Veteranclaims’s Blog

December 26, 2017

Single Judge Application; 38 U.S.C. § 1151; Reonal v. Brown, 5 Vet.App. 458, 461 (1993); examiner incorrect assumption;

Excerpt from decision below:

“As the statements quoted above reveal, the Board relied on the December 2013 examination report to reach its decision. That report is inadequate, and the Board’s finding to the contrary is clearly erroneous. 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)).
There is no doubt that the appellant’s cervical spine disorder became worse after his June 2007 chiropractic treatment. The examiner concluded, however, that it is “more likely than not that his symptoms represent expected progression of underlying disease” and not an “additional disability secondary to VA medical treatment.” R. at 40.”

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“The examiner first assumed that the appellant’s neck disorder did not begin to worsen until five months after his June 2007 chiropractic treatment. R. at 40. The appellant, however, reported that he began experiencing increased pain and restricted motion within a week of his final visit. R. at 859. The appellant is competent to report observable symptomatology and the Board did not find that he is not credible. Consequently, the examiner’s assumption that the appellant’s disorder did not worsen until months after his therapy is incorrect. See Reonal v. Brown, 5 Vet.App. 458, 461 (1993) (“An opinion based on an inaccurate factual premise has no probative value”).”

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“The examiner should have discussed these symptoms, compared them to the appellant’s account of what happened to him, and stated whether they reveal that he suffered an additional injury.3 For this and the other reasons discussed above, her report is inadequate. That inadequacy, in turn, caused the explanation that the Board gave for its conclusion that the appellant did not
suffer an additional disability in June 2007 to be deficient.”

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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 16-2751
STANLEY C. CHESSICK, JR., APPELLANT,
V.
DAVID J. SHULKIN, M.D.,
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 pro se appellant, Stanley C. Chessick, Jr., appeals a June 7, 2016, Board of Veterans’ Appeals (Board) decision in which the Board denied him entitlement to compensation pursuant to 38 U.S.C. § 1151 “for a neck and/or head disorder(s) claimed as due to VA medical treatment in June 2007.” Record (R.) at 2-11. This appeal is timely and the Court has jurisdiction over the matters 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. Marine Corps from October 1963 until September 1967. R. at 1574. Imagining studies conducted in 2004 and 2007 revealed that he had developed “mild median neuropathy at the right wrist” and degenerative abnormalities in his cervical spine. R. at 998-99, 1317, 1318.
2
On June 6, 2007, and June 11, 2007, a VA chiropractor and a student administered chiropractic therapy to the appellant. R. at 1023-24, 1026. On June 13, 2007, he discontinued the treatment. R. at 1023. In March 2008, he filed a claim for entitlement to section 1151 disability benefits.1 R. at 1227-28. He alleged that the chiropractor and his student incorrectly performed chiropractic treatments and that their actions caused his neck disorder to worsen. Id. In December 2008, the RO denied his claim. R. at 1807-12.
In November 2013, the Board remanded the appellant’s case for additional development. R. at 524-32. In December 2013, a VA medical examiner opined that “it is less likely as not that the [appellant] sustained additional disability as a result of VA care.” R. at 40. On June 7, 2016, the Board issued the decision presently under review. R. at 2-11.

II. ANALYSIS
In section 1151, Congress mandated that:
(a) Compensation . . . shall be awarded for a qualifying additional disability . . . in the same manner as if such additional disability . . . were service-connected. For purposes of this section, a disability . . . is a qualifying additional disability . . . if the disability . . . was not the result of the veteran’s willful misconduct and –
1) the disability . . . was caused by hospital care, medical or surgical
treatment, or examination furnished the veteran under any law
administered by the Secretary, either by a Department employee or
in a Department facility . . . and the proximate cause of the disability
. . . was –
(A) carelessness, negligence, lack of proper skill, error in
judgment, or similar instance of fault on the part of the
Department in furnishing the hospital care, medical or
surgical treatment, or examination; or
(B) an event not reasonably foreseeable[.]
38 U.S.C. § 1151.
The Board concluded that the “evidence does not show that the [appellant] has an additional disability as a result of VA treatment or that June 2007 VA treatment permanently worsened a disability that pre-existed treatment.” R. at 8. The Board explained that “[n]o additional disability
1 The appellant signed his claim on January 23, 2008, but the VA regional office (RO) did not receive it until two months later.
3

of the neck, head or upper extremities was noted in treatment records dated subsequent to chiropractic treatment in June 2007” and that the December 2013 VA examiner “specifically stated that she could not find objective change in his exam or imaging following the chiropractic visits.”Id.
As the statements quoted above reveal, the Board relied on the December 2013 examination report to reach its decision. That report is inadequate, and the Board’s finding to the contrary is clearly erroneous. 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)).
There is no doubt that the appellant’s cervical spine disorder became worse after his June 2007 chiropractic treatment. The examiner concluded, however, that it is “more likely than not that his symptoms represent expected progression of underlying disease” and not an “additional disability secondary to VA medical treatment.” R. at 40.
The examiner first assumed that the appellant’s neck disorder did not begin to worsen until five months after his June 2007 chiropractic treatment. R. at 40. The appellant, however, reported that he began experiencing increased pain and restricted motion within a week of his final visit. R. at 859. The appellant is competent to report observable symptomatology and the Board did not find that he is not credible. Consequently, the examiner’s assumption that the appellant’s disorder did not worsen until months after his therapy is incorrect. See Reonal v. Brown, 5 Vet.App. 458, 461 (1993) (“An opinion based on an inaccurate factual premise has no probative value”).
Next, the examiner stated that the results from a computed tomography (CT) examination performed in 2008 showed “no objective change . . . following chiropractic visits.” R. at 40. She did not, however, discuss the results of a radiographic study conducted in September 2009. R. at 844. That study revealed symptoms that the CT examination and imaging conducted before June 2007 did not, including “retro listhesis of the vertebral bodies” at “C5, C6 levels,” “interruptions
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of the sinolaminar junction line at C5, C6 segmental levels,” and “straightened” “lordotic curve.”2 Id. Furthermore, the care provider who interpreted the study’s findings wrote that “[s]pinous rotation to the left is seen in the cervical spinal region. The cervical spine is observed as being listed to the left lateral.” Id.
The examiner should have discussed these symptoms, compared them to the appellant’s account of what happened to him, and stated whether they reveal that he suffered an additional injury.3 For this and the other reasons discussed above, her report is inadequate. That inadequacy, in turn, caused the explanation that the Board gave for its conclusion that the appellant did not suffer an additional disability in June 2007 to be deficient.
The Board found that “[e]ven assuming” that the appellant suffered an additional injury at the hands of his VA chiropractor, “there is no evidence that the proximate cause of the disability was due to carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault.” R. at 9. There also is no evidence that it was not.
The Board chided the appellant for attempting to “address[] the standard of care provided” to him “as a lay person.” R. at 9. The Board, however, also is not competent to say whether the VA chiropractor and student treated him appropriately (or if a student should have been performing manipulations on him at all) and it should not have discussed the standard of care for chiropractic practitioners without obtaining medical evidence addressing that topic. See Kahana v. Shinseki, 24 Vet.App. 428, 435 (2011) (holding that, when a Board inference “results in a medical determination, the basis for that inference must be independent and it must be cited”); Colvin v. Derwinski, 1 Vet.App. 171, 172 (1991) (holding that, when the Board reaches a medical
conclusion, it must support its findings with “independent medical evidence”). If, on remand, the Board needs to determine the appropriate standard of care for medical procedures like the one that
2 The examiner indicated that the appellant does not have spondylolisthesis. R. at 33. Because she did not discuss evidence that the appellant had retro listhesis, her conclusion is not adequately explained.
3 In a September 2008 submission, the appellant stated that the chiropractic student incorrectly performed a “neck turning procedure” on him in June 2007. R. at 859. In September 2009, he gave a private chiropractor a detailed description of the treatment that the VA chiropractor and student performed on him. R. at 863. Any examiner who reviews this case in the future should compare the facts contained in those documents to the diagnoses found in the
September 2009 report.
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the appellant underwent, it should ensure that it obtains medical evidence that adequately describes that standard of care.4
The Board also used its competency finding to brush aside the appellant’s lay statements without fully considering them. 5 Once again, the appellant has thoroughly described what occurred during his June 2007 chiropractic treatments. He reported that, at one point, the chiropractor verbalized his displeasure with the student’s performance and tried to correct her
technique. He also reported that the student attempted a forceful manipulation several times and that it “felt different” than when the chiropractor performed it. R. at 863. The appellant is competent to describe the sensations that he felt and report that his care provider acknowledged
that the manipulation performed on him was not done correctly. The Board should carefully review the appellant’s statements on remand.
Finally, the Board concluded that the appellant “gave informed consent” for his chiropractic therapy. R. at 10. The record does not contain a signed consent form. The only evidence of consent is a June 6, 2007, treatment note authored by the student and co-signed by the VA chiropractor. It indicates that the student (and maybe the chiropractor) “discussed the treatment plan with the patient, including the likelihood of adverse effects and benefits associated
with chiropractic manipulative treatment, and the patient understood and consented to treatment.” R. at 1026.
The Board did not include the above quotation in its decision. The Board instead stretched that single incomplete sentence into three complete sentences, eliminated its perfunctory quality, and suggested a thoroughness and reasonableness that is not found in the original. More importantly, it did not cite the law governing informed consent or apply it to the student’s report.
See 38 C.F.R. § 3.361(d)(1)(i), (ii) (2017). If it reaches the appellant’s consent arguments on remand, it should ensure that it does so.
It also should ensure that it takes the appellant’s recollection of what the chiropractor and his student did (and did not) tell him into account. In particular, the Board should address the
4 When it does so, it may wish to note that a month prior to the “manipulative treatment” procedure performed by the chiropractor and his student, an x-ray revealed “no evidence of . . . malalignments.” R. at 998, 1026.
5 The Board found that, although the appellant “is competent to report symptoms such as pain and the onset of the pain, he is not competent to report that his underlying neck disability, to include radiating pain, was permanently
worsened as a result of chiropractic treatment in June 2007.” R. at 9. Why not? He certainly is competent to say that the pain that radiates into his arm became worse after June 2007 and has never abated.
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appellant’s assertion that he never gave permission for the student to perform therapeutic procedures on his neck. Nothing in the treatment records before the Court shows that he did.
The appellant asks the Court to award him entitlement to the benefits that he seeks. Because the errors committed by the Board are fact-finding errors, the Court does not at present have before it the factual background necessary to determine whether he is entitled to section 1151 benefits. Consequently, this case must be sent back to the Board for it to reach correct and properly
supported factual conclusions. See Gutierrez v. Principi, 19 Vet.App. 1, 10 (2004) (“[R]eversal is the appropriate remedy when the only permissible view of the evidence is contrary to the Board’s decision.”); Tucker v. West, 11 Vet.App. 369, 374 (1998) (remand is appropriate “where the Board
has incorrectly applied the law, failed to provide an adequate statement of reasons or bases for its determinations, or where the record is otherwise inadequate.”).
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 June 7, 2016, decision is VACATED and the matter on appeal is REMANDED for
further proceedings consistent with this decision.
DATED: December 21, 2017
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Copies to:
Stanley C. Chessick, Jr.
VA General Counsel (027)

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