Veteranclaims’s Blog

April 14, 2011

Single Judge Application, Bostain v. West, 11 Vet.App., Obert v. Brown, 5 Vet.App., Term “May” is Speculative

Filed under: Uncategorized — Tags: , , , , — veteranclaims @ 6:15 pm

Excerpt from decision below:
“Here, the Board considered the private medical opinions and found that
they were speculative. See R. at 7 (citing Obert v. Brown, 5 Vet.App. 30, 33 (1993) (holding that a medical opinion expressed in terms of “may” also implies “may not” and is, therefore, speculative). Because an award of benefits cannot be based upon a speculative medical opinion, see McLendon v. Nicholson, 20 Vet.App. 79, 85 (2006); Bloom v. West, 12 Vet.App. 185, 187 (1999), the Board determined that the private medical opinions submitted by Mr. Smith did not raise a reasonable possibility of substantiating his claim and, therefore, were not material evidence. See Bostain v. West, 11 Vet.App. 124, 128 (1998) (holding that a medical opinion expressed in terms of “may” is too speculative to be new and material evidence).”

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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 09-3249
WILLIAM R. SMITH, 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: William R. Smith appeals through counsel a February 26, 2009,
Board of
Veterans’Appeals (Board)decision denying Mr. Smith’s request to reopen a
previouslydenied claim
for benefits for diabetes mellitus. Record (R.) at 3-8. The Court has
jurisdiction pursuant to
38 U.S.C. §§ 7252(a) and 7266(a) to review the February2009 Board
decision. Because the Board’s
determination that Mr. Smith did not submit new and material evidence
sufficient to reopen his
previously denied claim is not clearly erroneous, the Court will affirm
the February 26, 2009, Board
decision.
I. FACTS
Mr. Smith served on active duty in the U.S. Army from June 1972 to August
1978. His
service medical records indicate that, in June 1975, “he underwent a
gastrotomy . . . with excision
of . . . tissue which proved to be ectopic pancreatic tissue.”1
R. at 1059.
A gastrotomy is an “incision into the stomach.” DORLAND’S ILLUSTRATED
MEDICAL DICTIONARY 777 (31st
ed. 2007). Ectopia is “malposition; especially if congenital.” Id. at 598.
1

In July2002, Mr. Smith filed a claim for benefits for diabetesmellitus,
which he asserted was
caused by his in-service pancreas surgery. In April 2003, a VA examiner
opined that “it is unlikely
that this resection of ectopic pancreatic tissue in the stomach is related
in any way to the subsequent
development of [Mr. Smith]’s diabetes.” R. at 341-42. Later that month, a
VA regional officedenied
Mr. Smith’s claim because there was no evidence of a medical nexus between
his pancreas surgery
and his diabetes mellitus. Mr. Smith did not appeal this decision, and it
became final.
In December 2004, Mr. Smith submitted a request to reopen his previously
denied claim for
benefits for diabetes mellitus. In support of this request to reopen, Mr.
Smith submitted a May 2004
private medical opinion that stated:
Mr. Smith informed me that after the [in-service] surgery he was diagnosed
with
diabetes. Mr. Smith contends that there is no family history of diabetes,
he had no
previous history of diabetes and after coming right out of pancreas
surgery that he
believes the surgery may have damaged the pancreas and resulted in a
diabetic
condition. Although it is difficult to state with absolute certainty,
given the sequence
of events, Mr. Smith’s diabetes may be a result of surgery during the
military for his
abdominal exploration and surgery.
R. at 306. Mr. Smith subsequently submitted another private medical
opinion from the same
physician, dated May 2005, that similarly stated:
Mr. Smith informed me that after the [in-service] surgery he was diagnosed
with
diabetes. Mr. Smith tells me that there is no family history of diabetes,
he had no
previous history of diabetes, and right after coming out of pancreas
surgery diabetes
was diagnosed. The surgery may have damaged the pancreas and resulted in a
diabetic condition. Although it is difficult to state with absolute
certainty, given the
sequence of events, Mr. Smith’s diabetes may be a result of surgery during
the
military, that is, the abdominal exploratory and pancreas surgery.
R. at 268.
In May2006, the regional office denied his request to reopen his
previouslydenied claim for
benefits for diabetes mellitus because it determined that the private
medical opinions outlined above
were “inconclusive” and “insufficient” to establish a medical nexus
between his diabetes mellitus
and his in-service pancreas surgery. R. at 191. Mr. Smith filed a timely
Notice of Disagreement
with this decision and subsequently perfected his appeal.
2

In February 2009, the Board issued the decision currently on appeal,
which denied Mr.
Smith’s request toreopenhis previouslydenied claim for benefits for
diabetesmellitus. Specifically,
the Board stated:
[The May 2004 and 2005] letters are “new” in that theywere not of record
at the time
of the April 2003 [regional office] decision. This evidence is probative
to the issue
at hand, as it tends to show that [Mr. Smith]’s diabetes mellitus is
related to a surgery
that was performed during military service. Nevertheless, this evidence is
not
material. The United States Court of Appeals for Veterans Claims held that
a
medical opinion expressed in terms of “may,” also implies “may or may not”
and is
too speculative to establish a plausible claim. . . . Accordingly, none of
the “new”
evidence is material as it does not raise a reasonable possibility of
substantiating the
claim.
R. at 7-8 (citations omitted).
II. ANALYSIS
On appeal, Mr. Smith argues that the Board erred when it determined that
the private medical
opinions that he submitted were too speculative to raisea reasonable
possibilityof substantiating the
claim before the Board reopened the claim. This argument is unpersuasive.
“If new and material evidence is presented or secured with respect to a
claim which has been
disallowed, the Secretary shall reopen the claim and review the former
disposition of the claim.”
38 U.S.C. § 5108. To satisfythis requirement, the evidence “must be both
new and material.” Smith
v. West, 12 Vet.App. 312, 314 (1999). “New evidence means existing
evidence not previously
submitted to agency decisionmakers.” 38 C.F.R. § 3.156(a). “Material
evidence” is evidence that
“by itself or when considered with previous evidence of record, relates to
an unestablished fact
necessaryto substantiate the claim.” Id. “New and material evidence can be
neither cumulative nor
redundant” and “must raise a reasonable possibility of substantiating the
claim.” Id. The Court
reviewswhethertheappellanthassubmittednewandmaterial evidenceto
reopenapriorclaimunder
the “clearly erroneous” standard of review set forth in 38 U.S.C. § 7261(
a)(4). See Suaviso v.
Nicholson, 19 Vet. App. 532, 533 (2006).
As an initial matter, Mr. Smith’s argument that the Board denied his
request to reopen his
claim for benefits for diabetes mellitus because it found the private
medical opinions incredible is
3

not supported by the record. Mr. Smith is correct that the Board, in
determining whether evidence
submitted by the claimant is new and material, must presume that the
evidence is credible. See
Justus v. Principi, 3 Vet.App. 510, 513 (1992). However, the Board in this
case did not find that the
evidence was incredible; rather, it determined that it was too speculative
to raise a reasonable
possibility of substantiating the claim. Contrary to Mr. Smith’s
contention, this determination does
not involve evaluation of the credibility of the evidence. See BLACK’S LAW
DICTIONARY 423 (9th
ed.2009)(definingcredibilityas”[t]hequalitythatmakessomething(
asawitnessorsomeevidence)
worthy of belief”); see also Layno v. Brown, 6 Vet.App. 465, 469 (1994).
Therefore, in the absence
of any finding by the Board regarding the credibility of the private
medical opinions, the Court
concludes that the Board presumed the credibility of that evidence.
Here, the Board considered the private medical opinions and found that
they were
speculative. See R. at 7 (citing Obert v. Brown, 5 Vet.App. 30, 33 (1993) (
holding that a medical
opinion expressed in terms of “may” also implies “may not” and is,
therefore, speculative). Because
an award of benefits cannot be based upon a speculative medical opinion,
see McLendon v.
Nicholson, 20 Vet.App. 79, 85 (2006); Bloom v. West, 12 Vet.App. 185, 187 (
1999), the Board
determined that the private medical opinions submitted by Mr. Smith did
not raise a reasonable
possibility of substantiating his claim and, therefore, were not material
evidence. See Bostain v.
West, 11 Vet.App. 124, 128 (1998) (holding that a medical opinion
expressed in terms of “may” is
too speculative to be new and material evidence). Although Mr. Smith
contends that the Board
should have reopened his claim before addressing whether the private
medical opinions raised a reasonable possibility of substantiating his claim, this determination “should be considered a component of the question of what is new and material evidence, rather than a separate determination to be made after the Board has found that evidence is new and material.” Shade v. Shinseki, 24 Vet.App. 110, 118 (2010). Accordingly, the Court concludes that the Board’s determination that
Mr. Smith did not submit new and material evidence sufficient to reopen his previously denied claim is not clearly erroneous. See Suaviso, 19 Vet. App. at 533.
4

III. CONCLUSION
Upon consideration of the foregoing, the February 26, 2009, Board decision
is AFFIRMED.
DATED: April 8, 2011
Copies to:
Jeany C. Mark, Esq.
VA General Counsel (027)
5

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