Veteranclaims’s Blog

July 6, 2011

Single Judge Application, Savage v. Shinseki, 24 Vet.App. 259(2010), Clarification Medical Opinion

Excerpt from decision below:

“After the Board decision, this Court issued Savage v. Shinseki, 24 Vet.App. 259 (2010), which held:
[W]hen VA concludes that a private medical examination report is unclear or insufficient in some way, and it reasonably appears that a request for clarification . . . could provide relevant information that is otherwise not in the record and cannot be obtained in some other way, the Board must either seek clarification from the private examiner or the claimant or clearly and adequately explain why such clarification is unreasonable. Id. at 269. The Court made it clear, however, that the Board’s duty to clarify private medical opinions is limited and will not arise in most instances. Id. at 16. The Court held that VA’s duty only arises in “those instances in which the missing information is relevant, factual, and objective-that is, not a matter of opinion-and where the missing evidence bears greatly on the probative value of the private examination report.” Id.”
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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 09-1001
PATRICIA G. PRUITT, 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:PatriciaG.Pruitt, survivingspouseofU.S. AirForce veteran Hollis E. Pruitt, appeals through counsel from a February20, 2009, Board of Veterans’Appeals (Board) decision that denied her entitlement to service connection for the cause of Mr. Pruitt’s death as the result of exposure to ionizing radiation. For the following reasons, the Court will affirm the Board’s February 2009 decision.

I. ANALYSIS
This appeal is focused on a medical opinion of Dr. Frank Dozier, a private medical examiner, that provided:
Mr. Hollis Pruitt passed away secondary to myocardial infarction. He had a
history and was seen at the VA Medical Center with coronary artery disease and
angina . . . . [H]e had some radiation while he was in the service. He also had Insulin
dependent diabetes mellitus, hypertension, hypercholesterolemia, depression, and
congestive heart disease . . . . He had a past history of anxiety and this was caused
by, or worsened by, the fact that he was told by physicians because of the
radiation treatment that he would not live past 40. After the time that he was past
40 he was under rather severe stress because he felt that he might pass away at any
time. This

anxiety could have contributed to the worsening of his coronary artery
disease, diabetes, hypercholesterolemia, and hypertension.
Record (R.) at 63 (emphasis added). The Board decision here on appeal
rejected Dr. Dozier’s opinion because (1) “the history cited by Dr. [Dozier] does not appear to
be accurate based on the evidence in the claims folder” and (2) “[the] opinion is expressed in
language too vague and speculative to . . . support the theory that a psychiatric disorder was a
contributing cause of death.” R. at 20-21.
Ms. Pruitt argues that (1) the Board erred when it “discounted [Dr. Dozier’s] opinion for relying on Mr. Pruitt’s statement [as to his anxiety] as it could be used as lay testimony to support
the medical conclusions”; (2) the Board provided an inadequate statement of reasons or bases for
finding this opinion not probative; and (3) the Secretary failed to fulfill his duty to assist Ms. Pruitt
when he did not seek clarification from Dr. Dozier after the Board deemed the opinion too
speculative. Appellant’s Brief (Br.) at 1.

A. Lay Testimony
Ms. Pruitt first argues that the Board failed to consider whether Mr. Pruitt’s statements constituted lay evidence that could support Dr. Dozier’s opinion or a finding of service connection.
Lay evidence “can be competent and sufficient to establish a diagnosis of
a condition” when (1) the layperson is competent to identify the medical condition or (2) when the
lay testimony describes symptoms at the time that support a later diagnosis by a medical
professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).
The Board explained that VA cannot reject a medical opinion simply because
the history is supplied by a veteran; the critical question is whether that history is
accurate and credible. R. at 20 (citing Kowalski v. Nicholson, 19 Vet.App. 171, 179 (2005)). The Board found Mr. Pruitt’s statements noted byDr. Dozier to be inaccurate and thus not credible
because there was no evidence of any diagnosis in the claims file of a psychiatric disorder until
decades after service. R. at 20.
While Ms. Pruitt suggests that the Board did not consider whether Mr. Pruitt’s statement constituted lay evidence, the Board did just that when it found his statement not credible. The Board explained that the lay statement was inconsistent with the other evidence of record.
The Board also found that the portion of the statement that provided that “he was told by physicians
because of the radiation
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treatment that he would not live past 40” “was too attenuated and inherently unreliable to constitute ‘medical’ evidence.” R. at 21(citing Robinette v. Brown, 8 Vet. App. 69, 77 (1995)). The Court
therefore discerns no error in the Board’s treatment of Mr. Pruitt’s lay statement provided by Dr.
Dozier.

B. Reasons or Bases
Ms. Pruitt next argues that the Board failed to provide an adequate
statement of reasons or bases for its finding that Dr. Dozier’s opinion had little probative value.
The Board must include in its decision 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. That statement must be adequate to enable an appellant to understand the precise basis for the Board’s decision and to facilitate informed review in this Court. See 38 U.S.C. § 7104(d)(1); Allday v. Brown, 7 Vet.App. 517, 527 (1995); Gilbert v. Derwinski, 1 Vet.App. 49, 56-57 (1990).
As previously discussed, the Board found Dr.Dozier’s statement to have little probative value because of the unsupported lay history provided by Mr. Pruitt. Ms. Pruitt
argues that the Board erroneously interpreted Dr. Dozier’s medical opinion as relying on Mr.
Pruitt’s statement and insists that his opinion was based on the years the doctor treated Mr. Pruitt. In support she cites to various pages in the record that list Dr. Dozier as Mr. Pruitt’s physician. See
Appellant’s Br. at 10 (citing R. at 349, 473, 491, 609). However, these documents evidence nothing except that Dr. Dozier was Mr. Pruitt’s referring physician, not evidence of Dr. Dozier diagnosing Mr.
Pruitt with anxiety.
More important, the Board also discounted Dr. Dozier’s opinion as
speculative as he does not opine that Mr. Pruitt’s claimed anxietycaused a worseningof his
coronary artery disease, merely that it “could have contributed to a worsening” of his disease. R. at 21; R. at 63; see also Bloom v. West, 12 Vet. App. 185 (1999) (a medical opinion based on speculation, without supporting clinical data or other rationale, does not provide the required degree of medical certainty). The Board thoroughly explained why Dr. Dozier’s opinion was entitled to little probative value and the Court discerns no error in the Board’s statement of reasons or bases.

C. Duty To Assist
Finally, Ms. Pruitt argues that the Board failed to fulfill its duty to assist when it did not seek clarification from Dr. Dozier after deeming his opinion too speculative. Appellant’s Br. at 11; see
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38 U.S.C. § 5103(a). After the Board decision, this Court issued Savage v. Shinseki, 24 Vet.App. 259 (2010), which held: [W]hen VA concludes that a private medical examination report is unclear or insufficient in some way, and it reasonably appears that a request for clarification . . . could provide relevant information that is otherwise not in the record and cannot be obtained in some other way, the Board must either seek clarification from the private examiner or the claimant or clearly and adequately explain why such
clarification is unreasonable. Id. at 269. The Court made it clear, however, that the Board’s duty to clarify private medical opinions is limited and will not arise in most instances. Id. at 16. The Court held that VA’s duty only arises in “those instances in which the missing information is relevant, factual, and objective-that is, not a matter of opinion-and where the missing evidence bears greatly on the probative value of the private examination report.” Id.
In this case, it is not clear that there is missing information. Dr. Dozier suggested that Mr.
Pruitt’s claimed anxiety may have aggravated his other medical conditions.
Even if the Court deemed there was missing information, such information would be a matter
of opinion, and is thus not subject to the duty to clarify under Savage. Ms. Pruitt, therefore,
fails to show how VA did not satisfy its duty to assist.

II. CONCLUSION
Based on the foregoing, the Court AFFIRMS the February 20, 2009, Board
decision.
DATED: June 28, 2011
Copies to:
Jennifer A. Zajac, Esq.
VA General Counsel (027)
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