Darlington v. Dept. Of Veterans Affairs , 415 F. App'x 253 ( 2011 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
__________________________
GARY J. DARLINGTON,
Claimant-Appellant,
v.
ERIC K. SHINSEKI, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee.
__________________________
2010-7076
__________________________
Appeal from the United States Court of Appeals for Vet-
erans Claims in Case No. 08-3238, Judge Alan G. Lance, Sr.
___________________________
Decided: February 22, 2011
___________________________
DARLA J. LILLEY, Lilley Law Firm, P.L.L.C., of Dainger-
field, Texas, for claimant-appellant.
L. MISHA PREHEIM, Trial Attorney, Commercial Litiga-
tion Branch, Civil Division, United States Department of
Justice, of Washington, DC, for respondent-appellee. With
him on the brief were TONY WEST, Assistant Attorney
General, JEANNE E. DAVIDSON, Director, and MARTIN F.
DARLINGTON v. DVA 2
HOCKEY, Assistant Director. Of counsel on the brief were
DAVID J. BARRANS, Deputy Assistant General Counsel, and
KRISTIANA M. BRUGGER, Attorney, Office of the General
Counsel, United States Department of Veterans Affairs, of
Washington, DC. Of counsel was AMANDA R. BLACKMON,
Attorney, United States Department of Veteran Affairs, of
Washington, DC.
__________________________
Before NEWMAN, LOURIE, AND MOORE, Circuit Judges.
NEWMAN, Circuit Judge.
Gary J. Darlington appeals from the decision of the
United States Court of Appeals for Veterans Claims (the
Veterans Court) affirming the decision of the Board of
Veterans’ Appeals denying his claim for service connection
for a bilateral knee disorder. We conclude that the Veterans
Court correctly interpreted 38 U.S.C. §5103A, and that the
court’s decision must be affirmed.
BACKGROUND
Mr. Darlington served in the U.S. Marine Corps from
July 1957 until June 1960. During service, Mr. Darlington
was seen for Osgood-Schlatter disease (O-S) and suffered
flare-ups of bursitis associated with this condition. His
service medical records show that he was diagnosed with O-
S in 1953, prior to service. Upon separation from service his
condition was recorded as “normal.” [A8].
In February 2000, a VA medical note stated that Mr.
Darlington had “uncontrolled” diabetes. In July 2000, he
underwent left leg below the knee amputation due to gan-
grene and diabetes, and underwent the same procedure for
the right leg in August 2003. In November 2003, a treat-
3 DARLINGTON v. DVA
ment note stated that he had left and right knee flexion
contractures. [A9].
In September 2003, Mr. Darlington submitted a claim
for increased disability rating based on aggravation of his O-
S disease while in military service. At a hearing, reference
was made to VA treatment in 2004 related to Mr. Darling-
ton’s amputations and prostheses, but these records were
not associated with the claims file. [A32]. In February
2006, the Board denied Mr. Darlington’s claim. On appeal
to the Veterans Court, the parties agreed to a joint motion
for remand so that the Board could consider its obligation to
obtain records and to explain whether Mr. Darlington was
entitled to a medical nexus opinion. [A9].
On remand, the Board found that Mr. Darlington’s O-S
disease preexisted service and was not aggravated during
service. [A23]. The Board found that the appearance of O-
S disease symptoms in service was a flare-up because there
were no symptoms at entrance, no symptoms upon exit, and
no symptoms for many years after service. [A24]. The
Board found that Mr. Darlington was not entitled to a
medical nexus opinion on the relationship between his O-S
disease and his claimed knee condition, because that rela-
tionship was irrelevant without a finding that the O-S
disease was aggravated by service. Similarly, the Board
found that the 2004 VA treatment records were irrelevant
and did not obtain them, finding that the 2004 records were
related to Mr. Darlington’s amputations and prostheses,
whereas the outcome of his claim rested on the treatment
and severity of symptoms from his O-S disease during his
military service. The Board found that the 2004 records had
no bearing on his claim. [A33].
The Veterans Court affirmed, finding (1) that the Board
had provided more than adequate reasons or bases for its
DARLINGTON v. DVA 4
decision that no medical nexus opinion was required, (2)
that the Board did not err in considering the absence of
treatment as evidence, and (3) that the Board’s conclusion
that the 2004 records were not relevant was reasonable and
supported by the record, such that the Board did not violate
its duty to assist by not obtaining those records. [A10-12].
DISCUSSION
On appeal from the Veterans Court, we review statutory
interpretations de novo, but absent a constitutional issue,
we may not review challenges to factual determinations or
challenges to the application of a law or regulation to facts.
38 U.S.C. § 7292(2)(2).
Mr. Darlington presents two arguments on appeal.
First, he argues that the Veterans Court misinterpreted the
VA’s duty to assist by not conducting an assessment of
whether additional assistance was necessary to substantiate
his claim, and whether no reasonable possibility existed
that additional assistance would aid in substantiating the
claim. Second, he argues that the Veterans Court erred in
its view of the absence of medical treatment records.
38 U.S.C. §5103A provides that the VA has a duty to as-
sist claimants. Section 5103A(a) provides that the Secretary
“shall make reasonable efforts to assist a claimant in obtain-
ing evidence necessary to substantiate the claimant’s claim,”
but that the Secretary “is not required to provide assistance
. . . if no reasonable possibility exists that such assistance
would aid in substantiating the claim.” 38 U.S.C.
§5103A(a). Section 5103A(b)(1) provides that “[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
5 DARLINGTON v. DVA
obtain.” 38 U.S.C. §5103A(b)(1). Section 5103A(d) provides
that “the assistance provided by the Secretary under sub-
section (a) shall include providing a medical examination or
obtaining a medical opinion when such an examination or
opinion is necessary to make a decision on the claim.” 38
U.S.C. §5103(d).
Mr. Darlington argues that Section 5103A requires the
Veterans Court to assess both whether additional assistance
is necessary to substantiate a claim, and whether no rea-
sonable possibility exists that additional assistance would
aid in substantiating the claim. He argues that the Veter-
ans Court erred by failing to conduct this assessment. The
Veterans Court stated that the “Secretary’s duty to obtain
records extends only to relevant records or potentially
relevant records,” citing 38 U.S.C. § 5103A(b)(1). [A11].
The court observed that the Board found that the 2004 VA
treatment records were irrelevant because they had no
bearing on whether the veteran’s knee issues were con-
nected to his service. The court found that the Board’s
conclusion was reasonable and supported by the record.
We discern no error in the Veterans Court’s interpreta-
tion of 38 U.S.C. § 5103A. As the court explained, sections
5103A(b) and (c) make clear that the Secretary’s duty to
obtain records extends only to relevant records or poten-
tially relevant records. See Golz v. Shinseki, 590 F.3d 1317,
1320 (Fed. Cir. 2010) (“There can be no doubt that Congress
intended VA to assist veterans in obtaining records for
compensation claims, but it is equally clear that Congress
only obligated the VA to obtain “relevant” records.”); McGee
v. Peake, 511 F.3d 1352, 1357 (Fed. Cir. 2008) (“Congress
has explicitly defined the VA’s duty to assist a veteran with
the factual development of a benefit claim in terms of rele-
vance.”).
DARLINGTON v. DVA 6
Similarly, we discern no error in the Veterans Court’s
review of the Board’s decision not to provide a medical
opinion. Section 5103A(d)(1) states that the Secretary’s
duty to provide a medical opinion applies only when such an
examination is necessary to a decision on the claim. The
Veterans Court correctly ruled that an “opinion is necessary
where there is (1) competent evidence of a current disability
or persistent symptoms or recurring symptoms of a disabil-
ity, (2) evidence establishing that an event, injury, or dis-
ease occurred in service or establishing certain diseases
manifesting during an applicable presumptive period for
which the claimant qualifies, (3) an indication that the
disability or symptoms of a disability may be associated
with the veteran’s service or with another service-connected
disability, and (4) insufficient competent medical evidence
on file for the Secretary to make a decision on the claim,”
citing McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006).
See 38 C.F.R. § 3.159(c).
The Board made factual determinations that Mr. Dar-
lington’s O-S disease preexisted his service and was not
aggravated during service, and found that the standards of
McLendon were not met because the relationship between
the appellant’s O-S disease and his claimed knee condition
was irrelevant without a finding that the O-S disease was
aggravated by service. The Veterans Court found that this
statement of reasons or bases was logical and adequate.
Before the Veterans Court, Mr. Darlington argued that
the Board erred in relying on its own lay medical opinion to
determine that the conditions he manifested in service were
only temporary flare-ups of a pre-existing condition. The
Veterans Court agreed that the Board may only consider
independent medical evidence in support of its findings and
may not substitute its own medical opinion, but stated that
the Board may take into account an absence of treatment as
7 DARLINGTON v. DVA
“negative” evidence, citing Forshey v. Principi, 284 F.3d
1335, 1358 (Fed. Cir. 2002) (en banc). The Veterans Court
stated that “the Board concluded that the appearance of O-S
disease symptoms in service was a flare-up because there
were no symptoms at entrance, no symptoms upon exit, and
no symptoms for many years after service,” and found that
this did “not amount to a prohibited medical conclusion, but
rather a logical inference that the Board is entitled to make
when it weighs the evidence of record and where there
exists no basis for presumptive service connection.” [A11].
Mr. Darlington argues that negative evidence, such as
the absence of treatment, may not be considered in deciding
whether a medical examination is necessary under Section
5103A, and that Forshey’s holding is irrelevant when the
issue before the VA is medical in nature. He argues that
the “benefit of the doubt doctrine” under 38 U.S.C. § 5107(b)
prohibits the use of negative medical evidence when deter-
mining a veteran’s entitlement to a medical examination
under Section 5103A.
This court has acknowledged that such evidence can be
considered by the Board. See Maxon v. Gober, 230 F.3d
1330, 1333 (Fed. Cir. 2000) (“The [Veterans Court] held, and
we agree, that evidence of a prolonged period without medi-
cal complaint can be considered, along with other factors
concerning the veteran’s health and medical treatment
during and after military service, as evidence of whether a
pre-existing condition was aggravated by military service.”);
Forshey, 284 F.3d at 1338 (“evidence is defined as ‘[a]ll the
means by which any alleged matter of fact, the truth of
which is submitted to investigation, is established or dis-
proved.’”). Nothing in section 5107(b) prohibits the use of
such evidence. 38 U.S.C. § 5107(b) (“Benefit of the doubt.
The Secretary shall consider all information and lay and
medical evidence of record in a case before the Secretary
DARLINGTON v. DVA 8
with respect to benefits under laws administered by the
Secretary. When there is an appropriate balance of positive
and negative evidence regarding any issue material to the
determination of a matter, the Secretary shall give the
benefit of the doubt to the claimant.”).
We discern no violation of law in the Board’s procedures
or the rulings of the Veterans Court. The Board’s findings
of fact are not subject to our review. Thus the decision of
the Veterans Court must be affirmed.
No Costs.
AFFIRMED