Angel Vazquez-Flores v. Eric K. Shinseki

24 Vet. App. 94, 2010 U.S. Vet. App. LEXIS 1937, 2010 WL 4146124
CourtUnited States Court of Appeals for Veterans Claims
DecidedOctober 22, 2010
Docket05-0355
StatusPublished
Cited by24 cases

This text of 24 Vet. App. 94 (Angel Vazquez-Flores v. Eric K. Shinseki) is published on Counsel Stack Legal Research, covering United States Court of Appeals for Veterans Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Angel Vazquez-Flores v. Eric K. Shinseki, 24 Vet. App. 94, 2010 U.S. Vet. App. LEXIS 1937, 2010 WL 4146124 (Cal. 2010).

Opinions

KASOLD, Chief Judge:

On January 30, 2008, the Court, in a panel opinion, set aside and remanded a February 1, 2005, decision of the Board of Veterans’ Appeals (Board) that denied a disability rating greater than 30% for ne-phrolithiasis,2 and denied disability compensation for neuropsychiatric disorder because it was not service connected on a direct basis or as secondary to a service-connected renal disability. See Vazquez-Flores v. Peake, 22 Vet.App. 37 (2008) (Vazquez-Flores I). Subsequently, in Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed.Cir.2009) (Vazquez-Flores II), the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) vacated and re[96]*96manded that part of the Court’s January-30, 2008, decision that set aside and remanded Mr. Vazquez-Flores’s increased-rating claim for nephrolithiasis.3 Although this matter was returned for single-judge consideration and was subsequently stayed on May 19, 2010, for the resolution of Simmons v. Shinseki, 24 Vet.App. 87 (set aside and remanded for further proceedings September 28, 2010) (possibly addressing the issue of prejudice), upon further review, the matter is referred again for panel consideration and the stay is hereby lifted. For the reasons set forth below, that part of the Board’s February 1, 2005, decision denying an increased sehe-dular rating for nephrolithiasis will be affirmed. That part of the Board’s decision that denied an extraschedular rating and failed to address entitlement to a total disability rating based upon individual un-employability (TDIU) will be set aside and the matters remanded for further adjudication.

I. BACKGROUND

A. Facts

Mr. Vazquez-Flores served on active duty in the U.S. Army from July 1963 to July 1965 and from January 1966 to January 1969. Record (R.) at 26. He was granted service connection for nephroli-thiasis, and in April 1976 his disability rating was increased to 30%. R. at 242, 246. Additional evidentiary development followed, during which Mr. Vazquez-Flores submitted an April 1979 private mental evaluation report from Dr. Raul Correa Grau that reflects a diagnosis of moderately severe depressive reaction and April 1979 hospitalization records that reflect a diagnosis of schizophrenia. R. at 250-52, 274-75. After additional adjudication wherein a VA regional office (RO) denied his claim for service connection for a psychiatric disorder, Mr. Vazquez-Flores submitted a June 1982 private psychiatric evaluation report that opined that he had undifferentiated schizophrenia and that his condition “becomes more prominent when ph[y]sical symptomatology flares up.” R. at 280. He appealed the RO’s decision to the Board, and in September 1984 the Board, inter alia, denied service connection for an acquired psychiatric disorder on the basis that it was not incurred in or aggravated by service. R. at 296-305.

In August 1994, Mr. Vazquez-Flores sought to reopen his previously denied claim. R. at 358. He also claimed that his “service-connected kidney condition ha[d] increased in severity.” Id. During the development of these claims, Mr. Vazquez-Flores submitted a July 1994 VA medical report that his nephrolithiasis caused depression. R. at 362. He also submitted a September 1995 letter from his private psychiatrist, Dr. Jose Juarbe, who opined that Mr. Vazquez-Flores’s “schizophrenic condition started back in 1964,” and that he considered the schizophrenia to be service connected. R. at 390. In February 1998, Dr. Juarbe testified before the RO that Mr. Vazquez-Flores had major depression that “without any doubt is related to his physical condition.” R. at 455. In August 2000, the RO issued to Mr. Vazquez-Flores a Supplemental Statement of the Case (SSOC) containing the diagnostic code (DC) criteria for nephrolithia-sis, hydronephrosis, and renal dysfunction. R. at 505-14. A November 2002 VA mental disorders examination report reflected that Mr. Vazquez-Flores had a diagnosis of recurrent, moderate major depressive [97]*97disorder that was not related to service and was not precipitated or aggravated by Mr. Vazquez-Flores’s service-connected renal disability. The VA examiner stated that Mr. Vazquez-Flores “does not report any subjective complaint, any type of relationship between his renal symptoms and his psychiatric symptomatology,” and that his clinical history demonstrated no type of relationship between these conditions. R. at 585.

B. Vazquez-Flores I

1. Neuropsychiatric Disorder

With regard to the denial of disability compensation for Mr. Vazquez-Flores’s neuropsychiatric disorder, the Court in Vazquez-Flores I found that the Board relied heavily on the November 2002 VA examiner’s statements that Mr. Vazquez-Flores “does not report any subjective complaint, any type of relationship between his renal symptoms and his psychiatric symptomatology,” and that his clinical history demonstrated no type of relationship between these conditions (R. at 585). The Court concluded that this statement may be read broadly to say that there is no medical evidence and no complaints of record from Mr. Vazquez-Flores regarding a relationship between his nephrolithiasis and his psychological condition. Moreover, the Court noted that at least three reports in the record before the Board appeared to contradict this statement. Vazquez-Flores I, 22 Vet.App. at 49-50 (noting R. at 280 (June 1982 psychiatric evaluation report stating that Mr. Vazquez-Flores’s psychiatric condition “becomes more prominent when ph[y]sieal symptomatology flares up”), 362 (July 1994 VA medical record reflecting that Mr. Vazquez-Flores’s complaints of depression were the result of his ne-phrolithiasis), 455 (February 1998 testimony of Dr. Juarbe that Mr. Vazquez-Flores’s major depression “without any doubt is related to his physical condition”)). The Court further noted that it also is possible that the November 2002 examination report could be read more narrowly to mean that, during that particular examination, Mr. Vazquez-Flores provided no history or complaint to the examiner.

The Court identified two multifaceted errors in the Board’s statement regarding its reliance on the November 2002 examination report. First, the Board erred when it failed to recognize and address the fact that the November 2002 examination report fairly could be read broadly or narrowly, with differing meanings, and when it failed to either return the examination report to the examiner for clarification or explain why such action was not necessary. Id.; see also Daves v. Nicholson, 21 Vet.App. 46, 51 (2007) (noting that when a medical examination report was susceptible to multiple fair but inconsistent meanings, the Board erred in failing to seek clarification); 38 C.F.R. § 4.2 (2007). Second, to the extent the Board relied on the broad interpretation of the November 2002 examination report, it erred in not explaining the discrepancy in the apparently contradictory information in the record and not explaining why it gave greater weight to the November 2002 examination report than it gave to the contradictory information. Vazquez-Flores I, 22 Vet.App. at 50.

2. Nephrolithiasis

Concerning Mr. Vazquez-Flores’s increased-compensation claim for nephroli-thiasis, we held in

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Bluebook (online)
24 Vet. App. 94, 2010 U.S. Vet. App. LEXIS 1937, 2010 WL 4146124, Counsel Stack Legal Research, https://law.counselstack.com/opinion/angel-vazquez-flores-v-eric-k-shinseki-cavc-2010.