Miglets v. McDonough
| Decision Date | 16 November 2021 |
| Docket Number | 20-7709 |
| Court | Court of Appeals for Veteran Claims |
| Parties | James J. Miglets, Appellant, v. Denis McDonough, Secretary of Veterans Affairs, Appellee. |
Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent.
Christopher A. Porco, Esq. VA General Counsel (027)
Before MEREDITH, Judge.
The appellant, James J. Miglets, through counsel appeals a September 28, 2020, Board of Veterans' Appeals (Board) decision denying entitlement to disability compensation for vertigo and disabilities of the cervical spine, low back bilateral knees, bilateral ankles, and lungs. Record (R.) at 4-16. 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 disabilities of the cervical spine, bilateral ankles, and lungs; vacate the Board's decision denying entitlement to disability compensation for vertigo and disabilities of the lower back and bilateral knees; and remand the vacated matters for further proceedings consistent with this decision.
The appellant served on active duty in the U.S. Army from May 1961 to April 1964. R. at 4214. His February 1964 separation examination revealed no musculoskeletal, lung, or neurologic abnormalities. R. at 3499-500. In February 2009, he filed a claim for disability compensation for his right and left knees and lower back. R. at 3970-81. He asserted that his conditions were caused by parachuting out of airplanes during service, R. at 3981, and that he had been treated at the VA clinic in Youngstown, Ohio, in 1989 for his back and in 1999 for his knees, R. at 3975. The next month, he indicated that the parachute jumps during service "ha[d] no doubt caused much pain to [his] knees, ankles[, ] lower back and spine," and that he had lived with pain for years. R. at 3939. In June 2009, he stated that he had vertigo, which he believed was caused by spinal discs pressing on nerves. R. at 3812.
A VA regional office (RO), in October 2009, denied entitlement to disability compensation for the following: lumbosacral strain, left and right knee conditions, left and right ankle conditions, a cervical spine condition, a lung condition and breathing problems, and vertigo. R. at 3761-67. The appellant subsequently filed a Notice of Disagreement, R. at 3739, and perfected an appeal to the Board, R. at 3556; see R. at 3559-80.
In September 2019, the Board remanded the cervical spine, low back, knee, ankle, and lung claims to obtain a VA examination, and remanded the vertigo claim as inextricably intertwined with the lower back claim. R. at 2778-83. The Board also instructed the RO to obtain medical records from the Youngstown, Ohio, VA clinic from 1989 and 1999, as well as any outstanding VA medical records starting from December 2018. R. at 2780.
The appellant underwent VA examinations for his ankles, back, neck, and knees in February 2020. R. at 2550-77, 2582-91, 2596-609. The examiner noted that the appellant reported having done approximately 30 parachute jumps while in service, and that there was no documentation of injuries, complaints, or diagnoses of any ankle, back, neck, or knee conditions during service. R. at 2563, 2591, 2577, 2609. He noted that the appellant had a left calf strain in June 1963, but the examiner stated that it was "a soft tissue injury that is self-limited and would resolve without residuals in a matter of weeks to a couple of months." R. at 2609. He also noted that the appellant's separation examination report reflected normal lower extremity, spine, and neck examinations. R. at 2563, 2591, 2577, 2609. The appellant reported to the examiner that he began having occasional bilateral ankle pain approximately 20 years ago, occasional neck pain 10 years ago, and bilateral knee pain 20 years ago. R. at 2563, 2577, 2609. He also reported that he injured his lower back in November 2001 while working for a railroad and an MRI conducted that same month revealed disc herniations. R. at 2591. He indicated that he would only get occasional lower back pain prior to that injury, but he has had constant back pain since then and was diagnosed with lumbosacral spine arthritis in 2013. Id. The examiner noted that the appellant was also diagnosed with bilateral knee arthritis in May 2019, and at the VA examination the appellant was diagnosed with bilateral ankle arthritis, cervical spine arthritis, degenerative disc disease, and retrolistheses. R. at 2563, 2577, 2609.
Regarding the ankle and knee arthritis, the examiner opined that, because the appellant did not have any symptoms until approximately 36 years after service, no problems were documented during service, and the separation examination revealed no abnormalities, it was less likely than not that those conditions were incurred in or caused by service, including the parachute jumps. R. at 2563-64, 2609. Similarly, the examiner opined that, because the appellant did not have onset of neck pain or symptoms until approximately 45 years after service, no problems were documented during service, and the separation examination was normal, it was less likely than not that his neck conditions were incurred in or caused by the in-service parachute jumps; rather, they are more likely than not due to age progression and postservice occupational history. R. at 2577. As to the lower back, the examiner opined that the back conditions are more likely due to the acute low back injury in November 2001, rather than the parachute jumps during service. R. at 2591.
The same month, the RO notified the appellant that VA medical center records from 1989 through 1999 had been requested, but they could not be located. R. at 2522. The RO explained that "[a]ll efforts to obtain [them] have been exhausted, and . . . further attempts to obtain the records would be futile." Id. In response, the appellant stated that he was "very sorry to hear that[, ] as it makes it very difficult to associate [his] health issues with [his] military service." R. at 2449. He also indicated that he was unaware that he could report health issues at the time of his military discharge and "as a result [he] suffered with these problems." R. at 2449-50.
Medical records dated between January 2019 and July 2020 were subsequently associated with the claims file. R. at 60, 109-306. In August 2020, the appellant suggested that the 1989 and 1999 VA medical records were unavailable "probably because [he] was not in the VA system as [he] did not realize [he] could utilize their services" and no one had advised him "where [and] how to claim injuries that occurred while serving." R. at 28.
On September 28, 2020, the Board denied entitlement to disability compensation for vertigo and disabilities of the cervical spine, low back, bilateral knees, bilateral ankles, and lungs. R. at 4-16. This appeal followed.
The appellant argues that the Board failed to ensure substantial compliance with the September 2019 remand and the duty to assist because only one attempt had been made to obtain the 1989 and 1999 VA clinic records and the February 2020 notification letter did not reference any attempts to obtain records from December 2018. Appellant's Br. at 5-9. He also argues that the Board provided inadequate reasons or bases for its decision because it failed to properly consider his lay statements of continuity of symptomatology pursuant to 38 C.F.R. § 3.303(b), and that the February 2020 VA examiner's opinions are inadequate because the Board improperly limited the scope of the examiner's inquiry. Id. at 9-14.
For his part, the Secretary generally disputes these arguments and urges the Court to affirm the Board's decision. Secretary's Br. at 6-16. Regarding the Board's remand orders and the duty to assist, the Secretary avers that the February 2020 notification letter plausibly supports that the necessary efforts had been made to obtain the 1989 and 1999 medical records and that the records postdating December 2018 have been obtained. Id. at 10-11. Additionally, the Secretary asserts that the Board considered § 3.303(b) but found as a threshold matter pursuant to that regulation that arthritis of the knees, lumbar spine, neck, and ankles was not noted during service, and that the appellant did not challenge that finding. Id. at 14-15. In reply, the appellant adds that the February 2020 notification letter was vague and confusing and that the record contained evidence that arthritis was noted during service. Reply Br. at 2-5.
"[O]nce the Secretary undertakes the effort to provide an examination [or opinion, ] ... he must provide an adequate one." Barr v. Nicholson, 21 Vet.App. 303, 311 (2007). VA must develop claims and gather evidence in an unbiased manner. Austin v. Brown, 6 Vet.App. 547, 552 (1994) ("[B]asic fair play requires that evidence be procured by the agency in an impartial, unbiased, and neutral manner."). In seeking a medical opinion, VA "may not suggest an answer or limit the field of inquiry by the expert." Bielby v. Brown, 7 Vet.App. 260, 268 (1994); see Colayong v. West, 12 Vet.App. 524, 535 (1999). A medical examination or opinion is adequate "where it is based upon consideration of the veteran's prior medical history and examinations," Stefl v. Nicholson, 21 Vet.App. 120, 123 (2007) "describes the disability, if any, in sufficient detail so that the Board's 'evaluation of the claimed disability will be a fully informed one, '" id. (quoting Ardison v. Brown, 6...
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