Angel Vazquez -Flores v. James B. Peake

22 Vet. App. 37, 2008 U.S. Vet. App. LEXIS 24, 2008 WL 239951
CourtUnited States Court of Appeals for Veterans Claims
DecidedJanuary 30, 2008
Docket05-0355
StatusPublished
Cited by44 cases

This text of 22 Vet. App. 37 (Angel Vazquez -Flores v. James B. Peake) 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. James B. Peake, 22 Vet. App. 37, 2008 U.S. Vet. App. LEXIS 24, 2008 WL 239951 (Cal. 2008).

Opinions

KASOLD, Judge:

Veteran Angel Vazquez-Flores appeals through counsel a February 1, 2005, decision of the Board of Veterans’ Appeals (Board) that denied a disability rating greater than 30% for nephrolithiasis (kidney stones), and denied service connection for a neuropsychiatric disorder on a direct basis and as secondary to a service-connected renal disability. For the reasons set forth below, the Board’s decision will be set aside and these matters remanded for readjudication.

I. BACKGROUND

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 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] [41]*41increased 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’ “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 disorder that was not related to service and was not precipitated or aggravated by Mr. Vazquez-Flores’ 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.

In the decision on appeal, the Board found that letters dated April 2001 from the RO and December 2003 from the Appeals Management Center (AMC) satisfied the Secretary’s 38 U.S.C. § 5103(a) duty to notify, and that a February 2004 SSOC satisfied the additional notice requirement in 38 C.F.R. § 3.159(b) (2007). R. at 18-20. The Board denied service connection for a neuropsychiatric disorder on both a direct basis and as secondary to a service-connected renal disability, and also denied an increased disability rating greater than 30% for nephrolithiasis.

Mr. Vazquez-Flores argues on appeal that the Board erred in its determination that adequate section 5103(a) notice on how to substantiate his claim had been provided. Specifically, he argues that the letters relied upon by the Board failed to explain the criteria for a disability rating greater than 30% for nephrolithiasis, including the possibility of rating the condition under an alternative DC. He further argues that notice that the evidence must show that his condition has “gotten worse” — without explaining what “worse” means in the context of the claim — is also insufficient. Mr. Vazquez-Flores also maintains that he should have been given notice on how to request an extrasehedular rating.

II. DISCUSSION

A. 38 U.S.C. § 5103(a) Notice

1. Required Notice in General

Upon receipt of a complete or substantially complete application for benefits, the Secretary is required to inform a claimant of any information and evidence not of record (1) that is necessary to substantiate the claim, (2) that the Secretary will seek to obtain, if any, and (3) that the claimant is expected to provide, if any. See 38 U.S.C. § 5103(a); Quartuccio v. Principi, 16 Vet.App. 183, 187 (2002) (failure to provide adequate section 5103(a) notice is remandable error); see also Paralyzed Veterans of Am. v. Sec’y of Veterans Affairs, 345 F.3d 1334, 1345-46 (Fed.Cir.2003) (section 5103(a) “applfies] only when a claim cannot be granted in the absence of additional necessary information described in the notice”). Regulations also provide that the Secretary is required to “request that the claimant provide any [42]*42evidence in the claimant’s possession that pertains to the claim.” 38 C.F.R. § 3.159(b)(1) (2007); see Pelegrini v. Principi, 18 Vet.App. 112, 121 (2004).

The purpose of section 5103(a) and § 3.159(b) is to require the Secretary to “provide affirmative notification to the claimant prior to the initial decision in the case as to the evidence that is needed and who shall be responsible for providing it.” Mayfield v. Nicholson, 444 F.3d 1328, 1333 (Fed.Cir.2006) (Mayfield II). However, section 5103(a) does not require a “predecisional adjudication” of the evidence because “the duty to notify deals with evidence gathering, not the analysis of already gathered evidence.” Locklear v. Nicholson, 20 Vet.App. 410, 415-16 (2006). Indeed, section 5103(a) notice “may be generic in the sense that it need not identify evidence specific to the individual claimant’s case (though it necessarily must be tailored to the specific nature of the veteran’s claim).” Wilson v. Mansfield, 506 F.3d 1055, 1062 (Fed.Cir.2007). Further, although adequate section 5103(a) notice need not be provided in a single notice letter, when multiple documents are used to provide adequate notice, they must relate to notice and “contain the same content or serve the same purpose as [section] 5103(a) notification.” Sanders v. Nicholson, 487 F.3d 881, 886 (Fed.Cir.2007); see also Mayfield II,

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Bluebook (online)
22 Vet. App. 37, 2008 U.S. Vet. App. LEXIS 24, 2008 WL 239951, Counsel Stack Legal Research, https://law.counselstack.com/opinion/angel-vazquez-flores-v-james-b-peake-cavc-2008.