Dwayne A. Moore v. R. James Nicholson

21 Vet. App. 211, 2007 U.S. Vet. App. LEXIS 697, 2007 WL 1412293
CourtUnited States Court of Appeals for Veterans Claims
DecidedMay 15, 2007
Docket04-2386
StatusPublished
Cited by53 cases

This text of 21 Vet. App. 211 (Dwayne A. Moore v. R. James Nicholson) 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
Dwayne A. Moore v. R. James Nicholson, 21 Vet. App. 211, 2007 U.S. Vet. App. LEXIS 697, 2007 WL 1412293 (Cal. 2007).

Opinions

LANCE, Judge:

The appellant, Dwayne A. Moore, appeals through counsel an August 16, 2004, [213]*213decision of the Board of Veterans’ Appeals (Board) that denied a disability rating for atypical affective disorder greater than 10% from September 16, 1992, to January 26, 1997; denied a disability rating greater than 30% from January 27, 1997, to August 7, 2002; and denied a disability rating greater than 50% since August 8, 2002. Record (R.) at 1-25. For the reasons that follow, the Court will affirm the August 2004 Board decision.

I. FACTS

The appellant served on active duty in the U.S. Army from 1988 to 1991. R. at 27-28. While on active duty, he was hospitalized in January 1991 as a result of a personality disorder and eventually discharged. R. at 95-96. In September 1992, he applied for service connection and benefits for a personality disorder. R. at 104-07. A VA regional office denied service connection in a January 1993 rating decision. R. at 117-18. After an extended procedural history, in July 1999 he was granted service connection for an atypical affective disorder (R. at 251-58) and, in August 1999, was assigned a 10% disability rating, effective September 16, 1992 (R. at 260-62). He appealed the initially assigned disability rating, and was granted a 30% disability rating through an October 2002 Supplemental Statement of the Case, effective August 8, 2002. R. at 322-31. In August 2004, the Board issued a decision increasing his disability rating to 30% from January 27,1997, to August 7, 2002, and to 50% from August 8, 2002, forward. R. at 1-23. This appeal follows, challenging the denial of an initial disability rating for atypical affective disorder in excess of 10% from September 16, 1992, to January 26, 1997; the denial of a disability rating in excess of 30% from January 27, 1997, to August 7, 2002; and the denial of a disability rating in excess of 50% from August 8, 2002.

II. ANALYSIS

A. Medical Records

The appellant asserts that VA erred by failing to obtain service medical records (SMRs) from the “Tripoli [sic] Army Hospital,” where he was treated in January 1991 for a psychiatric condition while on active duty. Appellant’s Brief (Br.) at 8-11 (referring to Tripler Army Hospital in Honolulu, Hawaii, see infra). Pursuant to 38 U.S.C. § 5103A(a)(l), “[t]he Secretary shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claimant’s claim for a benefit under a law administered by the Secretary.” The duty to assist is not unlimited and the statute permits the Secretary to assert that he has been absolved from the duty because further efforts would be futile: “The Secretary is not required to provide assistance to a claimant under this section if no reasonable possibility exists that such assistance would aid in substantiating the claim.” 38 U.S.C. § 5103A(a)(2). However, in this case the Secretary does not contest that the duty to assist does apply and that he is obligated to obtain all relevant records identified by the appellant.

The duty-to-assist statute has specific provisions governing records such as the SMRs that the appellant suggests exist but were not obtained. In general, “[a]s part of the assistance provided under subsection (a), the Secretary shall make reasonable efforts to obtain relevant records (including private records) that the claimant adequately identifies to the Secretary and authorizes the Secretary to obtain.” 38 U.S.C. § 5103A(b)(l); see Loving v. Nicholson, 19 Vet.App. 96, 102 (2005). As to claims for disability compensation, the statute is specific:

In the case of a claim for disability compensation, the assistance provided [214]*214by the Secretary under subsection (b) shall include obtaining the following records if relevant to the claim:
(1) The claimant’s service medical records and, if the claimant has furnished the Secretary information sufficient to locate such records, other relevant records pertaining to the claimant’s active military, naval, or air service that are held or maintained by a governmental entity.

38 U.S.C. § 5103A(c), (c)(1) (emphasis added).

In his brief, the Secretary asserts that the particular SMRs at issue do not fall within his duty to assist because they are not relevant to the disputed disability rating. Specifically, the Secretary argues that “the fact that [the a]ppellant had an in-service psychiatric condition is not in dispute.” Secretary’s Br. at 15-16. Accordingly, he argues that the SMRs “cannot shed light on [the disability rating] because they only show that he had an in-service condition' — a point that has already been acknowledged by VA.” Secretary’s Br. at 16. Hence, the dispute between the parties is whether, based on the facts of this case, the SMRs in contention would be relevant to the appellant’s claim.

The SMRs that the appellant alleges, for the first time on appeal to this Court (Br. at 8), should have been obtained are referred to an SMR in the record. The record before the Court contains a January 14, 1991, “Chronological Record of Medical Treatment” from the Naval Medical Clinic at Pearl Harbor, Hawaii. R. at 95. In that record, Staff Psychiatrist Cdr. T.A. Bischoff stated that the appellant “was originally evaluated by me on 3 Jan. '91 after he was hospitalized on the psychiatric ward at Tripler (29 Dee.-3 Jan.).” Id. After describing the appellant’s symptoms and treatment, Cdr. Bischoff diagnosed the appellant as having, inter alia, a “dependant personality disorder” and recommended that the appellant be separated from service. R. at 95-96. Moreover, evidence contemporaneous with his hospitalization at Tripler and discharge from service notes that he experienced a psychological episode in December 1990 triggering his February 1991 separation from service. The December 1992 VA medical examination recognized that the appellant “was released in February 1991, as part of an R4, or General Medical Discharge, for personality disorder.” R. at 112. In addition, the August 1999 rating decision stated that “in December 1990 [the appellant] was reported to have gone ‘berserk’ and to have made superficial lacerations to his wrists.” R. at 260. In his brief, the appellant argues that his condition has been the subject of “inconsistent diagnoses” and that “evidence in the records of the veteran’s treatment at Tripoli [sic] Army Hospital, could well contribute to a more complete picture of the circumstances surrounding the origin of [the veteranas disability.” Appellant’s Br. at 10.

In general, the appellant bears the burden of persuading the Court that the Board decision below is tainted by a prejudicial error that warrants reversing or remanding the matter for the investment of the additional time and effort that would be required by VA to produce a new decision in his case. See Overton v. Nicholson, 20 Vet.App. 427, 435 (2006) (“The appellant carries the burden of persuasion regarding contentions of error.”); Hilkert v. West, 12 Vet.App.

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Cite This Page — Counsel Stack

Bluebook (online)
21 Vet. App. 211, 2007 U.S. Vet. App. LEXIS 697, 2007 WL 1412293, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dwayne-a-moore-v-r-james-nicholson-cavc-2007.