Arthur Hickson v. Eric K. Shinseki , 23 Vet. App. 394 ( 2010 )

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO . 07-1311
ARTHUR HICKSON , APPELLANT ,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
On Appeal from the Board of Veterans' Appeals
(Argued September 29, 2009 Decided March 31, 2010 )
Kenneth M. Carpenter, of Topeka, Kansas, for the appellant.
Gayle Strommen, with whom Will A. Gunn, General Counsel; and R. Randall Campbell,
Assistant General Counsel, all of Washington, D.C., were on the brief for the appellee.
Before GREENE, Chief Judge, KASOLD and DAVIS, Judges.
GREENE, Chief Judge: Veteran Arthur Hickson appeals, through counsel, a February 5,
2007, Board of Veterans' Appeals (Board) decision that determined there was new and material
evidence to reopen his previously denied Department of Veterans Affairs (VA) service-connection
claim for an acquired psychiatric disorder and denied the claim on the merits. Record (R.) at 1-29.
Because prior to the Board decision a VA regional office (RO) de facto reopened Mr. Hickson's
claim and denied it on the merits, and because Mr. Hickson has otherwise failed to demonstrate that
the Board contravened 38 C.F.R. § 20.903(b), which provides that the Board will notify an appellant
of its intent to consider law not already considered by the agency of original jurisdiction [AOJ]
where such consideration could result in denial of the appeal, the February 2007 Board decision will
be affirmed.
I. BACKGROUND
Mr. Hickson served in the U.S. Air Force from July 1968 to February 1969. In May 1981,
he claimed VA service-connection benefits for a nervous condition, which was construed as a claim
for benefits for a psychiatric disorder. The RO denied the claim in June 1981. Mr. Hickson
appealed to the Board, and in September 1982, the Board denied his claim after finding that his
service medical records showed that he had no evidence of a chronic psychiatric abnormality such
as a psychosis or neurosis. The Board also found that his only postservice diagnosis was that of a
personality disorder, which by VA regulation was a developmental defect and not a disability for
which service connection could be granted. See 38 C.F.R. § 3.303(c) (2009) (A personality disorder
is not considered a disease or injury for VA-benefits purposes). That decision became final.
In February 1999, Mr. Hickson sought to reopen his disallowed claim. In August 1999, the
RO determined that new and material evidence had not been submitted to reopen that claim. R. at
423-28. Although not required to by law,1 Mr. Hickson was provided a March 2004 VA medical
examination and the claim otherwise was developed. R. at 884. In November 2004, the RO decided
that the evidence submitted by Mr. Hickson and developed after the June 1981 denial of his claim
did not warrant reopening his claim because none of it showed that Mr. Hickson had incurred a
psychiatric disorder in service or developed a psychosis to a compensable degree within one year of
his discharge from service. R. at 910. Mr. Hickson appealed. The matter was remanded by the
Board in April 2006. R. at 962. In June 2006, Mr. Hickson submitted to the RO three affidavits one
signed by him, by his mother, and by his sister, that asserted that he had difficulties during and
immediately following his military service. Along with submitting the affidavits, Mr. Hickson's
counsel, who has represented Mr. Hickson since February 2001, requested remand for the RO to
consider the affidavits and schedule another medical examination. R. at 935. In a July 2006
Supplemental Statement of the Case (SSOC), the RO found that these statements were contradicted
by the medical evidence of record, that the affidavits were not credible, that there was no basis for
providing Mr. Hickson with another VA medical examination, and that new and material evidence
1
The Court notes that in 1999, the Secretary had no duty to assist the claimant until the claim was well
grounded. See Epps v. Gober, 126 F.3d 1464, 1469 (Fed. Cir. 1997). Although the Veterans Claims Assistance Act of
2000 eliminated the well-grounded claim requirement, see Bernklau v. Principi, 291 F.3d 795, 803 (Fed. Cir. 2002), the
U.S. Court of Appeals for the Federal Circuit (Federal Circuit) subsequently held that the Secretary does not have a duty
to assist the claimant by providing a medical examination until the claim is reopened, see Paralyzed Veterans of Am. v.
Sec'y of Veterans Affairs, 345 F.3d 1334, 1342-43 (Fed. Cir. 2003).
2
had not been submitted to reopen Mr. Hickson's previously disallowed claim for service connection.
During his subsequent appeal to the Board, in September 2006, Mr. Hickson, through the
same counsel, submitted the following statement to the RO: "The veteran waives any further time
period and requests that the claims file be immediately transferred to the [Board] for de novo
review." R. at 996. He also attached additional arguments in support of the appeal, including an
argument that, pursuant to Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004),2 he was entitled to
the presumption of service connection under 38 U.S.C. §§ 105(a) and 1112 and therefore he was
entitled to a VA medical examination to demonstrate that his current disability was related to the
symptoms described in the affidavits he submitted in June 2006. R. at 1000. In January 2007, Mr.
Hickson, through that same counsel, who continues as his counsel before the Court, submitted to the
Board a statement that said: "I request that the Board proceed with review of [Mr. Hickson's] appeal
based on all the evidence of record, and issue a favorable decision granting benefits as soon as
possible." R. at 1009.
On appeal, the Board determined that Mr. Hickson's evidence, the three June 2006 affidavits,
were new and material and reopened his claim. Upon reviewing the matter, the Board observed:
The veteran himself and his counsel have not contended that de novo review by the
RO is necessary in this case. Indeed, in his September 7, 2006[,] submission to the
Board the veteran's attorney urged the Board to grant the claim based upon an alleged
"presumption of service connection" (emphasis as in original letter). It is clear
from argument submitted by the attorney that the veteran expects the Board to render
a decision on the merits. A September 7, 2006[,] letter from the veteran's attorney
stated "The veteran . . . requests that the claims file be transferred to the Board of
Veterans' Appeals for de novo review (emphasis added by the Board).
R. at 15-16. The Board considered Mr. Hickson's September 2006 statement through counsel to be
an apparent waiver of consideration by the RO of the merits of the claim. The Board then found that
2
In Shedden, the Federal Circuit held that the term "service-connected" as defined in 38 U.S.C. § 101(16) is
synonymous with the term "incurred in the line of duty," and therefore, "that section 105(a) creates a presumption of
service connection, . . . that a disability first manifested or aggravated during active duty is deemed to be service
connected, unless such injury or disease was a result of the person[']s own willful misconduct or abuse of alcohol or
drugs." 381 F.3d at 1166. The presumption to which the Federal Circuit refers is a presumption that an injury or disease
that was incurred in the line of duty constitutes an in-service incurrence of an injury or disease for purposes of
establishing the second service-connection element (in-service incurrence of an injury or disease). Id.; see Conley v.
Peake, 543 F.3d 1301 (Fed. Cir. 2008) (holding that the section 105(a) presumption only satisfies the in-service
incurrence or aggravation of a disease or injury element for service connection).
3
because (1) Mr. Hickson had been provided adequate notice concerning what was required to
substantiate his claim and an opportunity for a hearing, (2) there was no indication that there were
any outstanding records of medical treatment, and (3) Mr. Hickson had been provided an adequate
medical examination, he had "presented all available existing evidence and argument as to the merits
of the claim, . . . [and he would] not be prejudiced by [the Board's] consideration of this issue on its
merits." R. at 16. With these findings, the Board determined that it would not be prejudicial to Mr.
Hickson to proceed to adjudicate the merits of his reopened claim without first remanding the matter
to the RO for initial consideration.
After adjudicating the claim, the Board found that Mr. Hickson's psychiatric disorder was not
service connected and denied the claim. The Board determined that Mr. Hickson's previously
considered assertions of psychiatric symptoms within the year following his service were not
credible and thus did not establish that he had a psychosis in or resulting from service. R. 20-26.
Consequently, the Board found that the additional affidavits by Mr. Hickson's mother and sister,
based on Mr. Hickson's own assertions that lacked credibility, were incompetent and insufficient to
establish in-service incurrence of a psychiatric disability, thereby failing to demonstrate a medical
nexus between Mr. Hickson's service and his currently diagnosed condition. This appeal followed.
II. ARGUMENTS
Initially, Mr. Hickson argued that the Board lacked subject-matter jurisdiction to adjudicate
his reopened service-connection claim on the merits. He maintained that this Court's decision in
Bernard v. Brown, 4 Vet.App. 384 (1993), was inconsistent with, and consequently overruled by,
Federal Circuit decision in Disabled Am. Veterans (DAV) v. Sec’y of Veterans Affairs, 327 F.3d 1339(Fed. Cir. 2003). On August 24, 2009, Mr. Hickson moved to withdraw this original argument that
he presented in his initial brief regarding the status of Bernard based on the Federal Circuit's
decision in Sims v. Shinseki, 578 F.3d 1332 (Fed. Cir. 2009), and sought to rely solely on the
supplemental argument he submitted in response to our March 2009 order for supplemental briefing
4
concerning 38 C.F.R. § 20.903.3 At oral argument he conceded that Sims addressed the validity of
Bernard and that the Board has jurisdiction to reopen and then adjudicate a claim on the merits.
Acknowledging that this case does not present a jurisdictional issue, Mr. Hickson argues that
the Board nevertheless erred in proceeding to consider the merits of his claim when the RO had not
done so. In support of his argument, he contends that, without giving him notice as required by
38 C.F.R. § 20.903, the Board considered law not already considered by the RO, and, alternatively,
that the Board should not have applied the law to the merits of his claim when the RO had not yet
done so.
The Secretary contends that, because the Board did not apply law not considered by the RO
and because Mr. Hickson specifically argued the merits of his claim before the Board, there was no
violation of § 20.903. The Secretary further maintained that the sole purpose of § 20.903 is to ensure
that a claimant is not prejudiced when the Board intends to consider law that was not already
considered by the RO and that, because the Board specifically considered and thoroughly analyzed
any possible prejudice to Mr. Hickson's procedural rights, the purpose of § 20.903 was satisfied.
III. LAW AND ANALYSIS
A. Reopening a Claim
A claim that has been finally denied can be reopened if new and material evidence is
presented or secured. 38 U.S.C. § 5108. Reopening a claim will result in a new decision on the
matter. Id. "New and material evidence" is defined as the following:
New evidence means existing evidence not previously submitted to agency
decisionmakers. Material evidence means existing evidence that, by itself or when
considered with previous evidence of record, relates to an unestablished fact
necessary to substantiate the claim. New and material evidence can be neither
cumulative nor redundant of the evidence of record at the time of the last prior final
denial of the claim sought to be reopened, and must raise a reasonable possibility of
substantiating the claim.
3
In M arch 2009, this appeal was stayed pending the resolution of Treece v. Shinseki, No. 07-0388, a case in
which this Court was considering the application of 38 C.F.R. § 20.903. Treece , however, was resolved by joint motion
for remand. Consequently, the parties in this case were ordered to address the application of § 20.903 to the facts of their
case.
5
38 C.F.R. § 3.156(a) (2009); see Hodge v. West, 155 F.3d 1356, 1359 (Fed. Cir. 1998). When
deciding materiality, the Secretary "is precluded from considering the credibility of the newly
submitted evidence; strictly for the purpose of determining whether new and material evidence has
been presented, the Board must presume that the newly submitted evidence is credible." Duran v.
Brown, 7 Vet.App. 216, 220 (1994) (citing Justus v. Principi, 3 Vet.App. 510, 513 (1992)).
However, the Secretary is not required "to consider the patently incredible to be credible." Id.; see
King v. Brown, 5 Vet.App. 19, 21 (1993) (citing Espiritu v. Derwinski, 2 Vet.App. 492 (1992))
(noting that Board must not assume credibility of evidence "when the evidentiary assertion is
inherently incredible or when the fact asserted is beyond the competence of the person making the
assertion"). Moreover, unless the claim is reopened, the Secretary is not required to provide a
medical examination or opinion. See Paralyzed Veterans of Am. v. Sec’y of Veterans Affairs,
345 F.3d 1334, 1342-43 (Fed. Cir. 2003). Additionally, the Board must include in its decision a
written statement of the reasons or bases for its findings and conclusions on all material issues of fact
and law presented on the record; that statement must be adequate to enable an appellant to
understand the precise basis for the Board's decision, as well as to facilitate informed review in this
Court. See 38 U.S.C. § 7104(d)(1); Allday v. Brown, 7 Vet.App. 517, 527 (1995).
B. One Review on Appeal
Under 38 U.S.C. § 7104(a), all decisions by the Secretary, including claims to reopen, "shall
be subject to one review on appeal to the Secretary." 38 U.S.C. § 7104(a) ("All questions in a matter
which . . . is subject to decision by the Secretary shall be subject to one review on appeal to the
Secretary."); 38 C.F.R. § 20.101(a) (2009). By statute, final decisions on such appeals are made by
the Board. 38 U.S.C. § 7104. In providing a thorough discussion of the administrative appellate
process within VA, the Federal Circuit, in DAV, observed that the Board is "primarily an appellate
tribunal" within the VA appellate system, and as such, under section 7104 acts on behalf of the
Secretary in making the ultimate decision on claims and provides "one review on appeal to the
Secretary" of a question subject to decision by the Secretary under 38 U.S.C. § 511. 38 U.S.C.
§ 7104. Thus, the Federal Circuit held that a proposed amendment to VA regulation 38 C.F.R.
§ 19.9 that would allow the Board to consider additional evidence without having to remand the case
to the RO for initial consideration and without having to obtain the appellant's waiver was invalid
6
and contrary to the section 7104 requirement that preserves and affords "one review on appeal."
DAV, 327 F.3d at 1346.
1. Board's Consideration of New Evidence Not Considered by the RO
When the Board reopens a claim after the RO has denied reopening that same claim, the
matter generally must be returned to the RO for consideration of the merits. This is because the RO
should, in the first instance, consider that new evidence and decide the matter so as to preserve for
that claimant the one review on appeal as provided by section 7104. The Board, however, may
proceed to decide the merits of the claim if the Board first secures a waiver from a claimant or the
Board determines that the claimant would not be prejudiced by proceeding to a decision on the
merits. Bernard, 4 Vet.App. at 390; see Barnett v. Brown, 83 F.3d 1380, 1384 (Fed. Cir. 1996)
(stating that, in new and material evidence cases, the Board's jurisdiction does not vary "according
to how the [RO] ruled").
2. Board's Consideration of Law Not Considered by the RO
After the Federal Circuit's decision in DAV, the Secretary revised § 19.9 as well as 38 C.F.R.
§ 20.903. See 68 Fed. Reg. 69,062 (Dec. 11, 2003); 69 Fed. Reg. 53,807 (Sept. 4, 2004). Amended
§ 20.903 states:
If . . . the Board intends to consider law not already considered by the [AOJ] and such
consideration could result in denial of the appeal, the Board will notify the appellant
and his or her representative, if any, of its intent to do so and that such consideration
in the first instance by the Board could result in denial of the appeal. The notice from
the Board will contain a copy or summary of the law to be considered. A period of
60 days from the date the Board furnishes the notice will be allowed for response,
which may include the submission of relevant evidence or argument. The date the
Board furnishes the notice will be presumed to be the same as the date of the letter
that accompanies the notice for purposes of determining whether a response was
timely filed. No notice is required under this paragraph if the Board intends to grant
the benefit being sought or if the appellant or the appellant's representative has
advanced or otherwise argued the applicability of the law in question.
38 C.F.R. § 20.903(b) (2009).4 As previously noted, Mr. Hickson argues that the Board violated this
regulation when it proceeded to decide his claim on the merits.
4
The amended § 20.903 took effect on October 4, 2004, was in effect at the time of Mr. Hickson's appeal to
the Board, and remains unchanged.
7
The Secretary argues that this provision applies only to new statutes, regulations, or caselaw
that were not in effect at the time of the AOJ decision. Although the Secretary may establish the
meaning of a regulation by presenting independent authority for his position or demonstrating that
his position is an accepted interpretation and practice, see Martin v. Occupational Safety and Health
Review Comm'n, 499 U.S. 144, 151 (1991), he does not attempt to do so here. Rather, he maintains
that the plain language of the regulation necessitates that it must be interpreted as only applying to
law promulgated between the time of the AOJ decision and the Board decision.
We review interpretations of VA regulations de novo. See 38 U.S.C. § 7261 (Court interprets
statutory and regulatory provisions); Lane v. Principi, 339 F.3d 1331,1339 (Fed. Cir. 2003)
("[I]nterpretation of a statute or regulation is a question of law . . . ."); Butts v. Brown, 5 Vet.App.
532, 539 (1993) (en banc) (Court reviews "questions of law de novo without any deference to the
Board's conclusions of law").
Litigation positions are not entitled to judicial deference when they are merely counsel's "post
hoc rationalizations" for agency action and are advanced for the first time on appeal. See Martin,
499 U.S. at 156. However, when "regulations leave the pertinent inquiry unresolved, deference must
be afforded to the [Secretary's] interpretation as long as that interpretation is not 'plainly erroneous
or inconsistent with the regulations.'" Smith v. Nicholson, 451 F.3d 1344, 1394 (Fed. Cir. 2006); see
also Auer v. Robbins, 519 U.S. 452, 463 (1997). The Secretary, however, has not provided anything
to the Court that demonstrates that this interpretation reflects VA's "fair and considered judgment
on the matter in question." Id. at 462. Indeed, contrary to the Secretary's assertion, nothing in the
plain language of the regulation, nor the documents published in conjunction with the notice and
comment period after which the regulation was promulgated, supports the Secretary's narrow
interpretation.
Furthermore, the language of the regulation itself contradicts such an interpretation. The
regulation concerns situations where "the Board intends to consider law not already considered by
the [AOJ]." 38 C.F.R. § 20.903(b) (emphasis added). The use of the phrase "not already
considered" suggests that the law existed at the time the AOJ made its decision but was simply not
considered. Accordingly, the Secretary's interpretation – that the Board could, in the first instance,
and without giving notice to a claimant, consider applicable general law to deny a claim – amounts
8
to a rewrite of his regulation. He may wish to undertake such action, but this is not the forum to do
so. See Administrative Procedure Act, 5 U.S.C. § 553.
C. Application to Mr. Hickson's Case
Despite our conclusion that the Secretary's argument regarding a narrow interpretation of
§ 20.903 is inconsistent with the plain wording of the regulation, Mr. Hickson's argument that the
Board considered law not already considered by the RO in violation of that regulation nevertheless
is not supported by the record.
1. Law Not Already Considered by the RO
Mr. Hickson argues that simply because the RO did not explicitly note a law in its decision,
that law must not have been considered. We reject that argument. There is no requirement that the
RO list every law it considered when rendering its decision. 38 U.S.C. § 5104(b) ("In any case
where the Secretary denies a benefit sought, the notice required by subsection (a) shall also include
(1) a statement of the reasons for the decision, and (2) a summary of the evidence considered by the
Secretary."). Moreover, the RO is presumed to have considered all applicable law, absent some
showing that it did not. See Jennings v. Mansfield, 509 F.3d 1362, 1367 (Fed. Cir. 2007) (holding
that the Board can assume that the Secretary applied correct legal standards, absent clear evidence
to the contrary); see also Dolan v. Brown, 9 Vet.App. 358, 362 (1996) (concluding that VA has duty
to consider any presumption that may be applicable to veteran's claim and, in absence of "clear
evidence" to contrary, is presumed to have done so). Further, Mr. Hickson does not identify any law
that we conclude the Board considered that had not been considered by the RO. See Hilkert v. West,
12 Vet.App. 145, 151 (1999) (en banc) (holding that appellant bears burden of demonstrating error
on appeal).
Specifically, contrary to Mr. Hickson's assertion that the Board considered 38 U.S.C.
§§ 1101, 1110, 1112, and 1113 and that the RO did not note these statutes as being considered, the
RO explicitly noted them in its July 2006 SSOC. R. at 990. Similarly, contrary to Mr. Hickson's
argument that the Board considered 38 C.F.R. §§ 3.303, 3.306, and 3.309, and the RO did not list
these regulations as having been considered, the Board never cited 38 C.F.R. § 3.306, and the RO
cited §§ 3.303, 3.309 in its SSOC. R. at 991. And, contrary to Mr. Hickson's assertion that the
Board considered a list of cases that the RO did not, several of those cases were either (1) cited by
9
the RO in its SSOC, to wit: Suttmann v. Brown, 5 Vet.App. 127 (1993) (see R. at 980), Savage v.
Gober, 10 Vet.App. 488 (1997) (see R. at 991), Gilbert v. Derwinski, 1 Vet.App. 49 (1990) (see R. at
992), Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997) (see R. at 992), or (2) submitted to the Board
by Mr. Hickson's counsel, to wit, Cartright v. Derwinski, 2 Vet.App. 24 (1991) (see R. at 1014-15),
and Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004) (see R. at 1015). See 38 C.F.R. § 20.903(b)
("No notice is required under this paragraph if . . . the appellant or the appellant's representative has
advanced or otherwise argued the applicability of the law in question.").
Mr. Hickson also lists a host of caselaw that he claims the Board cited and relied upon that
was not considered by the RO. However, he fails to recognize that the following legal principles
addressed in these cases were each addressed in the preparation of the SSOC, which is prepared
before the matter is formally appealed to the Board, affirmatively evidencing consideration by the
RO of the legal principles for which these cases stand. Compare R. at 984-93 (July 2006 SSOC)
with Mayfield v. Nicholson, 20 Vet.App. 537 (2006) (the Secretary is not required to provide
particularized notice regarding the evidence necessary to correct specific inadequacies in a claimant's
file per 38 U.S.C. § 5103(a)); Locklear v. Nicholson, 20 Vet.App. 410, 416 (2006) (same);
Alemany v. Brown, 9 Vet.App. 518, 519 (1996) (claimant must only demonstrate that there is an
approximate balance of positive and negative evidence in order to prevail); Winn v. Brown,
8 Vet.App. 510, 516 (1996) (personality disorders and mental retardation are deemed to be
congenital or developmental abnormalities and are not considered to be disabilities for the purposes
of service connection); Libertine v. Brown, 9 Vet.App. 521, 523 (1996) (speculative, general, or
inconclusive medical opinions have little probative value); Beausoleil v. Brown, 8 Vet.App. 459, 463
(1996) (same); Cosman v. Principi, 3 Vet.App. 303, 305 (1992) (service connection may be granted
for disability shown after service when the evidence showed it was incurred in service); Espiritu v.
Derwinski, 2 Vet.App. 492, 495 (1992) (laypersons are not generally competent to opine on medical
matters such as the date of onset of a claimed disability and the relationship of specific symptoms
to a particular diagnosis); Gobber v. Derwinski, 2 Vet.App. 470, 472 (1992) (VA medical
examinations are not required if there is already competent evidence in the file).
Similarly, Mr. Hickson contends that the Board relied upon other caselaw that had not been
considered by the RO, to wit: Kowalski v. Nicholson, 19 Vet.App. 171, 179 (2005) (medical opinion
10
based on claimant's own statements may not be rejected out of hand); Wensch v. Principi,
15 Vet.App. 362, 367 (2001) (the Board may favor the opinion of one competent medical authority
over another); LeShore v. Brown, 8 Vet.App. 406, 409 (1995) (evidence recorded by a medical
examiner, unenhanced by any medical comment, does not constitute competent medical evidence);
Owens v. Brown, 7 Vet.App. 429, 433 (1995) (cited for the same principle as that in Wensch, supra);
Swann v. Brown, 5 Vet.App. 229, 233 (1993) (a medical opinion based upon an unsubstantiated
account is of no probative value, and does not serve to verify the occurrences described); Obert v.
Brown, 5 Vet.App. 30 (1993) (adjudicator may not substitute its opinion for medical opinions in the
record); Guerrieri v. Brown, 4 Vet.App. 467, 470-71 (1993) (probative value of medical opinion
comes from medical expert's personal examination of the patient, the physician’s knowledge and
skill in analyzing the data, and the medical conclusion that the physician reaches). However, Mr.
Hickson fails to observe that the legal principles addressed in these cases concern the weight and
probative value to be assigned evidence, and that the RO, as discussed below, actually developed the
claim and weighed the evidence, again evidencing its consideration of the law.
Additionally, Mr. Hickson asserts that the Board cited and relied upon Meyer v. Brown,
9 Vet.App. 425 (1996) (Board required to analyze evidence and provide reasons or bases for its
decision); Eddy v. Brown, 9 Vet.App. 52 (1996) (same); Gabrielson v. Brown, 7 Vet.App. 36 (1994)
(same); and Bernard, 4 Vet.App. at 394 (Board may, in some instances, decide matters that were not
previously decided by the RO), and that the RO did not cite to them. But again, Mr. Hickson does
not recognize that the legal principles addressed in these cases are that the Board is obligated under
38 U.S.C. § 7104(d) to provide an adequate statement of reasons or bases, and that the Board may,
in some instances, decide matters that were not previously decided by the RO. It is self-evident that
§ 20.903(b) would not apply to situations in which the Board considers quintessential law applicable
to its own adjudication, and irrelevant to the RO's decision. To read § 20.903(b) as precluding
consideration by the Board of law applicable to its adjudication and not applicable to the RO's
adjudication would mean that the Secretary would have to give 60 days notice to the claimant in
every appeal that the Board would perform its duty in accordance with applicable law, unless the
Board granted the claim in full or the appellant waived such notice. If the Secretary desired this
11
result, he could have written his regulation to require such notice; but, he did not, and we see no
basis for requiring such an outcome.
In sum, Mr. Hickson's argument based on his litany of statutes, regulations, and case law that
purportedly were not cited by the RO fails to demonstrate that the Board violated § 20.903(b) by
improperly considering law that the RO failed to consider without first notifying him and giving him
an opportunity to respond. See Jennings, Dolan, and Hilkert, all supra.
2. Law Applied to the Merits
When informed at oral argument that 38 U.S.C. §§ 1101, 1110, 1112, and 1113, had been
cited to and relied upon by the RO in its 2006 SSOC, Mr. Hickson argued that these statutes
nevertheless were considered by the Board in the context of a reopened claim, which he argues
necessarily violates § 20.903(b). As we previously noted, supra at III(B)(1), when the Board reopens
a claim after the RO has denied reopening, the Board generally should remand the claim to the RO
to consider the evidence and render a new decision. This is because the RO generally does not assess
the credibility of the evidence or determine the need for a medical examination or opinion when
reopening is denied. See Justus and Paralyzed Veterans of Am., both supra. Thus, if the Board
initially reopens a claim when the RO has not considered the need for a medical examination or
opinion, or assessed the credibility of the evidence, the Board would be considering law that the RO
had not already considered, possibly implicating § 20.903(b). And, in the absence of waiver by the
claimant or a Board finding that the claimant would not be prejudiced by the Board adjudicating the
matter in the first instance, by going forward, the Board would violate the "one review on appeal,"
statutory requirement. DAV and Bernard, both supra.
In this instance, however, the RO developed the evidence over a seven-year period between
the date Mr. Hickson filed his claim to reopen in 1998 and the date of the SSOC that issued in 2006.
The Board also found that the duties to notify and assist had been satisfied, including not only
obtaining records, which is part of every claim to reopen, but also providing Mr. Hickson a medical
examination, which is not required until and unless a claim is reopened. See Paralyzed Veterans of
Am., 345 F.3d at 1342-43. More significantly, all of the evidence in the record before the Board
reveals that upon receipt of Mr. Hickson's new evidence, the RO in fact considered that evidence,
assessed its credibility, and, after doing so, determined that not only was the evidence not credible
12
but also that it did not trigger a need for any additional medical examinations. These are
determinations that should be made only after a claim has been reopened. Indeed, the RO weighed
the totality of the evidence before reaching a conclusion that Mr. Hickson's claim would be denied.
Because the RO de facto reopened the claim, which thus means that, under these circumstances, the
Board's application of the law to the merits was the second such application, the Board's review of
the claim actually constituted the "one review on appeal." Paralyzed Veterans of Am., supra. Based
on the record on appeal, we have the firm conviction that the Board's conclusory statement that the
RO had not considered Mr. Hickson's claim is clearly erroneous. Gilbert, 1 Vet.App. at 52 ('"A
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.'"
(quoting United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948))). Under these circumstances,
the Board's application of the law to the merits was the second such application, and the Board's
review of the claim actually constituted "one review on appeal." Id. Accordingly, we hold that
38 C.F.R. § 20.903(b) was not violated in this instance.
D. Section 5103A Duty To Provide an Adequate Medical Examination
At oral argument, Mr. Hickson argued for the first time that once the Board reopened his
claim, he was entitled to a VA medical examination. Under section 5103A, the Secretary is
obligated, in appropriate cases, to conduct a thorough and contemporaneous medical examination
or obtain a medical opinion. 38 U.S.C. § 5103A(d)(2); McLendon v. Nicholson, 20 Vet.App.79, 81
(2006); Green v. Derwinski, 1 Vet.App. 121, 124 (1991). "[O]nce the Secretary undertakes the effort
to provide an examination when developing a service-connection claim, even if not statutorily
obligated to do so, he must provide an adequate one." Barr v. Nicholson, 21 Vet.App. 303, 311
(2007).
Mr. Hickson argues only that, once his claim was reopened, he was entitled to a new VA
medical examination so that a medical examiner could consider the affidavits he submitted. Here,
the Board specifically found that the Secretary's section 5103A duty to assist was fulfilled by a
"contemporaneous and thorough medical examination in March 2004," in a VA psychiatric
examination. R. at 17-18. The Board also found that Mr. Hickson's affidavits were "merely
reiterative of contentions made to the March 2004 VA examiner, which that examiner took into
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consideration in rendering his opinion." R. at 18. Mr. Hickson fails to assert that the Board erred
in its determination that he was provided an adequate VA psychiatric examination in March 2004,
which considered his contentions, nor does he suggest any errors in that examination. See Hilkert,
supra.
Furthermore, the Board specifically determined that the statements Mr. Hickson submitted
were not credible. R. at 22. Again, Mr. Hickson does not challenge the Board's conclusion.
Information that is not credible is not a basis for ordering another medical examination. See
Washington v. Nicholson, 19 Vet.App. 362, 367-68 (2005) (holding that the Board has the duty to
determine the credibility and probative weight of the evidence); Reonal v. Brown, 5 Vet.App. 458,
461 (1993) (holding that a medical opinion based upon an inaccurate factual premise has no
probative value); Smith v. Derwinski, 1 Vet.App. 235, 237 (1991) ("Credibility is determined by the
fact finder."). The Board provided an adequate statement of reasons or bases for its conclusion that
the statements were not credible and that determination is not clearly erroneous. See Wood v.
Derwinski, 1 Vet.App. 190, 193 (1991) (stating that Board's assessment of credibility and weight to
be given to evidence is finding of fact subject to "clearly erroneous" standard of review).
Accordingly, because the statements submitted by Mr. Hickson were both redundant of his
statements to the March 2004 VA examiner and those statements were found not to be credible, the
Board did not err in not providing Mr. Hickson with an additional medical examination upon
reopening his claim. See McLendon, supra.
E. Prejudice
Although we conclude that § 20.903 was not violated in this instance, we feel compelled to
address Mr. Hickson's contention at oral argument that he otherwise was prejudiced by the Board
deciding his claim on the merits because he would have obtained a private medical examination had
he known the Board would deny him another VA medical examination. This argument is
disingenuous at best. Mr. Hickson was provided a VA medical examination by the RO and denied
an additional one. He was also offered an opportunity to submit his own medical evidence. He
waived, through counsel, further review by the RO on this issue and argued before the Board that
he should be provided another medical examination. Mr. Hickson may not agree with the Board's
decision, but the record reflects that he was provided a meaningful opportunity to present his
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argument. He thus fails to demonstrate any prejudice by the Board proceeding to address the duty
to assist (and deny another VA medical examination) and deciding his claim on the merits. See
Marciniak v. Brown, 10 Vet.App. 198, 201 (1997) (remand unnecessary "[i]n the absence of
demonstrated prejudice"); see also Mlechick v. Mansfield, 503 F.3d 1340, 1346 (Fed. Cir. 2007)
(Court must review the record to take due account of the rule of prejudicial error).
Moreover, before proceeding to decide the merits of Mr. Hickson's claim, the Board
considered Mr. Hickson's waiver of any further review by the RO and ultimately determined that Mr.
Hickson would not be prejudiced by the Board rendering its decision because, inter alia, Mr. Hickson
"had presented all available existing evidence and argument as to the merits of the claim." R. at 16.
The Court reviews any Board finding of no prejudice de novo. Medrano v. Nicholson, 21 Vet.App.
165, 171 (2007). Because the RO developed Mr. Hickson's claim, including providing him an
adequate VA medical examination and assessing the credibility of the evidence, we find no prejudice
in the Board proceeding to decide the claim on the merits.
IV. CONCLUSION
Accordingly, upon consideration of the foregoing, the February 5, 2007, decision of the
Board is AFFIRMED.
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