Malone v. McDonough

• Decision Date: 08 November 2022
• Docket Number: 21-3782
• Parties: LeMarcus A. Malone, Appellant, v. Denis McDonough, Secretary of Veterans Affairs, Appellee
• Court: United States Court of Appeals For Veterans Claims

LeMarcus A. Malone, Appellant,
v.
Denis McDonough, Secretary of Veterans Affairs, Appellee

No. 21-3782

United States Court of Appeals For Veterans Claims

November 8, 2022

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

Peter Cianchetta, Esq. VA General Counsel

Before SCHOELEN, Senior Judge ^[1]

MEMORANDUM DECISION

SCHOELEN, SENIOR JUDGE

The appellant, LeMarcus Malone, through counsel, appeals an April 14, 2021, Board of Veterans' Appeals (Board) decision (1) denying service connection, including secondary to service-connected respiratory disorder, for gastroesophageal reflux disease (GERD), sinusitis, rhinitis, and a reproductive organ disorder, including voiding dysfunction, penis deformity, and erectile dysfunction; and (2) granting an increased disability rating for a respiratory disorder no earlier than October 10, 2013.^[2] Record of Proceedings (R.) at 5-22. This appeal is

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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 reasons that follow, the Court will affirm those parts of April 14, 2021, Board decision denying service connection for sinusitis and rhinitis. The Court will vacate those parts of the Board decision denying service connection, including secondary to service-connected respiratory disorder, for GERD and a reproductive organ disorder and granting an increased disability rating for a respiratory disorder no earlier than October 10, 2013, and the Court will remand the matters for further adjudication.

I. BACKGROUND

The appellant served in the U.S. Navy from October 1975 to October 1979. See R. at 8. In August 2006, he filed a disability compensation claim for chronic bronchitis and asthma. R. at 4114-31. In an August 2007 rating decision, the regional office (RO) granted service connection for chronic bronchitis and asthma with a 30% disability rating and an August 28, 2006, effective date. R. at 3981-83. In a July 2011 rating decision, the RO granted an increased, to 60%, disability rating. R. at 3715-26.

On July 24, 2013, the appellant dated a VA statement in support of claim (SSC Form), requesting an increased rating for chronic bronchitis and asthma and service connection for allergic rhinitis/allergic conjunctivitis, chronic sinusitis, male reproductive organ conditions, GERD, sleep apnea, eye conditions, chronic headaches, and chronic fatigue. R. at 3605-10. After further development, the RO denied the appellant's service connection and increased-rating claims. R. at 2568-79. The appellant filed a Notice of Disagreement. R. at 2187-226. VA issued a Statement of the Case (SOC), R. at 2095-130, and the appellant perfected his appeal to the Board, R. at 205090.

In November 2019, the appellant testified at a Board hearing. R. at 1901-25. In February 2020, the Board issued a decision remanding the relevant claims. R. at 1882-1900. In April 2020, a VA examiner provided medical opinions. R. at 368-80. In a December 2020 Supplemental SOC (SSOC), the RO increased the asthma and chronic bronchitis rating to 100% effective April 7, 2020. R. at 104-22. In January 2021, the appellant's current counsel submitted a response to the

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SSOC. R. at 30-34. In April 2021, the Board issued the decision on appeal. R. at 4-28. This appeal followed.

II. ANALYSIS

A. Preliminary Matters

The Secretary contends that the appellant's opening brief (1) inappropriately discloses matters discussed during the pre-briefing conference, in violation of Rule 33(d) of the Court's Rules of Practice and Procedure (Rules); (2) "largely fail[s] to offer citations to the record throughout the body of his brief in contravention of Rule 28(a)(5)"; (3) references Board findings "without clear attribution of quotation marks"; (4) "produce[s] several long, and single-spaced footnotes with a font smaller than the body of the brief"; and (5) uses footnotes to develop and support the arguments made in his brief and to raise new arguments. Secretary's Brief (Br.) at 8-9. The Secretary requests that the Court strike references to discussions at the Rule 33 conference and deem any argument raised in the footnotes as not preserved. Id. The appellant provides no response to these contentions in his reply brief. See Reply Br. at 1-15.

The case is now before the Court for disposition on the merits. The Court notes that the appellant's arguments are difficult to discern, in part because they are distributed throughout the text of his opening brief and among its 48, often-lengthy footnotes. His reply brief similarly includes numerous footnotes with substantive content. See generally Reply Br. at 1-15. Given these circumstances, to the extent that the appellant in the footnotes in his briefs raises substantive arguments, the Court will not address them. See SmithKline Beecham Corp. v. Apotex Corp., 439 F.3d 1312, 1320 (Fed. Cir. 2006) ("[A]rguments raised in footnotes are not preserved."). Moreover, the Court, in reaching this disposition, has not taken into account the appellant's statements regarding discussions at the Rule 33 conference. "Statements made during a conference, including written memoranda submitted for the conference, may not be disclosed to a Judge of the Court unless the parties agree in writing to such disclosure." U.S. VET.APP. R. 33(d) (emphasis added). The Court also has serious concerns regarding the appellant's counsel's manipulation of style and formatting in his opening and reply briefs. Rule 32 explicitly lays out the Court's brief formatting rules. The Court expects practitioners to file timely and compliant documents; and those who fail to do so fall short of the expected performance standard for practitioners before this Court. See

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U.S. VET. APP. R. ADM. &PRAC. 4(b)(2) ("professional misconduct" may be defined as "failure to comply with any rule of the Court").

B. Service Connection for Sinusitis

In the decision on appeal, the Board denied service connection for sinusitis because the preponderance of the evidence was against finding that the appellant's sinusitis was either caused by service or caused or aggravated by his service-connected respiratory disorder. R. at 17-18. The Board found that the March and September 2014 VA opinions were inadequate and assigned low probative value to the evidence. R. at 17. The Board explained that, because the 2014 VA opinions were conclusory, they did not provide analysis sufficient for the Board to weigh and consider them. Id. The Board did weigh as "highly probative" an April 2020 VA addendum opinion concluding that the appellant's sinusitis was neither caused by service nor caused or aggravated by his service-connected respiratory disorder. Id.

Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a link between the claimed in-service disease or injury and the present disability. Romanowsky v. Shinseki, 26 Vet.App. 289, 293 (2013). Secondary service connection may be awarded when a disability "is proximately due to or the result of a service-connected disease or injury," 38 C.F.R. § 3.310(a) (2022), including when a service-connected disease or injury aggravates the claimed condition, see Libertine v. Brown, 9 Vet.App. 521, 522 (1996); Allen v. Brown, 7 Vet.App. 439, 448 (1995) (en banc).

It is the Board's responsibility, as factfinder, to determine the credibility and weight to be given to the evidence. See Washington v. Nicholson, 19 Vet.App. 362, 369 (2005); Owens v. Brown, 7 Vet.App. 429, 433 (1995) (holding that the Board is responsible for assessing the credibility and weight of evidence and that the Court may overturn the Board's decision only if it is clearly erroneous). The Board must analyze the credibility and probative value of the material evidence, account for the evidence it finds persuasive or unpersuasive, and provide its reasons for rejecting any material evidence favorable to the claimant. Caluza v. Brown, 7 Vet.App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). As with any material issue of fact or law, the Board must provide a statement of the reasons or bases for its determination "adequate to enable a claimant to understand the precise basis for the Board's decision, as well as to facilitate

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review in this Court." Allday v. Brown, 7 Vet.App. 517, 527 (1995); see 38 U.S.C. § 7104(d)(1); Gilbert v. Derwinski, 1 Vet.App. 49, 56-57 (1990).

1. Separate Rating

The appellant first argues that, in accordance with Lyles v. Shulkin, 29 Vet.App. 107, 113 (2017), his sinusitis symptoms should be rated as separate manifestations of his respiratory disorder disability. Appellant's Br. at 5-7. The Secretary contends that the assignment of a disability rating is a separate issue from service connection, that asthma and sinusitis are two distinct disabilities, and that the appellant cites no evidence that show his sinusitis symptoms are manifestations of his respiratory disability. Secretary's Br. at 15-16.

VA may not compensate a disability unless it was caused or aggravated by either service or a service-connected condition. See Terry v. Principi, 340 F.3d 1378, 1382 (Fed. Cir. 2003) (discussing 38 U.S.C. §§ 1110 and 1131); Allen, 7 Vet.App. at 446. And VA's compensation-level determination, or rating, occurs subsequent to its service-connection determination. See Grantham v. Brown, 114 F.3d 1156, 1158 (Fed. Cir. 1997) (noting that downstream elements, such as rating and effective dates are not part of appeal of denial of service connection). Once VA grants service connection for a disability, it must select a diagnostic code from the rating schedule "for the purpose of showing the basis of the...