Veteranclaims’s Blog

August 8, 2011

Single Judge Application, Claim File Review, Nieves-Rodriguez v. Peake, 22 Vet.App. 295, 303(2008)

Excerpt from decision below:
“Although the failure to review the claims file does not render an examination per se inadequate, where, as here, the Board explains “what information in the claims file was important and necessary for a competent and persuasive medical opinion” (i.e., the service medical records recording a documented history of injury and incidents relating to his service as a paratrooper), the failure to review the claims file is a legitimate basis on which to discount a medical opinion. See Nieves-Rodriguez v. Peake, 22 Vet.App. 295, 303(2008).”
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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 10-0447
KENNETH D. MARLOW, 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 Kenneth D. Marlow appeals through counsel
from a
December 18, 2009, Board of Veterans’ Appeals (Board) decision that denied
entitlement to service
connection for a (1) right knee disorder, (2) lumbar spine disorder, (3)
bilateral shoulder disorders,
and (4) bilateral foot disorders. The Board also found that new and
material evidence had been
submitted to reopen his claim for a (1) cervical spine disorder with
headaches (formerly claimed as
“headaches”) and (2) left knee disorder. For the following reasons, the
Court will set aside Board’s
December 2009 decision and remand the matter for further development
consistent with this
decision.
Mr. Marlow served on active duty from March 1975 to March 1978 in an
airborne division
of the Army. During his service he reported participation in 56 jumps and
received a parachute
badge. Mr. Marlow seeks service connection for his various disabilities
claiming theyresulted from
the trauma of his in-service parachute jumps.
I. ANALYSIS
A. Bilateral Foot Disorder

Mr. Marlow first argues that the Board erred when it did not consider
bilateral pes planus as
part of his claim for a bilateral foot disability. Mr. Marlow argues that
the Board wrongly found that
his pes planus did not exist during the pendency of his claim. The
Secretary agrees that remand is
warranted for his bilateral foot disorder because of these errors.
Secretary’s Brief (Br.) at 4-5.
As the Secretary concedes, this Court stated that “a claimant may be
granted service
connection even though the disability resolves prior to the Secretary’s
adjudication of the claim.”
McClain v. Nicholson, 21 Vet.App. 319, 321 (2007). The claimant need
onlyhave a disabilityat any
time during the pendency of the claim. Id.
In its decision, the Board acknowledged “an in-service notation of
‘asymptomatic’ bilateral
pes planus and a 1990 diagnosis of the same.” Record (R.) at 11. The Board
then found, however,
that “the Veteran has not offered a diagnosis of pes planus during the
pendencyof this claim and that
particular disability will not be addressed.” R. at 11 (citing McClain,
supra). The Board cited to no
evidence that Mr. Marlow’s pes planus had resolved and the recordappears
to contain none. Because
the Board did not reject the 1990 diagnosis and there is no evidence that
Mr. Marlow’s condition had
resolved by October 2005, the Board’s statement of reasons or bases for
its determination that the
disability did not exist during the pendency of his claim, the Board’s
statement of reasons or bases
is inadequate. 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) (all Board findings of fact and
law must be accompanied
bya written statement of the reasons or bases explaining its findings and
conclusions on all material
issues presented on the record). Remand is therefore required for the
Board to address Mr. Marlow’s
pes planus as part of his bilateral foot claim.
Mr. Marlow similarly contends that the Board, in denying Mr. Marlow’s
bilateral foot claim,
wrongly ignored the principles set forth in Clemons. See Clemons v.
Shinseki, 23 Vet.App. 1, 4-5
(2009) (while a claimant mayidentifya particular condition, the scope of
the claim cannot be limited
only to the condition stated). Because Mr. Marlow’s claim for a bilateral
foot disorder is already
being remanded, the Court will not address this claim further. See Mahl v.
Principi, 15 Vet.App. 37,
38 (2001) (per curiam order) (“[I]f the proper remedy is a remand, there
is no need to analyze and
discuss all the other claimed errors that would result in a remedy no
broader than a remand.”).
B. July 2006 examination
2

Mr. Marlow also contends that a July 2006 VA examination was inadequate
as to all of his
claims. In that report, the examiner organized his analysis into three
parts labeled (1) “feet,”
(2) “joints,” and (3) “spine.” See R. at 351-66. The “joints” section is
relevant to Mr. Marlow’s
claims for bilateral knee and shoulder disorder while the “spine” section
includes an examination of
both Mr. Marlow’s cervical and lumbar spine disorders.
1. “Feet” Examination
As to his bilateral foot disorder, Mr. Marlow contends that the
examination was inadequate
because the examiner failed to recognize a diagnosis of pes planus during
service. The Secretary
concedes that the examination was inadequate for this reason. Secretary’s
Br. at 6.
The examiner stated that “[s]ervice medical records are silent for
significant report to sick
call for bilateral feet injuries while in the service.” R. at 364. The
record, however, contains an in-
service diagnosis of pes planus (see R. at 480). R. at 364. This opinion
is therefore based on an
inaccurate factual premise. See Reonal v. Brown, 5 Vet.App. 458, 461 (1993
) (medical opinions
based upon inaccurate factual premises are entitled no probative weight);
see also West v. Brown,
7 Vet.App. 70, 77-78 (1994) (stating that an examination that relies on an
inaccurate history is
inadequate for rating purposes); Wilson v. Derwinski, 2 Vet.App. 458, 460-
61 (1993) (the Board
must evaluate the credibilityand weight of the history upon which a
medical opinion is predicated).
In addition, because he did not recognize the in-service diagnosis, the
examiner failed to address
whether Mr. Marlow’s current bilateral foot condition was related to
service. The July 2006 VA
examination is therefore inadequate for rating purposes as it pertains to
Mr. Marlow’s bilateral foot
condition and the Board erred in its reliance on it.
2. “Joints” Examination
Mr. Marlow also argues that the July2006 VA examination was inadequate as
to his bilateral
knee claim because the examiner failed to recognize that he suffered “a
hematoma of the quadriceps
after injuring his left knee during service during parachute training
exercises.” Appellant’s Br. at 16;
see R. at 447. The examiner noted that “[s]ervice medical records are
silent for significant report
to sick call for . . . bilateral knee . . . injuries while in the service.”
R. at 357. However, there is a
service medical record indicating that Mr. Marlow injured his knee while
jumping over a banister
3

(resulting in a hematoma of the quadricep).1
R. at 447. The Secretary responds that “[i]t is quite
clear that the examiner was distinguishing from something that appeared
minor to him in his
professional opinion, and something of amedically’significant nature.'”
Secretary’s Br. at 10. While
the Secretary argues otherwise, it is not clear that such an Previous DocumentinjuryNext Hit did
not appear significant to the VA
examiner because the examiner did not mention this incident causingMr.
Marlow to make a sick call
anywhere in his report. This analysis does not allow the Board to
adequatelyconsider and weigh this
opinion against other medical opinions. See Stefl v. Nicholson, 21 Vet.App.
120, 124-25 (2007)
(“[A] medical opinion . . . must support its conclusion with an analysis
that the Board can consider
and weigh against contrary opinions.”). The Board’s reliance on the
examination was therefore in
error.
Mr. Marlow also contends that the examiner provided no explanation as to
why his current
joint problems were related to aging and not caused by his numerous jumps
as a paratrooper. See
id. An examination report must containclearconclusionsandsupporting data,
as well as “areasoned
medical explanation” connecting the data and conclusions. Nieves-Rodriguez
v. Peake, 22 Vet.App.
295, 301 (2008).
The July 2006 VA examiner opined that
[b]ased on this patient’s history, review of his C-file and his
examination to date, it
is felt that the patient’s bilateral impingement syndromes of his
shoulders . . . are
[not] caused by a result of trauma while in the service but rather
secondary to a
normal aging process for a 50-year-old individual.
R. at 362.
The examiner provided no rationale for his conclusion that Mr. Marlow’s
current bilateral
shoulder symptoms are more likely related to aging than his service as a
paratrooper. The portion
of the examination related to Mr. Marlow’s bilateral shoulder impingement
is therefore inadequate.
See Stefl and Nieves-Rodriguez, both supra.
3. “Spine” Examination
Mr. Marlow also contends that the examiner provided no rationale for his
conclusion that his
current spine conditions were related to aging and not caused by his
numerous jumps as a
paratrooper.
1
Mr. Marlow has stated that jumping over banisters was part of his training
during parachute school. R. at 57.
4

The July 2006 VA examiner opined that
based on this patient’s history, review of his C-file and his examination
to date, the
patient[‘s] intervertebral disc disease in the cervical spine and low back
is not caused
by a result of trauma while in the service. It is felt by this medical
examiner that this
is a normal aging process that is not disproportional for this
individual’s age. The
patient does not demonstrate significant intervertebral disc disease,
compression
fractures or medical conditions that would be attributed to a parachuting
accident.
R. at 355.
TheexaminerdeterminedthatMr.Marlow’s
discdiseasewasagerelatedbecausetheseverity
of the condition was consistent with Mr. Marlow’s age and that the
appellant lacked other potential
indications of trauma from parachuting. The examiner based his opinion on
his review of Mr.
Marlow’s past history and its relation to Mr. Marlow’s current condition.
The examiner’s conclusion
regarding Mr. Marlow’s lumbar spine condition is therefore adequately
supported by a reasoned
medical explanation. See Nieves-Rodriguez, supra.
In sum, the examination is inadequate as to Mr. Marlow’s bilateral feet,
bilateral knee, and
bilateral shoulder disorders. On remand, VA must provide Mr. Marlow an
examination that
adequately considers these conditions.
C. Lay Statements
Mr. Marlow next argues that the Board erred in its treatment of his lay
statements. In regard
to his lay statement the Board found:
[I]n this case that the Veteran’s account of severe injuries associated
with parachute
jumping is not consistent with the documentation of the STR [service
treatment
records], which is conspicuously absent for treatment of significant
cervical spine,
bilateral knee, lumbar spine, bilateral shoulder or bilateral foot
disabilities.
In regard to chronicity of symptoms, the Veteran’s account is inconsistent
with the
medical evidence of record, which is absent for treatment for the current
disorders
for almost thirty years after service.2
Moreover, the Veteran’s initial claim for service connection was
conspicuously
absent of any mention of right knee, low back bilateral shoulder, and
bilateral foot
Mr. Marlow received treatment on his feet approximately 12 years after
service in 1990, and thus the Board’s
statement is inaccurate as to his foot condition.
2
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problems. See Shaw v. Principi, 3 Vet. App. 365 (1992) (a veteran’s
delayin asserting
a claim can constitute negative evidence that weighs against the claim).
R. at 18.
The Board committed at least three errors in this analysis. First, as
already discussed, the
service treatment records were not absent for potentiallysignificant
treatment for both Mr. Marlow’s
bilateral knee and foot conditions and thus that portion of the analysis
as it pertains to those
conditions is factually inaccurate.
Next, while the Board may weigh the absence of
contemporaneous medical evidence against the lay evidence in determining
credibility, the Board
cannot determine that lay evidence lacks credibility merely because it is
unaccompanied by
contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (
Fed. Cir. 2006). By
not providing any other rationale except that there was no contemporaneous
medical evidence of
treatment, the Board’s treatment of Mr. Marlow’s lay statements regarding
the continuity of
symptomatology is inconsistent with Buchanan. Finally, the Board’s
reliance on Shaw was in error
as this was a non-precedential single judge decision. As nearly all of the
Board’s analysis here is
inadequate because of these errors, remand is required for the Board to
adequately address Mr.
Marlow’s lay statements.
D. July 2006 VA Examination More Probative
Finally, Mr. Marlow argues that the Board failed to provide an adequate
statement of reasons
or bases for finding more probative the July 2006 VA examination over the
February and June 2008
favorable medical opinions. See Allday and Gilbert, both supra. To provide
an adequate statement
of reasons or bases, 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. See Caluza v. Brown, 7
Vet.App. 498, 506
(1995). In particular, the Board may favor one medical opinion over
another as long as it provides
adequate reasons or bases. Owens v. Brown, 7 Vet.App. 429, 433 (1995).
Here the Board provided adequate rationale for finding the favorable 2008
medical evidence
less probative. The Board determined that neither the February 2008 letter
from a VA nurse
practitioner nor the March 2008 VA outpatient records, written with access
to Mr. Marlow’s service
medical records and did not mention the negative service medical records,
the lack of an
6

compression fractures indicative of trauma, and the lack of treatment for
decades after service. R.
at 14-15. The Board found that the two favorable opinions were entitled to
little probative value
because the history provided came entirely from Mr. Marlow. Although the
failure to review the
claims file does not render an examination per se inadequate, where, as
here, the Board explains
“what information in the claims file was important and necessary for a
competent and persuasive
medical opinion” (i.e., the service medical records recording a documented
history of Previous HitinjuryNext Document and
incidents relating to his service as a paratrooper), the failure to review
the claims file is a legitimate
basis on which to discount a medical opinion. See Nieves-Rodriguez v.
Peake, 22 Vet.App. 295, 303
(2008). The Board therefore did not err in favoring the July 2006 VA
examination over the
favorable 2008 medical evidence. This analysis, however, is irrelevant to
those portions of the July
2006 VA examination the Court has already deemed inadequate.
II. CONCLUSION
On consideration of the foregoing, the Court SETS ASIDE the December 2009
Board
decision and REMANDS all matters for further development. In pursuing his
claim on remand, Mr.
Marlow will be free to submit additional evidence and argument in support
of the 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 upon the
filing of a new Notice of
Appeal with the Court not later than 120 days after the date on which
notice of the Board’s new final
decision is mailed to the appellant. Marsh v. West, 11 Vet.App. 468, 472 (
1998).
DATED: July 29, 2011
Copies to:
David J. Lowenstein, Esq.
VA General Counsel (027)
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