Veteranclaims’s Blog

January 21, 2011

Single Judge Application of Buchanan, McLendon, C.F.R. 3.328, Impermissible Rejection of Lay Evidence

This decision touches on two important items, the right of a veteran to request an independent medical examination [IME] under C.F.R. 3.328 and the imperissible rejection of lay evidence.

Excerpts from Decision below:

“This Court has noted that the Board may violate Buchanan indirectly
when it relies on a medical opinion that impermissibly rejects the
veteran’s lay history solely because it is not corroborated by medical records. Buchanan, 451 F.3d at 1336; see also McLendon v. Nicholson, 20 Vet.App.79,85(2006)(concluding that the lack of actual evidence does not constitute substantive negative evidence).
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Lastly, Mr. Musolf contends that the Board erred in failing to afford him
an independent medical examination (IME). “When warranted by the medical complexity or controversy involved in a pending claim, an advisory medical opinion may be obtained from one or more medical experts who are not employees of VA.” 38 C.F.R. § 3.328(a) (2010). A written request for an IME may be initiated by the claimant or his representative and “must set forth in detail the reasons why the opinion is necessary.” 38 C.F.R. § 3.328(b).
Here,the Board determined that, although Mr. Musolf had requested an IME,”[t]he
appellant has failed to explain how the medical history in this case involves
medical complexity requiring the opinion of an independent expert.” R. at 146.
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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 09-0565
RICHARD L. MUSOLF, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before DAVIS, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
DAVIS, Judge: U.S. Army veteran Richard L. Musolf appeals through counsel
from a January 2, 2009, Board of Veterans’ Appeals (Board) decision that denied
his entitlement to service connection for a skin condition, to include as due to exposure to Agent Orange.1
For the reasons stated below, the Court will set aside the Board decision and remand the matter for further adjudication.
Mr.Musolf servedonactivedutyfromNovember1965to November1967,
including service in Vietnam. Mr. Musolf contends that while in service and consistently thereafter, he suffered from
a skin condition that he believes was a result of exposure to Agent Orange.
The Board decision here on appeal presumed exposure to Agent Orange, but as to Mr. Musolf’s contentions regarding continuity of symptomatology, the Board found him “less than credible.” Record (R.) at 150.
The Board also remanded a service-connection claim for headaches, to
include as secondary to service-
connected spinal meningitis. That issue is not before the Court at this
time. See 38 U.S.C. § 7266(a); Breeden v.
Principi, 17 Vet.App. 475, 478 (2004) (holding that a Board remand “does
not represent a final decision over which this
Court has jurisdiction”).
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I. ANALYSIS
A. Lay Statements
Mr. Musolf first argues that the Board erred in finding his contentions
regarding continuity of symptomatology not credible. Specifically, he contends that the Board erroneously required the presence of contemporaneous medical evidence in order to substantiate his claim.
The Board is required to assess the credibility and weight to be given to
evidence. Owens v. Brown, 7 Vet.App. 429, 433 (1995). In its role as fact finder, the Board must first “determin[e] whether lay evidence is credible in and of itself, i.e., because of possible bias, conflicting statements, etc.” Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). If the Board deems the lay
evidence “credible and ultimately competent, the lack of contemporaneous
medical evidence should not be an absolute bar to the veteran’s ability to prove his claim.” Id. at 1337. In rendering its determination, the Board must provide a statement of the reasons or bases for its determination, adequate to enable an appellant to understand the precise basis for its decision, and to facilitate
review in this Court. 38 U.S.C. § 7104(d)(1); see Allday v. Brown, 7 Vet.
App. 517, 527 (1995); Gilbert v. Derwinski, 1 Vet.App. 49, 56-57 (1990). To comply with this requirement, the Board must analyze the credibility and probative value of the evidence, account for the evidence it finds
persuasive or unpersuasive, and provide the reasons for its rejection of
any material evidence favorable to the claimant. Caluza v. Brown, 7 Vet.App. 498, 506 (1995), aff’d per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table).
In this case, the Board determined that Mr. Musolf was “competent to
report that he had skin abnormalities during service, and that he has had some skin abnormalities since service” (R. at 150).
The Board found, however, the statements less than credible because there
was no evidence of a skin disability during service or at separation, and because the first postservice reference to a disability occurred in January2000. Although the Board acknowledged that the lack of corroborating medical
evidence could not, in and of itself, render Mr. Musolf’s statements
incredible, and found that his testimony was not credible “when considered in conjunction with the record as a whole” (R. at 153), the Board appeared to rely on no other evidence besides a lack of contemporaneous medical evidence
when discounting Mr. Musolf’s credibility. This is a violation of Buchanan.

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The Board did, however, mention two VA examinations occurring in March
and October 2003 respectively. To the extent that the Board relied on these opinions
to discount Mr. Musolf’s credibility, that determination too was in error. Both examinations relied, at least in part, on the lack of a skin condition either being noted or treated in service, and because neither provided an opinion as to Mr. Musolf’s statements of continuity after service, the Board had no medical basis on which to evaluate the lay evidence. This Court has noted that the Board may
violate Buchanan indirectly when it relies on a medical opinion that impermissibly rejects the veteran’s lay history solely because it is not corroborated by medical records. Buchanan, 451 F.3d at 1336; see also McLendon v.Nicholson, 20 Vet.App. 79, 85(2006)(concluding that the lack of actual evidence does not constitute substantive negative evidence).
Consequently, the Court finds that the
Board provided inadequate rationale for its rejection of Mr. Musolf’s statements as to continuity of symptomatology.

B. Medical Examinations
Mr. Musolf next contends that the Board erred by relying on the two VA
examinations because (1) neither was conducted by a dermatologist, (2) the March 2003 examination considered only a skin condition on Mr. Musolf’s face, and (3) the October 2003 examination provided insufficient rationale. As explained below, while the Court finds no merit in Mr. Musolf’s first argument, the Court is persuaded by the latter two.
As for Mr. Musolf’s contention that the examinations should have been
conducted by a dermatologist,the Court is unpersuaded that the failure to do so renders the examinations inadequate.
As the Board noted, there is no evidence that the examiners were not competent to perform the examinations. See Rizzo v. Shinseki, 580 F.3d 1288, 1291 (Fed. Cir. 2009) (finding the Board entitled to presume the competence of a VA examiner in the absence of evidence to the contrary); Cox v. Nicholson, 20 Vet.App. 563, 569 (2007) (“VA may satisfy its duty to assist by providing a medical examination conducted by one able to provide ‘competent medical evidence’ under [38 C.F.R.] § 3.159(a)(1).”). In that regard, to the extent that VA previously requested an examination
by a dermatologist, the Court finds any such failure to do so in this
instance to be harmless. See 38 U.S.C. § 7261(b)(2); Conway v. Principi, 353 F.3d 1369, 1374-75 (Fed. Cir. 2004).
With regard to the March 2003 examination, despite indications elsewhere
in the record that he suffered from a skin disorder on his face and body(see, e.g., R. at 393, 563), the examiner limited
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the examination to Mr. Musolf’s face before diagnosing “facial rosacea.”
Because the examiner
limited his inquiry to Mr. Musolf’s face, the Court finds the Board erred
in its reliance on the examination to deny service connection for Mr. Musolf’s overall skin condition.
Moreover, although the examiner concluded that the rosacea “cannot be
related to the service without the resort to speculation, . . . to my knowledge there is no established association between facial rosacea and exposure to herbicides” (R. at 486), the examiner provided no explanation of the
rationale or research analyzed in order to render the opinion. This Court
has stated that the Secretary must ensure that any medical opinion, including one that states no conclusion can be reached without resorting to speculation, is “based on sufficient facts or data.” Therefore, it must be clear . . . that the examiner has indeed considered “all procurable and assembled data” . . . . When the record leaves this issue in doubt, it is the Board’s duty to remand for further development. Jones (Michael) v. Shinseki, 23 Vet.App. 382, 390 (2010) (citations
omitted). The Court thus finds that the Board similarly erred in its reliance on the examination without requiring further explanation.
VA did, however, provide an additional examination in October 2003. Mr.
Musolf contends that this examination is inadequate as well, because it provided
insufficient rationale for its determination that Mr. Musolf’s skin condition was not related to service.
Specifically, the examiner concluded that the diagnosis of eczema of the face, neck, and right lower extremity was unlikely related to Agent Orange exposure.
The examiner provided the following rationale for its determination: “We were unable to find if he was treated for eczema in service. If he was, it would
be likely that this is related. If not, then it is unlikely.” R. at 341.
Not only is the examiner’s analysis conclusory, it also requires in-service “treatment” rather than “incurrence,” and, without further explanation, gives no credence to Mr. Musolf’s lay statements regarding in-service incurrence and treatment. See Nieves-Rodriguez v. Peake, 22 Vet.App. 295 (2008) (
requiring medical opinions to be supported by rationale); see also Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004)(requiring a service-connection claim to be supported by, among other things, evidence demonstrating “an in-service incurrence or aggravation of a disease or injury”); Buchanan, supra.
For these reasons, the Court finds that the Board erred in its reliance on
the March and October 2003 VA medical examination reports, and the Board should have
returned them for
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clarification. See Bowling v. Principi, 15 Vet.App. 1, 12 (2001) (citing
38 C.F.R. § 19.9(a) (2000) when holding that the Board has a duty to remand a case “[i]f further evidence or clarification of the evidence or correction of a procedural defect is essential for a proper appellate decision”).
Accordingly, the Court will remand the matter to the Board to obtain a new
examination. See Caluza, Allday, and Gilbert, all supra.

C. Independent Medical Examination
Lastly, Mr. Musolf contends that the Board erred in failing to afford him
an independent medical examination (IME). “When warranted by the medical complexity or controversy involved in a pending claim, an advisory medical opinion may be obtained from one or more medical experts who are not employees of VA.” 38 C.F.R. § 3.328(a) (2010). A written request for an IME may be initiated by the claimant or his representative and “must set forth in detail the reasons why the opinion is necessary.” 38 C.F.R. § 3.328(b).

Here,the Board determined that, although Mr. Musolf had requested an IME,”[t]he
appellant has failed to explain how the medical history in this case involves
medical complexity requiring the opinion of an independent expert.” R. at 146. In response, Mr. Musolf cites “several paragraphs of the principal brief to demonstrat[e] that there exists either sufficient medical complexity and/or
question to warrant an examination.” Appellant’s Reply Br. at 5. Because
this communication was not before the Board, and because the Court’s review of the record reveals no other documents providing an explanation sufficient to render the Board’s conclusion erroneous, the Court is unpersuaded by Mr. Musolf’s argument in this regard.

II. CONCLUSION
On consideration of the foregoing, the Court SETS ASIDE the Board’s
January 2, 2009, decision and REMANDS Mr. Musolf’s service-connection claim for a skin condition for further proceedings consistent with this decision. On remand, Mr. Musolf will be free to submit additional evidence and argument in support of his claim, and the Board is required to consider any such evidence and argument. See Kay v. Principi, 16 Vet.App. 529, 534 (2002). A final decision by the
Board following the remand herein ordered will constitute a new decision
that, if adverse, may be appealed to this Court on the filing of a new Notice of Appeal with the Court not later than 120 days
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after the date on which notice of the Board’s new final decision is
mailed to the appellant. See Marsh v. West, 11 Vet.App. 468, 472 (1998).
DATED: January 5, 2011
Copies to:
Glenn R. Bergmann, Esq.
VA General Counsel (027)
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