Spina Bifida and the Record Before the Agency

Spina Bifida and the Record Before the Agency

The case of L E. Johnson v. Eric K. Shinseki, Opinion Number 07-0987, decided January 21, 2010, affirmed a denial for service connection for a back injury.

There were two major issues. The first revolved around the use of evidence of back pain during an ineligible period to show a chronic disease or continuity of symptomatology. The second involved whether a medical examination was inadequate in part because it was not signed.

Regarding the first, the veteran had served two periods. During the second, he was discharged under less than honorable conditions. Therefore, a prior decision had found he was entitled to any conditions arising from the first period of service but ineligible for any conditions arising during the second.

The veteran sought to use evidence of a back condition during his second period of service and later post-service evidence to show a continuity of symptoms or a chronic disease that would establish the disability (back condition) was incurred during his first period of service. The VA agreed that “evidence from the ineligible period of service of continuity of symptoms can suffice to establish incurrence of a disability during the prior period of eligible service.” However, the VA disagreed with the argument that “evidence of a chronic disease during a period of ineligible service may be considered by the Board to establish that the chronic disease was initially occurred during a prior, eligible period of service”.

The Court side-stepped answering this question by reaching into the merits of the back condition. Specifically, the BVA found the back pain was spina bifida. Spina bifida is a congenital defect or developmental disorder for which benefits may not be awarded according to the Courts earlier decision in Quirin v. Shinseki, 22 Vet. App. 390, 393 (2009). Since the Court determined the back pain was related to spina bifida and benefits could not be granted for such a congenital or developmental defect, it did not have to decide the limits of using evidence of chronicity from a a disqualified period.

Regarding the medical examination, the veteran had argued that the examiner did not specifically opine whether the developmental back pain disability was aggravated by eligible service. The Court essentially determined it did not matter because “spina bifida cannot be aggravated because it is a congenital defect.” Additionally, the Court also essentially found the physician had said enough, i.e., the veteran’s “current back disability was not related to his eligible service.”

The veteran also argued the examination should not have been treated as evidence because it was not signed by the physician. Here, the Court said the veteran did not submit enough clear evidence to defeat the presumption of regularity because he did not show that the report was not transmitted via an accepted VA internal computer system.

A concurring opinion by Judge Hagel pointed out that it is absurd to expect the veteran to show the report was not transmitted via the VA internal computer system because the only one with access to the system was the VA. To Judge Hagel the presumption of regularity was defeated but then rescued by VA filings of evidence that the report was properly transmitted via the internal computer system. He got this VA generated evidence into the Record Before the Agency by taking a liberal reading of what constituted the record and finding the “VA-generated documents were constructively ‘before the Secretary and Board’” because “the transmittal documents introduced by the Secretary here were clearly generated by the VA during the pendency of Mr. Johnson’s claim”.

This case makes clear that benefits will not be granted for congenital or development disorders. Judge Hagel’s occurrence might also lay a framework regarding how to get information that isn’t part of the Record Before the Agency to the Court.

Decided by Kasold, Hagel and Schoelen, Judges.

Attending Your C&P Examination

Attending Your C&P Examination

The case of Arnold C. Kyhn v. Eric K. Shinseki, Opinion Number 07-2349, decided January 15, 2010, affirmed a denial for service connection for tinnitus in large part because the veteran did not attend his Compensation and Pension examination.

While their were multiple related issues, the case largely centered on the veteran’s failure to attend the scheduled Compensation and Pension examination. This failure served as the primary justification for the Board to deny his request for service connection.

The veteran appealed saying that he had not received notice. The Court grappled with the presumption of regularity. This presumption says the file and any required notices are presumed to be handled appropriately and sent unless there is a showing by the veteran of clear evidence to the contrary.

As clear evidence to defeat the presumption of regularity, the veteran argued their was no written record of the letter sent to him by the VA notifying him of the examination, that the VA had not competed an Appeal Certification Worksheet, and that the VA adjudicated his claim wrongly believing he had not submitted any evidence in support of his claim when in fact he had submitted evidence.

The Court first addressed the lack of a letter in the file and accepted the VA’s explanation that the file is electronically generated by a computer system and a hard copy is not generally placed in the claims file. The Court determined that because the VA does not as a regular practice include the notice in the claims file, the absence of it is not clear evidence that it was not sent. As an aside in the decision, the Court noted that it found persuasive the fact that the Supplemental Statement of the Case raised the fact the veteran did not attend the examination but that he did not at that point raise the lack of notice argument.

Regarding the Appeal Certification Worksheet, the Court found one did exist for the case when the case was initially appealed to the Board. The case had been appealed to and remanded by the Board and the veteran essentially argued a second Appeal Certification Worksheet should have been created and kept with the file when the veteran appealed to the Board for a second time. This is essentially a very technical argument that was rejected on a very technical ground, that the M21-1MR did not require a second Appeal Certification Worksheet but specifically contemplated that any further decision by the Regional Office would be entered into a “Remarks” section of the initial Appeal Certification Worksheet.

Finally, regarding evidence in support of his claim, the Court distinguished between his hearing loss and tinnitus claim. The evidence submitted was read to apply to the hearing loss and not the tinnitus claim, thus meaning that the Board was not incorrect when it stated their was no evidence from the veteran regarding the tinnitus claim.

In a final argument, the veteran argued that the tinnitus was secondary to or aggravated by the existing service-connected hearing loss. The Court rejected this argument without reaching the merits because they determined the veteran was raising this issue for the first time in his brief to the Court and had not raised it to the Board. This seems like a shift from what could have been a decision to remand this issue alone for the Board’s consideration and suggests that as an appellate court, the Court might be beginning to shift more responsibility to develop the case onto the veteran.

From this case, the most practical lesson is that attending Compensation and Pension examinations is very important and any notice problem should be raised immediately. Additionally, on a larger scale, the Court’s treatment of the aggravation issue affirms that a veteran should develop his case as fully as possible before the Board as the Court might not use the remand to allow for such development.

Decided by Chief Judge Greene, and Moorman and Schoelen, Judges.