Veteranclaims’s Blog

January 25, 2011

Insufficient Reasons and Bases, Conclusory Statement by Board

Excerpt from Decision below:
Mr. Carrio argues that the Board did not provide an adequate statement of
reasons or bases for its finding that he was not entitled to an effective date prior to May 25, 2000, for his service-connected tinnitus. The Court agrees. The Board’s finding that Mr. Carrio is not entitled to an earlier effective date consists of three very short paragraphs (only five sentences, total) that contain
no analysis whatsoever. The Board merely makes the conclusory statement that
“[t]here is of record no communication from the appellant prior to May 25, 2000, which could serve as a claim of service connection for tinnitus.” R. at 16. The Board does not explain this statement or why none of the communications of record could not serve as a claim for VA benefits.
Accordingly, the Court concludes that the Board’s conclusory analysis frustrates judicial review.
Based on the foregoing, the Court concludes that the Board’s statement of reasons or bases for its decision finding that Mr. Carrio was not entitled to an earlier effective date prior to May 25, 2000, is inadequate. See Gilbert, 1 Vet.App. at 57.

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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 09-0042
NORMAN CARRIO, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before HAGEL, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
HAGEL, Judge: Norman Carrio appeals through counsel an October 22, 2008,
Board of
Veterans’ Appeals (Board) decision that denied entitlement to VA benefits
for degenerative arthritis
of the lumbar spine, shoulders, knees, and ankles; and entitlement to an
effective date prior to May
25, 2000, for the award of VA benefits for Previous DocumenttinnitusNext Hit.1
The Court has jurisdiction pursuant to
38 U.S.C. §§ 7252(a) and 7266(a) to review the October 2008 Board
decision. Because the Board
did not provide an adequate statement of reasons or bases for its finding
that Mr. Carrio was not
entitled to VA benefits for degenerative arthritis of the spine or its
finding that he was not entitled
to an earlier effective date for his service-connected Previous HittinnitusNext Hit, the Court
will vacate those portions of
The October 2008 Board decision also remanded Mr. Carrio’s claims for
entitlement to VA benefits for vision
loss and entitlement to increased staged ratings for post-traumatic stress
disorder. Therefore, these issues are not before
the Court at this time. See 38 U.S.C. § 7266(a); 38 C.F.R. § 20.1100(b) (
2010) (“A remand is in the nature of a
preliminary order and does not constitute a final decision of the Board);
see also 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.”).
The October 2008 Board decision also denied Mr. Carrio’s claims for
entitlement to effective date prior to December
1, 1998, for the award of VA benefits for post-traumatic stress disorder;
an effective date prior to December 1, 1998,
for the award of VA benefits for hearing loss in the right ear; an
effective date prior to October 29, 2001, for the award
of VA benefits for diabetes mellitus; and an effective date prior to
October 29, 2001, for the award of VA benefits for
peripheral neuropathy of all four extremities. Mr. Carrio does not make
any arguments contesting these assigned
effective dates; accordingly, the Court deems any arguments pertaining to
these issues to be abandoned. See Grivois v.
Brown, 6 Vet.app. 136, 138 (1994) (issues or claims not argued on appeal
are considered abandoned).
1

the October 2008 Board decision and remand the matters for readjudication
consistent with this
decision. Because the Board relied on an adequate VA medical examination,
the Court will affirm
the remainder of the October 2008 Board decision.
I. FACTS
Mr. Carrio served on active duty in the U.S. Army from May 1965 to May
1968, including
service in Viet Nam, where he was awarded the Bronze Star Medal for
heroism.
In May1984, Mr. Carrio filed a claim for VA benefits, stating “Iwould like
to get myhearing
connected.” Record (R.) at 2644. In October 1984, Mr. Carrio underwent a
VA audiological
examination. The examiner reported that Mr. Carrio had a history of
Previous HittinnitusNext Hit and hearing loss since
being exposed to loud noise during service. In a November 1984 rating
decision, a VA regional
office denied entitlement to VA benefits for hearing loss.
In May 2000, Mr. Carrio filed a claim for VA benefits for hearing loss,
Previous HittinnitusNext Hit, and
degenerative arthritis of the spine, knees, ankles, and shoulders, stating
that he suffered physical
trauma and noise exposure during combat in Viet Nam. Mr. Carrio was
afforded a VA audiological
examination in August 2001. The examiner diagnosed Mr. Carrio with
Previous HittinnitusNext Hit and opined that it
was caused by noise exposure during service. In a September 2002 rating
decision, the regional
office awarded Mr. Carrio VA benefits for Previous HittinnitusNext Hit, effective May 25, 2000,
the date his claim was
received.
The September 2002 rating decision also denied entitlement to VA benefits
for
degenerative arthritis of the spine, knees, ankles, and shoulders because
there was no evidence of an
injury in service and no evidence relating Mr. Carrio’s current
disabilities to service. Mr. Carrio
appealed the effective date assigned for his service-connected Previous HittinnitusNext Hit
and the denial of entitlement
to benefits for degenerative arthritis of the spine, knees, ankles, and
shoulders.
In August 2005, Dr. Thomas B. Horvath, chief of staff at the Houston,
Texas, VA medical
center, submitted a letter stating that Mr. Carrio “has . . . spinal
osteoarthritis very likely associated
with blast injuries he recieved during the intense shelling of his base in
Viet[ N]am.” R. at 1187.
In December 2007, Mr. Carrio was afforded a VA joints examination. The
examiner
indicated that he reviewed Mr. Carrio’s service medical records and claims
file. The examiner noted
Mr. Cario’s statements that the onset of these conditions was in the
service, that he self-medicated
2

because he was the medic, and that he subsequently treated his conditions
with over-the-counter
medications until finally seeking medical treatment many years later. The
examiner performed a
physical examination of Mr. Carrio’s spine, knees, ankles, and shoulders.
The examiner then opined
that Mr. Carrio’s degenerative arthritis was less likely as not caused by
or a result of the effects of
the explosions noted in his records while serving in Viet Nam. The
examiner explained that Mr.
Carrio’s current conditions were more likely related to the aging process
and genetic predisposition
because there was no evidence of onset of chronic joint pain or a spinal
condition immediately
following military service. The examiner noted that documentation of such
injuries did not take
place until the 1990’s and that Mr. Carrio reported that he had been in
several car accidents after
service, but that there was no documentation available to show what types
of injuries he suffered.
In September 2008, Mr. Carrio submitted a letter from Dr. Horvath dated
September 2000.
In the letter, Dr. Horvath states that “[s]tarting in the early 1990’s Mr.
Carrio also adds degenerative
spinal arthritis and problems with his knees and ankles to the list he
attributes to service . . .
However[,] x-rays in 1990 of his knees and ankles were normal.” R. at 41.
In the October 2008 Board decision currently on appeal, the Board found
that degenerative
joint disease of the spine, knees, ankles, and shoulders did not begin
during service or within one
yearof separation from service. The Board explained that there were no
indications of spinal or joint
problems on Mr. Carrio’s separation examination and that, when he reported
such problems many
years later at a 1984 VA examination, he indicated that the pain was of
recent origin. The Board
acknowledged Mr. Carrio’s contention that these conditions are related to
his combat in Viet Nam
and that he has reported continuous symptoms, but ultimately found that
the evidence of record did
not support a finding of entitlement to VA benefits. The Board also found
that “the only notations
by VA treating physicians merely refer to [Mr. Carrio]’s statements that
these conditions had their
onset during service.” R. at 13. As to Mr. Carrio’s argument that he was
entitled to an effective date
prior to May 25, 2000, for the award of VA benefits for Previous HittinnitusNext Hit, the
Board found that there was no
record of any communication from Mr. Carrio prior to that date which could
be construed as a claim
for VA benefits.
On appeal, Mr. Carrio makes three arguments. First, he contends that the
Board failed to
provide an adequate statement of reasons or bases for its determination
that he was not entitled to
3

VA benefits for degenerative arthritis of the spine because it did not
specifically discuss Dr.
Horvath’s opinions. Second, he argues that the December 2007 VA medical
opinion is inadequate
because the opinion relied on an inaccurate factual premise. Finally, he
asserts that the Board failed
to provide adequate reasons or bases for its determination that no
communication prior to May2000
could serve as a claim for tinnitus. Mr. Carrio reiterated these
contentions in his reply brief, and also
argued that the Court should consider Clemons v. Shinseki, 23 Vet.App. 1 (
2009), in evaluating his
1984 claim for a hearing disability.
In response, the Secretary argues that the Board provided adequate reasons
or bases for all
of its findings and that these findings were not clearly erroneous.
II. ANALYSIS
A. Adequacy of VA Medical Examination
The Secretary “shall make reasonable efforts to assist a claimant in
obtaining evidence
necessary to substantiate the claimant’s claim for a benefit under a law
administered by the
Secretary.” 38 U.S.C. § 5103A(a)(1). The Secretary’s duty to assist a
claimant includes, among
other things, “providing a medical examination or obtaining a medical
opinion when such an
examination or opinion is necessaryto make a decision on the claim.” 38 U.
S.C. § 5103A(d)(1); see
38 C.F.R. § 3.159(c) (2010).
The medical examination provided must be “thorough and
contemporaneous” and consider prior medical examinations and treatment.
Green v. Derwinski,
1 Vet.App. 121, 124 (1991). A medical examination “is adequate where it is
based upon
considerationoftheveteran’s priormedical historyand examinations and
alsodescribesthedisability
. . . in sufficient detail so that the Board’s ‘evaluation of the claimed
disability will be a fully
informed one.'” Stefl v. Nicholson, 21 Vet.App. 120, 123 (2007) (quoting
Ardison v. Brown, 6
Vet.App. 405, 407 (1994)). Further, 38 C.F.R. § 4.2 requires that if an
examination report does not
contain sufficient detail, “it is incumbent upon the rating board to
return the report as inadequate for
evaluation purposes.” 38 C.F.R. § 4.2 (2010); see Bowling v. Principi, 15
Vet.App. 1, 12 (2001)
(emphasizing Board’s duty to return inadequate examination report). The
Board may commit error
requiring remand when it relies on an inadequate medical examination. See
Ardison, 6 Vet.App. at
407 (holding that an inadequate medical examination frustrates judicial
review).
4

Whether a medical opinion is adequate is a finding of fact, which the
Court reviews under
the “clearlyerroneous” standard. See 38 U.S.C. § 7261(a)(4); D’Aries v.
Peake, 22 Vet.App. 97, 103
(2008); Gilbert v. Derwinski, 1 Vet.App. 49, 52 (1990). “A factual 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.'”
Hersey v. Derwinski,
2 Vet.App. 91, 94 (1992) (quoting United States v. U.S. Gypsum Co., 333 U.
S. 364, 395 (1948)).
Here, Mr. Carrio argues that the December 2007 VA examination was
inadequate because
it was based on an inaccurate factual premise, namely that the examiner
stated, “earliest joint
complaint was in 1999 for the left knee.” R. at 252. The Court disagrees.
In reviewing the
examination report, the examiner indicated that he reviewed Mr. Carrio’s
claims file and medical
records. In noting Mr. Carrio’s medical history, the examiner recorded Mr.
Carrio’s statements that
he treated his joint pain with over-the-counter medication before seeking
treatment in the 1990’s.
Further, although there are some notations of earlier treatment for joint
pain in Mr. Carrio’s medical
records, a VA medical examiner, unlike a VA adjudicator, is not required
to discuss all potentially
favorable evidence. See Moore v. Nicholson, 21 Vet.App. 211, 218 (2007) (”
The medical examiner
provides a disability evaluation and the rating specialist interprets
medical reports in order to match
the rating with the disability.”). Therefore, the medical examiner’s
failure to discuss all of the
treatment records in Mr. Carrio’s claims file did not render the
examination inadequate. See Stefl,
21 Vet.App. at 123; Ardison, 6 Vet.App. at 407. Based on the foregoing,
the Court concludes that
the Board’s reliance on the December 2007 VA examination was not
clearlyerroneous. See D’Aries,
22 Vet.App. at 103.
B. Reasons or Bases
In rendering its decision, the Board is required to provide 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.” 38 U.S.C. § 7104(d)(1). The statement must be adequate to enable
a claimant to understand
the precise basis for the Board’s decision, as well as to facilitate
review in this Court. See Gilbert,
1 Vet.App. at 57. To comply with this requirement, the Board must analyze
the credibility and
probative value of the evidence, account for the evidence that it finds to
be persuasive or
unpersuasive, and provide the reasons for its rejection of any material
evidence favorable to the
5

claimant. See Caluza v. Brown, 7 Vet.App. 498, 506 (1995), aff’d per
curiam, 78 F.3d 604 (Fed. Cir.
1996) (table). The Board may commit error requiring remand when it fails
to provide an adequate
statement of its reasons or bases. See Gilbert, 1 Vet.App. at 57.
1. Degenerative Arthritis of the Spine
Mr. Carrio argues that the Board provided inadequate reasons or bases for
its finding that he
was not entitled to VA benefits for degenerative arthritis of the spine
because it did not specifically
mention the opinions of Dr. Horvath. The Court agrees. In an August 2005
letter, Dr. Horvath
stated that it was “very likely” that Mr. Carrio’s degenerative arthritis
of the spine was “associated
with blast injuries he received during the intense shelling of his base in
Viet[ Nam].” R. at 1187.
Although the Board alluded to the October 2000 letter from Dr. Horvath,
which stated that,
“[s]tarting in the early 90’s he also adds degenerative spinal arthritis
. . . to the list he attributes to
service,” the Board makes no reference to the August 2005 letter. R. at 41.
This is evident by the
fact that the Board found that “the only notations by VA treating
physicians merely refer to [Mr.
Carrio]’s statements that these conditions had their onset in service.” R.
at 13. Although this
statement clearly applies to the statement in the October 2000 letter, it
does not apply to the August
2005 letter, in which Dr. Horvath clearlystates his opinion and does not
attribute that opinion to Mr.
Carrio’s statements. Moreover, by not mentioning the August 2005 letter,
the Board failed to weigh
the favorable evidence of record, which it is required to do. See Burger v.
Brown, 5 Vet.App. 340,
342 (1993) (“The [Board], as factfinder, is required to weigh and analyze
the evidence of record.”).
Although the Secretary argues that the favorable evidence in the record
warranted little probative value, it is the Board, not the Secretary, who must not
only weigh the evidence but explain why favorable evidence in the record is assigned less probative value. See 38 U.S.C. § 7104(d); see also Thompson v. Gober, 14 Vet.App. 187, 188 (2000) (the Board must provide an adequate statement of reasons or bases “for its rejection of any material evidence favorable to the claimant”).
Accordingly, based on the foregoing, the Court concludes that the Board’s
statement of reasons or bases for its decision denying VA benefits for degenerative arthritis of the spine is inadequate. See Gilbert, 1 Vet.App. at 57. The Court, therefore, vacates that portion of the October 2008 Board
decision and remands the matter to the Board for readjudication consistent
with this decision.
6

2. Earlier Effective Date for Tinnitus
Mr. Carrio argues that the Board did not provide an adequate statement of
reasons or bases for its finding that he was not entitled to an effective date prior to May 25, 2000, for his service-connected tinnitus. The Court agrees. The Board’s finding that Mr. Carrio is not entitled to an earlier effective date consists of three very short paragraphs (only five sentences, total) that contain
no analysis whatsoever. The Board merely makes the conclusory statement that
“[t]here is of record no communication from the appellant prior to May 25, 2000, which could serve as a claim of service connection for tinnitus.” R. at 16. The Board does not explain this statement or why none of the communications of record could not serve as a claim for VA benefits.
Accordingly, the Court concludes that the Board’s conclusory analysis frustrates judicial review.
Based on the foregoing, the Court concludes that the Board’s statement of reasons or bases for its decision finding that Mr. Carrio was not entitled to an earlier effective date prior to May 25, 2000, is inadequate. See Gilbert, 1 Vet.App. at 57.
The Court, therefore, vacates that portion of the October 2008 Board decision and remands to the Board for readjudication consistent with this decision.
On remand, Mr. Carrio is free to submit additional evidence and argument
on both remanded claims in accordance with Kutcherousky v. West,12Vet.App.369,372-73(1999)(per curiam order). See Kay v. Principi, 16 Vet.App. 529, 534 (2002). The Court reminds the Board that “[a] remand is meant to entail a critical examination of the justification for the decision.” Fletcher v. Derwinski,
1 Vet.App. 394, 397 (1991). In addition, the Board shall proceed expeditiously, in accordance with 38 U.S.C. § 7112 (expedited treatment of remanded claims).

III. CONCLUSION
Upon consideration of the foregoing, those portions of the October 22,
2008, Board decision that denied entitlement to VA benefits for degenerative arthritis of the spine and entitlement to an effective date prior to May 25, 2000, for service-connected tinnitus are VACATED and the matters
are REMANDED for readjudication consistent with this decision. The
remainder of the October 22, 2008, Board decision is AFFIRMED.
DATED: January 12, 2011
7

Copies to:
Glenn R. Bergmann, Esq.
VA General Counsel (027)
8

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