Zayas v. Wilkie

• Decision Date: 18 December 2018
• Docket Number: 17-2293
• Court: United States Court of Appeals For Veterans Claims
• Parties: Andy Zayas, Appellant, v. Robert L. Wilkie, Secretary of Veterans Affairs, Appellee.

Andy Zayas, Appellant, v. Robert L. Wilkie, Secretary of Veterans Affairs, Appellee.

No. 17-2293

United States Court of Appeals For Veterans Claims

December 18, 2018

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

Stacy A. Tromble, Esq. VA General Counsel

Before GREENBERG, Judge.

MEMORANDUM DECISION

GREENBERG, JUDGE.

U.S Army National Guard veteran Andy Zayas appeals, through counsel, a June 9, 2017, Board of Veterans' Appeals decision that denied him entitlement to service connection for rheumatoid arthritis (RA), and secondary service connection for anxiety, claimed as due to RA. Record (R.) 2-11. The appellant argues that the Board failed to provide an adequate statement of reasons or bases for denying of the RA claim because it (1) improperly rejected a private doctor's opinion, and (2) did not explain or consider whether the appellant had established service connection for RA through continuity of symptomatology under 38 C.F.R § 3.303(b). Appellant's Brief at 7-15. The appellant further argues that the anxiety claim must also be remanded because it is inextricably intertwined with the RA claim. Appellant's Brief at 7-15. For the following reasons, the Court will vacate the June 2017 Board decision, and remand the matters for further development and readjudication.

Justice Alito noted in Henderson v. Shinseki that our Court's scope of review in this appeal is "similar to that of an Article III court reviewing agency action under the Administrative Procedure Act, 5 U.S.C. §706." 562 U.S. 428, 432 n.2 (2011); see 38 U.S.C. § 7261. The creation of a special court solely for veterans and other specified relations such as their widows, is consistent with congressional intent as old as the Republic. See Hayburn's Case, 2 U.S. (2 Dall.) 409, 410 n., 1 L.Ed. 436 (1792) ("[T]he objects of this act are exceedingly benevolent, and do real honor to the humanity and justice of Congress."). "The Court may hear cases by judges sitting alone or in panels, as determined pursuant to procedures established by the Court." 38 U.S.C. § 7254. Accordingly, the statutory command of Congress that a single judge may issue a binding decision, pursuant to procedures established by the Court, is "unambiguous, unequivocal, and unlimited." Conroy v. Aniskojf, 507 U.S. 511, 514 (1993); see generally Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990).

From the beginning of the Republic statutory construction concerning congressional promises to veterans has been of great concern. "By the act concerning invalids, passed in June, 1794, vol. 3. p. 112, the secretary at war is ordered to place on the pension list, all persons whose names are contained in a report previously made by him to congress. If he should refuse to do so, would the wounded veteran be without remedy? Is it to be contended that where the law, in precise terms, directs the performance of an act, in which an individual is interested, the law is incapable of securing obedience to its mandate? Is it on account of the character of the person against whom the complaint is made? Is it to be contended that the heads of departments are not amenable to the laws of their country?" Marbury v. Madison, 5 U.S. 137, 164, 2 L.Ed. 60, 69 (1803).

The appellant served in the U.S. Army National Guard from March 1979 to February 1985 as a chemical operations specialist. R. at 76 (DD Form 214). The appellant served on periods of active duty for training (ACDUTRA) from March 1979 to July 1979, May 1980, June 1981, June 1982, May 1983, and May 1983 to June 1984. R. at 469, 471.

On May 16, 1983, while on ACDUTRA, the appellant underwent a quadrennial examination, where he reported suffering from "various episodes of pain on [right] knee," and described the pain as "cramps"; the appellant also remarked that the symptoms occurred specifically in "cold weather." R. at 466.

An undated note ^[1] from a private doctor states the appellant underwent a medical examination in January 1979, and that the appellant was "completely normal," except for being underweight; notes the May 1983 examination and the symptoms described at the time; reveals the appellant had been seeking treatment from this doctor since September 1992; and describes a May 1994 evaluation for swelling of the left toes, restriction on extension of his right toes, and swelling of the right ankle, which ultimately led to a referral to a rheumatologist. R. at 185-86.

The appellant was subsequently diagnosed with RA in October 1994. R. at 102, 7.^[2] Private doctor treatment notes show the appellant saw the rheumatologist on several occasions from October 1994 to February 1996. R. at 102, 190-92.

Another private doctor submitted a note in February 2010, and described the appellant's condition as "continuous strong knee pain that's been getting [worse]." R. at 379. In addition to knee pain, the private doctor described the appellant's "right ankle inflammation, pain, and limited range of movements" and constant "inflammation of the left toes." R. at 379. As a result of the appellant's RA, the private doctor noted that the appellant was "[no] longer able to tolerate strong physical activity," and described the appellant as experiencing "decrease[d] interest and pleasure in most activities," and presenting "frustration, anxiety, irritability . . . loss of memory and concentration problems . . . fatigue or low energy nearly every day . . . sleep problem and sensation of worthlessness." R. at 379. The private doctor noted that the appellant did not present any of these issues before active service, and reiterated the symptoms the appellant reported at the May 1983 examination. R. at 379. The private doctor concluded that "due to the time of presentation" of the appellant's symptoms, the RA "seems to [have] started while in service," and that "it is more probable than not that his right knee pain, right ankle, and left toes swelling are service connected." R. at 379.

The appellant filed for disability benefits in March 2010, was denied in September 2010 by the regional office, and timely appealed that rating decision. R. at 132-52. In April 2014, the Board remanded and reopened claims related to the appellant's arthritis and anxiety. R. at 132-52. As part of the remand, a June 2014 VA examination was ordered and administered. R. at 102-08.

The June 2014 examiner wrote that the appellant first experienced knee symptoms in basic training, and that he had undergone four to six therapy sessions. R. at 102. The examiner opined that the appellant's RA was less likely than not related to service. R. at 108. The Board remanded the examination report for an addendum in October 2014. R. at 65-70.

Per the Board's October 2014 remand, the VA examiner filed an addendum to the June 2014 examination report in December 2014. R. at 50-54. The examiner again opined that the appellant's RA was less likely than not related to his service. R. at 54. The examiner justified her conclusion by relying on a lack of an in-service RA diagnosis, and by discrediting the May 1983 examination based upon a complaint of "non[-Jspecific right knee pain with no specific diagnosis that is not related to a systemic disease like [RA]." R. at 54.

The Board issued a decision in June 9, 2017, denying the appellant entitlement to service connection for RA, and anxiety, claimed as due to RA. R. at 2-11. In reaching this determination, the Board adopted the December 2014 examiner's conclusions and rationale that the appellant's service treatment records did not evidence an RA diagnosis; that the May 1983 notation refers to nonspecific pain, without specific diagnosis, and the notation is not related to RA; and that the appellant was diagnosed with RA in October 1994. R. at 8. The Board "afforded little, if any, probative value" to the February 2010 private doctor's opinion because it "was not supported by any rationale, and did not consider the fact that the earliest diagnosis of [RA] was made in October 1994." R. at 9. Because the Board denied the RA claim, it summarily denied the anxiety claim for secondary service connection as well. R. at 10-11. This appeal ensued.

The Court concludes that the Board erred in failing to provide an adequate statement of reasons or bases for failure to discuss whether service connection was warranted because of a continuity of symptomatology under 38 C.F.R. § 3.303(b).^[3] See 38 U.S.C. § 7104(d)(1) ("Each decision of the Board shall include ... a written statement of the Board's findings and conclusions, and the reasons or bases for those findings and conclusions, on all material issues of fact and law presented in the record."). The record reflects continual complaints of joint pain since the initial complaint in May 1983. R. at 379. To the extent that the Board relied on the December 2014 addendum, which correctly states that the appellant was not diagnosed with RA until 1994, the record contains no evidence that the appellant was even tested for RA until 1994. R. at 185-86. Remand is required for the Board to provide an adequate statement of reasons or bases for whether the appellant has established service connection under 38 C.F.R. § 3.303(b).

The Court will also remand the anxiety claim as inextricably intertwined with the RA claim. See Harris v Derwinski, 1 Vet.App. 180, 183 (1991) (holding that where a decision on one issue may have a "significant impact" upon another, the two claims are inextricably intertwined), overruled on other grounds by Tyrues v. Shinseki, 23 Vet.App. 166 (2009) (en banc), affd, 631 F.3d 1380, 1383 (Fed. Cir. 2011), vacated and remanded for reconsideration, 132 S.Ct. 75 (2011), modified, 26 Vet.App. 31 (2012). The February 2010 private doctor note described the limitations the...