James A. Bardwell v. Eric K. Shinseki

24 Vet. App. 36, 2010 WL 3221928
CourtUnited States Court of Appeals for Veterans Claims
DecidedAugust 17, 2010
Docket08-2257
StatusPublished
Cited by22 cases

This text of 24 Vet. App. 36 (James A. Bardwell 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
James A. Bardwell v. Eric K. Shinseki, 24 Vet. App. 36, 2010 WL 3221928 (Cal. 2010).

Opinion

HAGEL, Judge:

James A. Bardwell appeals through counsel a June 16, 2008, Board of Veterans’ Appeals (Board) decision denying entitlement to VA benefits for a bilateral eye disability. Because VA was not required to provide medical examinations related to Mr. Bardwell’s eye disabilities, the Court will affirm the June 16, 2008, Board decision.

I. FACTS

Mr. Bardwell served on active duty in the U.S. Navy from November 1944 until January 1945. In March 2001, he submitted a claim for entitlement to VA benefits for in-service injuries to his eyes.

In February 2003, Mr. Bardwell testified at a VA regional office hearing that, while in service, he went through a training exercise that involved exposure to a chemical gas. He testified that his eyes were exposed to the chemical and that they started burning. Mr. Bardwell also testified that his eyesight began to deteriorate after this incident and that by 1978 he was no longer able to work due to vision problems.

In September 2004, the regional office requested that the National Personnel Records Center search for any records relating to Mr. Bardwell’s exposure to gases or chemicals during his active duty. The Records Center responded that, after “an extensive and thorough” search, it had been unable to find any such records and concluded that the records either did not exist or that further efforts to locate them would be futile. Record (R.) at 247.

In March 2005, Mr. Bardwell submitted a medical opinion from a private ophthalmologist. The ophthalmologist concluded that Mr. Bardwell was legally blind and displayed nerve dysfunction that was “consistent with toxic retinopathy.” 1 R. at 174. The doctor opined that Mr. Bard-well’s legal blindness “appears associated with a gaseous chemical exposure.” R. at 174.

In June 2008, the Board issued the decision on appeal, finding that Mr. Bardwell was not entitled to disability benefits for a bilateral eye disability. The Board acknowledged that Mr. Bardwell currently had defective vision in both eyes. However, it concluded that “[tjhere is neither competent medical evidence indicating that [Mr. Bardwell’s] eyes were harmed in any way during service, nor any treatment for a vision-related condition.” R. at 17. The Board considered Mr. Bardwell’s assertion *38 that he was exposed to chemicals or gases in service and that these chemicals damaged his eyes. However, the Board determined that these assertions lacked credibility, given the lack of documentation of the incident in his records and the National Personnel Records Center’s inability to verify the exposure. The Board wrote that it found it “incredible that the veteran would undergo undocumented chemical or gas testing or other exposure during his less than two-month tour of duty and his statements to the contrary are not convincing.” Id. Accordingly, the Board found that there was no competent evidence of an in-service injury to Mr. Bardwell’s eyes, and therefore found that the preponderance of the evidence was against a finding that his current eye disability was in any way related to his military service.

On appeal, Mr. Bardwell argues that VA failed to fulfill its duty to assist in developing his claim by obtaining a medical examination. Appellant’s Brief (Br.) at 7-11.

In response, the Secretary asserts that VA was not obligated to provide a medical examination because the Board found that Mr. Bardwell’s eyes were not injured in service, and this finding was not arbitrary, capricious, or an abuse of discretion. Secretary’s Br. at 4-5.

In his reply brief, Mr. Bardwell argues that the Board failed to give due consideration to the place, type, and circumstances of his service, pursuant to 38 U.S.C. § 1154(a), when it found that he did not have an in-service eye injury. Appellant’s Reply Br. at 1.

II. ANALYSIS

Pursuant to 38 C.F.R. § 3.159(c)(4)(i) (2010), VA must provide a claimant a medical opinion or examination

if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but:
(A) Contains competent lay or medical evidence of a current diagnosed disability or persistent or recurrent symptoms of disability;
(B) Establishes that the veteran suffered an event, injury or disease in service, or has a disease or symptoms of a disease listed in [38 C.F.R.] § 3.309, § 3.313, § 3.316, and § 3.317 manifesting during an applicable presumptive period provided the claimant has the required service or triggering event to qualify for that presumption; and
(C) Indicates that the claimed disability or symptoms may be associated with the established event, injury, or disease in service or with another service-connected disability.

See also 38 U.S.C. § 5103A(d)(2).

In Dueñas v. Principi, the Court held that, when the Board considers whether a medical examination or opinion is necessary under section 5103A(d) and § 3.159(c)(4), it must provide a written statement of the reasons or bases for its conclusion, pursuant to 38 U.S.C. § 7104(d)(1), and that, absent a finding of nonprejudicial error, vacatur and remand is warranted where it fails to do so. 18 Vet.App. 512, 517-18 (2004) (citing Tucker v. West, 11 Vet.App. 369, 374 (1998)).

Additionally, the Court is required to reverse “a finding of material fact ... if the finding is clearly erroneous.” 38 U.S.C. § 7261(a)(4). “A factual finding ‘is “clearly erroneous” when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.’ ” Hersey v. Derwinski, 2 Vet.App. 91, 94 (1992) (quoting United States v. U.S. Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 92 L.Ed. 746 (1948)).

*39 Here, Mr. Bardwell argues that VA erred by failing to provide him with a medical examination pursuant to § 3.159(c)(4)(i) because he satisfies that regulation’s three criteria for an examination. He asserts that it is not disputed that he has a current eye disability. He asserts that his lay statements about exposure to gases during training are competent and credible evidence that there was an event or injury in service relating to his eye. Finally, he asserts that his private ophthalmologist’s opinion is sufficient to indicate that his current disability may be linked to service.

The Court finds Mr. Bardwell’s arguments unpersuasive.

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Bluebook (online)
24 Vet. App. 36, 2010 WL 3221928, Counsel Stack Legal Research, https://law.counselstack.com/opinion/james-a-bardwell-v-eric-k-shinseki-cavc-2010.