Moore v. Shinseki

United States Court of Appeals for the Federal Circuit

                                     2007-7306

                               DWAYNE A. MOORE,

                                                             Claimant-Appellant,
                                          v.

                                ERIC K. SHINSEKI,
                            Secretary of Veterans Affairs,

                                                             Respondent-Appellee.


       Daniel P. Graham, Wiley Rein LLP, of Washington, DC, argued for claimant-
appellant.

       Claudia Burke, Senior Trial Attorney, Commercial Litigation Branch, Civil
Division, United States Department of Justice, of Washington, DC, argued for
respondent-appellee. With her on the brief were Gregory G. Katsas, Assistant Attorney
General, Jeanne E. Davidson, Director, and Martin F. Hockey, Jr., Assistant Director.
Of counsel on the brief was David J. Barrans, Deputy Assistant General Counsel,
Department of Veterans Affairs, of Washington, DC.

Appealed from: United States Court of Appeals for Veterans Claims

Judge Alan G. Lance, Sr.
 UNITED STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT



                                   2007-7306




                                DWAYNE A. MOORE,

                                                            Claimant-Appellant,

                                          v.

                  ERIC K. SHINSEKI, Secretary of Veterans Affairs,

                                                           Respondent-Appellee.


Appeal from the United States Court of Appeals for Veterans Claims in 04-2386, Judge
Alan G. Lance, Sr.


                             ______________________

                            DECIDED: February 10, 2009
                            _______________________




Before MAYER and DYK, Circuit Judges, and HUFF,* District Judge.

MAYER, Circuit Judge.

      Dwayne A. Moore appeals the judgment of the United States Court of Appeals

for Veterans Claims (“Veterans Court”) which affirmed a Board of Veterans’

___________________
      ∗
        Honorable Marilyn L. Huff, District Judge, United States District Court for the
Southern District of California, sitting by designation.
Appeals decision denying his request for a higher disability rating.      See Moore v.

Nicholson, 21 Vet. App. 211 (2007) (“2007 Veterans Court Decision”). Because we

conclude that the Department of Veterans Affairs (“VA”) erred in failing to obtain

Moore’s service medical records before making a determination as to the severity of his

psychiatric disability, we reverse and remand.

                                    BACKGROUND

      Moore served on active duty in the military from May 1988 to February 1991.

While in the service, Moore made superficial lacerations to his wrists and was

hospitalized in the psychiatric ward of Tripler Army Medical Center (“Tripler”) from

December 29, 1990, to January 3, 1991. Following his discharge, a staff psychiatrist

concluded that Moore suffered from “a severe personality disorder which render[ed] him

a danger to himself and/or others” and recommended that he be separated from the

service on an “expeditious” basis. Soon thereafter, Moore was given a “general medical

discharge” from the military. In September 1992, Moore filed a claim seeking service-

connected disability benefits for his psychiatric disorder. The VA Regional Office (“RO”)

initially denied his claim. In 1999, however, after a series of psychiatric evaluations,

Moore was granted service-connected benefits and assigned a 10 percent disability

rating, effective September 16, 1992.      In evaluating the extent of his psychiatric

disability, the RO noted that prior to his discharge from the service, Moore “was

reported to have gone ‘berserk’ and to have made superficial lacerations on his wrists.”

The RO concluded, however, that a disability rating higher than 10 percent was not

warranted because a “VA examination dated in November of 1996 revealed that the




2007-7306                                  2
event leading up to the veteran’s discharge was a single episode that was now

resolved.”

       Moore then appealed to the board. In August 2004, the board increased his

disability rating to 30 percent for the period from January 27, 1997, to August 7, 2002,

and to 50 percent for the period after August 8, 2002. The board held, however, that

Moore was not entitled to a disability rating greater than 10 percent for the period from

September 16, 1992, to January 26, 1997, concluding that he suffered from only “mild

social and industrial impairment” during that period.

       On appeal to the Veterans Court, Moore challenged the 10 percent disability

rating for the period from September 16, 1992, to January 26, 1997, the 30 percent

rating for the period from January 27, 1997, to August 7, 2002, and the 50 percent

rating for the period beginning on August 8, 2002. He argued that the VA had an

affirmative obligation, pursuant to 38 U.S.C. § 5103A, to obtain the medical records

from his hospitalization at Tripler prior to making any rating determinations. In Moore’s

view, such records would have given the VA “a more complete picture” of the extent of

his psychiatric disability. 2007 Veterans Court Decision, 21 Vet. App. at 214.

       The Veterans Court rejected Moore’s contentions. It held that the VA was not

obligated to obtain his Tripler medical records because even if those records had been

obtained they “would not help his claim.” Id. at 215. The relevant issue, according to

the court, was the extent of Moore’s disability in the period after September 16, 1992,

and in order to resolve that issue the board properly relied upon evidence relating to his

disability during that period.   The court further noted that the record contained a

“description of [Moore’s] in-service symptoms” that was prepared eleven days after he




2007-7306                                   3
was discharged from Tripler and that he had failed to establish how the Tripler

hospitalization records would be “meaningfully different” from the records the VA had

already obtained. Id. at 216. Although the court acknowledged that it did not know “the

precise content” of the Tripler hospitalization records, it concluded that failure to obtain

them did not constitute reversible error since the record contained “substantial direct

evidence” of the extent of Moore’s psychiatric disability in the period after September

16, 1992. Id. at 217.

       Judge Kasold dissented, asserting that the Tripler medical records were “relevant

on their face” and should have been obtained by the VA prior to making any rating

determination.   2007 Veterans Court Decision, 21 Vet. App. at 221 (Kasold, J.,

dissenting).   He noted that the VA was required, pursuant to 38 C.F.R. § 4.1, to

evaluate a disability “in relation to its history” and that the VA could not have properly

evaluated Moore’s claim for disability compensation because “a significant part of [his]

medical history relevant to his psychiatric disability is simply missing.” 2007 Veterans

Court Decision, 21 Vet. App. at 222 (Kasold, J., dissenting).

       Moore then timely appealed. We have jurisdiction pursuant to 38 U.S.C. § 7292.

                                      DISCUSSION

       This court has authority to review decisions of the Veterans Court regarding the

“validity of any statute or regulation or any interpretation thereof” and to “interpret

constitutional and statutory provisions, to the extent presented and necessary to a

decision.” 38 U.S.C. § 7292(c); see Flores v. Nicholson, 476 F.3d 1379, 1381 (Fed. Cir.

2007). We review the interpretation of statutory provisions without deference. Stanley

v. Principi, 283 F.3d 1350, 1354 (Fed. Cir. 2002); Howard v. Gober, 220 F.3d 1341,




2007-7306                                    4
1343 (Fed. Cir. 2000). “In cases where the material facts are not in dispute and the

adoption of a particular legal standard would dictate the outcome of a veteran’s claim,

we treat the application of law to undisputed fact as a question of law.” Conley v.

Peake, 543 F.3d 1301, 1304 (Fed. Cir. 2008); see Groves v. Peake, 524 F.3d 1306,

1310 (Fed. Cir. 2008).

                                                 I.

       Moore argues that the VA had an affirmative obligation to obtain and evaluate the

records of his hospitalization at Tripler prior to assigning him a disability rating. He

contends that the Veterans Court misinterpreted 38 U.S.C. § 5103A when it held that

service medical records are not relevant if they pre-date the period for which a veteran

seeks disability compensation. We agree.

       Section 5103A 1 requires the VA to “make reasonable efforts to assist a claimant

in obtaining evidence necessary to substantiate the claimant’s claim.” An integral part

of this “duty to assist” is the VA’s obligation to obtain all of a veteran’s relevant service

medical records before adjudicating a claim for disability compensation:

       In the case of a claim for disability compensation, the assistance provided
       by the Secretary . . . shall include obtaining the following records if
       relevant to the claim: (1) The claimant’s service medical records and, if the
       claimant has furnished the Secretary information sufficient to locate such



       1
         In 1992, when Moore originally submitted his claim for benefits, the VA’s duty to
assist veterans was codified in 38 U.S.C. § 5107(a), which provided that “[t]he Secretary
shall assist . . . a claimant in developing the facts pertinent to his or her claim.” When
Congress enacted section 5107(a), it “codified the VA’s obligation to assist claimants,
which had existed in 38 C.F.R. § 3.103(a) since 1972.” Cook v. Principi, 318 F.3d 1334,
1337-38 n.4 (Fed. Cir. 2002) (en banc). The VA’s duty to assist claimants is now
codified at 38 U.S.C. § 5103A, which was added by the Veterans Claim Assistance Act
of 2000, Pub. L. No. 106-475, 114 Stat. 2096, 2097. However, 38 C.F.R. § 3.103(a),
the regulation setting forth the duty to assist, remains unchanged. See Cook, 318 F.3d
at 1338 n.4.


2007-7306                                    5
       records, other relevant records pertaining to the claimant’s active military,
       naval, or air service that are held or maintained by a governmental entity.

38 U.S.C. § 5103A(c)(1).

       The Veterans Court held that the VA was not obligated to obtain and evaluate the

records of Moore’s hospitalization at Tripler before making a determination as to the

degree of his psychiatric disability. In the court’s view, the only pertinent issue was the

degree of Moore’s disability after September 16, 1992, the date he filed his initial claim

for benefits, and the Tripler medical records were not relevant because they pre-dated

the period for which he sought disability compensation:

       [T]he Court is not persuaded that the [service medical records] that
       [Moore] alleges should have been obtained would be relevant to any
       disputed issue, even if they were obtained. In other words, even if the
       [service medical records] were obtained and indicated that [Moore]
       displayed a symptom in service that was not observed in any of the
       postservice medical examinations, such records would not help his claim.
       He is simply not entitled to disability compensation for symptoms he
       experienced in service where those symptoms did not persist into the
       period for which he has been awarded compensation. The issue on
       appeal is what level of disability did [Moore] experience after September
       16, 1992? To answer that question, the Board properly obtained and
       relied upon medical evidence from the period after September 16, 1992.

2007 Veterans Court Decision, 21 Vet. App. at 215 (citation omitted); see also Holliday

v. Nicholson, No. 05-2899, 2007 U.S. App. Vet. Claims LEXIS 1225 (Vet. App. July 31,

2007) (citing the Veteran’s Court decision in the present case for the proposition that

‘‘when only disability rating is at issue, medical records preceding [the] time period for

which compensation has been awarded are not relevant”).

       The Veterans Court erred when it determined that Moore’s service medical

records were not relevant because they pre-dated the period for which he sought

disability compensation.    By regulation, the VA is specifically required to assess a

disability “in relation to its history” when making disability ratings determinations:


2007-7306                                     6
       Over a period of many years, a veteran’s disability claim may require
       reratings in accordance with changes in laws, medical knowledge and his
       or her physical or mental condition. It is thus essential, both in the
       examination and in the evaluation of disability, that each disability be
       viewed in relation to its history.

38 C.F.R. § 4.1.

       “Different examiners, at different times, will not describe the same disability in the

same language” and “a change for the better or worse” in a veteran’s condition “may not

be accurately . . . described” in a single report. See 38 C.F.R. § 4.2. Accordingly, “[i]t is

the responsibility of the rating specialist to interpret reports of examination in the light of

the whole recorded history, reconciling the various reports into a consistent picture so

that the current rating may accurately reflect the elements of disability present.” Id.; see

also Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991) (evaluating a current disability

in light of its complete recorded history “operate[s] to protect claimants against adverse

decisions based on a single, incomplete or inaccurate report”).

       Evaluation of a disability in light of its history is particularly important in the

context of psychiatric disorders. Because “psychiatric disorders abate and recur,” the

VA is obligated to evaluate them “not by reference to isolated periods of activity or

remission, but by assessing the effects of the disease or injury over the history of the

condition.”   Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002).              Thus, VA

regulations specifically provide that a rating for a psychiatric disorder must be “based on

all the evidence of record that bears on occupational and social impairment rather than

solely on the examiner’s assessment of the level of disability at the moment of the

examination.” 38 C.F.R. § 4.126(a).

       Although Moore is only entitled to disability compensation for the period after

September 16, 1992, the date he filed his original claim for benefits, the clear mandate


2007-7306                                     7
of VA regulations is that a veteran’s disability must be evaluated in light of its whole

recorded history. Moore seeks disability compensation for “the very same disability”

that led to his hospitalization in the psychiatric ward at Tripler and his “[e]xpeditious

administrative separation” from the military. The Tripler hospitalization occurred less

than two years before the period for which he seeks disability compensation, and the

records of his lengthy in-patient stay presumably contain both detailed information

regarding Moore’s behavior and assessments from physicians regarding the severity of

his underlying psychiatric disorder. See 2007 Veterans Court Decision, 21 Vet. App. at

221 (Kasold, J., dissenting) (noting that the records of Moore’s Tripler hospitalization

“likely are far more descriptive of his disability than other, non-hospitalization records”).

Without obtaining and evaluating the Tripler records, the VA could not make a fully

informed decision regarding the degree of Moore’s psychiatric impairment.                  Cf.

Schafrath, 1 Vet. App. at 594 (“Whether or not a disability has improved cannot be

determined without reference to prior records detailing the history of the condition.”).

                                                 II.

       On appeal, the government acknowledges that the Veterans Court erred to the

extent it held that service medical records are not relevant if they pre-date the time for

which a veteran is seeking disability compensation. See Br. of Respondent-Appellee at

8 (“[I]nsofar as the Veterans Court’s decision suggests that medical records pre-dating

the claim are categorically irrelevant, that suggestion is incorrect and could benefit from

clarification upon remand.”). The government asserts, however, that the VA’s failure to

obtain Moore’s Tripler medical records was harmless error since: (1) the VA considered

other documentation which summarized the Tripler hospitalization, and (2) Moore would




2007-7306                                    8
not have obtained a higher disability rating even if the VA had obtained and evaluated

the Tripler records. We find neither argument persuasive.

                                               A.

      When evaluating Moore’s psychiatric disability, the VA considered five pages of

medical records produced shortly after he was discharged from Tripler. The fact that

the VA considered some of the relevant records, however, does not excuse the fact that

it failed to consider all of them. As discussed above, the VA is statutorily required to

obtain all of the veteran’s relevant service medical records, not simply those which it

can most conveniently locate. See 38 U.S.C. § 5103A(c). Indeed, pursuant to 38

C.F.R. § 3.159(c)(2), the VA is specifically required to “make as many requests as are

necessary to obtain” records that are in the possession of the federal government, such

as a veteran’s service medical records.

      The record on appeal does not establish that the VA made any effort to obtain

the service medical records after Tripler failed to produce them. 2 At oral argument,

however, Moore’s attorney, Daniel P. Graham, announced that he had just the day

before obtained a copy of the Tripler records. Graham explained that the records had

been “lost in the bowels” of the National Personnel Records Center (“NPRC”) and that

he had secured them only after repeated requests to both Tripler and the NPRC. We

commend Graham, serving as counsel pro bono, for his tenacious efforts on his client’s

behalf. We are mindful, however, that many veterans must navigate the “labyrinthine

corridors of the veterans’ adjudicatory system” without the assistance of counsel. See

      2
         Although the record contains a “Discharge Note” showing that Moore was
discharged from Tripler on January 3, 1991, it is entirely possible that Moore was given
a copy of this document when he left the hospital and that it was he, rather than the VA,
who put a copy of it in the record.


2007-7306                                  9
Comer v. Peake, No. 2008-7013, 2009 U.S. App. LEXIS 668, at *16 (Fed. Cir. Jan. 16,

2009). Because many veterans lack the knowledge and resources necessary to locate

relevant records, Congress has appropriately placed the burden on the VA to ensure

that all relevant service medical records are obtained and fully evaluated.       See 38

U.S.C. § 5103A(c)(1); Hayre v. West, 188 F.3d 1327, 1331 (Fed. Cir. 1999), overruled

on other grounds, Cook, 318 F.3d at 1338-40 (The VA must “make all possible efforts to

obtain and assess records relevant to an evaluation of [a veteran’s] disability” (citation

and internal quotation marks omitted) (emphasis in original)). It is shameful that the VA

yet again failed in its duty to assist the veteran and, at best, poor judgment by the

Department of Justice in defending the VA’s actions.

                                                B.

       We likewise reject the government’s assertion that Moore would not have

obtained a higher disability rating even if the Tripler records had been obtained and

evaluated. We fail to understand how the government, without examining the Tripler

records, can have any idea as to whether they would, or would not, support Moore’s

claim for an increased disability rating. See McGee v. Peake, 511 F.3d 1352, 1358

(Fed. Cir. 2008) (Section 5103A “simply does not excuse the VA’s obligation to fully

develop the facts of [a] claim based on speculation as to the dispositive nature of

relevant records.”).

       Furthermore, as Judge Kasold correctly noted, the Tripler records are “relevant

on their face” because Moore is seeking disability compensation for the same disability

that led to his in-patient stay in the Tripler psychiatric ward.   2007 Veterans Court

Decision, 21 Vet. App. at 221 (Kasold, J., dissenting).         Given that Moore was




2007-7306                                  10
hospitalized after an apparent suicide attempt and was thereafter deemed unfit for

retention in the military, the records of his hospitalization may well contain evidence that

he suffers from a serious, and perhaps chronic, psychiatric disorder. Such records

could potentially call into question the VA’s conclusion that Moore suffered from only

“mild social and industrial impairment” and was therefore entitled to no more than a 10

percent disability rating in the period after September 1992. Thus, contrary to the

government’s assertions, the Tripler records could well contain evidence sufficient to

establish Moore’s entitlement to increased disability benefits.

                                         CONCLUSION

       Accordingly, the judgment of the United States Court of Appeals for Veterans

Claims is reversed and the case remanded for further proceedings consistent with this

opinion.

                                             COSTS

       Costs to appellant.

                                 REVERSED AND REMANDED




2007-7306                                   11