyroid to be palpable, R. at 400, and another private physician diagnosed a benign thyroid nodule in May 2011, R. at 401-08. Later that month, the appellant filed a disability compensation claim for that condition and asserted that he believed it was related to AO exposure in Vietnam. R. at 409-13. In August 2011, a private physician noted the following: R. at 320.
A VA regional office (RO) denied entitlement to disability compensation in September 2011. R. at 375-81. The appellant disagreed with the decision and requested a VA examination to evaluate whether his benign thyroid nodules are related to service. R. at 351, 354. He later perfected his appeal, asserting that he believed his claimed condition is related to AO exposure in Vietnam and to contaminated water at Camp Lejeune because he has no family history of thyroid problems. R. at 66. The appellant reiterated at his January 2017 Board hearing that he believed his benign thyroid nodules are related to AO exposure because herbicides are known to cause "many different [conditions]" and no one in his family has had a thyroid condition. R. at 24; see R. at 22.
On July 20, 2017, the Board denied entitlement to disability compensation for benign thyroid nodules, including as due to exposure to AO or water contaminants at Camp Lejeune. R. at 1-14. Relevant to the issues raised here on appeal, the Board "acknowledge[d] that the [appellant had] not been afforded a VA examination with respect to this case," but determined that the duty to assist was satisfied. R. at 5-6. In discussing the four-part test set forth in McLendon v. Nicholson, 20 Vet.App. 79, 81 (2006), for whether an examination is warranted, [1] the Board noted that the appellant had asserted that his benign thyroid nodules were related to exposure to AO while serving in Vietnam and drinking contaminated water at Camp Lejeune. R. at 6-7. However, the Board discounted the probative value of these statements because it found that the appellant was not competent to opine on nexus. R. at 7. The Board thus determined that the appellant's conclusory generalized statements were "insufficient to meet even the low burden triggering VA's duty to assist in providing an examination and medical opinion." Id.
The Board proceeded to deny entitlement to disability compensation on a direct basis because there was no "competent evidence indicating a causal link between the [appellant's] thyroid disorder and military service." R. at 11-12. In reaching that determination, the Board noted that the service treatment records were silent for a thyroid disability; the appellant's "thyroid nodules were first observed in April 2011, more than 40 years after military service"; and the appellant was not competent to provide a nexus opinion. R. at 11. The Board also found that, although the August 2011 private treatment record contained a notation that the appellant was "known to have [thyroid nodules], felt to be related to AO exposure in Vietnam," the physician "immediately note[d] that this . . . was the first time the [appellant] had mentioned this." Id. The Board determined that it was "more likely" that the suggestion of a nexus was "made by the [appellant] and relayed to the physician, rather than a conclusion formed by [a medical professional]," and, therefore, the physician's mere notation of the appellant's theory did not render the appellant's statements competent or any more probative. R. at 11-12. This appeal followed.
The appellant argues that the Board erred in determining that the Secretary's duty to assist did not require VA to afford him a medical examination to address whether there is a nexus between his benign thyroid nodules and exposure to AO in Vietnam or contaminated water at Camp Lejeune. Appellant's Brief (Br.) at 5-11; Reply Br. at 1-7. In that regard, he contends that the Board failed to consider and discuss "all evidence and material of record and applicable provisions of law and regulation," 38 U.S.C. § 7104(a), including the 2014 Update; applied an incorrect legal standard; and provided an inadequate statement of reasons or bases. Appellant's Br. at 5-11; Reply Br. at 1-7.
He maintains that, had the Board considered the 2014 Update, it would have found the third McLendon element satisfied-an "indication" that his benign thyroid nodules "may be associated with . . . service"-and afforded him a medical examination. Appellant's Br. at 6-8 (citing McLendon, 20 Vet.App. at 81). The appellant argues that the 2014 Update was constructively before the Board because the Secretary knew of the report's content. Appellant's Br. at 8 (); see Appellant's Mar. 5, 2019, Notice of Supplemental Authorities, Exhibit 1 (Board of Veterans' Appeals, U.S. Dep't of Veterans Affairs, The Purplebook, Version 1.0.2 (Sept. 2018) (hereinafter The Purplebook)).
The Secretary counters that, even assuming that he or the Board knew that the 2014 Update existed and contains general information relevant to the thyroid, it cannot be reasonably expected to be before the Board here because the 2014 Update was "not specific" to the appellant's claim. Secretary's Br. at 14-15; see Oral Argument at 37:30-38:04, Euzebio v. Wilkie, U.S. Vet. App. No. 17-2879 (oral argument held May 30, 2019), https://www.youtube.com/watch?v=rVqkuWIP Pnw&feature=youtu.be. He asserts that the only potential relationship between the 2014 Update and the appellant's claim is that the report "generally discussed the relationship between hypothyroidism and herbicide exposure and ppellant[] . . . alleges that his [benign] thyroid [nodule] condition is related to his herbicide exposure." Id. at 14. However, he contends that this relationship is "too strained" for the 2014 Update to be reasonably before the Board in "every case involving thyroid conditions and herbicide exposure." Id. at 13-14 (citing Monzingo v. Shinseki, 26 Vet.App. 97, 103 (2012) (per curiam)).
In his reply brief, the appellant asserts that, because his claim was based in part on exposure to herbicides, 38 U.S.C. § 1116 "put the Board on notice" of the existence of all NAS reports and their applicability to his claim. Reply Br. at 5. He contends that all NAS reports are constructively before the Board "in cases in which herbicide exposure has been conceded" because, pursuant to section 1116, the reports are prepared for and commissioned by VA and it would not be unduly burdensome for the Board to consider the reports in these limited circumstances. Id. at 6. He further argues that the 2014 Update bears a direct relationship to his disability compensation claim for benign thyroid nodules because it demonstrates that "herbicides can affect the thyroid." Id. at 5; see id. at 7 (citing Monzingo, 26 Vet.App. at 103).
As noted above, this matter was referred to a panel to address whether the 2014 Update was constructively before the Board such that...
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