Meyer v. McDonough
| Decision Date | 24 June 2021 |
| Docket Number | 20-2118 |
| Parties | Jeffery A. Meyer, Appellant, v. Denis McDonough, Secretary of Veterans Affairs, Appellee. |
| Court | United States Court of Appeals For Veterans Claims |
Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent.
Jeffery A. Meyer General Counsel.
Before MEREDITH, Judge.
The self-represented appellant, Jeffery A. Meyer, appeals a February 4, 2020, Board of Veterans' Appeals (Board) decision that dismissed without prejudice to refiling motions for revision on the basis of clear and unmistakable error (CUE) of January 2004 and January 2005 rating decisions that denied a disability rating in excess of 10% for a right hand disability, and an April 2013 rating decision regarding application of 38 C.F.R. § 4.26 (bilateral factor). Record (R.) at 2-17. The Board also denied entitlement to an effective date prior to March 28, 2011, for the award of disability compensation for a right elbow sprain and denied disability compensation for a left elbow disorder, a thyroid condition, and right foot Achilles tendonitis. R. at 2-17.
Additionally the Board remanded the matters of entitlement to benefits for hearing loss, chest pain, and shortness of breath. 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) ().
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 Board's decision denying entitlement to disability compensation for a left elbow disorder and right foot Achilles tendonitis; vacate the Board's decision denying entitlement to disability compensation for a thyroid disability, denying entitlement to an effective date prior to March 28, 2011, for the award of disability compensation for a right elbow sprain, and dismissing motions to revise January 2004 and January 2005 rating decisions on the basis of CUE, and remand the vacated matters for further proceedings consistent with this decision; and vacate the Board's decision dismissing a motion to revise the April 2013 rating decision and direct the Board to remand the matter of misapplication of the bilateral factor to the regional office (RO) to issue a Statement of the Case (SOC) in response to the appellant's June 2013 Notice of Disagreement (NOD), which placed the issue in appellate status, see Manlincon v. West, 12 Vet.App. 238, 240-41 (1999).
The appellant served on active duty in the U.S. Army from August 1984 to May 1989. R. at 208. In November 1989, a VA RO awarded entitlement to disability compensation for right hand residuals of an in-service grenade simulator explosion and assigned a noncompensable disability rating, effective May 3, 1989. R. at 1357, 1363. The RO subsequently increased the disability rating to 10%, effective January 14, 1993. R. at 1189-90.
In October 2003, the appellant requested an increased rating for the right hand disability. R. at 1171-72. The RO, in January 2004, denied entitlement to an increased rating, noting that the appellant had failed to report for a scheduled VA examination and that the evidence of record was inadequate to grant an increased rating. R. at 1153-56. The RO notified the appellant that it would "reconsider" his claim when he informed the RO that he was able to report for an examination. R. at 1155. The appellant in August 2004 sent a letter to the RO in which he asserted that he had missed the examination because he had moved and was unaware of the appointment, that he had been treated and prescribed medication for his hand condition by two private doctors over the prior 2 years, that those private doctors could provide evidence that his condition had worsened, and that he would "cooperate fully to get [his] claim back underway." R. at 1147-48. VA obtained an examination in October 2004, R. at 1111-14, and the RO denied entitlement to a disability rating in excess of 10% in January 2005, R. at 1085-88.
The appellant, in March 2011, submitted correspondence alleging CUE in the denial of an increased rating for his right hand disability and requesting disability compensation for, among other things, an elbow injury, a gastrointestinal disorder, and Achilles tendonitis. R. at 1044-54. Specifically, regarding CUE, he argued that the January 2004 and January 2005 rating decisions erroneously assigned a 10% disability rating under Diagnostic Code (DC) 8510 rather than DC 8515 and that medical evidence since 1993 more closely reflects a 70% disability rating. R. at 1050-51, 1053. The same month, the appellant's spouse stated that the appellant was initially given 800 milligrams of ibuprofen to treat his right hand pain, which irritated his stomach "almost to the point of having an ulcer," and he was currently taking omeprazole for stomach irritation. R. at 1043.
In July 2012, the appellant underwent VA examinations for his claimed conditions. Regarding the elbow claims, a VA examiner diagnosed a right elbow sprain related to the service-connected right hand condition and determined that there was no pathology to diagnose a left elbow condition. R. at 499, 504, 534-37; see R. at 499-505. As to the right foot, a VA examiner diagnosed the following right foot conditions: hammer toes, hallux valgus, pes planus, plantar fasciitis, and calcaneal spur. R. at 513; see R. at 513-17. The examiner opined that, as to the specifically claimed condition of right foot Achilles tendonitis, there was no pathology to render a diagnosis. R. at 517.
VA also obtained a thyroid examination; the VA examiner noted that the appellant was diagnosed with hypothyroidism in 2009 and opined that the condition was not related to the nonsteroidal anti-inflammatory drugs (NSAIDs) the appellant took for his right hand condition. R. at 466-72, 932-33. The appellant reported to the examiner that he had been "taking [g]abapentin[1] since 2002, which affected the thyroid and a VA doctor noticed the thyroid levels dropping," and he was subsequently treated with levothyroxine.[2] R. at 466.
In April 2013, the RO awarded entitlement to disability compensation for a right elbow sprain (effective March 28, 2011), "GERD claimed as gastrointestinal disorder and stomach condition secondary to medications for service[-]connected right hand," and "right foot injuries diagnosed as pes planus, plantar fasciitis, hallux valgus and hammer toe right foot, claimed as right foot bone irregularity of the metatarsal and [A]chilles tendonitis secondary to non-service[-]connected bilateral calcaneous heel." R. at 242-43; see R. at 242-56. The RO also awarded disability compensation for a right shoulder sprain, tinnitus, bilateral foot cold exposure, bilateral ankle conditions, left foot injuries, and right ear otitis externa, and increased the disability rating for the right hand condition to 30%, effective March 28, 2011. R. at 242-56. The RO determined that the appellant's total combined disability evaluation was 80% from March 28, 2011, with application of the bilateral factor. R. at 256. Additionally, the RO denied disability compensation for a left elbow injury, "thyroid condition secondary to [VA] medications[ (]claimed as stomach condition secondary to medications for service[-]connected right hand[)]," and right foot Achilles tendonitis. R. at 243-44. The RO also determined that there was no CUE in the assignment of a 10% disability rating for the right hand condition. R. at 244.
The appellant, in June 2013, filed a statement which he titled "Appellant [CUE] and [NOD] Disagreement with RO April 25, 2013[, ] Rating Decision [and] May 3, 2013[, ] Decision Letter." R. at 213; see R. at 213-24. In this regard, he argued that the January 2004 and January 2005 rating decisions incorrectly denied entitlement to disability compensation for certain conditions and evaluated his right hand condition under the wrong diagnostic code. R. at 213-14, 218-20. He also asserted that the RO erred in the April 2013 rating decision as to the effective date for his right elbow condition because the RO had conceded that it received his August 2004 correspondence, that the RO failed to properly apply the bilateral factor in calculating his overall disability rating, and that his service medical records reflect treatment for the claimed conditions. R. at 213-16, 218, 220-23. The RO subsequently issued an SOC, R. at 73-168, and the appellant perfected an appeal to the Board, R. at 45-62.
On February 4, 2020, the Board dismissed allegations of CUE in the January 2004, January 2005, and April 2013 rating decisions; denied entitlement to an effective date prior to March 28, 2011, for the award of disability compensation for a right elbow sprain; and denied entitlement to disability compensation for a left elbow disorder, a thyroid condition, and right foot Achilles tendonitis. R. at 2-17. This appeal followed.
Establishing that a disability is service connected for purposes of entitlement to VA disability compensation generally requires medical or, in certain circumstances, lay evidence of (1) a current disability, (2) incurrence or aggravation of a disease or injury in service, and (3) a nexus between the claimed in-service injury or disease and the current disability. See 38 U.S.C. § 1110; Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); see also Davidson v. Shinseki, ...
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