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UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
ROSE M. HARMON, APPELLANT,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before PIETSCH, Judge.
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
PIETSCH, Judge: Rose M. Harmon appeals, pro se, a September 17, 2019, Board of
Veterans’ Appeals (Board) decision that denied applications to reopen claims for service
connection for diabetes mellitus, type II (diabetes); a stomach disability, to include
gastroesophageal reflux disease (GERD) and acid reflux; and, a bilateral foot disability; and that
denied entitlement to service connection for neuropathy of the right lower extremity and left lower
extremity, to include as secondary to diabetes. 1 This appeal is timely, and the Court has
jurisdiction to review the Board’s decision pursuant to 38 U.S.C. §§ 7252(a) and 7266(a). Singlejudge
disposition is appropriate because the issue is of “relative simplicity” and “the outcome is
not reasonably debatable.” Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). For the reasons that
follow, the Court will affirm in part and vacate in part the Board’s September 17, 2019, decision,
and the Court will remand the vacated matters for further proceedings and readjudication
consistent with this decision.
1 Based on VA’s receipt of new and material evidence, the Board reopened a claim for service connection
for a skin disability manifested by brown spots. This is a favorable determination that the Court will not disturb. See
Medrano v. Nicholson, 21 Vet.App. 165, 170 (2007). The Board also remanded the claim for entitlement to service
connection for a skin disability manifested by brown spots and
- Single Judge Application; Spellers v. Wilkie; the Court held in Spellers v. Wilkie, with respect to the diagnostic code for incomplete paralysis of the sciatic nerve, which also rates the condition based solely on the level of severity (i.e., mild, moderate, severe), the “lack of objective criteria for differentiating between the specified severity levels means that any evidence indicating severity of incomplete paralysis of the sciatic nerve is necessarily relevant to the schedular rating level.” 30 Vet.App. 211, 219 (2018) (emphasis omitted);
- Single Judge Application; tinnitus; Murphy v. Wilkie, 983 F.3d 1313, 1318 (Fed. Cir. 2020) (endorsing Clemons and explaining that “VA shall afford lenity to a veteran’s filings; evidence developed in processing that claim; claimant’s description of the claim; the symptoms the claimant describes; and the information the claimant submits or that the Secretary obtains in support of the claim; The Board did not, however, address the reasonably raised issue of whether the veteran’s specific claim for tinnitus encompassed a claim for a vestibular condition manifesting in dizziness, as required by Clemons. In Clemons, the Court explained that, because lay claimants generally lack the medical knowledge to narrow the universe of a claim to a particular diagnosis, VA “should construe a claim based on the reasonable expectations of the non-expert, self-represented claimant and the evidence developed in processing that claim.” 23 Vet.App. at 5. “[T]he claimant’s intent in filing a claim is paramount to construing its breadth,” and factors relevant to that inquiry include “the claimant’s description of the claim; the symptoms the claimant describes; and the information the claimant submits or that the Secretary obtains in support of the claim.” Id. The Court ultimately held that the Board may not deny a claim because a lay claimant’s hypothesized diagnosis proves incorrect; rather, the Board must “confront the difficult questions of what current condition actually exist[s] and whether it was incurred in or aggravated by service.” Id. at 6. In so doing, the Board must make “affirmative finding[s] as to the nature of the [claimant’s] condition.” Id. In short, “the fact that the [claimant] may be wrong about the nature of his [or her] condition does not relieve the Secretary of his duty to properly adjudicate the claim.” Id.; see generally Murphy v. Wilkie, 983 F.3d 1313, 1318 (Fed. Cir. 2020) (endorsing Clemons and explaining that “VA shall afford lenity to a veteran’s filings that fail to enumerate precisely the disabilities included within the bounds of a claim,” which “is best accomplished by looking to the veteran’s reasonable expectations in filing the claim and the evidence developed in processing that claim”).;
- Single Judge Application; the ultimate “lesson of our cases is that, while a pro se claimant’s ‘claim must identify the benefit sought,’ the identification need not be explicit in the claim-stating documents, but can also be found indirectly through examination of evidence to which those documents themselves point when sympathetically read.” Shea v. Wilkie, 926 F.3d 1362, 1368–69 (Fed. Cir. 2019). Here, the claim-stating documents pointed, when sympathetically viewed, to a history of symptoms of abdominal pain that yielded a diagnosis of gastritis. And that’s not all. The veteran’s gastritis was expressly linked to service by VA’s own medical examiner—in the context of an examination sought by the Agency as part of the development of Mr. Martinelli’s other claims.; The Secretary says the veteran is out of his depth in suggesting to the Court that melatonin use indicates sleep issues. But even if that were true, the veteran retorts, the Secretary forgets the Court’s ability to take judicial notice of facts generally known. See Tagupa v. McDonald, 27 Vet.App. 95, 100-01 (2014). Indeed, one need look no further than a basic medical dictionary to conclude that his in-service prescription was favorable, material evidence. Melatonin is “a hormone . . . implicated in the regulation of sleep, mood, puberty, and ovarian cycles. It has been tried therapeutically for a number of conditions, including insomnia and jet lag.” DORLAND’S ILLUSTRATED MEDICAL DICTIONARY 1110 (33d ed. 2020). The Board has a responsibility to explain why it rejects favorable, material evidence. Garner v. Tran, 33 Vet.App. 241, 250 (2021).;
- Tinnitus may occur following a single exposure to high-intensity impulse noise, long-term exposure to repetitive impulses, long-term exposure to continuous noise, or exposure to a combination of impulses and continuous noise (Loeb and Smith, 1967; Chermak and Dengerink, 1987; Metternich and Brusis, 1999; Temmel et al., 1999; Stankiewicz et al., 2000; Mrena et al., 2002).”
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Single Judge Application; private medical exam; Savage v. Shinseki, 24 Vet.App. 259, 269 (2011) (holding that "pursuant to [38 U.S.C. §] 5103A(a), when a private examination report reasonably appears to contain information necessary to properly decide a claim but it is 'unclear'...and the information reasonably contained in the report otherwise cannot be obtained, VA has a duty to either (1) ask the private examiner to clarify the report, (2) request that the claimant to obtain the necessary information to clarify the report, or (3) explain why such clarification is not needed."); pain impairment affects a veteran's earning capacity; the Court reminds the Board that "[a] physician's failure to provide a diagnosis for the immediate cause of a veteran's pain does not indicate that the pain cannot be a functional impairment that affects a veteran's earning capacity," and that a current disability may be established in the absence of a diagnosis when the evidence shows that "her pain reaches the level of a functional impairment of earning capacity." Saunders v. Wilkie, 886 F.3d 1356, 1368-69 (Fed. Cir. 2018);
Designated for electronic publication onlyUNITED STATES COURT OF APPEALS FOR VETERANS CLAIMSNo. 19-8086ROSE M. HARMON, APPELLANT,V.DENIS MCDONOUGH,SECRETARY OF VETERANS AFFAIRS, APPELLEE.Before PIETSCH, Judge.MEMORANDUM DECISIONNote: Pursuant to U.S. Vet. App. R. 30(a),this action may not be cited as precedent.PIETSCH, Judge: Rose M. Harmon appeals, pro se, a September 17, 2019, Board ofVeterans' Appeals (Board) decision that...