Veteranclaims’s Blog

January 8, 2018

Single Judge Application; Board’s determination of adequacy; examinations taken together; El Amin v. Shinseki, 26 Vet.App. 136, 140 (2013); examiner role as adjudicator;

Excerpt from decision below:

“Having cleared away this debate, the Court considers the Board’s determination of adequacy with respect to each examination and then its discussion concerning the examinations taken together.”

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“The examiner’s discussion focused on issues of causation. See, e.g., R. at 572. The question, however, is not limited to causation. As this Court has made clear, a finding that a current disability is not caused by something “does not rule out the possibility that [appellant’s current condition] was also aggravated” by another service-connected disability. El Amin v. Shinseki, 26 Vet.App. 136, 140 (2013).”

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“To begin with, the Court notes that the 2014 examiner seemed to take on the role of adjudicator. For example, the examiner engages in an extended discussion of appellant’s credibility. See, e.g., R at 120-21. It is unclear to the Court (and the Board did not address this point at all) how the examiner’s detour and frolic into adjudication affected his conclusions.
Reliance on an examination bearing such a facial error is clearly erroneous.”

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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 16-3793
JOELENE HORNBACK, APPELLANT,
V.
DAVID J. SHULKIN, M.D.,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before ALLEN, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent.

ALLEN, Judge: Appellant Joelene Hornback appeals through counsel an October 20, 2016, Board of Veterans’ Appeals (Board) decision finding that she was not entitled to service connection for a low back disability. Record (R.) at 2-11. This appeal is timely and the Court has jurisdiction pursuant to 38 U.S.C. §§ 7252(a) and 7255(a). As discussed below, the Court will set aside the Board’s decision and remand this matter for further proceedings.
I. ANALYSIS
Appellant served honorably in the United States Marine Corps from August 1997 until
August 2001. She first sought service connection for a low back disability in May 2001. At the
same time, appellant also sought service connection for a bilateral knee condition. In September
2002, a VA regional office granted service connection for the bilateral knee condition but denied
it for the claimed back disability. In 2009, appellant sought to reopen the earlier denied claim
concerning her back disability, and the Board eventually agreed that the claim should be reopened.
In the decision on appeal, the Board denied the reopened claim for service connection for a low
back disability. As relevant to this decision, the Board rejected the argument that appellant’s low
back disability should be service connected secondarily to her service-connected knee condition.
2
Appellant claims that the Board erred in finding adequate and relying on two medical
examinations, one performed in November 2010 and the other in January 2014, in rejecting her
secondary service connection argument.1 Appellant’s Brief (Br.) at 6-10. The Secretary disagrees.
Secretary’s Br. at 9-15. As described below, the Court agrees with appellant that these
examinations are not adequate individually and that the Board has not sufficiently explained why
considering the examinations collectively changes matters.
When the Secretary elects to provide a medical examination, that examination must be
adequate. Barr v. Nicholson, 21 Vet.App. 303, 311-12 (2007); see Stegall v. West, 11 Vet.App.
268, 270-71 (1998) (remanding where a VA examination was “inadequate for evaluation
purposes”). A medical examination is adequate “where it is based upon consideration of the
veteran’s prior medical history and examination 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)). In the end, “[t]he Board must be able to conclude that a medical expert has applied valid
medical analysis to the significant facts of the particular case in order to reach the conclusions
submitted in a medical opinion.” Nieves-Rodriguez v. Peake, 22 Vet.App. 295, 301 (2008).
The Court reviews the Board’s determination that a medical examination is adequate under
the clearly erroneous standard of review. D’Aries v. Peake, 22 Vet.App. 97, 104 (2008). “A factual
finding ‘is “clearly erroneous” when although there is evidence to support it, the reviewing court
on the entire evidence is left with the definite and firm conviction that a mistake has been
committed.'” Hersey v. Derwinski, 2 Vet.App. 91, 94 (1992) (quoting United States v. U.S. Gypsum
Co., 333 U.S. 364, 395 (1948)).
In addition, “[t]he 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 in the record. . . .”
Allday v. Brown, 7 Vet.App. 517, 527 (1995); see 38 U.S.C. § 7104(d)(1). This “statement must
be adequate to enable a claimant to understand the precise basis for the Board’s decision, as well
as to facilitate review in this Court.” Allday, 7 Vet.App. at 527.
1 Secondary service connection is provided for in 38 C.F.R. § 3.310, a section titled “Disabilities that are
proximately due to, or aggravated by, service-connected disease or injury.”
3
A. A Preliminary Matter
Before addressing the Board’s determinations concerning the adequacy of the two
examinations at issue, the Court notes the parties’ discussion of what, precisely, it is that the Court is reviewing. See, e.g., Secretary’s Br. at 9-10; Appellant’s Reply Br. at 1-2. The parties debate whether the Court is reviewing the adequacy of the examinations themselves or only reviewing the Board’s determinations about that question. The Secretary is correct that the Court is reviewing what the Board has done. But appellant is correct that the Court cannot do that without considering
the adequacy of the examinations themselves.
What the parties are actually disputing, although they do not frame the issue in this way, is the operation of the standard of review. As described above, the adequacy of a medical examination is a question of fact. As such, the Board as factfinder makes the determination of adequacy in the first instance. This Court then considers the adequacy of the examination one step removed from what the Board has done. The Court must assess whether the Board’s initial
adequacy determination is clearly erroneous. In the end, the parties are essentially talking past one another on this point in this appeal. The Court does focus on the Board (the Secretary’s point) but must consider the examinations in connection with the Board’s conclusion (appellant’s point).
Having cleared away this debate, the Court considers the Board’s determination of adequacy with respect to each examination and then its discussion concerning the examinations taken together.
B. The November 2010 Examination
The Board’s finding, R. at 4, that the November 2010 examination is adequate is clearly erroneous. First, the examiner stated that “[t]he [appellant] had no complaints of low back pain from the time of separation from service in 2001 until 2009.” R. at 571. This statement is simply not true. There are numerous pieces of evidence that are inconsistent with the examiner’s statement.2 An examination based on an inaccurate factual premise is not adequate and has no
probative value. Reonal v. Brown, 5 Vet.App. 458, 460-61 (1993).
In addition, the Board’s adequacy determination is erroneous because the 2010 examiner did not provide sufficient rationale for the conclusion that appellant’s low back disability was not
2 See, e.g., R. at 993 (appellant’s testimony at a Board hearing concerning low back problems in 2002); R. at 1639 (reporting on a May 2004 incident in which appellant bent over to pick something up from the floor, heard her back “pop,” and experienced pain); R. at 1333 (October 2009 statement of appellant’s friend discussing back problems).
4
aggravated by her service-connected knee condition. The examiner’s discussion focused on issues of causation. See, e.g., R. at 572. The question, however, is not limited to causation. As this Court has made clear, a finding that a current disability is not caused by something “does not rule out the possibility that [appellant’s current condition] was also aggravated” by another service-connected disability. El Amin v. Shinseki, 26 Vet.App. 136, 140 (2013).
The Court is left with the definite and firm conviction that a mistake has been made in terms of the Board’s determination that the November 2010 examination is adequate. As such, that determination is reversed.
C. The January 2014 Examination
The Board’s finding, see R. at 4, that the January 2014 examination is adequate is clearly erroneous. To begin with, the Court notes that the 2014 examiner seemed to take on the role of adjudicator. For example, the examiner engages in an extended discussion of appellant’s credibility. See, e.g., R at 120-21. It is unclear to the Court (and the Board did not address this point at all) how the examiner’s detour and frolic into adjudication affected his conclusions.
Reliance on an examination bearing such a facial error is clearly erroneous.
In addition, this examination suffers from one of the deficiencies discussed above. The 2014 examiner conflates causation and aggravation. See, e.g., R. at 122. As the Court explained above, the mere fact that a disability is not caused by something does not address whether it has been aggravated by something. See El Amin, 26 Vet.App. at 140.
As with the 2010 examination, the Court is left with a definite and firm conviction that a mistake has been made in terms of the Board’s determination that the January 2014 examination is adequate. As such, that determination is reversed.

D. Considering the Examinations Together
The Court has concluded that the Board’s determinations that the November 2010 and January 2014 examinations were adequate are clearly erroneous. It is possible (theoretically at least) for two inadequate examinations to adequately support a finding by the Board. For example, one examination could be inadequate as to point 1 but adequate as to point 2 and a second examination could be adequate as to point 1 but inadequate as to point 2. When combined, the examinations could provide the necessary foundation for a finding, even though neither one standing alone would be insufficient.
5
The Secretary essentially makes this argument when he suggests that any deficiencies in the October 2010 examination concerning a lack of discussion of low back pain from 2001 to 2009 is cured because the Board also considered the January 2014 examination that did note those issues. See, e.g., Secretary’s Br. at 12-14. The difficulty with the Secretary’s argument is that the Board does not appear to have done what the Secretary suggests. And if the Board did this type of
analysis, it certainly did not provide the reasons and bases necessary for this Court to engage in meaningful judicial review. In sum, the theoretical possibility of two inadequate examinations yielding an overall adequate assessment does not match the reality of this appeal, at least not as the Board explained.
The Court need not address any of appellant’s other arguments at this time. See Best v. Principi, 15 Vet.App. 18, 20 (2001) (per curiam order). On remand, appellant is free to submit additional evidence and argument and the Board is required to consider such matters. 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 reminds the Board 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 the Court remands).

II. CONCLUSION
After consideration of the parties’ briefs, and a review of the record, the Board’s October
20, 2016, decision is SET ASIDE and this matter is REMANDED for further proceedings
consistent with this decision.
DATED: January 5, 2018
Copies to:
Zachary M. Stolz, Esq.
VA General Counsel (027)

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