Veteranclaims’s Blog

August 11, 2011

Single Judge Application, Clarification Medical Reports, Savage 24 Vet.App. 259, 260 (2011)

Filed under: Uncategorized — Tags: , , — veteranclaims @ 3:14 pm

Excerpt from decision below:
“In Savage, the Court held that, “in some circumstances, VA does have a duty to return for clarification unclear or insufficient private examination reports . . . , or the Board must explain why such clarification is not necessary.”
24 Vet.App. 259, 260 (2011). The Court further explained that: It should be clearly understood, then, that we do not interpret VA statutes and regulations as establishing a broad requirement that VA inquire of private medical experts regarding the opinions expressed in their examination reports or the general bases therefor. Indeed, we do not expect that clarification of a private examination report will be necessary in most instances . . . .
7

Rather, our holding is limited to 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. at 270 (first and third emphasis added). In that case, the Court held that VA violated its duty to seek clarification of a private medical opinion where it failed to inquire as to a precise and discernable fact, which speech recognition test the private physician had used, information that was
“factual, objective” and did “not in any way rely on the opinion of the
examiner.” Id.”
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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 09-4228
HARRY W. LOWRY, 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: Harry W. Lowry appeals through counsel an October 27, 2009,
Board of
Veterans’ Appeals (Board) decision that denied entitlement to VA benefits
for syphilis and an
acquiredpsychiatricdisorder,includingassecondaryto syphilis. TheCourt
hasjurisdiction pursuant
to 38 U.S.C. §§ 7252(a) and 7266(a) to review the October 2009 Board
decision. Neither party
requestedoralargumentoridentifiedissues
theybelieverequireaprecedentialdecisionoftheCourt.
Because the Board provided an adequate statement of reasons or bases for
its decision that Mr.
Lowry is not entitled to VA benefits for syphilis or an acquired
psychiatric disorder, the Court will
affirm the October 2009 Board decision.
I. FACTS
Mr. Lowry served on active duty in the U.S. Army from November 1976 to
October 1980;
however, his period of service from January 1979 to October 1980 is
considered dishonorable for
VA benefit purposes. In July 1980, Mr. Lowry underwent a mental status
examination, and it was
determined that his behavior was normal, he was fully alert and oriented,
his mood was level, and
his thinking and thought content were clear.

Private medical records indicate that, in June 1988, Mr. Lowry tested
positive for syphilis.
In 1999, Mr. Lowry received treatment for various conditions from a
private physician, Dr.
Ellis F. Muther. In August 1999, Dr. Muther stated that he “reviewed with [
Mr. Lowry] the results
of his spinal fluid test which probably indicate that he does not have
neurosyphilis. The remainder
of his blood work-up was normal.” Record (R.) at 1224.
Shortly thereafter, Mr. Lowry filed a claim for VA benefits for syphilis
and an acquired
psychiatric disorder, including as secondary to syphilis. In a September
2001 rating decision, a VA
regional office denied Mr. Lowry’s claims. Mr. Lowry appealed that
decision to the Board and a
lengthy series of appeals and remands back and forth between the Board and
this Court ensued.
Also in September 2001, Mr. Lowry underwent a psychiatric consultation,
where he was
diagnosed with major depression, post-traumatic stress disorder, and some
form of dementia.
In March 2004, Edith D’Aquila-Lloyd, a VA medial center nurse, stated that ”
in 1978 [Mr.
Lowry] acquired syphilis without knowing it. In 1987 he was diagnosed with
syphilis . . . the
specialist physician told him that he had contracted the disease
approximately8-10 years prior to this
diagnosis.” R. at 422. She also stated that “[i]t is conceivable that the
neurologic impairment and
the psychiatric illness are the effect of the tertiary syphilis.” Id.
In September 2004, Mr. Lowrysubmitted a statement that: “Icontracted
syphilis while in the
Army. I was treated in 1987 at Health Department in Essex, MD . . .
treatment did not work . . . I
had what appeared to be a wart after I arrived at [Fort] Myer. It went
away.” R. at 1000.
In March 2007, Dr. Muther submitted a letter, stating:
[Mr. Lowry was] seen . . . for reassessment of [his] neurological and
psychological
impairment due to neurosyphilis which was detected seven years after [ ]
military
service[. H]owever, tertiarysyphilis can cause a varietyof neurological
impairments
among them cognitive dysfunction and a variety of psychiatric disorders
which have
been in the past variously labeled as bipolar disorder, substance abuse,
and others.
It is reasonable to assume that you contracted this neurosyphilis during
your military
service since symptoms of neurosyphilis may [exist] many years before they
are
evident.
R. at 419. A handwritten note at the end of the letter states that ”
because your honorable period of
service was longer it is more likely you contracted syphilis at that time.”
R. at 419.
2

In August 2007, Mr. Lowry underwent a VA infectious, immune, and
nutritional disabilities
examination. The examiner indicated that Mr. Lowry’s claims folder and
medical records were
reviewed. After recording Mr. Lowry’s medical history and performing a
physical examination, the
examiner stated that: “Icannot provide [the] request[ed] opinion about the
time of contraction of the
disease without resorting to speculation.” R. at 286.
Also in August 2007, Mr. Lowry underwent a VA psychiatric examination. The
examiner
indicated thatMr.Lowry’s claims file was reviewed. The examiner also
recordedhis medical history
and performed a mental status evaluation, diagnosing a mood disorder not
otherwise specified with
psychotic features by history. The examiner then stated that:
A determination of whether or not the claimant contracted his diagnosed
syphilis
during his period of honorable active military service cannot be
determined by this
examiner without resorting to mere speculation. Perhaps the physician
assessing his
physical status could address that. Regarding the relationship between his
current
psychiatricdisorderandhis claimedsyphilis; again, [this]
cannotberesolvedwithout
resorting to mere speculation. . . . If there were any organic nexus, it
would be more
likely to be associated with his head trauma, which was immediately
preceding his
episodes of psychosis (i.e., within one year) than his syphilis, which
admittedly had
gone for some period of time without treatment, but which showed no
evidence of
psychiatricconsequences,andwhichhadbeentreatedeffectivelyseveralyears
before
his major psychotic decompensation.
R. at 281-82.
In April 2008, a letter from the Baltimore County Department of Health
stated that “[t]his
is an old medical record retrieved from the Maryland State [Sexually
Transmitted Disease] medical
archives. Mr. Lowry was seen at the Essex Clinic initially on February 23,
1987 . . . where he was
treated . . . for early latent syphilis.” R. at 175.
In April 2009, Mr. Lowry underwent an additional VA psychiatric
examination. The
examiner reviewed Mr. Lowry’s medical records, as well as his medical and
psychiatric history, and
then performed a mental status examination. The examiner diagnosed Mr.
Lowry with biopolar
disorder and neurosyphilis. The examiner did not offer an opinion as to
whether Mr. Lowry’s
syphilis or acquired psychiatric disorders were related to service.
3

Later that month, Mr. Lowry was afforded an additional VA examination.
The examiner
stated that a syphilis test was done but that the results were within
normal limits. The examiner
continued that a diagnosis of syphilis was
Not possible because there is no pathology to render a diagnosis. The
medical
records use the diagnosis of neurosyphilis; however I was not able to find
any
medical records or office visits for a primary syphilis diagnosis, work up,
exam
findings etc. This concludes that the term Neurosyphilis was more likely
than not a
psychological diagnosis that was made as a result of the claimant’s mood
disorder,
history that he gave of a penile lesion and more likely than not a [
veneral disease
research laboratory] or similar test. The probability of a false positive
. . . testing
[result] is high enough to present concern that this [ ] influenced a
diagnosis. There
is no documentation that Ifound regardinga syphilis test so Icannot
comment further
on the exact test performed. There is one person that seems to have pushed
this
diagnosis in the medical records review, and this is a one, Dr. Murther.
He
admittedly all but states in one documented comment that he is making an
assumption about the diagnosis and does not reveal any conclusive data or
argument
as to why he made this opinion. There is too much speculation without
enough
convincingphysicalevidenceto
evensupportthisdiagnosisincludingthedescription
from the claimant of the word “wart.”
R. at 87. The examiner then opined that:
The wart the claimant refers to is not necessarily a manifestation of
syphilis. Other
causes would be Herpes Simplex, Chancroid, Bechert Syndrome, Genital Warts.
I
was not able to find a service note for a genital wart in the medical
records. The
review of records I have including this exam does not allow for a
correlation that a
genital wart existed. Furthermore,thelesions ofsyphilis arealmost always
described
as an ulcer and the term wart would make it more likely than not that this
was not a
syphilis lesion.

I have thoroughly reviewed all the medical records and unless I have
overlooked
something or there is medical documentation missing, the records that I
have
received from [VA] do not contain any visits for a penile wart and this
especially
includes the service period up until and ending with 1978. Furthermore,
there is no
reason to believe or assume that any part of the medical records are
missing. There
were several noted visits during the service [period] for some back pain;
a lymph
node in the groin, an eye lesion etc., and this concludes me to opin[e]
that the
claimant did not have any reservation about presenting to the medical
clinic for
assistance with his problems.
4

R. at 88.
In the October2009 Board decision currentlyon appeal, the Board found that
Mr. Lowrywas
not entitled to VA benefits for syphilis or an acquired psychiatric
disorder, including as secondary
to syphilis. The Board noted that Mr. Lowry had not tested positive for
syphilis since July 1988.
The Board also explained that it found the medical opinions of Dr. Muther
and nurse D’Acquila-
Loyd less probative than the April 2009 VA medical opinion and that, as
such, any indications of
syphilis were not related to Mr. Lowry’s period of honorable service. The
Board also found that Mr.
Lowry did not show any evidence of a psychiatric disorder during service
and, because he was not
service connected for syphilis, his current psychiatric disorder could not
be secondary to that
condition.
In his brief, Mr. Lowry’s sole argument is that the Board provided an
inadequate statement
of reasons or bases for its decision. Specifically, he asserts that “the
Board engaged in illogical or
erroneous reasoning, drew unwarranted conclusions[,] . . . failed to seek
original records that might
elucidatetheissues, developedits own medical opinion
evidenceimproperlyandwithout notice,and
presumed medical facts not in evidence.” Appellant’s Brief (Br.) at 1. The
Secretary disputes these
contentions and argues that the Board’s reasons or bases are adequate,
logical, and within its fact-
finding discretion. In addition, Mr. Lowry filed a notice of supplemental
authority pursuant to Rule
30(b) of this Court’s Rules of Practice and Procedure, indicating his
belief that the Court’s decision
in SavageNext Hit v. Shinseki, 24 Vet.App. 259 (2011), is applicable to his appeal.
II. ANALYSIS
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
enablea claimant to understand
the precise basis for the Board’s decision, as well as to facilitate
review in this Court. See Gilbert
v. Derwinski, 1 Vet.App. 49, 57 (1990). 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 claimant. See Caluza v. Brown, 7 Vet.App. 498, 506 (1995),
aff’d per curiam,
5

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.
Mr. Lowry first argues that the Board relied upon inadequate and illogical
reasoning in
rejecting evidence favorable to his claim, including making impermissible
medical judgments and
mischaracterizing facts. The Court disagrees. First, the Court notes that
it is the Board’s duty to
weigh the evidence and to determine its credibility and probative value.
See Washington v.
Nicholson, 19 Vet.App. 362- 367-68 (2005). Here, the Court concludes that
the Board complied
with this duty by discussing the relevant evidence of record, including
the favorable medical
evidence. The Board specifically addressed Mr. Lowry’s arguments in this
regard, explaining that:
As the attorney alluded to, [Mr. Lowry] has submitted statements from two
treating
professionals, [Dr. Murther] and [Nurse D’Aquila-Lloyd], purporting to
link [his]
February 1987 syphilis diagnosis to his military service. These opinions
are entirely
based on [Mr. Lowry]’s statements as to his symptoms, treatment and
diagnoses that
he made to them ten years after this treatment and twenty years after his
service. At
the time they made their conclusions, neither doctor appears to have had
access to
[his] treatment records – either from service, the intervening period
between the
conclusion of his service and his February1987 diagnosis of syphilis, his
subsequent
syphilis treatment in 1987, or his follow-up consultations in 1988 and
1989.
Significantly, the Board received records from Franklin Squarein
February2004 and
from [Baltimore County Public Health] in May 2008, after the two
statements were
issued, and has no medical records whatsoever between service and 1987.
More
significantly, these records show early latent syphilis in February 1987
and do not
include a diagnosis of neurosyphilis.

Neither medical opinion accounts for why [Mr. Lowry]’s February 1987
syphilis
diagnosis was characterized as “early latent,” nor do they account for why
he would
continue to develop new neurological and psychological complications from
a
disease, despite all laboratory testing coming up negative for a current
infection.
Consequently, these opinions hav[e] little probative value. Not only are
they rife
with factual inaccuracies, they are based entirely on [Mr. Lowry]’s
account of his
symptoms, treatment and diagnoses.
R. at 18-19. The Board went on to discuss why it did not find Mr. Lowry
credible, including
contradictory statements that he made throughout the course of the appeal
and the lack of evidence
6

in his service treatment and post-service medical records. The Court
finds the Board’s discussion
thorough and logical, particularly in light of the several remands made
from this Court instructing
the Board to further explain its findings. Although Mr. Lowry does not
ultimately agree with the
Board’s findings, the Court cannot discern any instances of the use of
improper medical judgment
or mischaracterization of the facts.
Mr. Lowry next argues that the Board’s use of The Merck Manual to explain
the definition
of “latent syphilis” was improper and constituted an improper use of
medical judgment. Although
the Court acknowledges that the Board may not exercise independent medical
judgment, see Colvin
v. Derwinski, 1 Vet.App. 171, 175 (1991), the Court does not equatethe
Board’s citing a medical text
for the definition of a term with independent medical judgment. The Merck
Manual is an accepted
general medical text, and it is often used by this Court to supplement the
definitions of medical
terms. See, e.g., Brokowski v. Shinseki, 23 Vet.App. 79, 82, n.6 (2009) (
citing to The Merck Manual
to define peripheral vascular disease); Barr v. Nicholson, 21 Vet.App. 303,
308 (2007) (citingto The
Merck Manual to define varicose veins). Further, the Court has held that,
in a Board decision,
“‘reasons or bases’ could include relevant portions of medical treatises
and journals, epidemiological
studies, [and] perhaps even references to legal decisions on the same
issues.” Murphy v. Derwinski,
1 Vet.App. 78, 81 (1990). Therefore, because the Board cited The Merck
Manual only to provide
a definition for a medical term, it did not violate the principle that the
Board may not exercise its
own independent medical judgment.
Similarly, Mr. Lowry argues that the Board made an improper medical
judgment by
discounting the Baltimore County Public Health record, as opposed to
supplementing the document
pursuant to Previous HitSavageNext Hit. Again, the Court disagrees. In Previous HitSavageNext Hit, the Court held
that, “in some
circumstances, VA does have a duty to return for clarification unclear or
insufficient private
examination reports . . . , or the Board must explain why such
clarification is not necessary.”
24 Vet.App. 259, 260 (2011). The Court further explained that:
It should be clearly understood, then, that we do not interpret VA
statutes and
regulations as establishing a broad requirement that VA inquire of private
medical
experts regarding the opinions expressed in their examination reports or
the general
bases therefor. Indeed, we do not expect that clarification of a private
examination
report will be necessary in most instances . . . .
7

Rather, our holding is limited to 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. at 270 (first and third emphasis added). In that case, the Court held
that VA violated its duty to
seek clarification of a private medical opinion where it failed to inquire
as to a precise and
discernable fact, which speech recognition test the private physician had
used, information that was
“factual, objective” and did “not in any way rely on the opinion of the
examiner.” Id.
Here, Mr. Lowry contends that VA had a duty to seek clarification of the
letter provided by
the Baltimore County Public Health Department. That letter states:
This is an old medical record retrieved from the Maryland State [
sexuallytransmitted
disease] medical archives. Mr. Lowry was seen at the Essex [sexually
transmitted
disease] clinic initially on February23, 1987. His [rapid plasma reagin]
was reactive
with a titer of 1:32 and a positive [fluorescent treponemal antibody]. Mr.
Lowry
returnedto [the]Essex [sexuallytransmitteddisease]cliniconMarch16,
1987where
he was treated with 2.4 [million units] of Bicillin for early latent
syphilis.
R. at 175. However, as stated above, the Court explicitly declined to
interpret VA’s duty to seek
clarification of a private medical record to situations where, as here,
the ambiguity in the private
medical record arises from the physician’s failure to provide a medical
opinion, for example, an
opinion as to the exact date Mr. Lowry initially acquired syphilis. This
is simply not the kind of
narrow, discreet, factual, and objective information that can form the
basis of VA’s duty to seek
clarification of a private medical opinion. See Previous HitSavageNext Document, supra.
Consequently, the Court concludes
that the Board did not clearlyerr bynot seeking clarification of the
letter from the Baltimore County
Public Health Department.
In the same vein, Mr. Lowry next argues that the Board erred in not
obtaining all available
medical records, therefore violating the duty to assist. Specifically, he
argues that after receiving the
letter from the Baltimore County Public Health Department, the Board had a
duty to obtain
additional original medical records; he states that “[t]he letter also
does not saywhether all available
records were reviewed or whether all of the information on the available
records is included in the
summary stated in the letter.” Appellant’s Br. at 9. In its decision, the
Board found that “VA . . .
8

fulfilled its dutyto assist[,]” noting thattheregionaloffice”obtained [Mr.
Lowry’s] servicetreatment
records, VA treatment records, Social Security Administration records, and
those private medical
records that he and his attorney and prior representative identified as
pertinent.” R. at 10.
After a review of the record, the Court concludes that the Board did not
clearly err by not
requesting any additional treatment records from the Baltimore County
Public Health Department.
Although Mr. Lowry indicated that there were possibly additional records
available from the
Baltimore County Public Health Department, there is no indication from the
record that he provided
VA with the additional information required to obtain those records. See
38 U.S.C. § 5103A(b)(1).
Accordingly, the Court concludes that Mr. Lowryhas not carried his burden
of demonstrating error.
See Hilkert v. West, 12 Vet.App. 145, 151 (1999), aff’d 232 F.3d 908 (Fed.
Cir. 2000) (table).
Finally, Mr. Lowryargues that the Board’s decision is written in an
argumentative and biased
manner and that it is illogical because the reasoning used to deny his
claim in the October 2009
decision differs from the rationale proffered in the prior vacated Board
decisions. Once again, the
Court disagrees. With regard to Mr. Lowry’s argument about bias, he cites
to 38 C.F.R. § 4.23 for
the proposition that:
rating officers must not allow their personal feelings to intrude; an
antagonistic,
critical, or even abusive attitude on the part of a claimant should not in
any instance
influence the officers in the handling of the case. Fairness and courtesy
must at all
times be shown to applicants by all employees whose duties bring them in
contact,
directly or indirectly, with the Department’s claimants.
38 C.F.R. § 4.23 (2011). Although the Court agrees with and emphasizes
the importance of this
principle, the Court cannot discern from the record any instance of bias
or unfairness that
compromised the adjudication process in Mr. Lowry’s appeal. To the
contrary, as was noted above,
the Court acknowledges that, given the lengthy procedural history in this
case and the fact that the
Board was instructed on several different occasions to clarify its reasons
or bases, a more detailed
discussion of why Mr. Lowry’s claims were being denied was required. See,
e.g., Fletcher v.
Derwinski, 1 Vet.App. 394, 397 (1991) (Court reminding the Board that a
remand “is meant to entail
a critical examination of the justification for the decision”). The Court
concludes that, as outlined
above, such a statement of reasons or bases was provided here. Upon review
of the record and the
Board decision, the Court can simply not conclude that the manner in which
the Board decision was
9

written goes against VA’s nonadversarial adjudication system. See
Henderson v. Shinseki, 131 S. Ct.
1197, 1200 (2011) (noting that “VA’s process for adjudicating [a claim] at
the regional office and
the Board is ex parte and nonadversarial”).
Turning to Mr. Lowry’s argument that the Board decision should be vacated
because the
Board used different reasoning to deny Mr. Lowry’s claims in October 2009
than in the previous
Board decisions, this argument is also without merit. Throughout the
course of Mr. Lowry’s appeal,
during much of which he was represented by an attorney, he was provided
with the opportunity to
provide additional evidence each time his claim was remanded, and he did
so. Accordingly,
evidence was added to the record at various points in the appeal process.
The Court notes that
“Determinations as to service connection will be based on review of the
entire evidence of record”
and not merely on the evidence that was of record at the time of a prior
remand. 38 C.F.R.
§ 3.303(a) (2011) (emphasis added); see also 38 C.F.R. § 19.7 (2011) (”
Decisions of the Board are
based on a review of the entire record.”) (emphasis added). Therefore, it
logically dictates that the
reasoning employed in the Board decision would not remain static as the
evidence was added to the
record. Further, once a prior Board decision has been vacated, it has been
nullified or cancelled and
is void. See BLACK’S LAW DICTIONARY 1688 (9th ed. 2009). Accordingly, the
reasoning employed
in that Board decision also becomes null and void and is therefore
inapplicable to any subsequent
adjudication that takes place as part of the appeal.
For the reasons outlined above, the Court concludes that the Board
provided an adequate
statement of reasons or bases for its decision. See Gilbert, 1 Vet.App. at
57. Accordingly, the Court
will affirm the October 2009 Board decision.
III. CONCLUSION
Upon consideration of the foregoing, the October 27, 2009, Board decision
is AFFIRMED.
DATED: August 5, 2011
Copies to:
David E. Boelzner, Esq.
VA General Counsel (027)
10

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