Ray A. Mc Clain v. R. James Nicholson

21 Vet. App. 319, 2007 U.S. Vet. App. LEXIS 988, 2007 WL 1788877
CourtUnited States Court of Appeals for Veterans Claims
DecidedJune 21, 2007
Docket05-0468
StatusPublished
Cited by278 cases

This text of 21 Vet. App. 319 (Ray A. Mc Clain 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
Ray A. Mc Clain v. R. James Nicholson, 21 Vet. App. 319, 2007 U.S. Vet. App. LEXIS 988, 2007 WL 1788877 (Cal. 2007).

Opinions

KASOLD, Judge:

Veteran Ray A. McClain appeals through counsel that part of a November 30, 2004, decision of the Board of Veterans’ Appeals (Board) that denied his claim for disability compensation for a psychiatric disability, to include major depression, because it found that Mr. McClain no longer manifested a psychiatric disability at the time the Board rendered its decision and therefore found that the preponderance of the evidence weighed against the claim. For the reasons set forth below, the Board’s decision will be reversed and the matter remanded to the Board for the assignment of an effective date and a disability rating, staged as appropriate.

I. ARGUMENTS

The parties differ on their view of key findings by the Board and why Mr. McClain’s claim was denied. On appeal, Mr. McClain argues that the Board found that he had suffered from service-connected depression during the adjudication of his claim, but further found that as of at least September 2003 he no longer suffered from depression but rather had developed a personality disorder. Record (R.) at 20-21. He also argues that the Board denied his claim because, at the time of its decision, he did not suffer from a disease or injury for VA disability compensation purposes. The Secretary argues that the Board never found that Mr. McClain’s psychiatric disability was service connected and that the Board had found that a preponderance of the evidence was against his claim. He further argues that when the Board found that Mr. McClain suffered from a personality disorder it also rejected the earlier diagnosis that he had suffered from depression.

Based on his view of the facts, Mr. McClain argues that, because he suffered from a service-connected disability at the time of his claim and during the adjudication of his claim, the Board could and should have awarded him service connection and assigned a disability rating for the period he had this disability. In addition to arguing that the Board never found that Mr. McClain suffered from-a service-connected disability and that the Board rejected the earlier diagnosis of depression, the Secretary initially argued in his brief that the Board’s decision should be affirmed because “at the time the Board rendered its decision, Appellant had no currently diagnosed psychiatric disability that was subject to service connection as either an undiagnosed illness or on a direct basis as linked to service.” Secretary’s Brief at 13-14. However, at oral argument the Secretary clarified his position and agreed with Mr. McClain that if he suffered from a service-connected disability at the time of or during the processing of his claim, he could be awarded service connection even if his disability resolved before the claim was finally adjudicated and that staged ratings were available.

II. DISCUSSION

For direct service connection to be awarded, there generally must be (1) medical evidence of a current disability; (2) [321]*321medical evidence, or in certain circumstances, lay evidence of an in-service incur-rence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See 38 U.S.C. § 1110; Duenas v. Principi 18 Vet.App. 512, 519 (2004); Hickson v. West, 12 Vet.App. 247, 253 (1999); see also Caluza v. Brown, 7 Vet.App. 498, 506 (1995) (holding that claim required “competent evidence of current disability (a medical diagnosis)[,] ... of incurrence or aggravation of a disease or injury in service (lay or medical evidenced,] ... and of a nexus between the in-service injury or disease and the current disability (medical evidence)”), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). As noted above, the parties agreed at oral argument that a disability was current if it had resolved by the time the Secretary adjudicated a claim and that staged ratings would be appropriate in such a case; however, they dispute the findings of the Board with regard to whether Mr. McClain had a disability that was recognized for purposes of VA benefits and whether any such disability was found to be service connected.

A. Current Disability and Staged Ratings

With regard to the requirement that a claimant have a current disability before service connection may be awarded for that disability, we agree with the parties’ position as stated at oral argument that this requirement is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim and that a claimant may be granted service connection even though the disability resolves prior to the Secretary’s adjudication of the claim. The U.S. Court of Appeals for the Federal Circuit has upheld the Secretary’s interpretation of applicable statutes that a disability must not only be service connected to be awarded VA disability compensation, it must also be current at the time a claim is filed. See Gilpin v. West, 155 F.3d 1353 (Fed.Cir.1998); Degmetich v. Brown, 104 F.3d 1328 (Fed.Cir.1997). Moreover, the law contemplates that entitlement to service-connected disability compensation benefits may arise after the receipt of a claim. See 38 U.S.C. § 5110(a) (effective date for compensation or pension claims “shall be fixed in accordance with the facts found, but shall be no earlier than the date of receipt of application therefor”); 38 C.F.R. § 3.400 (2006) (generally, effective date of a compensation or pension claim “will be the date of receipt of the claim or the date entitlement arose, whichever is later”). We further agree with the parties that under such circumstances a claimant would be entitled to consideration of “staged ratings.” See Fenderson v. West, 12 Vet.App. 119, 126 (1999).

B. Board’s Findings of Fact

The Secretary’s argument that service connection is not warranted in this case because the Board never found that there was a nexus between Mr. McClain’s service and his current disability is not supported by the record. Although we agree with the Secretary that the Board’s statement of reasons or bases is not a model of clarity with regard to its finding of whether there was a nexus, such a degree of clarity, although certainly preferred, is not and cannot be demanded in every instance or finality would forever be delayed pending perfection in draftsmanship. What is required is that the Board’s statement of reasons or bases be sufficiently clear to be understandable and to facilitate review. See Simmons v. Principi 17 Vet.App. 104, 115 (2003); see also 38 U.S.C. § 7104(d)(1); Allday v. Brown, 7 [322]*322Vet.App. 517, 527 (1995); Gilbert v. Derwinski, 1 Vet.App. 49, 56-57 (1990). The Board decision meets this requirement.

Mr. McClain filed his claim in September 1994.

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21 Vet. App. 319, 2007 U.S. Vet. App. LEXIS 988, 2007 WL 1788877, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ray-a-mc-clain-v-r-james-nicholson-cavc-2007.