Veteranclaims’s Blog

July 26, 2011

Veterans Court Starts Addressing Reconsideration/Appeal Issues in Initial Decisions

Excerpt from decision below:
“Neither party requested oral argument or identified issues they believe require a precedential decision of the Court.”
=========================

—————————————————-

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 10-1157
JOYCE A. STUTENKEMPER, 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: Joyce A. Stutenkemper appeals through counsel a March 12,
2010, Board of Veterans’ Appeals (Board) decision denying entitlement to service
connection for the cause of her husband’s death.1 Record (R.) at 3-21. The Court has jurisdiction pursuant to 38 U.S.C. §§ 7252(a) and 7266(a) to review the March 2010 Board decision. Neither party requested oral argument or identified issues they believe require a precedential decision of the Court. Because the November 2009 VA medical opinion upon which the Board relied was adequate, and because the Board’s reliance on other inadequate VA medical opinions did not constitute prejudicial error, the Court will affirm the March 12, 2010, Board decision.

I. FACTS
Mrs.Stutenkemperis thewidowofveteranJohnH.Stutenkemper,
whoservedonactiveduty
in the U.S. Army from May 1966 to April 1968, including service in Viet
Nam. In June 1998, a VA
1
The Board also denied entitlement to dependency and indemnity compensation
pursuant to 38 U.S.C. § 1318.
However, because Mrs. Stutenkemper limits her arguments to the issue of
entitlement to service connection for the cause
of her husband’s death, the Court deems abandoned any appeal as to the
section 1318 claim that was the subject of the
decision on appeal. See Grivois v. Brown, 6 Vet.App. 136, 138 (1994) (
holding that issues or claims not argued on
appeal are considered abandoned).

physician, Dr. James Bell, diagnosed Mr. Stutenkemper with chronic
obstructive pulmonarydisease
and opined that “[t]obacco is 100% responsible for [his] end-stage [
chronic obstructive pulmonary
disease].”2
R. at 715. In March 1999, a VA regional office awarded Mr. Stutenkemper VA
benefits
for chronic obstructive pulmonary disease secondary to nicotine dependence
acquired in service.
Mr. Stutenkemper died in August 2003, and his death certificate listed his
cause of death as
medullary failure due to respiratory arrest due to acute bronchial asthma
due to multiple allergies.3
One month later, Mrs. Stutenkemper filed a claim for VA benefits for the
cause of her husband’s
death and, in October 2003, the regional office denied her claim. Mrs.
Stutenkemper subsequently
submitted two letters from private physicians, Dr. Monte R. Kahler and Dr.
Kenneth A. Miller,
stating that “[s]moking andexposureto AgentOrange[inservice]
causedirreparable damage to [Mr.
Stutenkemper’s] respiratorysystem”andthat”exposure [to Agent Orange in
service] is likelyto have
contributed to his lung disease and death.” R. at 215, 265.
In May 2007, the Board sought an expert medical opinion regarding the
etiology of Mr.
Stutenkemper’s chronic obstructive pulmonary disease. In September 2007, a
VA physician, Dr.
Nauman A. Chaudary, opined that it was “not possible to determine with any
degree of medical
certainty that [Mr. Stutenkemper’s chronic obstructive pulmonary disease]
was causally related to
his presumed exposure to Agent Orange” and that it was “possible that [his
chronic obstructive
pulmonary disease] for which service connection was granted . . . causally
related to his decades[-
]long smoking of cigarettes.” R. at 151. Based on this expert opinion, the
Board issued a November
2007 decision denying Mrs. Stutenkemper’s claim.
Mrs. Stutenkemper subsequently appealed that decision to the Court and the
parties entered
into a joint motion for remand that stated that the June 1998 VA medical
opinion byDr. Bell and the
September 2007 VA medical opinion byDr. Chaudarywere inadequate because
theydid not address
whether Mr. Stutenkemper’s chronic obstructive pulmonary disease was
related to his exposure to
herbicides in service. The Court granted that motion in August 2009.
2
Chronic obstructive pulmonary disease is “any disorder characterized by
persistent or recurring obstruction
of the bronchial air flow.” DORLAND’S ILLUSTRATED MEDICAL DICTIONARY 538 (
31st ed. 2007) [hereinafter
DORLAND’S]..
Medullary means “pertaining to a medulla,” which is the “anatomic
nomenclature for the most interior portion
of an organ or structure.” DORLAND’S at 1137.
3
2

Pursuant to the agreement of the parties expressed in the joint motion
for remand, the Board
requested another expert medical opinion as to the etiology of Mr.
Stutenkemper’s chronic
obstructive pulmonary disease. In November 2009, a VA physician, Dr.
Andrew Robbins, opined:
I believe that it is HIGHLY LIKELY (more than 50% likely) that [Mr.
Stutenkemper’s chronic obstructive pulmonary disease] was caused by
cigarette
smoking and HIGHLY LIKELY that the Agent Orange did NOT contribute in any
medically significant way to the development of [chronic obstructive
pulmonary
disease] and the subsequent death from [chronic obstructive pulmonary
disease].
R. at 27. In support of these conclusions, Dr. Robbins cited a study that
concluded that chronic
obstructivepulmonarydiseasewasprevalentin 4%ofnon-smokersand39%
ofcontinuous smokers.
He also added that the National Academy of Sciences reviewed at least 46
studies regarding chronic
obstructive pulmonary disease and exposure to herbicides and concluded
that “‘there is inadequate
or insufficient evidence of an association between exposure to the
compounds of interest and
mortalityfrom all nonmalignant respiratorydiseases or the prevalence of
wheeze or asthma, chronic
obstructive pulmonary disease, and farmer’s lung.'” Id. (quoting COMMITTEE
TO
REVIEW
THE
HEALTH EFFECTS IN VIETNAM VETERANS OF EXPOSURE TO HERBICIDES, VETERANS AND
AGENT
ORANGE 566 (2009), available at http://www.nap.edu/catalog/12662.html [
hereinafter VETERANS
AND
AGENT ORANGE]).
With respect to the other medical opinions in Mr. Stutenkemper’s claims
file, Dr. Robbins
concluded that the June 1998 opinion by Dr. Bell was “substantially true”
because it was “very
unlikelythat[Mr.Stutenkemper] wouldhavehadend-stage[
chronicobstructivepulmonarydisease]
at that time if he had not been a chronic smoker, and that cigarette
smoking alone can readily result
in end-stage [chronic obstructive pulmonary disease] without the addition
of any other external
factor.” R. at 28. Finally, Dr. Robbins stated that private medical
opinions submitted by Mrs.
Stutenkemper that were favorable to her claim were “speculative” and ”
contrary to the current
consensus” in the scientific community. Id.
In March 2010, the Board issued the decision currently on appeal, which
denied Mrs.
Stutenkemper entitlement to service connection for the cause of her
husband’s death. Specifically,
the Board determined that the private medical opinions that related Mr.
Stutenkemper’s chronic
obstructive pulmonarydisease to his exposure to herbicides in servicewere
of “no probative weight”
3

because the opinions were “unclear” and “speculative.” R. at 14-15. The
Board then reviewed the
VA medical opinions of record, including the June 1998 opinion by Dr. Bell,
the September 2007
opinion byDr. Chaudary, and the November 2009 opinion byDr. Robbins, and
afforded them “great
probative weight” because they were “based upon a review of all evidence
of record in the claims
file at the time of the opinion” and “identifie[d] specific facts and
findings in the record that were
of import to the opinion[s], as well as medical research and literature
that supports the conclusions
reached.” R. at 15.
II. ANALYSIS
On appeal, Mrs. Stutenkemper argues that the Board erred by relying on
inadequate VA
medical opinions. Specifically, she contends that the November 2009
opinion by Dr. Robbins was
inadequate because it contained “conclusions that [were] not supported
bythe clinical evidence” and
that it failed to address “whether herbicide exposure and continuous
smoking combined to make it
as likely as not that [her husband] would develop [chronic obstructive
pulmonary disease].”4
Appellant’s Brief (Br.) at 7. Mrs. Stutenkemper also asserts that the June
1998 opinion by Dr. Bell
was inadequate because it contains “only data . . . and a conclusion . . .
without any reasoned
explanation connecting the conclusion with the facts.” Id. at 10. Finally,
she argues that the
September 2007 opinion byDr. Chaudary was also inadequate because the
parties agreed that it was
When a veteran dies “from a service-connected disability,” that veteran’s
surviving spouse, children, and
parents are eligible for dependency and indemnity compensation. 38 U.S.C. §
1310(a); 38 C.F.R. § 3.5(a) (2011). A
veteran’s death is considered service connected under section 1310 where a
service-connected disability “was either the
principal or a contributory cause of death.” 38 C.F.R. § 3.312(a) (2011).
To constitute a contributory cause of death,
the disability must have “contributed substantially or materially” to
death, “combined to cause death,” or “aided or lent
assistance to the production of death.” 38 C.F.R. § 3.312(c). “For claims
received by VA after June 9, 1998, a disability
or death will not be considered service-connected on the basis that it
resulted from injuryNext Document or disease attributable to the
veteran’s use of tobacco products during service.” 38 C.F.R. § 3.300(a) (
2011); see also 38 U.S.C. § 1103(a). Because
VA received Mrs. Stutenkemper’s claim for VA benefits for the cause of her
husband’s death in September 2003, well
after the effective date of § 3.300, she must demonstrate that her
husband’s chronic obstructive pulmonary disease, which
she asserts was a principal or contributory cause of his death, was
attributable to something other than his tobacco
use–e.g., his presumed exposure to herbicides in service. See Stoll v.
Nicholson, 401 F.3d 1375, 1380 (Fed. Cir. 2005)
(holding that 38 U.S.C. § 1103(a) “applies to [dependency and indemnity
compensation] claims of surviving spouses
of veterans, even if the veterans have previously established service
connection for their disabilities”); Kane v. Principi,
17 Vet.App. 97, 102 (2003) (acknowledging that a claim for dependency and
indemnity compensation is “a new claim,
regardless of the outcome of previous [regional office] decisions
regarding service connection”).
4
4

inadequate in the July 2009 joint motion for remand and the Board was
therefore precluded from
subsequently relying on it.
A VA medical examination 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 consideration of the
veteran’s prior medical history
and examinations and also describes the disability . . . 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 (2011); see
Bowling v. Principi, 15 Vet.App. 1, 12 (2001) (emphasizing Board’s duty to
return inadequate
examination report). The Board maycommit 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).
A. Dr. Robbins’s November 2009 Opinion
Mrs.StutenkemperarguesthatDr.Robbins’sopinionwasinadequateforthreereasons.
First,
she contends that Dr. Robbins’s conclusion that exposure to Agent Orange ”
did NOT contribute in
any medically significant way” to her husband’s chronic obstructive
pulmonary disease, which was
expressly based on his review of the National Academy of Sciences study, ”
does not flow from the
premise” that “‘there is inadequate or insufficient evidence of an
association between exposure to
[herbicides] and mortality from all nonmalignant respiratory diseases or
the prevalence of . . .
chronic obstructive pulmonary disease.'” Appellant’s Br. at 7 (quoting R.
at 27). In other words,
Mrs. Stutenkemper admits that the National Academy of Sciences study “did
not establish an
association” between exposure to herbicides and chronic obstructive
pulmonary disease, but also
asserts that it “did not preclude the association and, indeed, did not
suggest that such an association
was unlikely.” Id.
Mrs. Stutenkemper is correct that the National Academy of Sciences study
did not establish
or rule out a connection between exposure to herbicides and the
development of chronic obstructive
pulmonary disease. Rather, the study concluded that “[t]he available
epidemiologic studies are of
5

insufficient quality, consistency, or statistical power to permit a
conclusion regarding the presence
or absenceofanassociation.”5
VETERANSAND AGENT ORANGE at 652 (emphasis added). However,
Mrs. Stutenkemper misunderstands Dr. Robbins’s reliance on the study.
The Court acknowledges that Dr. Robbins’sstatementthatthestudysupportshis
opinion that
Mr. Stutenkemper’s chronic obstructive pulmonary disease was not related
to exposure to Agent
Orange is misleading. However, when viewed in the context of the preceding
paragraph, it is clear
that Dr. Robbins opined that chronic cigarette smoking, which is a major
risk factor for developing
chronic obstructive pulmonarydisease, is likelythe causeof Mr.
Stutenkemper’s chronic obstructive
pulmonary disease, particularly in light of the fact that no study has
ever found an association
between exposureto AgentOrangeandchronicobstructivepulmonarydisease.
Therefore,the Court
concludes that Dr. Robbins’s medical opinion was not rendered inadequate
merely because he
implied that the National Academy of Sciences study concluded that there
was no evidence of an
association between exposure to Agent Orange and chronic obstructive
pulmonary disease. See
Jones v. Shinseki, 23 Vet.App. 382, 391 (2010) (“While VA has a duty to
assist the veteran by
providing a medical examination in certain situations, that duty does not
extend to requiring a VA
physician to render an opinion beyond what may reasonably be concluded
from the procurable
medical evidence.”).
In addition, the Court notes that Mrs. Stutenkemper offers no evidence of
a connection
between exposure to herbicides and chronic obstructive pulmonary disease.
Rather, she merely
attacks Dr. Robbins’s medical opinion for failing to discuss such evidence,
which the National
Academy of Sciences study concluded did not exist. The Court reminds Mrs.
Stutenkemper that “a
claimant has the responsibility to present and support a claim for
benefits,” and her failure to submit
evidenceofaconnection betweenMr.Stutenkemper’sserviceandhis
chronicobstructivepulmonary
The Court notes that the record of proceedings does not contain the
National Academy of Sciences study and
that, despite her reliance on it, Mrs. Stutenkemper did not append it to
her brief. However, Dr. Robbins cited and quoted
the study in his medical opinion and provided a web address where it could
be accessed. Generally, the Court is
precluded by statute from considering any material that was not contained
in the record of proceedings before the
Secretary and the Board. 38 U.S.C. § 7252(b); Rogozinski v. Derwinski, 1
Vet.App. 19, 20 (1990). However, the Court
may take judicial notice of the National Academy of Sciences study to the
extent that it is being used to acknowledge
undebatable historic facts–i.e., quoting, but not interpreting, the
conclusions drawn from the study. See Smith v.
Derwinski, 1 Vet.App. 235, 238 (1991) (“Courts may take judicial notice of
facts not subject to reasonable dispute.”
(citing FED. R. EVID. 201(b))); see also Brannon v. Derwinski, 1 Vet.App
314, 316-17 (1991).
5
6

disease is fatal to her argument that Dr. Robbins’s opinion was
inadequate in this regard. 38 U.S.C.
§ 5107(a); see also Jones, 23 Vet.App. at 391 (“Notwithstanding the duty
to assist, it remains the
claimant’s responsibility to submit evidence to support his claim.”); Wood
v. Derwinski, 1 Vet.App.
190, 193 (1991) (“The duty to assist is not always a one-way street.”).
Second, Mrs. Stutenkemper asserts that Dr. Robbins’s opinion was
inadequate because he
relied on another study concluding that 39% of continuous smokers
developed chronic obstructive
pulmonary disease, but ignored the inverse of this conclusion: that 61% of
continuous smokers did
not develop chronic obstructive pulmonary disease. In other words, Mrs.
Stutenkemper argues that
Dr. Robbins’s reliance on this study was erroneous because it “places the
odds against a finding that
[Mr. Stutenkemper] developed [chronic obstructive pulmonary disease] from
smoking alone.”
Appellant’s Br. at 8 (emphasis in original). However, the Court discerns
no error in Dr. Robbins’s
statement that chronic obstructive pulmonary disease “is a very common
result of smoking” as
demonstrated by a scientific study showing significantly higher rates of
occurrence of chronic
obstructive pulmonary disease in smokers than in non-smokers and his
conclusion, based on this
evidence, that Mr. Stutenkemper’s chronic obstructive pulmonary disease
was likely caused by his
“long history of cigarette smoking.” R. at 27. Therefore, the Court
concludes that Dr. Robbins’s
medical opinion was not inadequate in this regard. See Stefl, 21 Vet.App.
at 123.
Third,Mrs.StutenkempercontendsthatDr.Robbins’sopinion wasinadequatebecause”
none
of the clinical studies or research upon which he relied correlated
herbicide exposure with
continuous smoking to ascertain the likelihood of the combined assaults in
developing [chronic
obstructive pulmonary disease].” Appellant’s Br. at 8. However, she does
not point to any medical
study that has addressed that particular question and, as described above,
failed to demonstrate that
Dr. Robbins’s opinion is inadequate for any other reason. A medical
examiner is not required to
exceed the limits of current medical knowledge, and the Court will not, as
Mrs. Stutenkemper seems
to suggest, commission VA to conduct such a study. See Jones, 23 Vet.App.
at 390. Consequently,
the Court concludes that Mrs. Stutenkemper has failed to carry her burden
of demonstrating error
in that regard. See Hilkert v. West, 12 Vet.App. 145, 151 (1999) (holding
that appellant has the
burden of demonstrating error), aff’d, 232 F.3d 908 (Fed. Cir. 2000) (
table).
7

B. Dr. Bell’s June 1998 and Dr. Chaudary’s September 2007 Opinions
Mrs. Stutenkemper next argues that the September 2007 VA medical opinion
by Dr.
Chaudarywas inadequate because the parties agreed in a July 2009 joint
motion for remand that was
adopted bythe Court that it wasinadequate for ratingpurposes. Although Mrs.
Stutenkemper argues
only that Dr. Chaudary’s opinion was inadequate for this reason, the Court
notes that the parties
agreed in the motion that Dr. Bell’s and Dr. Chaudary’s opinions were
inadequate. Specifically, the
joint motion for remand stated:
The parties agree that VA erred when it did not provide John Stutenkemper
. . . with
an adequate medical examination and did not provide Joyce Stutenkemper
. . . with
an adequate medical opinion that addressed whether [Mr. Stutenkemper’s
chronic
obstructive pulmonary disease] was related to his presumed exposure to
Agent
Orange during service. . . Neither the June 1998 VA medical examination [
by Dr.
Bell] nor the September 2007 VA medical opinion [by Dr. Chaudary]
addressed
whether [Mr. Stutenkemper’s chronic obstructive pulmonary disease] was
related to
his presumed exposure to Agent Orange during service.
R. at 54. Consequently, the Court will consider whether the foregoing
language in the July 2009
joint motion for remand precluded the Board from later relying on both Dr.
Bell’s and Dr. Chaudary’s
medical opinions.
A remand by the Court “confers on the veteran or other claimant, as a
matter of law, the right
to compliance with the remand orders,” and “the Board itself errs in
failing to insure compliance”
with a Court remand. Stegall v. West, 11 Vet.App. 268, 271. Further,
absent a specific Court order,
the terms of a joint motion for remand are similarly enforceable. Forcier
v. Nicholson, 19 Vet.App.
414, 425-26 (2006). On August 3, 2009, the Court granted the parties’
joint motion for remand and
specifically incorporated its substance into the Court’s remand order,
including the findings that Dr.
Bell’s and Dr. Chaudary’s medical opinions were inadequate and the
instructions to obtain a new VA
medical examination to determine whether Mr. Stutenkemper’s chronic
obstructive pulmonary
disease was related to his presumed in-service exposure to Agent Orange in
the absence of an
adequatemedicalopinion addressingthatquestion. SeeStutenkemperv.Shinseki,
No.08-0696(Vet.
App. Aug. 3, 2009) (unpublished order).
Despite this conceded fact, in the decision currently on appeal, the Board
explicitly
“afford[ed] great probative weight” to Dr. Bell’s and Dr. Chaudary’s
medical opinions, along with
8

Dr. Robbins’s medical opinion, and impermissibly relied on those two
inadequate medical opinions
to deny Mrs. Stutenkemper’s claim for benefits for the cause of her
husband’s death. R. at 15.
Accordingly, the Court concludes that the Board erred in relying on the
June 1998 opinion by Dr.
Bell and the September 2007 opinion by Dr. Chaudary, which the parties
agreed were inadequate in
the joint motion for remand that was incorporated into the Court’s remand
order.6
See Ardison,
6 Vet.App. at 407.
C. Prejudicial Error
The Court’s analysis does not end with the determination that the Board
committed error;
rather,theCourt isrequiredbystatuteto
considerwhethersucherrorprejudicedtheclaimant’sclaim.
38 U.S.C. § 7261(b)(2) (requiring the Court to “take due account of the
rule of prejudicial error”);
Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004). The Court
concludes that the Board’s
reliance on the inadequate medical opinions by Dr. Bell and Dr. Chaudary
was harmless error.
As stated above, for Mrs. Stutenkemper to prevail on her claim for
benefits for the cause of
her husband’s death, she was required to demonstrate that her husband’s
chronic obstructive
pulmonary disease was attributable to his presumed in-service exposure to
herbicides. See n.4,
above. The evidence Mrs. Stutenkemper submitted for this purpose included
two private medical
opinions; her own laystatements and the laystatements of friends and
relatives; and the VA medical
opinions of Drs. Bell, Chaudary, and Robbins.
With respect to the evidence favorable to Mrs. Stutenkemper’s claim, the
Board considered
the private medical opinions, but accordedthem “no probative weight”
because theycontained “only
data and conclusions” and were “speculative.” R. at 14-15. Mrs.
Stutenkemper does not assert that
the Board’s evaluation of the weight to be assigned to the private medical
opinions was clearly
erroneous, and the Court will not conclude otherwise. See 38 U.S.C. §
7261(a)(4); Washington v.
Nicholson, 19 Vet.App. 362, 369 (2006) (holding that it is the Board’s
responsibility to determine
the appropriate weight to be given to evidence); Wood, 1 Vet.App. at 193;
Gilbert v. Derwinski,
1 Vet.App.49, 52 (1990). The Board also considered the laystatements made
byMrs. Stutenkemper
6
Although Mrs. Stutenkemper also argues that the June 1998 opinion by Dr.
Bell is inadequate because it
contains “only data . . . and a conclusion . . . without any reasoned
explanation connecting the conclusion with the facts,”
Appellant’s Br. at 10, the Court need not address this argument because it
concluded that Dr. Bell’s medical opinion is
inadequate on other grounds.
9

and her friends and relatives, “the only [other] evidence of record that [
Mr. Stutenkemper]’s cause
of death was related to his service in any way other than through his
nicotine dependence.” R. at 17.
The Board rejected those laystatements because it found that Mrs.
Stutenkemper and her friends and
relatives, as laypeople, did not possess the requisite “specialized
medical knowledge, training, or
experience” to provide a competent opinion as to a connection between Mr.
Stutenkemper’s
presumed in-service exposure to Agent Orange and his chronic obstructive
pulmonary disease. Id.
Again, Mrs. Stutenkemper does not challenge this determination, and the
Court will not disturb it.
See Hilkert, 12 Vet.App. at 151.
The Board then considered the evidence against Mrs. Stutenkemper’s claim,
including Dr.
Bell’s June 1998 medical opinion, Dr. Chaudary’s September 2007 medical
opinion, and Dr.
Robbins’s November 2009 medical opinion. The Board “afford[ed] them great
probative weight”
because they were “based upon a review of all evidence of record in the
claims file at the time of the
opinion” and “identifie[d] specific facts and findings in the record that
were of import to the
opinion[s], as well as medical research and literature that supports the
conclusions reached.” R. at
15. As explained in Part II.B, above, the Board erred in relying on Dr.
Bell’s and Dr. Chaudary’s
opinions because they were inadequate. See Ardison, 6 Vet.App. at 407.
However, as the Court
concluded in Part II.A, above, Dr. Robbins’s opinion was adequate and,
therefore, the Board did not
err in relying on it. Thus, Dr. Robbins’s opinion was the only probative
evidence of record on the
issue of whether Mr. Stutenkemper’s chronic obstructive pulmonary disease
was related to his
presumed in-service exposure to herbicides, and the Board determined that
Dr. Robbins’s opinion
was against Mrs. Stutenkemper’s claim. Therefore, even though the Board
erred in relying on the
inadequate medical opinions of Dr. Bell and Dr. Chaudary, that error was
harmless because the only
remaining probative evidence was against her claim. See 38 U.S.C. § 7261(
b)(2); Conway, 353 F.3d
at 1374.
10

III. CONCLUSION
Upon consideration of the foregoing, the March 12, 2010, Board decision is
AFFIRMED.
DATED: July 12, 2011
Copies to:
Todd M. Wesche, Esq.
VA General Counsel (027)
11

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