Dwayne A. Moore v. R. James Nicholson
2007 U.S. Vet. App. LEXIS 697, 2007 WL 1412293, 21 Vet. App. 211 (2007)
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Rule of Law:
The Department of Veterans Affairs (VA) is not obligated by its duty to assist claimants in obtaining service medical records if those records are not relevant to the specific period for which an increased disability compensation is sought. Furthermore, medical examiners are not required to offer opinions on a claimant's general employability unless the claim explicitly involves total disability based on individual unemployability (TDIU).
Facts:
- Dwayne A. Moore served on active duty in the U.S. Army from 1988 to 1991.
- In December 1990, Moore experienced a psychological episode.
- In January 1991, Moore was hospitalized on a psychiatric ward at Tripler Army Hospital for a personality disorder.
- Moore was diagnosed with a dependent personality disorder and recommended for separation from service, which occurred in February 1991.
- Moore filed a claim for service connection and benefits for a personality disorder in September 1992.
- In July 1999, Moore was granted service connection for an atypical affective disorder.
- In August 1999, Moore was assigned a 10% disability rating, effective September 16, 1992.
- Moore's disability rating was later increased to 30% effective August 8, 2002.
Procedural Posture:
- Dwayne A. Moore applied for service connection and benefits for a personality disorder in September 1992 with the VA.
- A VA regional office denied service connection in a January 1993 rating decision.
- In July 1999, the VA granted Moore service connection for an atypical affective disorder.
- In August 1999, Moore was assigned a 10% disability rating, effective September 16, 1992.
- Moore appealed the initially assigned disability rating.
- In an October 2002 Supplemental Statement of the Case, the VA granted Moore a 30% disability rating, effective August 8, 2002.
- In August 2004, the Board of Veterans' Appeals (Board) issued a decision increasing his disability rating to 30% from January 27, 1997, to August 7, 2002, and to 50% from August 8, 2002, forward.
- Moore appealed the August 2004 Board decision to the U.S. Court of Appeals for Veterans Claims.
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Issue:
Does the Department of Veterans Affairs' (VA) duty to assist a claimant require it to obtain in-service medical records predating the period for which increased disability compensation is sought when service connection is already established, and must VA medical examinations include opinions on a claimant's general employability in non-Total Disability Based on Individual Unemployability (TDIU) claims?
Opinions:
Majority - Lance
No, the Department of Veterans Affairs' (VA) duty to assist a claimant does not require it to obtain in-service medical records that predate the period for which increased disability compensation is sought when service connection is already established, and VA medical examinations are not mandated to include opinions on a claimant's general employability in non-Total Disability Based on Individual Unemployability (TDIU) claims. The Court reasoned that the Secretary’s duty to assist under 38 U.S.C. § 5103A(a)(1) is not unlimited and only extends to obtaining "relevant records" (38 U.S.C. § 5103A(b)(1), (c)(1)). Since Mr. Moore had already been granted service connection, the dispute centered on the appropriate disability rating for the period after September 16, 1992. Records from January 1991 were not relevant to symptoms experienced after September 1992, as a claimant is not entitled to compensation for symptoms experienced in service that did not persist into the period for which compensation is awarded. The Board properly relied on contemporaneous medical evidence from the period in question. Furthermore, even if the records were deemed relevant, Mr. Moore failed to demonstrate prejudice, given the existing "copious direct evidence" of his post-service symptoms. The Court distinguished Fenderson v. West, noting that Mr. Moore's claim for benefits began in August 1992, not prior to his discharge, rendering earlier records less critical. Regarding the adequacy of medical examinations, the Court affirmed that while medical examiners must describe the "effects of disability upon the person’s ordinary activity" (38 C.F.R. § 4.10) for rating purposes, they are not required to offer opinions on a claimant's general employability. That responsibility falls primarily to rating specialists (38 C.F.R. § 4.2). Precedents like Friscia v. Brown and Beaty v. Brown, which required medical opinions on work ability, were limited to claims for Total Disability Based on Individual Unemployability (TDIU), a claim Mr. Moore was not pursuing. The medical examinations in this case were found adequate because they discussed how Mr. Moore's condition affected his ordinary activities, including work, sufficiently for the rating specialist to apply the rating code.
Dissenting - Kasold
Yes, the Department of Veterans Affairs' (VA) duty to assist a claimant does require it to obtain in-service medical records that relate to the veteran's medical history for rating purposes, and the court should not speculate on their lack of relevance when they have not been obtained and reviewed. Dissenting Judge Kasold argued that the Secretary has a statutory duty to obtain all relevant service medical records (38 U.S.C. § 5103A(c)) or to inform the claimant of inability to do so. The missing in-service hospitalization records for a psychiatric condition were "generally relevant on their face" to Mr. Moore's psychiatric disability claim. VA regulations (38 C.F.R. § 4.1) mandate that a disability be "viewed in relation to its history" for rating purposes, requiring a "thorough and conscientious study" of evidence (38 C.F.R. § 4.3). The majority, by concluding the records were not relevant without knowing their contents, performed a de novo relevance finding which was inappropriate. Having some relevant evidence does not negate the importance of other potentially more descriptive missing evidence, especially records from a week-long hospitalization. Prejudice, in the absence of the actual documents, is unquantifiable, and the Court should not speculate on what the outcome might have been (Wagner v. United States). The majority also misapplied Fenderson v. West by asserting that the current level of disability is of "primary importance" in an initial disability rating, which Fenderson explicitly rejected. Regarding medical examinations, the dissent agreed with the majority that the examinations met regulatory requirements but noted that the discussion rejecting the applicability of Friscia and Beaty was unnecessary (obiter dictum), as those cases supported the need for medical opinions on work impact when the rating criteria specifically depend on such impact.
Analysis:
This case clarifies the scope and limitations of the VA's duty to assist under 38 U.S.C. § 5103A, emphasizing that relevance for obtaining records is primarily tied to the specific period for which increased benefits are sought, rather than a general medical history, once service connection is established. It also reinforces the distinct roles of medical examiners and rating specialists, particularly concerning general employability opinions, limiting the applicability of precedents like Friscia and Beaty to Total Disability Based on Individual Unemployability (TDIU) claims. This means veterans seeking increased disability ratings may face challenges compelling the VA to obtain older medical records if those records predate the compensation period and current evidence is deemed sufficient, and they must be precise in the type of claim to ensure the correct standard for medical examinations is applied.
