Veteranclaims’s Blog

August 25, 2017

Single Judge Application; Polovick v. Shinseki, 23 Vet.App. 48, 55 (2009);

Filed under: Uncategorized — Tags: , , — veteranclaims @ 10:06 am

Excerpt from decision below:

“Third, the examiner’s opinion contains a conceptual problem that the Board should address on remand. As the examiner noted, the Secretary maintains a list of diseases that he presumes, for the purposes of determining compensability, to be linked to herbicide exposure. See 38 C.F.R. §§ 3.307(a)(6) (2016); 3.309(e) (2016). Congress has instructed the Secretary to add disorders to that list when he determines “on the basis of sound medical and scientific evidence, that a positive association exists between . . . the exposure of humans to an herbicide agent, and . . . the occurrence
3
of a disease in humans.” 38 U.S.C. § 1116(b)(1). Congress mandated that, when deciding whether a disorder is associated with herbicide exposure, the Secretary “shall take into account . . . reports received . . . from the National Academy of Sciences.” 38 U.S.C. § 1116(b)(2).
The April 2013 examiner reported that the National Academy of Sciences concluded that “‘the evidence overall [is] inadequate or insufficient to determine whether an association exists'” between renal cell cancer and herbicide exposure. R. at 142. In other words, the scientific
community has yet to produce studies sufficient to determine whether herbicides and renal cell cancer are associated. Scientists cannot say that there is a link and they cannot say that there is not a link. The necessary scientific knowledge about that matter is lacking.
The April 2013 examiner, however, stated that because “there is not enough evidence in current medical studies to show an association between [renal cell cancer and herbicides], then from a medical reasoning standpoint, causation is even less likely.” R. at 143. The examiner’s conclusion does not follow. The examiner assumed that if the National Academy of Sciences did not find a link
sufficient to establish presumptive service connection for a claimed herbicide-related disorder, then there is no link between herbicides and that disorder. Once again, existing scientific knowledge does not say whether there is a link between herbicides and renal cell cancer. There may be a causal link, there may not be. There is no way to know because there is no evidence, or at least insufficient
evidence, addressing the matter. There appears, therefore, to be no medical evidence supporting the examiner’s assertion that causation is not likely in this case.
Given the way that the Board handled Dr. Iqbal’s statement, it should have recognized as much. Dr. Iqbal stated “[t]here seems to be a higher incidence of [cancers like the appellant’s] with the exposure of [A]gent [O]rang[e].” R. at 349. The April 2013 examiner confirmed that this statement is accurate.1 The Board, however, “ascribe[d] no probative value to this opinion, as the
opinion is at best, speculative in nature. . . . As such, it is a speculative comment on the [appellant’s] claim, and therefore insufficient to support a claim to service connection.” R. at 14; citing Jones v. Shinseki, 23 Vet.App. 382, 390 (2010).
1 He did not, however, fully discuss the implications of Dr. Iqbal’s statement.
4
The Board should have considered whether this same logic applies to the April 2013 examiner’s opinion. If, given present scientific knowledge, a medical expert cannot establish a causal link between herbicides and renal cell cancer without resorting to speculation, then surely a medical expert also cannot say that no causal link exists without speculating. The Board should
address this matter on remand.
Finally, in Polovick v. Shinseki, the Court concluded that an examiner addressing causation between a disorder and herbicide exposure may not base his opinion on a National Academy of Sciences report alone. Otherwise, “[t]o permit the denial of service connection for a disease on the basis that it is not likely there is any nexus to service solely because the statistical analysis does not
support presumptive service connection would, in effect, permit the denial of direct service connection simply because there is no presumptive service connection.” 23 Vet.App. 48, 55 (2009).
Although the April 2013 examiner cited to evidence other than National Academy of Sciences reports, he repeatedly returned to those reports when he made concluding statements. The examiner first noted that there “is at least some evidence that increased rates” of renal cell cancer “may be associated” with herbicide exposure. R. at 142. “However,” he continued, the National
Academy of Sciences “found the evidence overall inadequate or insufficient to determine whether an association exists.” Id.
In the next paragraph, the examiner stated that the “short version” of his opinion is that, if the preparers of the National Academy of Sciences reports “can’t conclude that there is causation . . . the argument for causation doesn’t hold up.” Id. The examiner then addressed the appellant’s assertion that interstitial cystitis, a disease that he suffered from several years before his cancer diagnosis, shows that herbicides had a profound overall effect on his genitourinary system. The
examiner reported that “[a]n internet search for peer-reviewed articles to find support for this contention was not fruitful.” 2 R. at 143. The examiner continued: “Again, the expectation is that
2 The Board should note that the examiner did not reach any definitive conclusion about the appellant’s
assertion. The Board stated that the record reveals that the appellant had hematuria, urethral bleeding, and a renal cyst
about six years before his November 2008 surgery. The examiner made no effort to demonstrate how the appellant’s
interstitial cystitis and other genitourinary abnormalities are related to his renal cell cancer and to decide whether they
provided any clues about the likely etiology of that disorder.
5
if there was good data for even ‘association,’ much less ‘causation,’ it would appear on the presumptive list, which it does not.” Id.
The examiner next noted that an internet article about renal cancer did not contain “sufficient evidence to determine the cause” of the appellant’s cancer, “so we are back to looking at the [National Academy of Sciences] issues noted above.” Id.
All of these statements suggest that the examiner entirely relied on the National Academy of Sciences report to reach his decision. The Board did not apply Polovick to the examiner’s opinion in the decision here on appeal.

====================

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 15-3273
GERALD B. SHERWOOD, APPELLANT,
V.
ROBERT A. MCDONALD,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before PIETSCH, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent.
PIETSCH, Judge: The appellant, Gerald B. Sherwood, appeals through counsel a July 6, 2015, Board of Veterans’ Appeals (Board) decision in which the Board denied him entitlement to disability benefits for renal cell carcinoma. Record (R.) at 3-16. This appeal is timely and the Court has jurisdiction over the matter on appeal pursuant to 38 U.S.C. §§ 7252(a) and 7266. Single-judge
disposition is appropriate when the issues are of “relative simplicity” and “the outcome is not reasonably debatable.” Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). For the reasons that follow, the Court will vacate the Board’s decision and remand the matter on appeal for further proceedings consistent with this decision.
I. BACKGROUND
The appellant served on active duty in the U.S. Army from June 1957 until June 1960 and
from August 1960 until August 1977. R. at 1198, 1200, 1202, 1226. He spent nearly two years of
his service in Vietnam. R. at 1202.
In November 2008, the appellant underwent surgery for right renal cell cancer. R. at 350-51.
The surgery revealed that he had a clear cell carcinoma and surgeons performed a nephrectomy to
remove the diseased portion of his right kidney. Id.
In December 2008, the appellant filed a claim for entitlement to disability benefits for his
renal cell cancer. R. at 353. He alleged that herbicides that he was exposed to during his service in
Vietnam caused his cancer to develop. R. at 353. He submitted a letter written by Dr. Mohammad
J. Iqbal, his private physician. Dr. Iqbal wrote that “[t]here seems to be a higher incidence of
[cancers like the appellant’s] with the exposure of [A]gent [O]rang[e].” R. at 349.
In March 2009, the VA regional office (RO) denied the appellant’s claim. R. at 235-40. In
April 2009, he filed a Notice of Disagreement with the RO’s decision and, in September 2009, he
appealed to the Board. R. at 181-82, 224.
In February 2013, the Board remanded the appellant’s claim for additional development. R.
at 155-59. The Board ordered the Secretary to schedule him for a “VA genitourinary system
examination to ascertain the likely etiology of the renal cell carcinoma.” R. at 158. In April 2013,
a VA medical examiner concluded that it is “less likely than not” that the appellant’s cancer is related
to his active service. R. at 143.
On July 6, 2015, the Board issued the decision here on appeal. R. at 3-16.
II. ANALYSIS
The lone unresolved question in this case is whether the herbicides that the appellant was
exposed to during his active service caused his renal cell cancer to develop. The Board relied
entirely on the April 2013 VA examiner’s opinion to support its conclusion that they did not. On
appeal, the appellant challenges the adequacy of the April 2013 examination report. See Nieves-
Rodriguez v. Peake, 22 Vet.App. 295, 301 (2008) (holding that a medical opinion must “contain not
only clear conclusions with supporting data, but also a reasoned medical explanation connecting the
two”); Stefl v. Nicholson, 21 Vet.App. 120, 123 (2007) (holding that a medical opinion is adequate
“where it is based upon consideration of the veteran’s prior medical history and examinations and
also describes the disability, if any, in sufficient detail so that the Board’s ‘evaluation of the claimed
disability will be a fully informed one.'”) (quoting Ardison v. Brown, 6 Vet.App. 405, 407 (1994)).
The Board’s statement of reasons or bases supporting its determination that the April 2013
examination report is adequate is deficient for a number of reasons. First, the Board noted that “in
addition to the paper claims file, there is a Virtual VA and VBMS paperless claims file associated
2
with the [appellant’s] claims.” R. at 4. The Board stated that “review of the documents in such file
reveals that VA treatment records from the Louisville VA Medical Center dated through February
2013 and an Informal Hearing Presentation has been submitted.” Id. These documents, the Board
indicated, are not in the appellant’s paper claims file.
In its February 2013 remand, the Board ordered the RO to “associate with the claims file VA
treatment records from August 2009 to the present.” R. at 157. The Board ordered that the Secretary
should then ask a VA medical examiner to examine the appellant. R. at 158. The Board wrote that
“[i]t is imperative that the claims file be made available to the examiner for review in connection
with the examination.” R. at 158.
The April 2013 examiner stated that he had reviewed the appellant’s claims file. R. at 141.
He did not indicate that he reviewed the documents that were filed in a paperless format. In the
decision presently on appeal, the Board stated that the examiner’s familiarity with the claims file,
including “post-service medical evidence,” is an important reason why his report is adequate. R. at
6, 14. It did not acknowledge the examiner’s possible failure to review or take into account the
documents held in paperless format. On remand, the Board should carefully consider whether the
examiner reviewed those documents and, if he did not, whether his failure to do so undermines the
adequacy of his report.
Second, in its February 2013 remand, the Board asked for an opinion “ascertain[ing] the
likely etiology of the renal cell carcinoma.” R. at 158. That’s not what it got. The examiner
indicated that there are only a handful of factors that are known to be associated with renal cancer
development. The examiner concluded that none of those factors explains why the appellant’s cancer
developed. He also did not link the appellant’s cancer to herbicide exposure. The etiology of the
appellant’s cancer, therefore, remains a mystery.
Third, the examiner’s opinion contains a conceptual problem that the Board should address
on remand. As the examiner noted, the Secretary maintains a list of diseases that he presumes, for
the purposes of determining compensability, to be linked to herbicide exposure. See 38 C.F.R.
§§ 3.307(a)(6) (2016); 3.309(e) (2016). Congress has instructed the Secretary to add disorders to
that list when he determines “on the basis of sound medical and scientific evidence, that a positive
association exists between . . . the exposure of humans to an herbicide agent, and . . . the occurrence
3
of a disease in humans.” 38 U.S.C. § 1116(b)(1). Congress mandated that, when deciding whether
a disorder is associated with herbicide exposure, the Secretary “shall take into account . . . reports
received . . . from the National Academy of Sciences.” 38 U.S.C. § 1116(b)(2).
The April 2013 examiner reported that the National Academy of Sciences concluded that
“‘the evidence overall [is] inadequate or insufficient to determine whether an association exists'”
between renal cell cancer and herbicide exposure. R. at 142. In other words, the scientific
community has yet to produce studies sufficient to determine whether herbicides and renal cell
cancer are associated. Scientists cannot say that there is a link and they cannot say that there is not
a link. The necessary scientific knowledge about that matter is lacking.
The April 2013 examiner, however, stated that because “there is not enough evidence in
current medical studies to show an association between [renal cell cancer and herbicides], then from
a medical reasoning standpoint, causation is even less likely.” R. at 143. The examiner’s conclusion
does not follow. The examiner assumed that if the National Academy of Sciences did not find a link
sufficient to establish presumptive service connection for a claimed herbicide-related disorder, then
there is no link between herbicides and that disorder. Once again, existing scientific knowledge does
not say whether there is a link between herbicides and renal cell cancer. There may be a causal link,
there may not be. There is no way to know because there is no evidence, or at least insufficient
evidence, addressing the matter. There appears, therefore, to be no medical evidence supporting the
examiner’s assertion that causation is not likely in this case.
Given the way that the Board handled Dr. Iqbal’s statement, it should have recognized as
much. Dr. Iqbal stated “[t]here seems to be a higher incidence of [cancers like the appellant’s] with
the exposure of [A]gent [O]rang[e].” R. at 349. The April 2013 examiner confirmed that this
statement is accurate.1 The Board, however, “ascribe[d] no probative value to this opinion, as the
opinion is at best, speculative in nature. . . . As such, it is a speculative comment on the [appellant’s]
claim, and therefore insufficient to support a claim to service connection.” R. at 14; citing Jones v.
Shinseki, 23 Vet.App. 382, 390 (2010).
1 He did not, however, fully discuss the implications of Dr. Iqbal’s statement.
4
The Board should have considered whether this same logic applies to the April 2013
examiner’s opinion. If, given present scientific knowledge, a medical expert cannot establish a
causal link between herbicides and renal cell cancer without resorting to speculation, then surely a
medical expert also cannot say that no causal link exists without speculating. The Board should
address this matter on remand.
Finally, in Polovick v. Shinseki, the Court concluded that an examiner addressing causation
between a disorder and herbicide exposure may not base his opinion on a National Academy of
Sciences report alone. Otherwise, “[t]o permit the denial of service connection for a disease on the
basis that it is not likely there is any nexus to service solely because the statistical analysis does not
support presumptive service connection would, in effect, permit the denial of direct service
connection simply because there is no presumptive service connection.” 23 Vet.App. 48, 55 (2009).
Although the April 2013 examiner cited to evidence other than National Academy of
Sciences reports, he repeatedly returned to those reports when he made concluding statements. The
examiner first noted that there “is at least some evidence that increased rates” of renal cell cancer
“may be associated” with herbicide exposure. R. at 142. “However,” he continued, the National
Academy of Sciences “found the evidence overall inadequate or insufficient to determine whether
an association exists.” Id.
In the next paragraph, the examiner stated that the “short version” of his opinion is that, if
the preparers of the National Academy of Sciences reports “can’t conclude that there is causation .
. . the argument for causation doesn’t hold up.” Id. The examiner then addressed the appellant’s
assertion that interstitial cystitis, a disease that he suffered from several years before his cancer
diagnosis, shows that herbicides had a profound overall effect on his genitourinary system. The
examiner reported that “[a]n internet search for peer-reviewed articles to find support for this
contention was not fruitful.” 2 R. at 143. The examiner continued: “Again, the expectation is that
2 The Board should note that the examiner did not reach any definitive conclusion about the appellant’s
assertion. The Board stated that the record reveals that the appellant had hematuria, urethral bleeding, and a renal cyst
about six years before his November 2008 surgery. The examiner made no effort to demonstrate how the appellant’s
interstitial cystitis and other genitourinary abnormalities are related to his renal cell cancer and to decide whether they
provided any clues about the likely etiology of that disorder.
5
if there was good data for even ‘association,’ much less ‘causation,’ it would appear on the
presumptive list, which it does not.” Id.
The examiner next noted that an internet article about renal cancer did not contain “sufficient
evidence to determine the cause” of the appellant’s cancer, “so we are back to looking at the
[National Academy of Sciences] issues noted above.” Id.
All of these statements suggest that the examiner entirely relied on the National Academy
of Sciences report to reach his decision. The Board did not apply Polovick to the examiner’s opinion
in the decision here on appeal. On remand, it should do so. The Board should carefully review this
matter and the others discussed above and reconsider whether it had before it medical evidence
sufficient for it to make a well-informed decision.
The Court need not at this time address any other arguments that the appellant has raised.
See Best v. Principi, 15 Vet.App. 18, 20 (2001) (per curiam order) (holding that “[a] narrow decision
preserves for the appellant an opportunity to argue those claimed errors before the Board at the
readjudication, and, of course, before this Court in an appeal, should the Board rule against him”).
On remand, the appellant is free to submit additional evidence and argument on the remanded matter,
and the Board is required to consider any such relevant evidence and argument. See Kay v. Principi,
16 Vet.App. 529, 534 (2002); Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999) (per curiam
order). The Court has held that “[a] remand is meant to entail a critical examination of the
justification for the decision.” Fletcher v. Derwinski, 1 Vet.App. 394, 397 (1991). The Board must
proceed expeditiously, in accordance with 38 U.S.C. § 7112 (requiring the Secretary to provide for
“expeditious treatment” of claims remanded by the Court).
III. CONCLUSION
After consideration of the appellant’s and the Secretary’s briefs and a review of the record,
the Board’s July 6, 2015, decision is VACATED and the matter on appeal is REMANDED for
further proceedings consistent with this decision.
DATED: August 26, 2016
6
Copies to:
Robert V. Chisholm, Esq.
VA General Counsel (027)
7

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